315 Defendants Pretrial Statement

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Case 1:07-cv-00026-OWW-DLB Document 315 Filed 04/17/2009 Page 1 of 7

I Mark A. Wasser CA SB #060160LAW OFFICES OFMARK A. WASSER2 400 Capitol Mall, Suite 2640Sacramento, CA 958143 Phone: (916) 444-6400Fax: (916) 444-64054 E-mail: mwasserlal.markwasser.com5 Attorneys for Defendants County ofKern, et al.

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIA

678910 DAVIn F. JADWIN, D.O. Case No.: 1:07-cv-00026-0WW-DLB1112 vs.

Plaintiff, DEFENDANTS' PRE-TRIALSTATEMENT13 COUNTY OF KERN,14 Defendant.151617

Date: April 20, 2009Time: 11 :00 a.m.Place: U.S. District Court, Courtroom 32500 Tulare Street, Fresno, CADate Action Filed: January 6, 2007Trial Date: May 12,2009

18 Defendants submit this Pre-Trial Statement, pursuant to Local Rule 16-281. Defendants19 anticipated filing a joint statement but Plaintiff broke off discussions and filed his own statement20 before the joint statement was prepared. Defendants did not receive a draft of a proposed joint21 statement from Plaintiffuntil 5:20 p.m., Thursday, April 16. Plaintiff's draft statement was 7222 pages long.23 1. Jurisdiction - Venue24 Defendants reserve the right to raise jurisdictional issues depending on the resolution of25 Plaintiff's federal claims.26 2. Jury Non-Jury27 Defendants demand a jury trial.28

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DEFENDANTS' PRE-TRIAL STATEMENT


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1 3. Undisputed Facts2 PlaintiffDavid F. Jadwin, D.O. (hereinafter referred to as "Plaintiff') and County of Kern3 (hereinafter referred to as "County") entered into employment agreement on October 24, 2000.4 Plaintiff thereafter began full-time employment at Kern Medical Center (hereinafter referred as5 "KMC") as a pathologist and Chair of the Department of Pathology. Plaintiffwas compensated6 and provided with certain benefits pursuant to his employment agreement. County placed7 Plaintiffs initial salary level at Step C. County expected Plaintiff to be an effective member of8 the physicians' staff at KMC and to contribute to the overall improvement of the hospital.9 Plaintiff was employed by COllilty from October 24,2000 to October 4, 2007. During the

10 entire tenure of Plaintiff s employment, County continually employed Plaintiffwithin the11 meaning of the Family Medical Leave Act [29 C.F.R. 825.l059(c)] (hereinafter referred to as12 "FMLA"), the California Family Rights Act [California Government Code 12945.2(b)(2)]13 (hereinafter referred to as "CFRA"), and the Fair Employment and Housing Act [California14 Government Code 12926(d)] (hereinafter referred to as "FEHA"). County is a government15 agency. Any acts or omissions of the individual Defendants were under color of law.16 Plaintiff requested and took reduced work schedule CFRA medical leave beginning17 December 16, 2005. On April 26, 2006, Plaintiff requested an extension of his leave of absence18 to commence on March 15,2006 and end on September 16,2006. Peter Bryan, Chief Executive19 Officer of KMC, wrote a memorandum to Plaintiff, dated April 28, 2006, notifying Plaintiff that20 his rights to leave under the applicable laws and county policy would expire on June 16, 200621 and instructing Plaintiff to advise Mr. Bryan of his intentions whether Plaintiffwould be22 returning to work fUll-time or resigning. Mr. Bryan also noted that Plaintiff was provided a23 medical leave history, along with calculations of, and policies about, his medical leave. Plaintiff24 did not return to work on June 16,2006 and on July 10,2006 the KMC Joint Conference25 Committee removed Plaintifffrom his position as Chair of the Department of Pathology. The26 Joint Conference Committee acted pursuant to the bylaws ofKMC when it voted to remove27 Plaintiff as Chair of the Department of Pathology. Plaintiffs removal was not a corrective or28 disciplinary act.

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1 On October 3, 2006, Plaintiff approved an amendment to his employment agreement and2 thereafter returned to work as a staff pathologist. On December 7, 2006, County placed Plaintiff3 on paid administrative leave "pending resolution of a personnel matter." Plaintiff remained on4 paid administrative leave until his employment agreement expired on October 4,2007.5 4. Disputed Factual Issues6 1. Whether the County retaliated against Plaintifffor exercising his leave rights by7 removing Plaintiff from the chairmanship of the Department of Pathology.8 2. Whether the County retaliated against Plaintifffor exercising his leave rights by not9 renewing Plaintiff's employment agreement.

10 3. Whether the County retaliated against Plaintifffor filing this lawsuit by not renewing11 Plaintiff's employment agreement.12 4. Whether Mr. Bryan's offer to place Plaintiffon full-time leave was a reasonable13 accommodation.14 5. Whether there was any other reasonable accommodation for a person in Plaintiff's15 position.16 6. Whether Plaintiff could perform the essential functions of his job.17 7. Whether the additional leave after June 16,2006 was necessary because of Plaintiff's18 disability.19 8. To what extent did Plaintiff's behavior cause or contribute to the circumstances he20 complains of.21 5. Disputed Evidentiary Issues22 Defendant objects to any attempt by Plaintiff to use video of deposition testimony that23 was not taken by a certified court reporter or independent certified videographer. Defendant is24 aware that Plaintiff's counsel video-taped several depositions using personal equipment. Despite25 repeated requests to be provided copies of those videos, Defendant has never been provided any26 copy of any video. In addition, this evidence may be disqualified under Federal Rules of Civil27 Procedure Rule 28(c) because the person taking the video recording is the plaintiff's attorney.28



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I 6. Special Factual Information in Certain Actions: Contracts2 Any remaining issues involving Plaintiff's employment contract are incorporated into the3 section of disputed factual issues.4 7. Relief Sought5 Defendant seeks a favorable judgment on all remaining claims and an award of costs6 pursuant to statute and attorneys' fees.7 8. Points ofLaw8 These legal issues remain to be litigated:9 I. Defendants dispute that Dr. Kercher, Dr. Abraham, Dr. Ragland, Dr. Roy and

10 Toni Smith remain as defendants in this litigation.II 2. Whether Defendants interfered with Plaintiff's FMLA/CFRA leave rights.12 3. Whether Defendants retaliated against Plaintifffor taking FMLA/CFRA leave by13 removing him from his chairmanship.14 4. Whether Defendants retaliated against Plaintifffor taking FMLA/CFRA leave by15 placing him on paid administrative leave.16 5. Whether Defendants retaliated against Plaintiff for asserting his rights under the17 FMLA/CFRA through litigation by not renewing his employment agreement.18 6. Whether Defendants discriminated against Plaintiffbased on his disability by19 removing him from his chairmanship.20 7. Whether Defendants retaliated against Plaintifffor asserting his rights under21 FEHA through litigation by not renewing his employment agreement.22 8. Whether Defendants failed to reasonably accommodate Plaintiff's disability by23 recommending that Plaintiff take full-time leave which Plaintiff did without24 protest, and whether there was any other reasonable accommodation for the25 plaintiff that could have been discovered through an interactive process.26 9. Whether Defendants denied Plaintiffprocedural due process under the County's27 Administrative Leave with Pay policy.28 10. Whether Plaintiffhad a right to "active duty" during his paid administrative leave.



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1 11. Whether Plaintiffs behavior defeats his claims for: discrimination against2 Plaintiff based on disability, retaliation against Plaintifffor asserting his rights3 under FEHA, retaliation against Plaintifffor asserting his rights under FMLA, an4 retaliation against Plaintiff for asserting his rights under CFRA.5 9. Abandoned Issues6 1. Plaintiffs defamation claims under California Civil Code 45-47.7 2. Plaintiffs Fair Labor Standards Act (29 U.S.C. 201 et seq.) claims.8 3. All claims against individual defendants Eugene Kercher, M.D., Jennifer9 Abraham, M.D., Scott Ragland, M.D., Toni Smith, and William Roy, M.D.

10 4. Defendant's EighthAffirmative Defense asserting failure to exhaust11 administrative remedies.12 10. Witnesses13 Defendants' separate Witness List is attached to this Pre-Trial Statement. Defendants14 reserve the right to call any witness listed on Plaintiffs list. Defendants reserve the right to call15 any witness not listed for the purpose of authentication of a document.16 11. Exhibits - Schedules and Summaries17 Defendants' separate Exhibit Lists are attached to this Pre-Trial Statement. Defendants18 reserve the right to supplement the exhibit list as necessary to respond to evidence and for19 rebuttaL20 12. Discovery Documents21 Defendants may offer its' own responses to Interrogatories Nos. 3 (supplemental22 response), 48 (supplemental response), 75,80,81,83, and 98. Defendant may offer its' own23 responses to Requests for Admission Nos. 17, 139, 158, 159, 164, and 165.24 13. Further Discovery or Motions25 No further discovery is required. Except for Motions in Limine, no pre-trial motions are26 required.27 14. Stipulations28 1. Plaintiffwas entitled to take full-time FMLA/CFRA leave from December 2005



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through May 2006.2 2. Plaintiff exhausted his FMLAJCFRA leave by the time his Personal Necessity Leave3 began in June 2006.4 3. There is no dispute that Defendants' reasonably accommodated Plaintiffs disability5 from December 16, 2005 to April 16, 2006.6 15. Amendments - Dismissals7 None.8 16. Settlement Negotiations9 The parties have not discussed settlement since the unproductive settlement conference

10 before Magistrate Judge Goldner.II 17. Agreed Statements12 Aside from the Undisputed Facts in section 3 above, Defendants are not aware of any13 facts in agreement.14 18. Separate Trial oflssues15 Defendants do not believe that a separate trial on any issue is necessary, feasible, or16 advisable.17 19. Impartial Experts - Limitation of Experts18 Defendants do not believe that Court-appointed impartial expert witnesses or a limitation19 on the number of expert witnesses is necessary.20 20. Attorneys' Fees21 Defendants reserve the right to bring a motion for attorneys' fees, at the time and in the22 matter specified, on any matter allowed by law, including 42 U.S.C. 1988 and the federal23 Family and Medical Leave Act.24 21. Trial Exhibits25 Defendants do not foresee the need for special handling of any of its trial exhibits.26 III27 III28 III



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1 22. Miscellaneous2 None.3 Respectfully submitted,45678910111213141516171819202122232425262728

Dated: April17, 2009 LAW OFFICES OF MARK A. WASSER

By: /s/ Mark A. WasserMark A. WasserAttorney for Defendants County ofKern, et al.

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DEFENDANTS' PRE-TRIAL STATEMENT


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Case 1:07-cv-00026-OWW-DLB Document 315-2 Filed 04/17/2009 Page 1 of 7

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Mark A. Wasser CA SB #060160LAW OFFICES OF MARK A. WASSER400 Capitol Mall, Suite 2640Sacramento, Califomia 95814Phone: (916) 444-6400Fax: (916) 444-6405E-mail: [email protected]

Attomeys for Defendants County ofKern, et al.

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIA

Case No.: I :07-cv-00026-0WW-DLBDAVID F. JADWIN, D.O. DEFENDANTS' TRIAL EXHIBIT LISTPlaintiff,Date: April 20, 2009vs. Time: II :00 a.m.Place: U.S. District Court, Courtroom 3COUNTY OF KERN, 2500 Tulare Street, Fresno, CA

Defendant. Date Action Filed: January 6, 2007Trial Date: May 12,2009DEFENDANTS' EXHIBIT LIST

Description Document No. Objection1. First Employment Contract between Kem Medical DFJOO025-00046Center (hereinafter referred to as KMC) and David F.Jadwin, D.O. (hereinafter referred to as Jadwin)2. Letter from Peter K. Bryan (hereinafter referred to 0000202-203as Bryan) to Jadwin, dated 8114/013. Medical StaffBylaws 0000272-3584. Second Employment Contract between KMC and 0001479-1499Jadwin

5. Letter to Bryan from Jadwin, dated 119/06 DFJOO723 I-1-

DEFENDANTS' TRlAL EXHIBIT LIST


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6. Jadwin's vigorous job search in the f irs t s ix months DFJ02422-2459of20067. Certification ofHealth Care Provider dated 1113/06 DFJOO726for Jadwin8. Certification ofHealth Care Provider, dated 4/26/06 DFJ011509. Jadwin's Request for Leave ofAbsence (hereinafter DFJ00746referred to as LOA), dated 3/2/0610. KMC's responsive document to the LOA request, DFJ00747-748dated 3/2/0611. Two e-mails by Jadwin dated 3/16/06. One is to DFJ00752-753Bryan and the other is to Dr. Kercher12. Notice from Human Resources to Jadwin, dated DFJ007964/20/0613. Jadwin's request for Leave ofAbsence Extension, DFJOl158dated 4/26/0614. Memo from Bryan to Jadwin, dated 4/28/06 DFJOl12115. Letter to Bryan from Jadwin, dated 5/31106 Bryan Depo.,8/14/08, Exh 31116. Letter from Bryan to Jadwin, dated 6/14106 DFJOl14117. Mortgage verification of employment for Jadwin, DFJ01343dated 6/22/0618. Document showing Jadwin's leave and allowances Bryan Depo.,8/14/08, Exh 303expiring by June 16th19. Tort Claims Act Complaint, dated 7/3/06 Exhibit 2 to 2ndAmended

Complaint20. Memorandum to the Joint Conference Committee 0001476-1565(hereinafter referred to as JCC) from Bryan, dated7/10/0621. JCC meeting minutes of the meeting in July 2006 0000073-75

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22. Letter to Dr. Harris from Jadwin, dated 9111/06 DFJ01388-138923. Letter from David Culberson (hereinafter referred DFJ01398to as Culberson) to Jadwin, dated 9/20/0624. Letter from Culberson to Jadwin, dated 12/7/06 DFJOl48225. Kern County Policy and Administrative Procedures 0016941Manual, pg. I :22, Section titled "Administrative Leavewith Pay."26. Letter from Mark Wasser to Eugene Lee, dated DFJOl7014/30/0727. Letter to MarkWasser from Eugene Lee, dated DFJ01703-1704511/0728. E-mail to Jadwin with a contract amendment Jadwin Depo.,3112/08, Exh 644attached to it29. Exhibit 581 is the same contract amendment as Jadwin Depo.,3/12/08, Exh 581Exhibit 644, although Exhibit 581 is signed and someterms are changed.30. Letter from Dr. Ang to Dr. Perez, Bryan, Dr. Kolb, 0000690-691and Dr. Munoz, dated 2/20/0231. Memorandum by Dr. Ang, dated 3/8/02 000073632. Jadwin's actual (failing) test for cervical pap 0000737

.smears33. Report to Dr. Maureen Martin from Jadwin, dated 000 I 059-107211/20/0234. Twenty-nine medical reports from 2004 and 2005 0001163-131035. Letter from Dr. Roy to Jadwin, dated 4/15/05 DFJ0036336. Letter to Dr. Roy from Jadwin, dated 4/20/05 DFJ00364-36637. Letter from Dr. Roy to Jadwin, dated 7115/05, DFJ00439responding to Jadwin's letter to him dated 6/5/05 DFJ00437



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38. Letter from Dr. Roy to Dr. Harris, dated 2/22/06 0000434-47639. Pathology Quality Management Policy, September 0018516200540. E-mail from Angie Reyes to Dr. Harris and Tony 0000398Smith, dated 4117/0641. E-mail from Tracy Lindsey to Ramona Case, dated 000082311127/0642. Report from Dr. Dutt to Peer Review Committee, 0000882-895dated 12114/06

43. Policy Statement of the Disruptive Behavior, 0010685-10688Discrimination & Harassment Policy, specificallySection V, I tem A44. E-mail to Michael Ewald from Jadwin, dated 000026010/9/0345. Confidential file of investigation of Jadwin pulling 0000031-70Dr. Lau by his tie, dated 10/2110346. Letter from Dr. Kolb to Jadwin, dated 11126/03 DFJ0024647. Letter to Dr. Lau from Jadwin, dated 10119/05 DFJ0059048. Kern Medical Center FNA Consulting Project DFJ00251-270report by Dr. David Lieu, M.D., M.B.A., dated 5/3/04.49. E-mail to Drs. Kercher and Dr. Kolb from Jadwin, DFJ00289-290dated 9/3/0450. E-mail to Bryan from Jadwin, dated 2/2/05 DFJ00319-32051. Exchange of e-mails between Dr. Ragland and DFJ00353-354Jadwin, dated 2/25/0552. Exchange of e-mails between Dr. Ragland and DFJ00241-242Jadwin, dated 11119 & 11/20103



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53. Memo from Dr. Ragland to Jadwin, dated 1/21/04 DFJ0024854. Memo from Dr. McBride to Jadwin, dated 5/9/05 DFJ0038155. Instructions for the Cancer Conference presenters Patel Depo.,12/6/07, Exh 2556. Pathology Dept.'s oncology conference DFJ00508-574presentation-67 slides-by Jadwin57. Memo from the Cancer Committee (Drs. Patel, DFJ00578Jolmson, and McBride) to Jadwin, dated 10112/0558. Anonymons (redacted) memo (author-Dr. Taylor) DFJ00580of complaint about Jadwin's oncology presentation,dated 10112/0559. Letter from Drs. Kercher, Ragland, Abraham and DFJ00588Harris to Jadwin, dated 10117/0560. E-mail from Dr. Ragland to Dr. Harr is , dated 000009410118/0561. E-mail to Toni Smith, R.N. from Jadwin, dated DFJ00408-4095/2010562. E-mail to Toni Smith, R.N. from Jadwin, dated DFJ024995/2010563. Memo to Bryan from Toni Smith, dated 4117106 0000401-40364. E-mail to Bryan from Jadwin, dated 3/2/06 Bryan Depo.,8114/08, Exh

27165. Letter to Dr. Kolb from Jadwin, dated 11/22/03 DFJ00243-24566. E-mail to Dr. Kercher from Jadwin, dated 211105 DFJ0031667. E-mail from Dr. Kercher to Jadwin, dated 2/1/05 DFJ0031768. E-mail to Peter Bryan and Dr. Kercher from DFJ00355Jadwin, dated 2/28/0569. Letter to Dr. Ragland from Jadwin, dated 10119/05 DFJ0059270. Letter to Dr. Sergio Perticucci from Jadwin, dated DFJ00356-357



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1 91. E-mail from Dr. Dutt to Jadwin, dated 12/7/062 92. E-mail to Dr. Dutt from Jadwin, dated 12/6/06,3 with copies to Culberson, Dr. Harris and Karen Barnes

0000863DFJO 1479-1480

4 93. Calculations of Professional Fees for 2004 to 2007 0018755-189175 Respectfully submitted,678910111213141516171819202122232425262728

Dated: April 17, 2009 LAW OFFICES OFMARK A. WASSER

By: lsi Mark A. WasserMark A. WasserAttorney for Defendants County ofKern, et al.



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IIIIII

The Camden Group8. David Culberson 100 N. Sepulveda Blvd., Ste. 600EI Segundo, CA 90245c/o Kern Medical Center9. Philip Dutt, M.D. 1830 Flower StreetBakersfield, CA 93305

10. Michael Ewald(ex-KMC employee)

c/o Kern Medical CenterII. Yolanda Figueroa 1830 Flower StreetBakersfield, CA 933058 12. Evangeline Gallegos9

0 110 Castilian Drive13. Irwin Harris, MD. Goleta, CA 931177404 Arleta Avenue2 14. David Hill Bakersfield, CA 93308c/o Kern Medical Center3 15. Eugene Kercher, M.D. 1830 Flower Street

4 Bakersfield, CA 93305128 Stonebridge Road5 16. Marvin Kolb, M.D. Lilydale, MN 5511810506 Finchley Drive16 17. Adam Lang, M.D. Bakersfield, CA 9331117 1061 Dakin Avenue18. Chester Lau, M.D. Menlo Park, CA 9402518 1613 Chelsea Road, Ste 32319. David Lieu, M.D. SanMarino, CA 911089

20 20. Tracy Lindsey2122 21. Don Maben2324 22. Michael Maggard

c/o Kern Medical Center25 23. Maureen Martin, M.D. 1830 Flower StreetBakersfield, CA 9330526

27 24. Gilbert Martinez(ex-KMC employee)28

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1 25. Thomas McAfee, M.D. University of CA San Diego2

402 West Dickinson, Ste 4-480 ExpertSan Diego, CA 92103-8986

3 26. Albert McBride, M.D. c/o Kern Medical Center1830 Flower Street4 Bakersfield, CA 933055 27. Jon McQuiston67 28. Steven O'Connor c/o Kern Medical Center1830 Flower Street8 Bakersfield, CA 933059 29. Barbara Patrick1011

30. Sergio Perticucci, M.D. 600lD Truxton Avenue, Ste 420Bakersfield, CA 9330912 31. Scott Ragland, D.O. c/o Kern Medical Center1830 Flower Street3 Bakersfield, CA 933054 32. Angie Reyes56 33. William Roy, M.D.

6701 Airport Blvd, Ste B-127Mobile, AL 36608

7 34. Michael J. Rubio89 35. Rick Sarkisian, Ph.D. Valley Rehabilitation Svcs, Inc.545 East Alluvial Ave., Ste 116 Expert

Fresno, CA 93720-28261 36. Savita Shertukde, M.D. c/o Kern Medical Center1830 Flower Street

Bakersfield, CA 9330537. Antoinette (Toni) Smith, c/o Kern Medical Center1830 Flower StreetM.S.N., R.N. Bakersfield, CA 9330538. Edward (Bill) Taylor, c/o Kern Faculty Medical GroupM.D.

2201 MT Vernon AvenueBakersfield, CA 9330639. Constantine Boukidis Vavoulis & Weiner, LLC516 West Shaw Avenue, Ste 200 Expert

Fresno, CA 93704-2515

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