Free Statement - District Court of Arizona - Arizona

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Matthew D. Kleifield ­ 011564 Chad C. Baker ­ 023083 KUNZ PLITT HYLAND DEMLONG & KLEIFIELD 3838 North Central Avenue, Suite 1500 Phoenix, Arizona 85012-1902 (602) 331-4600 Email: [email protected] Email: [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT COURT OF ARIZONA MARVIN SAPIRO SAPIRO, his wife, and GLORIA No. CIV03-1555 PHX SRB DEFENDANTS' SUPPLEMENTAL STATEMENT OF FACTS IN SUPPORT OF THEIR REPLY TO THEIR MOTION FOR SUMMARY JUDGMENT, DEFENDANTS' REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' SEPARATE STATEMENT OF FACTS, AND DEFENDANTS' RESPONSE TO PLAINTIFFS' COUNTER-STATEMENT OF FACTS (Oral Argument Requested) (Assigned to Hon. Susan R. Bolton)

Plaintiffs, v. SUNSTONE HOTELS INVESTORS, L.L.C., SUNSTONE HOTEL INVESTORS, L.P. Defendant.

Defendants Sunstone Hotels Investors, L.L.C. and Sunstone Hotels Investors, L.P. ("Sunstone"), pursuant to Rule 56, Federal Rules of Civil Procedure, submit the following Supplemental Statement of Facts in support of their Motion for Summary Judgment. Additionally, Defendants move to strike certain paragraphs of Plaintiffs' Response to Defendants' Separate Statement of Facts and Plaintiffs' Counter-Statement of Facts. As set forth in the attached Memorandum of Points and Authorities, certain portions of Plaintiffs'
Case 2:03-cv-01555-SRB Document 166 Filed 03/27/2006 Page 1 of 7

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Response and their Counter-Statement of Facts are deficient and should not be considered by this Court. As such, the portions identified herein should be stricken. The attached

3 Memorandum of Points and Authorities and the Court's entire file supports this Motion. 4 SUPPLEMENTAL STATEMENT OF FACTS 5 1. 6 that no federal, state or local regulations impose an obligation to proactively test for Legionella. 7 (See Teeters' deposition, 158:19-24, excerpts attached as Exhibit A). 8 2. 9 not include proactive testing for Legionella in the domestic water system, and he is not aware of 10 any property within the hospitality industry that routinely samples its domestic water system for 11 Legionella bacteria. (See Ex. A, 159:19-160:24). 12 3. 13 cooling towers. (See Ex. A, 125:23-127:7; 158:2-5). 14 4. 15 testing for Legionella in only the cooling towers (see Ex. A, 32:12-15) "the most comprehensive 16 text used in academia to teach hotel administration ... makes no reference to a Legionella 17 bacteria [sic] in any regard, including cooling towers." Id. 33:11-17. 18 5. 19 notoriety during the outbreak in Philadelphia in 1976/77, the does not recall Legionella ever 20 being an issue in the hotel industry: "I don't ever recall it becoming an issue that really filtered 21 its way do wn to the facility's department to where we put together active programs other than 22 cooling towers." (See Ex. A, 10:12-11:8). 23 24 25 -2Case 2:03-cv-01555-SRB Document 166 Filed 03/27/2006 Page 2 of 7

Professor Kenneth L. Teeters ("Professor Teeters"), Sunstone's expert, confirmed

Professor Teeters further opines that the hospitality industry standard of care does

Professor Teeters opined that the hospitality industry's testing is confined to

Although the Professor Teeters uses a textbook that address the importance of

Although Professor Teeters acknowledges that Legionellosis first gained national

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6.

Professor Teeters also discussed that a substantial risk associated with the

domestic water systems is the dangers of scalding the guests. (Ex. A, 22:5-17; see also, Expert 3 Report of Professor Teeters at 4, attached as Ex. B). 4 7. 5 is the litmus dip cell test. (Teeters Depo. 191:5-192:1). 6 8. 7 performed by the professional water treatment contractor. (Ex. A, 72:2-7; 191:12-19). 8 9. 9 cooling towers. Id. at 192:4-193:3). 10 10. 11 exposure to Legionella. See Freije deposition, dated September 16, 2005, 163:5-11, excerpts 12 attached as Ex. C). 13 11. 14 Sapiro's alleged exposure to pathogenic levels of Legionella because the cooling towers would 15 not have been in operation during Mr. Sapiro's stay. (Ex. A, 193:4-12). 16 12. 17 experienced Legionella exposure at a hotel or heard of Legionella exposure at a hotel that he 18 worked for. (Marrs' depo, taken September 23, 2004, 5:1-11:25; 63:22-65:6, excerpts attached 19 as Ex. D). 20 21 22 23 24 25 -3Case 2:03-cv-01555-SRB Document 166 Filed 03/27/2006 Page 3 of 7

Sunstone's Engineering Manual's sole reference of a test for Legionnaires Disease

The litmus dip cell test applies only to the cooling towers, and ordinarily it is

The nine "checks to help prevent the spread of Legionella" pertain to only the

Mr. Freije stated that the cooling towers did not contribute to Mr. Sapiro's alleged

Professor Teeters concluded that the cooling towers could not have caused Mr.

In over ten years of experience as a manager, Mr. Robert Marrs had never

MEMORANDUM OF POINTS AND AUTHORITIES Plaintiffs' Response to Defendants' Separate Statement of Facts and Plaintiffs' CounterStatement of Facts rely heavily on evidence not admissible for various evidentiary or civil

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procedural reasons as indicated in the following summaries of objectionable paragraphs. Based on the following, the objectionable paragraphs should be stricken.

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DEFENDANTS' REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' SEPARATE STATEMENT OF FACTS 5. Plaintiffs' additions to Paragraph 5 relate to subsequent remedial measures and

should be stricken in accord with Federal Rules of Evidence Rule 407. 6. Plaintiffs' additions represent impermissible legal arguments and legal conclusions

and should be stricken. 7. Mr. Freije's opinion regarding whether Sunstone exercised reasonable care calls

for a legal conclusion and should be stricken in accord with Federal Rules of Evidence Rule 704. See McHugh v. United Svc. Auto. Ass'n., 164 F.3d 451, 454 (9th Cir. 1999). Additionally, Mr. Freije is not competent to provide expert testimony, and his testimony is not reliable. Therefore, Mr. Freije's testimony should be stricken in accord with Federal Rules of Evidence 702. See Kumho Tire v. Carmichael, 526 U.S. 137 (1999); Daubert v. Merrell Dow Pharmacy, 509 U.S. 579 (1993). 16. Defendants object to Plaintiffs' statement in Paragraph 16. Steven W. Davis,

whose Declaration purportedly supports Plaintiffs' assertions, lacks personal knowledge of Sunstone's response to learning of Mr. Sapiro's illness, and should be stricken in accord wi th Federal Rules of Evidence Rule 602. 17. Sunstone objects to Plaintiffs' use of Mr. Freije's testimony, because Plaintiffs

cannot establish Mr. Freije qualifies as an expert witness, or that his testimony is reliable. See argument in Paragraph 7. 19. Sunstone objects to Plaintiffs' statements regarding the presence of Legionella on

the San Marcos Hotel property in 2002; February, 2003; May, 2003; and August, 2003. The

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allegations in Mr. Sudbeck's amended complaint have not been proven to provide foundation for the presence of Legionella in 2002; there is no foundation to prove Legionella was present

3 during Mr. Sapiro's stay in February, 2003; there is no foundation to relate Mr. Freije's testing 4 in May, 2003, to Mr. Sapiro's stay in February, 2003; and Sunstone's testing in August, 2003 5 was a subsequent remedial measure. Consequently, the statements and supporting evidence 6 should be stricken in accord with Federal Rules of Evidence Rules 401, 402, 403, 407, and 702. 7 20. 8 conclusions. Because they are not statements of fact, they should be stricken. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -5Case 2:03-cv-01555-SRB Document 166 Filed 03/27/2006 Page 5 of 7

Plaintiffs' assertions in Paragr aph 20 represent impermissible arguments and

DEFENDANTS' RESPONSE TO PLAINTIFFS' COUNTER-STATEMENT OF FACTS 23. Defendants object to Plaintiffs' Paragraph 23. Mr. Freije is not competent to See Kumho, 526 U.S. 137;

render opinions in this case, and his opinions are unreliable.

Daubert, 509 U.S. 579; and Federal Rules of Evidence 702. Moreover, Mr. Freije's statement that "Sunstone failed to exercise reasonable care to prevent Legionnaire's disease at the San Marcos Hotel" requires a legal conclusion of the ultimate issue and therefore should be stricken in accord with Federal Rules of Evidence 704 and see McHugh, 164 F.3d at 454. 24. Defendants deny Paragraph 24. Plaintiffs' statement mischaracterizes Mr.

Stougaards' testimony. Mr. Stougaard testified only that a manual existed that outlined the procedures for the maintenance of its systems. Any assertions regarding the establishment of standard for prevention of injuries lack foundation and should be stricken. 26. Defendants deny Plaintiffs' Paragraph 26. Plaintiffs' statements mischaracterize

Mr. Stougaard's testimony. 29. Defendants' deny Plaintiffs' Paragraph 29. Plaintiffs' statements regarding the

prolonged existence of Legionella bacteria and pathogenic level in the hotel's water lacks

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foundation. Mr. Sudbeck's allegations that he contracted Legionnaire's disease from the San Marcos Hotel in July, 2002, have not been proven. Moreover, Mr. Sudbeck's allegations are

3 irrelevant. See Cooper v. Firestone Tire and Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991) 4 (holding that evidence of dissimilar accidents lack the relevance required by Rules 401 and 5 402). Furthermore, there is no foundational evidence to support the presence of Legionella in 6 the San Marcos in February, 2003. The presence of Legionella at the San Marcos in May, 2003, 7 confirmed by the testing of Mr. Freije, does not prove the existence of Legionella anytime 8 before the testing date. Consequently, these test results are irrelevant and prejudicial and should 9 be stricken in accord with Federal Rules of Evidence 401, 402, and 403. Finally, any evidence 10 demonstrating the presence of Legionella at the San Marcos Hotel as a result of the testing 11 conducted by Sunstone occurred as a subsequent remedial measure and should be stricken in 12 accord with Federal Rules of Evidence 407. 13 32. 14 that was part of, and evidences, Sunstone's subsequent remedial measures. 15 question quoting from this inadmissible evidence should be stricken in accord with Federal 16 Rules of Evidence Rule 407. Without any foundation for the question or for Professor Teeters' 17 answer, Professor Teeters' answer should also be stricken. 18 DATED this 27th day of March, 2006. 19 20 21 22 23 24 25 -6Case 2:03-cv-01555-SRB Document 166 Filed 03/27/2006 Page 6 of 7

Defendants object to Paragraph 23. Plaintiffs question quotes from a document Therefore, at

KUNZ PLITT HYLAND DEMLONG & KLEIFIELD A Professional Corporation By s/ Chad Baker Matthew D. Kleifield Chad C. Baker 3838 North Central Avenue, Suite 1500 Phoenix, Arizona 85012-1902 Attorneys for Defendants

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COPY of the foregoing e-filed this 27th day of March, 2006, with: United States District Court Clerk of the Court 401 West Washington Phoenix, Arizona 85003 COPIES of the foregoing mailed this 27th day of March, 2006, to: Hon. Susan J. Bolton 401 West Washington Phoenix, Arizona 85003 Chloe Andrews Boies Schiller & Flexner LLP 33 Main Street Armonk, NY 10504 Attorney for Plaintiffs Marvin and Gloria Sapiro COPIES of the foregoing electronically delivered this 27th day of March, 2006, to: Ann M. Galvani Boies Schiller & Flexner LLP 33 Main Street Armonk, NY 10504 Attorney for Plaintiffs David W. Shapiro, Esq. Boise, Schiller & Flexner, L.L.P. 199 Harrison Street Oakland, CA 94612 Attorney for Plaintiffs Steven W. Davis, Esq. Jorge Schmidt Boise, Schiller & Flexner, L.L.P. Bank of America Tower, Suite 2800 100 S.E. 2 nd Street Miami, Florida 33131-2144 Attorney for Plaintiffs s/C.Waight

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