Argued: January 25, 2018
Hillsborough-southern judicial district.
& Swartz, P.C., of Boston, Massachusetts (David P.
Angueira on the brief and orally), for the plaintiff.
Wadleigh Starr & Peters P.L.L.C., of Manchester (Todd J.
Hathaway on the joint brief and orally), for defendants Emery
Johnston, M.D., and Elliot Hospital.
Sulloway & Hollis, P.L.L.C., of Concord (Peter A. Meyer
and Jay Surdukowski on the joint brief), for defendant Gary
D. Fleischer, M.D.
& Eldridge LLP, of Cambridge, Massachusetts (Stephen M.
Fiore and Martin C. Foster on the joint brief), for
defendants Tung Thuy Nguyen, M.D., and Southern New Hampshire
appeal arises from the dismissal of a medical malpractice
action filed by the plaintiff, Nicole Alward, against
defendants Emery Johnston, M.D., Gary Fleischer, M.D., Tung
Thuy Nguyen, M.D., Elliot Hospital, and Southern New
Hampshire Medical Center. The plaintiff argues that the Superior
Court (Temple, J.) erred in granting the
defendants' motion to dismiss based on the doctrine of
judicial estoppel. We reverse and remand.
following relevant facts are found either in the
plaintiff's allegations, which we accept as true, or in
the trial court's orders, recited in the light most
favorable to the plaintiff. In July 2013, the plaintiff
experienced persistent and severe lower back pain as well as
numbness and weakness in her right leg. In July and August of
2013, she visited the emergency departments of the two
defendant hospitals, was evaluated by the defendant doctors,
and underwent two back surgeries. Throughout these attempts
to treat her symptoms, the plaintiff's pain remained
consistent and at times worsened. Thereafter, she suffered
from "severe pain, bilateral weakness, and numbness, and
both bowel and urinary incontinence," and was unable to
her second back surgery, the plaintiff consulted with two
different attorneys about a potential medical malpractice
claim. Ultimately, both attorneys advised the plaintiff that
they were unwilling to represent her in a medical malpractice
action against the treating physicians and hospitals. As a
result, the plaintiff believed that her potential claim had
plaintiff consulted with a bankruptcy attorney, Mark Cornell,
in April 2015. She informed Attorney Cornell about her
potential medical malpractice claim and that other attorneys
had declined to pursue it. When Cornell drafted the
plaintiff's petition for chapter 7 bankruptcy, he did not
list the potential medical malpractice claim on the
plaintiff's schedule of assets. Cornell also failed to
advise the plaintiff that she needed to disclose this
potential claim to the bankruptcy trustee.
the documents prepared by Cornell, the plaintiff filed for
chapter 7 bankruptcy on July 23, 2015. The United States
Trustee appointed Steven Notinger as the chapter 7 trustee.
On December 22, 2015, the bankruptcy court granted the
plaintiff a discharge under 11 U.S.C. § 727 (2012).
ex-husband's suggestion, in February 2016, the plaintiff
consulted with a third law firm, Swartz & Swartz, P.C.,
which agreed to represent her and pursue the medical
malpractice claim. The plaintiff filed the medical
malpractice action against the defendants in superior court
on June 27, 2016. The plaintiff "did not understand or
know that she needed to advise" the bankruptcy court or
the trustee "of the change of status of the [p]otential
[c]laim." On June 13, Notinger had filed a "Report
of No Distribution" with the bankruptcy court, in which
he certified that "there is no property available for
distribution from the estate over and above that exempted by
law," and requesting to be discharged from further
duties as trustee. On July 14, the bankruptcy court issued an
order closing the case and discharging the trustee.
October 28, the defendants moved to dismiss, arguing that the
plaintiff should be judicially estopped from pursuing her
medical malpractice claim because she failed to disclose it
on her schedule of assets. The plaintiff immediately
consulted with new bankruptcy counsel, who filed a motion to
reopen her bankruptcy case "to administer a potential
asset" and requested the appointment of a trustee
"to protect the interests of creditors and the
[plaintiff]." The bankruptcy court granted the motion on
November 14 and the United States Trustee appointed Notinger
as the trustee.
plaintiff then filed an objection to the defendants'
motion to dismiss, asserting that her failure to list the
malpractice claim on her bankruptcy schedule was the product
of inadvertence or mistake, and citing federal cases
recognizing that judicial estoppel should not apply under
those circumstances. See, e.g., New Hampshire v.
Maine, 532 U.S. 742, 753 (2001). The plaintiff also
asserted that the defendants' judicial estoppel argument
was "moot" in light of the fact that the bankruptcy
court had granted her motion to reopen and a trustee had been
appointed to administer the potential asset. She included, as
exhibits to her objection, a copy of her motion to reopen,
the bankruptcy court's order granting the motion, and the
notice from the United States Trustee of Notinger's
appointment as trustee. The plaintiff also attached a letter
from Notinger to Swartz & Swartz, P.C., dated November
15, 2016, which stated: "This letter confirms that I
intend to engage your firm (subject to bankruptcy court
approval) to represent me in the Alward medical malpractice
trial court granted the defendants' motion to dismiss,
concluding that the plaintiff was judicially estopped from
pursuing her medical malpractice claim. The court ruled that
the plaintiff's failure to disclose her malpractice claim
to the bankruptcy court was not due to inadvertence or
mistake. The court also disagreed that "the issue of
judicial estoppel was rendered moot" by the reopening of
the bankruptcy case, relying on Moses v. Howard
University Hospital, 606 F.3d 789 (D.C. Cir. 2010), and
other federal cases cited therein. See Moses, 606
F.3d at 800 (applying judicial estoppel to the
plaintiff-debtor and rejecting his argument that "he
cured his failure to disclose" his claims by reopening
the bankruptcy and amending his bankruptcy schedule). In
ruling that the plaintiff was judicially estopped from
pursuing her medical malpractice claim, the trial court noted
that, "[l]ike the plaintiff in Moses, the
plaintiff here only moved to reopen her bankruptcy
proceedings to amend her schedule of assets after
the defendants filed their motion to dismiss based on
judicial estoppel." The court stated that the timing of
these events "strongly suggests that the plaintiff's
motion . . . was prompted entirely by the defendants'
motion to dismiss," which "is exactly the type of
behavior that the court in Moses condemned."
plaintiff moved for reconsideration. She argued, inter
alia, that applying judicial estoppel to bar the
malpractice claim would be inequitable, in part because it
would allow the defendants to escape responsibility for their
negligence at the expense of the plaintiff's creditors,
whose interests the court must consider, given that the
bankruptcy trustee had "taken control of the instant
lawsuit for the benefit of the estate." Relying on
Wood v. Household Finance Corp., 341 B.R. 770, 774
(W.D. Wash. 2006), the plaintiff asserted that judicial
estoppel did not apply to the trustee.
order denying reconsideration, the court stated:
[T]he plaintiff claims that the Chapter 7 Trustee "has
now taken control of the instant lawsuit for the benefit of
the estate, not for the benefit of Plaintiff/debtor,"
and thus the issue of judicial estoppel is moot because the
Trustee cannot be held accountable for the plaintiff's
prior assertions. In support of her position, the plaintiff
cites [Wood], in which the court held that
"there is a difference between a debtor attempting to
pursue an action for his own benefit, and a trustee pursuing
an action for the benefit of creditors." Wood,
341 B.R. at 774. However, in Wood, the trustee had
been "substituted as the real party of interest in the
instant action," entirely replacing the original
plaintiff. Id. at 771. There has been no such
replacement in the instant case. The Trustee has not filed an
appearance, a motion to be substituted as the real party in