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PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 1

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LAW OFFICE OF EUGENE LEEEugene D. Lee (SB#: 236812)555 West Fifth Street, Suite 3100Los Angeles, CA 90013Phone: (213) 992-3299

Fax: (213) 596-0487email: [email protected]

Attorney for PlaintiffDAVID F. JADWIN, D.O.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

FRESNO DIVISION

DAVID F. JADWIN, D.O.,

Plaintiff,

v.

COUNTY OF KERN, et al.,

Defendants.

Civil Action No. 1:07-cv-00026 OWW TAG

PLAINTIFF'S NOTICE OF MOTION ANDMOTION FOR LEAVE TO FILE SECONDAMENDED COMPLAINT

Date: October 3, 2008Time: 10:00 a.m.Courtroom: U.S. District Court, Crtrm. 3

2500 Tulare St, Fresno, CAComplaint Filed: January 6, 2007Trial Date: December 2, 2008

Case 1:07-cv-00026-OWW-TAG Document 217 Filed 09/02/2008 Page 1 of 77

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

Please take notice that on October 3, 2008, at 10:00 a.m., or as soon thereafter as the parties may

be heard, Plaintiff DAVID F. JADWIN, D.O. will and hereby does move this Court U.S. Dist. Ct.,

Bankr. Crtrm., 1300 18th St., Bakersfield, CA, for leave to file the Second Amended Complaint.

For the reasons set forth in the accompanying Memorandum of Points and Authorities and

Declaration of Eugene Lee, Plaintiff respectfully requests that this Court grant it leave to file the Second

Amended Complaint, and for such other relief as may be just.

RESPECTFULLY SUBMITTED on September 2, 2008.

/s/ Eugene D. LeeLAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, CA 90013Phone: (213) 992-3299Fax: (213) 596-0487email: [email protected] for Plaintiff DAVID F. JADWIN, D.O.


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MEMORANDUM OF POINTS & AUTHORITIES

I. BACKGROUNDPlaintiff has attempted without success to obtain Defendants stipulation to file the Second

Amended Complaint (SAC) and the revised Second Amended Complaint ("RSAC").

On January 6, 2007, Plaintiff filed the Complaint initiating this action.

On April 24, 2007 and on June 13, 2007, Plaintiff supplemented the Complaint to reflect events

occurring after the date of the last-filed Complaint.

On January 4, 2008, Plaintiff sent the draft Third Supplemental Complaint (TSC) almost

identical to the SAC to Defendants for their review. Defendants never responded.

On January 22, 2008, Plaintiff noted Defendants had not responded. Defendants replied that they

were inclined not to so stipulate but would reconsider subject to certain conditions.

On April 17, 2008, after further discussion between the parties, Plaintiff again sent the draft TSC

to Defendants for their review. Defendants never responded.

On May 4, 2008, Plaintiff again requested Defendants stipulation to filing the TSC. On May 5,

Defendants refused and stated the pleadings are done.

On June 30, 2008, Plaintiff filed with this Court his notice of withdrawal of motion for leave to

file the TSC, stating:

Unless Defendants stipulate otherwise, Plaintiff intends to file a motion for leave to fileand serve the Second Amended Complaint, naming the County of Kern . . . asdefendants in their personal and official capacities under Count Ten [sic] of PlaintiffsComplaint (42 U.S.C. 1983 procedural due process).Doc. 159, 1:24 2:1.

On July 1, 2008, Plaintiff requested Defendants stipulation to filing the SAC. Later that day,

Defendants stated that they refused.

Discovery in this action closed on August 18, 2008, except for depositions per the stipulation and

order of the parties.

On August 29, during the deposition of Philip Dutt, the parties met and conferred regarding

withdrawal of Plaintiffs prior motion for leave to file the Second Amended Complaint so that Plaintiff

could further add additional claims arising out of facts which were newly discovered during the course

of Plaintiffs depositions. Defendants refused to stipulate to the filing of the revised Second Amended

Complaint. Plaintiff therefore had no choice but to bring this motion seeking leave to file the second


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amended complaint.

II. ARGUMENTPlaintiff seeks to effect the following items with the filing of the SAC:

A. Item 1: Supplement the Complaint regarding events that occurred after the filing ofPlaintiffs second supplemental complaint.

1. Requested Change

Plaintiff filed the Second Supplemental Complaint on June 13, 2007. Plaintiff now seeks to

supplement the Complaint regarding events occurring subsequently, including: (a) Defendant Countys

lifting of Plaintiffs home restriction on April 30, 2007, (b) Defendant Countys non-renewal of

Plaintiffs employment contract on October 4, 2007 and (c) Plaintiffs exhaustion of administrative

remedies. Accordingly, Plaintiff seeks to make additions to the Complaint including the following:

20. Just before Thanksgiving of 2006, Plaintiff confided to Gilbert Martinez, theLaboratory Manager at KMC, that he intended to blow the whistle on KMC toappropriate outside agencies. Days later, Defendant Harris met with Philip Dutt, M.D.,Interim Chair of the Pathology Department at KMC (Dutt), to discuss what steps thePathology Department should take in anticipation of Plantiffs whistleblowing to theseoutside agencies.

27. On April 30, 2007, Defendant County sent a letter to Plaintiff notifying him of itsdecision to lift the home restriction. To date, Plaintiff has received no formal explanationfor the involuntary leave or the restriction to his home.

28. On May 1, 2007, Defendant County sent an email to Plaintiff notifying him of itsdecision not to renew Plaintiffs employment contract, which was not due to expire untilOctober 4, 2007, and to let the contract run out. To date, Plaintiff has received noformal explanation for the decision not to renew his contract.

29. On October 4, 2007, Defendant County failed to renew Plaintiffs employmentcontract, which therefore expired.

30. On August 15, 2008, Ray Watson, Chair of the Board of Supervisors ofDefendant County, testified in deposition that Defendant County had decided during thecourse of several KMC Joint Conference Committee meetings not to renew Plaintiffsemployment contract because he had filed the instant lawsuit.

138. On October 4, 2007, Defendant County failed to renew Plaintiffs employmentcontract, which therefore expired.

142. During the time that Defendants placed Plaintiff on involuntary full-time leave,including the period from December 7, 2006 to October 4, 2007, Defendants effectivelydenied Plaintiff the opportunity to earn Professional Fees as set forth in Article II of theSecond Contract.

149. On October 10, 2007, Plaintiff again filed a supplemented Tort Claims Actcomplaint with the County of Kern, supplemented to reflect events occurring after filingof the supplemented Tort Claims Act complaint on April 23, 2007.


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153. On October 16, 2007, Plaintiff again filed a supplemented complaint with theDFEH, supplemented to reflect events occurring after filing of the supplementedcomplaint with the DFEH on April 23, 2006.

154. On September 2, 2008, Plaintiff again filed a supplemented complaint with the

DFEH, supplemented to reflect additional claims for retaliation for opposing practicesmade unlawful under CFRA and FEHA which arose after evidence was newlydiscovered subsequent to the filing of the supplemented complaint with the DFEH onOctober 16, 2007.

2. Why It Should be Permitted

Rule 15(d) of the Federal Rules of Civil Procedure provides, in pertinent part:

Upon motion of a party the court may, upon reasonable notice and upon such terms asare just, permit the party to serve a supplemental pleading setting forth transactions oroccurrences or events which have happened since the date of the pleading sought to besupplemented.

A supplemental pleading is used to allege relevant facts occurring after the original pleading was

filed. Keith v. Volpe (9th Cir. 1988) 858 F.2d 467, 468. A supplemental pleading is designed to bring the

action up to date and to set forth new facts affecting the controversy that have occurred since the

original pleading was filed.Manning v. City of Auburn (11th Cir. 1992) 953 F.2d 1355, 13591360. A

supplemental pleading may properly allege events occurring after the original complaint was filed and

identify any new parties involved therein. Rule 15(d) plainly permits supplemental amendments to

cover events happening after suit, and it follows, of course, that persons participating in these new

events may be added if necessary. Griffin v. County School Board(1964) 377 U.S. 218, 226227.

Supplemental pleadings can only be filed with leave of court and upon such terms as are just. Glatt v.

Chicago Park Dist. (7th Cir. 1996) 87 F.3d 190, 194. However, supplemental pleadings are favored

because they enable the court to award complete relief in the same action, avoiding the costs and delays

of separate suits. Therefore, absent a clear showing of prejudice to the opposing parties, they are

liberally allowed. See Keith v. Volpe (9th Cir. 1988) 858 F.2d 467, 473; Quaratino v. Tiffany & Co. (2nd

Cir. 1995) 71 F.3d 58, 66. The purpose of Rule 15(d) is to promote as complete an adjudication of the

dispute between the parties as is possible. LaSalvia v. United Dairymen of Arizona, 804 F.2d 1113,

1119 (9th Cir. 1986), cert. denied, 482 U.S. 928 (1987).

The supplements sought by Plaintiff promote a complete and efficient adjudication of the

disputes between the existing parties to this action. Item 1 Plaintiffs proposed supplements allege a

series of adverse employment actions taken by Defendants against Plaintiff that were first referenced in


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Plaintiff's original and subsequent complaints. For instance, Plaintiffs Second Supplemental Complaint

had alleged in pertinent part:

102. On or about December 7, 2006, Culberson sent a letter addressed to Plaintiff

informing him that he was being placed on involuntary paid administrative leavepending resolution of a personnel matter.

104. On April 4, 2007, Plaintiff placed Defendant County on notice that (i) he still hadyet to be provided any explanation for his involuntary leave or any indication as towhether or when it would end so that he could return to work, (ii) the involuntary leaverequiring him to remain at home by his phone during working hours was threatening toerode his pathology skills, jeopardizing his employability and career as a pathologist,(iii) the involuntary leave was denying him the opportunity to earn income fromprofessional fee billing, and (iv) part-time work was deemed therapeutic for him by hisphysician and that the confinement to his house during working hours was having theopposite effect of severely exacerbating his depression.

105. To date, Plaintiff remains on involuntary leave, with no explanation therefore orany indication as to whether or when it will end.

Plaintiff alleges that these actions constituted a continuing violation and/or a pattern and practice of

discrimination, harassment, and/or retaliation taken against Plaintiff because of his protected

characteristics and activities. If Plaintiff is denied leave to file the SAC, Plaintiff would be forced to file

a new law suit re-alleging most of the same claims contained in this action based on these new adverse

actions. Permitting the supplement would result in a more efficient use of scarce judicial resources.

More importantly, there is no risk of prejudice or surprise to Defendants. First, the supplements

comprise allegations of continuing injury or continuation of the wrongful conduct already alleged in

Plaintiffs original or supplemental complaints. Second, Plaintiff has repeatedly apprised Defendants of

his desire to make the foregoing supplements to his complaint since January 4, 2008, when Plaintiff first

sent Defendants the draft TSC. Defendants initially refused to respond at all, then ultimately refused to

stipulate.

Third, Plaintiff served on Defendants copies of the supplemented complaint he filed with the

Department of Fair Employment & Housing on October 16, 2007 and supplemented Tort Claims Act

claim he filed with the County of Kern on October 10, 2007, each detailing the same supplemental

allegations which Plaintiff now proposes in the SAC.

Fourth, Plaintiffs Initial Disclosure contained a Rule 26 report issued by Plaintiffs forensic

economist which fully disclosed the harm that Plaintiff suffered and expected to suffer because of the

events which Plaintiff now seeks to supplementally allege.


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Defendants cannot in good faith claim to be surprised or prejudiced by Plaintiffs proposed

supplements.

B. Item 2: To include an element of Plaintiffs Count VI for disability discriminationadded to Plaintiff's Prima Facie Case by a decision of the California Supreme Courtissued after the filing of this lawsuit.

1. Requested Change

Plaintiff seeks to add Paragraph 125 to allege Plaintiffs ability to perform the essential functions

of his job, which the California Supreme Court found to be an element of Plaintiffs disability

discrimination claim in Green v. State of California, issued by the California Supreme Court on August

23, 2007. Paragraph 125 reads as follows:

125. At all times material here, excluding a portion of the time when he was out onvoluntary full-time medical leave, Plaintiff has been able to perform the essentialfunctions of the employment positions he held with Defendants and each of them, withreasonable accommodation.


Rule 15 provides the parties with flexibility in presenting their claims and defenses. It assures

that cases will be heard on their merits and avoids injustices which sometimes resulted from strict

adherence to earlier technical pleading requirements. Foman v. Davis (1962) 371 U.S. 178, 182; Slayton

v. American Express Co. (2nd Cir. 2006) 460 F.3d 215, 228. Rule 15 reflects the limited role assigned to

federal pleadings: i.e., their purpose is simply to provide the parties with fair notice of the general nature

and type of the pleader's claim or defense. As long as such notice has been provided, the pleadings

should not limit the pleader's claims or defenses.Ibid.; see also Grier v. Brown (N.Dist. Cal. 2002) 230

F.Supp.2d 1108, 1111.

Plaintiffs proposed correction of an omission does not allege any new facts; it arises out of the

same exact nucleus of facts alleged in Plaintiffs original and supplemental complaints filed with the

Court. Simply put, it merely seeks to correct the omission of a legal pleading element required for

Plaintiffs Counts VI through VIII for violation of Californias disability discrimination laws.

Defendants cannot claim to have been denied fair notice of the general nature of Plaintiffs disability

discrimination claims or the alleged facts from which they arise. Permitting the correction would not

prejudice Defendants in any way. Conversely, denying the correction may prevent consideration of

Plaintiffs disability discrimination claims on their merits and result in injustice.


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C. Item 3: Add already-named and existing Defendants, the County of Kern and IrwinHarris, to Plaintiffs Count IX for 42 U.S.C. 1983 due process violation claim, basedupon events which were already alleged in the Complaint.

1. Requested Change

Plaintiff seeks to amend Count IX (See Paragraph 207 of the SAC) to add Defendants County of

Kern and Irwin Harris to that count. Both Defendants are already named and existing parties and no

joinder of new parties is required under Rule 19. Rather, joinder of a claim against an existing party is

required under Rule 18.


Rule 15 requires that leave to amend should be freely given when justice so requires. Fed. R.

Civ. Proc. 15(a)(2); seeLone Star Ladies Invest. Club v. Schlotzsky's Inc. (5th

Cir. 2001) 238 F.3d 363,

367 (policy favoring leave to amend a necessary companion to notice pleading and discovery.) This

policy is to be applied with extreme liberality.Eminence Capital, LLC v. Aspeon, Inc. (9th Cir. 2003)

316 F.3d 1048, 1051;Moore v. Baker(11th Cir. 1993) 989 F.2d 1129, 1131 (justifying reasons must be

apparent for denial of a motion to amend). Absent prejudice, or a strong showing of any of the other

reasons for denying leave to amend, there exists a presumption under Rule 15(a) in favor of granting

leave to amend.Eminence Capital, LLC v. Aspeon, Inc. (9th

Cir. 2003) 316 F.3d 1048, 1052. While

leave to amend should not be granted automatically, the circumstances under which Rule 15(a)

permits denial of leave to amend are limited. Ynclan v. Department of Air Force (5th Cir. 1991) 943

F.2d 1388, 1391.

The opposing party may claim prejudice from any amendment, such as the expense of

responding to the amended pleading and possible delay in getting to trial; however, expense and delay

are probably not enough by themselves to deny leave to amend. There must be some showing of

inability to respond to the proposed amendment. Likewise, the need for additional discovery is

insufficient by itself to deny a proposed amended pleading. See U.S. v. Continental Illinois Nat'l Bank &

Trust(2nd Cir. 1989) 889 F.2d 1248, 1255; Genentech, Inc. v. Abbott Laboratories (N.Dist. Cal. 1989)

127 F.R.D. 529, 531.

Rule 18(a) expresses a philosophy of great liberality toward entertaining the broadest possible

scope of action consistent with fairness to parties; joinder of claims, parties, and remedies is strongly

encouraged.Lanier Business Products v Graymar Co. (1972, Dist. Md.) 342 F.Supp 1200. A party


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should be able to join all claims he has against his opponent as matter of course to avoid a multiplicity of

litigation and possible claims ofres judicata at later date.Ibid.

Joinder of Plaintiffs Count IX for 42 U.S.C. 1983 due process violations against Defendants

County and Harris should be permitted. Both Defendants are already named in several of Plaintiffs

Counts and are existing parties in this action. Joinder of Defendant County in County IX is clearly

warranted underMonell v Dept. of Social Services (1978) 436 U.S. 658 and would avoid multiplicity of

litigation and claims ofres judicata at a later date. Joinder of Harris became warranted in light of the

deposition testimony of David Culberson, former Interim CEO of KMC, on August 21, 2008 wherein

Plaintiff learned for the first time of the extent of Dr. Harriss participation in Defendant Countys

decision to place Plaintiff on administrative leave on December 7, 2006 and, subsequently, not to renew

Plaintiffs employment contract.

There is no risk of prejudice or surprise to Defendants. Defendants have had fair notice of the

nucleus of facts underlying Defendant Countys and Harriss liability under Count IX e.g., demotion

of Plaintiff and reduction of his base salary, placement of Plaintiff on involuntary administrative leave

with home restriction, and non-renewal of Plaintiffs contract since at least January 2008 when

Plaintiff sent the draft TSC to Defendants. On June 30, 2008, Plaintiff filed with this Court his notice of

withdrawal of motion to file the TSC, expressly stating therein Plaintiffs intention to seek joinder of

Count IX against Defendant County (Doc. 159). On July 1, 2008, Plaintiff again gave Defendants notice

providing them a copy of the SAC along with a proposed stipulation (which Defendants rejected). With

discovery in this action due to close on August 18, 2008, Defendants had more than a month to conduct

whatever additional discovery they deem necessary in light of the SAC although no additional

discovery should conceivably be necessary to parse out aMonell analysis.

More importantly, Plaintiff is not a percipient witness having knowledge of any facts regarding

Defendant Countys liability underMonell or Dr. Harriss liability for his participation in adverse

employment actions against him, other than what was revealed by Defendants former and current

employees themselves during their depositions. No further discovery needs to be conducted by

Defendants in order to defend against the new claims proposed to be brought against Defendants County

and Harris. Even if such were the case, Defendants have ready access to County witnesses and Harris

himself in contrast to Plaintiff who must engage in the formality of deposing them to access their


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testimony.

Finally, under Cal. Govt. C. 995 et seq., Defendant County is required to indemnify its

employees against liability for violations alleged in Plaintiffs Count IX as set forth in Plaintiffs initial

complaint filed on January 6, 2008. The joinder of Count IX against Defendant County simply adds

direct liability where indirect liability for individually named employees under Count IX already exists.

D. Item 4: Joinder of new claims for CFRA retaliation (existing Count III), FEHAretaliation (Govt C. 12940(h), new Count XI) and FMLA retaliation (29 U.S.C. 2615(b), new Count X) against Defendant County and Does 1 through 10 basedupon newly-discovered evidence.

1. Requested Change

Plaintiff seeks to amend the complaint to add new Counts X and XI and a new claim for CFRA

retaliation under existing Count III against Defendant County and Does 1 through 10. Defendant County

is an already named and existing party and no joinder of new parties is required under Rule 19. Rather,

joinder of new claims against an existing party is required under Rule 18.

During the course of Plaintiffs deposition of Supervisor Ray Watson on August 25, 2008,

Plaintiff for the first time heard testimony that Defendant County had decided not to renew Plaintiffs

employment contract with the County due to the fact that Plaintiff had initiated this action. Based on this

newly-discovered evidence, Plaintiff requests leave to join new claims against Defendant County and

Does 1 through 10 for FEHA oppositional retaliation pursuant to Govt C. 12940(h) (new Count XI),

FMLA oppositional retaliation pursuant to 29 U.S.C. 2615(b) (new Count X) and CFRA oppositional

retaliation (Count III). Plaintiff alleges that Plaintiffs filing of this action on December 7, 2006

opposing practices made unlawful under FEHA, CFRA and FMLA has subjected him to retaliation in

the form of non-renewal of his employment contract on October 4, 2007.

Moreover, based on newly-discovered evidence in the form of Supervisor Watsons foregoing

testimony as well as the testimony of former Interim CEO David Culberson in deposition conducted on

August 21, 2008, Plaintiff further alleges FEHA oppositional retaliation pursuant to Govt C. 12940(h)

(new Count XI) and CFRA oppositional retaliation (Count III) in that Defendants placed him on

administrative leave on October 7, 2006 subsequent to his filing of a FEHA/CFRA complaint with the

DFEH on July 31, 2006.



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DECLARATION OF EUGENE D. LEE IN SUPPORT OF MOTION

I, Eugene D. Lee, declare and say, as follows:

1. I am an attorney at law duly licensed to practice before the Federal and State Courts of

California and admitted to practice before the United States District Court for the Eastern District of

California. I am the attorney representing Plaintiff David F. Jadwin in this matter.

2. I am making this declaration in support of Plaintiff David F. Jadwin, D.O.s motion for

leave to file the Second Amended Complaint (SAC). The facts stated herein are personally known to

me and if called as a witness, I could and would competently testify to the truth of the facts set forth in

this declaration.

3. A true and correct copy of the SAC which Plaintiff seeks to file is attached hereto as

Exhibit 1.

4. On January 4, 2008, my co-counsel, Joan Herrington, sent the draft Third Supplemental

Complaint, which contained the nucleus of facts underlying all of the changes proposed in the SAC, to

defense counsel, Mark Wasser, for his review. He never responded. I was carbon-copied on Ms.

Herringtons and Mr. Wassers emails. A true and correct copy of the emails is attached hereto as

Exhibit 2.

5. On January 22, 2008, I sent an email to Mr. Wasser noting Defendants had not responded

to Ms. Herringtons previous email. Mr. Wasser sent an email replying that he was inclined not to so

stipulate but would reconsider subject to certain conditions. A true and correct copy of the emails is

attached hereto as Exhibit 3.

6. On April 17, 2008, after further discussion between the parties, I again sent the draft TSC

to Mr. Wasser for his review. He never responded. A true and correct copy of the emails is attached

hereto as Exhibit 4.

7. On May 4, 2008, I again requested Mr. Wassers stipulation to filing the TSC. On May 5,

he sent an email stating his refusal and stated the pleadings are done. A true and correct copy of the

emails is attached hereto as Exhibit 5.

8. On June 30, 2008, I filed with this Court Plaintiffs notice of withdrawal of motion for

leave to file the TSC, which stated:


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Unless Defendants stipulate otherwise, Plaintiff intends to file a motion for leave to fileand serve the Second Amended Complaint, naming the County of Kern . . . asdefendants in their personal and official capacities under Count Ten [sic] of PlaintiffsComplaint (42 U.S.C. 1983 procedural due process).Doc. 159, 1:24 2:1.

A true and correct copy of the notice of withdrawal is attached hereto as Exhibit 6.

9. On July 1, 2008, I sent an email to Defendants requesting their stipulation to Plaintiffs

filing the SAC. Later that day, Defendants emailed me, stating that they refused. Defendants lack of

cooperation has been characteristic in this action. A true and correct copy of the notice of withdrawal is

attached hereto as Exhibit 7.

10. Discovery in this action closed on August 18, 2008, except for depositions per the

stipulation and order of the parties.

11. On August 29, during the deposition of Philip Dutt, the parties met and conferred

regarding withdrawal of Plaintiffs prior motion for leave to file the Second Amended Complaint so that

Plaintiff could add additional claims arising out of facts which were newly discovered during the course

of Plaintiffs depositions. Defendants refused to stipulate to the filing of the revised Second Amended

Complaint; however, Defendants agreed to stipulate to an expedited briefing and hearing schedule on

the motion for leave to file the Second Amended Complaint which Plaintiff intended to re-file in revised

form.

12. Plaintiffs ability to perform the essential functions of his job was found by the California

Supreme Court to be an element of Plaintiffs disability discrimination claim in Green v. State of

California (2007) 42 Cal.4th 254, issued by the California Supreme Court on August 23, 2007.

13. There is no risk of prejudice or surprise to Defendants. Defendants have had fair notice of

the nucleus of facts underlying Defendant Countys and Harriss liability under Count IX e.g.,

demotion of Plaintiff and reduction of his base salary, placement of Plaintiff on involuntary

administrative leave with home restriction, and non-renewal of Plaintiffs contract since at least

January 2008 when Plaintiff sent the draft TSC to Defendants. On June 30, 2008, Plaintiff filed with this

Court his notice of withdrawal of motion to file the TSC, expressly stating therein Plaintiffs intention to

seek joinder of Count IX against Defendant County (Doc. 159). On July 1, 2008, Plaintiff again gave

Defendants notice, providing them a copy of the SAC along with a proposed stipulation (which

Defendants rejected). With discovery in this action due to close on August 18, 2008, Defendants had


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more than a month to conduct whatever additional discovery they deem necessary in light of the SAC

although no additional discovery should conceivably be necessary to parse out aMonell analysis.

14. More importantly, Plaintiff is not a percipient witness having knowledge of any facts

regarding Defendant Countys liability underMonell or Dr. Harriss liability for his participation in

adverse employment actions against him, other than what was revealed by Defendants former and

current employees themselves during their depositions. No further discovery needs to be conducted by

Defendants in order to defend against the new claims proposed to be brought against Defendants County

and Harris. Even if such were the case, Defendants have ready access to County witnesses and Harris

himself in contrast to Plaintiff who must engage in the formality of deposing them to access their

testimony.

15. Finally, under Cal. Govt. C. 995 et seq., Defendant County is required to indemnify its

employees against liability for violations alleged in Plaintiffs Count IX as set forth in Plaintiffs initial

complaint filed on January 6, 2008. The joinder of Count IX against Defendant County simply adds

direct liability where indirect liability for individually named employees under Count IX already exists.

16. During the course of Plaintiffs deposition of Supervisor Ray Watson on August 25,

2008, Plaintiff for the first time heard testimony that Defendant County had decided not to renew

Plaintiffs employment contract with the County due to the fact that Plaintiff had initiated this action.

Based on this newly-discovered evidence, Plaintiff requests leave to join new claims against Defendant

County and Does 1 through 10 for FEHA oppositional retaliation pursuant to Govt C. 12940(h) (new

Count XI) and FMLA oppositional retaliation pursuant to 29 U.S.C. 2615(b) (new Count X). Plaintiff

alleges that Plaintiffs filing of this action on December 7, 2006 opposing practices made unlawful under

FEHA and FMLA has subjected him to retaliation in the form of non-renewal of his employment

contract on October 4, 2007.

17. Moreover, based on newly-discovered evidence in the form of Supervisor Watsons

foregoing testimony as well as the testimony of former Interim CEO David Culberson in deposition

conducted on August 21, 2008, Plaintiff further alleges FEHA oppositional retaliation pursuant to Govt

C. 12940(h) (new Count XI) in that Defendants placed him on administrative leave on October 7, 2006

subsequent to his filing of a FEHA complaint with the DFEH on July 31, 2006.

18. Defendants will not be prejudiced by the joinder of the above new claims against existing


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Defendant County. Plaintiff is not a percipient witness having knowledge of any facts regarding

Defendant Countys liability for oppositional retaliation under FMLA or FEHA, other than what was

revealed by Supervisor Watson and Mr. Culberson themselves during their depositions. No further

discovery needs to be conducted by Defendants in order to defend against the new claims proposed to be

brought against Defendant County. Even if such were the case, Defendants have ready access to Mr.

Watson and Mr. Culberson in contrast to Plaintiff who must engage in the formality of deposing them

to access their testimony.

19. Defendant County's refusal to allow Plaintiff to return to work at Kern Medical Center;

failure to conduct an investigation into the "personnel matters" that purported necessitated Plaintiff's

administrative leave with home restriction; and its decision not to renew Plaintiff's employment contract

are part of a series of adverse employment actions taken by Defendants against Plaintiff, as alleged in

Plaintiff's original and subsequent complaints. Plaintiff alleges that this series of adverse actions

constitute a continuing violation and/or a pattern and practice of discrimination, harassment, and/or

retaliation taken against Plaintiff because of his protected characteristics and activities. An efficient

resolution of all issues raised by these subsequent events requires supplementation of the Complaint to

encompass all adverse employment actions taken by Defendant County against Plaintiff.

20. None of the Defendants can claim that they will suffer prejudice if leave is granted to file

the SAC.

21. If this Court denies Plaintiff leave to file the SAC, Plaintiff would be forced to file a new

law suit re-alleging most of the same claims contained in this action based on these new adverse actions.

22. Defendants have known since at least May 1, 2007, that Plaintiff would never be allowed

to return to work at Kern Medical Center.

23. Plaintiff notified Defendants that he would seek further leave to amend or supplement his

complaint if Defendant County carried out its threat to keep Plaintiff on administrative leave until his

employment contract expired.

24. Plaintiff provided further notice of his intent to seek relief for these adverse actions by

serving a copy of his supplemented Department of Fair Employment & Housing complaint and right to

sue letter and supplemented Tort Claims Act complaint on Defendant County.

25. Plaintiff has already disclosed documents reflecting the harm that Plaintiff suffered and


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will continue to suffer because of these subsequent adverse employment actions, and Defendants have

conducted further discovery on these disclosures.

I declare under penalty of perjury under the laws of the State of California and of the United

States that the foregoing is true and correct.

Dated: September 2, 2008 LAW OFFICE OF EUGENE LEE

By: ____________________________________Eugene D. Lee

Attorney for DefendantDAVID F. JADWIN, D.O.


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EXHIBITS TO DECLARATION OF EUGENE D. LEE

EXHIBIT 1. Draft Second Amended Complaint

EXHIBIT 2. Meet and confer emails between Plaintiffs attorney and Defendantsattorney, dated 1/4/08



EXHIBIT 5. Meet and confer emails between Plaintiffs attorney and Defendantsattorney, dated 5/4/08 to 5/5/08

EXHIBIT 6. Plaintiffs Notice of Withdrawal of Motion to File TSC (Doc. 159)


SAC000001


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EXHIBIT 1:Draft Second Amended Complaint

SAC000002


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SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 1/43

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Eugene D. Lee SB# 236812LAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, California 90013Telephone: (213) 992-3299

Facsimile: (213) 596-0487Email: [email protected]

Attorneys for PlaintiffDAVID F. JADWIN, D.O.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

DAVID F. JADWIN, D.O.

Plaintiffvs.

COUNTY OF KERN; PETER BRYAN(both individually and in his former officialcapacity as Chief Executive Officer OfKern Medical Center); IRWIN HARRIS,M.D; and DOES 1 through 10, inclusive.

Defendants.

Case No. 1:07-cv-26-OWW-TAG

SECOND AMENDED COMPLAINT FOR

DAMAGES & INJUNCTIVE RELIEF

I. Retaliation [Health & Safety Code 1278.5];

II. Retaliation [Lab. Code 1102.5];III. Retaliation [Govt Code 12945.1, et

seq; 12949(f); 2 C.C.R. 7297.7(a)];

IV. Interference with FMLA Rights [29U.S.C. 2601, et seq.];

V. Violation of CFRA Rights. [Govt Code 12945.1, et seq.];VI. Disability Discrimination [Govt. Code

12940(a)];

VII. Failure to Provide ReasonableAccommodation [Govt Code

12940(m)];

VIII. Failure to Engage in Good Faith In AnInteractive Process [Govt Code

12940(n)];

IX. Procedural Due Process Violation [14thAmendment of U.S. Constitution; 42U.S.C. 1983];

X. FMLA Retaliation [29 U.S.C. 2615];and

XI. FEHA Retaliation [Govt Code 12940(h)]

JURY TRIAL DEMANDED


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NATURE OF THE ACTION

This is an individual action brought by Plaintiff David F. Jadwin, D.O., a whistleblowing

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

the County); ) (ii) individual Defendants Peter Bryan (Bryan), former Chief Executive

Officer of Kern Medical Center (KMC); Irwin Harris, M.D., former Chief Medical Officer of

KMC (Harris);; and DOES 1 through 10.

Plaintiffs claims against his employer, Defendant County, allege violations of section

1278.5 of the Health & Safety Code1 which prohibits retaliation against a health care provider

who reports suspected unsafe care and conditions of patients in a health care facility; section

1102.5 of the Labor Code which prohibits retaliation against an employee for reporting orrefusing to participate in suspected violations of the law; the California Family Rights Act

(sections 12945.1, et seq., of the Government Code) (CFRA) and the Family and Medical

Leave Act (sections 2601, et seq. of the United States Code) (FMLA) which prohibit

interference with an employees right to medical leave and retaliation for an employees exercise

of the right to medical leave and for opposing any practice made unlawful by the CFRA/FMLA,

including filing any charge or instituting a proceeding under the CFRA/FMLA; and the Fair

Employment and Housing Act [subdivisions (a), (h), (m) & (n) of section 12940 of the

Government Code] (FEHA) which prohibits discrimination against an employee with a

disability, retaliation for opposing employment practices prohibited by the FEHA, failure to

provide reasonable accommodation, and failure to engage in an interactive process; and recovery

of wrongfully deducted wages under the Fair Labor Standards Act (29 U.S.C. 201, et seq.)

(FLSA).

Plaintiff sues Defendants County and Harris, and Defendant Bryan both in his personal

capacity and in his official capacity as a member of the KMC Joint Conference Committee

(JCC) for violation of Plaintiffs 14th Amendment of the United States Constitution right to

procedural due process pursuant to 42 U.S.C. 1983 (Due Process).

1 All statutory references are to California Codes unless otherwise specified.


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Plaintiff brings this action for general, compensatory, and punitive damages; prejudgment

interest, costs and attorneys fees; injunctive and declaratory relief; and other appropriate and

just relief resulting from Defendants unlawful conduct, and as grounds therefor alleges:

JURISDICTION AND VENUE

1. This Court has federal question jurisdiction over the FMLA and Due Process

claims pursuant to 28 U.S.C. 1331. The Court has supplemental jurisdiction over Plaintiffs

transactionally-related state claims pursuant to 28 U.S.C. 1367.

2. Venue is proper in Fresno in the Eastern District of California, as a substantial

part of the events and omissions giving rise to this claim occurred in the County of Kern,

California.

INTRADISTRICT ASSIGNMENT

3. Assignment to Bakersfield is proper pursuant to Civil Local Rule 3-120

(Appendix A) because the events giving rise to this civil action occurred in Bakersfield in the

County of Kern, California.

PARTIES

4. At all material times herein, Plaintiff David F. Jadwin, D.O. (Plaintiff) has

continuously been an employee of Defendant County, a citizen of the United States and

California; and a resident of Los Angeles County, California.

5. At all material times herein, Plaintiff was an individual with disabilities within the

meaning of Section 12926(i) & (k) of the Government Code.

6. On information and belief, at all material times herein, Defendant County is a

local public entity within the meaning of sections 811.2 & 900.4 of the Government Code and is

operating in Kern County, California.

7. At all material times herein, the County has continuously been an employer

within the meaning of FMLA [29 C.F.R. 825.105(C)], CFRA [Government Code

12945.2(b)(2)], FEHA [Government Code 12926(d)], and FLSA [29 U.S.C. 203], engaged in

interstate commerce and regularly employing more than fifty employees within seventy-five

miles of Plaintiffs workplace.


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8. On information and belief, at all material times herein, Defendant Peter Bryan is a

citizen of Colorado, and a resident of Denver, Colorado, and was Chief Executive Officer of

KMC, and a member of the JCC.

9.

On information and belief, at all material times herein, Defendant Irwin Harris isa citizen of California, and a resident of Kern County, California, and Chief Medical Officer at

KMC, and a non-voting member of the JCC.

10. The true names and capacities of Defendants DOES 1 through 10, inclusive, are

presently unknown to Plaintiff, who therefore sues said Defendants by such fictitious names.

Plaintiff will amend this complaint to set forth the true names and capacities of said Defendants

when they are ascertained. Plaintiff is informed and believes, and upon such information and

belief alleges, that at all times relevant, each of the fictitiously-named Defendants was an agent,

employee, or co-conspirator of one or more of the named Defendants, and was acting within the

course and scope of said agency or employment. Plaintiff is further informed and believes, and

upon such information and belief alleges, that each of the fictitiously named Defendants aided,

assisted, approved, acknowledged and/or ratified the wrongful acts committed by Defendants as

alleged herein, and that Plaintiffs damages, as alleged herein, were legally caused by such

Defendants.

FACTUAL BACKGROUND

A. STATEMENT OF THE CASE11. Plaintiff is a highly-qualified and capable pathologist with numerous professional

accomplishments that have included leadership roles in national, state and local pathology and

medical societies. Plaintiff received extensive education and training at reputable academic and

medical institutions. Plaintiff has managed several clinical laboratories and pathology

departments that have achieved accreditation by the College of American Pathologists,

frequently with distinction. Plaintiff has also been recognized by numerous pathologists and

physicians for his professional leadership and commitment to set and uphold rigorous and ethical

standards for patient care quality and safety.

12. In late 2000, Plaintiff was recruited to assume the position of Chair of the


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Pathology Department at KMC, a teaching hospital owned and operated by Defendant County.

Plaintiff was recruited in part to raise standards of patient care quality and safety at KMC.

Plaintiff immediately set about implementing, among other things, a best-practices peer review

system in the Pathology Department.13. In 2001, Plaintiff began to report concerns to key members of KMCs medical

staff and administration about the unacceptably high levels of unsatisfactory or non-diagnostic

fine needle aspirations (FNA) a method of using a needle and syringe to obtain deep internal

tissue samples of vital organs being taken by the Radiology Department at KMC for diagnosis

by the Pathology Department. In 2003, Plaintiff began to report concerns to key members of

KMCs medical staff and administration about ineffective and unnecessary blood transfusions

and an unacceptably high incidence of lost or incomplete product chart copy certifications

(PCC) required for accurate tracking of dangerous blood transfusions. In 2004, Plaintiff began

to report concerns to key members of KMCs medical staff and administration about the need for

instituting a policy of requiring KMC Pathology Department review prior to undertaking

significant surgical procedures based upon the reports of outside pathologists (Internal

Pathology Review). In 2005, Plaintiff reported a concern to key members of KMCs medical

staff and administration about an inappropriate radical hysterectomy (cancer surgical procedure

for removal of all female reproductive organs and regional lymph nodes) performed by Roy on a

patient with a benign endometriotic cyst (Roy Hysterectomy). Also in 2005, Plaintiff began to

report concerns to key members of KMCs medical staff and administration about the need to

review a series of serious diagnostic errors committed by a former KMC pathologist, including

the failure to identify invasive adenocarcinoma in several prostate needle biopsies (Prostate

Biopsy Errors). Also in 2005, Plaintiff reported concerns to KMC administration that KMC

physicians had performed surgery on a wrong patient due to an error which Plaintiff believed

would have been less likely had KMC implemented Internal Pathology Review per Plaintiffs

recommendation. Plaintiff reported several other concerns about inappropriate patient care and

noncompliance with quality control standards. In February of 2006, Plaintiff met with Bernard

Barmann, County Counsel for the County of Kern (Barmann), to report the foregoing


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concerns.

14. In 2005, Roy began a campaign of making statements impugning Plaintiffs

professional competence. Events culminated in October of 2005, when Kercher, Harris, Ragland

and Abraham harshly reprimanded Plaintiff, based on false allegations, resulting from a 15- to20-minute presentation given by Plaintiff during a monthly KMC oncology conference that

allegedly exceeded conference time limits by approximately ten minutes. Plaintiffs presentation

had attempted to highlight several of Plaintiffs above-mentioned concerns regarding Internal

Pathology Review and their potential impact upon deciding the correct surgical procedure for the

patient under discussion. The presentation was stopped before Plaintiff could present the key

diagnostic conclusions of his presentation.

15. After the conference, Harris solicited letters of disapprobation from conference

participants, including Roy. Roy submitted a letter (Roy Letter) containing several false

statements of fact which impugned Plaintiff to other members of KMCs medical staff and

administration. On information and belief, Harris and DOES 1 through 10 republished the Roy

Letter to third parties. Several KMC medical and administration officers including Bryan and

Kercher were aware of Roys, Harriss and DOES 1 through 10s acts of unwarranted criticism,

but refused to intercede, and possibly approved or encouraged them.

16. In December of 2005, Plaintiff began medical leave initially in the form of

medically necessary reduced work schedule due to severe depression which was later extended

to June 16, 2006. It was not until on or about March 2, 2006, that Plaintiff was finally provided

with a Request for Leave of Absence form which he then submitted to KMCs HR Department.

Plaintiff also received a document entitled Designation of Leave (Serious Health Condition of

Employee-Intermittent) from the HR Department at KMC, which included a written guarantee

of Plaintiffs reinstatement to his same or equivalent position with same pay, benefits and terms

and conditions of employment upon his return from his leave.

17. During Plaintiffs sick leave, Bryan issued a series of verbal and written

ultimatums to Plaintiff which threatened him with termination or demotion upon return from his

leave, thereby giving notice that Plaintiff was not in fact guaranteed reinstatement to his same or


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equivalent position. In a meeting in April of 2006, Bryan ordered Plaintiff to cease his reduced

work schedule and begin full-time leave, despite the fact that just days before, Plaintiff had

submitted a written request for extension of his reduced work schedule for an additional six

months to one year because of his serious medical condition. On June 14, 2006, two days beforePlaintiffs medical leave was allegedly due to end, Bryan informed Plaintiff that he was

demoting Plaintiff to a staff pathologist position, effective June 17, 2006, because Plaintiff had

taken excessive sick leaves; Plaintiffs base salary was also ultimately reduced over $100,000

(over 35%) as a result (such demotion and pay reduction are hereinafter referred to collectively

as demotion or demoted).

18. On July 10, 2006, the Joint Conference Committee (JCC) at KMC voted and

approved Bryans recommendation that Plaintiff be removed from chairmanship of the

Pathology department due to his physical absence from KMC.

19. Plaintiff resumed full-time work as a staff pathologist on October 4, 2006.

Plaintiff continued to suffer a hostile work environment and retaliation.

20. Just before Thanksgiving of 2006, Plaintiff confided to Gilbert Martinez, the

Laboratory Manager at KMC, that he intended to blow the whistle on KMC to appropriate

outside agencies. Days later, Defendant Harris met with Philip Dutt, M.D., Interim Chair of the

Pathology Department at KMC (Dutt), to discuss what steps the Pathology Department should

take in anticipation of Plantiffs whistleblowing to these outside agencies.

21. On or about November 28, 2006, after almost six years of trying to reform KMC

from within, Plaintiff finally blew the whistle on KMC, formally reporting his Concerns to the

Joint Commission on Accreditation of Hospital Organizations, the College of American

Pathologists, and the California Department of Health Services (Authorities).

22. On or about December 4, 2006, Plaintiff submitted a written complaint to KMC

leadership about numerous additional concerns regarding the quality of patient care and the

deterioration of the pathology department.

23. On December 7, Plaintiff was placed on involuntary administrative leave

allegedly pending resolution of a personnel matter.


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24. On December 13, 2006, Plaintiff sent a letter to David Culberson (Culberson),

interim Chief Executive Officer of KMC, and carbon-copied to members of KMCs medical staff

leadership, informing him that he had reported his Concerns to the Authorities.

25.

On March 28, 2007, KMC authorized Plaintiff to access his office in order toretrieve his personal computer files. Upon his arrival, Defendant Dutt informed him that his

office was now locked and that Defendant Dutt now had custody of the key, that Plaintiffs file

cabinet and computer had been physically removed and retasked for other purposes at KMC, and

that Plaintiff would not be able to access his personal computer files after all.

26. On April 4, 2007, Plaintiff placed Defendant County on notice that (i) he still had

yet to be provided any explanation for his involuntary leave or any indication as to whether or

when it would end so that he could return to work, (ii) the involuntary leave requiring him to

remain at home by his phone during working hours was threatening to erode his pathology skills,

jeopardizing his employability and career as a pathologist, (iii) the involuntary leave was

denying him the opportunity to earn income from professional fee billing, and (iv) part-time

work was deemed therapeutic for him by his physician and that the confinement to his house

during working hours was having the opposite effect of severely exacerbating his depression.

27. On April 30, 2007, Defendant County sent a letter to Plaintiff notifying him of its

decision to lift the home restriction. To date, Plaintiff has received no formal explanation for the

involuntary leave or the restriction to his home.

28. On May 1, 2007, Defendant County sent an email to Plaintiff notifying him of its

decision not to renew Plaintiffs employment contract, which was not due to expire until October

4, 2007, and to let the contract run out. To date, Plaintiff has received no formal explanation

for the decision not to renew his contract.

29. On October 4, 2007, Defendant County failed to renew Plaintiffs employment

contract, which therefore expired.

30. On August 15, 2008, Ray Watson, Chair of the Board of Supervisors of

Defendant County, testified in deposition that Defendant County had decided during the course

of several KMC Joint Conference Committee meetings not to renew Plaintiffs employment


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contract because he had filed the instant lawsuit.

B. EMPLOYMENT RELATIONSHIP31. On October 24, 2000, the County entered into an employment contract with

Plaintiff (Initial Contract), hiring him to a full-time position as Chair of the PathologyDepartment at KMC and as Medical Director of the KMC clinical laboratory (Lab Director)

for an employment term ending on November 30, 2006. As Lab Director, Plaintiffs job duties

included Medical Director of KMCs blood bank and transfusion service.

32. On or about November 12, 2002, the County modified Plaintiffs employment

contract to reflect an increase in his compensation and leave accrual rate, among other things.

This second employment contract dated as of October 5, 2002 (Second Contract) extended

Plaintiffs employment term to October 4, 2007. A true and correct copy of the Second Contract

is attached hereto as Exhibit 1, and incorporated by reference herein.

33. The Pathology Department and consequently the Chair of Pathology is

customarily referred to as the conscience of a hospital, and Plaintiffs job duties extended

beyond (his) own department and (he was) expected to be an effective contributor to the overall

improvement efforts of the hospital as a whole. Such duties included participation in many

hospital committees including KMCs Quality Management Committee.

34. According to Exhibit A of the Initial Contract, the County expected Plaintiff to

spend 80 to 90% of his time on clinical duties of a pathologist, and 10 to 20% of his time on

administrative duties as Chair of the Department of Pathology (Chair of Pathology) and Lab

Director.

35. Article V.10 of the Second Contract provides that Plaintiff will not be deemed a

classified employee, or have any rights or protections under the Countys Civil Service

Ordinance, rules or regulation.

36. Article II.3(B)(1) of the Second Contract guarantees that Plaintiffs base salary

will be based on a benchmark salary in proportion to his full-effort commitment. In turn, the

benchmark salary will be based on a national standard with four steps (A-D) with three criteria

for step placement: clinical experience, teaching and administrative duties as set forth in the


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KMC Administrative Policies and Procedures Manual (KAPP Manual).

37. On information and belief, at the time of his hire, the County placed Plaintiffs

salary level at Step C .

38.

Article III.4 of the Second Contract entitles Plaintiff to the same right to unpaidleave of absence as those provided to a regular County employee under the Countys policy,

including six months cumulative unpaid leave of absence for illness or disability pursuant to

Rule 1201.20 of the Rules of the Civil Service Commission for the County of Kern (CSC

Rules).

39. Article IV.1(B) of the Second Contract requires cause for termination of

Plaintiffs employment, which cause is defined as serious administrative violation and/or

unsatisfactory clinical performance.

40. Article IV.3 of the Second Contract entitles Plaintiff to administrative review of

any corrective action for unsatisfactory clinical performance pursuant to the Bylaws of the

Medical Staff of KMC (Bylaws); and for administrative review of any corrective action for

violation of administrative policies of the County or KMC pursuant to the KAPP Manual.

C. WHISTLEBLOWING41. Throughout the course of his employment by KMC, Plaintiff has advocated for

appropriate patient care and compliance with the quality accreditation standards of the Joint

Commission for the Accreditation of Hospital Organizations, the College of American

Pathologists, the American Association of Blood Banks and the American College of Surgeons

Commission on Cancer as well as applicable state and federal regulations designed to ensure safe

care and conditions of patients.

42. Plaintiff reported his various concerns (Concerns) about inappropriate and/or

suspected unsafe patient care and conditions and non-compliance with applicable laws and

regulations and accreditation standards to Bryan and key members of KMCs medical staff,

including but not limited to the following: (i) beginning in 2001, Plaintiff reported the

unacceptably high levels of unsatisfactory or non-diagnostic FNAs being taken by the Radiology

Department at KMC; (ii) beginning in 2003, Plaintiff reported the unacceptably high incidence


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of lost or incomplete PCC; (iii) beginning in 2004, Plaintiff reported the need for Internal

Pathology Review; (iv) beginning in 2005, Plaintiff reported the Roy Hysterectomy; (v)

beginning in 2005, Plaintiff reported the need to review the Prostate Biopsy Errors; and (vi)

beginning in 2005, Plaintiff reported that KMC physicians had performed surgery on a wrongpatient due to an error which Plaintiff believed would have been less likely had KMC

implemented Internal Pathology Review. Unfortunately, Plaintiffs reports not only appeared to

fall on deaf ears, but also generated resentment and hostility among his peers at KMC.

43. On or about December 12, 2005, Plaintiffs former attorney, Michael Young

(Young), sent a letter to Barmann, requesting Barmann meet with Plaintiff to discuss his

Concerns.

44. On or about February 9, 2006, Barmann and Barnes met with Plaintiff. Plaintiff

reported his various Concerns, as well as the retaliation, unwarranted criticism, and hostile work

environment Plaintiff was experiencing at KMC.

45. Finally, on or about November 28, 2006, after almost six years of trying to reform

KMC from within in vain, Plaintiff formally reported his Concerns to the Authorities.

46. On December 13, 2006, Plaintiff sent a letter addressed to Culberson, and carbon-

copied to members of KMCs medical staff leadership, informing him that KMC leadership has

left me no choice but to report the above issues to the appropriate state and accrediting

agencies.

D. UNWARRANTED CRITICISMS47. In 2005, Plaintiff had reported the need for Internal Pathology Review to key

members of KMC medical staff and administration. Roy refused to submit outside pathology

reports for Internal Pathology Review prior to surgery, preferring instead to refer all of his

pathology cases to an acquaintance at the University of Southern California without intereference

from KMCs Pathology Department.

48. On or about April 15, 2005, Roy sent a letter which was addressed to Plaintiff and

carbon-copied to Dr. Leonard Perez (Perez), Chair of the OB-GYN Department at KMC. The

letter contained the following statements of fact:


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Additionally, I cannot institute adjuvant therapy in a timely manner when it takesweeks and sometimes months to get an accurate diagnosis from yourdepartment. Most importantly, delays in instituting appropriate adjuvanttherapy due to delays in obtaining an accurate diagnosis, or institutinginappropriate therapy based on an inaccurate diagnosis can negatively affectpatient survival.

49. Roys statements regarding delays of weeks and months were false. Perez

reasonably understood that the statements were about Plaintiff. Perez reasonably understood the

statements to mean that Plaintiff was not managing the Pathology Department in a competent

manner. As a consequence, Plaintiff experienced a significant loss of confidence of his peers at

KMC.

50. On or about April 20, 2005, Plaintiff sent a letter addressed to Roy and carbon-

copied to Perez, Dr. Maureen Martin, Chair of Surgery (Martin), Kercher and Bryan. The letter

stated: Please refrain from making statements such as it takes weeks and sometimes months to

get an accurate diagnosis from your department without citing specific instances. In my

experience, such statements are typically untrue and consequently are unethical if not supported

by facts. As officers of KMC, Kercher and Bryan approved, accepted, and/or failed to intercede

to protect Plaintiff from Roys unwarranted criticisms, and in so doing, ratified them.

51. In May of 2005, Harris informed Plaintiff that Roy had voiced concerns about the

Pathology Department and had submitted certain pathology reports for second-level peer review

and investigation. Plaintiff requested that Harris identify the pathology reports in question but

Harris refused. Later, Plaintiff determined that no second-level peer review ever occurred.

52. On or about June 30, 2005, Martin and Harris told Plaintiff that Roy was making

negative comments about the Pathology Department.

53. On or about June 30, 2005, Plaintiff sent a letter addressed to Roy and carbon-

copied to Perez, Martin, Harris, Kercher and Bryan. The letter stated:

It has come to my attention that you are making negative statements to numerouskey members of the medical staff regarding pathology reports issued by thisdepartment. You are reported by others to claim that several of KMC pathologydiagnoses do not agree with outside diagnoses rendered by other outsidepathologists and that these discrepancies have or would have changed patientmanagement. It would appear from these actions that you are claiming that ourdiagnoses are not correct. I do not recollect any true, substantial discrepanciesbetween diagnoses rendered by this department and outside pathologydepartments based upon retrospective review of our cases since my arrival in


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December 2000. It is reported that you claim to have in your possession severalsuch reports detailing incorrect diagnoses rendered by our department. It is alsomy understanding that you have been asked on several occasions to produceexamples of these discrepancies, and as of yet have not produced any such reportsto individuals that have made these requests. To demonstrate and support theaccuracy of your claims, I request that you produce copies of these reports for my

review by July 15, 2005.54. Roys statements of fact regarding incorrect diagnoses by the Pathology

Department were false. The key members of the KMC medical staff who heard the statements

reasonably understood that the statements were about Plaintiff and reasonably understood the

statements to mean that Plaintiff was not managing the Pathology Department in a competent

manner. As a consequence, Plaintiff experienced a significant loss of confidence of his peers at

KMC. As officers of KMC, Harris, Kercher and Bryan approved, accepted, and/or failed to

intercede against Roys unwarranted criticisms and in so doing, ratified them.

55. On or about July 15, 2005, Roy sent a letter addressed to Plaintiff and carbon-

copied to Harris, Bryan and Perez. The letter stated:

I was quite surprised to receive your letter of June 5th. The discrepanciesshould be well known to you as I have brought them to your attention many times,both in the presence of Dr. Perez, and in a letter to you a couple of months ago, aswell as multiple phone conversations. The inaccuracies, delays and refusals torefer specimens for outside review continue. The matter has been appropriatelyreported to the administration for a quality assurance review, as I have had nosuccess in my pleadings to you directly.

56. Roys statements of fact regarding the existence of discrepancies and the

bringing of them to Plaintiffs attention many times and in the presence of Dr. Perez were

false. Harris, Bryan and Perez reasonably understood that the statements were about Plaintiff and

reasonably understood the statements to mean that Plaintiff was neither managing the Pathology

Department in a competent manner nor being truthful about Roys disclosures of the facts and

circumstances underlying his unwarranted criticisms. As a consequence, Plaintiff experienced a

significant loss of confidence of his peers at KMC. As officers of KMC, Harris and Bryan

approved, accepted, and/or failed to intercede against Roys unwarranted criticisms and in so

doing, ratified them.

57. Moreover, Roys statement of fact that he had reported the matter to KMC

administration for quality assurance review was false. Harris, Bryan and Perez reasonably


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understood that the statement was about Plaintiff and reasonably understood the statements to

mean that Plaintiff was not managing the Pathology Department in a competent manner. As a

consequence, Plaintiff experienced a significant loss of confidence of his peers at KMC. As

officers of KMC, Harris and Bryan approved, accepted, and/or failed to intercede against Roysunwarranted criticisms and in so doing, ratified them.

58. On October 12, 2005, Plaintiff gave a presentation at the monthly KMC oncology

conference (Oncology Conference) highlighting concerns regarding a patient that might need a

hysterectomy, and the need for Internal Pathology Review.

59. Plaintiffs presentation lasted approximately 15 to 20 minutes, which exceeded

alleged conference time limits by approximately ten minutes. Plaintiff was stopped before he

could present his final slides stating his patient care quality conclusions.

60. On information and belief, presenters at prior and subsequent Oncology

Conferences frequently exceeded time limits without interruption, incident, or reprimand.

61. Roy, Bill Taylor, Vice-Chair of Surgery, and Albert McBride, the Cancer

Committee Liaison, attended Plaintiffs presentation at the October 12 Oncology Conference and

were requested by Harris to give him letters criticizing Plaintiffs time infraction.

62. In response, Roy sent a letter (Roy Letter), dated October 13, 2005, addressed

to Harris. The Roy Letter stated in relevant part:

With respect, Dr. Jadwin is a small rural community hospital pathologist, withvery limited experience and no specialty training in regard to GynecologicOncologic Pathology. Dr. Jadwin is not a clinician, and has neither the fund ofknowledge nor the experience to make any recommendations regarding thetreatment of patients, much less criticize the care provided by those, such asmyself, whose training and experience were attained at some of the highest seatsof learning in the U.S and abroad. Additionally, as you are aware, it is notinfrequent that Dr. Jadwins diagnoses are in err when reviewed by outsidespecialists, as in this particular case. The management of the patient would havebeen inappropriate if we accepted Dr. Jadwins report, which as you know, was

different from two other pathologists in his own department (three differentopinions). I have no confidence in Dr. Jadwin and I am actively pursuing thepossibility of having all specimens from the Gynecologic Oncology serviceevaluated outside, as is currently done for the Neurosurgery service. I havediscussed these issues with Dr. Perez, Chairman of the Department of Obstectricsand Gynecology, and he assures me of his full support.

63. The Roy Letter contained the following false statements of fact: (i) Plaintiff is a

small rural community hospital pathologist, (ii) Plaintiff has very limited experience in


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Gynecologic Oncologic Pathology, (iii) Plaintiff is not a clinician, (iv) Plaintiff has neither the

fund of knowledge nor the experience to make any recommendations regarding the treatment of

patients, much less criticize the care given by doctors such as Roy, (v) it is not infrequent that

Plaintiffs diagnoses are in err when reviewed by outside specialists, as in this particular case,(vi) the management of the patient would have been inappropriate if Plaintiffs report had been

accepted, and (vii) Plaintiffs report was different from two other pathologists in his own

department, suggesting the deficiency of his report. Harris reasonably understood that the

statements were about Plaintiff and reasonably understood the statements to mean that Plaintiffs

credentials and abilities as a pathologist and physician were deficient. Roy impugned Plaintiff

despite Plaintiffs numerous prior requests to stop doing so. As a consequence, Plaintiff

experienced a significant loss of confidence of his peers at KMC. As an officer of KMC, Harris

approved, accepted, and/or failed to intercede against Roys unwarranted criticisms and in so

doing, ratified them.

64. Plaintiff is informed and believes, and thereupon alleges, that Harris subsequently

republished the Roy Letter to members of KMC staff, and that such staff further republished the

Roy Letter to other members of KMC staff. Such other members of KMC staff reasonably

understood that the statements contained in the Roy Letter were about Plaintiff and reasonably

understood such statements to mean that Plaintiffs credentials and abilities as a pathologist and

physician were deficient. As a consequence, Plaintiff experienced a significant loss of confidence

of his peers at KMC. As officers of KMC, Harris, and DOES 1 through 10 accepted, and/or

failed to intercede against Roys unwarranted criticisms or their subsequent republication, and in

so doing, ratified them.

65. On or about October 17, 2005, Plaintiff was ordered to attend a meeting with

Kercher, Harris and Ragland who subjected Plaintiff to humiliating ridicule, yelling and

inappropriate questioning regarding Plaintiffs alleged violation of Oncology Conference time

limits. Kercher, Harris and Ragland informed Plaintiff that they had received letters of

disapprobation (Disapprobation Letters) from three conference participants one of which was

the Roy Letter and would be issuing a letter of reprimand later that day which would be entered


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into Plaintiffs medical staff file. When Plaintiff asked to see the Disapprobation Letters,

Kercher, Harris and Ragland refused to provide them. As officers of KMC, Harris, Kercher,

Ragland and Abraham approved, accepted, and/or failed to intercede against Roys unwarranted

criticisms or their subsequent republication by Harris and other members of KMC staff, and in sodoing, ratified such unwarranted criticisms.

66. Later that day, Harris, Kercher, Ragland and Abraham issued a formal letter of

reprimand addressed to Plaintiff (Reprimand Letter). The Reprimand Letter stated: Your

repeated misconduct at the Tumor Conference on October 12, 2005 was noted by numerous

attendants, three of which have written letters of their dissatisfaction, which will be entered into

your medical staff file. The three letters to be entered into Plaintiffs medical staff file included

the Roy Letter. As officers of KMC, Harris, Kercher, Ragland and Abraham approved, accepted,

and/or failed to intercede against Roys unwarranted criticisms or their subsequent republication

by Harris and members of KMC staff, and in so doing, ratified such unwarranted criticisms.

67. During the period from on or about October 17, 2005 to on or about January

2007, Plaintiff submitted numerous requests to Harris, Ms. Karen Barnes, Deputy County

Counsel for the County of Kern (Barnes), and Bryan to see the Disapprobation Letters. He was

continuously refused. As officers of KMC, Harris and Bryan approved, accepted, and/or failed to

intercede against Roys uwarranted criticisms or their subsequent republication by Harris and

members of KMC staff, and in so doing, ratified such unwarranted criticisms.

68. On or about December 12, 2005, Young sent a letter to Barmann stating:

Recently, Dr. Jadwin was advised that several of the staff physicians had writtenletters of dissatisfaction regarding Dr. Jadwins professionalism and was advisedthat these letters were placed into his personnel/medical staff file. When thedoctor asked to see these letters, he was refused access to them and wassubsequently told that the letters had not been placed into his file. Dr. Jadwin thensent an e-mail to Deputy County Counsel, Karen Barnes, copy attached, regarding

an opinion with respect to his right to inspect the file. At this juncture, there hasbeen no reply to his request. Needless to say, Dr. Jadwin is extremely upset andemotionally distraught over the present state of affairs.

69. On or about January 6, 2006, Barnes sent a letter on behalf of Barmann and

addressed to Young. The letter included as an attachment a copy of the Roy Letter, redacted to

conceal Roys identity. This letter afforded Plaintiff his first opportunity to see the Roy Letter


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and the unwarranted criticisms contained therei

217 p mx amend sac

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