Free Response in Opposition to Motion - District Court of Arizona - Arizona

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DAVID W. SHAPIRO, AZ BAR NO. 015295 ANN M. GALVANI (Pro Hac Vice, Sept. 29, 2003) STEVEN W. DAVIS (Pro Hac Vice, Aug. 26, 2003) BOIES, SCHILLER & FLEXNER, LLP 100 S.E. 2nd Street, Suite 2800 Miami, FL 33131 Telephone (305) 539-8400 Facsimile (305) 539-1307 Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT IN THE DISTRICT COURT OF ARIZONA PHOENIX DIVISION

MARVIN SAPIRO and GLORIA SAPIRO, his wife, Plaintiffs, vs. SUNSTONE HOTEL INVESTORS, L.L.C., SUNSTONE HOTEL INVESTORS, L.P., Defendants.

CASE NO. CIV 03 1555 PHX SRB

PLAINTIFFS' RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. 3 RE: WATER TESTING [D.E. 163]

Plaintiffs' file this response to Defendants' Motion in Limine No. 3 which seeks to exclude evidence concerning the results of water sampling tests conducted at the San Marcos Hotel in April and August, 2003. FACTUAL BACKGROUND Soon after Marvin and Gloria Sapiro stayed at the San Marcos Resort in February, 2003, Marvin fell gravely ill. His treating physicians diagnosed him as suffering from Legionnaire's
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Plaintiffs' Response in Opposition to Defendants' Document 173 re Water Testing Motion in Limine Filed 04/24/2006

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Disease, kind of pneumonia that is often fatal in older men. He fell into a coma for weeks, from which he was not expected to recover. Following Marvin's diagnosis, his family sought to discover where he contracted the disease that nearly killed him. To that end, they retained the services of Matthew R. Freije, one of the leading experts in prevention and control of Legionella bacteria in cooling towers and large plumbing systems. Mr. Freije visited the San Marcos in April, 2003--a few weeks after the Sapiros' stay-- and he took limited samples from the hotel's domestic water system. The San Marcos conducted its own comprehensive tests in late August, 2003. The data from both sets of tests were This

consistent with each other, and revealed alarmingly high Legionella bacteria levels.

consistency is notable and relevant because the record evidence is that between February, 2003, when the Sapiros were the San Marcos' guests, and August, 2003, when the San Marcos conducted its tests, the San Marcos' domestic water system was materially unchanged. ARGUMENT The question posed by this motion is whether the results from both sets of tests are relevant evidence. "`Relevant evidence' means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. The Ninth Circuit has interpreted this rule expansively. US v. Curtis, 568 F.2d 643, 645 (9th Cir. 1978) (indicating that FED. R. EVID. 401 is a "very expansive definition of relevant evidence"); US v. Miranda-Uriarte, 649 F.2d 1345, 1353 (9th Cir. 1981) (holding that the FED. R. EVID. 401 standard is "not strict"). Specifically, the term "any tendency" refers to the ability of the evidence to alter the probability of the consequential fact and not to prove or disprove it. Pierce Packing Co. v. John Morrell & Co., 633 F.2d 1362, 1364 (9th Cir. 1980) (emphasizing that relevancy only requires "any tendency" of changing the probability of the evidence offered).
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A "fact that is of

consequence" does not need to relate to a particular element in the case but is sufficiently relevant

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if it is a fact that is at issue in the case. See Shanahan v. S. Pac. Co., 188 F.2d 564, 568 (9th Cir. 1951). One of the main facts of consequence to this case's determination is whether Marvin Sapiro contracted Legionnaires' Disease at the San Marcos. Plaintiffs will prove that he caught the disease at the San Marcos, in part, though Mr. Freije's conclusion that "Marvin Sapiro was exposed to high levels of Legionella bacteria during his stay at the San Marcos." Freije Expert Report, Exh. A at 1. Marvin Sapiro's exposure to high levels of Legionella bacteria is of consequence to this action because exposure to Legionella bacteria is necessary for an infection to occur. Therefore, his exposure to high levels of bacteria is an element proving causation. But because there is no direct evidence of the levels of Legionella bacteria in Marvin Sapiro's room during his stay in February, 2003, Plaintiffs will use circumstantial evidence to prove his exposure. The April and August results are among that evidence. Given that there is no record evidence that the San Marcos' domestic water system changed in any material way between February and August, 2003, the widespread presence of elevated levels of Legionella bacteria throughout the San Marcos in April and August of that year has the tendency to make the existence of high levels of Legionella in February, 2003, more probable: Although Legionella bacteria levels will vary from time to time, studies indicate that a Legionella problem is not likely to come and go without intervention. A system that is contaminated with the bacteria is very unlikely to correct itself. . . . Conversely, Legionella contamination discovered in a domestic water system did not likely develop in recent days, weeks, or months, unless an unusual event occurred to cause it. Freije Declaration, Exh. B at 5. In other words, the elevated levels of Legionella bacteria detected in April and August, 2003, are circumstantial evidence of elevated levels in February, 2003. As Mr. Freije's expert report explains:
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Marvin Sapiro was exposed to high levels of Legionella bacteria during his stay at the San Marcos Resort in Arizona. Legionella test results for water samples collected at the San Marcos in April and August 2003 clearly indicate a significant health risk. Based on the nature of Legionella bacteria in plumbing systems, it is very likely that the bacteria were in the system in the system in February 2003. Freije Expert Report, Exh A. at 1. And evidence that supports an inference that makes more probable a fact material to the case is relevant as defined by Fed.R.Evid. 401, see Baker v. Delta Air Lines, Inc., 6 F.3d 632, 643 (9th Cir. 1993), so the test results are therefore admissible. The April and August, 2003, test results also support a second fact that is of consequence to the determination of this case, namely, whether the San Marcos had adopted a method of operation from which it could reasonably be anticipated that dangerous conditions would regularly arise. See Premises Liability 2, Mode of Operation Rule, RAJI (Civil) 3d; McKillip v. Smitty's Super Valu, Inc., 945 P.2d 372, 375 (Ct. App. Ariz. 1997). The April and August, 2003, tests, together with Gilbert Sudbeck' illness in July, 2002, and with Marvin Sapiro's illness in February, 2003, provide the jury with four data points upon which it can find that under the San Marcos' method of operation, "dangerous conditions would regularly arise." In the context of a challenge to the relevance of the evidence, it is important to note that the probativeness of particular piece of evidence must be judged in terms of the proponents' reading of disputed facts, not the opposition' Johnson v. Washington Metropolitan Area Transit Authority, 764 F. Supp. s. 1568, 1579 (D.D.C. 1991) amended on other grounds 773 F. Supp. 459, amended on other grounds 790 F. Supp. 1174. Accordingly, both sets of water sampling results are relevant and admissible. Defendants' contention that the water tests mean nothing because Mr. Freije did not perform a "regression analysis" is baseless: [i]t would be contrary to industry practices, and scientifically unsound, to attempt a regression analysis working backwards from
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the test results obtained later in the year. The primary reason such an analysis is not done is that the results would be unreliable. Freije Declaration, Exh. B at 3-4. Defendants have not pointed to any authority whatsoever that contradicts Mr. Freije on this point. In conclusion, the results from both the April and August, 2003, sets of water tests at the San Marcos Resort are relevant and admissible for the purpose of showing causation and for establishing that dangerous conditions would regularly arise from the San Marcos' method of operation. Accordingly, the motion to exclude them should be denied. Dated: April 24, 2006. BOIES, SCHILLER & FLEXNER LLP By:___/s/ Steven W. Davis____________ STEVEN W. DAVIS 100 S.E. Second Street, Suite 2800 Miami, Florida 33131 Telephone (305) 539-8400 Attorneys for Plaintiffs

COPY of the foregoing e-filed this 24th day of April 2006, with: United States District Court Clerk of the Court 401 West Washington Phoenix, Arizona 85003 COPIES of the foregoing mailed This 24th day of April 2006, to: Hon. Susan J. Bolton 401 West Washington Phoenix, Arizona 85003 COPIES of the foregoing electronically delivered This 24th day of April, 2006, to:

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Mr. Matthew D. Kleifield Kunz Plitt Hyland Demlong & Kleifield Suite 1500 3838 North Central Avenue Phoenix, Arizona 85012-1902 s/M. Wong_________

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