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Harvey v. McLaughlin8/16/2005
John Harvey ("plaintiff") appeals an order of the trial court dismissing his malpractice claim against Patrick D. McLaughlin, D. C. ("defendant") for chiropractic treatment. The trial court dismissed plaintiff's claim on the grounds that it was barred by the doctrine of judicial estoppel. We reverse.
According to a final compromise settlement agreement (the "agreement") entered into between plaintiff and his employer on 15 August 2002, plaintiff sustained an injury to his back on 9 June 1997 in the course and scope of his employment while trying to move heavy cabinets. The agreement represented the culmination and settlement of all of plaintiff's claims as against the employer and carrier arising from the workers' compensation claim filed by plaintiff following the accident. The agreement additionally set forth that, following the 9 June injury, (1) plaintiff sought treatment from defendant, (2) defendant performed a "violent" manipulation to plaintiff's neck, (3) plaintiff alleged defendant's manipulation was "connected to his treatment for his work related injury[,]" and (4) said manipulation "led to [plaintiff's] disability." The agreement detailed a truncated treatment history as well as other factors relevant to a determination of a workers' compensation award and settled all claims between plaintiff and his employer for $457,254.84.
On 5 October 2000, plaintiff commenced a civil action against defendant for malpractice relating to the chiropractic treatment provided by defendant. In the factual assertions, plaintiff generally alleged he was in good health, pain free, and actively engaged in the construction business prior to 11 June 1997. Plaintiff, however, also specifically alleged that " few days before June 11, 1997, pulled his upper back." Plaintiff stated he developed back pain on 9 June 1997, which precluded his participation in a fishing tournament the next day, and went on to detail that those symptoms precipitated his visit to defendant's practice. In his complaint, plaintiff again reiterated the "violent" manipulation employed by defendant to treat plaintiff and comprehensively explained the subsequent diagnoses and treatments following his visit to defendant. Plaintiff was ultimately diagnosed with a severely ruptured right C6-7 cervical disk, which necessitated multiple surgeries and left plaintiff with a forty- nine percent permanent partial disability to his back, neck, and one arm.
Defendant answered the complaint and moved to dismiss the complaint based on lack of subject matter jurisdiction and on the doctrine of judicial estoppel. Defendant's motions were heard by the trial court on 12 August 2004. On 27 August 2004, the trial court dismissed plaintiff's complaint, concluding it was barred by the doctrine of judicial estoppel. Plaintiff moved for reconsideration under Rule 60(b) of the North Carolina Rules of Civil Procedure, which the trial court denied. In denying plaintiff's motion, the trial court found that plaintiff had "intentionally asserted contrary legal positions" in the workers' compensation claim and before the trial court. Specifically, the trial court cited the dichotomy between plaintiff's complaint, alleging plaintiff was pain free, in good health, and actively engaged in physical and construction activities prior to 11 June 1997. The trial court also cited the Form 21 Agreement, which set forth that plaintiff was injured by accident and that the onset of disability occurred on 10 June 1997. The trial court also contrasted plaintiff's complaint, that prior to 11 June 1997, he had never experienced pain in his neck or cervical region, with discovery materials that included a medical history form plaintiff completed on 11 June 1997 prior to
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