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. 2 REGARDING EVIDENCE OF SUBSEQUENT REMEDIAL MEASURES [D.E. 162]

Defendants seek a blanket prohibition against "referencing, testifying or introducing any evidence relating to Sunstones' acts, measures and response after receipt of Plaintiffs' July 25, 2003 letter," under Fed.R.Evid. 407 ("Rule 407") which excludes evidence of remedial measures. Motion at 6. Sunstone's Motion should be denied because it is overbroad and misconstrues the scope of Rule 407. First, some of the evidence that Sunstone seeks to exclude is not a remedial measure under Rule 407. Second, Sunstone seeks to exclude evidence of the feasibility of repairs, an issue which Sunstone has controverted thereby making evidence of subsequent

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measures admissible to establish feasibility. 1 And third, all the evidence included in this request is admissible for impeachment and rebuttal.2 I. The results of the August, 2003, water sampling tests are not remedial measures under Rule 407

On September 12, 2003, Pathogen Control Associates, the laboratory that processed Defendants' water samples, produced a report (the "Report"). Exh. A. The first part is a onepage cover letter. [SUNST013]. This letter does not mention Defendants, or the San Marcos, or any subsequent remedial measures taken by them. The second part is a table (Table 1) that identified which rooms water samples were taken from, and under what conditions. [SUNST01427]. The third part is a table (Table 2) that presents the concentration of Legionella bacteria found in the samples listed in Table 1. [SUNST028-44]. Neither table mentions Defendants, or the San Marcos, or any measure subsequently taken by them. The tables contain nothing but facts, yet defendants seek to exclude the Report as a remedial measure under Rule 407. An evidentiary analysis begins with the proposition that "all relevant evidence is admissible." Fed.R.Evid. 402. Rule 407 is a very specific and limited exception to this general rule. Plaintiffs analyzed at greater length the relevance of the results of the water tests conducted by Mr. Freije in April, 2003, and by Sunstone in August, 2003, in their response in opposition to Defendants' motion in limine to exclude these results, which they incorporate here by reference. [D.E. 157]. To summarize, the data from the water sampling results are relevant and admissible to show that Mr. Sapiro contracted Legionnaires' Disease at the San Marcos and to establish that dangerous conditions would regularly arise from the San Marcos' method of operation.

Rule 407 specifically provides "This rule does not require the exclusion of evidence or subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted." 2 See Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F2d 1001, 1020 (9th Cir. 1985) (approving trial court's admission of evidence over Rule 407 objection "to impeach [witness'] testimony."); Traylor v. Husqvarna Motor, 988 F.2d 729, 734 (7th Cir. 1993) (noting that use of evidence over Rule 407 objection to impeach expert witness' testimony is permissible). 4 2 /

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Rule 407 provides, in relevant part, that "[w]hen, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence." But the test results that Defendants seek to exclude are not a measure "that, if taken previously, would have made the injury or harm less likely to occur"--the test results merely document the levels of Legionnaires bacteria at Defendants' property. Sunstone then took remedial measures: superheating and hyper-chlorinating the hot water line, installing new boilers, installing backflow preventors, installing new water heaters and water storage tanks, replacing all showerheads, aerators, circulation pumps, installing new boiler piping, and ordering a chlorine dioxide injection system. Motion at 3. These are the measures that "if taken previously, would have made the injury or harm less likely to occur." Rule 407. Because the water test results, by themselves, would not have made Marvin Sapiro's injuries less likely to occur, it follows that the test results are not a remedial measure. In Benitez-Allende v. Alcan Aluminio do Brasil, S.A., 857 F.2d 26, 33 (1st Cir. 1988), the First Circuit explained the critical difference between internal reports and actual remedial measures. There, the defendant argued that because it had used a report' results to help plan a s recall of its defective cookers, the report was part of an effort to improve the safety of its product, and that the rule, therefore, forbade its admission. Id. But the First Circuit disagreed: Rule 407 prevents the admission of evidence of what its title refers to as `Remedial Measures.' The . . . Report itself describes the results of a `diagnostic test,' not remedial measures. It makes no reference to a product recall or to specific accidents; it discussed the features of the cooker; it preceded repairs. Thus, by itself, the . . . Report `would' not `have made the event less likely to occur.' Id. (emphasis supplied). Similarly, in this case the water test results were diagnostic in nature, make no reference to any specific incidents or accidents, and preceded the actual "repairs" of the San Marcos' domestic water system. These test results would not have made any difference to
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the conditions of the San Marcos' water system, and therefore they are admissible. Other courts have reached identical results. In Hochen v. Bobst Group, Inc., 193 F.R.D. 22, 25 (D. Mass. 2000), for example, the Court discussed Rule 407: The Rule prohibits "evidence of ... subsequent measures," not evidence of a party's analysis of its product. The fact that the analysis may often result in remedial measures being taken (as occurred here) does not mean that evidence of the analysis may not be admitted. Id. (internal citations and quotations omitted). In Hochen, the Court ruled the post-incident report admissible, and drew a line between the report, which was it admitted, and the repairs, which it did not admit. Id. at 25. Likewise, the court in Haims v. Laboratory Corp. of America, 155 F. Supp. 2d 891, 900 (N.D. Ill. 2001) came to the same result, allowing evidence of defendants' "post-occurrence investigation" but excluding "any changes made or remedial measures taken by [defendant] following this investigation . . ." Id. at 900. See also Westmoreland v. CBS Inc., 601 F. Supp. 66, 67-68 (S.D.N.Y. 1984) (explaining that "[t]he fact that subsequent remedial measures are excluded as admissions of fault does not mean that competent evidence resulting from an internal investigation of a mishap must also be excluded. . . . In industrial and railroad accident litigation, for example, it is commonplace that such reports, or at least the facts revealed by them, are used by the injured to establish the liability of the company that conducted the investigation . . . . To establish a rule forbidding such use would deprive injured claimants of one of the best and most accurate sources of evidence and information.") (internal citations omitted). By contrast to the cases above, the admissibility dispute addressed in Maddox v. City of Los Angeles, 792 F.2d 1408 (9th Cir. 1986), involved a police disciplinary proceeding, which is a proceeding of a very different kind than the water testing at issue in this case: Maddox sought to introduce evidence that during a Police Department disciplinary proceeding defendant Officer Harris admitted to violating the City policy on use of the choke hold. The district court found this evidence was inadmissible under Fed.R.Evid. § 403 because its prejudicial effect outweighed its
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probative value. The court also found this evidence inadmissible because the disciplinary proceeding constituted a remedial measure within the meaning of Fed.R.Evid. § 407. . . . The Internal Affairs investigation and measures taken by the defendant City were remedial measures taken after the incident. Id. at 1417. The court's reasoning is clear: a police disciplinary proceeding is a remedial measure in and of itself. In other words, the discipline that it imposes is the remedial measure for police misconduct, and therefore it falls under the scope of Rule 407. Therefore, Maddox notwithstanding, Rule 407 does not allow the water test results at issue here to be excluded.3 As the Sixth Circuit explained, Rule 407 "prohibits evidence of post-accident changes that make things different or better than they were at the time of an accident." Patrick v. South Central Bell Tel. Co., 641 F.2d 1192, 1196 (6th Cir. 1980). Here, Sunstone's water test results did not make anything different or better. Accordingly, the water test results should not be excluded under Rule 407. II. The challenged evidence is admissible to establish the feasibility of measures that Sunstone has contested.

Sunstone has contested the feasibility of remedial measures at issue in two ways. First, contrary to what it maintains in its motion, it has explicitly denied the feasibility of the measures it took in late 2003 to decontaminate the San Marcos Resort: Prior to February, 2003, it was feasible for the San Marcos Resort to take measures that would have minimized or eradicated the presence of Legionella pneumophilia in its guest rooms. ADMIT _______ DENY ___X____

13 January 2005 Responses to Plaintiffs' First Request for Admissions, n. 29, Exh. B. Sunstone has never amended this response to Plaintiffs' First Request for Admissions. Second, Sunstone has challenged the measures' feasibility through its expert witness, Prof. Teeters. His report

Furthermore, a close reading of the opinion shows that the Court's analysis was based entirely on Rule 403, and that the Court never analyzes or cites to authority discussing Rule 407 and its limits. Id. at 1417-1418. 4 5 /

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implicitly challenges the feasibility of taking the remedial measures which Sunstone later implemented: The presence of Legionella bacteria can be substantially eliminated by two separate methods. The domestic water temperature can be periodically elevated . . . . Even when a property's management attempts to scheduled [sic] such procedures during "off-hours", it must be acknowledged that lodging properties operate 24/7 and for 365 days per year. There is never a good opportunity to conduct such an exercise that does not present a known substantial risk to all stakeholders. 31 October 2005 Report of Prof. Kenneth Teeters at 4 (emphasis added). Exh. C. The most salient implication from this opinion is that it was not feasible for Sunstone to implement this remedial action. Feasible means "capable of being done, executed, or effected : possible of realization." Merriam-Webster Third New International Dictionary Unabridged. Prof. Teeters' opinion that "[t]here is never a good opportunity to conduct such an exercise that does not present a known substantial risk to all stakeholders," implies that the exercise in question (periodically elevating water temperature) cannot be done because there is never a good opportunity to do so without substantial risk. Sunstone cannot have it both ways: it cannot deny that remedial measures were possible (both directly and by inference) and at the same time ask this Court to exclude evidence that it actually implemented them. See Ross v. Black & Decker, Inc., 977 F.2d 1178, 1185 (7th Cir. 1992) (affirming the trial court's decision to admit evidence of a remedial measure and rejecting contention that defendant did not have the opportunity to admit feasibility until it presented its case: "[t]he defendant could have stipulated to the feasibility, or included the admission as an uncontested fact in the pretrial memorandum submitted by the parties, or in a pretrial motion accompanying the submission of the memorandum."). Accordingly, the evidence of remedial

measures is not excluded by Rule 407 to the extent that it is used to demonstrate feasibility. CONCLUSION
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The results of the water tests conducted in August, 2003, are not a remedial measure and therefore do not fall under Rule 407, and this motion should be denied as to them. In addition, the remedial measures are admissible to establish feasibility, which Sunstone has contested both directly and indirectly. And finally, evidence of all remedial measures is admissible for

impeachment and rebuttal. Accordingly, Defendants' motion 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: Mr. Matthew D. Kleifield Kunz Plitt Hyland Demlong & Kleifield Suite 1500 3838 North Central Avenue Phoenix, Arizona 85012-1902
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s/M. Wong_________

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