1 a response.
2 On April 16, 2008, during a break at a deposition, defendants stated that they wished to conduct
3 a mental examination of plaintiff. Plaintiff yet again requested the kinds of tests to be conducted, the
4 scope of examination and the name of the examining psychiatrist. Defendants said they would provide
5 such information shortly.
6 On May 1, 2008, defendants asked plaintiff over a series of emails to stipulate to a one month
7 delay in disclosure of Rule 26 expert witness opinion reports. See Exhibit 6. Defendants stated:
8 I think someone in Wanger’s chambers goofed with the May 5 date, frankly. It is over
180 days before trial. That is too early. 90 days is typical.”
9 (See Exhibit 6.)
10 Defendants further stated:
11 For example, we need to do the IME on Dr. Jadwin. I have the information you have
requested about the scope of examination, etc. and will get that to you next week. As
12 soon as we can set that, I will know how long it will take for the examining physician to
render his report. I delayed setting that, you will recall, because you had told me Dr.
13 Jadwin was going to have surgery.
(See Exhibit 6.)
14
Plaintiff responded
15
First, I do not have any recollection whatsoever of your delaying the defense mental
16 exam because of Dr. Jadwin’s surgery. Dr. Jadwin’s surgery became an issue only in
relation to the setting of his deposition and nothing else. Dr. Jadwin’s deposition was
17 held on March 11/12, 2008. What I do recall is that, beginning January 22, 2008 and
repeatedly thereafter, I asked you for further details regarding the scope of the defense
18 mental exam, type of tests to be performed, etc., and never received them. To date, I still
have not received them. Plaintiff previously agreed to defendants’ request for a 3 month
19 continuance of pre‐trial and trial dates in order to accommodate KMC’s logistical
difficulties in gathering and producing documents. Judge Wanger has made it very clear
20 that no further extensions would be granted. In any case, after giving your request much
thought, Plaintiff cannot agree to yet another stipulation by defendant for a 1 month
21 continuance on expert deadlines.
(See Exhibit 6.)
22
On May 2, 2008, defendants sent an email to plaintiff inviting plaintiff “to hold onto you [expert]
23
reports and not disclose them until our motion for partial relief from the scheduling order is resolved.”
24
Plaintiff responded, “Plaintiff intends to adhere to Judge Wanger’s trial schedule.” See Exhibit 7.
25
Also on May 2, defendants finally provided plaintiff with the details of the requested defense
26
psychological examination of plaintiff. Defendants stated:
27
We want to have Dr. Jadwin examined by Dr. Robert Burchuk, a psychiatrist in
28 Woodland Hills. The evaluation will consist of two, 4-hour sessions on two different
1 days. The sessions will be oral interviews and will not involve any testing. If any tests
are to be administered to Dr. Jadwin, they will be done separately and only after separate
2 arrangements are made with you.
(See Exhibit 8).
3
Plaintiff replied that same day, asking defendants to send over a draft stipulation. To date, plaintiff has
4
not received such draft.
5
On May 5, 2008, defendants asked plaintiff to stipulate to shortened time to hear a motion for
6
partial relief from the scheduling order. Plaintiff replied that he would so stipulate, provided defendants
7
agreed to (1) submit their motion to Judge Wanger, not Magistrate Judge Goldner, as defendants were
8
requesting a variance to the Scheduling Order, and (2) stipulate to permit plaintiff to file a supplemental
9
(not amended) complaint, a draft of which plaintiff had sent to defendants on April 17, 2008, but to
10
which plaintiff had never gotten a response. Defendants refused both of plaintiff’s requests. See Exhibit
11
9.
12
On May 5, 2008, the deadline set by the Court for expert disclosure pursuant to Rule 26(a)(2),
13
plaintiff served on defendants his disclosures of expert witnesses in full compliance therewith. Plaintiff
14
fully disclosed the written opinion reports, credentials, publications, testimony history, fee schedules,
15
and other required information for four expert witnesses. See Exhibit 10.
16
Also on May 5, defendants filed a Notice of Designation with the Court, purporting to comply
17
with Rule 26(a)(2). See Exhibit 11. However, the Notice of Designation did not comply with Rule
18
26(a)(2) in that it did not include any written opinion reports, nor the list of cases in which Dr. Burchuk
19
(forensic psychiatrist) and Dr. Sarkasian (vocational rehabilitation) had testified in, nor a list of
20
publications authored by Dr. Sarkasian during the past 10 years. The disclosures of the fee schedules for
21
Drs. Burchuk and Olson-Buchanan (behavioral specialist) were also incomplete.
22
Also on May 5, defendants filed the instant ex parte application to shorten time.
23
II. ARGUMENT
24
A. Defendants’ Request Is Disfavored Because Defendants Waited until the Day of the
25 Deadline
26 Local Rule 6-144 of this Court states:
27 Counsel shall seek to obtain a necessary extension from the Court or from other counsel
or parties in an action as soon as the need for an extension becomes apparent. Requests
28
1 for Court-approved extensions brought on the required filing date for the pleading or
other document are looked upon with disfavor.
2
3 It must also be established that the moving party is without fault in creating the crisis or that the crisis
4 occurred as a result of excusable neglect. See Mission Power Engineering Co. v. Continental Cas. Co.,
5 (CD CA 1995) 883 F.Supp. 488, 492 (“Ex parte applications are not intended to save the day for parties
6 who have failed to present requests when they should have ... ”); see also In re Intermagnetics America,
7 Inc. (CD CA 1989) 101 BR 191, 193.
8 Defendants have been well aware of the expert witness designation deadline since at least the
9 Rule 26(f) conference. Initial disclosures were exchanged on August 6, 2007, after which discovery has
10 been ongoing for more than 9 months and counting. Only 2 more months of discovery remain. Plaintiff
11 has already conducted 13 depositions and propounded two sets of document requests and interrogatories.
12 Defendants meanwhile have yet to propound any written discovery and have conducted just one
13 deposition, that of the plaintiff. Plaintiff has been requesting the requisite details of defendants’
14 proposed psychological examination of plaintiff since January 22, 2008 and only just recently have
15 defendants finally given plaintiff this information. In short, defendants have been utterly dilatory in
16 conducting discovery in this action. To make matters worse, defendants waited until the day of the
17 deadline for disclosing expert witnesses before filing the instant ex parte request for relief. Defendants’
18 request is disfavored and given defendants’ own inexcusable neglect in creating the crisis, it should be
19 denied.
20 B. Defendants’ Experts are Unprepared, and Defendants Have No Substantial
Justification for That
21
In Shumaker v. West, the Southern District of West Virginia observed that
22
The deadlines relating to expert disclosures and the requisites provided in Rule 26
23 regarding the expert report are there for good reason. Both parties are entitled to
knowledge relating to the other side's experts. Without access to the identity of an expert
24 witness and the expert's report, an opposing party cannot properly prepare its case or
rebut the other party's expert witness.
25 (196 F.R.D. 454, 456 (S.D. W. Va. 2000)).
26 In the case cited by defendants in support of their request, Minnard v. Rotech Healthcare Inc., this Court
27 observed:
28
1 productivity, especially as his symptomatology has decreased over the several past months of
2 treatment.” (Bates No. DFJ02618). Defendants also emailed plaintiff with a request for a psychological
3 examination of plaintiff on January 22, 2008 but were dilatory in responding to plaintiff’s repeated
4 requests for details about the examination.
5 As for defendants’ vocational rehabilitation expert, defendants knew at least as early as August
6 6, 2007, when Initial Disclosures were exchanged, that plaintiff was claiming future wage loss as
7 damages. This is because plaintiff included in his Initial Disclosures a 77-page Rule 26(a)(2) report by
8 his economic expert, complete with credentials, list of publications, fee schedule and past court
9 testimony, etc. That report also included two future offset scenarios: 1) plaintiff’s startup business fails
10 completely in which case plaintiff takes on contract pathologist work and 2) plaintiff’s startup business
11 succeeds, eventually replacing his lost income completely.
12 As for defendant’s behavioral expert, defendants have long had full access to all the information
13 needed to timely prepare a report. Defendants obviously enjoy full access to former and current
14 employees of Kern Medical Center who witnessed plaintiff’s alleged “behavior” at issue in this action.
15 Defendants, as is the case with most defendants, have also enjoyed full access to all of the documents
16 relevant to this action, including the Initial Disclosures, plaintiff’s Rule 26 supplemental disclosures of
17 January 8, 2008 and March 11, 2008. Defendants also took the videotaped deposition of Dr. Jadwin for
18 three days, from January 8 to 10, 2008, and then again for two more days, on March 11 and 12, 2008. It
19 should be noted that defendants do not now request an examination of plaintiff by their behavioral
20 expert.
21 C. If Defendants’ Request for Yet Another 1 Month Continuance of Expert Report
Disclosure Is Granted, Plaintiff Will Be Prejudiced
22
The Court’s Order granting defendants’ 3-month continuance stated in bolded letters: “No
23
further continuances will be granted (oww).” Plaintiff has taken great pains to observe the Court’s
24
trial schedule and was successful in fully complying with the expert designation deadline.
25
If defendants’ request for a 1-month continuance on expert report disclosure is granted, the
26
remaining pre-trial schedule will become compressed, with various deadlines running into each other in
27
a cascading effect. Perhaps plaintiff’s email to defendants sums up the prejudice to plaintiff best:
28
1 We’re bumping up against a lot of deadlines now. June 4 for supplemental expert
designation, July 7 discovery cutoff, August 4 dispositive motion filing deadline. Just as
2 a for instance, if we take depos of experts after July 7 as you suggest, the delay in
getting the depo transcripts will cause problems in terms of filing dispositive motions by
3 August 4. What you’re proposing will compress the entire pre‐trial schedule for plaintiff
and the only fair relief will be a continuance of all pre‐trial deadlines, which plaintiff is
4 not able to agree to. Plaintiff already agreed to your request for a 3 month continuance.
Reports are the critical element in Rule 26 expert disclosure. In my view, they’re
5 practically synonymous. You’ve had more than 9 months of discovery to get your expert
reports ready. Plaintiff is ready and able to meet the deadline. You’ve waited until just a
6 few days prior to the expert designation deadline to propose a delay. That’s unfortunate
but I don’t see how that is plaintiff’s problem. And perhaps most importantly, Judge
7 Wanger has made it crystal clear that no further extensions will be granted. I’m not
about to go re‐jiggering the trial schedule set by Judge Wanger. In my view, your asking
8 him to do so is ill‐advised.
See Exhibit 7.
9
III. CONCLUSION
10
Defendants suggest discovery is not nearly complete, that plaintiff has announced his intention to
11
take as many as 20 more depositions. (Doc. 118, 2:18-19). They insist defendants must know the
12
theories plaintiff is pursuing before their experts can complete their reports, that the plaintiff has done
13
little to develop any evidence to support the allegations in his complaint and have focused their
14
depositions instead on defendants’ affirmative defenses. (Ibid. at 2:19-22).
15
If defendants are unaware of plaintiff’s theories, it is solely because they have been dilatory.
16
They have not propounded a single set of written discovery. They have conducted the deposition only of
17
plaintiff himself. Apparently, they have not carefully read plaintiff’s Second Supplemental Complaint
18
(Doc. 30), which lays out plaintiff’s claims and allegations in excruciating detail spanning 52 pages.
19
It should be noted that defendants’ suggestion that plaintiff has been dilatory in conducting
20
depositions is baseless. While plaintiff is indeed holding off deposing the defendants and main witnesses
21
until the last two months of discovery, plaintiff does so for good cause. On December 21, 2007, plaintiff
22
filed with the Court a motion to compel production of documents in response to plaintiff’s requests for
23
production, set one. Plaintiff had served those requests on defendants on October 11, 2007. In response,
24
Defendants chose to withhold numerous critical documents based upon objections of, among other
25
things, state-based peer review and personnel privacy privilege, even with respect to plaintiff’s federal
26
law causes of action. After extensive briefing by plaintiff on this important issue of the applicability of
27
state-based privileges to federal law causes of action, Magistrate Judge Theresa Goldner heard the
28
1 motion on January 14, 2008, and took the matter under submission. To date, almost four months later
2 and with less than two months remaining in discovery, no ruling has issued. Plaintiff hopes to delay
3 conducting his most critical depositions until after a ruling is issued so the depositions can be conducted
4 with the benefit of having the requested documents.
5 In Shumaker v. West, the court considered the defendant’s motion to compel a medical exam of
6 plaintiff when the defendant had failed to attach his report to his Rule 26(a)(2)(B) expert disclosures. In
7 that case, the defendant had filed their motion to compel the Rule 35 exam 6 days prior to the expert
8 designation deadline. The court denied the defendant’s request, reasoning as follows:
9 On or around August 22, 2000, Defendant requested that Plaintiff agree to an
examination by Dr. Manges. When Plaintiff refused, Defendant filed the instant Motion
10 on August 31, 2000. On or around September 6, 2000, Defendant served his expert
disclosures pursuant to Rule 26(a)(2)(B), disclosing Dr. Manges as an expert, but did not
11 attach a report. (196 F.R.D. 454, 456 (S.D. W. Va. 2000))…. By at least September 5,
2000, if he intended to use Dr. Manges as an expert, Defendant was required under Rule
12 26 to have Dr. Manges' medical report in hand and ready to turn over to the Plaintiff.
Nevertheless, Defendant failed to attach a report to his expert disclosures. To comply
13 with the Rule, Defendant should have sought to obtain the medical examination, which
he now seeks by motion filed August 31, 2000, well before the September 5, 2000,
14 deadline.
196 F.R.D. 454, 456 (S.D. W. Va. 2000).
15
In the instant case, defendants have failed to conduct any medical or vocational exam of plaintiff.
16
Plaintiff requested the requisite details of defendants’ requested psychological exam since January 22,
17
2008, but only just recently did defendants finally give plaintiff this information. Moreover, defendants’
18
ex parte motion represents the first instance of plaintiff’s ever hearing of defendants’ desire to conduct a
19
vocational exam on plaintiff. There has been no prior mention of it to plaintiff whatsoever.
20
21
Plaintiff respectfully requests that the Court deny defendants’ ex parte request for relief from the
22
May 5, 2008 expert designation deadline, and further rule that defendants are not permitted to conduct a
23
psychological, vocational, or any other exam on plaintiff.
24
25
Respectfully submitted on May 7, 2008.
26
27
/s/ Eugene D. Lee SB# 236812
28 LAW OFFICE OF EUGENE LEE
EXHIBIT 1
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 12 of 88
Eugene D. Lee
From: Mark Wasser [mwasser@markwasser.com]
Sent: Monday, May 21, 2007 5:18 PM
To: Eugene Lee; Joan Herrington
Cc: Karen Barnes; MARK NATIONS
Subject: draft Joint Scheduling Order 5.21.07 - Blackline
Attachments: draft Joint Scheduling Order 5.21.07 - Blackline.doc
Gene,
Second, here is the JCR with my revisions. I deleted the explanatory sentences about changing the dates because I view
them as unnecessary. This Report is the product of our joint conference. It does not matter that we have changed the
dates since we had our telephone conference. It has been an iterative process and has continued until now.
Third, I adjusted some of the new dates so they fall on weekdays and not weekends.
Finally, I added a sentence about the timing of your motions to strike. I do not want the Court to think we agreed that you
should bring those motions now. I believe they are premature, as I wrote in my recent e-mails, and will argue that in my
opposition. I do not want to give that up by appearing to agree that they need to be brought now.
Mark
1
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1 8:45 am, May 31, 2007. This action was originally filed on January 6, 2007, and is assigned to the
2 Honorable Oliver W. Wanger.
3
4 I. SUMMARY OF CONTENTIONS & RELIEF SOUGHT
5
6 A. Plaintiff’s Summary
7 1. This is an individual action brought by Plaintiff David F. Jadwin, D.O., a whistleblowing
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; ) (ii) individual Defendants Peter Bryan (“Bryan”), Chief Executive Officer of Kern
11 Medical Center (“KMC”); Eugene Kercher, M.D., President of Medical Staff at KMC (“Kercher”);
12 Jennifer Abraham, M.D., Immediate Past President of Medical Staff at KMC (“Abraham”); Scott
13 Ragland, M.D., President-Elect of Medical Staff at KMC (“Ragland”); and Toni Smith, Chief Nurse
14 Executive of KMC, (“Smith”), both personally and in their official capacities; and (iii) individual
15 Defendants Irwin Harris, M.D., Chief Medical Officer of KMC (“Harris”); William Roy, M.D., Chief of
16 the Division of Gynecologic Oncology at KMC (“Roy”); and DOES 1 through 10.
17 2. Plaintiff’s claims against his employer, Defendant County, allege violations of section 1278.5
18 of the Health & Safety Code1 which prohibits retaliation against a health care provider who reports
19 suspected unsafe care and conditions of patients in a health care facility; section 1102.5 of the Labor
20 Code which prohibits retaliation against an employee for reporting or refusing to participate in suspected
21 violations of the 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. of the United States
23 Code) (“FMLA”) which prohibit interference with an employee’s right to medical leave 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] (“FEHA”) which prohibits
26 discrimination against an employee with a disability, failure to provide reasonable accommodation, and
27
1
28 All statutory references are to California Codes unless otherwise specified.
JOINT SCHEDULING REPORT PURSUANT TO FRCP 26(f) 2
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1 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, et 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 (“JCC”), for
6 violation of Plaintiff’s 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, compensatory, and punitive damages; prejudgment
9 interest, costs and attorneys’ fees; injunctive and declaratory relief; and other appropriate and just relief
10 resulting from Defendants’ unlawful conduct.
11
12 B. Defendants’ Summary
13 1. Plaintiff is not a whistleblower and is not disabled. He was employed by the County of Kern
14 as a staff pathologist at Kern Medical Center, pursuant to a written 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 complained
20 about procedures and policies at Kern Medical Center and interfered with patient care through
21 obstructionist behavior and secretive practices. His pathology reports were characterized by frequent
22 mistakes, changes in opinion and untimely service, all of which compromised patient care.
23 Disagreements arose between Plaintiff and many of the other physicians at Kern Medical Center
24 regarding Plaintiff’s behavior, his anger and confrontational personal style, his inaccurate and untimely
25 diagnoses, his disruptive behavior, his complaints about medical procedures, his refusal to follow even
26 his own rules, his intimidation of staff and patient management.
27 3. As a result of the stresses and disagreements that Plaintiff brought into the workplace, his
28
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1 injuries and illnesses, family health issues and outside business interests, Plaintiff requested and
2 received a reduced work schedule and multiple leaves of absence. He frequently worked only one or
3 two days a week and was absent from the hospital for long periods of time. Because he was neither
4 working full-time nor present in the hospital, he was removed from the position of Chair of the
5 Pathology Department and his compensation was adjusted to that of a staff pathologist without
6 departmental administrative responsibilities.
7 4. Management at Kern Medical Center counseled Plaintiff about his anger and confrontational
8 style but Plaintiff was not receptive to the counseling and the work environment continued to
9 deteriorate. Plaintiff was finally placed on paid administrative leave in an effort to allow the work
10 environment to stabilize.
11
12 II. PROPOSED AMENDMENTS.
13 Plaintiff intends to file a Second Supplemental Complaint to include allegations of continuing
14 discrimination and retaliation that occurred after April 24, 2007. Plaintiff will insert the following: On
15 May 1, 2007, Defendant County notified Plaintiff that he will remain on paid administrative leave until
16 his contract expires on October 4, 2007; and that, contrary to its prior and customary practice, Defendant
17 County does not intend to renew his employment contract. Although Plaintiff is no longer restricted to
18 the confines of his home during working hours, he still may not enter KMC’s premises or access his
19 office without prior written permission. The numbering of the following paragraphs will be adjusted
20 accordingly. Plaintiff has already provided Defendants with the draft Second Supplemental Complaint in
21 the form in which Plaintiff intends to file it for Defendants’ prior review.
22 Defendants intend to file an Amended Answer that (i) with regard to the third affirmative
23 defense, alleges the specific privileges and immunities relied on with greater particularity, (ii) with
24 regard to the fourth affirmative defense, alleges the specific provisions of Cal. Civ. Code § 47 relied on
25 with greater particularity, and (iii) alleges the ninth affirmative defense (qualified immunity) with
26 greater particularity, as well as additional non-material changes. Defendants have already provided
27 Plaintiff with the draft Amended Answer in the form in which Defendants intend to file it for Plaintiff’s
28
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1 prior review.
2 Based on the foregoing, each of the parties hereby stipulates to the filing of the other’s
3 supplemented/amended pleadings and hereby respectfully request the order of the Court granting the
4 parties leave to file their respective amended/supplemented pleadings.
5 It should be noted that Plaintiff intends to file a motion to strike certain of Defendants’
6 affirmative defenses contained in the Amended Answer proposed to be filed as having insufficient bases
7 in law. The parties have already met and conferred regarding the affirmative defenses at issue but have
8 not been able to reach a resolution.
9
10 III. SUMMARY OF UNCONTESTED AND CONTESTED FACTS.
11 A. Uncontested Facts
12 1. At all material times, Defendant Kern County was a local public entity within the meaning of
13 sections 811.2 & 900.4 of the Government Code and is operating in Kern County, California.
14 2. During the entire course of Plaintiff’s employment, Defendant Kern County has continuously
15 been an employer within the meaning of FMLA [29 C.F.R. § 825.105(C)], CFRA [Gov’t Code §
16 12945.2(b)(2)] FEHA [Gov’t Code § 12926(d)], and FLSA [29 U.S.C. §203] engaged in interstate
17 commerce, and regularly employing more than fifty employees within seventy five miles of Plaintiff’s
18 workplace.
19 3. Defendant Bryan was Chief Executive Officer of KMC and a resident of California during
20 most of the time alleged in the Complaint.
21 4. At all material times, Defendant Eugene Kercher was a citizen of California, a resident of
22 Kern County, California, and President of KMC Medical Staff, and a member of the KMC Joint
23 Conference Committee (“JCC”).
24 5. At all material times, Defendant Irwin Harris was a citizen of California, and a resident of
25 Kern County, California, and Chief Medical Officer at KMC, and a non-voting member of the JCC.
26 6. At all material times, Defendant Jennifer Abraham was a citizen of California, and a resident
27 of Kern County, California and Immediate Past President of KMC Medical Staff.
28
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1 7. At all material times, Defendant Scott Ragland was a citizen of California, and a resident of
2 Kern County, California, President-Elect of KMC Medical Staff, and a member of the JCC.
3 8. At all material times, Defendant Toni Smith was a citizen of California, and a resident of
4 Kern County, California, and Chief Nurse Executive of KMC, and a member of the JCC.
5 9. At all material times, Defendant William Roy was a citizen of California, and a resident of
6 Kern County, California and Chief of the Division of Gynecologic Oncology at KMC.
7 10. Plaintiff has continuously been an employee of Defendant Kern County since October 24,
8 2000.
9 11. Plaintiff is a pathologist whom Defendant County hired as a pathologist at KMC and
10 appointed to the position of Chair of the Pathology Department.
11 12. Plaintiff was compensated and provided with certain benefits pursuant to a written
12 employment agreement, the terms of which speak for themselves.
13 13. Defendant Kern County placed Plaintiff’s initial salary level at Step C.
14 14. Defendants expected Plaintiff to be an effective member of the physicians’ staff at KMC and
15 to contribute to the overall improvement of the hospital.
16 15. Plaintiff requested and received leaves of absence and reduced work schedules, the terms and
17 conditions of and reasons for which are memorialized in writings that speak for themselves.
18 16. Plaintiff’s former attorney sent a letter to Kern County Counsel Bernard Barmann and Mr.
19 Barmann met with Plaintiff on or about February 9, 2006.
20 17. Defendant Bryan and Plaintiff exchanged written communications regarding Plaintiff’s
21 reduced work schedule and requests for leaves of absence. Plaintiff met with Defendant Bryan and
22 others to discuss those subjects.
23 18. Defendant Bryan and Plaintiff exchanged written correspondence regarding Plaintiff’s tenure
24 and performance as Chair of the Pathology Department at KMC. All the writings speak for themselves.
25 19. On or about July 10, 2006, the JCC voted to remove Plaintiff from his position as Chair of
26 the Pathology Department at Kern Medical Center.
27 20. Plaintiff was removed from his position as Chair of the Pathology Department in part
28
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1 B. Disputed Issues
2 1. Whether this Court has or should exercise supplemental jurisdiction over Plaintiff’s state
3 claims pursuant to 28 U.S.C. § 1367.
4 2. Whether Defendant Kern County violated Cal. Health & Safety Code § 1278.5, entitling
5 Plaintiff to damages for retaliation for reporting his concerns about the health and safety of patients.
6 3. Whether Defendant Kern County violated Cal. Lab. Code § 1102.5, entitling Plaintiff to
7 damages for retaliation against him for reporting suspected illegal acts.
8 4. Whether Defendant Kern County violated Cal. Gov’t Code §§ 12945.1, et seq and 2 C.C.R. §
9 7297.7(a), entitling Plaintiff to damages for retaliation for exercising his right to CFRA medical leave.
10 5. Whether Defendants Kern County and Bryan violated 29 U.S.C. §§ 2601, et seq., entitling
11 Plaintiff to damages for interference with his FMLA Rights.
12 6. Whether Defendant Kern County violated Cal. Gov’t Code §§ 12945.1, et seq., entitling
13 Plaintiff to damages for violation of CFRA Rights.
14 7. Whether Defendant Kern County violated Cal. Gov’t. Code § 12940(a) entitling Plaintiff to
15 damages for disability discrimination.
16 8. Whether Defendant Kern County violated Cal. Gov’t Code § 12940(m) entitling Plaintiff to
17 damages for failure to provide reasonable accommodation, and an injunction requiring compliance.
18 9. Whether Defendant Kern County violated Cal. Gov’t Code § 12940(n) entitling Plaintiff to
19 damages and injunctive relief for failure to engage in good faith in an interactive process, and an
20 injunction requiring compliance.
21 10. Pursuant to 42 U.S.C. § 1983, whether Defendants Bryan, Kercher, Ragland, Abraham, and
22 Smith, both personally and in their respective official capacities, violated the 14th Amendment of the
23 U.S. Constitution entitling Plaintiff to damages and injunctive relief for procedural due process
24 violations.
25 11. Whether Defendants Kern County, Roy, and Harris violated Cal. Civ. Code §§ 45- 47
26 entitling Plaintiff for damages for defamation.
27 12. Whether Defendant Kern County violated 29 U.S.C. §201 et seq. entitling Plaintiff to
28
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1 damages for wages lost during periods when he was ready, willing, and able to work, but was denied
2 reduced schedule medical leave, and forced to take full time leave; and an injunction requiring
3 compliance.
4
5 V. STATUS OF ALL MATTERS BEFORE THE COURT
6 There are no matters presently set before the Court other than this Scheduling Conference.
7 However, Plaintiff intends to file Motions to Strike Affirmative Defenses from Defendants’ Answer to
8 the Second Supplemental Complaint, requesting this Court strike Defendants’ Fifth Affirmative Defense
9 (“Plaintiff was arrogant, disagreeable, uncooperative, intimidating, overbearing, self-righteous and
10 unfriendly and that Plaintiff’s behavior contributed to and was the direct and proximate cause of any
11 stresses, disabilities or injuries that Plaintiff believes he sustained”), and Seventh Affirmative Defense
12 (Plaintiff’s claims are barred by the statute of limitations established in Cal. Civ. Proc. Code § 335.1
13 (assault, battery, injury, wrongful death)). Plaintiff believes this issue needs to be addressed before
14 discovery can commence whereas Defendants believe it should be addressed after discovery, at or
15 before the Pretrial Conference.
16
17 VI. DISCOVERY PLAN
18
At the Rule 26(f) conference, the parties tentatively agreed on the below dates. However, following the
19 conference, it became apparent over the course of the parties’ numerous meet and confer discussions
that Plaintiff will need to file a Motion to Strike at least two of Defendants’ affirmative defenses (See
20 Section V supra). Given that the defenses at issue remain uncertain, and therefore the scope of discovery
also remains indefinite, the parties propose the following delayed schedule in order to accommodate
21 Plaintiff’s pending Motion to Strike.
22
A. Rule 26(a)(1) Initial Disclosure Deadline
23
[August 46, 2007].
24
25
B. Discovery Subjects, Deadlines, Limitations, Phasing, Etc.
26
1. Expert Deadlines
27
Expert Disclosure Deadline: [February 34, 2008]
28
JOINT SCHEDULING REPORT PURSUANT TO FRCP 26(f) 9
OPP000010
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 22 of 88
OPP000011
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 23 of 88
1 travel as cost-effective as possible. The parties will set depositions on Tuesdays, Wednesdays and
2 Thursdays and will allow enough time between settings to allow adequate preparation. Shorter
3 depositions may be scheduled for the same day. The parties may videotape and/or audio record
4 depositions, and the video camera may be operated by the attorneys or their employees.
5
6 C. Electronic Discovery
7 The parties have in their custody and possession e-mails related to issues in this action and have
8 each made requests of the other that all such e-mails be preserved and disclosed. The parties shall
9 produce e-mails to each other in Microsoft Outlook format. The parties are not presently aware of any
10 other electronic discovery issues.
11
12 D. Confidentiality Orders
13 Documents to be produced include patient medical records that contain confidential patient
14 health care information, medical peer review records that are confidential pursuant to California
15 Evidence Code section 1157, some documents that are protected by the attorney/client privilege and
16 some documents that include attorney work-product and trial preparation materials. The Defendants are
17 required to redact all confidential patient information before producing any patient records and will do
18 so. The parties hereby agree that Defendants’ production of certain specified peer review records
19 without redaction shall not be construed as a waiver of the peer review privilege in general or a waiver
20 with regard to any other documents or person. The parties hereby agree that Defendants’ production of
21 certain specified relevant memos and e-mails that were sent to legal counsel for the County of Kern, as
22 well as other, non-lawyer, County employees, shall not be construed as a waiver of the attorney/client
23 privilege. The parties hereby agree that Defendants’ production of certain specified documents that
24 include attorney work-product and trial preparation materials shall not constitute a waiver of either the
25 work-product or trial preparation materials privileges as to any other materials.
26 The parties hereby agree that, in order to preserve the confidentiality required for continued
27 effective treatment of Plaintiff’s depression, anxiety, insomnia, and emotional distress, Plaintiff’s
28
JOINT SCHEDULING REPORT PURSUANT TO FRCP 26(f) 11
OPP000012
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 24 of 88
1 treating psychiatrists/psychologists shall not be required to produce their actual treatment notes, but
2 instead shall produce a summary of their treatment of Plaintiff’s depression and emotional distress,
3 including their diagnoses and prognoses, and the basis for their opinion, including raw data of any
4 psychological testing. Plaintiff is willing to undergo psychological examination by Defendants’
5 qualified expert pursuant to Federal Rule of Civil Procedure Rule 34 subject to a stipulation regarding
6 the timing and scope of the examination, including the specific tests to be performed, and prompt
7 production of the subsequent report and raw data supporting the report to all parties.
8 The parties are not presently aware of any other issues relating to claims of privilege or of
9 protection as trial-preparation material.
10
11 E. Changes in Limitations on Discovery
12 Given the number of defendants and witnesses and the number and complexity of the issues,
13 Plaintiff anticipates needing relief from the discovery limitations of Federal Rule of Civil Procedure
14 30(a)(2)(A) (10 depositions per side) and Rule 33(a) (no more than 25 interrogatories per party).
15 Defendants do not object to granting Plaintiff relief from that limitation. Defendants anticipate that the
16 deposition of the Plaintiff will take up to 21 hours because of the quantity of material that needs to be
17 covered. Defendants therefore request relief from FRCP 30(d)(2),(1 day of 7 hours per deposition).
18 Plaintiff does not object to Defendants’s request; provided, however, that no single day of Plaintiff’s
19 deposition shall exceed 7 hours. The parties are not presently aware of a need to change any other
20 limitations on discovery.
21
22 F. Other Orders under Rules 26(c) or 16(b) and (c)
23 The parties are not presently aware of a need for any protective or other orders other than as
24 provided herein.
25
26 VII. AGREED-UPON DATES
27 At the Rule 26(f) conference, the parties tentatively agreed on the below dates. However,
28
JOINT SCHEDULING REPORT PURSUANT TO FRCP 26(f) 12
OPP000013
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 25 of 88
1 following the conference, it became apparent over the course of the parties’ numerous meet and confer
2 discussions that Plaintiff will need to file a Motion to Strike at least two of Defendants’ affirmative
3 defenses (See Section V supra). Given that the defenses at issue remain uncertain, and therefore the
4 scope of discovery also remains indefinite, the parties propose the following delayed schedule in order
5 to accommodate Plaintiff’s pending Motion to Strike.
6
7 A. Pre-Trial Motions
8 1. Non-Dispositive Motions
9 Filing Deadline: [May 35, 2008]
10 Heard no later than: [June 4, 2008]
11 2. Dispositive Motions
12 Filing Deadline: [June 2, 2008]
13 Heard no later than: [August 6, 2008]
14
15 B. Pre-Trial Conference
16 1. Settlement Conference: [April 15, 2008]
17 2. Pre-Trial Conference: [October 43, 2008]
18
19 C. Trial
20 Trial Date: [November 23, 2008]
21
22 VIII. SETTLEMENT
23 The parties are interested in exploring the opportunity to settle this matter before incurring
24 additional attorney fees and costs. Private mediation or an Early Case Conference might be beneficial.
25
26 IX. TRIAL BY JURY
27 Plaintiff has requested a jury trial on all possible issues and claims.
28
JOINT SCHEDULING REPORT PURSUANT TO FRCP 26(f) 13
OPP000014
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 26 of 88
1
2 X. ESTIMATE OF NUMBER OF TRIAL DAYS REQUIRED
3 The parties estimate that trial will take 12-15 days.
4
5 XI. BIFURCATION OF TRIAL
Neither party anticipates the need for bifurcation.
6
7
XII. RELATED MATTERS
8
The parties are unaware of any related matters pending in this Court or any other court, including
9
any bankruptcy court.
10
11
RESPECTFULLY SUBMITTED on May 24, 2007.
12
13 /s/ Eugene D. Lee
LAW OFFICE OF EUGENE LEE
14 555 West Fifth Street, Suite 3100
Los Angeles, California 90013
15 Phone: (213) 992-3299
Fax: (213) 596-0487
16 email: elee@LOEL.com
Attorney for Plaintiff DAVID F. JADWIN, D.O.
17
18
/s/ Mark A. Wasser, Calif. SB# 060160
19 LAW OFFICES OF MARK WASSER
400 Capitol Mall, Ste. 1100
20 Sacramento, California 95814
Phone: (916) 444-6400
21 Fax: (916) 444-6405
E-mail: mwasser@markwasser.com
22 Attorneys for Defendants
COUNTY OF KERN, PETER BRYAN, IRWIN HARRIS,
23 EUGENE KERCHER, JENNIFER ABRAHAM, SCOTT
RAGLAND, TONI SMITH and WILLIAM ROY
24
25
26
27
28
JOINT SCHEDULING REPORT PURSUANT TO FRCP 26(f) 14
OPP000015
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 27 of 88
EXHIBIT 2
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 28 of 88
Eugene D. Lee
From: Eugene D. Lee [elee@LOEL.com]
Sent: Wednesday, November 14, 2007 11:30 AM
To: 'mwasser@markwasser.com'
Cc: 'Joan Herrington'
Subject: Jadwin/KC: Stip Extension & Depo location
Mark,
In followup to our RPD1 meet and confer call of this morning, we’ll agree to a three (3) month extension on trial,
discovery cutoff, expert disclosure, dispositive & non-dispositive motion cutoffs and other deadlines as set forth in
the Scheduling Order in order to accommodate your client’s doc production time requirements. Please let us review
the stip you draft before you file it. As we discussed, any discussion we have had thus far of production deadlines is
contingent upon Judge Wanger signing the stip in the form agreed to.
Regarding the deposition location, we’d like to hold the Dec 4,5,6 depos at our court reporters’ office for now. But
at the time of the Dec 4-6 depos, Joan and I wondered whether we would be permitted to physically access and
view the KMC annex conference room so that we can see if it will work for our depo purposes (adequate electrical
outlets, ventilation, lighting, space, etc.), particularly since we are videotaping. Please let us know if this will be
possible. Also, please let us know whether KMC will permit Dr. Jadwin onto the premises to attend any depos that
might be held at that conference room as well as the exact location/address of the conference room.
We’ll send a more extensive meet and confer followup letter shortly.
Sincerely,
Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW OFFICE OF EUGENE LEE
EMPLOYMENT LAW
555 WEST FIFTH ST., STE. 3100
LOS ANGELES, CA 90013
Tel: (213)992-3299
Fax: (213)596-0487
E - m a i l : elee@LOEL.com
W e b s i t e : www.LOEL.com
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
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1
OPP000016
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 29 of 88
Eugene D. Lee
From: Mark Wasser [mwasser@markwasser.com]
Sent: Wednesday, November 14, 2007 5:15 PM
To: Eugene Lee; Joan Herrington
Subject: Stipulation To continue trial and pre-trial dates 11.14.07
Attachments: Stipulation To continue trial and pre-trial dates 11.14.07.doc
Mark
1
OPP000017
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 30 of 88
EXHIBIT 3
Case
Case1:07-cv-00026-OWW-TAG
1:07-cv-00026-OWW-TAG Document
Document121
80 Filed
Filed05/07/2008
11/20/2007 Page
Page31
1 of
of388
1 WHEREAS discovery is taking substantially longer than the parties anticipated because
2 the collection, duplication, redaction and production of medical records and other documents
3 within Kern Medical Center in response to Plaintiff’s request for the production of documents is
4 taking considerable time; and
5 WHEREAS the parties are working together in good faith to address discovery issues as
6 they arise; and
7 WHEREAS it has become evident that the parties’ planned discovery will not be
8 completed by the current discovery cut-off; and
9 WHEREAS the parties believe the discovery cut-off should be extended approximately
10 three months and that trial and the other pre-trial dates should be continued accordingly;
11 NOW THEREFORE IT IS HEREBY STIPULATED, by and between the parties hereto
12 through their respective counsel, that trial, the pre-trial conference, the settlement conference, the
13 deadline for filing dispositive and non-dispositive motions, the expert and supplemental expert
14 disclosure deadlines, and the discovery cut-off should all be extended approximately three
15 months.
16
17 Dated: November 15, 2007 LAW OFFICES OF MARK A. WASSER
18
19 By: /s/ Mark A. Wasser
Mark A. Wasser
20
Attorney for Defendants, County of Kern, et al.
21
22 Dated: November 15, 2007 LAW OFFICE OF EUGENE LEE
23
24 By: /s/ Eugene D. Lee (as authorized on 11/15/07)
Eugene D. Lee
25 Attorney for Plaintiff, David F. Jadwin, D.O.
26
27
28
1 ORDER
2 The parties having stipulated as hereinabove set forth and good cause appearing therefor;
3
IT IS HEREBY ORDERED, that the scheduling conference order be amended and that
4 the dates of trial, pre-trial conference, settlement conference, dispositive motion cut-off, non-
dispositive motion cut-off and discovery be vacated and that new dates be set as follows:
5
6 Expert Disclosure: [May 5, 2008]
Supplemental Expert Disclosure: [June 4, 2008]
7 Discovery Cut-Off: [July 7, 2008]
Non-Dispositive Motion Cut-Off: [July 21, 2008]
8 Non-Dispositive Motion Hearing: [August 22, 2008]
Dispositive Motion Cut-Off: [August 4, 2008]
9
Dispositive Motion Hearing: [September 8, 2008]
10 Settlement Conference: [May 7, 2008]
Pre-Trial Conference: [October 14, 2008]
11 Trial : [December 3, 2008]
12
13 No further continuances will be granted (oww)
14
15 Dated: November 17 , 2007 UNITED STATES DISTRICT COURT
16
By:/s/ OLIVER W. WANGER
17
The Honorable Oliver W. Wanger
18 United States District Judge
19
20
21
22
23
24
25
26
27
28
EXHIBIT 4
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 35 of 88
Eugene D. Lee
From: Eugene D. Lee [elee@LOEL.com]
Sent: Tuesday, January 22, 2008 11:13 AM
To: 'mwasser@markwasser.com'
Subject: Jadwin/KC: Medical Exam
Attachments: Stipulation - Authenticating documents_071126.doc
Mark,
Let me look into this further. It would help if you gave me a clearer idea of what kind of tests would be conducted
and the scope of the examinations. Also, Plaintiff has not claimed any physical injuries as a result of Defendants’
acts so I don’t believe Plaintiff would agree to a physical examination of any sort.
While we’re on the topic of stipulations, I have not heard a response from you regarding the proposed stipulation
on authenticity of documents which Plaintiff had sent you months ago. You had indicated you would agree to it but
there was never any followup. Please let me know your thoughts. It is attached.
Sincerely,
Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW OFFICE OF EUGENE LEE
EMPLOYMENT LAW
555 WEST FIFTH ST., STE. 3100
LOS ANGELES, CA 90013
Tel: (213)992-3299
Fax: (213)596-0487
E - m a i l : elee@LOEL.com
W e b s i t e : www.LOEL.com
B l o g : www.CaLaborLaw.com
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
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Gene,
1
OPP000021
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 36 of 88
The Defendants want Dr. Jadwin to be evaluated by independent medical examiners as to his medical and psychiatric
conditions. We believe this will entail two evaluations, one as to his medical condition and to clear him medically for the
psychiatric evaluation and a psychiatric evaluation. Can we work this out informally or would you prefer we simply notice
it? We will do our best to accommodate his schedule.
Mark
2
OPP000022
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 37 of 88
EXHIBIT 5
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 38 of 88
Eugene D. Lee
From: Eugene D. Lee [elee@LOEL.com]
Sent: Tuesday, March 25, 2008 11:27 AM
To: 'mwasser@markwasser.com'
Subject: DME / Perez Video
Mark,
Regarding the IME, I need more information. Who is the examiner going to be, scope of exam, kinds of tests to be
performed, etc.
Sincerely,
Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW OFFICE OF EUGENE LEE
EMPLOYMENT LAW
555 WEST FIFTH ST., STE. 3100
LOS ANGELES, CA 90013
Tel: (213)992-3299
Fax: (213)596-0487
E - m a i l : elee@LOEL.com
W e b s i t e : www.LOEL.com
B l o g : www.CaLaborLaw.com
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
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transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.
Gene,
First, I want a copy of the video of the Patricia Perez deposition. Can you please prepare one for me?
Second, we want to set Dr. Jadwin’s independent medical exam. Would you like me to give you some dates to choose
from?
Let me know.
Thanks.
Mark
1
OPP000023
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 39 of 88
2
OPP000024
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 40 of 88
EXHIBIT 6
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 41 of 88
Eugene D. Lee
From: Eugene D. Lee [elee@LOEL.com]
Sent: Thursday, May 01, 2008 10:54 PM
To: 'mwasser@markwasser.com'
Subject: Continuance of expert deadlines/DME
Mark,
First, I do not have any recollection whatsoever of your delaying the defense mental exam because of Dr. Jadwin’s
surgery. Dr. Jadwin’s surgery became an issue only in relation to the setting of his deposition and nothing else. Dr.
Jadwin’s deposition was held on March 11/12, 2008. What I do recall is that, beginning January 22, 2008 and repeatedly
thereafter, I asked you for further details regarding the scope of the defense mental exam, type of tests to be
performed, etc., and never received them. To date, I still have not received them.
Plaintiff previously agreed to defendants’ request for a 3 month continuance of pre‐trial and trial dates in order to
accommodate KMC’s logistical difficulties in gathering and producing documents. Judge Wanger has made it very clear
that no further extensions would be granted. In any case, after giving your request much thought, Plaintiff cannot agree
to yet another stipulation by defendant for a 1 month continuance on expert deadlines.
Sincerely,
Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW OFFICE OF EUGENE LEE
EMPLOYMENT LAW
555 WEST FIFTH ST., STE. 3100
LOS ANGELES, CA 90013
Tel: (213)992-3299
Fax: (213)596-0487
E - m a i l : elee@LOEL.com
W e b s i t e : www.LOEL.com
B l o g : www.CaLaborLaw.com
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
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transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.
From: Mark Wasser [mailto:mwasser@markwasser.com]
Sent: Thursday, May 01, 2008 6:02 PM
To: elee@LOEL.com
Subject: RE: Expert disclosures
Gene,
I do not think it will affect disclosure of supplemental experts although it might affect the timing of their reports. We can do
it without compressing discovery. We need to depose experts anyway and they are likely to be the last depositions. I am
willing to stipulate that we can take expert depositions after the cut-off of normal discovery. We could easily
1
OPP000025
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 42 of 88
accommodate a short time after July 7 for expert depositions. I am not saying we have to do that, only that I am open to
it.
As far as how long I would like to postpone the exchange of expert reports, it may depend on the expert. For example, we
need to do the IME on Dr. Jadwin. I have the information you have requested about the scope of examination, etc. and
will get that to you next week. As soon as we can set that, I will know how long it will take for the examining physician to
render his report. I delayed setting that, you will recall, because you had told me Dr. Jadwin was going to have surgery.
I think if we delayed disclosure of the reports for about a month, it would be enough. Supplemental reports could be
delayed a month, too. That would put us at about the time we will be taking expert depositions. We will have the reports
in time for depositions and I we don’t need them before then. I doubt it will have any effect on pretrial or trial preparation.
There is nothing I would do with your reports now, even if I had them. Expert depositions are at least two months away.
Mark
Mark,
I’m thinking about it. This is not a simple issue. A stip on delaying disclosure of expert reports has ramifications for the
rebuttal expert designation deadline (June 4). And the discovery cutoff is only two months away (July 7). What you’re
proposing is not that simple – it compresses everything. Plaintiff has a lot of depos still left to conduct.
Also, ultimately, I question whether we could stip to this without Wanger’s blessing.
What kind of a delay do you have in mind? How long? That would be helpful.
Sincerely,
Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW OFFICE OF EUGENE LEE
EMPLOYMENT LAW
555 WEST FIFTH ST., STE. 3100
LOS ANGELES, CA 90013
Tel: (213)992-3299
Fax: (213)596-0487
E - m a i l : elee@LOEL.com
W e b s i t e : www.LOEL.com
B l o g : www.CaLaborLaw.com
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
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2
OPP000026
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 43 of 88
From: Mark Wasser [mailto:mwasser@markwasser.com]
Sent: Thursday, May 01, 2008 5:43 PM
To: elee@LOEL.com
Subject: RE: Expert disclosures
I know what it says, Gene. That is why I quoted the language about “otherwise stipulated” in my last e-mail.
I take it from this that you are saying no my request that we agree to postpone the exchange of reports for a short time
until we can complete more discovery?
Mark,
Take a look at Rule 26
USCS Fed Rules Civ Proc R 26
(2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other
parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702,
703, or 705.
(B) Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be
accompanied by a written report--prepared and signed by the witness--if the witness is one retained or
specially employed to provide expert testimony in the case or one whose duties as the party's employee
regularly involve giving expert testimony. The report must contain:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the data or other information considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous ten years;
(v) a list of all other cases in which, during the previous four years, the witness testified as an expert at
trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
Sincerely,
Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW OFFICE OF EUGENE LEE
EMPLOYMENT LAW
555 WEST FIFTH ST., STE. 3100
LOS ANGELES, CA 90013
Tel: (213)992-3299
Fax: (213)596-0487
E - m a i l : elee@LOEL.com
W e b s i t e : www.LOEL.com
B l o g : www.CaLaborLaw.com
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
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3
OPP000027
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 44 of 88
From: Mark Wasser [mailto:mwasser@markwasser.com]
Sent: Thursday, May 01, 2008 5:03 PM
To: elee@LOEL.com
Subject: RE: Expert disclosures
Gene,
We are not proposing a postponement of the disclosure itself. Only the reports. For example, our economist has virtually
nothing to go on. He has asked us for some information which we will get via discovery. Until we have completed more
discovery, there is no basis for rendering any definitive opinions. I think someone in Wanger’s chambers goofed with the
May 5 date, frankly. It is over 180 days before trial. That is too early. 90 days is typical. We can probably start
exchanging reports in a month or so. But, we cannot do it now. And, as I wrote, we do not expect you to, either.
Mark
Mark,
We’ve had over 8 months of discovery in this action. Only 2 months remain. Let me think about this and get back to you.
In any case, what you propose is a variation on Judge Wanger’s Scheduling Order and I believe it would in any case
require a stipulation and order signed by Judge Wanger. As you know, in his last order granting continuation of the trial
and other dates, he wrote in bold that no further continuances would be granted. I think he was making clear that we
shouldn’t come to him for any more requests for extensions.
Sincerely,
Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW OFFICE OF EUGENE LEE
EMPLOYMENT LAW
555 WEST FIFTH ST., STE. 3100
LOS ANGELES, CA 90013
Tel: (213)992-3299
Fax: (213)596-0487
E - m a i l : elee@LOEL.com
W e b s i t e : www.LOEL.com
B l o g : www.CaLaborLaw.com
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
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4
OPP000028
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 45 of 88
From: Mark Wasser [mailto:mwasser@markwasser.com]
Sent: Thursday, May 01, 2008 4:21 PM
To: Eugene Lee
Subject: Expert disclosures
Gene,
The new schedule we have from the Court designates May 5 as the date for disclosure of experts. As you know,
discovery does not close until July 7. Trial is not until December. Rule 26 contemplates disclosure of expert reports at
least 90 days before trial. We are over 180 days away from trial now. It is too early to disclose expert reports and our
experts cannot complete meaningful reports until discovery is closer to completion. Thus, we cannot disclose reports or
final conclusions yet. We do not expect you to disclose them, either. I suggest we disclose names and other available
information, like CVs and rates and subject of testimony, but defer disclosure of reports until meaningful reports can be
prepared.
Mark
5
OPP000029
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 46 of 88
EXHIBIT 7
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 47 of 88
Eugene D. Lee
From: Mark Wasser [mwasser@markwasser.com]
Sent: Friday, May 02, 2008 11:23 AM
To: elee@LOEL.com
Subject: RE: Continuance of expert deadlines/DME
Gene,
Another thought. So that we do not have your expert reports before you have ours, I suggest you might want to hold onto
you reports and not disclose them until our motion for partial relief from the scheduling order is resolved. If the Court
gives us a new disclosure date, we can disclose them then and you will not be prejudiced by our experts having had your
reports while they prepare their own. You might want to consider this.
Mark
Mark,
I already explained the prejudice to plaintiff.
We’re bumping up against a lot of deadlines now. June 4 for supplemental expert designation, July 7 discovery cutoff,
August 4 dispositive motion filing deadline. Just as a for instance, if we take depos of experts after July 7 as you suggest,
the delay in getting the depo transcripts will cause problems in terms of filing dispositive motions by August 4. What
you’re proposing will compress the entire pre‐trial schedule for plaintiff and the only fair relief will be a continuance of
all pre‐trial deadlines, which plaintiff is not able to agree to. Plaintiff already agreed to your request for a 3 month
continuance.
Reports are the critical element in Rule 26 expert disclosure. In my view, they’re practically synonymous. You’ve had
more than 9 months of discovery to get your expert reports ready. Plaintiff is ready and able to meet the deadline.
You’ve waited until just a few days prior to the expert designation deadline to propose a delay. That’s unfortunate but I
don’t see how that is plaintiff’s problem.
And perhaps most importantly, Judge Wanger has made it crystal clear that no further extensions will be granted. I’m
not about to go re‐jiggering the trial schedule set by Judge Wanger. In my view, your asking him to do so is ill‐advised.
Sincerely,
Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW OFFICE OF EUGENE LEE
EMPLOYMENT LAW
555 WEST FIFTH ST., STE. 3100
LOS ANGELES, CA 90013
Tel: (213)992-3299
Fax: (213)596-0487
E - m a i l : elee@LOEL.com
W e b s i t e : www.LOEL.com
B l o g : www.CaLaborLaw.com
1
OPP000030
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 48 of 88
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
This message is sent by a law firm and may contain information that is privileged or confidential. If you received this
transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.
From: Mark Wasser [mailto:mwasser@markwasser.com]
Sent: Friday, May 02, 2008 9:58 AM
To: elee@LOEL.com
Subject: RE: Continuance of expert deadlines/DME
Gene,
I think I have no alternative but to request partial relief from the scheduling order. I will not request an extension of the
disclosure of experts, just an extension of the requirement to deliver reports. We cannot prepare reports now, given the
state of discovery.
Again, I cannot imagine any prejudice but, if you won’t agree, you won’t agree.
Mark
Mark,
First, I do not have any recollection whatsoever of your delaying the defense mental exam because of Dr. Jadwin’s
surgery. Dr. Jadwin’s surgery became an issue only in relation to the setting of his deposition and nothing else. Dr.
Jadwin’s deposition was held on March 11/12, 2008. What I do recall is that, beginning January 22, 2008 and repeatedly
thereafter, I asked you for further details regarding the scope of the defense mental exam, type of tests to be
performed, etc., and never received them. To date, I still have not received them.
Plaintiff previously agreed to defendants’ request for a 3 month continuance of pre‐trial and trial dates in order to
accommodate KMC’s logistical difficulties in gathering and producing documents. Judge Wanger has made it very clear
that no further extensions would be granted. In any case, after giving your request much thought, Plaintiff cannot agree
to yet another stipulation by defendant for a 1 month continuance on expert deadlines.
Sincerely,
Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW OFFICE OF EUGENE LEE
EMPLOYMENT LAW
555 WEST FIFTH ST., STE. 3100
LOS ANGELES, CA 90013
Tel: (213)992-3299
2
OPP000031
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x : ( 2 1 3 ) 5 9121
6 - 0 4 8 7 Filed 05/07/2008 Page 49 of 88
E - m a i l : elee@LOEL.com
W e b s i t e : www.LOEL.com
B l o g : www.CaLaborLaw.com
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
This message is sent by a law firm and may contain information that is privileged or confidential. If you received this
transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.
From: Mark Wasser [mailto:mwasser@markwasser.com]
Sent: Thursday, May 01, 2008 6:02 PM
To: elee@LOEL.com
Subject: RE: Expert disclosures
Gene,
I do not think it will affect disclosure of supplemental experts although it might affect the timing of their reports. We can do
it without compressing discovery. We need to depose experts anyway and they are likely to be the last depositions. I am
willing to stipulate that we can take expert depositions after the cut-off of normal discovery. We could easily
accommodate a short time after July 7 for expert depositions. I am not saying we have to do that, only that I am open to
it.
As far as how long I would like to postpone the exchange of expert reports, it may depend on the expert. For example, we
need to do the IME on Dr. Jadwin. I have the information you have requested about the scope of examination, etc. and
will get that to you next week. As soon as we can set that, I will know how long it will take for the examining physician to
render his report. I delayed setting that, you will recall, because you had told me Dr. Jadwin was going to have surgery.
I think if we delayed disclosure of the reports for about a month, it would be enough. Supplemental reports could be
delayed a month, too. That would put us at about the time we will be taking expert depositions. We will have the reports
in time for depositions and I we don’t need them before then. I doubt it will have any effect on pretrial or trial preparation.
There is nothing I would do with your reports now, even if I had them. Expert depositions are at least two months away.
Mark
Mark,
I’m thinking about it. This is not a simple issue. A stip on delaying disclosure of expert reports has ramifications for the
rebuttal expert designation deadline (June 4). And the discovery cutoff is only two months away (July 7). What you’re
proposing is not that simple – it compresses everything. Plaintiff has a lot of depos still left to conduct.
Also, ultimately, I question whether we could stip to this without Wanger’s blessing.
What kind of a delay do you have in mind? How long? That would be helpful.
Sincerely,
3
OPP000032
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 50 of 88
Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW OFFICE OF EUGENE LEE
EMPLOYMENT LAW
555 WEST FIFTH ST., STE. 3100
LOS ANGELES, CA 90013
Tel: (213)992-3299
Fax: (213)596-0487
E - m a i l : elee@LOEL.com
W e b s i t e : www.LOEL.com
B l o g : www.CaLaborLaw.com
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
This message is sent by a law firm and may contain information that is privileged or confidential. If you received this
transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.
From: Mark Wasser [mailto:mwasser@markwasser.com]
Sent: Thursday, May 01, 2008 5:43 PM
To: elee@LOEL.com
Subject: RE: Expert disclosures
I know what it says, Gene. That is why I quoted the language about “otherwise stipulated” in my last e-mail.
I take it from this that you are saying no my request that we agree to postpone the exchange of reports for a short time
until we can complete more discovery?
Mark,
Take a look at Rule 26
USCS Fed Rules Civ Proc R 26
(2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other
parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702,
703, or 705.
(B) Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be
accompanied by a written report--prepared and signed by the witness--if the witness is one retained or
specially employed to provide expert testimony in the case or one whose duties as the party's employee
regularly involve giving expert testimony. The report must contain:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the data or other information considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
4
OPP000033
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 51 of 88
(iv) the witness's qualifications, including a list of all publications authored in the previous ten years;
(v) a list of all other cases in which, during the previous four years, the witness testified as an expert at
trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
Sincerely,
Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW OFFICE OF EUGENE LEE
EMPLOYMENT LAW
555 WEST FIFTH ST., STE. 3100
LOS ANGELES, CA 90013
Tel: (213)992-3299
Fax: (213)596-0487
E - m a i l : elee@LOEL.com
W e b s i t e : www.LOEL.com
B l o g : www.CaLaborLaw.com
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
This message is sent by a law firm and may contain information that is privileged or confidential. If you received this
transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.
From: Mark Wasser [mailto:mwasser@markwasser.com]
Sent: Thursday, May 01, 2008 5:03 PM
To: elee@LOEL.com
Subject: RE: Expert disclosures
Gene,
We are not proposing a postponement of the disclosure itself. Only the reports. For example, our economist has virtually
nothing to go on. He has asked us for some information which we will get via discovery. Until we have completed more
discovery, there is no basis for rendering any definitive opinions. I think someone in Wanger’s chambers goofed with the
May 5 date, frankly. It is over 180 days before trial. That is too early. 90 days is typical. We can probably start
exchanging reports in a month or so. But, we cannot do it now. And, as I wrote, we do not expect you to, either.
Mark
Mark,
We’ve had over 8 months of discovery in this action. Only 2 months remain. Let me think about this and get back to you.
In any case, what you propose is a variation on Judge Wanger’s Scheduling Order and I believe it would in any case
require a stipulation and order signed by Judge Wanger. As you know, in his last order granting continuation of the trial
5
OPP000034
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 52 of 88
and other dates, he wrote in bold that no further continuances would be granted. I think he was making clear that we
shouldn’t come to him for any more requests for extensions.
Sincerely,
Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW OFFICE OF EUGENE LEE
EMPLOYMENT LAW
555 WEST FIFTH ST., STE. 3100
LOS ANGELES, CA 90013
Tel: (213)992-3299
Fax: (213)596-0487
E - m a i l : elee@LOEL.com
W e b s i t e : www.LOEL.com
B l o g : www.CaLaborLaw.com
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
This message is sent by a law firm and may contain information that is privileged or confidential. If you received this
transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.
From: Mark Wasser [mailto:mwasser@markwasser.com]
Sent: Thursday, May 01, 2008 4:21 PM
To: Eugene Lee
Subject: Expert disclosures
Gene,
The new schedule we have from the Court designates May 5 as the date for disclosure of experts. As you know,
discovery does not close until July 7. Trial is not until December. Rule 26 contemplates disclosure of expert reports at
least 90 days before trial. We are over 180 days away from trial now. It is too early to disclose expert reports and our
experts cannot complete meaningful reports until discovery is closer to completion. Thus, we cannot disclose reports or
final conclusions yet. We do not expect you to disclose them, either. I suggest we disclose names and other available
information, like CVs and rates and subject of testimony, but defer disclosure of reports until meaningful reports can be
prepared.
Mark
6
OPP000035
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 53 of 88
EXHIBIT 8
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 54 of 88
Eugene D. Lee
From: Mark Wasser [mwasser@markwasser.com]
Sent: Friday, May 02, 2008 5:59 PM
To: elee@LOEL.com
Subject: RE: Psychiatric evaluation of Dr. Jadwin
Gene,
Dr. Jadwin’s mental condition is being examined. That is the scope of the interviews. The psychiatrist will be present.
You can have whatever he does because all of his work will be discoverable. He says he needs two visits.
Mark
Mark,
Under Rule 35, we’re entitled to know the what condition is being examined, the scope of the oral interviews, who will
be present, whether we’ll be receiving a copy of the raw data and a report of the exam setting out in detail its findings,
including diagnoses, conclusions, as soon as they are available, etc. Also, is there any reason that the examination
cannot occur in a single visit?
If you have a stipulation in mind, I’d like to take a look at it.
In the meantime, I’ll speak with Dr. Jadwin re available dates.
Sincerely,
Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW OFFICE OF EUGENE LEE
EMPLOYMENT LAW
555 WEST FIFTH ST., STE. 3100
LOS ANGELES, CA 90013
Tel: (213)992-3299
Fax: (213)596-0487
E - m a i l : elee@LOEL.com
W e b s i t e : www.LOEL.com
B l o g : www.CaLaborLaw.com
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
This message is sent by a law firm and may contain information that is privileged or confidential. If you received this
transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.
1
OPP000036
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 55 of 88
From: Mark Wasser [mailto:mwasser@markwasser.com]
Sent: Friday, May 02, 2008 4:28 PM
To: Eugene Lee
Cc: Karen Barnes
Subject: Psychiatric evaluation of Dr. Jadwin
Gene,
We want to have Dr. Jadwin examined by Dr. Robert Burchuk, a psychiatrist in Woodland Hills. The evaluation will
consist of two, 4-hour sessions on two different days. The sessions will be oral interviews and will not involve any testing.
If any tests are to be administered to Dr. Jadwin, they will be done separately and only after separate arrangements are
made with you.
Could you please give me some dates when Dr. Jadwin is available?
Thank you.
Mark
2
OPP000037
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EXHIBIT 9
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 57 of 88
Eugene D. Lee
From: Mark Wasser [mwasser@markwasser.com]
Sent: Monday, May 05, 2008 10:48 AM
To: elee@LOEL.com
Subject: RE: Continuance of expert deadlines/DME
Mark,
I did NOT say I agreed to forego filing the supplemental complaint. I said I would think about it. Please do not suggest I
have committed to things I have not. Second, it is not an amended but supplemented complaint, supplemented to
reflect the fact of KMC’s non‐renewal of Dr. Jadwin’s contract on October 4, 2007. When I spoke to you, the
supplemental complaint was already done and I told you so. All I’m requesting is your stipulation. If you don’t want to
give it, that’s fine…and I hasten to add typical of your conduct in this action. We’ll file a motion. The motion is utterly
unnecessary and I see no reasonable basis for your refusal to stipulate, but that is your choice. The consequence will be
unnecessarily increased statutory attorney fees and costs.
Sincerely,
Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW OFFICE OF EUGENE LEE
EMPLOYMENT LAW
555 WEST FIFTH ST., STE. 3100
LOS ANGELES, CA 90013
Tel: (213)992-3299
Fax: (213)596-0487
E - m a i l : elee@LOEL.com
W e b s i t e : www.LOEL.com
B l o g : www.CaLaborLaw.com
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
This message is sent by a law firm and may contain information that is privileged or confidential. If you received this
transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.
From: Mark Wasser [mailto:mwasser@markwasser.com]
Sent: Monday, May 05, 2008 8:30 AM
To: elee@LOEL.com
Subject: RE: Continuance of expert deadlines/DME
1
OPP000038
Gene,
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 58 of 88
Our motion will be submitted to whomever the Clerk directs it to. We simply file it. Neither you nor I control that.
Regarding the complaint, this is another example why we do not work together. We discussed that at our meet and
confer session before the Perez depo. I told you I did not think it was a necessary amendment and you said you agreed.
Pleadings do not need to be amended endlessly. I assumed the issue was resolved. Now, out of the blue, here it is
again. Sorry. No thanks. If you want to file another supplemental complaint, bring a motion. For all I know you will be
amending the complaint up to trial.
Mark
Mark,
We’ll be pleased to stip to shortened time (giving Plaintiff 1 week for opposition and waiving Defendants’ reply)
provided 1) you are submitting the motion to Judge Wanger, whose scheduling order you are seeking relief from, and 2)
you sign the stipulation for leave for plaintiff to file the Third Supplemental Complaint, which I sent you on April 17 (see
attached) and regarding which I have not heard from you since.
I look forward to hearing from you.
Sincerely,
Gene Lee
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
LAW OFFICE OF EUGENE LEE
EMPLOYMENT LAW
555 WEST FIFTH ST., STE. 3100
LOS ANGELES, CA 90013
Tel: (213)992-3299
Fax: (213)596-0487
E - m a i l : elee@LOEL.com
W e b s i t e : www.LOEL.com
B l o g : www.CaLaborLaw.com
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
This message is sent by a law firm and may contain information that is privileged or confidential. If you received this
transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.
From: Mark Wasser [mailto:mwasser@markwasser.com]
Sent: Sunday, May 04, 2008 12:07 PM
To: elee@LOEL.com
Subject: RE: Continuance of expert deadlines/DME
2
OPP000039
Case 1:07-cv-00026-OWW-TAG Document 121 Filed 05/07/2008 Page 59 of 88
Gene,
We are filing a motion for partial relief from the scheduling order as I explained. We are also going to request that the
motion be heard on shortened time. Will you stipulate to shortened time? I will waive my reply. I have in mind a week for
opposition and then it will be deemed ready for hearing. Let me know so I can put in my declaration that we met and
conferred.
Thanks.
Mark
OPP000040
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EXHIBIT 10
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27 EXHIBIT A
28
DECLARATION OF EUGENE D. LEE IN SUPPORT OF DECLARATION re: INABILITY TO
SECURE COOPERATION TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION FOR
PROTECTIVE ORDER 2
OPP000042
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1 CERTIFICATE OF SERVICE
2 I, the undersigned, hereby declare:
3 I am a resident of Los Angeles in the State of California. I am over the age of 18 and not a party
to the action described herein. I am employed in the County of Los Angeles, California. My business
4 address is LAW OFFICE OF EUGENE LEE, 555 West Fifth Street, Suite 3100, Los Angeles, CA
90013. On the date of execution of this DOCUMENT, I served the following:
5
6 PLAINTIFF’S RULE 26 EXPERT DESIGNATIONS, INCLUDING OPINION REPORTS,
CV’S, FEE SCHEDULES, LISTS OF PUBLICATIONS, ETC., FOR DR. ANTHONY E.
7 READING, MS.STEPHANIE RIZZARDI, MS. REGINA LEVISON AND DR LAWRENCE
WEISS
8
on the following parties in this action by and through their attorneys addressed as follows:
9
Mark A. Wasser
10 LAW OFFICES OF MARK A. WASSER
400 Capitol Mall, Suite 1100
11 Sacramento, CA 95814
Fax: (916) 444-6405
12 Attorneys for Defendants County of Kern, Peter
Bryan, Irwin Harris, Eugene Kercher, Jennifer
13 Abraham, Scott Ragland, Toni Smith and
William Roy
14
BY UNITED STATES MAIL: I enclosed the DOCUMENT(s) listed above in a sealed envelope
15 with postage thereon fully prepaid, addressed to the PERSON(s) listed above, and deposited the sealed
envelope with the United States Postal Service at Los Angeles, California. I am aware that on motion of
16 the party served, service is presumed invalid if postal cancellation date or postage meter date is more
than one day after date of deposit for mailing in affidavit.
17
FEDERAL: I declare under penalty of perjury under the laws of the United States of America
18 that the above is true and correct and that I took said actions at the direction of a licensed attorney
authorized to practice before this Federal Court.
19
Executed on May 5, 2008, at Los Angeles, California.
20
21
22
23 Eugene D. Lee
24
25
26
27
28
CERTIFICATE OF SERVICE
OPP000043
U.S. Postal Servicem
CERTIFIED MAILu" RECEIPT
IT'
(Domestic MailDocument
Only; No Insurance
Case
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U1 Document 120Coverage
121 Filed Provided)
Filed 05/07/2008
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<0
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Total Postage & Fees
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Mark Wasser
§ ~;eei.-APCfJo: Law Office Of Mark Wasser
I"- or PO Box No.
400 Capitol Mall Ste 1100
citji,SiBiti:zfi5.
Sacramento, CA 95814-4434
OPP000044
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EXHIBIT 11
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20
21
22
23 Defendants may use the following persons to present evidence at trial under Rules 702,
25 1. Robert Burchuk, M.D., 6320 Canoga Ave., Suite 1500, Woodland Hills,
26 California 91367.
27
28
-1-
1 Dr. Burchuk will conduct a mental and psychiatric examination of Plaintiff and will
2 provide opinion testimony on Plaintiff s mental and psychiatric condition and prognosis and the
3 extent to which Plaintiffs condition and prognosis are related to his employment at KMC.
6 assess Pla.intitr
21 Respectfully submitted,
23
24 By: lsi Mark A. Wasser
25 Mark A. Wasser
Attorney for Defendants, County of Kern, et a1.
26
27
28
-2-
EXHIBIT A
OPP000047
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CURRICULUM VITAE
'V Ave.
",avE,"
Woodland Hills, California 91367
PGY-V Fellow,
UCLA/San Fernando Valley Forensic Psychiatry Fellowship,
Los Angeles, CA, July 2006- June 2007
OPP000048
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Managed Carel
Health Plan Experience: August 200l-February 2006:
Vice President and Corporate Medical DiJrecltor, PacifiCare Hpll::lVl0r::l1
corpOl'ate wide NlemCal
Management and Quality Improvement.
nUf,U.H 2002 February 2003:
WI~"tl'rn Kegw,n Nledlcal Director
2002:
Western Region Medical DiI'ector, PacifiCare Behavioral AA"UUJlL
Plan of Califc1rnia,
product Los Angeles and Orange
County; Medical Director for Behavioral Health, Statewide; interim
Medical Director for Medicare HMO product, statewide, February-
September, 1997 including preparation for successful HCFA audit.
March-November 1991:
Physician Advisor, American PsychManagement of California, Inc,
(now Value/Options). Utilization review and first level appeals of
inpatient and outpatient psychiatric treatment.
2
OPP000049
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subcontractor services to
Medical Psychiatrists including: inpatient services at Charter Hospital
of Long Beach and the Geropsychiatric Institute at Los Alamitos
Medical Center; consultation to patients at St. Mary's Medical Center
and Pioneer Hospital; outpatient treatment.
Full-Time Faculty
Experience: July 1986-June 1988:
Assistant Professor, Department of Psychiatry and Behavioral Sciences,
George Washington University Medical Center.
3
OPP000050
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Treatment
Behavioral Panel
Healthcare Tomorrow, San Francisco, September 1996.
and Care:
Medical Behavioral Health Care Delivery. " Co-presenter at
California Association for Healthcare Quality, 2005 Spring Conference
232.
4
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EXHIBITB
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Vita
JULIE B. OLSON-BUCHANAN
Illinois at Urbana-Champaign
Split Minor: Social and Quantitative Psychology.
Dissertation Title: Voicing Discontent: What /-I!:I,nnt:,nc Grievance
Management, Business
California State University, Fresno
OPP000053
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Graduate Courses:
Managing Human Capital (MBA 240)
International Strategic Human Resource Management (MBA 289T)
Uoint venture with Burgundy School of Business,
France)
PUBLICA TIONS
OPP000054
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23
Olson-Buchanan, J.B., & Boswell, W.R. (2007). Dispute resolution system design. In
C.K.W. De Dreu, & M.J. Gelfand's (Eds.), The Psychology of Conflict and Conflict Management
in Organizations. SlOP Series, Erlbaum PUblishing.
,& J. at
The role of grievance-filing, nature of mistreatment, and employee withdrawal. Academy of
(1), 129-1
Richman, W. L., Olson-Buchanan, J. B., & Drasgow, F. (2000). Examining the Impact of
Administration Medium on Examinee Perceptions and Attitudes. Journal of Applied Psychology,
85 (6), 880-887.
Drasgow, F., & Olson-Buchanan, J. B. (1999). Blood, sweat, and tears: Some final
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The Effects of Feedback and Leadership on Virtual Performance. Paper presented at the 21 st
annual meeting of the Society for Industrial and Organizational Psychology, Dallas,TX.
Sanchez, R J., Olson-Buchanan, J. B., Rechner, P. L., & Schmidtke, J. M. (2006, May).
Multiple-Perspective Taking in Team-Member Exchange in a Virtual Environment. Paper
st
presented at the 21 annual meeting of the Society for Industrial and Organizational
Psychology, Dallas, TX.
Lopez, Y. ,Rechner, L., Sundaramurthy, C., & Olson-Buchanan, J. B. (2005, August).
Enhancing Ethical Perceptions: Impact of Integrated Ethics Curriculum vs a Stand Alone Ethics
Course.
th
Presented at the 19 Annual Conference of the Society for Industrial and Organizational
Psychology.
Sanchez, J., J. L., J.
The Effects of Dispositional Trust and Team-member Exchange in the Virtual Environment. Paper
presented at the annual meeting of the Academy of Management, Seattle, WA.
S("'!,mirlt~~t:> J. J. , & Sanchez,
Process I\JI<:lttt:>lrc
I\Il..,n.."no'"Y"Iont Seattle,
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1997 Annual Conference for the International Association for Conflict Management, Bonn,
Germany.
Olson-Buchanan, J. B. (June, 1996). To grieve or not to grieve? Factors related to
voicing discontent in an organizational simulation. Paper presented at the 1996 Annual
Conference for the International Association for Conflict Management, Cornell University, NY.
Olson-Buchanan, J. B., Drasgow, F., Moberg, P. M., & Donovan, M. (April. 1996).
interactive Video Assessment of Conflict Resolutions Skills. Paper presented at the 1996 Society
Industrial and Organizational Psychology Conference, San Diego, CA
, & 1 !!::lli2~.Q!J!:illm~~.I1!§!j~m
Olson, J. (1993). Grievance System Research in Field Studies: To err is human, but is
to grieve divine? Symposium conducted at the 1993 conference of the International Association
Conflict Management, Brussels, Belgium.
Olson, J. B. (1993). Laboratory Research on Grievance Systems: Is it worth the
sacrifice? Symposium conducted at the 1993 conference of the International Association for
Management, Brussels, Belgium.
J. (1993). =.:.:;==-=.:J.:.=.:..=....;:.:..:....:::.:...=L::::==..:.=.:...-=-:.:...:....=.;===.:...:..~:.:..:.::..=.:.::::..:..:.:::.:.
post-appeal consequences
Management, Minneapolis,
Dyer, P.J., Desmarais, L.B., Midkiff, K.R., Colihan, J.P. & Olson, J. (1992, May).
Designing a multimedia test: Understanding the organizational charge, building the team and
making the basic research commitments. In P.J. Dyer's (Chair) Computer-based multimedia
testing: Merging technology, reality and scientific uncertainty. Symposium conducted at the 1992
Society for Industrial and Organizational Psychology Conference, Montreal, Quebec.
Olson, J. B. & Keenan, P. A, (1991, June). Assessing administrative decision making
skills. In F. Drasgow (Chair), Compas: A computerized assessment system. Symposium
conducted at the meeting of the International Personnel Management Association Assessment
Council, Chicago.
Keenan, P. A, & Olson, J. B. (1991, June) Assessment of conflict management skills. In
F. Drasgow (Chair), Compas: A computerized assessment system. Symposium conducted at the
meeting of the International Personnel Management Association Assessment Council, Chicago.
Olson, J. B. & Hulin, C. L., & Hubert, L. J. (1991). Performance appraisal: An information
processing approach to rating errors. Paper presented at the 1991 Society for Industrial and
Organizational Psychology Conference, St. Louis, Missouri.
Olson, J. B. & Keenan, P. A (1991, April). A computerized in-basket test of administrative
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(1997-2000)
Society for Industrial and Organizational Psychology Awards Committee
(1993 to 1995)
Academy of Management (Conflict Division), Conference Reviewer
(1996-1998)
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Chair, Craig School of Business & Psychology Department Task Force (1998 - 2000)
Task Force, 2000 & Beyond (1999 - 2000)
Student Affairs Committee (1993- Spring, 1997, 1998-2000)
CSB Honors Program Taskforce (Fall, 1996 - Spring, 1998)
CSB Reaccreditation Taskforce (Spring, 1995 to 1998)
1996
University Service
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Community Service
Community Food Bank (Second Harvest)
Formed partnership with local food bank to provide
am'iM)es & rell'ISF,!G
2006)
PA,rfnlrmJ=!nr'A Appraisal
MuniServices
Fairness in Management
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Expert Witness
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EXHIBITC
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Monterey Ventura
Sacramento
06/01/06
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$ 350/hr.
than a notice
depositions, trial£ imd mo.tters, a caru~ejl1ation
be applied based on the time reserved.
Preparation, travel time and any expenses incurred for depositions will
be billed to the retaining attorney per C.C.P. Section 2034(1).
Payment for all services will be the sole responsibility of the retaining attorney or law ftrm. All invoices
al'e due and payable on receipt. Payment of any unpaid balance is due prior to deposition and trial
appeanlnecs, including expected fees for preparation and travel.
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