context: Despite McNemar's shortcomings, at least one circuit has indicated a willingness to adopt the Third Circuit's approach, albeit not applying the doctrine of judicial estoppel per se.
citation_a.signal: see also
citation_a.identifier: 128 F.3d 68, 74
citation_a.parenthetical: applying judicial estoppel in an age discrimination case, but specifically stating that the applicability of judicial estoppel to ADA cases will be "left for another day"
citation_a.sentence: See Kennedy v. Applause, Inc., 90 F.3d 1477, 1481-82 (9th Cir.1996) (holding, without applying the doctrine of judicial estoppel, that the plaintiff, who made sworn statements of total disability in a social security disability application and then testified at her deposition that she was not totally disabled, failed to raise a genuine issue of material fact as to whether she was a qualified individual with a disability within the meaning of the ADA); see also Simon v. Safelite Glass Corp., 128 F.3d 68, 74 (2d Cir.1997) (applying judicial estoppel in an age discrimination case, but specifically stating that the applicability of judicial estoppel to ADA cases will be “left for another day”).
citation_b.signal: see
citation_b.identifier: 90 F.3d 1477, 1481-82
citation_b.parenthetical: holding, without applying the doctrine of judicial estoppel, that the plaintiff, who made sworn statements of total disability in a social security disability application and then testified at her deposition that she was not totally disabled, failed to raise a genuine issue of material fact as to whether she was a qualified individual with a disability within the meaning of the ADA
citation_b.sentence: See Kennedy v. Applause, Inc., 90 F.3d 1477, 1481-82 (9th Cir.1996) (holding, without applying the doctrine of judicial estoppel, that the plaintiff, who made sworn statements of total disability in a social security disability application and then testified at her deposition that she was not totally disabled, failed to raise a genuine issue of material fact as to whether she was a qualified individual with a disability within the meaning of the ADA); see also Simon v. Safelite Glass Corp., 128 F.3d 68, 74 (2d Cir.1997) (applying judicial estoppel in an age discrimination case, but specifically stating that the applicability of judicial estoppel to ADA cases will be “left for another day”).