Courtney A. Stevens, Esq. | Senior Attorney, Medmarc Loss Control
The “reptile theory” was recently introduced to me at Medmarc’s annual Medical Device Seminar, a gathering of Medmarc’s panel counsel in which the attorneys share what they are seeing from plaintiffs’ counsel and the most effective means of defending our life sciences clients against products liability claims. Attorney and panel counsel member Kelly Waters of Coughlin Duffy in New Jersey, presented on the topic. The following are some insights I garnered from her presentation as well as my own brief research on the subject.
The “reptile theory” is a tactic used with increasing popularity by plaintiffs’ lawyers in personal injury—most often medical malpractice and products liability—actions. The reptile tactic aims to paint the defendant’s product and/or behavior as dangerous to the extent that it is a threat to jurors’ own safety or the safety of others. In using this tactic, plaintiffs’ attorneys seek to rouse jurors’ “primitive” (or reptilian) senses of security and protection in the hopes that such feelings will spur them to condemn the defendant.
In practice, the reptile theory shifts the focus from the particular facts of the case at hand and the defendant’s culpability in relation to the plaintiff and instead uses a broad brush to portray the defendant’s conduct as “unsafe” in a larger, more general sense.
What Life Sciences Defendants Can Do
In order to successfully combat the reptile theory, defense counsel needs to be familiar with its operation, know how to recognize it and what to expect its application will look like in the context of the defendant’s product and fact pattern.
For life sciences companies, the degree to which the reptile theory is becoming commonplace in the courtroom only underscores the importance of demonstrating your commitment to safety repeatedly and consistently throughout the production and post-production processes. Defendants must be able to show that their actions are not a “threat” to the community at large, and can do this effectively by pointing to their record of safety and documented consideration of their patient population.
The makers of drugs and devices have a positive story to tell—they are making life-improving and life-saving technology, and this story needs to be leveraged in the face of plaintiffs using reptile tactics.