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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.
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Plaintiff hereby moves in limine for admission of a stipulated fact that Dr. Riskin's certifications
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of Plaintiff's need for medical leave were adequate. Defendant objected to Plaintiff introducing the
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deposition testimony of KMC's former Director of Human Resources, Sandra Chester, who so testified
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in deposition on the grounds that Defendant did not contest this issue. Nonetheless, Defendant's
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proposed jury instructions include a question for the jury on whether Plaintiff's notice of his need for
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medical leave was reasonable, which includes a requirement that Plaintiff's doctor's certifications were
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adequate. Plaintiff respectfully requests that either Defendant be estopped from contesting this issue,
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and be ordered to reduce their representation to an undisputed fact that is jury is instructed to accept as
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true, or that Plaintiff be allowed to establish the adequacy of Dr. Riskin's certifications, and thus the
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reasonableness of Dr. Jadwin's notice of his need for medical leave through the testimony of Sandra
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Chester.
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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
USDC, ED Case No. 1:07-cv-00026 OWW DLB
ORDER ON PLAINTIFF'S CONSOLIDATED MOTIONS IN LIMINE Nos. 1-18 3
Case 1:07-cv-00026-OWW-DLB Document 376 Filed 06/02/2009 Page 4 of 5
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.
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Plaintiff moves in limine for an order limiting the evidence admitted as relevant to Defendant's
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so-called Fifth Affirmative Defense to rebuttal of the motivating factor element in Plaintiff's Disability
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Discrimination Claim. Two days before the end of trial, Defendant has finally provided a statement of
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the legal basis for the Fifth Affirmative Defense - McDonnell-Douglas. Defendant's evidence should be
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limited to those reasons for the adverse employment actions that were contemporaneously considered
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and communicated to Plaintiff. In other words, no evidence other than Plaintiff's "unavailability" is
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relevant to his removal from his position as Chair of Pathology at KMC and consequent paycut. In the
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light of Mr. Culberson's testimony, no evidence other than the 11 points contained in Dr. Dutt's email to
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Mr. Culberson of December 6, 2006 is relevant to Plaintiff's placement on administrative leave. And no
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evidence other than Mr. Watson's testimony is relevant to the non-renewal of Plaintiff's employment
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contract given that Defendant averred in discovery that no one made a decision not to renew Plaintiff's
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contract, so consequently there was no factual basis for any such decision. In other words, all evidence
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regarding Plaintiff's alleged inadequate communication and interpersonal skills is irrelevant, and the jury
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should be instructed to disregard any such evidence whatsoever.
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RESPECTFULLY SUBMITTED on June 2, 2009.
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/s/ Joan Herrington
25 Attorney for Plaintiff DAVID F. JADWIN, D.O.
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USDC, ED Case No. 1:07-cv-00026 OWW DLB
ORDER ON PLAINTIFF'S CONSOLIDATED MOTIONS IN LIMINE Nos. 1-18 5