Tactics For Protecting Defendants From “Reptile Theory” Questions
by Seth C. Fulton, Esq. and Daniel L. Robey, Esq.
The “Reptile Theory” remains a significant issue in the defense of insurance providers and their insureds. It is a broad strategy by plaintiffs’ attorneys to portray defendants as a threat to the safety of the community, and to trigger jurors’ sense of responsibility to protect the community and their families from harm. This strategy is meant to convince factfinders to punish defendants because of a perceived threat, which has led, in part, to a proliferation of “nuclear” plaintiff verdicts across the country. Proponents of the Reptile Theory brag that Reptile tactics have resulted in more than $7 Billion in reported verdicts around the United States.
The Reptile Theory is attempted commonly in civil litigation but it flouts fundamental principles of law; namely that a factfinder should determine liability from the facts of the matter, not overarching principals of communal safety. Plaintiffs’ attorneys often seek to integrate the Reptile Theory at the outset of litigation, and frequently introduce it at the pleadings stage, discovery phase, and at trial. In the alternative, plaintiffs’ attorneys may hold the Reptile Theory until the later stages of a case to catch the unsuspecting defense attorney by surprise. Defense attorneys should prepare clients for “Reptile” questions early in a case, and prudent counsel will have a plan to thwart Reptile questions in depositions and Reptile tactics at trial.
There are several ways to combat Reptile questions during a deposition, but counsel should be aware of the risks of implementing each tactic. Defense counsel should be on the lookout for any deposition question that references how the defendant’s conduct relates to communal safety, including questions that deviate from the applicable standard of care and/or questions suggesting the defendant failed to protect the community from harm. In other words, as soon as plaintiff’s counsel seeks to inject Reptile questions, defense counsel should immediately respond. Depending on the circumstances and the assigned judge, defense counsel can instruct the witness not to answer. Such instruction, however, may violate a Virginia rule requiring deponents to answer questions, which may result in sanctions if the court is hostile to this approach. Defense counsel, therefore, should be aware of the assigned judge’s proclivities toward Reptile questions.
If instructing the client to not answer deposition questions poses too high of a risk, defense counsel may suspend the deposition and move the court for a protective order. The protective order should assert that questions regarding hypothetical safety rules fall outside the scope of permissible discovery and are conclusory. Virginia courts have recently upheld such protective orders. The Fairfax County Circuit Court granted the defense’s protective order in an automobile collision matter, and the Court prohibited plaintiff’s counsel from asking questions regarding the defendant’s opinions about traffic safety rules or statutes. In another Fairfax County case, the Court ruled against the plaintiff’s motion to compel the defendant to answer Reptile questions because “questions that are along the lines of the Reptilian theory” are “inappropriate and fail to meet the relevance requirement.” The judge further stated, “I find it harassing to a deponent to answer questions that are never going to be allowed into this court on a standard negligence case.”
Protective orders are less risky than instructing the client not to answer questions, but Virginia courts have been inconsistent in ruling on such motions. The U.S. District Court of the Western District of Virginia did not grant a defendant trucker’s protective order because the Judge opined that deposition questions regarding “general safety standards” did not give rise to the inference that the plaintiff will assert that the jury “should be afraid” of all tractor-trailer drivers. Before moving for a protective order, defense counsel should thoroughly research the sitting judge’s opinions on Reptile questions.
If Reptile questions are allowed to be asked and answered in earlier phases of litigation, defense counsel should move the court, in limine, to preclude plaintiff’s counsel from asking Reptile questions and arguing the Reptile Theory at trial. A defendant’s Motion in Limine should incorporate any Reptile questions that were asked during depositions to show the Court the danger of allowing the plaintiff to invoke the “Golden Rule” argument, which the Virginia Supreme Court has held is a direct violation of Virginia’s evidentiary standards. However, similar to rulings on protective orders, Virginia courts’ rulings on such Motions in Limine have been inconsistent.
It is of critical importance to create a proper record of the plaintiff’s tactics, and of the defendant’s attempts to prevent the introduction of the Reptile Theory in a case. If defense counsel is not successful before the trial court, he or she will have the automatic right to seek a reversal at the appeal level.
Counsel should thoroughly prepare witnesses to respond to Reptile questions in depositions and at trial if the assigned judge is unresponsive to the defense’s preventative tactics. Defense counsel should instruct witnesses to answer Reptile questions by narrowly bringing the answer in line with the facts of the case rather than a general response that could be harmful. Additionally, non-expert witnesses can respond to questions about local, state, or federal guidelines by asserting they lack expertise to opine on such general rules. Still, some witnesses will have no more than a limited ability to deal with Reptile questions and defense counsel must be aware of the limitations of the witness.
Plaintiffs’ attorneys continue to modify their approach to injecting Reptile Theory into cases, all in an effort to avoid defense tactics to block the theory from reaching a jury. Insurers and defense counsel, therefore, need to be prepared to address the Reptile Theory, which may be asserted by plaintiffs in any civil case at all stages of litigation.