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Reptile Motion in Limine Opposition

Over ten years ago, a very successful plaintiffs’ lawyer wrote a book called Reptile on how to persuade jurors using science and psychology. There is no question it is a great book that many plaintiffs’ lawyers have read. Instead of trying to fighting back with modern trial techniques, defense lawyers now regularly file a motion in limine – usually a cut-and-paste motion they file in every case — claiming the tactics outlined in the book somehow violate the rules of the courtoom. Our lawyers have never seen a court grant this motion. But, of course, we have to respond to every motion in limine filed by the defendant before trial. This is our response motion.

IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND

MONICA SMITH, et al. :
Plaintiffs, :
v. : Case No.: 446210-V
MELISSA LONG, et al. :
Defendants. :

PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE TO PRECLUDE “GOLDEN RULE” OR OTHER IMPROPER “REPTILE THEORY” TACTICS

Now comes the Plaintiff, by and through their attorneys, Laura G. Zois, Rodney M. Gaston, Justin Zuber, and Miller & Zois, LLC, and hereby files this Opposition to Defendant’s Motion in limine and for reasons states as follows:

  1. The Defendant filed a Motion in Limine to preclude the Plaintiff from redefining the law regarding actions against health care providers. Motions in limine ordinarily seek to exclude evidence “because it is incompetent, irrelevant, immaterial, privileged, or otherwise inadmissible.” Prout v. State, 311 Md. 348, 356, 535 A.2d 445, 448-49 (1988) (citing McCormick on Evidence § 52, at 128 (3rd ed. 1984)), superseded by Rule on other grounds, Beales v. State, 329 Md. 263, 619 A.2d 105 (1993). In contrast, the instant Motion in Limine seeks to exclude an entire trial strategy – going so far as to exclude questions asked of witnesses – where such strategy or questions might be in any way deemed “regarding” or “consistent with” a trial strategy from a seven year old publication entitled Reptile: 2009 Manual of the Plaintiff’s Revolution.
  2. In essence, Defendant seeks to place a gag order on Plaintiff’s counsel before a word has been uttered at trial which would restrict both the trial strategy and advocacy of Plaintiff’s counsel. Furthermore, it restricts the manner in which the Plaintiff presents his case to the jury pursuant to the Maryland Rules – even though the Plaintiff’s theory of the case has been endorsed by the Defendant’s own standard-of-care experts. Because the Defendant has not identified any specific evidence which he wants the Court to exclude from trial, his Motion should be denied.
  3. A patient’s safety, and those rules, which apply to the patient’s safety are key issues in any medical malpractice case. The Defendant has not cited one Maryland case in support of his argument that the Plaintiff should be precluded from eliciting testimony from the Defendant’s own witnesses as to their understating and working definition of the standard of care, which includes the concept of patient safety. When an expert in a medical malpractice case offers opinions on what is or is not the standard of medical care, and whether a Defendant did or did not violate it, the expert exposes himself/herself to cross-examination as to their understanding and definition of what standard of care means. How and why the standard of care is developed, is instrumental to understanding whether experts’ opinions are valid. How experts learned what the applicable standard of care is for members of their profession are equally relevant in order for the jury to appreciate the credibility of the witness’ testimony. For example, did the expert develop his understanding of the standard of medical care during a fraternity party when all of the attendees were intoxicated? Does the expert believe the purpose of the standard of medical care is to protect defendants from medical malpractice lawsuits?
  4. An inquiry into how an expert acquired his/her knowledge of the applicable standard of care, and what those standards are, become a very relevant inquiry in a medical malpractice case. Every defense attorney and physician knows that standards of medical care are developed and implemented primarily for patient safety. The actions of all physicians are judged with the patient’s safety in mind.
  5. The word standard is defined by the Miriam Webster Dictionary as “something set up and established by authority as a rule for the measure of quantity, weight, extent, value, or quality. A standard is identical to a rule. In the field of medicine, a standard is a safety rule because standards of medical care are developed primarily for the patient’s safety.
  6. Maryland Law requires Plaintiffs to “establish the applicable standard of care”. The definition of which is unchanged in Maryland for more than four decades:

    We . . . hold that a physician is under a duty to use that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances. Under this standard, advances in the profession, availability of facilities, specialization or general practice, proximity of specialists and special facilities, together with all other relevant considerations, are to be taken into account.

    Shilkret v. Annapolis Emerg. Hosp. Ass’n, 276 Md. 187, 200-01, 349 A.2d 245, 253 (1975) emphasis added. As the Court of Appeals recently explained (in a case that reaffirms the ruling in Shilkret), the Plaintiffs must establish the applicable standard of care through the testimony of expert witnesses:

    The duty owed by a medical professional is to exercise the degree of care or skill expected of a reasonably competent health care provider in the same or similar circumstances. When the plaintiff alleges negligence by a professional, expert testimony is generally necessary to establish the requisite standard of care owed by the professional.

    Board of Trustees, Comm. Coll. of Baltimore Co. v. Patient First Corp., 444 Md. 452, 478, 120 A.3d 124, 139 (2015) (internal quotations and citations omitted).

  7. Under Shilkret, “all other relevant considerations” necessarily include the medical provider taking into account the safety of the patient when considering the medical care rendered. The Defendant cannot in good-faith claim the safety of the Plaintiff was irrelevant to Defendants decision not to order urgent head imaging for a child who has constant severe headaches, nausea, vomiting, neck pain, difficulty moving his neck, dizziness, difficulty sleeping, photophobia, and lethargy. Plaintiff is entitled to explore the concept of safety as a consideration in the formation of standards of care. This can be done through expert testimony and cross examination. To preclude any mention of it a trial is a distortion of the law and why we have standards of care.

B. The misplaced Golden Rule argument.

Defendant wrongfully claims the Plaintiff will introduce evidence in violation of the Golden Rule. The Golden Rule does not apply to evidence. Admission of evidence is governed by the Maryland Rules.

Defendant has not cited any rules of evidence which will be violated by Plaintiff’s counsel making reference to Plaintiffs’ safety in the context of the applicable standard of medical care. The Golden Rule applies to statements made either in opening or closing, when the attorney specifically asks the jury to step into the sho
es of the Plaintiff in an attempt to improperly invoke emotion or sympathy in support of their claim for damages. Plaintiff does not intend to violate the Golden Rule during the opening, closing, or rebuttal.

WHEREFORE, the Plaintiff respectfully requests this Honorable Court deny the Defendants’ Motion in Limine.

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