Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 At issue are Defendants Sunstone Hotels Investors, L.L.C.'s and Sunstone Hotels 18 Investors, L.P.'s Motion for Summary Judgment (Doc. 141), Defendants' Motion in Limine 19 No. 1 to Exclude Matthew Freije (Doc. 145), Defendants' Motion in Limine No. 2 Regarding 20 Evidence of Subsequent Remedial Measures (Doc. 162), Defendants' Motion in Limine No. 21 3 Regarding Water Testing (Doc. 163), and Defendants' Motion in Limine No. 8 Regarding 22 Sudbeck v. Sunstone Hotel Properties, Inc., CV-04-1535-PHX-JWS (Doc. 164). 23 I. 24 Plaintiffs Marvin and Gloria Sapiro (individually, "Marvin" or "Gloria") stayed at 25 Defendants' Sheraton San Marcos Golf Resort and Conference Center (the "San Marcos") 26 located in Chandler, Arizona from February 6 to February 11, 2003. Plaintiffs returned home 27 to Florida, and on February 12, 2003 Marvin began to experience flu-like symptoms. On 28
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NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Marvin Sapiro and Gloria Sapiro, his wife,) ) ) Plaintiffs, ) ) vs. ) ) Sunstone Hotels Investors, L.L.C.;) ) Sunstone Hotels Investors, L.P., ) ) Defendants. ) ) )

No. CV-03-1555-PHX-SRB ORDER

BACKGROUND

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February 16, 2003, Marvin was admitted to the Delray Medical Center in Delray Beach, Florida where he was diagnosed with Legionnaires' Disease. Tests of the water at the San Marcos taken several months after Plaintiffs' stay confirmed the presence of Legionella bacteria. Plaintiffs filed suit in August 2003, alleging that Defendants were negligent in their maintenance of the San Marcos, causing Marvin to contract Legionnaires' Disease during his stay there. Defendants have moved for summary judgment under Federal Rule of Civil Procedure 56. Defendants have also filed four motions in limine to exclude certain evidence presented by Plaintiffs. II. LEGAL STANDARDS AND ANALYSIS A. Motions in Limine

As a preliminary matter the Court will address Defendants' Motions in Limine . This Court generally handles motions in limine at the Pretrial Conference. Therefore, the Court declines to consider all but one of the motions in limine at this time. Motions in Limine Nos. 2, 3 and 8 will be denied without prejudice and the Defendants may re-urge the motions prior to trial if the matter remains unresolved. Because Plaintiffs rely extensively on their expert, Matthew Freije, in responding to Defendants' Motion for Summary Judgment, the Court will rule now on Defendants' motion to exclude Freije. Plaintiffs have disclosed Freije as their expert witness who will testify that Defendants "failed to take steps necessary to manage the risk presented by the Legionella bacteria in a hotel setting and thereby breached the duty of care owed to Plaintiffs as business invitees upon [Defendants'] premises." (Defs.' Mot. in Limine No. 1 to Exclude Matthew Freije ("Defs.' Mot. No. 1") at 2.) Specifically, Freije has offered three opinions: (1) that Marvin "was exposed to high levels of Legionella bacteria during his stay at the San Marcos"; (2) that Marvin "would not have been exposed to high levels of Legionella bacteria during his stay at the San Marcos if . . . [Defendants] had routinely tested the hotel water systems for Legionella and taken appropriate steps in response to those results"; and (3) that Defendants "failed to exercise reasonable care to prevent Legionnaires' disease at the San Marcos." -2Document 174 Filed 08/24/2006 Page 2 of 12

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(Defs.' Mot. No. 1, Ex. D ("Freije Opinion Letter 1") at 1-2.) Additionally, Freije states that he has found "no evidence of water sources outside the San Marcos to which Mr. Sapiro could likely have been exposed for the duration or with the intensity that he was to the water sources at the San Marcos." (Defs.' Mot. No. 1, Ex. E ("Freije Opinion Letter 2") at 1.) Defendants argue that Freije lacks the necessary experience, skill and knowledge that qualify him to render expert opinions on "the medical causation of legionellosis, the bacterial pathology and epidemiology of Legionella, the causation of Plaintiff's illness, the hospitality industry's standard of care, that [Defendants] failed to exercise reasonable care with respect to Legionella or what constitutes reasonable care." (Defs.' Mot. No. 1 at 5.) In addition, Defendants contend that Freije's opinions and potential testimony are unreliable under the standards imposed by Federal Rule of Evidence 702 and should therefore be excluded. (Defs.' Mot. No. 1 at 9.) Federal Rule of Evidence 702 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Under Rule 702, the trial court acts as a "gatekeeper" and ensures that the proferred scientific testimony meets certain standards of relevance and reliability before it is admitted. Daubert v. Merrell Dow Pharms, Inc., 509 U.S. 579, 595-97 (1993). The Ninth Circuit Court of Appeals has observed that the Supreme Court "heavily emphasizes that judges are entitled to broad discretion when discharging their gatekeeping function" related to the admission of expert testimony. United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000) (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999)). The court considers four factors to determine if expert testimony will assist the trier of fact: "(i) whether the expert is qualified; (ii) whether the subject matter of the testimony is proper for the jury's consideration; (iii) whether the testimony conforms to a generally -3Document 174 Filed 08/24/2006 Page 3 of 12

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accepted explanatory theory; and (iv) whether the probative value of the testimony outweighs its prejudicial effect." Scott v. Ross, 140 F.3d 1275, 1285-86 (9th Cir. 1998) (citations omitted). 1. Freije's Qualifications

Rule 702 "contemplates a broad conception of expert qualifications." Thomas v. Newton Int'l Enters., 42 F.3d 1266, 1269 (9th Cir. 1994) (permitting expert testimony from a longshore worker with 29 years experience on issue of the duties of vessel owners related to unusual and hazardous conditions). See also Hangarter v. Provident Life and Acc. Ins. Co., 373 F.3d 998, 1015-16 (9th Cir. 2004) (permitting testimony, in the context of an insurance bad faith claim, from proposed expert with 25 years experience working for insurance companies and as an independent consultant on claims adjustment standards). Rule 702 does "not require that expert witnesses be academics or PhDs, or that their testimony be 'scientific' (natural scientific or social scientific) in character." Tuf Racing Prods., Inc. v. Am. Suzuki Motor Corp., 223 F.3d 585, 591 (7th Cir. 2000) (permitting testimony of accountant on issue of damages and holding that the "[a]nyone with relevant expertise enabling him to offer responsible opinion testimony helpful to judge or jury may qualify as an expert witness.") (citations omitted). In this case, Freije received a Bachelor's of Science degree in Mechanical Engineering from Purdue University in 1983, where he studied heating, ventilating, air-conditioning, and refrigeration. (Defs.' Mot. No. 1, Ex. A ("Freije Résumé") at 1.) His résumé indicates he is a "Certified Water Specialist (Water Quality Association)" and a "Certified Water Specialist II: Disinfection." (Freije Résumé at 1.) In 1989 he founded "Alpha-tech, Inc.," an "indoor air consulting" enterprise, of which he was President until 1995. (Freije Résumé at 1.) In 1995, Freije founded HC Information Resources Inc., of which he is currently President, and which his résumé describes as providing "consulting, publications, seminars, and training related to Legionella and other waterborne pathogens." (Freije Résumé. at 1.) Freije published a book in 1996 titled "Legionellae Control in Health Care Facilities: A Guide for Minimizing Risk," which is sold in thirty countries and has been "fully reviewed -4-

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or highlighted in journals worldwide." (Freije Résumé at 1.) Freije's résumé lists a page and a half of reports and articles, most of which deal with Legionnaires' Disease and Legionella. (Freije Résumé at 2-3.) Some of the relevant titles include "A Management Plan for Legionella and Other Waterborne Pathogens" (Aug. 2004), "Testing the Waters: Facts to Consider When Deciding Whether to Sample for Legionella" (Oct. 2002), "Concerns about Legionnaires' Disease Rising" (Feb. 2000), and "Eight Deadly Blunders: Common Mistakes in Protecting Against Legionella" (Mar. 2002). He has given speeches on at least fifteen different occasions to groups such as the American Society for Health Engineering, the Water Quality Association, the American Industrial Hygiene Conference and Exposition, and the Association of Water Technologies. (Freije Résumé at 1.) Freije is the editor of Legionella E-news, "an international electronic newsletter covering outbreaks and new technology," and the content manager of hcinfo.com, "a web site referenced and linked by government agencies, professional societies, and news media throughout the world." (Freije Résumé at 1.) In addition, Freije has been retained by plaintiffs and defendants as an expert in other litigation related to Legionnaires' disease. (Freije Résumé at 1; Pls.' Resp. to Defs.' Mot. No. 1 at 2.) The Court concludes that Freije is qualified to opine on the non-medical aspects of this case, and that his testimony will assist the trier of fact. Freije's training and practical experience are sufficient to form an opinion on issues involving the presence of Legionella bacteria in large plumbing systems and the consequences of not taking precautions. Despite Defendants' contention that "Freije lacks the necessary experience in the hospitality industry" to render an opinion, the Court agrees with Plaintiffs that the relevant field of expertise in this case "is the delivery of water through large plumbing systems that is safe from pathogenic levels of Legionella bacteria," which is Freije's area of expertise. (Defs.' Mot. No. 1 at 8; Pls.' Resp. to Defs.' Mot. No. 1 at 4.) Freije, though, is not qualified to testify as to the cause of Marvin's illness, the pathology or epidemiology of Legionella bacteria or other areas requiring specialized biological or medical training. As Freije has verified, he is not a medical doctor, an -5-

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epidemiologist, immunologist, microbiologist or virologist. (Defs.' Mot. No. 1, Ex. C, Deposition of Matthew R. Frieje (Freije Dep.") at 161-62, 171.) Freije also testified that he is "not the one who does the microbiology" to determine "which sera group of legionella are more pathogenic than others" and that his knowledge of the pathogenicity of various sera group is based "solely upon [his] reading of others' documentation in that respect." (Freije Dep. at 172.) 2. Subject Matter

The subject matter contained in Freije's opinions is proper to present to the fact finder because it is relevant and addresses "matters beyond the general knowledge of jurors." Scott, 140 F.3d at 1286. Most important, Freije addresses the maintenance of large plumbing systems and provides his opinion on how to prevent dangerous levels of Legionella bacteria, matters beyond the purview of the ordinary person. 3. Reliability

While the Court in Daubert offered a non-exhaustive list of factors to consider in assessing the reliability of preferred testimony (e.g., peer review, publication, potential error rate, etc.), there are times when "reliability depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it." Hankey, 203 F.3d at 1169 (citing Kumho Tire, 526 U.S. at 150). In this case, Freije analyzed a variety of relevant documents including: the diagnosis that Marvin suffered from Legionnaires' disease; the known incubation period for Legionnaires' disease; the published literature on Legionnaires' disease and Legionella bacteria; the blueprints of the San Marcos, its plumbing and ventilation systems; the testimony of Defendants' employees and Defendants' admissions and answers to interrogatories; Defendants' Standard Engineering Operating Procedures Manual; the communications between Defendants' employees and consultants concerning the Legionella outbreak and its aftermath, including lab reports, permits and reports from the City of Chandler, Arizona concerning the San Marcos remediation; and the San Marcos' public statements about the outbreak of Legionnaires' disease. (Freije Opinion Letter 1; Freije -6-

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Opinion Letter 2; Freije Dep. at 161, 83, 167, 242). Freije analyzed water samples taken at the San Marcos in April and August 2003 and observed that "[h]igh levels of Legionella pneumophila serogroup 1 were found in the San Marcos' domestic water system, which is the same serogroup detected in Mr. Sapiro's urine. Although the matching serogroups does not conclusively implicate the San Marcos in Mr. Sapiro's disease, it is scientifically significant." (Freije Opinion Letter 1 at 1.) Freije has considerable experience with large plumbing systems and problems associated with Legionella bacteria. Freije's review of information specifically related to the San Marcos, combined with his own knowledge and experience relating to Legionnaires' Disease, led to the conclusions he has formed in this case. The Court finds this methodology sufficiently reliable. 4. Prejudice

The final factor to consider is whether the probative value of Freije's proposed testimony "substantially outweighs its prejudicial effect." Scott, 140 F.3d at 1286. The Ninth Circuit has noted that "[r]elevant evidence is inherently prejudicial" and so "unfair prejudice means 'undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.'" Hankey, 203 F.3d at 1172 (quoting Advisory Committee Notes to Federal Rule of Evidence 403). In this case, Freije's opinions are probative, especially on the issue of whether Defendants breached their duty of care to Plaintiffs. The value of Freije's testimony outweighs any prejudice to Defendants. The Court finds that Freije is qualified and his methods sufficiently reliable to allow him to testify on the four opinions he has rendered. The Court agrees with Plaintiffs' argument that "[Defendants'] objections go the weight of Mr. Freije's testimony, not its admissibility." (Pls.' Resp. to Defs.' Mot. No. 1 at 11.) B. Motion for Summary Judgment

Summary judgment is appropriately granted when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. -7-

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P. 56(c). The initial burden is on the moving party to show an absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets its initial burden, then the non-moving party must set forth specific facts showing a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In deciding a motion for summary judgment, the Court views the evidence of the non-movant in the light most favorable to that party, and all justifiable inferences are to be drawn in its favor. Anderson, 477 U.S. at 255. As a federal court sitting in diversity, this Court is bound to apply Arizona substantive law. Kabatoff v. Safeco Ins. Co. of Am., 627 F.2d 207, 209 (9th Cir. 1980) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)); Yazzie v. Olney, Levy, Kaplan & Tenner, 593 F.2d 100, 103 n.4 (9th Cir. 1979) (applying Arizona law to the plaintiff's contract and tort claims). Courts in the Ninth Circuit, however, use the federal standard to determine the sufficiency of the evidence to raise of a fact question. Bieghler v. Kleppe, 633 F.2d 531, 533 (9th Cir. 1980). The federal standard in a negligence case, then, is "whether the evidence in its entirety would rationally support a verdict for the plaintiff, assuming a view most favorable to the plaintiff." Id. To establish a prima facie case of negligence, Plaintiffs must prove: "(1) the existence of a duty recognized by law, obligating the defendant to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the breach and the injury; and (4) actual damages." Piccola v. Woodall, 921 P.2d 710, 712 (Ariz. App. 1996) (citing Ontiveros v. Borak, 667 P.2d 200, 204 (Ariz. 1983)). Summary judgment is not generally appropriate in negligence actions "because breach of the duty of reasonable care and proximate cause are fact questions for the jury." Matthews v. Greyhound Lines, Inc., 882 F. Supp. 146, 147 (D. Ariz. 1995) (citing Markowitz v. Arizona Parks Bd., 706 P.2d 364 (Ariz. 1985)). However, summary judgment is appropriate in negligence actions "where all reasonable people must draw the same conclusion." Id. 1. Duty

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The existence of a duty by the defendant to the plaintiff is a question of law to be decided by the court. Bach v. State, 730 P.2d 854, 856 (Ariz. App. 1986). "The particular duty owed to the entrant on the land is defined by the entrant's status" as either an invitee, a licensee or a trespasser. Nicoletti v. Westcor, Inc., 639 P.2d 330, 332 (Ariz. 1982) (citing Res. (Second) of Torts (1965)). An invitee is "a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land." Stephens v. Bashas' Inc., 924 P.2d 117, 120 (Ariz. App. 1996) (citation omitted). "The status of a paying guest of a hotel, motel, inn or other place of temporary lodging is that of an invitee." Woodty v. Weston's Lamplighter Motels, 830 P.2d 477, 480 (Ariz. App.1992) (citation omitted). A business owner's duty to its invitees "entails reasonable inspection to discover dangerous conditions." McDonald v. Smitty's Super Valu, Inc., 757 P.2d 120, 122 (Ariz. App. 1988) (noting that an invitee "is entitled to assume that the premises are reasonably safe"). There is no dispute between the parties here that Plaintiffs, as registered guests of the San Marcos, were invitees on Defendants' property, see Defs.' Mot. for Summ J. at 3-4; Pls.' Resp. to Defs.' Mot. for Summ. J. ("Pls.' Resp.") at 5, or that Defendants owed Plaintiffs a duty to maintain the business premises "in a reasonably safe condition." Stephens, 924 P.2d at 120. See Defs.' Mot. for Summ J. at 3; Pls.' Resp. at 5.) Thus, in this case, Defendants clearly had a duty to Plaintiffs as invitees at the San Marcos. 2. Breach

When the law establishes that there is a duty, then the defendant must conform to a standard of care. Markowitz, 706 P.2d at 368. In the case of negligence, the standard is "reasonable care under the circumstances." Id. The dispute in this case centers on the "specific details of conduct" that establish the applicable standard of care. McDonald, 757 P.2d at 122 ("These details of conduct bear upon the issue of whether the defendant who does have a duty has breached the applicable standard of care and not whether such a standard of care exists in the first instance.").

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Defendants argue that "a landowner is only subject to liability for injuries caused to his invitees if he knows that a condition on the land poses 'an unreasonable risk of harm' to the invitees that they will probably not discover and he fails to make reasonable attempts to protect them." (Defs.' Mot. for Summ. J. at 4.) Plaintiffs argue that Defendants failed to protect them by not inspecting for the presence of Legionella bacteria in the San Marcos' domestic water supply. (Pls.' Resp. at 5.) On the standard of care, Plaintiffs' expert is of the opinion that Defendants "failed to exercise reasonable care to prevent Legionnaires disease at the San Marcos Hotel" and that Marvin "would not have been exposed to high levels of Legionella bacteria had [Defendants] routinely tested the hotel water supply for legionella." (Freije Opinion Letter 1). Defendants respond that their expert, Kenneth Teeters, has confirmed that "no federal, state or local regulations impose an obligation to proactively test for Legionella" and that "the hospitality industry standard of care does not include proactive testing for Legionella in the domestic water system." (Defs.' Supp. Statement of Facts ("DSSOF") at 1, 2.) Plaintiffs also present as evidence a document titled "Sunstone Hotels Engineering Standard Operating Procedures" ("SOP"). (Pls.' Resp., Ex. 1 at SUNST3251.) Under the SOP section titled "Testing, Inspection, Review, Assessment, and Other Recurring Requirements," the document requires testing for Legionnaires' Disease on a quarterly basis. (Pls.' Resp., Ex. 1 at SUNST421.) The SOP also contains a checklist of nine practices "to help prevent the spread of Legionella." (Pls.' Resp., Ex. 1 at SUNST437.) The General Manager of the San Marcos, Jeff Hammermeister, testified that he had never seen the SOP prior to his deposition. (PSOF, Ex. 7, Deposition of Jeff Hammermeister ("Hammermeister Dep.") at 35.) Hammermeister testified that prior to August 2003, he had never received, in 24 years, a directive or policy to test for Legionnaires. (Hammermeister Dep. at 59.) He also said he did not know why the San Marcos was not tested for

Plaintiffs should have separated the three documents in Exhibit 1 into three exhibits. Because Plaintiffs did not, the Court will either refer to the page number(s) of the deposition or the Bates numbers of the SOP. - 10 Document 174 Filed 08/24/2006 Page 10 of 12

1

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Legionnaires before August 2003. (Hammermeister Dep. at 59.) The San Marcos' Chief Engineer, Robert Marrs, also indicated that he had never seen the SOP and its standards for controlling Legionella bacteria. (PSOF, Ex. 3, Deposition of Robert Marrs ("Marrs Dep.") at 62-63.) Marrs confirmed that "there was no test for Legionella bacteria at any time prior to the August of 2003 testing." (Marrs Dep. at 61.) The difference of opinion between Plaintiffs' and Defendants' experts on the proper standard of care, the San Marcos' SOP regarding the testing requirements for Legionella bacteria, and the testimony of the San Marcos employees, create an issue of fact about the appropriate standard of care in these circumstances and whether Defendants breached their duty to Plaintiffs. 3. Causation

"The question of whether a defendant's negligence is the proximate cause of an injury is one of fact to be submitted to the jury and not a question of law for the court, if, upon all the facts and circumstances there is a reasonable chance or likelihood of the conclusions of reasonable men differing." Taft v. Ball, Ball & Brosamer, Inc., 818 P.2d 158, 162 (Ariz. App. 1991) (citation omitted). Defendants argue that Plaintiffs rely on "measurable amounts of Legionella bacteria found in the hotel water" several months after Marvin became ill to prove causation, but "have not established that [Defendants'] failure to sample the water or drain the water storage tanks, as recommended by Mr. Freije, would have eliminated the bacteria and thus prevented [Marvin's] illness." (Defs.' Mot. for Summ. J. at 8.) Defendants also assert that Plaintiffs "cannot establish that the bacteria was detectable at pathogenic levels at the time that the [P]laintiffs stayed on the property." Plaintiffs' response on the issue of causation is sparse and Plaintiffs merely state that "[t]he record here is replete with evidence demonstrating [Defendants'] negligence as being the cause of [Marvin's] injuries. Legionella bacteria existed at the San Marcos Hotel for at least 13 months before Sunstone, after being sued, finally did what its own records required it to do ­ test for Legionnaires' Disease." (Pls.' Resp. at 16.) Defendants argue that these - 11 -

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conclusory statements about causation "fail to identify any supporting evidence and do not respond to Sunstone's position." Nonetheless, when the evidence is viewed "in its entirety," and "assuming a view most favorable to the Plaintiff," a fact finder could rationally support a verdict for Plaintiffs. Bieghler, 633 F.2d at 533. Thus, the issue of causation in this case is one for the jury. IT IS ORDERED denying Defendants' Motion for Summary Judgment (Doc. 141). IT IS FURTHER ORDERED denying Defendants' Motion in Limine No. 1 to Exclude Matthew Frieje (Doc. 145). IT IS FURTHER ORDERED denying without prejudice Defendants' Motion in Limine No. 2 Regarding Evidence of Subsequent Remedial Measures (Doc. 162), Defendants' Motion in Limine No. 3 Regarding Water Testing (Doc. 163), and Defendants' Motion in Limine No. 8 Regarding Sudbeck v. Sunstone Hotel Properties, Inc., CV-04-1535PHX-JWS (Doc. 164). Defendants may re-assert these motions prior to trial.

DATED this 23rd day of August, 2006.

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