Since approximately 2009, the plaintiffs' bar has used a litigation strategy known as “Reptile Theory” to successfully win larger jury verdicts in New York and throughout the country. Those who support the strategy claim that Plaintiffs have obtained over $7.7 billion in jury awards and settlements since 2009 using this strategy. Keenan and Ball, “Reptile: The 2009 Manual of the Plaintiff's Revolution” (the Reptile Manual); www.reptilekeenanball.com. This article discusses ways in which defense counsel can anticipate use of the Reptile Theory to diminish its effectiveness.

Background and Use of 'Reptile Theory' Arguments

Counsel may use Reptile Theory arguments throughout litigation, from plaintiffs' initial discovery demands through closing argument. Baiocco and Bernstein, “Fly with the Eagles: Defeat the Reptile,” The Transportation Lawyer (February 2015). In so doing, counsels' goal is to take the emphasis off the individual plaintiff and highlight that the jurors and their community are threatened by the defendant-company's “dangerous” behavior. The theory is that doing so instills fear and activates the “reptilian” part of each juror's brain, which activates their survival instincts and “fight or flight” response. Counsels' goal is to empower jurors to “send a message” to the “big, bad company” through large damages awards in order to protect themselves and loved ones.

One primary Reptile strategy is to eschew the “reasonable person” negligence standard for an overly simplified “safety rule” that implies that companies must be “near perfect” and not create any risks. In the product liability context, examples of common “safety rules” are: (1) A manufacturer should never sell a product that needlessly endangers the end-user; (2) Manufacturers should make the safest product that accomplishes a goal; and (3) An end-user's safety should be a manufacturer's top priority.

If left unchecked by defense counsel and/or the court, Reptile counsel's use of a Safety Rule can severely prejudice a defendant because the jury may confuse plaintiff's Safety Rule for the appropriate standard of care and be more likely to find that the defendant breached its obligations. Safety Rules also encompass more than plaintiff's particular circumstances, and can lead to damages awards that are quasi-punitive in nature. The Reptile Manual expressly instructs Reptile counsel to “Show that violating the [safety] rule is related to violations that endanger everyone, not just someone in your client's situation … . [e.g.,] Premises negligence at a movie theater is the same kind of act that can endanger kids at an elementary school and patients in a hospital.” Keenan and Ball, “Reptile: The 2009 Manual of the Plaintiff's Revolution.”

Courts on Reptile-Type Arguments

Courts and legislatures in New York and most other states have not yet set any precedent relative to use of Reptile litigation strategies. However, some courts in other venues have already precluded Reptile arguments from being used at trial:

Federal District Court of Kentucky (2017): Granted defendant's motion in limine on the grounds that “send a message” or “conscience of the community” arguments are prejudicial and distract the jury from reaching a fair verdict. Brooks v. Caterpillar Global Mining Am., 2017 U.S. Dist. LEXIS 125095, *25 (W.D. Ky. Aug. 8, 2017).

The Court of Appeals of Kansas (2016): Upheld a trial court's decision to grant a defendant's motion in limine to prohibit Reptile arguments because they could mislead the jury with respect to the applicable duty of care. Biglow v. Eidenberg, 369 P.3d 341, 2016 WL 1545777 (Kan. Ct. App. April 15, 2016).

Massachusetts Superior Court (2016): Granted a new trial where plaintiff's counsel's extensive use of Reptile Tactics deprived defendants of a fair trial. Wahlstrom v. LAZ Parking Ltd., LLC, 2016 WL 3919503 (Mass. Super. May 19, 2016).

District Court of Colorado (2013): Barred plaintiffs' counsel from using the following phrases during trial: “community safety or protection,” “public safety or protection,” “safety rules,” “sending a message,” “needlessly endangering patients” and “being guardians of the community.” Hopper v. Ruta, Colo. Dist. LEXIS 249 (Dist. Ct. of Colorado, Oct. 23, 2013).

On the other hand, some courts have been reluctant to preclude use of Reptile arguments, opting instead to rule on Reptile issues that arise during trial on an ad hoc basis. See, e.g., Turner v. Salem, 2016 WL 4083225 (W.D.N.C. July 29, 2016). Furthermore, other courts have expressly allowed Reptile evidence to be used at trial because reference to “community safety standards [is] fundamental to the underpinnings of tort law.” Bostick v. State Farm Mut. Auto. Ins. Co., 2017 U.S. Dist. LEXIS 113897, *6 (M.D. Fla. July 21, 2017).

Given the recent flurry of decisions throughout the country regarding whether Reptile-type arguments should be admissible at trial, New York courts will likely begin ruling on the issue in the near future. Accordingly, it is important for defense counsel to be fully aware of this new trial strategy and the legal arguments they can make to preclude its use.

Reptile Theory Depositions

During the deposition of a defendant's corporate designee, plaintiffs invoking the Reptile strategy will likely seek admissions that: (1) The defendant had a duty to follow the Safety Rule pursuant to their own company policy or as a matter of common sense; (2) The defendant easily could have followed the Safety Rule in the plaintiff's situation; (3) The defendant breached the Safety Rule as applied to the plaintiff; and (4) Abiding by the Safety Rule would have prevented the plaintiff's injury.

Counsel who use the Reptile strategy generally first seek to establish the corporate designee's agreement to a seemingly innocuous and broad Safety Rule, and then through a series of questions, slowly narrowly tailor the rule to apply to plaintiff's situation. By the end of the deposition, unprepared defense witnesses are forced to choose between admitting that they breached a Safety Rule as applied to the plaintiff, or look like a hypocrite, which causes the witness psychological distress. Under such circumstances in the past, defense witnesses have admitted that they breached a Safety Rule that they should have followed, effectively admitting that they are liable for causing plaintiff's injury. Kanasky, B.F., “Debunking and redefining the plaintiff reptile theory,” For the Defense, 76, 14-22 (2014).

Accordingly, from the defense perspective, it is crucial to adequately prepare the defendant's corporate designee for his or her deposition. Doing so involves the following steps:

(1) Explain Reptile Theory concepts and strategies;

(2) Practice common Reptile questions regarding safety rules and violations thereof, and discuss the appropriate and truthful response;

(3) Generally, the witness should avoid agreeing to vague and overly broad hypotheticals; and

(4) Short and credible responses such as “It depends on the circumstances,” “I don't know”, “I don't recall” and “In compliance with [cite law or standards]” are often the best and most honest answer.

Reptile Theory Motions in Limine

As discussed above, New York law has not yet developed regarding Reptile arguments. Accordingly, motions in limine filed in New York should rely upon favorable case law in other jurisdictions.

Where appropriate, defense counsel may also argue that use of Reptile evidence should be precluded at trial because any probative value is outweighed by the prejudice to defendants. Specifically, Reptile evidence and arguments may:

(1) Mislead and/or confuse jurors as to their role simply to compensate the plaintiff for his or her injury, rather than to “send a message” to the defendant or protect their community;

(2) Misstate the applicable law and improperly raise the “reasonable person” negligence standard to a Safety Rule espoused by plaintiff's counsel that is unsupported by statute, case law and/or expert testimony; and

(3) Be irrelevant because they are designed to compel jurors to decide a case based on emotions and fear rather than facts and law; a defendant is not required to choose the course of action that in hindsight would have constituted the “safest product” or “best care” to a particular plaintiff; and because references to hypothetical harm to the community is irrelevant to a plaintiff's injuries.

Defense counsel may also argue that the court should grant its motion in limine, rather than deciding Reptile objections during trial on an ad hoc basis, because defendants may be prejudiced simply by having to repeatedly object to plaintiff's counsel's Reptile arguments during trial, which may imply to jurors that defendants are hiding something.

To avoid an objection from the court that the motion is vague or overly broad, defense counsel may consider arguing that the court should bar plaintiffs' counsel from arguing or soliciting testimony concerning specific words that counsel used during depositions, discovery or motion practice, such as “community safety or protection,” “safety rules,” “sending a message” or “needlessly endangering the public.”

Conclusion

Plaintiffs' Bar has been successfully using the Reptile litigation strategy for some time. Like any trial strategy, Defense counsel can counteract Reptile arguments using a combination of proactive defense strategies and judicial intervention. It is imperative that the Defense bar in New York bring the Reptile strategy to the court's attention and begin to develop the law in that regard.

Gregg D. Minkin is a partner and Jedidiah M. Bernstein is an associate at Hinshaw & Culbertson in New York.