Free Motion in Limine - District Court of Arizona - Arizona

A As far as government documents and the
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frequency of sampling that don·t pertain specifically to hospitals, don't recaII any in the U.S. There are some in the UK and Australia that have sampIing frequencies that, believe, are quarterly. And Sunstone's documents itself, which obviousIy are interpreted to be applicable to hotels, stated to test for Legionnaires' disease quarterly. Q You believe that Sunstone's documents suggested as of February 2003 that they were to sample quarterly? A can find the document, if you would like. Q Sure. Find that, please. MR. SCHMiDT: believe the document he is referring to is among the ones gave you this morning, by the way, MaR. MR. KLEIF[ELD: One of the engineering manual
documents?

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Q in fact, it does reference testing under the Legionnaires' disease section of this engineering

manual, doesn't it?

MR. SCHMJDT: Objection. The document su·.aks
for itself.

THE WITNESS: Would you repeat that. BY MR. KLEiFIELD:
Sure. The Legionnaires disease section of the manual does reference testing; true? A don't know what you're referring to. Q Doesn't the second bullet say have water treatment supplier perform litmus dip col! tests as
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MR. SCHMIDT; Yeah. MR. KLEIFIELD: Okay. We'll see if he can point that out to me. THE WITNESS: It's Bates No. 420 and, actually, 421, testing, inspection, review, assessment and other recurring requirements. It says Legionnaires' disease testing quarterly. BY MR. KLEIFIELD:
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What you're reading from is you're reading from an engineering summary of recurring actions. And it doesn't talk about sampling quarterly. It talks about looking at a different page in the manuaI quarterly, doesn't it? A That's not how interpret ft. Q Okay. Where does it say Legionnaires' disease sampling quarterly anywhere in this document?
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recommended? A That's for cooling towers. Q Okay. And so if we look at the Legionnaires' disease testing that's referenced here and cross that against the recurring requirement section of quarterly testing, they're talking about the litmus dip cell test for cooling towers; right? A No, dcn't believe that's what it:s referring to because right above the Legionnaires' disease testing, it says water treatment testing daily, and that would be for like{y for cooling towers. It might also be for their boilers, some sort of testing for boilers, but if they were to do those tests for cooling
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MR. SCHMIDT: Objection. The document speaks
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THE WITNESS: It says Legionnaires' disease
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BY MR. KLE]FIELD: Q And then if you have taken
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a look at the Legionnaires' disease sheet in the engineering

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A Yes.
the Legionnaires' disease sheet doesn't say anything about sampling quarterly, does it? A Not on this sheet. They have it on the sheet of recurring you can read at the top what ft says, recurring requirements or tests that they conduct. So apparentJy they decided to put it under their testing section instead of specifically under their Legionnaires section.
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towers only quarterly, for one thing, that's inadequate and it's absolutely not what that means. Q Where else in any of this does it reference testing of the type that you're suggesting? A Why does it have to be anywhere else? Q i'm asking you whether it=s anywhere else that it suggests testing of the type that you're suggesting. And if understand correctly, you're suggesting testing other than a litmus dip test; correct? A Yes, because litmus dip tests don't test for legionella. Q Okay. Where anywhere does it say testing of the type that you're suggesting? MR, SCHMIDT: Objection, Form. BY MR, KLEIFIELD: Q Sample testing where you draw samples of watel and send it to a lab for a test where does it say that anywhere? A don;t recall in their en£;ineerirlg manual where it discusses in any more detail the sampling for ]egionella, Q Okay. Have you talked about al! the reference materials that you have here with you that we can talk about that stand in support of the proposition that a hotel should sample in the fashion you're proposing four
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sufficient to cause human illness.
Q Anywhere else in this document that you:re suggesting stands for the proposition of annual sam.piing of the type that you have proposed?

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have other documents that suggest hotels should sample. don't have any others that specifically say four times a year and are for and are published in the U.S. Q What reference materials do you have here that suggest that hotels specifically should sample any frequency the type of samples that you're discussing in order to reasonably manage the risk presented by

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/egionella? A The ASTM 1996 standard titled "Standard Guide for Inspecting Water Systems for Legioneila and investigating Possible Outbreaks of Legionellosis." Q Which document are you looking at there? don't know that [:ve got that one. It looks like you brought a copy for me today; correct?

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A Yes.
Q When did you first photocopy this for yourself? A Well, I've had this document for years.

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A No. Q Any other reference materials that you rely upon to support the proposition that annual sampling of the type that you proposed is reasonable to manage the risk in hotels as presented by legionella? A Again, I'm not referring specifically to annual, but to periodic sampling. suggested it's quarterly, but at [east it's some reasonable frequency that would be annualIy or more frequent. Q Okay. A The other one reference in my report, QSHA's guide, which we referred to earlier Q Okay. A says analysis of water samples from a source suspected of being contaminated with legione[la is a
valuable means of identifying potential sources of
disease,

When did you first photocopy it reIative to this case? A A copy for you, you mean? Q No, a copy for yourself for this case, When did you put it in this case file? A don't know, don't know, mean, I've had
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Q You agree that there is no evidence that Sunstone knew the presence of legioneila-- strike that that San Marcos knew of the presence of iegJonel[a in the domestic water systems of its hotel prior to the
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it, and brought it with me. don't know that it was actually in my case file. Q You would agree with me this was not something you produced previously or since your first deposition; true?

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A Yes. Q You had not previously referenced it in any of your reports dealing with the opinions or the bases therefore in this case; true? A No, did not. Q Okay. We're ta]king about a it looks to be about a 15-, !6-page document, double columns; correct? A Yes. Q Okay. What are you referencing on this
document? A Page 4, left column, 5.2.1, concerned employers, building owners and operators, facility managers and others seek to prevent real and potentiaI hazards, if possible, Water system operators may identify undesirable situations by monitoring routinely for legJonella and may be able to implement control measures before the bacteria reach concentrations Page 258

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time that Mr. Sapiro stayed there; true? A don't think that's the condition far this statement. Q didn't ask you what the condition of the statement was. My question was, wou]d you agree with me that there's na evidence that the San Marcos knew of the presence of legione[la in its domestic water system prior to Mr. Sapira's stay there? A l-hat's the whole point. You don't know unless you test for it. Q There's no evidence that they knew it; right? A They didn't because they didn't test for it. Q Thank you. That's all needed was a yes or no.

A Okay.
Q And you agree with me that there's no evidence that the owner or manager of the San Marcas knew of the

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presence of legionella in any of the domestic water systems of any of the other hotels that are owoed or managed at any point in time prior to Mr. Sapiro's staying at the San Marcos; true? A Only if they tested them. don't recall in their comments in their depositions whether they discussed testing at the other hotels. ]:m assuming they didn't, but if they didn't test any of other
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hotels, they wouldn't know even now whether those were contaminated with legionella. Q So you don't recall any evidence that they knew of it in any of the other hotels they owned or managed; true? A True. Q Any other documents that are reference materials that you believe support your proposition that sampling of the type you suggest at some level annually is a reasonable action by a hoteI to manage the risk presented bylegionella? A That's eli I'm presenting specifically today. There's in that same document we discussed before, the AWT document, they discussed sampling and the importance of doing a risk assessment and then to consider sampling after doing a risk assessment, but they don't suggest a given frequency for sampling. Q in fact, ju· that article confirms that there's debate among ]egionella experts regarding whether sampling is reasonable and appropriate, period; true? A Which article are you referring to? Q The AWT article you iust gave me today that you said quotes your two reports. A Right. There's some-Page 259

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Do you agree with the statement that the CDC, the Center for Disease Control, advocates sampling a2er LD has been found (confirmed) so as to locate the of the legienella that caused it and to take remedial action, but they do not encourage sampling in the absence of confirmed LD cases? Do you agree with that statement?
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so·rce

Q Do you agree that there is a debate amongst experts regarding whether or not so-caIled routine 12 sampling is appropriate? 13 A It depends what you define as debate. wrote about that in my book. Even though advocate sampling 14 15 in my book, outline the all the opinions on it, and won't call them 16 there's not a consensus among 17 experts, but among eli individuals who are connected in 18 some way with legionella as to whether to or hew often, 19 but there are very few, would say, now who recommend who actually recommend against it. 20 The ones who don=t encourage it would have 21 22 certain caveats that they would emphasize should be

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taken into consideration in interpreting legionella test results, and that's why CDC emphasizes those points. Q Do you believe that as of July 2000 the CDC Page 261 advocated sampling only after LD had been found and they did not encourage sampling in the absence of confirmed LD cases? MR. SCHMIDT: Objection. Form. THE WITNESS: In July 2000, that was the case regarding their guidelines for nosocomial pneumonia in hospitals. BY MR. KLEIFIELD: Q When do you believe that changed in terms of the CDC's approach? A Well, the CDC, believe, published a paper in 2002 that recommended sampling being conducted in certain instances, but again, they're talking just about hospitals because that's what they cover. And they published it in two guide manuals in 2003, but believe it appeared in articles in 2002. And in my personal communication with them, they've expressed that they're not opposed to sampling routinely, but that people who do it need to under those caveats. Q You understand that at least as of February 2003 there were legionelJa experts who believed that so-called routine sampling was not necessary; true? MR. SCHM]DT: Objection. Form; miscbaracterizes the testimony of the witness. Page 262

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MR. SCHMIDT: Hold on for a second. Objection. Form; the document speaks for
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BY MR. KLEIFIELD: Q True?
A The document covers what the opinions of some are as far as the cons of sampling. Q WeII, the document itself states, quote, under "Sampling, testing for legione]la: The big debate," that, quote, "Legione[Ia experts have debated the issue of sampling and routine testing for years. The CDC advocates sampling after LD has been found (confirmed) so as to locate the source of legionella that caused and then take remedial action. They do not encourage sampling in the absence ef confirmed LD cases. Other experts disagree with this in advocating a more proactive approach of conducting periodic sampIing (so-called routine sampling) even if no cases of LD have been detected." Have read that correctIy? A wasn't reading along, but believe that's correct, in fact-Q just asked if read it correctly, and you said you believe that's correct? MR. SCHMIDT: Ob!ection. The document speaks
for itself.
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can put their opinions into a summary like that. BY MR. KLEIFJELD: Q Okay. Do you agree that as of February 2003 not a·l legionella experts agreed with your present opinion that at least annuai sampling of the type you suggest was necessary to reasonably manage the risk presented by legionella in a hotel domestic water system? True? MR. SCHMIDT: Objection. Form; mischaracterizing testimony of the witness. THE WITNESS: can't speak for exactly mean, assume that you know, know not all experts would agree with all my opinions certainly, but do know there is a consensus, and believe aII experts would say that in this instance if sampling had been conducted and legionella identified, the case of Legionnaires' disease would have been prevented. BY MR. KLEIFIELD: Q That's not the question. The questien is,,with respect to the proposition of routine sampling as you're suggesting in this case and thought you already .told me correct me if !'m wrong that there was not a consensus that routine sampling of the type that you proposed as of February 2003 was required to reasonabIy

THE WITNESS:

concise

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include the proposition of sampling. And what I'm trying to understand is whether or not you propose that all within your expertise, within that expert community, agree with your methodoiogy that as of February 2003 routine sampling is called for to manage the risks presented by legione]la in a domestic water system of a hotel.

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MR. SCHMIDT: Objection. Form. Agreement and consensus are not the same thing, BY MR. KLEIFiELD: Q Go ahead. A No, don't believe that's true because it's not as though I'm alone in that opinion. Q I'm not saying you are or aren't. A Qr even in the minority regarding it. You know, there are various opinions. admit that, but among those who deal with and are experts in legienella control in buildings, there hasn't been a forma[ meeting or a formal summit of any sort where we=re come together and have tried to publish something on this. Q Okay.
A But if you were to survey experts, believe there would be a consensus that routine sampling is reasonable in preventing the disease. Q Looking from this article you gave me today as patge 265
of July 2000, do you agree with the statement as follows: Quote, "Water sampling for legionella can be useful in helping assess risk and determining whether or not preventive and corrective measures are working. Having an action plan based on results of legionelIa sampling carl alert you to increased risks and whether or not disinfection procedures should be implemented. Not sampling obviously tells you nothing about your programs until a case of LD occurs. The aforementioned sounds like logical ar;d simple and is a· assumption that [egionella sampling should be routine for any monitored system. Such is not the case," Do you agreed with that

Page 263

MR. SCHMIDT: Same objection. THE WITNESS: didn't follow. Can you repeat 5 that, please. 6 BY MR, KLE1FIELD: Q As of February 2003, there was not a consensus 7 8 amongst legionella experts that the required routine 9 sampIing of the type that you proposed in order to 10 reasonably manage the risk presented by legionella in a domestic water system of a hotel; true? MR. SCHM[DT: Same objection. 12 THE WITNESS: In February 2003, the experts 13 14 individuals who were experts on the environmental issues 15 with legionella, believe, the majority would say 16 routine sampling shouId be conducted. 17 BY MR. KLEIFiELD: Q There was not a consensus in that respect? 18 g A How do you arrive at consensus? Q Consensus is a given community agreeing upon a 20 21 proposed methodology without a significant disagreement 22 in that respect. mean, something that as 23 understand it, you're proposing that your methodology 24 was applicable to a particular industry as of February 25 2003 as opposed to some other methodology that does not
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manage the risk presented by legioneila in a hotel domestic water system; true?

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statement? MR. SCHMIDT: Objection. Form; the document speaks for itself. BY MR. KLEIFIELD: Q And that that would be an appropriate statement as of July 2000? A Agree with what part of it?
Q The entirety of it. That it sounds logical that sampling for legionella in that type of a setting, but that such is not the case? A What is not the case? Q That it's quite logical to do that. A Well, no, don't agree with that. P·ge 266

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Q Do you agree that routine culturing of samples from building water systems may not be predictive of the risk of transmission? A Where are you reading? Q I'm asking if you agree with that statement. A it's just easier to follow if can read the same thing. Q will read it again. Do you agree that routine culturing of samples from building water systems may not be predictive of the risk of transmission?

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want to maintain the system to prevent iegionella contamination and they're testing to find out if their preventive measures are working, then it doesn't [eed to a false sense of security.

BY MR. KLEIFIELD:
Q

Do you agree that legionella amplifiers can

MR. SCHMIDT: Objection, Form.

BY MR. KLEIFIELD:
Q

I'm talking, of course, aboutfegionella.

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A Well, of course not because routine water
sampling tells you what's in the water. It's not about transmission. Anyway, it doesn't account for there can be a variance in the efficiency of transmission from the water to the person. Q Do you agree with the statement that the presence of legionella in the water system cannot be directly equated to the risk of infection? A agree with that, MR. SCHMIDT: Objection. Form.

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heavily colonized very quickly? MR. SCHM]DT: Qbiection. Form. THE WITNESS: would have to have more of aR explanation of that, BYMR. KLEIFiELD: Q We talked about this briefly earlier, and that is the rate at which Iegionella can promulgate. Do you have an opinion regarding the extent to which legioneiia can promulgate to pathogenic levels in a welcome environment, in a conducive environment? MR. SCHMIDT: Objection, Form; incomplete hypothetical, BY MR. KLEIFIELD: Q How quickIy it can go from a nonpathogenic to a pathogenic level. MR. SCHMIDT: Same objection. THE WITNESS: Well, Iegione]la can legioneiIa counts can go from nondetectable to fairly
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through culturing of the water couId be confounded by 2 the use of different bacteriologic methods in various 3 laboratories providing insufficient information 4 regarding the results of the sample? 5 MR. SCHMIDT: Objection. Form. THE WITNESS: No. disagree with that because 6 7 if the same laboratory or a couple of laboratories that are used for each screening, then there's 8 are competent 9 confidence level in those methods. BYMR, KLE1FIELD: 10 Q Do you agree with the statement that test 11 results only represent the counts at the time the sample 12
was collected?

high counts in a short period of time. In some instances, for example, if there's water pressure shock perhaps the city is working on a water main and it shakes loose piping and biofilm comes loose there have been outbreaks associated with those events because of the rapid increase in legionella leveIs in the water.

BY MR. KLEIFIELD:
Q What do you mean by short time? In your understanding of the documents in that respect, what's that quantification? What's a short time? A it could even be minutes. Q Okay.

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MR. SCHMIDT: Same objection. THE WITNESS: Yes. BY MR. KLEIFIELD: Q Do you agree with the statement that a negative result can lead to a false sense of security because any amplifier can quickly become heavily colonized if it suffers neglect? MR. SCHM[DT: Objection. THE WITNESS: disagree that it would be a false sense of security, it's only a false sense of security !f the operator is testing with the wrong motive, if they are testing with the idea that they
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A But absent those types of events, it:s not likely to change substantially over time from being safe to unsafe, for example, without some kind of intervention, without some kind of disinfection procedure or, in the other scenario, some type of introduction of organic contaminants in the water that would be nutrients for legioneila. So a system that's lust basically left to operate as usual, it would foliow these same laboratory·defined replication rates which are not entirely agreed upon by microbiologists, but would be rcugh]y every twelve hours.
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Q Do you agree that environmental sampling is not regulated in the United States as it is in other

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A Yes. Q In your report of February 11,2005, you suggest that one of the authorities you rely upon is the
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and management of hotels. A We[[, wouldn:t lock into that because not their place to do that. Q So you have no knowledge that they have

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correct? A Yes.
That is the document entitled "Guidance Manual for the Compliance with the Filtration and Disinfection Requirements for Public Water Systems Using Surface
Q

Water Sources"; correct? A Yes,
To what extent was the water involved in the San Marcos from a surface water source? A According to the Chandler water report, it gets part of its water from surface sources and part from wells; the majority from surface water. Q Do you know where the water involved in this instance came from? A Based on the report, it came from a number of sources, it wasn't just one river or reservoir. Q Do you know the extent to which any water user
Q

group, Sunstone itself? A I'm just saying they must have Q Listen to the question though, The question talks about industry group. [t didn't talk about a hotel. know what you want to try to say. Listen to the question so can get the answer to it. Are you aware of any hotel industry group that 17 has adopted your proposition that there is some type of 18 requirement for at least annual sampling of the type lg that you suggest to manage the risk presented by 20 legionella in the domestic water system? MR. SCHMIDT: Qbje.ction. Form. 21 22 THE WITNESS: haven't asked any hotel or
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such standards; true? A Only to the extent that Sunstone's documents themselves indicate that they were convinced so that they adopted it themselves. Q i'm sorry. You consider them a hotel industry

motel management association about that.

BY MR. KLEIF!ELD:
Q

Okay. Are you aware ef any hotel industry

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schools, any hospitality schools that train, teach and instruct the property managers of the future in the hotel industry that at least annual sampling of the type that you propose is required to reasonably manage the risk presented by ]egionella in its domestic water

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source? MR. SCHMIDT: Objection. Form; lacks
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system? A So when you say schools, you're not referring
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Q Yes. University. A Things Iike hotel management programs

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San Marcos was aware that it drew any water from a
surface source, are you? MR. SCHMIDT: Objection. THE WITNESS: would be surprised if they did not know that. BY MR. KLEIFiELD: Q You have no knowledge or information that they did or didn't, do you? A do not. Q You're not aware of any hotel industry group that has adopted the standard of sampling domestic water systems to determine the presence and concentrations of legioneIla, are you? A What do you mean by a group? Q Any hotel industry group, any group that is created by or involved in the oversight of the running P·ge 272

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institulions. A haven't inquired about that. Q Have you inquired of any texts that institutions rely upon and have their students learn from with respect to the reasonable means of managing the risks presented by legionella in a domestic water system of a hotel? A l'm sorry. Could you repeat that, please. Q Sure. ·{ave you tried to determine what texts, what books, such institutions have their students learn
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from with respect to the concept of sampiing far legionel[a in order to reasonably manage the risks presented by legionel[a in a hotel's domestic water

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in that respect? A haven't done it. You said have been asked, and have. That was the University of Wisconsin,
believe,

system?
wouldn't have with respect to this case because it wouldn't have had a bearing on my opinion. Q Have you attempted to provide your perspective with regard to the proposal for routine sampling of domestic water systems in hotel settings to such institutions or the professors of those institutions for inclusion in their curriculum? MR. SCHMIDT: Objection to form. Irrelevant. THE WITNESS: don't believe it would be it's the place for--

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did not do it. Q Have you afforded your perspective regarding routine sampling of'domestic water systems for legionella to any regulatory authorlty, agency or lawmaker for what we call codification, for the proposition of making iaw or a rule or a regulation out of your proposition?

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MR. SCHMIDT: Objection. Form; relevance. THE WITNESS: Well, first of all, it's not as though it's a protocol that have authored or it's
something that's just my position on this, but the idea of but the idea of routine sampling is known to the is known to some of organizations that would have something to do with legione{la.

BY MR. KLEIFIELD: Q I'm not asking what you believe. I'm asking if
you did or didn't dc it. Did you do it or not? A haven't contacted universities to tell them think they should include this in their classes. Q How about professors that teach those classes? A don't contact universities to tell them what think should be in their curriculum. haven't done that, as far as recall, for anything to any
universities.
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approached any regulatory agencies, law-making agencies with the proposition that this is what think about reasonable sampling standards for a particular industry or for a particular type of water system. believe
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that you should consider implementing it as law or regulation. Have you done that in a letter or telephone
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answered.

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THE WITNESS: Well, so again, you're talking about professors that teach specifically which classes?
BY MR. KLEIFIEL.D:
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sampling of the type that you propose for legionella and domestic water systems. A haven't contacted, as far as recall, professors or universities, as mentioned before, regarding their curriculum at all. Q Have you been asked by any universities or colleges to teach on the subject of ]egionella in hotels' domestic water systems? A l:ve been asked to teach on [egione]ia in water systems, but again, it's not addressed they're addressed by water system type, not by building types. don't recall it wasn't about hotels in particular. Q And what university or college have you taught
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THEW[TNESS:

testimony of the witness.

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Q You have not approached them? That was the question. A So your question is not whether have discussed it with them, but have gone out on a crusade to try to spread the gospel of testing? lsthatwhat you're asking me? Q i'm not saying that. don't thirlk you have to go on you a crusade or spread the gospeI. There's any number of average John or Jane Doe citizens that approach regulatory agencies or lawmakers for the proposition for a bill or a regulation that should be adopted by that partlcular entity. Have you done that? Page 278

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Have you approached lawmakers or regulatory individuals saying, Jeek, believe that this is a, concept that should be placed into regulation or law for public safety and welfare? It's something in my mind that is commonly recognized and accepted, and we should do it. Have you done that? MR. SCHMIDT: Objection. Form; argumentative. He stated that lawmakers have approached him on the
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MR, KLEIFIELD: know what he stated, but that wasn't the question. Q Go ahead. A haven't made efforts to try to to try to approach lawmakers and try to get legionella control measures mandated or testing mandated. Q was handed some materials by George before we got started today that included a couple of documents that had not seen before, something called the "Loss Prevention Management Bulletin," February 1998; another thing called a "Loss Prevention Management Bulletin" generated April 1999. Are these documents that you

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A don:t remember. No, didnt put any high%hting on it. Q But you remember having received this document from George's office? A Vaguely, Q Does that document say anywhere that it's industry standard to sample of the type you're proposing to manage the risk presented by Jegionella in domestic hotel water systems? MR. SCHM!DT: Objection. Form; the document speaks for itself. THE WITNESS: Well, do you want me to read back through it? because don't remember. BY MR. KLEIF[ELD: Q Takealeok. want to find out whether or not it says that anywhere. A don't know why it would because they are not they don't have the expertise to make recommendations about Iegionella, but I'll look through it. Q Does it talk about draining, cleaning and sanitizing hot water storage tanks, as you have proposed? A This document is not about legionella prevention. MR. SCHMIDT: Objection. P·tge 281

you get those from George's office?
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believe it was several months ago. Q These are not documents that you referenced in either one of your reports, are they?

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think they go into the detaiI. Q The document taIks about IegionelIa; correct?

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You didn't rely upon them, did you?

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would have to look at them to see if took them into consideration. just don't remember what they are. Q Take a look at them. One is entitled "Loss Prevention Management Bulletin, prepared as a service of the AH & MA by the Loss Prevention Management institute, Conrad and Hilton College, University of Houston, funded by gifts from the American Hotel Foundation and the Hotel Association Group Trust, April 1999." I'll have you take a look at that first, it looks tike a document that has a couple of areas where it's got some gray highlighting on it. presume that's how you received it from George's offices. It was not something you placed on it; fair statement?

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is some kind of a periodic newsletter, and this particular issue covers a variety of subjects, and one of them is indoor air quality. It's not covering water at all in this partk;ular issue, but they just mention under indoor air quality that keeping condensate drain pans dry is one way to prevent Legionnaires disease.

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it has various headings in this document;

right?

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management tip and technology tip. am just reading the main headings. Q That's fine. A The next one is environmental and technology manager tip, and the last one is technology and management tip. Q Do you know what the Conrad and Hilton College at the University of Houston is?

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A No. Q Do you know what the AH & MA is? A American Hotel & Motel Association. Q That's a hotel industry group; correct? A Yes. Q Are you aware of the extent to which the Conrad & Hilton College, University of Houston, prepared and has a service to the AH & MA, any newsletter, bulletin of this type that endorses the routine sampling that you propose or the tank cleaning and sanitizing that you proposed is reasonable to manage the risk of legioneila in this case? A don't know what.the Conrad & Hilton College proposed to the association. know that the Hilton Hotel Corporation, was told, does do sampling for legionella itself, but don't know what they have taught others about it.
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Q And de you know when they first started sampling for legioneila? A No. Q You were involved in a case at a hotel in Tucson where there was a suggestion of iegioneIla contamination in a domestic water system; true? A That case has been settled, and signed a confidentiality agreement agreeing that the only thing could say about it is that the case has been settled and I'm trying to remember the last part of it, but anyway, l'm not allowed to say anything about it. Q I'm not asking about the hotel or case name or anything, i'm simply asking about whether or not you, in your experience, were involved in such a setting? A was retained in a case, Grosshart versus Starwood. Q And in connection with that case, did you determine that the hotel that was involved had not been sampling in the fashion you propose as reasonable to manage the risk presented by iegionella bacteria in a domestic water system of a hotel? MR. SCHM[DT: Hold on for a second. THE WITNESS: No, can't answer. am not allowed to give any of my opinion or even state what my role was in the case at aJ].

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hotel reiative to its management of the r!sk presented by legiene[la; true? MR. SCHMIDT: Look, he's signed a confidentiality agreement, if you would like the court to-rule on this, that's fine, but don't think you should be asking him any more questiePs about it. MR. KLEIFIELD: It concerns me because this was an issue that was raised at the last deposition, and it obviously goes to his experience with respect to what the industry was doing, what other hotels were doing. MR. SCHM[DT: Well, he doesn't reference that at all in his report. MR. KLEIF]ELD: You can=t basically ignore experience, and think that's not precluding me from cross·examining what that other experience may be. Hes testified from his experience as the basis fur many of his opinions in this case, so [·m entitled te cress·examine regarding what that experience is, including his experience with other hotels, which was when he was involved with a litigation. MR. SCHMID Sure. understand. We're not involved in that case. am not aware and have never Page 285

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read the confidentiality agreement, but to the extent that he is under an obligation not to reveal that, would advise him not to, and then we can seek the advice of the court on what subject matters we can explore.

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The problem is that any expert

can come up with a great idea that let's just execute

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learned or what saw relative to another case. That way, they can't ask me about my position. And I'm very concerned that that's what's happened here.

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Sure. That's great. A Because thought this might come up, so wrote it down. It says in the confidentiality agreement if somebody wants to force me to testify about it, contact this guy, Keith Grossman, Senior VP and Deputy Generai Counsel, Starwood, in White Page 286

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Plains, NewYork. don't have his phone number. Q know we addressed this thorough[y at the last deposition regarding other properties that you've been involved with in Arizona. Since that deposition, have you have been involved in any other properties in Arizona specifically in the instance where you've been evaluating the presence of legionella or the efforts that were undertaken to manage the risk presented by

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perspective or your opinions regarding a property owner's obligation to undertake steps to reasonably manage the risks presented by other health hazards, whether it be viruses or bacteria, vermin anything? A The question is not have presented any information about that, but have specifically been asked to give an opinion about it? Q That's the first question youk·e been asked. A WelI, donff: know. mean, possibly. It could be with respect to other waterborne pathogens, and if was, it was, you know, in an informaI way. Maybe was giving a speech and someone asked what should we do Page 287
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true? k_ A They present a risk primarily in hospitals, yes, although mycohacteda, believe, is the second leading cause of death of A·DS patients, so guess that wou·d apply outside hospitals as well. Q Have you received any formal instruction regarding the methods to manage the risks presented by those waterborne pathogens? A I've certainly looked for it. There aren't any formal courses or training on that, and I've obtained as much as could at this point on basically research that has indicated what some reasonable measures would be to prevent it. Q ]f understand correctly, the opinions that you've conveyed in this case relative to routine sampling and proper maintenance of hot water sforage tanks are opinions that you believe should apply to the hotel industry in general, specificafly that hotels that have hot water storage tanks should drain, clean and sanitize them one to four times a year; true? MR. SCHMIDT: Objection. Form; mischaraoterizes the testimony of the witness. THE WITNESS: Well, you seem to be focusing Page 28£

specifically on the tank cleaning.
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dealt with indoor air quality, would be asked about air contaminants, but

Many years ago when

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that's been many years ago. Q Are there any other waterborne pathogens that you have held yourself out as being an expert to be able to address the way to manage the risks presented by such pathogens? MR. SCHM]DT: Objection. Form. BY MR. KLEIFIELD: Q That was a lousy question. Letmeaskit again. Have you held yourseIf out as an expert, and as competent to address the reasonable methods of managing a risk presented by any waterborne pathogens other than legionella? A would say yes to a more limited extent than legionel[a just because the research and recommended preventive measures are significantly fewer for other

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opinion that as of February 2003 hotels should have been draining, cleaning and sanitizing their hot water storage tanks four times a year; true? MR. SCHMIDT: Same objection. "[HE WITNESS: believe that they shcuId do that, yes.

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Q What other pathogens? A Pseudomonas would be one. P-s-e-u Q

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your opinion that as of February 2003 in order to reasonably manage the risk presented by legionella that hotels in general 16 industry-wide should have been sampfing for the presence 17 of iegionella in their domestic water system at some 18 level annually; correct? MR. SCHMIDI-: Same objection. 19 20 THE WITNESS: At some frequency, believe they 21 should, especially with the number of cases of disease 22 that have been associated with hotels. 23 BY MR. KLE]F[ELD: Q As for the latter point, have you ever 24 25 conducted a survey or seen any published !nformation
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demonstrating the extent to which hotels were doing that? As of early 2003, late 2002, what perdentage of hoteis within the United States were actually sampling for the presence of legionel[a in their domestic water

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any surveying to determine how many hotels are doing sampling or were doing sampling as of February 2003? 10 BY MR. KLEIFIELD: Q What percentage of hotels in the domestic 12 United States or in the 50 states of the United States 13 were sampling their domestic water systems far the 14 presence of legionella? 15 A haven=t done an extensive sur·ey. did make 16 some telephone calls to find out at least what some of 17 the larger chains were doing regarding sampling, but 18 those phone calls were made late 2004, and didn't ask 19 them specifically about sampling they were doing as of 20 February 2003. Q Okay. Have you seen any studies or other 21 22 documents demor·strating that somebody else has 23 undertaken that type of effort to determine the 24 percentage of hoteIs in the United States that were 25 sampling for legionella in their domestic water systems
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called, how many told you that they were not doing sampling? A That they were net doing sampling? Q Uh-huh. MR. SCHMIDT: Objecfiem Mischaracterizes.. BY MR. KLEIFIELD: Q Go ahead. A don't recall any that specifically told me they were not doing sampling. Q How many told you that they were doing sampling? A [t was at least two, and it might have been three eut of the four. Q So two to three out of the four to five told you that they were doing sampIing, and when you inquired as to preventive measures, one to twe out of the four to five made no statement about sampling; fair statement? A den·t recall that asked them specifically, Are you doing sampling? But for the one or two, don't recall that they told me they were doing Q What you did ask is you asked what their legioneIla preventive measures were; correct? A Something to that effect. don't remember how approached the conversation, Q And what they did not do is they did not tell
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prior to February of 2003? A haven't come across a study, doubt there is any. Q Did you conduct any kind of a survey to determine the extent, the percentage of hotels within the United States that were annually draining, cleaning and sanitizing their hot water storage tanks? A No. would have no reason to get that
information. Q And have ·/eu seen any studies that provide that information?

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you in response to your inquiry that they were doing sampling of the water; correct? A One or two did not tell me that they were doing
sampling.
What chains, large hotel chains, did you contact in this respect? A Well, can tell you that know that at least one of them did not want me to pass on their comments, although maybe he just meant that he, in particular, did not want to be quoted, but it was Hilton, Hyatt, Windom, Marriott. Those were the four know actually reached. Some of the others called, and don't recal! if contacted someone or at least not the right person. And ta·ked with someone from Starwood briefly, but then when realized that they were involved in a litigatien that might have something to do with, immediately ended the conversation. So it was the four Hilton, Hyatt, Marriott and Windom. Q And of those that told you that they were sampling, was that a reference specifically with regard to domestic water systems as opposed to coding towers? A One of them know for sure mentioned domestic water systems. The other one, it could have been iust caoiing towers. Page 294
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Q The one that did specifically mention domestic water systems, did they convey to you when they first started sampling as part of their preventive measures? A No. At least donlt remember if they did. Q Do you recall any of the chains that you spoke with in late 2004 addressing the frequency with which they drained, cleaned and sanitized their hot water storage tank as an e·fQrt to manage the risk presented by legionel[a in their domestic water system? A Well, we didn't get into specific measures, at ]east not that recal!, didn't do a survey saying are you doing this, this and this, but they mentioned in general, you know, that they implemented preventive measures in cooling towers and domestic water systems, and know at least one of the them had e training program or they included it in their training program for their empIoyees. Q i'm kind of curious why you WOL·]dn=t ask them about specifics though? A It was a short phone conversation, end everybody is busy. have in a publication a plan for legionella that might be 50 or 60 pages long. mean, there's not one or two things. There are a number of procedures to consider-· design, maintenance, operation and instaiIation of systems that need to be considered, Page 295

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A Yes. Q Hospitals; true? A Yes· Q Grocery stores; true? A Not as much in grocery stores because, you
know, they might have asink in the rest room in the back, but it's not although there may be a lot of people in the grocery stores, they would not be exposed, except perhaps through the vegetable misters or that kind ofthing. I'm not saying that grocery stores shouldn't clean their hot water tanks and take certain measures, but the risk would be much lower in a grocery store than in a building where they were using the water more. Q is it your opinion that in 2002 or early 2003 that grocery stores should be cleaning their hot water tanks and sampling for legionel]a in the fashion you suggested the San Marcos should have? MR. SCHMIDT: Objection to form. Mischaracterizes the testimony of the w!tness. THE WITNESS: can't give an opinion as to grocery stores in general. would have to see a given store and how the water is being used, and then make a decision about that.

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Q In the event that a grocery store has a mister system for vegetables, with that condition, do you believe that that type of grocery store should be utilizing the preventive measures that you've appIied to San Marcos? MR. SCHMIDT: Same objection and incomplete hypothetical. THE WITNESS: think they should exercise reasonable preventive measures to make sure that the water wasn't contaminated with legione[Ia. It's a cold water system for the mister, so the risk wouldn't be as high, but there should be some measures they should take, especially since there has been a documented outbreak associated with grocery store misters.

and this is too much to go over in a phone call like
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MR. KLEIF]ELD: Let's go back on the record. Q As understand your testimony and think you've made this statement various times your perspective relative to managing the risk presented by legionella in water systems applies to types of water systems wherever they may be, particular types of water systems; true? A Well, taking into account the potential for exposure. Q So water systems that might interact with iarger volumes of people should be subject to legionei]a risk evaluation; true? MR. SCHMIDT: Objection. Form; mischaractefizes the testimony of the witness. THE WITNESS: Well, particularly where people are using the water in away in which they could be exposed. BY MR. KLEIFiELE): Q Hotels; true?
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That opinion that you just gave me, have you
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pubJished that perspective anywhere before? MR. SCHMIDT: Objection to form. THE WITNESS: That a grocery store should test the water that's used for misters? BY MR. KLEIFIELD: Q But perhaps not as frequently as other water systems, but yes, that they should. A haven't gotten involved with those types of systems, Q take it that the recommendations that you've
strike that. take it that the methodology that you've proposed that San Marcos shouId have adhered to relative to their hot water storage tanks and sampling, their domestic water system, is likewise a methodology you feIt should have been followed by large buiIdings with public food facilities?

obligation to think and to say, Do we have people here who might be exposed to this and could get sick? Maybe we ought to take these measures in our water system_s. Q Okay.

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A And so can't say that there would be the same exact overall strategy for each building type hospitals, hotels, office buildings, restaurants, health clubs. There are different considerations in each, but to the extent that they have those same operating systems and people are exposed to them, they need to consider these measures and testing also. So those would be-Q Go ahead, i'm sorry. A Those would be some of.the buildings. industrial facilities have some issues that they need te address too. Q To the extent that a building has a hot water system that might expose its occupants to aerosolized hot water, such as a health club that has showers, do you believe that they should be draining their hot water storage tank at least annual{y and cleaning it, disinfecting it; true? MR. SCHMIDT: Objection. Form. THE WITNESS: believe a health club like that that has showers and se forth needs te implement Page 301

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preventive measures against legionelIa, which would include cleaning tanks periodically. BY MR. KLEIFIELD: Q At ]east annually? MR. SCHMIDT: Objection. Form; A would say so. It depends on the type of mischaractefizes the testimony of the witness. He's tank. ]f you're talking about a traditional hot water stated it's not his perspective. storage tank, then yes. BY MR. KLE1FIELD: Q Likewise, a facility such as a health club, in Q Go ahead. your opinion, as of 2002 or 2003 where they have got A Well, didn't realize that was a question. showers that's aerosolizfng the water should be sampling You want to know what recommend for all different at least once a year for the presence of legionella in types? building Q Well, are your recommendations soleIy 12 that domestic water system; true? MR. SCHM]DT: Same objection. 13 applicable to hospitals and hotels? No, 14 THE WITNESS: have not published anything for A Q What other building types do you suggest should 15 health clubs that say that in particular. ]f owned a 16 health club, know that would. drain, clean and disinfect their hot water tanks at I7 BY MR. KLEIFIELD: least annually and sample for Jegionella in their Q Have you published anything specifically for 18 domestic water systems? 19 hotels that said that? A can't name ail the different building types. Q Give me a smattering of some. 20 A Well, have recently. !'ve come out with a 2! management plan for hotels, but again, don't focus on A I'll give you some examples. Q Sure. 22 the building types. My book addressed health care 23 faci!ities in the title, but the things that have A But that goes back to an earlier point that legioneila preventive measures apply to certain types of 24 written pertain to how to address legionel[a prevention 25 in certain water systems. water systems. ;-he building operator has some
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Q So it doesn=t matter that you've not published specifically for health clubs; right? You stiII bglieve that it applies to the setting where you:ve got a aemsolized water coming through a showerhead from a domestic water system where you have a good volume of people that might be exposed to that, and in that setting, they should be sampling for legione/la annually in their domestic water system; true? MR. SCHM[DT: Objection. Form; mischaracterizes the testimony of the witness. THE WITNESS: The fact that personalIy have not written something that pertains specifically to health clubs doesn't mean that they should not take those measures.

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Q don=t believe asked this at your last session, so I:[] ask it now. You have specifically submitted articles for publication in journa]s directed to health care facilities; true? A have, yes. We went over some of them today, the ones on this list. Q Is there any reason why before February of 2003 you had not subroitted articles for publication that specifically focused on the hospitality industry? MR, SCHM/DT: Objection. Form; mischaracterizes the testimony.

BY MR. KLEIFIELD: Q is it your belief as of 2002 and early 2003
that health clubs that have showers that produce aerosolized water to its health club guests should be sampling for the presence of legionella in their domestic water systems at least annually? MR. SCHMIDT: Objection. Asked and answered. THE WITNESS: Yes, believe they should. BY MR. KLEIFIELD: Q Have you ever conveyed that opinion anywhere before just asked it?

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BY MR. KLEIFIELD: Q For publications in journals that specifically
focus on the hospitality industry. A don:t have a specific reason other than just lack of time to write articles. Q Why did you choose to submit articles to journals that specifically focus on the health care industry? A WeiI, don't remember exactly how those came about, but the articIes] write now most of them write because the editors contact me. Se anyway it's just a matter of who contacts me, Q Back in 2000 or before February 2003, you don't recall why you submitted primarily to the health care
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A don't recall having conveyed it specifically about health clubs in any kind of article I've written. 2 Q Okay. 3 A don't remember. can=t remember everything 4 I've said in seminars and so forth. 5 Q Have you conducted any kind of a survey to 6 ascertain the extent to which the health club industry, 7 all of these Gold's Gyms and L.A. Fitness health clubs, 8 whether they follow that methodology in rrlanaging the g risk presented by legionella in their domestic water 10 systems? I1 MR, SCHMIDT: Objection. Form; relevance. 12 THE WITNESS: I'm not a market researcher, 13 don't do that kind of work. 14 BY MR. KLEIFIELD: 15 Q What's the HC stand for in HC Information 16 Resources? 17 A it doesn't stand for anything. 18 Q Any particular reason you selected those? I9 A Well, when the company was formed, it was with 20 the idea of health care in mind, but it never was 2I officially part of the company name. 22 Q So that's why you selected those letters 23
though? A Yes.
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industry journals? A Well, again, don=t know if can say it was primarily health care. know we counted them before, but in terms of the number of journals, it's more non-health care than health care. Q Let me re-ask the question in s different way then. You don:t recall why prior to February 2003 you choose to submit articles for publication in health care-focused journals? A Why submitted articles to health care-focused journals?
Q

Yes,

A Well, as mentioned, in part it was because the editors asked for the articles. Q thought you said that was more recently? A Well, don't remember at what point most of the articles came about because of editors contacting me. just don=t remember. have industry contacts, and some of these individuals I've known for a while, and will run into them at a trade show, and they will ask me to write an article or maybe i=ii have an idea for an article, So don't remember how they came about. Q Like a heaJth care industry trade show? A Not so much those, have spoken at some of
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Case 2:03-cv-01555-SRB

Esquire Deposition Services 949,440,7000 Document 145-4 Filed 12/13/2005

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those, but it's the ones that you know, for plumbing engineers or industrial hygienists or building managers, facility managers those types of trade shows. Q Have you submitted any articles yet for

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publication by a hospitality industry-focused journal?

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A No, but did discuss that with one of those journals, and was there was an article in one of
the traveFreIated publications. didn't actually write it, but was interviewed for it, but it had to do with legionella. Q When did that happen? A Which? mentioned two scenarios. The one where was interviewed for the article? Q Sure. A don't remember for sure. I=m guessing itwas around two or three years ago. Q Were you approached in that respect, or did you approach them? A was called by the individual writing the articIe, and should correct that. think it was more recently than three years ago. Q It would have been since your involvement in this case; true? A That, don't know. would say it was well, don't know.
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weren't interested in the subject, even though they seemed to be very interested initially. Q Tell me about eli the knowledge that you have regarding any hotel that sampled for the presence of legione!la in its domestic water system as of 2002 or early 2003. MR. SCHMIDT: Objection. Form. THE WITNESS: Do you mean some kind of industry-wide basis as to your earlier questions with how many are doing it?

BY MR,
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just want to know if you have any knowledge of any hotel, a particular hotel located somewhere, that sampled for legioneIla in its domestic water system as of 2002 or early 2003. A Well, you're testing my memory to try to remember specific cases. don't know. One comes to
mind that has conducted tests. Q Which one comes to mind that was sampling for legioneIla in its domestic water system as of 2002 or

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