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Otis v. Arbella Mutual Insurance Co.3/14/2005
o be estopped," Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420, 1428 (7th Cir. 1993). Strict application of the doctrine might not be called for if "the new, inconsistent position is the product of information neither known nor readily available to [the party] at the time the initial position was taken." Alternative Sys. Concepts, Inc. v. Synopsys, Inc., supra at 35. Again, judicial estoppel is an equitable doctrine, calling for the exercise of discretion in its application to particular facts. Like other courts that have grappled with the "hazy" contours of the doctrine, id. at 33, we decline to construct a categorical list of requirements or to delineate each and every possible exception. Rather, judges should use their discretion, and their weighing of the equities, and apply judicial estoppel where appropriate to serve its over-all purpose. That purpose is "to safeguard the integrity of the courts by preventing parties from improperly manipulating the machinery of the judicial system," and judicial estoppel may therefore be applied "when a litigant is 'playing fast and loose with the courts.'" Id., quoting Patriot Cinemas, Inc. v. General Cinema Corp., 834 F.2d 208, 212 (1st Cir. 1987).
The present case fits squarely within the doctrine of judicial estoppel as customarily applied. Central to Otis's present claims is an assertion that is diametrically contrary to the position he took in his original suit against Cusick. In that earlier suit, Otis took the position that he was not negligent, based on the factual assertion that he had yielded the right of way when he and O'Malley stopped a few feet shy of the dividing center line of the highway. That position was successful, as the jury found no comparative negligence on Otis's part, and thus awarded him the full amount of damages for his injuries. In the present suit, however, he contends not only that he was negligent, but that his negligence was even greater than Cusick's, such that it should have operated to deny him any recovery against Cusick. The factual premise now advanced in support of that comparative negligence theory is directly contrary to the facts Otis put forward in the prior suit -- Otis now contends that he and O'Malley had crossed several feet over the dividing center line and stopped in the direct path of an oncoming vehicle.
Otis has also changed position on an evidentiary argument raised in the first case. In the prior proceeding, he argued successfully in opposition to Cusick's motion for a new trial that the judge had committed no error in allowing a witness to testify about Cusick's running over O'Malley as he fled the scene. Now, in connection with claims stemming from the defendants' failure to pursue an appeal on behalf of Cusick, Otis claims not only that it was error to have admitted such testimony, but that the prejudicial nature of that testimony was such that its admission amounted to reversible error. He thus claims that an appeal from the judgment that had entered in his favor would have resulted in a reversal and a new trial, and that a competently conducted defense would have resulted in a verdict in favor of Cusick.
In short, Otis's position in the present suit is that he should not have recovered anything in the first suit. This is the classic posture in which courts invoke judicial estoppel: allowing the present case to proceed would "create the appearance that either the first court has been misled or the second court will be misled, thus raising the specter of inconsistent determinations and endangering the integrity of the judicial process." Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 33 (1st Cir. 2004). This case does not involve any of the factors that might, on equi
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