Scott Parks, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1396

Scott Parks,
Appellant,

vs.

Covidien Holding, Inc., et al.,
Respondents.

Filed June 13, 2022
Reversed and remanded
Bjorkman, Judge

Anoka County District Court
File No. 02-CV-20-3685

Gale D. Pearson, Michael Gorwitz, Fears Nachawati, PLLC, Dallas, Texas (for appellant)

Nicole E. Narotzky, Thomas R. Pack, Greenberg Traurig LLP, Minneapolis, Minnesota;
and

Anupama D. Sreekanth, Fredrikson & Byron, P.A., Minneapolis, Minnesota; and

Bryan T. Pratt (pro hac vice), Shook, Hardy & Bacon L.L.P., K ansas City, Missouri (for
respondents)

Considered and decided by Bjorkman, Presiding Judge; Segal, Chief Judge; and
Bratvold, Judge.

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NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Appellant challenges summary judgment dismissing his product -liability claims
against respondents medical-device manufacturers based on judicial estoppel. He argues
that (1) judicial estoppel is not available under Minnesota law, and (2) the requirements for
judicial estoppel are not met in this case. Because the district court misapplied the law
regarding judicial estoppel, we reverse and remand.
FACTS
In September 2016, appellant Scott Parks underwent a surgery that involved use of
a surgical stapler. After complications with the staples, he received corrective surgery. He
was discharged from the hospital the following month.
In August 2017, Parks filed for Chapter 13 bankruptcy. When completing the
property schedule for his bankruptcy petition, Parks was asked to indicate “yes” or “no” to
the following prompt: “Claims against third parties, whether or not you have filed a lawsuit
or made a demand for payment. Examples: Accidents, employment disputes, insurance
claims, or rights to sue.” Parks selected “No.” Parks amended his bankruptcy petition in
May 2018 but did not change his information about claims against third parties. The
following month, the bankruptcy court confirmed Parks’s bankruptcy plan. It reconfirmed
his plan in early 2020, again without any indication from Parks of a potential legal claim.
In September 2020, Parks initiated this action against respondents Covidien Holding
Inc., Covidien LP, Covidien LLC, Covidien Sales LLC, and Medtronic Inc. (collectively,
Covidien), asserting product-liability claims related to the surgical staples used in his
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surgery. Covidien moved for summary judgment on February 10, 2021, arguing that
Parks’s representation in the bankruptcy proceeding that he possessed no claims should
judicially estop his claims against Covidien. Two weeks later, Parks added his Covidien
claims to the property schedule in his open bankruptcy case. In opposing summary
judgment, Parks argued that Minnesota does not recognize judicial estoppel and the
requirements for judicial esto ppel are not met since he corrected his bankruptcy filing.
During the motion hearing, Parks offered to submit an affidavit indicating that he failed to
list the claims earlier because he was unaware he needed to do so until Covidien moved for
summary judgment; the district court told him it was unnecessary.
The district court granted summary judgment, reasoning that Parks failed to provide
“any reason why he waited until after this summary judgment motion was filed . . . to
disclose his claims” and could not “escape textbook judicial estoppel merely by amending
his initial inconsistent position.” Parks appeals.
DECISION
Summary judgment is appropriate if “there is no genuine issue as to any material
fact” and the moving party “is entitled to ju dgment as a matter of law.” Minn. R. Civ.
P. 56.01. It is a “blunt instrument” and “should not be granted when reasonable persons
could draw different conclusions from the evidence presented.” Staub v. Myrtle Lake
Resort, LLC, 964 N.W.2d 613, 620 (Minn. 2021) (quotation omitted). When considering
a motion for summary judgment, a court views the evidence in the light most favorable to
the non-moving party and resolves all factual inferences and doubts against the moving
party. Montemayor v. Sebright Prods. , Inc., 898 N.W.2d 623, 628 (Minn. 2017). We
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review de novo whether there are genuine issues of material fact and whether the district
court properly applied the law. Kenneh v. Homeward Bound, Inc. , 944 N.W.2d 222, 228
(Minn. 2020).
Judicial estoppel is an equitable doctrine that protects the integrity of the judicial
system by “prohibiting parties from deliberately changing positions according to the
exigencies of the moment.” New Hampshire v. Maine , 532 U.S. 742, 749 -50 (2001)
(quotation omitted). The doctrine is not applied for the benefit of defendants, Spaine v.
Cmty. Contacts, Inc., 756 F.3d 542, 547 (7th Cir. 2014) , and is “not intended to eliminate
all inconsistencies,” Park v. Atty. Gen. of U.S. , 472 F.3d 66, 73 (3d Cir. 2006) (quotation
omitted). Rather, it aims to protect courts from deception and manipulation. Spaine, 756
F.3d at 547. In this sense, the doctrine “embodies the notions of common sense and fair
play.” Kirk v. Schaeffler Grp. USA, Inc. , 887 F.3d 376, 384 (8th Cir. 2018) (quotation
omitted). Whether to apply the doctrine is a question of law, which we review de novo.
State v. Pendleton , 706 N.W.2d 500, 507 (Minn. 2005); see also Melrose Gates, LLC v.
Moua, 875 N.W.2d 814, 821 -22 (Minn. 2016) ( explaining that a district court ’s
determination whether the requirements of an equitable doctrine are met is a legal issue
that appellate courts review de novo).
I. Judicial estoppel is an available doctrine.

Parks contends the district court erred by applying judicial estoppel because the
Minnesota Supreme Court has not adopted the doctrine. This argument is unavailing. Our
supreme court has thus far declined to adopt judicial estoppel , but it has also expre ssly
declined to reject the doctrine. E.g., Ryan Contracting Co. v. O’Neill & Murphy, LLP, 883
5
N.W.2d 236, 248-49 (Minn. 2016); see also Dickhoff ex rel. Dickhoff v. Green, 836 N.W.2d
321, 331-32 & n.10 (Minn. 2013) (explaining that the court’s refusal to adopt a doctrine in
a particular case is not controlling on whether the court has rejected the doctrine). Indeed,
the supreme court has consistently declined to formally adopt judicial estoppel because it
has concluded that the doctrine does not apply under the circumstances of the cases before
it. Ryan Contracting, 883 N.W.2d at 249; Pendleton, 706 N.W.2d at 507; Ill. Farmers Ins.
Co. v. Glass Serv. Co. , 683 N.W.2d 792, 801 (Minn. 2004) ; State v. Profit , 591 N.W.2d
451, 462 (Minn. 1999). The caselaw persuades us that the supreme court has left the door
open for Minnesota courts to apply judicial estoppel.
Moreover, judicial estoppel is a well-established common-law doctrine. See New
Hampshire, 532 U.S. at 749-50. We have applied it. E.g., Bauer v. Blackduck Ambulance
Ass’n, Inc., 614 N.W.2d 747, 750 (Minn. App. 2000). So have state and federal courts
across the country. See Whitacre P’ship v. Biosignia, Inc., 591 S.E.2d 870, 878-86 (N.C.
2004) (stating that “at least thirty -five other states and the United States Supreme Court”
recognize judicial estoppel and examining the doctrine’s history ).1 Accordingly, we
discern no error in the district court ’s determination that judicial es toppel is a doctrine
available to Minnesota courts.

1 See also, e.g., New Hampshire, 532 U.S. at 756; Van Horn v. Martin , 812 F.3d 1180,
1182 (8th Cir. 2016); Dzakula v. McHugh, 746 F.3d 399, 400 (9th Cir. 2014); Love v. Tyson
Foods, Inc., 677 F.3d 258, 262 (5th Cir. 2012); White v. Wyndham Vacation Ownership,
Inc., 617 F.3d 472, 476 (6th Cir. 2010); Eastman v. Union Pacific R.R. Co., 493 F.3d 1151,
1156 (10th Cir. 2007) ; Krystal Cadillac -Oldsmobile GMC Truck, Inc. v. Gen. Motors
Corp., 337 F.3d 314, 319 (3d Cir. 2003) ; Wilson v. Liberty Mut. Grp., 666 N.W.2d 163,
166 (Iowa 2003); Jackson v. Harris, 303 So.3d 454, 457 (Miss. Ct. App. 2020); Skinner v.
Holgate, 173 P.3d 300, 303 (Wash. Ct. App. 2007).
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II. The district court misapplied the law regarding judicial estoppel.

Parks contends the district court erred in concluding the requirements of judicial
estoppel are satisfied because he corrected his bankruptcy petition to disclose his claims
against Covidien. He also maintains that his initial nondisclosure was inadvertent. We are
persuaded that the district court ’s analysis was incomplete and misapplied the law of
judicial estoppel because it (1) relied on Bauer to establish the parameters of judicial
estoppel and (2) did not properly consider whether Parks’s prior position was based on
inadvertence or mistake.
A. The district court erred by relying on Bauer to establish the parameters
of judicial estoppel.

Bauer involved a plaintiff who obtained workers’ compensation benefits as an
injured employee, then sought to recover in tort (as a non-employee) from the entity she
had asserted to be her employer. 614 N.W.2d at 750. In applying judicial estoppel to bar
Bauer’s tort claim, we identified three factors that govern the application of the doctrine:
(1) “the later position” of the party to be estopped “must clearly be inconsistent with [its]
earlier position,” (2) “the facts at issue should be the same in both cases,” and (3) “the party
to be estopped must have convinced the first court to adopt its position.” Id. (quotation
omitted). Neither party urged a different formulation of the doctrine, and the district court
recited these three factors from Bauer. But while Bauer supports the conclusion that
judicial estoppel is an available doctrine, it does not articulate the parameters of judicial
estoppel applicable in this case.
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First, it is doubtful that Bauer represents current law on judicial estoppel. The year
after Bauer, the United States Supreme Court addressed judicial estoppel and articulated a
similar but distinct set of factors that “typically” frame the analysis: (1) the “later position”
of the party to be est opped “must be clearly inconsistent with its earlier position,” (2) the
party to be estopped must have “ succeeded in persuading a court to accept [its] earlier
position,” and (3) the party to be estopped “would derive an unfair advantage or impose an
unfair detriment on the opposing party if not estopped.” New Hampshire, 532 U.S. at 750-
51. Within the New Hampshire framework, the circumstances of the prior position matter.
See i d. at 75 3 (“We do not question that it may be appropriate to resist application of
judicial estoppel when a party’s prior position was based on inadvertence or mistake.”
(quotation omitted)). And while our supreme court has not adopted judicial estoppel, it has
looked to New Hampshire to describe the doctrine. Ryan Contracting, 883 N.W.2d at 248
(citing New Hampshire, 532 U.S. at 749); Ill. Farmers Ins., 683 N.W.2d at 800 (citing New
Hampshire, 532 U.S. at 748-49).2
Second, Bauer is inapposite. The considerations that govern the application of
judicial estoppel are informed by t he “specific factual context [].” New Hampshire, 532

2 We observe that the New Hampshire framework has the benefit of avoiding a flaw in the
Bauer framework—the second factor (same operative facts) essentially duplicates the first
(clear inconsistency), since a clear inconsistency could not exist between the two positions
absent a shared set of operative facts. See Profit, 591 N.W.2d at 462 (noting connection
between these factors). But we recognize that our supreme court’s references to the
elements of judicial estoppel—including in cases that do not follow New Hampshire—are
dicta until such point as the supreme court formally adopts the doctrine. See Thoreson v.
State, 965 N.W.2d 295, 308 (Minn. 2021) (reciting the same factors as Bauer but declining
to adopt the doctrine); Pendleton, 706 N.W.2d at 507 (same).
8
U.S. at 751. In Bauer, the context was workers’ compensation. 614 N.W.2d at 750. Here,
the context is bankruptcy. A debtor filing for bankruptcy has an affirmative and ongoing
duty to disclose his assets, including any potential causes of action against third parties. In
re Coastal Plains, Inc., 179 F.3d 197, 207-08 (5th Cir. 1999). A debtor who fails to include
a cause of action in bankruptcy filings may be judicially estopped from asserting it against
a third party . Stallings v. Hussmann Corp. , 447 F.3d 1041, 1047 (8th Cir. 2006) (citing
Coastal Plains, 179 F.3d at 208). There are many cases addressing how judicial estoppel
applies in this context ; Bauer is not one of them . Indeed, the district court essentially
recognized as much by l ooking to numerous federal cases as guidance in applying the
Bauer formulation of judicial estoppel to the bankruptcy context.
B. The district court erred by failing to consider whether Parks’s prior
inconsistent position was based on inadvertence or mistake.

As noted above, w hen a party’s earlier position was based on inadvertence or
mistake, “it may be appropriate to resist application of judicial estoppel.” New Hampshire,
532 U.S. at 753 (quotation omitted). Courts across the country consistently hew to this
principle i n t he bankruptcy context, overwhelmingly agreeing that an inadvertent or
mistaken failure to disclose a claim does not justify application of judicial estoppel. See,
e.g., Slater v. U.S. Steel Corp., 871 F.3d 1174, 1181 -82 (11th Cir. 2017) ; Love, 677 F.3d
at 261; White, 617 F.3d at 476; Eastman, 493 F.3d at 1156-57; Stallings, 447 F.3d at 1048-
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49; Krystal, 337 F.3d at 319-20.3 But see Guay v. Burack, 677 F.3d 10, 20 (1st Cir. 2012)
(leaving the question “open”).
There are two general approaches to the issue of inadvertence. One requires a fact-
based inquiry. See Martineau v. Wier, 934 F.3d 385, 394 (4th Cir. 2019); Slater, 871 F.3d
at 1185; Spaine, 756 F.3d at 548; White, 617 F.3d at 478-79; Fulton County, 849 S.E.2d at
476; see also Ah Quin v. Cnty. of Kawai Dep’t of Transp. , 733 F.3d 267, 276 (9th Cir.
2013) (requiring fact -based inquiry if debtor corrected bankruptcy filing). Under this
approach, to determine whether a plaintiff -debtor’s inconsistent statements were
intentional or inadvertent, a court looks “to all the facts and circumstances of the particular
case.” Slater, 871 F.3d at 1185 (listing factors); see also Ah Quin, 733 F.3d at 276 -77
(requiring inquiry into plaintiff-debtor’s “subjective intent when filling out and signing the
bankruptcy schedules”).4
The other approach views the question of inadvertence narrowly , effectively
presuming that the plaintiff-debtor intentionally failed to disclose his claims unless he
(1) lacked knowledge of the undisclosed claims or (2) had no motive for concealing them.
Jones v. Bob Evans Farms, Inc. , 811 F.3d 1030, 1034 (8th Cir. 2016); Love, 677 F.3d at
262; Eastman, 493 F.3d at 1157-58; Krystal, 337 F.3d at 321; Jackson, 303 So. 3d at 458;

3 See also Fulton County v. Ward-Poag, 849 S.E.2d 465, 473 ( Ga. 2020); Jackson, 303
So.3d at 457; McCallister v. Dixon, 303 P.3d 578, 585 (Idaho 2013); Morgan Cnty. Hosp.
v. Upham, 884 N.E.2d 275, 280 (Ind. Ct. App. 2008); Skinner, 173 P.3d at 303.

4 Courts endorsing this approach also often note that strict application of judicial estoppel
may run counter to equity because it operates to the detriment of the plaintiff’s creditors
and the benefit of alleged bad actors. Slater, 871 F.3d at 1187; Ah Quin, 733 F.3d at 275.
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McCallister, 303 P.3d at 585; Morgan Cnty. Hosp., 884 N.E.2d at 280; Skinner, 173 P.3d
at 306. This approach has been popular, but recent years have seen some courts abandoning
or limiting its application. See Slater, 871 F.3d at 1185 (overruling prior Eleventh Circuit
cases applying negative presumption) 5; Ah Quin , 733 F.3d at 272, 276 (clarifying that
presumption is proper when plaintiff-debtor does not correct bankruptcy filing but
improper after a correction); United States ex rel. Bias v. Tangipahoa Par. Sch. Bd. , 766
F. App’x 38, 4 3 n.3 (5th Cir. 2019) ( rejecting assertion that the Fifth Circuit presumes
intentional nondisclosure and clarifying it “has always required courts to consider the facts
before them in determining wh ether a debtor acted inadvertently”). 6 And even courts
applying a negative presumption recognize that the issue of intent or inadvertence should
be determined as a matter of law only if the plaintiff -debtor, when confronted with the
nondisclosure, presents no expla nation. See Dzakula, 746 F.3d at 401; Love, 677 F.3d at
262-63; Morgan Cnty. Hosp., 884 N.E.2d at 283.
In sum, we discern a strong and growing consensus among courts that granting
summary judgment based on judicial estoppel is improper when the plaintiff-debtor raises

5 Among the cases Slater overruled was Burnes v. Pemco Aeroplex Inc. , 291 F.3d 1282,
1286-87 (11th Cir. 2002), which many courts have looked to as authority for applying a
negative presumption. E.g., Eastman, 493 F.3d at 1157; McCallister, 303 P.3d at 585;
Robson v. Tex. E. Corp., 833 N.E.2d 461, 467 (Ind. Ct. App. 2005). As such, Slater may
signal a trend away from the presumption.

6 Recent federal cases in Minnesota also may signal a trend away from the Eighth Circuit’s
narrow approach by carefully considering various circumstances in concluding that
bankruptcy debtors should not be judicially estopped from pursuing claims they initially
failed to disclose. United States v. Cameron -Ehlen Group, Inc. , No. 13-CV-3003, 2020
WL 4476427, *7-8 (D. Minn. Aug. 4, 2020); Nowling v. SN Servicing Corp., No. 19-CV-
1605, 2020 WL 1244809, *5-8 (D. Minn. Mar. 16, 2020).
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a fact question regarding inadvertence or mistake. And mindful that our supreme court
disfavors harsh application of other preclusive doctrines, we conc lude that Minnesota
courts should adhere to this principle when applying judicial estoppel. See Mach v. Wells
Concrete Prod. Co., 866 N.W.2d 921, 926 -27 (Minn. 2015) (stating that res judicata and
collateral estoppel require consideration of whether the doctrine’s application would “work
an injustice on the party against whom estoppel is urged” (quotation omitted)); Hauschildt
v. Beckingham, 686 N.W.2d 829, 837 (Minn. 2004) (stating that “neither res judicata nor
collateral estoppel is to be rigidly applied”).
The district court failed to do so here.7 It directed Parks not to submit an affidavit
explaining his reason for not disclosing his Covidien claims earlier. It also disregarded
Parks’s amendment of his bankruptcy filing solely because the amendment occurred after
Covidien moved for summary judgment. In doing so, the district court correctly noted that
many courts view a bankruptcy correction skeptically when it comes only after the specter
of judicial estoppel has been raised. E.g., Jones, 811 F.3d at 1034; Love, 677 F.3d at 266;
White, 617 F.3d at 480; Krystal, 337 F.3d at 32 0-21. But even then, the timing of the
correction is relevant to, not determinative of, a claim of inadvertence or mistake. See
Love, 677 F.3d at 266 (criticizing “automatically” deeming nondisclosure “innocent”
because of correction); White, 617 F.3d at 480 (observing that efforts to correct

7 Covidien contends Parks has forfeited any challenge to this failure because he did not
argue to the district court that inadvertence should excuse his nondisclosure . We are not
persuaded. Parks raised the issue by correcting his bankruptcy filing, asserting
inadvertence, and directing the district court to caselaw unanimously endorsing the view
that judicia l estoppel is inappropriate when a failure to disclose a claim in bankruptcy
filings was inadvertent.
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nondisclosure before a motion to dismiss “are more important” than subsequent efforts) ;
see also Slater, 871 F.3 d at 1185 (suggesting consideration of “whether and under what
circumstances the plaintiff corrected the disclosures”). We conclude that the district court
erred by granting summary judgment. Accordingly, we reverse and remand for further
proceedings not inconsistent with this opinion. We express no opinion as to whether Parks
would be judicially estopped from pursuing his claims against Covidien under the proper
legal analysis.
Reversed and remanded.