J-A28033-23

2024 PA Super 14

N.T., A MINOR, BY AND THROUGH 

MARY JANE BARRETT, ESQUIRE, 

GUARDIAN OF THE ESTATE OF N.T. 

Appellant

v.

THE CHILDREN'S HOSPITAL OF 

PHILADELPHIA, STEPHANIE MANN, 

M.D., MARK P. JOHNSON, M.D., THE 

HOSPITAL OF THE UNIVERSITY OF 

PENNSYLVANIA AND STEVEN C. 

HORII, M.D.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3015 EDA 2022

Appeal from the Order Entered November 10, 2022

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): 160301791

BEFORE: OLSON, J., STABILE, J., and COLINS, J.*

OPINION BY COLINS, J.: FILED JANUARY 25, 2024

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 defendants) 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 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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claims are barred by judicial estoppel. For the reasons set forth below, we 

affirm.

This case is one of three cases filed on Minor’s behalf seeking damages 

for the same injuries that she suffered in utero prior to her birth. In December 

2007, when Minor’s mother (Mother) was pregnant with Minor and her twin 

sister, Mother was diagnosed with twin-to-twin transfusion syndrome (TTTS) 

by her treating physicians in North Carolina. Complaint ¶¶29-34. TTTS is a 

condition where abnormal communicating blood vessels in the placenta allow 

blood to circulate between the fetuses that a woman is carrying, jeopardizing

the survival of both fetuses. Id. ¶¶2-3. Mother’s treating physicians referred 

her to CHOP for possible selective laser photocoagulation of communicating 

vessels treatment (SLPCV), and Mother was seen at CHOP on January 2, 2008.

Id. ¶¶35-36. The CHOP defendants concluded that Mother was not a 

candidate for SLPCV, based on ultrasounds that were interpreted by the HUP 

radiologist as showing an infection, and did not perform SLPCV on Mother. Id.

¶¶36-41. Mother then went to an Ohio physician, Dr. Timothy Crombleholme, 

who performed SLPCV on Mother at Cincinnati Children’s Hospital in 

Cincinnati, Ohio on January 14, 2008. Id. ¶¶9, 45-47. Minor was born in 

April 2008 with severe neurological deficiencies and her twin sister was born 

healthy with no neurological injury. Id. ¶¶10, 49-51.

On January 26, 2011, an action docketed as Case No. 110103674 (the 

2011 action) was brought on Minor’s behalf in the Philadelphia County Court 
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of Common Pleas against CHOP, Dr. Mann, and Dr. Crombleholme. The 2011 

action sought damages for severe and permanent neurological injuries 

suffered by Minor, including cerebral palsy, microcephaly, optic atrophy,

immature retinas, blindness, bilateral brain hemorrhages, a seizure disorder, 

and a near complete absence of a cerebellum, and alleged that Dr. 

Crombleholme negligently performed the SLPCV and that his SLPCV caused 

those injuries. 2011 Action Amended Complaint ¶¶8-9, 70-73, 76-77, 96-

104. The complaint in the 2011 action further alleged that CHOP was liable 

for the injuries caused by Dr. Crombleholme because it allegedly inadequately 

trained him when he was a physician at CHOP and that CHOP and Dr. Mann 

were liable for Minor’s injuries because they allegedly misdiagnosed the 

condition of the fetuses and negligently failed to treat the TTTS. 2011 Action 

Amended Complaint ¶¶8-9, 52-53, 78-95. 

On December 21, 2012, the court dismissed Minor’s claims against Dr. 

Crombleholme for lack of personal jurisdiction. The 2011 action continued 

against CHOP and Dr. Mann and in December 2014, a second amended 

complaint was filed adding Dr. Johnson as a defendant and alleging that the 

CHOP defendants were liable for Minor’s injuries because they misdiagnosed 

the condition of the fetuses and negligently failed to treat the TTTS. 2011 

Action Second Amended Complaint ¶¶46-72. This amended complaint also 

alleged that Dr. Crombleholme’s SLPCV did not properly treat Minor’s TTTS. 

Id. ¶41. On May 2, 2016, the trial court, over the CHOP defendants’ 
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objections, granted the plaintiff’s motion to discontinue the 2011 action 

without prejudice. 

In 2013, while the 2011 action was pending, an action docketed as Case 

No. 1:13-cv-230 (the Ohio action) was filed on Minor’s behalf against Dr. 

Crombleholme and Cincinnati Children’s Hospital (the Ohio defendants) in 

federal district court in Ohio. The complaint in the Ohio action sought 

damages for the same injuries to Minor as the 2011 action and alleged that 

the Ohio defendants were liable for those injuries because Dr. Crombleholme 

negligently performed the SLPCV and his SLPCV caused Minor’s injuries. Ohio 

Action Complaint ¶¶3, 71-107. Counsel for Minor in the Ohio action was the 

same counsel who represented Minor in the 2011 action.

On March 18, 2016, this action, Case No. 160301791, was filed on 

Minor’s behalf against the CHOP defendants and the HUP Defendants in the 

Philadelphia County Court of Common Pleas. The complaint in this action 

sought damages for the same injuries to Minor as the 2011 action and the 

Ohio action. Complaint ¶¶50-51. This complaint alleged that the CHOP 

defendants were liable for Minor’s injuries because they misdiagnosed the 

condition of the fetuses and negligently failed to treat the TTTS. Id. ¶¶52-

75. The complaint alleged that the HUP defendants were liable for Minor’s 

injuries on the ground that they allegedly failed to properly interpret Mother’s 

ultrasounds and that the CHOP defendants relied on the HUP defendants’ 

misinterpretation of the ultrasounds in their diagnoses and decision not to 
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perform SLPCV. Id. ¶¶36-44, 76-91. Counsel for Minor in this action is the 

same counsel who represented Minor in the Ohio action and the 2011 action.

The Ohio action went to trial in October 2017. Shortly before trial, Minor 

successfully moved to amend the Ohio complaint to add a claim for punitive 

damages based on the claims that her injuries were caused by Dr. 

Crombleholme’s “blind firing” of the laser in performing the SLPCV, rather than 

directing it at vessels in the placenta at which it was supposed to be directed, 

and that Dr. Crombleholme took efforts to conceal the fact that her injuries 

were caused by his SLPCV. Ohio Action 9/28/17 Order at 1-3, 5-10. Minor 

also sought to exclude all reference to the present action from the trial of the 

Ohio action and the Ohio court ruled that the Ohio defendants could not 

mention this action in their opening statements. Ohio Action N.T., 10/11/17, 

at 5-11. At the trial of the Ohio action, Minor’s medical expert on causation 

testified that Dr. Crombleholme caused Minor’s injuries by firing the laser at 

healthy placenta tissue multiple times during the SLPCV and damaging 30% 

of the placenta that was nourishing Minor and testified that Minor’s injuries 

were caused by hypoxic injury from the placental damage and not by TTTS. 

Ohio Action N.T. Trial, 10/16/17 a.m., at 113-15; Ohio Action N.T. Trial, 

10/16/17 p.m., at 60-61, 65-66, 74, 77-78; Ohio Action N.T. Trial, 10/17/17 

a.m., at 64. Minor’s expert further testified that Minor’s brain was normal and 

uninjured until the SLPCV was performed, that the TTTS was a Stage 2 when 

the SLPCV was performed, and that Minor’s development would have been 
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normal and she would have had no brain damage if the SLPCV had been 

properly performed when it was done on January 14, 2008. Ohio Action N.T. 

Trial, 10/16/17 p.m., at 60-62, 64, 74; Ohio Action N.T. Trial, 10/17/17 a.m., 

at 63-64; Ohio Action N.T. Trial, 10/25/17, at 54. In addition, Minor’s counsel 

argued to the jury that Minor had no brain injury when she came under Dr. 

Crombleholme’s care, that she would have suffered no injury if he had 

properly performed the SLPCV, and that her injury was caused by Dr. 

Crombleholme damaging 30% of Minor’s placenta and was not caused by 

TTTS. Ohio Action N.T. Trial, 10/13/17, at 11; Ohio Action N.T. Trial, 

10/26/17, at 15-18. 

While the jury was deliberating, Minor’s claims against the Ohio 

defendants were settled for $7 million. Ohio Action Settlement and Release 

Agreement at 1. This settlement agreement provided that it did not apply to 

claims against the CHOP defendants and HUP defendants and that the plaintiff 

agreed “to refrain from making disparaging or critical statements about the 

care provided to [Minor] or [Mother]” by the Ohio defendants. Id. at 1, 5. 

This settlement was approved by a probate court in Ohio. Probate Court 

Docket at 3.

Following the settlement of the Ohio action, the CHOP defendants and 

HUP defendants were permitted to file and filed amended answers in this 

action pleading as new matter that Minor’s claims were barred by judicial 

estoppel based on the Ohio action and settlement. CHOP Defendants’ 
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Amended Answer and New Matter ¶¶106, 108; HUP Defendants’ Amended 

Answer and New Matter ¶¶106, 108. On August 24, 2022, the CHOP 

defendants and the HUP defendants filed motions seeking dismissal of all 

claims against them in this action on the grounds, inter alia, that Minor’s 

claims were barred by judicial estoppel.1 On November 10, 2022, the trial 

court granted both motions and dismissed the action on the grounds that it 

was barred by judicial estoppel. Trial Court Order, 11/10/22; Trial Court 

Opinion, 11/10/22, at 4-7. This timely appeal followed.

Appellant presents the following single issue for our review:

Was it an error of law to dismiss the underlying action on judicial 

estoppel grounds?

Appellant’s Brief at 4. The CHOP defendants and HUP defendants argue both 

that the trial court correctly concluded that this action was barred by judicial 

estoppel and that the dismissal can also be affirmed on alternative grounds. 

Whether an action is barred by judicial estoppel is a question of law. Widener 

University v. Estate of Boettner, 726 A.2d 1059, 1061-62 (Pa. Super.

1999). Our standard of review of this issue is therefore de novo, and our 

scope of review is plenary. Buffalo Township v. Jones, 813 A.2d 659, 664 

n.4 (Pa. 2002).

____________________________________________

1 Prior motions seeking summary judgment had previously been denied by 

another trial court judge. Appellant, however, did not raise the coordinate 

jurisdiction rule as an issue in her brief and any claim that the dismissal of 

this action violated the coordinate jurisdiction rule is therefore waived. 

Pa.R.A.P. 2116(a); In re R.A.M.N., 230 A.3d 423, 431 (Pa. Super. 2020). 
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“Judicial estoppel is an equitable, judicially-created doctrine designed to 

protect the integrity of the courts by preventing litigants from ‘playing fast 

and loose’ with the judicial system by adopting whatever position suits the 

moment.” Sunbeam Corp. v. Liberty Mutual Insurance Co., 781 A.2d 

1189, 1192 (Pa. 2001) (quoting Gross v. City of Pittsburgh, 686 A.2d 864 

(Pa. Cmwlth. 1996)). Judicial estoppel bars a party from asserting a position 

in litigation that is inconsistent with a position that the party previously 

successfully maintained with respect to the same legal and factual issue. In 

re Adoption of S.A.J., 838 A.2d 616, 620 (Pa. 2003); Grabowski v. 

Carelink Community Support Services, Inc., 230 A.3d 465, 472 (Pa. 

Super. 2020); Black v. Labor Ready, Inc., 995 A.2d 875, 878 (Pa. Super. 

2010). “The purpose of judicial estoppel is ‘to uphold the integrity of the 

courts by preventing parties from abusing the judicial process by changing 

positions as the moment requires.’” Adoption of S.A.J., 838 A.2d at 621

(quoting Trowbridge v. Scranton Artificial Limb Co., 747 A.2d 862 (Pa. 

2000)). 

Here, 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 
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performance of the SLPCV in Ohio on January 14, 2008 was a cause of her 

brain damage. Appellant’s Brief at 5-7, 9; Kontopoulos Expert Report at 3; 

Rotenberg Expert Report at 2; Yohay Expert Report at 3; Abrahams Expert 

Report at 4; Reznick Expert Report at 2. 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. Ohio Action N.T. Trial, 10/13/17, at 11; Ohio 

Action N.T. Trial, 10/16/17 a.m., at 113-15; Ohio Action N.T. Trial, 10/16/17 

p.m., at 60-62, 64-66, 74, 77-78; Ohio Action N.T. Trial, 10/17/17 a.m., at 

63-64; Ohio Action N.T. Trial, 10/25/17, at 54; Ohio Action N.T. Trial, 

10/26/17, at 15-18. 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. 

While there may be more than one cause of an injury, that cannot 

reconcile the inconsistent positions here. Minor’s claims in this action were 

not consistent with a claim that her injuries were caused by both Defendants’ 

conduct and by the Ohio SLPCV. None of Minor’s expert reports in this action 

claimed that delay and TTTS were a contributing cause of Minor’s brain 

damage in addition to or in conjunction with damage to the placenta from the 

SLPCV. None of the experts in this action opined that delay causes an 
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increased difficulty or risk of errors or harm to healthy tissue in performing 

SLPCV. Moreover, Minor’s experts in this action specifically based their 

opinions that the delay in treating the TTTS was a cause of Minor’s injuries on 

the conclusion that the brain damage was caused by hypoxia and the absence 

of another source of hypoxia and on the opinion that the SLPCV “was 

completed uneventfully.” Rotenberg Expert Report at 2; Yohay Expert Report 

at 2-3.

Appellant argues that judicial estoppel cannot apply (1) because a 

settlement, rather than a determination by a court or jury, allegedly cannot 

satisfy the element of successful maintenance of the inconsistent position; (2) 

because expert testimony and closing arguments at trial allegedly are not a 

basis for judicial estoppel; and (3) because the plaintiffs in the Ohio action 

and this action were allegedly not the same. None of these arguments is 

meritorious.

With respect to the first of these arguments, the law is presently unclear 

whether successful maintenance of the prior position is a mandatory element 

of judicial estoppel or only a factor that favors application of judicial estoppel.

In Adoption of S.A.J., the Pennsylvania Supreme Court noted that 

“[w]hether successful maintenance of the prior inconsistent position of litigant 

is strictly necessary to implicate judicial estoppel in every case, or whether 

success should instead be treated as a factor favoring the doctrine’s 

application, is the subject of some uncertainty” and did not decide the issue 
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because successful maintenance was shown. 838 A.2d at 620-21 n.3. See 

also Yoder v. McCarthy Construction, Inc., 291 A.3d 1, 15-16 n.19 (Pa. 

Super. 2023) (noting that this question remains open).

Assuming that successful maintenance is an essential element of judicial 

estoppel, however, it is satisfied here. 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 (defendant was 

judicially estopped from claiming workers’ compensation immunity where it 

obtained dismissal of the plaintiff’s claim for workers’ compensation benefits 

by a stipulation that another company was the employer); Widener, 726 A.2d 

at 1062 (beneficiary’s acceptance of bequest from one estate that it received 

based on factual predicate barred it from contesting that fact in second 

estate). In Adoption of S.A.J., the Supreme Court specifically held that 

judicial estoppel does not require an adjudication and ruled that a party was 

judicially estopped from claiming paternity where he had obtained the benefit 

of not paying child support from his earlier denial of paternity by causing the 

child’s mother to cease pursuing a child support action. 838 A.2d at 618, 622-

23 & n.4. Contrary to Appellant’s mischaracterization, there was no ruling by 

a decision maker on the child support in Adoption of S.A.J.; rather, the 
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proceedings were terminated by the opposing party’s withdrawal of the child 

support complaint and a dismissal for lack of activity. Id. at 618. 

A settlement that results in a payment to the plaintiff can constitute 

successful maintenance of a prior litigation position that supports judicial 

estoppel. Yoder, 291 A.3d at 16-17; Grabowski, 230 A.3d at 473-74; Ligon 

v. Middletown Area School District, 584 A.2d 376, 379-80 (Pa. Cmwlth. 

1990). In Yoder and Grabowski, this Court held that plaintiffs who obtained 

workers’ compensation benefits through a settlement, a compromise and 

release agreement that was approved by a workers’ compensation judge, 

were judicially estopped from disputing their employment status. Yoder, 291 

A.3d at 16-17; Grabowski, 230 A.3d at 473-74. In Ligon, the 

Commonwealth Court held that a plaintiff was barred by judicial estoppel from 

asserting that a defendant with whom he had entered into a settlement at trial 

was immune from suit. 584 A.2d at 379-80. Here, Minor received a $7 million 

settlement that was approved by a probate court as a result of the assertions 

in the Ohio action that Dr. Crombleholme’s SLPCV caused her brain injuries. 

Appellant argues that Associated Hospital Service of Philadelphia 

v. Pustilnik, 439 A.2d 1149 (Pa. 1981); Marazas v. W.C.A.B. (Vitas 

Healthcare Corp.), 97 A.3d 854 (Pa. Cmwlth. 2014); and Philadelphia 

Suburban Water Co. v. Pennsylvania Public Utility Commission, 808 

A.2d 1044 (Pa. Cmwlth. 2002) (en banc), bar judicial estoppel based on a 

settlement. We do not agree. 
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In Pustilnik, the Pennsylvania Supreme Court held only that a 

settlement did not constitute successful maintenance of a claim as to the 

amount of a subrogee’s claim and therefore did not estop the settling plaintiff 

from disputing the amount of the subrogee’s claim, 439 A.2d at 1151, not that 

a settlement can never constitute successful maintenance of a position. Here, 

in contrast to Pustilnik, the issue on which Minor was estopped was the cause 

of her injuries, not the amount of her damages, and receiving $7 million is 

clearly successful maintenance of the claim that Dr. Crombleholme’s SLPCV 

caused those injuries. Even if the settlement is consistent with there being 

more than one cause of Minor’s brain damage or with the contention that some 

damage occurred before the SLPCV because the settlement was not for the 

full damages claimed, the settlement is irreconcilably inconsistent with the 

claim on which this action was based that the SLPCV did not cause Minor’s

brain damage. 

The language in Marazas and Philadelphia Suburban Water Co. that 

settlement of a claim does not constitute successful maintenance of the prior 

position, Marazas, 97 A.3d at 860; Philadelphia Suburban Water Co., 808 

A.2d at 1161, is dicta. Neither Marazas nor Philadelphia Suburban Water 

Co. involved a settlement. Marazas rejected judicial estoppel on the ground 

that the opposing party’s inducing the plaintiff to drop a claim was insufficient 

to support judicial estoppel. 97 A.3d at 860-61. That ruling is inconsistent 

with the Supreme Court’s decision in Adoption of S.A.J. and is therefore not 
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good law.2 In Philadelphia Suburban Water Co., judicial estoppel did not 

apply because the subject matter of the two proceedings was different. 808 

A.2d at 1161-62.

Appellant’s second argument fails for two reasons. First, the contention 

that expert testimony and closing arguments are not sufficient to support 

judicial estoppel is incorrect. 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.

While there are statements in Commonwealth Court decisions that 

estoppel requires verified or sworn statements, Nagle v. TrueBlue, Inc., 148 

A.3d 946, 954 (Pa. Cmwlth. 2016); Marazas, 97 A.3d at 860, those decisions 

are not binding on this Court. Riverview Carpet & Flooring, Inc. v. 

Presbyterian SeniorCare, 299 A.3d 937, 977 n.29 (Pa. Super. 2023);

Beaston v. Ebersole, 986 A.2d 876, 881 (Pa. Super. 2009) (en banc). 

Because the Commonwealth Court’s statements appear to confuse the 

requirements for judicial estoppel with the requirements for judicial 

admissions, we do not find those decisions persuasive. The cases concerning 

____________________________________________

2 As discussed below, decisions of the Commonwealth Court are not binding 

on this Court. 
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expert testimony that Appellant cites, Millcreek Township School District 

v. Erie County Board of Assessment Appeals, 140 A.3d 737 (Pa. Cmwlth. 

2016), and Kirk v. Raymark Industries, Inc., 61 F.3d 147 (3d Cir. 1995),

address the issue of whether statements by experts are admissible as 

admissions of the party that retained them or other exceptions to the hearsay 

rule and do not involve judicial estoppel. The authority that Appellant cites 

concerning closing arguments address whether arguments of counsel are

evidence or judicial admissions, not whether closing arguments can support 

judicial estoppel. 

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, 967 N.E.2d 892 (Ill. App. 2012), the court specifically 

rejected the claim that judicial estoppel cannot be based on expert testimony 

and found judicial estoppel where the plaintiffs obtained a substantial 

settlement based on expert testimony that was inconsistent with their later 

position. In Smeilis, the plaintiffs, in the first of two actions that they filed 

for the same injury, submitted an expert opinion that the hospital that had 

initially treated the patient was negligent in failing to diagnose the patient and 

perform immediate surgery, that the patient would not have suffered most of 

her neurological damage if the hospital performed the surgery while she was 

under its care, and that surgery performed when the patient first came under 
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a later physician’s care would not have altered the severity of the patient’s 

neurological damage. Id. at 895-97. Following discovery, including the 

deposition of this expert, plaintiffs settled their claims against the hospital for 

$3 million. Id. at 896-97. The plaintiffs then filed a second suit against the 

physician who had later treated the patient, basing that action on the opinion 

of a different expert who opined that the hospital was not negligent and that 

if surgery had been performed promptly when the patient came under the 

later physician’s care, she would not have suffered as much neurological 

damage. Id. at 897. The court held that these conflicting expert opinions 

constituted the taking of inconsistent positions, that the $3 million settlement 

constituted a successful outcome, and that the second action was barred by 

judicial estoppel. Id. at 899-907. 

Appellant argues that Smeilis is distinguishable and that the 

inconsistent positions should be excused here because the two actions were 

separated due to lack of jurisdiction over Dr. Crombleholme in Pennsylvania, 

rather than a deliberate attempt to litigate the claims separately. That 

distinction is without merit. The issue here is the asserting of conflicting 

positions on the cause of Minor’s injuries, not the bringing of separate actions. 

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., 137 A. 104 

(Pa. 1927), a plaintiff cannot introduce expert opinions from different medical 
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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, 885 A.2d 1045, 1060-63 (Pa. Super. 2005) 

(en banc). 

In any event, even if submitting expert testimony and closing arguments 

in court were not a sufficient basis for judicial estoppel by itself, Appellant’s 

argument would fail for the second reason that the complaint in the Ohio 

action would be a basis for estoppel. The complaint in the Ohio action pled 

that Dr. Crombleholme’s SLPCV itself caused Minor’s injuries. Ohio Action 

Complaint ¶¶3, 71-77, 87-95. That position is irreconcilably inconsistent with 

Minor’s position in this case that Dr. Crombleholme’s SLPCV “was completed 

uneventfully.” Rotenberg Expert Report at 2; Yohay Expert Report at 2.

Appellant’s final argument, that the plaintiffs in the Ohio action and this 

action are different is also without merit. Both this action and the Ohio action 

were brought on behalf of Minor and name Minor as the plaintiff. The only 

difference is that Minor was acting through different guardians in the two 

cases. The plaintiff in this action is Minor “by and through” a guardian of 

Minor’s estate who was appointed by a Pennsylvania court “for the purpose of 

protecting the Minor’s interest in potential litigation.” Complaint at 1-2 & ¶11; 

Philadelphia County Orphans’ Court Order, 8/19/15. The plaintiff in the Ohio 

action at the time of trial and settlement was Minor “by and through” a 
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different guardian of Minor’s estate who was appointed by an Ohio court with 

his powers limited to the Ohio action. Ohio Action 9/28/17 Order at 1; Ohio 

Probate Court 9/18/15 Order and Letters of Guardianship.3 

The fact that this action was brought by a different guardian for Minor 

than the guardian who litigated and settled the Ohio action does not make the 

parties different. Under both Pennsylvania and Ohio law, the minor, not the 

guardian, is the plaintiff and real party in interest in an action brought on 

behalf of a minor by a guardian. Pa.R.Civ.P. 2027 (referring to minor as “a 

party to the action”); Pa.R.Civ.P. 2028 (prescribing form of caption of “A, a 

Minor, by B, Guardian” in “[a]n action in which a minor is plaintiff”); 

Winterhalter v. West Penn Power Co., 512 A.2d 1187, 1188 n.1 (Pa. 

Super. 1986) (although represented by guardians, minor “is the real party to 

this action”); Lanzalaco v. Lanzalaco, 976 N.E.2d 309, 313 (Ohio App. 

2012) (where guardian brings suit on behalf of a minor, the minor, not the 

guardian, is the plaintiff and real party in interest); Slusher v. Ohio Valley 

Propane Services, 896 N.E.2d 715, 721 (Ohio App. 2008) (same). The 

language of Pa.R.Civ.P. 2026 defining “guardian” as “the party representing 

the interest of a minor party in any action” does not suggest that the guardian, 

____________________________________________

3 Minor is not a resident of either Pennsylvania or Ohio; rather, she is a North 

Carolina resident. Complaint ¶12. The plaintiff in the 2011 action and the 

original plaintiff in the Ohio action before the Ohio guardian was appointed 

were identical; both actions were brought by Mother on behalf of Minor. 2011 

Action Amended Complaint at 1 & ¶12; Ohio Action Complaint at 1 & ¶5.
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rather than the minor, is the plaintiff or real party in interest. Rather, the use 

of the word “party” in Rule 2026 with respect to the guardian merely 

designates the person acting on behalf of the minor and refers to the minor 

as the “minor party.” 

Appellant’s argument concerning guardianship of a party’s estate being 

distinct from guardianship of the person is irrelevant. Both guardians here 

were guardians of the estate fulfilling the same function on behalf of Minor of 

bringing and prosecuting litigation on Minor’s behalf. Indeed, Appellant’s 

attempt to characterize the plaintiffs in the two actions as different appears 

to be the very type of gamesmanship that judicial estoppel is designed to 

prevent, given that the same counsel represented Minor in both actions. 

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.4 Accordingly, we affirm the order of the trial court.

Order affirmed.

____________________________________________

4 We therefore need not and do not address the alternative grounds for 

affirmance argued by the CHOP defendants and HUP defendants.
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Date: 1/25/2024