03.25.2025

Countering Reptile Theory Tactics By Plaintiffs in Medical Malpractice Litigation

By Nicholas Tam

In medical malpractice cases, few trial strategies have sparked as much discussion as the “Reptile Theory,” a blanket term for improper tactics used by the plaintiffs’ bar to stoke fear and anger amongst jurors to inflate jury verdict awards. This strategy improperly steers jurors toward decisions based on emotion instead of a reasonable understanding of the record evidence.  

For defense counsel representing healthcare providers, understanding, identifying, and neutralizing these tactics from the outset is paramount to counteracting their prejudicial effects. 

Understanding the Reptile Theory 

The Reptile Theory is based on the concept that humans’ primitive “reptilian” brain is hardwired for self-preservation. Plaintiffs’ attorneys aim to activate jurors’ fear of danger and the need for safety by arguing that holding the defendant accountable will prevent future harm in the community, including the jurors and their loved ones. 

Key elements of the Reptile Theory include: 

1. Broad Safety Rules: First, the plaintiff’s attorney establishes general safety rules, such as “Healthcare providers must always prioritize patient safety above all else.” These rules may sound reasonable to jurors at first blush, but are intentionally vague. 
2. Rule Violation: After establishing broad safety rules, the plaintiff’s attorney argues that the defendant violated these safety rules, emphasizing that such breaches endangered not only the plaintiff, but everyone in the community. 
3. Juror Empowerment: The plaintiff’s attorney frames the jurors’ role as community protectors or guardians, urging them to render a verdict that sends a message and deters future misconduct.  

The success of this strategy lies in its ability to redirect the jury’s focus away from the specific facts of the case and toward a broader, emotionally-charged narrative. This is a grossly improper consideration that finds no basis in the New York Pattern Jury Instructions, which guide the Court when instructing jurors about the applicable law in a case. 

Why Reptilian Tactics Are Challenging 

Reptilian tactics can be particularly effective in medical malpractice cases due to the community’s perception regarding healthcare. Jurors may already be afraid of what could happen if they need to go to the hospital and might harbor skepticism toward physicians and healthcare institutions. Plaintiffs’ attorneys exploit these emotions by portraying the defendant as “dangerous.” 

For the defense bar, the challenge lies in neutralizing these emotional appeals while keeping the jury focused on the facts, expert testimony, and applicable standards of medical care. Reptilian tactics can create a sense of moral urgency that clouds rational decision-making, making it important to address them forcefully. Understanding, identifying, and objecting to such strategies may convince plaintiff’s counsel to avoid them. 

Defense Strategies to Counter the Reptile Theory 

1. Expose the Strategy Early. During depositions and pre-trial proceedings, identify and challenge reptilian tactics. Plaintiffs’ attorneys often attempt to establish overly broad safety rules during deposition questioning of medical treatment providers. The defense should object to vague lines of questioning and instead shift the focus to the specific standards of care relevant to the case. 
2. File Motions in Limine. Preemptively restrict the use of reptilian arguments by filing motions in limine before the trial begins. Courts may limit plaintiff’s counsel from introducing arguments designed solely to improperly inflame the jury’s emotions or appeal to community safety concerns.  The defense should argue in their motion papers that such tactics are irrelevant to the factual issues of the case and are prejudicial to the defendant. 
3. Educate the Jury During the Jury Selection Process. Use jury selection to identify and address potential biases. Ask prospective jurors about their views on healthcare providers, medical errors, and community safety. Explain that the objective of the trial is to determine whether the defendant’s actions met the applicable standard of care. 
4. Object on the Record. Trial counsel should object to improper commentary in the presence of a court reporter during all aspects of trial, including voir dire, opening statements, witness examinations, and summations. Defense counsel should request – on the record – that the Court direct plaintiff’s counsel to refrain from such improper commentary and seek a curative instruction that the jury should ignore punitive considerations. Repeated violations of the Court’s directives should warrant a motion for a mistrial to preserve the record for post-trial relief. 
5. Reframe the Narrative. Present a balanced and evidence-based narrative. Emphasize the complexity of medical decision-making and individualized care required for each patient. Help the jurors understand that healthcare providers operate in an environment of uncertainty and must exercise their professional medical judgment in formulating a differential diagnosis and treatment plan for the patient based upon their symptoms, rather than adhering to a rigid, one-size-fits-all solution. 
6. Appeal to Logic and Fairness.  Encourage the jury to evaluate the case based on evidence and the law, rather than emotion.  During opening and closing statements, remind the jurors of their duty to decide the case fairly and impartially.  Highlight the importance of adhering to the legal standard of care rather than imposing personal or emotional standards. 
7. Leverage Expert Testimony.  Expert witnesses play a pivotal role in counteracting reptilian arguments.  Ensure your experts are well-prepared to explain the applicable standards of care and why the medical provider’s treatment was timely and appropriate.  Experts can also address the pitfalls of oversimplifying medical care and the harm of applying unrealistic safety rules. 

 Conclusion 

Reptilian trial strategies are a powerful tool for plaintiffs’ attorneys in medical malpractice cases, but they are not insurmountable.  By understanding and proactively addressing these tactics, defense attorneys can keep the jurors focused on the facts and the law, ensuring a fair trial for their clients.  

If you have questions about ways to combat reptilian trial strategies or about other facets of medical malpractice law, please contact Nicholas Tam, Esq. (ntam@sacslaw.com).