{ "id": 8321008, "name": "JOHN HARVEY, Plaintiff v. PATRICK D. McLAUGHLIN, D.C., d/b/a McLaughlin Chiropractic Center, Defendant", "name_abbreviation": "Harvey v. McLaughlin", "decision_date": "2005-08-16", "docket_number": "No. COA04-1597", "first_page": "582", "last_page": "586", "citations": [ { "type": "official", "cite": "172 N.C. App. 582" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "460 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "364" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 767", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917625 ], "year": 1995, "pin_cites": [ { "page": "771" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0767-01" ] }, { "cite": "591 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 12, "year": 2004, "pin_cites": [ { "page": "887", "parenthetical": "citation and internal quotation marks omitted" }, { "page": "888", "parenthetical": "citations and internal quotation marks omitted" }, { "page": "888-89", "parenthetical": "citations and internal quotation marks omitted" }, { "page": "888, n.7" }, { "page": "891" }, { "page": "894" }, { "page": "888" } ], "opinion_index": 0 }, { "cite": "358 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2985361 ], "weight": 7, "year": 2004, "pin_cites": [ { "page": "26", "parenthetical": "citation and internal quotation marks omitted" }, { "page": "28" }, { "page": "28-29" }, { "page": "29, n.7" }, { "page": "33" }, { "page": "38" }, { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0001-01" ] } ], "analysis": { "cardinality": 523, "char_count": 10069, "ocr_confidence": 0.733, "pagerank": { "raw": 3.9840102569258605e-07, "percentile": 0.9051436975669238 }, "sha256": "d351ca72478b14f84e1166815d82f9abe6a36ad939e71ae6991dc3027ef42350", "simhash": "1:13c2de72744a2dfe", "word_count": 1536 }, "last_updated": "2023-07-14T22:22:54.702952+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and GEER concur." ], "parties": [ "JOHN HARVEY, Plaintiff v. PATRICK D. McLAUGHLIN, D.C., d/b/a McLaughlin Chiropractic Center, Defendant" ], "opinions": [ { "text": "CALABRIA, Judge.\nJohn Harvey (\u201cplaintiff\u2019) appeals an order of the trial court dismissing his malpractice claim against Patrick D. McLaughlin, D.C. (\u201cdefendant\u201d) for chiropractic treatment. The trial court dismissed plaintiff\u2019s claim on the grounds that it was barred by the doctrine of judicial estoppel. We reverse.\nAccording to a final compromise settlement agreement (the \u201cagreement\u201d) 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\u2019s claims as against the employer and carrier arising from the workers\u2019 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 \u201cviolent\u201d manipulation to plaintiff\u2019s neck, (3) plaintiff alleged defendant\u2019s manipulation was \u201cconnected to his treatment for his work related injury[,]\u201d and (4) said manipulation \u201cled to [plaintiff\u2019s] disability.\u201d The agreement detailed a truncated treatment history as well as other factors relevant to a determination of a workers\u2019 compensation award and settled all claims between plaintiff and his employer for $457,254.84.\nOn 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 \u201c[a] few days before June 11,1997, [he] pulled his upper back.\u201d 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\u2019s practice. In his complaint, plaintiff again reiterated the \u201cviolent\u201d 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.\nDefendant answered the complaint and moved to dismiss the complaint based on lack of subject matter jurisdiction and on the doctrine of judicial estoppel. Defendant\u2019s motions were heard by the trial court on 12 August 2004. On 27 August 2004, the trial court dismissed plaintiff\u2019s 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\u2019s motion, the trial court found that plaintiff had \u201cintentionally asserted contrary legal positions\u201d in the workers\u2019 compensation claim and before the trial court. Specifically, the trial court cited the dichotomy between plaintiff\u2019s 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\u2019s 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 being treated by defendant in which plaintiff described his condition or problem as \u201cpain in [the] upper neck.\u201d Plaintiff appeals the dismissal of his claim by the trial court on the doctrine of judicial estoppel.\nJudicial estoppel is an equitable, gap-filling doctrine that \u201cprovid[es] courts with a means to protect the integrity of judicial proceedings\u201d from \u201cindividuals who would play fast and loose with the judicial system.\u201d Whitacre P\u2019ship v. Biosignia, Inc., 358 N.C. 1, 26, 591 S.E.2d 870, 887 (2004) (citation and internal quotation marks omitted)). The doctrine \u201cprohibits] parties from deliberately changing positions [on factual assertions] according to the exigencies of the moment[.]\u201d Id., 358 N.C. at 28, 591 S.E.2d at 888 (citations and internal quotation marks omitted). While observing that the circumstances allowing for the invocation of judicial estoppel \u201care probably not reducible to any general formulation of principle,\u201d our Supreme Court enumerated the following three factors as guidance concerning whether application of the doctrine would be appropriate: (1) whether a party has taken a subsequent position that is clearly inconsistent with its earlier position, (2) whether the party successfully persuaded a court to accept the earlier, inconsistent position raising a threat to judicial integrity by inconsistent court determinations or the appearance that the first or the second court was misled, and (3) whether the inconsistent position gives the asserting party an unfair advantage or imposes on the opposing party an unfair detriment if not estopped. Id., 358 N.C. at 28-29, 591 S.E.2d at 888-89 (citations and internal quotation marks omitted). Only the first of these factors is an essential and required element. Id., 358 N.C. at 29, n.7, 591 S.E.2d at 888, n.7. The invocation of the doctrine of judicial estoppel is addressed to the sound discretion of the trial court, id., 358 N.C. at 33, 591 S.E.2d at 891, and our review of a trial court\u2019s application of the doctrine is limited to determining whether the trial court abused its discretion. Id., 358 N.C. at 38, 591 S.E.2d at 894.\nInitially, we note the order of the trial court is couched in terms of whether plaintiff \u201cintentionally asserted contrary legal positions\u201d in the various proceedings. This language is consistent with this Court\u2019s formulation of the doctrine of judicial estoppel in Medical Rentals, Inc. v. Advanced Services, 119 N.C. App. 767, 771, 460 S.E.2d 361, 364 (1995). However, our Supreme Court criticized this formulation insofar as it suggested that the doctrine could be reduced to an inflexible prerequisite or exhaustive formula. Whitacre P\u2019ship, 358 N.C. at 28, 591 S.E.2d at 888. Stating that this formulation \u201cfail[ed] to adequately recognize the inherently flexible nature of th[e] discretionary equitable doctrine [of judicial estoppel,]\u201d our Supreme Court declined to accept it in favor of the three-part factors test set forth, supra. Id.\nTurning to the test adopted by our Supreme Court and looking at the pleadings and record as a whole, we conclude plaintiff has not taken \u201cclearly inconsistent\u201d positions. With respect to the first enumerated inconsistency, the trial court noted plaintiff had differing assertions regarding the date of the onset of pain in his complaint as compared with the date of disability in his Form 21 Agreement. However, as noted previously, plaintiff\u2019s complaint was candid about his condition. While the complaint initially stated that, prior to 11 June 1997, plaintiff was \u201cin good health and pain free\u201d and active in both his work and recreational activities, the very next sentence provides that a \u201cfew days before June 11, 1997, the plaintiff pulled his upper back.\u201d The following sentences further note that on \u201cthe afternoon of June 9, 1997, plaintiff began experiencing pain in his back\u201d 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.\nTurning to the second enumerated inconsistency, the trial court contrasted plaintiffs allegation in his complaint that he had \u201cnever experienced pain in his neck or cervical region\u201d with the discovery materials indicating that plaintiffs complaint upon presenting to defendant was \u201cpain in [his] upper neck.\u201d This single discrepancy fails to indicate plaintiff was playing \u201cfast and loose\u201d 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 \u201cviolent\u201d 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 \u201cclearly inconsistent\u201d positions taken by plaintiff.\nHaving determined an essential element of judicial estoppel is not present, we hold the trial court abused its discretion in barring plaintiffs claim on this ground.\nReversed.\nJudges ELMORE and GEER concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Donald J. Dunn for'plaintiff-appellant.", "Cranfill, Sumner & Hartzog, L.L.P., by Meredith Black, for defendant-appellee." ], "corrections": "", "head_matter": "JOHN HARVEY, Plaintiff v. PATRICK D. McLAUGHLIN, D.C., d/b/a McLaughlin Chiropractic Center, Defendant\nNo. COA04-1597\n(Filed 16 August 2005)\nEstoppel\u2014 judicial \u2014 positions not clearly inconsistent\nThe trial court abused its discretion by barring a chiropractic malpractice claim as judicially estopped based on a discrepancy with earlier workers\u2019 compensation assertions. The plaintiff in this case did not take clearly inconsistent positions, a required element for judicial estoppel.\nAppeal by plaintiff from order entered 27 August 2004 by Judge Paul L. Jones in Lenoir County Superior Court. Heard in the Court of Appeals 15 June 2005.\nDonald J. Dunn for'plaintiff-appellant.\nCranfill, Sumner & Hartzog, L.L.P., by Meredith Black, for defendant-appellee." }, "file_name": "0582-01", "first_page_order": 612, "last_page_order": 616 }