Motion in Limine Evidentiary in Diana Blum, MD vs Sutter Health et al| Trellis.Law

On March 04, 2015 a Motion-Secondary was filed involving a dispute between Diana P. Blum, and Palo Alto Foundation Medical Group, Inc., Palo Alto Medical Foundation, Sutter Health, for Wrongful Termination Unlimited(36) in the District Court of Santa Clara County.

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LINDBERGH PORTER, Bar No. 100091
LITTLER MENDELSON, P.C.
333 Bush Street, 34th Floor
San Francisco, CA 94104
Telephone: 415.433.1940
Fax No.: 415.399.8490
MAIKO NAKARAI-KANIVAS, Bar No. 271710
LITTLER MENDELSON, P.C.
1255 Treat Boulevard, Suite 600
Walnut Creek, CA 94597
Telephone: 925.932.2468
\IO
Fax No.: 925.946.9809
Attorneys for Defendants
SUTTER HEALTH and PALO ALTO MEDICAL
FOUNDATION

MARCIE ISOM FITZSIMMONS, Bar No. 226906
HIEU T. WILLIAMS, Bar No. 280585
GORDON REES SCULLY MANSUKHANI, LLP
275 Battery Street, Suite 2000
San Francisco, CA 94111
Telephone: 415.986.5900
Fax No.: 415.986.8054
Attorneys for Defendant
PALO ALTO FOUNDATION MEDICAL GROUP

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

DIANA P. BLUM, M.D., Case No. 115CV277582

Plaintiff, DECLARATION OF MAIKO NAKARAI-
KANIVAS IN SUPPORT OF
v. DEFENDANTS’ JOINT OPPOSITION TO
PLAINTIFF’S MOTION IN LIMINE T0
SUTTER HEALTH, a California EXCLUDE JOINT VENTURE TESTIMONY
corporation; PALO ALTO FOUNDATION FROM NATHAN KAUFMAN
MEDICAL GROUP, a California
corporation; PALO ALTO MEDICAL Date: January 8, 2018
FOUNDATION, a California corporation; Time: 8:45 a.m.
and DOES 1 through 20, Dept; 16
Judge: Hon. Drew Takaichi
Defendants.
Complaint Filed: March 4, 2015
FAC Filed: August 7, 2015

28
LITTLE? MENDELSON P c Case No. 115CV277582
333 BUSH SIREEI
NH FLOOR NAKARAI DECL, ISO DEFS‘ JOINT OPPOSITION TO PLTF’S MOTION IN LIMINE TO EXCLUDE JOTNT
SAN FRANCISCO CA 9:104
«5m 1910 VENTURE TESTIMONY FROM NATHAN KAUFMAN
1,MAIKO NAKARAl-KANIVAS, declare:
l. 1 am a Shareholder with the law ﬁrm of Littler Mendelson, P.C., counsel for

Defendants Sutter Health and Palo Alto Medical Foundation (“PAMF”) in this action. I am licensed

to practice law in the State of California and appear in the above-captioned matter. All of the

information set forth herein is based upon my personal and ﬁrsthand knowledge, or from review of
the ﬁle of this matter in the regular course of representing my clients. If called and sworn as a

OO\IO\
witness, 1could and would competently testify hereto.

2. A true and correct copy of Defendants’ expert disclosures (without

attachments) which were served on May 30, 2017, is attached hereto as Exhibit A and incorporated
00

l by reference herein.

11 3. The deposition of Defendants’ expert witness Nathan Kaufman was taken on

12 July 6, 2017 before a certiﬁed court reporter. A true and correct copy of excerpts from Mr.
13 Kaufman’s deposition transcript are attached hereto as Exhibit B and incorporated by reference

14 herein.

15 I declare under penalty of perjury under the laws of the State of California that the

16 foregoing is true and correct. Executed this 7th day of January, 2018 at Walnut Creek, California.

17
ﬂM—Nv
18 MAIKO NAKARAI-KANIVAS
19
F1rmw1de15214535410615981049
20

28
UTILER MENDELSON P C 2~ Case No. 115CV277582
333 BUSH SWEET
16TH FLOOR NAKARAI DECL, ISO DEFS’ JOINT OPPOSITION TO PLTF’S MOTION IN LIMINE TO EXCLUDE JOINT
SAN FRANClSCO CA 9610A
41543319“) VENTURE TESTIMONY FROM NATHAN KAUFMAN
EXHIBIT A
LINDBERGH PORTER, Bar No. 100091
LITTLER MENDELSON, RC.
333 Bush Street
34th Floor
San Francisco, CA 94104
Telephone: 415.433.1940
Fax No.: 415.399.8490

MAIKO NAKARAI-KANIVAS, Bar No. 271710
LITTLER MENDELSON, RC.
1255 Treat Boulevard
Suite 600
Walnut Creek, CA 94597
Telephone: 925.932.2468
Fax No.: 925.946.9809

Attorneys for Defendants
SUTTER HEALTH and PALO ALTO MEDICAL
10 FOUNDATION
11
SUPERIOR COURT OF CALIFORNIA
12
COUNTY OF SANTA CLARA
13
DIANA P. BLUM, M.D., Case No. 115~CV—277582
14
Plaintiff, DEF ENDANTS SUTTER HEALTH
15 AND PALO ALTO MEDICAL
v. FOUNDATION’S EXPERT
16 WITNESS DISCLOSURE AND
SUTTER HEALTH, a California EXPERT WITNESS
17 corporation, PALO ALTO FOUNDATION DECLARATION
MEDICAL GROUP, a California
18 corporation, PALO ALTO MEDICAL Complaint Filed: March 4, 2015
FOUNDATION, a California corporation, FAC Filed: August 7, 2015
19 and DOES 1through 20,
Trial Date: July 17,2017
20 Defendants.

28
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San
115031940 SUTTER HEALTH & PAMF'S EXPERT WITNESS DISCLOSURE
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that pursuant to Defendant PALO ALTO FOUNDATION
MEDICAL GROUP’s (“PAFMG”) Demand for Exchange of Expert Witness Information, and

California Code of Civil Procedure section 2034.210 er seq., Defendants SUTTER HEALTH and

PALO ALTO MEDICAL FOUNDATION (“PAMF”) (collectively, “Defendants”) hereby provide
notice that they expert to offer in evidence at trial the expert opinions ofthe following individuals:

1. Bryan D, Bohman, MD.
2600 El Camino Real, Suite 206
Palo Alto, CA 94306

2. Carol Hyland
4120 Canyon Road
10 Lafayette, CA 94549
11 3. Nathan Kaufman
11440 West Bernando Court #155
12 San Diego, CA 92127
13 Mark Lipian,
4. M.D., Ph.D.
50 California Street, Suite 1500
14 San Francisco, CA 94111
15 Charles Mahla,
5, PhD.
555 University Avenue, Suite 294
16 Sacramento, CA 95825
17 Defendants reserve the right under California Code of Civil Procedure section
1s 2034.210 el seq, as well as any other constitutional, statutory or common law rights Defendants may
19 have, to call as expert witnesses at trial any of the experts designated by any party, to augment or
20 supplement their expert witness list,to call experts not listed above as rebuttal witnesses to impeach
21 the testimony of any other expert witness testimony offered at trial, and/or call any other expert
22 witness at trial, and to amend the attached Declaration with respect to the general substance of
23 anticipated testimony of the witness designated.

25
Dated: May 30,2017
//$72
LINDBERGH
.

PORTER
MAIKO NAKARAI-KANIVAS
26 LITTLER MENDELSON, PC.
Attorneys for Defendants
27
SUTTER HEALTH and PALO ALTO
MEDICAL FOUNDATION
28
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‘15 SUTTER HEALTH & PAMF'S EXPERT WITNESS DISCLOSURE
EXPERT WITNESS DECLARATION
I, Maiko Nakarai-Kanivas, declare:

l. I am a Shareholder with the law ﬁrm of Littler Mendelson, P.C., counsel of
record for Defendants Sutter Health and Palo Alto Medical Foundation (“PAMF”) (collectively,
“Defendants") in the above-captioned matter. I make this declaration as required by California Code
of Civil Procedure section 2034.260.

2. Defendants presently expect to offer in evidence at trial, by either oral or
deposition testimony, the expert opinions of the following retained experts: Bryan Bohman, M.D.,
Carol I-Iyland, Nate Kaufman, Mark Lipian, M.D., Ph.D., and Charles Mahla, Ph.D. Each of these
10 individuals have agreed to testify at trial,and will be sufﬁciently familiar with the pending action to

11 submit to a meaningful oral deposition concerning the speciﬁc testimony, including any opinions
12 and their bases, he or she is expected to give at trial.

13 3. Bryan Bohman, M.D., 2600 El Camino Real, Suite 206, Palo Alto, CA
14 94306:

15 a. Brief Statement of Qualiﬁcations: Dr. Bohman is the Chief Medical
16 Ofﬁcer at University Healthcare Alliance and the Associate Chief Medical Officer at Stanford
17 Healthcare. He isalso a Clinical Associate Professor of Anesthesia and Critical Care at Stanford
1s University, and a Co—Director of Stanford Medicine’s Clinical Excellence Leadership Training
19 program. Dr. Bohman holds a BS in Psychobiology from the University of California at Davis, and

20 an MD. from the University of Chicago. A true and correct copy of Dr. Bohman’s Curriculum
21 Vitae is attached hereto as Exhibit A and incorporated by reference herein.
22 b. Brief Statement of General Substance of Testimony the Expert Is

23 Expected To Give: Dr. Bohman is expected to testify regarding the policies, procedures and
24 practices that Plaintiff allegedly protested and/or that Plaintiff claims constitute unfair or unlawful
25 business practices, including whether such policies, procedures and practices impaired a physician’s

26 ability to provide medically appropriate health care to his or her patients, or otherwise interfered
27 with or harmed patient care. Dr. Bohman is also expected to testify regarding whether Plaintiff‘s
28 alleged advocacy was “medically appropriate," and whether Plaintiff could have reasonably believed
MLER MENDELSON Pc
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that the policies, procedures or practices impaired her ability to provide medically appropriate health
care to her patients. Dr. Bohman may also be asked to review any opinions proffered by Plaintiff‘s
expert witnesses, and opine regarding the work product of Plaintiff‘s expert witnesses and/or offer
his own opinions in rebuttal.

e. W Dr. Bohman’s

for consulting with the retaining attorney is $500 per hour.
fee for providing deposition testimony and

4. Carol Hyland, 4120 Canyon Road, Lafayette, CA 94549:

a. Brief Statement of Qualifications: Ms. Hyland is a vocational and

rehabilitation consultant. She holds a B.A. in American Intellectual History from the University of
10 California at Irvine, and an MS. in Rehabilitation Counseling from California State University. A
11 true and correct copy of Ms. Hyland’s Curriculum Vitae is attached hereto as Exhibit B and
12 incorporated by reference herein.

13 b. Brief Statement of General Substance of Testimony the Expert Is

14 Expected To Give: Ms. Hyland is expected to testify regarding vocational rehabilitation issues,
15 including the reasonableness of Plaintiffsjob search and mitigation efforts, alternative positions and
16 what they would have paid, and the labor market relevant to Plaintiff‘s Ms.
case. Hyland may also
17 be asked to review any opinions proffered by Plaintiffs expert witnesses, and opine regarding the
18 work product of Plaintiff‘s expert witnesses and/or offer her own opinions in rebuttal.
19 c. Hourly Fee: Ms. Hyland’s hourly fee for providing deposition
20 testimony is $500 per hour, and $275 per hour for consulting with the retaining attorney.

21 5. Nathan Kaufman, 11440 West Bemando Court #155, San Diego, CA 92127:
22 a. Brief Statement of Qualifications: Mr. Kaufman is a strategic advisor,
23 executive and negotiator in the healthcare industry, and the Managing Director of Kaufman Strategic
24 Advisors. He holds a BA. in Psychology from Emory University and an MS. in Health Systems
25 from the Georgia Institute of Technology. A true and correct copy of Mr. Kaufman's Curriculum
26 Vitae is attached hereto as Exhibit C and incorporated by reference herein.
27

28 ///
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94t 2651 SUTTER HEALTH & PAMF‘S EXPERT WITNESS DISCLOSURE
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b. Brief Statement of General Substance of Testimony the Expert Is

Expected To Give: Mr. Kaufman is expected to testify regarding the foundation practice model in
California, including the purpose and organization of the foundation-medical group structure under
California Health and Safety Code section 1206(1), the consistency of Defendants’ operations with
the requirements and intent of Section 1206(l), and the differences between the foundation-medical
group structure under Section 1206(l)/Defendants’ operations and a joint venture. Mr. Kaufman is

also expected to testify regarding the policies, procedures and practices that Plaintiff allegedly
protested as impairing her ability to provide medically appropriate health care, and/or that Plaintiff
claims constitute unfair or unlawful business practices. Mr. Kaufman may also be asked to review
10 any opinions proffered by Plaintiff‘s expert witnesses, and opine regarding the work product of
11 Plaintiff’s expert witnesses and/or offer his own opinions in rebuttal.
12 c. Hourly Fee: Mr. Kaufman’s fee for providing deposition testimony
13 and for consulting with the retaining attorney is $650 per hour and $6,500 per day when traveling.

14 6. Mark Lipian, M.D., Ph.D., 50 California Street, Suite 1500, San Francisco,
15 CA 941 1 l:

16 a. Brief Statement oualiﬁcations: Dr. Lipian is a clinical and forensic
17 psychiatrist. He is an Assistant Clinical Professor in the Department of Psychiatry and
18 Biobehavioral Sciences at U.C.L.A. School of Medicine, and the Chief of Psychiatry ofthe Forensic
19 Outpatient Services for the County of Orange Health Care Agency. Dr. Lipian holds an A.B. in
20 Psychology from the University of California at Berkeley, an M.S., M.Phil, and PhD in Psychology
21 from Yale University, and an MD. from Yale University School of Medicine. A true and correct
22 copy of Dr, Lipian’s Curriculum Vitae is attached hereto as Exhibit D and incorporated by reference
23 herein.

24 b. Brief Statement of General Substance of Testimony the Expert Is
25 Expected To Give: Dr. Lipian is expected to testify regarding the nature, extent and causation of
26 Plaintiff’s alleged emotional and psychological injuries, Plaintiffs medical and psychological
27 history, and possible alternate causes of Plaintiff’s alleged emotional distress or other claimed
28 damages. Dr. Lipian is also expected to testify regarding his independent psychiatric examination of
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Plaintiff and his diagnostic conclusions reached based on examination of Plaintiff and related
records. Dr. Lipian may also be asked to review any opinions proffered by Plaintiffs expert
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witnesses, and opine regarding the work product of Plaintiff’s expert witnesses and/or offer his own
opinions in rebuttal.

c. W
A true and correct copy

for consulting with the retaining attorney is
of Dr.
Dr.

$725
Lipian’s report is attached hereto

Lipian’s

per hour.
fee for providing deposition
as Exhibit E.
testimony and

7. Charles Mahla, 555 University Avenue, Suite 294, Sacramento, CA 95825:
a. Brief Statement of Qualiﬁcations: Dr. Mahla is an economist. He is a
Managing Director and the Sacramento Ofﬁce Head at Econ One Research, Inc. Dr. Mahla holds a

10 B.A. in Economics from Lafayette College, and a Ph.D. in Economics from the University of North
11 Carolina at Chapel Hill. A true and correct copy of Dr. Mahla‘s Curriculum Vitae is attached hereto
12 as Exhibit F and incorporated by reference herein.
13 b. Brief Statement of General Substance of Testimony the Expert Is
14 Expected To Give: Dr. Mahla is expected to testify regarding economic damages claimed by
15 Plaintiff, including Plaintiffs alleged lostearnings and beneﬁts, both past and future. Dr. Mahla is
16 also expected to testify regarding Plaintiff’s mitigation efforts. Dr. Mahla may also be asked to
17 review any opinions proffered by Plaintiff‘s expert witnesses, and opine regarding the work product
18 of Plaintiff‘s expert witnesses and/or offer his own opinions in rebuttal.
19 c. Hourly Fee: Dr. Mahla‘s fee for providing deposition testimony and
20 for consulting with the retaining attorney is $560 per hour.

21 8. Defendants reserve the right to call as witnesses any of the individuals who
22 have treated or examined Plaintiff, including for conditions
any related to her alleged emotional
23 distress and/or as her general treating physician.
24 9. Defendants also reserve the right to call as an expert witness any person who
25 has been deposed in this case or otherwise identified as a witness, to the extent that such testimony
26 may be considered expert testimony.

28 / //
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10. Defendants further reserve the right to call at trial any expert witness in
rebuttal to any expert witness disclosed by Plaintiff. In addition, Defendants reserve the right to
supplemental this disclosure as permitted under Code of Civil Procedure section 2034.210 et seq.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed this 30th day of May, 2017 at Walnut Creek, California.

AM»-
MAIKO’NAKARAI-KANIVAS

11
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12

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EXHIBIT B
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
—-—oOo-—-
DIANA P. BLUM, M.D.,
Plaintiff,
\Jmmpp—I

vs. No. 115CV277582
SUTTER HEALTH, a California
corporation; PALO ALTO
FOUNDATION MEDICAL GROUP,
INC , a California corporation;
PALO ALTO MEDICAL FOUNDATION,
a California corporation;
10 and DOES 1 through 20,
ll Defendants.

12
13 DEPOSITION OF NATHAN S. KAUFMAN
14 San Jose, California
15 Thursday, July 6, 2017
16 Pages 1 through 19, inclusive
and
17 Pages 24 through 74, inclusive
185
(PAGES 20 THROUGH 23, INCLUSIVE, OF THE DEPOSITION OF
19 NATHAN S. KAUFMAN HAVE BEEN DESIGNATED CONFIDENTIAL AND
ARE BOUND SEPARATELY.)
20
21 Reported by:
ADRIENNE L. ANDREINI
22 C.S R. NO. 4804
23
24
25

Page 1

Hahn & Bowersock, A Veritcxt Company
8006603187
Q. Any other educa— -- formal education after
that?
A. That's it.
Q. From 1982 to 1984, your CV says you were vice
president of marketing in Los Angeles, California, but I
don't see the name of the organization.
A. It was National Medical Enterprises, which is a

hospital chain now known as Tenet, T-e-n—e—t.
Q. Okay. Oh, I see the entry above that, from '84
10 to '86, then.
ll You, then, became senior vice president of
12 marketing physician services; right?
13 A. Yes. I'm not really great with dates. That
14 previous date may have been with Hospital Corporation of
15 America.
16 Q. Okay.
17 On Page 1 of your CV, at the bottom, it
18 provides nine bullet points of areas of specialization,
19 and one of those is physician joint-venture structuring
and negotiation.
Tell me what physician ioint—yenture
structuring and negotiation is.
A1 Physicians and businesspeople. or iust
N pk physicians alone. may desire to co—own a business. such
N U‘I
as a surqerv center or an imaging center. and

Page 9

Hahn & Bowersock, A Veritext Company
8006603187
IN
W
W
long

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as
Q.

just
W
t_h.0.L__ventures.
with imaging
anyone
And
said
how
in
W
centers.

do
the
you
"co—ownership"
so I've
country.
define,
been

and
when
then
doing

you
you
it
put
probably

t—

referred
-- when

to
as

it
as "ventures"?
10 Do you use the terminology "co-ownership" and
ll "joint ventures" interchangeably?
12 A. Yes.
13 Q. And can you tell me what a joint venture is.
14 MS. WILLIAMS: Objection. Calls for a legal
15 conclusion.
16 MS. NAKARAI—KANIVAS: Join.
17 THE WITNESS: A joint venture is a business
18 that is co-owned by at least two parties that share in
19 the cash flow or liabilities in that venture, based on
their ownership or equity in the s- -— in that venture.
MS. BARTA: Q; And from where did you gain the
understanding of that definition of a joint venture?
Ay It's a common definition that's been used in
healthcare since the 12§Os.
N U1
Qy I quess my question goes more to- What type of

Page 10

Hahn & Bowersock, A Veritext Company
8006603187
training or eoereework or what have you gene in terms of
educatinq yourself on what that term "ioint venture"
means in the -— as you've iust described it?
Ag When I started structuring join; ventures. they
were relatively new. As a result;I I eetually was the
1m educator of hew te strucgure joint venguree, I taught
|\1 courses for the American College of Healthcare
Executives in how to structure these ventures.
Q. Did you ever teach lawyers how to do it?
10 A. It depends how you define ”teach."
11 Q. In the way that you just used it before that
12 when you said you taught educators.
13 A. I believe that there were hospital general
14 counsels in my classes when I taught them.
15 Q. Where were your classes that those hospital
16 counsels would have been in?
17 A. For 20 years, I taught breakout sessions for
18 an organization called the Governance Institute that
19 helped programs all over the country. I also taught a
20 number of courses for the American College of Healthcare
21 Executives —- which is also known as "ACHE" —- again.
all over the country. And one of the top things that I
covered in my classes was structuring ioint ventures.
N .5
Qy De yQu have any fermal legal treining?
N U'I
A. No.

Page 11

Hahn & Bowersock, A Veritext Company
8006603187
What did you mean by "co-owned"?
MS. WILLIAMS: Objection. Misstates testimony.
MS. NAKARAI—KANIVAS: Join.
THE WITNESS: Let me correct. I said "by at
least two parties."
MS. BARTA: Q. Okay.
So. tell me again your definition of a joint
venture.
AA It is a business that is co—owned by at least
two parties where the gash flow or liabilities are
distributed based on the ownership interest in that
venture or business.
Q. And is there a requirement that that structure
be set forth in formal documentation?
MS. WILLIAMS: Objection.
THE WITNESS: Yeah.
MS. WILLIAMS: Calls for a legal conclusion.
MS. NAKARAI—KANIVAS: Join.
MS. WILLIAMS: Vague.
MS. NAKARAI—KANIVAS: Join.
THE WITNESS: Yes.
MS. BARTA: Q. And what requires that it be
set forth in formal documentation?
MS. WILLIAMS: Vague.
MS. NAKARAI-KANIVAS: Join.

Page 14

Hahn & Bowersock, A Veritext Company
8006603187
MS. BARTA: Q. What did you mean by "sponsors
of the Foundation"?
A. The Foundation is, essentially, a subsidiary of
the health system.
Q. Is it your understanding, based on the fact
that the Foundation is a subsidiary of Sutter Health,

Case Info

Judge

Drew C. Takaichi Track Judge’s New Case

Case No.

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Document Filed Date

January 08, 2018

Case Filing Date

March 04, 2015

County

Parties

Christine A. Lawler Attorney For The Defendant
Diana P. Blum Plaintiff
Lindbergh Porter Attorney For The Defendant
Palo Alto Foundation Medical Group, Inc. Defendant
Palo Alto Medical Foundation Defendant
Sutter Health Defendant
Maiko Nakarai-Kanivas Attorneys for Defendants
Theresa Barta-Vavrock Attorney
James Barber Attorney
Jeffrey Wertheimer Attorney
Charles Louderback Attorneys for Plaintiffs
Hieu Tran Attorney
Stacey Pratt Attorneys for Plaintiffs
Marcie Fitzsimmons Attorneys for Defendants
Sean Piers Attorneys for Defendants
Hieu Williams Attorney
Nicole Williams Attorneys for Defendants
Theresa Barta Attorney

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Motion-Secondary: Diana Blum, MD vs Sutter Health et al

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