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We are rounding the final curve of the Fall academic calendar, so now come the sessions in the litigation class we teach at Penn Law when we discuss story-telling. It is not as if we have anything novel to say. The best (most attention-getting, understandable, memorable, and persuasive) stories are ones we have already heard before and already believe. Some of those stories usually work well for our side (people need to exercise personal responsibility, a deal is a deal) and some usually work against us (dollars over lives, David vs. Goliath).

It is utterly distasteful, but we feel obliged to devote time to schooling the students on the reptile mode of storytelling. Most of you have probably heard of this plaintiff ploy. It slithers along on the notion that the reptilian part of human brains is fully intact, active, and lurking under our higher paleomammalian and neomammalian brain -bits. That reptile lobe is always fretting over potential dangers to ourselves. The plaintiff lawyer reptile strategy is to make jurors worry about how the defendant’s conduct did not merely harm the plaintiff in the case, but posed a threat to the community – more pointedly, to the jurors and their loved ones. Thus, so the reptile theory goes, the jurors will feel (and it is a feeling, not a thought) that a verdict for the plaintiff, with punitive damages, is necessary for self-preservation.

There are books out there on the reptile theory. The seminal text is D.Ball & D. Kennan, Reptile: The 2009 Manual of the Plaintiff’s Revolution. Another one is C. Bettinger, Twelve Heroes, One Voice: Guiding Jurors to Courageous Verdicts. Guess what “courageous” means. These books are not made readily available to defense hacks. There are restrictions and high prices (check out eBay). But the books do not really tell you anything you haven’t heard hundreds of times. Plaintiff lawyers put the reptile theory in motion by badgering company witnesses to buying into broad “safety rules.” The next step is to show that the defendant did not satisfy those rules. The gap between the Ought and the Is gets filled with money.

We laid out the reptile theory to our students and we could tell by their facial expressions that they were skeptical. In the parlance of the times, they were unconvinced that the reptile theory really is “a thing”. To their ears, the reptile theory sounded sort of insipid. (Bright students!).

Then, as if to supply us with a convenient heuristic tool, a case came out recently demonstrating that the reptile theory is, indeed, “a thing,” that it can work, that it is improper, and that plaintiff lawyers can nevertheless get away with it. That case is Fitzpatrick v. Wendy’s Old Fashioned Hamburgers, ___ N.E.3d ___, 2019 WL 5792847 (Mass Ct. App. Nov. 7, 2019). The plaintiff bit into a fast-food hamburger and broke a molar on small bit of bone that snuck its way past the manufacturing process. That manufacturing process seems to have been as good as it can be – it sorted through the meat as carefully as possible whilst still being capable of producing hamburger meat. The manufacturers were stuck with the truest yet weakest defense: sometimes bad things happen through nobody’s fault. The case proceeded on a warranty claim. The theory of that claim is that the consumer did not reasonably expect to find an injury-causing substance in the food.

The plaintiff counsel’s closing argument exploited the reptile theory for all that it was worth. Here are the points it hit, and hit hard:

• Imagine the plaintiff’s surprise when she bit into the hamburger thinking it was safe, only to discover bone in it. “See what (the plaintiff) did not know, and what [defendants] did know, is that bone can get into the final burger. They have insider knowledge…. I asked Wendy’s do you tell your customers? No. How are people supposed to know if they’re not told? They don’t have the insider knowledge.”
• “[W]e all use thousands of things and we all eat thousands of foods, and companies manufacture thousands of products. Things that only hurt people once in a while. Maybe something hasn’t hurt somebody yet. But when a product hurts somebody, the company always says, oh, that never happened before. The safety rules says that the company must make safe food. And the law says that if they did not make safe food and you reasonably expect it, we reasonably expect it to be safe, they’re responsible. Because if you add up all the people that are hurt by things that hardly ever hurt anyone, that adds up to a lot of dangerous things. And sooner or later a danger is going to claim a victim. That’s why the law does not care how many times it happened before. The law asked was the bone there and should we have reasonably expected it to be there. That’s the law. Not how many times it happened.”
• “Sixty million burgers, I don’t know if that’s true or not. But there’s no – – I don’t know if there’s any evidence of that before you. [Defendants’ counsel] said it. That’s fine. But you know what, when [defendants] sell all those burgers, they are more than happy to take our money. We pay for the burger. It goes to them. But when a burger hurts somebody, no responsibility. No accountability. Shame on them, honestly – shame on them.”
• “Are these important rules in our community? Are we going to enforce them? Are you going to enforce them? If the rules that we talked about here, the safety rules, if those are important you need to speak to that. You[r] verdict will speak volume echoing outside this Courthouse. If the rules are not important. If it’s okay for them to serve burgers with bone and someone gets hurt once in a while, and if they get injured, too bad for them. Then you know what? Give these guys a pass. Give them a pass. I don’t think you can. I don’t think you can give them a pass. I don’t think you can say it’s okay to have a burger with bone in it or had gristle and sell burgers. If you say that their conduct is okay then you’re essentially rewarding their conduct by giving them a pass.”
• “And I think I speak for everyone here, what we want from your verdict is that when you leave this courthouse later today with you head held high, proud of what you did, you gave up time from work and from family, and I want you to know that it mattered. It was important. And you should be comfortable with – with what happened here. And this may be the kind of case that triggers something for you a month from now or a year from now. You might be eating a burger. Maybe you’ll read an article that someone else got hurt by a food product. Or you’ll be telling your wife of your husband about the case. That somebody ate a burger and they did not expect to get hurt. And that safety rules were violated and that you helped to make a wrong right. You made it right and you held them responsible and accountable.”

Defense counsel did not lodge objections to any specific components of plaintiff counsel’s closing, nor did he move to strike any of the statements made.

The jury returned a verdict in favor of the plaintiff in the amount of $150,005.64. The defense moved for a mistrial on the basis of the improper closing argument. The trial court granted the motion, the case was retried, and the second jury returned a verdict in favor of the plaintiff in the amount of $10,000. On appeal, the plaintiff argued that the mistrial was improper. The issue boiled down to the propriety of the plaintiff’s closing argument.

Now we get the classic good news/bad news situation. The good news is that the Fitzgerald court held that the plaintiff’s closing argument was improper: “Certain types of argument are improper. To appeal to the juror’s emotions, passions, prejudices, or sympathies; to ask the jurors to put themselves in the position of any person involved in the case.” More specifically, the plaintiff counsel’s repeated references to “we” and “us” “impermissibly integrated the jurors with the plaintiff (and counsel) within a community of the “average customers.” There is nothing wrong with asking jurors to employ “their common sense and life experience to determine the reasonable expectations of a consumer. He could also permissibly argue that the plaintiff was an average consumer. But what he could not do was to draw the jurors into the position of the plaintiff.” It gets better: “Nor was counsel permitted to invoke future possibilities of harm, or that the jury through their verdict could protect the community from such dangers, or that a defendants’ verdict would give the defendants a ‘pass’ or ‘reward’ them.”

Finally (but not really, as we will see in a moment), the court saw “no justification for the final portion of the plaintiff’s counsel’s argument, which attempted to draw the jury into imagining a hypothetical future moment when they might think about their jury service and remember that “safety rules were violated and that you helped to make a wrong right. You made it right and you held them responsible and accountable.” Thus, the appellate court, just like the trial court, concluded “that portions of the plaintiff’s counsel’s closing were outside the bounds of permissible argument.”

But then there’s the bad news, at least for the defendants. The appellate court held that the trial court decided the mistrial motion by focusing exclusively on the propriety of the closing argument, when it should have surveyed the “whole case.” The appellate court emphasized that much of the evidence in the case was uncontested, including the cause and extent of injury. The reasonableness of the defendants’ actions was not at issue, because it was a warranty, not a negligence, case. Plus, the trial judge had issued curative instructions and the jury took a long time to deliberate. The appellate court believed that the $150K was not out of bounds considering the injury at issue. The appellate court ended up remanding the case to the trial judge to reconsider its ruling under “the correct standard” of measuring the bad closing argument against the whole case.

To our mind, the appellate court overthought things. It chewed more than it bit off (that’s an old joke about the writer Henry James, but we couldn’t resist). The plaintiff’s closing argument pushed every reptile button possible, and rung the bell 15 times louder than it did when the reptile was kept out of the courtroom. We hope the trial court considers that simple fact when it mulls over the “whole case.”

Fitzgerald is not drug/device litigation, but this case is significant as the first appellate case we know of that has specifically addressed and declared certain “reptile” trial tactics improper. With the increasing prevalence of such tactics, that is an important holding, even if in this particular case the trial court’s new trial order was vacated because of squirrelly procedural issues. Those procedural issues can be fixed in other cases, and maybe even in this one. But at least we can now point to clear authority that reptile arguments should be extinct in the courtroom.