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

On March 04, 2015 a Motion,Ex Parte 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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MARCIE ISOM F ITZSIMMONS
HIEU T. WILLIAMS (SBN: 280585)
(SBN: 226906) ‘1.1 E136 $32?
GORDON REES SCULLY MANSUKHANI, LLP 2m JAN--51A
275 Battery Street, Suite 2000
559;
AWN San Francisco, CA 94111
OFIHECOURT
Telephone: (415) 986-5900 ”6,5651%?“ ,n RCOU RT OF '

Facsimile: (415) 986-8054 011MY OF 5'1 TA CLAgAA
MIsom@grsm.com BY
Y——._ DEPUTY
HWilliams@grsm.com
%,.
Attorneys for Defendant
PALO ALTO FOUNDATION MEDICAL GROUP, INC.
RDOOQQUI

LINDBERGI-I PORTER (SBN: 100091)
LITTLER MENDELSON, PC.
333 Bush Street, 34th Floor
San Francisco, CA 94104
Telephone: (415) 433-1940
10 Facsimile: (415) 399-8490
LPorter@lit‘tler.com
11
MAIKO NAKARAI-KANIVAS (SBN: 271710)
2000
12 LITTLER MENDERLSON, RC.
94111
1255 Treat Blvd., Suite 600
LLP
Suite 13 Walnut Creek, CA 94597
CA
Telephone: (925) 932-2468
Rees

Street,
14 Facsimile: (925) 946-9809
& MNakaraikanivas@littler.com
Francisco,

15
Gordon
Battery Attorneys for Defendants
16 SUTTER HEALTH and PALO ALTO MEDICAL FOUNDATION
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17 SUPERIOR COURT OF CALIFORNIA

18 COUNTY OF SANTA CLARA

19
DIANA P. BLUM, M.D., ) CASE NO. 115CV2775 82
20 )
Plaintiff, )
DEFENDANTS’ JOINT
21
)
MOTION 1N LIMINE
vs. FOR SANCTIONS FOR
)
22 PLAINTIFF’S REPEATED
SUTTER HEALTH, a California corporation; ) VIOLATION OF COURT ORDER
23 PALO ALTO FOUNDATION MEDICAL )
GROUP, INC., a California corporation; ) No. 12 of 16
24 PALO ALTO MEDICAL FOUNDATION, a )
California corporation; and DOES 1 through )
25 20, )\ Trial Date: January 8, 2018
) Time: 8:45 am.
26 Defendants. ) Dept.: 16
)
27 ) Complaint Filed: March 4, 2015
FAC Filed: August 7, 2015
)
28

DEFENDANT S’ JOINT MOTION IN LIMINE NO. 12
FOR SANCTIONS FOR PLAINTIFF ’S REPEATED VIOLATION OF COURT ORDER
TABLE OF CONTENTS
Page

4303M
INTRODUCTION ............................................................................................................... 4

II. RELEVANT FACTS ........................................................................................................... 4

A. At Plaintiff’s Request, the Court Issued an Order Regarding Contact with
Patients ............................................................................................................. 4

B. Plaintiff Violates the Court Order with Patient T.G. ............................................... 6
Plaintiff Violates the Court Order Again with Patient M.F ..................................... 6
\OOOQG‘M

D. Plaintiff Violates the Court Order Again ................................................................. 7
IH. LEGAL ARGUMENT ......................................................................................................... 9
10
A. The Court Has the Power to Sanction Plaintiff for Violation of a Court
ll Order ........................................................................................................................
9

2000
12 B. Plaintiff Should Be Sanctioned For Repeatedly Violating the Court Order .......... 10
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Suite 13 1. Plaintiff Repeatedly Failed to Comply with the June 2016 Order ............. 10
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14 2. Plaintiff’s Failure to Comply Was Willful ................................................. 11
& Francisco,

15 C. The Appropriate Sanction Should Be An Evidentiary Sanction ............................ 13
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16 CONCLUSION .................................................................................................................. 14
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17

28
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DEFENDANTS’ JOINT MOTION IN LIMNE NO. 12
FOR SANCTIONS FOR PLAINTIFF ’S REPEATED VIOLATION OF COURT ORDER
TABLE OF AUTHORITIES
Page(s)

Cases
LaUJN

Biles v. Exxon Mobile Corp.
(2004) 124 Ca1.App.4th 1315 .....................................................................................................
9

Calvert Fire Ins. Co. v. Cropper
(1983) 141 Cal. App. 3d 901 ....................................................................................................
10

Corns v. Miller
(1986) 181 Ca1.App.3d 195 ......................................................................................................
10
\OOOQO

Deyo v. Kilbourne
(1978) 84 Cal.App.3d 771 ........................................................................................................
10

10 Karlsson v. Ford Motor Co.
(2006) 140 Cal.App.4th 1202 .....................................................................................................
9
11
Peat, Marwick, Mitchell & Co. v.Sup. Ct.
2000
12 (1988) 200 Ca1.App.3d 272 ........................................................................................................
9
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Suite 13 Puritan Inc. Co. v. Sup. Ct.
CA (1985) 171 Cal.App.3d 877 ......................................................................................................
10
Rees

Street,
14
& Reedy v. Bussell
Francisco,

15 (2007) 148 Cal.App.4th 1272 .....................................................................................................
9
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16 Sauer v. Sup. Ct. (Oak Industries)
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(1987) 195 Ca1.App.3d 213 ........................................................................................................
9
17
Vallbona v. Springer
18 (1996) 43 CaI.App.4th 1525 .......................................................................................................
9

19 Statutes

20 Code of Civil Procedure
Section 128 .................................................................................................................................
9
21
Code of Civil Procedure
22 Section 2023.030 ........................................................................................................................
9

28
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DEFENDANTS’ JOINT MOTION IN LIMINE NO. 12
FOR SANCTIONS FOR PLAINTIFF’S REPEATED VIOLATION OF COURT ORDER
N
1- w
Plaintiff Diana Blurn’s counsel repeatedly and willfully violated a discovery order from
this Court outlining speciﬁc parameters in which the parties could contact third party patient

witnesses. There is no excuse for her egregious and recurrent conduct and Plaintiff should be

sanctioned as a result. As such, Defendants PALO ALTO FOUNDATION MEDICAL GROUP,

(“the Physician Group”), SUTTER HEALTH and the PALO ALTO MEDICAL
\OOOQONUI-P-UJ

INC.

FOUNDATION (“PAMF”), (collectively referred to hereinafter as “Defendants”) jointly move

this Court for an Order: issuing an evidentiary sanction precluding Plaintiff from introducing

speciﬁc evidence in support of her claim that Defendants interfered with her relationships with

10 patients or that Defendants breached Section 4.6 of the Shareholder Employment Agreement by
11 failing to provide notiﬁcation and contact information to any patients.

2000
12 II. RELEVANT FACTS
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Suite 13 A. At Plaintiffs Request, the Court Issued an Order Regarding Contact with Patients
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14 As part of her claims in this case, Plaintiff alleges that Defendants breached Section 4.6
& Francisco,

15 of the Shareholder Employment Agreement by not properly providing patients with her new
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16 contact information after she resigned her employment. Plaintiff also alleges that Defendants
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17 “intentionally interfered with, and disrupted” the “economic relationship between herself and her

18 patients” by interfering with her “ability to continue caring for and treating many of her patients,

19 obtain referrals, and obtain and treat new patients.” (First Amended Complaint [“FAC”], 98-
1111

20 99, Ex. 1 to Declaration of Marcie Fitzsimmons in Support of Defendants’ Motions in Limine

21 [“Fitzsimmons Decl.”].)
.

22 As a result, on February 16, 2016, Defendant the Physician Group propounded

23 interrogatories requesting that Plaintiff identify each economic relationship with which Plaintiff

24 contends the Physician Group interfered. (F itzsimmons Decl. 1[9.) In her response, Plaintiff

25 identiﬁed approximately 38 patients, but only listed their initials. (Id.) After an extensive and

26 unsuccessful meet and confer effort, the Physician Group ﬁled a motion to compel further

27 responses, including seeking the names of the patients Plaintiff identiﬁed. (Fitzsimmons Decl.

28 1110.)
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DEFENDANTS’ JOINT MOTION IN LIMINE N0. 12
FOR SANCTIONS FOR PLAINTIFF’S REPEATED VIOLATION OF COURT ORDER
In her Opposition to the Physician Group’s motion to compel, Plaintiff’s counsel

expressed “serious concerns” that the Physician Group’s attorneys would “inappropriate[ly]”

contact and communicate with the patients identiﬁed in discovery. As a result, she asked the

Court to “include certain directives and guidelines
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as to how patient contacts can be conducted

by the attorneys.” (See Plaintiff’s Response to Separate Statement, 49:9-15, Ex. 8 to

Fitzsimmons Decl.) In particular, as set forth in pages 49-50 of her Response to Separate

Statement, Plaintiff requested the following “directives” with respect to contacting patients:
\OOO\IO\

(1) Any party contacting a patient must provide at least 72 hours’ notice to opposing
counsel, which must include the name of the patient to be contacted and all contact
information the attorney has for that patient;
10
(2) The patient must be told at the commencement of any contact that they do not need to
11 talk to the attorney;

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12 (3) The patient shall be provided with the opposing attomey’s name and telephone
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Suite 13

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14 (4) The patient must not be asked about his or her medical condition or treatments;
Street,

& Francisco,

15 (5) No attorney may threaten to take the patient’s deposition if they choose not to speak
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16
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275 (6) If a patient is going to be asked to sign an afﬁdavit or anything prepared in writing,
17
that statement must be provided to the opposing counsel at the same time it is
18
provided to the patient for signing.

19 (Plaintiﬂ‘s Response to Separate Statement, 49:16-50:16, Ex. 8 to Fitzsimmons Decl.) Plaintiff’s

20 counsel also indicated that she would comply with the same directives she had proposed. (Id.)

21 On June 16, 2016, the Court granted in part and denied in part the Physician Group’s

22 motion to compel. With respect to the interrogatories seeking the identiﬁcation of the patient
23 names, the Court stated in its Order:

24 This Court orders the disclosure of the names of patients because the information
is reasonably related to discovery of admissible evidence. However, the
25
disclosure is subject to existing stipulation for protective order and the directives
26 proposed in Plaintiff’s Separate Statement, pages 49-50.

27 (See June 16, 2016 Order [“June 2016 Order”], Ex. 9 to Fitzsimmons Decl.)

28
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DEFENDANTS’ JOINT MOTION IN LIMNE NO. 12
FOR SANCTIONS FOR PLAINTIFF’S REPEATED VIOLATION OF COURT ORDER
\) 1/

B. Plaintiff Violates the Court Order with Patient T.G.
On March 15, 2017, Plaintiffs counsel provided the Physician Group’s counsel with a
declaration signed by Patient T.G.1 (See March 15, 2017 Emails and Declaration of T.G, Ex. 10

to Fitzsimmons Decl.) Plaintiff’s counsel failed to provide a copy of the draﬁ declaration at the

same time
\DOGQONUI-PWNr—t

it was provided to Patient T.G. for signature, pursuant to the Court’s June 2016 Order.
When the Physician Group’s counsel pointed out this violation of the Court’s June 2016 Order,

Plaintiff’s counsel claimed that it was “inadverten ” and “unintentional” error and promised not

to do it again. (Id.)

C. Plaintiff Violates the Court Order Again with Patient M.F.
On April 12, 2017, Defendants deposed Patient M.F. pursuant to a subpoena which

contained a request for production of documents. (F itzsimmons Decl. 1116.) At her deposition,

2000
Patient M.F. produced documents and testiﬁed that Plaintiff s counsel initially contacted her
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Suite several months prior to her deposition in December 2016. (See December 2016 Emails, Ex. 11
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Street,
to Fitzsimmons Decl.; Deposition ofM.F., pp. 13:1-15:25, 17:20-25, 37:8-19, 8128-17, 93:5-10,
& Francisco,

Ex. 12 to Fitzsimmons Decl.) Plaintiff’s counsel failed to provide Defendants’ counsel with the
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requisite 72 hours’ notice that she would be contacting Patient M.F. in December 2016 or the
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patient’s contact information, pursuant to the Court’s June 2016 Order. (See June 2016 Order,
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Ex. 9 to Fitzsimmons Decl.
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1112.) In fact, the ﬁrst time Plaintiff indicated to Defendants’ counsel

that she intended to contact Patient M.F. was in March 2, 2017, not December 2016. (See March

2, 2017 Email, Ex. 13 to Fitzsimmons Decl.)

The documents produced by Patient M.F. at her deposition also reﬂected that Plaintiffs

counsel sent Patient M.F. a draﬁ declaration to sign on December 7, 2016. (See Draft

Declaration of Patient M.F., Ex. 11 to Fitzsimmons Decl.) Plaintiff s counsel failed to provide
Defendants’ counsel with a draft of the declaration at the same time it was provided to Patient
M.F. for signature, pursuant to the Court’s June 2016 Order. (See June 2016 Order, Ex. 9 to

Fitzsimmons Dec]. 1112.)

I
For the purposes of this motion, Defendants use only the patients’ initials for identiﬁcation purposes.
All parties know the patients’ true names.
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DEFENDANTS’ JOINT MOTION IN LIMINE NO. 12
FOR SANCTIONS FOR PLAINTIFF ’S REPEATED VIOLATION OF COURT ORDER
After Patient M.F.’s deposition, the Physician Group’s counsel pointed out this violation

of the Court’s June 2016 Order, and asked Plaintiffs counsel if there were any other patients
AWN whom she contacted in violation of that order. (See April 13, 2017 Email Correspondence, Ex.

15 to Fitzsimmons Decl.) In response, Plaintiffs counsel claimed that she stated in her

declaration in opposition to a Motion to Compel ﬁled in November 2016 that she had reached

out to two unidentiﬁed patients to obtain their authorization to produce un-redacted emails and
\DOONONLI’I

that Defendants’ counsel did not object to her communications with patients at that time. (Id.;

see also January 2017 Declaration of Theresa Barta [“Barta Decl.”] Filed in Support of

Plaintiffs Opposition, Ex. 14 to F itzsimmons Decl.) Plaintiffs counsel claimed that she
1o therefore did not “intentionally violate the courts order as [she] did not believe it applied.” (101.)

11 Plaintiffs counsel also admitted that in addition to Patient M.F, she had contacted another

2000
12 patient, Patient I.C., for the same reasons. (10].) Plaintiffs counsel did not provide any
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Suite 13 explanation for her other violations of the June 2016 Court Order (i.e. her failure to provide
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14 Defendants’ counsel with a draft of the declaration and failure to provide M.F. with Defendants’
& Francisco,

15 counsel’s contact information). (101.)
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16 The Physician Group’s counsel pointed out that Plaintiffs counsel represented to the
275
17 Court in her declaration under oath that she had “left further messages, but have not further

1s communicated with the patients.” (See April 13, 2017, Email Correspondence, emphasis added,

19 Ex. 15 to Fitzsimmons Decl.) Contraﬂ to Plaintiffs counsel’s representations to the Court in
20 her declaration Plaintiffs counsel had apparently also sent Patient M.F. numerous emails, which
21 Patient M.F. produced at her deposition. (See Emails, Ex. 11 to Fitzsimmons Decl.)

22 D. Plaintiff Violates the Court Order Again
23 On May 16, 2017, Plaintiff served Amended Responses to the Physician Group’s Special

24 Interrogatories, Set Nine, in which she identified ﬁve patients as having information in support

25 of her claims. (Fitzsimmons Decl. 1121.) Plaintiff did not provide the contact information for
26 these patients as requested, and stated that they could be contacted through Plaintiffs counsel.
27 (111.)As a result, on May 16, 2017, the Physician Group’s counsel asked Plaintiffs counsel

28 whether she represented those ﬁve patients, and if not, to provide their contact information. (See
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DEFENDANTS’ JOINT MOTION IN LIMINE NO. 12
FOR SANCTIONS FOR PLAINTIFF’S REPEATED VIOLATION OF COURT ORDER
May 16-17, 2017 Emails, Ex. 17 to Fitzsimmons Decl.) Plaintiffs counsel denied having any

contact with the ﬁve patients and claimed that she could not disclose their contact information

because of the patient-physician relationship. (Id.)

Later that day, Plaintiff s counsel sent Defendants’ counsel an email with those patients’
Lh-PWN

phone numbers, and stated in relevant part:

If you are willing to waive the 72 hour notice requirement. ..I can reach out to
them today and see if I am able to accept service on their behalf. ...If you are not
\OOOQO’N
willing to waive the 72 hour hold, then this is my notice that I will be reaching out
to the patients...Friday [May 19]. (Id.)

On May 16, 2017 at 12:10 p.m., the Physician Group’s counsel responded indicating:

10 “We will agree to waive the 72 hour notice requirement with respect to those 5 patients if you
11 likewise agree to waive it for us. Please advise.” (Id.) The following day, on May 17, 2017 at

2000
12 3:07 p.m., Plaintiffs counsel responded: “I’m responding to your email...I agree to mutual
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Suite 13 waiver of 72 hour notice...” (Id.)
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14 Following receipt of Plaintiffs counsel’s 3:07 pm. email, the Physician Group’s counsel
& Francisco,

15 reached out to the ﬁve patients. Two of those patients informed the Physician Group’s counsel
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16 that Plaintiffs counsel contacted them or attempted to contact them on the morning of May 17,

m
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17 the parties agreed to waive the 72 hour notice requirement. (See e.g. May 18, 2017 Email

18 and Declaration of K.M., Ex. 18 to Fitzsimmons Decl. 1124.) Another patient indicated that

19 Plaintiffs counsel attempted to contact him on May 15, two days m the parties had agreed to

20 waive the 72 hour notice requirement. (See e.g. May 18, 2017 Email and Declaration of AD.

21 Ex. 19 to Fitzsimmons Decl.)

22 When the Physician Group’s counsel confronted Plaintiffs counsel about again violating

23 the June 2016 Order by contacting the patients before the expiration of the 72 hour notice period

24 (which had not yet been waived by the Parties), Plaintiff s counsel admitted that she had

25 contacted one of the ﬁve patients, but claimed that if the other patients stated otherwise they are

26 “misrepresenting what occurred.” (See May 17 and May 22, 2017 Emails, Exs. l7 and 20 to
27 Fitzsimmons Decl.)

28
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DEFENDANTS’ JOINT MOTION IN LIMINE NO. 12
FOR SANCTIONS FOR PLAINTIFF’S REPEATED VIOLATION OF COURT ORDER
A.
111- W
The Court Has the Power to Sanction Plaintiff for Violation of a Court Order
California courts have inherent power to control proceedings before the court and to

4; preclude evidence and issues as sanctions for those who have misused the discovery process.

(See CCP § 128(a)(4)(5); CCP § 2023.030(b), (c); Peat, Marwick, Mitchell & Co. v. Sup. Ct.

(1988) 200 Cal.App.3d 272, 287 [“The court’s inherent power to curb abuses and promote fair

process extends to the preclusion
\OOOQON‘JI

of evidence.”].) It is entirely within the court’s discretion.
(Sauer v. Sup. Ct. (Oak Industries) (1987) 195 Cal.App.3d 213, 228 [trial court’s choice of
sanctions subject to appellate review only for abuse of discretion].) For example, the court may

1o order that designated facts “shall be taken as established” by the party adversely affected by the

11 discovery misuse or it may prohibit the party who committed such misuse from supporting or

2000
12 opposing designated claims or defenses. (CCP § 2023.030(b); see e.g. Vallbona v. Springer
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Suite 13 (1996) 43 Ca1.App.4th 1525, 1547-1548 [imposing issue sanction, which included a special jury
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14 instruction].) The comt may also impose an evidence sanction by an order prohibiting any party
& Francisco,

15 engaging in the misuse of the discovery process from introducing designated matters in evidence.
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16 (CCP § 2023.030(c); see e.g. Karlsson v. Ford Motor Co. (2006) 140 Ca1.App.4th 1202, 1218-
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17 1219 [imposing evidence sanctions precluding the manufacturer from introducing certain

13 evidence at trial]; Biles v. Exxon Mobile Corp. (2004) 124 Cal.App.4th 1315 [when a party

19 repeatedly and willfully fails to abide by the discovery rules, preclusion of that evidence may be
2o appropriate] .)

21 Such motions may be brought by a motion in limine. (See e.g. Sauer v. Super. Court,

22 supra, 195 Cal.App.3d at 216 [upholding trial court’s order granting motion in limine to exclude

23 evidence of economic loss as a sanction for non-compliance with court-ordered discovery];

24 Reedy v. Bussell (2007) 148 Cal.App.4th 1272 [upholding decision that raising sanctions via a

25 motion in limine was appropriate].)
26 ///
27 ///
28 ///
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DEFENDANTS’ JOINT MOTION IN LIMINE NO. 12
FOR SANCTIONS FOR PLAINTIFF’S REPEATED VIOLATION OF COURT ORDER
B. Plaintiff Should Be Sanctioned For Repeatedly Violating the Court Order
In order to be sanctioned for failing to obey a court order, the moving party need only

prove a failure to obey a court order. (Puritan Inc. Co. v. Sup. Ct. (1985) 171 Cal.App.3d 877,

884.)
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Thereafter, the burden of proof shifts to the party seeking to avoid sanctions to establish a
satisfactory excuse for his or her conduct. (Corns v. Miller (1986). 181 Ca1.App.3d 195, 201.)

Willfulness for failing to comply need only be shown with respect to the most severe terminating

sanctions. (Calvert Fire Ins. Co. v.Cropper (1983) 141 Cal. App. 3d 901, 904 [holding
\OOOQO"

dismissal sanction was not abuse of discretion] .) Even then, however,“[a] conscious or

intentional failure to act, as distinguished from accidental or involuntary noncompliance, is

10 sufﬁcient to invoke a penalty.” (Deyo v. Kilbourne, (1978) 84 Ca1.App.3d 771, 787-788.)

11 Here, not only has Plaintiff’ s counsel repeatedly violated the Court’s June 2016 order, but

2000
12 she has done so willfully.
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Suite 13 1. Plaintiff Repeatedly Failed to Comply with the June 2016 Order
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14 Plaintiff’s counsel violated the Court’s June 2016 Order by not following the “directives”
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15 that she proposed and were issued by the Court related to patient contact with at least six
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16 patients:
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17 (1) Plaintiff’s counsel sent T.G. a declaration to sign without providing it to Defendants’
counsel at the same time. This violated directive 6 in the June 2016 Order.
18

(2) Plaintiff‘s counsel sent M.F. several emails in December 2016, including a draft
19
declaration, without providing 72 hours’ notice to Defendants’ counsel, without
20 providing Defendants’ counsel with a copy of the draft declaration, and without
providing M.F. with Defendants’ counsel’s contact information. This violated
21 directives 1, 3, and 6 in the June 2016 Order.

22 (3) Plaintiff’ s counsel contacted LC. in December 2016 without providing 72 hours’
notice to Defendants’ counsel. This violated directive 1 in the June 2016 Order.
23
(4) Plaintiffs counsel contacted K.M. prior to providing 72 hours’ notice of contacting
24
him, which violated directive 1 in the June 2016 Order.
25
(5) Plaintiff’ s counsel contacted C.H. prior to providing 72 hours’ notice of contacting
26 her, which violated directive 1 in the June 2016 Order.

27 (6) Plaintiff’s counsel contacted A.D. prior to providing 72 hours’ notice of contacting
him, which violated directive 1 in the June 2016 Order.
28
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DEFENDANTS' JOINT MOTION INLIMNE NO. 12
FOR SANCTIONS FOR PLAINTIFF’S REPEATED VIOLATION OF COURT ORDER
\/ \_,'

2. Plaintiff’s Failure to Colv Was Willful
Although willfulness in failing to comply must only be proven to establish terminating

sanctions, it is clear that Plaintiff s counsel’s repeated violations of the June 2016 Order listed

above were
LII-[AWN
willful for a number of a reasons. Foremost, Plaintiffs counsel is the one who

proposed the directives restricting patient contact and even agreed to comply with the directives

at the time she proposed them to the Court in Opposition to the Physician Group’s Motion to

Compel. (See Plaintiffs Response to Separate Statement 49:13-15, Ex. 8 to Fitzsimmons Decl.)
\OOOVC‘

Plaintiffs counsel was well aware of the June 2016 Order and understood the serious

ramiﬁcations of violating the Order. Indeed, on one occasion she mistakenly accused the

10 Physician Group’s counsel of violating the June 2016 Order and threatened to seek an Order to

11 Show Cause as to why the Physician Group should not be sanctioned and found in contempt for

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12 violating the June 2016 Order. (See Email Correspondence dated July 8 to July 10, 2016, Ex. 21
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14 Sec—0nd, the fact that Plaintiff’s counsel violated the June 2016 Order with respect to _si_x
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15 patients in itself evidences willfulness. On each occasion in which the Defendants learned of
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16 the violations of the discovery order, the Physician Group’s counsel immediately confronted
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17 Plaintiff’s counsel about it. (See e.g. Ex. 10, 15, 20, Attached to Fitzsimmons Decl.) While she

18 admitted to the ﬁrst violation involving Patient T.G., Plaintiffs counsel provided transparently

19 disingenuous excuses for the other ﬁve violations.

20 By way of example, Plaintiff’s counsel denied that she “intentionally violated” the June

21 2016 Order, despite admitting in her declaration to a November 2016 Motion to Compel that she

22 had reached out to two patients (Patient M.F. and LC.) to obtain their authorization to produce

23 un-redacted emails related to them, because she did not think any of the discovery order

24 provisions applied when she contacted them and claimed that she did nothing wrong because

25 Defendants did not object to her declaration at that time. (See April 13, 2017 Email

26 Correspondence, Ex. 15 to Fitzsimmons Decl.) Plaintiff‘s counsel’s “explanation,” however, is

27 untenable because in her declaration to that motion, Plaintiffs counsel did not even disclose the

28 names of Patient M.F. and LC. in her declaration in order for Defendants to have known that the
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DEFENDANTS’ JOINT MOTION IN LIMINE NO. 12
FOR SANCTIONS FOR PLAINTIFF ’S REPEATED VIOLATION OF COURT ORDER
‘\/ VI

June 2016 Order applied. (See ﬂ 2 of Barta Declaration, Ex. 14 to Fitzsimmons Decl.)

Moreover, Plaintiff represented in her declaration that other than speaking with one of the
(unnamed) patients, she has “not further communicated with the patients.” (111.)Contrary to this

representation to the court under oath, Plaintiff’s counsel had in fact exchanged several emails
\lONUI-bl—DN

with M.F. PM to signing that declaration and had even sent her a draﬁ declaration at that time,

but she failed to disclose any of that information in her declaration or even afterwards. (See

December 2016 Emails, Ex. 11 to Fitzsimmons Decl.; Deposition of M.F., pp. 1321-15225,

00 17:20-25, 3718-19, 81 :8-17, 93:5-10, Ex. 12 to Fitzsimmons Decl.) Moreover, about three

months aﬁer improperly contacting Patients M.F. and LC, Plaintiff‘s counsel provided the 72
10 hours’ notice that she intended to contact them as if for the ﬁrst time under the June 2016 Order,
ll thereby further misleading cormsel about her contacts with them three months prior. (See March

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.12 2, 2017 Email, Ex. 13 to Fitzsimmons Decl.)
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Suite 13 By way of another example, Plaintiff‘s counsel initially claimed that she did not abide by
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14 the 72 hour notice requirement with respect to the ﬁve patients disclosed in Plaintiff 5 Amended
& Francisco,

15 Responses to the Physician Group’s Special Interrogatories, Set Nine, because she claimed that
Gordon

Case Info

Judge

Drew C. Takaichi Track Judge’s New Case

Case No.

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Document Filed Date

January 05, 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,Ex Parte: Diana Blum, MD vs Sutter Health et al

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