Free Motion in Limine - 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 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT

7 IN AND FOR THE DISTRICT COURT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Case 2:03-cv-01555-SRB Document 164 Filed 03/27/2006 Page 1 of 6

MARVIN SAPIRO SAPIRO, his wife,

and

GLORIA

No. CIV03-1555 PHX SRB DEFENDANTS' MOTION IN LIMINE NO. 8 REGARDING SUDBECK V. SUNSTONE HOTEL PROPERTIES, INC., CIV04-1535 PHX JWS (Oral Argument Requested)

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

Defendants ("Sunstone") move this Court for its Order in Limine excluding any statement, argument, reference, testimony, or evidence of the unrelated action Sudbeck v. Sunstone Hotel Properties, Inc, CIV03-1535 PHX JWS ("Sudbeck"). Rules 401, 402, and 403 of the Federal Rules of Evidence preclude such evidence's admissibility. The following

Memorandum of Points and Authorities and this Court's entire file support this Motion. MEMORANDUM OF POINTS AND AUTHORITIES I. PERTINENT FACTS The San Marcos Golf Resort and Conference Center ("San Marcos") in Chandler hosted Gilbert Sudbeck ("Mr. Sudbeck") and Marvin Sapiro ("Mr. Sapiro"). Although both stayed at

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the San Marcos, Mr. Sudbeck's stay preceded Mr. Sapiro's stay by approximately eight (8) months. Mr. Sudbeck checked into the San Marcos around June 24, 2002 and checked out and returned to his home in South Dakota around June 27, 2002. (See Amend. Compl. ¶IV). Mr.

Sapiro checked into the San Marcos on February 6, 2003, and checked out and returned to his home in Boca Raton, Florida on February 11, 2003. (See Ex. A, Sapiro Amend. Compl. ¶¶6, 14). Shortly after their respective return home, Mr. Sapiro and Mr. Sudbeck both experienced the onset of illness, and ultimately both were diagnosed with Legionnaire's Disease. (Amend. Compl.; Ex. 1, ¶1.). Although Mr. Sudbeck was diagnosed with Legionnaires Disease months before Mr. Sapiro's stay, Sunstone did not learn of any guest's alleged illnesses before July 2004, approximately 7 months after Mr. Sapiro's stay. (Ex. B, Depo. of Gary Stougaard, 76:1925) II. SUDBECK AND SAPIRO ARE NOT SUBSTANTIALLY SIMILAR TO PROVIDE ANY RELEVANCY TO THE ISSUES GERMAINE TO THE RESOLUTION OF SAPIRO. A unproven claim of Legionella exposure at the San Marcos approximately eight months

16 before Mr. Sapiro's stay is not relevant. Irrelevant evidence is inadmissible. See Fed. R. Evid. 17 402. Only evidence that tends to make the existence of a fact of consequence more or less likely 18 is relevant. Fed. R. Evid. 401. Relevant evidence is excludable when the danger of prejudice or 19 jury confusion or misguidance substantially outweighs the evidence's probative value. Fed. R. 20 Evid. 403. 21 Evidence of dissimilar accidents lack the relevance required by Rules 401 and 402. 22 Cooper v. Firestone Tire and Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991). Introduction of 23 evidence of other accidents should occur only upon a showing by plaintiff of the substantial 24 similarity of the events. Id. 25 -2Case 2:03-cv-01555-SRB Document 164 Filed 03/27/2006 Page 2 of 6

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The substantial similarity should relate to the elements of the cause of action. Coincidental events of factual similarity are not substantially similar if the factual coincidences do posses the same legal ramifications. The focus should be on the legal similarities. Because a hotel does not insure the safety of its guests and is not liable for the mere fact an injury may have occurred on its property, a plaintiff must show that the property owner had notice of the dangerous condition. Haynes v. Syntek Finance Corp., 909 P.2d 399, 406 (App. 1995). Such proof may arise by showing that (1) Sunstone caused the dangerous condition, (2) that Sunstone had actual knowledge of the condition, or (3) that the condition existed for sufficient length of time that Sunstone should have known of the condition and remedied it. Id. Plaintiffs presumably do not disagree that they possess the legal burden to demonstrate that Sunstone had knowledge of a dangerous conditions. To overcome their burden, plaintiffs

attempt to introduce the Sudbeck allegations to prove either the presence of a hazard or Sunstone's notice of a potential hazard. The alleged events giving rise to Sudbeck and this case, however, are not similar. Mr. Sapiro's and Mr. Sudbeck's respective stay and their illness onset were separated by almost eight months. Common sense demonstrates that this time frame is legally significant to disjoin any coincidence shared by these two cases. An example helps demonstrate this point. The fact that Joe and Jane slipped on water and fell at the Courthouse entrance does not automatically prove the similarity between Joe's and Jane's accident. As more time passes between Joe's and Jane's respective visit to the Courthouse, the more likely their respective accidents are discrete accidents rather than a continuous event. Indeed, there could be no commonality of facts, outside of those giving rise to the mere coincidence of Joe and Jane slipping at the same location, if Joe slipped on a puddle caused by the winter rains, and Jane slipped in July on a puddle caused by a spilled glass of water. -3Case 2:03-cv-01555-SRB Document 164 Filed 03/27/2006 Page 3 of 6

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Despite the complexity raised by the scientific nature of Mr. Sapiro's and Mr. Sudbeck's cases, the factual disconnect demonstrated by Joe's and Jane's Courthouse falls is equally evident here. The environmental conditions certainly changed during the eight month timeframe to make the two stays isolated incidents. Bacteria populations, like those of other living Plaintiffs' expert

organisms, constantly change in response to environmental conditions.

concedes that bacterial populations may spike quickly so that immeasurable levels of bacteria (colony forming units "CFUs") may exist one day, and vastly numerous CFUs are detectable the next day. (See Ex. C; Depo. of Mr. Freije dated 9/16/05, 269-70). The dynamic nature of bacterial reproduction and population growth in response to changing environmental conditions ensures the dissimilarity of these two matters. Given the significant time lapse between Mr. Sapiro's stay and Mr. Sudbeck's stay, the Sudbeck allegations do not help demonstrate whether Sunstone owed a duty to its guests, breached that duty, or caused Mr. Sapiro's alleged injuries. The individual nature of these legal questions demonstrates the lack of a common thread between these cases. Additionally, Sudbeck does not help demonstrate notice. Mr. Sudbeck's failure to notify Sunstone of the potential hazard until after Mr. Sapiro's stay does not and can not prove that Sunstone was aware of the hazard. A contrary result would exist had Sunstone learned of Mr. Sudbeck's alleged illness before Mr. Sapiro's stay. Finally, admission of evidence relating to the Sudbeck matter would unduly prejudice Sunstone. The sole purpose of plaintiffs' introduction of the Sudbeck matter would be to suggest that the happening of two isolated, albeit rare, occurrences demonstrates Sunstone's negligence. (See Pls.' Resp. Mot. Summ. J. at 2). This inference is both factually and logically incorrect. Besides the facts that Sunstone learned of both the presence of a hazard and Mr. Sudbeck's alleged illness after Mr. Sapiro's stay, Sudbeck's allegations remain merely un-4Case 2:03-cv-01555-SRB Document 164 Filed 03/27/2006 Page 4 of 6

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proven assertions. Despite the unproven nature of Sudbeck, a jury could easily reach plaintiffs' conclusion. The ease at which this inference can be drawn creates a high likelihood that a jury would use the happening of two isolated and dissimilar events as proof of Sunstone's negligence. Permitting the jury to draw scientifically and logically impermissible conclusions, based on unproven allegations, regarding causation and fault would severely prejudice Sunstone. Consequently, Sunstone respectfully requests this Court prohibit Plaintiffs,

Plaintiffs' counsel, or Plaintiffs' witnesses from referencing, testifying, or introducing any evidence relating to Sudbeck. 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

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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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