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 Defendants ("Sunstone") resubmit their Motion in Limine Number 2 Regarding Subsequent Remedial Measures 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 testing conducted by Sunstone, taken in response to learning of Plaintiffs' illness and potential litigation, in their Response in Opposition to Sunstone's Motion for Summary Judgment, failure
Case 2:03-cv-01555-SRB Document 162 Filed 03/27/2006 Page 1 of 7

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. 2 REGARDING EVIDENCE OF SUBSEQUENT REMEDIAL MEASURES (Oral Argument Requested)

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

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to consider the Motion in Limine before ruling on the Motion for Summary 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 any acts, events, or measures taken by, or on 5 behalf of, Sunstone in response to and after Sunstone's notification of Plaintiff Marvin Sapiro's 6 illness and threat of lawsuit. Rule 407 and Rule 403 of the Federal Rules of Evidence preclude 7 admission of such evidence. The following Memorandum of Points and Authorities and this 8 Court's entire file support this Motion. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -2Case 2:03-cv-01555-SRB Document 162 Filed 03/27/2006 Page 2 of 7

MEMORANDUM OF POINTS AND AUTHORITIES I. PERTINENT FACTS Plaintiffs Mr. and Mrs. Sapiro stayed at the Sheraton San Marcos Golf Resort and Conference Center (the "San Marcos") from February 6, 2003 to February 11, 2003. (See Amended Complaint, ¶¶ 6, 14). Plaintiffs returned to their home state of Florida where Mr. Sapiro became ill, was hospitalized, and later released. (See Amended Complaint, ¶¶ 15-27). By a certified letter dated July 25, 2003, Plaintiffs notified Sunstone of Mr. Sapiro's illness, conveyed their allegation of Legionnaires Disease, conveyed their belief he contracted his illness while staying at the San Marcos, and stated their intention of filing suit. (See July 25, 2003 Correspondence, attached as Ex. A). Responding to the information from Plaintiffs, Sunstone implemented a series of measures to evaluate and remediate any potentially dangerous situation caused by its domestic water system. Sunstone transferred all guests to a different hotel and then closed the hotel, (See Hammermeister Deposition, p.63:19 ­ p.67:14, excerpts attached as Ex. B); Sunstone hired a private firm to sample and quantify the population of Legionella bacteria in the water system,

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(See Studer Deposition, p.73:16, excerpts attached as Ex. C); Sunstone also super-heated and hyper-chlorinated the hot water line, installed new boilers, installed new backflow prevention to

3 the city's water source, installed new water heaters and water storage tanks, replaced all the 4 showerheads, replaced all aerators at hand sinks, replaced circulation pumps, replaced piping to 5 the boilers, and ordered a chlorine dioxide injection system. (Ex. B, pp.88-90). The local media 6 ran news stories about Sunstone's efforts. (See Ex. D). Sunstone likewise provided fact sheets 7 to guests and press releases to the media regarding its efforts. (See fact sheets and Press 8 Releases, attached as Ex. E). 9 10 11 12 13 measures are taken that, if taken previously would have made the injury or harm less likely to 14 occur, evidence of the subsequent measures is not admissible to prove negligence, culpable 15 conduct ... or a need for a warning or instruction." Fed. R. Evid. 407 (2005); see also Columbia 16 & P. S. R. Co. v. Hawthorne, 144 U.S. 202, 208, 12 S.Ct. 591, 593 (U.S.1892)(stating that 17 "[p]eople do not furnish evidence against themselves simply by adopting a new plan in order to 18 prevent the recurrence of an accident[,]" to hold that admitting evidence of changes in the saw19 mill's design after an accident was improper). 20 Subsequent measures include investigations taken after the incident . See Maddox v. City 21 of Los Angeles, 792 F.2d 1408, 1417 (9th Cir. 1986) (holding that "the internal affairs 22 investigation and measures taken by the defendant city were remedial measures[.]"); Compl. of 23 Consolidation Coal Co., 123 F.3d 126, 136 (3rd Cir. 1997)(excluding as a subsequent remedial 24 measure a memo detailing an investigation and its conclusions that was prepared five days after 25 -3Case 2:03-cv-01555-SRB Document 162 Filed 03/27/2006 Page 3 of 7

II.

ANY EVIDENCE OF MEASURES TAKEN IN RESPONSE TO INFORMATION CONVEYED IN PLAINTIFFS' JULY 25, 2003 CORRESPONDENCE, REPORTS OF THESE MEASURES, OR THE BASIS FOR UNDERTAKING SUCH MEASURES, IS PROPERLY EXCLUDED AS EVIDENCE OF SUBSEQUENT REMEDIAL MEASURES. Rule 407 provides that "[w]hen, after an injury or harm allegedly caused by an event,

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an accident); Alimenta (U.S.A.), Inc. v. Stauffer, 598 F.Supp. 934, 940 (N.D.Ga. 1984); cf Rocky Mountain Helicopters, Inc. v. Bell Helicopters Textron, A Division of Textron, Inc., 805 F.2d

3 907, 918 (10th Cir. 1986)(holding that District Court did not abuse its discretion by admitting 4 results from a Photoelastic Study, which was conducted after the helicopter crash and led to a 5 redesign in the trunnions). In Alimenta, Price Waterhouse & Co. prepared a report, at the 6 request of the trading company, "that made recommendations regarding the trading company's 7 trading practices and procedures subsequent to the actions of the defendants which allegedly 8 defrauded the [trading company]." 598 F.Supp. at 938. Because the trading company requested 9 the report to improve practices, procedures and controls of its trading in response to the 10 departure of a trader involved in improper trades, the Court excluded the report as a subsequent 11 remedial measure. Id. at 940. Additionally, press releases and other reports describing post12 incident investigations and responses are also excluded as subsequent remedial measures. See 13 Specht v. Jensen, 863 F.2d 700, 701-02 (10th Cir. 1988) (affirming the District Court's 14 exclusion of a press release that summarized the City's response to the incident as a subsequent 15 remedial measure). 16 In this case, Sunstone's actions in response to the information conveyed in Plaintiffs' July 17 25, 2003 letter, if conducted before learning of Mr. Sapiro's illness would have likely reduced 18 the potential that Mr. Sapiro would have become ill from his stay at the San Marcos, regardless 19 of the fact that such measures were not required to satisfy any duty owed to Plaintiffs. Positive 20 sample results wo uld have alerted Sunstone to a potentially dangerous condition and the 21 replacement of components, installation of new features, and disinfection of the water lines 22 would have potentially reduced or eliminated the Legionella population. Consequently, these 23 acts are subsequent remedial measures and therefore, no direct or indirect evidence of these 24 measures or reports discussing these measures should be admitted. To permit such evidence 25 -4Case 2:03-cv-01555-SRB Document 162 Filed 03/27/2006 Page 4 of 7

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would have a substantial chilling effect on efforts by similarly situated parties to reduce the potential for harm related to conditions on business owners' premises.

3 Defendants presume that Plaintiffs will improperly attempt to argue that these remedial 4 measures may demonstrate conditions existing at the time of the incident, Sunstone's control of 5 the property, or the feasibility of repair. Sunstone's measures, undertaken approximately seven 6 months after Plaintiffs' stay, can not represent the conditions existing at the time of Plaintiffs' 7 stay. Additionally, Sunstone does not deny that it controlled the San Marcos during the relevant 8 time period. 9 Moreover, Sunstone has not challenged the "feasibility of repair" with respect to the 10 multitude of measures taken. Sunstone's measures perturbed many variables associated with 11 Legionella proliferation, and therefore, it is uncertain what measures were necessary for removal 12 of the Legionella population. 13 veracity of Plaintiffs' assertions that routine sampling and draining of the hot water tanks would 14 have prevent Legionella proliferation. Because Sunstone did not challenge the feasibility of an 15 overhaul to the domestic water system, and such an overhaul does not advance Plaintiffs' 16 suggested measures, Sunstone's acts do not demonstrate the "feasibility of repair". 17 Finally, the issue in this case is not whether such acts would have worked, but rather 18 whether Sunstone was under a duty to perform them. Sunstone's measures, taken after receipt 19 of the letter, have no bearing on its duty to act before notice of a potentially dangerous 20 condition. To the extent these measures have any relevancy, the potential prejudice created by 21 the confirmation of Legionella, the steps taken in response, and the involvement of the local 22 health departments, significantly outweighs its probative value. See Fed. R. Evid. 403. 23 24 25 -5Case 2:03-cv-01555-SRB Document 162 Filed 03/27/2006 Page 5 of 7

Sunstone's remedial measures do not help demonstrate the

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Consequently, Sunstone requests this Court prohibit Plaintiffs, Plaintiffs' counsel, or Plaintiffs' witnesses from referencing, testifying or introducing any evidence relating to

3 Sunstones acts, measures and response taken after receipt of Plaintiffs' July 25, 2003 letter. 4 DATED this 27 day of March, 2006. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -6Case 2:03-cv-01555-SRB Document 162 Filed 03/27/2006 Page 6 of 7

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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