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Case 1:07-cv-00026-OWW-TAG Document 43 Filed 07/27/2007 Page 1 of 9

I Mark A. Wasser CA SB #060160LAW OFFICES OFMARK A. WASSER2 400 Capitol Mall, Suite 1100Sacramento, CA 958143 Phone: (916) 444-6400Fax: (916) 444-64054 E-mail: mwasser(aJ.markwasser.com5 Bernard C. Barmarm, Sr.KERN COUNTY COUNSEL6 Mark Nations, Chief DeputyI l l S Truxton Avenue, Fourth Floor7 Bakersfield, CA 93301Phone: (661) 868-38008 Fax: (661) 868-3805E-mail: [email protected]

10 Attorneys for Defendants County o fKern,Peter Bryan, Irwin Harris, Eugene Kercher,11 Jennifer Abraham, Seott Ragland, Toni Smith12 land Roy

Date Action Filed: January 6, 2007Trial Date: August 26, 2008

Date: August 13, 2007Time: 9:30 a.m.Place: U.S. Bankruptcy Courthouse,Bakersfield Courtroom 8

DEFENDANTS' MEMORANDUM O FPOINTS AND AUTHORITIES INOPPOSTION T O MOTION TO STRIKE

U N IT E D S TA T ES D I ST R IC T C O U R TE A S T E R ~ DISTRICT OF C A L I F O R ~ I A

) Case No.: 1:07-cv-00026-0WW-TAG))))))

)))------------)

19 COUNTY OF KERN, et aI.,18 vs.

20 Defendants.

17 Plaintiff,

13141516 DAVID F. JADWIN, D.O.

23

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24 Defendants respectfully submit this memorandum in opposition to Plaintiffs motion to25 strike the fifth affirmative defense.

After filing a complaint, an amended complaint and a supplemental complaint, the262728

I. STATUS OF T H E CASE

DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIESOPPOSITION TO MOTION TO STRIKI


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I Plaintiff filed his Second Supplemental Complaint on June 13,2007. Defendants answered on2 June 21, 2007. The initial scheduling conference was postponed until May 31, 2007 to allow3 Plaintifftime to revise and finalize his pleadings. The Rule 26(f) initial disclosures have been4 postponed, also, to August 6, 2007, to allow Plaintiff t ime to file this motion to strike. To date,5 there has been no discovery or exchange of information between the parties. (Although not6 discovery, Defendants copied and delivered to Plaintiff some computer files that Plaintiff7 requested of f the hard drive of his former County-assigned computer in April, 2007.) Plaintiff8 requested and the Defendants agreed that depositions may not commence after September9 23,2007. See June 6, 2006 Scheduling Order.

Declaration.Plaintiff rejected the proposed stipulation and, apparently after reflection, dropped his

The parties' communications regarding the seventh affirmative defense are relevant to theissues Plaintiff raises in this motion to strike. The seventh affirmative defense asserts the two-

II, 2007 letter (Exhibit 1 to Amended Lee Declaration), Plaintiffs counsel V\Tote that "Plaintiffis not alleging any assault, battery, injury or V\Tongful death causes of action" and askedDefendants to strike the seventh affirmative defense. Defendants' counsel replied that

his May

THE PLEADINGS AND THE MEET-AND-CONFER PROCESS.After Defendants filed their answer to the second supplemental complaint, Plaintiff

objected to five ofDefendants' nine affirmative defenses. See Letter of May II, 2007 fromEugene D. Lee to Mark A. Wasser, Exhibit I to Amended Eugene D. Lee ("Amended Lee")Declaration. Through a meet-and-confer process that lasted almost three months, the partiesresolved their disagreements over all but the fifth affirmative defense.

year statute oflimitations on personal injuries found in Cal. Code Civ. Proc. 335.1.

Defendants would voluntarily strike the seventh affirmative defense upon a representation fromPlaintiff that he was, in fact, "claiming no damages for claims encompassed" within section335.1. Exhibit 2 to Amended Lee Declaration. Defendants even proposed a stipulation to thateffect for inclusion in the scheduling order. See Exhibit I to Mark A. Wasser ("Wasser")

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DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IOPPOSITION TO MOTION TO STRI

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1 objection to the seventh affirmative defense. It is clear from the complaint that Plaintiff is2 claiming personal injuries and that Mr. Lee's statement to the contrary in his May 11 letter was3 in error. For example, paragraph 141 of the complaint alleges that "Plaintiff has suffered and4 continues to suffer non-economic damages, such as emotional distress, anxiety, humiliation, and5 loss of reputation." Paragraph 135 alleges that Defendants created a "hostile work environment"6 and subjected Plaintiff to "disparate treatment, unwarranted criticism and reprimands, threats,7 requests for his resignation . . . " Paragraphs 106 and 107 allege that Plaintiff "suffered from8 depression due to the work-related hostility . . ." and "was suffering extreme distress from the9 hostile work environment created by the harassment, defamation, discrimination, and retaliatory

10 adverse actions of the Defendants . . . ". Paragraph 142 alleges that these acts "were and are a11 substantial factor in causing Plaintiff s harm." Plaintiffs prayer seeks, among other things,

ch,rra(;ter'ize these2 "[g]eneral and compensatory damages according to proof." One13 allegations as fairly typical allegations of personal injury.14 Thus, among his almost-dozen claims, Plaintiff seeks recovery ofmoney damages for15 personal injuries allegedly sustained as a result of a hostile work environment, unspecified16 harassment and discrimination. It is in this context that Defendants' fifth affirmative defense17 must be evaluated.

Motions to Strike lire Disfavored.18 m. ARGUMENT192021222324252627

Motions to strike are disfavored because of the limited importanee of pleadings in federalpractice and because they are often viewed as delaying tactics. RDFMedia Ltd v. FoxBroadcasting Co., 372 F.Supp.2d 556,566 (C.D.Cal. 2005); s.E.c. v. Sands, 902 F.Supp. 1149,1165 (C.D.Cal. 1995); Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before Trial, 9:375 (2007).

To strike an affirmative defense, the moving party must convinee the court (1) that thereare no questions offact; (2) that any questions of law are clear and not in dispute and (3) thatunder no set of circumstances could the defense succeed. Sands, 902 F.Supp. at 1165;

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1 Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before Trial, supra, at 9:381.2 Motions to strike are generally not granted unless it is clear that the matter to be stricken3 could have no possible bearing on the subject matter of the litigation. LeDuc v. Kentucky Cent.4 Life Ins. Co., 814 F.Supp 820, 830 (N.D.Cai. 1992).5 In Fantasy, Inc. v, Fogerty, 984 F.2d 1524 (9th Cir. 1993) the Ninth Circuit wrote that th6 function ofa Rule 12(f) motion to strike is to avoid the expenditure of time and money that must7 arise from litigating spurious issues by dispensing with them before trial. Id. at 1527. The Court8 I, continued, writing "immaterial" matter is that which has no essential or important9 relationship to the claim. Id. "Impertinent" matter consists of statements that do not pertain to

10 the issues in question. Id.I I Applying that standard to the case before it, the Court ruled that Fogerty's allegations12 about a tax shelter plan and dealings with two agents were properly stricken because they13 related to claims that were barred by either the statute of limitations or res judicata and, thus,14 were irrelevant to issues in the case. Id.15 While Fed. R. Civ. P. 12(f) specifies a time within which to file a motion to strike, a party16 has the right to challenge the legal sufficiency of a defense at any time and courts generally17 consider the merits of a challenge to a defense whenever it is made. OR. Laborers-Employers18 Tr. v. Pacific Fence & Wire, 726 F.Supp. 786, 788 (D.Or. 1989); Schwarzer, Tashima &19 Wagstaffe, Federal Civil Procedure Before Trial, supra, at 9:400.20 B. Plaintiffs Motion to Strike Shonld Be Denied21 The fifth affirmative defense alleges that Plaintiff's own behavior caused some of the22 hostility in the work environment that Plaintiff complains about. It does not, as Plaintiff asserts,23 allege that Plaintiff is barred from recovery under a theory of "contributory negligence".24 Exhibits 2, 7 to Amended Lee Declaration. This is not a traditional negligence case and25 contributory negligence is not a relevant concept. The defense simply alleges that Plaintiff bears26 some responsibility for the hostility he alleges in the work environment.27 III28 III


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I 1. The motion is premature.2 There has been no discovery and no facts have been developed. All Defendants have to3 go on is the bare allegations in the complaint. All Plaintiff has is the bare language of the4 answer. Plaintiff cannot make the requisite showing, now, that there are no facts to support the5 fifth affirmative defense because the Defendants have not had an opportunity to develop any6 facts. The posture of this case can be contrasted with the posture in Sands, 902 F.Supp. at 1149.7 There, discovery was complete and, after having had a full opportunity to do so, the defendants8 had failed to produ(:e evidencc to support the affirmative defense of unclean hands. Id.9 1166. Given the evidentiary record that existed, the court struck the defense. Id.lOin LeDuc, 814 F.Supp. at 830 - 831, the court similarly considered a motion to strike inII the context of evidence that12 part.

been developed and granted the motion in part and denied it in

13 Striking the fifth affirmative defense before the Defendants have an opportunity to14 investigate or develop any facts to support it is at odds with what the courts did in s.E.C v. Sands15 and LeDuc v. Kentucky Cent. Life Ins. Co.16 Despite the 20-day period specified in Rule 12(f), a plaintiffmay challenge a defense at17 any time. OR. Laborers-Employers Tr., 726 F.Supp. at 788; Schwarzer, Tashima & Wagstaffe,18 Federal Civil Procedure Before Trial, supra, at 9:400.19 Defendants have offered to stipulate that Plaintiff can bring this motion later, after20 Defendants have had an opportunity for discovery. Exhibits 5, 7 to Amended Lee Declaration;21 Wasser Declaration. Defendants even offered to consider striking the defense voluntarily at or22 before the Pre-Trial Conference if evidence to support the defense has not been developed by23 then. Exhibits 5, 7 to Amended Lee Declaration; Wasser Declaration. Plaintiff rejected those24 offers, asserting only that he will "not stand by and permit Defendants to conduct its [sic] fishing25 expedition." See Plaintiff's Memorandum of Points and Authorities at 9:10.26 2. The motion should not be used to l imit appropriate discovery.27 Defendants do not intend to conduct a fishing expedition and, if they did attempt such a28


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1 misuse of discovery, Plaintiff could seek relieffrom this Court to stop it. However, Plaintiff2 should not be allowed to use this motion to strike to secure a de facto protective order in advance3 of any discovery. Defendants have no intent to "smear" Plaintiff and are surprised that Plaintiff4 would suggest such a purpose. See Plaintiff's Memorandum of Points and Authorities at 9:10.5 Defendants do have the right to engage in appropriate discovery to devclop facts in support of6 their defense.

Plaintiffs assertion that the fifth affirmative defense amounts78

3. The fifth affirmative defense is not scandalons.nothing more a

9 cruelly derogatory attack on Plaintiff's character and competence" is not supported by any10 language in the fifth affirmative defense. Nothing in the defense attacks Plaintiff's charactcr or11 competence. The defense alleges that Plaintiff's behavior contributed to hostility in the work12 environment. There is an important and substantial difference between behavior and character.13 "Behavior" is one's mode of conducting oneself. "Character" is the aggregate of distinctive14 mental and moral qualities belonging to an individual. Webster's Third International Dictionary,15 (2d Ed. 1950). Nothing in the defense references Plaintiffs competence.16 The cases Plaintiff cites do not support his position. Talbot v. Robert Matthews17 Distributing Co., 961 F.2d 654 (7th Cir. 1992) was a decision on appeal after judgment. Id at18 659. The District Court had considercd the factual record, including at least an arbitrator's19 Iopinion and award and the terms of a collective bargaining agreement and had treated the20 defendants' motion to dismiss as a motion for summary judgment. Jd. The District Court struck21 allegations that the defendants had intentionally caused a salmonella outbreak. The Seventh22 Circuit affinned. However, the court did not strike the allegation because it was "scandalous."23 The allegation was struck because it was "devoid of any factual basis." Jd. at 665. The plaintiffs24 had presented no more than unsubstantiated rumor. Jd.25 Talbot is another example of a motion to strike after full development of the evidence. It26 does not support Plaintiff 's attempt to use his motion to strike offensively to preclude the27 development offacts. It does not support Plaintiff's assertion that the fifth affirmative defense is28 "scandalous."

DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES INOPPOSITION TO MOTION TO STRIK

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1 The other case Plaintiff cites is even lcss helpful to Plaintiff. In Skadegaard v. Farrell,2 587 F.Supp. 1209 (D. N.J. 1984) the court denied the motion to strike after concluding that the3 challenged allegation (which accused the defendants of attempting to suborn perjury) was not4 scandalous. The court wrote that the allegation neither reflected cruelly on the dcfendant's moral5 character, used repulsive language nor detracted from the dignity of the court. Id. at 1221. The6 court added that, to be scandalous, the allegation had to be both degrading and irrelevant. Id.7 Applying the same standard here, allegations that the Plaintiff was arrogant, disagreeable,8 uncooperative, intimidating, overbearing, self-righteous and unfriendly and contributed to the9 alleged hostility in his work environment are neither degrading nor irrelevant. They are clearly10 not "cruel." They do not touch upon Plaintiff 's character or competence. They do not impugn11 the dignity of the Court. And, if they prove to be true, they may affect the outcome of the case.12 Courts have focused on relevancy of challenged allegations as gauge13 their propriety. For example, in RDFMedia Ltd. v. Fox Broadcasting Co., 372 F.Supp.2d 556,14 566 (C.D.Cal. 2005), the court seemed less concerned about the sharp nature ofwords such as15 "rip off', "Most Brazen Ripoff', "rush-job rip-off', and "carbon copy" than it was with the fact16 that the words had been taken from articles and commentaries and incorporated into the17 complaint in an apparent attempt to "lend artificial credence to the opinions" of the18 commentators and give the "appearance that such opinions are legally relevant to the dispute."19 Id. at 567.20 Such is not the case here. It is remarkable that Plaintiff, having brought this action and21 having leveled sharp allegations at five physicians, a hospital administrator and a registered22 nurse, complains -as the Defendants undertake their defense- that "the pleadings could23 potentially attract media attention" and embarrass him simply because they call into question his24 own behavior. See Plaintiffs Memorandum in Support ofMotion to Strike at 8:16.25 The Defendants did not invite this lawsuit but they do have the right to defend26 themselves.27 The fifth affirmative defense is squarely and directly relevant to the issues.28

DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES [OPPOSITION TOMOTION TO STRIK7


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Plaintiffs 52-page, 232-paragraph complaint is wide-ranging challenge to employmentconditions spanning almost 7 years. Plaintiff is seeking recovery of general damages foremotional distress and other unspecified injuries as a result of an alleged hostile workenvironment, harassment and discrimination. Plaintiffs own behavior is relevant. If evidence

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IV. CONCLUSION

no evidence.stricken at the Pre-Trial Conference along with any other claims and defenses for which there is

can be developed that Plaintiffeontributed to hostility in the work environment, Defendants havethe right to show his behavior to the trier of fact.

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IfDefendants are not able to develop evidence to support the defense,

Respectfully submitted,

it can be

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Dated: July 27, 2007 LAW OFFICES OF MARK A. WASSER

By:_-,!",s!,-,M"""a",rk,,-,-,A;.o-.-'W-'-'a"'s""se"'r'-- _Mark A. WasserAttorney for Defendants, County ofKern, et al.


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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) 444-6405E-mail: mwasseriWmarkwasser.com3

Bernard C. Barmann, Sr.KERN COUNTY COUNSELMark Nations, ChiefDeputy1115 Truxton Avenue, Fourth FloorBakersfield, CA 93301Phone: (661) 868-3800Fax: (661) 868-3805I E-mail: [email protected]

45678

I2

10 Attorneys for Defendants County ofKern,Peter Bryan, Irwin Harris, Eugene Kercher,II Jennifer Abraham, Scott Ragland, Toni SmithWilliam Roy12

Date: August 13, 2007Time: 9:30 a.m.Place: U.S. Bankruptcy Courthouse,Bakersfield Courtroom 8

DECLARATION OF MARKA. WASSERIN OPPOSTION TO MOTION TOSTRIKE

Date Act ion Filed: January 6, 2007Trial Date: August 26, 2008

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIA

Case No.: 1:07-cv-00026-0WW-TAG))))))))

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17 Plaintiff,18 vs.19 COUNTY OF KERN, et aI.,20 Defendants.

13141516 DAVID F. JADWIN, D.O.

21222324 I, Mark A. Wasser, declare as follows:25 1. I am counsel of record for Defendants and am familiar with this action. The26 following statements are made ofmy own personal knowledge and I can testify competently to27 them if called as a witness.28

I DECLARATION OF MARK A. WASSEIN OPPOSITION TO MOTION TO STRIK


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2. In my written and oral communications with counsel for Plaintiffbefore this2 motion was filed, I repeatedly suggested that the motion is premature and that Defendants will3 stipulate that the motion can be brought later, after reasonable discovery, and that Defendants4 will consider voluntarily dropping the fifth affirmative defense at or before the pretrial5 conference if appropriate relevant evidence has not been developed by that time.6 3. No discovery has occurred between the parties but I have informally interviewed7 some potential witnesses. On the basis ofmy limited and informal interviews I have learned that8 other employees at Kern Medical Center either quit or requested transfers to other departments to9 get away from Plaintiffand the stressful work environment he created. I have been told that, on10 one occasion, Plaintiff attempted to drag another physician out of a patient's hospital room by11 the physician's neck tie. 1have been told of other incidents where Plaintiffs behavior upset12 other hospital employees and caused unreasonable stress several working relationships. 113 believe there is a good faith basis for reasonable discovery into Plaintiffs behavior during his14 tenure at Kern Medical Center to deternline the extent to which Plaintiffs behavior contributed15 to hostility in the work environment.16 4. Attached hereto as Exhibit I, is a true and correct copy of a draft joint scheduling17 conference report that 1 submitted to Plaintiffs counsel. 1proposed the language in section IV,18 A, on page, 7 in response to Eugene Lee's letter ofMay 11,2007 in which he \vrote that19 Plaintiff "is not alleging any assault, battery, injury or wrongful death causes of action" Plaintif20 did not agree to the language 1proposed and thereafter dropped his objections to the seventh21 affirmative defense. It remains, unchallenged, in Defendants' answer.22 I certify under penalty of perjury that the foregoing is true and correct.23 Executed on July 27, 2007, at Sacramento, California.2425262728

LAW OFFICES OF MARK A WASSERBy: /s/ Mark A Wasser

Mark A WasserAttorney for Defendants, County ofKern, et al.

2 DECLARATION OF MARK A. WASSEIN OPPOSITION TO MOTION TO STRIK


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EXHIBIT I: Draft Joint Scheduling Report Pursuant to FRCP 26(f)


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UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF CALIFORNIA

23456 I78910 III1213

Eugene D. Lee SB# 236812LAW OFFlCE OF EUGENE LE E555 West Fifth Street, Suite 3100Los Angeles, California 90013Phone: (213) 992-3299Fax: (213) 596-0487email: elee0)LOEL.comAttorneys f o PlaintiffDAVID F. JADWIN. D.O.

Mark A. Wasser SB# 060160LAW OFFICES OFMARK WASSER400 Capilol Mall Ste 1100Sacramento. California 95814Phone: (916) 444-6400Fax: (916) 444-6405E-mail: [email protected] C. Bm'mann, Sr. SB# 060508KERN COUNTY COUNSELMark Nations, ChiefDeputy1115 Truxton Avenue. Fourth FloorBakersfield. California 93301Phone: (661) 868-3800Fax: (661) 868-3805E-mail: mnationstZlco.kern.ca.usAttorneys for Defendants COUNTY OF KERN,PETER BRYAN. IRWIN HARRIS. EUGENEKERCHER. JENNIFER ABRAHAM. SCOTTRAGLAND. TONI SMITH and WILLIAM ROY

j 9 Defendants.18 COUNTY OF KERN: et ai.

JOINT SCHEDULING REPORTPURSUANT TO FRCP 26(1)May 31. 20078:45 a.m.Courtroom 3Hon. OliverW. Wanger

Date:Time:Location:Judge:

DAVID I . JADWIN. D.O.,Plaintif{

v.

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1

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Date Action F'iled: January 6, 2007Date Set for Trial: None[PLAINTIFF'S ATTORNEY REQUESTSTELEPHONIC APPEARANCE!

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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 COllIi's Order Setting

Mandatory Scheduling Conference entered on January 8, 2007, all parties to the above-entitled actionhereby submit this Joint Scheduling Report for the Mandatory Scheduling Conference currently set for

,JOINT SCHEDULING REPORTPURSUANTTO FRCP26(O

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8:45 am, May 31, 2007. This act ion \vas originally filed on January 6, 2007, and is assigned to the2 Honorable Oliver W. Wanger.345

J. SUMMARY OF CONTENTIONS & RELIEF SOUGHT

6 A. Plaintiffs Summary7 !. This is an individual action brought by PlaintitTDavid F. Jadwin, D.O.. a whistleblo\ving8 physician with disabil it ies, against his employer, (i) the County of Kern ("Defendant County" or "the9 County"), owner and operator ofKern Medical Center ("KMC') the health facility at which Plaintiff10 was employed; ) individual Defendants Peter Bryan ("Bry'un"), Chief r:xecutive Officer of Kern11 Medical Center ("KMC'); Eugene Kercher, M.D., President of Medical Staff at KMC ("Kercher");12 Jennifer Abraham, ['vtD., lmmediate Past President of Medical Staff at KMC ("Abraham"); Scott13 1 Ragland, M,])" President-Elect of Medical Staff at KMC ("Ragland"); and Toni Smith, ChiefNurse14 Executive ofKMC, ("Smith"), both personally and in their official capacities; and (iii) individual15 Defendants lrVt'in 1v1.D., Chief Medical Orl'lcer of K1\'iC vViJl!am Roy, \,'1.D ..161718

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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.

or the Health & Safety Codel \vhich prohibits retaliation against a health care provider who reportssuspected unsafe care and conditions of patients in a health care facility; section 1102.5 of the Labor

20 I Code \vhich prohibits retaliation against an employee for reporting or refusing to participate in suspecte21 violations orthe law; the California Family Rights Act (sections 12945.1, et seq., of the Government22 Code) ("CFRA") and the Family and Medical Leave Act (sections 2601, et seq. orthe United States23 Code) ("FMLA") \vhich prohibi t interference with an employee's right to medica! !eave and retaliation24 for an employee'S exercise of the right to medical leave; and the Fair Employment and Housing Act25 [subdiv isions (a), (m) & (n) of section 12940 of the Government Code] ("FEBA") which prohihits26 discrimination against an employee with a disability, failure to provide reasonable accommodation, and2728 1All statutory references are to California Codes unless otherwise specified

)OINTSCHEDULING REPORT PURSUANT TO FRCP 26m

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failure to engage in an interactive process; and recovery ofwrongfully deducted wages under the Fair2 Labor Standards Act (29 U.S .c. 201, ct seq.) ("FLSA").3 3. Plaintiffsues Defendants County, Roy, Harris and DOES 1 through 10, for defamation; and4 also sues each of the individual Defendants except for Roy and Harris, both in their personal capacity5 and in their official capacity as members of the KMC Joint Conference Committee (".ICC"), for6 violation ofPlaintiffs 14th Amendment of the United States Constitution right to procedural due7 process pursuant to 42 U.S.C 1983 ("Due Process").8 4. Plaintiff brings this action for general, c o m p e n s a t o r ~ y , and punitive damages; prejudgment9 interest, costs and attorneys' fees; injunctive and declaratory relief; and other appropriate and just reliefj!0 resulting from Defendants' unlm-vfuJ conduct. !! 112I 'j

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B. Defendants' SummarvJ. PlaintitT is not a whistleb!O\ver and is not disabled. He \vas employed by the County ofKer

as a staffpathologist at Kern Medical Center pursuant to a \\Titten agreement and assigned to theposition of Chair of the Pathology Department.

2, During his tenure at Kern Medical Center, Plaintiff's behavior caused several pathologists,technicians and support personnel whom he criticized, intimidated, harassed and retaliated against toquit and seek employment elsewhere. He alienated many of the physicians at Kern Medical Centerthrough criticism, disruptive behavior, disrespect, anger, arrogance and retaliation. Plaintiffcomplaineabout procedures and policies at Kern Medical Center and interfered with patient care through Iobstructionist behavior and secretive practices. His pathology reports \vere characterized by frequentmistakes, changes in opinion and untimely service, all of v\"hich compromised patient care.Disagreements arose bet\veen PlaintitT and many of the other physicians at Kern Medica! Centerregarding Plaintiffs behavior, his anger and confrontational personal style, his inaccurate and untimelydiagnoses, his disruptive behavior, his complaints about medica! procedures, his refusal to follow even

26 his own rules, his intimidation of stafT and patient management.27 3. As a result of the stresses and disagreements that Plaintiff brought into the \vorkplace, his28

JOINT SCHEDULING REPORT PURSUANT TO FRCP 26(D

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234

injuries and illnesses, family health issues and outside business interests, Plaintiff requested andreceived a reduced \york schedule and multiple leaves of absence. He frequently \vorked only onc ortwo days a week and was absent from the hospital for long periods of time. Because he was neitherworking f u l l ~ t j m e nor present in the hospital, he \vas removed from the position of Chair of the

5 Pathology Department and his compensation \vas adjusted to that of a staffpathologist ,vithout67891011 r

departmental administrative responsibilities.4. Management at Kern Medical Center counseled Plaintiffabout his anger and confrontationa

style but Plaintiff was not receptive to the counseling and the \vork environment continued todeteriorate. Plaintiff was finally pJaced on paid administrative Jeave in an effort to allow the workenvironment to stabilize.

12 I13 1

14

I i. PROPOSED AMENDMENTS.Plaintiff intends to file a Second Supplemental Complaint to include allegations of continuing

discrimination and retaliation that occurred aftcr A p r i 1 2 4 ~ 2007. Plaintiff\vill insert the tollmving: On15 T\hy 1,2007, Defendant notiflcd Plaintiffthat he ",,'in remain on paid administrative leave until

28

26 with f ! r e a t c r , p a r t i c u l a r ~ t X , J i i i ) . , e l i m i n _ ~ ~ ? s j t h e seventh.affirmative defense (Cal. Civ. Proc. C o ~ e , . , _ ~ 335.127 two-year statute of limitations), and (lv) alleges the ninth affirmative defense (qualified immunity) \vith

16 his contract expires on October 4, 2007; and t h a t ~ contrary to its prior and customary practice, Defendm tJ7 County docs not intend to renew his employment contract. Although Plaintiff is no longer restricted to I18 the confines of his home during \vorking hours, he still may not enter KMC's premises or access his I

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office without prior written permission. The numbering of the following paragraphs ",,iiI! be adjustedaccordingly. Defendants have agreed in principle to stipuJate to the supplement; provided, however, tha

Plaintiffintends to file it for Defendants' prior revie\v.Defendants intend to Jile an Amended /\n5We1" that (i). \Crith regard to the third affirmative

Plaintiff first provide Defendants with the Second Supplemental Complaint in the form in which

defense, alleges the specific privileges and immunities relied on \ v i t h r g r e a t ~ l : p a r t i c u ! a r i t y + ( i i ) w i t hregard to the fourth affirmative defensc. alleges the spccific provisions of Cal. Civ. Section 47 rel ied on

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22reater particularity; : : " ~ l a i ~ t i f f has ag,reed. ~ principle to stivulate to the amendment, provided, ho\vcverthat Defendants first provide Plaintiffwith the Amended Answer in the form in which Defendants inten

3 to file it for Plaintiffs prior review.456789

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Ill. SUMMARY OF UNCONTESTED AND CONTESTED FACTS.A. Uncontested Facts

1. At all material times, Defendant Kern County \vas a local public entity \'.iithin the meaning 0 '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 continuouslbeen an employer \vithin the meaning of Fi'v-lLA 129 C.F.R. 825.105(C}], CFRA [Gov't Code 12945,2(b)(2l] FFHA [Gov'! Code 12926(dl]. and FLSA [29 U,S,c. 203] engaged in interstatecommerce, and regularly employing more than nfty employees within seventy five miles of Plaintiffs\vorkplace,

3. Defendant Bryan was Chief Executive Officer ofKMC and a resident of California duringmost of the time aiJeged in the Complaint.

4, At all material t imes, Defendant Eugene Kercher \-vas a citizen of California, a resident ofKern County, California, and President ofKMC Medical Staff, and a member of the KMC JointConference Committee ("JCC"),

5, At all material times, Defendant 1nvin lIarris \-vas a citizen of California, and a resident ofKern County, California, and ChiefMedical Officer at KMC, and a non-voting member of the .ICe.

6. At all material times, Defendant Jennifer Abraham was a citizen of California, and a residenof Kern County, California and Immediate Past President ofKMC Medical Staff.

7, At all material times, Defendant Scott Ragland was a citizen of California, and a resident ofKern County, California, President-Elect ofKMC Medical Staff, and a member or the .Ice.

8. At all material times, Defendant Toni Smith \vas a citizen of California, and a resident of

Deleted: The parties have stipulatedthe filing of these amendments and wstipulation and orde

:::, :: ..::::.::,:to the Court

26 Kern County, California, and ChiefNurse Executive ofKMC, and a member of the .Ice.27 9. At all material t imes, Defendant William Roy \vas a cit izen of California, and a resident of28 )OINT SCHEDULING REPORT PURSUANT TO FRCP 26(fj

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Kern County, California and Chief of the Division of Gynecologic Oncology at KMC10. Plaintiffhas continuously been an employee of Defendant Kern County since October 24,

2 0 0 0 ~11. Plaintiff is a pathologist \\ihom Defendant County hired as a pathologist at KMC and

appointed to the position afehair of the Pathology Department.12. Plaintiffwas compensated and provided \\' ith certain benefits pursuant to a \vrittcn

employment agrL-"Cment, the terms ofwhich speak t()f themselves. "13. Defendant Kern County placed Plaintiff's initial salary level at Step C.14. Defendants expected Plaintiffto be an effective member of the physicians' staff at KMC an

to contribute to the overaH improvement of the hospital. iI15 Plamtlff requested and recel\ed lea\cs of absence and reduced \-\ork schedules. the klms an r

conditions of and reasons fO! \\ hlch arc memonalized in \\rnmgs that speak l'OJ themseh es16 Plamtiffs former attorney sent a let ter to Kern Count) Counsel Bernard Barmann and Mr

Barmann met with Plaintiffon or about February 9, 2006. Ii 7. Defendant Bryan and Plaintiff exchanged \vritten communications regarding Plaintif-T's

reduced work schedule and requests for leaves of absence. PlaintilImet with Defendant Bryan andothers to discuss those subjects.

18. Defendant Bryan and Plaintiffexchanged written correspondence regarding Plaintiff's tenurand performance as Chair of the Pathology Department at KMC. All the writings speak for themselves.

19. On or about July 10,2006, the .TCC voted to remove Plaintiff from his position as Chair ofthe Pathology Department at Kern Medical Center.

20. Plaintiff was removed from his position as Chair of the Pathology Department in partbecause he ;vas neither \vorking fulltime nor present in the hospital.

21. Defendant County subsequently amended Plaintiff's employment agreement to reducePlaintiffs base compensation.

22. Defendant County appointed Dr. Philip Dutt Acting Chair of the Pathology Department23. Plaintiffreturned to work as a stafT pathologist at KMC on October 4, 2006.

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24. Plaintiffexchanged written correspondence with KMC Interim CEO David Culberson and2 those writings speak for themselves .3 25. Defendant Kern County placed Plaintiff on paid administrative leave, which continues to thi4 date.5 26. Defendant County ha


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2. Whether Defendant Kern County violated Cal. Health & Safety Code 1278.5, entitling2 Plaintiffto damages for retaliation for reporting his concerns about the health and safety of patients.3 3. Whether Defendant Kern County violated Cal. Lab. Code 1102.5, entitling Plaintiff to4 damages for retaliation against him for reporting suspected illegal acts.5 4. Whether Defendant Kern County violated Cal. Gov't Code 12945.1, et seq and 2 C.CR.6 7297.7(a), entitling Plaintiff to damages for retaliation for exercising his right to CFRA medical leave.7 5. Whether Defendants Kern County and Bryan violated 29 U.S.c. 2601, et seq., entitling8 Plaintiff to damages for interference with his FMLA Rights.9 6. Whether Defendant Kern County violated Cal. Gov't Code 12945.1, et seq., entitling10 1 Plaintiff to damages for violation of CFRA Rights.11 7. Whether Defendant Kern County violated Cal. Gov't. Code 12940(a) entitling Plaintiff to12 damages for disability discrimination. j13 8. Whether Defendant Kern County violated Cal. Gov't Code 12940(m) entitlingPlaintifTtoJ4 damages for failure to provide reasonable accommodation, and an injunction requiring compliance.J5 9. \Vbethcr Defendant Kern violated Cal. OO\-"t Code 12940(n) entitling Plaintiff to16 damages and injunctive relief for failure to engage in good faith in an interactive process. and an17 injunction requiring compliance.18 10. Pursuant to 42 U.S.C 1983, whether Defendants Bryan, Kercher, Ragland, Abraham, and I19 Smith. both personally and in their respective official capacities, violated the 14th Amendment of the20 U.S. Constitution entitling Plaintiff to damages and injunctive relief for procedural due process21 violations.22 1J. \Vhether Defendants Kern County, Roy, and Harris violated Cal. Civ. Code 45 4723 entitling Plaintiff for damages for defamation.24 12. Whether Defendant Kern County violated 29 U.S.c. 201 ct seq. entitling Plaintiffto25 damages for 'wages lost during periods when he was ready, willing, and able to \vork, but was denied26 reduced schedule medical leave, and forced to take full time leave; and an injunction requiring27 compliance.28 ,JOINT SCHEDULING REPORT PURSUANT TO FRCP 26(D

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V. STATUS OF ALL MATTERS BEFORE THE COURTThere are no matters presently set before the Court other than this Scheduling Conference.

VI. DISCOVERY PLAN

7 A. Rule 26(a)(l) Initial Disclosure Deadline8 [June 4, 2007J.91() Il Discover\' Subjects. Deadlines. Limitations. Phasing. Etc.11 I. Exper t Deadl ines]213114

Expert Disclosure Deadline: [December 3, 2007JSupplemental Expert Disclosure Deadline: [December 17, 2007]

2. Discovery Deadlines

]6 Expert:[December 3,2007][February 15,2008]

17 3. Subjects of Discovery: Plaintiff believes discovery will be needed on: (i) the various patient18 care quality and regulatory non-compliance issues with respect to which PlaintiIfblevv the whistle, (ii) i19 KMC's policies and procedures regarding reasonable accommodation of disabled employees, engaging20 in interactive process \yith disabled employees, FMLA/CFRA !cave, discrimination/retaliation against21 \vhistlebJowing employees, reduced \vork schedule, etc., (iii) the circumstances surrounding and22 dec is ion-making behind the various adverse employment actions taken against Plaintiff, including:23 reprimand of PlaintitT in connection \vith his presentation at the October 2005 oncology conference. I24 vvithdrawal of reduced work schedule, demotion and salary reduction, involuntary leave, n o n ~ r e n e w a i of25 contract, etc., and (Iv) the circumstances surrounding and decision-making behind Defendant Roy's,26 Harris's and Does I through IO's defamat ion of Plaintiff and Defendant County's ratification thereof27 Defendants bel ieve discovery will be needed regarding Plaintiffs education, qualifications and training28 )OINT SCHEDULING REPORT PURSUANT TO FRCP 2 6 ( ~

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his employment history, his outside business interests, specific events that transpired during Plaintiffsemployment, the relationships between Plaintiffand the other physicians and staff at KMC, the tUl-noveand departures of physicians and staff from the Pathology Department during Plaintiff's chairmanship,the circumstances of and reasons for Plaintiff's leaves of absence and reduced work schedule and thereasons why Plaintiff claims he is disabled.

4. Phasing: The parties arc not presently aware of any reason to phase discovery.5. Limitations to or Focus upon Particular Issues: The parties arc not presently aware of any

limitations on discovery.6. Depositions: The parties have agreed that July 2,2007 is the first possible date to send out

deposition notices, The parties have agreed that July 23 ,2007 is the first possible date for oraldepositions. Because most depositions will be held in Bakersfield and all counsel are out-of-tmvn, theparties have agreed to schedule depositions in blocks of multiple depositions at a single time to maketravel as cost-effective as possible. The parties \vil! set depositions on Tuesdays, \Vedncsda)'s andThursdays and \'vill allow enough time bet\\ 'een settings to allow adequate preparation. Shorter

15 depositions may be scheduled for the same The parties may" videotape and/or audio record16 depositions, and the video camera may be operated by the attorneys or their employees,17 ,18 C. Electronic Discovery19 The parties have in their custody and possession e-mails related to issues in this action and have20 each made requests of the other that all such e-mails be preserved and disclosed. I'he parties shall21 produce e-mails to eaeh other in Microsoft Outlook format. The parties are not presently mvare of any22 other electronic discm'ef) ' issues.23 1I24! D. Confidentialitv Orders25 Documents to be p roduced include patient medical records that contain confidential patient26 health care information, medical peer review records that are cont1dential pursuant to California27 Evidence Code section 1157, some documents that are protected by the attorney/cl ient privi lege and28

JOINT SCHEDULING REPORT PURSUANT TO FRCP 26(D

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some documents that include attorney \vark-product and trial preparation materials. The Defendants ar2 required to redact all contidential patient information before producing any patient records and will do

4 without redaction phall not be construed as a 'Naiver of the peer revic\v p r i v i l e g ~ in general or a waiver5 \vith regard to any other documents or person. 'I'he gartics h c r e b Y ~ , g r e e that Dcfendants'yroduction of6 certain specified relevant memos and e-mails that \vere sent to legal counsel for the County of Kern, as

3

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so. The p ' a r y i ~ s hereby a g r ~ e t h a t Defendants' production of certain s p e c i f i e d p ~ ~ r r e v i e w records

well as other, non-Iu\-vyer, County e m p l o y e e s ' r s ~ a l l not be construed as a waiver of the attorney/clientprivilege. Tbe n,arties hereby agree that Defendants'production of certain specified documents thatinclude attorney workwproduct and trial preparation materials shall not constitute a waiver of either the,>vark-product or trial preparation materials privileges as to any other materials.

The p,arties hereb)'agree that, in order to preserve the conJ'identia!i.tyrequired for continuedeffective treatment of Plaintiffs depression, anxiety, insomnia, and emotional distress, P j a i n t i f l ~ streating psychiatrists/psychologists shall not be required to produce their actual treatment notes, butinstead shall produce a summary oftheir treatment of PlaintitT's depression and emotional distress,including their diagnoses and prognoses, and the basis for their opinion, including rav.;, data of anypsychological 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 regardingthe timing and scope of the examination, including the specific tests to be performed, and promptproduction 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 ofprotection as trial-preparation material.

subjectto a stipulation tha

23 E. Changes in Limitations on Discoverv241 Given the number of defendants and vv'itncsses and the number and complexity of the issues,25 Plaintiff anticipates needing relieffrom the discovery limitations of Federal Rule of Civil Procedure26 30(a)(2)(A) (10 deposit ions per side) and Rule 33(a) (no more than 25 interrogatories per party).27 Defendants do not object to granting Plaintiffrelieffrom that limitation. Defendants anticipate that the28 ,JOINT SCHEDULING REPORTPURSUANTTO FRCP 26m. 11

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5 limitations on discovery.

deposition of the Plainti ff will take up to 21 hours because of the quantity of material that needs to be2 covered. Defendants therefore request relief from FRCP 30(d)(2),( I day of 7 hours per deposition).34

Plaintiff does not object to pefendants ' s r ~ q u e s t ; _ provided, _ hO\vever, that no s i n ~ l c clay ofPlaintiff.s,d e p o s i t i o n . s h ~ l I e x c e e d 7 hours. The parties arc not presently aware ofa need to change any other

67 F. Other Orders under Rules 26{c) or 16th) and (e )8 The parties arc not presently aware of a need for any protect ive or other orders other than as9 provided herein.10I I1213 A. Pre-Trial Motions

VII. AGREED-UPON DATES

1. NonDisposJtive Motionsfiling Deadline:I--Icard no latcr than:

[I\1arch 3, 2008][April 4, 2008J

17 2. Dispositive Motions181920

Filing Deadline:Heard no later than:

[May 2, 2008J[June 6, 2008J

21 B. Pre-Trial Conference222324

1. Settlement Conference:2. Pre-Trial Conference:

[February 15.2008][August 4, 2008J

25 C. Trial262728

Trial Date:

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43 MTS - Opposition MPA

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