Gilbert Jarrard v. CDI TELECOMMUNICATIONS , INC . and CRAWFORD & COMPANY

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1992
G ILBERT J ARRARD ,
Plaintiff-Appellant,
v.
CDI T ELECOMMUNICATIONS , I NC .
and C RAWFORD & C OMPANY ,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 03 C 65—Philip P. Simon, Judge.
____________
A RGUED O CTOBER 28, 2004—D ECIDED M AY 25, 2005
____________
Before P OSNER , K ANNE , and R OVNER , Circuit Judges.
K ANNE , Circuit Judge. Gilbert Jarrard filed a diversity
suit in district court, alleging wrongdoing by his former
employer, CDI Telecommunications, Inc. (“CDI”), and its
third-party worker’s compensation claims administrator,
Crawford & Company (“Crawford”). The district court dis-
missed Jarrard’s complaint for failure to state a claim, and
Jarrard appeals. We affirm.

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2 No. 04-1992
I. Background
On October 20, 1992, Gilbert Jarrard fell from a commu-
nications pole while on the job, suffering a crushed ankle
and injuries to his shoulders, lower extremities, and back.
Jarrard underwent treatment for some of his injuries, but
not the additional work-hardening and therapy that
Jarrard claims were necessary to treat his remaining injur-
ies. Unfortunately, persons employed by CDI and Crawford
disagreed that Jarrard needed the additional treatment and
therapy. Worse, from Jarrard’s standpoint, these persons
persuaded Jarrard’s physician (who had been treating
Jarrard’s ankle and back injuries, and who had initially
prescribed a work-hardening program), to issue a determi-
nation of “maximum medical improvement.” According to
Jarrard, this determination prematurely terminated his
worker’s compensation benefits, causing him to lose medical
and temporary disability benefits that were to fund the
treatment of his shoulder injuries until such time that he
could return to work.
In October 1993, Jarrard requested an independent
medical examination, but on Crawford’s recommendation,
Jarrard’s request was denied. In January 1994, CDI applied
to Indiana’s Worker’s Compensation Board (“the Board”) for
an adjustment of claim, seeking to impose on Jarrard an
unfavorable permanent partial impairment rating and to
foreclose additional medical and disability income benefits.
A month later, CDI refused Jarrard’s request for a physi-
cian to provide treatment for his shoulder injuries, and, in
October 1994, Jarrard filed his own application for adjust-
ment of claim with the Board.
Years later, on April 5, 1998, Jarrard filed a third-party
complaint with the Board alleging that the defendants had
acted in bad faith and committed other torts when they
sought an adjustment of his compensation claim. Jarrard
filed his complaint with the Board pursuant to the relevant

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No. 04-1992 3
1 The statute provides:
The worker’s compensation board, upon hearing a claim for
benefits, has the exclusive jurisdiction to determine whether
the employer, the employer’s worker’s compensation adminis-
trator, or the worker’s compensation insurance carrier has
acted with a lack of diligence, in bad faith, or has committed
an independent tort in adjusting or settling the claim for
compensation.
Ind. Code § 22-3-4-12.1(a)
2 The Board’s order, in relevant part, states:
1. Jarrard’s Third-Party Complaint involves acts which
occurred prior to the effective date of IC 22-3-4-1, effective
July 1, 1997.
2. IC 22-3-4-12-1 is not retroactive and does not apply to
Jarrard’s allegations, thereby depriving the Board of juris-
diction to hear the Third-Party Complaint.
statutory provision, which, as of July 1, 1997, grants the
Board exclusive jurisdiction over bad faith and other
independent tort claims relating to adjustment of worker’s
compensation claims. Ind. Code § 22-3-4-12.1 (“the stat-
ute”). 1
The defendants filed a motion to dismiss, arguing that the
Indiana legislature did not indicate that the statute was to
be applied retroactively—the Board therefore did not have
jurisdiction because the acts Jarrard complained of took
place prior to the statute’s effective date. In other words,
because the Board’s jurisdiction did not apply retroactively,
Jarrard needed to vindicate his rights in state court, not
before the Board. On February 10, 1999, the Board agreed
and issued an order dismissing Jarrard’s third-party claim
on the basis that it did not have jurisdiction to hear his
third-party complaint. 2 A final award in Jarrard’s worker’s
compensation claim was entered on May 4, 2001. Jarrard
never appealed the Board’s dismissal of his third-party
claim, nor did he file suit in state court.

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4 No. 04-1992
3 The defendants moved to dismiss for lack of subject matter
jurisdiction, Fed. R. Civ. P. 12(b)(1), because Indiana law grants
the Board exclusive jurisdiction over worker’s compensation and
related tort claims like Jarrard’s. As the district court explained,
however, its jurisdiction arose from the federal diversity statute,
28 U.S.C. § 1332, and state law cannot enlarge or contract federal
jurisdiction. See Goetzke v. Ferro Corp., 280 F.3d 766, 779 (7th
Cir. 2002); Beach v. Owens-Corning Fiberglas Corp., 728 F.2d 407,
409 (7th Cir. 1984). Nevertheless, the court concluded that
Indiana law denied Jarrard a judicial remedy and, therefore, prop-
erly construed the defendants’ motion as one brought pursuant to
Fed. R. Civ. P. 12(b)(6) rather than 12(b)(1). See Goetzke, 280 F.3d
at 779 (“If state substantive law has denied a plaintiff a remedy
for his cause of action, the district court must dismiss the
complaint for failure to state a claim upon which relief may be
granted.”).
In February 2003, Jarrard filed a complaint in federal
court on the basis of diversity jurisdiction, alleging that he
suffered damages as a result of the “gross negligence” of
CDI and Crawford in adjusting his claim. The defendants
again moved to dismiss Jarrard’s complaint, but this time
the defendants argued a position opposite to the one taken
before the Board: that the Board has exclusive jurisdiction,
not the courts. In support of this position, the defendants
cited Indiana caselaw—decided in the period after the Board
dismissed Jarrard’s first complaint—holding that the statute
applies retroactively, so the Board was the exclusive forum
for Jarrard’s new complaint. The district court in essence 3
agreed with the defendants’ position and dismissed Jarrard’s
complaint for failure to state a claim upon which relief
could be granted. Fed. R. Civ. P. 12(b)(6).
II. Discussion
On appeal, Jarrard argues that the district court improp-
erly dismissed his case. As Jarrard sees it, the district court
did have jurisdiction to hear his case because, under Indiana

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No. 04-1992 5
law, the Board’s entry of award accepting the defendants’
interpretation of the statute was “final and conclusive.” In
other words, the district court was bound to accept the Board’s
determination that it had no retroactive jurisdiction. In any
event, Jarrard argues that the defendants should not have
been able to argue inconsistent positions before the Board
and the district court. Jarrard asserts that it would be
“unconscionable” to allow defendants to prevail on the basis
of the inconsistent arguments, and that various preclusion
and estoppel doctrines block the defendants from taking a
position directly opposite to the position they took before
the Board.
Because the district court dismissed Jarrard’s complaint
pursuant to Fed. R. Civ. P. 12(b)(6), our review in this case
is de novo. See Cole v. U.S. Capital, 389 F.3d 719, 724 (7th
Cir. 2004). Before turning to the merits, however, some ex-
pansion on the applicable law and key facts is in order. As
indicated earlier, the relevant Indiana statute, which was
effective as of July 1, 1997, grants exclusive jurisdiction to
the Board to determine whether a worker’s compensation
insurance carrier acted in bad faith or committed other
torts in adjusting or settling the aggrieved worker’s claim.
Ind. Code § 22-3-4-12.1(a); see also Sims v. United States
Fid. & Guar. Co., 782 N.E.2d 345, 352 (Ind. 2003) (holding
statute constitutional). As of the time Jarrard filed his
third-party claim before the Board, the Indiana courts had
not spoken regarding the statute’s retroactivity.
Within months of the Board’s dismissal of Jarrard’s third-
party claim, however, two Indiana Court of Appeals cases
held that the statute in fact could be applied retroactively.
See Samm v. Great Dane Trailers, 715 N.E.2d 420 (Ind. Ct.
App. 1999); Borgman v. State Farm Ins. Co., 713 N.E.2d 851
(Ind. Ct. App. 1999); see also Goetzke, 280 F.3d at 779-80
(analyzing changes in Indiana law wrought by the statute
and Samm). In Borgman, the plaintiffs (like Jarrard) filed
suit in Indiana court after the effective date of the statute

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6 No. 04-1992
alleging tortious acts that took place before that date.
Borgman, 713 N.E.2d at 853. The court dismissed the case,
concluding that the statute applied retroactively, and thus
the Board was the proper forum for the plaintiffs’ suit. See
id. at 853-54. The Indiana Court of Appeals held that the
plaintiffs’ complaint rested within the exclusive jurisdiction
of the Board even though the acts complained of took place
before the statute’s effective date, and thus dismissal for
lack of subject matter jurisdiction was appropriate. See id.
at 855. Likewise, in Samm, the court reaffirmed Borgman’s
holding that the statute can be applied retroactively to acts
taking place before the statute’s effective date. See Samm,
715 N.E.2d at 423-24.
In short, Indiana law required that Jarrard bring his
claims before the Board, not the courts. Although this
interpretation of the statute was not clearly established in
Indiana law as of the time Jarrard brought his action before
the Board in 1998, the interpretation was controlling as of
the time he filed suit in federal district court in 2003. The
defendants won a dismissal from the Board based on a
colorable interpretation of the statute at the time, and then,
years later, won another dismissal in federal court based on
the recently decided Indiana caselaw refuting the defen-
dants’ proposed interpretation.
Unfortunately, somewhere along the way, Jarrard slipped
through the cracks and has not been able to have his case
heard on the merits before any tribunal. Jarrard first filed
his claim with the Board, only to be told that he should
have filed his claim in state court. When he later sought to
vindicate his rights in federal court, he discovered that, as a
result of Indiana caselaw decided in the interim, the proper
forum for his claim was the Board after all. It is therefore
easy to characterize Jarrard as being trapped in a sort of
legal limbo over which he had no control—a “trick box,” as
the district court aptly described it.

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No. 04-1992 7
4 Jarrard takes issue with what he believes is the district court’s
“erroneous conclusion that Jarrard still had a right to appeal after
[Borgman and Samm] were decided.” (Appellant Br. at 7.) We do
not read the district court’s order as expressing any such conclu-
sion; rather, the court simply suggested (as we do) that Jarrard
ought to have appealed the Board’s unfavorable decision under the
procedural mechanisms provided for under Indiana law.
Jarrard also contends that he did not appeal because “[t]here
was no authority or support whatever for the ‘retroactive’ position
later adopted by the Court of Appeals.” (Id. at 14.) This is an odd
proposition. The Borgman court did not invent its retroactivity
holding out of whole cloth. Rather, the court undertook a straight-
forward interpretation of the statute’s plain language and applied
state law regarding the retroactive effect of Indiana statutes. See
Borgman, 713 N.E.2d at 855 & n.1. There is nothing particularly
novel about Borgman’s analysis, and Jarrard surely could have
made similar arguments on appeal.
This characterization does not tell the entire story, how-
ever. Jarrard was not without recourse when the Board
dismissed his tort claims in February 1999. Jarrard need
not have uncomplainingly accepted the defendants’ and the
Board’s conclusions with respect to whether the statute
applied retroactively. As Jarrard concedes, he could have ap-
pealed the Board’s decision to the full Board in accordance
with procedures set forth in Indiana law. Ind. Code 22-3-4-8.
He would have had to file such an appeal by March 2, 1999,
but Jarrard opted not to do so. Or Jarrard could have filed
suit in court in response to the Board’s determination that
it did not have jurisdiction to hear his case. Indeed, had
Jarrard expeditiously appealed the Board’s decision or
sought relief in state court, it is likely that the Borgman
opinion (decided June 9, 1999) would have issued during
the course of his appeal or state court litigation, perhaps
settling the retroactivity question in Jarrard’s favor in the
nick of time. 4 Jarrard did none of these things, but he in-
stead filed a complaint in federal court over four years after
the Board’s dismissal and well after the Borgman and

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8 No. 04-1992
Samm cases were decided. In this regard, it appears that
Jarrard’s predicament is, at least in part, a problem of his
own making. In any event, for the reasons discussed below,
we conclude that Jarrard’s arguments on appeal are una-
vailing, and the district court properly dismissed Jarrard’s
complaint.
A. The “Final and Conclusive” Board Decision and the
Law of the Case Doctrine
Jarrard’s arguments largely stem from his conception of
the law of the case doctrine, so it is to this facet of Jarrard’s
appeal we turn first. Jarrard contends that when he filed
his application for adjustment of claim in October 1994, it
was settled law in Indiana that an employee could bring an
independent tort cause of action in state court against an
employer or its worker’s compensation carrier. See Stump
v. Commercial Union, 601 N.E.2d 327 (Ind. 1992). Such
claims were governed by Indiana common law. See Sims,
782 N.E.2d at 351. This practice, of course, came to an end
with the enactment of the statute, which requires that such
claims be adjudicated by the Board.
Jarrard argues that under the law of the case doctrine,
his complaint in federal court should have been governed by
the common law. Specifically, Jarrard argues that when the
Board concluded that it had no jurisdiction to hear Jarrard’s
claims, its determination was “final and conclusive” and “not
subject to reversal by a civil court.” (Appellant Br. at 10.)
Jarrard further suggests that the decision to appeal the
Board’s final award was purely his choice, and when he
opted not to appeal the award, the Board’s determination
became the law of the case—“binding not only on the Board
and the parties, but on all courts subject to Indiana law.”
(Id. at 7.) Indeed, Jarrard contends that Indiana cases
decided following the Board’s final award, such as Borgman,
“had no effect on Jarrard or on [the defendants], for whom
the ‘final and conclusive’ determination of ‘no jurisdiction’

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No. 04-1992 9
5 There are at least two reasons why Jarrard must take the
position that the governing law of the case is fixed in time pre-
Borgman. Obviously, if the statute retroactively applies to his
claims, Jarrard loses because the Board, not the courts, has ex-
clusive jurisdiction over his third-party claims, and dismissal is
proper. Less obvious, but just as critical as far as federal jurisdic-
tion goes, is the fact that the statute caps his recovery at $20,000,
an amount well below the price of admission to federal court on
the basis of diversity of citizenship. Ind. Code § 22-3-4-12(b), (f);
28 U.S.C. § 1332.
had been made by the . . . Board on March 2, 1999.” (Id. at
15.) As Jarrard sees it, the Indiana courts (or federal
district court exercising diversity jurisdiction) must there-
fore entertain his tort claim, regardless of the statute’s
exclusivity provision and controlling Indiana caselaw giving
it retroactive effect. 5
Precedent teaches that, “[a]s most commonly defined, the
[law of the case] doctrine . . . posits that when a court decides
upon a rule of law, that decision should continue to govern
the same issues in subsequent stages in the same case.”
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800,
815-16 (1988) (citation omitted) (emphasis added); see also
id. at 816 (“[T]he doctrine applies as much to the decisions
of a coordinate court in the same case as to a court’s own
decisions.”). The doctrine “is a rule of practice, based on
sound policy that, when an issue is once litigated and de-
cided, that should be the end of the matter.” Evans v. City
of Chi., 873 F.2d 1007, 1014 (7th Cir. 1989) (quoting Barrett
v. Baylor, 457 F.2d 119, 123 (7th Cir. 1972)). It is well
established that under the doctrine, “matters decided on
appeal become the law of the case to be followed in all sub-
sequent proceedings in the trial court and, on second appeal,
in the appellate court, unless there is plain error of law in
the original decision.” See Evans, 873 F.2d at 1013-14
(internal quotes and citation omitted). The doctrine does not
apply if the prior decision is clearly erroneous—if, for

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10 No. 04-1992
6 Indeed, by arguing that all subsequent tribunals (including the
district court) are bound by the Board’s jurisdictional determi-
nation, Jarrard essentially argues not that the law of the case
applies, but that the Board’s decision is entitled to the force of
stare decisis. See Midlock v. Apple Vacations West, Inc., ___ F.3d
___, No. 04-2615, 2005 WL 948826, at *3 (7th Cir. Apr. 20, 2005).
It is unclear whether Indiana imparts stare decisis effect to the
decisions of the Board, but even if it does, the subsequent caselaw
rendered by the Indiana Court of Appeals trumps the Board’s
decision. See Lincoln Utils., Inc. v. Office of Util. Consumer
Counselor, 661 N.E.2d 562, 565 (Ind. Ct. App. 1996) (“The
decisions of the appellate districts are law governing all of Indiana
and cannot be disregarded.”).
example, “controlling authority has since made a contrary
decision of law[.]” See id. at 1014 (collecting authority).
Indiana’s version of the doctrine is virtually identical. See,
e.g., In re Adoption of Baby W., 796 N.E.2d 364, 372 (Ind.
Ct. App. 2003) (“[T]he law-of-the-case doctrine provides that
an appellate court’s determination of a legal issue binds
both the trial court and the court on appeal in any subse-
quent appeal involving the same case and substantially the
same facts.”); Platt v. State, 664 N.E.2d 357, 361 (Ind. Ct. App.
1996) (collecting authority).
Given this well-established authority, it is apparent that
Jarrard misapprehends the law of the case doctrine. 6
Jarrard’s federal case was not a successive stage in the
same action he previously had filed before the Board. When
Jarrard filed his third-party claims before the Board and,
later, his complaint in federal court, Jarrard initiated two
separate cases. But even if Jarrard’s federal case could be
considered a subsequent stage of the same litigation (or the
Board a coordinate or appellate court), the district court was
not obliged to follow the Board’s dictates regarding the
statute’s retroactivity in light of controlling Indiana law
making it clear that the Board’s interpretation of the statute
was erroneous. See Evans, 873 F.2d at 1014; cf.

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No. 04-1992 11
Christianson, 486 U.S. at 817 (teaching that even if a co-
ordinate court’s decision regarding jurisdiction is the law of
the case, a subsequent coordinate court may decline juris-
diction if the prior decision is “clearly wrong”); McMasters
v. United States, 260 F.3d 814, 818 (7th Cir. 2001); Lincoln
Utilities, 661 N.E.2d at 565.
The caselaw Jarrard cites does not change our conclusion.
In particular, Jarrard relies heavily on Rassbach v. Alcala,
775 N.E.2d 353 (Ind. Ct. App. 2002), for his theory that the
Board’s final award was “binding not only on the board and
the parties, but on all courts subject to Indiana law.” In
Rassbach, the plaintiffs filed a worker’s compensation claim
for injuries suffered during a car accident that took place
prior to the plaintiffs’ work shift but on a road on the
premises of their employer’s place of business. Id. at 355.
The Board dismissed the plaintiffs’ claim, concluding that
the accident did not arise in the course of the plaintiffs’
employment because, in part, the road upon which the acci-
dent occurred was a municipal road. Id. at 355-56. The
plaintiffs did not appeal the Board’s decision, but filed
negligence claims in the trial court. Id. at 356. The defendant
then filed a motion to dismiss for lack of subject matter
jurisdiction on the basis that the accident had occurred on
the employer’s property, and thus the Board had exclusive
jurisdiction over the claim. Id. The trial court agreed with
the defendant’s argument and concluded that the accident
occurred on the employer’s premises, thus giving rise to a
worker’s compensation claim within the Board’s exclusive
jurisdiction.
On appeal, the Indiana Court of Appeals reversed the
trial court’s order dismissing the case. The court concluded
that Indiana law did not empower trial courts to review a
Board’s decision or to determine whether the Board’s deci-
sion is correct. Id. at 359. By revisiting factual determina-
tions made by the Board, the trial court had “invaded the
exclusive province of the Board.” Id.

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12 No. 04-1992
Rassbach is inapposite to the present case. True,
Rassbach held that the trial court was required to abide by
the Board’s determination regarding its jurisdiction, a point
which echoes Jarrard’s argument here. The similarity ends
there, however. In Rassbach, the Board’s jurisdictional deter-
mination arose from factual findings relating to the merits
of the plaintiffs’ worker’s compensation, and the trial court
revisited the Board’s factual conclusions. Indiana law clearly
establishes the procedure by which a party may appeal a
Board’s decision, and a trial court is not to second-guess the
correctness of the Board’s decision. In contrast, in the
present case, the Board’s conclusion that it had no jurisdic-
tion to hear Jarrard’s third-party claims arose not from a
factual determination relating to the merits, but from a
colorable (albeit erroneous) interpretation of the statute’s
retroactivity provision. Subsequent Indiana caselaw, of
course, proved that interpretation wrong as a matter of law,
and this caselaw is controlling. See Lincoln Utilities, 661
N.E.2d at 565. The district court certainly did not invade
the Board’s exclusive province simply by applying the con-
trolling law as set forth in Borgman.
The Board’s jurisdictional determination was not “final
and conclusive” in the way Jarrard would have it. Simply
put, the district court was not bound by the Board’s deter-
mination regarding the statute’s retroactivity and neither
are we. We therefore reject Jarrard’s contention that the
law of the case doctrine compelled the district court to en-
tertain Jarrard’s claims under the common law scheme in
place prior to the statute’s enactment and subsequent
Indiana caselaw.
B. Judicial Estoppel
Jarrard’s next argument concerns the doctrine of judicial
estoppel. Jarrard argued in the district court that judicial

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No. 04-1992 13
estoppel foreclosed the defendants’ argument that the
Board has exclusive jurisdiction, because the defendants
had previously argued to the Board that it had no jurisdic-
tion. The district court disagreed with Jarrard’s position
because the Indiana cases decided in the interim indicated
that the defendants’ changed position did not result from
misconduct. Jarrard now renews his judicial estoppel argu-
ment on appeal, contending that the defendants “may not
now argue and prevail on the exact opposite motion” and
that “[a]llegations in pleadings in the same or former action
made in the course of judicial proceedings will ordinarily
estop the party making them from denying their truth in a
subsequent action or proceeding in which he is a party to
the prejudice of his opponent.” (Appellant Br. at 8.)
We first note that, in light of the preceding analysis, we
likely do not need to address Jarrard’s judicial estoppel
argument. Indiana law clearly vests exclusive jurisdiction
in the Board, and that jurisdiction applies retroactively to
cases like Jarrard’s. See Borgman, 713 N.E.2d at 855. So
even if the defendants had not taken an inconsistent posi-
tion before the district court regarding the Board’s jurisdic-
tion, Jarrard would be foreclosed from bringing his claims
in federal court (or Indiana court, for that matter). In other
words, it appears that application of the doctrine of judicial
estoppel cannot save Jarrard’s federal court action because
Indiana law doomed it from the start no matter what
position the defendants took regarding jurisdiction. Cf.
Goetzke, 280 F.3d at 779.
Nevertheless, even if we take up Jarrard’s judicial estoppel
argument, it fares no better here than it did in the district
court. Although Jarrard’s complaint was founded on diversity
jurisdiction, we apply federal (not Indiana) caselaw with
respect to judicial estoppel. See Ogden Martin Sys. of
Indianapolis, Inc. v. Whiting Corp., 179 F.3d 523, 527 n.1
(7th Cir. 1999) (concluding that federal, not state, law gov-
erns the doctrine even in diversity cases); Ryan Operations

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14 No. 04-1992
G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 358 n.2
(3d Cir. 1996) (“A federal court’s ability to protect itself
from manipulation by litigants should not vary according to
the law of the state in which the underlying dispute arose.”).
It is well established that the doctrine of judicial estoppel
acts “to protect the integrity of the judicial process . . . 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) (internal quotations
and citations omitted). More specifically, the doctrine aims
to prevent a party that prevails in one lawsuit on one
ground from repudiating that same ground in another law-
suit. See Odgen Martin Sys., 179 F.3d at 526; Levinson v.
United States, 969 F.2d 260, 264 (7th Cir. 1992) (Judicial
estoppel “protect[s] the courts from being manipulated by
chameleonic litigants who seek to prevail, twice, on opposite
theories.”). Judicial estoppel is an equitable doctrine to be
applied flexibly with an eye toward protecting the integrity
of the judicial process, see Carnegie v. Household Int’l, Inc.,
376 F.3d 656, 660 (7th Cir. 2004) (citations omitted), and it
serves to “reduce fraud in the legal process by forcing a
modicum of consistency on a repeating litigant.” Ladd v.
ITT Corp., 148 F.3d 753, 756 (7th Cir. 1998).
Therefore, no precise or rigid formula guides the appli-
cation of judicial estoppel. Nevertheless, precedent teaches
that several factors are relevant in deciding whether invo-
cation of the doctrine may be appropriate. First, a party’s
position must be clearly inconsistent with a position earlier
taken. New Hampshire, 532 U.S. at 750 (collecting authority).
Second, the party must have prevailed on the basis of its
earlier position “so that judicial acceptance of an inconsis-
tent position in a later proceeding would create the percep-
tion that either the first or the second court was misled.” Id.
(citation and internal quotes omitted). Third, we consider
whether the party asserting the inconsistent position “would
derive an unfair advantage or impose an unfair detriment

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No. 04-1992 15
on the opposing party if not estopped.” Id. at 751 (citations
omitted). A fourth factor to consider is whether the operative
facts remain the same in both cases. Ogden Martin Sys.,
179 F.3d at 527.
At first blush, considering these factors alone, Jarrard’s
argument seems somewhat persuasive. After all, the
defendants did successfully argue before the Board in that
it had no jurisdiction, and then prevailed in the district
court on the basis that the Board in fact does have exclusive
jurisdiction. But matters become hazier for Jarrard when
we consider the strong antifraud purposes animating the
doctrine. There is more to the doctrine than the prevention
of the sort of flip-flop of which Jarrard complains. Judicial
estoppel is intended to protect the courts from the litigatory
shenanigans that would result if parties could, without
limitation or consequence, swap litigation positions like hats
in successive cases based on simple expediency or self-
benefit. Judicial estoppel shields the courts from being the
instrument of such misconduct. See In re Cassidy, 892 F.2d
637, 641 (7th Cir. 1990) (“Judicial estoppel is a doctrine
intended to prevent the perversion of the judicial process.”)
In this case, the position the defendants took before the
Board—that the Board did not have jurisdiction because the
statute was not retroactive—was a fair reading of the
statute. The defendants were well within their rights to
advocate this interpretation in good faith, and the Board
agreed with that interpretation. The law changed in the
interim, when the Indiana courts interpreted the statute
the other way. As a consequence, the defendants argued a
position in federal court opposite from the one taken before
the Board. There is nothing fraudulent or otherwise unto-
ward about this shift, even though the results ended up
being favorable to the defendants in each instance.
Jarrard argues that it would be “unconscionable” to let
defendants get away with this shift, a fairness argument im-

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16 No. 04-1992
plicating the third factor. In conformance with the doctrine’s
antifraud purpose, however, fairness must be viewed in the
context of the defendants’ motive in changing positions and
not solely in the context of the unfavorable result to Jarrard.
In light of the change in Indiana law, the defendants’
motives are not suspicious, because, for the reasons given,
the defendants could not have argued their prior position
without running afoul of controlling Indiana caselaw. Judi-
cial estoppel should not be used to work an injustice, id. at
642, particularly when the defendants’ change in position
resulted from circumstances outside their control—namely,
a change in controlling state law. Cf. New Hampshire, 532
U.S. at 755 (recognizing that judicial estoppel might not be
applicable if inconsistent positions result from change in
public policy, statutory provisions, or facts) (citations omitted);
In re Chambers Dev. Co., 148 F.3d 214, 229 (3d Cir. 1998)
(Judicial estoppel “will not apply where inconsistent posi-
tions are asserted in good faith or through inadvertence.”).
In sum, the defendants’ arguments, though facially incon-
sistent, were not an attempt to play “fast and loose” with the
court, and thus the broad antifraud purpose of judicial
estoppel does not come into play here. For this reason, we
conclude that Jarrard’s judicial estoppel argument fails.
C. Res Judicata and Collateral Estoppel
Jarrard’s remaining arguments regarding res judicata
and collateral estoppel also fall short.
We turn first to Jarrard’s res judicata (or claim preclu-
sion) argument. Unlike the law of judicial estoppel, we
apply state law when our jurisdiction rests on diversity of
citizenship, and the adjudication argued to have preclusive
effect (under either res judicata or collateral estoppel) was
issued by a state tribunal. See Xantech Corp. v. Ramco
Indus., Inc., 159 F.3d 1089, 1092 (7th Cir. 1998); Stephan
v. Rocky Mountain Chocolate Factory, Inc., 136 F.3d 1134,
1136-37 (7th Cir. 1998). Indiana law recognizes res judicata

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No. 04-1992 17
as actually comprising two separate branches—claim pre-
clusion and issue preclusion. French v. French, 821 N.E.2d
891, 896 (Ind. Ct. App. 2005). Claim preclusion (which
Jarrard calls res judicata) “precludes re-litigation of a cause
of action that has been fully and finally determined on its
merits by a court of competent jurisdiction.” Neese v. Kelley,
705 N.E.2d 1047, 1051 (Ind. Ct. App. 1999); see also id.
(“[W]hen a party relies on res judicata, he or she must prove
that the cause of action has been fully and finally deter-
mined on the merits between the same parties by a court of
competent jurisdiction.”).
Jarrard offers the conclusory assertion that res judicata
bars defendants’ motion to dismiss because the parties’
rights “were fixed by the ‘final and conclusive’ ruling of
the Board, and were not affected by the decisions in the
Borgman or Sims cases.” (Appellant Br. at 18.) Thus,
Jarrard suggests that the Board’s conclusion that it had no
jurisdiction amounted to a prior adjudication on the merits
barring the district court from looking to Borgman or other
caselaw inconsistent with the Board’s “final and conclusive”
determination. We disagree. As with his previous arguments,
Jarrard displays a less-than-complete understanding of the
relevant doctrine at issue. The Board’s dismissal on the
basis of jurisdiction certainly did not amount to a full and
final adjudication on the merits of Jarrard’s tort claims, so
res judicata, or claim preclusion, clearly does not apply
here.
Jarrard’s collateral estoppel argument fails for the simple
reason that he failed to develop it in the district court (or
here for that matter) with citation to relevant authority or
meaningful argument. Jarrard has therefore forfeited his
collateral estoppel argument. See Kyle v. Morton High Sch.,
144 F.3d 448, 454 (7th Cir. 1998); United States v.
Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991) (holding that
“perfunctory and undeveloped arguments that are un-
supported by pertinent authority” are forfeited on appeal).

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18 No. 04-1992
In sum, for all of the reasons given, Jarrard’s complaint
was properly dismissed. As a final point, we add that the
outcome in this case brings no satisfaction, for we believe
that Jarrard has, in a sense, slipped through the cracks as
a result of bad timing and his decision to forego any appeal
or litigation in state court on the heels of the Board’s
dismissal of this third-party claims. As it stands, however,
Indiana law vests exclusive jurisdiction over claims like
Jarrard’s in the Board, not the courts. Whether Jarrard
may seek recourse or equitable relief before the Board or
Indiana’s courts at this late juncture is an open question,
but it is certain that the federal courts are not empowered
to grant Jarrard the relief he seeks. See Goetzke, 280 F.3d
at 779 (“[A] federal forum, when invoked on grounds of
diversity of citizenship, cannot give that which the state has
withheld.”) (citation, internal quotations, and brackets
omitted).
III. Conclusion
For the reasons given, we A FFIRM the order of the district
court dismissing Jarrard’s complaint.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-25-05

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