I . . IN THE UNITED STATES DISTRICT COURT 1 APPEARANCES:
IN AND FOR THE DISTRICT COURT OP ARIZONA 2
_ 3 For Plaintiffs:
MARVIN SAPIEO and GLORIA I 4 BOIES, SCI-IILLER 8. FLEXNEFI
_ SAPIRO. his wif.} I BY: GEORGE SCHMIDT
_ _ 5 Attorney at Law .
PIBIRUTISI 1 I _ 100 Southeast Second Avenue, Suite 2800
6 M` ‘, FI ‘d 33131
vs. 1) N0. CIV03-1555 PHX SRE (3:§g3N53Q?g4g0
SUNSTONE HOTELS INVESTORS, I .
LLC.; SUNSTONE HOTEL :1 8 For Defendants.
'NVESTOHS L·*°·· I I
E En anu I Attorney at Law
10 3838 North Central Avenue, Suite 1500
Phoenix, Arizona 85012-1902
1 1 (602) 331 -4600
DEPOSITION OF MATTHEW R. FREIJE
San Clemente, California 14 .
Friday, September 16, 2005 15 _
Volume 2 15
17 h
18 _
Reported by: 19 ‘
LINDA M. umesa 20
css N6. ii4¤s 21
Job N6. sai 777 _ _
. I 24 -
-I·= . 25 ,
Page 157 .
1 IN THE UNITED STATES DISTRICT COURT 1 INDEX .
3 IN AND FOR THE DISTRICT COURT OF ARIZONA 2 WITNESS: EXAMINATION
. E
4 MARVIN SAPIRO and GLOFIIA I 3 Q/ASEE: QW H FH ME
SAPIRO, his wife I ‘
. ‘ 4
1 5
ISIEIHIIIISI ) I 2 BY MR. KLEIFIELD 5
6 I .
vs. I No. CIV03-1555 PHX SRB 7
7 I B
` SUNSTONE HOTELS INVESTORS, I 9
8 L.L.C.; SLINSTONE HOTEL ) EXHIBITS
INVESTORS, L.P., I 10
9 I
Defendants. ) 1 1 (Nona)
10 I
11 I2
12 I I3
13 . 14
14 Deposition of MATTHEW R. FREIJE, Volume 2, 15 -
15 taken on behalf of Defendants, at 893 Cal 15
16 Amanacer, San Clemente, California, beginning 1Y _
17 at 10:13 a.m. and ending at 2:15 p.m. on Friday, 18
18 September 16, 2005, before LINDA M. UNGER, 19
19 -Certified Shorthand Reporter No. 11403. 20
20
†‘· 21 2*
23 · 2 23
24 24 `
25 25
Page 158 Page 153
1 (Pages 155 to 158)
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V 949.440.7000 _
Case 2:O3—cv-01555-SRB Document 157-12 Filed O2/27/2006 Page 2 of 4
1 property; true? 1 do so in February, there would be a greater potential ».
2 · MFI. SCHMIDT: Objection. Form; rnisstates 2 for promulgation of Iegionella in May as compared to
3 testimony. 3 February; true?
4 THE WITNESS: You know, based on my experience 4 MR. SCHMIDT: Same objection.
5 and previous studies, it would be very unlikely for 5 THE WITNESS: if the incoming city water is at
8 Iegionella to be found at the concentrations that I 6 a colder temperature in February than in May, as I
7 found them in May of 2003 and not exist in the system in 7 suspect it probably is, it could have some -- it could
8 February of 2003 or even in February of 2002. B play some part in the Iegionella in the water entering
9 BY MFI. KLEIFIELD: 9 the building.
10 O Environmental conditions can create an 10 It would probably be. undetectable in either
11 environment within which Iegionella promulgates; true? 11 instance, and the amplification would occur in the
12 MFI. SCHMIDT: Objection to form; overbroad. 12 piping within the San Marcos where you have smaller
13 THE WITNESS: Legionella thrives in some_ 13 diameters, biofilm in which it can grow and higher
14 habitats better than in others. 14 temperatures.
15 BY MFI. KLEIFIELD: 15 BY MH. KLEIFIELD:
16 O It thrives in habitats that provide a 16 O And in the event those water lines in the San
17 temperature range that is more conducive to their 17 Marcos went underground, the cold water lines, and the
18 breeding, their growing; true? 18 ambient temperature ofthe water in the underground
19 A Temperature is one factor, yes. _ 19 lines in May was warmer than in February, there would be
20 O Do you know what the temperature -- the ambient 20 a greater potential for Iegionella to promulgate in May
21 ground temperature is in Arizona in May as compared to 21 as compared to February; true?
22 February? 22 MH. SCHMIDT: Same objection.
23 A No. 23 THE WITNESS: No, I don't think that's true. I
24 O In the event the hot water loops maintained an 24 would have to look at the plans to see exactly the
25 underground temperature within the promulgation range 25 routing of the piping, but--
Page 239 Page 241
1 for Iegionella in May but did not do so in February, 1 BY MFI. KLEIFIELD:
2 there would be a greater potential forthat Iegionella 2 O I'm not asking you to assume the routing. I'm
3 to promulgate in May as compared to February; true? 3 simply dealing with the ambient temperature range in all
4 MFI. SCI-IMIDT: Objection. Form; incomplete 4 lines.
5 hypothetical. 5 If you've got a line that is proven to go
6 THE WITNESS: You said underground hot water 6 underground and is proven to have an ambient water
7 lines? Did you mean to say that? 7 temperature in the promulgation range in May but not in
8 BY MFI. KLEIFIELD: 8 February, the potential for promulgation is greater in
9 Cl Yes. 9 May than in February based upon that factor; true?
10 A Are you referring to ·- what underground hot 10 MB. SCHMIDT: Same objection. Form.
11 water lines are you talking about? . 11 THE WITNESS: The water in the cold water
12 Q I'm just asking you to assume any underground 12 piping could be more conducive in May than in February.
13 hot water lines, anything that goes underground that's a- 13 I don't believe it would affect the hot water piping in
14 hot water line. 14 either case, no.
15 MFI. SCHMIDT: Same objection. 15 BY MFI. KLEIFIELD:
16 THE WITNESS: Well, ldon't-— I don't know 16 O You didn't sample in February; true?
17 which hot water line you're talking about, but if there 17 A No, I did not.
13 are hot water lines running underground, I guess I would 18 O You performed no scientific analysis to
19 answer no, I don't think that would make a difference. 19 ascertain the likely concentrations of Iegionella at any
20 BY MB. KLEIFIELD: 20 location on the property in February as compared to May;
21 O Any cold water lines that are running in the 21 true?
22 ground would have an ambient temperature -— strike that. 22 A I didn't test in February.
23 In the event cold water domestic water lines 23 O And ofthe tests that you did in May, you've
24 running underground maintained an ambient temperature in 24 not done any scientific analysis of those results to
25 the promulgation range for Iegionella in May and did not 25 ascertain what the likely concentrations were in
Page 240 ‘ Page 242
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_ ’· 1 February based upon the test samples that you had 1 Mischaracterizes previous testimony.
, 2 evaluated by a lab; true? ' 2 Tl-IE WITNESS: I just can't answer with such
I 3 A No such tests exist. 3 limited information. I would have to know -- I would
4 O Likewise, you didn't take what you sampled, the 4 have to see the whole picture to say what I think would
I 5 results of those samples that you performed in May, to 5 be appropriate.
I 6 ascertain the extent to which there were pathogenic - 6 BY NIF?. KLEIFIELD:
I 7 concentrations of legionella in November of 2002; true? 7 O Okay. And so without knowing the whole
I B A No such tests exist. . F3 picture, it‘s hard to convey an opinion regarding what
I 9 Q The second numbered paragraph of your February 9 would be appropriate in taking remedial action, if any;
10 11th, 2005, report conveys the statement that, quote, 10 true? .
I 11 "Martin Sapiro would not have been exposed to high 11 A Well, specifically, I would need to know —- I
I 12 levels of legionella bacteria during his stay at the San 12 would need to look at the list of all the samples, how
I 13 Marcos if the property owner or manager or other party 13 many were collected and the details about the positive
I 14 responsible for the hotel, presumably Sunstone Hotel 14 samples. Concentration, strain, location, type of
I 15 Investors, LP, or Sunstone Hotel Management, Inc., 15 building, what system they were frorn` —— those would some
I 16 hereinafter referred to as Sunstone, had routinely 16 ofthe factors.
I 17 tested that hotel water system for legionella and taken 17 O You suggest that the San Marcos should have
18 appropriate steps in response to the results." Have I 18 routinely tested the hotel water systems for legionella;
19 read that correctly? 19 correct?
i 20 A I believe so, yes. l didn_‘t -— I wasn't sure 20 A I believe they should have routinely tested for
i 21 exactly where you were reading, but I think you read it 21 legionella, yes. _
I 22 correctly. 22 O And obviously, we're talking about the domestic
23 O Do you believe that any sample that reveals any 23 water system; true? ‘
I 24 level of pathogenic or nonpathogenic legionella in a 24 A As well as cooling towers and decorative
I . 25 domestic water system in a hotel setting requires 25 fountains. `
I Page 243 Page 245 __
I 1 remedial action? 1 Q But in this case, you have no information that
I _ 2 MR. SCHMIDT: Objection. Form. “ 2 causes you to believe that the cooling towers or
I .. 3 Tl-IE WITNESS: Well, it depends what you mean by 3 decorative fountains were responsible for Mr. Sapiro‘s
I · -4 remedial action, but the results need to be interpreted 4 Legionnaires‘ disease; true?
5 based on the percentage of samples positive, the 5 A Not that they were specifically responsible for
6 concentration per sample and the strains found in each 6 his Legionnaires‘ disease, but they would be places that
7 sample. 7 should be tested at a hotel.
8 And one positive sample could indicate some B O But I understand it's your perception and
9 type of remedial action. It would not likely indicate a 9 belief that it's the domestic water that resulted in
I 10 disinfection of the entire system. 10 Nlr. Sapiro's exposure; true?
I 11 BY MFI. KLEIFIELD: 11 A Based on the information I have, that's the
I 12 O You could have five positive samples that would 12 most likely source.
13 not warrant any remedial action; true? 13 O So given the domestic water system, you believe
I 14 MFi. SCHMIDT: Objection. Form. 14 that the San Marcos should have routinely tested that
15 THE WITNESS: Probably not true. l would have 15 domestic water system for legionella; true? .
I 16 to see an actual set of results to make a determination 16 ‘ MB. SCHMIDT: l'm sorry.
17 as to what the appropriate action would be, but if there 17 MFi. KLEIFIELD: I'll just ask it again.
I ` 18 were five positive samples, I believe that in most cases I 18 O Focusing upon the domestic water system, you
l 19 that that would merit some type of remedial action. 19 believe that the San Marcos should have routinely tested
20 BY MFl. KLEIFIELD: ·‘ . 20 their domestic water system tor legionella; true?
` 21 Q So it's your opinion that regardless of the ‘ `I 21 A Yes, I believe they should have.
22 concentrations, even if there was a minimal finding of 22 O Now, in your report here, you say routinely
23 legionella in a sample, that if there were five positive · 23 tested. What do you mean by routinely? How frequently?
24 samples, remedial action is required? 24 A I generally recommend starting out testing four
25 MR. SCHMIDT: Objection to form. 25 times a year, and if all samples are negative for
I Page 244 n I Page 246
I I 23 (Pages 243 to 246)
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