Supreme Court of New York, New York County (NYCAL)
In this asbestos action, the plaintiff moved for a joint trial of two actions: Rullo v. ABB. Inc., et al. and Scandaliate v. ABB Inc., et al. In NYCAL. Two cases may be joined for trial where the plaintiff demonstrates that joinder is warranted under Malcum v. National Gypsum Co., 995 F.2d 346 (2nd Cir. 1993). Under Malcum, the following factors are to be considered: (1) common worksites; (2) similar occupation; (3) similar times 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) the type of cancer alleged.
Here, the plaintiff argues that consolidation of the cases for joint trial is appropriate, as both plaintiffs, Mr. Rullo and Mr. Scandaliate, were exposed to asbestos during the course of their employment as mechanics at Consolidated Edison Company of New York (Con Ed) and worked on similar equipment and machinery (i.e., boilers, valves, pumps and gaskets). Moreover, Mr. Rullo was allegedly exposed to asbestos between 1969 and 1980, while Mr. Scandaliate was allegedly exposed between 1963 and 1980. Further, Mr. Rullo and Mr. Scandaliate were diagnosed with lung cancer and are currently living. Finally, both actions are in the same phase of discovery and both plaintiffs are represented by the same counsel.
In response, opposing defendants argued that the plaintiff failed to meet the burden to establish sufficient commonalities amongst the two actions, consolidation of the two actions for trial could violate due process, and that it could be contrary to judicial economy.
Ultimately, the court determined that seven of the eight Malcolm factors were satisfied. Given the common issues of law and fact in both actions, judicial economy would be served by consolidating the actions, and that adequate safeguards can be put in place during trial to avoid juror confusion. As such, the court granted the plaintiff’s motion for consolidation.
Read the full decision here.
