Free Motion in Limine - District Court of Arizona - Arizona


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Matthew D. Kleifield 011564 Chad C. Baker 023083 Julie R. Barton 022814 KUNZ PLITT HYLAND DEMLONG & KLEIFIELD 3838 North Central Avenue, Suite 1500 Phoenix, Arizona 85012-1902 Email: [email protected] (602) 331-4600 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT COURT OF ARIZONA MARVIN SAPIRO SAPIRO, his wife, and GLORIA No. CIV03-1555 PHX SRB DEFENDANTS' MOTION IN LIMINE NO. 1 TO EXCLUDE MATTHEW FRIEJE (Oral Argument Requested)

Plaintiffs, v. SUNSTONE HOTELS INVESTORS, L.L.C., SUNSTONE HOTEL INVESTORS, L.P. Defendant.

Defendants ("Sunstone") hereby resubmit their Motion in Limine Number 1 to Exclude Matthew Freije and respectfully request this Court consider it with Sunstone's Motion for Summary Judgment filed December 5, 2005. This Court, by Order dated December 7, 2005, denied without prejudice Sunstone's Motions in Limine which were filed on December 5, 2005. See R. at 139. Sunstone's Motion for Summary Judgment stands alone. Nevertheless, because Sunstone's Motion for Summary Judgment is substantially supported by its Motion in Limine Number 1, failure to consider the Motion in Limine before ruling on the Motion for Summary Judgment would provide this Court with an incomplete understanding and briefing of the issues presented.
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Sunstone respectfully requests this Court exclude Matthew R. Freije's ("Freije") proposed testimony. Freije, a trained mechanical engineer with no valid experience in the hospitality industry, lacks the "knowledge, skill, experience, training or education" required to render opinions relating to medical causation and the duties of care owed by a hotel. See Fed. R. Evid. 702 (West 2005). Additionally, Freije's unreliable conclusions are based on unaccepted, unsupported, and untested methodology and lack general consensus and acceptance. See Kumho Tire v. Carmichel, 526 U.S. 137 (1999); Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993). This motion is supported by the following Memorandum of Points and Authorities and attached exhibits.

MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION1 Plaintiffs have disclosed Frieje as an expert witness for the purpose of testifying that Sunstone failed to take steps necessary to manage the risk presented by the Legionella bacteria in a hotel setting and thereby breached the duty of care owed to Plaintiffs as business invitees upon Sunstone's premises, The Sheraton San Marcos Resort and Conference Center (herinafter "San Marcos"). Despite this, and in light of his own admissions in deposition, it is clear that Frieje has no experience in the hospitality industry; has not undertaken any efforts to promulgate standards for that industry with respect to Legionella; and has no knowledge or generally accepted opinions or beliefs regarding the standards which apply to the hospitality industry in managing the risk presented by the Legionella bacteria in domestic water systems.

For purposes of this motion only, Sunstone neither challenges, concedes, accepts, nor disputes the admissibility of the statements used in support of this motion. -2Case 2:03-cv-01555-SRB Document 145 Filed 12/13/2005 Page 2 of 17

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A. Mr. Frieje's qualifications. Freije studied heating, ventilating, air-conditioning, and refrigeration and obtained a Bachelor's Degree in Mechanical Engineering from Purdue University in 1983. (Ex. A). When asked in deposition whether he has "pursued any formal education since obtaining [his] degree[,]" Freije replied, "[n]ot formal in terms of another degree, no." (Freije Depo., April 29, 2005, p. 62:13-15, attached as Ex. B). Freije is not a professional licensed engineer, and spent the early part of his career marketing low-temperature refrigeration building designs for his father's engineering company. (Ex. B, p.64:17- p.65:11). After working for his father for about one year, Freije left the engineering field to pursue a career in real estate investment. (Ex. B, p.65:18- p.66:17, attached as Ex. C). In 1988 Freije "transitioned into air quality" (Ex. B, p.66:25) and self taught himself about Radon testing. (Ex. B, p.68:25- p.69:6). Freije admits that he is not an epidemiologist, not an immunologist, not a microbiologist, and not a virologist. (Freije Depo. September 16, 2005, p.171:19- p.172:1). When questioned whether his knowledge of the pathology of Legionella is "based solely upon ... reading of other's documentation", Freije answered, "[y]es." (Ex. C, p.172:8-10). Freije recognizes that "[i]n general, [he is] not a doctor, so [he is] not qualified to give medical advice or provi de a diagnosis to a patient." (Ex. C, p.162:1-3). When he was questioned whether he has conducted a survey to determine whether other industries follow his recommendation for annual testing of domestic water systems for the presence of the Legionella bacteria, Freije admitted that he is not a market researcher and does not conduct surveys and therefore had not. (Ex. C, p.303:1p.304:15). In 1995 Freije first forayed into Legionella, without any further education from his 1983 Bachelor's Degree. (Ex. B, p.75:25- p.76:9). His experience was "primarily research-oriented -3Case 2:03-cv-01555-SRB Document 145 Filed 12/13/2005 Page 3 of 17

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at first.

[He] wasn't offering consulting services." (Ex. B, p.76:14-15).

"He was doing

primarily research and writing probably for two years ... [he] wasn't doing work in buildings at that time[.]" (Ex. B, p.76: 16-22). Freije's first Legionella investigation of a hotel was in the late `90s and did not involve any sampling. (Ex. B, p.83:10-14). When asked if sampling San Marcos was the first time where Freije was asked to sample a hotel for Legionella, he responded, "I don't know ... I would think there [were earlier ones] ... but I just can't remember having done that right now." (Ex. B, p.83:18-22). To determine his experience in working with the Hospitality industry to ascertain the extent to which it implemented the water testing for Legionella which Frieje suggests is a component of the duty owed to Plaintiffs, Freije was asked "how many times [he had] been hired by a hotel to perform sampling of its domestic water system to determine the extent and concentrations of legionella present in that water system." ( Ex. C, p.235:15-18). Freije stated, "I can't think of one." (Ex. C, p.235:19). Similarly, Freije could not recall, before the San Marcos case, ever being retained by a hotel to provide recommendations on managing the risk of Legionella. (Ex. B, p.101:3-9). "I don't recall actually visiting a [hotel] site out of litigation prior to that time." (Ex. B, p.101:12-13). Freije confirmed that the three hotels he was involved with prior to the San Marcos were all litigation-related. (Ex. B, p.95:8-17). B. Frieje's involvement with The San Marcos. In May 2003, approximately three months after Sapiro's stay, Freije visited the San Marcos to sample and investigate the hotel. (Ex. C, p.162:5-11). Based on the results from this sampling, Freije plans to opine the following: 1. Marvin Sapiro was exposed to high levels of Legionella bacteria during his stay at the San Marcos Resort in Arizona. ( Ex. D)

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2.

Marvin Sapiro would not have been exposed to high levels of Legionella bacteria during his stay at the San Marcos if the property owner, operator, manager, or other party responsible for the hotel (presumably Sunstone Hotel Investors, L.P. or Sunstone Hotel Management, Inc.), hereinafter referred to as "Sunstone" had routinely tested the hotel water systems for Legionella and taken appropriate steps in response to the results. (Ex. D)

3.

Sunstone failed to exercise reasonable care to prevent Legionaires' disease at the San Marcos. (Ex. D)

4.

I still have found no evidence of water sources outside the San Marcos to which Mr. Sapiro could likely have been exposed for the duration or with the intensity that he was to the water Sources at the San Marcos. (Ex. F)

These opinions require Freije to step outside his sphere of competence. Additionally, these unsupported and untested assertions are not accepted within the hospitality industry. Consequently, Sunstone requests this Court find that the Rule 702 of the Federal Rules of Evidence ("Rule 702") requires their exclusion. II. FREIJE, A MECHANICAL ENGINEER WITH NO HOSPITALITY INDUSTRY EXPERIENCE, LACKS THE NECESSARY EXPERIENCE, SKILL, AND KNOWLEDGE TO GIVE EXPERT OPINIONS ON THE MEDICAL CAUSATION OF LEGIONELLOSIS, THE BACTERIAL PATHOLOGY AND EPIDEMIOLOGY OF LEGIONELLA, THE CAUSATION OF PLAINTIFFS' ILLNESS, THE HOSPITALITY INDUSTRY'S STANDARD OF CARE, THAT SUNSTONE FAILED TO EXERCISE REASONABLE CARE WITH RESPECT TO LEGIONELLA OR WHAT CONSTITUTES REASONAB LE CARE. A. Freije lacks experience in the relevant sciences.

Specialization describes modern science. The rise of specialization over the later part of the twentieth century has created an ever broadening gap between generalists and experts. Too often, however, testifying experts step outside their realm of specialization and render opinions -5Case 2:03-cv-01555-SRB Document 145 Filed 12/13/2005 Page 5 of 17

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on matters beyond their expertise. See David L. Faigman et. al, Modern Scientific Evidence: The law and Science of Expert Testimony, Admissibility of Scientific Evidence 1-3.3.2 (2002). To minimize the prejudicial effect such unqualified testimony may present, the district courts, "[a]s gatekeeper[s, are] obligated to exclude all expert witnesses who lack the necessary `knowledge, skill, experience, training, or education.'" Keams v. Tempe Technical Inst. Inc., 933 F.Supp. 714, 721 (D. Ariz. 1997) (quoting Fed.R.Evid. 702). Although often liberally construed, the qualification requirement of Rule 702 is not empty. While no bright-line criterion establishes necessary qualifications, an absence of

adequate formal education in the relevant scientific field sufficiently demonstrates incompetence. See Grant v. Bristol-Myers Squibb, 97 F.Supp. 986, 991-92 (D.Ariz. 2000) (holding that a biomaterials expert lacked the qualifications to render opinions on bioplausibility and the migration and fate of silicone when it escapes the implant). For example, self-education, alone, is inadequate to establish expertise. United States v. King, 532 F.2d 505, 509 (5th Cir. 1976)(rejecting a proffered "expert" whose experience in the field was gained from "daily ... self-study and a "correspondence school course"); accord, Taylor v. Watters, 655 F.Supp. 801, 805 (E.D.Mich. 1987). The adequacy of the level of education rises as the opinions tread into substantively more complex and specialized areas. Wintz v. Northrop Corp., 110 F.3d 508, 513 (7th Cir. 1997)(holding that a toxicologist holding master's degrees in chemistry and environmental engineering lacked sufficient expertise to opine whether a chemical caused plaintiff's birth defects). Education alone is insufficient; an expert's credentials must fit the specialization. See Jinro America Inc. v. Secure Investments, Inc., 266 F.3d 993, 1006 (9th Cir. 2001)(excluding expert's testimony because the expert "was not trained as a sociologist or anthropologist, academic disciplines that might qualify one to provide reliable behavior patterns of a particular -6Case 2:03-cv-01555-SRB Document 145 Filed 12/13/2005 Page 6 of 17

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group of people[.]"); Edmonds v. Illinois Central Gulf Railroad, 910 F.2d 1284, 1287 (5th Cir. 1990) (holding that the district court impermissibly permitted a psychologist to testify that stress caused the heart attack because causation of a heart condition is a medical issue); accord, Surace v. Caterpillar, Inc., 111 F.3d 1039, 1055 (3d. Cir. 1997); Grant, 97 F.Supp. at 991-92. The more technical the issues become, the closer the qualifications must fit the specialization. Mancuso v. Consolidated Edison Co. of New York, Inc., 967 F.Supp. 1437, 1442 (S.D.N.Y. 1997)(finding that a medical doctor, without experience, formal training, and credentials in PCB toxicology, occupational, or environmental medicine, unqualified to opine that PCB exposure caused plaintiff's ailments). Such acuity of similarity between qualification and subject matter often prevents engineers from testifying about the biological and medical sciences. Stull v. Fuqua Indus. Inc., 906 F.2d 1271, 1275 (8th Cir. 1990); accord, Bennett v. Schuberth Werk GMBH&Co.Kg., 2002 WL 32153356, *6 (D.Mont. 2002)(finding that an engineer with experience designing helmets lacked the required medical and biomechanics experience necessary to render a medical opinion regarding the causation of plaintiff's head injuries). Simply, the "[e]xpertise in the technology of fruit is not sufficient when analyzing the science of apples." Diviero v. Uniroyal Goodrich Tire Co., 919 F.Supp. 1353, 1356-58 (D.Ariz. 1996)(holding that an engineer with extensive experience with bias belted tire, but no experience with steel belted tires, was not qualified to give opinions on the cause of failing steel belted tires). In this case, Freije's qualifications are inadequate and his credentials do not fit the substantive disciplines underlying his opinions. The issues in this case require an understanding of the ecology and pathology of Legionella and the etiology of Legionellosis. These issues are "medical facts, as well as facts concerning the interplay between disease and societal norms and practices." (R. 100, Plaintiff's Req. Judicial Notice, p. 3). Any statements about the population -7Case 2:03-cv-01555-SRB Document 145 Filed 12/13/2005 Page 7 of 17

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of Legionella or the success of preventative measures, such as tank cleaning, present views on the control of bacterial growth conditions. These assertions require expertise and assumptions based in environmental microbiology and general bacteriology. Freije admittedly has no medical training, nor is he an epidemiologist, immunologist, microbiologist, or virologist. (Ex. C, p.162:1-3; p.171:19-25; p.172:1). Rather, Freije's

education is limited to a bachelor's degree in mechanical engineering and self-study in water quality and Legionella. (Ex. A; Ex. C, p.172:8-10). Although a trained, but unlicensed,

engineer, Freije's opinions relate not to the design of domestic water systems but to the control of favorable bacterial growth conditions. His only education with the requisite biological

sciences is through self-study. Because his formal education does not pertain to the relevant specialized areas, and self-study is insufficient, Freije lacks the credentials necessary to give an expert opinion. B. Freije lacks the necessary experience in the hospitality industry.

The requirement of commensurate credentials and experience to the discipline at issue extends to any area in which an expert desires to provide expert testimony. See Jinro, 266 F.3d at 1006; Recreational Developments of Phoenix, Inc. v. City of Phoenix, 220 F.Supp.2d 1054, 1060-62 (D.Ariz. 2002)(excluding testimony of an expert because as a trained journalist, the expert did not have the appropriate credentials to offer opinions about the sociological "practices and cultural mores of swingers"). Thus for Freije to be competent to give opinions regarding the responsibilities of the hospitality industry, he needs experience or education in that field. Freije has no occupational or education experience with the hospitality industry. Rather, his limited experience with three hotels, prior to his work with the San Marcos, arises from his work as a paid litigation consultant or witness. [Ex. B, 95:8-17]. Such experience does not demonstrate any genuine proficiency or specialized knowledge in the hospitality industry. A -8Case 2:03-cv-01555-SRB Document 145 Filed 12/13/2005 Page 8 of 17

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person does not "become an expert simply by accumulating experience in testifying." Thomas J. Kline, Inc. v. Lorillard, Inc., 878 F.2d 791, 800 (4th Cir. 1989). Opinions that are developed "expressly for purposes of testifying" do not demonstrate expertise in the same manner as those that "grow[] naturally and directly out of research ... conducted independent of the litigation." Daubert v. Merell Dow Phar., Inc., 43 F.3d 1311, 1317 (9th Cir. 1995). To attempt to sidestep his lack of familiarity, Freije attempts to direct his opinions to building and water system size and type. Notwithstanding that such a focus misses the issue of this case, namely the hotel's standard of care, Freije lacks sufficient expertise to render such an opinion. While this shift in focus may remove Freije's ignorance of the hospitality industry, it does not change the fact that the biological and medical science disciplines create the foundation of his opinions disciplines in which Freije is not competent to testify. Freije's formal education is limited to engineering. Because he has no formal education or relevant experience in the necessary biological and medical sciences, he lacks the qualifications to render his opinions relating to these scientific disciplines. Similarly, his lack of education and experience with the hospitality industry prevents him from giving opinions about the recommended practices and standard of care owed by a hotel. Because Freije cannot demonstrate the necessary "education, experience, or knowledge", this Court should prevent Freije from testifying. Freije's opinions are unreliable and thus inadmissible. Assuming arguendo, that Freije possess sufficient qualifications to give expert opinions, his opinions do not pass Rule 702 muster. The possession of requisite credentials is not

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sufficient to render testimony admissible. Fuesting v. Zimmer, Inc., 2005 WL 2077508 (7th Cir. 2005). The proponent of the opinion must demonstrate their reliability. Grant, 97 F.Supp. at 989. Although not exclusive, a Court applies four factors to determine reliability: (1) testability; -9Case 2:03-cv-01555-SRB Document 145 Filed 12/13/2005 Page 9 of 17

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(2) error rate; (3) peer-reviewed publication; and (4) general acceptance. Daubert, 509 U.S. at 593-96. These factors apply equally to scientific and non-technical opinions. Kumho, 526 U.S. at 141. Freije's opinions are unreliable because they fail one, more, or all of the Daubert factors. A. Freije's opinions and supporting methodology are untested and not capable of being tested.

The hallmark of Daubert is that an expert's opinions are vulnerable to falsification. An opinion is unreliable if it has not been, or it can not be, tested. Daubert, 509 U.S. at 593. While this inquiry focuses on the opinion's methodology, it must also look at the conclusion's validity. Conclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap betwe en the data and the opinion proffered. General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). (emphasis in original) Confusion between general and specific causation further blurs the methodologyconclusion dichotomy. "[W]ith no proof of general causation, an expert should not be permitted to testify about specific causation." Modern Scientific Evid., 1-3.4.2 at 34. Freije's opinions do not demonstrate the necessary reliability for admission. Freije

asserts that Sunstone's purported lack of preventative measures, rather than the water system's design, caused the pathogenic leaves of Legionella. (Ex. C, p.175:1-6). However, Freije states that "to say that it was one particular issue like it was a given tank or a given faucet is not - 10 Case 2:03-cv-01555-SRB Document 145 Filed 12/13/2005 Page 10 of 17

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something that can be determined." (Ex. C, p.174:12-14). Despite Freije's lack of information indicating the cleaning habits of Sunstone, Freije asserts that the tanks were not properly maintained. (Ex. C, p.213:7- p.214:4). Freije, however, admits that he has no protocol and conducted no testing to support this proposition. Q: ... The question was whether you performed any scientific study or other scientific analysis to determine the extent to which those tanks would build up accumulations of deposits or oxidation over the course of any period of time. *** A. No.

(Ex. C, p.214:18- p.215:4). Freije further admits that he has no data or knowledge of data to demonstrate the population of Legionella present during Sapiro's stay. (Ex. C, p.242:16- p.243:8). His opinions, therefore, are based on extrapolating data from his May 2003 sampling to predict the Legionella population during Sapiro's stay. Frieje conceded that such extrapolation is not based on any scientific studies, analysis, or regressions. Q: [Kleifield]: Have you performed any type of regression analysis based upon the samples that you performed in this case? A: [Witness]: To take the samples that were collected from the San Marcos and do an analysis as to how fast they were replicating? Q: [Kleifield] How fast they were replicating and over what time they replicated to achieve the concentrations that you sampled. A: No. I don't know of anyone who has ever done that analysis ever. (Ex. C, p.236:7-19). *** - 11 Case 2:03-cv-01555-SRB Document 145 Filed 12/13/2005 Page 11 of 17

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Q: And of the tests that you did in May, you've not done any scientific analysis of those results to ascertain what the likely concentrations were in February based upon the test samples that yo u had evaluated by a lab; true? A: No such tests exist. (Ex. C, p.242:23- p.243:3). Finally, Freije lists a cooling-tower at the San Marcos as a potential source of the Legionella bacteria, but admits to conducting no testing or sampling of Sunstone's tower. (Ex. C, p.163:5-11). "[Experts] whose conviction about the ultimate conclusion of their research is so firm that they are willing to aver under oath that it is correct prior to performing the necessary validating tests could properly be viewed by the district court as lacking the objectivity that is the hallmark of the scientific method." Claar v. Burlington Northern RR., 29 F.3d 499, 503 (9th Cir. 1994). Freije's ipse dixit, which he gave without first challenging them, and which are admittedly not testable, fall outside reasonable and sound science and should be excluded. B. Freije's sampling methods do not demonstrate an acceptable error rate.

Because error is inherent in any study, method, sample, test or procedure, a Court must determine an acceptable error rate. Daubert, 509 U.S. at 594 Small samples are more likely impacted by random error, and therefore, are less reliable. Modern Scientific Evid., 1-3.4.2, at 36. For a technique to pass the analysis contemplated by Daubert, the sources of error and the rate or the potential rate for error must be known. 509 U.S. at 594. Subjective claims that methods are accurate are insufficient. Kumho, 526 U.S. at 157. The absence of demonstrated error rate for the methods used by Freije suggests a lack of confidence in the method and urges against the methods reliability. Many of Freije's opinions are based on small sample sizes. For example, Freije admitted that he conducted no formal study of the practices of the hospitality industry's operating procedures regarding prevention of - 12 Case 2:03-cv-01555-SRB Document 145 Filed 12/13/2005 Page 12 of 17

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Legionella. (Ex. C, p.292:4-9). Rather, his opinion about the protocol used by the hospitality industry is based on an informal survey of four or five companies. (Ex. C, p.294:7-25).

Similarly, Freije's opinions relating to the general environmental presence of Legionella is based on personal sampling of eleven to twelve buildings in the Baltimore area. (Ex. C, p.169:8-14). Given the larger number of residences in Baltimore and hotel properties in

America, these small sample sizes are insignificant and incapable of providing reliable results. "Few scientists would be confident in stating conclusions from one or even a few studies." Modern Scientific Evid., 1-3.4.2, 37. Freije's confidence and reliance in such small samples demonstrates his willingness to ignore traditional science conventions and greatly questions the reliability of his entire testimony. Due to this ubiquitous uncertainty, this Court should exclude Freije's opinions. C. Freije's opinions, and their support, have not been peer-reviewed.

Although some of Freije's work has been published in peer-reviewed print dealing with the healthcare industry, his opinions with respect to the hospitality industry and in this case have neither been peer-reviewed nor published. Freije, however, maintains that his published

materials support his present opinions. The error in this assertion arises from the insufficiency of his publications. Although peer reviewed publication is not a prerequisite of reliability, the absence of peer-review is an important consideration in assessing the validity of a particular methodology. Daubert, 509 U.S. at 594. The purpose of peer-review is so that the relevant community may challenge and approve the methodology used, and thereby lend credence to conclusions based on that methodology. Id. at 593("submission to the scrutiny of the scientific community is a component of good science because it increases the likelihood that substantive flaws in

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methodology will be detected.").

In this vein, publication, without critical peer-review in the

appropriate community, does not satisfy this consideration. Freije has been unsuccessful in having his submission and opinions published in a hospitality-based publication. (Ex. B, p.118:20- p.119:11). Q. So have they been rejecting what you've been submitting for their publication? A. They've been rejecting the idea of publishing anything on it. (Ex. B, p.119:8-11). The hospitality industry's refusal to publish Freije's publications demonstrates the absence of the requisite peer-review publication. Freije's publications are inadequate because they were never peer-reviewed by the proper community. Freije discusses seven "peer-reviewed" papers that discuss legionella prevention recommendations. (Ex. B, p.111:17-20). These publications were based on compilations of EPA guidelines and scientific papers. (Ex. B, p.110:6-8). As compilations, these articles do not demonstrate independent primary research, but rather are mere literature reviews. Similarly, Freije's book, Legionellae Control in Health Care F acilities, A Guide for Minimizing Risk, is expressly addressed to the Health Care Industry. (Excerpts attached as Ex. F) ("The information in this book applies primarily to hospitals and other health care facilities. It is in these environments that Legionella ... pose the greatest risk[.]"). Despite Freije's assertions that this book applies to any large building with a domestic water supply, the book never mentions hotels. (Ex. B, p.113:18-22). Moreover, Freije cannot recall "any hotel or hospitality industry-based organization that carried [the book]." (Ex. B, p.114:19-21). Further, despite Freije's understanding that the peer-review process is to scrutinize methodology, he mistakes professional editing for the peer-reviewed process. (Ex. B, p.112:13-18). There is no evidence that his book ever underwent Daubert's traditional view of peer-based scrutiny. - 14 Case 2:03-cv-01555-SRB Document 145 Filed 12/13/2005 Page 14 of 17

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D.

Freije's methods and conclusions are not generally accepted.

General acceptance suggests acceptance beyond an isolated scientific community. Daubert, 509 U.S. at 594. community is necessary. Id. Freije's opinions have neither. When questioned about his opinion that Sunstone should have sampled for Legionella even in the absence of a confirmed case of Legionnaires Disease, Freije stated that "even though I advocate sampling in my book, I outline ... there's not a consensus among ... all individuals who are connected in some way with legionella." (Ex. C, p.261:14-17). Similarly, Freije admits that he is not aware of anyone who has used data from a sample to predict the bacterial population at the sample site months before the sample. Freije's lack of knowledge about the existence of such analysis, indeed his affirmative belief in its absence, demonstrates more than the absence of general acceptance it demonstrates the absence of any acceptance. Finally, the hospitality industry has rejected Freije's proposals and submissions. (Ex. B, p.119:8-11). This rejection demonstrates the lack of acceptance within the appropriate industry for his views. Without general acceptance, or even acceptance within the hospitality industry, Freije's opinions remain dubious. IV. CONCLUSION. Freije's education and work experience are inadequate to qualify him as an expert on the cause of Sapiro's illness and the San Marco's standard of care. Additionally, Freije's proffered opinions and potential testimony does not pass Daubert muster, and therefore, are unreliable. Consequently, Sunstone respectfully requests this Court exclude Freije and his testimony. ... ... - 15 Case 2:03-cv-01555-SRB Document 145 Filed 12/13/2005 Page 15 of 17

At a minimum, however, support within the relevant scientific

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DATED this 13th day of December, 2005. KUNZ PLITT HYLAND DEMLONG & KLEIFIELD A Professional Corporation

By

s/Chad Baker Matthew D. Kleifield Chad C. Baker Julie R. Barton 3838 North Central Avenue, Suite 1500 Phoenix, Arizona 85012-1902 Attorneys for Defendants

COPY of the foregoing e-filed this 13th day of December, 2005, with: United States District Court Clerk of the Court 401 West Washington Phoenix, Arizona 85003 COPIES of the foregoing mailed this 5th day of December, 2005, to: Hon. Susan J. Bolton 401 West Washington Phoenix, Arizona 85003 Chloe Andrews Boies Schiller & Flexner LLP 33 Main Street Armonk, NY 10504 Attorney for Plaintiffs Marvin and Gloria Sapiro COPIES of the foregoing electronically delivered this 13 day of December, 2005, to: Ann M. Galvani Boies Schiller & Flexner LLP 33 Main Street Armonk, NY 10504 Attorney for Plaintiffs - 16 Case 2:03-cv-01555-SRB Document 145 Filed 12/13/2005 Page 16 of 17

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David W. Shapiro, Esq. Boise, Schiller & Flexner, L.L.P. 199 Harrison Street Oakland, CA 94612 Attorney for Plaintiffs Jorge Schmidt Boise, Schiller & Flexner, L.L.P. Bank of America Tower, Suite 2800 100 S.E. 2 nd Street Miami, Florida 33131-2144 Attorney for Plaintiffs Steven W. Davis, Esq. Boise, Schiller & Flexner, L.L.P. Bank of America Tower, Suite 2800 100 S.E. 2 nd Street Miami, Florida 33131-2144 Attorney for Plaintiffs s/C. Waight

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