Free Reply to Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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' REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT (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") have demonstrated that Plaintiffs can neither present sufficient evidence to establish a prima facie case of negligence nor demonstrate the presence of triable issues of material fact. Plaintiffs, relying on objectionable and inadmissible evidence and

testimony, have not carried their burden of establishing the elements of their proffered claim. Consequently, entry of summary judgment is appropriate. The following Memorandum of Points and Authorities and this Court's entire file supports Sunstone's Reply. MEMORANDUM OF POINTS AND AUTHORITIES I. SUNSTONE WAS UNDER NO DUTY TO TEST FOR LEGIONELLA Although a business owner must exercise reasonable care to protect its guests, it is not an insurer of the invitee's safety. Preuss v. Sambo's of Arizona, Inc., 130 Ariz. 288, 289, 635 P.2d
Case 2:03-cv-01555-SRB Document 165 Filed 03/27/2006 Page 1 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1210, 1211 (1981). A business' duty to exercise reasonable care to protect from harmful biological organisms arises when the business has notice of the presence of such harmful organisms. See Haynes v. Syntek Finance Corp., 909 P.2d 399, 406 (App. 1995) (stating that a showing of notice of a dangerous condition, by either demonstrating the defendant or its agent caused the dangerous condition, had actual knowledge of the hazard, or that the hazard existed for sufficient length of time to demonstrate constructive notice, is needed for negligence to exist). In this case, Plaintiffs cannot demonstrate the existence of a hazard or that Sunstone had notice of a hazard. To attempt to demonstrate the presence of a hazard, Plaintiffs incorrectly rely on Mr. Freije's testimony, the allegations of Sudbeck v. Sunstone Hotel Properties, Inc., CIV04-1535-PHX-JWS ("Sudbeck"), water sampling test results conducted months after Mr. Sapiro's stay, Sunstone's Engineering Operations Manual, and the Mode of Operation Rule. A. PLAINTIFFS' INADMISSIBLE EVIDENCE DOES NOT CREATE AN ISSUE OF FACT

Inadmissible evidence cannot defeat a motion for summary judgment. See Fed. R. Civ. P. 56(e); Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1181 (9th Cir. 1988) ("It is well settled that only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment."). Nonetheless, Plaintiffs' Response relies heavily on inadmissible evidence. Specifically, Plaintiffs heavily rely on the testimony of Mr. Freije, the Sudbeck allegations, and test results. Although Sunstone objected to the use of this evidence in

separately filed motions in limine, it briefly addresses these issues here. Mr. Freije's recent declaration which Plaintiffs attached as Exhibit 5 to their Response and Counter Statement of Facts does not create a question of fact. Rather, this declaration contradicts his prior deposition testimony. In deposition, Mr. Freije stated that bacteria can -2Case 2:03-cv-01555-SRB Document 165 Filed 03/27/2006 Page 2 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

"spike quickly" so that it may be unusually high one day even though it was not a measurable amount shortly before that analysis. (SSOF ¶ 20, Docket 137). In his recent declaration, however, Mr. Freije backtracks and states that it would take months for harmful levels of Legionella contamination to develop in a domestic water system. (Pls. Resp to MSJ Ex 5). Plaintiffs' expert cannot create issues of material fact by presenting contradictory positions on the same issue; such issues are truly a sham. Radobenko v. Automated Equipment Corp., 520 F.2d 540, 544 (9th Cir. 1975), but see, Messick v. Horizon Industries Inc., 62 F.3d 1227, 1231 (9th Cir. 1995) (stating that elaborating, explaining, or clarifying prior testimony is not a basis for excluding the affidavit). Additionally, Mr. Freije and Plaintiffs, by arguing that Sunstone must demonstrate the occurrence of an unusual event to account for the Legionella contamination in pathogenic levels, attempt to shift the burden on Sunstone to prove that such Legionella levels were not present. (Pls' Resp. to Mot. Summ. J. Ex 2, Ex. 5). Mr. Freije combines this assertion with a mere suggestion that there was a potential for Legionella to exist in the hotel water system during Mr. Saprio's stay. (Pls. Resp. to Mot. Summ. J. Ex. 2). Evidence that Legionella could have been present is not evidence that it was present in pathogenic concentrations. Furthermore, Plaintiffs present as a material fact Mr. Freije's opinion regarding whether Sunstone exercised reasonable care. (See Pls.' Resp. to Mot. Summ. J. at 2). Although Federal Rules of Evidence Rule 704(a) permits testimony that addresses the ultimate issue, an expert may not give legal conclusions. See McHugh v. United Service Auto. Assoc., 164 F.3d 451, 454 (9th Cir. 1999). Because an opinion on whether Sunstone used "reasonable care" requires a legal conclusion, Mr. Freije's statement is improper. Plaintiffs also attempt to use the Sudbeck allegations as proof of the presence of a dangerous condition and notice of a potentially dangerous condition. As Sunstone's Motion in -3Case 2:03-cv-01555-SRB Document 165 Filed 03/27/2006 Page 3 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Limine Number 8 (filed concurrently with this Reply) demonstrates, because the allegations in Sudbeck have not been proven, Sunstone received no notice of the allegations in Sudbeck until after Mr. Sapiro's stay, and no expert testimony demonstrates a sufficient relationship between the two events to show relevancy, the Sudbeck allegations do not create a material question of fact. Finally, Plaintiffs attempt to use test results from water samples collected months after Mr. Sapiro's stay as evidence of the presence of a dangerous condition. As Sunstone's Motion in Limine Number 3 (originally filed on December 5, 2005 and re-filed with this Reply) demonstrates, Plaintiffs cannot demonstrate that test results reflect the conditions of the property during Mr. Saprio's stay. The use of this inadmissible evidence does not create a material issue of fact. B. SUNSTONE'S ENGINEERING MANUAL DOES NOT ESTABLISH NOTICE OF A DANGEROUS CONDITION

Plaintiffs did not dispute that that there is no hospitality industry standard or a regulatory requirement for the testing of Legionella. Rather, Plaintiffs mistakenly argue that Sunstone should have tested because the presence of unreasonably dangerous levels of Legionella was foreseeable. To support this proposition, Plaintiffs cite to Sheppard v. Crow-Barker-Paul No. 1 Ltd Partnership, 968 P.2d 612 (Ariz. App. 1998). The Sheppard case dealt with issues that fit within the common collective knowledge of the jury. Specifically, at issue was a hotel's responsibility for failure to retrofit patio doors containing annealed glass with safety glass. Id. at 617. The common understanding of the dangers of broken glass needs little mention. Nonetheless, because evidence demonstrated that the hotel had experienced problems with other annealed glass doors breaking and that the hotel was aware that the specific door in question had both annealed glass and a failing tract, the -4Case 2:03-cv-01555-SRB Document 165 Filed 03/27/2006 Page 4 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Court held that the hotel may not subject its guests to a known, foreseeable, and unreasonable risk. Id. Sheppard, however, is not applicable to this case. First, unlike the hotel's specific experience with the hazardous condition, there is no evidence that Sunstone had knowledge of a potentially dangerous condition or that Legionella contamination in pathogenic levels was foreseeable. Moreover, while a jury is permitted to use common knowledge to answer whether a foreseeable unreasonable risk existed or a defendant exercised reasonable care, when the complexity of the factual questions exceed the jury's common collective knowledge, an expert witness is necessary to establish what constitutes reasonable care. Rossell v. Volkswagen of America, 709 P.2d 517, 523-524 (Ariz. 1985); Thomas v. Goudreault, 786 P.2d 1010, 1022 (Ariz. App. 1990). This case's issues, unlike the issues surrounding the dangers of annealed glass addressed in Sheppard, exceed common knowledge and require the use of experts. Specifically, the issues in this case relate to the potential risks that pathogenic levels of Legionella pose to a hotel, the need to balance this potential risk with the risk of scalding, and the appropriate means to guard against these competing risks. Because these issues require the use of an expert, Sheppard's holding that allowed the case to present to the jury is not applicable. In this case, the standard of reasonable care needs to be established and only Sunstone's expert, Professor Teeters, has presented admissible testimony regarding the appropriate standard of care in the hospitality industry. Sunstone's engineering manual did not create a duty to test for Legionella bacteria. The manual does not suggest, let alone require, the testing of the domestic water system. Indeed, the manual 's sole reference of a test for Legionnaires' disease is the litmus dip cell test. (See Defs. -5Case 2:03-cv-01555-SRB Document 165 Filed 03/27/2006 Page 5 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Supp. Stat. of Facts in Support of Reply ¶7). According to Professor Teeters, this litmus dip cell test applies only to the cooling towers and is ordinarily performed by the professional water treatment contractor. Id at ¶8. Similarly, the nine "checks to help prevent the spread of

Legionella" only reference procedures to reduce the potential proliferation of Legionella in the cooling towers. Id. at ¶10. Because the concerns and risks associated wi th cooling towers differs from those posed by the domestic water system, the manual's requirements for operating the cooling towers do not establish procedures for the operation of the domestic water system. See, Id. at ¶6. Additionally, because both Plaintiffs' purported expert, and Professor Teeters opined that the cooling towers were not a factor in this case, the engineering manual 's procedures do not apply. Id. at ¶¶10,11. Consequently, Sunstone's engineering manual does not establish a duty to test the domestic water system for the presence of pathogenic levels of Legionella. C. THE MODE OF OPERATION RULE DOES NOT APPLY

There is not admissible evidence to suggest that Sunstone had actual or constructive knowledge of a dangerous condition. Indeed, there is no admissible evidence demonstrating the presence of a dangerous condition during Mr. Sapiro's stay. To overcome this shortfall,

Plaintiffs errantly argue that Sunstone could be liable under the Mode of Operation Rule. Although the Mode of Operation Rule removes a plaintiffs' need to demonstrate notice of a dangerous condition, its application is limited. Chiara v. Fry's Food Stores of Arizona, Inc., 733 P.2d 283, 286 (Ariz. 1987). It applies only when a hazard would regularly arise from the adopted method of operation, and the business failed to exercise reasonable care to prevent harm from the created hazard. See Id.; McKillip v. Smitty's Super Valu, Inc., 945 P.2d 372, 375 (Ariz. App. 1997). The Mode of Operation Rule does not apply when the hazard is rare. Cf., Chiara,

-6Case 2:03-cv-01555-SRB Document 165 Filed 03/27/2006 Page 6 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

733 P.2d at 286. Additionally, the Mode of Operation Rule does not relieve Plaintiffs' burden of establishing negligence, it merely changes the elements that Plaintiffs must prove. Id. Plaintiffs failed to demonstrate that Legionella would regularly proliferate to pathogenic levels without routine testing. Conversely, the admissible evidence demonstrates the rarity of pathogenic levels of Legionella. Professor Teeters discussed the absence of testing for

Legionella in the hospitality industry and the rarity of Legionellosis from hotel stays. (See, Defs. Supp. Stat. of Facts in Support of Reply, ¶¶ 2,4,5). Similarly, despite their combined 36 years of experience in the hotel industry, Mr. Marrs and Mr. Hammermeister never before routinely tested for Legionella and never experienced Legionella contamination in pathogenic levels or exposure in any of their employing properties. (See Id. at ¶12; SSOF ¶11, Docket 137). This evidence confirms the rarity of Legionella contamination in pathogenic levels and demonstrates the inapplicability of the Mode of Operation Rule. Moreover, Arizona courts generally limit the Mode of Operation Rule to industries where third-party's acts routinely create, or have the potential to create, hazards, such as in business with open food or product displays. Chiara, 733 P.2d at 286. Although the Mode of Operation Rule is not solely limited to food and product displays, "[a] plaintiff must demonstrate the foreseeability of third-party interference before Arizona courts will dispense with traditional notice requirements." Id. Because Plaintiffs cannot demonstrate the foreseeability of

unreasonably dangerous levels of Legionella, indeed the evidence shows its rarity, the mode of operation rule is not applicable. II. PLAINTIFFS' FAILURE TO RESPOND TO ALL THE ISSUES RAISED IN SUNSTONE'S MOTION FOR SUMMARY JUDGMENT DEMONSTRATES PLAINTIFFS' CONSENT AND AGREEMENT WITH SUNSTONE. The party opposing a motion for summary judgment must present evidence raising a material question of fact to the Court; the Court is not obligated to comb the record in search for -7Case 2:03-cv-01555-SRB Document 165 Filed 03/27/2006 Page 7 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

material questions of fact. Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1029 (9th Cir. 2001). Additionally, failure to respond to a motion for summary judgment may constitute consent to the moving party's position. Brydges v. Lewis, 18 F.3d 651, 652 (9th Cir. 1994). In this case, Sunstone argued that Plaintiffs cannot prove causation. (Defs.' Mot. Summ. J.). In Response, Plaintiffs limited their discussion on causation to two statements: "The record before this Court shows that Defendants' negligence caused Plaintiffs' injuries[,]" and "The record here is replete with evidence demonstrating Sunstone's negligence as being the cause of Mr. Sapiro's injuries." (Pls.' Resp. Mot. Summ. J. at 3, 16). These conclusory statements fail to identify any supporting evidence and do not respond to Sunstone's position. By failing to adequately respond, Plaintiffs implicitly consent to Sunstone's positions. III. CONCLUSION To maintain a claim for negligence, Plaintiffs must show that (1) Sunstone owed them a duty to conform to a standard of conduct; (2) that Sunstone breached that duty; (3) that the breach of the duty caused Plaintiffs' injuries; and (4) damages. Piccola v. Woodall, 921 P.2d 710, 712 (Ariz. App. 1996); Smith v. Johnson, 899 P.2d 199, 202 (Ariz. App. 1995). Plaintiffs have failed to present admissible evidence and demonstrate that Sunstone had a duty to test for Legionella, that Sunstone breached the standard of conduct owed to Plaintiffs, and that Sunstone caused Plaintiffs' injuries. Because Plaintiffs failed to establish these essential elements,

Sunstone respectfully requests this Court grant its Motion for Summar y Judgment. ... ... ... ... -8Case 2:03-cv-01555-SRB Document 165 Filed 03/27/2006 Page 8 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

DATED this 27th day of March, 2006. 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

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

-9Case 2:03-cv-01555-SRB Document 165 Filed 03/27/2006 Page 9 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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

- 10 Case 2:03-cv-01555-SRB Document 165 Filed 03/27/2006 Page 10 of 10