Recent Reptile Tactic Cases

Originally published by Kyle White.

We have previously discussed the popular Reptile litigation strategy utilized by the Plaintiff’s bar here and here, and we have even posed the question of whether defense lawyers can co-opt the Reptile strategy. Until recently, there was minimal case law on the Reptile. Motions in limine to exclude the Reptile were left unaddressed, and the courts were otherwise silent as to the Reptile. Recently, however, we have noticed an increasing number of Reptile-related rulings, from which we provide snip-its below:

• The Court denied a motion to exclude Reptile tactics where the defendants “have again not identified the specific evidence that is sought to be excluded”; however, the Court noted that “any attempt by either party to appeal to the prejudice or sympathy of the jury will not be condoned.”  Hensley v. Methodist Healthcare Hosps., No. 13-2436-STA-CGC, 2015 WL 5076982, at *5 (W.D. Tenn. Aug. 27, 2015).

• “BSC’s Motion to Preclude “Reptile” Litigation Tactics is DENIED.” Winebarger v. Boston Sci. Corp., No. 3:15CV211-RLV, 2015 WL 5567578, at *10 (W.D.N.C. Sept. 22, 2015).

• Granting motion to “[p]reclude any attempt by plaintiff’s counsel to utilize the Reptile Strategy.” Glover v. State, No. 10-2-35124-8, 2015 WL 7355966 (Wash. Super. Ct. September 9, 2015).

• Granting “[m]otion in limine regarding use of Reptile Theory Tactics, Golden Rule references, or other “safety rules.” Palmer v. Virginia Orthopaedic, P.C.,No. CL14000665-00, 2015 WL 5311575 (Va. Cir. Ct. June 19, 2015).

• Motion to exclude Reptile Tactics denied, but “parties may not violate the ‘golden rule’ and have agreed to this.” Berryhill v. Daly, MD, No. STCV1102180SA, 2015 WL 5167586 (Ga. State Ct. May 8, 2015).

• Motion to exclude Reptile denied after finding that “[a] general rule prohibiting Plaintiff from referring to rules or standards is not workable in that it could preclude Plaintiff from arguing at all about the standard of care and is denied. As stated above, the Court will, however, prohibit direct appeals that violate the Golden Rule.” Scheirman v. Picerno,No. 2012CV2561, 2015 WL 4993845 (Colo. Dist. Ct. April 16, 2015).

• Denying “[m]otion to exclude use of ‘reptile strategy’ which includes evidence and argument by Plaintiffs referring to general physician “safety rules”, arguments asking jurors to place themselves in Plaintiffs’ position, or arguments that jury should “send a message” or otherwise punish Defendant.” Hutson v. Rooney, MD,No. 142045603, 2015 WL 3455867 (Wash. Super. Ct. April 14, 2015).

• Trial court that was admittedly “handicapped because of its unfamiliarity with the Reptile Strategy” denied motion to exclude Reptile tactics. Pressey v. Children’s Hosp. Colorado, No. 2013CV72, 2015 WL 1583852 (Colo. Dist. Ct. March 15, 2015).
  

• “Defendant’s Motion in Limine to Exclude the ‘Reptile’ should be and hereby is denied.” Upton v. Northwest Arkansas Hospitals, LLC, No. CV-2010-270-4, 2012 WL 12055084 (Ark. Cir. Ct. March 8, 2012).

So, it appears from the non-exhaustive list of Reptile-related opinions that Courts are virtually split on whether to keep out Reptile tactics on a motion in limine. Accordingly, lawyers on both sides of the “v” should be familiar with the strategy, as the Reptile practitioners apparently continue to obtain sizable verdicts:

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