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Whitacre Partnership v. Biosignia2/6/2004
.S. 136, 142-43, 139 L.Ed. 2d 508, 516 (1997) (rejecting argument that ruling on admissibility of expert testimony should be reviewed de novo simply because it arose in the "outcome determinative" context of a summary judgment motion, and instead reviewing for abuse of discretion).
In conclusion, the doctrine of judicial estoppel is a part of the common law of this state. In the instant case, however, the trial court did not have the benefit of the precise formulation of the doctrine we articulate in this opinion. Moreover, judicial estoppel is a discretionary doctrine, and the privity inquiry required here is a fact-intensive one. Thus, we instruct the trial judge on remand to determine whether the Whitacres and Whitacre Partnership are in privity and, if so, to exercise discretion in determining whether the doctrine of judicial estoppel is applicable in the instant case. Accordingly, we remand to the Court of Appeals for further remand to the trial court for further proceedings consistent with this opinion.
MODIFIED AND AFFIRMED.
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 North Carolina Personal Injury Attorneys
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