Judicial Estoppel Knocks out Another Debtor-Plaintiff’s Claim

Case: Barber v. Time for Peace, PLLC, No. 3:2019-cv-00367, 2022 WL 1721041 (E.D. Ark. May 27, 2022)

Court: U.S. District Court for the Eastern District of Arkansas (Judge Marshall)

Issue: Does a plaintiff’s failure to disclose a wage claim in a bankruptcy proceeding subject their civil claim to dismissal under judicial estoppel?

Holding: Per Eighth Circuit precedent, a plaintiff who has not disclosed a civil suit in a bankruptcy case, especially one filed after the civil lawsuit’s filing, stands to have their civil case dismissed.

Summary: In December 2019, Brooke Barber filed a Fair Labor Standards Act wage claim against her employer, Time for Peace, PLLC. Later that month, she and her husband filed a joint petition for Chapter 7 bankruptcy. This petition did not include the wage claim as an asset.

The Barbers’ debts were discharged in May 2020, and their bankruptcy case was closed in June 2020. Barber filed a second wage suit in April 2021.

In June 2021, Time for Peace filed a motion seeking dismissal on the basis that under the principle of judicial estoppel, Barber’s nondisclosure of her wage claims in bankruptcy prevented her from pursuing them. More or less immediately, Barber sought and received permission to reopen the bankruptcy case and amend her asset list to include the wage claims.

The court began its analysis by explaining judicial estoppel:

Judicial estoppel prevents a party from asserting a claim in a legal proceeding that is inconsistent with a position taken by that party in a previous proceeding. New Hampshire v. Maine, 532 U.S. 742, 749 (2001). A party may be judicially estopped from pursuing a claim that wasn't disclosed in its previous bankruptcy filings. Stallings v. Hussman Corp., 447 F.3d 1041, 1047 (8th Cir. 2006). Three factors inform the Court’s decision about whether judicial estoppel applies:

(1) whether the party’s later position is clearly inconsistent with its prior position; (2) whether the party successfully persuaded the first court to accept the party’s prior position; and (3) whether the party seeking to assert an inconsistent position would gain an unfair advantage if not estopped. Stallings, 447 F.3d at 1047; New Hampshire, 532 U.S. at 750-51.

Op. at 3-4. The court determined that “all three factors weigh in favor of estopping Barber from pursuing her wage-related claims in this case.” Id. at 4.

The first factor was satisfied by the simple fact that Ms. Barber excluded her wage claim from her list of assets in the bankruptcy  case. Telling the district court that she has a claim for unpaid wages while telling the bankruptcy court that she had no civil claims are inconsistent with each other.

The second factor, whether the litigant successfully persuaded the first court to accept her prior position, was satisfied by the bankruptcy court’s discharge of her debts.

The court held that the third factor was met because she stood to be able to recover civil damages that rightfully should have been potentially available to her creditors. Ms. Barber forwarded two arguments in opposition to the funding on the third factor.

First, she asserted inadvertence—i.e., that her exclusion of her wage claim was a mere mistake/accident. However, the court found this unpersuasive, as the bankruptcy property questionnaire form clearly asks about such claims, including “employment disputes”, and she filed for bankruptcy only two weeks after filing her first wage lawsuit.

Second, she argued that she had “cured” (fixed) the issue by reopening and amending the petition. Though the court acknowledged that she had corrected the misrepresentation to the bankruptcy court, she had done so only after the defendant in the wage action revealed this issue to the court, roughly a year and a half after her initial lawsuit and bankruptcy filings.

Deciding that the equities were against Ms. Barber, the court entered summary judgment in favor of Time for Peace.

Bottom Line: Defendants are continually on the lookout for every advantage they can find to weaken, or even extinguish, plaintiffs’ claims. Judicial estoppel is a powerful, often harsh rule in their toolkit. Plaintiffs and potential plaintiffs filing for bankruptcy should be as diligent as the defendants in their cases will be and make sure to disclose all civil claims, such as personal injury, employment discrimination, etc., to avoid losing them to judicial estoppel.

In a Medical Malpractice Case, Medical Expert Must Provide Clear, Specific Evidence of Causation

Case: Scott v. Nichol, 2022 Ark. App. 255

Trial Court: Jefferson County Circuit Court (Judge Wyatt)

Issue: In a medical malpractice case, what level of specificity in a medical expert affidavit is necessary to avoid summary judgment on the issue of causation?

Holding: The affidavits must, at a minimum, state the manner in which the medical professional erred, set forth how the patient was injured, and opine that the injury was caused by this mistake.

Summary: In 2016, Curtis Scott filed a medical malpractice action against, as relevant here, Dr. Currin Nichol. The suit alleged that he presented to Jefferson Regional Medical Center (JRMC) with reported symptoms of numbness and tingling in his right arm and lips. He had elevated blood pressure and was out of his blood pressure medicine. The opinion details Dr. Nichol’s actions and the subsequent developments:

According to the complaint, Dr. Nichol developed a working diagnosis of “CVA, Hemorrhagic, CVA, Ischemic, Electrolyte Abnormality, TIA, Hypertension/Anxiety.” A CT scan was ordered. On the basis of the results of the scan and clinical observations, Dr. Nichol made a diagnosis of “Hypertension, Stress reaction.” Scott was discharged; given a prescription for blood-pressure medicine; and told to return if his condition worsened and to follow up with his primary-care doctor. Scott continued to have symptoms on July 22 and went to Baptist Medical Center in Little Rock. While at Baptist, doctors and staff ordered a carotid Doppler ultrasound, an MRI of Scott’s brain, and an echocardiogram, which revealed that Scott had a stroke.

Op. at 2.

Among the allegations in Scott’s complaint were that Dr. Nichol erred in failing to diagnose his stroke, causing a delay in his diagnosis, and failing to use the proper diagnostic tools appropriate for someone with his symptoms. Following discovery, Nichol filed a motion for summary judgment asserting that Scott had failed to properly identify expert medical testimony and, therefore, could not meet its burden of proof for a medical malpractice case. Attached to Scott’s response to the motion was an affidavit from Dr. Douglas Geiger. He attached an additional affidavit from Dr. Lee Davis in a sur-reply. Dr. Nichol sought to have this last pleading struck as improper.

The circuit court granted summary judgment, identifying multiple defects in the affidavits and holding that, even if it did consider the sur-reply and accompanying affidavit, its decision would be the same:

In its findings and conclusions entered April 9, the court found that Dr. Geiger’s affidavit failed to set forth any facts to indicate he is qualified to testify on matters concerning emergency medicine or care provided to a possible stroke victim; to establish that Dr. Geiger has any knowledge of the applicable standard of care, the facilities at Jefferson Regional, or how it may be similar to communities where Dr. Geiger has practiced; to set forth the applicable standard of care at the time Dr. Nichol treated Scott; to establish that Dr. Nichol breached the standard of care in Jefferson County; and to establish proximate cause. Although noting that Dr. Nichol’s objections to Dr. Davis’s affidavit were most likely correct, the court found the affidavit did not change the outcome because it also failed to set forth the required expert proof to defeat summary judgment. Specifically, the court found that it failed to address the applicable standard of care; how Dr. Nichol breached the standard of care; and proximate cause.

Op. at 4. On appeal, Scott argued that the Geiger affidavit set forth the information necessary to thwart the defendant’s summary judgment motion.

The Court of Appeals first quoted the relevant portion of the Arkansas Medical Malpractice Act to set forth the plaintiff’s burden of production in an Arkansas medical malpractice case:

In a medical-malpractice action, unless the asserted negligence could be comprehended by a jury as a matter of common knowledge, a plaintiff must prove the following:

(1) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant, the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he or she practices or in a similar locality;

(2) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant that the medical care provider failed to act in accordance with that standard; and

(3) By means of expert testimony provided only by a qualified medical expert that as a proximate result thereof the injured person suffered injuries that would not otherwise have occurred.

Ark. Code Ann. § 16-114-206(a)(1)–(3). The statute implements the traditional tort standard of requiring proof that “but for” the tortfeasor’s negligence, the plaintiff’s injury or death would not have occurred. Ford v. St. Paul Fire & Marine Ins. Co., 339 Ark. 434, 437, 5 S.W.3d 460, 462– 63 (1999).

Op. at 5.

The relevant portion of the affidavit stated:

[The] evaluation, treatment, and care of Curtis Scott by Dr. Nichol was below the standard of care expected of reasonable practitioners and physicians, which led to a delay of diagnosis, delay of receiving appropriate physician care, and increase [sic] chance of morbidity. The aforementioned acts resulted in a breach of the duty of care, which proximately causes injury to Curtis Scott.

Op. at 6.

Noting that a plaintiff must supply expert testimony that demonstrates negligence and causation for the purported injury and be stated within a reasonable medical certainty, the court held the Geiger affidavit was vague and conclusory, failed to connect Dr. Nichol’s purported missteps to Mr. Scott’s injuries, and, by using only the term “morbidity”, actually failed to even adequately identify the injury:

The assertion of an increased chance of morbidity fails to identify an injury. Moreover, Dr. Geiger’s affidavit does not address how keeping him in the hospital or ordering an MRI would have prevented injury to Scott. Our supreme court has held that a “vague and conclusory statement” that a certain treatment “did not conform to the standard of care” is not sufficient to establish proximate cause in order to defeat summary judgment. Fryar v. Touchstone Physical Therapy, Inc., 365 Ark. 295, at 302, 229 S.W.3d 7, at 13 (2006) (affirming summary judgment where medical expert’s affidavit did not connect the physical therapist’s alleged negligence with the plaintiff’s injuries); see also Johnson v. Schafer, 2018 Ark. App. 630, 565 S.W.3d 144.

Op. at 7. Holding that such an affidavit could not create a fact question on several elements of Mr. Scott’s claim, the court affirmed the grant of summary judgment. The ruling on Dr. Davis’ affidavit, only lightly contested, was also affirmed.

Bottom Line: The summary judgment stage is a crucial aspect of any case. Unlike in some other civil cases, plaintiffs in medical malpractice cases generally must provide medical opinion evidence. Clear, component expert testimony is necessary to make it to trial.

If You’re Wondering if You Need a Lawyer, there is a Good Chance the Answer is Yes

Case: Matlock v. Noel, 2022 Ark. App. 295

Trial Court: Garland County Circuit Court (Judge Ralph Ohm)

Issue: Can a non-lawyer, pro se administrator of an estate file a wrongful death complaint or a Notice of Appeal?

Holding: Under these circumstances, Arkansas law requires that a Notice of Appeal for such a party be filed by an attorney.

Summary: In 2019, Betty Matlock died while being treated at a hospital in Hot Springs. In 2020, John Dickerson, Jr., Ms. Matlock’s brother, opened an estate in her name; the court appointed Dickerson personal representative. In 2021, on behalf of the estate, he filed a wrongful death action against the hospital and the physicians who treated Matlock there alleging medical malpractice. Instead of hiring an attorney to file the lawsuit, Mr. Dickerson filed it “pro se”, meaning that he filed it himself.

The defendants filed a motion for judgment on the pleadings, arguing, as relevant here, that Mr. Dickerson, a non-attorney, was not authorized to file a complaint on behalf of the estate. The circuit court agreed, holding that “Dickerson, as a nonlawyer, was not authorized under Arkansas law to file a pro se complaint on behalf of the estate.” Op. at 2. Mr. Dickerson then filed a Notice of Appeal. Like the initial lawsuit, the Notice of Appeal was filed pro se.

Though the Court of Appeals seemed to agree with the circuit court’s ruling, it did not explicitly affirm it. Rather, the court held that because Dickerson was not authorized to filed the Notice of Appeal, it did not even have jurisdiction to hear the case:

However, like in the underlying litigation, in filing this appeal, Dickerson again engages in the unauthorized practice of law.

An administrator acting on behalf of an estate does so in a fiduciary capacity. Henson v. Cradduck, 2020 Ark. 24, at 6–7, 593 S.W.3d 10, 15. A person who is not a licensed attorney and is acting as an administrator cannot practice law in matters relating to his or her trusteeship on the theory that they are practicing for themselves. Id. In bringing a suit for wrongful death, a personal representative acts only as a “trustee of conduit,” and any proceeds recovered are held in trust for the benefit of the beneficiaries and not the estate. Id. And just as a complaint in such a situation is a nullity, so is the notice of appeal. See, e.g., Memphis Wrecking Co. v. Dir., 2021 Ark. App. 29, at 2. Because the notice of appeal and subsequent filings made by Dickerson are null and void, we lack jurisdiction over the matter and dismiss the appeal.

Id.

Therefore, the case was dismissed.

Bottom Line: The legal system can be complex. Though there are occasions when a non-attorney can file a case or otherwise represent themselves, there are numerous instances in which they cannot. For instance, as happened here, a non-lawyer may file a petition to open an estate and be appointed personal representative on his own behalf,* but may not file a wrongful death lawsuit that seeks to obtain monetary damages for that estate. In that same vein, such individuals may not file a Notice of Appeal on behalf of the estate. This issue also occasionally comes up in the context of non-attorney executives or shareholders  attempting to represent their corporations in legal proceedings. See, e.g., DeSoto Gathering Co. v. Hill, 2017 Ark. 326.

Navigating Arkansas law, from personal injury and/or wrongful death to business litigation matters, can be difficult. Technical defects that might seem quite small can be the reason a party loses any chance of receiving relief in their lawsuit. Especially in matters where a big issue and/or lots of money is at stake, it is important to consult with a licensed, competent Arkansas attorney before moving forward and, if appropriate and possible, hire one.

*See Linked Docket Sheet, In re Estate of Betty Matlock, 26PR-20-592.

$1.1M Verdict Against Rapper Fetty Wap’s Record Label Overturned Due to Improper Closing Statement

The Golden Rule, the idea that we should treat others the way we want to be treated, is a good aphorism. It’s a pithy encapsulation of how people in a society should behave. However, the divide between common sense, morality, etc., and what is permissible in courts of law can be significant. In that vein, one of the fundamental rules of trial advocacy is that attorneys are not allowed to make Golden Rule appeals to a jury. It really is one of the easiest ways to get a big verdict reversed, as a former employee of rapper Fetty Wap who sued his record label found out in a New Jersey case. The link gives more details, but essentially, the plaintiff’s lawyer asked the jury to award her what they think they’d deserve if they were in her shoes. That’s almost always disallowed. Now, the parties will gear up for another trial.

If the jury awarded $1.1 million (that’s 1738 turns around 630) there’s a good chance they were on the plaintiff’s side anyway, without the offending statements. Just one more instance showing how important it is to do your best to win but also to make sure to do so in the right way.

Big News in Legal Citation!

This is big legal citation news. As stated in this ABA Journal post, the “cleaned up” citation has made its way to the U.S. Supreme Court. What is “cleaned up”, you might be asking, fully aware that you’ll likely regret it?

Legal writing is one of several varieties of writing in which citing one’s sources is of great importance. If you are going to represent to a court and/or a party that the law says a certain thing, you generally need to back it up with what is known as “authority”: essentially, a statute, judicial opinion, secondary source, etc., that supports your legal position. However, lawyers also, either out of candor, adherence to citation rules, or a simple desire to bolster their point, also cite, or at least account for, at least some of the authority cited by the source they’re citing. 

For instance, if you cite a 2013 decision from the Arkansas Court of Appeals that has a really helpful quote, and that case relies on an earlier case from a higher court (like the Supreme Court of Arkansas), you’d want to make a note of that. But maybe the case you’re citing cites a lot of other authority, and/or goes back and forth between quoting a couple of old cases and inserting its own language. Your citation can get pretty jumbled! For example, here’s an excerpt from a blog post discussing a journal article in support of the “cleaned up” citation*:

Let’s say that we represent Mr. Smith in his claim that officers used excessive force. In our brief we write:

Officers used excessive force when they arrested Smith.

In evaluating these claims, a court must consider (1) whether “the handcuffs were unreasonably tight, [sic] (2) [whether] the defendants ignored the plaintiff’s pleas that the handcuffs were too tight; and (3) the degree of injury to the wrists.” Lynch ex rel. Lynch v. City of Mount Vernon, 567 F.Supp.2d 459. 468-469 (S.D.N.Y.2008) (emphasis and alteration omitted) (quoting Esmont v. City of N.Y., 371 F.Supp.2d 202, 215 (E.D.N.Y.2005)).

Higginbotham v. City of New York, 105 F. Supp. 3d 369, 377 (S.D.N.Y. 2015).

There are even clunkier examples that would really drive the point home, but I’m going to save you that torture. It suffices to say, there’s a fair bit of unnecessary information and verbiage in the passage above, and this is a common issue in legal writing.

The “cleaned up” citation is merely a way to try to smooth things out a bit so we can avoid quotations that are over full of citations to other cases, parenthetical, bracketed language, etc. As much as I enjoy legal research and writing, speaking both as a lawyer and former judicial law clerk, I’m all for simplifying this part Of the process. Even if I do still hold out hope for a term that feels more suitable, something, along the lines of “streamlined”, “pruned”, “neatened”, etc...but, of course, better.

Also, here’s hoping the first sentence in this post is the legal nerdiest thing that is ever posted on this page.

*See how easily you can end up with multiple sources involved for just one point?