Rullo v. Abb, Inc. (2023)

Our plain-English summary of Rullo v. Abb, Inc. (New York Supreme Court, December 12, 2023).

Giuseppe Rullo and his wife sued many companies over his lung cancer. He says he was exposed to asbestos as a mechanic at Consolidated Edison of New York. Another plaintiff, Paul Scandaliato, has a separate New York County case against many of the same defendants. Rullo asked the court to try the two cases together. Both men worked as Con Ed mechanics on similar equipment, including boilers, valves, pumps and gaskets. Rullo says his exposure ran from 1969 to 1980 and Scandaliato's from 1963 to 1980. Both are living with lung cancer, both cases are at the same stage of discovery, and the same lawyers represent both. The defendants argued that the cases had too little in common, that a joint trial would violate due process, and that it would not save court resources. The court applied the factors from Malcolm v National Gypsum and the court's Case Management Order. It found seven of the eight factors met. It also said safeguards could prevent juror confusion. The court granted the motion for a joint trial.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court
• Decided: December 12, 2023
• Citation: 2023 NY Slip Op 34365(U)
• Stage: Other
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court granted plaintiff Giuseppe Rullo's motion for a joint trial with Scandaliato v ABB, Inc., over the opposition of Triangle PWC, Kennedy Electrical Supply and the other defendants.

What the court held. Under the Case Management Order and the Malcolm factors, two asbestos cases may be joined for trial when enough factors are met; not every factor must be present.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Giuseppe Rullo: lung cancer

• Paul Scandaliato: lung cancer

Who	Work	Where	When	Products
Giuseppe Rullo	mechanic (power plants and utilities)	Consolidated Edison Company of New York, New York, New York	1969-1980	gaskets and packing
Paul Scandaliato	mechanic (power plants and utilities)	Consolidated Edison Company of New York, New York, New York	1963-1980	gaskets and packing

The defendants

• Triangle PWC, Inc.
• Kennedy Electrical Supply Corp. (supplier)
• Velan Valve Corp. (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Malcolm v. National Gypsum Co. (U.S. Court of Appeals, Second Circuit, 1993). The Second Circuit reversed the $226,038 judgment that Roberta Kranz, executrix of Lee Lewis's estate, won against Keene Corporation, and remanded for a new trial because consolidating 48 asbestos cases for trial was improper and prejudiced Keene.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

2023 NY Slip Op 34365(U)

GIUSEPPE RULLO, MARIA RULLO, Plaintiff,

v. ABB, INC, AIR & LIQUID SYSTEMS CORPORATION, ARMSTRONG INTERNATIONAL, INC.,

AURORA PUMP COMPANY, BEAZER EAST INC, BELDEN WIRE & CABLE COMPANY, LLC, BW/IP,

INC., CLARK-RELIANCE CORPORATION, CLEAVER-BROOKS INC., CONVAL, INC., COPERS-

VULCAN INC., CRANE CO., INDIVIDUALLY AND AS, CRANE ENVIRONMENTAL, INC., CRANE

PUMPS & SYSTEMS, INC., CRESCENT ELECTRIC SUPPLY COMPANY, INC. OF NEW YORK,

CROSBY VALVE, LLC, DAV CORPORATION, EATON CORPORATION, ELLIOTT COMPANY,

ERICSSON, INC., FLOWSERVE US, INC., FMC CORPORATION, GARDNER DENVER, INC.,

GENERAL CABLE CORPORATION, GEROSA INCORPORATED, GOULD ELECTRONICS, INC,

GOULD PUMPS, LLC, GRAYBAR ELECTRIC COMPANY INC., GRINNELL LLC, ITT LLC,

INDIVIDUALLY, DOING BUSINESS AS AND SUCCESSOR TO ITT CORPORATION, BELL &

GOSSETT COMPANY AND/OR BELL & GOSSETT DIVISION, FLOJET CORPORATION, THE

HOFFMAN SPECIALTY MANUFACTURING COMPANY, ITT FLUID PRODUCTS CORPORATION, J.R.

CLARKSON COMPANY, THE, LLC, JENKINS BROS., JOHN E. POTENTE & SONS, INC., KENNEDY

ELECTRICAL SUPPLY CORP., MINE SAFETY APPLIANCES COMPANY, LLC, MUNACO SEALING

SOLUTIONS, NASH ENGINEERING COMPANY, THE, OKONITE COMPANY, INC., THE, OLYMPIC

GLOVE AND SAFETY CO., INC., ROCKWELL AUTOMATION, INC., RSCC WIRE & CABLE LLC,

SCHNEIDER ELECTRIC USA, INC., SIEMENS INDUSTRY, INC., SPIRAX SARCO, INC, TREADWELL

CORPORATION, TRIANGLE PWC, INC., UNION CARBIDE CORPORATION, VELAN VALVE

CORPORATION., VIACOMBCBS, INC., VIKING PUMP INC., WARREN PUMPS LLC, WEIL-MCLAIN,

WEIR VALVES & CONTROLS USA, INC., WILLIAM POWELL COMPANY, THE, YUBA HEAT

TRANSFER LLC, ZY-TECH GLOBAL INDUSTRIES, INC., JOHN DOE, Defendant.

Index No. 190272/2020, Motion Seq. No. 001.

Motion October 19, 2023.

December 12, 2023.

Supreme Court, New York County.

DECISION + ORDER ON MOTION

ADAM SILVERA, J.S.C.

It is ordered that plaintiff's order to show cause seeking a joint trial is granted for the reasons set forth below. Here, plaintiff moves for a joint trial of two actions. Plaintiff seeks to consolidate the instant action with Scandaliato v ABB, Inc., etal., 190085/2021. Defendants oppose and plaintiff replies.

The Case Management Order dated June 20, 2017 (hereinafter referred to as the "CMO") states that "[t]wo cases may be joined for trial where plaintiff demonstrates that joinder is warranted under Malcolm v National Gypsum Co. (995 F2d 346), and New York State cases interpreting Malcolm. Malcolm and its progeny list factors to measure whether cases should be joined; it is not necessary under Malcolm that all such factors be present to warrant joinder." CMO, § XXV. B. The factors to be considered under Malcolm are "(1) common worksites; (2) similar occupation; (3) similar time of exposure; (4) type of disease; (5) whether plaintiffs were living or deceased; (6) status of discovery in each case; (7) whether all plaintiffs were represented by the same counsel; and (8) type of cancer alleged". Malcolm, 955 F2d at 350-351. The United States Court of Appeals, 2nd Circuit, further noted that "[c]onsolidation of tort actions sharing common questions of law and fact is commonplace. This is true of asbestos-related personal injury cases as well." Malcolm. id. at 350 (internal quotations and citations omitted).

Plaintiff argues that consolidation of the cases for joint trial as specified above is appropriate. Plaintiff contends that both plaintiffs, Giuseppe Rullo and Paul Scandaliato, were exposed to asbestos during the course of their employment as mechanics at Consolidated Edison Company of New York ("Con Ed"), working on similar equipment and machinery; i.e. boilers, valves, pumps, and gaskets. Plaintiff also argues that Mr. Scandaliato was exposed to asbestos from 1963 to 1980 and Mr. Rullo was exposed from 1969 through 1980. Plaintiff further contends that both plaintiffs developed lung cancer and are currently living with such illness. Moreover, both actions are in the same phase of discovery and both plaintiffs are represented by the same counsel.

Defendants Triangle PWC, Inc. ("Triangle") and all remaining defendants jointly oppose, except for Kennedy Electrical Supply Corp. ("Kennedy") who separately opposes, and defendant Velan Valve Corp., who joins in both Triangle's and Kennedy's respective opposition papers.

Opposing defendants argue that plaintiff failed to meet the burden to establish sufficient commonalities amongst the two actions, consolidation of the two actions for trial would violate due process, and it would be contrary to judicial economy. Here, reviewing all the Malcolm factors, the Court finds, and it is undisputed, that plaintiffs, Mr. Rullo and Mr. Scandaliato, were both exposed to asbestos through their employment and their handling of similar materials and equipment. Moreover, Mr. Rullo and Mr. Scandaliato were both Con Ed mechanics for similar durations. Additionally, both plaintiffs developed lung cancer from which both plaintiffs are currently living with, the discovery in these actions is in the same phase, and the plaintiffs have the same counsel. Thus, seven of the eight Malcolm factors have been satisfied.

There are common issues of law and fact in both actions. The CMO explicitly states that the Court may order joinder of cases based upon the Malcolm factors and that not all such factors must be present. Here, the Malcolm factors support joinder of the actions. As Hon. Manuel Mendez previously held, "[j]udicial economy would be served by consolidating the actions of deceased plaintiffs with mesothelioma and whose exposure was related to their work on similar products.... In these case consolidations: (1) the central issue is the same; (2) it is the same Plaintiffs' counsel in the actions; (3) the Plaintiffs suffered from the same disease; (4) the Plaintiffs in the group are all deceased; and (5) the Plaintiffs were exposed ... in a similar manner." Haley v ABB, Inc., 190150/2018, mot. 008, Decision/Order dated December 11, 2019, p. 3. Moreover, the CMO specifically permits the joint trial of two actions where, as here, three or more of the Malcolm factors have been met and the two plaintiffs share the same disease. Adequate safeguards can be put in place during the trial to avoid juror confusion. Thus, plaintiffs motion seeking a joint trial is granted as to the instant action with Scandaliato v ABB, Inc., etal., 190085/2021.

Accordingly, it is

ORDERED that a joint trial is granted as to Rullo et al., v ABB, Inc., etal., 190272/2020, and Scandaliato v ABB, Inc., etal., 190085/2021; and it is further

ORDERED that, within thirty days of entry, plaintiffs shall serve a copy of this order upon all parties, together with notice of entry.

This constitutes the Decision/Order of the Court.

Sources

• The opinion on Google Scholar
• The opinion on CourtListener
• New York asbestos laws
• New York asbestos exposure sites