Free Reply to Response to Motion - District Court of Arizona - Arizona


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Date: December 31, 1969
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Category: District Court of Arizona
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
PHOENIX DIVISION
) CASE NO. CIV 03 1555 PHX SRB
MARVIN SAPIRO and )
GLORIA SAPIRO, his wife, ` 3

Plaintiffs, )
) DECLARATION OF MATTHEW FREIJE
vs. §
SUNSTONE HOTEL INVESTORS, L.L.C., )
SUNSTONE HOTEL INVESTORS, L.P., %
Defendants. )
I, Matthew Freij e, declare under penalty of perjury that the following is true and correct:
l. I am over eighteen years of age, and I have personal knowledge of the facts
set forth below. I make this declaration in support of the motion by the
plaintiffs in the Sapiro v. Sunstone, No. CIV-03-1555-PHX-SRB, and
Sudbeck v. Sunstone, No. CV-04-1535-PHX-JWS, motion to consolidate, now
pending in the District Court for the District of Arizona.
2. With respect to Sudbeck v. Sunstone Hotel Properties, Inc., et al., I have
reviewed the Allison and Assimacopoulos reports, Plaintiffs initial disclosure _
statement, St. l\/Iary's Healthcare Center and Avera Mcliennan Hospital
discharge summaries, the South Dakota Department of Health report, and the
Centers for Disease Control and Prevention report.
3. The opinions I gave to Steven Davis of Boies, Schiller and Flexner LLP, in
my report of February l 1, 2005, apply with reasonable scientific probability
also to Gilbert Sudbeck, as follows:
4. Gilbert Sudbeck was exposed to Legionella bacteria during his June 2002 stay
at the San Marcos Resort in Arizona.
5. Significant levels of Legionella bacteria were found in water samples
collected at the San Marcos in May and August 2003. Based on the nature of
Legionella bacteria in plumbing systems, it is very likely that Legionella
bacteria had been in the San Marcos domestic water system for several
months or years prior to May 2003. Without evidence that a specific incident
introduced Legionella bacteria into the system between June 2002 and May
2003, or that the system was free of detectable Legionella bacteria prior to
June 2002, my opinion with reasonable scientitic probability, based on studies
Case 2:03-cv-01555-SRB Document i 43-3 Filed 12/O7/2005 Page 1 of 2

of Legionella and biofilms, and my knowledge of and experience with
domestic water disinfection, is that the Legionella-containinated biofilm
within the San Marcos domestic water system in May 2003 existed also in
June 2002.
6. Gilbert Sudbeck would not have been exposed to high levels of Legionella
bacteria during his stay at the San Marcos if Sunstone had routinely tested the
hotel water systems for Legionella and taken appropriate steps in response to
the results. g `
7. Sunstone failed to exercise reasonable care to prevent Legionnaires' Disease at
the San Marcos. Guidelines for preventing the disease, including Sunstone's
in-house manual, were available prior to June 2002.
Executed on the 7th day of December, 2005, in Fallbrook, California.
2
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