Metropolitan News-Enterprise


Wednesday, July 6, 2011


Page 1


C.A. Upholds Ruling That Suit Against Doctor Was Harassment

Evidence Proved False Claims Action by County Was in Retaliation for Earlier Lawsuit, Justices Say




A doctor who once headed the pathology department at a county hospital proved that Kern County retaliated against him for an earlier lawsuit claiming he was disciplined for complaining about medical quality issues, this district’s Court of Appeal ruled yesterday.

Div. Six affirmed a $50,000 attorney fee award in favor of Dr. David F. Jadwin, who won a verdict of more than $500,000 in the 2009 trial of his earlier suit in federal court. Jadwin presented sufficient evidence for Ventura Superior Court Judge Henry Walsh to reject the county’s contention that its suit against Jadwin for submitting false expense reports was unrelated to his federal claims, the appellate panel held.

While “the propinquity of two events does not necessarily establish cause and effect,” Justice Kenneth Yegan wrote for Div. Six, “circumstantial evidence supports the adverse factual finding.”

Paid Leave

Jadwin was placed on paid administrative leave from his post at Kern Medical Center in 2006. He sued in the U.S. District Court for the Eastern District of California the following year, charging employment retaliation, denial of due process, and violation of state and federal statutes, including the Family and Medical Leave Act, California Fair Employment and Housing Act, and California Family Rights Act.

While that suit was pending, Jadwin continued to travel to attend continuing education classes and submitted a claim for more than $3,000 in reimbursement. The county accused him of having falsified that claim and sued him under the False Claims Act.

The statute, patterned after the Civil War-era federal act, permits a public entity to recover treble damages from an employee or contractor who presents it with a willfully false claim for public funds.

Suit Transfered

The action was transferred to Ventura County—Jadwin having moved to Northern California in the interim, giving him a statutory right to a neutral venue—and assigned to mandatory arbitration. The arbitrator found for Jadwin and the county filed a voluntarily dismissal.

Jadwin’s lawyer moved to vacate the dismissal, claiming the county had filed it in order to avoid having to pay attorney fees. Walsh agreed, ordered that judgment be entered in Jadwin’s favor on the basis of the arbitrator’s award, and subsequently found that the defendant was entitled to attorney fees under the FCA because the suit was frivolous and designed to harass.

The judge, citing the briefs and declarations of the parties, found that the county sued without properly investigating the claim, gave “evasive and conclusionary” responses to Jadwin’s discovery, and filed the suit as an “unlimited jurisdiction” case even though “it could never have reached” the $25,000 jurisdictional threshold.

The county failed to show reversible error, Yegan said, even under the pre-2010 version of the statute, which permits an attorney fee award to a prevailing defendant only upon a showing that the litigation was frivolous, vexatious, “or brought solely for purposes of harassment. The current version reduces that burden to a showing that the action was brought “primarily” to harass.

The justice rejected the county’s contention that it had been subjected to a “double whammy” because the arbitrator made no factual findings and the judge did not allow it to present evidence that the suit was not frivolous.

Neither the judicial arbitration statute nor the Rules of Court require findings of fact or conclusions of law on the part of the arbitrator, and it cannot be assumed that the trial jurist acted “cavalierly” in his evaluation of the briefs and declarations, Yegan wrote.

Circumstantial Evidence

While much of the evidence was circumstantial, the justice went on to say, it was sufficient to establish that the county sued without probable cause or continued the suit after realizing it lacked probable cause. He cited the timing of the suit, the inappropriate invocation of unlimited jurisdiction, the lack of investigation or discovery on the part of the county, the abusive nature of the county’s responses to Jadwin’s discovery, the fact that both the federal court and the arbitrator ruled against the county, and the county’s failure to present evidence, either in arbitration or the trial court, to rebut the inference that the suit was retaliatory.

Sacramento attorney Mark Wasser represented the county on appeal. Eugene D. Lee of Los Angeles, who represented Jadwin in the federal case—reportedly the first one he had ever tried—represented him in the Court of Appeal along with Wendy C. Lasher and John A. Hribar.

The case is County of Kern v. Jadwin, B227276.


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