The doctrine of “judicial estoppel” is alive and fully applicable to maritime personal injury claims. In fact, recent case law suggests that the doctrine is expanding somewhat. Judicial estoppel can have a devastating effect on a plaintiff’s damages calculation and can sometimes be a complete bar to a lawsuit, leaving a longshoreman or Jones Act seaman with little more than an order of dismissal in their pocket. It is for these reasons that Blank Rome’s maritime litigation team regularly dives deeply into a plaintiff’s past for records containing contradictory statements that could limit or sink a pending claim.
Judicial Estoppel: The Basics
The doctrine of judicial estoppel serves to prevent a litigant from taking a position or asserting a claim in a court proceeding that is directly contrary to a statement made or position taken in a previous proceeding. The authority to apply the doctrine stems from the court’s inherent equitable authority to sanction malfeasance. The stated purpose of judicial estoppel is to protect the integrity of the court process, but the doctrine is also applied to prevent the commission of a fraud upon a defendant. Generally, judicial estoppel bars a litigant from asserting a position that is inconsistent with one he or she previously took before a court, but prior inconsistent statements made by the litigant in nonjudicial proceedings can give rise to judicial estoppel, as well.
Most federal circuits have a test, framework, or rubric for the doctrine’s application. The law in the Third Circuit, for example, sets out a typical test consisting of three requirements. First, the party being estopped must have taken two positions or made two statements that are irreconcilably inconsistent. Second, judicial estoppel should be applied only if a party changed or adapted his or her position in bad faith or with the intent “to play fast and loose with the court.” Third, the judicial estoppel remedy must be “tailored to address the harm identified” and applied only where a lesser sanction would not adequately redress the harm done by the litigant’s misconduct.
Judicial Estoppel: A Broader Application then Commonly Understood
Elements #2 and 3 of the Third Circuit test are fairly standard. Courts regularly require a showing of some conduct suggestive of bad faith or improper motive with respect to the inconsistent statements. And judicial estoppel will usually be applied in a way that is narrowly tailored to address the potential harm under the factual circumstances of the case. However, the requirement that a party must have taken two irreconcilably inconsistent positions is loosely defined, giving the courts some latitude in determining the types of statements and circumstances that qualify.
Courts have held, for example, that the timing of the inconsistent statements is not necessarily determinative. Therefore, both statements need not have been made during the course of the same pending lawsuit. Nor is it absolutely necessary for both statements to have been made in court proceedings. For example, prior statements made to local, state, and federal agencies, or to insurance companies, if sufficiently inconsistent with a later position being taken before a court, can give rise to a judicial estoppel. The fact that the prior inconsistent statement was not actually made by the plaintiff himself is not a problem either, if the statement was made at his/her direction or on his/her behalf. For example, a statement made by the plaintiff’s physician that the plaintiff has authorized or endorsed in some fashion (by behavior or practice) would qualify. Finally, it is not always necessary to prove that the plaintiff actually obtained some sort of benefit from making the prior inconsistent statement.
A Recent Blank Rome Judicial Estoppel Success
In defending a multi-million dollar claim, we recently convinced a federal district court judge in the Third Circuit to apply judicial estoppel against a Jones Act seaman. In that matter, a tug boat captain had filed a suit in which he alleged that an unseaworthy condition aboard his employer’s tugboat had caused injuries to his shoulder and back that would permanently disable him from all future maritime employment. During discovery, records were obtained from various sources pertaining to several previous Jones Act suits that the plaintiff had filed over his career. In those files, we located a 19-year old pretrial statement in which the plaintiff (via his counsel) had alleged that he had injured his back so severely that he would never again work as a mariner. In deposition, the plaintiff admitted to having settled that case for a significant sum.
We also obtained the plaintiff’s U.S. Coast Guard file, which contained copies of applications for renewal of his license. Each of the license renewal applications was accompanied by a declaration co-signed by the plaintiff and his family doctor to the effect that the plaintiff was currently physically capable of performing the duties of a mariner. Notably, the plaintiff’s most recent renewal application had been submitted ten months after the occurrence of the injury at issue in the current lawsuit, at a time when he was submitting Unfit for Duty slips to, and collecting maintenance and cure from, our client.
Armed with this evidence, we filed a motion for summary judgment asserting a two-pronged judicial estoppel argument. We first argued that the plaintiff could not have experienced a maritime career-ending injury twice. Because he had filed a statement with another federal court in 1993 claiming to have been permanently disabled from maritime work, he should be barred from seeking a second recovery for his future lost earnings. In the alternative, we argued that the declaration of medical fitness most recently submitted to the Coast Guard was directly contradictory to the claim of disability being made in his current Jones Act case, so he should be precluded from collecting damages for any prospective lost earnings after the date of his Coast Guard declaration.
Though not willing to preclude the plaintiff’s entire claim based on the 19-year old pretrial statement (due primarily to some potential ambiguity that would require consideration by a jury), the court did apply judicial estoppel based upon the inconsistent medical declaration made to the Coast Guard. The court found that the plaintiff was well aware of the inconsistency between his declaration to the Coast Guard and his position in the lawsuit and had provided no reasonable explanation. Therefore, a presumption of bad faith was appropriate and the imposition of judicial estoppel was necessary to prevent the perpetration of a fraud upon our client by means of the lawsuit.
A Practical Tip for Defending Jones Act and LHWCA Claims
We recommend digging deep during discovery by requesting access to any type of records in which a plaintiff may have made a statement about his physical or mental condition. Some areas to consider are the files of attorneys involved in prior lawsuits, documents in the possession of state and/or federal agencies that pertain to a plaintiff’s licensure, and insurance company files pertaining to applications for coverage or claims for disability benefits. Those sources of information may contain proof that a plaintiff made a statement or took a position that is contrary to a position being put forward in his pending lawsuit. If a past contradictory statement made by or on behalf of a plaintiff can be located via thorough, diligent, and creative discovery, it can be the basis of a strong motion for the invocation of the doctrine of judicial estoppel.