1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-15-1999

Klein v. Stahl Gmbh Co

Precedential or Non-Precedential:

Docket 98-3185

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Recommended Citation

"Klein v. Stahl Gmbh Co" (1999). 1999 Decisions. Paper 199.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/199
Filed July 15, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 98-3185 

JANET MARTIN KLEIN, 

Appellant 

v. 

STAHL GMBH & CO. MASCHINEFABRIK AND 

HEIDELBERG USA, SUCCESSOR-IN-INTEREST TO 

HEIDELBERG EASTERN, INC., 

Appellees 

On Appeal from the United States District Court 

for the Western District of Pennsylvania 

D.C. No. 95-448 

Magistrate Judge: Honorable Kenneth J. Benson 

Argued March 22, 1999 

Before: GREENBERG and ROTH, Circuit Judges and 

POLLAK, District Judge* 

(Filed July 15, 1999) 

Timothy D. Appelbe (argued) 

The Bank Tower, Suite 1208 

307 Fourth Avenue 

Pittsburgh, PA 15222 

_________________________________________________________________ 

* Honorable Louis H. Pollak, United States District Judge for the Eastern 

District of Pennsylvania, sitting by designation. 
 Michael J. Bruzzese 

 The Bank Tower, Suite 1201 

 307 Fourth Avenue 

 Pittsburgh, PA 15222 

 Attorneys for Appellants 

 Mark C. Schultz (argued) 

 Cozen & O'Connor 

 200 Four Falls Corporate Center 

 Suite 400 

 West Conshohocken, PA 19428 

 Charles Kirshner 

 Margolis Edelstein 

 1500 Grant Building 

 Pittsburgh PA 15219 

 Attorneys for Appellees 

OPINION OF THE COURT 

POLLAK, District Judge 

This products liability case was commenced in a 

Pennsylvania state court and was then removed, on 

grounds of diversity, to the District Court for the Western 

District of Pennsylvania. After discovery had begun under 

the supervision of a Magistrate Judge, the parties agreed to 

have the Magistrate Judge take full charge of the case with 

responsibility for its disposition. Thereafter, the Magistrate 

Judge granted summary judgment in favor of defendants. 

From that judgment plaintiff has appealed. 

In granting summary judgment, the Magistrate Judge 

concluded that a party who has asserted conflicting factual 

positions in two different affidavits has done so in bad faith 

and should be barred by judicial estoppel from adopting the 

second position, even where the parties and the Magistrate 

Judge recognize that the second position is more likely 

truer to the underlying facts. We find that the Magistrate 

Judge abused his discretion by (1) invoking judicial 

estoppel without considering the sufficiency of less extreme 

sanctions that he might have found available under the 

Federal Rules of Civil Procedure or federal statutes, or 

 2 
under the court's inherent power, and (2) determining that 

the fact that a party has espoused two inconsistent

positions is, without more, conclusively demonstrative of 

bad faith. We will therefore vacate the judgment entered by 

the Magistrate Judge and remand for further proceedings. 

I. Facts 

Plaintiff Janet Klein worked for a Pittsburgh printer, 

where she operated a commercial printing machine known 

as a "buckle folder," which folded paper and trimmed it as 

it flowed out of the machine. The parties agree that, at least 

if improperly used, several parts of the buckle folder are 

capable of causing injury. There is an "upper slitter," which 

is a rotating shaft equipped with cutting knives, located 

above the level of the output table, and there is a"lower 

slitter" of somewhat different construction below the table. 

The two are not far apart. 

Though the folded paper flowed onto a "delivery table," 

the machine did not include a depository for the trimmed 

paper scraps. Klein and her co-workers generally placed 

cardboard boxes on the floor below the place from which 

the paper flowed. The paper scraps fell into the boxes in 

what the plaintiff describes as a "pillar-like effect," and 

when the pillar of paper scraps built up to the part of the 

machine in which the rotating shafts and knife blades were 

located, Klein would pat the pillar down. On February 22, 

1992, when Klein was reaching to pat a pillar down, her 

hand made contact with part of the machine and was 

seriously injured. 

II. Procedural History 

Klein sued the machine's manufacturer (Stahl GMBH &

Co. Maschinefabrik) and its American distributor 

(Heidelberg USA) in state court, alleging that she had 

"attempted to clear scrap paper that had accumulated 

underneath the machine when her right hand became 

trapped in the unguarded and unprotected folding rollers." 

Complaint P4. The defendants removed the case to federal 

court on diversity grounds, and the District Judge to whom 

the matter was assigned referred the case to a Magistrate 

 3 
Judge for the conduct of the pretrial phases of the

litigation. 

The defendants filed a motion for summary judgment on 

June 17, 1996 ("first summary judgment motion"), 

asserting that the machine had been built and distributed 

with "a barrier guard protecting the nip point between the 

slitter shaft and the shaft below it." A104. Klein responded 

to the motion by arguing that there had never been a 

barrier guard on the machine during her year and a half on 

the job. She argued in the alternative that if there ever had 

been a guard, "it interfered with the efficient operation of 

the machine and it was never identified as a guard or other 

type of safety device." Pl. Br. at 6. 

Klein's last contention in her response to the first 

summary judgment motion set the direction for much of 

the pre-trial practice that followed, and forms an important 

ingredient of the subject of this appeal. Klein argued that a 

barrier guard -- even if one had been present on the 

machine and did not interfere with its operation-- would 

not have prevented her injury "because she was injured on 

the upper slitter shaft, not at the location of the lower 

slitter shaft and drive shaft where the guard was designed 

to be installed." Id. In support of this last statement, Klein 

attached an affidavit dated July 10, 1996 in which she 

swore that "[e]ven if the [barrier guard] had been in place 

before my accident it would not have prevented my accident 

because my hand made contact with the upper slitter shaft 

located above the area where the [barrier guard] is located 

. . . ." A149-50 (hereinafter the "first affidavit"). 

Surprised by Klein's contention that she had been 

injured through contact with the upper slitter shaft-- not 

the lower slitter shaft, where they had presumed the injury 

had occurred -- the defendants, by letter, informed the 

Magistrate Judge that there was some likelihood that 

Klein's response had rendered the summary judgment 

motion moot and requested twenty days in which to 

"investigate whether [they] wish[ed] to file a reply brief or 

take some other action." A151. The Magistrate Judge

granted the request. A153. The defendants subsequently 

decided not to file any further response to the summary 

judgment motion. On November 15, 1996, the Magistrate 

 4 
Judge ruled on the defendants' first motion for summary 

judgment: 

 . . . counsel for defendants having sent the court a 

 letter . . . asserting that the facts presented in the 

 response to the motion may result in the motion being 

 rendered moot . . . [and] it appearing to the court that 

 defendants' motion for summary judgment has been 

 rendered moot by these developments; 

 IT IS ORDERED that the defendants' motion for 

 summary judgment (Docket #17) is withdrawn as 

 MOOT. 

A176-77. The order made no mention of Klein's first two 

arguments -- that there had been no barrier guard affixed 

to the machine during the period that she operated the 

machine, and, alternatively, that if there was a guard or 

other safety device auxiliary to the machine it had not 

functioned properly and had not been properly labeled. 

On January 27, 1997, the District Court, acting pursuant 

to the parties' agreement, assigned the case to the

Magistrate Judge for disposition. Three days later, the 

defendants submitted three motions in limine, one of which 

sought "to preclude evidence of subsequent accidents/ 

incidents occurring on the same machine." A194-204. In 

particular, the defendants sought to preclude evidence of 

an accident suffered subsequent to Klein's accident by 

Carol Lamothe -- one of Klein's former co-workers-- on the 

same machine.1 The motion relied chiefly on the following 

short excerpt from deposition testimony that Lamothe had 

given in a case that she had also brought against Stahl and 

Heidelberg: 

 Q. If I asked you to point on one of these photographs 

 to the place where your hand got caught, could 

 you do that or no? 

 A. No, I could not. 

A195; see also A208. Defendants argued that the 

deposition testimony showed "that there is no evidence that 

Ms. Lamothe caught her hand in the same location where 

_________________________________________________________________ 

1. The same attorney represented both Klein and Lamothe. 

 5 
the plaintiff in the case at bar alleges that she caught her 

hand." A195. Because Lamothe did not know precisely

where her hand was caught, and Klein had averred in her 

first affidavit that her "hand made contact with the upper 

slitter shaft," A150, defendants contended that evidence of 

the Lamothe accident was not probative, or at least was 

more prejudicial than probative. A196. 

The Magistrate Judge granted the motion and precluded 

the evidence. A218. Relying on Barker v. Deere & Co., 60 

F.3d 158 (3d Cir. 1995) -- which holds that a"district court 

must be apprised of the specific facts of previous accidents 

in order to make a reasoned determination as to whether 

the prior accidents are `substantially similar' " and thus 

admissible in evidence -- the Magistrate Judge reasoned as 

follows: 

 [Lamothe stated] that she cannot point to the place on 

 the machine where her hand got caught. Plaintiff has 

 described with some specificity where her hand got 

 caught in the machine. She states that she was patting 

 down paper which had accumulated in a box adjacent 

 to the machine, and that her hand got caught in the 

 "upper slitter shaft." Plaintiff has presented several 

 pages from Ms. Lamothe's deposition in which she 

 states that she was patting down scrap paper, and that 

 her hand got caught in the machine, but that she is 

 not sure where it got caught. On the evidence 

 presented, it is not clear that the accidents occurred in 

 "substantially similar" circumstances . . . . 

A216 (citations to record omitted). 

Klein subsequently learned through discovery that 

several other accidents had occurred on the same machine. 

The defendants, apparently aware that Klein had learned 

this information, filed a new motion in limine on June 17, 

1997, seeking to preclude evidence of these accidents. 

A219-21. On the same day, the defendants filed a separate 

motion in limine, seeking to preclude Klein's expert witness 

from testifying about the guard on the lower slitter shaft or 

guards that Stahl was then developing. A9. In the new 

motion in limine seeking to preclude evidence of other 

accidents on the same machine, the defendants argued that 

 6 
preclusion of evidence of other accidents was necessary 

because Klein had not demonstrated that the accidents 

were substantially similar to her own accident. A220. Of 

the six accidents, three had occurred through contact with 

the lower slitter; other than one accident -- in which the 

victim had not described the point of contact -- none 

involved the upper slitter. A223. 

Klein's counsel responded to both of the June 17, 1997 

motions in limine with one memorandum. See A10. The

memorandum addressed the issue of evidence of other

accidents by changing the factual averments that Klein had 

made in her first affidavit. Specifically, Klein's 

memorandum in opposition stated that: 

 At the time of contact between the plaintiff 's hand and 

 the machine, the plaintiff was not in a position where 

 she could have seen the precise location on the 

 machine where her hand was injured. The general area 

 of the machine where the accident occurred contains 

 five shafts, four of which rotate. The shafts are all 

 within approximately one foot of each other. In normal 

 operation, the view of the rotating shafts is blocked by 

 a delivery table onto which product is fed from the 

 production end of the folder. The area is illuminated 

 only by ambient light, with light from overhead blocked 

 by the delivery table. At the time of her accident, the 

 plaintiff's view of the area would have been further 

 obstructed by scrap paper which had built up from a 

 cardboard box situated on the floor all the way up to 

 the area of the rotating shafts. The plaintiff, even if she 

 had been attempting to locate the area where her hand 

 eventually made contact with the machine, would have 

 been unable to do so. Naturally, when contact with the 

 machine occurred, her primary focus was on 

 extricating her hand, not attempting to pinpoint precise 

 parts of the machine causing the lacerations for 

 purposes of future litigation. 

A230-31. Moreover, the memorandum indicated that Klein 

had "not set up the machine" and "was not trained or 

skilled in setting up the machine and was never asked to 

do so. Her familiarity with the parts of the machine was, 

therefore, limited." A231. Perhaps recognizing that this shift 

 7 
in factual averment might spark controversy, the 

memorandum went to some trouble to explain the shift: 

 The plaintiff, at the time that she made her affidavit, 

 understood that, at the time of her accident, the only 

 rotating shaft equipped with slitters or cutting knives 

 was the upper slitter shaft. Without being able to 

 directly see what caused her injury, the plaintiff 

 surmised, based upon information and belief, that the 

 rotating slitters affixed to the upper slitter shaft had 

 caused her injury. 

 It should be noted that the upper and lower slitter 

 shafts, based upon measurements made by the 

 plaintiff 's expert, are located less than one inch from 

 each other. Based upon her understanding that the 

 upper slitter shaft was the only one equipped with 

 slitters at the time of her accident, the close proximity 

 between the upper and lower slitter shafts, and her 

 inability to see exactly what had caused her

 lacerations, the plaintiff's affidavit was supported by a 

 reasonable belief that the upper slitter shaft was the 

 culprit. 

 At the time of her affidavit the plaintiff was unaware 

 that the edges of the collars of the lower slitter shaft 

 were also capable of causing the types of lacerations 

 that she sustained. 

A231 (record citations and footnote omitted). Describing the 

progress of discovery, the memorandum suggested-- but 

did not expressly state -- that Klein had learned details 

about the buckle folder that caused her to change her 

factual averment.2 The memorandum did, however, assert 

_________________________________________________________________ 

2. Plaintiff 's brief before this court is considerably less indirect: 

 Following the submission of [Klein's first] affidavit, the 

depositions of 

 William Klein and Ronald Bereksazi were taken on November 4, 

 1996 in connection with [Lamothe's] case . . .. The testimony of 

the 

 deponents in that case revealed for the first time that the inside 

 edges of the collars on the lower slitter, when rotating at high 

 speeds, could cause the type of injury sustained by the plaintiff. 

 Faced with the information that the collars which were attached to 

 the lower slitter shaft at the time of the accident were sharp 

enough, 

 8 
that "the defendants have consistently maintained that . . . 

[Klein's injury] had to have occurred between the lower 

slitter shaft and the drive shaft." A233. As evidence of that 

assertion, the memorandum pointed to a report by the 

defendants' corporate designee3 and the defendants'

engineering expert.4 Given Klein's new factual averment, the 

memorandum argued, the six accidents were, manifestly, 

"substantially similar" to Klein's accident, thus requiring 

denial of the motion in limine. A233-34. The memorandum 

argued further that the court should reconsider its order 

granting defendants' earlier motion in limine to preclude 

evidence of the Lamothe accident. A234-36. 

The memorandum seemed simultaneously to maintain 

that Klein had not changed her position: 

 The plaintiff has always acknowledged that her injury 

 occurred at the production end of the machine which 

 contains a complex of four rotating shafts. She has 

 never stated that she actually saw the precise location 

 on the machine where her hand was injured. She was 

 simply not in a position to do so at the time of her 

 accident. . . . She has made a reasonable assumption, 

 upon which her affidavit is based, that the slitting 

 knives on the upper slitter shaft caused her injury. 

A234. In support of the proposition that Klein's position 

had not changed, the memorandum reminded the court 

that 

 The plaintiff has also proceeded on the alternative 

 theory . . . that if her hand was injured at the location 

 on the machine where the defendants insist it must 

_________________________________________________________________ 

 when rotating at high speeds, to lacerate her hand, the plaintiff 

 could no longer state with certainty that her hand had made contact 

 with the upper slitter shaft at the time of the accident. 

Pl. Br. at 10-11. 

3. "Based on the deposition of both Ms. Martin and Ms. Lamothe, their 

injuries must have occurred between the lower slitter shaft and the shaft 

below it." A233. 

4. "It is most probable that [Klein] became involved between the lower 

slitter collars and the drive shaft." A233. 

 9 
 have been injured, the in-running nip point between 

 the lower slitter shaft and the drive shaft, and if the 

 machine came equipped with a guard at the time it was 

 distributed to Hoechstetter, her employer, then it was 

 entirely foreseeable . . . that the guard would be 

 removed. 

Id. 

Klein's memorandum in opposition was supported by an 

affidavit in which Klein swore that "[w]hen I made the 

statement in my affidavit of July 10, 1996, that my injury 

occurred on the upper slitter shaft, I made that statement 

in the good faith belief that it was true." A394. The affidavit 

tracked the memorandum in its explanation of why Klein 

originally thought the injury occurred on the upper slitter, 

and how she came to think differently. See A394-95. The 

affidavit concluded with Klein's statement that"I can now 

no longer say with any certainty exactly where at the 

output end of the machine my injury occurred." A395. 

After the defendants filed a reply brief, the Magistrate 

Judge granted the motion in limine to preclude evidence of 

other accidents and denied plaintiff 's request for

reconsideration. A277-83. The Magistrate Judge rejected 

Klein's contention that she had been "proceeding under 

alternate theories of how her injury occurred, i.e., either 

that it occurred at the upper slitter shaft, or that it 

occurred at the lower slitter shaft," A280, and found that 

plaintiff had changed her position. Without mentioning the 

doctrine of judicial estoppel or any finding that he might 

have made as to the disingenuousness of Klein's change of 

position, the Magistrate Judge held that "at this stage, 

plaintiff cannot be heard to assert that her injury occurred 

at any point on the machine other than the upper slitter 

shaft." A280. 

Several months later, on December 29, 1997, the 

defendants moved again for summary judgment (the 

"second summary judgment motion"). Aside from a 

recitation of the procedural background and the applicable 

legal standards, the brief contained only two paragraphs. In 

full, those paragraphs stated: 

 10 
 Plaintiff alleges that her injuries occurred at the 

 upper slitter shaft. The affidavit of Severino Roderick, 

 attached hereto as exhibit "B", establishes that the 

 upper slitter shaft is not capable of causing injury, as 

 the exposed nip point is out running. It further would 

 have been physically impossible for plaintiff to reach 

 this point based on her description of her activities at 

 the time of her injury. 

 At this point, this fact is undisputed, and the burden 

 is on plaintiff to produce contrary evidence by way of 

 affidavit or deposition. It would be a waste of judicial 

 resources to conduct a trial on a theory which is 

 physically inconsistent with the undisputed facts, and 

 defendants' motion should be granted. 

A287-88 (emphasis in original). 

Klein's memorandum in opposition to the motion for 

summary judgment began by reiterating Klein's explanation 

of why her change in position had been the result of new 

information legitimately acquired during discovery. A298- 

99. Klein did not dispute that her injury could not have 

been caused by the upper slitter. The memorandum noted 

that "[t]he basis for the defendants' Motion is not entirely 

clear," A299, but hypothesized two possible bases for the 

second motion for summary judgment: the first involved 

Pennsylvania's substantive law of products liability, and the 

second was "that the defendants are entitled to summary 

judgment because they have demonstrated that the plaintiff 

Janet Klein is not infallible," A299 -- apparently meant as 

a reference to Klein's change in factual averments. As to the 

second, the memorandum stated: 

 The defendants seem to be arguing that, although 

 they (the manufacturer and distributor of this machine) 

 know that Janet Klein could only have been injured on 

 the lower slitter shaft, judgment should be entered in 

 their favor because Janet Klein mistakenly stated that 

 she was cut on the upper slitter shaft, based upon an 

 assumption that knives [present on the upper slitter] 

 cut and collars [present on the lower slitter] do not. In 

 other words, because Janet Klein might have made a 

 mistake in identifying the location of her injury in an 

 affidavit, they are entitled to judgment. 

 11 
 Such an argument might have some merit if the 

 defendants could demonstrate some surprise leading to 

 prejudice. However, the defendants cannot raise that 

 argument because they cannot be surprised about 

 something they claim they already knew. The cynicism 

 is particularly virulent when considering that, in 

 connection with defendants' Motion In Limine to 

 exclude evidence of the Lamothe accident, they argued 

 that evidence of the Lamothe accident could not be 

 admitted in this case because the accidents were not 

 substantially similar, Klein's accident occurring in 

 what she "claimed" was the upper slitter shaft. As early 

 as that time, it is now obvious that the defendants 

 knew that, based upon their superior knowledge with 

 respect to the workings of this machine, Klein's 

 accident, as described by her and demonstrated in her 

 deposition, could have only involved the lower slitter 

 shaft, not the upper slitter shaft. 

A300. 

Oral argument on the motion was held on February 3,

1998. Klein's counsel began by describing the defendants' 

argument that they were entitled to summary judgment by 

virtue of Klein's change in position as "absurd and cynical." 

A332. He proceeded to address what he saw as "the real 

issue," which involved substantive Pennsylvania products 

liability law. A332-33. Counsel then returned to defendant's 

`absurd' argument, which he summarized as being:"we

know what happened, but you aren't allowed to prove it, so 

we win." A334. He then explained to the court the way in 

which the progress of discovery had revealed facts to Klein 

that led her to change her factual position, A334-42, 

stating that Klein had sworn to her first affidavit "[i]n good 

faith." A338. The Magistrate Judge remarked that he

thought it appropriate to reconsider his first summary 

judgment motion when deciding the second motion for

summary judgment. A344-46. 

Before the Magistrate Judge adjourned the proceedings, 

plaintiff 's counsel made "a few comments on the estoppel 

issue." A349. 

 I'm not clear on what that means. I've never been 

 involved in a case where somebody makes a good faith 

 12 
 but erroneous statement under oath, and I always 

 thought that was a matter for cross examination. I've 

 never heard of it causing a default by the plaintiff. 

 The plaintiff is going to have to get up and testify to 

 what she knows, and then she's going to be confronted 

 by [defense counsel] with the [first] affidavit, and she's, 

 she's going to give her explanation . . . . 

A349. In response, the Magistrate Judge explained to 

plaintiff 's counsel that defense counsel was"arguing 

judicial estoppel." Id. The Magistrate Judge then explained 

his understanding of the law of judicial estoppel. A350-53. 

He did not use the term "bad faith." He acknowledged that 

plaintiff 's counsel had "argue[d] alternatively throughout" 

-- i.e., argued that if the accident had occurred at the lower 

slitter the barrier guard allegedly installed was improperly 

designed, or that the accident had occurred at the upper 

slitter -- but stated that the conflict between Klein's first 

and second affidavits might nonetheless require him to 

apply judicial estoppel. A351-52. 

The Magistrate Judge issued his opinion granting the 

second summary judgment motion one week later, on 

February 10, 1998. The central question he addressed was 

whether Klein should "be judicially estopped from now 

asserting that her hand was caught in the lower slitter 

shaft?" A315. To answer that question, the Magistrate 

Judge set forth what he believed to be the threshold inquiry 

for the application of judicial estoppel: " `(1) Is the party's 

present position inconsistent with a position formerly 

asserted? (2) If so, did the party assert either or both in bad 

faith -- i.e., "with intent to play fast and loose" with the 

court?' " A315-16 (quoting McNemar v. Disney Store, Inc., 91 

F.3d 610, 618 (3d Cir. 1996) (quoting Ryan Operations G.P. 

v. Santiam-Midwest Lumber Co., 81 F.3d 355, 361 (3d Cir. 

1996)). The Magistrate Judge thought that the first

question had to be answered in the affirmative, because 

Klein's two affidavits directly conflicted. A316. He did not 

find it significant that, in her memorandum in opposition to 

the defendants' first motion for summary judgment, Klein 

had argued in the alternative -- either (1) there was not a 

barrier guard, or (2) the removal of the lower barrier guard 

was foreseeable or (3) she had injured her hand in the 

 13 
upper slitter. The Magistrate Judge believed that the 

relevant conflict was not the conflict between the 

memorandum in opposition to the first motion for summary 

judgment and the memorandum in opposition to the 

second motion for summary judgment, but the conflict 

between the affidavit submitted in support of the 

memorandum in opposition to the first motion for summary 

judgment and the affidavit submitted in response to the 

defendants' second series of motions in limine. A316-17. 

Having concluded that Klein's positions were 

inconsistent, the Magistrate Judge went on to consider 

whether Klein had assumed either of her positions in bad 

faith. He acknowledged that not all changes in position 

during litigation are undertaken in bad faith, but felt that 

this one was: 

 In this case, however, plaintiff asserts that she was 

 never sure where her hand contacted the machine, but 

 simply assumed that it was the upper slitter shaft 

 since she believed (mistakenly) that the lower slitter 

 shaft could not have caused her injuries. This lack of 

 assurance concerning how the accident occurred, 

 however, is not reflected in plaintiff 's affidavit, or in 

 counsel's argument in response to defendants' initial 

 motion for summary judgment. Plaintiff 's statement is 

 made without equivocation (not, for example, to the 

 best of her knowledge and belief). If plaintiff was 

 unsure where her hand came in contact with the 

 machine, she could (and should) simply have said so. 

 Instead, she stated as a fact, known to her, that her 

 hand came into contact with the upper slitter shaft. 

 Further, she did so with the intent that this 

 representation would defeat the motion for summary 

 judgment. 

 In this case, the unequivocal nature of plaintiff 's 

 affidavit and counsel's argument (not to mention the 

 reliance of plaintiff 's expert on plaintiff 's affidavit) 

 militate against a finding that she was previously 

 unsure of the facts, and that she is now simply making 

 clear was what [sic] left unclear before. 

A317-18. The Magistrate Judge acknowledged that Klein 

asserted she had not sworn to either affidavit in bad faith, 

 14 
but stated that "[i]n the context of judicial estoppel . . . bad 

faith is defined as playing [fast] and loose with the court." 

A319. The Magistrate Judge thought that Klein had`played 

fast and loose' with the court by attesting, in herfirst 

affidavit, "to a version of the facts which she knew was not 

accurate." Id. (The Magistrate Judge implied that, had Klein 

conditioned her first affidavit -- e.g., by introducing it with 

words such as "to the best of my knowledge and belief " -- 

he would not have found that she had `played fast and 

loose' with the court. A318-19.) Accordingly, Klein was held 

by the Magistrate Judge to be judicially estopped from 

arguing that her hand was injured in the lower slitter. 

Since Klein had not produced any evidence refuting the 

defendants' claim that her hand could not have been

injured in the upper slitter, the Magistrate Judge granted 

summary judgment. A319-20, 324. 

Before concluding his opinion, the Magistrate Judge

made it plain that granting summary judgment was not an 

easy course to pursue. A320. He noted that "[t]he reader 

may well wonder how plaintiff can be put out of court 

when, after all, she is now simply trying to prove that she 

was injured precisely where defendants have consistently 

maintained she must have been injured." Id. 5 To justify 

invoking judicial estoppel despite his "real reluctance," the 

Magistrate Judge returned to what he saw as the 

underlying rationale of judicial estoppel: it "is designed to 

avoid the type of unnecessary litigation the parties and this 

court have just gone through." Id. 

 Had plaintiff 's affidavit been accurate (e.g., had it 

 stated that she was unsure where her hand contacted 

 the machine, but assumed that it was in the area of 

 the upper slitter shaft), the efficient administration of 

_________________________________________________________________ 

5. After granting summary judgment, the Magistrate Judge explained at 

some length what would have happened if Klein had stated in her first 

affidavit that she was not sure where her hand had made contact with 

the buckle folder, A321-24, concluding that Klein's"claim would have 

survived summary judgment." A321. The Magistrate Judge made it plain 

that, even if Klein had not claimed in her first affidavit that she 

injured 

her hand in the upper slitter, he would have found that Klein's argument 

that the removal of the barrier guard was foreseeable precluded 

summary judgment. A323-4 & n.1. 

 15 
 this case would have been promoted. As it is, the 

 inaccuracy which plaintiff alleges exists in her earlier 

 affidavit has caused this court to once again revisit 

 summary judgment instead of proceeding timely to 

 trial. 

A321. 

Plaintiff filed a motion to alter or amend the judgment, 

A434-35, to which defendants responded, A446-48. The 

Magistrate Judge denied the motion. A12. Klein then timely 

appealed under 28 U.S.C. S 1291. 

III. Standard of Review 

We review the application of judicial estoppel under an 

"abuse of discretion" standard. McNemar v. Disney Store, 

Inc., 91 F.3d 610, 613 (3d Cir. 1996), cert. denied, 510 U.S. 

1115 (1997). We exercise plenary review over a grant of 

summary judgment. Ryan Operations G.P. v. SantiamMidwest Lumber Co., 81 F.3d 355, 358 (3d Cir. 1996). 

IV. Discussion 

A. The Sequential Order of Use of Sanctions 

As the Magistrate Judge correctly noted, this circuit's 

"doctrine of judicial estoppel is an equitable doctrine which 

vests considerable discretion in the court." A315 (citing 

McNemar v. Disney Store, Inc., 91 F.3d 610, 617 (3d Cir. 

1996)). Proper exercise of that discretion requires the court 

to focus attentively on the particularly distinctive features 

of the case before the court, since "each case must be 

decided upon its own particular facts and circumstances." 

McNemar, 91 F.3d at 617 (citing Ryan Operations, 81 F.3d 

at 360).6 There are, therefore, few overarching principles 

about the proper application of judicial estoppel that cover 

all cases. But some generalizations can be ventured: 

"judicial estoppel is an `extraordinary remed[y] to be 

_________________________________________________________________ 

6. Cleveland v. Policy Management Systems Corp., 119 S.Ct. 1597 (1999) 

casts doubt on the particular holding in McNemar, but it does not call 

into question the principles stated in McNemar which we quote. 

 16 
invoked when a party's inconsistent behavior will otherwise 

result in a miscarriage of justice.' " Ryan Operations, 81 

F.3d at 365 (citing Oneida Motor Freight, Inc. v. United 

Jersey Bank, 848 F.2d 414, 424 (3d Cir. 1988) (Stapleton, 

J., dissenting)). Further, as we learn from case law dealing 

with other forms of judicial sanctions, a trial court should 

consider invoking its inherent sanctioning powers only 

where no sanction established by the Federal Rules or a 

pertinent statute is "up to the task" of remedying the 

damage done by a litigant's malfeasance, Chambers v. 

NASCO, Inc., 501 U.S. 32, 50 (1991), and only then when 

the sanction is "tailored to address the harm identified," 

Republic of the Philippines v. Westinghouse Elec. Corp., 43 

F.3d 65, 73 (3d Cir. 1995). 

Judicial estoppel is one arrow in the quiver of sanctions 

at a court's disposal. Each of those arrows is a defensive 

weapon, loosed to protect the integrity of the court's 

processes. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 

(1991) ("A primary aspect of [a district court's] discretion is 

the ability to fashion an appropriate sanction for conduct 

which abuses the judicial process."); McNemar v. Disney 

Store, Inc., 91 F.3d 610, 616 (3d Cir. 1996) ("[t]he doctrine 

of judicial estoppel serves a consistently clear and 

undisputed jurisprudential purpose: to protect the integrity 

of the courts."). A trial court should avail itself of its 

inherent sanctioning power only when absolutely 

necessary. As the Supreme Court has said, "[b]ecause of 

their very potency, inherent powers must be exercised with 

restraint and discretion." Chambers, 501 U.S. at 44. 

In Chambers, the Court addressed a district court's

decision to require a plaintiff who had engaged in repeated 

and varied misbehavior to pay almost a million dollars to 

defendant to defray defendant's attorney's fees and related 

litigation expenses. Writing for the Court, Justice White 

noted that a federal court is not "forbidden to sanction badfaith conduct by means of the inherent power simply

because that conduct could also be sanctioned under[a 

federal] statute or the Rules." 501 U.S. at 50. He warned 

that "[a] court must, of course, exercise caution in invoking 

its inherent power, and it must comply with the mandates 

of due process . . . in determining that the requisite bad 

 17 
faith exists . . . ." Id. Thus, "when there is bad-faith 

conduct in the course of litigation that could be adequately 

sanctioned under the Rules, the court ordinarily should 

rely on the Rules rather than the inherent power." Id. But 

"if in the informed discretion of the court, neither the 

statute [28 U.S.C. S 19277] nor the Rules are up to the task, 

the court may safely rely on its inherent power." Id. Justice 

White's statement of general principle -- that a court may 

rely on its inherent power where "neither the statute nor 

the Rules are up to the task" -- was followed directly by an 

application to the case then at bar that sheds light on the 

principles themselves: 

 It is true that the District Court could have employed 

 Rule 11 to sanction Chambers for filing "false and 

 frivolous pleadings," 124 F.R.D., at 138, and that some 

 of the other conduct might have been reached through 

 other Rules. Much of the bad-faith conduct by 

 Chambers, however, was beyond the reach of the 

 Rules; his entire course of conduct throughout the 

 lawsuit evidenced bad faith and an attempt to 

 perpetrate a fraud on the court, and the conduct 

 sanctionable under the Rules was intertwined within 

 conduct that only the inherent power could address. In 

 circumstances such as these in which all of a litigant's 

 conduct is deemed sanctionable, requiring a courtfirst 

 to apply Rules and statutes containing sanctioning 

 provisions to discrete occurrences before invoking 

 inherent power to address remaining instances of 

 sanctionable conduct would serve only to foster 

 extensive and needless satellite litigation . . . . 

Id. at 50-51. The foregoing suggests that the Rules are not 

"up to the task" when they would not provide a district 

_________________________________________________________________ 

7. 28 U.S.C. S 1927 provides that: 

 Any attorney or other person admitted to conduct cases in any court 

 of the United States or any Territory thereof who so multiplies the 

 proceedings in any case unreasonably and vexatiously may be 

 required by the court to satisfy personally the excess costs, 

 expenses, and attorneys' fees reasonably incurred because of such 

 conduct. 

 18 
court with the authority to sanction all of the conduct 

deserving of sanction.8 

When the Rules or pertinent statutes are "up to the

task," they should be used.9 When they are not, a trial 

court may turn to its inherent sanctioning power, but 

should exercise that power with caution.10 Within that 

inherent sanctioning power, judicial estoppel is often the 

harshest remedy. Cf. Poulis v. State Farm Fire & Casualty 

Co., 747 F.2d 863, 867, 870 (3d Cir. 1984) (characterizing 

dismissal sanction as "extreme"). The Magistrate Judge in 

this case evidently thought himself confronted by an all-or- 

_________________________________________________________________ 

8. Such an interpretation gains credence from the views of the dissenters 

in Chambers. Justice Scalia noted that he had "no doubt of a court's 

authority to go beyond the Rules in [the circumstances of the case]. And 

I agree with the Court that an overall sanction resting at least in 

substantial portion upon the court's inherent power need not be broken 

down into its component parts, with the actions sustainable under the 

Rules separately computed." Id. at 60. Justice Kennedy, joined by Chief 

Justice Rehnquist and Justice Souter, dissented on the ground that 

district courts could justify invocation of inherent sanctioning powers 

only where they can detail "special justification"; i.e., where a federal 

statute or Rule does not cover the misbehavior in question and where 

the court must sanction that misbehavior in order to safeguard its own 

functioning. Id. at 63. All nine Justices thus agreed on the minimum 

proposition that a federal district court considering sanctions should 

first turn to the Federal Rules and applicable statutes. 

9. Our prior decisions support this view. See Gillette Foods Incorp. v. 

Bayernwald-Fruchteverwertung, GmbH, 977 F.2d 809, 814 n.10 (3d Cir. 

1992) (assuming that a district court should consider the Federal Rules 

and applicable statutes before turning to its inherent powers); In Tutu 

Wells Contamination Litigation, 120 F.3d 368, 183 n.13 (3d Cir. 1995) 

(describing Chambers as having "observed . . . that normally a court 

should look first to those rule-based or statute-based powers before 

turning to its inherent powers"). 

10. We noted in In re Tutu Wells Contamination Litigation that the fact 

"[t]hat `inherent powers are shielded from direct democratic controls' 

makes [the] exercise of restraint and discretion even more important." 

120 F.3d 368, 383 (3d Cir. 1995) (citing Roadway Express, Inc. v. Piper, 

447 U.S. 752, 764 (1980)). By contrast, statutes are direct expressions 

of the people's representatives in Congress, and the Federal Rules -- 

though drafted by committees of the Judicial Conference composed of 

members of the bar, academia, and judges -- are subject to veto by 

Congress. 

 19 
nothing choice: dealing with what he saw as bad faith 

through the invocation of judicial estoppel, or ignoring that 

bad faith. In electing to invoke judicial estoppel, the 

Magistrate Judge foreclosed a plaintiff with a potentially 

meritorious claim from presenting her case in court. 

Had the Magistrate Judge first asked whether the Rules 

were "up to the task," he might not have found himself 

confronting such a stark choice. The Federal Rules present 

a district court encountering perceived bad faith with less 

severe sanctions, such as the remedial sanction set forth in 

Rule 56(g), which vests a court with authority to charge the 

misfeasant with expenses, including attorney's fees, 

attributable to the additional litigation generated by a badfaith affidavit -- and, where appropriate, to adjudge the 

misfeasant guilty of contempt.11 Such a sanction allows a 

court to penalize disingenuousness without foreclosing a 

potentially meritorious claim. 

Had the Magistrate Judge concluded that invoking the 

court's inherent sanctioning authority was preferable to use 

of Federal Rules or statutes -- either because the Rules and 

statutes did not cover a particular person or a particular 

act, or because misfeasance sanctionable under the Rules 

was intertwined with misfeasance not sanctionable under 

the Rules -- he would still have had available the full range 

of sanctions within the inherent power. A court choosing 

among such sanctions must "ensure that the sanction is 

tailored to address the harm identified." Republic of the 

Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 73 (3d 

Cir. 1995). 

_________________________________________________________________ 

11. Rule 56(g) states: 

 Should it appear to the satisfaction of the court at any time that 

any 

 of the affidavits presented pursuant to this rule are presented in 

bad 

 faith or solely for the purpose of delay, the court shall forthwith 

 order the party employing them to pay to the other party the 

 amount of the reasonable expenses which the filing of the 

affidavits 

 caused the other party to incur, including reasonable attorney's 

 fees, and any offending party or attorney may be adjudged guilty of 

 contempt. 

 20 
B. Bad Faith Inquiry Prior to the Extreme Sanction of 

 Judicial Estoppel 

Judicial estoppel is not a sanction "tailored to address 

the harm" if it does not, at a minimum, pass the"two-part 

threshold inquiry" set out in Ryan Operations: 

 (1) Is the party's present position inconsistent with a 

 position formerly asserted? (2) If so, did the party 

 assert either or both of the inconsistent positions in 

 bad faith--i.e., "with intent to play fast and loose" with 

 the court? 

81 F.3d at 360 (citation omitted). 

The Magistrate Judge appears to have believed that (1) 

Klein knew when she swore to her first affidavit that she 

was not sure where her hand was injured and (2) Klein 

should have at least conditioned her first affidavit with 

words such as "to the best of my knowledge and belief." By 

considering Klein's initial failure to include conditional 

language as per se evidence of bad faith, the Magistrate 

Judge folded the second prong of the judicial estoppel test 

back into the first prong -- merely asking, again, whether 

the two affidavit positions were inconsistent. 12 As the 

Magistrate Judge observed, judicial estoppel can be a 

draconian sanction, one that should be invoked only with 

"reluctance." Ryan Operations sought to give analytical 

expression to that reluctance by requiring district courts to 

find bad faith in addition to inconsistency.13 

_________________________________________________________________ 

12. Klein does not seriously contest that her statements were 

contradictory. In her first affidavit, Klein asserted that her hand had 

been injured on the upper slitter. In her second affidavit, she stated 

that 

she could no longer be certain where her hand had been injured. In 

combination with her choice not to contest the defendants' argument 

that it was physically impossible for her hand to have been injured on 

the upper slitter, her second affidavit may be read to assert that she was 

not injured on the upper slitter. 

13. One need not read Ryan Operations's requirement for independent 

evidence of bad faith to mean, as plaintiff argues, that a district court 

must conduct an evidentiary hearing to determine whether a litigant has 

acted in bad faith whenever the court is considering applying judicial 

estoppel. There is no question that Ryan Operations stands for the 

 21 
V. Conclusion 

If on remand the court finds that Klein acted in bad faith 

-- a finding that must be based on more than inconsistency 

in factual positions -- the court should lookfirst to Federal 

Rules and statutes. E.g., Fed. R. Civ. Pro. 56(g). If no Rule 

or statute appears appropriate -- or if, as in Chambers, the 

perceived misbehavior combines some actions that are 

sanctionable under Federal Rules and statutes and some 

actions that are not -- then the court should turn to its 

inherent sanctioning power. If the court turns to its 

inherent sanctioning power, it should select a sanction 

"tailored to address the harm identified." 

For the reasons set forth above, the order granting

summary judgment will be vacated and the case remanded 

for further proceedings consistent with this opinion. 

A True Copy: 

 Teste: 

Clerk of the United States Court of Appeals 

for the Third Circuit 

_________________________________________________________________ 

proposition that a district court must "discern" intent, not "infer" it. 

See 

81 F.3d at 364. That does not mean, however, that Ryan Operations 

requires a district court to discern intent by way of an evidentiary 

hearing. The court in Ryan Operations did not consider a review of the 

record to be an improper way to discern intent; to the contrary, Ryan 

Operations assessed the appellant's intent by conducting its own review 

of the procedural history, rather than vacating the district court's 

finding 

of bad faith and remanding for an evidentiary hearing. Id. at 361-64. 

Moreover, the panel noted that in a predecessor case, Oneida Motor 

Freight, Inc. v. United Jersey Bank, 848 F.2d 414 (3d Cir. 1988), "there 

was ample evidence in the record from which an inference of deliberate 

manipulation could be drawn." Ryan Operations, 81 F.3d at 363. In 

whatever way a trial court chooses to inquire into bad faith, it must of 

course "comply with the mandates of due process." Chambers, 501 U.S. 

at 50. We are not called on today to map the boundaries of the due 

process right in a case of this kind. 

 22