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Expert witnesses have been dropping fast in a former Lawrence Livermore National Laboratory employee’s long-running suit for wrongful termination. The case is headed to retrial this week precisely because the 1st District Court of Appeal last year threw out statements by an expert witness for plaintiff Dee Kotla. The court deemed that industrial psychologist Jay Finkelman’s statements regarding indicators of the lab’s alleged retaliation had been “decisive” in swaying an Alameda County, Calif., jury toward a $1 million award for Kotla. The justices tossed Finkelman’s assessment of the situation because they said it had not required an expert opinion. Though plaintiff attorney Gary Gwilliam remained confident — “It was a good case then, and it’s a good case now” — the appeal court ruling seemed to give an advantage in the retrial to the defense. But, late last week, the defense lost two of its own expert witnesses because its counsel missed a filing deadline. On Thursday, Alameda County Superior Court Judge Patrick Zika approved Kotla’s motion to exclude their testimony. Both witnesses — damages expert Jerald Udinsky and emotional distress expert Dr. Michael Mandel — had testified in the first trial. Patricia Gillette, a partner with Heller Ehrman White & McAuliffe who is representing the Regents of the University of California, declined comment on the case, which is scheduled to move into opening statements Thursday. Gwilliam, who is fighting to retain some part of his star witness’s testimony in the retrial, predicted that the loss of the two damages witnesses would be a big blow to the defense. “They don’t really have any experts on damages. That’s important,” Gwilliam said. “They don’t have anybody to rebut our damages claim.” Kotla, a former computer support technician, has been battling the University of California since 1997, when she was fired, allegedly for making personal phone calls and using lab computers to run an outside business. Kotla claimed that the real reason she was fired was in retaliation for her deposition testimony on behalf of a co-worker who had made accusations of sexual harassment. Finkelman testified that negative comments the lab attorney made about Kotla as well as other factors indicated that she had been fired in retaliation. Gwilliam defended Kotla by pointing to what he called a 14-year spotless record at the lab. He said the personal phone calls amounted to only $4.30 and that rather than using her computer to run a business, Kotla had simply converted a computer disk for a friend with her supervisor’s approval. Jurors agreed, and awarded Kotla $1 million in damages in 2002, later reduced to $745,000 by Alameda County Superior Court Judge Yolanda Northridge. Several of the major players in the first round of Kotla v. Regents of the University of California are gone. Besides the new judge, there’s a new defense team. Defense attorney Gillette replaces Littler Mendelson attorneys Eric Grover and Barbara Russell, who represented the Regents during the first trial. Grover referred questions on the change to Lawrence Livermore attorneys. The lab attorneys declined comment on the case. Gwilliam, by contrast, is an old hand at suits involving Lawrence Livermore. The partner in Oakland’s Gwilliam, Ivary, Chiosso, Cavalli & Brewer has represented plaintiffs in several other suits against the lab, including a sexual harassment class action that settled in 2003 for $9.7 million. His co-counsel in the Kotla case is Clayton solo Jan Nielsen. Judge Zika is expected to rule today on whether Finkelman can testify in any way in the retrial. With Finkelman’s testimony at minimum curtailed, Gwilliam said he will call other witnesses and emphasize evidence of how the lab disciplined other employees for using work computers improperly. Gwilliam believes some employees with more egregious misuse were disciplined less harshly than his client. “We want to know, are they consistent in the way [they are] disciplining people?” he said. “It’s like sentencing someone to death for running a stop sign.”

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