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

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STEVEN W. DAVIS (Pro Hac Vice, Aug. 26, 2003) DAVID W. SHAPIRO, AZ BAR NO. 015295 ANN M. GALVANI (Pro Hac Vice, Sept. 29, 2003) JORGE SCHMIDT (Pro Hac Vice, March 17, 2005) BOIES, SCHILLER & FLEXNER, LLP 100 S.E. Second Street, Suite 2800 Miami, Florida 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. 8 REGARDING SUDBECK V. SUNSTONE HOTEL PROPERTIES, INC. [D.E. 164]

Plaintiffs file this response to Defendants' Motion in Limine No. 8, which seeks to exclude evidence concerning a prior case of Legionnaires' Disease contracted at Defendants' hotel property The prior occurrence of Legionnaires' Disease at the San Marcos Hotel is

relevant because it tends to establish the existence of three consequential facts: that elevated Legionella bacteria levels existed in the San Marcos during Mr. Sapiro's stay, that the San Marcos had constructive notice of these elevated levels, and that the San Marcos' method of operation led to dangerous conditions regularly arising.

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Plaintiffs' Response 172 Document to Defendants' Motion in Limine No. 8 Filed 04/24/2006

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FACTUAL BACKGROUND: Gilbert Sudbeck ("Mr. Sudbeck") and Plaintiff Marvin Sapiro ("Mr. Sapiro") were both guests at the Defendants' hotel property, the San Marcos Golf Resort and Conference ("San Marcos Hotel") within eight months of each other. Mr. Sudbeck stayed at the hotel in July of 2002 and Mr. Sapiro was a guest in February of 2003. Both Mr. Sudbeck and Mr. Sapiro stayed at the hotel for less than one week and were both diagnosed with Legionnaires' Disease shortly following their respective stays at the Hotel. Defendants ("Sunstone") knew and understood the dangers that Legionella bacteria posed to hotel guests and accordingly adopted the Sunstone Engineering Standard Operating Procedures Manual ("Operating Procedures"). The Operating Procedures required implementing a testing protocol for the detection of Legionella bacteria and the prevention of infestations by the same. Despite this knowledge, Defendants conducted no testing of any kind between the time of Mr. Sudbeck and Mr. Sapiro's stays. ARGUMENT III. The prior case of Legionnaires' Disease is relevant and admissible to establish causation because the evidence shows that prior conditions are substantially similar. Relevant evidence is "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. 4011 (emphasis added). The Ninth Circuit courts have 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. MirandaUriarte, 649 F.2d 1345, 1353 (9th Cir. 1981) (holding that the FED. R. EVID. 401 standard is "not strict").

Federal law governs the admissibility of evidence in federal courts. Ramer v. U.S., 411 F.2d 30, 38 (9th Cir. 1969). 2

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Document 172

Plaintiffs' Response to Defendants' Motion in Limine No. 8

Filed 04/24/2006

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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). A "fact that is of

consequence" does not need to relate to a particular element in the case but is sufficiently relevant 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). Moreover, when evidence of prior conditions is introduced, whether the conditions

existed is an inference to be drawn by the trier of fact. Fluor Corp. v. Black, 338 F. 2d 830, 832 (9th Cir. 1964). Evidence of Mr. Sudbeck's injury at the San Marcos Hotel is relevant because it tends to establish the existence of the consequential fact that harmful levels of Legionella bacteria existed at the San Marcos Hotel well before, as well as during, Mr. Sapiro's stay. This evidence not only has the tendency to alter the probability that the dangerous conditions actually persisted at the time of Mr. Sapiro's stay, but it also shows the impact of Defendants' failure to follow their own Standard Operating Procedures and therefore should be admitted. Defendants argue that the evidence should be inadmissible because there must be substantial similarity in the "legal similarities" and not the "factual coincidences...[that] possess the same legal ramifications." Motion at 3. But case law conclusively indicates that the relevant significance actually lies in the similarity of the factual circumstances, i.e., similar prior conditions. See W. Recreational Vehicles, Inc. v. Swift Adhesives, Inc., 23 F.3d 1547, 1555 (9th Cir. 1994); Spector v. El Ranco, 263 F.2d 143, 146 (9th Cir. 1959). In this case Defendants, the entities that controlled and maintained the San Marcos Hotel, neither showed nor produced any evidence during discovery of any changes in the condition of the hotel property between the visits of Mr. Sudbeck and Mr. Sapiro. "There is no doubt that evidence of prior conditions . . . may be admissible to establish what its condition was at a later time" when the prior conditions are substantially similar to those at the relevant time. White v. Ford Motor Co., 312 F.3d 998, 1009
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Plaintiffs' Response to Defendants' Motion in Limine No. 8

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(9th Cir. 2002); Fluor Corp. v. Black, 338 F. 2d 830, 832 (9th Cir. 1964) (holding that testimonial evidence of prior conditions establishing negligence supported the inference that the conditions were substantially similar at the time of the accident). Moreover, "immaterial dissimilarity does not prevent admissibility." White 312 F.3d at 1009; Spector v. El Ranco, 263 F.2d 143, 146 (9th Cir. 1959) (holding that trial judge properly permitted jury to view hotel walkway, five years after plaintiff had slipped, even when there were weather changes, previous washings and an alkali treatment to make the walkway less slippery, because the jury was apprised of the changes). In W. Recreational Vehicles, Inc., two separate manufactures, in different locations, experiencing similar difficulties with a product, were found to be substantially similar conditions because the dissimilarities that existed could not "reasonably be expected to have affected the result." W. Recreational Vehicles, Inc. v. Swift Adhesives, Inc., 23 F.3d 1547, 1555 (9th Cir. 1994). Accordingly, Mr. Sudbeck's injury is evidence of the prior conditions at the San Marcos Hotel, from which the trier of fact can infer that the elevated levels of Legionella bacteria that caused his illness persisted through the time of Mr. Sapiro's stay at the San Marcos Hotel. The parallel circumstances that led to their injuries indicate that the conditions at the hotel were substantially similar at the time of their respective stays. Specifically, both Mr. Sudbeck and Mr. Sapiro stayed for a few days at the San Marcos Hotel, within eight months of each other, and both were subsequently diagnosed with having contracted Legionnaires' Disease shortly following their respective stays at the Hotel. There is, furthermore, no record evidence of any changes in the condition of the premises during this eight-month period. Sunstone's argument that there were "changing environmental conditions," which fails to specify any such conditions or how these purported changes destroyed the substantial similarities, is a bare assertion unsupported by evidence. Motion at 4.

Nevertheless, any superficial change is immaterial and would not constitute a "dissimilar" condition without record evidence that the changes could reasonably be expected to have a
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material effect on the elevated level of the Legionella bacteria at the San Marcos Hotel. Therefore, Mr. Sudbeck's illness is relevant and admissible evidence of the causation of Mr. Sapiro's illness. II. The prior occurrence of Legionnaires' Disease is relevant to establish constructive notice In a claim for negligence, the evidence of a prior occurrence of Legionnaires' Disease at the San Marcos Hotel is relevant to the element of constructive notice. Notice can be established by showing that a dangerous condition existed for a sufficient period of time2 such that had the party exercised ordinary he would have discovered the dangerous condition and remedied it. Haynes v. Syntek Fin. Corp., 909 P.2d 399, 406 (Ariz. Ct. App. 1995) (holding that actual notice is not necessary if the plaintiff can show constructive notice). Accordingly, evidence of prior dangerous conditions is directly relevant to indicate that a sufficient period of time has passed, such that a party can be charged with notice of the condition. Id. Moreover, a mere passage of time should not render evidence irrelevant because a "mechanical exclusion based on remoteness...exalt[s] form over substance." See US v. Ives, 609 F.2d 930, 932 (9th Cir. 1980). To be admissible, it is not necessary that the evidence of the prior occurrence of Legionnaires' Disease prove constructive notice by itself, rather it is sufficiently relevant if it has any tendency to indicate that it is more probable that Sunstone had constructive knowledge of the dangerous conditions. Therefore, evidence of Mr. Sudbeck's illness is critically relevant because the eight month period between Mr. Sudbeck's injury and Mr. Sapiro's injury tends to establish that the dangerous condition existed for long enough to charge Sunstone with constructive notice. This lapse of time gave Sunstone the opportunity to test for Legionella and, had such tests been

The determination of whether the condition existed for a sufficiently long period of time such that it should have been discovered and remedied is to be determined by the trier of fact. See Haynes v. Syntek Fin. Corp., 909 P.2d 399, 406 (Ariz. Ct. App. 1995) (holding that the jury properly inferred that the defendant could be charged with constructive knowledge of the dangerous condition when the condition did not arise suddenly but over a period of time). 4 5 /

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Plaintiffs' Response to Defendants' Motion in Limine No. 8

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conducted, would have given Defendants the opportunity to remedy the dangerous condition. Accordingly, evidence of Mr. Sudbeck's exposure to harmful levels of Legionella bacteria is relevant and should be admitted. III. The prior occurrence of Legionnaires' Disease is relevant to establish the consequences of Sunstone's method of operation

A prior Legionnaires' Disease infection contracted at the San Marcos Hotel is also admissible because it is relevant to the determination of the consequences of Sunstone's method of operation. In Arizona, the `mode of operation' rule provides that defendant is negligent if (1) the defendant adopted a method of operation from which it could reasonably be anticipated that dangerous conditions would regularly arise and (2) and defendant failed to exercise reasonable care to prevent harm under those circumstances. 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). In this case, the mode of operation includes Sunstone's practice of not testing for Legionella bacteria. Sunstone knew and understood the harm of Legionella bacteria and accordingly adopted Operating Procedures that required quarterly testing for the detection of the bacteria. Sunstone's practice, however, was a mode of operation that had no testing. Mr. Sudbeck's illness is relevant and admissible because, when viewed together with Mr. Sapiro's illness and the results provided by water sampling in April and August, 2003, it tends to establish that Sunstone's practice of no testing meant that dangerous conditions would regularly arise. IV. Relevant evidence is admissible and not unfairly prejudicial when the trier of fact has the opportunity to draw inferences and accord weight to the evidence While relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice," FED. R. EVID. 403, the general rule is to favor admission of evidence that has probative value. Pierce Packing Co., 633 F.2d at 1364. Additionally, in Pierce Packing Co., the court held that evidence is not unfairly prejudicial when
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Plaintiffs' Response to Defendants' Motion in Limine No. 8

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the parties have a full opportunity to present their case to the jury concerning the inferences to be drawn and the weight to be accorded to the evidence. Id. (holding that in action for violation of Sherman Act, the probative value of evidence of sales information for unrelated products was found to outweigh any unfairly prejudicial effect) (emphasis added). The evidence of Mr.

Sudbeck's injury has significant probative value for establishing causation, constructive notice, and Sunstone's method of operation. Introducing evidence of a previous injury does not unfairly prejudice Sunstone, because they have sufficient opportunity to explain or challenge the legitimacy of the evidence before the trier of fact in their case. Conclusion The prior occurrence of Legionnaires' Disease at the San Marcos Hotel is relevant because it tends to establish the existence of three facts of consequence: that dangerous levels of Legionella bacteria existed there during Mr. Sapiro's stay, that the San Marcos had constructive notice of these elevated levels, and that the San Marcos' method of operation led to dangerous conditions regularly arising. Accordingly, the evidence of Mr. Sudbeck's injury is relevant and should be admitted. 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

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Document 172

Plaintiffs' Response to Defendants' Motion in Limine No. 8

Filed 04/24/2006

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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: 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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Document 172

Plaintiffs' Response to Defendants' Motion in Limine No. 8

Filed 04/24/2006

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