Free Response in Opposition to Motion - District Court of Arizona - Arizona

Case 2:03-cv-01555-SRB D0cument157—16 Filed O2/27/2006 Page10f3

. IN THE UNITED STATES DISTRICT COURT 1 APPEARANCES: H
IN AND FOR THE DISTRICT COURT OF ARIZONA 2
3 For Plaintiffs:
MARVIN SAPIRO and GLORIA I 4 BOIES, SCI-IILLER & FLEXNER
SAPIRO, his wife, I BY: GEORGE SCHMIDT
I 5 Attorney at Law
PIBIRTIHS. ) I 100 Southeast Second Avenue, Suite 2800
6 IVI‘ ‘, FI `d 33131
vs. ) No. ClV03-1555 PHX SFIB (3§g;I53Qcig4gQ
I I 7
` ) FOI- Dgfendantsi
L.L.C.; SUNST ONE HOTEL I B
INVESTOFIS I-·l”·· I I I 9 BY: MATTHEW D. KLEIFIELD
¤¤Ie¤¤¤¤IS- I , Attorney at Law
10 3838 North Central Avenue, Suite 1500
Phoenix, Arizona 85012-1902
. 11 (502) 331 -4600
DEPOSITION OF MATTHEW R. FREIJE
San Clemente, Caiifornia 14
Friday, September 16, 2005 15
Volume 2
16
17
18
Reported by; 19
LINDA M. UNGER 20
csR No.11403 21
Jeb No. 631777 22
23 -
_‘ 24 _
I 25
Page 157
1 ` IN THE UNITED STATES DISTRICT COURT 1 INDEX .
g IN AND-FOR THE DISTRICT COURT OF ARIZONA 2 WITNESS; EXAMINATISN
- 3 MATTHEW R. FREIJE
4 MARVIN SAPIRO and GILORIA I VOIUFHQ 2
. SAPIRO his wife ) `
.. ‘ ' 4
plaintiffs, ) Ig BY IVIR. KLEIFIELD 5
6 I
ve. ) No. CIV03—1555 PHX SRB 7
7 ) S
SUNSTONE HOTELS INVESTORS, I 9
8 I..L.C.; SUNSTONE HOTEL ) EXI-IISITS
INVESTORS, LP., ) 10
9 I
Defendants. ) 1 1 (NODE)
10 I
ll IS I
12
13 14 `
14 Deposition of MATTHEW R. FREIJE, Volume 2, 15
15 taken on behalf of Defendants, at 893 Calle 15 .
15 Amanacer, Sari Clemente, California, beginning 17
17 at 10:13 a.m. and ending at 2:15 p.m. on Friday, 18
18 September 1S, 2005, before LINDA M. UNGER, 19
19 Certified Shorthand Reporter No. 11403. 20 `
20 I
‘ “ 21 21 .
23 - 23 U
24 24
25 25
Page 156 Page 158 ‘
1 (Pages 155 to 158) l
Esquire Deposition Services
` 949.440.7000 _
I Case 2:O3—cv-01555-SRB Document 157-16 Filed O2/27/2006 Page 2 of 3

5 - 1 the age ofthe tanks were. 1 A Hot water tanks are conducive to legionella
2 Q You provided a statement not long ago that you 2 contamination, especiaiiy vertical tanks, but horizontal
3 believe that it is reasonable and necessary to drain, 3 tanks can be as well. One reason for that is that most
4 clean and disinfect hot water storage tanks one to four 4 tanks maintain water temperature at the set point in
5 times a year; true? 5 only about 65 percent of the tank, so at the bottom part
6 A Yes. 6 of the tank, it tends to be cooler than in the top part
7 Q Do you provide that quantification anywhere in 7 of the tank. So at the bottom where it's not as hot and
3 the report setting forth your opinions? 3 where is also the place that sentiment and other debris
9 A No. I didn't get into that detail in the 9 accumulates, that‘s where legionella tend to flourish.
10 report in this case. 10 So it’s important to periodically drain out
11 Q So the only opinion you provide in that respect 11 that sediment and blow it out, so to speak, to clean out
12 is that you believe it is reasonable and necessary to 12 the tank periodically.
13 drain, clean and disinfect the hot water storage tanks 13 Q And you contend that every business entity in
14 periodically; true? 14 the hospitality industry with hot water storage tanks is
15 A I didn't understand the question. You're 15 required to do that in order to manage the risk
16 saying I give that opinion where? I 16 presented by legionella in their domestic water system;
17 O In the report of February 11th, 2005. |'|I 17 true?
I 13 find it for you here. 18 MH. SCI-IMIDT: Objection. Form;
19 Let's go about it this way: Is it your 19 mischaracterizes former testimony.
20 opinion, as reflected in your February 11th, 2005, 20 THE WITNESS: I believe it's recommended
21 report, that the hot water storage tanks at the San 21 practice. it's proper practice for any domestic hot
22 Marcos should have been drained, cleaned and disinfected 22 water system of this sort.
23 periodically in order to satisfy the duty owed to 23 BY it/iFt. KLEIFIELD:
24 patrons on the premises? 24 Q Okay. Who suggests that it's recommended
25 MP. SCHMIDT: Objection. Form; calls for a 25 practice for any domestic hot water system of this sort,
Page 179 I Page 131 I
.1 legal conclusion. 1 other than you?
2 THE WITNESS: In the report, I state that it's 2 A I can find some references to that.
~ 3 important for hotel operators to incorporate reasonable 3 Q Please. .
- 4 legionella preventive measures in design, installation, 4 Can you just tli me the document that you find
5 operation and maintenance of domestic water systems. 5 the reference in, and then we'lI gc from there.
6 That would include draining, cleaning and disinfecting 6 A it's the one I provided to you, the OSHA
7 hot water tanks periodically. 7 document, Section 3, Chapter 7, page 14.
8 I didn't site every preventive measure; 8 O This document is entitled "OSHA Technical
9 otherwise the report probably would have been 60 pages 9 Manual, Section 3, Chapter 7*'; correct?
10 long or so because that‘s just one of many preventive 10 A Yes.
11 measures. 11 Q And the copy, I believe, you provided me had a
12 I did, however, refer to Sunstone's own 12 date at the lower right-hand corner; true?
13 engineering manual on page 4 which says to drain down 13 A Well, mine does.
14 all storage tanks on a regular basis. 14 O What's that date?
15 BY MH. KLEIFIELD: 15 A Well, the date in the lower right-hand corner
16 Q So you agree with me that your opinion includes 16 must be just the date it was printed, but that‘s May 11,
17 a conclusion that in order to reasonably maintain the 17 2005.
_ 18 premises to manage the risk represented by legionella 13 Ct And when was this document originally
19 that you believe that the San Marcos should have 19 generated? Do you know?
20 drained, cleaned and disinfected its hot water storage 20 A 1996. .
21 tanks periodically; correct? 21 Q And this document upon its face states that the
22 A That's one of many measures I think should have 22 primary focus is on the control and prevention of
23 been taken, yes. 23 contaminated water sources, not on case identification;
24 Q What's the basis for your opinion with respect 24 true?
25 to that particular task? 25 A Yes. ’
Page 130 Page 182
7 (Pages 179 to 182)
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