Free Motion in Limine - District Court of Arizona - Arizona

1 2 3 4 5 6

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] Email: [email protected] (602) 331-4600

Attorneys for Defendants 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Case 2:03-cv-01555-SRB Document 132 Filed 12/05/2005 Page 1 of 6

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. 4 REGARDING EVIDENCE OR TESTIMONY CONCERNING OSHA AS ESTABLISHING THE STANDARD OF CARE (Oral Argument Requested)

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

Defendants ("Sunstone") move this Court for an Order in Limine excluding any statement, argument, testimony, or evidence of any violation of Section 651, et seq., of Title 29 of the United States Code commonly known as the Occupational Safety and Health Act of 1970 ("OSHA"), or any rules and regulations promulgated under OSHA as evidence of the standard of care, negligence, or negligence per se, and prohibiting any jury instruction as to violations of OSHA or its rules or regulations as evidence of a standard of care, negligence, or negligence per se. Federal Rules of Evidence, Rule 402 and 403, prevent the admissibility of any such

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

evidence. The attached Memorandum of Points and Authorities and the Court's entire file supports this Motion. MEMORANDUM OF POINTS AND AUTHORITIES I. ANY OSHA RULES OR REGUALTIONS, OR ALLEGED VIOLATIONS OF OSHA RULES OR REGULATIONS, ARE PROPERLY EXCUDED FROM EVIDENCE AT TRIAL.

Irrelevant evidence is inadmissible. Fed. R. Evid. 402. Evidence is relevant only if it affects the probability of the existence of any fact of consequence. Fed. R. Evid. 401. Plaintiffs are not within the class of persons protected by OSHA. In Arizona, a statute, or its violation, may help demonstrate a standard of care, negligence, or negligence per se, but only when the law's purpose "is found to be exclusively or in part a) to protect a class of persons which includes the one whose interest is invaded, and b) to protect a particular interest which is invaded, and c) to protect that interest against the ki nd of harm which has resulted, and d) to protect that interest against a particular hazard from which the harm results." Good v. City of Glendale, 722 P.2d 386, 389 (Ariz.App. 1986). "Congress' primary purpose for enacting

[OSHA] is to assure so far as possible every working man and woman in the nation safe and healthful working conditions." Teal v. E.I. DuPont de Nemorus & Co., 728 F.2d 799, 803 (6th Cir. 1984) (emphasis added). OSHA does not impose a duty to protect non-employees. Ellis v. Chase Comm., Inc., 63 F.3d 437, 475 (6th Cir. 1995); McKinnon v. Skill Corp., 638 F.2d 270, 275 (1st Cir. 1981) ("OSHA regulations cannot ... be used as evidence of industry practice or of the standard of care to be exercised by a reasonable person[.]"); Trowell v. Brunswisk Pulp and Paper Co., 522 F.Supp. 782, 784 (D.SC. 1981); Macey v. United States of America, 454 F.Supp. 684, 692 (D.Alaska 1978) ("OSHA regulations do not impose a standard of care toward a nonemployee or a non-business related person present on a construction site."); Horn v. C.L.

-2Case 2:03-cv-01555-SRB Document 132 Filed 12/05/2005 Page 2 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Osborn Contracting Co., 423 F.Supp. 801, 808, (Md. Ga. 1976) (holding OSHA regulations inapplicable to employees of subcontractors). In Trowell, an invitee touring a woodchip mill brought a negligent action against the mill for an injury sustained at the mill. 522 F. Supp. at 782. The Court prohibited the invitee from admitting OSHA regulations and violations as evidence of negligence or the applicable standard of care, stating "OSHA does not create a duty of compliance to the OSHA standards ... in regard to a non-employee such as plaintiff." Id. at 737. Throughout discovery, Plaintiffs and Plaintiffs' purported expert witness Matthew Frieje have made reference to OSHA standards in an attempt to establish the standard of care Sunstone owed to guests such as Mr. Sapiro. For example, in Plaintiffs' Supplemental Response to Defendants' Interrogatory No. 8, plaintiffs plainly stated "Plaintiffs also contend that the San Marcos was negligent in failing to follow ... OSHA procedures." (see Ex. A). In his

deposition, Mr. Freije admits that OSHA guidelines serve as the partial basis for his opinion regarding Sunstone's standard of care. (Freije Depo 141:15-25, excerpts attached as Ex. B). These references and attempts, however, are inappropriate because Mr. Sapiro, like the invitee in Trowell, is not an employee of Sunstone and not a member of the class protected by OSHA. Consequently, the OSHA regulations provide protection, the OSHA regulations are irrelevant. II. TO THE EXTENT ANY REFERNCE TO OSHA REGULATIONS IS RELEVANT, IT IS UNDULY PREJUDICIAL TO DEFENDANTS.

Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Fed. R. Evid. 403. OSHA assures safety in the workplace. Because the standard of care owed to consumers differs from the standard of care owed to employees, OSHA by its terms applies only to employees' workplace safety. McKinnon, 638 F.2d at 275. Because of the different standards of care -3Case 2:03-cv-01555-SRB Document 132 Filed 12/05/2005 Page 3 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

existing for consumers and employees, any acts taken to satisfy the duties owed to employees has no probative value to the satisfaction of duties owed to consumers. Actions taken in accord with OSHA guidelines should share the inadmissibility of OSHA violations. As a business and employer of workers, Sunstone made reference to and adopted sections of OSHA guidelines in an engineering operations manual. Additionally, upon

notification by plaintiffs' counsel of a reported case of Legionarre's disease, Sunstone implemented the OSHA protocol and began a Level 1 investigation (see Ex. C). These acts demonstrate Sunstone's responsibilities to its employees and therefore have no probative value in this case involving a non-employee. Plaintiffs' attempt to adopt OSHA regulations as

evidence of Sunstone's duty to plaintiffs demonstrates how easy it is to confuse the separate standards of care owe d to employees and guests. Any reference to Sunstone's acts in response to OSHA guidelines, or any reference to OSHA guidelines themselves could potentially confuse the jury because the standard of care is not the same. This possibility of confusion would result in unfair prejudice to Sunstone. III. CONCLUSION.

Consequently, Defendants' request this Court instruct Plaintiffs', Plaintiffs' counsel, and Plaintiffs' witnesses to not make reference to, or provide any evidence of alleged OSHA violations, rules or regulations. ... ... ... ... ... ... -4Case 2:03-cv-01555-SRB Document 132 Filed 12/05/2005 Page 4 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

DATED this 5th 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 5 th 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 5th day of December, 2005, to: Ann M. Galvani Boies Schiller & Flexner LLP 33 Main Street Armonk, NY 10504 Attorney for Plaintiffs -5Case 2:03-cv-01555-SRB Document 132 Filed 12/05/2005 Page 5 of 6

1 2 3 4 5 6 7 8 9 10

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

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -6Case 2:03-cv-01555-SRB Document 132 Filed 12/05/2005 Page 6 of 6