Brazill v. California Northstate College of Pharmacy, LLC et al

Filing 43

FINAL PRETRIAL ORDER signed by Senior Judge William B. Shubb on 10/15/13 ORDERING the Trial SET for 2/4/2014 at 09:00 AM in Courtroom 5 (WBS) before Judge William B. Shubb. A Settlement Conference is SET for 12/3/2013 at 9:00 AM in Courtroom 25 (KJN) before Magistrate Judge Kendall J. Newman. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRADLEY BRAZILL,
Plaintiff,

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NO. CIV. 2:12-01218 WBS GGH
FINAL PRETRIAL ORDER

v.
CALIFORNIA NORTHSTATE COLLEGE
OF PHARMACY, LLC,
Defendant.

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A Final Pretrial Conference was held in this matter,

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pursuant to the provisions of Rule 16(d) of the Federal Rules of

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Civil Procedure and Local Rule 16-282, on October 15, 2013.

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Manolo Olaso appeared as counsel for plaintiff; William Munoz

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appeared as counsel for defendant. Following the hearing, the

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court enters this Final Pretrial Order:

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I.

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Jurisdiction – Venue
Jurisdiction is predicated upon 28 U.S.C. § 1331

because plaintiff’s case arises under the Age Discrimination in
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Employment Act, 29 U.S.C. 621 et seq.

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is based on 28 U.S.C. § 1367.

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found to be proper.

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II.

Supplemental jurisdiction

Venue is undisputed and is hereby

Jury – Non-Jury

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Both parties have requested a jury trial.

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the action shall be tried, pursuant to Federal Rule of Civil

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Procedure 48, before a jury consisting of no less than six and no

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more than twelve members.

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III. Jury Instructions and Proposed Form of Verdict

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Accordingly,

No later than ten court days before the trial date,

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counsel for plaintiffs shall lodge and serve, pursuant to Local

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Rule 51-163, copies of all jury instructions that plaintiffs

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request be given on plaintiffs’ claims.

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for plaintiffs shall also file and serve a copy of a proposed

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form of verdict.

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At that time, counsel

No later than seven court days before the trial date,

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counsel for defendants shall file and serve any objections to the

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instructions proposed by plaintiffs.

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for defendants shall lodge and serve, pursuant to Local Rule 51-

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163, copies of any and all jury instructions not already proposed

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by plaintiffs, which defendants request be given.

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time, counsel for defendants shall file and serve a copy of any

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proposed form of verdict and shall also file any objections to

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plaintiffs’ proposed form of verdict.

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At the same time, counsel

Also at that

No later than four court days before the trial date,

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counsel for plaintiffs shall file and serve any objections to the

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instructions proposed by defendants and to any proposed form of

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verdict.
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Pursuant to Local Rule 51-163, any other instructions

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thereafter presented will be refused unless it is shown either:

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(1) that the necessity for the request arose in the course of

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trial; could not reasonably have been anticipated prior to trial

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from the pleadings, discovery or nature of the action; and the

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request for such additional instructions is presented to the

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Court as promptly as possible; or (2) that the refusal to give

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such instructions would constitute plain error.

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Likewise, any objections to proposed instructions not

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made in accordance with this order will be overruled as untimely

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unless it is shown either:

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in the course of trial and the intention to make such objections

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is communicated to the Court as promptly as possible, or (2) that

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the giving of such instructions would constitute plain error.

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IV.

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(1) that the grounds therefor arose

Voir Dire Questions
No later than fourteen calendar days before the trial

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date, counsel for each party shall submit all proposed jury voir

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dire questions.

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within which to question potential jurors.

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V.

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Each side shall have no more than one hour

Trial Briefs
No later than fourteen calendar days before the trial

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date, counsel for each party shall file trial briefs pursuant to

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Local Rule 16-285.

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VI.

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Remaining Claims
Plaintiff’s remaining claims against defendant are: (1)

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age discrimination in violation of the Age Discrimination in

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Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.; (2) age

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discrimination in violation of the California Fair Employment and
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Housing Act (“FEHA”), Cal. Gov’t Code § 12900 et seq.; (3)

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wrongful termination in violation of public policy based on

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violations of ADEA and FEHA.

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VII. Witnesses

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(A)

identified at Exhibit “A” attached hereto.

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(B)

Defendants anticipate calling the witnesses

identified at Exhibit “B” attached hereto.

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Plaintiffs anticipate calling the witnesses

(C)

Except for retained experts, each party may call

any witness designated by any other party.

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(D)

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trial unless:

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No other witnesses will be permitted to testify at

(1)

all parties stipulate that the witness may

(2)

the party offering the witness demonstrates

testify;

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that the witness is for the purpose of rebutting evidence which

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could not have been reasonably anticipated at the time of the

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Pretrial Conference; or

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(3)

the witness was discovered after the Pretrial

Conference.
(E)

Testimony of a witness not designated in this

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Order, which is offered under paragraph VII(D)(3), above, upon

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the grounds that the witness was discovered after the Pretrial

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Conference, will not be permitted unless:

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(1)

the testimony of the witness could not

reasonably have been discovered prior to the Pretrial Conference;
(2)

the court and opposing counsel were promptly

notified upon discovery of the testimony; and
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(3)

counsel proffered the witness for deposition

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if time permitted or provided all opposing counsel a reasonable

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summary of the testimony if time did not permit a deposition.

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VIII. Exhibits

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(A)

at Exhibit “C” attached hereto.

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(B)

(C)

(D)

No other exhibits will be received in evidence

unless:

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Each party may offer any exhibit designated by any

other party.

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Defendants intend to offer the exhibits identified

at Exhibit “D” attached hereto.

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Plaintiffs intend to offer the exhibits identified

(1)

all parties stipulate that the exhibit may be

received in evidence;

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(2)

the party offering the exhibit demonstrates

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that the exhibit is for the purpose of rebutting evidence which

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could not have been reasonably anticipated at the time of the

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Pretrial Conference; or

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(3)

the exhibit was discovered after the Pretrial

Conference.
(E)

An exhibit not designated in this Order, which is

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offered under paragraph VIII(D)(3), above, upon the grounds that

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the exhibit was discovered after the Pretrial Conference, will

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not be received in evidence unless:

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(1)

the exhibit could not reasonably have been

discovered prior to the Pretrial Conference;
(2)

the court and opposing counsel were promptly

notified upon discovery of the exhibit; and
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(3)

counsel provided copies of the exhibit to all

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opposing counsel if physically possible or made the exhibit

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reasonably available for inspection by all opposing counsel if

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copying was not physically possible.

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(F)

Each party shall exchange copies of all exhibits

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identified in this Order, or make them reasonably available for

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inspection by all other parties, no later than seven calendar

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days before the trial date.

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exhibits shall be filed and served not later than four calendar

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Any and all objections to such

days before the trial date.

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(G)

The attorney for each party is directed to appear

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before trial and present an original (and if physically possible

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one copy) of each exhibit to Deputy Clerk Karen Kirksey Smith at

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8:30 a.m. on the date of trial.

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(H)

Each exhibit which has been designated in this

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Order and presented on the morning of the date of trial shall be

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pre-marked by counsel.

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defendants’ exhibits shall bear letters.

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been made to such exhibit pursuant to paragraph VIII(F), above,

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such exhibit will require no further foundation and will be

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received in evidence upon the motion of any party at trial.

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IX.

Plaintiffs’ exhibits shall bear numbers;
If no objection has

Further Discovery and Motions

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No further motions shall be brought before trial except

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upon order of the court and upon a showing of manifest injustice.

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Fed. R. Civ. P. 16(e).

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except by the express stipulation of all parties or upon order of

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the court and upon a showing of manifest injustice.

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X.

No further discovery will be permitted

Use of Depositions or Interrogatories
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Id.

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No later than twenty calendar days before the trial

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date, counsel for each party shall file and serve a statement

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designating all answers to interrogatories and all portions of

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depositions intended to be offered or read into evidence, with

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the exception of portions to be used only for impeachment or

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rebuttal.

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counsel for any other party may file and serve a counter-

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designation of other portions of the same depositions intended to

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be offered or read into evidence and may file evidentiary

No later than ten calendar days before the trial date,

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objections to any other parties’ designation.

No later than

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seven calendar days before the trial date, the parties may file

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evidentiary objections to any other party’s counter-designation.

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XI.

Date and Length of Trial

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The trial is set for February 4, 2014, in Courtroom No.

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The court estimates that the trial will last approximately

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five to seven days.

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XII.

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Daubert Procedure
Any challenges based on Daubert v. Merrell Dow

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Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v.

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Carmichael, 119 S. Ct. 1167 (1999) will be raised and resolved

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outside the presence of the jury just prior to when the

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challenged expert will be called to give testimony.

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challenged expert shall be present for such a challenge, and

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shall be available for questioning.

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XIII.

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Any

Evidence Presentation Equipment
If any party feels that electronic presentation of

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evidence is necessary, they should contact the Courtroom Deputy

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prior to trial to determine what equipment the court has and how
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to use that equipment or bring their own audio visual equipment

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to the courtroom and be prepared to operate it themselves.

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XIV.

Settlement Conference

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A Settlement Conference is set in this action on

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December 3, 2013, at 9:00 a.m., in the Chambers of Magistrate

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Judge Kendall J. Newman.

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Each party is ordered to have a principal with full

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settlement authority present at the conference or be fully

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authorized to settle the matter on any terms.

No later than

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seven days before the date of the Settlement Conference, counsel

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for each party shall submit a confidential Settlement Conference

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Statement to the settlement judge.

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filed, but shall be delivered to the chambers of the settlement

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judge, in hard copy.

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XV.

Such statements shall not be

Objections to Pretrial Order

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Any objections or suggested modifications to this

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Pretrial Order shall be filed and served within five court days

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from the file-stamped date of this Order.

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to the date of this Order shall refer to the date the tentative

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order is filed and not to the date any amended order is filed.

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If no objections or modifications are made, this Order will

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become final without further order of the Court and shall control

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the subsequent course of the action, pursuant to Rule 16(e) of

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the Federal Rules of Civil Procedure.

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Dated:

October 15, 2013

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All references herein

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Exhibit A: Plaintiffs’ Witnesses

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(1)

Plaintiff Bradley Brazill;

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(2)

Stacey Brazill, wife of plaintiff Bradley Brazill;

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(3)

Gerald Glazer;

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(4)

David Hawkins;

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(5)

Dr. David Carroll, employee of California Northstate ;

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College of Pharmacy (CNCP);

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(6)

Dr. Lane Brunner, employee of CNCP;

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(7)

Dr. Grant Lackey;

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(8)

Dr. Jennifer West;

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(9)

Dr. Sonya Frausto, employee of CNCP;

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(10)

Sara Fox;

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(11)

Karen Sproats;

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(12) Dr. Maureen Lloy;

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(13) Tosha Cherry (expert witness);

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(14) Craig M. Enos (expert witness);

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(15) Peter Samuels (expert witness).

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Exhibit B: Defendants’ Witnesses

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(1)

Plaintiff Bradley Brazill;

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(2)

Stacey Brazill, wife of plaintiff Bradley Brazill;

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(3)

Chike Okolo;

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(4)

David Hawkins;

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(5)

Alvin Cheung, President of CNCP;

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(6)

Norman Fong;

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(7)

Yasmin Vera;

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(8)

Kiki Forsyth;

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(9)

Paul Wagstaffe;

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(10) David Carroll;

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(11) Grant Lackey;

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(12) Jennifer West;

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(13) Sonya Frausto;

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(14) Lane Brunner;

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(15) James Palmieri;

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(16) Sara Fox;

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(17) Karen Sproats;

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(18) Maureen Lloy;

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(19) Paul Nguyen;

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(20) Mary Farrell (expert witness);

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(21) William Munoz;

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(22) Gregory Bastian.

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Exhibit C: Plaintiffs’ Exhibits

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(1)

Plaintiff’s offer letter from CNCP dated April 8, 2009;

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(2)

Plaintiff’s CNCP health/dental/retirement benefits

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manual;

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(3)

CNCP 2009-2011 Faculty Handbook;

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(4)

WASC Report (Visting Team, October 2010);

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(5)

Emails between plaintiff and Yasmin Vera regarding Dr.

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Grant Lackey;
(6)

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Yasmin Vera talking points regarding Dr. Grant Lackey
dated June 28, 2011;

(7)

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CNCP Separation Agreement and General Release prepared
for plaintiff;

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(8)

CNCP notice to employee of change in relationship;

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(9)

CNCP letter regarding final paycheck dated July 15,

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2011;

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(10) CNCP correspondence;

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(11) Emails exchanged between Gerry Glazer and attorneys for

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CNCP regarding plaintiff’s EEOC documents;

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(12) Plaintiff’s EEOC and DFEH materials (charges of

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discrimination; correspondence; right-to-sue letters);

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(13) Plaintiff’s Curriculum Vitae;

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(14) Report of Craig M. Enos (including exhibits A-L of the

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report);

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(15) Report of Tosha Cherry;

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(16) Report of Peter Samuels;

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(17) Plaintiff’s W-2 forms for 2009-2012;

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(18) Plaintiff’s pay stubs for 2009-2013;

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(19) Bureau of Labor Statistics (Employment and Wages;
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Summaries; 2009-2012; Education Administrators;

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Pharmacists);

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(20) Confirmation of plaintiff’s appointment as Lecturer at
UC Davis School of Medicine dated September 21, 2012.
(21) Discovery documents, including:
(a) Defendant’s responses to plaintiff’s
interrogatories Nos. 8, 10, 11, 12, 24, 25;

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(b) Deposition testimony of Dr. Lane Brunner;

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(c) Deposition testimony of Dean David Hawkins;

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(d) Deposition testimony of Sonya Frausto.

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Exhibit D: Defendants’ Exhibits
(1)

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April 8, 2009 Letter from David Hawkins to Bradley
Brazill;

(2)

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August 6, 2009 Employee Handbook & At-Will Employee
Status Acknowledgement;

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(3)

July 15, 2010 CNCP Honor Code;

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(4)

CNCP Faculty Handbook 2010-2011;

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(5)

August 1, 2010 Personnel Action Request for Bradley

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Brazill;
(6)

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Happens when men bake valentine cookies”;
(7)

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March 10, 2011 Bradley Brazill e-mail entitled “What

July 15, 2011 Notice to Employee as to Change in
Relationship;

(8)

July 21, 2011 email from Dean David Hawkins to faculty

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re: appointment of Sonya Frausto as Interim Department

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Chair;

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(9)

August 1, 2011 Personnel Action Request for Sonya
Frausto’s appointment to Interim Department Chair;

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(10) Curriculum Vitae of James Palmieri, Pharm.D;

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(11) November 3, 2011 itinerary for James Palmieri candidate

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interview;

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(12) August 5, 2013 report of Mary Farrell;

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(13) Subpoenaed records from Apothecary Botanica dba El

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Macero Pharmacy;

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(14) Plaintiff’s blog posts from Student Doctor’s Network;

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(15) Plaintiff’s e-mail with North Korean leader’s photo;

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(16) Plaintiff’s e-mail with Chike Okolo Taliban fighter

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picture;
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(17) Plaintiff’s applications declining health care coverage
(personnel file);

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(18) Plaintiff’s personnel file;

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(19) Yasmin Vera’s memorandum re: Brazill investigation;

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(20) Discovery documents, including:

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(a) Plaintiff’s initial and supplemental Rule 26
disclosures;
(b) Deposition transcript of Bradley Brazill, volumes I
and II;

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(c) Deposition transcript of David Hawkins;

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(d) Deposition transcript of Sonya Frausto;

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(e) Deposition transcript of Lane Brunner.

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