Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Matthew D. Kleifield ­ 011564 Chad C. Baker ­ 023083 KUNZ PLITT HYLAND DEMLONG & KLEIFIELD 3838 North Central Avenue, Suite 1500 Phoenix, Arizona 85012-1902 (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 (Assigned to the Honorable Susan R. Bolton)

Plaintiffs, v. SUNSTONE HOTELS INVESTORS, L.L.C., SUNSTONE HOTEL INVESTORS, L.P. Defendant. GILBERT SUDBECK and LYNN SUDBECK, husband and wife, Plaintiffs v. SUNSTONE HOTEL PROPERTIES, INC.; SUNSTONE HOTEL INVESTORS, LLC; SUNSTONE HOTEL INVESTORS, L.P.; SMP II LIMITED PARTNERSHIP; JEFFERY HAMMERMEISTER and JANE DOE HAMMERMEISTER, husband and wife; JOHN AND JANE DOE I-X; husbands and wives; BLACK CORPORATIONS, I-X; WHITE PARTNERSHIPS, I-X, Defendants.
Case 2:03-cv-01555-SRB Document 126

DEFENDANTS' RESPONSE IN OPPOSITION TO PLAINTIFFS' MOTION TO CONSOLIDATE (Oral Argument Requested) No. CV04-1535 PHX JWS (Assigned to the Honorable John W. Sedwick)

Filed 11/30/2005

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Defendants (collectively "Sunstone") respond in opposition to plaintiffs' motion to consolidate Sapiro v. Sunstone Hotel Investors, L.L.C., Case No. CIV 03-1555 PHX SRB, and Sudbeck v. Sunstone Hotel Properties, Inc., Case No. CIV 04-1535 PHX JWS, and request the Court deny that motion. These cases do not share a sufficient commonality of issues and facts to warrant consolidation. Moreover, the resulting delay, confusion of facts and issues, and the prejudice Sunstone would suffer outweighs any judicial convenience that could possibly arise from consolidating these tenuously similar cases. The following Memorandum of points and authorities supports this response. MEMORANDUM OF POINTS AND AUTHORITIES I. Factual background

The San Marcos Golf Resort and Conference Center ("San Marcos") in Chandler hosted Gilbert Sudbeck ("Mr. Sudbeck") and Marvin Sapiro ("Mr. Sapiro"). Although both stayed at the San Marcos, approximately eight (8) months passed between their respective stays. Mr. Sudbeck checked in to the San Marcos around June 24, 2002, and checked out and returned to his home in South Dakota around June 27, 2002. Mr. Sapiro checked into the San Marcos on February 6, 2003, and checked out and returned to his home in Boca Raton, Florida on February 11, 2003. Shortly after their respective return home, Mr. Sapiro and Mr. Sudbeck both experienced the onset of illness, and ultimately both were diagnosed with Legionnaire's Disease. Although Mr. Sudbeck was diagnosed with the Legionnaires Disease months before Mr. Sapiro's stay, Sunstone did not learn of any guest's alleged illnesses before July 2004, approximately 7 months after Mr. Sapiro's stay. II. The cases do not share sufficient common facts or law to warrant consolidation.

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The Federal Rules of Civil Procedure permit a court, in its discretion, to consolidate cases when the cases share common questions of law or fact. Fed. R. Civ. P. 42(a). Although a common party is a requirement for consolidation, it is not sufficient. See Sequro de Servicio de Salud v. McAuto Sys. Group, 878 F.2d 5, 8 (1st Cir. 1989). Generally consolidation is

appropriate when cases share common material facts that are fixed in time, and that time is the same for all parties. See In re Air Crash Disaster At Detroit Metropolitan Airport on August 16, 737 F.Supp. 391 (E.D. Mich. 1989) (permitting consolidation of multiple claims against the airline that arose out of a single airliner crash); Magnavox Co. v. APF Electronics, Inc., 496 F.Supp. 29, 32 (N.D.Ill. 1980) (permitting consolidation of two patent infringement cases because the validity of the patent, which depends upon the prior art, was relevant to each defendant). Mr. Sapiro's and Mr. Sudbeck's respective stay and illness onset, which were separated by almost eight months, do not share a similar point in time. These cases are, therefore, unlike the single event of an airplane crash that happens on a specific day, or the prior art of a patent which is frozen at the time a patent is issued. This difference in time removes any commonality of facts and makes consolidation inappropriate. Mr. Sapiro's attempt to characterize the time difference as a "relevant timeframe" misses the threshold question of these cases. To establish negligence, the Plaintiffs must show that (1) Sunstone owed them a duty with an obligation to conform to a standard of conduct; (2) that Sunstone breached that duty; (3) that there exists a causal connection between the breach and the injuries; and (4) damages. Piccola v. Woodall, 186 Ariz. 307, 309, 921 P.2d 710, 712 (App. 1996); Smith v. Johnson, 183 Ariz. 38, 41, 899 P.2d 199, 202 (App. 1995). Because a hotel does not insure the safety of its guests and is not liable for the mere fact an injury may have occurred on its property, a plaintiff must show that the property owner had notice of the dangerous -3Case 2:03-cv-01555-SRB Document 126 Filed 11/30/2005 Page 3 of 10

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condition. Haynes v. Syntek Finance Corp., 909 P.2d 399, 406 (App. 1995). Such proof may arise by showing that Sunstone caused the dangerous condition, (2) that Sunstone had actual knowledge of the condition, or (3) that the condition existed for sufficient length of time that Sunstone should have known of the condition and remedied it. Id. Accordingly, the relevant point of inquiry for negligence is the time of the guest's stay, not eight months before or after the stay, or the time in between. Additionally, the dynamic nature of bacterial reproduction and population growth makes the focus on an eight month timeframe incorrect. Bacteria populations, like those of other living organisms, constantly change in response to environmental conditions. To transform two

discrete dates into a single timeframe, Plaintiffs would need to demonstrate that the environmental conditions, the bacterial population, and the acts of Sunstone were static during the eight months between their stays. Such a demonstration is only possible through the use of experts and would require additional hearings. See Fed. R. Evid. 702. These additional

evidentiary findings would require additional efforts by the Court, parties and counsel, and do not directly assist with the resolution of both cases. Such unnecessary efforts by the Court and counsel run contrary to consolidation's goal of administrative efficiency. The remaining similarities identified by Plaintiffs are not sufficient for consolidation. Sunstone's closure of the San Marcos for ten days is irrelevant, prejudicial, and inadmissible. See Fed. R. Evid. 407. Consequently, this "common fact" does not help in the resolution of the cases and cannot promote judicial efficiency. Additionally the facts that Mr. Sapiro and Mr. Sudbeck stayed at the same hotel and contracted the same disease are quite trivial. Although Sunstone owes the same duty to both guests, the issues of whether they breached that duty and whether the breach caused the injury are specific to the individual guest. Mr. Sudbeck's and Mr. Sapiro's shared experience does -4Case 2:03-cv-01555-SRB Document 126 Filed 11/30/2005 Page 4 of 10

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little to advance the resolution of these legal questions. The individual nature of these legal questions demonstrates the lack of a common legal thread. An example helps demonstrate this point. The fact that Joe and Jane slipped on water and fell at the Courthouse entrance does not automatically prove the similarity between Joe's and Jane's accident. As more time passes between Joe's and Jane's respective visit to the Courthouse, the more likely their respective accidents are discrete accidents rather than a continuous event. Indeed, there could be no commonality of facts, outside of those giving rise to the mere coincidence of Joe and Jane slipping at the same location, if Joe slipped on a puddle caused by the winter rains, and Jane slipped in July on a puddle caused by a spilled glass of water. Despite the complexity raised by the scientific nature of Mr. Sapiro's and Mr. Sudbeck's cases, the factual disconnect demonstrated by Joe's and Jane's Courthouse falls is equally evident here. The environmental conditions certainly changed during the eight month timeframe to make the two stays isolated incidents. Consolidation of these two isolated cases would only permit the improper inference that because two people suffered a similar injury at the same location, the property was negligent in its operations. This inference is incorrect for both Joe and Jane and Mr. Sapiro and Mr. Sudbeck. Moreover, the difference in time between the Mr. Sapiro's and Mr. Sudbeck's stay alleviates the concern for conflicting verdicts. As stated earlier, the threshold inquiry is what Sunstone knew and did at the time of each guest's respective stays. Plaintiffs have presented no evidence to demonstrate that the same facts existed so that the answer to these questions would have any chance of being the same. Additionally, because the resolution of Mr. Sapiro's case would occur before Mr. Sudbeck's trial, the doctrine of collateral estoppel could potentially prevent any conflicting resolution of any common issues. Regardless, because these cases rest -5Case 2:03-cv-01555-SRB Document 126 Filed 11/30/2005 Page 5 of 10

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on completely separate facts, the concern for conflicting verdicts is false and consolidation is improper. III. The undue delay and prejudice to Sunstone that consolidation would create outweighs any judicial convenience.

Commonality of legal or factual issues is a necessary, but not a sufficient, condition for consolidation. For consolidation to occur, the party seeking consolidation must also

demonstrate that the judicial convenience created by resolving unified issues outweighs "the potential for delay, confusion and prejudice that may result from such consolidation." Bank of Montreal v. Eagle Associates, 117 F.R.D. 530, 532 (S.D.N.Y. 1987). Consolidation at this juncture of the case would not prevent duplicative discovery, but rather would prolong discovery and facilitate additional expense. The deadline for discovery in Sapiro v. Sunstone passed on November 21, 2005, see Sapiro R. 108, and the deadline for discovery in Sudbeck v. Sunstone is January 27, 2006, see Sudbeck R. 10. Trial of the Sapiro matter is presently scheduled to commence January 10, 2006. Given the lateness of Plaintiffs' Motion to Consolidate, Plaintiffs' statement that "the sharing of discovery already taken, the joint use of expert witnesses, and coordination of remaining discovery will prevent duplicative efforts[,]" is misleading and disingenuous. This statement, however, illustrates Mr. Sapiro's true motive. Mr. Sapiro recognizes the deficiency in his expert's ability to give opinions regarding the standard of care and causation; Mr. Sapiro has previously attempted to obtain judicial notice of causative facts, see Sapiro R. 100, 104, 105. Mr. Sapiro has also sought to amend the pre-trial scheduling order. Sapiro R. 109. Because this Court has denied both requests, see Sapiro R. 111, 116, Mr. Sapiro has made this last ditch effort to add additional witnesses and extend the pre-trial schedule. This Court should not support Mr. Sapiro's attempt at side-stepping this Court's orders.

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Moreover, permitting consolidation would result in prejudice to Sunstone and undue delay. Should consolidation occur, Sunstone would be required to depose Mr. Sapiro's new expert witness. Although Sunstone may inevitably depose Dr. Assimoucopolous because of his involvement in Sudbeck v. Sunstone, Sunstone's litigation plan, budget, and strategy for Mr. Sapiro's case was partially based on Mr. Sapiro's disclosure of only one expert witness. The addition of Dr. Assimoucopolous to Sapiro v. Sunstone would require additional discovery for the preparation of that case. "[T]he possibility of additional discovery[] would be manifestly unfair and unduly prejudicial." Jackson v. Bank of Hawaii, 902 F.2d 1385, 1388 (9th Cir. 1990). The scheduling of Dr. Assimucopolous' deposition would itself cause unnecessary delay. The record in Sapiro v. Sunstone demonstrates the difficulty Mr. Sapiro's and Sunstone's counsel experienced in scheduling the deposition of potential witnesses. See Sapiro R. 98, 101, 107, 108. This difficulty arose from counsels' full schedules, as well as the need to travel out of state. Dr. Assimoucopolous's deposition would likely occur in South Dakota, and the need to further coordinate with Mr. Sudbeck's counsel's schedule increases the difficulty in scheduling this deposition. This deposition would inevitably extend the trial date for Sapiro v. Sunstone. Although Sunstone's counsel has notified this Court of a conflict with the scheduled trial date, the resolution of this conflict should not be as cumbersome as rescheduling the trial date and scheduling the deposition. A delay in the resolution of Sapiro v. Sunstone is inevitable if these cases are consolidated. This delay does not outweigh the potential benefit created by the consolidation of these cases. Finally, the consolidation of these cases would prejudice Sunstone because factual confusion will occur. Although Mr. Sudbeck stayed at the hotel before Mr. Sapiro, Mr. Sudbeck did not notify Sunstone of his diagnosis with Legionnaires disease until after Mr. Sapiro's -7Case 2:03-cv-01555-SRB Document 126 Filed 11/30/2005 Page 7 of 10

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disclosure. The parties, however, would hope to use the fact that Mr. Sudbeck became ill before Mr. Sapiro's stay as evidence that Sunstone should have known about the potential risk caused by the presence of Legionella Bacteria. Plaintiffs attempt to characterize the two separate stays as one event demonstrates the ease at which this inference would be drawn. Although this inference is factually incorrect, the potential and likelihood that it will be drawn demonstrates how consolidating these cases will lead to confusion of the factual and legal issues and unfairly prejudice Sunstone. IV. Conclusion.

Mr. Sapiro's and Mr. Sudbeck's respective stays at the San Marcos occurred almost eight months apart. Since the inception of their separate litigations, Plaintiffs have treated their cases as separate. Now, however, at the eve of trial in the Sapiro matter, Plaintiffs attempt to consolidate these cases to extend the pre-trial deadlines and piggyback their efforts. Consolidation at this point in the case would mock the reasons courts consolidate cases. Because Plaintiffs cannot demonstrate the existence of common facts or law, and Plaintiffs cannot demonstrate that the minimal judicial efficiency that consolidation may provide outweighs the delay and prejudice Sunstone would experience, Sunstone respectfully requests this Court deny Plaintiffs Motion for Consolidation. DATED this 30th day of November, 2005. KUNZ PLITT HYLAND DEMLONG & KLEIFIELD A Professional Corporation By s/ Chad C. Baker Matthew D. Kleifield Chad C. Baker 3838 North Central Avenue, Suite 1500 Phoenix, Arizona 85012-1902 Attorneys for Defendants
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Original/copy of the foregoing E-Filed this 30th day of November, 2005, to: United States District Court Clerk of the Court 401 West Washington Phoenix, Arizona 85003 Original/copy of the foregoing by mail this 30th day of November, 2005, to: Hon. Susan J. Bolton 401 West Washington Phoenix, Arizona 85003 Hon. John W. Sedwick 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 ORIGINAL/COPIES of the foregoing e-mailed this 30th day of November, 2005, to: Ann M. Galvani Boies Schiller & Flexner LLP 33 Main Street Armonk, NY 10504 [email protected] Attorney for Plaintiffs Gilbert and Lynn Sudbeck David W. Shapiro, Esq. Boise, Schiller & Flexner, L.L.P. 199 Harrison Street Oakland, CA 94612 Attorney for Plaintiffs Gilbert and Lynn Sudbeck [email protected] Jorge Schmidt Boise, Schiller & Flexner, L.L.P. Bank of America Tower, Suite 2800 100 S.E. 2nd Street Miami, Florida 33131-2144 -9Case 2:03-cv-01555-SRB Document 126 Filed 11/30/2005 Page 9 of 10

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Attorney for Plaintiffs Gilbert and Lynn Sudbeck [email protected] Steven W. Davis, Esq. Boise, Schiller & Flexner, L.L.P. Bank of America Tower, Suite 2800 100 S.E. 2nd Street Miami, Florida 33131-2144 Attorney for Plaintiffs Gilbert and Lynn Sudbeck [email protected] John Adair Shannon, Jr. Law Office of John A. Shannon Jr. c/o Hudson & Associates 2642 E. Thomas Road, Suite 1 Phoenix, AZ 85016 Attorney for Plaintiffs Gilbert and Lynn Sudbeck [email protected] Andrew Q. Everroad Bonnett Fairbourn Friedman & Balint, P.C. 2901 N. Central Avenue, Suite 1000 Phoenix, AZ 85012-3311 Attorney for Defendant Diversified Engineering, Inc. [email protected] Meredith Lynn Vivona Bonnett Fairbourn Friedman & Balint, P.C. Bonnett Fairbourn Friedman & Balint, P.C. 2901 N. Central Avenue, Suite 1000 Phoenix, AZ 85012-3311 Attorney for Defendant Diversified Engineering, Inc. [email protected]

By

s/Frances L. Solomon

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