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Whitacre Partnership v. Biosignia2/6/2004
Appeals held, that judicial estoppel does not apply in this case because there was "no evidence that Dr. Whitacre intentionally misled the court" by "intentionally manipulat or hid the truth to gain an unfair advantage." Whitacre P'ship, 153 N.C. App. at 615-16, 574 S.E.2d at 480. This holding comports with the definition of judicial estoppel previously adopted by the Court of Appeals. See Medicare Rentals, 119 N.C. App. at 771, 460 S.E.2d at 364. A trial court applying judicial estoppel, however, is not obliged to specifically determine that the party to be estopped intended to mislead that court by its representations in the later action. As the United States Supreme Court emphasized in New Hampshire v. Maine, judicial estoppel is a "flexible equitable doctrine," and the "`circumstances under which may appropriately be invoked are probably not reducible to any general formulation of principle.'" 532 U.S. at 750, 149 L.Ed. 2d at 978 (quoting Zurich Ins. Co., 667 F.2d at 1166). While it would weigh heavily in favor of invoking the doctrine, intent to deceive is not enumerated in New Hampshire as one of the relevant factors. New Hampshire, 532 U.S. 742, 149 L.Ed. 2d 968. Moreover, New Hampshire v. Maine specifically provides that "it may be appropriate to resist application of judicial estoppel `when a party's prior position was based on inadvertence or mistake.'" Id. at 753, 149 L.Ed. 2d at 979 (quoting John S. Clark Co., 65 F.3d at 29). In stating that it "may be appropriate" to "resist" application of judicial estoppel under these circumstances, the United States Supreme Court implicitly rejected the proposition that the subsequent position must be intended to deceive in order for the doctrine to apply.
We are mindful that the application of judicial estoppel to preclude a party from making a true factual assertion in a later proceeding because it contradicts a false factual assertion made in an earlier one may be seen as interfering with the truth-seeking function of courts. See Teledyne Indus., Inc. v. Nat'l Labor Relations Bd., 911 F.2d 1214, 1218 (6th Cir. 1990) (noting that judicial estoppel may "imping on the truth-seeking function of the court because the doctrine precludes a contradictory position without examining the truth of either statement"). As we said long ago in a related context, estoppels, while valuable to help "prevent that which deals in duplicity and inconsistency," by their nature run the risk of "shut[ting] out the real truth" in favor of its "artificial representative." Jones v. Sasser, 18 N.C. 452, 464 (1836). Upon careful reflection, we are not dissuaded by these concerns. First, judicial estoppel is to be applied in the sound discretion of our trial courts. If a trial court believes that justice would not be served by judicially estopping a party's factual contention, it may decline to do so. See Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 365 (3d Cir. 1996) ("[Judicial estoppel] is not meant to be a technical defense for litigants seeking to derail potentially meritorious claims, especially when the alleged inconsistency is insignificant at best and there is no evidence of intent to manipulate or mislead the courts."). We are confident that our trial courts will apply the doctrine judiciously, and not in a reflexive or technical manner that would defeat its underlying purpose. See id. at 358 ("Judicial estoppel is not intended to eliminate all inconsistencies, however slight or inadvertent; rather, it is designed to prevent litigants from `playing "fast and loose with the courts."'") (citations omitted). Second, the "truth-defeating" potential of judicial estoppel is somewhat counterbalanced by its prophylactic effect. In practice, the doctrine tends not to s
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