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We made a statement in our recent Age of Reptiles post concerning the decision, Fitzpatrick v. Wendy’s Old Fashioned Hamburgers, ___ N.E.3d ___, 2019 WL 5792847 (Mass. App. Nov. 7, 2019), that we had to check.  We described Fitzpatrick as “the first appellate case we know of that has specifically addressed and declared certain ‘reptile’ trial tactics improper.”  We certainly thought so, but to make sure we searched Westlaw since 2009 (when the first “reptile theory” book was published) for a combination of “reptile theory,” “reptile strategy,” and “reptile tactics.”  It turned out that we were, indeed, right so we went with that description.

That research also turned up about 50 cases.

Why not take a look at those more generally?

So we did.

Kansas seems to be a reptilian hotbed.  In the only instance that reptile litigation issues have produced a high-court decision, the Kansas Supreme Court held “reptile litigation strategy” (a phrase we hadn’t searched previously) improper – but harmless – in Castleberry v. DeBrot, 424 P.3d 495, 508 (Kan. 2018).

The “safe medicine or unsafe medicine” argument [here] . . . invited the jury to determine whether [defendant’s] conduct met the standard of care based on whether it desired “safe medicine or unsafe medicine,” instead of the evidence and the law . . . .  As phrased, the comment implied the jury’s decision could reach beyond the confines of the case and impact medical care elsewhere. As presented in this case, the comments were error.

Id.  Shortly after Castlebury, grant of an “anti-reptile theory order in limine” was affirmed in Perez v. Ramos, 429 P.3d 254, 2018 WL 5305614, at *9 (Kan. App. 2018) (table).  While affirmance was largely based on plaintiff’s failure to preserve an initial objection, Perez added some useful “context” about the reptile theory’s improper intentions and trial tactics:

[T]he reptile theory . . . begins with the premise that neither reason (application of the law) nor sympathy (pity for the plaintiff) will motivate jurors to award a larger verdict.  The only way to return such a favorable verdict is to appeal to jurors’ survival instincts (coined as their “reptilian brains”).  The goal is to persuade jurors that their own safety is at risk and that a larger plaintiff’s verdict will make them safer by making their community safer.  When employing the reptile theory . . ., a plaintiff’s lawyer tries to establish several generic “safety rules” − such as rules of the road − which may or may not have anything to do with the specific facts of the case.  Reliance on these safety rules then activates the survival instinct of the jurors and prompts the jury to return a higher verdict.

Id. (citation omitted).  See also Bryson v. Genesys Regional Medical Center, 2018 WL 1611438, at *18 (Mich. App. April 3, 2018) (while “argument by plaintiff that the [defendant’s] residents did not act in the ‘safest’ manner possible was improper” use of “reptile theory,” the error was harmless).  Cf. Ramirez v. Welch, 2018 WL 3725254, at *16 (Tex. App. Aug. 6, 2018) (affirming defense verdict; defense counsel’s argument explaining the “plaintiff’s lawyer’s trick called the reptile theory” was proper); Johnson v. National Sea Products, Ltd., 35 F.3d 626, 632 (1st Cir. 1994) (proper standard of care was what “is reasonable under the circumstances,” not “in the safest possible way”) (pre-reptile) (applying Massachusetts law).

Most of the relevant decisions involve motions in limine seeking to preclude “reptile”-style antics in the courtroom.  An outstanding example is Brooks v. Caterpillar Global Mining America, LLC, 2017 WL 3401476 (W.D. Ky. Aug. 8, 2017).  Brooks accurately described the basic thrust of the reptile theory:

The “Reptile Theory” appears to be in use by the plaintiffs’ bar . . . as a way of showing the jury that the defendant’s conduct represents a danger to the survival of the jurors and their families. The Reptile Theory encourages plaintiffs to appeal to the passion, prejudice, and sentiment of the jury.  Utilization of the “Reptile Theory” encourages jurors to decide a lawsuit based upon fear, generated by plaintiff’s counsel, that a verdict in favor of the defendant will harm the safety of the community, and, thus, the juror.

Id. at *8 (citations and quotation marks omitted).  With that introduction, Brooks granted in limine relief against reptile tactics:

Reptile Theory arguments appear to mirror the “send the message” or conscience of the community arguments discussed previously. . . .  Similarly, any argument by Plaintiffs’ counsel that attempts to urge the jury to render a verdict against Defendant on the basis of fear for the safety of the community or fear for the safety of the jury and their families is inappropriate.  Accordingly, Plaintiffs may not properly argue that the lawsuit was brought to ensure or promote community safety.

Id. at *9 (citation omitted).

In Woulard v. Greenwood Motor Lines, Inc., 2019 WL 3318467 (S.D. Miss. Feb. 4, 2019), rather than attacking “reptile” tactics globally, the defendant sought “to exclude any reference to ‘safety rules,’” and “other reference to generic safety guidelines.”  Id. at *2.  That was sufficiently specific that the plaintiff caved.  Thus:

To the extent Defendants seek to exclude non-specific “safety rules” or the so-called “Reptile Theory,” this request will be granted as unopposed.  These items are not relevant to any issue in the present case, see Fed. R. Evid. 401, 402, and even if marginally relevant, the probative value of such evidence or argument would be substantially outweighed by the dangers of unfair prejudice, confusing the issues, misleading the jury, and wasting time, see Fed. R. Evid. 403.  Evidence and argument related to non-specific “safety rules” or employing the “Reptile Theory” will be excluded at trial, including during voir dire.

Id. at *3.  Further, “any third-party safety guidelines will be excluded at trial, unless and until Plaintiff first demonstrates outside the presence of the jury how any such guidelines are relevant.”  Id.  Plaintiff was “reminded that it is the exclusive province of the Court, and not counsel, to instruct the jury on what law controls the outcome of this case.”  Id.  See Compton v. Bach, 374 F. Supp.3d 1296, 1304 (N.D. Ga. 2019) (“reptile strategy” precluded “to the extent Plaintiffs intend to argue damages should be set to punish Defendant or to send a message”); Locke v. Swift Transportation Co., LLC, 2019 WL 6037666, at *1-2 (W.D. Ky. Nov. 14, 2019) (precluding attempts “to supplant the required standard of care with appeals to the jury’s emotion,” barring “questions, evidence, or arguments that the jury should send a message, protect the public, or punish,” and prohibiting “Golden Rule argument”); J.B. v. Missouri Baptist Hospital, 2018 WL 746302, at *3 (E.D. Mo. Feb. 7, 2018) (granting in limine motion in “medical malpractice case, which does not consider safety rules and community standards as a factor”).

In Roman v. MSL Capital, LLC, 2019 WL 1449499 (C.D. Cal. March 29, 2019), an in limine motion to preclude reptilian arguments succeeded because the court equated them with prohibited “golden rule” arguments:

While Plaintiffs do not clearly define the “Reptile Theory” strategy, [defendants’] motion suggests . . . arguments are those which ask the jury to place themselves in the shoes of a “reasonable person.”

Given the probability that “golden rule” arguments . . . would cause a jury to depart from impartiality, the Court finds that they are improper [under] Fed. R. Evid. 403. . . .  As the Ninth Circuit . . ., courts have generally found arguments such as these improper, because “a jury which has put itself in the shoes of one of the parties is no longer an impartial jury.”

Id. at *5 (discussing Minato v. Scenic Airlines, Inc., 908 F. 2d 977 (9th Cir. 1990)).  The golden rule argument has repeatedly succeeded against reptilian advocates, even when motions are otherwise denied.  See Walden v. Maryland Casualty Co., 2018 WL 6445549, at *3 (D. Mont. Dec. 10, 2018) (partially granting motion as to the use of golden rule arguments that . . . request the jury to consider how much they would wish to receive in a similar situation”); Grisham v. Longo, 2018 WL 4404069, at *1 (N.D. Miss. Sept. 14, 2018) (“The court will not allow evidence in the form of testimony or otherwise or any questions intended to elicit such evidence regarding “golden rule” arguments, appeals to the jury as the “conscience of the community,” or any other “reptile theory” arguments.”); Aidini v. Costco Wholesale Corp., 2017 WL 10775082, at *1 (D. Nev. April 12, 2017) (“counsel is prohibited from making statements that would place the jury in [plaintiff’s] skin, or would otherwise violate the Golden Rule or any other applicable restriction on counsel’s arguments”); Turner v. Salem, 2016 WL 4083225, at *3 (W.D.N.C. July 29, 2016) (“The Court will not allow Golden Rule arguments.  The Court also discourages Reptile Theory arguments,” but only upon objection at trial); Colman v. Home Depot U.S.A., Inc., 2016 WL 4543119, at *1 (S.D. Fla. Feb. 9, 2016) (precluding “reptile strategy” amounting to “golden rule” arguments); Pracht v. Saga Freight Logistics, LLC, 2015 WL 6622877, at *1 (W.D.N.C. Oct. 30, 2015) (granting “motion to prohibit any Golden Rule argument and/or Reptile Theory questions and argument”).

A stellar trial court opinion from Colorado also caged the reptile.  In Haste v. SCL Health Front Range, Inc., 2017 WL 4857748 (Colo. Dist. April 19, 2017), the court held that reptilian tactics emphasizing “safety rules” and the like were “improper” “Golden Rule” arguments dressed up in scaly disguise:

Strategies like this are in violation of well-settled, Colorado law, and are a transparent attempt to introduce prohibited “Golden Rule” evidence. . . .  By painting Defendant as in violation of certain “safety rules,” or as a public threat that the jurors are uniquely positioned to prevent, Plaintiff’s use of the Reptile trial strategy would impermissibly ask the jurors to place themselves in Plaintiff’s shoes, to depart from neutrality and decide the case on the basis of personal interest, emotion, and bias rather than on the evidence, and to deter the alleged threat Defendant poses to the community before it can harm them, their loved ones, or the community at large.  Such argument or implication is legally inappropriate and unduly prejudicial pursuant to C.R.E. 403.

Moreover, it shifts the focus from the evidence in the case . . ., and impermissibly broadens the case by replacing specific evidence of conduct with considerations of potential future threats to the community.  The true charge of the jury is to resolve the specific claim between the litigants before it, not to attempt to enhance society-wide safety with each verdict.  Therefore, the Court should enter an Order precluding Plaintiff from using the Reptilian trial strategy, or others like it, at trial.

Id. at *3 (citations, footnotes, and quotation marks omitted).  In limine relief was particularly important, Haste held, because of the reptilian response to trial objections.  “[A]s REPTILE emphasizes, if defense counsel is forced to object when Plaintiff’s counsel inappropriately uses these tactics at trial, the ‘defense objection will imply there’s something to hide.’”  Id. (quoting Ball & Keenan, Reptile:  The 2009 Manual of the Plaintiff’s Revolution, at 58 (Balloon Press 2009)).  See Hopper v. Obergfell, 2013 Colo. Dist. Lexis 249, at *1 (Colo. Dist. Oct. 29, 2013) (precluding reptile tactics).

Numerous other trial court orders come to similar results, but often without much reasoning:

ArizonaBoyd v. Allied Van Lines Inc., 2019 WL 4575652, at *3 (Ariz. Super. June 21, 2019) (“Plaintiffs or their counsel are precluded from making arguments, giving testimony, asking lines of questions, or making comments referencing the golden rule, general community safety or other reptilian tactics”); Dumbrell v. Hanson, 2018 WL 6511113, at *1 (Ariz. Super. Oct. 8, 2018) (precluding reptile tactics).

CaliforniaDesautels v. Kaiser Foundation Health Plan, Inc., 2019 WL 5680670, at *2 (Cal. Super. Oct. 21, 2019) (“Granted as it pertains to a pure reptile theory concept of asking the jury to consider issues such as risks to the community, or to put themselves into the shoes of the Plaintiff.”); Pawlowski v. GE Realprop, L.P., 2019 WL 5693511, at *1 (Cal. Super. Sept. 21, 2019) (precluding reptile tactics); Luo v. Rodriguez, 2019 WL 3246680, at *1 (Cal. Super. June 11, 2019) (precluding “any and all evidence and argument based on the ‘Reptile Theory’ including but not limited to evidence and argument that the defendants’ acts and/or omissions were ‘not the safest’”); Bowman v. Bukata, 2019 WL 4854907, at *1 (Cal. Super. June 10, 2019) (precluding reptile tactics); Garcia v. Gray, 2019 WL 3246684, at *1 (Cal. Super. June 4, 2019) (same); Reyes v. Pick Up Stix, 2019 WL 4737911, at *1 (Cal. Super. May 28, 2019) (same); Arreguin-Topete v. Lonigro, 2019 WL 5860543, at *1 (Cal. Super. May 13, 2019) (same); Bonilla v. Chen, 2019 WL 3400874, at *2 (Cal. Super. April 25, 2019) (“Plaintiff is not to assert community safety, reptilian theory, or violate the ‘Golden Rule’”); Shahan v. Carter, 2019 WL 3239157, at *2 (Cal. Super. Feb. 26, 2019) (“Plaintiff is not to assert community safety, reptilian theory, or violate the ‘Golden Rule’”); Rubio v. Arias, 2019 WL 2137611, at *2 (Cal. Super. Feb. 20, 2019) (precluding reptile tactics); Darabi v. Levy, 2018 WL 7082332, at *1 (Cal. Super. Dec. 4, 2018) (“Plaintiff is not to assert community safety, reptilian theory, or violate the ‘Golden Rule’”); Zamani v. City of Redondo Beach, 2018 WL 6738132, at *1 (Cal. Super. Oct. 22, 2018) (precluding reptile tactics); Contreras v. HD Supply Inc., 2018 WL 6984894, at *1 (Cal. Super. Oct. 9, 2018) (same); Piemonte v. Sterling, 2018 WL 9491161, at *1 (Cal. Super. Sept. 26, 2018) (same); Zymblosky v. Moy, 2018 WL 3760678, at *1 (Cal. Super. June 4, 2018) (same); Doe v. Rose Bowl Aquatics Center, 2018 WL 3552312, at *1 (Cal. Super. May 31, 2018) (same); Johnson v. Hyundai Motor America, 2018 WL 3304503, at *6 (Cal. Super. May 2, 2018) (same); Bracamonte v. GHT, LLC, 2018 WL 4001541, at *1 (Cal. Super. April 23, 2018) (same); Estrada v. Francia Trucking, 2018 WL 4182561, at *1 (Cal. Super. April 18, 2018) (same); Romero v. Fullerton Surgical Center, 2018 WL 2119573, at *2 (Cal. Super. March 5, 2018) (same); Lee v. Tan, 2018 WL 1401023, at *1 (Cal. Super. Jan. 10, 2018) (same); Sanchez v. Sully-Miller Contracting Co., 2018 WL 1510301, at *1 (Cal. Super. Jan. 2, 2018) (same); Naieharvey v. Talai, 2017 WL 8235941, at *1 (Cal. Super. July 31, 2017) (same); McPherson v. EF Intercultural Foundation Inc., 2017 WL 9285360, at *1 (Cal. Super. June 5, 2017) (same); El-Tobgy v. Delamarter, 2017 WL 3611242, at *2 (Cal. Super. May 16, 2017) (same); Evans v. Kana Pipeline, Inc., 2017 WL 3868684, at *2 (Cal. Super. Feb. 27, 2017) (same); Emmons v. Jesa Investments, LLC, 2017 WL 1968140, at *1 (Cal. Super. Feb. 27, 2017) (same); Harris v. Oliva, 2016 WL 11479747, at *4 (Cal. Super. Oct. 14, 2016) (same); Salinas v. Target Corp., 2016 WL 9415557, at *1 (Cal. Super. June 6, 2016) (same); Riner v. Hayes, 2016 WL 3345501, at *1 (Cal. Super. Feb. 22, 2016) (same).

FloridaFerreiro v. Weeks, 2016 WL 5871180, at *1 (Fla. Cir. Jan. 28, 2016) (“Questions, statements, or comments regarding personal or community safety and protection are prohibited.”); Sifuentes v. Savannah at Riverside Condominiums Assoc., 2015 WL 12803937, at *1 (Fla. Cir. May 20, 2015) (prohibiting reptile tactics during voir dire).

IllinoisOkic v. Fullerton Surgery Center, Ltd., 2017 WL 10486967, at *2 (Ill. Cir. Dec. 18, 2017) (same).

IndianaJohnson v. Chahal Express, 2017 WL 9619159, at *1 (Ind. Super. Nov. 21, 2017) (precluding reptile tactics).

IowaJames v. Junk, 2019 WL 5396101, at *9 (Iowa Dist. Sept. 6, 2019) (precluding “suggest[ing] to jurors that Defendant’s alleged conduct endangers the safety of the community as a whole”); Valles v. Mueting, 2018 WL 6515402, at *6 (Iowa Dist. Oct. 25, 2018) (“‘Reptile’ tactics, emphasizing that the jury has the power to protect their own safety, the safety of their loved ones, and their communities through the discussion of improper standards/rules not otherwise applicable, fear-based techniques, or through violation of the ‘Golden Rule’ will not be permitted”); Valles v. Mueting, 2018 WL 6515397, at *6 (Iowa Dist. Oct. 26, 2018) (same).

MichiganGirard v. Perez-Cruet, 2017 WL 10646880, at *1 (Mich. Cir. Dec. 15, 2017) (“nor is Plaintiff permitted to elicit ‘reptile’ testimony or argument”).

MinnesotaNiemela v. Tri-County Hospital, Inc., 2018 WL 9943485, at *2 (Minn. Dist. Dec. 19, 2018) (precluding reptile tactics); Cafferty v. Mille Lacs Health System, 2018 WL 8809268, at *3 (Minn. Dist. Sept. 18, 2018) (“Attempting to reduce the standard of care to an overly simplistic choice between safe and unsafe unduly depreciates standard of care and the state of the law concerning it.”).

Missouri:   Piatt v. Rosbrugh, 2019 WL 5491485, at *2 (Mo. Cir. Aug. 6, 2019) (precluding reptile tactics).

NevadaDrye v. Mateo, 2018 WL 2398375, at *2 (Nev. Dist. April 23, 2018) (precluding reptile tactics).

OklahomaCavitt v. Bayer Corp., 2016 WL 8648840, at *1 (Okla. Dist. Nov. 22, 2016) (precluding “use of reptile tactics, references to ‘golden rules,’ and patient safety rules”).

PennsylvaniaDavitch v. CHHS Hospital Co., LLC, 2017 WL 2362442, at *1 (Pa. C.P. Jan. 12, 2017) (“Plaintiffs are precluded from presenting argument or testimony regarding purported ‘safety rules’”).

VirginiaPalmer v. Virginia Orthopaedic, P.C., 2015 WL 5311575, at *1 (Va. Cir. June 19, 2015) (same).

WashingtonKurtz v. State, 2019 WL 5196507, at *3 (Wash. Super. Aug. 5, 2019) (“No ‘Reptile’ tactics . . . such as ‘patient safety,’ ‘community protection,’ ‘community values,’ etc.”); Fortman v. Proliance Surgeons, Inc., 2019 WL 2718611, at *2 (Wash. Super. March 4, 2019) (precluding reptile tactics); Evans v. Seattle Children’s Hospital, 2018 WL 8015628, at *1 (Wash. Super. Dec. 21, 2018) (same); Ricks v. State, 2018 WL 6252276, at *2 (Wash. Super. Oct. 17, 2018) (“No ‘Reptile’ tactics . . . such as ‘patient safety,’ ‘community protection,’ ‘community values,’ etc.”); Jacquemart v. Wong, 2018 WL 4559989, at *1 (Wash. Super. July 18, 2018) (“references to ‘dangerous,’ ‘unsafe,’ or ‘safety violations’ are excluded”); Thueson v. State, 2018 WL 3090055, at *1 (Wash. Super. April 16, 2018) (“No ‘Reptile’ tactics . . . such as ‘patient safety,’ ‘community protection,’ ‘community values,’ etc.”); Moitra v. Swedish Health Services, 2018 WL 3097268, at *1 (Wash. Super. Feb. 28, 2018) (precluding reptile tactics); Albright v. Antles, 2016 WL 7174563, at *1 (Wash. Super. Oct. 5, 2016) (“Use of the term ‘safety rules’ or argument that the jurors place themselves in Plaintiff’s shoes is EXCLUDED”); Glover v. State, 2015 WL 7355966, at *3 (Wash. Super. Sept. 9, 2015) (precluding reptile tactics); Nitcher v. Valley Radiologists, Inc., 2014 WL 1364707, at *5 (Wash. Super. Feb. 19, 2014) (same).

WisconsinDart v. Meriter Hospital, Inc., 2019 WL 6108021, at *3 (Wis. Cir. April 15, 2019) (“Plaintiffs may not refer to ‘patient safety,’ ‘safety rules,’ ‘safer alternatives’ or other so-called ‘reptile tactics’”).

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However, defendants have frequently struggled to address particular reptilian tactics.  All too often in limine motions have been denied as “premature,” “vague,” “hypothetical,” or “overly broad,” sometimes following plaintiffs’ pious abjuration of any intent to make “Golden Rule,” or “conscience of the community” arguments.  E.g., Manion v. Ameri-Can Freight Systems, Inc., 2019 WL 3718951, at *6-7 (D. Ariz. Aug. 7, 2019); DeRuyver v. Omni La Costa Resort & Spa, LLC, 2019 WL 1097490, at *4 (S.D. Cal. March 8, 2019); Walden, 2018 WL 6445549, at *3; Dorman v. Anne Arundel Medical Center, 2018 WL 2431859, at *6-7 (D. Md. May 30, 2018), aff’d, 781 F. Appx. 136 (4th Cir. 2019); Botey v. Green, 2017 WL 2485231, at *2 (M.D. Pa. June 8, 2017); Cameron v. Werner Enterprises, Inc., 2016 WL 3030181, at *5 (S.D. Miss. May 25, 2016); Hensley v. Methodist Healthcare Hospitals, 2015 WL 5076982, at *5 (W.D. Tenn. Aug. 27, 2015); Bunch v. Pacific Cycle, Inc., 2015 WL 11622952, at *2 (N.D. Ga. April 27, 2015).  So one useful thing defendants can do in this area is not to lead with their chins.  Pre-trial motions that “give the Court nothing objective to consider in deciding what language, phrases or evidence the Court should deem improper’” are not likely to succeed, and only encourage the theory’s scaly advocates.  Baxter v. Anderson, 277 F. Supp.3d 860, 863 (M.D. La. 2017).  Our side should endeavor, first, to do no harm.  It’s a good idea to stop making bad precedent.

Nonetheless, sometimes useful, cautionary judicial remarks occur even when anti-reptile in limine motions are denied.  In Dorman the defendant’s motion was denied without prejudice, but the court did admonish counsel that they may not:

misrepresent the standard of care.  The Court will instruct the jury on the law regarding the standard of care in medical malpractice actions and expects that neither party will misrepresent the law that should be applied by broadening the scope of liability beyond the court’s legal instructions regarding the standard of care.

Id. at *7 (referring to questions like is it a doctor’s “job to keep the patients safe?” or “job to not needlessly endanger patients?”).  See R.D. v. Shohola, Inc., 2019 WL 6134726, at *4 (M.D. Pa. Nov. 19, 2019) (“cases which temper and limit the admissibility of such evidence do so in a very fact-specific manner, taking into account the nature of the specific safety rule, the facts of the case, and the relevance of the particular rule”); Maley v. Corizon Health, Inc., 2019 WL 1370860, at *7 (S.D. Ga. March 26, 2019) (“While Defendants’ argument is again non-specific, the Court generally agrees [that] . . . any potential harm caused by Defendant [] to the greater society is not relevant to the issues in this case.”); Hammonds v. Yeager, 2017 WL 10560471, at *1 (Mag. C.D. Cal. Aug. 9, 2017) (“where punitive damages are not at issue, urging the jury to ‘send a message’ by its verdict is generally considered an improper appeal to the jurors’ passion and prejudice”); Bunch, 2015 WL 11622952, at *3 (granting motion “to the extent that it seeks to preclude send a message arguments and punishment arguments”; “What Plaintiffs may not do, however, is argue that they brought this lawsuit to preserve community safety.”); Gillins v. Gardner, 2018 WL 4001532, at *2 (Utah Dist. July 30, 2018) (“it is not the responsibility of individual jurors to protect themselves and their communities from risks of harm. It is not the responsibility of individual jurors to send a message to the medical community about patient or community safety. And it is not the responsibility of individual jurors to protect future patients from medical malpractice.”); Pressey v. Children’s Hospital Colorado, 2015 WL 1583852, at *2 (Colo. Dist. March 15, 2015) (“to the extent Plaintiff’s counsel argues that they are permitted as part of a Reptile Strategy to encourage the jurors to ignore the evidence in the case and make decisions based upon fear for their own safety, the Court disagrees”).

Occasionally, motions aimed at the reptile theory are brought well before trial – such as seeking to restrain discovery into “reptile” themes that would later be used at trial.  Such efforts have not succeeded so far.  In Beach v. Costco Wholesale Corp., 2019 WL 1495296 (W.D. Va. April 4, 2019), the defendant was entirely unsuccessful.  First, Beach found the motion premature.  “[t]he discovery phase of litigation is not the proper stage for rulings on disputes over what material may ultimately be presented to a jury.”  Id. at *4.  Second, the relief sought was too vague.  “[I]t is impossible to conceive of what an order granting [defendant’s] motion would proscribe.”  Id.  Rather, “[i]f [plaintiff] seeks material . . . beyond the permitted scope of discovery . . ., [defense] counsel can note their objection on the record or, if absolutely necessary, contact a judge for a ruling.”  Id.  See Miller v. PAM Transport, Inc., 2019 WL 4962954, at *5 (S.D. Ill. Oct. 8, 2019) (denying motion to strike references in the complaint that the defendant argued were reptile-related); Williamson v. J.B. Hunt Transport, Inc., 2019 WL 1995328, at *3 (E.D.N.C. May 6, 2019) (same); Cirrani v. Wal-Mart Stores, Inc., 2019 WL 859285, at *3 (D.S.C. Feb. 22, 2019) (same).  While we sympathize with defendants’ desire to oppose reptile tactics as vigorously as possible, we have yet to see any case in which a pleading- or discovery-based motion has produced anything but an adverse result.

So one thing is quite clear from our reptile research.  A specific defense motion stands a better shot at winning.  The majority of courts have shown no indication to grant what we call “K-T” motions, the impact of which would render reptile tactics categorically extinct.  Rather, to make the most progress, defense motions ordinarily need to zero in on specific plaintiff tactics, such as the ones identified in Fitzpatrick as improper, those being:

  • Appeals “to the juror’s emotions, passions, prejudices, or sympathies,” 2019 WL 5792847, at *12;
  • “[A]sk[ing] the jurors to put themselves in the position of any person involved in the case,” id.;
  • Use of “we” and “us” to “impermissibly integrate[] the jurors with the plaintiff,” id.;
  • “[D]raw[ing] the jurors into the position of the plaintiff, id.;
  • “[I]nvok[ing] future possibilities of harm, or that the jury through their verdict could protect the community from such dangers,” id.;
  • Arguing “that a defendants’ verdict would give the defendants a ‘pass’ or ‘reward’ them,” id.;
  • Arguing that the jury’s function is to “enforce” the “safety rules” of “our community,” id. at *12 n.15
  • Claims that “safety rules were violated,” id. at *13.
  • “[I]magining a hypothetical future moment when [jurors] might think about their jury service and remember” how they “‘helped to make a wrong right.’”  Id.

Every reptile lawyer will of course approach things a little differently, so specific reptile tactics will vary – meaning that not all of the above will be present in every future case, and other tactics will need to be challenged.

Indeed, Fitzpatrick reminds us of when we tried fen-phen cases in Philadelphia, years before “reptile” terminology ever existed.  In that litigation, we put together “template” in limine motions dealing with opening and closing arguments that were crafted to address the tactics of individual opposing counsel.  These were directed against such things as:  (1) references directed at individual jurors, (2) giving affectionate nicknames to plaintiffs, (3) “do the right thing” challenges; (4) imagined reminiscences (quite similar to Fitzpatrick); (5) David vs. Goliath “fights” with corporate defendants, (6) purported anecdotes from counsel’s personal history, including military service; (7) screeds against “bad drugs”; and (8) out-of-state experts.  If you expect reptile tactics from a particular lawyer, obtaining transcripts of that lawyer’s prior opening and closing arguments is a good way to craft winnable motions in limine with a laser focus on the specific reptilian techniques you are most likely actually to encounter.

Finally, when confronting reptile tactics at trial, defense counsel need to keep in mind the other lesson of Fitzpatrick.  Objections need to be preserved.  Failure to object only makes a difficult situation worse.  2019 WL 5792847, at *9 (“the judge was not aided by the defendants’ counsel’s failure to object to any specific statements in the closing, move to strike them, or propose curative instructions”).  See Regalado v. Callaghan, 207 Cal. Rptr.3d 712, 726 (Cal. App. 2016) (while “remarks from [plaintiff’s] counsel telling the jury that its verdict had an impact on the community and that it was acting to keep the community safe were improper,” they were waived by failure to object or seek curative instructions); Allison v. Smoot Enterprises Inc., 2019 WL 5095779, at *4 (D. Or. Oct. 11, 2019) (reptile theory issue waived by lack of timely objection).  One suggestion to avoid the jury drawing plaintiffs’ hoped-for inference from a defense objection is to file appropriate motions in limine in advance and then refer back to the motions − and, hopefully, rulings − in a shorthand objection at trial.

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Looking over this post, now that the research is complete, one thing that’s striking is how few of our prescription medical product clients’ names appear on the right side of the “v.”  There’s only one, and it’s pretty well buried.  We see a fair number of medical malpractice cases, plenty of one-off product liability cases involving “things that go clank,” and an overrepresentation of trucking cases – we guess the other side figures that nothing scares jurors more than 18-wheelers.  We have plenty to worry about in our prescription product sandbox, but it appears that rampant reptilism isn’t very high on the list.  Still, since the animating spirit of the DDLaw Blog is that “a defense win anywhere helps defendants everywhere,” we offer this analysis and collection of relevant cases to any defense counsel forced to confront the reptile.