Reptiles in the Courtroom: Cold Blooded Tactics in Medical Malpractice
Medical malpractice plaintiff’s attorneys frequently apply a litigation and trial strategy of treating jurors like reptiles, by appealing to the supposed primitive and fearful (“reptilian”) parts of their brains. The “Reptile Theory,” originally developed by Don Kennan, Esq. and jury consultant Dr. David Ball, is a method that is being utilized by the plaintiff’s bar across the United States. The strategy has appeared in medical malpractice, product liability, commercial trucking, and general tort actions. As this theory is frequently encountered in medical malpractice lawsuits, healthcare providers should be aware of how the strategy is applied and how to effectively counter these tactics.
In 2009, Keenan and Ball published “The Reptile Theory” and derived their strategy of appealing to the reptilian brain of jurors from neuropsychologist Paul MacLean. MacLean “theorized that three parts of the human brain reflect stages of human evolution: reptilian (primitive survival based), paleomammalian (emotion, reproduction, parenting), and neomammalian (language, logic, planning).” The theory maintains that the reptile stage drives our behavior when confronted with danger, even when we believe we are acting based on logic and reason. In practice, the theory is to convince jurors that a defendant’s conduct is a threat to the juror and/or the community. “That concern for their own safety, according to the theory, will trigger the jurors’ primitive reptile brain and overwhelm the other, more logical, parts of their brains.” With that primitive part of the brain triggered, the plaintiff’s attorney hopes jurors will ignore logic and reason and render a verdict against the defendant who threatened their safety. Although the underlying science has been discredited many times, the litigation strategy remains effective through its ability to simplify a case and present a plaintiff’s version of the events.
The Reptile Theory is typically deployed in deposition, jury selection, and opening statements. According to this strategy, the key to persuasion is to ground not on the legal standard of care (reasonably prudent physician under like or similar circumstances) but on a “safety rule” which jurors can understand and apply to the case. Plaintiff’s attorneys want these rules to be black and white, deal in absolutes, and appeal to common sense. Plaintiff’s attorneys begin this process by establishing a set of these rules through questioning a witness during deposition. The following are examples of safety questions:
“During your education and training, you were taught that physicians should do no harm to their patients?”
“During your education and training, you were taught that physicians should take steps to prevent injury to their patients?”
“Do you hold yourself out to your patients as a physician who takes all necessary care and caution in the practice of your profession?”
“Staying up to speed with adverse drug side effects is an important safety concern?”
“It is important for a physician to know about drug side effects?”
“Safety is your number one priority?”
These questions are designed to box the defendant into an inflexible position of agreement.
The goal of the plaintiff’s attorney is to force the defendant to agree with these broad safety questions and then to link those previous safety rules to specific conduct in the case. Specific case facts are strategically asked in close proximity to “rules” to try and force the defendant into contradictions.
Defense witnesses must understand how to recognize and combat safety rule questions. A good defense attorney will educate the witness on what the Reptile Theory is and how it might be used in context of the specific case facts. Preparation sessions should teach the witness how to detect safety rule questions and how to properly answer each question. For example, the witness should never answer in absolutes when confronted with a reptile question, but should answer noting the impossibility of answering such a vague question. Responses should be qualified. In responding to reptile questions, witnesses should keep in mind the words “it depends.” A “witness must be able to articulate the circumstances under which the requested reptile question does not apply.” For example, it is impossible for a defendant to do everything conceivably imaginable to provide every protection against danger.
Attorneys with Piedmont Liability Trust have encountered the Reptile Theory while defending physicians and are experienced with preparing and neutralizing this tactic. Trust attorneys also defend and prepare physicians who are involved in a lawsuit not as a defendant, but as a treating physician whom the plaintiff would like to depose. Please contact the Trust if you have been served with a medical malpractice lawsuit or if an attorney is requesting a deposition.
 Bill Kanasky Jr., Confronting the Plaintiff’s Reptile Revolution, (2014).
 John R. Crawford, Outsmarting the Lizard: Strategies for Responding to Reptile Theory Questions, For The Defense, (2015).
 R. Bryan Martin, The Reptile Theory: Snakes Everywhere-How Not to Lose Your Case During Deposition Cross-Examination, https://www.hbblaw.com/.