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

I Mark A. Wasser CA SB #060160

LAW OFFICES OF MARK A. WASSER
2 400 Capitol Mall, Suite 1100
Sacramento, CA 95814
3 Phone: (916) 444-6400
Fax: (916) 444-6405
4 E-mail: mwasser(aJ.markwasser.com

5 Bernard C. Barmarm, Sr.

KERN COUNTY COUNSEL
6 Mark Nations, Chief Deputy
IllS Truxton Avenue, Fourth Floor
7 Bakersfield, CA 93301
Phone: (661) 868-3800
8 Fax: (661) 868-3805
E-mail: mnations@co.kern.ea.us
9
10 Attorneys for Defendants County of Kern,
Peter Bryan, Irwin Harris, Eugene Kercher,
11 Jennifer Abraham, Seott Ragland, Toni Smith
12 land Roy

13 UNITED STATES DISTRICT COURT

14 EASTER~ DISTRICT OF CALIFOR~IA

15
16 DAVID F. JADWIN, D.O. ) Case No.: 1:07-cv-00026-0WW-TAG
)
17 Plaintiff, ) DEFENDANTS' MEMORANDUM OF
) POINTS AND AUTHORITIES IN
18 vs. ) OPPOSTION TO MOTION TO STRIKE
)
19 COUNTY OF KERN, et aI., ) Date: August 13, 2007

~
Time: 9:30 a.m.
20 Defendants. Place: U.S. Bankruptcy Courthouse,

~
Bakersfield Courtroom 8
21
) Date Action Filed: January 6, 2007
22 ) Trial Date: August 26, 2008
)
23 ------------)
24 Defendants respectfully submit this memorandum in opposition to Plaintiffs motion to

25 strike the fifth affirmative defense.

26 I. STATUS OF THE CASE

27 After filing a complaint, an amended complaint and a supplemental complaint, the

28

DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES

OPPOSITION TO MOTION TO STRIK
I
 Case 1:07-cv-00026-OWW-TAG Document 43 Filed 07/27/2007 Page 2 of 9

I Plaintiff filed his Second Supplemental Complaint on June 13,2007. Defendants answered on

2 June 21, 2007. The initial scheduling conference was postponed until May 31, 2007 to allow

3 Plaintiff time to revise and finalize his pleadings. The Rule 26(f) initial disclosures have been

4 postponed, also, to August 6, 2007, to allow Plaintiff time to file this motion to strike. To date,

5 there has been no discovery or exchange of information between the parties. (Although not

6 discovery, Defendants copied and delivered to Plaintiff some computer files that Plaintiff

7 requested off the hard drive of his former County-assigned computer in April, 2007.) Plaintiff

8 requested and the Defendants agreed that depositions may not commence after September

9 23,2007. See June 6, 2006 Scheduling Order.

10 n. THE PLEADINGS AND THE MEET-AND-CONFER PROCESS

II After Defendants filed their answer to the second supplemental complaint, Plaintiff
12 objected to five of Defendants' nine affirmative defenses. See Letter of May II, 2007 from
13 Eugene D. Lee to Mark A. Wasser, Exhibit I to Amended Eugene D. Lee ("Amended Lee")
14 Declaration. Through a meet-and-confer process that lasted almost three months, the parties
15 resolved their disagreements over all but the fifth affirmative defense.
16 The parties' communications regarding the seventh affirmative defense are relevant to the
17 issues Plaintiff raises in this motion to strike. The seventh affirmative defense asserts the two-
18 year statute oflimitations on personal injuries found in Cal. Code Civ. Proc. § 335.1. his May
19 II, 2007 letter (Exhibit 1 to Amended Lee Declaration), Plaintiff s counsel V\Tote that "Plaintiff
20 is not alleging any assault, battery, injury or V\Tongful death causes of action" and asked
21 Defendants to strike the seventh affirmative defense. Defendants' counsel replied that
22 Defendants would voluntarily strike the seventh affirmative defense upon a representation from
23 Plaintiff that he was, in fact, "claiming no damages for claims encompassed" within section
24 335.1. Exhibit 2 to Amended Lee Declaration. Defendants even proposed a stipulation to that
25 effect for inclusion in the scheduling order. See Exhibit I to Mark A. Wasser ("Wasser")
26 Declaration.
27 Plaintiff rejected the proposed stipulation and, apparently after reflection, dropped his
28

DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES I

OPPOSITION TO MOTION TO STRI
2
 Case 1:07-cv-00026-OWW-TAG Document 43 Filed 07/27/2007 Page 3 of 9

1 objection to the seventh affirmative defense. It is clear from the complaint that Plaintiff is
2 claiming personal injuries and that Mr. Lee's statement to the contrary in his May 11 letter was
3 in error. For example, paragraph 141 of the complaint alleges that "Plaintiff has suffered and
4 continues to suffer non-economic damages, such as emotional distress, anxiety, humiliation, and
5 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 from
8 depression due to the work-related hostility ..." and "was suffering extreme distress from the
9 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 a
11 substantial factor in causing Plaintiff s harm." Plaintiff s prayer seeks, among other things,
12 "[g]eneral and compensatory damages according to proof." One ch,rra(;ter'ize these

13 allegations as fairly typical allegations of personal injury.

14 Thus, among his almost-dozen claims, Plaintiff seeks recovery of money damages for
15 personal injuries allegedly sustained as a result of a hostile work environment, unspecified
16 harassment and discrimination. It is in this context that Defendants' fifth affirmative defense
17 must be evaluated.
18 m. ARGUMENT
19 A. Motions to Strike lire Disfavored
20 Motions to strike are disfavored because of the limited importanee of pleadings in federal
21 practice and because they are often viewed as delaying tactics. RDF Media Ltd v. Fox
22 Broadcasting Co., 372 F.Supp.2d 556,566 (C.D.Cal. 2005); s.E.c. v. Sands, 902 F.Supp. 1149,
23 1165 (C.D.Cal. 1995); Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before Trial,
24 § 9:375 (2007).
25 To strike an affirmative defense, the moving party must convinee the court (1) that there
26 are no questions offact; (2) that any questions of law are clear and not in dispute and (3) that
27 under no set of circumstances could the defense succeed. Sands, 902 F.Supp. at 1165;
28

DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES I

OPPOSITION TO MOTION TO STRI
3
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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 stricken
3 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 th
6 function ofa Rule 12(f) motion to strike is to avoid the expenditure of time and money that must
7 arise from litigating spurious issues by dispensing with them before trial. Id. at 1527. The Court
8 I, continued, writing "immaterial" matter is that which has no essential or important
9 relationship to the claim. Id. "Impertinent" matter consists of statements that do not pertain to
10 the issues in question. Id.
II Applying that standard to the case before it, the Court ruled that Fogerty's allegations
12 about a tax shelter plan and dealings with two agents were properly stricken because they
13 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 party
16 has the right to challenge the legal sufficiency of a defense at any time and courts generally
17 consider the merits of a challenge to a defense whenever it is made. OR. Laborers-Employers
18 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 Denied
21 The fifth affirmative defense alleges that Plaintiff's own behavior caused some of the
22 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 and
25 contributory negligence is not a relevant concept. The defense simply alleges that Plaintiff bears
26 some responsibility for the hostility he alleges in the work environment.
27 III
28 III

DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES I

OPPOSITION TO MOTION TO STRI
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 Case 1:07-cv-00026-OWW-TAG Document 43 Filed 07/27/2007 Page 5 of 9

I 1. The motion is premature.

2 There has been no discovery and no facts have been developed. All Defendants have to
3 go on is the bare allegations in the complaint. All Plaintiff has is the bare language of the
4 answer. Plaintiff cannot make the requisite showing, now, that there are no facts to support the
5 fifth affirmative defense because the Defendants have not had an opportunity to develop any
6 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 defendants
8 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.
l O i n LeDuc, 814 F.Supp. at 830 - 831, the court similarly considered a motion to strike in
II the context of evidence that been developed and granted the motion in part and denied it in
12 part.
13 Striking the fifth affirmative defense before the Defendants have an opportunity to
14 investigate or develop any facts to support it is at odds with what the courts did in s.E.C v. Sands
15 and LeDuc v. Kentucky Cent. Life Ins. Co.
16 Despite the 20-day period specified in Rule 12(f), a plaintiff may challenge a defense at
17 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, after
20 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 or
22 before the Pre-Trial Conference if evidence to support the defense has not been developed by
23 then. Exhibits 5, 7 to Amended Lee Declaration; Wasser Declaration. Plaintiff rejected those
24 offers, asserting only that he will "not stand by and permit Defendants to conduct its [sic] fishing
25 expedition." See Plaintiff's Memorandum of Points and Authorities at 9:10.
26 2. The motion should not be used to limit appropriate discovery.
27 Defendants do not intend to conduct a fishing expedition and, if they did attempt such a
28

DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES I

OPPOSITION TO MOTION TO STRI
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 Case 1:07-cv-00026-OWW-TAG Document 43 Filed 07/27/2007 Page 6 of 9

1 misuse of discovery, Plaintiff could seek relieffrom this Court to stop it. However, Plaintiff
2 should not be allowed to use this motion to strike to secure a de facto protective order in advance
3 of any discovery. Defendants have no intent to "smear" Plaintiff and are surprised that Plaintiff
4 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 of
6 their defense.
7 3. The fifth affirmative defense is not scandalons.
8 Plaintiffs assertion that the fifth affirmative defense amounts nothing more a
9 cruelly derogatory attack on Plaintiff's character and competence" is not supported by any
10 language in the fifth affirmative defense. Nothing in the defense attacks Plaintiff's charactcr or
11 competence. The defense alleges that Plaintiff's behavior contributed to hostility in the work
12 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 distinctive
14 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 Matthews
17 Distributing Co., 961 F.2d 654 (7th Cir. 1992) was a decision on appeal after judgment. Id at
18 659. The District Court had considercd the factual record, including at least an arbitrator's
19 I opinion and award and the terms of a collective bargaining agreement and had treated the
20 defendants' motion to dismiss as a motion for summary judgment. Jd. The District Court struck
21 allegations that the defendants had intentionally caused a salmonella outbreak. The Seventh
22 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 plaintiffs
24 had presented no more than unsubstantiated rumor. Jd.
25 Talbot is another example of a motion to strike after full development of the evidence. It
26 does not support Plaintiff's attempt to use his motion to strike offensively to preclude the
27 development offacts. It does not support Plaintiff's assertion that the fifth affirmative defense is
28 "scandalous."

DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN

OPPOSITION TO MOTION TO STRIK
6
 Case 1:07-cv-00026-OWW-TAG Document 43 Filed 07/27/2007 Page 7 of 9

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 the
3 challenged allegation (which accused the defendants of attempting to suborn perjury) was not
4 scandalous. The court wrote that the allegation neither reflected cruelly on the dcfendant's moral
5 character, used repulsive language nor detracted from the dignity of the court. Id. at 1221. The
6 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 the

9 alleged hostility in his work environment are neither degrading nor irrelevant. They are clearly
10 not "cruel." They do not touch upon Plaintiff's character or competence. They do not impugn
11 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 gauge
13 their propriety. For example, in RDF Media 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 of words such as
15 "rip off', "Most Brazen Ripoff', "rush-job rip-off', and "carbon copy" than it was with the fact

16 that the words had been taken from articles and commentaries and incorporated into the
17 complaint in an apparent attempt to "lend artificial credence to the opinions" of the

18 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 and

21 having leveled sharp allegations at five physicians, a hospital administrator and a registered
22 nurse, complains -as the Defendants undertake their defense- that "the pleadings could
23 potentially attract media attention" and embarrass him simply because they call into question his
24 own behavior. See Plaintiffs Memorandum in Support of Motion to Strike at 8:16.
25 The Defendants did not invite this lawsuit but they do have the right to defend

26 themselves.
27 The fifth affirmative defense is squarely and directly relevant to the issues.

28

DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES [

OPPOSITION TO MOTION TO STRIK
7
 Case 1:07-cv-00026-OWW-TAG Document 43 Filed 07/27/2007 Page 8 of 9

I 4. The fifth affirmative defense is not legally insufficient.

2 Plaintiff contends that, because many of his claims are based on Defendants' alleged
3 failure to comply with statutes, evidence of Plaintiffs own behavior is irrelevant. Plaintiff
4 argues that his claims are "strict liability" claims. See Plaintiffs Memorandum of Points and
5 Authorities in Support of Motion to Strike at 4:23,6: 17.
6 First, as explained above, the complaint alleges "non-economic damages, such as
7 emotional distress, anxiety, humiliation, and loss of reputation" distinctly umelatcd to
8 Defendants' alleged failure to comply with CFRA, FMLA or the other statutes Plaintiff cites. If
9 Plaintiff claims to have suffered personal injury as a result of hostility in the work environment,
10 his contribution to that environment is relevant. A defense that puts his behavior in issue is
11 clearly "legally sufficient."
12 Second, evidence of a party' s own behavior is relevant even strict cases. See.
13 e.g., Safeway Stores, Inc. v. Nest-Kart, 21 Ca1.3d 322 (1978). It is true this is not a traditional
14 negligence case and Defendants do not suggest that concepts of traditional negligenee should be
IS imported, wholesale, into this action. Defendants do suggest that they are entitled to an
16 opportunity to develop facts to show whether Plaintiff contributed to the environment he claims
17 injured him.
18 Finally, no prejudice to the Plaintiff will result from reasonable discovery into his
19 behavior. Plaintiff is a litigant a case that levels substantial accusations at the medical staff of
20 Kern Medical Center. The Defendants, who worked with Plaintiff, have the right to introduce
21 evidence of Plaintiffs actions the same as Plaintiff has the right to introduce evidence of what
22 the Defendants did. Plaintiff appears to view his lawsuit as a one-way street.
23 c. Sanctions are Not Warranted
24 Plaintiffs request for sanctions is frivolous. As is more particularly stated in the
25 Declaration of Mark A. Wasser filed herewith, Defendants have a good faith belief in the factual
26 basis for the fifth affirmative defense. Defendants have no intention of conducting a discovery
27 "fishing expcdition" or attempting to "smear" Plaintiff. Defendants do intend to responsibly and
28 vigorously oppose his claims.

DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN

OPPOSITION TO MOTION TO STRI
8
 Case 1:07-cv-00026-OWW-TAG Document 43 Filed 07/27/2007 Page 9 of 9

1 IV. CONCLUSION

2 Plaintiffs 52-page, 232-paragraph complaint is wide-ranging challenge to employment

3 conditions spanning almost 7 years. Plaintiff is seeking recovery of general damages for
4 emotional distress and other unspecified injuries as a result of an alleged hostile work
5 environment, harassment and discrimination. Plaintiffs own behavior is relevant. If evidence
6 can be developed that Plaintiff eontributed to hostility in the work environment, Defendants have
7 the right to show his behavior to the trier of fact.
8 If Defendants are not able to develop evidence to support the defense, it can be
9 stricken at the Pre-Trial Conference along with any other claims and defenses for which there is
10 no evidence.
11 Respectfully submitted,
12

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

14

15 By:_-,!",s!,-,M"""a",rk,,-,-,A;.o-.-'W-'-'a"'s""se"'r'-- _
16 Mark A. Wasser
17 Attorney for Defendants, County of Kern, et al.

18

19

20

21

22
23

24

25

26
27

28

DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES I

OPPOSITION TO MOTION TO STRI
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 Case 1:07-cv-00026-OWW-TAG Document 44 Filed 07/27/2007 Page 1 of 17

I Mark A. Wasser CA SB #060160

LAW OFFICES OF MARK A. WASSER
2 400 Capitol Mall, Suite 1100
Sacramento. CA 95814
3 Phone: (916) 444-6400
Fax: (916) 444-6405
4 E-mail: mwasseriWmarkwasser.com

5 Bernard C. Barmann, Sr.

KERN COUNTY COUNSEL
6 Mark Nations, Chief Deputy
1115 Truxton Avenue, Fourth Floor
7 Bakersfield, CA 93301
Phone: (661) 868-3800
8 Fax: (661) 868-3805
I E-mail: mnations@co.kem.ca.us
9
10 Attorneys for Defendants County of Kern,
Peter Bryan, Irwin Harris, Eugene Kercher,
II Jennifer Abraham, Scott Ragland, Toni Smith
William Roy
12

13 UNITED STATES DISTRICT COURT

14 EASTERN DISTRICT OF CALIFORNIA

15

16 DAVID F. JADWIN, D.O. ~ Case No.: 1:07-cv-00026-0WW-TAG

17 Plaintiff, ) DECLARATION OF MARKA. WASSER

) IN OPPOSTION TO MOTION TO

~
18 vs. STRIKE

19 COUNTY OF KERN, et aI., ) Date: August 13, 2007

) Time: 9:30 a.m.
20 Defendants. ) Place: U.S. Bankruptcy Courthouse,
) Bakersfield Courtroom 8
21 )
) Date Action Filed: January 6, 2007

~
22 Trial Date: August 26, 2008

23 ------------)
24 I, Mark A. Wasser, declare as follows:

25 1. I am counsel of record for Defendants and am familiar with this action. The

26 following statements are made of my own personal knowledge and I can testify competently to

27 them if called as a witness.

28

I DECLARATION OF MARK A. WASSE

IN OPPOSITION TO MOTION TO STRIK
 Case 1:07-cv-00026-OWW-TAG Document 44 Filed 07/27/2007 Page 2 of 17

2. In my written and oral communications with counsel for Plaintiff before this
2 motion was filed, I repeatedly suggested that the motion is premature and that Defendants will

3 stipulate that the motion can be brought later, after reasonable discovery, and that Defendants
4 will consider voluntarily dropping the fifth affirmative defense at or before the pretrial
5 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 interviewed
7 some potential witnesses. On the basis of my limited and informal interviews I have learned that
8 other employees at Kern Medical Center either quit or requested transfers to other departments to
9 get away from Plaintiff and the stressful work environment he created. I have been told that, on
10 one occasion, Plaintiff attempted to drag another physician out of a patient's hospital room by

11 the physician's neck tie. 1 have been told of other incidents where Plaintiffs behavior upset
12 other hospital employees and caused unreasonable stress several working relationships. 1

13 believe there is a good faith basis for reasonable discovery into Plaintiff s behavior during his

14 tenure at Kern Medical Center to deternline the extent to which Plaintiff s behavior contributed
15 to hostility in the work environment.
16 4. Attached hereto as Exhibit I, is a true and correct copy of a draft joint scheduling
17 conference report that 1 submitted to Plaintiff s counsel. 1 proposed the language in section IV,
18 A, on page, 7 in response to Eugene Lee's letter of May 11,2007 in which he \vrote that

19 Plaintiff "is not alleging any assault, battery, injury or wrongful death causes of action" Plaintif
20 did not agree to the language 1 proposed and thereafter dropped his objections to the seventh

21 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.

24

25 LAW OFFICES OF MARK A WASSER

26 By: /s/ Mark A Wasser

27 Mark A Wasser
Attorney for Defendants, County of Kern, et al.
28

2 DECLARATION OF MARK A. WASSE

IN OPPOSITION TO MOTION TO STRIK
Case 1:07-cv-00026-OWW-TAG Document 44 Filed 07/27/2007 Page 3 of 17

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

 Case 1:07-cv-00026-OWW-TAG Document 44 Filed 07/27/2007 Page 4 of 17

Eugene D. Lee SB# 236812 Mark A. Wasser SB# 060160

LAW OFFlCE OF EUGENE LEE LAW OFFICES OF MARK WASSER
555 West Fifth Street, Suite 3100 400 Capilol Mall Ste 1100
2 Los Angeles, California 90013 Sacramento. California 95814
Phone: (213) 992-3299 Phone: (916) 444-6400
3 Fax: (213) 596-0487 Fax: (916) 444-6405
email: elee0)LOEL.com E-mail: mwasser@markwasser.com
4 Attorneys fo~ Plaintiff
DAVID F. JADWIN. D.O. Bernard C. Bm'mann, Sr. SB# 060508
5 KERN COUNTY COUNSEL
Mark Nations, Chief Deputy
6 I 1115 Truxton Avenue. Fourth Floor
Bakersfield. California 93301
7 Phone: (661) 868-3800
Fax: (661) 868-3805
8 E-mail: mnationstZlco.kern.ca.us
9 Attorneys for Defendants COUNTY OF KERN,
PETER BRYAN. IRWIN HARRIS. EUGENE
10 I KERCHER. JENNIFER ABRAHAM. SCOTT
RAGLAND. TONI SMITH and WILLIAM ROY
II

12 UNITED STATES DISTRICT COURT

13 FOR THE EASTERN DISTRICT OF CALIFORNIA

:: I DA VID I . JADWIN. D.O.,

16 ' Plaintif{ JOINT SCHEDULING REPORT
PURSUANT TO FRCP 26(1)
17 1 v.
Date: May 31. 2007
18 COUNTY OF KERN: et ai. Time: 8:45 a.m.
Location: Courtroom 3
j9 Defendants. Judge: Hon. Oliver W. Wanger
20 Date Action F'iled: January 6, 2007
Date Set for Trial: None
21
[PLAINTIFF'S ATTORNEY REQUESTS
22 TELEPHONIC APPEARANCE!
23
~41I
-
TO ALl. PARTIES AND THEIR ATTORNEYS OF RECORD AND THE HONORABLE COURT:
25
Pursuant to Rule 26(f) of the Federal Rules of Civil Procedure and the COllIi's Order Setting
26 Formatted: Font (Default) Arial, 10
Mandatory Scheduling Conference entered on January 8, 2007, all parties to the above-entitled action
27 Formatted: Left, Indent: left: 0"1
hereby submit this Joint Scheduling Report for the Mandatory Scheduling Conference currently set for Border: Top: solid line, Auto,
0-5 line
28
,JOINT SCHEDULING REPORT PURSUANT TO FRCP26(O
 Case 1:07-cv-00026-OWW-TAG Document 44 Filed 07/27/2007 Page 5 of 17

8:45 am, May 31, 2007. This action \vas originally filed on January 6, 2007, and is assigned to the

2 Honorable Oliver W. Wanger.

4 J. SUMMARY OF CONTENTIONS & RELIEF SOUGHT

5

6 A. Plaintiffs Summary

7 !. This is an individual action brought by PlaintitTDavid F. Jadwin, D.O.. a whistleblo\ving

8 physician with disabilities, against his employer, (i) the County of Kern ("Defendant County" or "the

9 County"), owner and operator of Kern Medical Center ("KMC') the health facility at which Plaintiff

10 was employed; ) individual Defendants Peter Bryan ("Bry'un"), Chief r:xecutive Officer of Kern

11 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"); Scott

13 1 Ragland, M,])" President-Elect of Medical Staff at KMC ("Ragland"); and Toni Smith, Chief Nurse

14 Executive ofKMC, ("Smith"), both personally and in their official capacities; and (iii) individual

15 Defendants lrVt'in 1v1.D., Chief Medical Orl'lcer of K1\'iC vViJl!am Roy, \,'1.D ..

16 the Division of Gynecologic Oncology at KMC ("Roy"); and DOES 1 through 10.

17 2. PlaintifFs claims against his employer, Defendant County, allege violations of section 1278. ~

18 or the Health & Safety Code l \vhich prohibits retaliation against a health care provider who reports

19 1 suspected 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 suspecte
21 violations orthe law; the California Family Rights Act (sections 12945.1, et seq., of the Government

22 Code) ("CFRA") and the Family and Medical Leave Act (sections 2601, et seq. orthe United States

23 Code) ("FMLA") \vhich prohibit interference with an employee's right to medica! !eave and retaliation

24 for an employee'S exercise of the right to medical leave; and the Fair Employment and Housing Act

25 [subdivisions (a), (m) & (n) of section 12940 of the Government Code] ("FEBA") which prohihits

26 discrimination against an employee with a disability, failure to provide reasonable accommodation, and Formatted: Font: (Default) Arial, 10

27 Formatted: Left, Indent: Left: 0",

Border: Top: solid line, Auto,
28 1 All statutory references are to California Codes unless otherwise specified 0.5 Line
)OINTSCHEDULING REPORT PURSUANT TO FRCP 26m
 Case 1:07-cv-00026-OWW-TAG Document 44 Filed 07/27/2007 Page 6 of 17

failure to engage in an interactive process; and recovery of wrongfully deducted wages under the Fair
2 Labor Standards Act (29 U.S.c. §§ 201, ct seq.) ("FLSA").
3 3. Plaintiff sues Defendants County, Roy, Harris and DOES 1 through 10, for defamation; and
4 also sues each of the individual Defendants except for Roy and Harris, both in their personal capacity
5 and in their official capacity as members of the KMC Joint Conference Committee (".ICC"), for
6 violation ofPlaintiffs 14th Amendment of the United States Constitution right to procedural due
7 process pursuant to 42 U.S.C § 1983 ("Due Process").
8 4. Plaintiff brings this action for general, compensator~y, and punitive damages; prejudgment
9 interest, costs and attorneys' fees; injunctive and declaratory relief; and other appropriate and just reliefj
!0 resulting from Defendants' unlm-vfuJ conduct. !
!1

12 B. Defendants' Summarv
I
.j' J. PlaintitT is not a whistleb!O\ver and is not disabled. He \vas employed by the County ofKer

14 as a staff pathologist at Kern Medical Center pursuant to a \\Titten agreement and assigned to the
15 position of Chair of the Pathology Department.
16 2, During his tenure at Kern Medical Center, Plaintiff's behavior caused several pathologists,
17 technicians and support personnel whom he criticized, intimidated, harassed and retaliated against to
18 quit and seek employment elsewhere. He alienated many of the physicians at Kern Medical Center
19 through criticism, disruptive behavior, disrespect, anger, arrogance and retaliation. Plaintiff complaine
20 about procedures and policies at Kern Medical Center and interfered with patient care through I
21 obstructionist behavior and secretive practices. His pathology reports \vere characterized by frequent
22 mistakes, 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! Center
24 regarding Plaintiffs behavior, his anger and confrontational personal style, his inaccurate and untimely
25 diagnoses, his disruptive behavior, his complaints about medica! procedures, his refusal to follow even
26 his own rules, his intimidation of stafT and patient management. Formatted: Font: (DefaUlt) Arial, 10

27 3. As a result of the stresses and disagreements that Plaintiff brought into the \vorkplace, his Formatted: Left, Indent: Left: 0",
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injuries and illnesses, family health issues and outside business interests, Plaintiff requested and

2 received a reduced \york schedule and multiple leaves of absence. He frequently \vorked only onc or

3 two days a week and was absent from the hospital for long periods of time. Because he was neither

4 working full~tjme 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 staff pathologist ,vithout

6 departmental administrative responsibilities.

7 4. Management at Kern Medical Center counseled Plaintiff about his anger and confrontationa

8 style but Plaintiff was not receptive to the counseling and the \vork environment continued to

9 deteriorate. Plaintiff was finally pJaced on paid administrative Jeave in an effort to allow the work

10 environment to stabilize.
11 r

12 I Ii. PROPOSED AMENDMENTS.

1
13 Plaintiff intends to file a Second Supplemental Complaint to include allegations of continuing

14 discrimination and retaliation that occurred aftcr Apri124~ 2007. Plaintiff\vill insert the tollmving: On

15 T\hy 1,2007, Defendant notiflcd Plaintiffthat he ",,'in remain on paid administrative leave until
16 his contract expires on October 4, 2007; and that~ contrary to its prior and customary practice, Defendm t

J7 County docs not intend to renew his employment contract. Although Plaintiff is no longer restricted to
I

18 the confines of his home during \vorking hours, he still may not enter KMC's premises or access his I Deleted: the

19 office without prior written permission. The numbering of the following paragraphs ",,iiI! be adjusted

20 accordingly. Defendants have agreed in principle to stipuJate to the supplement; provided, however, tha

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

22 Plaintiff intends to file it for Defendants' prior revie\v.

Defendants intend to Jile an Amended /\n5We1" that (i). \Crith regard to the third affirmative

24 defense, alleges the specific privileges and immunities relied on \vithrgreat~l:particu!arity+(ii)with

25 regard to the fourth affirmative defensc. alleges the spccific provisions of Cal. Civ. Section 47 relied on

26 with f!reatcr,particular~tX,Jiii).,elimin_~~?sjthe seventh .affirmative defense (Cal. Civ. Proc. Co~e,.,_~ 335.1 Formatted: Font: (Default) Arial, 10

27 two-year statute of limitations), and (lv) alleges the ninth affirmative defense (qualified immunity) \vith Formatted: left, Indent: left: 0",
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2reater particularity;::"~lai~tiff has ag,reed. ~n principle to stivulate to the amendment, provided, ho\vcver

2 that Defendants first provide Plaintiff with the Amended Answer in the form in which Defendants inten

3 to file it for Plaintiffs prior review.

Deleted: The parties have stipulated to
4 the filing of these amendments and will
stipulation and order for
5 Ill. SUMMARY OF UNCONTESTED AND CONTESTED FACTS. :::,:: ..::::.::,:to the Court

6 A. Uncontested Facts

7 1. At all material times, Defendant Kern County \vas a local public entity \'.iithin the meaning 0 '

8 sections 811.2 & 900.4 of the Government Code and is operating in Kern County, California.

9 2. During the entire course of Plaintiffs employment, Defendant Kern County has continuousl

been 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 interstate

commerce, 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 during

most of the time aiJeged in the Complaint.

4, At all material times, Defendant Eugene Kercher \-vas a citizen of California, a resident of

17 Kern County, California, and President ofKMC Medical Staff, and a member of the KMC Joint

18 Conference Committee ("JCC"),

19 5, At all material times, Defendant 1nvin lIarris \-vas a citizen of California, and a resident of

20 1 Kern County, California, and Chief Medical Officer at KMC, and a non-voting member of the .ICe.

21 i 6. At all material times, Defendant Jennifer Abraham was a citizen of California, and a residen
1
22 of Kern County, California and Immediate Past President ofKMC Medical Staff.

23 7, At all material times, Defendant Scott Ragland was a citizen of California, and a resident of

24 Kern County, California, President-Elect ofKMC Medical Staff, and a member or the .Ice.

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

26 Kern County, California, and Chief Nurse Executive ofKMC, and a member of the .Ice. Formatted: Font: (DefaUlt) Aria!, 10

27 9. At all material times, Defendant William Roy \vas a citizen of California, and a resident of Formatted: Left, Indent: Left: 0",
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Kern County, California and Chief of the Division of Gynecologic Oncology at KMC

2 10. Plaintiff has continuously been an employee of Defendant Kern County since October 24,

3 2000~

4 11. Plaintiff is a pathologist \\ihom Defendant County hired as a pathologist at KMC and

5 appointed to the position afehair of the Pathology Department.

6 12. Plaintiff was compensated and provided \\'ith certain benefits pursuant to a \vrittcn

7 employment agrL-"Cment, the terms of which speak t()f themselves. "

8 13. Defendant Kern County placed Plaintiff's initial salary level at Step C.

9 14. Defendants expected Plaintiff to be an effective member of the physicians' staff at KMC an

10 to contribute to the overaH improvement of the hospital. i

I I
II 15 Plamtlff requested and recel\ed lea\cs of absence and reduced \-\ork schedules. the klms anr

12 conditions of and reasons fO! \\ hlch arc memonalized in \\ rnmgs that speak l'OJ themseh es

13 16 Plamtiffs former attorney sent a letter to Kern Count) Counsel Bernard Barmann and Mr

14 Barmann met with Plaintiff on or about February 9, 2006. I

j5
! l
i 7. Defendant Bryan and Plaintiff exchanged \vritten communications regarding Plaintif-T's

16 reduced work schedule and requests for leaves of absence. PlaintilI met with Defendant Bryan and

17 others to discuss those subjects.

18 18. Defendant Bryan and Plaintiff exchanged written correspondence regarding Plaintiff's tenur

19 and performance as Chair of the Pathology Department at KMC. All the writings speak for themselves.

20 19. On or about July 10,2006, the .TCC 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

23 because he ;vas neither \vorking full·time nor present in the hospital.

24 21. Defendant County subsequently amended Plaintiff's employment agreement to reduce

25 Plaintiffs base compensation.

26 22. Defendant County appointed Dr. Philip Dutt Acting Chair of the Pathology Department formatted: Font: (Default) Ariai, 10

27 23. Plaintiff returned to work as a stafT pathologist at KMC on October 4, 2006. formatted: Left, Indent: left: 0",
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24. Plaintiff exchanged written correspondence with KMC Interim CEO David Culberson and

2 those writings speak for themselves.

3 25. Defendant Kern County placed Plaintiff on paid administrative leave, which continues to thi

4 date.

5 26. Defendant County ha<; provided Plaintiff \vith the information he requested from the

6 computer that had been previously assigned to him.

7 27. Plaimifffiled a claim \vith Defendant Kern County and the claim was rejected.

8 B. Contested Facts
9 1. Defendants contest all allegations and averments in the First Supplemented Complaint other

to I than those enumerated in Section A. Uncontested Facts.

I
II 2. Plaintiff contests Defendants' averment that Plaintiff disrupted the October, 2005, Ivionthly

12 Oncology Conference and prevented appropriate discussion of case management and that other

13 physicians at Kern Medical Center, including some of the Defendants, v,/ere concerned about Plaintiffs ,

conduct and \\'ith his interference with patient care. ,I

i
15 i 3. Plaintiff contests all averments contained in the Ans\ver to the First Supplemented Complai It
I
16 I other than those stated in Section A, Uncontested Facts.

17

18 IV. SUMMARY OF UNDISPUTED AND DISPUTED LEGAL ISSUES

19

20 A. Undisputed issues

21 1. Plaintiff is not seeking damages or relief for an\! personal injuries that v'iOuld be \vithin the

22 scoRe of section 335.1 Grthe CaUJornia Code of CIvil Procedure.swd the scope of anv relief awagled in

23 this matter shall be limited accordingly

24 i
25 B. Disputed Issues

26 1. Whether this Court has or should exercise supplemental jurisdiction over Plaintiff's state formatted: Font: (Default) Arial, 10

27 claims pursuant to 28 U.S.c. § 1367. formatted: Left, Indent: Left: 0",

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2. Whether Defendant Kern County violated Cal. Health & Safety Code § 1278.5, entitling

2 Plaintiff to 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 to

4 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., entitling

8 Plaintiff to damages for interference with his FMLA Rights.

9 6. Whether Defendant Kern County violated Cal. Gov't Code §§ 12945.1, et seq., entitling
10 1 Plaintiff to damages for violation of CFRA Rights.

11 7. Whether Defendant Kern County violated Cal. Gov't. Code § 12940(a) entitling Plaintiff to

12 damages for disability discrimination. j

13 8. Whether Defendant Kern County violated Cal. Gov't Code § 12940(m) entitlingPlaintifTto

J4 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 to

16 damages and injunctive relief for failure to engage in good faith in an interactive process. and an

17 injunction requiring compliance.

18 10. Pursuant to 42 U.S.C § 1983, whether Defendants Bryan, Kercher, Ragland, Abraham, and I
19 Smith. both personally and in their respective official capacities, violated the 14th Amendment of the

20 U.S. Constitution entitling Plaintiff to damages and injunctive relief for procedural due process

21 violations.
22 1 J. \Vhether Defendants Kern County, Roy, and Harris violated Cal. Civ. Code §§ 45· 47

23 entitling Plaintiff for damages for defamation.

24 12. Whether Defendant Kern County violated 29 U.S.c. §201 ct seq. entitling Plaintiff to

25 damages for 'wages lost during periods when he was ready, willing, and able to \vork, but was denied
26 reduced schedule medical leave, and forced to take full time leave; and an injunction requiring Formatted: Font: (DefaUlt) Arial, 10

27 compliance.

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2 V. STATUS OF ALL MATTERS BEFORE THE COURT

3 There are no matters presently set before the Court other than this Scheduling Conference.

5 VI. DISCOVERY PLAN

7 A. Rule 26(a)(l) Initial Disclosure Deadline

8 [June 4, 2007J.

1() Il Discover\' Subjects. Deadlines. Limitations. Phasing. Etc.

11 I. Expert Deadlines

]2 Expert Disclosure Deadline: [December 3, 2007J

131 Supplemental Expert Disclosure Deadline: [December 17, 2007]

14 2. Discovery Deadlines

[December 3,2007]

]6 Expert: [February 15,2008]

17 3. Subjects of Discovery: Plaintiff believes discovery will be needed on: (i) the various patient

18 care quality and regulatory non-compliance issues with respect to which PlaintiIfblevv the whistle, (ii) i

19 KMC's policies and procedures regarding reasonable accommodation of disabled employees, engaging

20 in interactive process \yith disabled employees, FMLA/CFRA !cave, discrimination/retaliation against

21 \vhistlebJowing employees, reduced \vork schedule, etc., (iii) the circumstances surrounding and

22 decision-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.
I
24 vvithdrawal of reduced work schedule, demotion and salary reduction, involuntary leave, non~renewai of

25 contract, etc., and (Iv) the circumstances surrounding and decision-making behind Defendant Roy's,

26 Harris's and Does I through IO's defamation of Plaintiff and Defendant County's ratification thereof Formatted: Font: (Default) Arial, 10

27 Defendants believe discovery will be needed regarding Plaintiffs education, qualifications and training Formatted: Left, Indent: Left: 0",
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his employment history, his outside business interests, specific events that transpired during Plaintiffs

2 employment, the relationships between Plaintiff and the other physicians and staff at KMC, the tUl-nove

3 and departures of physicians and staff from the Pathology Department during Plaintiff's chairmanship,

4 the circumstances of and reasons for Plaintiff's leaves of absence and reduced work schedule and the

5 reasons why Plaintiff claims he is disabled.

6 4. Phasing: The parties arc not presently aware of any reason to phase discovery.

7 5. Limitations to or Focus upon Particular Issues: The parties arc not presently aware of any

8 limitations on discovery.

9 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 oral

depositions. Because most depositions will be held in Bakersfield and all counsel are out-of-tmvn, the

parties have agreed to schedule depositions in blocks of multiple depositions at a single time to make

travel as cost-effective as possible. The parties \vil! set depositions on Tuesdays, \Vedncsda)'s and

Thursdays 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 record

16 depositions, and the video camera may be operated by the attorneys or their employees,

17
,
18 C. Electronic Discovery

19 The parties have in their custody and possession e-mails related to issues in this action and have

20 each made requests of the other that all such e-mails be preserved and disclosed. I'he parties shall

21 produce e-mails to eaeh other in Microsoft Outlook format. The parties are not presently mvare of any

22 other electronic discm'ef)' issues.

23 1
I
24! D. Confidentialitv Orders
25 Documents to be produced include patient medical records that contain confidential patient

26 health care information, medical peer review records that are cont1dential pursuant to California Formatted: Font: (DefaUlt) Arial, 10

27 Evidence Code section 1157, some documents that are protected by the attorney/client privilege and Formatted: Left, Indent: Left: 0",
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some documents that include attorney \vark-product and trial preparation materials. The Defendants ar

2 required to redact all contidential patient information before producing any patient records and will do

3 so. The p'aryi~s hereby agr~ethat Defendants' production of certain specifiedp~~rreview records
4 without redaction phall not be construed as a 'Naiver of the peer revic\v privileg~ in general or a waiver

5 \vith regard to any other documents or person. 'I'he gartics hcrebY~,gree that Dcfendants'yroduction of

6 certain specified relevant memos and e-mails that \vere sent to legal counsel for the County of Kern, as
subject to a stipulation that
7 well as other, non-Iu\-vyer, County employees'rs~all not be construed as a waiver of the attorney/client

8 privilege. Tbe n,arties hereby agree that Defendants'production of certain specified documents that

9 include attorney workwproduct and trial preparation materials shall not constitute a waiver of either the

10) ,>vark-product or trial preparation materials privileges as to any other materials.

II The p,arties hereb)'agree that, in order to preserve the conJ'identia!i.tyrequired for continued

12 effective treatment of Plaintiffs depression, anxiety, insomnia, and emotional distress, Pjaintifl~s

13 treating psychiatrists/psychologists shall not be required to produce their actual treatment notes, but

instead 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 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

18 the timing and scope of the examination, including the specific tests to be performed, and prompt

19, production of the subsequent report and raw data supporting the report to all parties.
1
20 The parties are not presently aware of any other issues relating to claims of privilege or of

21 protection as trial-preparation material.

22
23 E. Changes in Limitations on Discoverv

241 Given the number of defendants and vv'itncsses and the number and complexity of the issues,

25 Plaintiff anticipates needing relief from the discovery limitations of Federal Rule of Civil Procedure

26 30(a)(2)(A) (10 depositions per side) and Rule 33(a) (no more than 25 interrogatories per party). FOrmatted: Font: (Default) Arial, 10

27 Defendants do not object to granting Plaintiff relief from that limitation. Defendants anticipate that the Formatted: left, Indent: left: 0",
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deposition of the Plaintiff will take up to 21 hours because of the quantity of material that needs to be

2 covered. Defendants therefore request relief from FRCP 30(d)(2),( I day of 7 hours per deposition).

3 Plaintiff does not object to pefendants 'sr~quest;_provided, _ hO\vever, that no sin~lc clay ofPlaintiff.s,

4 deposition.sh~lIexceed7 hours. The parties arc not presently aware ofa need to change any other

5 limitations on discovery.

7 F. Other Orders under Rules 26{c) or 16th) and (e)

8 The parties arc not presently aware of a need for any protective or other orders other than as

9 provided herein.

10

II VII. AGREED-UPON DATES

12

13 A. Pre-Trial Motions

1. Non·DisposJtive Motions
filing Deadline: [I\1arch 3, 2008]

I--Icard no latcr than: [April 4, 2008J

17 2. Dispositive Motions

18 Filing Deadline: [May 2, 2008J

19 Heard no later than: [June 6, 2008J

20
21 B. Pre-Trial Conference

22 1. Settlement Conference: [February 15.2008]

23 2. Pre-Trial Conference: [August 4, 2008J

24

25 C. Trial

26 Trial Date: [September 2, 2008J Formatted: Font: (Default) Arial, 10

27

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VIII. SETTLEMENT

2 The parties are interested in exploring the opportunity to settle this matter before incurring

3 additional attorney fees and costs. Court-ordered mediation, private mediation or an Early Case

4 Conference might be bcneHcial.

5
6 IX. TRIAL BY JURY

7 Plaintiff has requested ajury trial on all possible issues and claims,

9 X. ESTIMATE OF NUMBER OF TRIAL DAYS REQUIRED

10 ' The parties estimate that trial wlil take 12-15 days.

111
12 XI. BIFURCATION OF TRIAL
Neither party anticipates the need for bifurcation,
13

Xii. RELATED MA TTERS

The parties are unmNure of any related matters pending in this Court or any other court, includin)

any bankruptcy court.

RESPECTFULLY SUBMITTED on May 24, 2007,

19'

20 Is! Eugene D. Lee

LA W OFFICE OF EUGENE LEE
21 555 West Fifth Street, Suite 3100
Los Angeles, California 90013
22 Phone: (213) 992-3299
Fax: (213) 596-0487
23 1 email: d~~(fl',LOEloi,.C;:Jlm
Attorney for PlalnlilTDAVID F. JADWIN. D,O,
24

25
lsi Mark A. Wasser, Cali[ SB# 060160
26 Formatted: Font: (Default) Arial, 10
LAW OFFICES OF MARK WASSER
400 Capitol Mall, Ste, 1100
27 Sacramento, California 95814 Formatted: left, Indent: Left: 0",
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Fax: (916) 444-6405

EMmail: m\vasser(wmarkwasser.com
Attorneys for Defendants
2 COUNTY OF KERN, PETER BRYAN, IRWIN HARRIS, EUGENE KERCHER, JENNIFER
ABRAHAM, SCOTT RAGLAND, TONI SMITH and WILLIAM ROY,
3

4
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