1 Mark A.

Wasser CA SB #060160
LAW OFFICES OF MARK A. WASSER
2 400 Capitol Mall, Suite 1100
Sacramento, CA 95814
3 Phone: (916) 444-6400
Fax: (916) 444-6405
4 E-mail: mwasser@markwasser.com
5 Bernard C. Barmann, Sr.
KERN COUNTY COUNSEL
6 Mark Nations, Chief Deputy
1115 Truxton Avenue, Fourth Floor
7 Bakersfield, CA 93301
Phone: (661) 868-3800
8 Fax: (661) 868-3805
E-mail: mnations@co.kern.ca.us
9
10 Attorneys for Defendants County of Kern,
Peter Bryan, Irwin Harris, Eugene Kercher,
11 Jennifer Abraham, Scott Ragland, Toni Smith
and William Roy
12
13 UNITED STATES DISTRICT COURT
14 EASTERN DISTRICT OF CALIFORNIA
15
16 DAVID F. JADWIN, D.O. ) Case No.: 1:07-cv-26
)
17 Plaintiff, ) ANSWER TO SECOND
) SUPPLEMENTAL COMPLAINT
18 vs. )
)
19 COUNTY OF KERN, et al., )
)
20 Defendants. )
)
21
22
23 Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer
24 Abraham, Scott Ragland, Toni Smith and William Roy answer the Second Supplemental
25 Complaint as follows:
26 1. Defendants deny the allegations contained in paragraphs 1, 2 and 3.
27 2. Defendants admit the allegations contained in paragraph 4.
28 3. Defendants deny the allegations contained in paragraph 5.

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 1 4. Defendants admit the allegations contained in paragraphs 6 and 7.
2 5. In response to the allegations contained in paragraph 8, Defendants admit that
3 Peter Bryan was Chief Executive Officer of Kern Medical Center and a resident of California
4 during most of the time alleged in the Complaint. Defendants deny the remaining allegations
5 contained in paragraph 8.
6 6. Defendants admit the allegations contained in paragraphs 9, 10, 11, 12, 13 and 14.
7 7. Defendants deny all the allegations contained in paragraph 15.
8 8. In response to the allegations contained in paragraph 16, Defendants admit that
9 Plaintiff is a pathologist. Defendants are without knowledge or information sufficient to form a
10 belief as to the truth of the remaining averments in paragraph 16.
11 9. In response to the allegations contained in paragraph 17, Defendants admit that
12 Plaintiff was hired as a pathologist at Kern Medical Center and was appointed to the position of
13 Chair of the Pathology Department. Defendants deny all remaining allegations contained in
14 paragraph 17.
15 10. In response to the allegations contained in paragraph 18, Defendants admit that
16 Plaintiff complained about departmental procedures and policies at Kern Medical Center and
17 interfered with patient care provided by Kern Medical Center and its physicians. Defendants
18 deny all remaining allegations contained in paragraph 18.
19 11. Defendants deny all the allegations contained in paragraphs 19 and 20.
20 12. In response to the allegations contained in paragraph 21, Defendants admit that
21 Plaintiff requested and received multiple leaves of absence and that the terms and conditions of
22 the leaves Plaintiff received are memorialized in writings. Defendants deny all remaining
23 allegations contained in paragraph 21.
24 13. In response to the allegations contained in paragraphs 22, 23 and 24, Defendants
25 admit that Plaintiff requested and received multiple leaves of absence for multiple reasons, was
26 removed from his position as Chair of the Pathology Department because he was neither working
27 full-time nor present in the hospital and that his compensation was reduced. Defendants also
28 admit that Plaintiff complained about the policies and procedures at Kern Medical Center, wrote

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 1 letters to several physicians and administrators at Kern Medical Center and other health care
2 organizations and was placed on administrative leave. Defendants deny all remaining allegations
3 in those paragraphs.
4 14. In response to the allegations contained in paragraph 25, Defendants admit that
5 Plaintiff has been provided with the information he requested from the computer that was
6 previously assigned to him. Defendants deny all remaining allegations contained in paragraph
7 25.
8 15. Defendants deny all the allegations contained in paragraph 26.
9 16. In answer to the allegations contained in paragraph 27, Defendants admit that
10 Plaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in
11 paragraph 27.
12 17. In answer to the allegations contained in paragraphs 28 and 29, Defendants admit
13 that Plaintiff was employed as a pathologist in Kern Medical Center and assigned to the position
14 of Chair of the Pathology Department and that he was compensated and provided with certain
15 benefits pursuant to a written employment agreement. Defendants deny all remaining allegations
16 contained in paragraphs 28 and 29.
17 18. In response to the allegations contained in paragraph 30, Defendants admit that
18 Plaintiff was expected to be an effective member of the physicians’ staff at Kern Medical Center
19 and to contribute to the overall improvement of the hospital. Defendants deny all remaining
20 allegations contained in paragraph 30.
21 19. In response to the allegations contained in paragraphs 31, 32 and 33, Defendants
22 admit that interpretation of the referenced documents is a question of law. Defendants deny all
23 remaining allegations contained in those paragraphs.
24 20. Defendants admit the allegations contained in paragraph 34.
25 21. In response to the allegations contained in paragraphs 35, 36 and 37, Defendants
26 admit that interpretation of the referenced documents is a question of law. Defendants deny all
27 remaining allegations contained in those paragraphs.
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 1 22. Defendants are without knowledge or information sufficient to form a belief as to
2 the truth of the averments contained in paragraph 38.
3 23. In response to the allegations contained in paragraph 39, Defendants admit that
4 Plaintiff complained about policies and procedures at Kern Medical Center and that his actions
5 interfered with patient care. Defendants deny all remaining allegations contained in paragraph
6 39.
7 24. In response to the allegations contained in paragraphs 40 and 41, Defendants
8 admit that Plaintiff’s former attorney sent a letter to Bernard Barmann and that Plaintiff met with
9 Mr. Barmann on or about February 9, 2006. Defendants deny all remaining allegations
10 contained in those paragraphs.
11 25. In response to the allegations contained in paragraphs 42 and 43, Defendants
12 admit that Plaintiff complained about policies and procedures at Kern Medical Center, disagreed
13 with other staff physicians about patient care and wrote letters expressing his disagreement.
14 Defendants deny all remaining allegations contained in those paragraphs.
15 26. In response to the allegations contained in paragraphs 44, 45, 46 and 47,
16 Defendants admit that disagreements arose between Plaintiff and William Roy regarding the
17 review of pathology reports, the timeliness and accuracy of Plaintiff’s pathology reports and
18 Plaintiff’s management of the Pathology Department and that letters were written by the Plaintiff
19 and others regarding these issues. Defendants deny all remaining allegations contained in those
20 paragraphs.
21 27. In response to the allegations contained in paragraphs 48, 49, 50, 51, 52, 53 and
22 54, Defendants admit that disagreements arose between Plaintiff and other physicians at Kern
23 Medical Center, including some of the Defendants, regarding the review of pathology reports,
24 the timeliness and accuracy of Plaintiff’s pathology reports, Plaintiff’s management of the
25 Pathology Department, hospital policies and procedures and patient care. Defendants further
26 admit that letters were written by the Plaintiff and others regarding these issues. Defendants
27 deny all remaining allegations contained in those paragraphs.
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 1 28. In response to the allegations contained in paragraphs 55, 56, 57, 58 and 59,
2 Defendants admit that Plaintiff disrupted the October, 2005, Monthly Oncology Conference and
3 prevented appropriate discussion of case management and that other physicians at Kern Medical
4 Center, including some of the Defendants, were concerned about Plaintiff’s conduct and with his
5 interference with patient care. Defendants further admit that letters were written by Plaintiff,
6 William Roy and others about the incident. Defendants deny all remaining allegations in those
7 paragraphs.
8 29. Defendants deny all the allegations contained in paragraphs 60, 61, 62 and 63.
9 30. In response to the allegations contained in paragraph 64, Defendants are without
10 knowledge or information sufficient to form a belief as to the truth of the averments contained in
11 paragraph 64.
12 31. In response to the allegations contained in paragraphs 65, 66, 67, 68, 69, 70, 71
13 and 72, Defendants admit that letters were sent and received by Plaintiff and some of the
14 Defendants regarding Plaintiff’s conduct and criticism of Kern Medical Center’s policies and
15 procedures. Defendants deny all remaining allegations contained in those paragraphs.
16 32. Defendants deny all the allegations contained in paragraph 73.
17 33. In response to the allegations contained in paragraph 74 and 75, Defendants admit
18 that Plaintiff’s entitlement to leave under FMLA and CFRA is a question of law. Defendants
19 deny all remaining allegations contained in those paragraphs.
20 34. In response to the allegations contained in paragraph 76, 77, 78, 79 and 80,
21 Defendants admit that Plaintiff requested and received leaves of absence on multiple occasions
22 for multiple reasons and that there are several documents authored by Plaintiff and others
23 regarding the reasons for his leaves of absence and the terms of the leaves. Defendants deny all
24 remaining allegations in those paragraphs.
25 35. In response to the allegations contained in paragraph 81, 82, 83, 84, 85 and 86,
26 Defendants admit that Plaintiff exchanged written correspondence with Peter Bryan and others
27 regarding leaves of absence. Defendants deny that Plaintiff engaged in any “whistleblowing
28

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 1 activity” and that Plaintiff is or ever was a “whistleblower”. Defendants deny all remaining
2 allegations in those paragraphs.
3 36. Defendants are without knowledge or information sufficient to form a belief as to
4 the truth of the averments contained in paragraphs 87 and 88.
5 37. In response to the allegations contained in paragraphs 89, 90, 91 and 92,
6 Defendants admit that Plaintiff and Peter Bryan exchanged written correspondence regarding
7 leaves of absence that Plaintiff requested and Plaintiff’s tenure as Chair of the Pathology
8 Department at Kern Medical Center. Defendants also admit that on or about July 10, 2006, the
9 Joint Conference Committee voted to remove Plaintiff from his position as Chair of the
10 Pathology Department at Kern Medical Center. Defendants deny all remaining allegations
11 contained in those paragraphs.
12 38. Defendants deny all the allegations contained in paragraph 93.
13 39. In response to the allegations contained in paragraphs 94, 95, 96, 97 and 98,
14 Defendants admit that Plaintiff’s employment agreement was amended to reduce Plaintiff’s base
15 compensation and that Plaintiff continued to send and receive written communications to others
16 regarding his leaves of absence. Defendants deny all remaining allegations contained in those
17 paragraphs.
18 40. In response to the allegations contained in paragraph 99, Defendants admit that
19 Plaintiff returned to work as a staff pathologist at Kern Medical Center in October, 2006 and that
20 Phillip Dutt was appointed Acting Chair of the Pathology Department. Defendants deny all
21 remaining allegations contained in paragraph 99.
22 41. Defendants deny all the allegations contained in paragraph 100.
23 42. In response to the allegations contained in paragraphs 101 and 102, Defendants
24 admit that Plaintiff exchanged written correspondence with David Culberson. Defendants deny
25 all remaining allegations contained in those paragraphs.
26 43. In response to the allegations contained in paragraph 103, Defendants admit that
27 Plaintiff has been provided with the information he requested from the County-owned computer
28

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 1 that was previously assigned to him. Defendants deny all remaining allegations contained in
2 paragraph 103.
3 44. Defendants are without knowledge or information sufficient to form a belief as to
4 the truth of the averments contained in paragraph 104.
5 45. In answer to the allegations contained in paragraph 105, Defendants admit that
6 Plaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in
7 paragraph 105.
8 46. In response to the allegations contained in paragraph 106, Defendants admit that
9 Plaintiff requested and received a reduced work schedule. Defendants deny all remaining
10 allegations contained in paragraph 106.
11 47. Defendants are without knowledge or information sufficient to form a belief as to
12 the truth of the averments contained in paragraph 107.
13 48. In response to the allegations contained in paragraphs 108, 109 and 110,
14 Defendants admit that Plaintiff and Peter Bryan exchanged written communications regarding
15 Plaintiff’s request for leaves of absence. Defendants deny all remaining allegations contained in
16 those paragraphs.
17 49. Defendants deny all the allegations contained in paragraph 111.
18 50. In answer to the allegations contained in paragraphs 112, 113, 114, 115, 116 and
19 117, Defendants admit that Plaintiff exchanged written communications with Peter Bryan
20 regarding his work schedule and requests for leaves of absence and met with Peter Bryan and
21 others to discuss those subjects. Defendants deny all remaining allegations contained in those
22 paragraphs.
23 51. Defendants are without knowledge or information sufficient to form a belief as to
24 the truth of the averments contained in paragraphs 118 and 119.
25 52. In response to the allegations contained in paragraphs 120, 121 and 122,
26 Defendants admit that plaintiff and Peter Bryan exchanged written communications regarding
27 Plaintiff’s leaves of absence and performance as Chair of the Pathology Department. Defendants
28 deny all remaining allegations contained in those paragraphs.

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 1 53. Defendants are without knowledge or information sufficient to form a belief as to
2 the truth of the averments contained in paragraph 123.
3 54. In answer to the allegations contained in paragraph 124, Defendants admit that
4 Plaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in
5 paragraph 124.
6 55. Defendants deny all the allegations contained in paragraphs 125, 126, 127 and
7 128.
8 56. Defendants deny all the allegations contained in paragraphs 129, 130, 131, 132,
9 133 and 134.
10 57. Defendants deny all the allegations contained in paragraph 135.
11 58. In response to the allegations contained in paragraph 136, Defendants admit that
12 Plaintiff is on paid, unrestricted, administrative leave and is free to pursue whatever other career
13 or business opportunities he desires. Defendants deny all remaining allegations contained in
14 paragraph 136.
15 59. Defendants deny all the allegations contained in paragraph 137.
16 60. In response to the allegations contained in paragraph 138, Defendants admit that
17 Plaintiff’s base compensation as a staff pathologist is less than it was when he was Chair of the
18 Pathology Department. Defendants deny all remaining allegations contained in paragraph 138.
19 61. Defendants deny all the allegations contained in paragraphs 139, 140, 141, 142,
20 143 and 144.
21 62. In response to the allegations contained in paragraph 145, Defendants admit that
22 Plaintiff filed a claim with Defendant, County of Kern, and that the claim has been rejected.
23 Defendants deny all remaining allegations contained in paragraph 145.
24 63. Defendants are without knowledge or information sufficient to form a belief as to
25 the truth of the averments contained in paragraphs 146 and 147.
26 64. Defendants are without knowledge or information sufficient to form a belief as to
27 the truth of the averments contained in paragraphs 148, 149, 150, 151 and 152.
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 1 65. Defendants are without knowledge or information sufficient to form a belief as to
2 the truth of the averments contained in paragraph 153.
3 66. Defendants incorporate herein, all of their responses to paragraphs 1 through 153,
4 inclusive.
5 67. In response to the allegations contained in paragraph 155, Defendants admit that
6 interpretation of Health and Safety Code §1278.5 is a matter of law. Defendants deny all
7 remaining allegations contained in paragraph 155.
8 68. Defendants deny all the allegations contained in paragraphs 156, 157 and 158 and
9 further deny that Plaintiff has engaged in any “whistleblowing activity” or is a “whistleblower”.
10 69. Defendants are without knowledge or information sufficient to form a belief as to
11 the truth of the averments contained in paragraph 159.
12 70. Defendants incorporate herein, their responses to paragraphs 1 through 159,
13 inclusive.
14 71. In response to the allegations contained in paragraph 161, Defendants admit that
15 interpretation of Labor Code §1102.5 is a matter of law. Defendants deny all remaining
16 allegations contained in paragraph 161.
17 72. Defendants deny all the allegations contained in paragraphs 162, 163, 164 and
18 165 and further deny that Plaintiff made any “whistleblowing reports”.
19 73. Defendants are without knowledge or information sufficient to form a belief as to
20 the truth of the averments contained in paragraph 166.
21 74. Defendants incorporate herein, their responses to 1 through 166, inclusive.
22 75. In response to the allegations contained in paragraphs 168, 169 and 170,
23 Defendants admit that interpretation of Government Code §12945.2(a)(1) and Title 2 of
24 California Code of Regulations §7297.7(a) and §7297.2(c) is a matter of law. Defendants deny
25 all remaining allegations contained in those paragraphs.
26 76. Defendants deny all the allegations contained in paragraphs 171 and 172.
27 77. Defendants are without knowledge or information sufficient to form a belief as to
28 the truth of the averments contained in paragraph 173.

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 1 78. Defendants incorporate herein, their responses to paragraphs 1 through 173,
2 inclusive.
3 79. In response to the allegations contained in paragraph 175, Defendants admit that
4 interpretation of 29 U.S.C. §2611(4)(A)(ii)(I) and 29 U.S.C. §2615(a) is a matter of law.
5 Defendants deny all remaining allegations contained in paragraph 175.
6 80. Defendants deny all the allegations contained in paragraphs 176, 177 and 178.
7 81. Defendants are without knowledge or information sufficient to form a belief as to
8 the truth of the averments contained in paragraph 179.
9 82. Defendants incorporate herein, their answers to paragraphs 1 through 179,
10 inclusive.
11 83. In response to the allegations contained in paragraphs 181, 182, 183, 184, 185,
12 186, 187 and 188, Defendants admit that interpretation of the California Family Rights Act is a
13 question of law. Defendants deny all remaining allegations contained in those paragraphs.
14 84. Defendants deny all the allegations contained in paragraphs 189, 190 and 191.
15 85. Defendants are without knowledge or information sufficient to form a belief as to
16 the truth of the averments contained in paragraph 192.
17 86. Defendants incorporate herein, their responses to paragraphs 1 through 192,
18 inclusive.
19 87. In response to the allegations contained in paragraph 194, Defendants admit that
20 interpretation of the California Fair Employment and Housing Act is a question law. Defendants
21 deny all remaining allegations remaining in paragraph 194.
22 88. Defendants deny all the allegations contained in paragraphs 195 and 196.
23 89. Defendants are without knowledge or information sufficient to form a belief as to
24 the truth of the averments contained in paragraph 197.
25 90. Defendants incorporate herein, their responses to paragraphs 1 through 197,
26 inclusive.
27 91. Defendants deny all the allegations contained in paragraph 199.
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 1 92. Defendants are without knowledge or information sufficient to form a belief as to
2 the truth of the averments contained in paragraph 200.
3 93. Defendants incorporate herein, their responses to paragraphs 1 through 200,
4 inclusive.
5 94. Defendants deny all the allegations contained in paragraph 202.
6 95. Defendants are without knowledge or information sufficient to form a belief as to
7 the truth of the averments contained in paragraph 203.
8 96. Defendants incorporate herein, their responses to paragraphs 1 through 204,
9 inclusive.
10 97. In response to the allegations contained in paragraph 205, Defendants admit that
11 interpretation of the Fourteenth Amendment to the United States Constitution is a question of
12 law. Defendants deny all remaining allegations contained in paragraph 205.
13 98. Defendants deny all the allegations contained in paragraphs 206, 207, 208, 209,
14 210, 211, 212, 213 and 214.
15 99. Defendants are without knowledge or information sufficient to form a belief as to
16 the truth of the averments contained in paragraph 215.
17 100. Defendants incorporate herein, their responses to paragraphs 1 through 215,
18 inclusive.
19 101. Defendants deny all the allegations contained in paragraphs 217, 218, 219, 220,
20 221, 222, 223, 224 and 225.
21 102. Defendants are without knowledge or information sufficient to form a belief as to
22 the truth of the averments contained in paragraph 226.
23 103. Defendants incorporate herein, their responses to paragraphs 1 through 226,
24 inclusive.
25 104. In response to the allegations contained in paragraphs 228 and 229, Defendants
26 admit that interpretation of the Code of Federal Regulations, including 20C.F.R. §541.118(1) and
27 §541.18(6), is a question of law. Defendants deny all remaining allegations contained in those
28 paragraphs.

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 1 105. Defendants deny all the allegations contained in paragraphs 230, 231 and 232.
2 As and for a first affirmative defense, Defendants allege that Plaintiff’s Second
3 Supplemental Complaint and each and every purported claim contained therein fails to state a
4 claim upon relief can be granted.
5 As and for a second affirmative defense, Defendants allege that this Court lacks subject
6 matter jurisdiction over Plaintiff’s alleged claims and should refuse to exercise jurisdiction over
7 Plaintiff’s state claims because they predominate and the alleged federal claims are insubstantial.
8 As and for a third affirmative defense, Defendants allege that Defendants’ actions as
9 alleged in the Second Supplemental Complaint were privileged under California Evidence Code
10 sections 1157, 1157.5, 1157.6 and 1157.7, California Business and Professions Code sections
11 800 through 809.9 and California Civil Code section 47(a) and (b) in that Defendants’ actions
12 were in furtherance of medical peer review, maintenance of quality-of-care standards, discharge
13 of official duties and performed in the course of official proceedings authorized by law and that
14 Defendants and each of them are, therefore, immune from liability.
15 As and for a fourth affirmative defense, Defendants allege that California Civil Code
16 section 47(a) and (b) immunizes Defendants and each of them from liability for the matters
17 alleged in the Second Supplemental Complaint.
18 As and for a fifth affirmative defense, Defendants allege that, during Plaintiff’s
19 employment at Kern Medical Center, Plaintiff was arrogant, disagreeable, uncooperative,
20 intimidating, overbearing, self-righteous and unfriendly and that Plaintiff’s behavior contributed
21 to and was the direct and proximate cause of any stresses, disabilities or injuries that Plaintiff
22 believes he sustained.
23 As and for a sixth affirmative defense, Defendants allege that Plaintiff’s injuries, as
24 alleged in the Second Supplemental 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 Supplemental 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 Supplemental
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 WHEREFORE, Defendants pray that Plaintiff take nothing by way of his Second
12 Supplemental Complaint and that judgment thereon be entered in favor of Defendants and
13 against Plaintiff and that Defendants be awarded their reasonable costs of suit and attorneys fees
14 together with such other and further relief as the Court deems just.
15
16 Dated: June 20, 2007 LAW OFFICES OF MARK A. WASSER
17 By: /s/ Mark A. Wasser
18 Mark A. Wasser
Attorney for Defendants, County of Kern, et al.
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