Reliance on these familiar principles need not be limited to trial; educating the court before trial can lead to rulings precluding these tactics throughout the case. For example, in a recent Indiana wrongful death case, the defendants obtained a protective order prohibiting the plaintiff’s attorneys from asking reptilian questions during the company witness deposition (“i.e., questions about the existence of and purpose for alleged ‘safety rules’”). Estate of Richard McNamara v. Navar, No. 2:19-cv-109, 2020 U.S. Dist. LEXIS 70813, at *1–2, *5 (N.D. Ind. Apr. 22, 2020). The defendants argued that such questioning “create[s] confusion around the defendants’ applicable duty of care by attempting to replace it with safety rules” and that it lacks “any tangible connection to the scope of permissible discovery.” Id. at *2, *5. The court agreed, observing that the plaintiff offered only conclusory assertions that the line of questioning could yield discoverable information without indicating what discoverable information and evidence were actually sought.
Barring Golden Rule Arguments
Many reptilian arguments are, at bottom, improper golden rule arguments. They seek to have jurors put themselves, friends, and loved ones in the plaintiff’s shoes and offer a verdict from that personal, emotional perspective. Golden rule arguments are improper. See 33 Federal Procedure, L. Ed. § 77:268 (2019); see also Jacob A. Stein, Closing Arguments, Golden Rule, § 1:83 (2018–19 ed.); L.S. Tellier, Annotation, Prejudicial Effect of Counsel’s Argument, in Civil Case, Urging Jurors to Place Themselves in the Position of Litigant or to Allow Such Recovery as They Would Wish if in the Same Position, 70 A.L.R.2d 935 §§ 3[a] & 3[b] (1960 & Supp. 2019).
Jurors must decide cases based on the evidence and the law, not on sympathy for or prejudice against a party. Defendants therefore should seek to preclude plaintiffs from seeking to trigger emotional reactions by, for example, referring to large groups of people similarly situated to the plaintiff or arguing that an allegedly defective product is used frequently by others (perhaps to treat common illnesses, like those the jurors’ friends and loved ones may suffer from).
Prohibiting Character Evidence
Plaintiffs’ counsel often rely on “profits over safety” themes. In doing so, they intend to trigger the reptilian portion of a juror’s brain, creating the impression that the defendant sacrificed safety to make more money. The Federal Rules of Evidence, however, prohibit character evidence to prove liability in many civil cases. See Fed. R. Evid. 404. Indeed, character evidence is not admissible to prove specific conduct, except when evidence of a person’s character or trait of character is an element of a claim or defense. E.g., Am. Nat’l Watermattress Corp. v. Manville, 642 P.2d 1330, 1336 (Alaska 1982). Particularly in product liability cases, a corporate defendant’s character trait has no bearing on the claims and thus can only serve to confuse the jury and prejudice the defendant. See, e.g., In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant Prod. Liab. Litig., 888 F.3d 753, 784–86 (5th Cir. 2018); In re Testosterone Replacement Therapy Prods. Liab. Litig. Coordinated Pretrial Proceedings, MDL No. 2545, No. 14 C 1748, 2017 U.S. Dist. LEXIS 81614, at *2–3 (N.D. Ill. May 29, 2017) (citing Fed. R. Evid. 404(b) (excluding “evidence of [the defendant’s] alleged improper conduct with respect to . . . another of its drugs [as] inadmissible evidence of [the defendant’s] corporate character”). Similar cases can be used in pretrial motions to seek to prohibit the plaintiff’s “corporate greed” themes.
Avoiding Juror Confusion
Reptilian tactics also can confuse and mislead the jury regarding the applicable legal standards. Plaintiffs’ attorneys may, for example, seek to introduce evidence of internal safety rules or standards, as well as deposition testimony from corporate representatives, that describe a more rigorous internal standard than the law requires. Such a strategy improperly suggests that a defendant should be found liable because it violated its own protocols. As courts have found, “liability is not predicated on a company’s compliance with its own credos or rules; liability is instead predicated on the legal standards of the case.” In re Ethicon Inc. Pelvic Repair Sys. Prods. Liab. Litig., No. MDL No. 2327, 2016 U.S. Dist. LEXIS 115087, at *3 (S.D. W. Va. Aug. 25, 2016); accord In re Tylenol (Acetaminophen) Mktg., Sales Practices & Prod. Liab. Litig., No. 2436, 2016 U.S. Dist. LEXIS 26603, at *8 n.22 (E.D. Pa. Mar. 2, 2016) (“a defendants’ own credo should not be held out as the legal standard by which it should conduct its affairs”); Johnson v. Mountainside Hosp., 239 N.J. Super. 312, 323 (App. Div. 1990) (“It was potentially misleading because it attempted to exalt the exhortatory statement in the by-laws of the Hospital into the legal standard for determining whether or not the defendant physicians committed malpractice. The relevant legal standard is defined by law.”).
To prevent improper appeals to jurors’ emotions and fears, including those relating to departures from internal safety procedures, defense counsel can rely on applicable law giving trial judges discretion to exclude evidence that will confuse the jury. See, e.g., Fed. R. Evid. 403 (affording courts discretion to exclude relevant evidence if its probative value is substantially outweighed by the risk of juror confusion).
Such case law also is useful in preventing plaintiffs’ attorneys from soliciting evidence or commenting on nonparties allegedly injured by a defendant’s product. A plaintiff’s counsel has the burden of proving a claim based on the facts pertaining to the plaintiff, not others. A jury therefore should not be permitted to speculate about hypothetical injuries to others, particularly unknown, unnamed, nonparties. See Fed. R. Evid. 602 (requiring witness testimony to be based on personal knowledge).
This tactic also may raise constitutional due process concerns, particularly where punitive damages are sought. The evidence presented to a jury on punitive damages must have a nexus to the plaintiff and the plaintiff’s alleged injuries. In State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 416 & 423 (2003), the Supreme Court prohibited argument that a defendant should be punished based on harm to the community. As the Supreme Court explained in Philip Morris USA v. Williams, a jury’s desire to punish the defendant for potentially harming others in the community (nonparties to the suit) violates a defendant’s due process rights. 549 U.S. 346, 349, 353 (2007). The Court stated, “a defendant threatened with punishment for injuring a nonparty victim has no opportunity to defend against the charge.” Id. at 353–54. It also forces a jury to improperly speculate. Id. at 354 (“How many victims are there? How seriously are they injured? Under what circumstances did injury occur?”).
In sum, defense attorneys need to be mindful of reptilian theory and proactively seek to prevent the use of the strategy throughout the case. In-house counsel also have an opportunity to prevent reptilian arguments, particularly those that attempt to transform internal corporate policies and procedures, sales training materials, and other product-related materials into evidence of the applicable legal standards. They can work with business clients to track applicable industry standards and governing regulations, and where there is a desire to create more stringent requirements, the documents used to do so should make clear that the company is going beyond what is legally required. That way, if litigation ensues, defense counsel can show that the company values safety and people. This will offer jurors an opportunity to reject attempts to solicit purely emotional responses to “profit over people” themes.
David R. Kott and Natalie H. Mantell are partners in the Newark, New Jersey, office of McCarter & English LLP. Meghan McSkimming is an associate in McCarter’s products liability, mass torts, and consumer class actions practice group.