121 KC Ex Parte R26 Relief - DFJ Opp by eugenedlee

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Eugene D. Lee SB# 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, California 90013 Telephone: (213) 992-3299 Facsimile: (213) 596-0487 Email: elee@LOEL.com Attorneys for Plaintiff DAVID F. JADWIN, D.O. UNITED STATES DISTRICT COURT

7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 DAVID F. JADWIN, D.O., 10 Plaintiff, 11 v. 12 13 14 15 16 Plaintiff David F. Jadwin, D.O., respectfully submits this memorandum in opposition to 17 defendants’ ex parte application for order shortening time re motion for permission to serve expert 18 reports after May 5, 2008. 19 I. BACKGROUND 20 The Scheduling Order issued by this Court on May 31, 2007 (Doc. 29), states: 21 22 23 24 25 26 27 28 The parties are directed to disclose all expert witnesses, in writing, on or before February 4, 2008. . . . The parties will comply with the provisions of Federal Rule of Civil Procedure 26(a) regarding their expert designations. Local Rule 16-240(a) notwithstanding, the written designation of experts shall be made pursuant to F. R. Civ. P. Rule 26(a)(2), (A) and (B) and shall include all information required thereunder. (Doc. 29, 12:22 - 13:2). The Scheduling Order reproduces almost verbatim the deadlines and language contained in the parties’ jointly submitted Joint Scheduling Report, filed on May 21, 2007 (Doc. 26-1, 11:24-12:5). The parties had met and conferred extensively prior to jointly filing the Joint Scheduling Report, with defendants providing substantial review and input at every step of the process. See Exhibit 1. The COUNTY OF KERN; et al. Defendants PLAINTIFF’S OPPOSITION TO DEFENDANTS’ EX PARTE APPLICATION FOR ORDER SHORTENING TIME RE MOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5, 2008 Date Action Filed: Date Set for Trial: January 6, 2007 December 3, 2008 Case No. 1:07-cv-00026-OWW-TAG

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deadlines contained therein were negotiated and agreed to by defendants. Both the Joint Scheduling Report and the Scheduling Order included the following stipulation of the parties: The parties hereby agree that, in order to preserve the confidentiality required for continued effective treatment of Plaintiff’s depression, anxiety, insomnia, and emotional distress, Plaintiff’s treating psychiatrists/psychologists shall not be required to produce their actual treatment notes, but instead shall produce a summary of their treatment of Plaintiff’s depression and emotional distress, including their diagnoses and prognoses, and the basis for their opinion, including raw 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 production of the subsequent report and raw data supporting the report to all parties. (Scheduling Order, Doc. 29, 14:5-19; Joint Scheduling Report, Doc. 26-1, 11:24-12:5). As early as May of 2007, almost one full year ago, defendants were well aware that plaintiff was

11 continuing to receive psychiatric treatment for depression and emotional distress, and the parties had in 12 fact entered into a stipulation for a Rule 35 defense psychological examination. 13 On November 14, 2007, roughly 3.5 months into discovery, Defendants asked plaintiff to agree 14 to a 3-month continuance of all deadlines in the Scheduling Order in order to accommodate difficulties 15 defendants were experiencing gathering and producing documents. Plaintiff reluctantly agreed to a 16 stipulation, which defendants submitted to the Court for approval. See Exhibit 2. The Court granted 17 defendants’ request for 3-month continuance by Order issued on November 17, 2007. See Exhibit 3. In 18 that Order, the Court set the new deadline for expert disclosure as May 5, 2008, 3 months after the 19 original deadline of February 4, 2008. The Court also wrote in bolded letters “No further continuances 20 will be granted (oww).” 21 On January 22, 2008, defendants sent an email to plaintiff stating “Defendants want Dr. Jadwin 22 to be evaluated by independent medical examiners as to his medical and psychiatric conditions.” 23 Plaintiff replied that same day, requesting the kinds of tests to be conducted and the scope of 24 examination. See Exhibit 4. Plaintiff never received a response. 25 On March 25, 2008, defendants sent an email stating “we want to set Dr. Jadwin’s independent 26 medical exam.” Plaintiff replied that same day, again requesting the kinds of tests to be conducted, the 27 scope of examination and the name of the examining psychiatrist. See Exhibit 5. Plaintiff never received 28

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a response. On April 16, 2008, during a break at a deposition, defendants stated that they wished to conduct a mental examination of plaintiff. Plaintiff yet again requested the kinds of tests to be conducted, the scope of examination and the name of the examining psychiatrist. Defendants said they would provide such information shortly. On May 1, 2008, defendants asked plaintiff over a series of emails to stipulate to a one month delay in disclosure of Rule 26 expert witness opinion reports. See Exhibit 6. Defendants stated: I think someone in Wanger’s chambers goofed with the May 5 date, frankly. It is over 180 days before trial. That is too early. 90 days is typical.” (See Exhibit 6.) Defendants further stated: For example, we need to do the IME on Dr. Jadwin. I have the information you have requested about the scope of examination, etc. and will get that to you next week. As soon as we can set that, I will know how long it will take for the examining physician to render his report. I delayed setting that, you will recall, because you had told me Dr. Jadwin was going to have surgery. (See Exhibit 6.) Plaintiff responded

15 16 17 18 19 20 21 22 On May 2, 2008, defendants sent an email to plaintiff inviting plaintiff “to hold onto you [expert] 23 reports and not disclose them until our motion for partial relief from the scheduling order is resolved.” 24 Plaintiff responded, “Plaintiff intends to adhere to Judge Wanger’s trial schedule.” See Exhibit 7. 25 Also on May 2, defendants finally provided plaintiff with the details of the requested defense 26 psychological examination of plaintiff. Defendants stated: 27 28 We want to have Dr. Jadwin examined by Dr. Robert Burchuk, a psychiatrist in Woodland Hills. The evaluation will consist of two, 4-hour sessions on two different First, I do not have any recollection whatsoever of your delaying the defense mental exam because of Dr. Jadwin’s surgery. Dr. Jadwin’s surgery became an issue only in relation to the setting of his deposition and nothing else. Dr. Jadwin’s deposition was held on March 11/12, 2008. What I do recall is that, beginning January 22, 2008 and repeatedly thereafter, I asked you for further details regarding the scope of the defense mental exam, type of tests to be performed, etc., and never received them. To date, I still have not received them. Plaintiff previously agreed to defendants’ request for a 3 month continuance of pre‐trial and trial dates in order to accommodate KMC’s logistical difficulties in gathering and producing documents. Judge Wanger has made it very clear that no further extensions would be granted. In any case, after giving your request much thought, Plaintiff cannot agree to yet another stipulation by defendant for a 1 month continuance on expert deadlines. (See Exhibit 6.)

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days. The sessions will be oral interviews and will not involve any testing. If any tests are to be administered to Dr. Jadwin, they will be done separately and only after separate arrangements are made with you. (See Exhibit 8). Plaintiff replied that same day, asking defendants to send over a draft stipulation. To date, plaintiff has

4 not received such draft. 5 On May 5, 2008, defendants asked plaintiff to stipulate to shortened time to hear a motion for 6 partial relief from the scheduling order. Plaintiff replied that he would so stipulate, provided defendants 7 agreed to (1) submit their motion to Judge Wanger, not Magistrate Judge Goldner, as defendants were 8 requesting a variance to the Scheduling Order, and (2) stipulate to permit plaintiff to file a supplemental 9 (not amended) complaint, a draft of which plaintiff had sent to defendants on April 17, 2008, but to 10 which plaintiff had never gotten a response. Defendants refused both of plaintiff’s requests. See Exhibit 11 9. 12 On May 5, 2008, the deadline set by the Court for expert disclosure pursuant to Rule 26(a)(2), 13 plaintiff served on defendants his disclosures of expert witnesses in full compliance therewith. Plaintiff 14 fully disclosed the written opinion reports, credentials, publications, testimony history, fee schedules, 15 and other required information for four expert witnesses. See Exhibit 10. 16 Also on May 5, defendants filed a Notice of Designation with the Court, purporting to comply 17 with Rule 26(a)(2). See Exhibit 11. However, the Notice of Designation did not comply with Rule 18 26(a)(2) in that it did not include any written opinion reports, nor the list of cases in which Dr. Burchuk 19 (forensic psychiatrist) and Dr. Sarkasian (vocational rehabilitation) had testified in, nor a list of 20 publications authored by Dr. Sarkasian during the past 10 years. The disclosures of the fee schedules for 21 Drs. Burchuk and Olson-Buchanan (behavioral specialist) were also incomplete. 22 Also on May 5, defendants filed the instant ex parte application to shorten time. 23 II. ARGUMENT 24 25 26 27 28 A. Defendants’ Request Is Disfavored Because Defendants Waited until the Day of the Deadline Local Rule 6-144 of this Court states: Counsel shall seek to obtain a necessary extension from the Court or from other counsel or parties in an action as soon as the need for an extension becomes apparent. Requests

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for Court-approved extensions brought on the required filing date for the pleading or other document are looked upon with disfavor. It must also be established that the moving party is without fault in creating the crisis or that the crisis occurred as a result of excusable neglect. See Mission Power Engineering Co. v. Continental Cas. Co., (CD CA 1995) 883 F.Supp. 488, 492 (“Ex parte applications are not intended to save the day for parties who have failed to present requests when they should have ... ”); see also In re Intermagnetics America, Inc. (CD CA 1989) 101 BR 191, 193. Defendants have been well aware of the expert witness designation deadline since at least the Rule 26(f) conference. Initial disclosures were exchanged on August 6, 2007, after which discovery has been ongoing for more than 9 months and counting. Only 2 more months of discovery remain. Plaintiff has already conducted 13 depositions and propounded two sets of document requests and interrogatories. Defendants meanwhile have yet to propound any written discovery and have conducted just one deposition, that of the plaintiff. Plaintiff has been requesting the requisite details of defendants’ proposed psychological examination of plaintiff since January 22, 2008 and only just recently have defendants finally given plaintiff this information. In short, defendants have been utterly dilatory in conducting discovery in this action. To make matters worse, defendants waited until the day of the deadline for disclosing expert witnesses before filing the instant ex parte request for relief. Defendants’ request is disfavored and given defendants’ own inexcusable neglect in creating the crisis, it should be denied. B. Defendants’ Experts are Unprepared, and Defendants Have No Substantial Justification for That In Shumaker v. West, the Southern District of West Virginia observed that

22 23 24 25 26 27 28 The deadlines relating to expert disclosures and the requisites provided in Rule 26 regarding the expert report are there for good reason. Both parties are entitled to knowledge relating to the other side's experts. Without access to the identity of an expert witness and the expert's report, an opposing party cannot properly prepare its case or rebut the other party's expert witness. (196 F.R.D. 454, 456 (S.D. W. Va. 2000)). In the case cited by defendants in support of their request, Minnard v. Rotech Healthcare Inc., this Court observed:

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Furthermore, an expert should be as prepared as possible at the time of designation. Unless a scheduling order otherwise permits, a general policy routinely allowing a party's medical expert to be unprepared at time of designation does not comport with the needs of litigation or common sense. (2008 U.S. Dist. LEXIS 6149 (E.D. Cal. Jan. 15, 2008). In Minnard, Magistrate Judge Gregory Hollows ultimately ruled that defendant should be permitted to conduct a Rule 35 psychological examination of plaintiff and to then supplement their expert report after the expert designation deadline. However, Judge Hollows based his ruling on the fact that defendant did not find until after the expert designation deadline that a forensic psychologist would be necessary. Defendant, on the other hand, claims that it had no real knowledge of the need for such an interview prior to the deposition of plaintiff's expert…. Plaintiff had been deposed but did not testify to any mental health treatment up to that point…. However, when plaintiff actually named an expert psychologist who issued a report on or about October 25, 2007, relying heavily on an interview with plaintiff, defendant Rotech was on notice that it would need the Rule 35 exam…. Nevertheless, plaintiff did not testify in his deposition to medical treatment for emotional problems, rendering the need for a Rule 35 exam much less obvious. At the time just prior to plaintiff's designation of experts in later October 2007, the litigation landscape appeared to indicate that plaintiff's emotional distress claims were no more than the ordinary, temporary shock occurring on the happening of an untoward event -- a shock that dissipates rather quickly over time. 2008 U.S. Dist. LEXIS 6149 (E.D. Cal. Jan. 15, 2008). Defendants can in no way make a similar claim of surprise or ignorance in the instant case.

15 Discovery has been ongoing for over 9 months, with less than 2 months of discovery remaining. 16 Defendants have already had the benefit of asking for and receiving a 3-month continuance on all 17 deadlines in this action. Defendants have also long had all the information necessary to determine 18 whether and what kind of expert testimony was required. There is simply no excuse for their failure to 19 have their expert reports ready by the deadline. 20 For instance, defendants knew as early as the Rule 26(f) conference of January 8, 2007 that a 21 psychological examination of plaintiff may be necessary. Both the Scheduling Order and the Joint 22 Scheduling Report noted that plaintiff was undergoing continuing therapy for depression – hence the 23 stipulation that plaintiff would not be producing his treaters’ psychotherapy notes to defendants – and 24 also contained the parties’ express stipulation to a psychological examination by defendants. On March 25 11, 2008, plaintiff served a Rule 26 supplemental disclosure on defendants which included a declaration 26 by plaintiff’s current therapist (Bates Nos. DFJ02615 – DFJ02631). In that declaration, the therapist 27 stated: “Since Dr. Jadwin has been under my care, he has clearly been able to maintain some 28

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productivity, especially as his symptomatology has decreased over the several past months of treatment.” (Bates No. DFJ02618). Defendants also emailed plaintiff with a request for a psychological examination of plaintiff on January 22, 2008 but were dilatory in responding to plaintiff’s repeated requests for details about the examination. As for defendants’ vocational rehabilitation expert, defendants knew at least as early as August 6, 2007, when Initial Disclosures were exchanged, that plaintiff was claiming future wage loss as damages. This is because plaintiff included in his Initial Disclosures a 77-page Rule 26(a)(2) report by his economic expert, complete with credentials, list of publications, fee schedule and past court testimony, etc. That report also included two future offset scenarios: 1) plaintiff’s startup business fails completely in which case plaintiff takes on contract pathologist work and 2) plaintiff’s startup business succeeds, eventually replacing his lost income completely. As for defendant’s behavioral expert, defendants have long had full access to all the information needed to timely prepare a report. Defendants obviously enjoy full access to former and current employees of Kern Medical Center who witnessed plaintiff’s alleged “behavior” at issue in this action. Defendants, as is the case with most defendants, have also enjoyed full access to all of the documents relevant to this action, including the Initial Disclosures, plaintiff’s Rule 26 supplemental disclosures of January 8, 2008 and March 11, 2008. Defendants also took the videotaped deposition of Dr. Jadwin for three days, from January 8 to 10, 2008, and then again for two more days, on March 11 and 12, 2008. It should be noted that defendants do not now request an examination of plaintiff by their behavioral expert. C. If Defendants’ Request for Yet Another 1 Month Continuance of Expert Report Disclosure Is Granted, Plaintiff Will Be Prejudiced The Court’s Order granting defendants’ 3-month continuance stated in bolded letters: “No

23 further continuances will be granted (oww).” Plaintiff has taken great pains to observe the Court’s 24 trial schedule and was successful in fully complying with the expert designation deadline. 25 If defendants’ request for a 1-month continuance on expert report disclosure is granted, the 26 remaining pre-trial schedule will become compressed, with various deadlines running into each other in 27 a cascading effect. Perhaps plaintiff’s email to defendants sums up the prejudice to plaintiff best: 28

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We’re bumping up against a lot of deadlines now. June 4 for supplemental expert designation, July 7 discovery cutoff, August 4 dispositive motion filing deadline. Just as a for instance, if we take depos of experts after July 7 as you suggest, the delay in getting the depo transcripts will cause problems in terms of filing dispositive motions by August 4. What you’re proposing will compress the entire pre‐trial schedule for plaintiff and the only fair relief will be a continuance of all pre‐trial deadlines, which plaintiff is not able to agree to. Plaintiff already agreed to your request for a 3 month continuance. Reports are the critical element in Rule 26 expert disclosure. In my view, they’re practically synonymous. You’ve had more than 9 months of discovery to get your expert reports ready. Plaintiff is ready and able to meet the deadline. You’ve waited until just a few days prior to the expert designation deadline to propose a delay. That’s unfortunate but I don’t see how that is plaintiff’s problem. And perhaps most importantly, Judge Wanger has made it crystal clear that no further extensions will be granted. I’m not about to go re‐jiggering the trial schedule set by Judge Wanger. In my view, your asking him to do so is ill‐advised. See Exhibit 7. III. CONCLUSION

10 Defendants suggest discovery is not nearly complete, that plaintiff has announced his intention to 11 take as many as 20 more depositions. (Doc. 118, 2:18-19). They insist defendants must know the 12 theories plaintiff is pursuing before their experts can complete their reports, that the plaintiff has done 13 little to develop any evidence to support the allegations in his complaint and have focused their 14 depositions instead on defendants’ affirmative defenses. (Ibid. at 2:19-22). 15 If defendants are unaware of plaintiff’s theories, it is solely because they have been dilatory. 16 They have not propounded a single set of written discovery. They have conducted the deposition only of 17 plaintiff himself. Apparently, they have not carefully read plaintiff’s Second Supplemental Complaint 18 (Doc. 30), which lays out plaintiff’s claims and allegations in excruciating detail spanning 52 pages. 19 It should be noted that defendants’ suggestion that plaintiff has been dilatory in conducting 20 depositions is baseless. While plaintiff is indeed holding off deposing the defendants and main witnesses 21 until the last two months of discovery, plaintiff does so for good cause. On December 21, 2007, plaintiff 22 filed with the Court a motion to compel production of documents in response to plaintiff’s requests for 23 production, set one. Plaintiff had served those requests on defendants on October 11, 2007. In response, 24 Defendants chose to withhold numerous critical documents based upon objections of, among other 25 things, state-based peer review and personnel privacy privilege, even with respect to plaintiff’s federal 26 law causes of action. After extensive briefing by plaintiff on this important issue of the applicability of 27 state-based privileges to federal law causes of action, Magistrate Judge Theresa Goldner heard the 28

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motion on January 14, 2008, and took the matter under submission. To date, almost four months later and with less than two months remaining in discovery, no ruling has issued. Plaintiff hopes to delay conducting his most critical depositions until after a ruling is issued so the depositions can be conducted with the benefit of having the requested documents. In Shumaker v. West, the court considered the defendant’s motion to compel a medical exam of plaintiff when the defendant had failed to attach his report to his Rule 26(a)(2)(B) expert disclosures. In that case, the defendant had filed their motion to compel the Rule 35 exam 6 days prior to the expert designation deadline. The court denied the defendant’s request, reasoning as follows: On or around August 22, 2000, Defendant requested that Plaintiff agree to an examination by Dr. Manges. When Plaintiff refused, Defendant filed the instant Motion on August 31, 2000. On or around September 6, 2000, Defendant served his expert disclosures pursuant to Rule 26(a)(2)(B), disclosing Dr. Manges as an expert, but did not attach a report. (196 F.R.D. 454, 456 (S.D. W. Va. 2000))…. By at least September 5, 2000, if he intended to use Dr. Manges as an expert, Defendant was required under Rule 26 to have Dr. Manges' medical report in hand and ready to turn over to the Plaintiff. Nevertheless, Defendant failed to attach a report to his expert disclosures. To comply with the Rule, Defendant should have sought to obtain the medical examination, which he now seeks by motion filed August 31, 2000, well before the September 5, 2000, deadline. 196 F.R.D. 454, 456 (S.D. W. Va. 2000). In the instant case, defendants have failed to conduct any medical or vocational exam of plaintiff.

16 Plaintiff requested the requisite details of defendants’ requested psychological exam since January 22, 17 2008, but only just recently did defendants finally give plaintiff this information. Moreover, defendants’ 18 ex parte motion represents the first instance of plaintiff’s ever hearing of defendants’ desire to conduct a 19 vocational exam on plaintiff. There has been no prior mention of it to plaintiff whatsoever. 20 21 Plaintiff respectfully requests that the Court deny defendants’ ex parte request for relief from the 22 May 5, 2008 expert designation deadline, and further rule that defendants are not permitted to conduct a 23 psychological, vocational, or any other exam on plaintiff. 24 25 Respectfully submitted on May 7, 2008. 26 27 28 /s/ Eugene D. Lee SB# 236812 LAW OFFICE OF EUGENE LEE

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555 West Fifth Street, Suite 3100 Los Angeles, California 90013 Telephone: (213) 992-3299 Facsimile: (213) 596-0487 Email: elee@LOEL.com Attorneys for Plaintiff DAVID F. JADWIN, D.O.

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EXHIBIT 1

Case 1:07-cv-00026-OWW-TAG Eugene D. Lee
From: Sent: To: Cc: Subject: Attachments: Gene,

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Mark Wasser [mwasser@markwasser.com] Monday, May 21, 2007 5:18 PM Eugene Lee; Joan Herrington Karen Barnes; MARK NATIONS draft Joint Scheduling Order 5.21.07 - Blackline draft Joint Scheduling Order 5.21.07 - Blackline.doc

First, I forgot to copy Joan on the last several e-mails. Sorry. Second, here is the JCR with my revisions. I deleted the explanatory sentences about changing the dates because I view them as unnecessary. This Report is the product of our joint conference. It does not matter that we have changed the dates since we had our telephone conference. It has been an iterative process and has continued until now. Third, I adjusted some of the new dates so they fall on weekdays and not weekends. Finally, I added a sentence about the timing of your motions to strike. I do not want the Court to think we agreed that you should bring those motions now. I believe they are premature, as I wrote in my recent e-mails, and will argue that in my opposition. I do not want to give that up by appearing to agree that they need to be brought now. Mark

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Eugene D. Lee SB# 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, California 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: elee@LOEL.com Attorneys for Plaintiff DAVID F. JADWIN, D.O.

Mark A. Wasser SB# 060160 LAW OFFICES OF MARK WASSER 400 Capitol Mall Ste 1100 Sacramento, California 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: mwasser@markwasser.com Bernard C. Barmann, 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: mnations@co.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

DAVID F. JADWIN, D.O., Plaintiff, v. COUNTY OF KERN; et al. Defendants.

Civil Action No. 1:07-cv-00026-OWW-TAG JOINT SCHEDULING REPORT PURSUANT TO FRCP 26(f) Date: Time: Location: Judge: Date Action Filed: Date Set for Trial: May 31, 2007 8:45 a.m. Courtroom 3 Hon. Oliver W. Wanger January 6, 2007 None

[PLAINTIFF’S ATTORNEY REQUESTS TELEPHONIC APPEARANCE]

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 Court’s Order Setting 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 FRCP 26(f) 1
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8:45 am, May 31, 2007. This action was originally filed on January 6, 2007, and is assigned to the Honorable Oliver W. Wanger.

I.

SUMMARY OF CONTENTIONS & RELIEF SOUGHT

A. Plaintiff’s Summary 1. This is an individual action brought by Plaintiff David F. Jadwin, D.O., a whistleblowing 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; ) (ii) individual Defendants Peter Bryan (“Bryan”), Chief Executive Officer of Kern Medical Center (“KMC”); Eugene Kercher, M.D., President of Medical Staff at KMC (“Kercher”); Jennifer Abraham, M.D., Immediate Past President of Medical Staff at KMC (“Abraham”); Scott Ragland, M.D., President-Elect of Medical Staff at KMC (“Ragland”); and Toni Smith, Chief Nurse Executive of KMC, (“Smith”), both personally and in their official capacities; and (iii) individual Defendants Irwin Harris, M.D., Chief Medical Officer of KMC (“Harris”); William Roy, M.D., Chief of the Division of Gynecologic Oncology at KMC (“Roy”); and DOES 1 through 10. 2. Plaintiff’s claims against his employer, Defendant County, allege violations of section 1278.5 of the Health & Safety Code1 which prohibits retaliation against a health care provider who reports suspected unsafe care and conditions of patients in a health care facility; section 1102.5 of the Labor Code which prohibits retaliation against an employee for reporting or refusing to participate in suspected violations of the 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. of the United States Code) (“FMLA”) which prohibit interference with an employee’s right to medical leave 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] (“FEHA”) which prohibits discrimination against an employee with a disability, failure to provide reasonable accommodation, and

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All statutory references are to California Codes unless otherwise specified. JOINT SCHEDULING REPORT PURSUANT TO FRCP 26(f)

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failure to engage in an interactive process; and recovery of wrongfully deducted wages under the Fair Labor Standards Act (29 U.S.C. §§ 201, et 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 (“JCC”), for violation of Plaintiff’s 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, compensatory, and punitive damages; prejudgment interest, costs and attorneys’ fees; injunctive and declaratory relief; and other appropriate and just relief resulting from Defendants’ unlawful conduct.

B. Defendants’ Summary 1. Plaintiff is not a whistleblower and is not disabled. He was employed by the County of Kern as a staff pathologist at Kern Medical Center, pursuant to a written 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 complained about procedures and policies at Kern Medical Center and interfered with patient care through obstructionist behavior and secretive practices. His pathology reports were characterized by frequent mistakes, changes in opinion and untimely service, all of which compromised patient care. Disagreements arose between Plaintiff and many of the other physicians at Kern Medical Center regarding Plaintiff’s behavior, his anger and confrontational personal style, his inaccurate and untimely diagnoses, his disruptive behavior, his complaints about medical procedures, his refusal to follow even his own rules, his intimidation of staff and patient management. 3. As a result of the stresses and disagreements that Plaintiff brought into the workplace, his
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injuries and illnesses, family health issues and outside business interests, Plaintiff requested and received a reduced work schedule and multiple leaves of absence. He frequently worked only one or two days a week and was absent from the hospital for long periods of time. Because he was neither working full-time nor present in the hospital, he was removed from the position of Chair of the Pathology Department and his compensation was adjusted to that of a staff pathologist without departmental administrative responsibilities. 4. Management at Kern Medical Center counseled Plaintiff about his anger and confrontational style but Plaintiff was not receptive to the counseling and the work environment continued to deteriorate. Plaintiff was finally placed on paid administrative leave in an effort to allow the work environment to stabilize.

II. PROPOSED AMENDMENTS. Plaintiff intends to file a Second Supplemental Complaint to include allegations of continuing discrimination and retaliation that occurred after April 24, 2007. Plaintiff will insert the following: On May 1, 2007, Defendant County notified Plaintiff that he will remain on paid administrative leave until his contract expires on October 4, 2007; and that, contrary to its prior and customary practice, Defendant County does not intend to renew his employment contract. Although Plaintiff is no longer restricted to the confines of his home during working hours, he still may not enter KMC’s premises or access his office without prior written permission. The numbering of the following paragraphs will be adjusted accordingly. Plaintiff has already provided Defendants with the draft Second Supplemental Complaint in the form in which Plaintiff intends to file it for Defendants’ prior review. Defendants intend to file an Amended Answer that (i) with regard to the third affirmative defense, alleges the specific privileges and immunities relied on with greater particularity, (ii) with regard to the fourth affirmative defense, alleges the specific provisions of Cal. Civ. Code § 47 relied on with greater particularity, and (iii) alleges the ninth affirmative defense (qualified immunity) with greater particularity, as well as additional non-material changes. Defendants have already provided Plaintiff with the draft Amended Answer in the form in which Defendants intend to file it for Plaintiff’s
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prior review. Based on the foregoing, each of the parties hereby stipulates to the filing of the other’s supplemented/amended pleadings and hereby respectfully request the order of the Court granting the parties leave to file their respective amended/supplemented pleadings. It should be noted that Plaintiff intends to file a motion to strike certain of Defendants’ affirmative defenses contained in the Amended Answer proposed to be filed as having insufficient bases in law. The parties have already met and conferred regarding the affirmative defenses at issue but have not been able to reach a resolution.

III. SUMMARY OF UNCONTESTED AND CONTESTED FACTS. A. Uncontested Facts 1. At all material times, Defendant Kern County was a local public entity within the meaning of sections 811.2 & 900.4 of the Government Code and is operating in Kern County, California. 2. During the entire course of Plaintiff’s employment, Defendant Kern County has continuously been an employer within the meaning of FMLA [29 C.F.R. § 825.105(C)], CFRA [Gov’t Code § 12945.2(b)(2)] FEHA [Gov’t Code § 12926(d)], and FLSA [29 U.S.C. §203] engaged in interstate commerce, and regularly employing more than fifty employees within seventy five miles of Plaintiff’s workplace. 3. Defendant Bryan was Chief Executive Officer of KMC and a resident of California during most of the time alleged in the Complaint. 4. At all material times, Defendant Eugene Kercher was a citizen of California, a resident of Kern County, California, and President of KMC Medical Staff, and a member of the KMC Joint Conference Committee (“JCC”). 5. At all material times, Defendant Irwin Harris was a citizen of California, and a resident of Kern County, California, and Chief Medical Officer at KMC, and a non-voting member of the JCC. 6. At all material times, Defendant Jennifer Abraham was a citizen of California, and a resident of Kern County, California and Immediate Past President of KMC Medical Staff.
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7. At all material times, Defendant Scott Ragland was a citizen of California, and a resident of Kern County, California, President-Elect of KMC Medical Staff, and a member of the JCC. 8. At all material times, Defendant Toni Smith was a citizen of California, and a resident of Kern County, California, and Chief Nurse Executive of KMC, and a member of the JCC. 9. At all material times, Defendant William Roy was a citizen of California, and a resident of 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,

11. Plaintiff is a pathologist whom Defendant County hired as a pathologist at KMC and appointed to the position of Chair of the Pathology Department. 12. Plaintiff was compensated and provided with certain benefits pursuant to a written employment agreement, the terms of which speak for themselves. 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 and to contribute to the overall improvement of the hospital. 15. Plaintiff requested and received leaves of absence and reduced work schedules, the terms and conditions of and reasons for which are memorialized in writings that speak for themselves. 16. Plaintiff’s former attorney sent a letter to Kern County Counsel Bernard Barmann and Mr. Barmann met with Plaintiff on or about February 9, 2006. 17. Defendant Bryan and Plaintiff exchanged written communications regarding Plaintiff’s reduced work schedule and requests for leaves of absence. Plaintiff met with Defendant Bryan and others to discuss those subjects. 18. Defendant Bryan and Plaintiff exchanged written correspondence regarding Plaintiff’s tenure and performance as Chair of the Pathology Department at KMC. All the writings speak for themselves. 19. On or about July 10, 2006, the JCC 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 was neither working full-time nor present in the hospital. 21. Defendant County subsequently amended Plaintiff’s employment agreement to reduce Plaintiff’s base compensation. 22. Defendant County appointed Dr. Philip Dutt Acting Chair of the Pathology Department. 23. Plaintiff returned to work as a staff pathologist at KMC on October 4, 2006. 24. Plaintiff exchanged written correspondence with KMC Interim CEO David Culberson and those writings speak for themselves. 25. Defendant Kern County placed Plaintiff on paid administrative leave, which continues to this date. 26. Defendant County has provided Plaintiff with the information he requested from the computer that had been previously assigned to him. 27. Plaintiff filed a claim with Defendant Kern County and the claim was rejected. B. Contested Facts 1. Defendants contest all allegations and averments in the First Supplemented Complaint other than those enumerated in Section A, Uncontested Facts. 2. Plaintiff contests Defendants’ averment that Plaintiff disrupted the October, 2005, Monthly Oncology Conference and prevented appropriate discussion of case management and that other physicians at Kern Medical Center, including some of the Defendants, were concerned about Plaintiff’s conduct and with his interference with patient care. 3. Plaintiff contests all averments contained in the Answer to the First Supplemented Complaint other than those stated in Section A, Uncontested Facts.

IV. SUMMARY OF UNDISPUTED AND DISPUTED LEGAL ISSUES

A. Undisputed issues 1. None

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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. 2. Whether Defendant Kern County violated Cal. Health & Safety Code § 1278.5, entitling 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.C.R. § 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. §§ 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 Plaintiff to damages for violation of CFRA Rights. 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) entitling Plaintiff to damages for failure to provide reasonable accommodation, and an injunction requiring compliance. 9. Whether Defendant Kern County violated Cal. Gov’t Code § 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 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. 11. Whether 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 et seq. entitling Plaintiff to
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damages for wages lost during periods when he was ready, willing, and able to work, but was denied reduced schedule medical leave, and forced to take full time leave; and an injunction requiring compliance.

V.

STATUS OF ALL MATTERS BEFORE THE COURT

There are no matters presently set before the Court other than this Scheduling Conference. However, Plaintiff intends to file Motions to Strike Affirmative Defenses from Defendants’ Answer to the Second Supplemental Complaint, requesting this Court strike Defendants’ Fifth Affirmative Defense (“Plaintiff was arrogant, disagreeable, uncooperative, intimidating, overbearing, self-righteous and unfriendly and that Plaintiff’s behavior contributed to and was the direct and proximate cause of any stresses, disabilities or injuries that Plaintiff believes he sustained”), and Seventh Affirmative Defense (Plaintiff’s claims are barred by the statute of limitations established in Cal. Civ. Proc. Code § 335.1 (assault, battery, injury, wrongful death)). Plaintiff believes this issue needs to be addressed before discovery can commence whereas Defendants believe it should be addressed after discovery, at or before the Pretrial Conference.

VI. DISCOVERY PLAN At the Rule 26(f) conference, the parties tentatively agreed on the below dates. However, following the conference, it became apparent over the course of the parties’ numerous meet and confer discussions that Plaintiff will need to file a Motion to Strike at least two of Defendants’ affirmative defenses (See Section V supra). Given that the defenses at issue remain uncertain, and therefore the scope of discovery also remains indefinite, the parties propose the following delayed schedule in order to accommodate Plaintiff’s pending Motion to Strike. A. Rule 26(a)(1) Initial Disclosure Deadline

23 [August 46, 2007]. 24 25 B. Discovery Subjects, Deadlines, Limitations, Phasing, Etc. 26 1. Expert Deadlines 27 Expert Disclosure Deadline: 28
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Supplemental Expert Disclosure Deadline: [February 1718, 2008] 2. Discovery Deadlines Non-Expert: Expert: [February 34, 2008] [April 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 Plaintiff blew the whistle, (ii) KMC’s policies and procedures regarding reasonable accommodation of disabled employees, engaging in interactive process with disabled employees, FMLA/CFRA leave, discrimination/retaliation against whistleblowing employees, reduced work schedule, etc., (iii) the circumstances surrounding and decision-making behind the various adverse employment actions taken against Plaintiff, including: reprimand of Plaintiff in connection with his presentation at the October 2005 oncology conference, withdrawal of reduced work schedule, demotion and salary reduction, involuntary leave, non-renewal of contract, etc., and (iv) the circumstances surrounding and decision-making behind Defendant Roy’s, Harris’s and Does 1 through 10’s defamation of Plaintiff and Defendant County’s ratification thereof. Defendants believe discovery will be needed regarding Plaintiff’s education, qualifications and training, his employment history, his outside business interests, specific events that transpired during Plaintiff’s employment, the relationships between Plaintiff and the other physicians and staff at KMC, the turnover 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 are not presently aware of any reason to phase discovery. 5. Limitations to or Focus upon Particular Issues: The parties are not presently aware of any limitations on discovery. 6. Depositions: The parties have agreed that September 2, 2007 is the first possible date to send out deposition notices. The parties have agreed that September 23 , 2007 is the first possible date for oral depositions. Because most depositions will be held in Bakersfield and all counsel are out-of-town, the parties have agreed to schedule depositions in blocks of multiple depositions at a single time to make
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travel as cost-effective as possible. The parties will set depositions on Tuesdays, Wednesdays and Thursdays and will allow enough time between settings to allow adequate preparation. Shorter depositions may be scheduled for the same day. The parties may videotape and/or audio record depositions, and the video camera may be operated by the attorneys or their employees.

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. The parties shall produce e-mails to each other in Microsoft Outlook format. The parties are not presently aware of any other electronic discovery issues.

D. Confidentiality Orders Documents to be produced include patient medical records that contain confidential patient health care information, medical peer review records that are confidential pursuant to California Evidence Code section 1157, some documents that are protected by the attorney/client privilege and some documents that include attorney work-product and trial preparation materials. The Defendants are required to redact all confidential patient information before producing any patient records and will do so. The parties hereby agree that Defendants’ production of certain specified peer review records without redaction shall not be construed as a waiver of the peer review privilege in general or a waiver with regard to any other documents or person. The parties hereby agree that Defendants’ production of certain specified relevant memos and e-mails that were sent to legal counsel for the County of Kern, as well as other, non-lawyer, County employees, shall not be construed as a waiver of the attorney/client privilege. The parties hereby agree that Defendants’ production of certain specified documents that include attorney work-product and trial preparation materials shall not constitute a waiver of either the work-product or trial preparation materials privileges as to any other materials. The parties hereby agree that, in order to preserve the confidentiality required for continued effective treatment of Plaintiff’s depression, anxiety, insomnia, and emotional distress, Plaintiff’s
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treating psychiatrists/psychologists shall not be required to produce their actual treatment notes, but instead shall produce a summary of their treatment of Plaintiff’s depression and emotional distress, including their diagnoses and prognoses, and the basis for their opinion, including raw 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 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.

E. Changes in Limitations on Discovery Given the number of defendants and witnesses 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 deposition of the Plaintiff will take up to 21 hours because of the quantity of material that needs to be covered. Defendants therefore request relief from FRCP 30(d)(2),(1 day of 7 hours per deposition). Plaintiff does not object to Defendants’s request; provided, however, that no single day of Plaintiff’s deposition shall exceed 7 hours. The parties are not presently aware of a need to change any other limitations on discovery.

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

VII. AGREED-UPON DATES At the Rule 26(f) conference, the parties tentatively agreed on the below dates. However,
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following the conference, it became apparent over the course of the parties’ numerous meet and confer discussions that Plaintiff will need to file a Motion to Strike at least two of Defendants’ affirmative defenses (See Section V supra). Given that the defenses at issue remain uncertain, and therefore the scope of discovery also remains indefinite, the parties propose the following delayed schedule in order to accommodate Plaintiff’s pending Motion to Strike.

A. Pre-Trial Motions 1. Non-Dispositive Motions Filing Deadline: Heard no later than: 2. Dispositive Motions Filing Deadline: Heard no later than: [June 2, 2008] [August 6, 2008] [May 35, 2008] [June 4, 2008]

B. Pre-Trial Conference 1. Settlement Conference: 2. Pre-Trial Conference: [April 15, 2008] [October 43, 2008]

C. Trial Trial Date: [November 23, 2008]

VIII. SETTLEMENT The parties are interested in exploring the opportunity to settle this matter before incurring additional attorney fees and costs. Private mediation or an Early Case Conference might be beneficial.

IX. TRIAL BY JURY Plaintiff has requested a jury trial on all possible issues and claims.
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1 2 3 4 5 6 7 XII. RELATED MATTERS 8 The parties are unaware of any related matters pending in this Court or any other court, including 9 any bankruptcy court. 10 11 RESPECTFULLY SUBMITTED on May 24, 2007. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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X.

ESTIMATE OF NUMBER OF TRIAL DAYS REQUIRED

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

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

/s/ Eugene D. Lee LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, California 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: elee@LOEL.com Attorney for Plaintiff DAVID F. JADWIN, D.O.

/s/ Mark A. Wasser, Calif. SB# 060160 LAW OFFICES OF MARK WASSER 400 Capitol Mall, Ste. 1100 Sacramento, California 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: mwasser@markwasser.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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EXHIBIT 2

Case 1:07-cv-00026-OWW-TAG Eugene D. Lee
From: Sent: To: Cc: Subject:

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Eugene D. Lee [elee@LOEL.com] Wednesday, November 14, 2007 11:30 AM 'mwasser@markwasser.com' 'Joan Herrington' Jadwin/KC: Stip Extension & Depo location

Mark, In followup to our RPD1 meet and confer call of this morning, we’ll agree to a three (3) month extension on trial, discovery cutoff, expert disclosure, dispositive & non-dispositive motion cutoffs and other deadlines as set forth in the Scheduling Order in order to accommodate your client’s doc production time requirements. Please let us review the stip you draft before you file it. As we discussed, any discussion we have had thus far of production deadlines is contingent upon Judge Wanger signing the stip in the form agreed to. Regarding the deposition location, we’d like to hold the Dec 4,5,6 depos at our court reporters’ office for now. But at the time of the Dec 4-6 depos, Joan and I wondered whether we would be permitted to physically access and view the KMC annex conference room so that we can see if it will work for our depo purposes (adequate electrical outlets, ventilation, lighting, space, etc.), particularly since we are videotaping. Please let us know if this will be possible. Also, please let us know whether KMC will permit Dr. Jadwin onto the premises to attend any depos that might be held at that conference room as well as the exact location/address of the conference room. We’ll send a more extensive meet and confer followup letter shortly. Sincerely, Gene Lee
  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ LAW OFFICE OF EUGENE LEE EMPLOYMENT LAW
555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : elee@LOEL.com W e b s i t e : www.LOEL.com  

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

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From: Sent: To: Subject: Attachments: Gene and Joan, Here is a draft stipulation for your review. Mark

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Mark Wasser [mwasser@markwasser.com] Wednesday, November 14, 2007 5:15 PM Eugene Lee; Joan Herrington Stipulation To continue trial and pre-trial dates 11.14.07 Stipulation To continue trial and pre-trial dates 11.14.07.doc

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EXHIBIT 3

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Filed 05/07/2008 Filed 11/20/2007

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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@markwasser.com Bernard C. Barman, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy 1115 Truxtun Avenue, Fourth Floor Bakersfield, CA 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: mnations@co.kern.ca.us Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith and William Roy Eugene D. Lee SB# 236812 LAW OFFICES OF EUGENE LEE 555West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 E-mail: elee@LOEL.com Joan Herrington SB# 178988 BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminister Lane Oakland, CA 94602 Phone: (510) 530-4078 Fax: (510) 530-4725 E-mail: jh@baelo.com Of Counsel to LAW OFFICE OF EUGENE LEE Attorneys for Plaintiff DAVID F. JADWIN, D.O. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA DAVID F. JADWIN, D.O. Plaintiff, vs. COUNTY OF KERN, et al., Defendants. ) ) ) ) ) ) ) ) ) ) 1
STIPULATION TO CONTINUE TRIAL AND PRE-TRIAL DATES AND ORDER
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Case No.: 1:07-cv-00026 OWW TAG STIPULATION TO CONTINUE TRIAL AND PRE-TRIAL DATES AND ORDER Complaint Filed: January 5, 2007 Trial Date: August 26, 2008 Note: Dates on last page have been changed

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WHEREAS discovery is taking substantially longer than the parties anticipated because the collection, duplication, redaction and production of medical records and other documents within Kern Medical Center in response to Plaintiff’s request for the production of documents is taking considerable time; and WHEREAS the parties are working together in good faith to address discovery issues as they arise; and WHEREAS it has become evident that the parties’ planned discovery will not be completed by the current discovery cut-off; and WHEREAS the parties believe the discovery cut-off should be extended approximately three months and that trial and the other pre-trial dates should be continued accordingly; NOW THEREFORE IT IS HEREBY STIPULATED, by and between the parties hereto through their respective counsel, that trial, the pre-trial conference, the settlement conference, the deadline for filing dispositive and non-dispositive motions, the expert and supplemental expert disclosure deadlines, and the discovery cut-off should all be extended approximately three months.

Dated: November 15, 2007

LAW OFFICES OF MARK A. WASSER

By:

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

Dated: November 15, 2007

LAW OFFICE OF EUGENE LEE

By:

/s/ Eugene D. Lee (as authorized on 11/15/07) Eugene D. Lee Attorney for Plaintiff, David F. Jadwin, D.O.

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ORDER The parties having stipulated as hereinabove set forth and good cause appearing therefor; IT IS HEREBY ORDERED, that the scheduling conference order be amended and that the dates of trial, pre-trial conference, settlement conference, dispositive motion cut-off, nondispositive motion cut-off and discovery be vacated and that new dates be set as follows: Expert Disclosure: Supplemental Expert Disclosure: Discovery Cut-Off: Non-Dispositive Motion Cut-Off: Non-Dispositive Motion Hearing: Dispositive Motion Cut-Off: Dispositive Motion Hearing: Settlement Conference: Pre-Trial Conference: Trial : [May 5, 2008] [June 4, 2008] [July 7, 2008] [July 21, 2008] [August 22, 2008] [August 4, 2008] [September 8, 2008] [May 7, 2008] [October 14, 2008] [December 3, 2008]

No further continuances will be granted (oww)

UNITED STATES DISTRICT COURT By:/s/ OLIVER W. WANGER The Honorable Oliver W. Wanger United States District Judge

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EXHIBIT 4

Case 1:07-cv-00026-OWW-TAG Eugene D. Lee
From: Sent: To: Subject: Attachments: Follow Up Flag: Flag Status:

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Eugene D. Lee [elee@LOEL.com] Tuesday, January 22, 2008 11:13 AM 'mwasser@markwasser.com' Jadwin/KC: Medical Exam Stipulation - Authenticating documents_071126.doc Follow up Completed

Mark, Let me look into this further. It would help if you gave me a clearer idea of what kind of tests would be conducted and the scope of the examinations. Also, Plaintiff has not claimed any physical injuries as a result of Defendants’ acts so I don’t believe Plaintiff would agree to a physical examination of any sort. While we’re on the topic of stipulations, I have not heard a response from you regarding the proposed stipulation on authenticity of documents which Plaintiff had sent you months ago. You had indicated you would agree to it but there was never any followup. Please let me know your thoughts. It is attached.

Sincerely, Gene Lee
  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE
LAW

LEE

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : elee@LOEL.com W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

EMPLOYMENT

  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

       
From: Mark Wasser [mailto:mwasser@markwasser.com] Sent: Tuesday, January 22, 2008 9:56 AM To: Eugene Lee Subject: Gene,

1

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The Defendants want Dr. Jadwin to be evaluated by independent medical examiners as to his medical and psychiatric conditions. We believe this will entail two evaluations, one as to his medical condition and to clear him medically for the psychiatric evaluation and a psychiatric evaluation. Can we work this out informally or would you prefer we simply notice it? We will do our best to accommodate his schedule. Mark

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

Document 121

Filed 05/07/2008

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Law Offices of Mark A. Wasser
400 Capitol Mall, Suite 1100 Sacramento, California 95814 Office: 916-444-6400 Fax: 916-444-6405 E-mail: mwasser@markwasser.com

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

Document 121

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EXHIBIT 5

Case 1:07-cv-00026-OWW-TAG Eugene D. Lee
From: Sent: To: Subject:

Document 121

Filed 05/07/2008

Page 38 of 88

Eugene D. Lee [elee@LOEL.com] Tuesday, March 25, 2008 11:27 AM 'mwasser@markwasser.com' DME / Perez Video

Mark, I’m working on getting you that video. Regarding the IME, I need more information. Who is the examiner going to be, scope of exam, kinds of tests to be performed, etc. Sincerely, Gene Lee
  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE
LAW

LEE

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : elee@LOEL.com W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

EMPLOYMENT

  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

       
From: Mark Wasser [mailto:mwasser@markwasser.com] Sent: Tuesday, March 25, 2008 10:22 AM To: Eugene Lee Subject: Two things Gene, First, I want a copy of the video of the Patricia Perez deposition. Can you please prepare one for me? Second, we want to set Dr. Jadwin’s independent medical exam. Would you like me to give you some dates to choose from? Let me know. Thanks. Mark
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Document 121

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Law Offices of Mark A. Wasser
400 Capitol Mall, Suite 1100 Sacramento, California 95814 Office: 916-444-6400 Fax: 916-444-6405 E-mail: mwasser@markwasser.com

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Document 121

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EXHIBIT 6

Case 1:07-cv-00026-OWW-TAG Eugene D. Lee
From: Sent: To: Subject:

Document 121

Filed 05/07/2008

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Eugene D. Lee [elee@LOEL.com] Thursday, May 01, 2008 10:54 PM 'mwasser@markwasser.com' Continuance of expert deadlines/DME

Mark,    First, I do not have any recollection whatsoever of your delaying the defense mental exam because of Dr. Jadwin’s  surgery. Dr. Jadwin’s surgery became an issue only in relation to the setting of his deposition and nothing else. Dr.  Jadwin’s deposition was held on March 11/12, 2008. What I do recall is that, beginning January 22, 2008 and repeatedly  thereafter,  I asked you for further details regarding the scope of the defense mental exam, type of tests to be  performed, etc., and never received them. To date, I still have not received them.    Plaintiff previously agreed to defendants’ request for a 3 month continuance of pre‐trial and trial dates in order to  accommodate KMC’s logistical difficulties in gathering and producing documents. Judge Wanger has made it very clear  that no further extensions would be granted. In any case, after giving your request much thought, Plaintiff cannot agree  to yet another stipulation by defendant for a 1 month continuance on expert deadlines.   

Sincerely, Gene Lee
  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE
LAW

LEE

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : elee@LOEL.com W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

EMPLOYMENT

  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

         
From: Mark Wasser [mailto:mwasser@markwasser.com] Sent: Thursday, May 01, 2008 6:02 PM To: elee@LOEL.com Subject: RE: Expert disclosures Gene, I do not think it will affect disclosure of supplemental experts although it might affect the timing of their reports. We can do it without compressing discovery. We need to depose experts anyway and they are likely to be the last depositions. I am willing to stipulate that we can take expert depositions after the cut-off of normal discovery. We could easily
1

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accommodate a short time after July 7 for expert depositions. I am not saying we have to do that, only that I am open to it. As far as how long I would like to postpone the exchange of expert reports, it may depend on the expert. For example, we need to do the IME on Dr. Jadwin. I have the information you have requested about the scope of examination, etc. and will get that to you next week. As soon as we can set that, I will know how long it will take for the examining physician to render his report. I delayed setting that, you will recall, because you had told me Dr. Jadwin was going to have surgery. I think if we delayed disclosure of the reports for about a month, it would be enough. Supplemental reports could be delayed a month, too. That would put us at about the time we will be taking expert depositions. We will have the reports in time for depositions and I we don’t need them before then. I doubt it will have any effect on pretrial or trial preparation. There is nothing I would do with your reports now, even if I had them. Expert depositions are at least two months away. Mark

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

Document 121

Filed 05/07/2008

Page 42 of 88

From: Eugene D. Lee [mailto:elee@LOEL.com] Sent: Thursday, May 01, 2008 5:47 PM To: mwasser@markwasser.com Subject: RE: Expert disclosures

Mark,    I’m thinking about it. This is not a simple issue. A stip on delaying disclosure of expert reports has ramifications for the  rebuttal expert designation deadline (June 4). And the discovery cutoff is only two months away (July 7). What you’re  proposing is not that simple – it compresses everything. Plaintiff has a lot of depos still left to conduct.     Also, ultimately, I question whether we could stip to this without Wanger’s blessing.    What kind of a delay do you have in mind? How long? That would be helpful.     

Sincerely, Gene Lee
  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE
LAW

LEE

EMPLOYMENT

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : elee@LOEL.com W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

         
2

OPP000026

From: Mark Wasser [mailto:mwasser@markwasser.com] Sent: Thursday, May 01, 2008 5:43 PM To: elee@LOEL.com Subject: RE: Expert disclosures

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

Document 121

Filed 05/07/2008

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I know what it says, Gene. That is why I quoted the language about “otherwise stipulated” in my last e-mail. I take it from this that you are saying no my request that we agree to postpone the exchange of reports for a short time until we can complete more discovery?

From: Eugene D. Lee [mailto:elee@LOEL.com] Sent: Thursday, May 01, 2008 5:29 PM To: mwasser@markwasser.com Subject: RE: Expert disclosures

Mark,    Take a look at Rule 26   

USCS Fed Rules Civ Proc R 26 (2) Disclosure of Expert Testimony. (A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. (B) Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report--prepared and signed by the witness--if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the data or other information considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous ten years; (v) a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. 
 

Sincerely, Gene Lee
  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE
LAW

LEE

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : elee@LOEL.com W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

EMPLOYMENT

  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.
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OPP000027

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

Document 121
 

Filed 05/07/2008

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From: Mark Wasser [mailto:mwasser@markwasser.com] Sent: Thursday, May 01, 2008 5:03 PM To: elee@LOEL.com Subject: RE: Expert disclosures Gene, We are not proposing a postponement of the disclosure itself. Only the reports. For example, our economist has virtually nothing to go on. He has asked us for some information which we will get via discovery. Until we have completed more discovery, there is no basis for rendering any definitive opinions. I think someone in Wanger’s chambers goofed with the May 5 date, frankly. It is over 180 days before trial. That is too early. 90 days is typical. We can probably start exchanging reports in a month or so. But, we cannot do it now. And, as I wrote, we do not expect you to, either. Mark

From: Eugene D. Lee [mailto:elee@LOEL.com] Sent: Thursday, May 01, 2008 4:56 PM To: mwasser@markwasser.com Subject: RE: Expert disclosures

Mark,    We’ve had over 8 months of discovery in this action. Only 2 months remain. Let me think about this and get back to you.  In any case, what you propose is a variation on Judge Wanger’s Scheduling Order and I believe it would in any case  require a stipulation and order signed by Judge Wanger. As you know, in his last order granting continuation of the trial  and other dates, he wrote in bold that no further continuances would be granted. I think he was making clear that we  shouldn’t come to him for any more requests for extensions.   

Sincerely, Gene Lee
  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE
LAW

LEE

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : elee@LOEL.com W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

EMPLOYMENT

  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
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4

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From: Mark Wasser [mailto:mwasser@markwasser.com] Sent: Thursday, May 01, 2008 4:21 PM To: Eugene Lee Subject: Expert disclosures Gene, The new schedule we have from the Court designates May 5 as the date for disclosure of experts. As you know, discovery does not close until July 7. Trial is not until December. Rule 26 contemplates disclosure of expert reports at least 90 days before trial. We are over 180 days away from trial now. It is too early to disclose expert reports and our experts cannot complete meaningful reports until discovery is closer to completion. Thus, we cannot disclose reports or final conclusions yet. We do not expect you to disclose them, either. I suggest we disclose names and other available information, like CVs and rates and subject of testimony, but defer disclosure of reports until meaningful reports can be prepared. Mark

Law Offices of Mark A. Wasser
400 Capitol Mall, Suite 1100 Sacramento, California 95814 Office: 916-444-6400 Fax: 916-444-6405 E-mail: mwasser@markwasser.com

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

Document 121

Filed 05/07/2008

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EXHIBIT 7

Case 1:07-cv-00026-OWW-TAG Eugene D. Lee
From: Sent: To: Subject: Gene,

Document 121

Filed 05/07/2008

Page 47 of 88

Mark Wasser [mwasser@markwasser.com] Friday, May 02, 2008 11:23 AM elee@LOEL.com RE: Continuance of expert deadlines/DME

Another thought. So that we do not have your expert reports before you have ours, I suggest you might want to hold onto you reports and not disclose them until our motion for partial relief from the scheduling order is resolved. If the Court gives us a new disclosure date, we can disclose them then and you will not be prejudiced by our experts having had your reports while they prepare their own. You might want to consider this. Mark

From: Eugene D. Lee [mailto:elee@LOEL.com] Sent: Friday, May 02, 2008 10:16 AM To: mwasser@markwasser.com Subject: RE: Continuance of expert deadlines/DME

Mark,    I already explained the prejudice to plaintiff.     We’re bumping up against a lot of deadlines now. June 4 for supplemental expert designation, July 7 discovery cutoff,  August 4 dispositive motion filing deadline. Just as a for instance, if we take depos of experts after July 7 as you suggest,  the delay in getting the depo transcripts will cause problems in terms of filing dispositive motions by August 4. What  you’re proposing will compress the entire pre‐trial schedule for plaintiff and the only fair relief will be a continuance of  all pre‐trial deadlines, which plaintiff is not able to agree to. Plaintiff already agreed to your request for a 3 month  continuance.    Reports are the critical element in Rule 26 expert disclosure. In my view, they’re practically synonymous. You’ve had  more than 9 months of discovery to get your expert reports ready. Plaintiff is ready and able to meet the deadline.  You’ve waited until just a few days prior to the expert designation deadline to propose a delay. That’s unfortunate but I  don’t see how that is plaintiff’s problem.    And perhaps most importantly, Judge Wanger has made it crystal clear that no further extensions will be granted. I’m  not about to go re‐jiggering the trial schedule set by Judge Wanger. In my view, your asking him to do so is ill‐advised.   

Sincerely, Gene Lee
  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE
LAW

LEE

EMPLOYMENT

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : elee@LOEL.com W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com   1

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  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Document 121

Filed 05/07/2008

Page 48 of 88

This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

         
From: Mark Wasser [mailto:mwasser@markwasser.com] Sent: Friday, May 02, 2008 9:58 AM To: elee@LOEL.com Subject: RE: Continuance of expert deadlines/DME Gene, I think I have no alternative but to request partial relief from the scheduling order. I will not request an extension of the disclosure of experts, just an extension of the requirement to deliver reports. We cannot prepare reports now, given the state of discovery. Again, I cannot imagine any prejudice but, if you won’t agree, you won’t agree. Mark

From: Eugene D. Lee [mailto:elee@LOEL.com] Sent: Thursday, May 01, 2008 10:54 PM To: mwasser@markwasser.com Subject: Continuance of expert deadlines/DME

Mark,    First, I do not have any recollection whatsoever of your delaying the defense mental exam because of Dr. Jadwin’s  surgery. Dr. Jadwin’s surgery became an issue only in relation to the setting of his deposition and nothing else. Dr.  Jadwin’s deposition was held on March 11/12, 2008. What I do recall is that, beginning January 22, 2008 and repeatedly  thereafter,  I asked you for further details regarding the scope of the defense mental exam, type of tests to be  performed, etc., and never received them. To date, I still have not received them.    Plaintiff previously agreed to defendants’ request for a 3 month continuance of pre‐trial and trial dates in order to  accommodate KMC’s logistical difficulties in gathering and producing documents. Judge Wanger has made it very clear  that no further extensions would be granted. In any case, after giving your request much thought, Plaintiff cannot agree  to yet another stipulation by defendant for a 1 month continuance on expert deadlines.   

Sincerely, Gene Lee
  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE
LAW

LEE

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 2

EMPLOYMENT

OPP000031

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

Document 121 F a x : ( 2 1 3 ) 5 9 6 - 0 4 8 7 Filed E - m a i l : elee@LOEL.com W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

05/07/2008

Page 49 of 88

  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

         
From: Mark Wasser [mailto:mwasser@markwasser.com] Sent: Thursday, May 01, 2008 6:02 PM To: elee@LOEL.com Subject: RE: Expert disclosures Gene, I do not think it will affect disclosure of supplemental experts although it might affect the timing of their reports. We can do it without compressing discovery. We need to depose experts anyway and they are likely to be the last depositions. I am willing to stipulate that we can take expert depositions after the cut-off of normal discovery. We could easily accommodate a short time after July 7 for expert depositions. I am not saying we have to do that, only that I am open to it. As far as how long I would like to postpone the exchange of expert reports, it may depend on the expert. For example, we need to do the IME on Dr. Jadwin. I have the information you have requested about the scope of examination, etc. and will get that to you next week. As soon as we can set that, I will know how long it will take for the examining physician to render his report. I delayed setting that, you will recall, because you had told me Dr. Jadwin was going to have surgery. I think if we delayed disclosure of the reports for about a month, it would be enough. Supplemental reports could be delayed a month, too. That would put us at about the time we will be taking expert depositions. We will have the reports in time for depositions and I we don’t need them before then. I doubt it will have any effect on pretrial or trial preparation. There is nothing I would do with your reports now, even if I had them. Expert depositions are at least two months away. Mark

From: Eugene D. Lee [mailto:elee@LOEL.com] Sent: Thursday, May 01, 2008 5:47 PM To: mwasser@markwasser.com Subject: RE: Expert disclosures

Mark,    I’m thinking about it. This is not a simple issue. A stip on delaying disclosure of expert reports has ramifications for the  rebuttal expert designation deadline (June 4). And the discovery cutoff is only two months away (July 7). What you’re  proposing is not that simple – it compresses everything. Plaintiff has a lot of depos still left to conduct.     Also, ultimately, I question whether we could stip to this without Wanger’s blessing.    What kind of a delay do you have in mind? How long? That would be helpful.     

Sincerely,
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Case 1:07-cv-00026-OWW-TAG Gene Lee
 

Document 121

Filed 05/07/2008

Page 50 of 88

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE
LAW

LEE

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : elee@LOEL.com W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

EMPLOYMENT

  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

         
From: Mark Wasser [mailto:mwasser@markwasser.com] Sent: Thursday, May 01, 2008 5:43 PM To: elee@LOEL.com Subject: RE: Expert disclosures I know what it says, Gene. That is why I quoted the language about “otherwise stipulated” in my last e-mail. I take it from this that you are saying no my request that we agree to postpone the exchange of reports for a short time until we can complete more discovery?

From: Eugene D. Lee [mailto:elee@LOEL.com] Sent: Thursday, May 01, 2008 5:29 PM To: mwasser@markwasser.com Subject: RE: Expert disclosures

Mark,    Take a look at Rule 26   

USCS Fed Rules Civ Proc R 26 (2) Disclosure of Expert Testimony. (A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. (B) Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report--prepared and signed by the witness--if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the data or other information considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them;
4

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Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 51 of 88 (iv) the witness's qualifications, including a list of all publications authored in the previous ten years; (v) a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. 
 

Sincerely, Gene Lee
  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE
LAW

LEE

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : elee@LOEL.com W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

EMPLOYMENT

  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

         
From: Mark Wasser [mailto:mwasser@markwasser.com] Sent: Thursday, May 01, 2008 5:03 PM To: elee@LOEL.com Subject: RE: Expert disclosures Gene, We are not proposing a postponement of the disclosure itself. Only the reports. For example, our economist has virtually nothing to go on. He has asked us for some information which we will get via discovery. Until we have completed more discovery, there is no basis for rendering any definitive opinions. I think someone in Wanger’s chambers goofed with the May 5 date, frankly. It is over 180 days before trial. That is too early. 90 days is typical. We can probably start exchanging reports in a month or so. But, we cannot do it now. And, as I wrote, we do not expect you to, either. Mark

From: Eugene D. Lee [mailto:elee@LOEL.com] Sent: Thursday, May 01, 2008 4:56 PM To: mwasser@markwasser.com Subject: RE: Expert disclosures

Mark,    We’ve had over 8 months of discovery in this action. Only 2 months remain. Let me think about this and get back to you.  In any case, what you propose is a variation on Judge Wanger’s Scheduling Order and I believe it would in any case  require a stipulation and order signed by Judge Wanger. As you know, in his last order granting continuation of the trial 
5

OPP000034

and other dates, he wrote in bold that no further continuances would be granted. I think he was making clear that we  shouldn’t come to him for any more requests for extensions.   

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

Document 121

Filed 05/07/2008

Page 52 of 88

Sincerely, Gene Lee
  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE
LAW

LEE

EMPLOYMENT

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : elee@LOEL.com W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

         
From: Mark Wasser [mailto:mwasser@markwasser.com] Sent: Thursday, May 01, 2008 4:21 PM To: Eugene Lee Subject: Expert disclosures Gene, The new schedule we have from the Court designates May 5 as the date for disclosure of experts. As you know, discovery does not close until July 7. Trial is not until December. Rule 26 contemplates disclosure of expert reports at least 90 days before trial. We are over 180 days away from trial now. It is too early to disclose expert reports and our experts cannot complete meaningful reports until discovery is closer to completion. Thus, we cannot disclose reports or final conclusions yet. We do not expect you to disclose them, either. I suggest we disclose names and other available information, like CVs and rates and subject of testimony, but defer disclosure of reports until meaningful reports can be prepared. Mark

Law Offices of Mark A. Wasser
400 Capitol Mall, Suite 1100 Sacramento, California 95814 Office: 916-444-6400 Fax: 916-444-6405 E-mail: mwasser@markwasser.com

6

OPP000035

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

Document 121

Filed 05/07/2008

Page 53 of 88

EXHIBIT 8

Case 1:07-cv-00026-OWW-TAG Eugene D. Lee
From: Sent: To: Subject: Gene,

Document 121

Filed 05/07/2008

Page 54 of 88

Mark Wasser [mwasser@markwasser.com] Friday, May 02, 2008 5:59 PM elee@LOEL.com RE: Psychiatric evaluation of Dr. Jadwin

Dr. Jadwin’s mental condition is being examined. That is the scope of the interviews. The psychiatrist will be present. You can have whatever he does because all of his work will be discoverable. He says he needs two visits. I will send you a stipulation. Mark

From: Eugene D. Lee [mailto:elee@LOEL.com] Sent: Friday, May 02, 2008 5:48 PM To: mwasser@markwasser.com Subject: RE: Psychiatric evaluation of Dr. Jadwin

Mark,    Under Rule 35, we’re entitled to know the what condition is being examined, the scope of the oral interviews, who will  be present, whether we’ll be receiving a copy of the raw data and a report of the exam setting out in detail its findings,  including diagnoses, conclusions, as soon as they are available, etc. Also, is there any reason that the examination  cannot occur in a single visit?    If you have a stipulation in mind, I’d like to take a look at it.    In the meantime, I’ll speak with Dr. Jadwin re available dates.   

Sincerely, Gene Lee
  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE
LAW

LEE

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : elee@LOEL.com W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

EMPLOYMENT

  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

     
1

OPP000036

   

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

Document 121

Filed 05/07/2008

Page 55 of 88

From: Mark Wasser [mailto:mwasser@markwasser.com] Sent: Friday, May 02, 2008 4:28 PM To: Eugene Lee Cc: Karen Barnes Subject: Psychiatric evaluation of Dr. Jadwin Gene, We want to have Dr. Jadwin examined by Dr. Robert Burchuk, a psychiatrist in Woodland Hills. The evaluation will consist of two, 4-hour sessions on two different days. The sessions will be oral interviews and will not involve any testing. If any tests are to be administered to Dr. Jadwin, they will be done separately and only after separate arrangements are made with you. Burchuk is at 6320 Canoga Avenue, Suite 1500, Woodland Hills. Could you please give me some dates when Dr. Jadwin is available? Thank you. Mark

Law Offices of Mark A. Wasser
400 Capitol Mall, Suite 1100 Sacramento, California 95814 Office: 916-444-6400 Fax: 916-444-6405 E-mail: mwasser@markwasser.com

2

OPP000037

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

Document 121

Filed 05/07/2008

Page 56 of 88

EXHIBIT 9

Case 1:07-cv-00026-OWW-TAG Eugene D. Lee
From: Sent: To: Subject: Fine, Gene. Whatever.

Document 121

Filed 05/07/2008

Page 57 of 88

Mark Wasser [mwasser@markwasser.com] Monday, May 05, 2008 10:48 AM elee@LOEL.com RE: Continuance of expert deadlines/DME

From: Eugene D. Lee [mailto:elee@LOEL.com] Sent: Monday, May 05, 2008 10:42 AM To: mwasser@markwasser.com Subject: RE: Continuance of expert deadlines/DME

Mark,    I did NOT say I agreed to forego filing the supplemental complaint. I said I would think about it. Please do not suggest I  have committed to things I have not. Second, it is not an amended but supplemented complaint, supplemented to  reflect the fact of KMC’s non‐renewal of Dr. Jadwin’s contract on October 4, 2007. When I spoke to you, the  supplemental complaint was already done and I told you so. All I’m requesting is your stipulation. If you don’t want to  give it, that’s fine…and I hasten to add typical of your conduct in this action. We’ll file a motion. The motion is utterly  unnecessary and I see no reasonable basis for your refusal to stipulate, but that is your choice. The consequence will be  unnecessarily increased statutory attorney fees and costs.   

Sincerely, Gene Lee
  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE
LAW

LEE

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : elee@LOEL.com W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

EMPLOYMENT

  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

         
From: Mark Wasser [mailto:mwasser@markwasser.com] Sent: Monday, May 05, 2008 8:30 AM To: elee@LOEL.com Subject: RE: Continuance of expert deadlines/DME
1

OPP000038

Gene,

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

Document 121

Filed 05/07/2008

Page 58 of 88

Our motion will be submitted to whomever the Clerk directs it to. We simply file it. Neither you nor I control that. Regarding the complaint, this is another example why we do not work together. We discussed that at our meet and confer session before the Perez depo. I told you I did not think it was a necessary amendment and you said you agreed. Pleadings do not need to be amended endlessly. I assumed the issue was resolved. Now, out of the blue, here it is again. Sorry. No thanks. If you want to file another supplemental complaint, bring a motion. For all I know you will be amending the complaint up to trial. The pleadings are done. Mark

From: Eugene D. Lee [mailto:elee@LOEL.com] Sent: Sunday, May 04, 2008 5:29 PM To: mwasser@markwasser.com Subject: RE: Continuance of expert deadlines/DME

Mark,    We’ll be pleased to stip to shortened time (giving Plaintiff 1 week for opposition and waiving Defendants’ reply)  provided 1) you are submitting the motion to Judge Wanger, whose scheduling order you are seeking relief from, and 2)  you sign the stipulation for leave for plaintiff to file the Third Supplemental Complaint, which I sent you on April 17 (see  attached) and regarding which I have not heard from you since.    I look forward to hearing from you.   

Sincerely, Gene Lee
  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE
LAW

LEE

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : elee@LOEL.com W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

EMPLOYMENT

  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

         
From: Mark Wasser [mailto:mwasser@markwasser.com] Sent: Sunday, May 04, 2008 12:07 PM To: elee@LOEL.com Subject: RE: Continuance of expert deadlines/DME
2

OPP000039

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

Document 121

Filed 05/07/2008

Page 59 of 88

We are filing a motion for partial relief from the scheduling order as I explained. We are also going to request that the motion be heard on shortened time. Will you stipulate to shortened time? I will waive my reply. I have in mind a week for opposition and then it will be deemed ready for hearing. Let me know so I can put in my declaration that we met and conferred. Thanks. Mark

OPP000040

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

Document 121

Filed 05/07/2008

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EXHIBIT 10

Case 1:07-cv-00026-OWW-TAG Document 121 Case 1:07-cv-00026-OWW-TAG Document 120

Filed 05/07/2008 Page 61 of 4 Filed 05/05/2008 Page 1 88

1 2 3 4 5 6 7 8 9 10

Eugene D. Lee SB#: 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: elee@LOEL.com Attorneys for Plaintiff DAVID F. JADWIN, D.O.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA DAVID F. JADWIN, D.O., Plaintiff, v. COUNTY OF KERN, et al., Civil Action No. 1:07-cv-00026 OWW TAG PLAINTIFF’S DESIGNATION OF EXPERT WITNESSES [F.R.C.P. Rule 26] Date Action Filed: January 6, 2007 Date Set for Trial: December 3, 2008

11 12 Defendants. 13 14 TO THE CLERK OF THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF 15 RECORD: 16 Plaintiff hereby gives notice that plaintiff has fully complied with Rule 26 in all respects by this 17 day serving the following on defendants with respect to its expert witnesses – Dr. Anthony E. Reading, 18 Ms.Stephanie Rizzardi, Ms. Regina Levison and Dr Lawrence Weiss: (i) Opinion reports; (ii) Sources of 19 information; (iii) Exhibits; (iv) CVs, including lists of all publications authored in the previous 10 years; 20 (v) Lists of all cases in which, during the previous 4 years, the witness testified; and (vi) Fee schedules. 21 A copy of the certificate of service and mail receipt are attached hereto as Exhibit A. 22 Respectfully submitted, 23 Executed on: May 5, 2008 24 /s/ Eugene D. Lee 25 26 27 28 DECLARATION OF EUGENE D. LEE IN SUPPORT OF DECLARATION re: INABILITY TO SECURE COOPERATION TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION FOR PROTECTIVE ORDER 1
OPP000041

LAW OFFICE OF EUGENE LEE

EUGENE D. LEE Attorney for Plaintiff, David F. Jadwin

Case 1:07-cv-00026-OWW-TAG Document 121 Case 1:07-cv-00026-OWW-TAG Document 120

Filed 05/07/2008 Page 62 of 4 Filed 05/05/2008 Page 2 88

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT A DECLARATION OF EUGENE D. LEE IN SUPPORT OF DECLARATION re: INABILITY TO SECURE COOPERATION TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION FOR PROTECTIVE ORDER 2
OPP000042

Case 1:07-cv-00026-OWW-TAG Document 121 Case 1:07-cv-00026-OWW-TAG Document 120

Filed 05/07/2008 Page 63 of 4 Filed 05/05/2008 Page 3 88

1 2 3 4 5 6 7 8

CERTIFICATE OF SERVICE I, the undersigned, hereby declare: I am a resident of Los Angeles in the State of California. I am over the age of 18 and not a party to the action described herein. I am employed in the County of Los Angeles, California. My business address is LAW OFFICE OF EUGENE LEE, 555 West Fifth Street, Suite 3100, Los Angeles, CA 90013. On the date of execution of this DOCUMENT, I served the following: PLAINTIFF’S RULE 26 EXPERT DESIGNATIONS, INCLUDING OPINION REPORTS, CV’S, FEE SCHEDULES, LISTS OF PUBLICATIONS, ETC., FOR DR. ANTHONY E. READING, MS.STEPHANIE RIZZARDI, MS. REGINA LEVISON AND DR LAWRENCE WEISS on the following parties in this action by and through their attorneys addressed as follows:

9 10 11 12 13 14 15 16 17 18 19 Executed on May 5, 2008, at Los Angeles, California. 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE
OPP000043

Mark A. Wasser LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 Fax: (916) 444-6405 Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith and William Roy BY UNITED STATES MAIL: I enclosed the DOCUMENT(s) listed above in a sealed envelope with postage thereon fully prepaid, addressed to the PERSON(s) listed above, and deposited the sealed envelope with the United States Postal Service at Los Angeles, California. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. FEDERAL: I declare under penalty of perjury under the laws of the United States of America that the above is true and correct and that I took said actions at the direction of a licensed attorney authorized to practice before this Federal Court.

Eugene D. Lee

(Domestic Case 1:07-cv-00026-OWW-TAG Mail Only; No Insurance Coverage Provided) Case 1:07-cv-00026-OWW-TAG Document 121 Document 120 Filed 05/07/2008 Page 64 of 4 Filed 05/05/2008 Page 4 88 U1
<0

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U.S. Postal Servicem CERTIFIED MAILu" RECEIPT

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OPP000044

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

Document 121

Filed 05/07/2008

Page 65 of 88

EXHIBIT 11

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

Document 121 Document 116

Filed 05/07/2008 Filed 05/05/2008

Page 66of 23 Page 1 of 88

1 2 3 4

Mark A. Wasser CA SB #060160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 Phone: 6) 444-6400 444-6405

UNITED STATES DISTRICT

20
21 22 23 24 25 26 27 28
-1-

Defendants may use the following persons to present evidence at trial under Rules 702, 703 or 705 ofthe Federal Rules of Evidence: 1. Robert Burchuk, M.D., 6320 Canoga Ave., Suite 1500, Woodland Hills,

California 91367.

DEFENDANTS' LIST OF EXPERT WITNESSES

OPP000045

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

Document 121 Document 116

Filed 05/07/2008 Filed 05/05/2008

Page 67of 23 Page 2 of 88

1
2 3

Dr. Burchuk will conduct a mental and psychiatric examination of Plaintiff and will provide opinion testimony on Plaintiff s mental and psychiatric condition and prognosis and the extent to which Plaintiffs condition and prognosis are related to his employment at KMC. Burchuk's rate
IS
a",,",a""

tes1tIml:.my is $350 Hurctmk cannot cOlnpllete

att,lcrled as

i_"',"UHJ'H

1

Rick A. Sarkasian 4 15 6

Valley Rehabilitation Services,

545 East

SaJrkaslan will ex,unme Pla-intifftrom a vocational assess Pla.intitr

pel~sp'ectlve

21 22 23 24 25
26

Respectfully submitted, Dated: May 5, 2008 LAW OFFICES OF MARK A. WASSER

By:

lsi Mark A. Wasser
Mark A. Wasser Attorney for Defendants, County of Kern, et a1.

27 28
-2-

DEFENDANTS' LIST OF EXPERT WITNESSES

OPP000046

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

Document 121 Document 116

Filed 05/07/2008 Filed 05/05/2008

Page 68of 23 Page 3 of 88

EXHIBIT A

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Document 121 Document 116

Filed 05/07/2008 Filed 05/05/2008

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CURRICULUM VITAE

ROBERT BURCHUK, M.D.

Ave. Woodland Hills, California 91367
'V

",avE,"

Pri"~t'"

Practice

Forensic

1J"'J('hl~tt·V

Washington University Medical Center, July 1985-June 1986. PGY-V Fellow, UCLA/San Fernando Valley Forensic Psychiatry Fellowship, Los Angeles, CA, July 2006- June 2007 Licensure and Certification: State of California, Board of Medical Quality Assurance License Number G62596, April 1988 Diplomate, National Board of Medical Examiners Certificate Number 256443, July 1983 Diplomate, American Board of Psychiatry and Neurology Certificate Number 29390, November 1987

OPP000048

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Document 121 Document 116

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Managed Carel

Health Plan Experience:

August 200l-February 2006: Vice President and Corporate Medical DiJrecltor, PacifiCare Hpll::lVl0r::l1 corpOl'ate wide NlemCal Management and Quality Improvement. nUf,U.H 2002 February 2003: WI~"tl'rn Kegw,n Nledlcal Director 2002: Western Region Medical DiI'ector, PacifiCare Behavioral

AA"UUJlL

March 1998-May 2001: Medical Director, One Health Plan of California, Inc, Medical Director llct~nst~d in in and Great-

Plan of Califc1rnia, product Los Angeles and Orange County; Medical Director for Behavioral Health, Statewide; interim Medical Director for Medicare HMO product, statewide, FebruarySeptember, 1997 including preparation for successful HCFA audit.

November 1991-November 1996: Regional Consulting Psychiatrist, Prudential HealthCare Plan of California, Inc, Utilization review, quality improvement, provider network development, benefits design and marketing input. March-November 1991: Physician Advisor, American PsychManagement of California, Inc, (now Value/Options). Utilization review and first level appeals of inpatient and outpatient psychiatric treatment.

2

OPP000049

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Document 121 Document 116

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NCQA

Snl'ViPl10r~

1996-2005

Northridge, California. Adult and adolescent psychiatry, including mp'atlt:nt, outpatient and '-'VA1"U'UHIVH and at No'rthl:id~~e HCISpttal Medical '-''-'ue.....
Ifl1:i1JflinJ

1991-December 1991:

subcontractor services to Medical Psychiatrists including: inpatient services at Charter Hospital of Long Beach and the Geropsychiatric Institute at Los Alamitos Medical Center; consultation to patients at St. Mary's Medical Center and Pioneer Hospital; outpatient treatment.

Full-Time Faculty
Experience:
July 1986-June 1988:

Assistant Professor, Department of Psychiatry and Behavioral Sciences, George Washington University Medical Center. Medical Director, Psychiatric Day Treatment Program, George Washington University Medical Center.
Presentations:

"Treatment Planning in Managed Care" at Biological Aspects of Mental Disorders, A Practical Guide for Psychotherapists, Southern California Psychiatric Society, May 1993.

3

OPP000050

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"Health Plan - Provider Relations: A Critical Factor in Quality Care" at Managed Mental Healthcare Global Business Research, New Orleans, December 1994. "Use DSM IV with Maina/sect Seminars, The DSM IV: Nmlemlber 1994. at Advancement and Overview,

Treatment Behavioral Panel Healthcare Tomorrow, San Francisco, September 1996.

and Care: Medical Behavioral Health Care Delivery. " Co-presenter at California Association for Healthcare Quality, 2005 Spring Conference

232.
Professional Organization Memberships:

American Psychiatric Association, Distinguished Fellow Southern California Psychiatric Society, President-elect, 2008-2009, Councilor, 1995-8, Member Managed Care and Fund Raising Committees, 1995-6; Public Affairs Committee; Co-Chair 1996-7; Chair 1997-8 and 2004-5; Chair Managed Care Committee 2003present; candidate for President elect, 2008 (unopposed) American Academy of Psychiatry and the Law

4

OPP000051

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EXHIBITB

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Vita JULIE B. OLSON-BUCHANAN

Oct., 1992

Ph.D, Industrial/Organizational Psychology Illinois at Urbana-Champaign Split Minor: Social and Quantitative Psychology. Dissertation Title: Voicing Discontent: What /-I!:I,nnt:,nc

Grievance

University of Illinois at Urbana-Champaign Honors Thesis Title: Performance Appraisal: A Cognitive

LJnt~rn'''l'h

Management, California State University, Fresno

Business

Undergraduate Courses Taught: The Staffing of Organizations (HRM 153) Compensation Administration (HRM 153) Seminar in Human Resource Management (HRM 159) Junior Honors Seminar (CSB 184) Senior Honors Seminar I (CSB 185) and II (CSB 186) Administration and Organizational Behavior (MGT 110

OPP000053

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

Document 116 121

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Page 10 of 23 75 88

Graduate Courses: Managing Human Capital (MBA 240) International Strategic Human Resource Management (MBA 289T) Uoint venture with Burgundy School of Business, France) Faculty I-ellow. 2000-2006

California State University, Fresno

Compensation Administration (HRM 153) Resource Management Seminar in Behavioral Management 1 -1 uitrne!rlt & Selection Research

159)

PUBLICA TIONS

Olson-Buchanan, J. B. & Boswell, W. R. (2008). Mistreatment in the workplace: Prevention and Resolution. Oxford: Blackwell-Wiley Publishing. Olson-Buchanan, J. B. & Boswell, W. R. (2008). An integrative model of experiencing and responding to mistreatment at work. Academy of Management Review. 33 (1), Boswell, W. R. & Olson-Buchanan, J. B. (2007) Correlates and consequences of being tied to an "electronic leash." Journal of Management, 33, 592-610. Van Dyk, A., Chaffe-Stengle, P, Sanchez, R. J., & Olson-Buchanan, J. B. (2007). The role of language fluency in organizational commitment and perceived organizational support. Journal of Foodservice Business Research.

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Olson-Buchanan, J. B. (2007). Employee Grievance Systems. In S. Rogelberg's (Ed) Encyclopedia of Industrial and Organizational Psychology. SAGE Publications. Olson-Buchanan, J.B., & Boswell, W.R. (2007). Dispute resolution system design. In C.K.W. De Dreu, & M.J. Gelfand's (Eds.), The Psychology of Conflict and Conflict Management in Organizations. SlOP Series, Erlbaum PUblishing. J., & Schmidtke, J.

a
Olson-Buchanan, J. B. & Boswell, W. R. (2006). Blurring boundaries: Correlates of

Demographic Factors. Journal of Business Ethics, 60 (4), 341-358. ,& J. at The role of grievance-filing, nature of mistreatment, and employee withdrawal. Academy of (1), 129-1

Olson-Buchanan, J. B. (2001) Computer-based assessment: Advances and challenges. In F. Drasgow and N. Schmitt (Eds.) Advances in Measurement and Data Analysis. SlOP Frontiers Series. Jossey-Bass. Richman, W. L., Olson-Buchanan, J. B., & Drasgow, F. (2000). Examining the Impact of Administration Medium on Examinee Perceptions and Attitudes. Journal of Applied Psychology, 85 (6), 880-887. Drasgow, F. & Olson-Buchanan, J. B. (1999). Innovations in Computerized Assessment. Edited book. Lawrence Erlbaum Publishers. Olson-Buchanan, J. B. & Drasgow, F. (1999). Beyond bells and whistles: An introduction to computerized assessment. In F. Drasgow and J. B. Olson-Buchanan (Eds.) Innovations in Computerized Assessment, pp 1-6. Drasgow, F., & Olson-Buchanan, J. B. (1999). Blood, sweat, and tears: Some final

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comments on computerized assessment. In F. Drasgow and J. B. Olson-Buchanan (Eds.) Innovation in Computerized Assessment, pp 249-254. Drasgow, ,Olson-Buchanan, J. B., & Moberg, P. J. (1999) Development of interactive video assessments. In Drasgow and J. B. Olson-Buchanan (Eds.) Innovations in Computerized J., Mead, ,& Assessment, pp 177-196. Olson-Buchanan, J. ,Drasgow, ,Moberg, Keenan, P. A., (1998). The Conflict Resolution Skills Assessment: Model-Based, Multi-Media Measurement. Personnel Psychology, §1, 1-24.

Human Resources Management, JAI Press. L. (1992). performance appraisal. Journal of Vocational Behavior, 40, 49-61.

J.

,&

errors

Organizational Psychology, San Francisco, Ca. Olson-Buchanan, J. B. (2007, April). Panelist in SlOP Organizational Frontiers Volume: nd Conflict in Organizations. Symposium presented at the 22 annual meeting of the Society for Industrial and Organizational Psychology, New York, NY. Olson-Buchanan, J. B. (2007, April). Panelist in Why Use SJTs for Training and nd Development? Roundtable at the 22 annual meeting of the Society for Industrial and Organizational Psychology, New York, NY Olson-Buchanan, J. B. & Boswell, W. R. (2006, July). Experiencing and Voicing Mistreatment at Work: Opportunities for Positive Consequences. In C.K.W. de Dreu & Lourdes Mundate's The Dangers and 0rportunities of Organizational Conflict within and Across t Culture. Invited paper at the 26 International Congress of Applied Psychology. Athens, Greece. Olson-Buchanan, J. B. (2006, May). Panelist in SlOP Organizational Frontiers Series: Situational Judgment Tests -Theory, Measurement, and Applications. Symposium presented at st the 21 annual meeting of the Society for Industrial and Organizational Psychology, Dallas,TX. Schmidtke, J. M., Rechner, P. L., Olson-Buchanan, J. B. & Sanchez, R. J. (2006, May).

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The Effects of Feedback and Leadership on Virtual Performance. Paper presented at the 21 st annual meeting of the Society for Industrial and Organizational Psychology, Dallas,TX. Sanchez, R J., Olson-Buchanan, J. B., Rechner, P. L., & Schmidtke, J. M. (2006, May). Multiple-Perspective Taking in Team-Member Exchange in a Virtual Environment. Paper st presented at the 21 annual meeting of the Society for Industrial and Organizational Psychology, Dallas, TX. Lopez, Y. ,Rechner, L., Sundaramurthy, C., & Olson-Buchanan, J. B. (2005, August). Enhancing Ethical Perceptions: Impact of Integrated Ethics Curriculum vs a Stand Alone Ethics Course.

Presented at the 19 Annual Conference of the Society for Industrial and Organizational Psychology. Sanchez, J., J. L., J. The Effects of Dispositional Trust and Team-member Exchange in the Virtual Environment. Paper presented at the annual meeting of the Academy of Management, Seattle, WA. S("'!,mirlt~~t:> J. J. , & Sanchez, Process I\JI<:lttt:>lrc I\Il..,n.."no'"Y"Iont Seattle,

th

the Influence Business Education, Awareness: An Empirical Assessment Demographic Factors. Paper presented at Academy of Management, Denver, CO. Olson-Buchanan, J. B. & Boswell, W. R (August, 2001). Voicing Discontent: The Role of Employee Loyalty and informality. Academy of Management Conference, Washington, D.C. Boswell, W. R & Olson-Buchanan (2001). International Association for Conflict Management Conference, Paris, France. Boswell, W. R, Olson-Buchanan, J. B., Cavanaugh, M. (2000). (August, 2000) Investigation of the Relationship Between Work-Related Stress and Work Outcomes: The Role of Felt-Challenge, Psychological Strain, and Job Control. Paper presented at the Academy of Management Conference, Toronto, Canada. Richman, W. L., Olson-Buchanan, J. B., Drasgow, F., & McEvoy, J. (April, 1998). Does Medium of Administration Matter? In F. Drasgow's (Chair) New Developments in Computerized Assessment for the Workplace. Symposium conducted at the 1998 Society for Industrial and Organizational Psychology Conference, Dallas, Texas. O'Connor, K. M. & Olson-Buchanan, J. B. (June, 1997). Intragroup Conflict and Task Performance: The Mediating Role of Conflict Management Strategy. Paper presented at the

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1997 Annual Conference for the International Association for Conflict Management, Bonn, Germany. Olson-Buchanan, J. B. (June, 1996). To grieve or not to grieve? Factors related to voicing discontent in an organizational simulation. Paper presented at the 1996 Annual Conference for the International Association for Conflict Management, Cornell University, NY. Olson-Buchanan, J. B., Drasgow, F., Moberg, P. M., & Donovan, M. (April. 1996). interactive Video Assessment of Conflict Resolutions Skills. Paper presented at the 1996 Society Industrial and Organizational Psychology Conference, San Diego, CA , & 1 !!::lli2~.Q!J!:illm~~.I1!§!j~m

Olson, J. (1993). Grievance System Research in Field Studies: To err is human, but is to grieve divine? Symposium conducted at the 1993 conference of the International Association Conflict Management, Brussels, Belgium. Olson, J. B. (1993). Laboratory Research on Grievance Systems: Is it worth the sacrifice? Symposium conducted at the 1993 conference of the International Association for Management, Brussels, Belgium. J. (1993). =.:.:;==-=.:J.:.=.:..=....;:.:..:....:::.:...=L::::==..:.=.:...-=-:.:...:....=.;===.:...:..~:.:..:.::..=.:.::::..:..:.:::.:. post-appeal consequences

Management, Minneapolis, J. (1992, May). Dyer, P.J., Desmarais, L.B., Midkiff, K.R., Colihan, J.P. & Olson, Designing a multimedia test: Understanding the organizational charge, building the team and making the basic research commitments. In P.J. Dyer's (Chair) Computer-based multimedia testing: Merging technology, reality and scientific uncertainty. Symposium conducted at the 1992 Society for Industrial and Organizational Psychology Conference, Montreal, Quebec. Olson, J. B. & Keenan, P. A, (1991, June). Assessing administrative decision making skills. In F. Drasgow (Chair), Compas: A computerized assessment system. Symposium conducted at the meeting of the International Personnel Management Association Assessment Council, Chicago. Keenan, P. A, & Olson, J. B. (1991, June) Assessment of conflict management skills. In F. Drasgow (Chair), Compas: A computerized assessment system. Symposium conducted at the meeting of the International Personnel Management Association Assessment Council, Chicago. Olson, J. B. & Hulin, C. L., & Hubert, L. J. (1991). Performance appraisal: An information processing approach to rating errors. Paper presented at the 1991 Society for Industrial and Organizational Psychology Conference, St. Louis, Missouri. Olson, J. B. & Keenan, P. A (1991, April). A computerized in-basket test of administrative

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decision making. In F. Drasgow (Chair), Multi-Media computerized assessment of individuals. Symposium conducted at the 1991 Society for Industrial and Organizational Psychology Conference, St. Louis, Missouri. Keenan, P. A., & Olson, J. B. (1991, April). A model-based multi-media technique for Multi-Media computerized assessing conflict management skills. In F. Drasgow (Chair), Industrial assessment of individuals. Symposium conducted at the 1991 Society Organizational Psychology Conference, St. Louis, Missouri.

Best Papers Proceedings, Academy of Management, 2001 Laval Award for Faculty Research Craig School of Business, California State

1998

Best Paper Award, 1992 Award for the best paper in the Organizational Conflict track at the 1992 International Association of Conflict Management Conference. Janet Tritsch Memorial Award recipient, 1987 Award for the most outstanding research paper in Psychology submitted by an undergraduate, University of Illinois.

OTHER PROFESSIONAL CONTRIBUTIONS
Editorial Board, Journal of Management, 2008-2010 Conference Chair, 2008-2010 Society for Industrial and Organizational Psychology, 2007-2008 Committee Member, Strategic Program Planning Subcommittee Society for Industrial and Organizational Psychology, 2002- Present

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Committee Member, Future Conference Programming Task Force Society for Industrial and Organizational Psychology, 2006-2007 Committee Member, Strategic Planning, Membership Cluster Society for Industrial and Organizational Psychology, 2006 Past Program Chair Society for fndllstnAf Program Chair Society for IndllstnAf

Society for Industrial and Organizational Psychology, Spring 2006

(1997-2000) Society for Industrial and Organizational Psychology Awards Committee (1993 to 1995) Academy of Management (Conflict Division), Conference Reviewer (1996-1998)

OTHER ACADEMIC HONORS

Bronze Tablet (Top 2 % of graduating class, University of Illinois) Phi Beta Kappa (National Honor Society) Golden Key Honor Society (National Honor Society) Psi Chi (Psychology Honor Society) Alpha Lambda Delta (Freshman Honorary) Phi Kappa Phi (Faculty induction) Beta Gamma Sigma (Business Honor Society, Honorary membership)
UNIVERSITY AND COMMUNITY SERVICE

Department Committeesl Service Human Resource Collegiate Competition, Coach (1992 - 2006) Coached to two 1sl place National Championships (2001; 2005)

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Chair, Mentor Committee, Dr. Rudy Sanchez (2001-2005) Assessment Coordinator, HRM, 2001-2003 Undergraduate HRM Coordinator, 2001-present Reighard Selection Committee (2000 - Present) Chair, Lecturer Search & Review Committee (1998 - 2003) Society Resource Management, (1992 Won top chapter merit award, 1998-2001 'nrY'n"\ittQQ (1999 - 2000)

Chair, Craig School of Business & Psychology Department Task Force (1998 - 2000) Task Force, 2000 & Beyond (1999 - 2000) Student Affairs Committee (1993- Spring, 1997, 1998-2000) CSB Honors Program Taskforce (Fall, 1996 - Spring, 1998) CSB Reaccreditation Taskforce (Spring, 1995 to 1998) 1996

Group Interviews, 1997 Graduate School Information Night, 1994, 1995, & 1996 BAC Mentor Program Participant Graduate Equity Fellowship / MAGIC Program Mentor SOBAS Research Colloquium (1992 - 1993)

University Service
Personnel Committee, Fall, 2006 - Present RFP Review Committee, Fall 2007 (for new teaching evaluation system) Co-Chair, University Strategic Plan Taskforce, Employees & Workplace Development University Honors Council (1998 - 2005) Employee Assistance & Development Council (1996 - 2001) Employee Assistance & Development Executive Council (1998 - 2001) Professional Development Committee (1992 - 1997) Blue Ribbon Committee on the Teacher-Scholar Model, (Spring, 1995 to Fall, 1995) Provost's Committee on Teaching Excellence (1994-1995)

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Mentoring Task Force (Professional Development Subcommittee, Spring, 1994) Extended Education Advisory Committee ("Contemporary Issues and Concerns in Human Resource Management") (1993) University Promotion Campaign Participant (1998 & 2000) Community Service Community Food Bank (Second Harvest) Formed partnership with local food bank to provide am'iM)es & rell'ISF,!G

Co-leader, Golden Valley Girl Scout Council (August, 2004 - Present) Troop 551

2006)

PA,rfnlrmJ=!nr'A

Appraisal

Regional Jobs Initiative Training Performance Appraisal Fairness in Management Community Medical Centers Fairness in Management MuniServices Fairness in Management Superior Court of California, County of Fresno Fairness in Management

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Expert Witness

Keathley v. Sanofi-Aventis Pharmaceuticals, Case no. 05CECG03747 Depositions & trial testimony regarding workplace retaliation for whistleblowing and voicing mistreatment

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EXHIBITC

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RICKY ALAN SARKISIAN,
Alluvial Avenue, Suite FresnoJ 93720-2826 Telephone: (559) 439-8000

Rehabilitation Counselor, Fresno Community Hospital, Rehabilitation Center, Fresno, CA. Provided diagnostic and counseling services to disabled and non-disabled patients (February, 1975 to December, 1975). School CouQselor, California State University, Student Health Services, Fresno, CA. Provided individual and group counseling to university students in medical setting (September, 1973 to January, 1975). Vocational Counselor, State of California, Employment Development Department, Fresno, CA. AssIsted vocational clients with occupational choice change, or adjustment. Some supervisory responsibilities, placement interviewing and job development. (september, 1969 to September, 1972).

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Monterey Sacramento

Ventura

06/01/06

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VALLEY REHABILITATION SERVICES, INC.
545 Ensl Alluvia! Avenue, Suite 116, Fresno, CA 93120-2826
4.j'~-U'''! 8

Travel Time

$ ZOO/hr,

$ 350/hr.

than a notice depositions, trial£ imd mo.tters, a caru~ejl1ation be applied based on the time reserved.
Preparation, travel time and any expenses incurred for depositions will be billed to the retaining attorney per C.C.P. Section 2034(1).
Half-day ($1,800) or full.day ($3,600) charges may be billed to the retaining attorney depending 011 the deposition location.

Payment for all services will be the sole responsibility of the retaining attorney or law ftrm. All invoices al'e due and payable on receipt. Payment of any unpaid balance is due prior to deposition and trial
appeanlnecs, including expected fees for preparation and travel.

Make checks payable to "Vaney Rehabilitation Services, Inc:'
03122107

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