246 Answer To SAC

Mark A.
Wasser CA SB #060160
1 LAW OFFICES OF MARK A. WASSER
400 Capitol Mall, Suite 2640
2 Sacramento, California 95814
Phone: (916) 444-6400
3 Fax: (916) 444-6405
E-mail: mwasser@markwasser.com
4
Bernard C. Barmann, Sr. CA SB #060508
5 KERN COUNTY COUNSEL
Mark Nations, Chief Deputy CA SB #101838
6 1115 Truxtun Avenue, Fourth Floor
Bakersfield, California 93301
7 Phone: (661) 868-3800
Fax: (661) 868-3805
8 E-mail: mnations@co.kern.ca.us
9
Attorneys for Defendants County of Kern,
10 Peter Bryan and Irwin Harris
11
UNITED STATES DISTRICT COURT
12
EASTERN DISTRICT OF CALIFORNIA
13
14
Case No.: 1:07-cv-00026-0WW-TAG
15 DAVID F. JADWIN, D.O.
ANSWER TO SECOND AMENDED
16 Plaintiff, COMPLAINT
17 vs.
18 COUNTY OF KER, et aI.,

19 Defendants.
20 Defendants County of Kern, Peter Bryan and Irwin Harris answer the Second Amended
21 Complaint as follows:
22 1. Defendants deny the allegations contained in paragraphs 1, 2 and 3.

23 2. 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.

26 3. Defendants deny the allegations contained in paragraph 5.
27 4. Defendants admit the allegations contained in paragraphs 6 and 7.
28
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ANSWER TO SECOND AMENDED COMPLAINT
I 5. In response to the allegations contained in paragraph 8, Defendants admit that
2 Peter Bryan was Chief Executive Officer of Kern Medical Center and a resident of California
3 during some of the time alleged in the Complaint. Defendants deny the remaining allegations
4 contained in paragraph 8.
5 6. In response to the allegations contained in paragraph 9, Defendants admit that
6 Irwin Harris was Medical Director of Kern Medical Center and a resident of California during
7 some of the time alleged in the Complaint. Defendants deny the remaining allegations contained
8 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 that
II Plaintiff is a pathologist. Defendants are without knowledge or information sufficient to form a
12 belief as to the truth of the remaining averments in paragraph II.
14 Plaintiff was hired as a pathologist at Kern Medical Center and was appointed to the position of
15 Chair of the Pathology Department. Defendants deny all remaining allegations contained in
16 paragraph 12.
18 Plaintiff complained about policies and procedures at Kern Medical Center, repeatedly interfered
19 with patient care and refused to work collaboratively and professionally with the medical staff at
20 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.
23 Plaintiff requested and received multiple leaves of absence for multiple reasons. Defendants
24 deny all remaining allegations contained in paragraph 16.
26 Plaintiffrequested and received multiple leaves of absence for multiple reasons and was
27 ultimately removed from his position as Chair of the Pathology Department because he was not
28 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.
3 Plaintiff began work as a staff pathologist at Kern Medical Center on October 4,2006.
4 Defendants deny the remaining allegations in paragraph 19.
6 17. Defendants deny all the allegations contained in paragraph 21 and further deny
7 that Plaintiff is a "whist1eblower."
10 Plaintiff was placed on paid administrative leave on December 7, 2006. Defendants deny all
11 remaining allegations contained in paragraph 23.
12 20. In response to the allegations contained in paragraphs 24, Defendants admit that
13 Plaintiff complained about policies and procedures at Kern Medical Center and wrote letters to
14 other physicians and to hospital administration about many subjects. Defendants deny all
15 remaining allegations contained in paragraphs 24.
17 Plaintiff has been provided with the information he requested from the computer that was
18 previously assigned to him. Defendants deny all remaining allegations contained in paragraph
19 25.
20 22. Defendants deny all the allegations contained in paragraphs 26, 27 and 28.
22 Plaintiffs employment agreement expired by its own terms on October 4,2007. Defendants
23 deny all remaining allegations contained in paragraph 29.
25 25. In response to the allegations contained in paragraphs 31, 32 and 33, Defendants
26 admit that Plaintiff had an employment agreement with the County of Kern and it was amended
27 and that the agreement and amendments speak for themselves. Defendants deny all remaining
28 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 and
2 40, Defendants admit that Plaintiffs employment agreements speak for themselves. Defendants
3 deny all remaining allegations contained in those paragraphs.
4 27. Defendants are without knowledge or information sufficient to form a belief as to
5 the truth of the averments contained in paragraph 41.
10 29. In response to the allegations contained in paragraphs 43 and 44, Defendants
II admit that Plaintiffs former attorney sent a letter to Bernard Barmann and that Plaintiff met with
12 Mr. Barmann on or about February 9,2006. Defendants deny all remaining allegations
13 contained in those paragraphs.
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 Plaintiff and other
21 members of the medical staff at Kern Medical Center over several subjects, that Plaintiff
22 complained about policies and procedures at Kern Medical Center, repeatedly interfered with
23 patient care, refused to work collaboratively and professionally with the medical staff at Kern
24 Medical Center and wrote letters to members of the medical staff and administration about
25 several subjects. Defendants deny all remaining allegations contained in those paragraphs.
27 admit that Plaintiff made a presentation to the monthly oncology conference at Kern Medical
28 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.
4 admit that members of the medical staff at Kern Medical Center wrote letters about Plaintiff s
5 behavior at the October 12,2005 oncology conference and that Plaintiff was thereafter counseled
6 about this behavior by the medical staff leadership. Defendants deny all remaining allegations
7 contained in those paragraphs.
8 35. Defendants deny all the allegations contained in paragraphs 64 and 65.
9 36. 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 and
11 members of the medical staff at Kern Medical Center and others regarding Plaintiff s behavior
12 and his criticisms of Kern Medical Center's policies and procedures and his refusal to work
13 collaboratively and professionally with the medical staff at Kern Medical Center. Defendants
17 admit that written correspondence was sent and received by Plaintiff and members ofthe medical
18 staff at Kern Medical Center and others regarding Plaintiff s behavior and his criticisms of Kern
19 Medical Center's policies and procedures and his refusal to work collaboratively and
20 professionally with the medical staff at Kern Medical Center. Defendants deny all remaining
21 allegations contained in those paragraphs
23 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 multiple
27 reasons and that Plaintiff and others sent and received written correspondence about his leaves 0
28 absence. Defendants deny all remaining allegations contained in those paragraphs.
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2 admit that Plaintiff exchanged written correspondence with Peter Bryan and others regarding
3 Plaintiff s absences from Kern Medical Center. Defendants deny that Plaintiff engaged in any
4 "whistleblowing" activity and deny that Plaintiff is or ever was a "whistleblower". Defendants
6 42. In response to the allegations contained in paragraphs 87, 88, 89 and 90,
7 Defendants admit that Plaintiff requested and received multiple leaves of absence for multiple
8 reasons and that Plaintiff and others sent and received written correspondence about his leaves 0
9 absence. Defendants deny all remaining allegations contained in those paragraphs.

11 the truth of the averments contained in paragraphs 91 and 92.
12 44. In response to the allegations contained in paragraph 93, Defendants admit
13 Plaintiff sent a letter to Peter Bryan on June 2, 2006. Defendants deny all remaining allegations
14 in paragraph 93.
15 45. In response to the allegations contained in paragraphs 94, 95, 96 and 97,
16 Defendants admit that Plaintiff and Peter Bryan exchanged written correspondence regarding
17 Plaintiff s absence from Kern Medical Center and the effect it had on his ability to discharge his
18 duties as Chair ofthe Pathology Department at Kern Medical Center. Defendants also admit that
19 on or about July 10, 2006, the Joint Conference Committee removed Plaintiff from his position
20 as Chair of the Pathology Department at Kern Medical Center. Defendants deny all remaining
21 allegations contained in those paragraphs.

22 46. In response to the allegations contained in paragraphs 98, 99,100,101 and 102,
23 Defendants admit that Plaintiff and his attorney negotiated an amendment to Plaintiff s
24 employment agreement, that Plaintiff and his attorney exchanged written correspondence with
25 County representatives about the amendment and that it was approved and executed by Plaintiff
26 and the County. Defendants deny all remaining allegations contained in those paragraphs.
27 47. In response to the allegations contained in paragraphs 103, 104 and 105,
28 Defendants admit that Plaintiff commenced work as a staff pathologist 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 medical
3 staff at Kern Medical Center and write letters to members of the medical staff and administration
4 about several subjects. Defendants deny all remaining allegations contained in those paragraphs.
6 Plaintiff was placed on paid administrative leave on or about December 7, 2006 and received a
7 letter from David Culberson about that. Defendants deny all remaining allegations contained in
8 that paragraph.
10 Plaintiff has been provided with all the information he has requested from the County-owned
11 computer that was previously assigned to him. Defendants deny all remaining allegations
12 contained in paragraph 107.
15 Plaintiff requested and received a reduced work schedule. Defendants deny all remaining
16 allegations contained in paragraph 109.
18 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 Plaintiff and Peter Bryan exchanged written communications regarding
21 Plaintiff s request for leaves of absence. Defendants deny all remaining allegations contained in
22 those paragraphs.
24 55. In answer to the allegations contained in paragraphs 115, 116, 117, 118 and 119,
25 Defendants admit that Plaintiff exchanged written communications with Peter Bryan regarding
26 Plaintiffs work schedule and requests for leaves of absence and met with Peter Bryan and others
27 to discuss those subjects. Defendants deny all remaining allegations contained in those
28 paragraphs.
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2 57. 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.
5 Defendants admit that Plaintiff and Peter Bryan exchanged written communications regarding
6 Plaintiffs leaves of absence and perfonnance as Chair of the Pathology Department. Defendants
9 60. Defendants are without knowledge or infonnation sufficient to fonn a belief as to
10 the truth of the avennents contained in paragraph 127.
11 61. Defendants deny all the allegations contained in paragraphs 128, 129, 130 and
12 131.
14 135.
16 64. 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 remaining

20 Plaintiffs employment agreement expired by its tenns on October 4, 2007. Defendants deny all
21 remaining allegations contained in paragraph 13 8.

24 Plaintiff negotiated and signed an agreement to be a staff pathologist and began work as a staff
25 pathologist on or about October 4, 2006. Defendants deny all remaining allegations contained in
26 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
-8-
1 of them.
3 Defendants admit Plaintiff has filed multiple claims with Defendant, County of Kern, and is
4 threatening to be a vexatious litigant. Defendants deny all remaining allegations contained in

5 those paragraphs.
7 the truth of the averments contained in paragraphs 150, 151, 152, 153, 154, 155, 156 and 157.
9 72. Defendants incorporate herein all oftheir responses to paragraphs 1 through 158,
10 inclusive.

12 interpretation of Health and Safety Code §1278.5 is a matter oflaw. Defendants deny all
13 remaining allegations contained in paragraph 160.
14 74. Defendants deny all the allegations contained in paragraphs 161, 162 and 163 and
15 further deny that Plaintiff has engaged in any "whistleb10wing activity" or is a "whist1eb10wer".

17 76. Defendants incorporate herein their responses to paragraphs 1 through 164,
18 inclusive.
20 interpretation of Labor Code § 11 02.5 is a matter of law. Defendants deny all remaining
23 170 and further deny that Plaintiff made any "whist1eb10wing reports".
26 inclusive.
28 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 contained
2 in paragraph 173.
6 inclusive.
8 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.
12 88. 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 admit
15 interpretation of the California Family Rights Act is a question oflaw. Defendants deny all
16 remaining allegations contained in those paragraphs.
20 inclusive.
22 interpretation of the California Fair Employment and Housing Act is a question law. Defendants
23 deny all remaining allegations remaining in paragraph 190.
26 96. Defendants incorporate herein their responses to paragraphs I through 193,
27 inclusive.
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3 inclusive.

7 inclusive.
9 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 Plaintiff has suffered any harm or injury
13 and further deny Plaintiff is entitled to any relief.
16 inclusive.

18 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.
21 219.

24 inclusive.
26 As and for a first affirmative defense, Defendants allege that Plaintiff s Second Amended
27 Complaint and each and every purported claim contained therein fails to state a claim upon relief
28 can be granted.
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1 As and for a second affirmative defense, Defendants allege that this Court lacks subject
2 matter jurisdiction over Plaintiffs alleged claims and should refuse to exercise jurisdiction over
3 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 as
5 alleged in the Second Amended Complaint were privileged under California Evidence Code §§
6 1157,1157.5,1157.6 and 1157.7, California Business and Professions Code §§ 800 through
7 809.9 and California Civil Code § 47(a) and (b) in that Defendants' actions were in furtherance
8 of medical peer review, maintenance of quality-of-care standards, discharge of official duties and
9 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 in
13 the Second Amended Complaint.
14 As and for a fifth affinnative defense, Defendants allege that, during Plaintiff s
15 employment at Kern Medical Center, Plaintiff was arrogant, disagreeable, uncooperative,
16 intimidating, overbearing, self-righteous and unfriendly; that Plaintiffrefused to work
17 collaboratively or professionally with the medical staff at Kern Medical Center; that he made
18 unfounded, frivolous and repetitive complaints and criticisms of Kern Medical Center, its
19 policies and procedures; and made unfounded and frivolous complaints against members of the
20 medical staff at Kern Medical Center and that Plaintiffs behavior contributed to and was the
21 direct and proximate cause of any stresses, disabilities or injuries that Plaintiff believes he
22 sustained.
23 As and for a sixth affirmative defense, Defendants allege that Plaintiff s injuries, as
24 alleged in the Second Amended Complaint occurred more than one year before Plaintiff
25 commenced this action and that Plaintiff s claims are, therefore, barred by the statue of
26 limitations established in California Code of Civil Procedures §340.
27 As and for a seventh affirmative defense, Defendants allege that Plaintiff s injuries, as
28 alleged in the Second Amended Complaint occurred more than two years before Plaintiff
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1 commenced this action and that Plaintiff s claims are, therefore, barred by the statue of
2 limitations established in California Code of Civil Procedures §335.1.
3 As and for an eighth affirmative defense, Defendants allege that Plaintiff has available
4 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 of
7 them have qualified immunity for each and every claim alleged in the Second Amended
8 Complaint because, in doing the things alleged, they were each acting within the course and
9 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 Plaintiffs injuries, as
12 alleged in the Second Amended Complaint, arose within the course and scope of Plaintiffs
13 employment and that Plaintiffs sole and exclusive remedy lies under the California Workers
14 Compensation Act.
15 WHEREFORE, Defendants pray that Plaintiff take nothing by way of his Second
16 Amended Complaint and that judgment thereon be entered in favor of Defendants and against
17 Plaintiff and that Defendants be awarded their reasonable costs of suit and attorneys fees togethe
18 with such other and further relief as the Court deems just.
19
20 Dated: October 27, 2008 LAW OFFICES OF MARK A. WASSER

21 By: lsi Mark A. Wasser
Mark A. Wasser
22 Attorney for Defendants, County of Kern, et al.
23
24
25
26
27
28
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246 Answer To SAC

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246 Answer To SAC

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Mark A.

18 COUNTY OF KER, et aI.,

22 1. Defendants deny the allegations contained in paragraphs 1, 2 and 3.

25 Defendants deny the remaining allegations contained in paragraph 4.

5 deny all remaining allegations contained in those paragraphs.

9 absence. Defendants deny all remaining allegations contained in those paragraphs.

11 the truth of the averments contained in paragraphs 91 and 92.

12 44. In response to the allegations contained in paragraph 93, Defendants admit

21 allegations contained in those paragraphs.

2 57. Defendants are without knowledge or infonnation sufficient to form a belief as to

8 59. Defendants deny all the allegations contained in paragraph 126.

9 60. Defendants are without knowledge or infonnation sufficient to fonn a belief as to

10 the truth of the avennents contained in paragraph 127.

15 63. Defendants deny all the allegations contained in paragraph 136.

19 65. In response to the allegations contained in paragraph 138, Defendants admit

21 remaining allegations contained in paragraph 13 8.

22 66. Defendants deny all the allegations contained in paragraph 139.

23 67. In response to the allegations contained in paragraph 140, Defendants admit

4 threatening to be a vexatious litigant. Defendants deny all remaining allegations contained in

11 73. In response to the allegations contained in paragraph 160, Defendants admit

16 75. Defendants deny all the allegations contained in paragraph 164.

4 100. Defendants deny all the allegations contained in paragraph 198.

17 107. In response to the allegations contained in paragraph 215, Defendants admit

22 109. Defendants deny all the allegations contained in paragraph 220.

20 Dated: October 27, 2008 LAW OFFICES OF MARK A. WASSER

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