246 Answer to SAC

8/14/2019 246 Answer to SAC

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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIA

Attorneys for Defendants County ofKern,Peter Bryan and Irwin Harris

Mark A. Wasser CA SB #060160LAW OFFICES OF MARK A. WASSER400 Capitol Mall, Suite 2640Sacramento, California 95814Phone: (916) 444-6400Fax: (916) 444-6405E-mail: [email protected]

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

Bernard C. Barmann, Sr. CA SB #060508KERN COUNTY COUNSELMarkNations, ChiefDeputy CA SB #1018381115 Truxtun Avenue, Fourth FloorBakersfield, California 93301Phone: (661) 868-3800Fax: (661) 868-3805E-mail: [email protected]

123456789101112131415 DAVID F. JADWIN, D.O.16 Plaintiff, ANSWER TO SECOND AMENDEDCOMPLAINT17 vs.18 COUNTY OF KER, et aI.,19 Defendants.20 Defendants County ofKern, Peter Bryan and Irwin Harris answer the Second Amended21 Complaint as follows:2223

1.2.

Defendants deny the allegations contained in paragraphs 1, 2 and 3.In response to the allegations contained in Paragraph 4, Defendants admit that

24 Plaintiff is a citizen of the United States and a resident ofthe County of Los Angeles.25 Defendants deny the remaining allegations contained in paragraph 4.262728

3.4.

Defendants deny the allegations contained in paragraph 5.Defendants admit the allegations contained in paragraphs 6 and 7.

-1-ANSWER TO SECOND AMENDED COMPLAINT


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I 5. In response to the allegations contained in paragraph 8, Defendants admit that2 Peter Bryan was ChiefExecutive Officer ofKern Medical Center and a resident of California3 during some of the time alleged in the Complaint. Defendants deny the remaining allegations4 contained in paragraph 8.5 6. In response to the allegations contained in paragraph 9, Defendants admit that6 Irwin Harris was Medical Director ofKern Medical Center and a resident ofCalifornia during7 some of the time alleged in the Complaint. Defendants deny the remaining allegations contained8 in paragraph 9.9 7. Defendants deny all the allegations contained in paragraph 10.

10 8. In response to the allegations contained in paragraph II, Defendants admit thatII Plaintiff is a pathologist. Defendants are without knowledge or information sufficient to form a12 beliefas to the truth of the remaining averments in paragraph II .13 9. In response to the allegations contained in paragraph 12, Defendants admit that14 Plaintiffwas hired as a pathologist at Kern Medical Center and was appointed to the position of15 Chair of the Pathology Department. Defendants deny all remaining allegations contained in16 paragraph 12.17 10. In response to the allegations contained in paragraph 13, Defendants admit that18 Plaintiff complained about policies and procedures at Kern Medical Center, repeatedly interfered19 with patient care and refused to work collaboratively and professionally with the medical staff at20 Kern Medical Center. Defendants deny all remaining allegations contained in paragraph 13.21 II. Defendants deny all the allegations contained in paragraphs 14 and 15.22 12. In response to the allegations contained in paragraph 16, Defendants admit that23 Plaintiff requested and received multiple leaves of absence for multiple reasons. Defendants24 deny all remaining allegations contained in paragraph 16.25 13. In response to the allegations contained in paragraph 17, Defendants admit that26 Plaintiffrequested and received multiple leaves of absence for multiple reasons and was27 ultimately removed from his position as Chair of the Pathology Department because he was not28 present at the hospital and that his compensation was reduced to that of a staff pathologist.



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1 14. Defendants admit the allegations contained in paragraph 18.2 15. In response to the allegations contained in paragraph 19, Defendants admit that3 Plaintiffbegan work as a staff pathologist at Kern Medical Center on October 4,2006.4 Defendants deny the remaining allegations in paragraph 19.5 16. Defendants deny all the allegations contained in paragraph 20.6 17. Defendants deny all the allegations contained in paragraph 21 and further deny7 that Plaintiff is a "whist1eblower."8 18. Defendants deny all the allegations contained in paragraph 22.9 19. In response to the allegations contained in paragraph 23, Defendants admit that

10 Plaintiffwas placed on paid administrative leave onDecember 7, 2006. Defendants deny all11 remaining allegations contained in paragraph 23.12 20. In response to the allegations contained in paragraphs 24, Defendants admit that13 Plaintiffcomplained about policies and procedures at Kern Medical Center and wrote letters to14 other physicians and to hospital administration about many subjects. Defendants deny all15 remaining allegations contained in paragraphs 24.16 21. In response to the allegations contained in paragraph 25, Defendants admit that17 Plaintiffhas been provided with the information he requested from the computer that was18 previously assigned to him. Defendants deny all remaining allegations contained in paragraph19 25.20 22. Defendants deny all the allegations contained in paragraphs 26, 27 and 28.21 23. In response to the allegations contained in paragraph 29, Defendants admit that22 Plaintiffs employment agreement expired by its own terms on October 4,2007. Defendants23 deny all remaining allegations contained in paragraph 29.24 24. Defendants deny all the allegations contained in paragraph 30.25 25. In response to the allegations contained in paragraphs 31, 32 and 33, Defendants26 admit that Plaintiff had an employment agreement with the County ofKern and it was amended27 and that the agreement and amendments speak for themselves. Defendants deny all remaining28 allegations contained in those paragraphs.



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1 26. In response to the allegations contained in paragraphs 34,35,36,37,38,39 and2 40, Defendants admit that Plaintiffs employment agreements speak for themselves. Defendants3 deny all remaining allegations contained in those paragraphs.4 27. Defendants are without knowledge or information sufficient to form a beliefas to5 the truth of the averments contained in paragraph 41.6 28. In response to the allegations contained in paragraph 42, Defendants admit that7 Plaintiff complained about policies and procedures at Kern Medical Center, repeatedly interfered8 with patient care and refused to work collaboratively and professionally with the medical staff at9 Kern Medical Center. Defendants deny all remaining allegations contained in paragraph 42.

10 29. In response to the allegations contained in paragraphs 43 and 44, DefendantsI I admit that Plaintiffs former attorney sent a letter to Bernard Barmann and that Plaintiffmet with12 Mr. Barmann on or about February 9,2006. Defendants deny all remaining allegations13 contained in those paragraphs.14 30. Defendants deny all the allegations contained in paragraph 45.15 31. In response to the allegations contained in paragraphs 46, Defendants admit that16 Plaintiff complained about policies and procedures at Kern Medical Center, repeatedly interfered17 with patient care and refused to work collaboratively and professionally with the medical staff at18 Kern Medical Center. Defendants deny all remaining allegations contained in paragraph 46.19 32. In response to the allegations contained in paragraphs 47, 48, 49, 50, 51, 52, 53,20 54,55, 56 and 57, Defendants admit that disagreements arose between Plaintiffand other21 members of the medical staff at Kern Medical Center over several subjects, that Plaintiff22 complained about policies and procedures at Kern Medical Center, repeatedly interfered with23 patient care, refused to work collaboratively and professionally with the medical staff at Kern24 Medical Center and wrote letters to members of the medical staffand administration about25 several subjects. Defendants deny all remaining allegations contained in those paragraphs.26 33. In response to the allegations contained in paragraphs 58, 59 and 60, Defendants27 admit that Plaintiffmade a presentation to the monthly oncology conference at Kern Medical28 Center on October 12, 2005, that Plaintiffs presentation was too long and was both inappropriate



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1 and unprofessional and that the conference was disrupted as a result of Plaintiff s behavior.2 Defendants deny all remaining allegations contained in those paragraphs.3 34. In response to the allegations contained in paragraphs 61, 62 and 63, Defendants4 admit that members of the medical staff at Kern Medical Center wrote letters about Plaintiffs5 behavior at the October 12,2005 oncology conference and that Plaintiff was thereafter counseled6 about this behavior by the medical staff leadership. Defendants deny all remaining allegations7 contained in those paragraphs.89

35.36.

Defendants deny all the allegations contained in paragraphs 64 and 65.In response to the allegations contained in paragraphs 66, 67, 68, 69, 70, 71 and

10 72, Defendants admit that written correspondence was sent and received by Plaintiff and11 members of the medical staff at Kern Medical Center and others regarding Plaintiffs behavior12 and his criticisms of Kern Medical Center's policies and procedures and his refusal to work13 collaboratively and professionally with the medical staff at Kern Medical Center. Defendants14 deny all remaining allegations contained in those paragraphs.15 37. Defendants deny all the allegations contained in paragraph 73.16 38. In response to the allegations contained in paragraphs 74, 75 and 76, Defendants17 admit that written correspondence was sent and received by Plaintiff and members ofthe medical18 staff at Kern Medical Center and others regarding Plaintiffs behavior and his criticisms of Kern19 Medical Center's policies and procedures and his refusal to work collaboratively and20 professionally with the medical staff at Kern Medical Center. Defendants deny all remaining21 allegations contained in those paragraphs22 39. In response to the allegations contained in paragraphs 77 and 78, Defendants23 admit that Plaintiffs entitlement to leave under FMLA and CFRA is a question of law.24 Defendants deny all remaining allegations contained in those paragraphs.25 40. In response to the allegations contained in paragraphs 79,80,81,82,83 and 84,26 Defendants admit that Plaintiff requested and received multiple leaves of absence for multiple27 reasons and that Plaintiff and others sent and received written correspondence about his leaves 028 absence. Defendants deny all remaining allegations contained in those paragraphs.



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41. In response to the allegations contained in paragraphs 85 and 86, Defendantsadmit that Plaintiff exchanged written correspondence with Peter Bryan and others regardingPlaintiffs absences from Kern Medical Center. Defendants deny that Plaintiff engaged in any"whistleblowing" activity and deny that Plaintiff is or ever was a "whistleblower". Defendantsdeny all remaining allegations contained in those paragraphs.

42. In response to the allegations contained in paragraphs 87, 88, 89 and 90,Defendants admit that Plaintiff requested and received multiple leaves of absence for multiplereasons and that Plaintiff and others sent and received written correspondence about his leaves 0absence. Defendants deny all remaining allegations contained in those paragraphs.

43. Defendants are without knowledge or information sufficient to form a beliefas tothe truth of the averments contained in paragraphs 91 and 92.

44. In response to the allegations contained in paragraph 93, Defendants admitPlaintiff sent a letter to PeterBryan on June 2, 2006. Defendants deny all remaining allegationsin paragraph 93.

45. In response to the allegations contained in paragraphs 94, 95, 96 and 97,Defendants admit that Plaintiff and Peter Bryan exchanged written correspondence regardingPlaintiffs absence from Kern Medical Center and the effect it had on his ability to discharge hisduties as Chair ofthe Pathology Department at Kern Medical Center. Defendants also admit thaton or about July 10, 2006, the Joint Conference Committee removed Plaintiff from his positionas Chair of the Pathology Department at KernMedical Center. Defendants deny all remainingallegations contained in those paragraphs.

46. In response to the allegations contained in paragraphs 98, 99,100,101 and 102,Defendants admit that Plaintiffand his attorney negotiated an amendment to Plaintiff semployment agreement, that Plaintiffand his attorney exchanged written correspondence withCounty representatives about the amendment and that it was approved and executed by Plaintiffand the County. Defendants deny all remaining allegations contained in those paragraphs.

47. In response to the allegations contained in paragraphs 103, 104 and 105,Defendants admit that Plaintiff commenced work as a staffpathologist at Kern Medical Center in



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1 October, 2006 and continued to complain about policies and procedures at Kern Medical Center,2 interfere with patient care, refuse to work collaborative1y and professionally with the medical3 staff at Kern Medical Center and write letters to members of the medical staffand administration4 about several subjects. Defendants deny all remaining allegations contained in those paragraphs.5 48. In response to the allegations contained in paragraph 106, Defendants admit that6 Plaintiff was placed on paid administrative leave on or about December 7, 2006 and received a7 letter from David Culberson about that. Defendants deny all remaining allegations contained in8 that paragraph.9 49. In response to the allegations contained in paragraph 107, Defendants admit that

10 Plaintiff has been provided with all the information he has requested from the County-owned11 computer that was previously assigned to him. Defendants deny all remaining allegations12 contained in paragraph 107.13 50. Defendants deny all the allegations contained in paragraph 108.14 51. In response to the allegations contained in paragraph 109, Defendants admit that15 Plaintiff requested and received a reduced work schedule. Defendants deny all remaining16 allegations contained in paragraph 109.17 52. Defendants are without knowledge or information sufficient to form a beliefas to18 the truth of the averments contained in paragraph 110.19 53. In response to the allegations contained in paragraphs 111,112 and 113,20 Defendants admit that Plaintiffand Peter Bryan exchanged written communications regarding21 Plaintiffs request for leaves of absence. Defendants deny all remaining allegations contained in22 those paragraphs.2324

54.55.

Defendants deny all the allegations contained in paragraph 114.In answer to the allegations contained in paragraphs 115, 116, 117, 118 and 119,

25 Defendants admit that Plaintiffexchanged written communications with Peter Bryan regarding26 Plaintiffs work schedule and requests for leaves of absence and met with Peter Bryan and others27 to discuss those subjects. Defendants deny all remaining allegations contained in those28 paragraphs.



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56.57.

Defendants deny all the allegations contained in paragraph 120.Defendants are without knowledge or infonnation sufficient to form a belief as to

3 the truth of the averments contained in paragraphs 121 and 122.4 58. In response to the allegations contained in paragraphs 123, 124 and 125,5 Defendants admit that Plaintiffand Peter Bryan exchanged written communications regarding6 Plaintiffs leaves of absence and perfonnance as Chair of the Pathology Department. Defendants7 deny all remaining allegations contained in those paragraphs.89

59.60.

Defendants deny all the allegations contained in paragraph 126.Defendants are without knowledge or infonnation sufficient to fonn a belief as to

10 the truth of the avennents contained in paragraph 127.1112 131.1314 135.1516

61.

62.

63.64.

Defendants deny all the allegations contained in paragraphs 128, 129, 130 and

Defendants deny all the allegations contained in paragraphs 132, 133, 134 and

Defendants deny all the allegations contained in paragraph 136.In response to the allegations contained in paragraph 137, Defendants admit the

17 written notices they gave to Plaintiff speak for themselves. Defendants deny all remaining18 allegations contained in paragraph 137.19 65. In response to the allegations contained in paragraph 138, Defendants admit20 Plaintiffs employment agreement expired by its tenns on October 4, 2007. Defendants deny all21 remaining allegations contained in paragraph 13 8.2223

66.67.

Defendants deny all the allegations contained in paragraph 139.In response to the allegations contained in paragraph 140, Defendants admit

24 Plaint iff negotiated and signed an agreement to be a staff pathologist and began work as a staff25 pathologist on or about October 4, 2006. Defendants deny all remaining allegations contained in26 paragraph 140.27 68. Defendants deny all the allegations contained in paragraphs 141, 142, 143, 144,28 145 and 146 and further deny that Plaintiff is entitled to damages against the Defendants or any



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1 of them.2 69. In response to the allegations contained in paragraphs 147, 148 and 149,3 Defendants admit Plaintiff has filed multiple claims with Defendant, County ofKern, and is4 threatening to be a vexatious litigant. Defendants deny all remaining allegations contained in5 those paragraphs.6 70. Defendants are without knowledge or information sufficient to form a beliefas to7 the truth of the averments contained in paragraphs 150, 151, 152, 153, 154, 155, 156 and 157.89

71.72.

Defendants deny all the allegations contained in paragraph 158.Defendants incorporate herein all oftheir responses to paragraphs 1 through 158,

10 inclusive.11 73. In response to the allegations contained in paragraph 160, Defendants admit12 interpretation ofHealth and Safety Code 1278.5 is a matter oflaw. Defendants deny all13 remaining allegations contained in paragraph 160.14 74. Defendants deny all the allegations contained in paragraphs 161, 162 and 163 and15 further deny that Plaintiffhas engaged in any "whistleb10wing activity" or is a "whist1eb10wer".1617

75.76.

Defendants deny all the allegations contained in paragraph 164.Defendants incorporate herein their responses to paragraphs 1 through 164,

18 inclusive.19 77. In response to the allegations contained in paragraph 165, Defendants admit20 interpretation ofLabor Code 11 02.5 is a matter of law. Defendants deny all remaining21 allegations contained in paragraph 166.22 78. Defendants deny all the allegations contained in paragraphs 167, 168, 169 and23 170 and further deny that Plaintiff made any "whist1eb10wing reports".2425

79.80.


26 inclusive.27 81. In response to the allegations contained in paragraphs 173, Defendants admit that28 interpretation of Government Code 12949(f), 12945.2(a)(1) and Title 2 of California Code of



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1 Regulations 7297.7(a) is a matter oflaw. Defendants deny all remaining allegations contained2 in paragraph 173.3 82. Defendants deny all the allegations contained in paragraphs 174 and 175.45

83.84.


6 inclusive.7 85. In response to the allegations contained in paragraph 178, Defendants admit that8 interpretation of29 U.S.C. 261 I(4)(A)(ii)(I) and 29 U.S.C. 2615(a) is a matter oflaw.9 Defendants deny all remaining allegations contained in paragraph 178.

101112

86.87.88.

Defendants deny all the allegations contained in paragraphs 179, 180 and 181.Defendants deny all the allegations contained in paragraph 182.Defendants incorporate herein their answers to paragraphs 1 through 182,

13 inclusive.14 89. In response to the allegations contained in paragraphs 184, 185, Defendants admit15 interpretation of the California Family Rights Act is a question oflaw. Defendants deny all16 remaining allegations contained in those paragraphs.171819

90.91.92.

Defendants deny all the allegations contained in paragraphs 186 and 187.Defendants deny all the allegations contained in paragraph 188.Defendants incorporate herein their responses to paragraphs 1 through 188,

20 inclusive.21 93. In response to the allegations contained in paragraph 190, Defendants admit22 interpretation of the California Fair Employment and Housing Act is a question law. Defendants23 deny all remaining allegations remaining in paragraph 190.242526

94.95.96.

Defendants deny all the allegations contained in paragraphs 191 and 192.Defendants deny all the allegations contained in paragraph 193.Defendants incorporate herein their responses to paragraphs I through 193,

27 inclusive.28 97. Defendants deny all the allegations contained in paragraph 195.

-10-ANSWER TO SECONDAMENDED COMPLAINT


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98.99.


3 inclusive.4 100. Defendants deny all the allegations contained in paragraph 198.5 101. Defendants deny all the allegations contained in paragraph 199.6 102. Defendants incorporate herein their responses to paragraphs 1 through 199,7 inclusive.8 103. In response to the allegations contained in paragraph 201, Defendants admit that9 interpretation ofthe Fourteenth Amendment to the United States Constitution is a question of

10 law. Defendants deny all remaining allegations contained in paragraph 201.11 104. Defendants deny all the allegations contained in paragraphs 202, 203, 204, 205,12 206,207,208,209,210,211 and 212 and further deny Plaintiffhas suffered any harm or injury13 and further deny Plaintiff is entitled to any relief.14 105. Defendants deny all the allegations contained in paragraph 213.15 106. Defendants incorporate herein their responses to paragraphs 1 through 213,16 inclusive.17 107. In response to the allegations contained in paragraph 215, Defendants admit18 interpretation of29 U.S.c . 2611(4)(A)(ii)(I) and 29 U.S.C. 2615(b)(l) is a matter oflaw.19 Defendants deny all remaining allegations contained in paragraph 215.20 108. Defendants deny all the allegations contained in paragraphs 216, 217, 218 and21 219.22 109. Defendants deny all the allegations contained in paragraph 220.23 110. Defendants incorporate herein their responses to paragraphs 1 through 220,24 inclusive.25 111. Defendants deny all the allegations contained in paragraphs 222, 223 and 224.26 As and for a first affirmative defense, Defendants allege that Plaintiff s Second Amended27 Complaint and each and every purported claim contained therein fails to state a claim upon relief28 can be granted.



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1 As and for a second affirmative defense, Defendants allege that this Court lacks subject2 matter jurisdiction over Plaintiffs alleged claims and should refuse to exercise jurisdiction over3 Plaintiff s state claims because they predominate and the alleged federal claims are insubstantial.4 As and for a third affirmative defense, Defendants allege that Defendants' actions as5 alleged in the Second Amended Complaint were privileged under California Evidence Code 6 1157,1157.5,1157.6 and 1157.7, CaliforniaBusiness and Professions Code 800 through7 809.9 and California Civil Code 47(a) and (b) in that Defendants' actions were in furtherance8 ofmedical peer review, maintenance of quality-of-care standards, discharge of official duties and9 performed in the course of official proceedings authorized by law and that Defendants and each

10 of them are, therefore, immune from liability.11 As and for a fourth affirmative defense, Defendants allege that California Civil Code 12 47(a) and (b) immunizes Defendants and each of them from liability for the matters alleged in13 the Second Amended Complaint.14 As and for a fifth affinnative defense, Defendants allege that, during Plaintiffs15 employment at Kern Medical Center, Plaintiffwas arrogant, disagreeable, uncooperative,16 intimidating, overbearing, self-righteous and unfriendly; that Plaintiffrefused to work17 collaboratively or professionally with the medical staff at Kern Medical Center; that he made18 unfounded, frivolous and repetitive complaints and criticisms ofKern Medical Center, its19 policies and procedures; and made unfounded and frivolous complaints against members of the20 medical staff at Kern Medical Center and that Plaintiffs behavior contributed to and was the21 direct and proximate cause of any stresses, disabilities or injuries that Plaintiff believes he22 sustained.23 As and for a sixth affirmative defense, Defendants allege that Plaintiffs injuries, as24 alleged in the Second Amended Complaint occurred more than one year before Plaintiff25 commenced this action and that Plaintiffs claims are, therefore, barred by the statue of26 limitations established in California Code of Civil Procedures 340.27 As and for a seventh affirmative defense, Defendants allege that Plaintiffs injuries, as28 alleged in the Second Amended Complaint occurred more than two years before Plaintiff



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1 commenced this action and that Plaintiffs claims are, therefore, barred by the statue of2 limitations established in California Code of Civil Procedures 335.1.3 As and for an eighth affirmative defense, Defendants allege that Plaintiff has available4 adequate administrative remedies which he failed to exhaust and that his claims are, therefore,5 barred.6 As and for a ninth affirmative defense, Defendants allege that the Defendants and each of7 them have qualified immunity for each and every claim alleged in the Second Amended8 Complaint because, in doing the things alleged, they were each acting within the course and9 scope of their duties as public officials and did not violate any of Plaintiff s constitutional rights

10 and, even if they did, none of the alleged constitutional rights was clearly established.11 As and for a tenth affirmative defense, Defendants allege that all of Plaint iffs injuries, as12 alleged in the Second Amended Complaint, arose within the course and scope ofPlaintiffs13 employment and that Plaintiffs sole and exclusive remedy lies under the CaliforniaWorkers14 Compensation Act.15 WHEREFORE, Defendants pray that Plaintifftake nothing by way of his Second16 Amended Complaint and that judgment thereon be entered in favor ofDefendants and against17 Plaintiff and that Defendants be awarded their reasonable costs of suit and attorneys fees togethe18 with such other and further relief as the Court deems just.19202122232425262728

Dated: October 27, 2008 LAW OFFICES OF MARK A. WASSERBy: lsi Mark A. Wasser

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


Documents

246 Answer to SAC