Position Change Is “Sound Trial Strategy”

Judicial estoppel cannot be invoked to preclude a plaintiff from disclaiming that a settling joint tortfeasor was negligent in an action against the remaining defendants, according to a decision of the New Jersey Appellate Division

we are unpersuaded by defendant’s argument that it would be unfair to allow plaintiff to disavow its prior position that Yang was negligent. Defendant bears the burden of proving Yang’s negligence for purposes of an allocation. That plaintiff will not assist him in that endeavor does not evince any intent to manipulate or mislead the court; rather, we find it to be sound trial strategy. Given the remedies available to defendant, we conclude it is unwarranted to invoke the extraordinary remedy of judicial estoppel as we conclude it is not “necessary to secure substantial equity.”

The court distinguished a precedent involving successive tortfeasors

Here, defendants do not argue that they are a successive tortfeasor, nor do they argue that the two-step apportionment procedure of Glassman expressly applies to joint tortfeasors. Rather, defendants argue in favor of expanding Glassman to joint tortfeasor cases, contending that the same principles relied on by the Court in that case motivate the application of the judicial estoppel doctrine in the joint tortfeasor context.

We disagree. As Judge Hurd found, Glassman does not extend its application of judicial estoppel to cases involving only joint tortfeasors. The Court made explicit that the Glassman two-step apportionment procedure only applies in “successive-tortfeasor cases” in which the plaintiff “has settled with the initial tortfeasor prior to trial.” Id. at 230-32 (emphasis added). Here, plaintiff initially alleged that two physicians failed to diagnose decedent’s cancer—an indivisible injury—thus making both tortfeasors “jointly or severally liable in tort for the same injury to person or property, . . .” N.J.S.A. 2A:53A-1 (emphasis added). Therefore, defendants fail the first step of the Glassman analysis, as they are unable to “present proof of the damages suffered by plaintiff as a result of the first causative event.” Glassman, 249 N.J. at 231 (emphasis added).

In addition, the Glassman Court specifically recognized that the apportionment process it had established for successive tortfeasors “is more complex than the familiar procedure conducted in joint-tortfeasor cases involving settling defendants.”

(Mike Frisch)