Reptile Theory is arguably the most game-changing trend in litigation in recent history. Originally developed by Don Keenan, Esq. and jury consultant Dr. David Ball, the trial method was created in response to tort reform. The strategy was designed specifically to achieve plaintiff verdicts and high damages, even in jurisdictions where damage caps exist.

It has been so successful for the plaintiff bar in personal injury and medical malpractice cases that it has now made its way into other areas of law, including product liability and transportation. Because of the theory’s prevalence in medical malpractice, it’s important for healthcare providers to understand the strategy and know how it typically unfolds during litigation.

WHAT IS REPTILE THEORY?

Reptile Theory is based on the work of neuropsychologist Paul MacLean. In the 1960s, Dr. MacLean posited that the human brain has three distinct components representing the stages of human evolution. Humans’ higher functions, like language and logic, are governed by the neomammalian brain, while motivation and emotion are governed by the paleomammalian brain. Primitive and survival instincts are governed by the reptilian brain. It is this basic “lizard brain” instinct that the Reptile strategy seeks to activate and manipulate, setting aside appeals to reason and instead playing on fear.

HOW DOES REPTILE THEORY PLAY OUT IN THE COURTROOM?

According to the theory, jurors’ survival instincts—in other words, their reptilian brain—can be triggered in the courtroom by conveying that the defendant’s actions present a clear and immediate danger to the juror and/or the community, and that those actions must be punished as a means of deterrence.

Plaintiff attorneys carefully construct their cases by first establishing the existence of unwavering “safety rules” in medicine. Next, they typically manipulate defense witnesses into inadvertently agreeing with those “rules.” As an example of how plaintiff attorneys might put this into practice, a defense witness might be asked at trial, “Would you agree that patient safety must always be a physician’s highest priority?” On the surface, this may seem like an innocent, easy-to-answer question. But once a defense witness answers affirmatively, he or she is already starting to perceive such rules exist. The plaintiff attorney can then argue that the defendant willingly violated these rules.

Another example is a plaintiff attorney claiming that because a chosen course of treatment presented some level of risk to the patient, the defendant must not have made safety his or her priority. They may argue that because the defendant didn’t abide by this safety rule and harm occurred, his or her actions were flagrantly dangerous and were the direct cause of whatever negative outcome initiated the litigation.

As the theory goes, once the “safety rule” and the “danger” are presented, this activates a juror’s reptilian brain. They perceive the defendant’s actions to pose a clear, immediate threat to the survival or wellbeing of themselves or their community and may believe, for example, that this situation could have happened to them personally or to a member of their family.

When executed successfully, jurors will deliver a favorable verdict for the plaintiff. The results are generally lucrative for plaintiff attorneys, because the best method of punishment and deterrence the jury has in their possession is recommending a high damages award.

CAN DEFENDANTS OVERCOME REPTILE THEORY?

The Reptile Theory strategy has reportedly resulted in more than $7.7 billion in jury verdicts and settlements for plaintiffs since it was developed in 2009 . With this kind of earning power, it’s clear these practices aren’t going away any time soon.

The good news is, healthcare defense can successfully overcome this strategy by taking advantage of a multi-part strategy. We discuss the first part of this strategy in Reptile Strategy in Healthcare Litigation: Deposition and Witness Testimony.