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

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STEVEN W. DAVIS (Pro Hac Vice, Aug. 26, 2003) DAVID W. SHAPIRO, AZ BAR NO. 015295 ANN M. GALVANI (Pro Hac Vice, Sept. 29, 2003) JORGE SCHMIDT (Pro Hac Vice, March 17, 2005) BOIES, SCHILLER & FLEXNER, LLP 100 S.E. Second Street, Suite 2800 Miami, Florida 33131 Telephone (305) 539-8400 Facsimile (305) 539-1307 Attorneys for Plaintiffs Marvin and Gloria Sapiro IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA PHOENIX DIVISION MARVIN SAPIRO and GLORIA SAPIRO, his wife, Plaintiffs, vs. SUNSTONE HOTEL INVESTORS, L.L.C., SUNSTONE HOTEL INVESTORS, L.P., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. CIV 03 1555 PHX SRB

PLAINTIFFS' RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION IN LIMINE TO EXCLUDE MATTHEW R. FREIJE (ORAL ARGUMENT REQUESTED)

Plaintiffs, Marvin and Gloria Sapiro, file this response to Defendants' Motion in Limine to exclude Matthew R. Freije from testifying. BACKGROUND Matthew Freije, the expert retained by Plaintiffs, reached three conclusions about Marvin Sapiro's nearly-lethal encounter with Legionnaires' disease. First, that Mr. Sapiro "was exposed to high levels of Legionella bacteria during his stay at the San Marcos." Second, that Mr. Sapiro "would not have been exposed to high levels of Legionella bacteria during his stay at the San Marcos if . . . [Sunstone] had routinely tested the hotel water systems for Legionella and taken appropriate steps in response to these results." And third, that "Sunstone failed to exercise

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reasonable care to prevent Legionnaire's disease at the San Marcos."1 Defendants have asked this Court to exclude his testimony altogether. To the extent that Defendants' motion relies on Mr. Freije' alleged lack of expertise, s it should be denied because Mr. Freije's qualifications pertaining to the prevention and control of Legionella bacteria in cooling towers and large plumbing systems are outstanding. His book on the subject, the foreword of which was written by a water expert for the E.P.A., has been publicized and distributed by professional societies throughout the world. Since 1999, he has been the editor of Legionella E-news, a newsletter with more than 2,000 subscribers worldwide. He manages the content of hcinfo.com, a web site liked to by government agencies and news media for authoritative information on Legionnaires' disease. He is frequently interviewed by the media following outbreaks of Legionnaires' disease, including those associated with hotels. In his ten or more years of experience with Legionella, he has published a book and numerous articles, manuals, and reports, provided consulting services, taught seminars, given speeches at conferences, and been retained by both plaintiffs and defendants. Likewise, to the extent that Defendants' motion relies on the alleged unreliability of Mr. Freije' opinions, it should be denied because his conclusions are the product of reliable s' methodology, which included reviewing the pertinent medical reports, sampling water and reviewing the results of the tests, evaluating the San Marcos' plumbing system's design and maintenance records, reviewing the testimony provided by Sunstone employees, and reviewing numerous documents including permits, reports, communications, Sunstone's public statements, and Sunstone's Standard Engineering Operating Procedures Manual. Freije's testimony meets the Standard for admissibility of expert testimony

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FRE 702 allows the admissibility of expert testimony that will aid the trier of fact in understanding the evidence or determining a fact in issue. Scott v. Ross, 140 F.3d 1275, 1285 (9th Cir. 1998). According to the Ninth Circuit, the four factors to consider in determining if expert testimony will assist the trier of fact are "(i) whether the expert is qualified; (ii) whether the subject matter of the testimony is proper for the jury' consideration; (iii) whether the s testimony conforms to a generally accepted explanatory theory [and is therefore reliable]; and (iv) whether the probative value of the testimony outweighs its prejudicial effect." Id. at 12851286. See also United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000) (discussing the analysis pertaining to admissibility of expert testimony). In its motion, Sunstone challenges the admissibility of Mr. Freije's testimony on points (i) and (iii). Plaintiffs, therefore, have the burden of establishing by a preponderance of the evidence that Mr. Freije is qualified, and that his testimony is reliable. Qualifications To offer expert testimony, Mr. Freije need not be an academic or hold a Ph.D., nor must his testimony be "scientific" in character. Tuf Racing products, Inc. v. Am. Suzuki Motor Corp., 233 F.3d 585, 591 (7th Cir. 2000) (citing Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999)). Indeed, anyone with relevant expertise "enabling him to offer responsible opinion testimony helpful to judge or jury may qualify as an expert witness." Id. What is the relevant expertise in this case? Consider that the San Marcos Resort has nearly three hundred rooms. At the time of Mr. Sapiro's stay in February, 2003, the hot water for these rooms was heated in boilers and stored in tanks. A large hotel plumbing system such as the San Marcos' is similar in its design and function to those found in other large buildings, such as hospitals and office buildings, particularly in that hot water is heated at a central location and circulated throughout the facility. To cite just one example, the E.P.A.'s Guidance Manual for
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Compliance with the Filtration and Disinfection Requirements for Public Water Systems Using Surface Water Sources, March 1991 Edition, Appendix B "Institutional Control of Legionella," specifically cites large recirculating hot water systems as deserving attention for Legionella control: It has been hypothesized that the low concentration of Legionella entering buildings due to those sources may colonize and regrow in hot water systems. . . . Although all of the criteria for colonization are not known, large institutions, such as hospitals, hotels, and public buildings with recirculating hot water systems seem to be the most susceptible.2 It makes eminent sense, then, that large plumbing systems, which share a common purpose and suffer from common problems because they are a solution to a standard set of questions, define the relevant field of expertise in this case.3 That field is the delivery of water through large plumbing systems that is safe from pathogenic levels of Legionella bacteria. And that is precisely Mr. Freije's area of expertise. Mr. Freije's resume lists no fewer than twenty-four articles dealing with Legionella safety and prevention, including "A Management Plan for Legionella and Other Waterborne Pathogens," "Testing the Waters: Facts to Consider When Deciding Whether to Sample for Legionella," "Eight Deadly Blunders: Common Mistakes in Protecting Against Legionella," "Legionella: Preventive Measures for Domestic Water Systems," and "Legionella and the Plumbing Engineer: Responsibility, Liability, and Opportunities." Likewise, Mr. Freije has prepared no fewer than thirteen reports on this subject, including "Legionnaires' Disease: Facts, Legal Issues, and Risk," "How to Make Plumbing

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Systems Less Conducive to Legionella and Other Bacteria," "Sample Water for Legionella? Weighing the Benefits Against the Costs," "Legionella Management Plan for Hospitals," "Legionella Management Plan for Nursing Homes," and "Legionella Management Plan for Hotels." Crucially, these reports and articles go to the heart of Mr. Freije's testimony, including his opinion that Mr. Sapiro "would not have been exposed to high levels of Legionella bacteria during his stay at the San Marcos if . . . [Sunstone] had routinely tested the hotel water systems for Legionella and taken appropriate steps in response to these results," and that "Sunstone failed to exercise reasonable care to prevent Legionnaires' disease at the San Marcos." Mr. Freije has performed Legionella assessments of more than forty buildings with centralized domestic water systems, including seven hotel or condominium properties (two of these seven assessments were not litigation-related). He also receives calls from hotels interested in training, and has trained hotel staff concerning Legionella safety and prevention.4 In addition to his writings, Mr. Freije has given no fewer than fourteen speeches on the subject of Legionnaires' disease in water systems, including speeches to the American Society of Plumbing Engineers, to the American Industrial Hygiene Conference, to the Association of Water Technologies, and to the International Water Conference.5 He has also taught one- and two-day seminars, including courses hosted by the U.S. Navy, the Virginia Dept. of Mental Health, and the American Soc. of Plumbing Engineers. Mr. Freije has given deposition testimony in litigation involving the same subject as here--the intersection of Legionella bacteria and water systems in large buildings--in five cases, Ortiz v. Hospitality Ventures, Liberty Mutual Ins. Co. v. Am. National Fire Ins. Co., Cherry v.

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3075 Wilshire Blvd. LLC, Grosshart v. Westin Tucson Hotel Co., and Manuel v. Diamond Resorts Intl'. He also provided testimony at trial in Liberty Mutual and Cherry. His testimony has never been rejected by any court. Mr. Freije's training and practical experience, therefore, are sufficient to provide an opinion in this case: As long as the expert has experience to support his opinion, explains how such experience leads to the expert' conclusion and s demonstrates how the experience is reliably applied to the facts at hand, he should not be required to satisfy an overly narrow and rigid test in order to be considered an expert in a case. Rondout Valley Central School District v. The Coneco Corp., 321 F. Supp. 2d 469, 474-476 (N.D.N.Y. 2004). In other words, when determining whether Mr. Freije is qualified to render testimony in the area of safety and precautions concerning Legionella bacteria in large plumbing systems, and the consequences of not taking appropriate precautions, the Court should consider his full range of practical experience as well as his academic and technical training. See Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000); McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1043 (2d Cir. 1995). As the Supreme Court noted in Kumho Tire Co., Ltd. v. Charmichael, 526 U.S. 137, 156 (1999) "no one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience." The value of Mr. Freije's experience is especially high given that he is one of the pioneers in his field; after two years of research and study, he developed and taught the first formal training course on Legionella control in large buildings. As counsel for Sunstone put it: "Q. Really, you're the fellow that comes to the forefront in presenting that type of vehicle [seminars] to impart knowledge regarding Legionella. True? A. Yes."6 Even Sunstone's expert, Mr. Teeters, indirectly acknowledges Mr. Freije's qualifications

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in this area in his report,7 which references an article authored by Mr. Freije (though without listing his name) among its sources.8 In sum, Mr. Freije is ideally qualified to express the opinions found in his reports. Reliability As stated before, Mr. Freije's testimony includes three conclusions (paraphrased here): that Mr. Sapiro was exposed to high levels of Legionella bacteria during his stay at the San Marcos; that he would not have been exposed to those high levels if Sunstone has tested the San Marcos' water and taken appropriate remedial measures; and that Sunstone failed to exercise reasonable care to prevent Legionella bacteria from multiplying to pathogenic levels in its water supply. This Court must now determine whether his testimony has "a reliable basis in the knowledge and experience of [the relevant] discipline." Kumho Tire Co., Ltd., 526 U.S. at 149 (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993)). And the relevant discipline, in this case, is the delivery of water through large plumbing systems that is safe from pathogenic levels of Legionella bacteria. Analyzing the reliability of technical and specialized knowledge is a fact-intensive inquiry: "`[t]he factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert' particular expertise, and the subject of his s testimony.'" Kumho Tire Co., Ltd., 526 U.S. at 150. And the issue in this analysis is whether Mr. Freije reliably reached his conclusions. Id. at 154 (explaining that "[t]he relevant issue was whether the expert could reliably determine the cause of this tire' separation."). s In this regard, the following observations concerning the methodology that Mr. Freije used are in order:

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he consulted the diagnosis that Mr. Sapiro suffered from Legionnaires' disease, made by Dr. Nierenberg, Mr. Sapiro's treating physician;9 he applied the incubation period for Legionnaires' disease, a well-known medical fact, which indicates that Mr. Sapiro contracted it during his stay at the San Marcos; 10 he sampled water from the San Marcos and, where possible, also sampled the water from as many of the other potential sources of Legionella bacteria to which Mr. Sapiro could have been exposed during his stay in Phoenix;11 he had often sampled water before sampling the water for tests related to this case;12 Mr. Freije twice personally inspected the San Marcos;13 he also reviewed blueprints of the San Marcos, including its plumbing and ventilation systems;14 he reviewed the testimony of the relevant Sunstone employees, as well as Sunstone's admissions and answers to interrogatories;15 he reviewed Sunstone's Standard Engineering Operating Procedures Manual;16 he reviewed published literature on Legionnaires' disease and Legionella bacteria;17 he reviewed communications among Sunstone's employees and consultants concerning the Legionella outbreak and its aftermath, including the lab reports

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detailing the extremely elevated levels of Legionella bacteria found at the San Marcos;18 11. 12. he reviewed permits and reports created by the City of Chandler concerning the San Marcos' remediation;19 and he reviewed the San Marcos' public statements concerning the outbreak of Legionnaires' disease.20

It also bears noting, in this context, that Sunstone's subsequent remediation--which included, among other things, replacing all boilers, all water tanks, all showerheads, superheating and hyper-chlorinating the San Marcos' water system, and installing backflow preventors-- destroyed the direct, physical evidence of the conditions which had led to the alarmingly high levels of Legionella bacteria in the first place.21 With this background in mind, Mr. Freije's methodology in reaching his conclusions is apparent: he personally consulted and evaluated a wide host of sources and evidence which, in light of his training and experience, led him to unremarkable, commonsense conclusions. These sources were the best available, given the particular facts of this case and the nature of Legionella contamination investigations: I can point to a number of factors that could have been involved [in causing or contributing to the contamination of the San Marcos], but it's very rare in any legionella investigation, including this one, where you can point to one factor. You can determine that it was the domestic water system rather than another system or one building rather than another building, but to say what caused the Legionella to flourish in that building to begin with is not

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something that can be done with any accuracy.22 The case of Desrosiers v. Flight Intl' of Florida, Inc., 156 F.3d 952 (9th Cir. 1998), is analogous enough to the facts here to be instructive. In Desrosiers, an accident reconstruction specialist's testimony was challenged as being methodologically flawed because it did not meet the Daubert factors including "whether the reasoning: 1) can be and has been tested; 2) has been subject to peer review; 3) has a known or potential rate of error; and 4) generally has been accepted by the scientific community." Id. at 960. The district court admitted the testimony over this objection, a decision which the Ninth Circuit affirmed, explaining: The record shows that [the expert] has extensive experience with instrumentation analysis and electronic equipment such as the DME. His methodology included extensive review of maintenance records, wreckage, depositions, service manuals, textbooks, and the radar tape. Given the nature of this case-in which direct, physical evidence could yield few clues as to the cause of the crash-the circumstantial evidence [the expert] employed was the best information available to reconstruct the accident. Id. at 961 (internal citations omitted). The Court further noted that "[w]hile Flight proposes a Daubert strict `checklist' to determine the suitability of [the experts'] testimony, the Daubert court was quite clear that no such checklist was ever intended." Id. That observation is fully in keeping with the Supreme Court's explanation in Kumho that "[e]ngineering testimony rests upon scientific foundations, the reliability of which will be at issue in some cases. . . . In other cases, the relevant reliability concerns may focus upon personal knowledge or experience." Kumho Tire Co., Ltd., 526 U.S. at 150 (internal citations omitted). Indeed, the Ninth Circuit has soundly rejected the approach to the application of the Daubert factors that Sunstone is urging here: "far from requiring trial judges to mechanically apply the Daubert factors-or something like them-to both scientific and non-scientific testimony,
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Kumho Tire heavily emphasizes that judges are entitled to broad discretion when discharging their gatekeeping function." United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000). In practice, that discretion is exercised by applying a fact-specific reliability inquiry. Sunstone's objections go the weight of Mr. Freije's testimony, not its admissibility.23 See McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1042-1043 (2d Cir. 1995). Sunstone's current method of operation ­ like some, but not all, members of the hospitality industry ­ seems to be to wait until one of their guests becomes ill or dies before taking measures to prevent the spread of Legionella bacteria; and while Sunstone is entitled to present its view on the subject, it does not have the only word on the matter: Q. Your [sic] making recommendations in this case based upon your perspective without any confirmation that that is a perspective that is endorsed or adopted within the hotel or hospitality industry, no? A. True. That's ­ well, you know, what you're implying in that question, or what I'm hearing, is that what you think I recommend should be based on what the hotel industry thinks. That's not who knows Legionella. My recommendations are based on scientific information provided about Legionella control in buildings, not on what the hotel or hospitality industry thinks is best for the hotels. They don't know; that's not their expertise.24 But in fact, Mr. Freije's conclusions about Sunstone's responsibilities towards its guests generally and towards Mr. Sapiro specifically reflect not only his considered opinions, but also reflect the recommendations found in Sunstone's own Engineering Standard Operating

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Procedures Manual: Q. [. . .] Is it your opinion . . . that the hot water storage tanks at the San Marcos should have been drained, cleaned and disinfected periodically in order to satisfy the duty owed to patrons on the premises? [. . .] A. In the report, I state that it's important for hotel operators to incorporate reasonable Legionella preventive measures in design, installation, operation and maintenance of domestic water systems. That would include draining, cleaning and disinfecting hot water tanks periodically. . . . I did . . . refer to Sunstone's own engineering manual on page 4 which says to drain down all storage tanks on a regular basis.25 Likewise, Mr. Freije's opinion that the San Marcos should have tested for Legionella bacteria as part of a reasonable plan to prevent the spread of Legionnaires' disease merely reflects Sunstone's own self-imposed requirement to that effect.26 Sunstone's complaint about Mr. Freije's methodology can be reduced to this: Mr. Freije's analysis led him to agree with many of the recommendations found in Sunstone's own Engineering Standard Operating Procedures Manual, which the San Marcos failed to implement. Accordingly, the proper tool to challenge Mr. Freije's testimony is "[v]igorous crossexamination, presentation of contrary evidence, and careful instruction on the burden of proof," see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993), not exclusion. Conclusion Because Mr. Freije's education, training, and experience are closely matched to his testimony, he is qualified to offer it to the trier of fact. And because he personally consulted and evaluated a wide host of sources and evidence which, in light of his training and experience, led him to unremarkable, commonsense conclusions, his conclusions are reliable and admissible.

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By: ____s/ Steven W. Davis_____ David W. Shapiro (AZ Bar No. 015295) Steven W. Davis (Fla. Bar No. 347442) Jorge Schmidt (Fla. Bar No. 781711) Boies, Schiller & Flexner, LLP Bank of America Tower, Suite 2800 100 S.E. 2nd Street Miami, FL 33131 Tel: (305) 539-8400 Fax: (305) 539-1307 Of Counsel: Ann M. Galvani, Esq. Boies, Schiller & Flexner, LLP 333 Main Street Armonk, NY 10504 Dated: February 27, 2006. BOIES, SCHILLER & FLEXNER LLP Attorneys for the Plaintiffs Bank of America Tower, Suite 2800 100 S.E. 2nd Street Miami, FL 33131 Tel: (305) 539-8400 Fax: (305) 539-1307

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DECLARATION OF SERVICE I, the undersigned, declare as follows: I am employed in the County of Miami-Dade, State of Florida; I am over the age of eighteen years and am not a party to this action; my business address is Suite 2800, 100 S.E. 2nd Street, Miami, Florida, 33131, in said County and State; on February 27, 2006, I served the within: PLAINTIFFS' RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION IN LIMINE TO EXCLUDE MATTHEW FREIJE By United States Mail, to each of the persons named below at the addresses indicated: Matthew Kliefield Scott I. Gruber Bess Kunz 3838 N. Central Avenue, Suite 1500 Phoenix, AZ 85012 Fax No. (602) 331-8600

Attorney for Defendants SUNSTONE HOTEL INVESTORS, L.L.C.; SUNSTONE HOTEL INVESTORS, L.P.

BY MAIL: I placed a true copy in a sealed envelope addressed as indicated above, on the above-mentioned date. I am familiar with the firm' practice of s collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. BY PERSONAL SERVICE: I placed a true copy in a sealed envelope addressed to each person[s] named at the address[es] shown and giving same to a messenger for personal delivery before 5:00 p.m. on the above-mentioned date.

BY FACSIMILE: From facsimile machine telephone number (305) 539-1307, on the above-mentioned date, I served a full and complete copy of the abovereferenced document[s] by facsimile transmission to the person[s] at the number[s] indicated.

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BY FEDERAL EXPRESS NEXT DAY AIR: I placed a true copy in a sealed envelope addressed as indicated above, on the above-mentioned date. I am familiar with the firm's practice of collection and processing correspondence for delivery by Federal Express. Pursuant to that practice, envelopes placed for collection at designated locations during designated hours are delivered to Federal Express with a fully completed airbill, under which all delivery charges are paid by Boies, Schiller & Flexner LLP, that same day in the ordinary course of business. (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct and that the foregoing document(s) were printed on recycled paper. I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made.

(FEDERAL)

Executed on February 27, 2006, at Miami, Florida. _s/ Michelle Ah Wong ___ Michelle Ah Wong

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