Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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Case 2:03-cv-01555-SRB

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Marvin Sapiro; Gloria Sapiro, Plaintiffs, vs. Sunstone Hotel Investors, Sunstone Hotel Investors, L.P., Defendants.

) ) ) ) ) ) ) L.L.C.;) ) ) ) ) )

No. CV03-1555-PHX-SRB ORDER

Plaintiffs have a filed a Request for Judicial Notice of what they claim are seven facts that are not subject to reasonable dispute. Specifically, Plaintiffs have requested that this Court take notice of the following: 1. Legionnaire's Disease, a form of severe pneumonia, is the most serious illness caused by Legionella organisms. 2. Legionellosis is preventable. 3. Between 8,000 and 18,000 person are hospitalized with legionellosis annually in the United States. 4. Legionella bacteria cause respiratory disease in humans when a susceptible host inhales aerosolized water containing the bacteria or aspirates water containing the bacteria.

Document 111

Filed 08/03/2005

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5. Legionella pneumophilia outbreaks tend to occur in buildings, especially hospitals and hotels, when water supply becomes contaminated and aerosolized organisms are spread from evaporative condensers of air conditioning systems or contaminated showerheads. 6. Mortality from Legionnaire's Disease is >=15%. 7. In the United States, travelers are usually exposed to Legionella via contaminated hotel potable water or contaminated whirlpool spas at hotels, resorts, and cruise ships. Rule 201(b), Federal Rules of Evidence provides: A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or 2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Pursuant to Rule 201 (b), judicial notice is mandatory when requested by a party and when

13 the Court is supplied with the necessary information. Attached to Plaintiffs' request are what 14 Plaintiffs claim is the necessary information upon which the Court can rely to take judicial 15 notice of the seven facts. In this case, Plaintiffs' request is not based upon a claim that these 16 facts are generally known within the territorial jurisdiction of the trial court, but that they are 17 capable of accurate and ready determination by resort to sources whose accuracy cannot 18 reasonably be questioned. These sources are the medical journals, Clinical Microbiology 19 Reviews, The New England Journal of Medicine, and Applied and Environmental 20 Microbiology. Other sources include The Merck Manual, publications of the Environmental 21 Protection Agency, and The Federal Register. Defendants oppose Plaintiffs' request and 22 argue that Plaintiffs' requests do not share the level of general acceptance and indisputability 23 required for judicial notice, that the alleged facts constitute faulty overstatements and that the 24 alleged facts cover matters that are still controversial in connection with Legionnaire's 25 Disease. 26 The Court agrees with Defendants that the seven items listed in Plaintiffs' Request for 27 Judicial Notice are not matters that this Court can judicially notice. While the Court has no 28 -2Case 2:03-cv-01555-SRB Document 111 Filed 08/03/2005 Page 2 of 3

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doubt that the peer review journals cited are well respected, this Court has no information that would convince it that the information in these peer review journals and in federal publications are necessarily facts that cannot reasonably be questioned. Additionally, as Defendants point out, the facts that Plaintiffs' request the Court judicially notice are susceptible to misinterpretation and overstatement. IT IS ORDERED denying Plaintiffs' Request for Judicial Notice. (Doc. 100).

DATED this 3rd day of August, 2005.

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