42 Mts Opposition Replaced

Case 1:07-cv-00026-OWW-TAG

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2 3 4

Document 42

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Page 1 of 17

Mark A. Wasser CA SB #060160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento. CA 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: mwasseriWmarkwasser.com

5

Bernard C. Barmann, Sr. KERN COUNTY COUNSEL 6 Mark Nations, Chief Deputy 1115 Truxton Avenue, Fourth Floor 7 Bakersfield, CA 93301 Phone: (661) 868-3800 8 Fax: (661) 868-3805 I E-mail: [email protected]

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Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith William Roy

12 13

UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

15 16

DAVID F. JADWIN, D.O.

17 18 19

Plaintiff, vs. COUNTY OF KERN, et aI.,

20

Defendants.

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Case No.: 1:07-cv-00026-0WW-TAG

) DECLARATION OF MARKA. WASSER ) IN OPPOSTION TO MOTION TO STRIKE

~

) ) ) ) ) )

Date: August 13, 2007 Time: 9:30 a.m. Place: U.S. Bankruptcy Courthouse, Bakersfield Courtroom 8 Date Action Filed: January 6, 2007 Trial Date: August 26, 2008

~

22 23

~

------------)

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I, Mark A. Wasser, declare as follows:

25

1.

I am counsel of record for Defendants and am familiar with this action. The

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following statements are made of my own personal knowledge and I can testify competently to

27

them if called as a witness.

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I

DECLARATION OF MARK A. WASSE IN OPPOSITION TO MOTION TO STRIK

Case 1:07-cv-00026-OWW-TAG 2.

Document 42

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In my written and oral communications with counsel for Plaintiff before this

2

motion was filed, I repeatedly suggested that the motion is premature and that Defendants will

3

stipulate that the motion can be brought later, after reasonable discovery, and that Defendants

4

will consider voluntarily dropping the fifth affirmative defense at or before the pretrial

5

conference if appropriate relevant evidence has not been developed by that time.

6

3.

No discovery has occurred between the parties but I have informally interviewed

7

some potential witnesses. On the basis of my limited and informal interviews I have learned that

8

other employees at Kern Medical Center either quit or requested transfers to other departments to

9

get away from Plaintiff and the stressful work environment he created. I have been told that, on

10

one occasion, Plaintiff attempted to drag another physician out of a patient's hospital room by

11

the physician's neck tie. 1 have been told of other incidents where Plaintiffs behavior upset

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other hospital employees and caused unreasonable stress

13

believe there is a good faith basis for reasonable discovery into Plaintiff s behavior during his

14

tenure at Kern Medical Center to deternline the extent to which Plaintiff s behavior contributed

15

to hostility in the work environment.

16

4.

several working relationships. 1

Attached hereto as Exhibit I, is a true and correct copy of a draft joint scheduling

17

conference report that 1 submitted to Plaintiff s counsel. 1 proposed the language in section IV,

18

A, on page, 7 in response to Eugene

19

Plaintiff "is not alleging any assault, battery, injury or wrongful death causes of action" Plaintif

20

did not agree to the language 1 proposed and thereafter dropped his objections to the seventh

21

affirmative defense. It remains, unchallenged, in Defendants' answer.

Lee's letter of May 11,2007 in which he \vrote that

22

I certify under penalty of perjury that the foregoing is true and correct.

23

Executed on July 27, 2007, at Sacramento, California.

24 25

LAW OFFICES OF MARK A WASSER

26

By: /s/ Mark A Wasser

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Mark A Wasser Attorney for Defendants, County of Kern, et al.

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DECLARATION OF MARK A. WASSE IN OPPOSITION TO MOTION TO STRIK

Case 1:07-cv-00026-OWW-TAG

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EXHIBIT I: Draft Joint Scheduling Report Pursuant to FRCP 26(f)

Case 1:07-cv-00026-OWW-TAG

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5

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Filed 07/27/2007

Eugene D. Lee SB# 236812

Mark A. Wasser SB# 060160

LAW OFFlCE OF EUGENE LEE

LAW OFFICES OF MARK WASSER

555 West Fifth Street, Suite 3100 Los Angeles, California 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: elee0)LOEL.com Attorneys fo~ Plaintiff DAVID F. JADWIN. D.O.

400 Capilol Mall Ste 1100 Sacramento. California 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: [email protected]

Page 4 of 17

Bernard C. Bm'mann, Sr. SB# 060508 KERN COUNTY COUNSEL

Mark Nations, Chief Deputy 1115 Truxton Avenue. Fourth Floor Bakersfield. California 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: mnationstZlco.kern.ca.us

I

7 8

9 10

Document 42

Attorneys for Defendants COUNTY OF KERN, PETER BRYAN. IRWIN HARRIS. EUGENE KERCHER. JENNIFER ABRAHAM. SCOTT RAGLAND. TONI SMITH and WILLIAM ROY

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

:: I DA VID I . JADWIN. D.O., 16

'

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1

18 j9

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JOINT SCHEDULING REPORT PURSUANT TO FRCP 26(1)

Plaintil{ v.

COUNTY OF KERN: et ai.

Defendants.

Date: Time: Location: Judge:

May 31. 2007 8:45 a.m. Courtroom 3 Hon. Oliver W. Wanger

Date Action F'iled: Date Set for Trial:

January 6, 2007 None

21

[PLAINTIFF'S ATTORNEY REQUESTS TELEPHONIC APPEARANCE!

22 23

~41I

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TO ALl. PARTIES AND THEIR ATTORNEYS OF RECORD AND THE HONORABLE COURT:

25 Pursuant to Rule 26(f) of the Federal Rules of Civil Procedure and the COllIi's Order Setting 26

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Mandatory Scheduling Conference entered on January 8, 2007, all parties to the above-entitled action 27 hereby submit this Joint Scheduling Report for the Mandatory Scheduling Conference currently set for 28 ,JOINT SCHEDULING REPORT PURSUANT TO FRCP26(O

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8:45 am, May 31, 2007. This action \vas originally filed on January 6, 2007, and is assigned to the 2

Honorable Oliver W. Wanger.

3

J.

4

SUMMARY OF CONTENTIONS & RELIEF SOUGHT

5 6

A. Plaintiffs Summary !. This is an individual action brought by PlaintitTDavid F. Jadwin, D.O.. a whistleblo\ving

7 8

physician with disabilities, against his employer, (i) the County of Kern ("Defendant County" or "the

9

County"), owner and operator of Kern Medical Center ("KMC') the health facility at which Plaintiff

10

was employed; )

11

Medical Center ("KMC'); Eugene Kercher, M.D., President of Medical Staff at KMC ("Kercher");

12

Jennifer Abraham, ['vtD., lmmediate Past President of Medical Staff at KMC ("Abraham"); Scott

individual Defendants Peter Bryan ("Bry'un"), Chief r:xecutive Officer of Kern

13 1 Ragland, M,])" President-Elect of Medical Staff at KMC ("Ragland"); and Toni Smith, Chief Nurse

14

Executive ofKMC, ("Smith"), both personally and in their official capacities; and (iii) individual

15

Defendants lrVt'in

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the Division of Gynecologic Oncology at KMC ("Roy"); and DOES 1 through 10.

vViJl!am Roy, \,'1.D ..

2. PlaintifFs claims against his employer, Defendant County, allege violations of section 1278. ~

17 18

1v1.D., Chief Medical Orl'lcer of K1\'iC

or the Health & Safety Code l \vhich prohibits retaliation against a health care provider who reports

19 1 suspected unsafe care and conditions of patients in a health care facility; section 1102.5 of the Labor 20

I Code \vhich prohibits retaliation against an employee for reporting or refusing to participate in suspecte

21

violations orthe law; the California Family Rights Act (sections 12945.1, et seq., of the Government

22

Code) ("CFRA") and the Family and Medical Leave Act (sections 2601, et seq. orthe United States

23

Code) ("FMLA") \vhich prohibit interference with an employee's right to medica! !eave and retaliation

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for an employee'S exercise of the right to medical leave; and the Fair Employment and Housing Act

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[subdivisions (a), (m) & (n) of section 12940 of the Government Code] ("FEBA") which prohihits

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discrimination against an employee with a disability, failure to provide reasonable accommodation, and

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statutory references are to California Codes unless otherwise specified

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failure to engage in an interactive process; and recovery of wrongfully deducted wages under the Fair 2 3

Labor Standards Act (29 U.S.c. §§ 201, ct seq.) ("FLSA"). 3. Plaintiff sues Defendants County, Roy, Harris and DOES 1 through 10, for defamation; and

4

also sues each of the individual Defendants except for Roy and Harris, both in their personal capacity

5

and in their official capacity as members of the KMC Joint Conference Committee (".ICC"), for

6

violation ofPlaintiffs 14th Amendment of the United States Constitution right to procedural due

7

process pursuant to 42 U.S.C § 1983 ("Due Process").

8

4. Plaintiff brings this action for general,

compensator~y,

and punitive damages; prejudgment

9

interest, costs and attorneys' fees; injunctive and declaratory relief; and other appropriate and just reliefj

!0

resulting from Defendants' unlm-vfuJ conduct.

!

!1

12 I ' .j

B. Defendants' Summarv J. PlaintitT is not a whistleb!O\ver and is not disabled. He \vas employed by the County ofKer

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as a staff pathologist at Kern Medical Center pursuant to a \\Titten agreement and assigned to the

15

position of Chair of the Pathology Department.

16

2, During his tenure at Kern Medical Center, Plaintiff's behavior caused several pathologists,

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technicians and support personnel whom he criticized, intimidated, harassed and retaliated against to

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quit and seek employment elsewhere. He alienated many of the physicians at Kern Medical Center

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through criticism, disruptive behavior, disrespect, anger, arrogance and retaliation. Plaintiff complaine

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about procedures and policies at Kern Medical Center and interfered with patient care through

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obstructionist behavior and secretive practices. His pathology reports \vere characterized by frequent

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mistakes, changes in opinion and untimely service, all of v\"hich compromised patient care.

I

Disagreements arose bet\veen PlaintitT and many of the other physicians at Kern Medica! Center

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regarding Plaintiffs behavior, his anger and confrontational personal style, his inaccurate and untimely

25

diagnoses, his disruptive behavior, his complaints about medica! procedures, his refusal to follow even

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his own rules, his intimidation of stafT and patient management.

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3. As a result of the stresses and disagreements that Plaintiff brought into the \vorkplace, his

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injuries and illnesses, family health issues and outside business interests, Plaintiff requested and

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received a reduced \york schedule and multiple leaves of absence. He frequently \vorked only onc or

3

two days a week and was absent from the hospital for long periods of time. Because he was neither

4

working

5

Pathology Department and his compensation \vas adjusted to that of a staff pathologist ,vithout

6

departmental administrative responsibilities.

7

full~tjme nor

present in the hospital, he \vas removed from the position of Chair of the

4. Management at Kern Medical Center counseled Plaintiff about his anger and confrontationa

8

style but Plaintiff was not receptive to the counseling and the \vork environment continued to

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deteriorate. Plaintiff was finally pJaced on paid administrative Jeave in an effort to allow the work

10

environment to stabilize.

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r

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I

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Ii.

PROPOSED AMENDMENTS.

Plaintiff intends to file a Second Supplemental Complaint to include allegations of continuing

14

discrimination and retaliation that occurred aftcr Apri124~ 2007. Plaintiff\vill insert the tollmving: On

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T\hy 1,2007, Defendant

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his contract expires on October 4, 2007; and

J7

County docs not intend to renew his employment contract. Although Plaintiff is no longer restricted to

18

the confines of his home during \vorking hours, he still may not enter KMC's premises or access his

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office without prior written permission. The numbering of the following paragraphs

20

accordingly. Defendants have agreed in principle to stipuJate to the supplement; provided, however, tha

notifjcd Plaintiffthat he that~

",,'in remain on paid administrative leave until

contrary to its prior and customary practice, Defendm t I

",,iiI!

I

Deleted: the

be adjusted

Plaintiff first provide Defendants with the Second Supplemental Complaint in the form in which

22

Plaintiff intends to file it for Defendants' prior revie\v. Defendants intend to Jile an Amended /\n5We1" that (i). \Crith regard to the third affirmative \vithrgreat~l:particu!arity+(ii)with

24

defense, alleges the specific privileges and immunities relied on

25

regard to the fourth affirmative defense. aHeges the specific provisions of Cal. Civ. Section 47 relied on

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with f!reatcr,particular~tX,Jiii).,elimin_~~?sjthe seventh .affirmative defense (Cal. Civ. Proc. Co~e,.,_~ 335.1

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two-year statute of limitations), and (lv) alleges the ninth affirmative defense (qualified immunity) \vith

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2reater particularity;::"~lai~tiff has ag,reed. ~n principle to stivulate to the amendment, provided, ho\vcver

2

that Defendants first provide Plaintiff with the Amended Answer in the form in which Defendants inten

3

to file it for Plaintiffs prior review. Deleted: The parties have stipulated to

4

the filing of these amendments and will stipulation and order for

Ill. SUMMARY OF UNCONTESTED AND CONTESTED FACTS.

5

:::,:: ..::::.::,:to the Court

A. Uncontested Facts

6

1. At all material times, Defendant Kern County \vas a local public entity \'.iithin the meaning 0

7

'

sections 811.2 & 900.4 of the Government Code and is operating in Kern County, California.

8

2. During the entire course of Plaintiffs employment, Defendant Kern County has continuousl

9

been an employer \vithin the meaning of Fi'v-lLA 129 C.F.R. § 825.105(C}], CFRA [Gov't Code § 12945,2(b)(2l] FFHA [Gov'! Code § 12926(dl]. and FLSA [29 U,S,c. §203] engaged in interstate commerce, and regularly employing more than nfty employees within seventy five miles of Plaintiffs \vorkplace, 3. Defendant Bryan was Chief Executive Officer ofKMC and a resident of California during most of the time aiJeged in the Complaint. 4, At all material times, Defendant Eugene Kercher \-vas a citizen of California, a resident of

17

Kern County, California, and President ofKMC Medical Staff, and a member of the KMC Joint

18

Conference Committee ("JCC"), 5, At all material times, Defendant 1nvin lIarris \-vas a citizen of California, and a resident of

19

20 1 Kern County, California, and Chief Medical Officer at KMC, and a non-voting member of the .ICe. 21 i 22 23 24 25 26 27

1

6. At all material times, Defendant Jennifer Abraham was a citizen of California, and a residen of Kern County, California and Immediate Past President ofKMC Medical Staff. 7, At all material times, Defendant Scott Ragland was a citizen of California, and a resident of Kern County, California, President-Elect ofKMC Medical Staff, and a member or the .Ice. 8. At all material times, Defendant Toni Smith \vas a citizen of California, and a resident of Kern County, California, and Chief Nurse Executive ofKMC, and a member of the .Ice. 9. At all material times, Defendant William Roy \vas a citizen of California, and a resident of

28 )OINT SCHEDULING REPORT PURSUANT TO FRCP 26(fj

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Kern County, California and Chief of the Division of Gynecologic Oncology at KMC 10. Plaintiff has continuously been an employee of Defendant Kern County since October 24,

2 2000~

3

11. Plaintiff is a pathologist \\ihom Defendant County hired as a pathologist at KMC and

4

appointed to the position afehair of the Pathology Department.

5

12. Plaintiff was compensated and provided \\'ith certain benefits pursuant to a \vrittcn

6 7

employment agrL-"Cment, the terms of which speak t()f themselves.

"

8

13. Defendant Kern County placed Plaintiff's initial salary level at Step C.

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14. Defendants expected Plaintiff to be an effective member of the physicians' staff at KMC an

II

i

to contribute to the overaH improvement of the hospital.

10 I

I

15 Plamtlff requested and recel\ed lea\cs of absence and reduced \-\ork schedules. the klms anr conditions of and reasons fO! \\ hlch arc memonalized in \\ rnmgs that speak l'OJ themseh es

12

16 Plamtiffs former attorney sent a letter to Kern Count) Counsel Bernard Barmann and Mr

13

14

I

Barmann met with Plaintiff on or about February 9, 2006.

! j5 l

i 7. Defendant Bryan and Plaintiff exchanged \vritten communications regarding Plaintif-T's

16

reduced work schedule and requests for leaves of absence. PlaintilI met with Defendant Bryan and

17

others to discuss those subjects.

18

18. Defendant Bryan and Plaintiff exchanged written correspondence regarding Plaintiff's tenur

19

and performance as Chair of the Pathology Department at KMC. All the writings speak for themselves.

20

19. On or about July 10,2006, the .TCC voted to remove Plaintiff from his position as Chair of the Pathology Department at Kern Medical Center. 20. Plaintiff was removed from his position as Chair of the Pathology Department in part

23

24

25

because he ;vas neither \vorking full·time nor present in the hospital. 21. Defendant County subsequently amended Plaintiff's employment agreement to reduce Plaintiffs base compensation.

26

22. Defendant County appointed Dr. Philip Dutt Acting Chair of the Pathology Department

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23. Plaintiff returned to work as a stafT pathologist at KMC on October 4, 2006.

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24. Plaintiff exchanged written correspondence with KMC Interim CEO David Culberson and 2

those writings speak for themselves. 25. Defendant Kern County placed Plaintiff on paid administrative leave, which continues to thi

3

4

date. 26. Defendant County ha<; provided Plaintiff \vith the information he requested from the

5 6

computer that had been previously assigned to him.

7

27. Plaimifffiled a claim \vith Defendant Kern County and the claim was rejected. B. Contested Facts

8

1. Defendants contest all allegations and averments in the First Supplemented Complaint other

9

to

I I

than those enumerated in Section A. Uncontested Facts. 2. Plaintiff contests Defendants' averment that Plaintiff disrupted the October, 2005, Ivionthly

II 12

Oncology Conference and prevented appropriate discussion of case management and that other

13

physicians at Kern Medical Center, including some of the Defendants, v,/ere concerned about Plaintiffs ,

,I i

conduct and \\'ith his interference with patient care. 15 i

3. Plaintiff contests all averments contained in the Ans\ver to the First Supplemented Complai It

I

16

I

other than those stated in Section A, Uncontested Facts.

17 IV. SUMMARY OF UNDISPUTED AND DISPUTED LEGAL ISSUES

18 19

A. Undisputed issues

20 21

1. Plaintiff is not seeking damages or relief for an\! personal injuries that v'iOuld be \vithin the

22

scoRe of section 335.1 Grthe CaUJornia Code of CIvil Procedure.swd the scope of anv relief awagled in

23

this matter shall be limited accordingly

24 25 26 27

i B. Disputed Issues

1. Whether this Court has or should exercise supplemental jurisdiction over Plaintiff's state

claims pursuant to 28 U.S.c. § 1367.

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2. Whether Defendant Kern County violated Cal. Health & Safety Code § 1278.5, entitling 2

Plaintiff to damages for retaliation for reporting his concerns about the health and safety of patients.

3

3. Whether Defendant Kern County violated Cal. Lab. Code § 1102.5, entitling Plaintiff to

4

damages for retaliation against him for reporting suspected illegal acts.

5

4. Whether Defendant Kern County violated Cal. Gov't Code §§ 12945.1, et seq and 2 C.CR.

6

7297.7(a), entitling Plaintiff to damages for retaliation for exercising his right to CFRA medical leave.

7 8 9

5. Whether Defendants Kern County and Bryan violated 29 U.S.c.

§~

2601, et seq., entitling

Plaintiff to damages for interference with his FMLA Rights. 6. Whether Defendant Kern County violated Cal. Gov't Code §§ 12945.1, et seq., entitling

10 1 Plaintiff to damages for violation of CFRA Rights. 11 12 13 J4

J5

7. Whether Defendant Kern County violated Cal. Gov't. Code § 12940(a) entitling Plaintiff to j

damages for disability discrimination. 8. Whether Defendant Kern County violated Cal. Gov't Code § 12940(m) entitlingPlaintifTto damages for failure to provide reasonable accommodation, and an injunction requiring compliance. 9. \Vbethcr Defendant Kern

·violated Cal. OO\-"t Code

~

12940(n) entitling Plaintiff to

16

damages and injunctive relief for failure to engage in good faith in an interactive process. and an

17

injunction requiring compliance.

18

10. Pursuant to 42 U.S.C § 1983, whether Defendants Bryan, Kercher, Ragland, Abraham, and I

19

Smith. both personally and in their respective official capacities, violated the 14th Amendment of the

20

U.S. Constitution entitling Plaintiff to damages and injunctive relief for procedural due process

21

violations.

22 23 24

1 J. \Vhether Defendants Kern County, Roy, and Harris violated Cal. Civ. Code §§ 45· 47 entitling Plaintiff for damages for defamation. 12. Whether Defendant Kern County violated 29 U.S.c. §201 ct seq. entitling Plaintiff to

25

damages for 'wages lost during periods when he was ready, willing, and able to \vork, but was denied

26

reduced schedule medical leave, and forced to take full time leave; and an injunction requiring

27

compliance.

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V.

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STATUS OF ALL MATTERS BEFORE THE COURT

There are no matters presently set before the Court other than this Scheduling Conference.

4

VI. DISCOVERY PLAN

5 6

7 8

A. Rule 26(a)(l) Initial Disclosure Deadline [June 4, 2007J.

9 1() 11

Il Discover\' Subjects. Deadlines. Limitations. Phasing. Etc. I. Expert Deadlines

]2

Expert Disclosure Deadline:

[December 3, 2007J

131

Supplemental Expert Disclosure Deadline:

[December 17, 2007]

14

2. Discovery Deadlines [December 3,2007]

]6 17

Expert:

[February 15,2008]

3. Subjects of Discovery: Plaintiff believes discovery will be needed on: (i) the various patient

18

care quality and regulatory non-compliance issues with respect to which PlaintiIfblevv the whistle, (ii)

19

KMC's policies and procedures regarding reasonable accommodation of disabled employees, engaging

20

in interactive process \vith disabled employees, FMLA/CFRA !cave, discrimination/retaliation against

21

\vhistlebJowing employees, reduced \vork schedule, etc., (iii) the circumstances surrounding and

22

decision-making behind the various adverse employment actions taken against Plaintiff, including:

23

reprimand of PlaintitT in connection \vith his presentation at the October 2005 oncology conference.

24

vvithdrawal of reduced work schedule, demotion and salary reduction, involuntary leave, non~renewai of

25

contract, etc., and (Iv) the circumstances surrounding and decision-making behind Defendant Roy's,

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Harris's and Does I through IO's defamation of Plaintiff and Defendant County's ratification thereof

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Defendants believe discovery will be needed regarding Plaintiffs education, qualifications and training

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his employment history, his outside business interests, specific events that transpired during Plaintiffs

2

employment, the relationships between Plaintiff and the other physicians and staff at KMC, the tUl-nove

3

and departures of physicians and stafffrorn the Pathology Department during Plaintiff's chairmanship,

4

the circumstances of and reasons for Plaintiff's leaves of absence and reduced work schedule and the

5

reasons why Plaintiff claims he is disabled.

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4. Phasing: The parties arc not presently aware of any reason to phase discovery.

7

5. Limitations to or Focus upon Particular Issues: The parties arc not presently aware of any limitations on discovery.

8

6. Depositions: The parties have agreed that July 2,2007 is the first possible date to send out

9

deposition notices, The parties have agreed that July 23 ,2007 is the first possible date for oral depositions. Because most depositions will be held in Bakersfield and all counsel are out-of-tmvn, the parties have agreed to schedule depositions in blocks of multiple depositions at a single time to make travel as cost-effective as possible. The parties \vil! set depositions on Tuesdays, \Vedncsda)'s and Thursdays and \'vill allow enough time bet\\'een settings to allow adequate preparation. Shorter The parties may" videotape and/or audio record

15

depositions may be scheduled for the same

16

depositions, and the video camera may be operated by the attorneys or their employees,

17

,

18

C. Electronic Discovery

The parties have in their custody and possession e-mails related to issues in this action and have

19 20

each made requests of the other that all such e-mails be preserved and disclosed. I'he parties shall

21

produce e-mails to eaeh other in Microsoft Outlook format. The parties are not presently mvare of any

22

other electronic discm'ef)' issues.

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24! 25

D. Confidentialitv Orders Documents to be produced include patient medical records that contain confidential patient

26

health care information, medical peer review records that are cont1dential pursuant to California

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Evidence Code section 1157, some documents that are protected by the attorney/client privilege and

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some documents that include attorney \vark-product and trial preparation materials. The Defendants ar 2

required to redact all contidential patient information before producing any patient records and will do

3

so. The

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without redaction phall not be construed as a 'Naiver of the peer revic\v privileg~ in general or a waiver

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\vith regard to any other documents or person. 'I'he gartics

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certain specified relevant memos and e-mails that \vere sent to legal counsel for the County of Kern, as

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well as other, non-Iu\-vyer, County employees'rs~all not be construed as a waiver of the attorney/client

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privilege. Tbe n,arties hereby agree that Defendants'production of certain specified documents that

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include attorney workwproduct and trial preparation materials shall not constitute a waiver of either the

10)

,>vark-product or trial preparation materials privileges as to any other materials.

p'aryi~s

hereby

agr~ethat

Defendants' production of certain

specifiedp~~rreview

hcrebY~,gree

records

that Dcfendants'yroduction of

subject to a stipulation that

The p,arties hereb)'agree that, in order to preserve the conJ'identia!i.tyrequired for continued

II

Pjaintifl~s

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effective treatment of Plaintiffs depression, anxiety, insomnia, and emotional distress,

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treating psychiatrists/psychologists shall not be required to produce their actual treatment notes, but instead shall produce a summary oftheir treatment of PlaintitT's depression and emotional distress, including their diagnoses and prognoses, and the basis for their opinion, including rav.;, data of any psychological testing. Plaintiff is willing to undergo psychological examination by Defendants' qualified expert pursuant to Federal Rule of Civil Procedure Rule 34 subject to a stipulation regarding the timing and scope of the examination, including the specific tests to be performed, and prompt

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production of the subsequent report and raw data supporting the report to all parties. The parties are not presently aware of any other issues relating to claims of privilege or of protection as trial-preparation material.

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241

E. Changes in Limitations on Discoverv Given the number of defendants and vv'itncsses and the number and complexity of the issues,

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Plaintiff anticipates needing relief from the discovery limitations of Federal Rule of Civil Procedure

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30(a)(2)(A) (10 depositions per side) and Rule 33(a) (no more than 25 interrogatories per party).

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Defendants do not object to granting Plaintiff relief from that limitation. Defendants anticipate that the

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deposition of the Plaintiff will take up to 21 hours because of the quantity of material that needs to be

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covered. Defendants therefore request relief from FRCP 30(d)(2),( I day of 7 hours per deposition).

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Plaintiff does not object to pefendants 'sr~quest;_provided, _ hO\vever, that no

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deposition.sh~lIexceed7

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limitations on discovery.

sin~lc

clay ofPlaintiff.s,

hours. The parties arc not presently aware ora need to change any other

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F. Other Orders under Rules 26{c) or 16th) and (e) The parties arc not presently aware of a need for any protective or other orders other than as provided herein.

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VII. AGREED-UPON DATES

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A. Pre-Trial Motions

1. Non·DisposJtive Motions filing Deadline:

[I\1arch 3, 2008]

I--Icard no latcr than:

[April 4, 2008J

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2. Dispositive Motions

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Filing Deadline:

[May 2, 2008J

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Heard no later than:

[June 6, 2008J

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B. Pre-Trial Conference

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1. Settlement Conference:

[February 15.2008]

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2. Pre-Trial Conference:

[August 4, 2008J

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C. Trial

Trial Date:

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[September 2, 2008J

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VIII. SETTLEMENT 2

The parties are interested in exploring the opportunity to settle this matter before incurring

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additional attorney fees and costs. Court-ordered mediation, private mediation or an Early Case

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Conference might be bcneJ1cial.

5 IX. TRIAL BY JURY

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PJaintiffhas requested ajury trial on all possible issues and claims,

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8 X.

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ESTIMATE OF NUMBER OF TRIAL DAYS REQUIRED

The parties estimate that trial wlil take 12-15 days.

111 XI. BIFURCATION OF TRIAL Neither party anticipates the need for bifurcation,

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Xii. RELATED MA TTERS

The parties are unmNure of any related matters pending in this Court or any other court, includin) any bankruptcy court.

RESPECTFULLY SUBMITTED on May 24, 2007,

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Is! Eugene D. Lee

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LA W OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, California 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: d~~(fl',LOEloi,.C;:Jlm Attorney for PlalnlilTDAVID F. JADWIN. D,O,

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lsi Mark A. Wasser, Cali[ SB# 060160 26

LAW OFFICES OF MARK WASSER

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400 Capitol Mall, Ste, 1100 Sacramento, California 95814 Phone: (916) 444-6400

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Fax: (916) 444-6405 EMmail: m\vasser(wmarkwasser.com Attorneys for Defendants COUNTY OF KERN, PETER BRYAN, IRWIN HARRIS, EUGENE KERCHER, JENNIFER ABRAHAM, SCOTT RAGLAND, TONI SMITH and WILLIAM ROY,

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