Case 1:07-cv-00026-OWW-DLB Document 376 Filed 06/02/2009 Page 1 of 5

1 LAW OFFICE OF EUGENE LEE

Eugene D. Lee (SB#: 236812)
2 555 West Fifth Street, Suite 3100
Los Angeles, CA 90013
3 Phone: (213) 992-3299
Fax: (213) 596-0487
4 email: elee@LOEL.com
5 Joan Herrington, SB# 178988
BAY AREA EMPLOYMENT LAW OFFICE
6 5032 Woodminster Lane
Oakland, CA 94602-2614
7 Telephone: (510) 530-4078
Facsimile: (510) 530-4725
8 Email: jh@baelo.com
Of Counsel to LAW OFFICE OF EUGENE LEE
9
Attorneys for Plaintiff
10 DAVID F. JADWIN, D.O.
11
UNITED STATES DISTRICT COURT
12
EASTERN DISTRICT OF CALIFORNIA
13
FRESNO DIVISION
14
DAVID F. JADWIN, D.O., Civil Action No. 1:07-cv-00026 OWW DLB
15
Plaintiff, PLAINTIFF'S CONSOLIDATED MOTIONS
16 IN LIMINE Nos. 19- 25.
v.
17 Date: June 2, 2009
COUNTY OF KERN, et al., Time: 8:30 a.m.
18 Courtroom: 3
Defendants.
19 Complaint Filed: January 5, 2007
Trial Date: May 14, 2009
20
21
22 Plaintiff David F. Jadwin, D.O., hereby moves in limine for an order addressing six emerging
23 evidentiary issues:
24 1. Exclusion of evidence based on Defendant's misrepresentation to the Court that Dr.
25 Jadwin's competence as a pathologist was not at issue;
26 2. Exclusion of evidence based on Defendant's misrepresentation to the Court that the
27 reasonableness of the notice of Plaintiff's need for medical leave was not at issue;
28 3. Exclusion of evidence based on Defendant's misrepresentation to the Court that the
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1 adequacy of Dr. Riskin's certifications were not at issue.

2 4. Exclusion of the deposition testimony of the County of Kern, by and through Philip Dutt,
3 M.D. that under some circumstances it is appropriate to punish employees for taking
4 medical leave for legitimate purposes;
5 5. Exclusion of evidence relevant to Plaintiff's request for injunctive relief; and
6 6. An instruction limiting evidence admitted as relevant to the so-called Fifth Affirmative
7 Defense to Plaintiff's disability discrimination claim.
8
9 19. Motion in limine to Admit Evidence Establishing Plaintiff's Competence as a Pathologist.
10 Plaintiff hereby moves in limine for inclusion of an instruction to the jury that Plaintiff's
11 competence as a Pathologist is conclusively established despite Dr. Dutt's challenges to it during the
12 period from October 4 to December 7, 2006.
13 Defendant objected to Plaintiff's expert, Lawrence Weiss, testifying as to the inappropriateness
14 of Dr. Dutt's challenges to Dr. Jadwin's competence on the grounds that Defendant does not contest Dr.
15 Jadwin's competence as a pathologist. However, KMC's former Interim CEO, Mr. Culberson, testified
16 that he did rely on the misleading accusations of Dr. Dutt regarding Dr. Jadwin's competence when he
17 placed Dr. Jadwin on administrative leave. Nonetheless, Plaintiff's expert, Dr. Weiss, was precluded
18 from refuting Dr. Dutt's accusations. Plaintiff respectfully requests that either Defendant be required to
19 reduce their representation to an undisputed fact that is jury is instructed to accept as true, or that
20 Plaintiff be allowed to establish Dr. Jadwin's competence as a pathologist through the use of Dr. Weiss's
21 deposition testimony and/or report.
22 20. Motion in limine to Admit Evidence that Plaintiff's Notice to Defendant Re His Medical Leave
Was Reasonable.
23
Plaintiff hereby moves in limine for admission of a stipulated fact that Plaintiff's notice of his
24
need for medical leave and an extension of his medical leave was reasonable under the circumstances.
25
Defendant objected to Plaintiff introducing the deposition testimony of KMC's former Director of
26
Human Resources, Sandra Chester, who so testified in deposition on the grounds that Defendant did not
27
contest this issue. Nonetheless, Defendant's proposed jury instructions include a question for the jury on
28
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1 whether Plaintiff's notice of his need for medical leave was reasonable. Plaintiff respectfully requests
2 that either Defendant be estopped from contesting this issue, and be ordered to reduce their
3 representation to an undisputed fact that is jury is instructed to accept as true, or that Plaintiff be allowed
4 to establish the reasonableness of Dr. Jadwin's notice of his need for medical leave through the
5 testimony of Sandra Chester.
6 21. Motion in limine to Admit Evidence that Dr. Riskin's Certifications of Plaintiff's Need for
Medical Leave Were Adequate.
7
Plaintiff hereby moves in limine for admission of a stipulated fact that Dr. Riskin's certifications
8
of Plaintiff's need for medical leave were adequate. Defendant objected to Plaintiff introducing the
9
deposition testimony of KMC's former Director of Human Resources, Sandra Chester, who so testified
10
in deposition on the grounds that Defendant did not contest this issue. Nonetheless, Defendant's
11
proposed jury instructions include a question for the jury on whether Plaintiff's notice of his need for
12
medical leave was reasonable, which includes a requirement that Plaintiff's doctor's certifications were
13
adequate. Plaintiff respectfully requests that either Defendant be estopped from contesting this issue,
14
and be ordered to reduce their representation to an undisputed fact that is jury is instructed to accept as
15
true, or that Plaintiff be allowed to establish the adequacy of Dr. Riskin's certifications, and thus the
16
reasonableness of Dr. Jadwin's notice of his need for medical leave through the testimony of Sandra
17
Chester.
18
22. Motion in limine to Admit Evidence of Defendant's Admitted Animus towards Employees Who
19 Take Medical Leave.
20 Plaintiff hereby moves in limine for admission of the following deposition testimony of the
21 County of Kern, by and through Philip Dutt, M.D. that establishes Defendant's animus towards
22 employees, such as Plaintiff, who exercise their right to medical leave. [PMK Depo. via Dutt, Vol. 2 at
23 243:3-21].
24 3 12:28:09 3 Q. What do you think of the notion of taking
25 4 12:28:11 4 medical leave off when you're sick?
26 5 12:28:16 5 A. Oh, I think -- I think if it's a legitimate
27 6 12:28:18 6 reason then people have a right to do it.
28 7 12:28:21 7 Q. Do you think people -- do you think it's
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1 8 12:28:22 8 wrong for an employer to punish an employee for

2 9 12:28:25 9 taking medical leave for a legitimate reason?
3 10 12:28:28 10 A. Maybe. It would depend on the
4 11 12:28:29 11 circumstances.
5 12 12:28:30 12 Q. So sometimes it would be okay?
6 13 12:28:31 13 A. I don't know the law in that area. That's a
7 14 12:28:35 14 legal question.
8 15 12:28:36 15 Q. I'm not asking for the law. I'm asking for
9 16 12:28:39 16 your opinion on this.
10 17 12:28:41 17 A. It would depend on, for example, what led up
11 18 12:28:49 18 to the medical leave; whether there were, as I said
12 19 12:28:56 19 in this case, previous statements; and it would
13 20 12:29:00 20 depend on the nature and legitimacy of the medical
14 21 12:29:04 21 condition and the seriousness, for example.
15 Over Plaintiff's objections, several of Defendant's witnesses were allowed to testify that they had
16 no retaliatory intent when they participated in decisions to take adverse employment actions against Dr.
17 Jadwin. However, when Plaintiff attempted to introduce Defendant County's deposition testimony in
18 rebuttal, he was precluded from doing so.
19 Plaintiff respectfully requests that he be allowed to read the above deposition testimony into the
20 record.
21 23. Motion in limine to Admit Evidence Supporting Plaintiff's Request for Injunctive Relief.
22 Plaintiff moves in limine for admission of evidence that Dr. Dutt was eligible for family leave,
23 but did not realize that as soon as his supervisor, Dr. Harris, learned that the leave Dr. Dutt was
24 requesting might qualify as "family leave" under CFRA/FMLA, Defendant was required to process Dr.
25 Dutt's leave request as "CFRA/FMLA" leave, request certification, and deduct it from his leave balance
26 regardless of whether he had vacation or sick time available.
27 Because Plaintiff was precluded from introducing this evidence from Dr. Dutt; Plaintiff was
28 deterred from trying to introduce similar evidence from Dr. Naderi.
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1 Such evidence supports Plaintiff's request for injunctive relief in the form of training of
2 Defendant's managers to proficiency regarding an employee's CFRA/FMLA rights.
3 Because the Court will decide whether Plaintiff is entitled to injunctive relief, Plaintiff
4 respectfully requests that parties be allowed to submit evidentiary briefs on these issues to the Court.
5 24. Motion in limine for a Limiting Instruction Regarding Defendant's So-Called Fifth Affirmative
Defense.
6
Plaintiff moves in limine for an order limiting the evidence admitted as relevant to Defendant's
7
so-called Fifth Affirmative Defense to rebuttal of the motivating factor element in Plaintiff's Disability
8
Discrimination Claim. Two days before the end of trial, Defendant has finally provided a statement of
9
the legal basis for the Fifth Affirmative Defense - McDonnell-Douglas. Defendant's evidence should be
10
limited to those reasons for the adverse employment actions that were contemporaneously considered
11
and communicated to Plaintiff. In other words, no evidence other than Plaintiff's "unavailability" is
12
relevant to his removal from his position as Chair of Pathology at KMC and consequent paycut. In the
13
light of Mr. Culberson's testimony, no evidence other than the 11 points contained in Dr. Dutt's email to
14
Mr. Culberson of December 6, 2006 is relevant to Plaintiff's placement on administrative leave. And no
15
evidence other than Mr. Watson's testimony is relevant to the non-renewal of Plaintiff's employment
16
contract given that Defendant averred in discovery that no one made a decision not to renew Plaintiff's
17
contract, so consequently there was no factual basis for any such decision. In other words, all evidence
18
regarding Plaintiff's alleged inadequate communication and interpersonal skills is irrelevant, and the jury
19
should be instructed to disregard any such evidence whatsoever.
20
21
RESPECTFULLY SUBMITTED on June 2, 2009.
22
23
24
/s/ Joan Herrington
25 Attorney for Plaintiff DAVID F. JADWIN, D.O.
26
27
28
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