Coleman, et al v. Schwarzenegger, et al

Filing 6288

ORDER signed by District Judge Kimberly J. Mueller on 9/17/19 ORDERING that Evidentiary Hearing is SET for 10/15/2019 at 09:00 AM in Courtroom 3 (KJM) before District Judge Kimberly J. Mueller. Plaintiffs' request that the court grant the partie s leave to depose Dr. Kuich during the week of 9/16/19 has been GRANTED, with the deposition to occur on Thursday, 9/19/19. The following schedule for exhibits, proposed by Plaintiffs, is ADOPTED with the reminder that the hearing will be narrowly focused as described in this order. 9/24/19: Last day for parties to exchange evidentiary exhibits they will seek to offer at the hearing. 10/1/19: Last date for parties to exchange any demonstrative exhibits they will seek to offer at the hearing. 10/8/19: Last day for parties to file a joint list of evidentiary exhibits and a joint list of demonstrative exhibits they may seek to present at the hearing. Plaintiffs are GRANTED fourteen days from the date of this order to file and serve a response to Defendants' proposal for remedying the misleading information contained in timely psychiatry performance reports and documents generated therefrom. (Filing Deadline: 9/24/2019(Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RALPH COLEMAN, et al.,

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Plaintiffs,

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v.

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No. 2:90-cv-0520 KJM DB P

ORDER

GAVIN NEWSOM, et al.,

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Defendants.

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As required by the court’s August 14, 2019 order, ECF No. 6242, the parties have

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filed responses to that order. ECF No. 6255 (Plaintiffs’ Response); ECF No. 6257 (Defendants’

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Response). The court has reviewed those responses and now makes the following orders.

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1. Without objection, the court’s evidentiary hearing to address specific issues

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arising from the Golding Report and the Neutral Expert Report, as described in the August 14, 2019

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order, is set for October 15, 2019 beginning at 9:00 a.m.1

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2. The evidentiary hearing will cover the following issues as discussed in the August

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14, 2019 order:

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The court is advancing the start time for the hearing to 9:00 a.m., from the 10:00 a.m. time
previously contemplated.
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a. Issue B: Redefining “Monthly” to Lengthen the Intervals between

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Enhanced Outpatient (EOP) Appointments;

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b. Issue E: Reporting of Scheduled and Missed Appointments; and

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c. Issue F: Psychiatric Supervisors Acting As Line Staff.

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As discussed in the August 14, 2019 order, as to each of these issues the hearing

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will be narrowly focused by the court’s questions designed to assist the court in understanding both

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how and why misleading information in each of the three areas was developed and presented to the

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court and/or the Special Master. The court also anticipates asking selected questions directed to

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clarifying the context in which the misleading information was generated and presented. The court

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may also ask questions concerning remedial steps to cure the misrepresentations retrospectively

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and prospectively, to clarify steps already taken or that the court may consider ordering.

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As discussed below, the court anticipates hearing testimony from several witnesses

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identified below. Each witness will be questioned first by the court, with the parties permitted to

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ask follow-up questions within the parameters defined by the court’s questioning. The parties will

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be permitted to call rebuttal witnesses at the conclusion of the hearing only if allowed by the court,

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upon a showing that the testimony of any such witness is material to the court’s inquiry and

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necessary to a complete and just resolution of the issues.

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3. Witnesses will be called in the following order and will be questioned about one
or more issues, as described below.

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a. Dr. Michael Golding: Issues B, E, and F. The court currently anticipates

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the primary focus of its questioning of Dr. Golding will be on when he learned of the facts

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surrounding each issue, what steps he took to address each issue internally, and his views, if any,

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about why one or more issues could not be resolved successfully internally and prior to presentation

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of misleading information to the court and/or the Special Master.

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b. Former Deputy Director Katherine Tebrock: Issues B, E, and F.

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c. Dr. David Leidner: Issues B and E.

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d. Dr. Laura Ceballos: Issues B and E.

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e. Assistant Deputy Director Angela Ponciano: Issue F.
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f. Dr. John Rekart: Issue E.

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g. Assistant Deputy Director Brittany Brizendine: Issue F.

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h. Nicholas Weber, Attorney with Office of Legal Affairs for the
California Department of Corrections and Rehabilitation (CDCR): Issues
B, E, and F.

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i. Melissa Bentz, Attorney with Office of Legal Affairs for the CDCR:
Issues B, E, and F.
j. Deputy Legal Affairs Secretary Rei Onishi: Issues B, E, and F.

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In addition, the court finds Dr. Kevin Kuich may have testimony relevant and

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material to issues E and F, and possibly B. Dr. Kuich has informed the court and plaintiffs’ counsel

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that he is unavailable to testify in open court at the time set for hearing. Plaintiffs’ request that the

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court grant the parties leave to depose Dr. Kuich during the week of September 16, 2019 has been

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GRANTED, with the deposition to occur on Thursday, September 19, 2019. The court directs the

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parties to inquire generally as to whether Dr. Kuich has information relevant to the court’s inquiry

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about how and why misleading information was presented to the court and/or the Special Master

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in the three areas encompassed by issues B, E, and F. If he does, the parties should clarify through

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focused deposition questions when he learned of any facts related to an issue, what steps he took,

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if any, to address each issue internally, and his views, if any, about why one or more issues could

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not be resolved successfully internally and prior to presentation of misleading information to the

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court and/or the Special Master.

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4. The following schedule for exhibits, proposed by plaintiffs, is adopted with the
reminder that the hearing will be narrowly focused as described in this order.
a. September 24, 2019: Last day for parties to exchange evidentiary exhibits
they will seek to offer at the hearing.
b. October 1, 2019: Last date for parties to exchange any demonstrative
exhibits they will seek to offer at the hearing.
c. October 8, 2019: Last day for parties to file a joint list of evidentiary
exhibits and a joint list of demonstrative exhibits they may seek to present at the hearing.
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The court expects the parties to meet and confer on or before October 6, 2019 in an

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effort to resolve any evidentiary objections that may be raised in response to proposed exhibits.

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Any objections that cannot be resolved by the parties shall be filed with the court on October 8,

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2019 with the lists of joint exhibits.

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5. Defendants are granted fourteen days from the date of this order to file and serve

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evidence in support of the assertion in their response to the court’s August 14, 2019 order that they

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“did not modify the business rule timely psychiatry contacts conducted for patients in the ASU

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EOP Hub program” and their corresponding assertion that they “no longer need[ ] to resubmit the

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five ASU EOP Hub certification letters” they previously represented contained misleading data.

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See ECF No. 6257 at 27.

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6. Plaintiffs are granted fourteen days from the date of this order to file and serve a

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response to defendants’ proposal for remedying the misleading information contained in timely

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psychiatry performance reports and documents generated therefrom. See ECF No. 6257 at 27-29.

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IT IS SO ORDERED.
DATED: September 17, 2019.

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UNITED STATES DISTRICT JUDGE

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