Plaintiffs use of the “Reptile Theory” in trucking cases has undoubtedly led to many so-called nuclear verdicts but, and arguably worse, it has also provided a basis to leverage inflated settlements in countless more cases. Sure, defendants can attempt to counter the Reptile Theory with arguments regarding admissibility backed by promising motions in limine, for which solid legal precedent exists, but the bad chemistry following a battering reptile deposition of a driver or safety manager is often indelible. Many mediations are consumed by plaintiffs touting deposition responses to Reptile Theory questions advancing the lofty higher calling of public safety. Plaintiffs pursuing this theory relentlessly attempt to point to and highlight the disparity between commitments to safety and the apparent lack of implementation through the use of mismanaged hypotheticals. The pursuit of tort justice is hijacked by notions of protecting the community at large from danger by holding defendants accountable with punishing settlements and threats of nuclear verdicts.
Courts around the country are certainly wising up to the Reptile Theory and seeing it as the “Golden Rule” end run that it is. There is now ample authority to support motions in limine that prevent plaintiffs from encouraging jurors to view compensatory damages as punitive in nature. Courts are weary of plaintiffs turning civil trials into a safety arena where broader societal issues are to be remedied. But, until recently, defendants have been left to fend for themselves in the face of plaintiffs’ Reptile Theory tactics throughout discovery and at mediation. A recent opinion from the United States District Court for the Northern District of Indiana in The Estate of Richard McNamara, III v. Jose Navar, 2020 WL 2214569, offers some hope to defendants seeking to cage the reptile at the outset of litigation, thereby avoiding, or at least limiting, its impact on the discovery process and settlements.
McNamara v. Navar was a wrongful death action premised on the tort of negligence arising out of a tractor-trailer accident. Defendants filed a Motion for Protective Order in advance of the deposition of the defendant driver seeking to prohibit Plaintiff from asking reptile theory questions, including hypotheticals, regarding knowledge and the purpose of various safety rules for tractor-trailer operation on the basis that such questioning would create confusion around the applicable duty of care. Against Plaintiff’s opposition, the Court granted Defendant’s Motion for Protective Order.
The McNamara Opinion rested on Rule 26(c)(1) of the Federal Rules of Civil Procedure, which provides, in pertinent part, that “[a] party or person from whom discovery is sought may move for a protective order” and that “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense….” The Court recognized that reptile-trained attorneys look for ways to attempt to communicate to juries that “safety” is “the purpose of the civil justice system,” and that “fair compensation can diminish . . . danger within the community.” Further, the Court recognized that the defining purpose behind reptile tactics is to “give jurors [a] personal reason to want to see causation and dollar amount come out justly, because a defense verdict will further imperil them. Only a verdict your way can make them safer.” The Court ultimately reasoned:
Navar has not been designated as an expert by the defense. His testimony, as a lay witness, is limited to one that is rationally based on his perception, helpful to clearly understanding his testimony or to determining a fact in issue, and not based on scientific, technical, or other specialized knowledge. Federal Rule of Evidence 701. Accordingly, asking Navar about alleged “safety rules,” including generalized hypotheticals, would fall outside the scope of permissible discovery. The purpose of a deposition is to discover the facts. Hypothetical questions are designed to obtain opinions and are beyond the scope of the deposition of a lay witness.
In reaching its decision, the McNamara Court expressly rejected Plaintiff’s argument that the anticipated line of questioning related to safety rules was likely to produce discoverable information as conclusory and unsupported.
Other courts had previously declined to go as far as the McNamara Court. In Beach v. Costco Wholesale Corp., the United States District Court for the Western District of Virginia, 2019 WL 1495296, in response to a similar motion for protective order, reasoned that the discovery phase of litigation is not the proper stage for rulings on disputes over what material may ultimately be presented to a jury, reasoning:
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…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.
Perhaps the McNamara decision will portend to a broader movement to eliminate “Reptile Theory” tactics at important depositions. At a minimum, it will serve to pave the way for defendants to create an early record of the objectionable conduct and bring the court’s attention to the Reptile Theory issues well in advance of trial.
 See Woulard v. Greenwood Motor Lines, Inc., 2019 U.S. Dist. LEXIS 131701 *6-7 (S.D. Miss., Feb. 4, 2019) (holding that any mention of non-specific “safety rules” at trial would be irrelevant to the issues before the court and “even if marginally relevant, the probative value of such evidence or argument would be substantially outweighed by the dangers of unfair prejudice, confusing the issues, misleading the jury, and wasting time.”); Pracht v. Saga Freight Logistics, LLC, 2015 U.S. Dist. LEXIS 149775, 2015 WL 6622877, at *4 (W.D.N.C., Oct. 30, 2015) (granting defendant’s motion to preclude “reptile” arguments at trial); J.B. v. Mo. Baptist Hosp. of Sullivan, 2018 U.S. Dist. LEXIS 19689 2018 WL 746302, at *6-7 (E.D. Mo., Feb. 7, 2018) (sustaining defendant’s motion to preclude plaintiff’s use of “reptile” theory argument); Brooks v. Caterpillar Global Mining Am., 2017 U.S. Dist. LEXIS 125095, 2017 WL 3401476, at 24-25 (W.D. Ky., Aug. 8, 2017) (granting motion to preclude “reptile” theory arguments and noting its similarity to “send the message” or conscience of the community arguments).
Written by principal Andrew Stephenson.