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Johnson v. Johns Hopkins University Applied Physics Laboratory LLC

United States District Court, Ninth Circuit

August 8, 2013



JEFFREY T. MILLER, District Judge.

Defendant Johns Hopkins University Applied Physics Laboratory LLC ("APL") moves for summary judgment on all claims asserted in Plaintiff Sajida Johnson's whistleblower complaint. Plaintiff opposes the motion and, alternatively, moves for summary judgment. For the reasons set forth below, the court grants APL's motion for summary judgment, denies Plaintiff's motion for summary judgment, and instructs the Clerk of Court to close the file.


The Claims

On June 5, 2012, Plaintiff commenced this action in the Superior Court for the County of San Diego by alleging two causes of action for (1) retaliation for refusing to participate in conduct violating Labor Code §§1102.5 and 1102.6 and (2) wrongful termination in violation of public policy. In broad brush, Plaintiff alleges that she blew the whistle on APL's wrongful conduct and, as a consequence, suffered a retaliatory discharge. On July 11, 2012, APL removed this diversity action to this court. (Ct. Dkt. 1).

Plaintiff's Employment with APL

On June 28, 2010, Plaintiff was hired by CDI Corporation as an analyst for a leased-worker position with APL. (Johnson Depo. 17:10-19:1). Plaintiff was then employed by APL from about June 2010 through December 23, 2011 as a Business Analyst and later as a Project Manager. (Compl. ¶9). From June 28, 2010 thru June 2011, Plaintiff worked on various projects at Camp Pendleton. In early to mid 2011, APL offered Plaintiff a full-time position as an APL employee. Plaintiff declined the offer because she could make more money as a leased-worker with CDI. (Id. at 27:19-29:8).

In July 2011, the Bureau of Navy Medicine and Surgery ("BUMED"), the agency that oversees Navy Medicine and the Naval Medical Centers, retained APL to perform a process improvement project located at the Naval Medical Center in Portsmouth, Virginia ("NMCP"). APL has a multi-faceted contract with the U.S. Naval Sea Systems Command ("NAVSEA"), under which there is a task order with BUMED for APL to provide performance improvement services to Navy Medicine. (Ward Depo. 28:20-30:6; 99:21-101:13). When a specific contract is assigned to APL under the contract, BUMED generally creates a statement of work defining the scope of the project. (Id. at 101:14-102:22). Tim Ward ("Ward"), BUMED's Deputy Director of the Office of Program Analysis and Evaluation, is responsible for determining the scope of the project, to ensure the contractors follow the scope, and to ensure that the project's deliverables are achieved. (Id. 30:19-31; 47:5-48:6). Ward was the sponsor of the BUMED/APL contract at issue. (Id. at p.47:19-22).

In order to carry out the performance improvement project at NMCP, APL assigned Plaintiff as the Project Manager. APL also assigned Leon Stafford to assist her and Kara Tuohey, APL's Chief Engineer, as a technical advisor. (Tuohey Depo. 19:10-13; 29:9-13). The performance improvement project was requested by BUMED. BUMED tasked APL to build a spine template that had been recommended by the Navy's Musculoskeletal Continuum of Care Advisory Board ("MCCAB").

Ward's Testimony, Generally

Ward testified that, from BUMED's perspective, the project had several different objectives. (Ward Depo. 24:4-5). The primary purpose of the project "was to look at the functioning of AHLTA (Armed Forces Health Longitudinal Technology Application, the military's online electronic medical record system) in orthopedic clinics and to see if there was anything that could be done to improve how the providers use AHLTA, and to improve the amount of time that the providers have to [] interact with AHLTA versus interacting with the patients." (Ward Depo. 25:6-15). BUMED also wanted to determine whether the time spent in AHLTA by physicians could be reduced, whether patient flow could be improved, whether referrals by primary care physicians to orthopedists could be reduced, and whether the number of patients seen by orthopedic surgeons could be increased. (Id. 23:20-28:19). Ward also testified that physicians spend as much time documenting in AHLTA as they do talking to patients and that trying to improve the use of AHLTA was one of the goals of the project. (Id. 15:5-10). Ward also testified that an average primary care appointment took 10 to 15 minutes 15 years ago but today each appointment is 20 minutes. (Id. 23:8-11). Ward also noted that orthopedic injuries are the number one reason that active duty Navy personnel are unable to perform their duties.

Ward also testified that one difficulty with the project was implementation by primary care physicians. Ward cited studies indicating that compliance by primary care physicians with new clinical practice guidelines ("CPGs"), such as implementation of the proposed spine template, is less than 25%. (Id. 18:9-16). From the inception of the project, Ward did not have "any great expectations that the primary care doctors were going to follow the template." (Id. 22:16-17).

Ward explained that BUMED's projects are broken into four phases or parts: scoping, diagnostic, implementation, and sustainment. The spine project template ended at the end of the diagnostic phase of the project. Ward directed the project to stop because there was "no significant findings of where to move that future state (phase), and there was no implementation plan of how to actually get to that result. There was nothing to implement." (Id. 64:2-15). Ward met with Captain Daniel Unger, M.D. ("Unger") to discuss his decision to end the project and told him that APL was going to complete and hand over the template for the NMCP to implement. One part of the project, called the AIM form (the history and physical exam for people with back pain), was developed by APL and has been adopted by BUMED. (Unger Depo. 42:4-12).

Captain Unger's Testimony, Generally

Unger, chairman of the MCCAB and an orthopedic surgeon at NMCP, served as clinical organizer or champion for the project, overseeing the clinical content for the template. Unger, a former chairman of MCCAB, "thought it would be of benefit for the Navy... [to] come up with a centralized, consistent spine template to evaluate back pain that would incorporate the CPGs within the template so there would be consistent evaluation and treatment throughout the Navy following the clinical practice guidelines...." (Unger Depo. 13:8-23). After several meetings with MCCAB members, Unger testified that "it became obvious that the AHLTA infrastructure would not allow us to develop a comprehensive spine template from the subjective and objective all the way through the assessment and plan." (Id. 16:16-20). Staff at the hospital made Unger aware of this fact. (Id.17:1-2). Unger also testified that decreasing inappropriate referrals was not necessarily one of the objectives of the study. His "hope" for the project was "to standardize the evaluation and treatment per the clinical practice guidelines Navy-wide and potentially DOD-wide so bottom line is to provide consistent and thorough care throughout the enterprise for back pain. I think the offshoot from other perspectives was that it may impact clinical referral patterns and things like that." (Id. at 9.18:16-22). He also noted that the development of a spine template could, if successful, result in fewer inappropriate referrals and fewer MRIs ordered. (Id. at 19:5-11).

Unger identified that the use of the template, if successful, would result in improved patient care. (Id. 37:4). Even if the number of referrals to a specialist did not decline under the project, the project would be a success "because it would standardize the documentation and the diagnosis and give treatment, standardized treatment algorithms per the CPGs for low back pain to primary care providers who at the current state do not have such a template to go by." (Id. 38:17-22). No one at APL ever told Unger that the template could reduce inappropriate referrals. (Id. 19:12-16). Unger never focused on whether the template would reduce inappropriate referrals. (Id. 33:8-19). Unger learned in October or November 2012 that the project would not proceed to the implementation phase. (Id. 39:8-12; Johnson Decl. ¶7).

In Unger's view, there were two reasons why the project was not successful. First, there was a technical issue with the AHLTA system that was not compatible with the spine template and, second, the "primary care physicians were mandated to use the Tri-Service workflow and they couldn't use any other template." (Id. 43:20-44:4).

Plaintiff's Testimony, Generally

Plaintiff declares that Ward "exercised inappropriate influence over the direction of the project." (Johnson Decl. ¶4). APL "was supposed to take its direction from Captain Unger" because MCCAB was the client. However, Ward took a different approach to the project and provided contradictory direction to APL concerning the scope of the project. (Id. ¶5). "The scope of the project was never clearly defined and throughout the life of the project, the scope continually changed." (Id. ¶8). The goals of the project included making AHLTA ...

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