‘Reptile theory’

Accusations that so-called “reptile” tactics might crawl out of a federal pothole injury case failed to alarm a magistrate judge this month. Ruling on pretrial motions, the judge declined to impose a protective order governing depositions of corporate officials and he allowed latitude for possible reptile-based questions.

The case is one of only a handful where Virginia litigators have raised the specter of the “Reptile Theory.”  The theory is that the elemental, or “reptile,” part of the brain lashes out in response to danger.

In a trial, the theory goes, jurors will respond in kind in the face of corporate safety lapses. The appeal to jurors’ survival instincts can bolster a plaintiff’s potential recovery. At least two circuit judges have addressed reptile-related motions.

Since 2009, experts have tutored plaintiffs’ lawyers on techniques designed to trigger primitive reactions from jurors concerned about the safety of their families. Reptile disciples encourage juries to apply exacting standards for institutional safety measures.

In response, defense lawyers rallied to study the reptile doctrine and develop tactical antidotes to keep jurors focused on case-specific duties and breaches.

The pothole case in Harrisonburg federal court appears to the first in the state in which the Reptile Theory is explicitly addressed in a memorandum opinion. In an April 4 decision, U.S. Magistrate Judge Joel C. Hoppe rejected a defendant’s bid for a protective order in Beach v. Costco Wholesale Corp. (VLW 019-3-182).

Safety standards emphasized

The Reptile Theory is set out in “Reptile: The 2009 Manual of the Plaintiff’s Revolution,” written by jury consultant David Ball and attorney Don Keenan. The landing page for Keenan and Ball’s website displays a larger-than-life snake head (absent fangs) with the headline “Welcome to the Revolution.”

In an Amazon listing for a used copy ($499.95), the seller invites buyers to learn how to undercut tort reform “by using the jurors’ most primitive instincts of safety and self-preservation.”

Reptile-trained trial lawyers are encouraged to seek concessions from defense witnesses that widespread safety measures are always appropriate.

The theory is described from a defense perspective in the Summer 2018 edition of the Journal of Civil Litigation, a publication of the Virginia Association of Defense Attorneys. The article, authored by Taylor D. Brewer of Richmond, urges defense attorneys to be alert to detect and forestall reptile tactics.

“Despite a robust criticism of the Reptile Theory, the plaintiffs’ bar continues to use the theory against defendants and, with increasing frequency, initiate the attack in the early stages of litigation,” Brewer wrote.

“I think it’s effective,” Brewer said in an interview. “I think it’s gaining momentum, which is why it’s so scary,” she added.

“I think it is a natural human response to hear about something a defendant allegedly did and worry about what might happen to you,” Brewer said.

The VADA article warned of early tactics to improve the plaintiff’s posture during depositions of experts and corporate designees and in pre-trial questioning of potential jurors.

“Defense counsel must therefore always consider early and proactive intervention against reptilian tactics,” Brewer wrote.

Pothole case

Early intervention may have been on the mind of Costco counsel in the Beach case. Plaintiff Kimberly Beach reportedly suffered a sprained ankle when she tripped on a pothole in a Winchester Costco parking lot. She is represented by Benjamin T. Boscolo of Maryland, listed among “certified Reptile presenters” at a 2016 plaintiff-only seminar in Baltimore.

Costco counsel J. Matthew Haynes Jr. of Richmond emailed Boscolo on Jan. 10, asking him to confirm that he would not “employ ‘Reptile Theory’ tactics at any time” during corporate depositions. Boscolo professed ignorance about the inquiry. “I plan on asking questions designed to lock in facts that are relevant to the elements of Ms. Beach’s claims against Costco,” the plaintiff’s lawyer responded.

Costco sought protection from the court, suggesting a possible violation of Federal Rule of Civil Procedure 30(d)(3).

“Employing reptile tactics during deposition examinations constitutes a bad faith, improper use of discovery, and serves only to unreasonably annoy, embarrass, oppress and prejudice Costco,” Haynes wrote Jan. 14.

Boscolo did not acknowledge any such tactics.

“Ms. Beach’s litigation and/or trial strategy is not proper grounds for discussion, much less motions practice, and will not be discussed herein,” Boscolo wrote in a Jan. 25 brief. The Costco motion “is a sweeping and overly broad attempt to prevent Ms. Beach from trying her case,” he said.

Deciding the motion, Hoppe said the discovery phase of litigation is not the proper stage to decide what might go to the jury.

“While I acknowledge Costco’s concerns that the overarching “Reptile Theory” strategy can be employed in the discovery process, I decline to issue a ruling preemptively barring the use of a strategy that Beach’s counsel has not expressed any intent to employ, and I make no finding as to the propriety of such a strategy,” Hoppe wrote.

“Moreover, even if a ruling on ‘Reptile Theory’ strategy were appropriate at this stage, I am inclined to agree with Beach that ‘it is impossible to conceive of what an order granting Costco’s motion would proscribe,’” Hoppe said.

Citing a federal decision from Maryland, Hoppe criticized the “hazy nature of Costco’s argument.”

“Whether a question or line of inquiry is designed to utilize “Reptile Theory” is a subjective inquiry, and an order categorically denying the use of this strategy would effectively give Costco license to object or refuse to answer questions that might otherwise be relevant to Plaintiff’s case,” Hoppe wrote.

The judge limited the timeframe of questions about safety measures, but otherwise declined to intervene in the defense witness depositions.

Trial arguments allowed

In Loudoun County, Circuit Judge Jeanette A. Irby declined to impose boundaries for plaintiff’s lawyers in a medical malpractice wrongful death case.

Without using the term “reptile,” Irby addressed a defense motion to curb argument about “safety rules” or that a verdict for the plaintiff was necessary to “protect the public.”

Irby said arguments should not conflict with the court’s instructions. While lawyers can explain matters to assist the jury to understand the law, “any such explanations must be consistent with the controlling law and not presented in such a manner as to suggest to the jury that they supplant or alter that law,” Irby said.

But talk about patient safety was not off limits, she continued.

“It can hardly be said, that the discussion of such matters during argument would unduly inflame the passion or prejudice of the jury,” Irby wrote. She declined to impose a pretrial ban on references to “safety rules” or “protection of the public.”

Moreover, Irby rejected a key contention of the defense bar. She said talk about safety rules and public protection does not constitute prohibited “golden rule” argument.

The Supreme Court of Virginia has ruled on multiple occasions that “golden rule” arguments – inviting jurors to imagine themselves in the place of the alleged tort victim – were inappropriate. Some critics say the new reptile strategy is a subtle means of reviving the forbidden tactic.

Irby’s April 1 ruling came in Mangum v. Inova Loudoun Hospital (VLW 019-8-040).

Fairfax deposition ruling

Defense lawyers had better luck restricting reptilian discovery in a Fairfax County case last year. In an auto liability case, Judge Jan L. Brodie prohibited questioning of two defendants about their opinions of traffic safety standards or the potential consequences of traffic violations.

As with the Loudoun County decision, the judge’s language does not mention the term “reptile.”

Brodie’s Nov. 30 order came in Morris v. Ferrell (VLW 018-8-041).

Growing use

Brewer – author of the VADA article on reptilian tactics – said the strategy is seeing widespread use in Virginia. Some plaintiffs’ lawyers may be using it without even realizing its part of a brain response theory, she said.

Some defense lawyers are using it in reverse to portray a plaintiff as heedless of safety rules.

“We’ve sort of tried to turn it on its head and give it right back to the plaintiff,” Brewer said in an interview.

Brewer said the VADA is planning a panel discussion on the topic for the group’s annual meeting in Norfolk in October.