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N.T. v. Child.’s Hosp. of Phila., 2024 Pa. Super. LEXIS 19, 2024 WL 271430 (January 25, 2024) (Colins, J.).



Appellant, N.T. (Minor), by and through Mary Jane Barrett, Esquire, guardian of her estate, appeals from an order of the Philadelphia County Court of Common Pleas dismissing her medical malpractice action against the Children’s Hospital of Philadelphia (CHOP) and CHOP physicians Drs. Stephanie Mann and Mark P. Johnson (collectively, the CHOP defend) and the Hospital of the University of Pennsylvania (HUP) and HUP radiologist Dr. Steven C. Horii (collectively, the HUP defendants) on the ground that Minor’s claims are barred by judicial estoppel. For the reasons set forth below, we affirm.

The position taken on Minor’s behalf in the Ohio action was inconsistent and incompatible with the liability theories asserted against the CHOP defendants and the HUP defendants in this action. In this action, Minor’s claim was that the TTTS went from Stage 2 to a more serious Stage 3 at the time that she was treated in Ohio and that the untreated TTTS during the 12-day delay between Mother’s arrival at CHOP on January 2, 2008 and the performance of the SLPCV in Ohio on January 14, 2008 was a cause of her brain damage. This is directly contrary to the position taken on Minor’s behalf in the Ohio action that Minor suffered no brain damage from the delay or from TTTS, that the TTTS was still Stage 2 when Minor was seen in Ohio, and that the sole cause of Minor’s brain damage was the damage to 30% of Minor’s placenta from the faulty SLPCV and resultant hypoxia from that damage. The inconsistent position was successfully maintained in the Ohio action, as Minor received $7 million in that action as a result of the claim that the SLPCV caused her brain injury.

Judicial estoppel requires only that the party successfully obtained a benefit by assertion of the position that she now seeks to dispute and does not require that the issue have been actually litigated to conclusion or determined by a court or other decision maker on the merits. Adoption of S.A.J., 838 A.2d at 623 & n.4; Grabowski, 230 A.3d at 472. See also Black, 995 A.2d at 876, 878-79.

The purpose of judicial estoppel is to prevent abuse of the judicial process by taking inconsistent positions before courts. Adoption of S.A.J., 838 A.2d at 621; Sunbeam Corp., 781 A.2d at 1192; Grabowski, 230 A.3d at 472. Such an abuse can occur by presenting sworn expert testimony in court in support of a position or making factual arguments in court.

Our conclusion that the expert testimony and argument presented at trial can constitute a basis for judicial estoppel is supported by a decision from Illinois involving a situation very similar to this case, which we find persuasive. In Smeilis v. Lipkis, 2012 IL App (1st) 103385, 967 N.E.2d 892, 359 Ill. Dec. 862 (Ill. App. 2012).

Minor could not have successfully introduced the contradictory testimony in a single trial against the CHOP defendants, the HUP defendants, and the Ohio defendants. Under Mudano v. Philadelphia Rapid Transit Co., 289 Pa. 51, 137 A. 104 (Pa. 1927), a plaintiff cannot introduce expert opinions from different medical experts that irreconcilably conflict with each other, and if such an irreconcilable conflict exists, no verdict can be based on either expert, and the plaintiff’s claim based on such expert testimony fails. Mudano, 137 A. at 107-08; Brodowski v. Ryave, 2005 PA Super 354, 885 A.2d 1045, 1060-63 (Pa. Super. 2005) (en banc).

Because the record shows that Minor’s claims in the Ohio action were irreconcilably inconsistent with her claims for the same injuries in this action and she recovered a settlement of $7 million based on her claims in the Ohio action, the trial court did not err in dismissing this action based on judicial estoppel. Accordingly, we affirm the order of the trial court.

Order affirmed.