Free Amended Document (NOT Motion/Complaint) - 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 (602) 331-4600 [email protected] [email protected] [email protected] 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' AMENDED SEPARATE STATEMENT OF FACTS

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

Defendants Sunstone Hotels Investors, L.L.C. and Sunstone Hotels Investors, L.P. ("Sunstone"), pursuant to Rule 56(c)(2), Arizona Rules of Civil Procedure, submits the following Separate Statement of Facts in support of its Motion for Summary Judgment. 1. This case arises from Legionnairre's Disease, which plaintiff contracted in

February 2003. (See Amended Complaint, ¶ 1). 2. From February 6, 2003 to February 11, 2003, Marvin and Gloria Sapiro

(collectively "Plaintiffs") stayed at the Sheraton San Marcos Golf Resort and Conference Center

Case 2:03-cv-01555-SRB

Document 142

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(the "Sheraton San Marcos"), located at One San Marcos Place, Chandler, Arizona. (See id. at ¶¶ 6, 14). 3. On February 12, 2003, Marvin Sapiro ("Mr. Sapiro") began to experience

flu-like symptoms. (See id. at ¶ 15). 4. On February 16, 2003, Mr. Sapiro was admitted to the Delray Medical

Center located in Delray Beach, Florida. (See id. at ¶ 18). 5. In their Complaint, the plaintiffs allege that Mr. Sapiro was exposed to the

legionella bacteria during his stay at the Sheraton San Marcos as a result of Sunstone's negligence. (See id. at ¶¶ 48-5). 6. The plaintiffs' expert, Mr. Matthew Freije, made several suggestions, such

as that Sunstone should have regularly tested the water and drained the water storage tanks that he claims may have prevented Mr. Sapiro's illness. (Reports of Matthew Freije dated 4/8/05 & 2/11/05, Exhs. A & B). 7. Mr. Freije admits that those suggestions are not required by law or any

other governmental agency and have not been adopted by the hotel industry. (Deposition of Matthew Freije dated 4/29/05 at pp. 120-24, Exh. C). 8. Mr. Freije testified that various Occupational Safety and Health

Administration ("OSHA") guidelines require testing water for bacteria. (Id. at 142). 9. The OSHA Technical Manual reads, in pertinent part, "Water. Analysis of

water samples from a source suspected of being contaminated with L.pneumophila is a valuable means of identifying potential sources of the disease." (OSHA Technical Manual II (C) (2), Exh. D). 10. Mr. Freije acknowledged that the OSHA guidelines do not require random

water analysis, but only advocate for the analysis of water samples during an investigation after -2Case 2:03-cv-01555-SRB Document 142 Filed 12/07/2005 Page 2 of 6

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a potential bacterial disease has been identified. (Deposition of Matthew Freije dated 4/29/05 at p. 142). 11. Notice of Mr. Sapiro's illness was the first time that the hotel or hotel

employee was aware that the hotel may be the source of a bacterial disease. (Deposition of Jeff Hammermeister dated 6/1/05 at p. 20; Exh. E). 12. Mr. Freije also suggested that Sunstone should have been draining its

water storage tanks one to four times each year, but recognized that he did not have a verifiable source to support his suggestion. (Deposition of Matthew Freije dated 9/16/05 at p. 181; Exh. G). 13. Mr. Freije conceded that there was no law or other requirement that the

hotel perform this task. (Id. at p. 205). 14. Mr. Freije stated that "the tanks were so old that the cleaning would have

been ineffective [and] . . . would have not guaranteed legionella control." (Id. at pp. 178, 18081). 15. Mr. Hammermeister and Robert Marrs, the Director of Engineering at the

Sheraton San Marcos, stated that the property was regularly inspected to ensure the safety of the hotel guests: (1) the Health Department conducted property inspections several times each year; (2) Mr. Phil Dignan, a vice-president at Sunstone, traveled monthly to the hotel to ensure that its operation was satisfactory; (3) Mr. Hammermeister did a daily walk-through of the property; (4) Mr. Marrs implemented a preventative maintenance program on the equipment at the hotel; and (5) Mr. Marrs conducted a regular inspection of the rooms, and, specifically, checked the temperature of the water approximately every two weeks. (Deposition of Robert Marrs dated 9/23/04 at pp. 14-20, Exh. F; Deposition of Jeff Hammermeister dated 6/1/05 at pp. 28-29, 33, 87-88). -3Case 2:03-cv-01555-SRB Document 142 Filed 12/07/2005 Page 3 of 6

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16.

Sunstone, upon learning of Mr. Sapiro's illness, immediately transferred

guests to alternate hotels and closed the property, super-heated and hyper chlorinated the hot lines, installed new boilers, created backflow prevention to the city's water source, installed new water heaters and water storage tanks, replaced showerheads, replaced circulation pumps, and replaced piping to the boilers. (Deposition of Jeff Hammermeister dated 6/1/05 at pp. 28-29, 33, 87-88). 17. Mr. Freije testified that the hotel was not required to test the water for the

presence of legionella bacteria or drain the water storage tanks. (Desposition of Matthew Freije dated 4/29/05 at p. 123; Deposition of Matthew Freije dated 9/16/05 at p. 204). 18. Although Mr. Sapiro stayed at the hotel in February, the plaintiffs did not

perform tests on the water until May. (Desposition of Matthew Freije dated 9/16/05 at pp. 23537). 19. They did not and cannot perform regression analysis to determine what the

bacteria levels were at the time that the plaintiffs were guests of the hotel. (Deposition of Matthew Freije dated 9/16/05 at pp. 236-37, 242-43). 20. In addition, Mr. Freije said that levels of legionella bacteria can spike

quickly, so it may be unusually high one day even though it was not a measurable amount shortly before that analysis. (Desposition of Matthew Freije dated 9/16/05 at pp. 269-70). 21. Mr. Marrs testified that he had been instructed that the water temperature

needed to be at least 121 degrees for the prevention of Legionella during previous training he received while working for the Pointe Hilton for South Mountain (Deposition of Robert Marrs dated 9/23/04 at p. 47). 22. at p. 20). -4Case 2:03-cv-01555-SRB Document 142 Filed 12/07/2005 Page 4 of 6

Mr. Marrs testified that he kept the water temperature at 130 degrees. (Id.

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DATED this __7th__ day of December, 2005. KUNZ PLITT HYLAND DEMLONG & KLEIFIELD A Professional Corporation

By

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

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COPY of the foregoing mailed this 7th day of December, 2005, to: Steven W. Davis, Esq. Boies, Schiller & Flexner, L.L.P. Bank of America Tower, Suite 2800 100 S.E. Second Street Miami, Florida 33131 Attorneys for Plaintiffs By s/L. Bower

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