United States Court of Appeals

Fifth Circuit



## FILED

May 28, 2003

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 01-40382

____________

LILO MCLEAN, Individually and Succes sor in Interest to David

McLean Deceased; MARK HUTH, also known as Mark McLean,

Individually,

Plaintiffs-Appellants,

versus

PHILIP MORRIS USA INC.; ET AL.,

Defendants,

PHILIP MORRIS USA IN C.; LIGGETT & MYERS INC.;

LIGGETT GROUP INC.; BRO OKE GROUP INC.; BROWN &

WILLIAMSON TOBACCO CORPORATION; AMERICAN

TOBACCO CO.; B.A. T. INDUSTRIES PLC; LORILLARD

TOBACCO COMPANY, INCORPORATED; THE COUNCIL FOR

TOBACCO RESEARCH-USA, INCORPORATED; TOBA CCO

INSTITUTE INCORPORATED; BRITISH-AMERICAN

(INVESTMENTS), LIMITED; R.J. REYNOLDS TOBACCO

COMPANY,

Defendants-Appellees.

Appeal from the United States District Court

For the Eastern District of Texas

No. 2:96-CV-167* District Judge of the Eastern District of Louisiana, sitting by designation.

** Pursuant to 5 T H C IR

. R. 47.5, the court has determined t hat t his o pinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4.

-2- Before EMILIO M. GARZA and DeMOSS, Circuit Judges, and DUVAL * , District Judge.

PER CURIAM: **

Plaint iffs Lilo McLean and Mark Huth, the widow and son of decedent David McLean, appeal

the district court’s dismissal of their products liabilit y claims against various tobacco manufacturers

and related entities (hereinafter, “the Tobacco Companies”). Because we conclude that plaintiffs

were judicially estopped from asserting that California substantive law governed their claims, we

affirm.

David McLean lived for most o f his adult life in California, where he succumbed to lung

cancer in 1995. In August of 1996, his widow and son, both California residents, filed suit in federal

district court in Texas under the Texas Wrongful Death Act, T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

.

§ 71.001 et seq

. , and the Texas Survival Statute, T E X

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 71.021,

alleging that decedent’s death was caused by the Tobacco Companies’ products. Over the next three

years, plaintiffs resisted the Tobacco Companies’ attempts to transfer their suit to California and

consistently urged the district court to apply the substantive law of Texas to their claims. In August

of 1999, the district court concluded that Texas law applied and denie d the Tobacco Companies’

motion for judgment on the pleadings as to most of plaint iffs’ claims. Upon reconsideration in light

of our decisi on i

n S anchez v. Liggett & Myers, Inc.

, 187 F.3d 486 (5th Cir. 1999), however, the

di st rict co urt, in December of 1999, dismissed all of plaintiffs’ claims except those for breach of1 In Sanchez

, we concluded that § 82.004 of the Texas Civil Practice and Remedies Code,

which establishes statutor y immunity for tobacco manufacturers and sellers in products liability

actions, barred all t heories of recovery ) ) including claims based on the addictive properties of

tobacco products )) except breach of express warranty and manufacturing defect. 187 F.3d at 489-

91.

-3- express warranty and manufacturing defect. 1 At t his po int , more than three years after filing suit,

plaint iffs filed a motion for reconsideration, arguing for the first time that a conflict existed between

Texas and California law and that, under Texas ’ cho ice o f law rules, California had the “most

significant relationship” to the litigation. After concluding that plaintiffs were not estopped from

asserting that California law governed, the district court applied California law and again dismissed

all of plaint iffs’ claims except those for breach of express warranty and manufacturing defect. After

plaint iffs voluntarily dismissed the remai ning claims, the district court entered a final judgment in

favor of the Tobacco Companies. Plaintiffs now appeal.

It is undisputed that plaint iffs’ claims are barred under Texas law. On appeal, plaintiffs

contend that the district court properly ap plied the substantive law of California but incorrectly

concluded that they had not stated a valid claim for relief under that law. The Tobacco Companies

respond that plaint iffs were judicially estopped from asserting that California law applied. We review

the grant of judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) de novo

,

Brittan Communications Int’l Corp. v. Sout hwestern Bell Tel. Co. , 313 F.3d 899, 904 (5th Cir.

2002), and we may affirm “the district court’s judgment on any grounds supported by the record.”

Sojourner T v. Edw ards

, 974 F.2d 27, 30 (5th Cir. 1992). The district court’s decision whether to

invoke the doct r ine of judicial estoppel, however, is reviewed for an abuse of discretion. I n re

Coastal Plains, Inc.

, 179 F.3d 197, 205 (5th Cir. 1999). “[T]he abuse of discretion standard includes

review to determine that the discretion was not guided by erroneous legal conclusions.” I d

. (quoting-4-

Koon v. United States , 518 U.S. 81, 100 (1996)).

As an init ial matter, plaint iffs argue that, because the Tobacco Companies did not file a crossappeal, they are precluded from challenging the district court’s estoppel determination. Because the

district court’s judgment was entirely favorable to the Tobacco Companies, this contention is without

merit. As we explained in In re Sims :

It is more than well-settled that a party cannot appeal from a judgment

unless ‘aggrieved’ by it

. . . . Simply stated, a party who has obtained

a judgment in his favor, granting the relief sought, is not aggrieved by

it. A cross-appeal filed for the sole purpose of advancing additional

arguments in support of a judgment is ‘worse than unnecessary’,

because it disrupts the briefing schedule, increases the number (and

u sually t he length) of briefs, and tends to confuse the issues . . . .

S uch arguments should, instead, be included in the appellee ’ s

answering brief.

994 F.2d 210, 214 (5th Cir. 1993) (citations omitted).

Accordingly, we now consider whether plaint iffs were judicially estopped from asserting that

California law governed their claims. “Under general principles of judicial estoppel, a party cannot

advance one argument and then, for convenience or gamesmanship after that argument has served

its purpose, advance a different and inconsistent argument.” H otard v. State Farm Fire & Cas. Co.

,

286 F.3d 814, 818 (5th Cir. 2002); see also United States v. McCaskey

, 9 F.3d 368, 379 (5th Cir.

1993) (“[T]he underlying purpose of t he doctrine . . . [is] to protect the integrity of the judicial

process and to prevent unfair and manipulative use of the court system by litigants.”). Judicial

estoppel applies where: (1) the position of t he part y t o be estopped is clearly inconsistent with its

previous position; and (2) t hat party was successful in convincing the court to accept its previous

position. In re Coastal Plains

, 179 F.3d at 206.

Here, plaint iffs successfully persuaded the district court that Texas’ substantive law governed2 In particular, plaint iffs relied heavily on dicta in a f ootnote in the Texas Supreme Court’s

decision in American Tobacco Co. v. Grinnell , 951 S.W.2d 420, 427 n.2 (Tex. 1997), which, they

contended, created an exception to § 82.004 immunity for addiction claims. We expressly rejected

this contention in Sanchez . 187 F.3d at 490-91.

-5- their claims. Once, however, the district court concluded that Texas law barred most of those claims,

plaint iffs reversed course and, in an attempt to breathe new life into their suit, argued for the first time

in over three years of litigation that the substantive of law of California applied. This is precisely the

t ype of tactic against which the doctrine of judicial estoppel is designed to protect. S ee id. (“The

policies underlying the doctrine include preventing internal inconsistency, precluding litigants from

playing fast and loose with the courts, and prohibiting parties from deliberately changing positions

according to the exigencies of the moment .” (quoting McCaskey

, 9 F.3d at 378 (emphasis added))).

Plaint iffs argue t hat judicial estoppel would be inequitable in this case because they were

unaware of any conflict between Texas and California law prior to our d ecisio n in S anchez

. The

record, however, indicates that, almost from the beginning, plaint iffs actively pursued the application

of Texa s law based o n what they perceived to be its advantages over the law of California. 2

Moreover, plaintiffs were clearly aware of significant differences between Texas and California law

after September of 1997, when the California legislature withdrew statutory immunity for tobacco

manufacturers and sellers, C AL

. C IV

. C ODE § 1714.45, as amended by C AL

. S TATS

. 1997, ch. 570,

§ 1, while similar immun it y remained intact in Texas. S ee T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

.

§ 82.004. Despite this awareness, plaintiffs co nt inued to assert that Texas law governed until

December of 1999, when the district court, applying Texas law, dismissed almost all of their claims.

Plaint iffs also contend that applying judicial estoppel would be unfair because the Tobacco

Companies argued that California was the proper venue and that no choice of law analysis was-6-

necessary since plaint iffs’ claims failed under both Texas and California law. As we concluded in I n

re Coastal Plains

, however, the actions of other parties are not determinative because “the purpose

of judicial estoppel is to protect the integrity of courts, not to punish adversaries or to prot ect

litigants.” 179 F.3d at 213 (rejecting plaintiffs’ contention that “judicial estoppel would be inequitable

because [creditor] also took inconsistent positions on issues related to its defense”).

As the Seventh Circuit observed in Frietsch v. Refco, Inc.

, 56 F.3d 825, 828 (7th Cir. 1995),

“[i]t is not the purpose of allowing moti o ns fo r reconsideration to enable a party to complete

presenting his case after the court has ruled against him. Were such a procedure to be countenanced,

some lawsuits really might never end, rather than just seeming endless.” For the foregoing reasons,

we conclude that, under these facts, the district court abused its discretion in concluding that plaint iffs

were not judicially estopped from asserting that California law governed their claims. Nevertheless,

because it is undisputed tha t plaintiffs have not stated a valid claim for relief under Texas law, we

AFFIRM the judgment of the district court.