United States: Slaying Your Reptile Opponent Through Narrowly Tailored Pre-Trial Motions In Limine

Last Updated: February 16 2018
Article by Melody C. Kiella

Before I was a practicing civil defense lawyer the word "reptile" would have conjured up images of tetrapod animals such as snakes, lizards, crocodiles, and turtles. Now, when I hear the word "reptile", I imagine an overzealous lawyer standing before a jury and waiving her arms for emphasis as she says words like "safety", "danger", and "risk" and uses phrases such as "needlessly endangering the community" and "a threat to your safety" to describe the defendant's conduct. To many experienced civil defense lawyers, the reptile strategy utilized by plaintiff's lawyers in courtrooms across the United States is nothing new. There are countless articles and publications analyzing the alleged science behind the reptile theory and the ways in which plaintiff's lawyers use this theory to capitalize on the fears of the jury for purposes of increasing verdicts at trial. While the reptile theory has become something that we expect from top-notch plaintiff's lawyers, there are hardly any published court opinions addressing and analyzing successful motions in limine to preclude reptile antics at trial.

A successful motion in limine is possibly your best and only shot at slaying your reptile opponent before trial. If your motions in limine are vague and overbroad, then you're already at a significant disadvantage when you step into the courtroom on the first day of trial. We all know that it is impossible to unring a bell. "When one is told 'Don't think about elephants,' the immediate image in the mind is an elephant." (United States v. Davis, 904 F. Supp. 564, 569 [E.D. La. 1995] [jury instructions to disregard prejudicial publicity may be insufficient to protect the defendant's right to a fair trial because it is "difficult, if not impossible, to 'unring a bell'"]). To avoid having to "unring a bell", motions in limine seeking to prohibit reptile theory arguments and tactics should be narrowly tailored and specific to the facts of your case and the previous statements or arguments made by opposing counsel throughout the discovery period.

While some courts have granted vague motions in limine seeking to exclude reptile theory questions and arguments at trial, most courts appear to be unwilling to enter broad orders prohibiting any and all reptile theory arguments at trial. (See Pracht v. Saga Freight Logistics, LLC, 2015 WL 6622877, at *1 [W.D. N.C. 2015] [granting, without any explanation, defendant's motion to prohibit reptile theory questions and arguments]). For example, in Hensley v. Methodist Healthcare Hospitals, (2015 WL 5076982 [E.D. Ten. 2015]), while the district court agreed that appealing to the prejudice or sympathy of the jury was impermissible, it denied defendant's motion in limine because it did not identify the specific arguments or evidence that defendant sought to be excluded at trial. (Id. at *4-5). Similarly, in Cameron v. Werner Enterprises, Inc., 2016 WL 3030181 (S.D. Miss. 2016), the district court declined to issue a ruling on defendant's motion in limine seeking to prohibit plaintiff from making any argument or reference that the defendant's actions were a threat to the jurors' safety because there was no indication that the plaintiff had previously made or would in the future make such an argument. (Id. at *5).

The best way to ensure that the court rules on your motion in limine and prohibits reptile theory arguments and evidence at trial is to avoid vaguely referencing "reptile theory" arguments and to, instead, use prior statements made by opposing counsel (whether in pleadings, at depositions, or otherwise) that fit into categories of arguments that courts have consistently prohibited from being made at trial. For example, if opposing counsel has suggested during the course of discovery that the defendant's conduct is a danger to the community and should not be tolerated or that the defendant should be punished for its action or inaction, then a motion in limine asking the court to prohibit counsel from making these "send a message" arguments may be better received by the court as such arguments have been consistently prohibited because they inflame the passions of the jury. (See R.J. Reynolds Tobacco Co. v. Gafney, 188 So. 3d 53, 58 [Fla. Ct. App. 2016] ["send a message" arguments are improper even when punitive damages are sought when discussing whether the plaintiff should be compensated because of the "potential for the jury to punish through the compensatory award."]; see also Janssen Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31, 62 [Miss. 2004] ["send a message" arguments are "intended to inflame and prejudice the jury," improperly invite punitive use of compensatory damages, and "should never be allowed."]; Strickland v. Owens Corning, 142 F.3d 353, 358-59 [6th Cir. 1998] ["send a message" arguments are disfavored because they "can have no appeal other than to prejudice" and amount to "improper distraction from the jury's sworn duty to reach a fair, honest, and just verdict."]).

At least one district court has granted a reptile theory motion in limine disguised as a request that counsel be prohibited from making "send a message" arguments. In Brooks v. Caterpillar Global Mining America, LLC, (2017 WL 3401476 [W.D. Ky. 2017]), the district court granted defendant's motion in limine seeking to prohibit plaintiff's counsel from arguing that the conduct of the defendant needlessly endangered the community and emphasized that such an argument mirrored "send a message" arguments by attempting to prejudice the jury and distract them from their duty to be impartial. (Id. at *8). The court further emphasized that arguments urging the jury to render a verdict in favor of the defendant on the basis of fear for the safety of their community are inappropriate and would not be permitted. (Id. at *9).

Another way to narrow your motion in limine is to highlight statements, arguments, or lines of questioning by opposing counsel that are in essence "Golden Rule" arguments due to the suggestion that a witness put themselves in the plaintiff's position or the implication that the defendant's conduct endangered the community or the public in general. "Golden Rule" arguments have been "universally condemned" by courts because they encourage "the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on evidence." (Granfield v. CSX Transp., Inc., 597 F.3d 474, 471 [1st Cir. 2010] [citation omitted]; see also Arnold v. E. Air Lines, Inc., 681 F.2d 186, 199 [4th Cir. 1982] ["The Golden Rule and sympathy appeals are . . . obviously improper arguments . . . Having no legal relevance to any of the real issues, [and are] per se objectionable"]).

For example, consider the following line of questioning between a plaintiff's lawyer and the safety director of a motor carrier:

Q: Your driver testified at his deposition that he did not look in his driver's side mirror before entering into the left lane to pass the garbage truck. Do you agree that failing to look in his driver's side mirror was a violation of the rules of the road?

A: I don't know if he failed to look in his driver's side mirror or if he violated the rules of the road.

Q: If you were my client and you were working on the side of the road dumping trash into the garbage truck, wouldn't you want drivers attempting to pass the stopped garbage truck to follow the rules of the road so they wouldn't cause a collision and injure you?

A: I can't say what I would want if I were your client.

The reference to "if you were my client" is a typical "Golden Rule" statement and can be used to show the court that opposing counsel has asked this type of question in the past and should be prevented from doing so in front of the jury at trial. Similarly, a line of questioning designed to focus on the harm that could have occurred to community members or other people who are not involved in the lawsuit can be pointed to in order to show opposing counsel's propensity to invoke "Golden Rule" arguments that could encourage a juror to decide the case based upon potential harms or losses to the community at large rather than based upon the evidence and the facts of your case. In Doe v. City of San Diego, (2014 WL 11997809 [S.D. Cal. 2014]), the court granted defendant's motion in limine seeking to preclude "Golden Rule" arguments framed as references to "public safety" or "community safety" because the issue of community safety was irrelevant to the issues to be determined by the jury. (Id. at *4).

Your motion in limine can also be framed in a way that asks the court to prohibit opposing counsel from referencing a safety standard or guideline that differs from the applicable standard of care owed in your case on the grounds that any reference to such standards or guidelines will only serve to mislead the jury. In Biglow v. Eidenberg, (2016 WL 1545777 [Kan. Ct. App. 2016]), the trial court granted defendant's motion in limine seeking to prohibit the plaintiff and all witnesses from referencing a physician's duty "not to needlessly endanger a patient" and the duty to choose the "safest" option in caring for a patient because such phrases were "inconsistent with the law in Kansas as to a doctor's duty." (Id. at *14). The plaintiff later appealed this decision and the Kansas Court of Appeals determined that, while the concepts of patient safety and needlessly endangering a patient are arguably relevant in medical malpractice cases, the trial court did not abuse its discretion in determining that the probative value of the evidence was outweighed by the potential that it could mislead the jury with regard to the legal duty owed by the physician. (Id. at *17).

One final method for narrowing your motion in limine is to specifically request that opposing counsel be prohibited from making "conscience of the community" arguments that shift the focus away from the plaintiff's actual damages to protecting the community at large. Reptile lawyers will most certainly tell jurors during opening and closing statements that they are the "conscious of the community" or the "guardians of the community" and that jurors are charged with the duty of deciding what conduct will not be tolerated in their community. Some courts have indicated that they are unwilling to issue a blanket order prohibiting an appeal to the "conscience of the community" on the ground that such arguments are only improper when used for purposes of inciting the passions and prejudice of the jurors. (See Baxter v. Anderson, 2017 WL 4416183, at *4-5 [M.D. La. 2017] [without being able to demonstrate how the plaintiff will use "conscious of the community" arguments to incite the passions of the jurors, the court is unwilling to issue a blanket order prohibiting such arguments]). However, other courts have willingly granted orders prohibiting such arguments because they are unfairly prejudicial and may confuse the jury about the basis for its award of damages. (See Regalado v. Callaghan, 207 Cal. Rptr. 3d 712, 725-26 [Cal. Ct. App. 2016] ["in our view the remarks from [plaintiff's] counsel telling the jury that its verdict had an impact on the community and that it was acting to keep the community safe were improper"]; see also Faulstick v. Southern Tire Mart, LLC, 2014 WL 4055571, at *4 [S.D. Miss. 2014] ["conscience of the community" arguments are improper and should be addressed prior to trial]; Fyffe v. Mass. Bay Transp. Auth., 17 N.E. 3d 453, 460-66 (Mass. App. Ct. 2014) (argument that the jury was the "guardians of the safety of all of the moms, all of the dads, and all of the children, and all of the grandparents that ride in these trains" was so prejudicial that it could not be cured by later instruction]; Murphy v. Ford Motor Cor., Inc., 2009 WL 2998960, at *4 [W.D. La. 2009] [because the plaintiff is not entitled to recover punitive damages, any "conscious of the community" arguments would confuse the jury about the basis for its award of damages];United States v. Rogers, 556 F.3d 1130, 1143 (10th Cir. 2009) ("Prosecutors are not permitted to incite the passions of the jury by suggesting they can act as the 'community conscience' to society's problems"). In discussing "conscience of the community" arguments, the Fifth Circuit Court of Appeals stated:

Our condemnation of a "community conscience" argument is not limited to the use of those specific words; it extends to all impassioned and prejudicial pleas intended to evoke a sense of community loyalty, duty and expectation. Such appeals serve no proper purpose and carry the potential of substantial injustice when invoked against outsiders.

(Westbrook v. General Tire & Rubber Co., 754 F.2d 1233, 1538-39 [5th Cir. 1985]. If your state is one known for prohibiting "conscience of the community" arguments, then addressing this in a pre-trial motion in limine is a must to prohibit the reptile-using lawyer from making these remarks during opening and closing statements at trial.

In conclusion, while courts seem reluctant to grant vague and overbroad motions in limine seeking to prohibit "reptile theory" arguments at trial, a more narrowly tailored motion in limine identifying prior statements made by opposing counsel which are similar to "send a message", "Golden Rule", or "conscience of the community" arguments or which seek to apply a "safety standard" or "safety guideline" different than the applicable standard of care may allow you to prohibit reptile theory tactics prior to trial.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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