43 Mts - Opposition Mpa

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

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Document 43

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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: mwasser(aJ.markwasser.com Bernard C. Barmarm, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy IllS Truxton Avenue, Fourth Floor Bakersfield, CA 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: [email protected]

9 10

Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, 11 Jennifer Abraham, Seott Ragland, Toni Smith 12 land Roy UNITED STATES DISTRICT COURT

13

EASTER~ DISTRICT

14

OF

CALIFOR~IA

15 16 17 18 19 20

) ) ) ) ) ) )

DAVID F. JADWIN, D.O. Plaintiff, vs. COUNTY OF KERN, et aI.,

23 24

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

Defendants respectfully submit this memorandum in opposition to Plaintiffs motion to

25

strike the fifth affirmative defense.

26

I.

27

DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSTION TO MOTION TO STRIKE

~ ~ )

Defendants.

21 22

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

STATUS OF THE CASE

After filing a complaint, an amended complaint and a supplemental complaint, the

28 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES OPPOSITION TO MOTION TO STRIK

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Plaintiff filed his Second Supplemental Complaint on June 13,2007. Defendants answered on

2

June 21, 2007. The initial scheduling conference was postponed until May 31, 2007 to allow

3

Plaintiff time to revise and finalize his pleadings. The Rule 26(f) initial disclosures have been

4

postponed, also, to August 6, 2007, to allow Plaintiff time to file this motion to strike. To date,

5

there has been no discovery or exchange of information between the parties. (Although not

6

discovery, Defendants copied and delivered to Plaintiff some computer files that Plaintiff

7

requested off the hard drive of his former County-assigned computer in April, 2007.) Plaintiff

8

requested and the Defendants agreed that depositions may not commence

9

23,2007. See June 6, 2006 Scheduling Order.

10

n.

after September

THE PLEADINGS AND THE MEET-AND-CONFER PROCESS

II

After Defendants filed their answer to the second supplemental complaint, Plaintiff

12

objected to five of Defendants' nine affirmative defenses. See Letter of May II, 2007 from

13

Eugene D. Lee to Mark A. Wasser, Exhibit I to Amended Eugene D. Lee ("Amended Lee")

14

Declaration. Through a meet-and-confer process that lasted almost three months, the parties

15

resolved their disagreements over all but the fifth affirmative defense.

16

The parties' communications regarding the seventh affirmative defense are relevant to the

17

issues Plaintiff raises in this motion to strike. The seventh affirmative defense asserts the two-

18

year statute oflimitations on personal injuries found in Cal. Code Civ. Proc. § 335.1.

19

II, 2007 letter (Exhibit 1 to Amended Lee Declaration), Plaintiff s counsel V\Tote that "Plaintiff

20

is not alleging any assault, battery, injury or V\Tongful death causes of action" and asked

21

Defendants to strike the seventh affirmative defense. Defendants' counsel replied that

22

Defendants would voluntarily strike the seventh affirmative defense upon a representation from

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Plaintiff that he was, in fact, "claiming no damages for claims encompassed" within section

24

335.1. Exhibit 2 to Amended Lee Declaration. Defendants even proposed a stipulation to that

25

effect for inclusion in the scheduling order. See Exhibit I to Mark A. Wasser ("Wasser")

26

Declaration.

27

his May

Plaintiff rejected the proposed stipulation and, apparently after reflection, dropped his

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objection to the seventh affirmative defense. It is clear from the complaint that Plaintiff is

2

claiming personal injuries and that Mr. Lee's statement to the contrary in his May 11 letter was

3

in error. For example, paragraph 141 of the complaint alleges that "Plaintiff has suffered and

4

continues to suffer non-economic damages, such as emotional distress, anxiety, humiliation, and

5

loss of reputation." Paragraph 135 alleges that Defendants created a "hostile work environment"

6

and subjected Plaintiff to "disparate treatment, unwarranted criticism and reprimands, threats,

7

requests for his resignation ..." Paragraphs 106 and 107 allege that Plaintiff "suffered from

8

depression due to the work-related hostility ..." and "was suffering extreme distress from the

9

hostile work environment created by the harassment, defamation, discrimination, and retaliatory

10

adverse actions of the Defendants ...". Paragraph 142 alleges that these acts "were and are a

11

substantial factor in causing Plaintiff s harm." Plaintiff s prayer seeks, among other things,

12

"[g]eneral and compensatory damages according to proof." One

13

allegations as fairly typical allegations of personal injury.

14

ch,rra(;ter'ize these

Thus, among his almost-dozen claims, Plaintiff seeks recovery of money damages for

15

personal injuries allegedly sustained as a result of a hostile work environment, unspecified

16

harassment and discrimination. It is in this context that Defendants' fifth affirmative defense

17

must be evaluated.

m.

18

ARGUMENT

19

A.

20

Motions to strike are disfavored because of the limited importanee of pleadings in federal

Motions to Strike lire Disfavored

21

practice and because they are often viewed as delaying tactics. RDF Media Ltd v. Fox

22

Broadcasting Co., 372 F.Supp.2d 556,566 (C.D.Cal. 2005); s.E.c. v. Sands, 902 F.Supp. 1149,

23

1165 (C.D.Cal. 1995); Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before Trial,

24

§ 9:375 (2007).

25

To strike an affirmative defense, the moving party must convinee the court (1) that there

26

are no questions offact; (2) that any questions of law are clear and not in dispute and (3) that

27

under no set of circumstances could the defense succeed. Sands, 902 F.Supp. at 1165;

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Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before Trial, supra, at § 9:381.

2

Motions to strike are generally not granted unless it is clear that the matter to be stricken

3

could have no possible bearing on the subject matter of the litigation. LeDuc v. Kentucky Cent.

4

Life Ins. Co., 814 F.Supp 820, 830 (N.D.Cai. 1992).

5

In Fantasy, Inc. v, Fogerty, 984 F.2d 1524 (9th Cir. 1993) the Ninth Circuit wrote that th

6

function ofa Rule 12(f) motion to strike is to avoid the expenditure of time and money that must

7

arise from litigating spurious issues by dispensing with them before trial. Id. at 1527. The Court

8 I, continued, writing 9 10

"immaterial" matter is that which has no essential or important

relationship to the claim. Id. "Impertinent" matter consists of statements that do not pertain to the issues in question. Id. Applying that standard to the case before it, the Court ruled that Fogerty's allegations

II

dealings with two agents were properly stricken because they

12

about a tax shelter plan and

13

related to claims that were barred by either the statute of limitations or res judicata and, thus,

14

were irrelevant to issues in the case. Id.

15

While Fed. R. Civ. P. 12(f) specifies a time within which to file a motion to strike, a party

16

has the right to challenge the legal sufficiency of a defense at any time and courts generally

17

consider the merits of a challenge to a defense whenever it is made. OR. Laborers-Employers

18

Tr. v. Pacific Fence & Wire, 726 F.Supp. 786, 788 (D.Or. 1989); Schwarzer, Tashima &

19

Wagstaffe, Federal Civil Procedure Before Trial, supra, at § 9:400.

20

B.

21

The fifth affirmative defense alleges that Plaintiff's own behavior caused some of the

Plaintiffs Motion to Strike Shonld Be Denied

22

hostility in the work environment that Plaintiff complains about. It does not, as Plaintiff asserts,

23

allege that Plaintiff is barred from recovery under a theory of "contributory negligence".

24

Exhibits 2, 7 to Amended Lee Declaration. This is not a traditional negligence case and

25

contributory negligence is not a relevant concept. The defense simply alleges that Plaintiff bears

26

some responsibility for the hostility he alleges in the work environment.

27

III

28

III DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES I OPPOSITION TO MOTION TO STRI

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1. The motion is premature.

2

There has been no discovery and no facts have been developed. All Defendants have to

3

go on is the bare allegations in the complaint. All Plaintiff has is the bare language of the

4

answer. Plaintiff cannot make the requisite showing, now, that there are no facts to support the

5

fifth affirmative defense because the Defendants have not had an opportunity to develop any

6

facts. The posture of this case can be contrasted with the posture in Sands, 902 F.Supp. at 1149.

7

There, discovery was complete and, after having had a full opportunity to do so, the defendants

8

had failed to produ(:e

9

1166. Given the evidentiary record that existed, the court struck the defense. Id.

evidencc to support the affirmative defense of unclean hands. Id.

l O i n LeDuc, 814 F.Supp. at 830 - 831, the court similarly considered a motion to strike in II

the context of evidence that

12

part.

been developed and granted the motion in part and denied it in

13

Striking the fifth affirmative defense before the Defendants have an opportunity to

14

investigate or develop any facts to support it is at odds with what the courts did in s.E.C v. Sands

15

and LeDuc v. Kentucky Cent. Life Ins. Co.

16

Despite the 20-day period specified in Rule 12(f), a plaintiff may challenge a defense at

17

any time. OR. Laborers-Employers Tr., 726 F.Supp. at 788; Schwarzer, Tashima & Wagstaffe,

18

Federal Civil Procedure Before Trial, supra, at § 9:400.

19

Defendants have offered to stipulate that Plaintiff can bring this motion later, after

20

Defendants have had an opportunity for discovery. Exhibits 5, 7 to Amended Lee Declaration;

21

Wasser Declaration. Defendants even offered to consider striking the defense voluntarily at or

22

before the Pre-Trial Conference if evidence to support the defense has not been developed by

23

then. Exhibits 5, 7 to Amended Lee Declaration; Wasser Declaration. Plaintiff rejected those

24

offers, asserting only that he will "not stand by and permit Defendants to conduct its [sic] fishing

25

expedition." See Plaintiff's Memorandum of Points and Authorities at 9:10.

26 27

2.

The motion should not be used to limit appropriate discovery.

Defendants do not intend to conduct a fishing expedition and, if they did attempt such a

28 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES I OPPOSITION TO MOTION TO STRI

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misuse of discovery, Plaintiff could seek relieffrom this Court to stop it. However, Plaintiff

2

should not be allowed to use this motion to strike to secure a de facto protective order in advance

3

of any discovery. Defendants have no intent to "smear" Plaintiff and are surprised that Plaintiff

4

would suggest such a purpose. See Plaintiff's Memorandum of Points and Authorities at 9:10.

5

Defendants do have the right to engage in appropriate discovery to devclop facts in support of

6

their defense.

7 8

9

3.

The fifth affirmative defense is not scandalons.

Plaintiffs assertion that the fifth affirmative defense amounts

nothing more

a

cruelly derogatory attack on Plaintiff's character and competence" is not supported by any

10

language in the fifth affirmative defense. Nothing in the defense attacks Plaintiff's charactcr or

11

competence. The defense alleges that Plaintiff's behavior contributed to hostility in the work

12

environment. There is an important and substantial difference between behavior and character.

13

"Behavior" is one's mode of conducting oneself. "Character" is the aggregate of distinctive

14

mental and moral qualities belonging to an individual. Webster's Third International Dictionary,

15

(2d Ed. 1950). Nothing in the defense references Plaintiffs competence.

16

The cases Plaintiff cites do not support his position. Talbot v. Robert Matthews

17

Distributing Co., 961 F.2d 654 (7th Cir. 1992) was a decision on appeal after judgment. Id at

18

659. The District Court had considercd the factual record, including at least an arbitrator's

19

I opinion and award and the terms of a collective bargaining agreement and had treated the

20

defendants' motion to dismiss as a motion for summary judgment. Jd. The District Court struck

21

allegations that the defendants had intentionally caused a salmonella outbreak. The Seventh

22

Circuit affinned. However, the court did not strike the allegation because it was "scandalous."

23

The allegation was struck because it was "devoid of any factual basis." Jd. at 665. The plaintiffs

24

had presented no more than unsubstantiated rumor. Jd.

25

Talbot is another example of a motion to strike after full development of the evidence. It

26

does not support Plaintiff's attempt to use his motion to strike offensively to preclude the

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development offacts. It does not support Plaintiff's assertion that the fifth affirmative defense is

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"scandalous." DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO STRIK

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The other case Plaintiff cites is even lcss helpful to Plaintiff. In Skadegaard v. Farrell,

2

587 F.Supp. 1209 (D. N.J. 1984) the court denied the motion to strike after concluding that the

3

challenged allegation (which accused the defendants of attempting to suborn perjury) was not

4

scandalous. The court wrote that the allegation neither reflected cruelly on the dcfendant's moral

5

character, used repulsive language nor detracted from the dignity of the court. Id. at 1221. The

6

court added that, to be scandalous, the allegation had to be both degrading and irrelevant. Id.

7

Applying the same standard here, allegations that the Plaintiff was arrogant, disagreeable,

8

uncooperative, intimidating, overbearing, self-righteous and unfriendly and contributed to the

9

alleged hostility in his work environment are neither degrading nor irrelevant. They are clearly

10

not "cruel." They do not touch upon Plaintiff's character or competence. They do not impugn

11

the dignity of the Court. And, if they prove to be true, they may affect the outcome of the case.

12

Courts have focused on

relevancy of challenged allegations as

gauge

13

their propriety. For example, in RDF Media Ltd. v. Fox Broadcasting Co., 372 F.Supp.2d 556,

14

566 (C.D.Cal. 2005), the court seemed less concerned about the sharp nature of words such as

15

"rip off', "Most Brazen Ripoff', "rush-job rip-off', and "carbon copy" than it was with the fact

16

that the words had been taken from articles and commentaries and incorporated into the

17

complaint in an apparent attempt to "lend artificial credence to the opinions" of the

18

commentators and give the "appearance that such opinions are legally relevant to the dispute."

19

Id. at 567.

20

Such is not the case here. It is remarkable that Plaintiff, having brought this action and

21

having leveled sharp allegations at five physicians, a hospital administrator and a registered

22

nurse, complains -as the Defendants undertake their defense- that "the pleadings could

23

potentially attract media attention" and embarrass him simply because they call into question his

24

own behavior. See Plaintiffs Memorandum in Support of Motion to Strike at 8:16.

25 26 27

The Defendants did not invite this lawsuit but they do have the right to defend themselves. The fifth affirmative defense is squarely and directly relevant to the issues.

28 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES [ OPPOSITION TO MOTION TO STRIK

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4.

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The fifth affirmative defense is not legally insufficient.

Plaintiff contends that, because many of his claims are based on Defendants' alleged

3

failure to comply with statutes, evidence of Plaintiffs own behavior is irrelevant. Plaintiff

4

argues that his claims are "strict liability" claims. See Plaintiffs Memorandum of Points and

5

Authorities in Support of Motion to Strike at 4:23,6: 17.

6

First, as explained above, the complaint alleges "non-economic damages, such as

7

emotional distress, anxiety, humiliation, and loss of reputation" distinctly umelatcd to

8

Defendants' alleged failure to comply with CFRA, FMLA or the other statutes Plaintiff cites. If

9

Plaintiff claims to have suffered personal injury as a result of hostility in the work environment,

10

his contribution to that environment is relevant. A defense that puts his behavior in issue is

11

clearly "legally sufficient."

12

Second, evidence of a party' s own behavior is relevant even

strict

cases. See.

13

e.g., Safeway Stores, Inc. v. Nest-Kart, 21 Ca1.3d 322 (1978). It is true this is not a traditional

14

negligence case and Defendants do not suggest that concepts of traditional negligenee should be

IS

imported, wholesale, into this action. Defendants do suggest that they are entitled to an

16

opportunity to develop facts to show whether Plaintiff contributed to the environment he claims

17

injured him.

18

Finally, no prejudice to the Plaintiff will result from reasonable discovery into his

19

behavior. Plaintiff is a litigant

a case that levels substantial accusations at the medical staff of

20

Kern Medical Center. The Defendants, who worked with Plaintiff, have the right to introduce

21

evidence of Plaintiffs actions the same as Plaintiff has the right to introduce evidence of what

22

the Defendants did. Plaintiff appears to view his lawsuit as a one-way street.

23

c.

24

Plaintiffs request for sanctions is frivolous. As is more particularly stated in the

25

Declaration of Mark A. Wasser filed herewith, Defendants have a good faith belief in the factual

26

basis for the fifth affirmative defense. Defendants have no intention of conducting a discovery

27

"fishing expcdition" or attempting to "smear" Plaintiff. Defendants do intend to responsibly and

28

vigorously oppose his claims.

Sanctions are Not Warranted

DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO STRI

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Document 43

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CONCLUSION

IV.

Plaintiffs 52-page, 232-paragraph complaint is wide-ranging challenge to employment

3

conditions spanning almost 7 years. Plaintiff is seeking recovery of general damages for

4

emotional distress and other unspecified injuries as a result of an alleged hostile work

5

environment, harassment and discrimination. Plaintiffs own behavior is relevant. If evidence

6

can be developed that Plaintiff eontributed to hostility in the work environment, Defendants have

7

the right to show his behavior to the trier of fact.

8 9 10 11

it can be

If Defendants are not able to develop evidence to support the defense,

stricken at the Pre-Trial Conference along with any other claims and defenses for which there is no evidence. Respectfully submitted,

12

13

Dated: July 27, 2007

LAW OFFICES OF MARK A. WASSER

14

15 16 17

By:_-,!",s!,-,M"""a",rk,,-,-,A;.o-.-'W-'-'a"'s""se"'r'--

_

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

18 19 20 21

22 23 24 25

26 27

28 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES I OPPOSITION TO MOTION TO STRI

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

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2 3 4

Document 44

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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]

9 10 II

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

14

EASTERN DISTRICT OF CALIFORNIA

15 16

DAVID F. JADWIN, D.O.

17 18 19

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

20

Defendants.

21

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

~

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

24

I, Mark A. Wasser, declare as follows:

25

1.

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

26

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

27

them if called as a witness.

28

I

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

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

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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

12

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

27 28

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

2

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

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

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Page 3 of 17

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

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

2 3 4

5

6

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 44

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

I

II 12

UNITED STATES DISTRICT COURT

13

FOR THE EASTERN DISTRICT OF CALIFORNIA

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

'

17

1

18 j9

20

JOINT SCHEDULING REPORT PURSUANT TO FRCP 26(1)

Plaintif{ 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

-

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

Formatted: Font (Default) Arial, 10

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

Formatted: Left, Indent: left: 0"1 Border: Top: solid line, Auto, line

0-5

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

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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

16

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

24

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

25

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

26

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

27 28

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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

14

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,

17

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

18

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

19

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

20

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

21

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

22

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

24

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

26

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

27

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

2

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

9

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

10

environment to stabilize.

11

r

12

I

13

1

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

15

T\hy 1,2007, Defendant

16

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

19

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

notiflcd 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 defensc. alleges the spccific provisions of Cal. Civ. Section 47 relied on

26

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

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27

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

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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.

9

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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2

3

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 \yith 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,

26

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

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27

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 staff from 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.

6

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.

23 1 I

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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27

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

4

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

5

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

6

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

7

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

8

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

9

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

12

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

13

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

18 19,

20

1

21

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.

22 23

241

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

25

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

26

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

2

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

3

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

4

deposition.sh~lIexceed7

5

limitations on discovery.

sin~lc

clay ofPlaintiff.s,

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

6 7 8 9

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.

10

VII. AGREED-UPON DATES

II 12 13

A. Pre-Trial Motions

1. Non·DisposJtive Motions filing Deadline:

[I\1arch 3, 2008]

I--Icard no latcr than:

[April 4, 2008J

17

2. Dispositive Motions

18

Filing Deadline:

[May 2, 2008J

19

Heard no later than:

[June 6, 2008J

20 21

B. Pre-Trial Conference

22

1. Settlement Conference:

[February 15.2008]

23

2. Pre-Trial Conference:

[August 4, 2008J

24 25 26

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

3

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

4

Conference might be bcneHcial.

5 IX. TRIAL BY JURY

6

Plaintiff has requested ajury trial on all possible issues and claims,

7

8 X.

9

10 '

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,

12 13

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,

19' 20

Is! Eugene D. Lee

21

22 23

1

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,

24

25

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

LAW OFFICES OF MARK WASSER

27

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,

2 3

4 5 6

7 8 9 10 II 12

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