plaintiff’s lawyer tries to establish several generic “safety rules”-such as rules of the road-which may or may not have anything to do with the specific facts of the case. The goal is to persuade jurors that their own safety is at risk and that a larger plaintiff’s verdict will make them safer by making their community safer. . . . begins with the premise that neither reason (application of the law) nor sympathy (pity for the plaintiff) will motivate jurors to award a larger verdict. . . . 2018) (table), which added some useful context about the reptile theory’s improper intentions and trial tactics: As presented in this case, the comments were error.Īlso in Kansas, the grant of an “anti-reptile theory order in limine” was affirmed in Perez v. As phrased, the comment implied the jury’s decision could reach beyond the confines of the case and impact medical care elsewhere. invited the jury to determine whether conduct met the standard of care based on whether it desired “safe medicine or unsafe medicine,” instead of the evidence and the law. . . . The “safe medicine or unsafe medicine” argument . . . 2018), the Kansas Supreme Court held “reptile litigation strategy” improper-but harmless. In a medical malpractice case, Castleberry v. Prior appellate review of reptile tactics has occurred in other types of tort litigation. “magining a hypothetical future moment when might think about their jury service and remember” how they “helped to make a wrong right.” Id.įinding that the court’s order overturning the verdict applied the wrong standard, however, Fitzpatrick remanded for reconsideration of the grant of a new trial.Making claims that “safety rules were violated,” id.Arguing that the jury’s function is to “enforce” the “safety rules” of “our community,” id.Arguing “that a defendants’ verdict would give the defendants a ‘pass’ or ‘reward’ them,” id.“nvok future possibilities of harm, or that the jury through their verdict could protect the community from such dangers,” id.“raw the jurors into the position of the plaintiff,” id.Use of “we” and “us” to “impermissibly integrate the jurors with the plaintiff,” id. “sk the jurors to put themselves in the position of any person involved in the case,” id.Appeals “to the jurors’ emotions, passions, prejudices, or sympathies,” Fitzpatrick, 2019 WL 5792847, at *12.The court held several reptilian techniques beyond the pale of acceptable argument: 7, 2019), became the first appellate court specifically to address certain “reptile litigation” tactics in product liability litigation and to determine that they were improper. Wendy’s Old Fashioned Hamburgers, 2019 WL 5792847 (Mass. Recently, a Massachusetts appellate court, in Fitzpatrick v.
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