Heyl Royster

 


Heyl Royster

 

Kill the Reptile Before It Hatches: Protective Orders to Preclude/Limit Reptile Theory Questioning

By: Devin Taseff, dtaseff@heylroyster.com

As so many motor and insurance carriers are unfortunately aware, the Reptile Theory is an increasingly common means by which plaintiffs transform a five-figure case into a six-figure case, and a six-figure case into a nuclear verdict. By posing hypothetical questions to a driver, safety director, or other witness regarding “safety rules,” attorneys skilled in the art of Reptile Theory questioning lead witnesses into committing to a higher, fictitious standard of care that they then “prove” the witness violated. This is designed to communicate to juries: (1) that “safety” is the “purpose of the civil justice system” and (2) that “fair compensation can diminish . . . danger within the community.”1 The purpose of such questioning is “to give jurors [a] personal reason to want to see causation and dollar amount come out justly, because a defense verdict will further imperil them.”2 Ultimately, Reptile Theory questioning is designed to influence jurors to decide the case using their primitive, “reptile” instincts rather than the law or the accident facts.

While our attention concerning the Reptile Theory is often on its effects on juries at trial, a more effective strategy to limit or outright preclude plaintiffs’ use of Reptile Theory questioning is to challenge it at the outset of discovery. The success of Reptile Theory questioning relies on the defendant’s answers, and so the ideal means of opposing the Reptile Theory is to prevent plaintiffs’ counsel from asking such questions in the first place. Federal Rules of Civil Procedure 26(c)(1) provides an effective, but underutilized tool: the pre-deposition Motion for Protective Order.

Motion for Protective Order Under Rule 26(c)(1)

Fed. R. Civ. P. 26(b)(1) provides that “[u]nless otherwise limited by court order . . . [p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” If a court determines that the proposed discovery is outside the scope permitted by Fed. R. Civ. P. 26(b)(1), then it “must limit the frequency or extent of discovery otherwise allowed by these rules[.]” Fed. R. Civ. P. 26(b)(2)(C).

Fed. R. Civ. P. 26(c)(1) authorizes district courts to issue a protective order, for good cause shown, to “protect a person from annoyance, embarrassment, oppression, or undue burden or expense.” Among the tools available to trial courts in granting such protection are “forbidding the disclosure or discovery[,]” Fed. R. Civ. P. 26(c)(1)(A), and “limiting the method and manner in which discovery is to be sought.” Frasier v. U.S., No. 1:19-cv-00019, 2019 U.S. Dist. LEXIS 183065, 2019 WL 5418119, at *7 (N.D. Ind. Oct. 23, 2019), citing Olivieri v. Rodriguez, 122 F.3d 406, 409 (7th Cir. 1997).

The party seeking a protective order must demonstrate that good cause exists for its entry by making a “particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.” Ball Corp. v. Air Tech of Mich., Inc., 329 F.R.D. 599, 603 (N.D. Ind. 2019) (internal quotations omitted), quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16 (1981). “Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.” Ball Corp., 329 F.R.D. at 603. (internal quotations omitted), quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).

With these discovery principles in mind, we can analyze common Reptile Theory questioning employed by the Plaintiffs’ bar, in order to demonstrate to the Court through a Motion for Protective Order that it lacks any valid discovery purpose.

Example of Common Reptile Theory Questioning

(i)      Employed Against Driver In Case Involving Alleged Hours of Service (HOS) Violations

  • Safety is your top priority, correct?
  • As a commercial driver, you have an obligation to ensure that you drive safely, right?
  • In fact, you have a duty to put safety first, do you not?
  • To ensure safety, as a commercial truck driver, you must follow the federal rules governing hours of service, correct?
  • And would you agree that if someone violates those safety rules and causes an accident, then they should be held responsible for their actions?

(ii)     Employed Against Safety Director in the Same Case

  • Would you agree with me that as a safety director of a motor carrier, public safety is always a top priority of both you and your company?
  • Would you also agree that as a safety director, it is your obligation to ensure that your drivers do not endanger other motorists?
  • Would you agree that you do everything you can as a safety director to ensure public safety?
  • To ensure safety, your drivers must follow the federal rules governing hours of service, correct?
  • And your company has its own policies for supervising its drivers’ hours of service, correct?
  • And would you agree that if your company did not follow these policies, and one of your drivers violated the hours of service rules and caused an accident, your company should be held responsible?

It is clear from this common pattern of Reptile Theory questioning that its goal is not to elicit objective facts about the accident at hand but rather, to get the witness to commit to a higher, fictitious standard of care using questions that are difficult, if not impossible, to answer in the negative without sacrificing credibility. Hence, the key to defeating the Reptile is to ensure that such questions are precluded or limited in scope prior to taking such crucial depositions.

Proven Effectiveness

The Northern District of Indiana recently granted the defendants’ (driver and carrier) pre-deposition Motion for Protective Order under Rule 26(c)(1) on the grounds that questioning the driver, a lay witness, about “safety rules” using “generalized hypotheticals” would fall outside the scope of permissible discovery. Estate of Richard McNamara v. Navar, No. 2:19-cv-109, 2020 U.S. Dist. LEXIS 70813 (N.D. Ind. Apr. 22, 2020). In entering a protective order prohibiting plaintiff’s counsel from asking questions regarding the existence of and purpose for alleged “safety rules,“ the Court reasoned that: “The purpose of a deposition is to discover the facts. Hypothetical question that are designed to obtain opinions are beyond the scope of the deposition of a lay witness.” Id. at *6.

The defendants’ arguments in McNamara are instructive as to how defense counsel should structure their briefs in support of a pre-deposition Motion for Protective Order. The defendants in this case first described both the nature and purpose of Reptile Theory questioning and provided practical examples of specific questions typically asked by the plaintiff’s counsel in previous depositions. Id. at *4-5. The defendants then argued that such questioning, including hypotheticals regarding the driver’s knowledge of various purported “safety rules,” merely constituted an attempt to impose a heightened, arbitrary standard of care on the driver. Id. at *5. Hence, the defendants concluded that such questioning lacked any tangible connection to the scope of permissible discovery. Id. Furthermore, the Court rejected the plaintiff’s argument that this line of questioning was likely to produce discoverable information as conclusory and unsupported.

McNamara instructs defense counsel to challenge Reptile Questioning before plaintiffs’ counsel has a chance to employ it in a crucial deposition. Doing so will require plaintiffs’ counsel to address the underlying purposes behind such questioning before the Court, which at the very least creates an opportunity to educate the judge on Reptile issues well in advance of settlement discussions, motions in limine, and trial.

Conclusion

Overall, a pre-deposition Motion for Protective Order under Rule 26(c) provides an effective, yet underutilized tool at defense counsel’s disposal to limit or outright preclude Reptile Questioning in crucial depositions. As the case law on this issue continues to develop, carriers and their counsel should consider a Motion for Protective Order wherever they anticipate questioning regarding “safety rules” posed through hypotheticals, and argue pursuant to the reasoning of McNamara that such questioning lacks any valid discovery purpose. In doing so, defendants and their counsel will increase the likelihood of killing the reptile before it hatches. Even if the Motion for Protective Order is not granted, it serves to educate the Court about the tactic likely to be used in discovery. Once you have deposition testimony conveying the scope and purpose of the tactic, you can then seek to renew your Motion for Protective Order and/or begin filing Motions in Limine attempting to bar the line of questioning in further depositions or at trial.


1 David Ball and Don Keenan, Reptile: the 2009 Manual of the Plaintiff’s Revolution, at 29-30

2 Id. at 39.