121 KC Ex Parte R26 Relief - DFJ Opp

8/14/2019 121 KC Ex Parte R26 Relief - DFJ Opp

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PLAINTIFFS OPPOSITION TO DEFENDANTS APPLICATION FOR ORDER SHORTENING TIME

RE MOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5, 2008 1

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Eugene D. Lee SB# 236812LAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, California 90013Telephone: (213) 992-3299

Facsimile: (213) 596-0487Email: [email protected]

Attorneys for PlaintiffDAVID F. JADWIN, D.O.

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DAVID F. JADWIN, D.O.,

Plaintiff,

v.

COUNTY OF KERN; et al.

Defendants

Case No. 1:07-cv-00026-OWW-TAG

PLAINTIFFS OPPOSITION TODEFENDANTS EX PARTE APPLICATIONFOR ORDER SHORTENING TIMERE MOTION FOR PERMISSION TOSERVE EXPERT REPORTS AFTER MAY 5,2008

Date Action Filed: January 6, 2007Date Set for Trial: December 3, 2008

Plaintiff David F. Jadwin, D.O., respectfully submits this memorandum in opposition to

defendants ex parte application for order shortening time re motion for permission to serve expert

reports after May 5, 2008.

I. BACKGROUNDThe Scheduling Order issued by this Court on May 31, 2007 (Doc. 29), states:

The parties are directed to disclose all expert witnesses, in writing, on or beforeFebruary 4, 2008. . . . The parties will comply with the provisions of Federal Rule ofCivil 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

Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 1 of 88


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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 forcontinued effective treatment of Plaintiffs depression, anxiety, insomnia, andemotional distress, Plaintiffs treating psychiatrists/psychologists shall not be required toproduce their actual treatment notes, but instead shall produce a summary of theirtreatment of Plaintiffs depression and emotional distress, including their diagnoses andprognoses, and the basis for their opinion, including raw data of any psychologicaltesting. Plaintiff is willing to undergo psychological examination by Defendantsqualified expert pursuant to Federal Rule of Civil Procedure Rule 34 subject to astipulation regarding the timing and scope of the examination, including the specifictests to be performed, and prompt production of the subsequent report and raw datasupporting 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

continuing to receive psychiatric treatment for depression and emotional distress, and the parties had in

fact entered into a stipulation for a Rule 35 defense psychological examination.

On November 14, 2007, roughly 3.5 months into discovery, Defendants asked plaintiff to agree

to a 3-month continuance of all deadlines in the Scheduling Order in order to accommodate difficulties

defendants were experiencing gathering and producing documents. Plaintiff reluctantly agreed to a

stipulation, which defendants submitted to the Court for approval. See Exhibit 2. The Court granted

defendants request for 3-month continuance by Order issued on November 17, 2007. See Exhibit 3. In

that Order, the Court set the new deadline for expert disclosure as May 5, 2008, 3 months after the

original deadline of February 4, 2008. The Court also wrote in bolded letters No further continuances

will be granted (oww).

On January 22, 2008, defendants sent an email to plaintiff stating Defendants want Dr. Jadwin

to be evaluated by independent medical examiners as to his medical and psychiatric conditions.

Plaintiff replied that same day, requesting the kinds of tests to be conducted and the scope of

examination. See Exhibit 4. Plaintiff never received a response.

On March 25, 2008, defendants sent an email stating we want to set Dr. Jadwins independent

medical exam. Plaintiff replied that same day, again requesting the kinds of tests to be conducted, the

scope of examination and the name of the examining psychiatrist. See Exhibit 5. Plaintiff never received



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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 Wangers chambers goofed with the May 5 date, frankly. It is over180 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 haverequested about the scope of examination, etc. and will get that to you next week. Assoon as we can set that, I will know how long it will take for the examining physician torender 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

First, I do not have any recollection whatsoever of your delaying the defense mentalexam because of Dr. Jadwins surgery. Dr. Jadwins surgery became an issue only inrelation to the setting of his deposition and nothing else. Dr. Jadwins deposition was

held on March 11/12, 2008. What I do recall is that, beginning January 22, 2008 andrepeatedly thereafter, I asked you for further details regarding the scope of the defensemental exam, type of tests to be performed, etc., and never received them. To date, I stillhave not received them. Plaintiff previously agreed to defendants request for a 3 monthcontinuance of pretrial and trial dates in order to accommodate KMCs logisticaldifficulties in gathering and producing documents. Judge Wanger has made it very clearthat no further extensions would be granted. In any case, after giving your request muchthought, Plaintiff cannot agree to yet another stipulation by defendant for a 1 monthcontinuance on expert deadlines.(See Exhibit 6.)

On May 2, 2008, defendants sent an email to plaintiff inviting plaintiff to hold onto you [expert]

reports and not disclose them until our motion for partial relief from the scheduling order is resolved.

Plaintiff responded, Plaintiff intends to adhere to Judge Wangers trial schedule. See Exhibit 7.

Also on May 2, defendants finally provided plaintiff with the details of the requested defense

psychological examination of plaintiff. Defendants stated:

We want to have Dr. Jadwin examined by Dr. Robert Burchuk, a psychiatrist inWoodland Hills. The evaluation will consist of two, 4-hour sessions on two different



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days. The sessions will be oral interviews and will not involve any testing. If any testsare to be administered to Dr. Jadwin, they will be done separately and only after separatearrangements are made with you.(See Exhibit 8).

Plaintiff replied that same day, asking defendants to send over a draft stipulation. To date, plaintiff hasnot received such draft.

On May 5, 2008, defendants asked plaintiff to stipulate to shortened time to hear a motion for

partial relief from the scheduling order. Plaintiff replied that he would so stipulate, provided defendants

agreed to (1) submit their motion to Judge Wanger, not Magistrate Judge Goldner, as defendants were

requesting a variance to the Scheduling Order, and (2) stipulate to permit plaintiff to file a supplemental

(not amended) complaint, a draft of which plaintiff had sent to defendants on April 17, 2008, but to

which plaintiff had never gotten a response. Defendants refused both of plaintiffs requests. See Exhibit

9.

On May 5, 2008, the deadline set by the Court for expert disclosure pursuant to Rule 26(a)(2),

plaintiff served on defendants his disclosures of expert witnesses in full compliance therewith. Plaintiff

fully disclosed the written opinion reports, credentials, publications, testimony history, fee schedules,

and other required information for four expert witnesses. See Exhibit 10.

Also on May 5, defendants filed a Notice of Designation with the Court, purporting to comply

with Rule 26(a)(2). See Exhibit 11. However, the Notice of Designation did not comply with Rule

26(a)(2) in that it did not include any written opinion reports, nor the list of cases in which Dr. Burchuk

(forensic psychiatrist) and Dr. Sarkasian (vocational rehabilitation) had testified in, nor a list of

publications authored by Dr. Sarkasian during the past 10 years. The disclosures of the fee schedules for

Drs. Burchuk and Olson-Buchanan (behavioral specialist) were also incomplete.

Also on May 5, defendants filed the instant ex parte application to shorten time.

II.ARGUMENT

A. Defendants Request Is Disfavored Because Defendants Waited until the Day of theDeadline

Local Rule 6-144 of this Court states:

Counsel shall seek to obtain a necessary extension from the Court or from other counselor 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 orother 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. SeeMission 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 SubstantialJustification for That

In Shumaker v. West, the Southern District of West Virginia observed that

The deadlines relating to expert disclosures and the requisites provided in Rule 26regarding 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 expertwitness and the expert's report, an opposing party cannot properly prepare its case orrebut 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 aparty's medical expert to be unprepared at time of designation does not comport with theneeds of litigation or common sense.(2008 U.S. Dist. LEXIS 6149 (E.D. Cal. Jan. 15, 2008).

InMinnard, 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 suchan interview prior to the deposition of plaintiff's expert. Plaintiff had been deposed butdid not testify to any mental health treatment up to that point. However, when plaintiffactually 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 thatit would need the Rule 35 exam. Nevertheless, plaintiff did not testify in hisdeposition to medical treatment for emotional problems, rendering the need for a Rule35 exam much less obvious. At the time just prior to plaintiff's designation of experts inlater October 2007, the litigation landscape appeared to indicate that plaintiff's emotionaldistress claims were no more than the ordinary, temporary shock occurring on thehappening 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.

Discovery has been ongoing for over 9 months, with less than 2 months of discovery remaining.

Defendants have already had the benefit of asking for and receiving a 3-month continuance on all

deadlines in this action. Defendants have also long had all the information necessary to determine

whether and what kind of expert testimony was required. There is simply no excuse for their failure to

have their expert reports ready by the deadline.

For instance, defendants knew as early as the Rule 26(f) conference of January 8, 2007 that a

psychological examination of plaintiff may be necessary. Both the Scheduling Order and the Joint

Scheduling Report noted that plaintiff was undergoing continuing therapy for depression hence the

stipulation that plaintiff would not be producing his treaters psychotherapy notes to defendants and

also contained the parties express stipulation to a psychological examination by defendants. On March

11, 2008, plaintiff served a Rule 26 supplemental disclosure on defendants which included a declaration

by plaintiffs current therapist (Bates Nos. DFJ02615 DFJ02631). In that declaration, the therapist

stated: Since Dr. Jadwin has been under my care, he has clearly been able to maintain some



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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 plaintiffs 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) plaintiffs startup business fails

completely in which case plaintiff takes on contract pathologist work and 2) plaintiffs startup business

succeeds, eventually replacing his lost income completely.

As for defendants 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 plaintiffs 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, plaintiffs 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 ReportDisclosure Is Granted, Plaintiff Will Be Prejudiced

The Courts Order granting defendants 3-month continuance stated in bolded letters: No

further continuances will be granted (oww). Plaintiff has taken great pains to observe the Courts

trial schedule and was successful in fully complying with the expert designation deadline.

If defendants request for a 1-month continuance on expert report disclosure is granted, the

remaining pre-trial schedule will become compressed, with various deadlines running into each other in

a cascading effect. Perhaps plaintiffs email to defendants sums up the prejudice to plaintiff best:



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Were bumping up against a lot of deadlines now. June 4 for supplemental expertdesignation, July 7 discovery cutoff, August 4 dispositive motion filing deadline. Just asa for instance, if we take depos of experts after July 7 as you suggest, the delay ingetting the depo transcripts will cause problems in terms of filing dispositive motions byAugust 4. What youre proposing will compress the entire pretrial schedule for plaintiff

and the only fair relief will be a continuance of all pre

trial deadlines, which plaintiff isnot 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, theyrepractically synonymous. Youve had more than 9 months of discovery to get your expertreports ready. Plaintiff is ready and able to meet the deadline. Youve waited until just afew days prior to the expert designation deadline to propose a delay. Thats unfortunatebut I dont see how that is plaintiffs problem. And perhaps most importantly, JudgeWanger has made it crystal clear that no further extensions will be granted. Im notabout to go rejiggering the trial schedule set by Judge Wanger. In my view, your askinghim to do so is illadvised.See Exhibit 7.

III.CONCLUSIONDefendants suggest discovery is not nearly complete, that plaintiff has announced his intention to

take as many as 20 more depositions. (Doc. 118, 2:18-19). They insist defendants must know the

theories plaintiff is pursuing before their experts can complete their reports, that the plaintiff has done

little to develop any evidence to support the allegations in his complaint and have focused their

depositions instead on defendants affirmative defenses. (Ibid. at 2:19-22).

If defendants are unaware of plaintiffs theories, it is solely because they have been dilatory.

They have not propounded a single set of written discovery. They have conducted the deposition only of

plaintiff himself. Apparently, they have not carefully read plaintiffs Second Supplemental Complaint

(Doc. 30), which lays out plaintiffs claims and allegations in excruciating detail spanning 52 pages.

It should be noted that defendants suggestion that plaintiff has been dilatory in conducting

depositions is baseless. While plaintiff is indeed holding off deposing the defendants and main witnesses

until the last two months of discovery, plaintiff does so for good cause. On December 21, 2007, plaintiff

filed with the Court a motion to compel production of documents in response to plaintiffs requests for

production, set one. Plaintiff had served those requests on defendants on October 11, 2007. In response,

Defendants chose to withhold numerous critical documents based upon objections of, among other

things, state-based peer review and personnel privacy privilege, even with respect to plaintiffs federal

law causes of action. After extensive briefing by plaintiff on this important issue of the applicability of

state-based privileges to federal law causes of action, Magistrate Judge Theresa Goldner heard the



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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 defendants 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 defendants request, reasoning as follows:

On or around August 22, 2000, Defendant requested that Plaintiff agree to anexamination by Dr. Manges. When Plaintiff refused, Defendant filed the instant Motionon August 31, 2000. On or around September 6, 2000, Defendant served his expertdisclosures pursuant to Rule 26(a)(2)(B), disclosing Dr. Manges as an expert, but did notattach 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 Rule26 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 complywith the Rule, Defendant should have sought to obtain the medical examination, whichhe 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.

Plaintiff requested the requisite details of defendants requested psychological exam since January 22,

2008, but only just recently did defendants finally give plaintiff this information. Moreover, defendants

ex parte motion represents the first instance of plaintiffs ever hearing of defendants desire to conduct a

vocational exam on plaintiff. There has been no prior mention of it to plaintiff whatsoever.

Plaintiff respectfully requests that the Court deny defendants ex parte request for relief from the

May 5, 2008 expert designation deadline, and further rule that defendants are not permitted to conduct a

psychological, vocational, or any other exam on plaintiff.

Respectfully submitted on May 7, 2008.

/s/ Eugene D. Lee SB# 236812LAW OFFICE OF EUGENE LEE



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555 West Fifth Street, Suite 3100Los Angeles, California 90013Telephone: (213) 992-3299Facsimile: (213) 596-0487Email: [email protected]

Attorneys for Plaintiff DAVID F. JADWIN, D.O.



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EXHIBIT 1



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1

Eugene D. Lee

From: Mark Wasser [[email protected]]Sent: Monday, May 21, 2007 5:18 PMTo: Eugene Lee; Joan HerringtonCc: Karen Barnes; MARK NATIONSSubject: draft Joint Scheduling Order 5.21.07 - BlacklineAttachments: draft Joint Scheduling Order 5.21.07 - Blackline.doc

Gene,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 viewthem as unnecessary. This Report is the product of our joint conference. It does not matter that we have changed thedates 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 myopposition. I do not want to give that up by appearing to agree that they need to be brought now.Mark

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JOINT SCHEDULING REPORT PURSUANT TO FRCP 26(f) 1

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Eugene D. Lee SB# 236812 Mark A. Wasser SB# 060160LAW OFFICE OF EUGENE LEE LAW OFFICES OF MARK WASSER555 West Fifth Street, Suite 3100 400 Capitol Mall Ste 1100Los Angeles, California 90013 Sacramento, California 95814Phone: (213) 992-3299 Phone: (916) 444-6400Fax: (213) 596-0487 Fax: (916) 444-6405email: [email protected] E-mail: [email protected] for PlaintiffDAVID F. JADWIN, D.O. Bernard C. Barmann, Sr. SB# 060508

KERN COUNTY COUNSELMark Nations, Chief Deputy1115 Truxton Avenue, Fourth FloorBakersfield, California 93301Phone: (661) 868-3800Fax: (661) 868-3805E-mail: [email protected]

Attorneys for Defendants COUNTY OF KERN,PETER BRYAN, IRWIN HARRIS, EUGENE

KERCHER, JENNIFER ABRAHAM, SCOTTRAGLAND, TONI SMITH and WILLIAM ROY


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: May 31, 2007Time: 8:45 a.m.Location: Courtroom 3Judge: Hon. Oliver W. Wanger

Date Action Filed: January 6, 2007Date Set for Trial: None

[PLAINTIFFS ATTORNEY REQUESTSTELEPHONIC APPEARANCE]

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD AND THE HONORABLE COURT:

Pursuant to Rule 26(f) of the Federal Rules of Civil Procedure and the Courts Order Setting

Mandatory Scheduling Conference entered on January 8, 2007, all parties to the above-entitled action

hereby submit this Joint Scheduling Report for the Mandatory Scheduling Conference currently set for

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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. Plaintiffs 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. Plaintiffs 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 employees right to medical leave and retaliation

for an employees 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

1 All statutory references are to California Codes unless otherwise specified.

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

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 Plaintiffs 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, Plaintiffs 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 Plaintiffs 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 KMCs 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 Plaintiffs

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prior review.

Based on the foregoing, each of the parties hereby stipulates to the filing of the others

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 Plaintiffs employment, Defendant Kern County has continuously

been an employer within the meaning of FMLA [29 C.F.R. 825.105(C)], CFRA [Govt Code

12945.2(b)(2)] FEHA [Govt 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 Plaintiffs

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,

2000.

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 Plaintiffs 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.Plaintiffs 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 Plaintiffs

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 Plaintiffs 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 Plaintiffs employment agreement to reduce

Plaintiffs base compensation.

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

23.Plaintiff returned to work as a 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 Plaintiffs

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 Plaintiffs 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. Govt 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. Govt Code 12945.1, et seq., entitling

Plaintiff to damages for violation of CFRA Rights.

7. Whether Defendant Kern County violated Cal. Govt. Code 12940(a) entitling Plaintiff to

damages for disability discrimination.

8. Whether Defendant Kern County violated Cal. Govt 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. Govt 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 COURTThere 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 Plaintiffs 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

(Plaintiffs 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 PLANAt the Rule 26(f) conference, the parties tentatively agreed on the below dates. However, following theconference, it became apparent over the course of the parties numerous meet and confer discussionsthat Plaintiff will need to file a Motion to Strike at least two of Defendants affirmative defenses (SeeSection V supra). Given that the defenses at issue remain uncertain, and therefore the scope of discoveryalso remains indefinite, the parties propose the following delayed schedule in order to accommodatePlaintiffs pending Motion to Strike.

A. Rule 26(a)(1) Initial Disclosure Deadline

[August 46, 2007].

B. Discovery Subjects, Deadlines, Limitations, Phasing, Etc.

1. Expert Deadlines

Expert Disclosure Deadline: [February 34, 2008]

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Supplemental Expert Disclosure Deadline: [February 1718, 2008]

2. Discovery Deadlines

Non-Expert: [February 34, 2008]

Expert: [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)

KMCs 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 Roys,

Harriss and Does 1 through 10s defamation of Plaintiff and Defendant Countys ratification thereof.

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

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

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 Plaintiffs chairmanship,

the circumstances of and reasons for Plaintiffs 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 Plaintiffs depression, anxiety, insomnia, and emotional distress, Plaintiffs

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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 Plaintiffs 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 Defendantss request; provided, however, that no single day of Plaintiffs

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 DATESAt 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 Plaintiffs pending Motion to Strike.

A. Pre-Trial Motions

1. Non-Dispositive Motions

Filing Deadline: [May 35, 2008]

Heard no later than: [June 4, 2008]

2. Dispositive Motions

Filing Deadline: [June 2, 2008]

Heard no later than: [August 6, 2008]

B. Pre-Trial Conference

1. Settlement Conference: [April 15, 2008]

2. Pre-Trial Conference: [October 43, 2008]

C. Trial

Trial Date: [November 23, 2008]

VIII. SETTLEMENTThe 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 JURYPlaintiff has requested a jury trial on all possible issues and claims.

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X. ESTIMATE OF NUMBER OF TRIAL DAYS REQUIREDThe parties estimate that trial will take 12-15 days.

XI. BIFURCATION OF TRIALNeither party anticipates the need for bifurcation.

XII. RELATED MATTERSThe parties are unaware of any related matters pending in this Court or any other court, including

any bankruptcy court.

RESPECTFULLY SUBMITTED on May 24, 2007.

/s/ Eugene D. LeeLAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, California 90013Phone: (213) 992-3299Fax: (213) 596-0487email: [email protected]

Attorney for Plaintiff DAVID F. JADWIN, D.O.

/s/ Mark A. Wasser, Calif. SB# 060160LAW OFFICES OF MARK WASSER400 Capitol Mall, Ste. 1100Sacramento, California 95814Phone: (916) 444-6400Fax: (916) 444-6405E-mail: [email protected] for DefendantsCOUNTY OF KERN, PETER BRYAN, IRWIN HARRIS,

EUGENE KERCHER, JENNIFER ABRAHAM, SCOTTRAGLAND, TONI SMITH and WILLIAM ROY

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Eugene D. Lee

From: Eugene D. Lee [[email protected]]Sent: Wednesday, November 14, 2007 11:30 AMTo: '[email protected]'Cc: 'Joan Herrington'Subject: Jadwin/KC: Stip Extension & Depo location

Mark,

In followup to our RPD1 meet and confer call of this morning, well agree to a three (3) month extension on trial,discovery cutoff, expert disclosure, dispositive & non-dispositive motion cutoffs and other deadlines as set forth inthe Scheduling Order in order to accommodate your clients doc production time requirements. Please let us reviewthe stip you draft before you file it. As we discussed, any discussion we have had thus far of production deadlines iscontingent upon Judge Wanger signing the stip in the form agreed to.

Regarding the deposition location, wed like to hold the Dec 4,5,6 depos at our court reporters office for now. Butat the time of the Dec 4-6 depos, Joan and I wondered whether we would be permitted to physically access andview 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 bepossible. Also, please let us know whether KMC will permit Dr. Jadwin onto the premises to attend any depos thatmight be held at that conference room as well as the exact location/address of the conference room.

Well send a more extensive meet and confer followup letter shortly.

Sincerely,

Gene Lee

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

L A W O F F I C E O F E U G E N E L E E

E M P L O Y M E N T L A W

555 WE S T F I F T H S T ., S T E . 3100L O S AN G E L E S , CA 90013

T e l : ( 2 1 3 ) 9 9 2 - 3 2 9 9F a x : ( 2 1 3 ) 5 9 6 - 0 4 8 7E - m a i l : [email protected]

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 thistransmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

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Eugene D. Lee

From: Mark Wasser [[email protected]]Sent: Wednesday, November 14, 2007 5:15 PMTo: Eugene Lee; Joan HerringtonSubject: Stipulation To continue trial and pre-trial dates 11.14.07Attachments: Stipulation To continue trial and pre-trial dates 11.14.07.doc

Gene and Joan,Here is a draft stipulation for your review.Mark

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STIPULATION TO CONTINUE TRIAL AND PRE-TRIAL DATES AND ORDER

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Mark A. Wasser CA SB #060160LAW OFFICES OF MARK A. WASSER400 Capitol Mall, Suite 1100Sacramento, CA 95814Phone: (916) 444-6400Fax: (916) 444-6405

E-mail: [email protected] C. Barman, Sr.KERN COUNTY COUNSELMark Nations, Chief Deputy1115 Truxtun Avenue, Fourth FloorBakersfield, CA 93301Phone: (661) 868-3800Fax: (661) 868-3805E-mail: [email protected]

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# 236812LAW OFFICES OF EUGENE LEE555West Fifth Street, Suite 3100Los Angeles, CA 90013Phone: (213) 992-3299Fax: (213) 596-0487E-mail: [email protected]

Joan Herrington SB# 178988BAY AREA EMPLOYMENT LAW OFFICE5032 Woodminister LaneOakland, CA 94602Phone: (510) 530-4078

Fax: (510) 530-4725E-mail:[email protected] Counsel to LAW OFFICE OF EUGENE LEE

Attorneys for PlaintiffDAVID F. JADWIN, D.O.


EASTERN DISTRICT OF CALIFORNIA

DAVID F. JADWIN, D.O.

Plaintiff,

vs.

COUNTY OF KERN, et al.,

Defendants.

))

))))))))

Case No.: 1:07-cv-00026 OWW TAG

STIPULATION TO CONTINUE TRIALAND PRE-TRIAL DATES AND ORDER

Complaint Filed: January 5, 2007Trial Date: August 26, 2008

Note: Dates on last page have been changed

PDF created with pdfFactory trial version www.pdffactory.com


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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 Plaintiffs 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. WasserMark A. WasserAttorney 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. LeeAttorney 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, non-dispositive motion cut-off and discovery be vacated and that new dates be set as follows:

Expert Disclosure: [May 5, 2008]Supplemental Expert Disclosure: [June 4, 2008]Discovery Cut-Off: [July 7, 2008]Non-Dispositive Motion Cut-Off: [July 21, 2008]Non-Dispositive Motion Hearing: [August 22, 2008]Dispositive Motion Cut-Off: [August 4, 2008]Dispositive Motion Hearing: [September 8, 2008]Settlement Conference: [May 7, 2008]Pre-Trial Conference: [October 14, 2008]

Trial : [December 3, 2008]

No further continuances will be granted (oww)

Dated: November 17 , 2007 UNITED STATES DISTRICT COURT

By:/s/ OLIVER W. WANGERThe Honorable Oliver W. Wanger

United States District Judge



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EXHIBIT 4



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Eugene D. Lee

From: Eugene D. Lee [[email protected]]Sent: Tuesday, January 22, 2008 11:13 AMTo: '[email protected]'Subject: Jadwin/KC: Medical ExamAttachments: Stipulation - Authenticating documents_071126.doc

Follow Up Flag: Follow upFlag Status: 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 conductedand the scope of the examinations. Also, Plaintiff has not claimed any physical injuries as a result of Defendantsacts so I dont believe Plaintiff would agree to a physical examination of any sort.

While were on the topic of stipulations, I have not heard a response from you regarding the proposed stipulationon 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

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From: Mark Wasser [mailto:[email protected]]Sent: Tuesday, January 22, 2008 9:56 AMTo: Eugene Lee

Subject:

Gene,

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

Mark

Law Offices of Mark A. Wasser400 Capitol Mall, Suite 1100

Sacramento, California 95814Office: 916-444-6400Fax: 916-444-6405E-mail: [email protected]

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Eugene D. Lee

From: Eugene D. Lee [[email protected]]Sent: Tuesday, March 25, 2008 11:27 AMTo: '[email protected]'Subject: DME / Perez Video

Mark,

Im 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 beperformed, etc.

Sincerely,

Gene Lee

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From: Mark Wasser [mailto:[email protected]]Sent: Tuesday, March 25, 2008 10:22 AMTo: 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. Jadwins independent medical exam. Would you like me to give you some dates to choosefrom?

Let me know.

Thanks.

Mark

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Law Offices of Mark A. Wasser400 Capitol Mall, Suite 1100Sacramento, California 95814Office: 916-444-6400Fax: 916-444-6405E-mail: [email protected]

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Eugene D. Lee

From: Eugene D. Lee [[email protected]]Sent: Thursday, May 01, 2008 10:54 PMTo: '[email protected]'Subject: Continuance of expert deadlines/DME

Mark,

First,IdonothaveanyrecollectionwhatsoeverofyourdelayingthedefensementalexambecauseofDr.Jadwins

surgery.Dr.Jadwinssurgerybecameanissueonlyinrelationtothesettingofhisdepositionandnothingelse.Dr.

JadwinsdepositionwasheldonMarch11/12,2008.WhatIdorecallisthat,beginningJanuary22,2008andrepeatedly

thereafter, Iaskedyouforfurtherdetailsregardingthescopeofthedefensementalexam,typeofteststobe

performed,etc.,andneverreceivedthem.Todate,Istillhavenotreceivedthem.

Plaintiffpreviouslyagreedtodefendantsrequestfora3monthcontinuanceofpretrialandtrialdatesinorderto

accommodateKMCslogisticaldifficultiesingatheringandproducingdocuments.JudgeWangerhasmadeitveryclear

thatnofurtherextensionswouldbegranted.Inanycase,aftergivingyourrequestmuchthought,Plaintiffcannotagree

toyetanotherstipulationbydefendantfora1monthcontinuanceonexpertdeadlines.

Sincerely,

Gene Lee

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From: Mark Wasser [mailto:[email protected]]Sent: Thursday, May 01, 2008 6:02 PMTo: [email protected]: 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 doit without compressing discovery. We need to depose experts anyway and they are likely to be the last depositions. I amwilling to stipulate that we can take expert depositions after the cut-off of normal discovery. We could easily

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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 toit.

As far as how long I would like to postpone the exchange of expert reports, it may depend on the expert. For example, weneed to do the IME on Dr. Jadwin. I have the information you have requested about the scope of examination, etc. andwill 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 torender 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 bedelayed a month, too. That would put us at about the time we will be taking expert depositions. We will have the reportsin time for depositions and I we dont 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:[email protected]]Sent: Thursday, May 01, 2008 5:47 PMTo: [email protected]: RE: Expert disclosures

Mark,

Imthinkingaboutit.Thisisnotasimpleissue.Astipondelayingdisclosureofexpertreportshasramificationsforthe

rebuttalexpertdesignationdeadline(June4).Andthediscoverycutoffisonlytwomonthsaway(July7).Whatyoure

proposingisnotthatsimpleitcompresseseverything.Plaintiffhasalotofdeposstilllefttoconduct.

Also,ultimately,IquestionwhetherwecouldstiptothiswithoutWangersblessing.

Whatkindofadelaydoyouhaveinmind?Howlong?Thatwouldbehelpful.

Sincerely,

Gene Lee

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From: Mark Wasser [mailto:[email protected]]Sent: Thursday, May 01, 2008 5:43 PMTo: [email protected]: 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 timeuntil we can complete more discovery?

From: Eugene D. Lee [mailto:[email protected]]Sent: Thursday, May 01, 2008 5:29 PMTo: [email protected]: RE: Expert disclosures

Mark,

TakealookatRule26

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

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From: Mark Wasser [mailto:[email protected]]

Sent: Thursday, May 01, 2008 5:03 PMTo: [email protected]: RE: Expert disclosures

Gene,

We are not proposing a postponement of the disclosure itself. Only the reports. For example, our economist has virtuallynothing to go on. He has asked us for some information which we will get via discovery. Until we have completed morediscovery, there is no basis for rendering any definitive opinions. I think someone in Wangers chambers goofed with theMay 5 date, frankly. It is over 180 days before trial. That is too early. 90 days is typical. We can probably startexchanging 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@