Free Motion in Limine - District Court of Arizona - Arizona


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EXHIBIT C

Case 2:03-cv-01555-SRB

Document 145-3

Filed 12/13/2005

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IN THE UNITED STATES DISTRICT COURT IN AND FOR TRE DISTRICT COUR- OF ARIZONA

APPEARANCES:
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MARVIN SAPIRO and GLOR'.A
SAPIRQ, his wife,
Plaintiffs,
vs.

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For Plaintiffs: BOLES, SCHILLER & FLEXNER BY: GEORGE SCHMIDT Attorney at Law
100 Southeast Second Avenue, Suite 2800 Miami, Florida 33131

No. CLVQ3-1555 PHX SRB

(305)

539-8400

SUNSTQNE HOTELS

INVESTORS,

L.L.C.; SUNSTQNE HOTEL

For Defendan'·:

INVESTORS, L.P.,
Defendants.

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KUNZ, PLIq-F, HYLAND, DEMLONG & KLEIFIELD BY: MATTHEW D, KLEIFIELD Attorney at Law 3838 North Central Avenue, Suite 1500
Phoenix, Arizona 85012q 902

(602) 331

4600

DEPOSITION OF MA·THEM/R. FRE[JE San Clemen·, California Friday, Septsmber 15, 2005 Voiume 2

Reported by: LINDA M. UNGER CSR No. 11403 Job No. 631777

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IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT COURT OF ARIZONA
MARVIN SAPIRO and GLORIA

INDEX
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WITNESS: MA-FFHEW R. FREIJE
Volume 2

EXAMINATION

SAPIRO, his wife,
Plaintiffs,
vs.

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BY MR. KLEIFIELD

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No. CIV03-1555 PHX SRB
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SUNSTONE HOTELS INVESTORS, L.LC.; SUNSTONE HOTEL INVESTORS, L.P.,
Defendants.
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EXHIBITS

(None)
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Deposition of MATTHEW R. FRE[JE, Volume 2, taken on behalf of Defendants, at 893 Calle Amanacer, San Clemente, California, beginning at 10:13 a.m. and ending at 2:15 p.m. on Friday, September 16, 2005, before L[NDA M. UNGER, Certified Shorthand Reporter No. 11403.

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San Clemente, California, Friday, September 16, 2005
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A Yes.
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10:13 a.m. -2:15 p.m.

MATTHEW R. FRE]JE, having been first duly sworn, was examined and testified as follows:

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Q Let's taJk first about the February lth, 2005, report. The first opinion conveyed therein is that Marvin Sapiro was exposed to high levees of ]egione·la bacteria during his stay at the San Marcos resort in Arizona. Have read that correctly?

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A Yes.
Q That=s based upon the sampling that was performed at the San Marcos following Mr. Sapiro's stay; true? A It's based in part on that, yes. Q What are the other bases for that statement? A "The onset of his symptoms relative to the time period at which he stayed there. Q

EXAMINATION

BY MR.
Q

KLHIF]ELD:

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Please tell me your full name.

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A Matthew Raymond Freije. Q Matt, we're here today to reconvene your daposition, which had previously commenced earlier this year. Do you understand that? A Yes. Q Okay. Have you had a chance to review that
previous deposition transcript? A Yes. Q Did you make any corrections, additions or modifications to your previous testimony as of this point in time?

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You're not qualified to diagnose legionel!osis

or Legionnaires' disease, are you?

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A No. Q You're not qualified te diagnose the cause of any particular physical complaint or symptom as being
caused by a particular microorganism, a virus, bacteria et cetera, are you? A Could you repeat that, please. Q CertainJy. Read it back, please.

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A Yes.
Q Did you provide that in writing?

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A Yes, did.
Q Who did you provide it to? Page 159

(Record read.)

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THE WITNESS: in general, I:m not a doctor, so I'm net qualified to give medical advice or to provide a
diagnosis to a patient.

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don't recall.

Q

Okay.

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A could find it. could find a copy of the letter, but don't have it in front of me. Q Do you believe that that went to the court

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reporter? A think so, yes. Q We've got water here, if you want it. All of these are fresh glasses, so feel free to jump in as you
need it.

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BY MR. KLEIFIELD:
Q The sampling that was performed was performed while you were present at the property; true? A In May of 2003?

Yes. A Yes,
Q

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As understand, disclosure of your opinions as an expert witness in this matter those opinions are conveyed in two reports: one dated February 11th, 2005; the other dated ApriI 8th, 2005. De you understand
that?

A Yes. Q Have you generated any subsequent reports setting forth opinions that you have relative to your 19 involvement in this matter? 20 A NoI Q So it=s a fair statement that aJ] the opinions 21 22 you have in this regard generally rest in these two 23 reports; correct? 24 A Yes. 25 Q Do you have a copy of your reports with you?
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Q And how many days, weeks or months was that following Mr. Sapiro's stay at the property? 12 A Approximately three months after. Q Based upon that sampling, did you reach a 13 14 conclusion regarding the source of any legione[]a 15 contamination on the property? 16 A What do you mean by source? Q What caused it, where it came from. 17 18 A Well, the samples cdlected were from the 19 domestic water system, most of them. did not do 20 sampling extensively around the property, For example, didn't sample the cooling tower, but did sample 21 22 water from a shower and faucet, in fact, a number of 23 faucets in the domestic water system. And [egioneJ]a 24 was found in many of those samples. Q Based upon your sampling or any work that you 25 Page 62

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performed in connection with this matter, did you reach a conclusion or opinion regarding the source, the !ocation of the legionelIa which you believe that caused Mr. Sapiro's exposure white he stayed at the San Marcos' A believe it was the domestic water system. It's possible that he could have been exposed from contaminated aerosols from the cooling tower, but did not have cooling tower samples, and because the levels were so high in the domestic water system, think it was more likely that he was exposed by the domestic water system, Q You have no information or evidence that there was any ·eve! of ]egione!la contamination in the coding towers on this property at any point in time, do you? A was never allowed to sample, or never did sample it. Q So my statement is correct that you have no such evidence that there's ever been a demonstrated legionella contamination in the cooling tower? A Or lack of, either one. Q With regard to the domestic water system, did you reach a conclusion regarding the cause of the legioneila contamination in the domestic water system at this property? A Well, when you say the cause, do you mean was
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the hot water tanks and the fact that, at/east according to the documents received, they were not cleaned periodically and there was likely significant

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buildup in the bottoms of those tanks. And based on rr{y inspection of the tanks that had been removed, it appeared that that was the case. The back cross-connections could have been an issue because there were a number four, believe backflow preventers that were found to be faulty. wasn't abie to document exactly where each of those were because it wasn't in the documents, but that can be a problem with domestic water systems. Q With regard to this system in particular, you're tdling me that you did not perform a study or assessment that demonstrated whether or not
cross-connections caused or contributed to cause what you characterize as a legionella contamination; true? A It wouidn'i: have been something that would study. When examine buildings, find out whether they have been checked for cross-contaminations annually to see if backfiow preventers are located where they are supposed to and if they have been tested tc ensure that they are working. don't do the testing myself of backflow prevention devices. Q You have not seen strike that.
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there one factor in particular that could point to and say this is why the domestic water system had

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legionella? Q One or more. A Domestic water systems of this type and when say of this type, mean Iarge recirculating plumbing systerfis are generally conducive to Iegionella growth because of the biofilm in the system and the water heating in the system in particular. And there can be factors that make one system more conducive than another, either how it's designed or how it's operated, but and that's why it's important to test them to rule out that they're to find out whether or not they're contaminated. Q My question was with regard to this specific system then, not in general or what systems of this type present by way of any particular risk. I'm asking whether you reached any conclusion regarding the cause of the contamination in this particular water system. What was it about this particular system? Where is it within the system that you believe the contamination
existed or came from? A can't point to any particular factor. There are factors related mean there could be a number of factors that would have co·ributed to it. The age of
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So based upon your work in this matter, you've not been able to demonstrate that any cross-connections on this property caused or contributed to cause what you characterize as the Iegionella contamination; true? A can go only by the documents that reviewed think it was the in which the local authorities that there were four beck'flow city reported preventers that needed to be insta]}ed in the property either because there weren't any where they were supposed to be or the ones that were there were not working, and so that could have contributed. didn:t take tests to find out if, in fact, that would have allowed contamination of the property. That's not something that's done on legionella investigations. Q Did you generate any opinion or conclusion regarding how ]egionella was initially introduced into this domestic water system? A No. That wasn't part of my assignment. Q Do you agree with me that it was likely introduced through the municipal water system? A in very low or undetectabie levels, yes. Q You agree with me that the majority of bu!ldings within a particular municipality likely have some levo[ of [egionella bacteria withf· the domestic

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water system?
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MR. SCHMIDT: Objection. Form; overbroad. THE WITNESS: No, would disagree with that.

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BY MR. KLEfFiELD:
Have you performed any study or survey that serves as the basis for your disagreement in that
Q

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respect?
A Yes.
Tell me about that study or survey. A Well, it's iust that I've tested a number of buildings and collected hundreds or probably thousands
of samples.
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How many buildings have you tested? can't give you the number, ldan'tknow. Q How many buildings have you tested in one given
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municipality such as Chandler? A Well, are you asking in any given municipality or in Chandler in particular? Q What i'm trying to look for is the largest single number of buildings that you have tested in a single municipality. A Well, don:t don't know. Q [s it more than ten?

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A Yes,
Q

What municipality?
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your initial question was do the majority, and that was vague anyway, So it was based not only on my own testing, but also on other studies that have been done where a nu·nber of buildings, not in the same municipality in particular, except for homes, have been tested in one given area, but don't know that larger buildings have. Q Okay. I'm·askingaboutyeurworknew. So we're back to Baltimore. You're not able to recall for me how many of the eleven or twelve buildings you sampled for domestic water legienella actually demonstrated some level ef legionella in their domestic. water system? A No. just know that not all of them did. Q Are you able to teiI me a percentage of them that you believe did? A Not with any accuracy, no. Q You said that you were aware of a study that demonstrated that there were some houses in a paRicuJar municipality that were sampled for the presence of [egionella in the domestic water system; true? A There have been a few studies sf those. Q Are you aware of any studies that have been performed to ascertain the extent to which ]egionella is present in domestic water systems in public access Page 168

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structures in any particular municipality? A There have been studies of certain building types. don't recall that they were ai[ in one municipality though, probably eleven or twelve. Q Are you aware of any studies that demonstrate Q That sampling was for the particular purpose of the prevalence of legionella in domestic water systems determining whether legionel]a was present in the and public access buildings in any given municipality or domestic water system? demographic area? A Yes. And tested cooling towers also. A Well, like said, there are those studies. Q With regard to the take it you said would have to go back and look at them to see if they it's more like eleven or twelve. It wouId be eleven or 11 were targeted toward a particular region. twelve buildings that you tested in the Baltimore area. Q You suggested that you did not agree with my 12 Was all of that testing or sampling dealing with 13 proposition that the majority of buildings have some domestic water systems as opposed to cooling towers? 14 level of legionella in their domestic water system. Do I'm focusing on domestic water systems right now. 15 you have an opinion regarding the percentage of public A The answer gave as far as the number of 16 access buildings that likely present with some level of buildings, that would pertain to domestic water systems. 17 legionella within their domestic water system? Q Okay. So of those eleven or twelve in 18 MR. SCHMIDT: Objection. Form; overbroad. Baltimore, how many were found to have legionella in the 19 THE WITNESS: Well, guess you would have to domestic water system in any concentration or any sera 20 define one thing, what some level is. Are you talking group? 21 about a level that was found something similar to A We[[, don·t know, espedafly since some of 22 what was found in the San Marcos? would say the those buildings were tested a number of times, and so it 23 percentage would be very small. would be hard to report that data in any meaningful way 24 BY MR. KLEIFIELD: without taking into account the number of surveys, but Q 25 didn't ask that, said some level. That
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A Baltimore. Q How many buildings do you believe that you sampled in Baltimore? A would say it's between ten and fifteen,

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means any level of legionella in the water system. Do you have an opinion regarding the percentage of public access buildings that likely have some measurable amount of ]egioeella bacteria within their domestic water

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system? A No, don't.

couldn't give a percentage. Q Could you give a range? A It would only be a guess. No.
Q

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Okay.

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Att wouldn't be meaningful anyway without knowing how many samples and what strains you're talking
about, but couldn't anyhow. Q Do you hold yourseff out as an expert on the pathogenic level of legionelIa? A The dose required to cause disease?
Q

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contamination. What want to understand is what is your opinion or conclusion as it relates to this property and work that you performed or evidence that you've seen that supports that opinion, So let's not taIk about the world of things, but let's talk about your opinion as it relates to this particular property, MR. SCHMIDT: Objection. Argumentative, THE WITNESS: Well, can look back through my notes of the inspection and see if there's anything in particular, As far as the design of the system, was never provided plans that showed the layout throughout the campus, only the core buildings. So i'm not sure designwise what could have been a factor in the piping that went to each of the buildings where the guest rooms
were. BY MR,
Q

Yes.

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A Wel!, to the e·ent that the dose is not known exactly because there are other factors involved. Q Okay. You are not an epidemiologist, are you? A No. Q You're not an immunologist, are you? A No. Q You're not a microbiologist, are you? A No. Q You're not a virologist, are you?
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KLEIFIELD:

Okay.

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A And can point to a number of factors that could have been involved, but it's very rare in any legionelIa investigation, including this one, where you can point to one factor. You can determine that ft was the domestic water system rather than another system or one building rather than another building, but to say what caused the
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Do you hold yourself out as an expert regarding which sere group ef legionella are more pathogenic than others? A As much as anyone else as far as knowing w6ich ones research indicates are. I'm not the one who does the microbiology to come up the data though. Q So that's based solely upon your reading of others' documentation in that respect?
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A Yes.
Going back to your belief that the Iegionella at the San Marcos that you believe that caused strike that that you believe that Mr. Sapiro was exposed to during his stay was found in the domestic water system, you mentioned that you believe that some of the factors which caused or contributed to cause the contamination was the age of the tanks and the cross-connections. Any other factors that you believe caused or contributed to cause the contamination of the San
Q

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legionelIa to flourish in that building to begin with is not something that can be determined with any accuracy. Q So if understand correctly, you're telling me that you cannot determine with any accuracy what caused the promulgation or contamination of the Iegiunella in this domestic water system of this property to pathogenic levels? MR. SCHM]DT: Objection. Form; mischaracterizes former testimony. THE WITNESS: it would be related to stagnation in the water, maintenance of the domestic water system. But te say that it was one particular issue like it was a given tank or a given faucet is nut something that can be determined.

BY MR.
Q

KLE]FIELD:

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Marcos? A believe there could have been a number of
them, and that's Q Let's kind of focus it a bit because again, not talking about generaJities or, you know, what the Iiterature says regarding potential cause of
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So you believe that the promu]gat!on was a result of deficient maintenance; correct? A believe that contributed to it. Q What e/so contributed to the promulgation? A it could have something to do with the components themselves like the age of the tanks that possibly could not have been mitigated rnerely by maintenance. Q Do you ]'m sorry. Go ahead. A The design could have had some factor, although Page 74

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suspect that design was the issue, in hotels, it can be how a system is operated. If rooms that have been vacant for a period of time are not flushed, then the stagnant water in that piping can become contaminated and eventually contaminate the rest of the system. Q Once again, I'm talking about this system, thought heard you say a moment ago that you did not have sufficient information regarding the design of the system to conclude that it played a role in the
contamination, is

[don't

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that a fair s·atement?

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wasn't provided with the plans, yes. Q So you don·t have an opinion or conclusion that the system design or any component of that design caused
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or contributed to cause the contamination; true? A As far as the piping layout, don't have any information that leads me to believe that the piping layout was a factor. Q There's nothing you've set forth in either of your reports suggesting that any element ef the system's design caused or contributed to cause the contamination;

BY MR. KLEIFIELD: Q Anywhere in either one of your reports setting 3 forth your opinions do you suggest that the tanks at 4 this property were somehow so old as to render cleaning, 5 as you suggest as necessary, ineffective? 6 A No. don't know that c(eaning would have been 7 ineffective, do believe it's something that still 8 should have been_done, and my point is that it would not 9 necessarily have ·uaranteed ]egionella control. An8 believe it is in the report from the 10 11 standpoint that under Point 3, Sunstone failed to 12 exercise reasonable care to prevent Legionnaires' 13 disease at the San Marcos Q Just point out where you say that the tanks 14 15 were apparently so oId and/or corroded as to potentially 16 render cleaning ineffective in managing the risk 17 presented by legionella. 18 A In the report, indicate that ]egionel[a
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preventive measures should have been implemented, and as
an example, on page 4 about three-quarters of the way down, refer to Sunstone's own engineering manuals that

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correct? A It's not in the report. Q You also just told me that you believe that in some instances the components themselves, such as the
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says drain down all storage tanks on a regular basis. Q That's not the question, The question was where do you say in your report that the age or condition of these tanks are such that cleaning efforts Page 177
would have rendered would have been rendered ineffective in managing the risk presented by

age of the tanks, can mitigate maintenance efforts;
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true?
MR, SCHMIDT: Obiection, Mischaracterizes his

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prior testimony. THE WITNESS: Your question wasn't clear to me.

BY MR. KLEIFIELD:
Q

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[egionella? A Well, first of all, never said that, period
Q

Okay.

Are you telling me that it's your opinion that the age of the storage tanks at the San Marcos at the 8 g time of Mr. Sapiro's stay would have rendered any 9 10 maintenance efforts futile in attempting to manage the I0 11 risk presented by legionel[a? I1 MR. SCHMI[3T: Same objection. 12 2 13 THE WITNESS: Well, to clarify what said 13 14 earlier, if you know, believe that hot water tanks 14 and it's not just what believe. It's whst=s been 15 15 16 recommended, not just by me, but by others should be 16 17 drained and cleaned and disinfected one to four times a 17 18 year. 18 lg And my point before is that if the tanks were I9 20 so old and that if corrosion and scaling was so 20 2I significant in them, that it could have been possible 21 22 that cIeaning would not have prevented legionella. 22 23 possible anyway that cleaning would not have prevented 23 24 it, which is why it=s important to test to find out if 24 25 preventive measures are effective. 25
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that the tanks were so old that the cleaning would have been ineffeofive. said that the cleaning would have not guaranteed legionella control. Q Where do you say in this report anywhere that it's your opinion or conclusion that cleaning would not have been sufficient to achieve legionel]a control?

A

MR. SCHMIDT: Objection. Mischaractefizes
former testimony.

BY MR. KLE]F[ELD:
think just point to the page and line number. don't really refer to it directly. believe refer to it indirectly by pointing out that on page 3, second paragraph, that it's important to not only take the preventive measures, but to test the water to make sure the preventive measures are working, which indicates that the preventive measures will not always in themselves keep the bacteria under control. don't mention the age of the tanks. In particular, ]n part, didn't know at that point what
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the age of the tanks were. Q You provided a statement not long ago that you believe that it is reasonable and necessary to drain,

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A Hot water tanks are conducive to legione[[a contamination, especially vertlcal tanks, but hor=,zonta[
*'·anks can be as well. One reason for that is that most tanks maintain water temperature at the set point ir only about 65 percent of the tank, so at the bottom part of the tank, it tends to be cooler than in the top part of the tank. So at the bottom where it:s not as hot and where is also the piece that sentiment and other debris accumulates, that's where/egionella tend to flourish. So it's impcrtant to periodically drain out that sediment and blow it out, so to speak, to clean out

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clean and disinfect hot water storage tanks one to four times a year; true? A Yes. Q Do you provide that quantification anywhere in the report setting forth your opinions? A No. didn't get into that detail in the

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report in this
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So the only epin[on you provide in that respect is that you believe it is reasonable and necessary to drain, clean and disinfect the hot water storage tanks periodicaiIy; true? A didn't understand the question· You're saying give that opinion where? Q In the report of February 11th, 2005. find it for you here. Let's go about it this way: Is it your opinion, as reflected in your February lth, 2005, report, that the h·t 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? MR, SCHMIDT: Objection. Form; calls for a Page 17g

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the tank periodically. Q And you contend that every business entity in the hospitality industry with hot water storage tanks is required to do that in order to manage the risk presented by legionelia in their domestic water system;

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true?
MR. SCHM[DT: Objection. Form; mischaracterizes former testimony. THE WITNESS: believe it's recommended practice, it's proper practice for any domestic hot water system of this sort. BY MR. KLE]F1ELD: Q Okay. Who suggests that it's recommended practice for any domestic hot water system of this sort, Page 181
other than you?

legal
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concIusien,

THE WITNESS: In the report, 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. didn't site every preventive measure; otherwise the report probably would have been 60 pages long or so because that's just one of many preventive measures. didl however, refer to Sunstane's own engineering manual on page 4 which says to drain down air storage tanks on a regular basis. BY MR. KLEIF[ELD: Q So you agree with me that your opinion includes a conclusion that in order to reasonably maintain the premises to manage the risk represented by legionel[a that you beJieve that the San Marcos shouId have drained, cleaned and disinfected its hot water storage tanks periodically; correct? A That's one of many measures think should have been taken, yes. Q What's the basis for your opinion with respect to that particular task?
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can find some references to that. Please. Can you just tell me the document that you find the reference in, and then we'll go from there. A It's the one provided to you, the QSHA document, Section 3, Chapter 7, page 14. Q This document is entitled "OSHA TechnicaI Manual, Section 3, Chapter 7"; correct?
Q

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A Yes.
Q And the copy, believe, you provided me had a date at the lower right-hand corner; true? A Well, mine does. Q What's that date?

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A Well, the date in the lower right-hand corner must be just the date it was printed, but that's Maiy 11,
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generated? Do you know? A gg6. Q And this document upon its face states that the primary focus is on the control and prevention of contaminated water sources, not on case identification: true? A Yes.
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So the content of this document deals with water sources where contamination has beer; identified; correct? A No, don:t believe that's true. believe it's to prevent, or one of the focus purposes of it is
Q

contamination?

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to

prevent the contamination.

MR. SCHMIDT: Please npte my belated obiection to the previous question. Again, the document speaks for itself. And repeat that objection for this question. THE WITNESS: Well, found a couple of other

Q Where does this document say anywhere that it is app!icable to strike that to domestic water sources that are not suspected for contamination?

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9

A Page 11, Section 5-A, first sentence. This
section contains background information on water system operations and proper controls to prevent legionella

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examples. BY MR. KLEiF]ELD: Q I'm looking for pa·icular language of the type asked ycu to find for me. Are you ab[e to find any such language?
MR. SCHM1DT: Objection. Argumentative.

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amplification.
Q That section falls under the overall nature of the document, which was defined in the introduction as, quote, "The primary focus of this document is on the control and prevention of contaminated water sources";

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THE WITNESS: One would be on page 28, second paragraph under the heading, it says, "Use the
following guidelines to assess the effectiveness of water system maintenance," referring to the guidelines for interpreting legionel[a test results. BY MR. KLEIF]ELD: Q My question to you was to find the language that specifies that this chapter of this technical manual was by QSHA designation applicable to domestic water systems that don't have previously demonstrated contamination by Iegionefla. A A·d answered that. gave you a few examples, and believe that supports that conclusion. Page 185

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correct? MR. SCHMIDT: Objection. Form; the document 20 speaks for itself. 21 THE WITNESS: Well, apparently you just 22 understand that sentence to mean something different 23 than do. mean, if it focuses only on contaminated 24 water sources, then why would they say to prevent it? 25 They would say to mitigate it.
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MR. SCHMIDT: Objection. Asked and answered. Because you have a water source that is 2 BY MR. KLEIFIELD: identified as being contaminated. There are provisions Q I'm not asking for your interpretation. 3 here that deal with investigation of contaminated water 4 asking for that kind of language. I'll give you an sources; true? 5 example of what I'm talking about. read to you A That's part of the document, but 6 language in the introduction that says the primary focus Q Part of the document also identifies a means of 7 of this document is on control and prevention of controlling the risk presented by IegioneIla in a 8 contaminated water sources. contaminated and subsequently remediated water source; 9 What I'm asking you to find is language in this true? I0 document that says it applies to water systems where no A Would you repeat that. 11 contamination is identified. Q Sure. The document references means to manage 12 MR. SCFIMIDT: Objection. Asked and answered; the risk presented by legionelIa in a contaminated and 13 the document speaks for itself. subsequently remediated water source; true? I4 BY MR. KLE[FIELD: Q Can you find those kind of words anywhere? A It denis with well, don't recall that 15 actually in the document. recall that part of it does MR. SCHMIL}T: Same objection. 16 deal with investigating systems that have been found to 17 THE WITNESS: Well, that=s believe even be contaminated or associated with disease, but part of 18 the sentence you read supports the conclusion that it the document also deals with how to prevent that irl the 19 applies not only to investigating contaminated sources, first place, and that's what believe this Section 5 20 but on preventing sources from becoming contaminated; is, which is why it's entitled controls. 2I otherwise, they wouldn't have used the word "prevention Q Is there anywhere in this document that you can 22 in that sentence. point out the phraseology or words that deals with means 23 BY MR. KLEIFIELD: to manage the risk in uncontaminated water sources or Q Do you hem yourself out as an expert on QSHA 24 water sources that don't have demonstrated 25 technica! requirements, regulations or application of Page 184 Page 186
Q

BY MR. KLE1FIELD:

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regulations? A As it applies to [egione[/a, yes. Q What training or experience did you receive relative to application of QSHA regulations or requirements? A said as it pertains to legionella in terms of understanding this guideline and other recommendations QSHA has made regarding the prevention of [egionella. Q What training have you received in that

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BY MR. KLEIFIELD: Q Sure, He's not the individual responsible for this document:s interpretation or application, is he?_ MR. SCHMIDT: Same objection. THE WITNESS: don't really understand what you mean by that. Interpretation for each building owner? BY MR. KLEIFiELD: Q Sure. interpretation as to the scope of this
document:s application. MR, SCHMIDT: Same

respect? 11 A My training regarding legionel[a contamination 12 in water systems. Q So you've not received any particular training 13 14 from U.S. Department of Labor or any OSHA ·ntity
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obiection.

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regarding interpretation or application of their guidelines, have you? A They don·t offer any with respect to interpretation of their guidelines for ]egionella. Q You've net conducted any research, legal or otherwise, with respect to interpretation of OSHA guidelines in their application outside of an employee relationship, have you? MR. SCHMIDT: Objection. Form. THE WITNESS: The last part of your question, didn't understand. can tell you that have done some
Page 187

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THE WITNESS: don't know as though any one person has that assignment for OSHA. It would be whoever were, suppose, investigating a buiIding. BY MR. KLHiFIELD: Q Is he with OSHA? A Yes, he is,
Q

Where is he located?

A Salt Lake City, Q What is your relationship to him? How do you
know him?

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A Just professionally through primarily regarding correspondence related to [egionella.
Q

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A

What is his title? don=t remember offhand. He's
Page

it's in

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research in that regard simply by taiking to the individualwho wrote this manual

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BY MR. KLEIFIEL[3:
Q

A
Q

A
Q

A
Q

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Who wrote this? Kevin Cummins, When did you speak with him? Well, I've spoken with him a number of times, When was the last time? Just a couple of days ago by e-mail. When was the first time?

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industrial hygiene on their health response team. Q Has he collaborated with you or corresponded with you with respect to publishing any materials that purportedly convey a standard of care applicable to the hospitality industry and managing the risks presented by

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A Approximately 1995, would say. Q He's the sole person who authored this chapter, you suggest?

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legionella? A He has told me in fact, that's why contacted him recently-- that he believes that the or that OSHA would investigate hotels and hospitals for legionella and has, in fact, Q You're not aware of QSHA investigating the San Marcos with respect to any legionella contamination, are

you?
A I'm not aware of that. Q And you're not aware of the results of any
investigation undertaken by QSHA relative to its investigation of any hotels relative to any legione]Ja contamination, are you? MR. SCHM[DT: Objection. Form. THE WITNHSS: WelI, i'm not aware of the details of any. am aware that they know they have investigated hospitals, and would have to check my notes to see. thought had a note as to whether or net they investigated hotels, and believe that they have. can'ttell you which ones.
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A i'm

sure he had others review it.

believe he

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was the primary author. Q Where does this document demonstrate that he was the primary author? A ]t probab]y does not. It's a government document. don:t think they name the authors in it. Q As a government document, he=s not the individual who's responsible for its interpretation or application, is he? MR. SCHMIDT: Obje·ion. Form; asks for a

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conclusion,

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THE WITNESS: Can you repeat that, please.
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anyone from OSHAissued a finding or a ruling that some hotel it had investigated was in violation of OSHA 5 regulations or requirements for its failure to drain, 6 clean and disinfect its hot water storage tanks 7 periodically, are you? 8 A don't look for that information, no: Q Any other reference materials that serve as the 9 !0 premise for your statement that hotels should 11 periodically drain, clean and disinfect their hot water 12 storage tanks? 13 A can look and see if there are any others with 14 me. it's one of the most widely recommended iegionella 15 preventive measures that there is. It's been in 16 numerous arficles and magazines read by facility 17 managers and engineers, but could try to find some 18 specific references to it. Q You recognize one of the reasons that we 19 20 adjourned your first deposition was to ensure t,ha't you 21 had all the reference materials with you in order to 22 support your opinions prior to reconvening that 23 deposition. So this was the chance to bring them. if 24 you have them here, want to talk about them. 25 A I'lI just point out, besides the OSHA document,
Page 191

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BY MR. KLEIFIELD: Q You have no knowledge or information that

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A printed a copy for me probably don't know two weeks ago or maybe longer than that, and the one for you just yesterday. Q So is there a particular page that you're referring to? A Page 9. Q Let me read it real quick. A And it we[}-, first of all, on page 8 Q Let me read it. A Let's see here. We!i, page 8 summarizes the conditions in domestic water systems that make them conducive to ]egionella; and then on page 9, they don't outline specific preventive measures but referto two reports that have written, the first one, which is at the top of page 9, "Now to make plumbing systems less conducive to legionella and other bacteria," as something to refer to. It says, "These methods are iisted in general below, and Mr. Freije's reports should be reviewed for more compIete coverage and informatioP,. And then that report of mine that they referred to, make the recommendation to clean the hot water tanks periodically. Q They don't make the recommendation in this

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report? A They don't go into that detail
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report,

two other ones, The first one is ASHRAH Standard

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document? A didn't recentiy find it, but Q When did you find it? A Weft, mean, I've been familiar with the document since Q When did you photocopy it for this case?
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Is there a particular page? MR. SCHMIDT: Spell that for the court 5 reporter. 6 THE WITNESS: lt:s an acronym. A-S-H-R-A-E. 7 BY MR. KLEIFIHLD: Q Is there a particular page? 8 9 A Page 4, left column about halfway down. Those 10 hot and cold water systems that incorporate an elevated !1 holding tank should be inspected and cleaned annually, Q Okay. Any other statements or documents that 12 I3 support your conclusion? 14 A The ones that have with me. AWT is another_ 15 acronym that stands for Association of Water 16 Techno!ogies. This document is dated July 2000, and 17 have a copy for you, if you need ft. Q This was not a document recall having been 18 19 produced before today. Did you recent!y find this
Q

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12-2000,

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which is why they refer to my report in their report. Q Your report did not specifically focus on the

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hospitality industry, did it? A It didn't focus on any particular industry. Legionella recommendations are made generalIy for types of water systems, not the types of buildings that necessarily use those water systems. Q Who did you provide your report to? AIt was available to the public. Q How? A The same way that eli the pubIications, at Ieast the ones reviewed by my own company, are, and that's through my web site, and there have been some mailings, and there have been a number of people who other companies that distribute them. Q You didn't mail your reports to the hospita]]ty industry, did you? A Didljustmailaccpyofthereports? Isthat what you're asking?
Q

Uh-huh.

A They're publications that they Q Did you or did you net mail copies ef your reports to anyone in the hospitality industry? A Just mail free copies to them?
Q

Yeah.

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A No, don't mail out free copies of our publications. 2 Q You charge for them? 3 A Yes. 4 Q Okay, Did you publish any of your reports as 5 articles in hospitality trade journals? And i'm talking 6 about the reports you're referencing here. 7 MR. SCHMIDT: Objection. Form; overbroad. 8 THE WITNESS: don't advertise in those 9 magazines, in any magazines. 10 BYMR. KLEIFIELD: Q I'm not suggesting advertising. I'm suggesting 12 taking the opportunity to disseminate your perspective 13 as contained within your reports that you're referencing 14 here in trade journals so that that perspective can be 15 reviewed and evaluated by individuals that read those 16 trade journals. 17 A Oh, yes, those have been in trade journals, 18 Q Any hospitality industry trade journals? 19 A Ones that are geared toward the persons that 2O work in facilities in engineering in the hospitality 21 industry. 22 Q What hospitality industry trade journals have 23 these two reports been published in? 24 A Well, the reports 25

A Well, don't know cf any instance where books and reports that are offered for sale are published free of charge in magazines, Q You recognize that there are instances wherd individuals who have a perspective regarding a
particular methodology that;s applicable to a particular industry convey that methodology in e widely disseminated trade journaI or that perspective regarding] methodology in widely d ssem noted trade journals; true? A Conveyed in what way? MR, SCHMIDT: Let me object first. Object to form. Qverbroad. BY MR. KLEIFiELD: Q As articles submitted for publication to those trade journals. MR. SCHMIDT: Objection, THE WITNESS: Yes. And have written articles for those type of trade journals. BY MR. KLEIFIELD: Q What I'm asking is whether or not these special reports, No. 302 and 303, either in their full content, were submitted to trade journals for publication or whether or not they were the subject of articles that you wrote for trade journals which were subsequently published.
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pa·ge 195
MR. SCHM1DT: Objection, Mischaracterizes formertestimeny. BY MR. KLEIFIELD: Q I'm talking about what looks like Reports No. 302 and 303. So tell me the trade journals that those have been published in. A can't remember which journaIs published news releases·bout the new reports that were available. Q Okay, A can site some that reported that published news releases when my book initially came out and incIuded the statement that it applies not only to health care facilities but to any large building that wail, to any large building. Q A news release is different from the full substance of a report itself; true? MR. SCHMIDT: Objection to form, BY MR. KLEIFIELD: Q It's a different document; true? A news release is a brief summary, if not a synopsis, if not just a statement that you have somehow authored a

A Yes, they have been.
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Q

Okay. Which trade journals?

A I=II have to find my CV and look for the Hst
of articles on them. MR. SCHMiDT: Matt, it's been an hour since we started. Why don't we take a break. MR. KLE[F1ELD: Sure. That's fine.

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(Recess.) BY MR. KLEIFIELD: Q Have you now had a chance to review your
cOrricu]a vitae for a demonstration of those articles which you believe you have published in trade journals that reflect your perspective as conveyed in your Reports Nos. 302 and 303? A Yes, can point out some of the articles. The

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I'm looking at your CV as well. It wi!] just take it you're looking under the articles section? A Yeah, except that some of the speeches would
Q

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have included that information as well Q Okay. i'm focusing on articles right now, not

report?
A On how to prevent Legionnaires' disease. Q Okay. So you agree with me that that's not the document? That's not the report kself; true?
P·ge 196

speeches. A Under the articles list actually, starting at the end, it would probably be easier iust to start at the end and work backwards since they're not numbered
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And can't say without looking at the articJes but know that in the byline in the articles, especially the articles for engineering-related magazines, that they mentioned was the author of the 6 book that wrote. All of them mention that, but some 7 of them mention those reports specifically, those two 8 that you asked me about, And those would be the fourth from the bottom, 9 10 "Legionel]a: Preventive Measures for Domestic Water 11 Systems," "PM Engineer." That would not have included 12 anything mentioning those reports but likely included 13 the specific preventive measures themselves. And then the next four after that, all in 14 15 engineering-related magazines, "Legionel[a in Cooling 16 Towers," even though it's an article on cooling towers 17 because engineers who read those magazines also deal 18 with plumbing systems. suspect, but cant say for 19 sure at this point, that they mention those reports in 20 my byline. Q Next article in those four is entitled, 21 22 "Legione!la in Cooling Towers: Reasonable Ways to
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exactIy what was said in them regarding those reports,

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Q Can you give me a subscription list? A Of course not. I'm not privy to the subscription list. can answer only to the extent that in Sunstone's own documents under the section references, it refers to facility and engineering

journals.
Q

It doesn't mention any of these journals, does

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it?

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A It doesn't mention any journal at all in particular, as recall, but it does mention the types of journals. Q Of the, think, seven iournals that you listed, seven or eight iournals or should say journal articles that you iisted there are probably three times as many that it didn't reference that deal with publishing yo·r perspective relative to legionella;

true?

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MR. SCHMIDT: Obiection to form. BY MR. KLEIFIELD: Q I'm just looking at the list here. A What do you mean by publishing my perspective on legionella? Are you iust referring to that there are
about twice as many articIes that didn't mention that did? Q There's 24 articles on the list that i've been
Page 201
given that are articles that you apparently submitted for publication and have been published in certain magazines or journals; true? A didn't count them, but yes. Q The vast maiority and we can do the numbers, if you want appear to he journals dealing with health facilities; true? A Idon'tthinkso, nc. Infact, lwouldsay that is not true. Q Well, let's go from the top. The first one have is "The Word on Water: New CDC Guidelines Recommend a Proactive Approach tq Legionella," That was published in "Health Facilities Management." Is that at the top of your list?

Minimize Risk"; right?

A Correct. That's the next one, and then "Engineered Systems" is the next articIe after that.
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"Update: The Latest on Legionnaires' Disease." And then the next article working from the bottom up, "Legionnaires' Disease: It has not gone away," published in "Air Conditioning, Heating & Refrigeration News." Also it's another journal in
India. Q Anything else?

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A Skipping one and then going to the article "Concern about Legionnaires' Disease Rising in Building Operating Management." That would have mentioned that was the author of my book. It might have mentioned the reports again. can't say for sure. And the last one, "Legionnaires' disease: An Update for Plumbing Engineers," "PM Engineer," July
2000.

10 11 12 13 14 15
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A Yes.
·rhat's one. [he one right after it is something published in ;'Occupational Hazards." That that's not a health journal; true?
Q

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One other one, "Legionella and the Plumbing Engineer: Responsibility, Liability, and Opportunities." That was in "PM Engineer," February

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you have no knowledge or information regarding the extent to which individuals involved in the hospitality industry take any of these journaIs as
informative or instructive in their industry? MR. SCHM]DT: Objection. Form; overbroad.

2002. Q And

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A True.
Q

The one after that is published fn "Health

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BY MR. KLEIFIELD:
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Management" again, so that's two; correct,? A We][, that is whether you=re counting articles or journa!s, it's the same journal. Q I:m talking about articles. A Okay.
FaciJities

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mentioned there were 24 articles on my list, and the majority of those clearly are articles that were 2 submi·ed or apparently published in health-related 3 magazines or journals; true? 4 A Those first two are, yes, or the first and the 5 third one on the list. 6 Q And the fourth one is; true? 7 A The fourth and the fifth, 8 Q. Okay, And ]efs see here. The ninth one deals 9 with management plans for hospitals published in "The 10 Analyst"; true? 11 A Wel!, "The Analyst" is not a magazine for 12 hospitals. It's an Association of Water Technologies 13

Q

in the United States. There are a number of industry artlcles [n magazines that have mentioned that and guidelines published outside the United States where legionella : awareness is h]gher and preventive measures have been more widely pubIished, and didn't bring those. Q You're not aware of any governmental law that requires a facility such as the San Marcos to drain, clean and sanitize its hot water storage tanks periodically to manage the risk presented by legienelIa,
are

you? MR. SCHMiDT: Objection. Form; calls for a
THE WITNESS:
know of no law that requires

legal conclusion.
those measures.

publication,
The article is entitJed "New Standard Requires Legionella Management Plans for Hospitals"; correct? A The title of the article is for hospitals, yes. The magazine is not for hospitals, Q The two articles later published in "HeaJth Facilities Management"; correct?
Q

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15

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BY MR. KLEIF]ELD:
Q And separate and aside from the e·ent to which you choose to interpret QSHA technical manual Chapter 7, you're not aware of any governmental code or regulatien that requires that, are you? MR. SCHM[DT: Same objection.

A Yes.
About five articles later, ='American Society for Healtcare Risk Management"; true?
Q

21 22
23

localities. it.

THE WITNESS: There might be some in certain don't know of any national or any federal

A Yes.
Q

And then if we go from the bottom, one, two,
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document that would be considered law that would require
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Q You're not aware of any governmental requirement based upon State of Arizona law, Maricopa 4 County law or City of Chandler law or any associated 5 state, municipal or county governmenta{ entities that 6 require that, are you? A Yes. 7 A Not specifically that requires cleaning tanks, Q And you advertised their availability for 8 although should have mentioned that OSHA in a sense, purchase on your web site; correct? 9 would say, {ices require it because if Legionnaires' A Yes. 10 disease occurs in a building or even if Legionnaires' Q Any other sources where strike that. 11 disease has not occurred, that there would be something Any other methods where you advertised these 12 that prompts them to investigate a building and they reports for purchase? 13 find and if they were to find legionella at the MR. SCHMIDT: Objection. Form. 14 levels that were found at the San Marcos, believe they THE WITNESS: Yes, believe there were. 15 would have been cited under the QSHA general duty clause just can't remember them now, but know that there were 16 because OSHA has done that in the past, citing other forms of advertising. 17 specifically to say that they are providing water that BY MR. KLEIFIELD: 18 is not potable. Q Any other reference materials that support your lg Q Have you ever in your life been involved fn proposition that hotels should drdn, clean and sanitize 20 issuing a citation on behalf of QSHA? their hot water storage tanks periodically in order to 21 A Have ever myself issued a citation? Q Qr been invoJved on behalf of OSHA in issuing a reasonably manage the risk presented by legioneI[a? 22 A None that are with me. limited what 23 citation? brought hero today to either government or industry 24 MR. SCHM/DT: Objection. association guidelines that were published prior to 2003 25 BY MR. KLE[F[ELD: Page 204 Page 206

three of the first four from the bottom deal with the heaIth care risk management or health faciJities management for hospital infection control; true? A Yes, Q Now, you said that your reports, Nos. 302 and 303, were avaiIable for purchase; correct?

BY MR. KLEIFIELD:
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Q

Where you have been involved somehow in issuing
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it.

published in !996. Q The book dealing with health care loci]it!as?

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A Why would be invdved in issuing a citation? don't work for OSHA. Q You've just rendered an opinion that under certain circumstances OSHA would issue citations, so I'm trying to understand the full nature and extent of your experience in making decisions to issue citations on behalf of OSHA. If understand what you told me correctly, you have no experience in that respect; true? MR. SCHMIDT: Objection. Form; mischaracterizes his former testimony. THE WITNESS: did, in fact, comment upon that opinion on what know about OSHA's guidelines and how it issues citations, and on one citation in particular that have a copy of and have read.

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6

BY MR. KLEIFIELD:
You don't set forth anywhere in either of your reports that you are of the opinion that OSHA would have issued a citation to the San Marcos in this instance, do
Q

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you?
A would have no reason to put that in my report. Q You made a statement earlier today that it's your belief that a hotel should drain, clean and
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A Yes. Q Any other papers that you can tell me where·you reference ore to four times a year that the hotel should drain its tanks, dean them and sanitize them to reasonably manage the risk presented by legione[la? A The report that we discussed earlier, Report 302, was published in 1998, and instead of going by memory, let me see exactly what did say about that. Q Do you have a copy of that report for me? don't think I=ve received a copy of that. A can give you this copy. Q Okay, A Okay. can answer that question and actually
provide more information related to another question you have. lt's on page14 of the report. Q This is your report number what? A It's the title is "How to make plumbing systems less conducive to [egionella and other bacteria." Q Was this one of the two numbered reports that you referenced in the AWT publication? A Yes. It's No. 302.
Q

Okay.
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sanitize its hot water storage tanks one to four times a year in order tc reasonably manage the risk presented by Iegionella; true? 4 A That's one of the measures that should be 5 taken, yes. Q What is 6 strike that. 7 Are you aware of any documentation that 8 provides the basis for your statement that it shouId be 9 done one to four times ayear? !0 A included that statement in my publications 11 based on guidelines published elsewhere, and can't 12 recall exactly how many of them referred to. know 13 that one was part of the guidelines that were published 14 in the UK because they have done significant 15 investigation of Legionnaires' disease and research on I6 preventive measures. It's based, in part, just on reports of and 18 those reports themselves based on actua! cleaning of 19 those tanks to see how often they need to be cleaned 20 based on the amount of sediment built up in them, And 2! that's why in my reports say one to four times a year 22 because some tanks will get dirty faster than others, Q When was the first time you cited one to four 23 24 times a year in one of your reports? 25 A it would have been in my book, which was Page 208
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A And the statement err page 14, the top paragraph, says "Studies have shown that older tanks are 3 more likely to be contaminated with legionella than 4 newer tanks," presumably due to the accumulation of 5 sediment and slime, and provides references. The next 6 sentence, "Periodically drain water tanks, remove scale and sludge and flush with chlorine at a safe 8 concentration," and reference the Allegheny County Health Department, which is in Pittsburgh, guidelines, 9 10 and that is for health care facilities, and then the UK 11 guideline titled "The control of legionellosis 12 that's spelled [-e-gq-o-n·e-I-Fo-s-i-s "including 13 Legionnaires' disease," which was published in 1993. Q So in terms of this report, you don't quantify 14 I5 it as one to four times a year? 16 A Well, the next paragraph reads, "The cleaning 17 frequency wili depend on the accumulation in hot water 18 tanks. They may Reed to be cleaned one to four times a 19 year." Then refer to the cold water tanks, so Q You specify it should be cleaned one to four 20 2! times a year to reasonably manage the risk presented by 22 legionella, or that you cou!d do ft that way or may do 23 it that way? MR. SCHMIDT: The document speaks for itself. 24 25 THH WITNESS: The recommendation is to keep Page 21 C,
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Page 15 of 25

tanks clean.

tanks. They could clean it for other reasons, couldnt
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8

BY MR.
Q

KLEIF[EL[3:

they?

Okay.

A And that's the point, that they should be cleaned often enough to make sure that the sediment does
not accumulate. Q You have no knowledge or information regarding how frequentIy the tanks at the San Marcos were cleaned, de you? A have te look at my notes of the depositions· thought that either Mr. Marrs or one of the other individuals who were deposed reported that they were net cleaned, but I'll have to check that. Q You understand that Mr· Sapiro was at the property February of 2003; true?

9 10

11 12 13 14 15 16 I7 18 19
20

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A Yes. Q Okay. What knowledge or information do you have with regards to the extent to which the tanks were or were not cleaned in the twelVe months from February 2002 to February 2003? A The only reference that can go by the only statements that I.can go by are, No. 1, that there was
no documentation in maintenance Iogs that indicates it was ever cleaned; No. 2, Gary Stcugaard in his deposition said that Suns-tone had no legionella

cleaned, then he would have mentioned that as a legionella preventive measure. BY MR. KLE[F[ELD: Q Do you know the extent to which he was familiar 8 9 with the day4o-day maintenance operations of the hotel? 10 A He probably wasn't that familiar with it. Q Scott Lindsay made no statement whether the 11 12 tanks were or were not cleaned in the twelve months from 13 February 2002 to February 2003; true? 14 A }4e did not make any statement about the 15 cleaning frequency of the tanks. Q You did not perform any testing or other 16 17 scientific analysis designed to ascertain the extent to 18 which these storage tanks that were on the premises as 19 of February 2003 could or couJd not withstand 20 high-pressure washing, have you? 21 A No, didn't do any tests. Q So other than what you've told me, you have no 22
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MR. SCHMIDT: Objection. Forrn. THE WITNESS: just believe if they had been

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Page 211

information that there was a failure to clean these tanks in the twelve months between February 2002 and February 2003; true? Page 213

preventive measures he knows of prior to the Sapiro
2
3

A
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have no information to indicate that they

issue.

And in that condition, the tanks, believe, would not have survived a thorough c]eanin· and disinfection because of the high pressure wash and the 11 high level of chlorine, ]f they had taken off the !2 access to the tanks and looked in them and tried to 13 clean them, they would have believe they wouJd have 14 realized they needed to have them replaced. So there is nothing to indicate that nothing 15 16 in the logs to indicate that they were cleaned and no 17 evidence that they had been. Q Okay. So Gary Stougaard makes no statement 18 lg regarding whether the tanks were or were not cleaned in 2O the year prior to Mr. Sapiro's visit; true? 21 A He doesn't mention the tanks specifica![y, no. Q Okay. 22 23 A He just says in general there were no 24 Jegionella preventive measures taken, period. Q That doesn't mean that they didn't dean the 25

4 5 6 7 8 9 10

And then guidelines, he said that the hot water tanks were replaced because they were not sized appropriately for the hotel, that they were old. developing leaks and had to be either relined or

were not cIeaned or that they were other than the evidence just mentioned as to the condition the tanks

replaced.

10 11 12 13 14 15
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19 20

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were in. Also, the condition that saw them in when inspected the building, they were certainly not clean then, and they would not have become that fouled between when they were removed and when saw them. Q Have you performed any study or other scientific analysis to ascertain the extent to which the interior surface of tanks of that type become fouled over time, how long it takes to build up the accumulations of deposits or oxidation within tanks of that type? A It's based on, for one, the recommendations to clean tanks one to four times a year. As mentioned, some tanks build up-Q That was not the question. The question was whether you performed any scientific study or other scientific analysis to determine the extent te which those tanks would build up accumulations of deposits or oxidation over the course of any period of time. A So your question is, have done any studies on those exact types of tanks that were at the San

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Marcos--.
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Page 212

15 (Pages 211 to

214)
Page 16 of 25

Case 2:03-cv-01555-SRB

Esquire Deposition Services 949,440.7000 Document 145-3 Filed 12/13/2005

Q

Yes.

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4
5
6

to determine how long? Q Or even similar. A No,
Q The tanks that you saw at the San Marces had been removed from their original placement and cut up in

A

sections; true? A When saw them, they were in sections. Q They had been cut by a cutting torch; correct? 9 10 A assume it was by a cutting torch, yes. Q That was at the point in time at least six 11 12 months after Mr. Sapiro's stay at the San Marcos; true? 13 A The point at which saw them? Q The point at which they had been removed from 14 15 the property. They had been