J-A28033-23
2024 PA Super 14
N.T., A MINOR, BY AND THROUGH : IN THE SUPERIOR COURT OF MARY JANE BARRETT, ESQUIRE, : PENNSYLVANIA GUARDIAN OF THE ESTATE OF N.T. : : Appellant : : : v. : : No. 3015 EDA 2022 : THE CHILDREN'S HOSPITAL OF : PHILADELPHIA, STEPHANIE MANN, : M.D., MARK P. JOHNSON, M.D., THE : HOSPITAL OF THE UNIVERSITY OF : PENNSYLVANIA AND STEVEN C. : HORII, M.D. :
Appeal from the Order Entered November 10, 2022 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 160301791
BEFORE: OLSON, J., STABILE, J., and COLINS, J.*
OPINION BY COLINS, J.: FILED JANUARY 25, 2024
Appellant, N.T. (Minor), by and through Mary Jane Barrett, Esquire,
guardian of her estate, appeals from an order of the Philadelphia County Court
of Common Pleas dismissing her medical malpractice action against the
Children’s Hospital of Philadelphia (CHOP) and CHOP physicians Drs.
Stephanie Mann and Mark P. Johnson (collectively, the CHOP defendants) and
the Hospital of the University of Pennsylvania (HUP) and HUP radiologist Dr.
Steven C. Horii (collectively, the HUP defendants) on the ground that Minor’s
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* Retired Senior Judge assigned to the Superior Court. J-A28033-23
claims are barred by judicial estoppel. For the reasons set forth below, we
affirm.
This case is one of three cases filed on Minor’s behalf seeking damages
for the same injuries that she suffered in utero prior to her birth. In December
2007, when Minor’s mother (Mother) was pregnant with Minor and her twin
sister, Mother was diagnosed with twin-to-twin transfusion syndrome (TTTS)
by her treating physicians in North Carolina. Complaint ¶¶29-34. TTTS is a
condition where abnormal communicating blood vessels in the placenta allow
blood to circulate between the fetuses that a woman is carrying, jeopardizing
the survival of both fetuses. Id. ¶¶2-3. Mother’s treating physicians referred
her to CHOP for possible selective laser photocoagulation of communicating
vessels treatment (SLPCV), and Mother was seen at CHOP on January 2, 2008.
Id. ¶¶35-36. The CHOP defendants concluded that Mother was not a
candidate for SLPCV, based on ultrasounds that were interpreted by the HUP
radiologist as showing an infection, and did not perform SLPCV on Mother. Id.
¶¶36-41. Mother then went to an Ohio physician, Dr. Timothy Crombleholme,
who performed SLPCV on Mother at Cincinnati Children’s Hospital in
Cincinnati, Ohio on January 14, 2008. Id. ¶¶9, 45-47. Minor was born in
April 2008 with severe neurological deficiencies and her twin sister was born
healthy with no neurological injury. Id. ¶¶10, 49-51.
On January 26, 2011, an action docketed as Case No. 110103674 (the
2011 action) was brought on Minor’s behalf in the Philadelphia County Court
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of Common Pleas against CHOP, Dr. Mann, and Dr. Crombleholme. The 2011
action sought damages for severe and permanent neurological injuries
suffered by Minor, including cerebral palsy, microcephaly, optic atrophy,
immature retinas, blindness, bilateral brain hemorrhages, a seizure disorder,
and a near complete absence of a cerebellum, and alleged that Dr.
Crombleholme negligently performed the SLPCV and that his SLPCV caused
those injuries. 2011 Action Amended Complaint ¶¶8-9, 70-73, 76-77, 96-
104. The complaint in the 2011 action further alleged that CHOP was liable
for the injuries caused by Dr. Crombleholme because it allegedly inadequately
trained him when he was a physician at CHOP and that CHOP and Dr. Mann
were liable for Minor’s injuries because they allegedly misdiagnosed the
condition of the fetuses and negligently failed to treat the TTTS. 2011 Action
Amended Complaint ¶¶8-9, 52-53, 78-95.
On December 21, 2012, the court dismissed Minor’s claims against Dr.
Crombleholme for lack of personal jurisdiction. The 2011 action continued
against CHOP and Dr. Mann and in December 2014, a second amended
complaint was filed adding Dr. Johnson as a defendant and alleging that the
CHOP defendants were liable for Minor’s injuries because they misdiagnosed
the condition of the fetuses and negligently failed to treat the TTTS. 2011
Action Second Amended Complaint ¶¶46-72. This amended complaint also
alleged that Dr. Crombleholme’s SLPCV did not properly treat Minor’s TTTS.
Id. ¶41. On May 2, 2016, the trial court, over the CHOP defendants’
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objections, granted the plaintiff’s motion to discontinue the 2011 action
without prejudice.
In 2013, while the 2011 action was pending, an action docketed as Case
No. 1:13-cv-230 (the Ohio action) was filed on Minor’s behalf against Dr.
Crombleholme and Cincinnati Children’s Hospital (the Ohio defendants) in
federal district court in Ohio. The complaint in the Ohio action sought
damages for the same injuries to Minor as the 2011 action and alleged that
the Ohio defendants were liable for those injuries because Dr. Crombleholme
negligently performed the SLPCV and his SLPCV caused Minor’s injuries. Ohio
Action Complaint ¶¶3, 71-107. Counsel for Minor in the Ohio action was the
same counsel who represented Minor in the 2011 action.
On March 18, 2016, this action, Case No. 160301791, was filed on
Minor’s behalf against the CHOP defendants and the HUP Defendants in the
Philadelphia County Court of Common Pleas. The complaint in this action
sought damages for the same injuries to Minor as the 2011 action and the
Ohio action. Complaint ¶¶50-51. This complaint alleged that the CHOP
defendants were liable for Minor’s injuries because they misdiagnosed the
condition of the fetuses and negligently failed to treat the TTTS. Id. ¶¶52-
75. The complaint alleged that the HUP defendants were liable for Minor’s
injuries on the ground that they allegedly failed to properly interpret Mother’s
ultrasounds and that the CHOP defendants relied on the HUP defendants’
misinterpretation of the ultrasounds in their diagnoses and decision not to
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perform SLPCV. Id. ¶¶36-44, 76-91. Counsel for Minor in this action is the
same counsel who represented Minor in the Ohio action and the 2011 action.
The Ohio action went to trial in October 2017. Shortly before trial, Minor
successfully moved to amend the Ohio complaint to add a claim for punitive
damages based on the claims that her injuries were caused by Dr.
Crombleholme’s “blind firing” of the laser in performing the SLPCV, rather than
directing it at vessels in the placenta at which it was supposed to be directed,
and that Dr. Crombleholme took efforts to conceal the fact that her injuries
were caused by his SLPCV. Ohio Action 9/28/17 Order at 1-3, 5-10. Minor
also sought to exclude all reference to the present action from the trial of the
Ohio action and the Ohio court ruled that the Ohio defendants could not
mention this action in their opening statements. Ohio Action N.T., 10/11/17,
at 5-11. At the trial of the Ohio action, Minor’s medical expert on causation
testified that Dr. Crombleholme caused Minor’s injuries by firing the laser at
healthy placenta tissue multiple times during the SLPCV and damaging 30%
of the placenta that was nourishing Minor and testified that Minor’s injuries
were caused by hypoxic injury from the placental damage and not by TTTS.
Ohio Action N.T. Trial, 10/16/17 a.m., at 113-15; Ohio Action N.T. Trial,
10/16/17 p.m., at 60-61, 65-66, 74, 77-78; Ohio Action N.T. Trial, 10/17/17
a.m., at 64. Minor’s expert further testified that Minor’s brain was normal and
uninjured until the SLPCV was performed, that the TTTS was a Stage 2 when
the SLPCV was performed, and that Minor’s development would have been
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normal and she would have had no brain damage if the SLPCV had been
properly performed when it was done on January 14, 2008. Ohio Action N.T.
Trial, 10/16/17 p.m., at 60-62, 64, 74; Ohio Action N.T. Trial, 10/17/17 a.m.,
at 63-64; Ohio Action N.T. Trial, 10/25/17, at 54. In addition, Minor’s counsel
argued to the jury that Minor had no brain injury when she came under Dr.
Crombleholme’s care, that she would have suffered no injury if he had
properly performed the SLPCV, and that her injury was caused by Dr.
Crombleholme damaging 30% of Minor’s placenta and was not caused by
TTTS. Ohio Action N.T. Trial, 10/13/17, at 11; Ohio Action N.T. Trial,
10/26/17, at 15-18.
While the jury was deliberating, Minor’s claims against the Ohio
defendants were settled for $7 million. Ohio Action Settlement and Release
Agreement at 1. This settlement agreement provided that it did not apply to
claims against the CHOP defendants and HUP defendants and that the plaintiff
agreed “to refrain from making disparaging or critical statements about the
care provided to [Minor] or [Mother]” by the Ohio defendants. Id. at 1, 5.
This settlement was approved by a probate court in Ohio. Probate Court
Docket at 3.
Following the settlement of the Ohio action, the CHOP defendants and
HUP defendants were permitted to file and filed amended answers in this
action pleading as new matter that Minor’s claims were barred by judicial
estoppel based on the Ohio action and settlement. CHOP Defendants’
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Amended Answer and New Matter ¶¶106, 108; HUP Defendants’ Amended
Answer and New Matter ¶¶106, 108. On August 24, 2022, the CHOP
defendants and the HUP defendants filed motions seeking dismissal of all
claims against them in this action on the grounds, inter alia, that Minor’s
claims were barred by judicial estoppel.1 On November 10, 2022, the trial
court granted both motions and dismissed the action on the grounds that it
was barred by judicial estoppel. Trial Court Order, 11/10/22; Trial Court
Opinion, 11/10/22, at 4-7. This timely appeal followed.
Appellant presents the following single issue for our review:
Was it an error of law to dismiss the underlying action on judicial estoppel grounds?
Appellant’s Brief at 4. The CHOP defendants and HUP defendants argue both
that the trial court correctly concluded that this action was barred by judicial
estoppel and that the dismissal can also be affirmed on alternative grounds.
Whether an action is barred by judicial estoppel is a question of law. Widener
University v. Estate of Boettner, 726 A.2d 1059, 1061-62 (Pa. Super.
1999). Our standard of review of this issue is therefore de novo, and our
scope of review is plenary. Buffalo Township v. Jones, 813 A.2d 659, 664
n.4 (Pa. 2002).
1 Prior motions seeking summary judgment had previously been denied by another trial court judge. Appellant, however, did not raise the coordinate jurisdiction rule as an issue in her brief and any claim that the dismissal of this action violated the coordinate jurisdiction rule is therefore waived. Pa.R.A.P. 2116(a); In re R.A.M.N., 230 A.3d 423, 431 (Pa. Super. 2020).
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“Judicial estoppel is an equitable, judicially-created doctrine designed to
protect the integrity of the courts by preventing litigants from ‘playing fast
and loose’ with the judicial system by adopting whatever position suits the
moment.” Sunbeam Corp. v. Liberty Mutual Insurance Co., 781 A.2d
1189, 1192 (Pa. 2001) (quoting Gross v. City of Pittsburgh, 686 A.2d 864
(Pa. Cmwlth. 1996)). Judicial estoppel bars a party from asserting a position
in litigation that is inconsistent with a position that the party previously
successfully maintained with respect to the same legal and factual issue. In
re Adoption of S.A.J., 838 A.2d 616, 620 (Pa. 2003); Grabowski v.
Carelink Community Support Services, Inc., 230 A.3d 465, 472 (Pa.
Super. 2020); Black v. Labor Ready, Inc., 995 A.2d 875, 878 (Pa. Super.
2010). “The purpose of judicial estoppel is ‘to uphold the integrity of the
courts by preventing parties from abusing the judicial process by changing
positions as the moment requires.’” Adoption of S.A.J., 838 A.2d at 621
(quoting Trowbridge v. Scranton Artificial Limb Co., 747 A.2d 862 (Pa.
2000)).
Here, the position taken on Minor’s behalf in the Ohio action was
inconsistent and incompatible with the liability theories asserted against the
CHOP defendants and the HUP defendants in this action. In this action, Minor’s
claim was that the TTTS went from Stage 2 to a more serious Stage 3 at the
time that she was treated in Ohio and that the untreated TTTS during the 12-
day delay between Mother’s arrival at CHOP on January 2, 2008 and the
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performance of the SLPCV in Ohio on January 14, 2008 was a cause of her
brain damage. Appellant’s Brief at 5-7, 9; Kontopoulos Expert Report at 3;
Rotenberg Expert Report at 2; Yohay Expert Report at 3; Abrahams Expert
Report at 4; Reznick Expert Report at 2. This is directly contrary to the
position taken on Minor’s behalf in the Ohio action that Minor suffered no brain
damage from the delay or from TTTS, that the TTTS was still Stage 2 when
Minor was seen in Ohio, and that the sole cause of Minor’s brain damage was
the damage to 30% of Minor’s placenta from the faulty SLPCV and resultant
hypoxia from that damage. Ohio Action N.T. Trial, 10/13/17, at 11; Ohio
Action N.T. Trial, 10/16/17 a.m., at 113-15; Ohio Action N.T. Trial, 10/16/17
p.m., at 60-62, 64-66, 74, 77-78; Ohio Action N.T. Trial, 10/17/17 a.m., at
63-64; Ohio Action N.T. Trial, 10/25/17, at 54; Ohio Action N.T. Trial,
10/26/17, at 15-18. The inconsistent position was successfully maintained in
the Ohio action, as Minor received $7 million in that action as a result of the
claim that the SLPCV caused her brain injury.
While there may be more than one cause of an injury, that cannot
reconcile the inconsistent positions here. Minor’s claims in this action were
not consistent with a claim that her injuries were caused by both Defendants’
conduct and by the Ohio SLPCV. None of Minor’s expert reports in this action
claimed that delay and TTTS were a contributing cause of Minor’s brain
damage in addition to or in conjunction with damage to the placenta from the
SLPCV. None of the experts in this action opined that delay causes an
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increased difficulty or risk of errors or harm to healthy tissue in performing
SLPCV. Moreover, Minor’s experts in this action specifically based their
opinions that the delay in treating the TTTS was a cause of Minor’s injuries on
the conclusion that the brain damage was caused by hypoxia and the absence
of another source of hypoxia and on the opinion that the SLPCV “was
completed uneventfully.” Rotenberg Expert Report at 2; Yohay Expert Report
at 2-3.
Appellant argues that judicial estoppel cannot apply (1) because a
settlement, rather than a determination by a court or jury, allegedly cannot
satisfy the element of successful maintenance of the inconsistent position; (2)
because expert testimony and closing arguments at trial allegedly are not a
basis for judicial estoppel; and (3) because the plaintiffs in the Ohio action
and this action were allegedly not the same. None of these arguments is
meritorious.
With respect to the first of these arguments, the law is presently unclear
whether successful maintenance of the prior position is a mandatory element
of judicial estoppel or only a factor that favors application of judicial estoppel.
In Adoption of S.A.J., the Pennsylvania Supreme Court noted that
“[w]hether successful maintenance of the prior inconsistent position of litigant
is strictly necessary to implicate judicial estoppel in every case, or whether
success should instead be treated as a factor favoring the doctrine’s
application, is the subject of some uncertainty” and did not decide the issue
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because successful maintenance was shown. 838 A.2d at 620-21 n.3. See
also Yoder v. McCarthy Construction, Inc., 291 A.3d 1, 15-16 n.19 (Pa.
Super. 2023) (noting that this question remains open).
Assuming that successful maintenance is an essential element of judicial
estoppel, however, it is satisfied here. Judicial estoppel requires only that the
party successfully obtained a benefit by assertion of the position that she now
seeks to dispute and does not require that the issue have been actually
litigated to conclusion or determined by a court or other decision maker on
the merits. Adoption of S.A.J., 838 A.2d at 623 & n.4; Grabowski, 230
A.3d at 472. See also Black, 995 A.2d at 876, 878-79 (defendant was
judicially estopped from claiming workers’ compensation immunity where it
obtained dismissal of the plaintiff’s claim for workers’ compensation benefits
by a stipulation that another company was the employer); Widener, 726 A.2d
at 1062 (beneficiary’s acceptance of bequest from one estate that it received
based on factual predicate barred it from contesting that fact in second
estate). In Adoption of S.A.J., the Supreme Court specifically held that
judicial estoppel does not require an adjudication and ruled that a party was
judicially estopped from claiming paternity where he had obtained the benefit
of not paying child support from his earlier denial of paternity by causing the
child’s mother to cease pursuing a child support action. 838 A.2d at 618, 622-
23 & n.4. Contrary to Appellant’s mischaracterization, there was no ruling by
a decision maker on the child support in Adoption of S.A.J.; rather, the
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proceedings were terminated by the opposing party’s withdrawal of the child
support complaint and a dismissal for lack of activity. Id. at 618.
A settlement that results in a payment to the plaintiff can constitute
successful maintenance of a prior litigation position that supports judicial
estoppel. Yoder, 291 A.3d at 16-17; Grabowski, 230 A.3d at 473-74; Ligon
v. Middletown Area School District, 584 A.2d 376, 379-80 (Pa. Cmwlth.
1990). In Yoder and Grabowski, this Court held that plaintiffs who obtained
workers’ compensation benefits through a settlement, a compromise and
release agreement that was approved by a workers’ compensation judge,
were judicially estopped from disputing their employment status. Yoder, 291
A.3d at 16-17; Grabowski, 230 A.3d at 473-74. In Ligon, the
Commonwealth Court held that a plaintiff was barred by judicial estoppel from
asserting that a defendant with whom he had entered into a settlement at trial
was immune from suit. 584 A.2d at 379-80. Here, Minor received a $7 million
settlement that was approved by a probate court as a result of the assertions
in the Ohio action that Dr. Crombleholme’s SLPCV caused her brain injuries.
Appellant argues that Associated Hospital Service of Philadelphia
v. Pustilnik, 439 A.2d 1149 (Pa. 1981); Marazas v. W.C.A.B. (Vitas
Healthcare Corp.), 97 A.3d 854 (Pa. Cmwlth. 2014); and Philadelphia
Suburban Water Co. v. Pennsylvania Public Utility Commission, 808
A.2d 1044 (Pa. Cmwlth. 2002) (en banc), bar judicial estoppel based on a
settlement. We do not agree.
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In Pustilnik, the Pennsylvania Supreme Court held only that a
settlement did not constitute successful maintenance of a claim as to the
amount of a subrogee’s claim and therefore did not estop the settling plaintiff
from disputing the amount of the subrogee’s claim, 439 A.2d at 1151, not that
a settlement can never constitute successful maintenance of a position. Here,
in contrast to Pustilnik, the issue on which Minor was estopped was the cause
of her injuries, not the amount of her damages, and receiving $7 million is
clearly successful maintenance of the claim that Dr. Crombleholme’s SLPCV
caused those injuries. Even if the settlement is consistent with there being
more than one cause of Minor’s brain damage or with the contention that some
damage occurred before the SLPCV because the settlement was not for the
full damages claimed, the settlement is irreconcilably inconsistent with the
claim on which this action was based that the SLPCV did not cause Minor’s
brain damage.
The language in Marazas and Philadelphia Suburban Water Co. that
settlement of a claim does not constitute successful maintenance of the prior
position, Marazas, 97 A.3d at 860; Philadelphia Suburban Water Co., 808
A.2d at 1161, is dicta. Neither Marazas nor Philadelphia Suburban Water
Co. involved a settlement. Marazas rejected judicial estoppel on the ground
that the opposing party’s inducing the plaintiff to drop a claim was insufficient
to support judicial estoppel. 97 A.3d at 860-61. That ruling is inconsistent
with the Supreme Court’s decision in Adoption of S.A.J. and is therefore not
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good law.2 In Philadelphia Suburban Water Co., judicial estoppel did not
apply because the subject matter of the two proceedings was different. 808
A.2d at 1161-62.
Appellant’s second argument fails for two reasons. First, the contention
that expert testimony and closing arguments are not sufficient to support
judicial estoppel is incorrect. The purpose of judicial estoppel is to prevent
abuse of the judicial process by taking inconsistent positions before courts.
Adoption of S.A.J., 838 A.2d at 621; Sunbeam Corp., 781 A.2d at 1192;
Grabowski, 230 A.3d at 472. Such an abuse can occur by presenting sworn
expert testimony in court in support of a position or making factual arguments
in court.
While there are statements in Commonwealth Court decisions that
estoppel requires verified or sworn statements, Nagle v. TrueBlue, Inc., 148
A.3d 946, 954 (Pa. Cmwlth. 2016); Marazas, 97 A.3d at 860, those decisions
are not binding on this Court. Riverview Carpet & Flooring, Inc. v.
Presbyterian SeniorCare, 299 A.3d 937, 977 n.29 (Pa. Super. 2023);
Beaston v. Ebersole, 986 A.2d 876, 881 (Pa. Super. 2009) (en banc).
Because the Commonwealth Court’s statements appear to confuse the
requirements for judicial estoppel with the requirements for judicial
admissions, we do not find those decisions persuasive. The cases concerning
2 As discussed below, decisions of the Commonwealth Court are not binding
on this Court.
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expert testimony that Appellant cites, Millcreek Township School District
v. Erie County Board of Assessment Appeals, 140 A.3d 737 (Pa. Cmwlth.
2016), and Kirk v. Raymark Industries, Inc., 61 F.3d 147 (3d Cir. 1995),
address the issue of whether statements by experts are admissible as
admissions of the party that retained them or other exceptions to the hearsay
rule and do not involve judicial estoppel. The authority that Appellant cites
concerning closing arguments address whether arguments of counsel are
evidence or judicial admissions, not whether closing arguments can support
judicial estoppel.
Our conclusion that the expert testimony and argument presented at
trial can constitute a basis for judicial estoppel is supported by a decision from
Illinois involving a situation very similar to this case, which we find persuasive.
In Smeilis v. Lipkis, 967 N.E.2d 892 (Ill. App. 2012), the court specifically
rejected the claim that judicial estoppel cannot be based on expert testimony
and found judicial estoppel where the plaintiffs obtained a substantial
settlement based on expert testimony that was inconsistent with their later
position. In Smeilis, the plaintiffs, in the first of two actions that they filed
for the same injury, submitted an expert opinion that the hospital that had
initially treated the patient was negligent in failing to diagnose the patient and
perform immediate surgery, that the patient would not have suffered most of
her neurological damage if the hospital performed the surgery while she was
under its care, and that surgery performed when the patient first came under
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a later physician’s care would not have altered the severity of the patient’s
neurological damage. Id. at 895-97. Following discovery, including the
deposition of this expert, plaintiffs settled their claims against the hospital for
$3 million. Id. at 896-97. The plaintiffs then filed a second suit against the
physician who had later treated the patient, basing that action on the opinion
of a different expert who opined that the hospital was not negligent and that
if surgery had been performed promptly when the patient came under the
later physician’s care, she would not have suffered as much neurological
damage. Id. at 897. The court held that these conflicting expert opinions
constituted the taking of inconsistent positions, that the $3 million settlement
constituted a successful outcome, and that the second action was barred by
judicial estoppel. Id. at 899-907.
Appellant argues that Smeilis is distinguishable and that the
inconsistent positions should be excused here because the two actions were
separated due to lack of jurisdiction over Dr. Crombleholme in Pennsylvania,
rather than a deliberate attempt to litigate the claims separately. That
distinction is without merit. The issue here is the asserting of conflicting
positions on the cause of Minor’s injuries, not the bringing of separate actions.
Minor could not have successfully introduced the contradictory testimony in a
single trial against the CHOP defendants, the HUP defendants, and the Ohio
defendants. Under Mudano v. Philadelphia Rapid Transit Co., 137 A. 104
(Pa. 1927), a plaintiff cannot introduce expert opinions from different medical
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experts that irreconcilably conflict with each other, and if such an
irreconcilable conflict exists, no verdict can be based on either expert, and the
plaintiff’s claim based on such expert testimony fails. Mudano, 137 A. at
107-08; Brodowski v. Ryave, 885 A.2d 1045, 1060-63 (Pa. Super. 2005)
(en banc).
In any event, even if submitting expert testimony and closing arguments
in court were not a sufficient basis for judicial estoppel by itself, Appellant’s
argument would fail for the second reason that the complaint in the Ohio
action would be a basis for estoppel. The complaint in the Ohio action pled
that Dr. Crombleholme’s SLPCV itself caused Minor’s injuries. Ohio Action
Complaint ¶¶3, 71-77, 87-95. That position is irreconcilably inconsistent with
Minor’s position in this case that Dr. Crombleholme’s SLPCV “was completed
uneventfully.” Rotenberg Expert Report at 2; Yohay Expert Report at 2.
Appellant’s final argument, that the plaintiffs in the Ohio action and this
action are different is also without merit. Both this action and the Ohio action
were brought on behalf of Minor and name Minor as the plaintiff. The only
difference is that Minor was acting through different guardians in the two
cases. The plaintiff in this action is Minor “by and through” a guardian of
Minor’s estate who was appointed by a Pennsylvania court “for the purpose of
protecting the Minor’s interest in potential litigation.” Complaint at 1-2 & ¶11;
Philadelphia County Orphans’ Court Order, 8/19/15. The plaintiff in the Ohio
action at the time of trial and settlement was Minor “by and through” a
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different guardian of Minor’s estate who was appointed by an Ohio court with
his powers limited to the Ohio action. Ohio Action 9/28/17 Order at 1; Ohio
Probate Court 9/18/15 Order and Letters of Guardianship.3
The fact that this action was brought by a different guardian for Minor
than the guardian who litigated and settled the Ohio action does not make the
parties different. Under both Pennsylvania and Ohio law, the minor, not the
guardian, is the plaintiff and real party in interest in an action brought on
behalf of a minor by a guardian. Pa.R.Civ.P. 2027 (referring to minor as “a
party to the action”); Pa.R.Civ.P. 2028 (prescribing form of caption of “A, a
Minor, by B, Guardian” in “[a]n action in which a minor is plaintiff”);
Winterhalter v. West Penn Power Co., 512 A.2d 1187, 1188 n.1 (Pa.
Super. 1986) (although represented by guardians, minor “is the real party to
this action”); Lanzalaco v. Lanzalaco, 976 N.E.2d 309, 313 (Ohio App.
2012) (where guardian brings suit on behalf of a minor, the minor, not the
guardian, is the plaintiff and real party in interest); Slusher v. Ohio Valley
Propane Services, 896 N.E.2d 715, 721 (Ohio App. 2008) (same). The
language of Pa.R.Civ.P. 2026 defining “guardian” as “the party representing
the interest of a minor party in any action” does not suggest that the guardian,
3 Minor is not a resident of either Pennsylvania or Ohio; rather, she is a North
Carolina resident. Complaint ¶12. The plaintiff in the 2011 action and the original plaintiff in the Ohio action before the Ohio guardian was appointed were identical; both actions were brought by Mother on behalf of Minor. 2011 Action Amended Complaint at 1 & ¶12; Ohio Action Complaint at 1 & ¶5.
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rather than the minor, is the plaintiff or real party in interest. Rather, the use
of the word “party” in Rule 2026 with respect to the guardian merely
designates the person acting on behalf of the minor and refers to the minor
as the “minor party.”
Appellant’s argument concerning guardianship of a party’s estate being
distinct from guardianship of the person is irrelevant. Both guardians here
were guardians of the estate fulfilling the same function on behalf of Minor of
bringing and prosecuting litigation on Minor’s behalf. Indeed, Appellant’s
attempt to characterize the plaintiffs in the two actions as different appears
to be the very type of gamesmanship that judicial estoppel is designed to
prevent, given that the same counsel represented Minor in both actions.
Because the record shows that Minor’s claims in the Ohio action were
irreconcilably inconsistent with her claims for the same injuries in this action
and she recovered a settlement of $7 million based on her claims in the Ohio
action, the trial court did not err in dismissing this action based on judicial
estoppel.4 Accordingly, we affirm the order of the trial court.
Order affirmed.
4 We therefore need not and do not address the alternative grounds for affirmance argued by the CHOP defendants and HUP defendants.
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Date: 1/25/2024
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