Avoiding the Snake Pit—Caging “Reptile” Tactics in Court

Recently, a Massachusetts appellate court, in Fitzpatrick v. Wendy’s Old Fashioned Hamburgers, 2019 WL 5792847 (Mass. App. Ct. Nov. 7, 2019), became the first appellate court specifically to address certain “reptile litigation” tactics in product liability litigation and to determine that they were improper. The court held several reptilian techniques beyond the pale of acceptable argument:

• Appeals “to the jurors’ emotions, passions, prejudices, or sympathies,” Fitzpatrick, 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.
• Making 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.

Finding that the court’s order overturning the verdict applied the wrong standard, however, Fitzpatrick remanded for reconsideration of the grant of a new trial. Id. at *11.

Other Tort Contexts

Prior appellate review of reptile tactics has occurred in other types of tort litigation. In a medical malpractice case, Castleberry v. DeBrot, 424 P.3d 495, 508 (Kan. 2018), the Kansas Supreme Court held “reptile litigation strategy” improper—but harmless.

The “safe medicine or unsafe medicine” argument [here] . . . invited the jury to determine whether [the 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.

Also in Kansas, the 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. Ct. App. 2018) (table), which 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 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. . . . [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 Reg’l Med. Ctr., 2018 WL 1611438, at *18 (Mich. Ct. App. Apr. 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; finding defense counsel’s argument explaining the “plaintiff’s lawyer’s trick called the reptile theory” was proper); Johnson v. Nat’l Sea Prods., Ltd., 35 F.3d 626, 632 (1st Cir. 1994) (legal standard of care was what “is reasonable under the circumstances,” not “in the safest possible way”) (pre-reptile) (applying Massachusetts law).

Most trial court 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 summarized the basic thrust of the reptile theory “as a way of showing the jury that the defendant’s conduct represents a danger to the survival of the jurors and their families,” and thus “encourag[ing] plaintiffs to appeal to the passion, prejudice, and sentiment of the jury.” Id. at *8. Trial tactics “based upon fear” were improper and justified in limine relief:

[A]ny 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), the defendant succeeded in excluding “any reference to ‘safety rules’” and “other reference to generic safety guidelines.” Id. at *2.

[N]on-specific “safety rules” or the so-called “Reptile Theory” . . . 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. . . . 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.

The 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 Transp. 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. Mo. Baptist Hosp., 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. Mar. 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 they are 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 noted . . ., 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 equation to golden rule arguments has repeatedly succeeded against reptilian advocates, even when motions are otherwise denied. See Walden v. Md. Cas. Co., 2018 WL 6445549, at *3 (D. Mont. Dec. 10, 2018); Grisham v. Longo, 2018 WL 4404069, at *1 (N.D. Miss. Sept. 14, 2018); Aidini v. Costco Wholesale Corp., 2017 WL 10775082, at *1 (D. Nev. Apr. 12, 2017); Turner v. Salem, 2016 WL 4083225, at *3 (W.D.N.C. July 29, 2016); Colman v. Home Depot U.S.A., Inc., 2016 WL 4543119, at *1 (S.D. Fla. Feb. 9, 2016); Pracht v. Saga Freight Logistics, LLC, 2015 WL 6622877, at *1 (W.D.N.C. Oct. 30, 2015).

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

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 58 (Balloon Press 2009)).

Defense Efforts to Cage the Reptile

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 Sys., 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. Mar. 8, 2019); Walden, 2018 WL 6445549, at *3; Dorman v. Anne Arundel Med. Ctr., 2018 WL 2431859, at *6–7 (D. Md. May 30, 2018), aff’d, 781 F. App’x 136 (4th Cir. 2019); Botey v. Green, 2017 WL 2485231, at *2 (M.D. Pa. June 8, 2017); Cameron v. Werner Enters., Inc., 2016 WL 3030181, at *5 (S.D. Miss. May 25, 2016); Hensley v. Methodist Healthcare Hosps., 2015 WL 5076982, at *5 (W.D. Tenn. Aug. 27, 2015); Bunch v. Pac. Cycle, Inc., 2015 WL 11622952, at *2 (N.D. Ga. Apr. 27, 2015).

So one useful thing defendants can do in this area is not to lead with their chins. Pretrial 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). Defense counsel should endeavor, first, to do no harm. It’s a good idea to stop making bad precedent.

Occasionally, however, 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 “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. Mar. 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 (C.D. Cal. Aug. 9, 2017) (Mag.) (“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. Ct. July 30, 2018) (“[I]t 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 Hosp. Colo., 2015 WL 1583852, at *2 (Colo. Dist. Ct. Mar. 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”).

Thus, it is readily apparent, first, that a specific defense motion against reptile tactics stands a better shot at winning. Most courts have shown no inclination to grant categorical motions, the impact of which would preemptively prohibit such tactics. Rather, to make the most progress, defense motions ordinarily need to zero in on specific plaintiff tactics, such as the ones identified above in Fitzpatrick.

Every reptile lawyer will of course approach things a little differently—and specific reptile tactics will vary—so that not all of the above will be present in every future case, and other tactics will need to be challenged. When a particular lawyer is expected to resort to reptile tactics, obtaining transcripts of that lawyer’s prior trials 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. Ct. 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 Enters. 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.