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

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

PLAINTIFFS' REPLY IN SUPPORT OF THEIR MOTION TO CONSOLIDATE

The Federal Rules of Civil Procedure allow this Court to consolidate "actions involving a common question of law of fact." Fed.R.Civ.P. 42(a). This procedure promotes judicial

economy by resolving common questions of law and fact, minimizing the need for duplicative discovery, and ensuring that inconsistent results do not arise. The proposed consolidation of the two actions implicated in this motion--Sapiro v. Sunstone, and Sudbeck v. Sunstone--is a very good example of how these theoretical considerations apply in practice to the advantage of the judicial process. The important questions of fact in a case depend on the burden of proof. Plaintiffs in Sapiro and Sudbeck will rely on substantive Arizona law that allows them to recover against the San Marcos Resort (or "Sunstone") for negligence. They can do this, for example, by showing that the San Marcos Resort had notice of a dangerous condition. Given that the San Marcos Resort has adamantly denied having actual notice of the presence of Legionella bacteria at any

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time prior to June, 2003, the question of notice resolves into whether the San Marcos Resort created the dangerous condition, or whether the condition existed for a sufficient length of time that the San Marcos Resort, in the exercise of reasonable care, should have known of it. See RAJI (Civil) 3d Premises Liability 1. Among the common--and critical--questions in both Sapiro and Sudbeck, therefore, are: did the San Marcos create the dangerous condition? For how long did the dangerous condition exist? What standard of care applied to the San Marcos? Plaintiffs can also recover against the San Marcos for negligence by showing that it had adopted a method of operation from which it could reasonably be anticipated that a dangerous condition would regularly arise, and the San Marcos failed to exercise reasonable care under the circumstances. See RAJI (Civil) 3d Premises Liability 2. Under this test, the most obvious common questions are: what was the San Marcos' method of operation? Could it reasonably be anticipated that a dangerous condition would regularly arise from it? And, as above, what standard of care applied to the San Marcos? The Sapiro Plaintiffs have ascertained answers to those questions though interrogatories, requests for admission, depositions of present and past San Marcos employees, expert testimony, and documents disclosed by the San Marcos as well as those produced in response to discovery requests. That the answers to those questions are in common with the Sudbeck case is clear from Sunstone's own witness list recently filed in Sudbeck. The first five witnesses Sunstone named in that list, attached hereto as Exh. A, are either current or former Sunstone employees, all were already deposed in the Sapiro matter, and, notably, no other current or former Sunstone employee are named as witnesses. Indeed, the factual commonality between the Sapiro and

Sudbeck actions is such that the Sudbeck Plaintiffs will not redepose any of these five witnesses if these actions are consolidated. Sunstone makes much of the eight months that separated the onset of Messrs. Sapiro and Sudbeck's infections, as if this passage of time sufficed to destroy all common questions of fact. But the law does not require that both actions arise from a single incident, as Sunstone implies, and may in fact have occurred many years apart. See Johnson v. Celotex Corp., 899 F.2d 1281, 1285 (2d Cir. 1990) (affirming consolidation of two asbestos exposure cases--one plaintiff's

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exposure was from 1942 to 1945, the other's from 1946 through 1966). And Messrs. Sapiro and Sudbeck's staying at the same hotel and contracting the same disease, far from being trivial, is extremely relevant to the common question of causation. See Declaration of Matthew Freije ¶¶ 4-7. [Exh. B]. Because of the number and importance of the common questions of fact in both actions, and because there do not appear to be any differences in the law governing them (Sunstone has not identified any reason why the law governing both actions should be different), consolidating them would generate significant judicial economies to the parties and the courts. As stated above, the depositions of Sunstone's five employees would not need to be retaken. In addition, consolidation would obviate the need to redo most of the written discovery (involving thousands of pages of documents) that took place in Sapiro. Sunstone's expert, Dr. Teeters, who has been disclosed in both actions but has not yet been deposed in either, would have to be deposed only once. So would Leonard Dunlap, the Sunstone former employee who wrote the Engineering manual that was in force at the San Marcos Resort before either Messrs. Sapiro or Sudbeck contracted Legionnaire's Disease there.1 And perhaps most importantly, from the point of view of judicial efficiency, there would be one trial instead of two. As the court reasoned in

Magnavox v. APF Electronics, Inc., 496 F. Supp. 29, 33 (N.D. Ill. 1980), "it is probable that the same documents and technical drawings will be solicited from [defendant]. It is also likely that [plaintiffs] will want to depose the same persons. Thus, efficiency will be promoted by coordinating discovery." In this case, it is more than probable that many of the same documents and witnesses will be involved, it is certain. Lastly, despite Sunstone's protestations, there is no evidence of prejudice to Sunstone in consolidation. Trial is not imminent. Additional discovery would be greatly reduced.

Sunstone's claim that if consolidation were to occur, it would be required to depose Sapiro's "new expert witness," Dr. Assimoucopolous, is simply incorrect or misapprehends the meaning

1

The parties have tried for several months to locate Mr. Dunlap, and seem to have succeeded in

doing so only this week.

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of consolidation. Dr. Assimoucopolous is not, has never been, and will not be, Mr. Sapiro's expert witness. Mr. Sapiro's expert witness, Matthew Freije, has provided two reports and has been twice deposed by Sunstone. Dr. Assimoucopolous, who was Mr. Sudbeck's treating

physician, is listed as a witness only in the Sudbeck matter. It is unclear how he would become an expert witness in the Sapiro action by virtue of consolidation. ! ""#$ BOIES, SCHILLER & FLEXNER LLP Attorneys for the Plaintiffs Bank of America Tower, Suite 2800 100 S.E. 2nd Street Miami, FL 33131 Tel: (305) 539-8400 Fax: (305) 539-1307 By: _/s/ Jorge Schmidt__________________ David W. Shapiro (AZ Bar No. 015295) Steven W. Davis (Fla. Bar No. 347442) Jorge Schmidt (Fla. Bar No. 781711) Boies, Schiller & Flexner, LLP Bank of America Tower, Suite 2800 100 S.E. 2nd Street Miami, FL 33131 Tel: (305) 539-8400 Fax: (305) 539-1307 Of Counsel: Ann M. Galvani, Esq. Boies, Schiller & Flexner, LLP 333 Main Street Armonk, NY 10504

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