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43 MTS - Opposition MPA

VIEWS: 21 PAGES: 26

David F. Jadwin v. Kern County: 1:07-cv-26 in the United Stated District Court for the Eastern District of California, Fresno Division before Judge Oliver W. Wanger. This was a 2009 federal employment lawsuit that went to a bench and jury trial resulting in a unanimous verdict and significant judgment for the plaintiff employee. Issues involved violations of medical leave and disability discrimination laws, as well as 42 U.S.C. 1983 procedural due process violation. Plaintiff was represented by Eugene Lee, a Los Angeles, California employment lawyer.

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

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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: mnations@co.kern.ea.us

Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, 11 Jennifer Abraham, Seott Ragland, Toni Smith 12 land Roy 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES OPPOSITION TO MOTION TO STRIK

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UNITED STATES DISTRICT COURT
EASTER~ DISTRICT

OF

CALIFOR~IA

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

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Case No.: 1:07-cv-00026-0WW-TAG DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES 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

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) Trial Date: August 26, 2008 ) ------------)

Defendants respectfully submit this memorandum in opposition to Plaintiffs motion to strike the fifth affirmative defense.

I.

STATUS OF THE CASE

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

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Plaintiff filed his Second Supplemental Complaint on June 13,2007. Defendants answered on June 21, 2007. The initial scheduling conference was postponed until May 31, 2007 to allow Plaintiff time to revise and finalize his pleadings. The Rule 26(f) initial disclosures have been postponed, also, to August 6, 2007, to allow Plaintiff time to file this motion to strike. To date, there has been no discovery or exchange of information between the parties. (Although not discovery, Defendants copied and delivered to Plaintiff some computer files that Plaintiff requested off the hard drive of his former County-assigned computer in April, 2007.) Plaintiff requested and the Defendants agreed that depositions may not commence 23,2007. See June 6, 2006 Scheduling Order. after September

n.

THE PLEADINGS AND THE MEET-AND-CONFER PROCESS

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After Defendants filed their answer to the second supplemental complaint, Plaintiff objected to five of Defendants' nine affirmative defenses. See Letter of May II, 2007 from Eugene D. Lee to Mark A. Wasser, Exhibit I to Amended Eugene D. Lee ("Amended Lee") Declaration. Through a meet-and-confer process that lasted almost three months, the parties resolved their disagreements over all but the fifth affirmative defense. The parties' communications regarding the seventh affirmative defense are relevant to the issues Plaintiff raises in this motion to strike. The seventh affirmative defense asserts the twoyear statute oflimitations on personal injuries found in Cal. Code Civ. Proc. § 335.1. his May

II, 2007 letter (Exhibit 1 to Amended Lee Declaration), Plaintiff s counsel V\Tote that "Plaintiff is not alleging any assault, battery, injury or V\Tongful death causes of action" and asked Defendants to strike the seventh affirmative defense. Defendants' counsel replied that Defendants would voluntarily strike the seventh affirmative defense upon a representation from Plaintiff that he was, in fact, "claiming no damages for claims encompassed" within section 335.1. Exhibit 2 to Amended Lee Declaration. Defendants even proposed a stipulation to that effect for inclusion in the scheduling order. See Exhibit I to Mark A. Wasser ("Wasser") Declaration. 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 claiming personal injuries and that Mr. Lee's statement to the contrary in his May 11 letter was in error. For example, paragraph 141 of the complaint alleges that "Plaintiff has suffered and continues to suffer non-economic damages, such as emotional distress, anxiety, humiliation, and loss of reputation." Paragraph 135 alleges that Defendants created a "hostile work environment" and subjected Plaintiff to "disparate treatment, unwarranted criticism and reprimands, threats, requests for his resignation ..." Paragraphs 106 and 107 allege that Plaintiff "suffered from depression due to the work-related hostility ..." and "was suffering extreme distress from the hostile work environment created by the harassment, defamation, discrimination, and retaliatory adverse actions of the Defendants ...". Paragraph 142 alleges that these acts "were and are a substantial factor in causing Plaintiff s harm." Plaintiff s prayer seeks, among other things, "[g]eneral and compensatory damages according to proof." One allegations as fairly typical allegations of personal injury. Thus, among his almost-dozen claims, Plaintiff seeks recovery of money damages for personal injuries allegedly sustained as a result of a hostile work environment, unspecified harassment and discrimination. It is in this context that Defendants' fifth affirmative defense must be evaluated. ch,rra(;ter'ize these

m.

ARGUMENT

Motions to Strike lire Disfavored

Motions to strike are disfavored because of the limited importanee of pleadings in federal practice and because they are often viewed as delaying tactics. RDF Media Ltd v. Fox Broadcasting Co., 372 F.Supp.2d 556,566 (C.D.Cal. 2005); s.E.c. v. Sands, 902 F.Supp. 1149, 1165 (C.D.Cal. 1995); Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before Trial,
§ 9:375 (2007).

To strike an affirmative defense, the moving party must convinee the court (1) that there are no questions offact; (2) that any questions of law are clear and not in dispute and (3) that 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. Motions to strike are generally not granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation. LeDuc v. Kentucky Cent.
Life Ins. Co., 814 F.Supp 820, 830 (N.D.Cai. 1992).

In Fantasy, Inc. v, Fogerty, 984 F.2d 1524 (9th Cir. 1993) the Ninth Circuit wrote that th function ofa Rule 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with them before trial. Id. at 1527. The Court "immaterial" matter is that which has no essential or important

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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 about a tax shelter plan and dealings with two agents were properly stricken because they

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related to claims that were barred by either the statute of limitations or res judicata and, thus, were irrelevant to issues in the case. Id. While Fed. R. Civ. P. 12(f) specifies a time within which to file a motion to strike, a party has the right to challenge the legal sufficiency of a defense at any time and courts generally consider the merits of a challenge to a defense whenever it is made. OR. Laborers-Employers
Tr. v. Pacific Fence & Wire, 726 F.Supp. 786, 788 (D.Or. 1989); Schwarzer, Tashima &

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

B.

Plaintiffs Motion to Strike Shonld Be Denied

The fifth affirmative defense alleges that Plaintiff's own behavior caused some of the hostility in the work environment that Plaintiff complains about. It does not, as Plaintiff asserts, allege that Plaintiff is barred from recovery under a theory of "contributory negligence". Exhibits 2, 7 to Amended Lee Declaration. This is not a traditional negligence case and contributory negligence is not a relevant concept. The defense simply alleges that Plaintiff bears some responsibility for the hostility he alleges in the work environment.
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1. The motion is premature.

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There has been no discovery and no facts have been developed. All Defendants have to go on is the bare allegations in the complaint. All Plaintiff has is the bare language of the answer. Plaintiff cannot make the requisite showing, now, that there are no facts to support the fifth affirmative defense because the Defendants have not had an opportunity to develop any facts. The posture of this case can be contrasted with the posture in Sands, 902 F.Supp. at 1149. There, discovery was complete and, after having had a full opportunity to do so, the defendants had failed to produ(:e evidencc to support the affirmative defense of unclean hands. Id.

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

l O i n LeDuc, 814 F.Supp. at 830 - 831, the court similarly considered a motion to strike in II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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the context of evidence that part.

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

Striking the fifth affirmative defense before the Defendants have an opportunity to investigate or develop any facts to support it is at odds with what the courts did in s.E.C v. Sands and LeDuc v. Kentucky Cent. Life Ins. Co. Despite the 20-day period specified in Rule 12(f), a plaintiff may challenge a defense at any time. OR. Laborers-Employers Tr., 726 F.Supp. at 788; Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before Trial, supra, at § 9:400. Defendants have offered to stipulate that Plaintiff can bring this motion later, after Defendants have had an opportunity for discovery. Exhibits 5, 7 to Amended Lee Declaration; Wasser Declaration. Defendants even offered to consider striking the defense voluntarily at or before the Pre-Trial Conference if evidence to support the defense has not been developed by then. Exhibits 5, 7 to Amended Lee Declaration; Wasser Declaration. Plaintiff rejected those offers, asserting only that he will "not stand by and permit Defendants to conduct its [sic] fishing expedition." See Plaintiff's Memorandum of Points and Authorities at 9:10.

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

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misuse of discovery, Plaintiff could seek relieffrom this Court to stop it. However, Plaintiff should not be allowed to use this motion to strike to secure a de facto protective order in advance of any discovery. Defendants have no intent to "smear" Plaintiff and are surprised that Plaintiff would suggest such a purpose. See Plaintiff's Memorandum of Points and Authorities at 9:10. Defendants do have the right to engage in appropriate discovery to devclop facts in support of their defense.

3.

The fifth affirmative defense is not scandalons. nothing more a

Plaintiffs assertion that the fifth affirmative defense amounts

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cruelly derogatory attack on Plaintiff's character and competence" is not supported by any language in the fifth affirmative defense. Nothing in the defense attacks Plaintiff's charactcr or competence. The defense alleges that Plaintiff's behavior contributed to hostility in the work environment. There is an important and substantial difference between behavior and character. "Behavior" is one's mode of conducting oneself. "Character" is the aggregate of distinctive mental and moral qualities belonging to an individual. Webster's Third International Dictionary, (2d Ed. 1950). Nothing in the defense references Plaintiffs competence. The cases Plaintiff cites do not support his position. Talbot v. Robert Matthews
Distributing Co., 961 F.2d 654 (7th Cir. 1992) was a decision on appeal after judgment. Id at

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

I opinion and award and the terms of a collective bargaining agreement and had treated the
defendants' motion to dismiss as a motion for summary judgment. Jd. The District Court struck allegations that the defendants had intentionally caused a salmonella outbreak. The Seventh Circuit affinned. However, the court did not strike the allegation because it was "scandalous." The allegation was struck because it was "devoid of any factual basis." Jd. at 665. The plaintiffs had presented no more than unsubstantiated rumor. Jd.
Talbot is another example of a motion to strike after full development of the evidence. It

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does not support Plaintiff's attempt to use his motion to strike offensively to preclude the development offacts. It does not support Plaintiff's assertion that the fifth affirmative defense is "scandalous."
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The other case Plaintiff cites is even lcss helpful to Plaintiff. In Skadegaard v. Farrell, 587 F.Supp. 1209 (D. N.J. 1984) the court denied the motion to strike after concluding that the challenged allegation (which accused the defendants of attempting to suborn perjury) was not scandalous. The court wrote that the allegation neither reflected cruelly on the dcfendant's moral character, used repulsive language nor detracted from the dignity of the court. Id. at 1221. The court added that, to be scandalous, the allegation had to be both degrading and irrelevant. Id. Applying the same standard here, allegations that the Plaintiff was arrogant, disagreeable, uncooperative, intimidating, overbearing, self-righteous and unfriendly and contributed to the alleged hostility in his work environment are neither degrading nor irrelevant. They are clearly not "cruel." They do not touch upon Plaintiff's character or competence. They do not impugn the dignity of the Court. And, if they prove to be true, they may affect the outcome of the case. Courts have focused on relevancy of challenged allegations as gauge

their propriety. For example, in RDF Media Ltd. v. Fox Broadcasting Co., 372 F.Supp.2d 556, 566 (C.D.Cal. 2005), the court seemed less concerned about the sharp nature of words such as "rip off', "Most Brazen Ripoff', "rush-job rip-off', and "carbon copy" than it was with the fact that the words had been taken from articles and commentaries and incorporated into the complaint in an apparent attempt to "lend artificial credence to the opinions" of the commentators and give the "appearance that such opinions are legally relevant to the dispute." Id. at 567. Such is not the case here. It is remarkable that Plaintiff, having brought this action and having leveled sharp allegations at five physicians, a hospital administrator and a registered nurse, complains -as the Defendants undertake their defense- that "the pleadings could potentially attract media attention" and embarrass him simply because they call into question his own behavior. See Plaintiffs Memorandum in Support of Motion to Strike at 8:16. 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.

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4.

The fifth affirmative defense is not legally insufficient.

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Plaintiff contends that, because many of his claims are based on Defendants' alleged failure to comply with statutes, evidence of Plaintiffs own behavior is irrelevant. Plaintiff argues that his claims are "strict liability" claims. See Plaintiffs Memorandum of Points and Authorities in Support of Motion to Strike at 4:23,6: 17. First, as explained above, the complaint alleges "non-economic damages, such as emotional distress, anxiety, humiliation, and loss of reputation" distinctly umelatcd to Defendants' alleged failure to comply with CFRA, FMLA or the other statutes Plaintiff cites. If Plaintiff claims to have suffered personal injury as a result of hostility in the work environment, his contribution to that environment is relevant. A defense that puts his behavior in issue is clearly "legally sufficient." Second, evidence of a party' s own behavior is relevant even strict cases. See.

e.g., Safeway Stores, Inc. v. Nest-Kart, 21 Ca1.3d 322 (1978). It is true this is not a traditional negligence case and Defendants do not suggest that concepts of traditional negligenee should be imported, wholesale, into this action. Defendants do suggest that they are entitled to an opportunity to develop facts to show whether Plaintiff contributed to the environment he claims injured him. Finally, no prejudice to the Plaintiff will result from reasonable discovery into his behavior. Plaintiff is a litigant a case that levels substantial accusations at the medical staff of

Kern Medical Center. The Defendants, who worked with Plaintiff, have the right to introduce evidence of Plaintiffs actions the same as Plaintiff has the right to introduce evidence of what the Defendants did. Plaintiff appears to view his lawsuit as a one-way street.

c.

Sanctions are Not Warranted

Plaintiffs request for sanctions is frivolous. As is more particularly stated in the Declaration of Mark A. Wasser filed herewith, Defendants have a good faith belief in the factual basis for the fifth affirmative defense. Defendants have no intention of conducting a discovery "fishing expcdition" or attempting to "smear" Plaintiff. Defendants do intend to responsibly and vigorously oppose his claims.
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IV.

CONCLUSION

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Plaintiffs 52-page, 232-paragraph complaint is wide-ranging challenge to employment conditions spanning almost 7 years. Plaintiff is seeking recovery of general damages for emotional distress and other unspecified injuries as a result of an alleged hostile work environment, harassment and discrimination. Plaintiffs own behavior is relevant. If evidence can be developed that Plaintiff eontributed to hostility in the work environment, Defendants have the right to show his behavior to the trier of fact. If Defendants are not able to develop evidence to support the defense,

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it can be

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

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Dated: July 27, 2007

LAW OFFICES OF MARK A. WASSER

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

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

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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: mwasseriWmarkwasser.com

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: mnations@co.kem.ca.us

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9
10 II 12 13 14 15 16 17 18 19 20 21 vs. COUNTY OF KERN, et aI., Defendants. DAVID F. JADWIN, D.O. Plaintiff,
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Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith William Roy

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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

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

) ) ) ) ) )

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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

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------------) I, Mark A. Wasser, declare as follows:
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I am counsel of record for Defendants and am familiar with this action. The

following statements are made of my own personal knowledge and I can testify competently to them if called as a witness.

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

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

motion was filed, I repeatedly suggested that the motion is premature and that Defendants will stipulate that the motion can be brought later, after reasonable discovery, and that Defendants will consider voluntarily dropping the fifth affirmative defense at or before the pretrial conference if appropriate relevant evidence has not been developed by that time. 3. No discovery has occurred between the parties but I have informally interviewed

some potential witnesses. On the basis of my limited and informal interviews I have learned that other employees at Kern Medical Center either quit or requested transfers to other departments to get away from Plaintiff and the stressful work environment he created. I have been told that, on one occasion, Plaintiff attempted to drag another physician out of a patient's hospital room by the physician's neck tie. 1 have been told of other incidents where Plaintiffs behavior upset other hospital employees and caused unreasonable stress several working relationships. 1

believe there is a good faith basis for reasonable discovery into Plaintiff s behavior during his tenure at Kern Medical Center to deternline the extent to which Plaintiff s behavior contributed to hostility in the work environment.
4.

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

conference report that 1 submitted to Plaintiff s counsel. 1 proposed the language in section IV, A, on page, 7 in response to Eugene Lee's letter of May 11,2007 in which he \vrote that

Plaintiff "is not alleging any assault, battery, injury or wrongful death causes of action" Plaintif did not agree to the language 1 proposed and thereafter dropped his objections to the seventh affirmative defense. It remains, unchallenged, in Defendants' answer. I certify under penalty of perjury that the foregoing is true and correct. Executed on July 27, 2007, at Sacramento, California.

LAW OFFICES OF MARK A WASSER By: /s/ Mark A Wasser 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

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

Case 1:07-cv-00026-OWW-TAG
Eugene D. Lee SB# 236812
LAW OFFlCE OF EUGENE LEE

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Mark A. Wasser SB# 060160
LAW OFFICES OF MARK WASSER

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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.
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400 Capilol Mall Ste 1100 Sacramento. California 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: mwasser@markwasser.com Bernard C. Bm'mann, Sr. SB# 060508
KERN COUNTY COUNSEL

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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 Attorneys for Defendants COUNTY OF KERN, PETER BRYAN. IRWIN HARRIS. EUGENE KERCHER. JENNIFER ABRAHAM. SCOTT RAGLAND. TONI SMITH and WILLIAM ROY UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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:: I DA VID I . JADWIN. D.O.,
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Plaintif{
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JOINT SCHEDULING REPORT PURSUANT TO FRCP 26(1) Date: Time: Location: Judge:
Date Action F'iled: Date Set for Trial: May 31. 2007 8:45 a.m. Courtroom 3 Hon. Oliver W. Wanger January 6, 2007 None

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COUNTY OF KERN: et ai.

Defendants.

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[PLAINTIFF'S ATTORNEY REQUESTS TELEPHONIC APPEARANCE!

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TO ALl. PARTIES AND THEIR ATTORNEYS OF RECORD AND THE HONORABLE COURT: Pursuant to Rule 26(f) of the Federal Rules of Civil Procedure and the COllIi's Order Setting
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25 26 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 3
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Honorable Oliver W. Wanger.

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SUMMARY OF CONTENTIONS & RELIEF SOUGHT

5 6 7 8 9 10 11 12 A. Plaintiffs Summary
!. This is an individual action brought by PlaintitTDavid F. Jadwin, D.O.. a whistleblo\ving

physician with disabilities, against his employer, (i) the County of Kern ("Defendant County" or "the County"), owner and operator of Kern Medical Center ("KMC') the health facility at which Plaintiff was employed; ) individual Defendants Peter Bryan ("Bry'un"), Chief r:xecutive Officer of Kern

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

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

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

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

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

the Division of Gynecologic Oncology at KMC ("Roy"); and DOES 1 through 10. 2. PlaintifFs claims against his employer, Defendant County, allege violations of section 1278. ~ 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 21 22 23 24 25 26 27
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I Code \vhich prohibits retaliation against an employee for reporting or refusing to participate in suspecte
violations orthe law; the California Family Rights Act (sections 12945.1, et seq., of the Government Code) ("CFRA") and the Family and Medical Leave Act (sections 2601, et seq. orthe United States Code) ("FMLA") \vhich prohibit interference with an employee's right to medica! !eave and retaliation for an employee'S exercise of the right to medical leave; and the Fair Employment and Housing Act [subdivisions (a), (m) & (n) of section 12940 of the Government Code] ("FEBA") which prohihits 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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)OINTSCHEDULING REPORT PURSUANT TO FRCP 26m

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failure to engage in an interactive process; and recovery of wrongfully deducted wages under the Fair 2 3 4 5 6 7 8 9
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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 also sues each of the individual Defendants except for Roy and Harris, both in their personal capacity and in their official capacity as members of the KMC Joint Conference Committee (".ICC"), for violation ofPlaintiffs 14th Amendment of the United States Constitution right to procedural due process pursuant to 42 U.S.C § 1983 ("Due Process"). 4. Plaintiff brings this action for general,
compensator~y,

and punitive damages; prejudgment

interest, costs and attorneys' fees; injunctive and declaratory relief; and other appropriate and just reliefj resulting from Defendants' unlm-vfuJ conduct.

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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 position of Chair of the Pathology Department. 2, During his tenure at Kern Medical Center, Plaintiff's behavior caused several pathologists, technicians and support personnel whom he criticized, intimidated, harassed and retaliated against to quit and seek employment elsewhere. He alienated many of the physicians at Kern Medical Center through criticism, disruptive behavior, disrespect, anger, arrogance and retaliation. Plaintiff complaine about procedures and policies at Kern Medical Center and interfered with patient care through obstructionist behavior and secretive practices. His pathology reports \vere characterized by frequent mistakes, changes in opinion and untimely service, all of v\"hich compromised patient care. 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 diagnoses, his disruptive behavior, his complaints about medica! procedures, his refusal to follow even his own rules, his intimidation of stafT and patient management. 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 two days a week and was absent from the hospital for long periods of time. Because he was neither working
full~tjme nor

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

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Pathology Department and his compensation \vas adjusted to that of a staff pathologist ,vithout departmental administrative responsibilities. 4. Management at Kern Medical Center counseled Plaintiff about his anger and confrontationa style but Plaintiff was not receptive to the counseling and the \vork environment continued to deteriorate. Plaintiff was finally pJaced on paid administrative Jeave in an effort to allow the work environment to stabilize.
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Ii.

PROPOSED AMENDMENTS.

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Plaintiff intends to file a Second Supplemental Complaint to include allegations of continuing discrimination and retaliation that occurred aftcr Apri124~ 2007. Plaintiff\vill insert the tollmving: On T\hy 1,2007, Defendant notiflcd Plaintiffthat he
that~

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",,'in remain on paid administrative leave until

his contract expires on October 4, 2007; and

contrary to its prior and customary practice, Defendm t
I

County docs not intend to renew his employment contract. Although Plaintiff is no longer restricted to the confines of his home during \vorking hours, he still may not enter KMC's premises or access his office without prior written permission. The numbering of the following paragraphs
",,iiI!

I

Deleted: the

be adjusted

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accordingly. Defendants have agreed in principle to stipuJate to the supplement; provided, however, tha Plaintiff first provide Defendants with the Second Supplemental Complaint in the form in which

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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

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defense, alleges the specific privileges and immunities relied on

\vithrgreat~l:particu!arity+(ii)with

regard to the fourth affirmative defensc. alleges the spccific provisions of Cal. Civ. Section 47 relied on with f!reatcr,particular~tX,Jiii).,elimin_~~?sjthe seventh .affirmative defense (Cal. Civ. Proc. Co~e,.,_~ 335.1 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

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that Defendants first provide Plaintiff with the Amended Answer in the form in which Defendants inten to file it for Plaintiffs prior review.
Deleted: The parties have stipulated to
the filing of these amendments and will stipulation and order for

Ill. SUMMARY OF UNCONTESTED AND CONTESTED FACTS.
A. Uncontested Facts 1. At all material times, Defendant Kern County \vas a local public entity \'.iithin the meaning 0 sections 811.2 & 900.4 of the Government Code and is operating in Kern County, California. 2. During the entire course of Plaintiffs employment, Defendant Kern County has continuousl 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
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:::,:: ..::::.::,:to the Court

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Kern County, California, and President ofKMC Medical Staff, and a member of the KMC Joint Conference Committee ("JCC"), 5, At all material times, Defendant 1nvin lIarris \-vas a citizen of California, and a resident of

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

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2000~

10. Plaintiff has continuously been an employee of Defendant Kern County since October 24,

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

appointed to the position afehair of the Pathology Department.
12. Plaintiff was compensated and provided \\'ith certain benefits pursuant to a \vrittcn
employment agrL-"Cment, the terms of which speak t()f themselves. "

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13. Defendant Kern County placed Plaintiff's initial salary level at Step C. 14. Defendants expected Plaintiff to be an effective member of the physicians' staff at KMC an to contribute to the overaH improvement of the hospital.

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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 16 Plamtiffs former attorney sent a letter to Kern Count) Counsel Bernard Barmann and Mr Barmann met with Plaintiff on or about February 9, 2006.
l

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i 7. Defendant Bryan and Plaintiff exchanged \vritten communications regarding Plaintif-T's
reduced work schedule and requests for leaves of absence. PlaintilI met with Defendant Bryan and others to discuss those subjects. 18. Defendant Bryan and Plaintiff exchanged written correspondence regarding Plaintiff's tenur and performance as Chair of the Pathology Department at KMC. All the writings speak for themselves. 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

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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. 22. Defendant County appointed Dr. Philip Dutt Acting Chair of the Pathology Department 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
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those writings speak for themselves. 25. Defendant Kern County placed Plaintiff on paid administrative leave, which continues to thi date. 26. Defendant County ha<; provided Plaintiff \vith the information he requested from the computer that had been previously assigned to him. 27. Plaimifffiled a claim \vith Defendant Kern County and the claim was rejected. B. Contested Facts
1. Defendants contest all allegations and averments in the First Supplemented Complaint other

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to
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than those enumerated in Section A. Uncontested Facts. 2. Plaintiff contests Defendants' averment that Plaintiff disrupted the October, 2005, Ivionthly Oncology Conference and prevented appropriate discussion of case management and that other physicians at Kern Medical Center, including some of the Defendants, v,/ere concerned about Plaintiffs , conduct and \\'ith his interference with patient care.

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3. Plaintiff contests all averments contained in the Ans\ver to the First Supplemented Complai It other than those stated in Section A, Uncontested Facts.

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IV. SUMMARY OF UNDISPUTED AND DISPUTED LEGAL ISSUES

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A. Undisputed issues

1. Plaintiff is not seeking damages or relief for an\! personal injuries that v'iOuld be \vithin the scoRe of section 335.1 Grthe CaUJornia Code of CIvil Procedure.swd the scope of anv relief awagled in this matter shall be limited accordingly

i
B. Disputed Issues

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

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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 3 4 5 6 7 8 9 Plaintiff to damages for retaliation for reporting his concerns about the health and safety of patients. 3. Whether Defendant Kern County violated Cal. Lab. Code § 1102.5, entitling Plaintiff to damages for retaliation against him for reporting suspected illegal acts. 4. Whether Defendant Kern County violated Cal. Gov't Code §§ 12945.1, et seq and 2 C.CR. 7297.7(a), entitling Plaintiff to damages for retaliation for exercising his right to CFRA medical leave. 5. Whether Defendants Kern County and Bryan violated 29 U.S.c. Plaintiff to damages for interference with his FMLA Rights. 6. Whether Defendant Kern County violated Cal. Gov't Code §§ 12945.1, et seq., entitling
§~

2601, et seq., entitling

10 1 Plaintiff to damages for violation of CFRA Rights. 11 12 13
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7. Whether Defendant Kern County violated Cal. Gov't. Code § 12940(a) entitling Plaintiff to 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
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12940(n) entitling Plaintiff to

damages and injunctive relief for failure to engage in good faith in an interactive process. and an injunction requiring compliance. 10. Pursuant to 42 U.S.C § 1983, whether Defendants Bryan, Kercher, Ragland, Abraham, and I Smith. both personally and in their respective official capacities, violated the 14th Amendment of the U.S. Constitution entitling Plaintiff to damages and injunctive relief for procedural due process violations. 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 damages for 'wages lost during periods when he was ready, willing, and able to \vork, but was denied reduced schedule medical leave, and forced to take full time leave; and an injunction requiring compliance.
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V.

STATUS OF ALL MATTERS BEFORE THE COURT

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

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VI. DISCOVERY PLAN

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

Il Discover\' Subjects. Deadlines. Limitations. Phasing. Etc. I. Expert Deadlines Expert Disclosure Deadline: Supplemental Expert Disclosure Deadline: [December 3, 2007J [December 17, 2007]

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2. Discovery Deadlines
[December 3,2007]

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Expert:

[February 15,2008]

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

care quality and regulatory non-compliance issues with respect to which PlaintiIfblevv the whistle, (ii)
KMC's policies and procedures regarding reasonable accommodation of disabled employees, engaging in interactive process \yith disabled employees, FMLA/CFRA !cave, discrimination/retaliation against \vhistlebJowing employees, reduced \vork schedule, etc., (iii) the circumstances surrounding and decision-making behind the various adverse employment actions taken against Plaintiff, including: reprimand of PlaintitT in connection \vith his presentation at the October 2005 oncology conference.

i

vvithdrawal of reduced work schedule, demotion and salary reduction, involuntary leave, non~renewai of contract, etc., and (Iv) the circumstances surrounding and decision-making behind Defendant Roy's, Harris's and Does I through IO's defamation of Plaintiff and Defendant County's ratification thereof 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

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employment, the relationships between Plaintiff and the other physicians and staff at KMC, the tUl-nove and departures of physicians and staff from the Pathology Department during Plaintiff's chairmanship, the circumstances of and reasons for Plaintiff's leaves of absence and reduced work schedule and the reasons why Plaintiff claims he is disabled. 4. Phasing: The parties arc not presently aware of any reason to phase discovery. 5. Limitations to or Focus upon Particular Issues: The parties arc not presently aware of any limitations on discovery. 6. Depositions: The parties have agreed that July 2,2007 is the first possible date to send out 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

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depositions may be scheduled for the same

The parties may" videotape and/or audio record

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

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,
C. Electronic Discovery

The parties have in their custody and possession e-mails related to issues in this action and have each made requests of the other that all such e-mails be preserved and disclosed. I'he parties shall produce e-mails to eaeh other in Microsoft Outlook format. The parties are not presently mvare of any other electronic discm'ef)' issues.
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D. Confidentialitv Orders Documents to be produced include patient medical records that contain confidential patient health care information, medical peer review records that are cont1dential pursuant to California 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 3 4 5 6
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required to redact all contidential patient information before producing any patient records and will do

so. The

p'aryi~s

hereby

agr~ethat

Defendants' production of certain

specifiedp~~rreview

records

without redaction phall not be construed as a 'Naiver of the peer revic\v privileg~ in general or a waiver \vith regard to any other documents or person. 'I'he gartics
hcrebY~,gree

that Dcfendants'yroduction of

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

well as other, non-Iu\-vyer, County employees'rs~all not be construed as a waiver of the attorney/client privilege. Tbe n,arties hereby agree that Defendants'production of certain specified documents that include attorney workwproduct and trial preparation materials shall not constitute a waiver of either the ,>vark-product or trial preparation materials privileges as to any other materials. The p,arties hereb)'agree that, in order to preserve the conJ'identia!i.tyrequired for continued effective treatment of Plaintiffs depression, anxiety, insomnia, and emotional distress,
Pjaintifl~s

subject to a stipulation that

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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

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the timing and scope of the examination, including the specific tests to be performed, and prompt 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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23 E. Changes in Limitations on Discoverv Given the number of defendants and vv'itncsses and the number and complexity of the issues, Plaintiff anticipates needing relief from the discovery limitations of Federal Rule of Civil Procedure 30(a)(2)(A) (10 depositions per side) and Rule 33(a) (no more than 25 interrogatories per party). 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).
Plaintiff does not object to pefendants 'sr~quest;_provided, _ hO\vever, that no
deposition.sh~lIexceed7 sin~lc

clay ofPlaintiff.s,

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

limitations on discovery.

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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12 13 A. Pre-Trial Motions

VII. AGREED-UPON DATES

1. Non·DisposJtive Motions
filing Deadline: [I\1arch 3, 2008] [April 4, 2008J

I--Icard no latcr than:
17 18 2. Dispositive Motions Filing Deadline: Heard no later than:

[May 2, 2008J [June 6, 2008J

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B. Pre-Trial Conference 1. Settlement Conference: 2. Pre-Trial Conference:
[February 15.2008] [August 4, 2008J

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C. Trial

Trial Date:

[September 2, 2008J

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VIII. SETTLEMENT 2 3
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The parties are interested in exploring the opportunity to settle this matter before incurring additional attorney fees and costs. Court-ordered mediation, private mediation or an Early Case
Conference might be bcneHcial.

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IX. TRIAL BY JURY Plaintiff has requested ajury trial on all possible issues and claims,

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X.

ESTIMATE OF NUMBER OF TRIAL DAYS REQUIRED

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

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Xii. RELATED MA TTERS

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

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
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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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