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151 DFJ Mx Compel Comply DME3 - Supp Decl EDL

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

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

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION DAVID F. JADWIN, D.O., Plaintiff, v. COUNTY OF KERN, et al., Defendants. Date: June 4, 2008 Time: 12:15 p.m. Place: U.S. District Court, Crtrm. 3 2500 Tulare St, Fresno, CA Complaint Filed: January 5, 2007 Trial Date: December 3, 2008 Civil Action No. 1:07-cv-00026 OWW TAG SUPPLEMENTAL DECLARATION OF EUGENE D. LEE IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL COMPLIANCE WITH COURT ORDER

The undersigned hereby declares: I, Eugene D. Lee, declare and say, as follows: 1. I am an attorney at law duly licensed to practice before the Federal and State Courts of

California and admitted to practice before the United States District Court for the Eastern District of California. I am the attorney representing Plaintiff David F. Jadwin in this matter. 2. I am making this supplemental declaration in support of Plaintiff David F. Jadwin, D.O.’s

motion to compel Defendants’ compliance with the Court’s Order. The facts stated herein are personally known to me and if called as a witness, I could and would competently testify to the truth of the facts set forth in this declaration. 3. Mr. Wasser states in his ex parte letter to the Court of June 2, 2008 (Doc. 146)(“Letter”):

USDC, ED Case No. 1:07-cv-00026 OWW TAG SUPPLEMENTAL DECLARATION OF EUGENE D. LEE IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL COMPLIANCE WITH COURT ORDER

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During the second session, Dr. Burchuk and Dr. Jadwin agreed the third, and last, session would be in Burchuk's office. Their statements to this effect are on the audiotape. Eugene Lee, Dr. Jadwin’s attorney acknowledged this to me in an e-mail on May 30 that quoted the audiotape. (emphasis added). This is not true. Following is what I had written in the May 30, 2008, email to Mr. Wasser: I spoke with Dr. Jadwin just now. He said he was NOT agreeing to the time and place. I suggest both you and Dr. Burchuck listen to the audio recording. Here is the transcript: “DR. BURCHUCK: So I’ll see you where we met last time. I think that’s set up for 10:00 a.m. on the 6th is - is the date in my head but EXAMINEE: It’s the 6th I think, yeah.” All I see is an agreement to the date, not the time and place. I have never “acknowledged” any agreement between Dr. Jadwin and Dr. Burchuk to have DME session

10 3 at Dr. Burchuk’s office. The opposite is true. 11 12 13 14 This is not true. 15 At no time have I refused, or threatened to refuse, to allow the DME to proceed. I attempted to 16 meet and confer in writing with Mr. Wasser but due to certain rudeness exhibited by Mr. Wasser I early 17 terminated the process and informed Mr. Wasser that I would be seeking a status conference with the 18 Court to resolve the matter. Meet and confer discussions between me and Mr. Wasser in this action have 19 largely been confined to written communications due to difficulties the parties have experienced 20 recollecting what exactly was said to each other. A review of the written meet and confer 21 communications, attached as exhibits to my initial declaration submitted in support of Plaintiff’s motion, 22 will corroborate the foregoing. 23 5. 24 25 26 Mr. Wasser has no foundation for this statement since he is not privy to the attorney-client 27 privileged communications between me and my client. He can not know what I have and have not 28
USDC, ED Case No. 1:07-cv-00026 OWW TAG SUPPLEMENTAL DECLARATION OF EUGENE D. LEE IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL COMPLIANCE WITH COURT ORDER

4.

Mr. Wasser states in the Letter:

Nevertheless, Mr. Lee is demanding that the last session be moved to Dr. Jadwin's office and is refusing to allow the examination to proceed unless the defendants agree.

Mr. Wasser states in the Letter:

Mr. Lee also apparently disclosed to Dr. Jadwin the nature of the T.O.M.M. test Dr. Burchuk intended to administer at the last session. Since the test is designed to identify malingering, its disclosure effectively destroys the test's usefulness.

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disclosed to my client regarding the T.O.M.M.. In fact, I have informed Dr. Jadwin that the parties have stipulated to his being subjected to the T.O.M.M., the “Test of Memory Malingering”. I was not able to convey anything more than that because this is the first time I have encountered the test and I know little about it beyond its name. Note, the full name of the test, “Test of Memory Malingering”, is disclosed in the Stipulation and Order regarding the DME (Doc. 135), which I have shown to my client. A true and correct copy of the Order is attached as Exhibit S1. 6. Mr. Wasser states in the Letter:

Dr. Burchuk concluded his e-mail by stating that he believed Mr. Lee's and Dr. Jadwin's behaviors “are unprofessional, unreasonable, and disrespectful to the examination process and to the court.” To date, I have had no contact whatsoever with Dr. Burchuk. I have yet to communicate with him in any form. I question what foundation Dr. Burchuk has to characterize my behavior in any way, let alone as “unprofessional, unreasonable, and disrespectful”. 7. Mr. Wasser states in the Letter:

Dr. Burchuk is concerned about the extent of Mr. Lee's interference in the exam and sent me an e-mail on Saturday, May 31 in which he wrote that he probably should not even bother with the T.O.M.M. test now. By telling Dr. Jadwin the nature of the test Dr. Burchuk believes Mr. Lee has essentially destroyed the validity of the test. There are warnings in the test's manual about the importance of not disclosing the test's name and purpose to the examinee. Besides never having exchanged any words with or met me, Dr. Burchuk is also not privy to the

18 attorney-client privileged communications between me and my client. He can not know what I have and 19 have not disclosed to my client regarding the T.O.M.M. I question what foundation Dr. Burchuk has to 20 allege I have “interfered” with the exam or “essentially destroyed the validity” of the T.O.M.M. test. 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28
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I declare under penalty of perjury under the laws of the State of California and of the United States that the foregoing is true and correct. Dated: June 3, 2008 LAW OFFICE OF EUGENE LEE

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USDC, ED Case No. 1:07-cv-00026 OWW TAG SUPPLEMENTAL DECLARATION OF EUGENE D. LEE IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL COMPLIANCE WITH COURT ORDER

By: ____________________________________ Eugene D. Lee Attorney for Defendant DAVID F. JADWIN, D.O.

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USDC, ED Case No. 1:07-cv-00026 OWW TAG SUPPLEMENTAL DECLARATION OF EUGENE D. LEE IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL COMPLIANCE WITH COURT ORDER

EXHIBIT S1

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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. CA SB #060508 KERN COUNTY COUNSEL Mark Nations, Chief Deputy CA SB #101838 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 Attorneys for Plaintiff DAVID F. JADWIN, D.O. UNITED STATES DISTRICT COURT

17 EASTERN DISTRICT OF CALIFORNIA 18 19 20 21 22 23 24 25 26 27 28 PURSUANT TO THE ORDER OF THE COURT, IT IS HEREBY STIPULATED by and between the parties through their respective counsel that Plaintiff, David F. Jadwin, shall submit to a mental and psychiatric examination by Dr. Robert Burchuk on Monday, May 19, 2008 from 10:00 a.m. to 2:00 p.m. and Thursday, May 29 from 1:00 p.m. to 5:00 p.m. in Dr. 1
STIPULATION RE EXAMINATION OF PLAINTIFF AND ORDER

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

) ) ) ) ) ) ) ) ) )

Case No.: 1:07-cv-26 STIPULATION RE: EXAMINATION OF PLAINTIFF AND ORDER

Complaint Filed: January 5, 2007 Trial Date: December 3, 2008

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Burchuk’s office at 23522 Califa Street, Woodland Hills, California. Dr. Burchuk’s telephone is 818-922-4900. The examination shall consist of an oral interview and evaluation and the administration of one Test of Memory Malingering (T.O.M.M.) test procedure. Dr. Burchuk and Dr. Jadwin may each record the examination by audio recording. Dr. Burchuk’s report and all supporting information, including T.O.M.M. raw test scores, shall be disclosed to Plaintiff by June 16, 2008. IT IS FURTHER STIPULATED that Plaintiff shall direct Dr. Anthony E. Reading and all other persons who performed or administered psychological or psychometric tests to David Jadwin to forward all raw test scores and data to David Allen, Atrium Psychological Group, 11500 Olympic Blvd., Suite 580, Los Angeles, California 90064 no later than May 23, 2008. Plaintiff shall not be required to submit to any evaluation or interview by Dr. Allen. Dr. Allen shall review and evaluate the raw test scores and data submitted from Dr. Reading and others, if any. IT IS FUTHER STIPULATED that Plaintiff shall submit to a vocational rehabilitation evaluation to be conducted by Rick Sarkasian, Ph.D. on Wednesday, May 28, 2008 at 10:00 a.m. in the offices of Atkinson Baker, 500 N. Brand Blvd, Third Floor, Glendale, California 91203, telephone 818-551-7300. Mr. Sarkasian’s report shall be disclosed to Plaintiff by June 16, 2008.

Dated: May 16, 2008

LAW OFFICES OF MARK A. WASSER By: /s/ Mark A. Wasser Mark A. Wasser Attorney for Defendants, County of Kern, et al.

Dated: May 16, 2008

LAW OFFICE OF EUGENE LEE By: /s/ Eugene D. Lee (as authorized on 5/16/08) Eugene D. Lee Attorney for Plaintiff, David F. Jadwin, D.O.

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STIPULATION RE EXAMINATION OF PLAINTIFF AND ORDER

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ORDER The parties having stipulated as hereinabove set forth and good cause appearing therefore; IT SO ORDERED. Dated: May 19, 2008 UNITED STATES DISTRICT COURT By: /s/ OLIVER W. WANGER The Honorable Oliver W. Wanger United States District Judge

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STIPULATION RE EXAMINATION OF PLAINTIFF AND ORDER

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