31 Pleading - Answer to SSC

8/14/2019 31 Pleading - Answer to SSC

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ANSWER TO SECOND SUPPLEMENTAL COMPLAINT

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Mark A. Wasser CA SB #060160LAW OFFICES OF MARK A. WASSER400 Capitol Mall, Suite 1100Sacramento, CA 95814Phone: (916) 444-6400Fax: (91 6) 444-6405

E-mail: [email protected] Bernard C. Barmann, Sr.KERN COUNTY COUNSELMark Nations, Chief Deputy1115 Truxton 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 Smithand William Roy

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

DAVID F. JADWIN, D.O.

Plaintiff,

vs.

COUNTY OF KERN , et al.,

Defendants.

)))

)))))))

Case No.: 1:07-cv-26

ANSWER TO SECOND

SUPPLEMENTAL COMPLAINT

Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer

Abraham, Scott Ragland, Toni Smith and William Roy answer the Second Supplemental

Complaint as follows:

1. Defendants deny the allegations contained in paragraphs 1, 2 and 3.

2. Defendants admit the allegations contained in paragraph 4.

3. Defendants deny the allegations contained in paragraph 5.
mailto:[email protected]:[email protected]:[email protected]:[email protected]


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5. In response to the allegations contained in paragraph 8, Defendants admit that

Peter Bryan was Chief Executive Officer of Kern Medical Center and a resident of California

during most of the time alleged in the Complaint. Defendants deny the remaining allegationscontained in paragraph 8.

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Plaintiff is a pathologist. Defendants are without knowledge or information sufficient to form a

belief as to the truth of the remaining averments in paragraph 16.

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Plaintiff was hired as a pathologist at Kern Medical Center and was appointed to the position of

Chair of the Pathology Department. Defendants deny all remaining allegations contained in

paragraph 17.

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Plaintiff complained about departmental procedures and policies at Kern Medical Center and

interfered with patient care provided by Kern Medical Center and its physicians. Defendants

deny all remaining allegations contained in paragraph 18.

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Plaintiff requested and received multiple leaves of absence and that the terms and conditions of

the leaves Plaintiff received are memorialized in writings. Defendants deny all remaining

allegations contained in paragraph 21.

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13. In response to the allegations contained in paragraphs 22, 23 and 24, Defendants

admit that Plaintiff requested and received multiple leaves of absence for multiple reasons, was

removed from his position as Chair of the Pathology Department because he was neither working

full-time nor present in the hospital and that his compensation was reduced. Defendants also

admit that Plaintiff complained about the policies and procedures at Kern Medical Center, wrote

4. Defendants admit the allegations contained in paragraphs 6 and 7.

6. Defendants admit the allegations contained in paragraphs 9, 10, 11, 12, 13 and 14.

7. Defendants deny all the allegations contained in paragraph 15.

11. Defendants deny all the allegations contained in paragraphs 19 and 20.


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letters to several physicians and administrators at Kern Medical Center and other health care

organizations and was placed on administrative leave. Defendants deny all remaining allegations

in those paragraphs.

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16. In answer to the allegations contained in paragraph 27, Defendants admit that

Plaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in

paragraph 27.

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17. In answer to the allegations contained in paragraphs 28 and 29, Defendants admit

that Plaintiff was employed as a pathologist in Kern Medical Center and assigned to the position

of Chair of the Pathology Department and that he was compensated and provided with certain

benefits pursuant to a written employment agreement. Defendants deny all remaining allegations

contained in paragraphs 28 and 29.

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Plaintiff was expected to be an effective member of the physicians staff at Kern Medical Center

and to contribute to the overall improvement of the hospital. Defendants deny all remaining


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admit that interpretation of the referenced documents is a question of law. Defendants deny all

remaining allegations contained in those paragraphs.

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admit that interpretation of the referenced documents is a question of law. Defendants deny all

remaining allegations contained in those paragraphs.

14.

In response to the allegations contained in paragraph 25, Defendants admit thatPlaintiff has been provided with the information he requested from the computer that was

previously assigned to him. Defendants deny all remaining allegations contained in paragraph

25.


20. Defendants admit the allegations contained in paragraph 34.


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24. In response to the allegations contained in paragraphs 40 and 41, Defendants

admit that Plaintiffs former attorney sent a letter to Bernard Barmann and that Plaintiff met with

Mr. Barmann on or about February 9, 2006. Defendants deny all remaining allegations

contained in those paragraphs.

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admit that Plaintiff complained about policies and procedures at Kern Medical Center, disagreed

with other staff physicians about patient care and wrote letters expressing his disagreement.

Defendants deny all remaining allegations contained in those paragraphs.

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26. In response to the allegations contained in paragraphs 44, 45, 46 and 47,

Defendants admit that disagreements arose between Plaintiff and William Roy regarding the

review of pathology reports, the timeliness and accuracy of Plaintiffs pathology reports and

Plaintiffs management of the Pathology Department and that letters were written by the Plaintiff

and others regarding these issues. Defendants deny all remaining allegations contained in those

paragraphs.

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27. In response to the allegations contained in paragraphs 48, 49, 50, 51, 52, 53 and

54, Defendants admit that disagreements arose between Plaintiff and other physicians at Kern

Medical Center, including some of the Defendants, regarding the review of pathology reports,

the timeliness and accuracy of Plaintiffs pathology reports, Plaintiffs management of the

Pathology Department, hospital policies and procedures and patient care. Defendants further

admit that letters were written by the Plaintiff and others regarding these issues. Defendants

deny all remaining allegations contained in those paragraphs.

. Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraph 38.


Plaintiff complained about policies and procedures at Kern Medical Center and that his actionsinterfered with patient care. Defendants deny all remaining allegations contained in paragraph

39.


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28. In response to the allegations contained in paragraphs 55, 56, 57, 58 and 59,

Defendants admit 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 hisinterference with patient care. Defendants further admit that letters were written by Plaintiff,

William Roy and others about the incident. Defendants deny all remaining allegations in those

paragraphs.

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30. In response to the allegations contained in paragraph 64, Defendants are without

knowledge or information sufficient to form a belief as to the truth of the averments contained in

paragraph 64.

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31. In response to the allegations contained in paragraphs 65, 66, 67, 68, 69, 70, 71

and 72, Defendants admit that letters were sent and received by Plaintiff and some of the

Defendants regarding Plaintiffs conduct and criticism of Kern Medical Centers policies and

procedures. Defendants deny all remaining allegations contained in those paragraphs.

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33. In response to the allegations contained in paragraph 74 and 75, Defendants admit

that Plaintiffs entitlement to leave under FMLA and CFRA is a question of law. Defendants


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34. In response to the allegations contained in paragraph 76, 77, 78, 79 and 80,

Defendants admit that Plaintiff requested and received leaves of absence on multiple occasions

for multiple reasons and that there are several documents authored by Plaintiff and others

regarding the reasons for his leaves of absence and the terms of the leaves. Defendants deny all

remaining allegations in those paragraphs.

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35. In response to the allegations contained in paragraph 81, 82, 83, 84, 85 and 86,

Defendants admit that Plaintiff exchanged written correspondence with Peter Bryan and others

regarding leaves of absence. Defendants deny that Plaintiff engaged in any whistleblowing

29. Defendants deny all the allegations contained in paragraphs 60, 61, 62 and 63.



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activity and that Plaintiff is or ever was a whistleblower. Defendants deny all remaining

allegations in those paragraphs.

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37. In response to the allegations contained in paragraphs 89, 90, 91 and 92,

Defendants admit that Plaintiff and Peter Bryan exchanged written correspondence regarding

leaves of absence that Plaintiff requested and Plaintiffs tenure as Chair of the Pathology

Department at Kern Medical Center. Defendants also admit that on or about July 10, 2006, the

Joint Conference Committee voted to remove Plaintiff from his position as Chair of the

Pathology Department at Kern Medical Center. Defendants deny all remaining allegations

contained in those paragraphs.

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39. In response to the allegations contained in paragraphs 94, 95, 96, 97 and 98,

Defendants admit that Plaintiffs employment agreement was amended to reduce Plaintiffs base

compensation and that Plaintiff continued to send and receive written communications to others

regarding his leaves of absence. Defendants deny all remaining allegations contained in those

paragraphs.

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Plaintiff returned to work as a staff pathologist at Kern Medical Center in October, 2006 and that

Phillip Dutt was appointed Acting Chair of the Pathology Department. Defendants deny all

remaining allegations contained in paragraph 99.

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admit that Plaintiff exchanged written correspondence with David Culberson. Defendants deny

all remaining allegations contained in those paragraphs.

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the truth of the averments contained in paragraphs 87 and 88.




Plaintiff has been provided with the information he requested from the County-owned computer


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that was previously assigned to him. Defendants deny all remaining allegations contained in

paragraph 103.

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48. In response to the allegations contained in paragraphs 108, 109 and 110,

Defendants admit that Plaintiff and Peter Bryan exchanged written communications regarding

Plaintiffs request for leaves of absence. Defendants deny all remaining allegations contained in

those paragraphs.

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50. In answer to the allegations contained in paragraphs 112, 113, 114, 115, 116 and

117, Defendants admit that Plaintiff exchanged written communications with Peter Bryan

regarding his work schedule and requests for leaves of absence and met with Peter Bryan and

others to discuss those subjects. Defendants deny all remaining allegations contained in those

paragraphs.

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Defendants admit that plaintiff and Peter Bryan exchanged written communications regarding

Plaintiffs leaves of absence and performance as Chair of the Pathology Department. Defendants



the truth of the averments contained in paragraph 104.5. In answer to the allegations contained in paragraph 105, Defendants admit that

Plaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in

paragraph 105.


Plaintiff requested and received a reduced work schedule. Defendants deny all remaining


7. Defendants are without knowledge or information sufficient to form a belief as to






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Plaintiff is on paid, unrestricted, administrative leave and is free to pursue whatever other career

or business opportunities he desires. Defendants deny all remaining allegations contained in

paragraph 136.

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Plaintiffs base compensation as a staff pathologist is less than it was when he was Chair of the

Pathology Department. Defendants deny all remaining allegations contained in paragraph 138.

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Plaintiff filed a claim with Defendant, County of Kern, and that the claim has been rejected.

Defendants deny all remaining allegations contained in paragraph 145.

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4. In answer to the allegations contained in paragraph 124, Defendants admit that

Plaintiff is on paid administrative leave. Defendants deny all remaining allegations contained inparagraph 124.

. Defendants deny all the allegations contained in paragraphs 125, 126, 127 and

128.

. Defendants deny all the allegations contained in paragraphs 129, 130, 131, 132,

133 and 134.



1. Defendants deny all the allegations contained in paragraphs 139, 140, 141, 142,

143 and 144.




the truth of the averments contained in paragraphs 148, 149, 150, 151 and 152.


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interpretation of Labor Code 1102.5 is a matter of law. Defendants deny all remaining


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Defendants admit that interpretation of Government Code 12945.2(a)(1) and Title 2 of

California Code of Regulations 7297.7(a) and 7297.2(c) is a matter of law. Defendants deny

all remaining allegations contained in those paragraphs.

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. Defendants incorporate herein, all of their responses to paragraphs 1 through 153,

inclusive.7. In response to the allegations contained in paragraph 155, Defendants admit that

interpretation of Health and Safety Code 1278.5 is a matter of law. Defendants deny all

remaining allegations contained in paragraph 155.

. Defendants deny all the allegations contained in paragraphs 156, 157 and 158 and

further deny that Plaintiff has engaged in any whistleblowing activity or is a whistleblower.



0. Defendants incorporate herein, their responses to paragraphs 1 through 159,

inclusive.

2. Defendants deny all the allegations contained in paragraphs 162, 163, 164 and

165 and further deny that Plaintiff made any whistleblowing reports.



74. Defendants incorporate herein, their responses to 1 through 166, inclusive.





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83. In response to the allegations contained in paragraphs 181, 182, 183, 184, 185,

186, 187 and 188, Defendants admit that interpretation of the California Family Rights Act is a

question of law. Defendants deny all remaining allegations contained in those paragraphs.

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interpretation of the California Fair Employment and Housing Act is a question law. Defendants

deny all remaining allegations remaining in paragraph 194.

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. Defendants incorporate herein, their responses to paragraphs 1 through 173,

inclusive.


interpretation of 29 U.S.C. 2611(4)(A)(ii)(I) and 29 U.S.C. 2615(a) is a matter of law.Defendants deny all remaining allegations contained in paragraph 175.

80. Defendants deny all the allegations contained in paragraphs 176, 177 and 178.



2. Defendants incorporate herein, their answers to paragraphs 1 through 179,

inclusive.





inclusive.





inclusive.



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interpretation of the Fourteenth Amendment to the United States Constitution is a question of

law. Defendants deny all remaining allegations contained in paragraph 205.

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admit that interpretation of the Code of Federal Regulations, including 20C.F.R. 541.118(1) and

541.18(6), is a question of law. Defendants deny all remaining allegations contained in those

paragraphs.




inclusive.94. Defendants deny all the allegations contained in paragraph 202.




inclusive.


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inclusive.


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inclusive.


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As and for a first affirmative defense, Defendants allege that Plaintiffs Second

Supplemental Complaint and each and every purported claim contained therein fails to state a

claim upon relief can be granted.As and for a second affirmative defense, Defendants allege that this Court lacks subject

matter jurisdiction over Plaintiffs alleged claims and should refuse to exercise jurisdiction over

Plaintiffs state claims because they predominate and the alleged federal claims are insubstantial.

As and for a third affirmative defense, Defendants allege that Defendants actions as

alleged in the Second Supplemental Complaint were privileged under California Evidence Code

sections 1157, 1157.5, 1157.6 and 1157.7, California Business and Professions Code sections

800 through 809.9 and California Civil Code section 47(a) and (b) in that Defendants actions

were in furtherance of medical peer review, maintenance of quality-of-care standards, discharge

of official duties and performed in the course of official proceedings authorized by law and that

Defendants and each of them are, therefore, immune from liability.

As and for a fourth affirmative defense, Defendants allege that California Civil Code

section 47(a) and (b) immunizes Defendants and each of them from liability for the matters

alleged in the Second Supplemental Complaint.

As and for a fifth affirmative defense, Defendants allege that, during Plaintiffs

employment at Kern Medical Center, 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.

As and for a sixth affirmative defense, Defendants allege that Plaintiffs injuries, as

alleged in the Second Supplemental Complaint occurred more than one year before Plaintiff

commenced this action and that Plaintiffs claims are, therefore, barred by the statue of

limitations established in California Code of Civil Procedures 340.

As and for a seventh affirmative defense, Defendants allege that Plaintiffs injuries, as

alleged in the Second Supplemental Complaint occurred more than two years before Plaintiff


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commenced this action and that Plaintiffs claims are, therefore, barred by the statue of

limitations established in California Code of Civil Procedures 335.1.

As and for an eighth affirmative defense, Defendants allege that Plaintiff has available

adequate administrative remedies which he failed to exhaust and that his claims are, therefore,barred.

As and for a ninth affirmative defense, Defendants allege that the Defendants and each of

them have qualified immunity for each and every claim alleged in the Second Supplemental

Complaint because, in doing the things alleged, they were each acting within the course and

scope of their duties as public officials and did not violate any of Plaintiffs constitutional rights

and, even if they did, none of the alleged constitutional rights was clearly established.

WHEREFORE, Defendants pray that Plaintiff take nothing by way of his Second

Supplemental Complaint and that judgment thereon be entered in favor of Defendants and

against Plaintiff and that Defendants be awarded their reasonable costs of suit and attorneys fees

together with such other and further relief as the Court deems just.

Dated: June 20, 2007 LAW OFFICES OF MARK A. WASSER

By: /s/ Mark A. Wasser

Mark A. WasserAttorney for Defendants, County of Kern, et al.

31 Pleading - Answer to SSC

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