Free Motion in Limine - District Court of Arizona - Arizona

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Matthew D. Kleifield ­ 011564 Chad C. Baker ­ 023083 Julie R. Barton ­ 022814 KUNZ PLITT HYLAND DEMLONG & KLEIFIELD 3838 North Central Avenue, Suite 1500 Phoenix, Arizona 85012-1902
Email: [email protected] Email: [email protected] (602) 331-4600

Attorneys for Defendants 7 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 163 Filed 03/27/2006 Page 1 of 5

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' MOTION IN LIMINE NO. 3 REGARDING WATER TESTING (Oral Argument Requested)

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

Defendants ("Sunstone") resubmit their Motion in Limine Number 3 Regarding Water Testing and respectfully request this Court consider it with Sunstone's Motion for Summary Judgment filed December 5, 2005. This Court, by Order dated December 7, 2005, denied without prejudice Sunstone's Motions in Limine which were filed on December 5, 2005. See Docket at 139. Sunstone's Motion for Summary Judgment stands alone. Nevertheless, because Plaintiffs relied on the Water Testing Results in their Response in Opposition to Sunstone's Motion for Summary Judgment, failure to consider the Motion in Limine before ruling on the Motion for Summary

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Judgment would provide this Court with an incomplete understanding and briefing of the issues presented.

3 Defendants ("Sunstone") move this Court for its Order in Limine excluding any 4 statement, argument, testimony, or evidence of the presence of Legionella bacteria at the San 5 Marcos Golf Resort and Conference Center (the "San Marcos"), as demonstrated by water 6 sample testing performed no less than 3 months after the plaintiffs were present as guests at the 7 San Marcos. Rules 402, 403, and 702, Federal Rules of Evidence, preclude such evidence's 8 admissibility. The following Memorandum of Points and Authorities and this Court's entire file 9 support this Motion. 10 MEMORANDUM OF POINTS AND AUTHORITIES 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I. PERTINENT FACTS Plaintiffs were guests at the San Marcos from February 6, 2003 to February 11, 2003. See Am. Compl. ¶¶ 6, 14. In May 2003, Plaintiffs' purported expert, ("Mr. Freije")

surreptitiously sampled water from various locations at the San Marcos. (Freije Depo. 235:20, excerpts attached as Ex. A). Those samples demonstrated Legionella of various sera groups present in varying concentrations in some of the locations sampled. (see Laboratory report, attached as Ex. B). In August 2003, after receiving correspondence from plaintiffs' counsel advising of Mr. Sapiro's illness and threatening suit, Sunstone hired a private firm to sample and quantify Legionella bacteria in the water system. (Studer Depo. 73:16, excerpts attached as Ex. C). The results of both sampling indicated the presence of relatively large Legionella populations. Despite the presence of Legionella after Plaintiffs' stay, the dynamic nature of bacterial growth permits unusually high spikes in colony numbers shortly after colony numbers were immeasurable. (Ex. A at 269-270). Consequently, Plaintiffs did not and cannot perform a -2Case 2:03-cv-01555-SRB Document 163 Filed 03/27/2006 Page 2 of 5

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regression analysis, or any analysis, to determine the Legionella levels present during Plaintiffs' stay, and thus cannot state to what extent levels measured 3 months later are representative of

3 levels present at the time of plaintiffs' stay (Ex. A at 236-37, 242-43). 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -3Case 2:03-cv-01555-SRB Document 163 Filed 03/27/2006 Page 3 of 5

II.

ANY RESULTS OF SAMPLING UNDERTAKEN 3 MONTHS OR MORE FOLLOWING PLAINTIFFS' STAY IS IRRELEVANT AND PROPERLY EXCLUDED FROM EVIDENCE. The identification and quantification of Legionella populations months after Plaintiffs

stay is irrelevant, and therefore inadmissible. Irrelevant evidence is inadmissible. See Fed. R. Evid. 402. Only evidence that tends to make the existence of a fact of consequence more or less likely is relevant. Fed. R. Evid. 401. Relevant evidence is excludable when the danger of prejudice or jury confusion or misguidance substantially outweighs the evidence's probative value. Fed. R. Evid. 403. The presence of Legionella months after Plaintiffs' stay is not germane to the issues in this case ­ namely the presence of a dangerous condition, or Sunstone's knowledge of a dangerous condition, at the time of Plaintiffs' stay. "The [results do] not demonstrate the conditions existing at the time of [Plaintiff's stay] as it was [conducted] ... months after [Plaintiffs' stay]." Alimenta v. Stauffer, 598 F.Supp. 934, 940 (N.D.Ga. 1984)(emphasis in original). This conclusion is supported by Mr. Freije's admission of the dynamic nature of bacterial growth and the inability to perform regression analysis to apply the test results to the time of Plaintiffs' stay. Besides being irrelevant, admission of these test results would merely provide the Jury with the opportunity to extrapolate data in a manner that scientists cannot to reach an improper and incorrect conclusion that Legionella, in sufficient numbers to constitute an unreasonably

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dangerous condition, were present during Plaintiffs' stay. The prejudice that would arise from this improper conclusion substantially outweighs any probative value the results may have.

3 Consequently, Sunstone requests this Court prohibit Plaintiffs, Plaintiffs' counsel, or 4 Plaintiffs' witnesses from referencing, testifying or introducing any evidence relating to 5 bacterial sampling and results conducted and obtained after Plaintiffs' stay. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -4Case 2:03-cv-01555-SRB Document 163 Filed 03/27/2006 Page 4 of 5

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 Julie R. Barton 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

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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 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 Steven W. Davis, Esq. 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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