Defense Digest, Vol. 30, No. 2, June 2024

You Can’t Get Two Bites at the Apple – Or, Oh What a Tangled Web We Weave

Key Points: 

  • Judicial estoppel only requires that the party “successfully obtained a benefit by assertion of the position that she now seeks to dispute.” 
  • Expert testimony and closing arguments are sufficient for the purposes of application of judicial estoppel. 
  • Judicial estoppel applied even though different guardians had been appointed for minor-plaintiff in two different state actions.

In N.T. by and through Barrett v. Children’s Hospital of Philadelphia, 308 A.3d 1284 (Pa. Super. 2024), mom was pregnant with twins and was diagnosed with twin-to-twin transfusion syndrome (TTTS). This is a condition where abnormal communicating blood vessels in the placenta allow blood to circulate between fetuses, jeopardizing the survival of both. Mom lived in North Carolina and was referred to CHOP for possible selective laser photocoagulation of communicating vessels treatment (SLPVC). CHOP concluded that mom was not a candidate for the treatment based on ultrasounds interpreted by a Hospital of the University of Pennsylvania (HUP) radiologist.

Mom then went to Ohio to consult with Dr. Crombleholme, who performed the SLPVC at Cincinnati Children’s Hospital. Mom subsequently delivered her twins, and one had severe neurological deficits, while her sister was born healthy.

In 2011, the plaintiff initiated suit in the Philadelphia Court of Common Pleas against CHOP, the HUP radiologist, and Dr. Crombleholme. The claims were that Dr. Crombleholme improperly performed the procedure, that CHOP did not properly train Dr. Crombleholme while he was at CHOP, and that CHOP and the HUP radiologist had misdiagnosed the condition. In 2012, the Philadelphia Court dismissed the claims against Dr. Crombleholme due to lack of personal jurisdiction.

In 2013, the plaintiff started an action in Ohio against Dr. Crombleholme, seeking damages for the same injuries stated in the 2011 Philadelphia action. Therein, it was claimed that Dr. Crombleholme was liable for those injuries as a result of negligently performing the SLPVC. 

In 2016, a new action was filed on the minor-plaintiff’s behalf in Philadelphia against the CHOP and HUP defendants. At the same time, over the objections of the defendants, the 2011 action filed in Philadelphia was dismissed. In the 2016 action, the plaintiff sought damages for the same injures stated in the Ohio action. The complaint stated that the CHOP defendants misdiagnosed the condition of the fetuses and negligently failed to treat the TTTS. The complaint further stated that the HUP defendants misinterpreted the ultrasounds, and the CHOP defendants relied on that misinterpretation in their decision to not perform the SLPVC. Counsel for the minor-plaintiff was the same in the Ohio action and both Pennsylvania actions.

The Ohio action went to trial in 2017, and shortly before trial, the plaintiff amended her complaint to allege Dr. Crombleholme caused her injuries by “blind firing” the laser during the SLPVC, rather than firing at the vessels in the placenta to which it should have been directed. Further, the plaintiff claimed Dr. Crombleholme then made efforts to conceal the fact that the injuries were caused by his SLPVC. During the Ohio trial, the court ruled that there could be no reference to the pending Pennsylvania actions.

At the Ohio trial, the minor-plaintiff’s expert testified that her injuries were caused by firing the laser at healthy tissue during the SLPVC, damaging 30% of the placenta that was nourishing the minor-plaintiff. As a result, the minor-plaintiff’s injuries were hypoxic in nature and not caused by TTTS. The expert also testified that the minor-plaintiff’s brain was normal and uninjured prior to the SLPVC, and that, had the SLPVC been performed properly, she would have been born uninjured.

At the close of the Ohio trial, while the jury was deliberating, the case settled for $7 million. The settlement agreement stated that it did not apply to the claims against CHOP and HUP. Following settlement of the Ohio action, the Pennsylvania defendants were allowed to file amended answers, raising the affirmative defense of judicial estoppel. The defendants then filed motions to dismiss all claims because the plaintiff was judicially estopped from proceeding with her claims based on the resolution of the Ohio actions. These motions to dismiss were granted, and the plaintiff appealed.

On appeal, the Pennsylvania Superior Court wrote that judicial estoppel is an equitable doctrine to allow the courts to prevent litigants from “playing fast and loose with the judicial system by adopting whatever position suits the moment.” It bars a party from asserting inconsistent positions. The defendants pointed out that, in the Pennsylvania action, the plaintiff stated that the cause of the injury was the failure of the CHOP and HUP defendants to perform the SLPVC when she arrived, and the twelve-day delay between that arrival and the performance of the SLPVC in Ohio caused her brain damage. The defendants continued by pointing out this position was completely contrary to the position taken by the plaintiff in the Ohio action, namely that the minor-plaintiff suffered no brain damaged from the TTTS and that the sole cause of her injury was the negligent performance of the SLPVC in Ohio. The appellate court agreed that these positions were inconsistent and affirmed the granting of the motions to dismiss.

The plaintiff asserted that judicial estoppel did not apply. She argued: (1) judicial estoppel requires the “successful maintenance of an inconsistent position,” and a settlement, rather than determination by a court or jury, does not satisfy this element; (2) the expert testimony and argument of counsel are not a basis for judicial estoppel; and (3) the plaintiffs in the Ohio and Pennsylvania actions were not the same.

The Superior Court handily dismissed all three assertions by the plaintiff. With regard to the first argument, the court found that judicial estoppel only requires that the party “successfully obtained a benefit by assertion of the position that she now seeks to dispute and does not require that the issues have been actually litigated to a conclusion or determined by a court or other decision maker on the merits.” In N.T. v. CHOP, the appellate court found that this was clearly true because the minor-plaintiff obtained a $7 million settlement in Ohio by asserting Dr. Cromleholme was the sole cause of the injury. The claim that Dr. Crombleholme was the sole cause of the injury was irreconcilably inconsistent with the claims in the Pennsylvania action.

The second and third of the plaintiff’s arguments were easier to address. The appellate court found that expert testimony and closing arguments are sufficient for the purposes of judicial estoppel—to prevent the abuse of the judicial process by taking inconsistent positions before the courts. The final argument, that the plaintiffs were not the same simply because different guardians had been appointed for the minor-plaintiff in the two different state actions, held no water because the real party in interest was the minor-plaintiff, who was the same in both actions.

The moral of the story is choose your battles well, as you may only live one day to fight.

*Jeff works in our Philadelphia, Pennsylvania, office. 


Defense Digest, Vol. 30, No. 2, June 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact