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Harvey v. McLaughlin8/16/2005
note that on "the afternoon of June 9, 1997, plaintiff began experiencing pain in his back" and declined, due to the pain, to participate in a fishing tournament. The complaint, read as a whole, is entirely consistent with the onset of pain prior to 11 June 1997 and that, in fact, plaintiff suffered a back injury on 9 June and developed increasing pain that interfered with his recreational activities and prompted him to seek chiropractic intervention.
Turning to the second enumerated inconsistency, the trial court contrasted plaintiff's allegation in his complaint that he had "never experienced pain in his neck or cervical region" with the discovery materials indicating that plaintiff's complaint upon presenting to defendant was "pain in upper neck." This single discrepancy fails to indicate plaintiff was playing "fast and loose" with the judicial system or changing factual assertions due to circumstantial exigencies. This is especially true where, as here, plaintiff consistently represented in the proceedings before the trial court and Industrial Commission that he (1) hurt his back on 9 June 1997, (2) experienced increasing pain, (3)sought treatment from defendant on 11 June 1997 because of the increasing pain, and (4) suffered, at the hands of defendant, a "violent" maneuver instantaneously causing plaintiff markedly increased pain. The single internal discrepancy noted by the trial court neither overcomes the striking similarities common in the two proceedings nor represents "clearly inconsistent" positions taken by plaintiff.
Having determined an essential element of judicial estoppel is not present, we hold the trial court abused its discretion in barring plaintiff's claim on this ground.
Reversed.
Judges ELMORE and GEER concur.
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