Verdict - Spring 2018 - 27

to a particular defendant that it is responsible

see fit. General objections to reptile theory

for the damage that it caused is acceptable. 4

should not be resolved in a motion in limine,

Your case may not even involve punitive dam-

and limited objections often do not comport

ages, and regardless of whether it does, make

with Georgia law. A strong response to a

sure you preserve the right to make targeted

motion in limine preserves flexibility at trial

statements that the defendant should be held

and puts the onus on defense counsel to make

responsible for the consequences of its own

specific, live objections to preserve issues

misconduct.

for appeal. ●

A final defense tactic is to assert that references to safety and public danger necessarily

ABOUT THE AUTHOR

require the jury to disregard the jury instruc-

Kurt Kastorf is an associate

tions. For example, in a medical malpractice

with The Summerville Firm out of

case, the defense might assert that there are

Atlanta. He is an active member

no "safety rules" in medicine, only standards

of GTLA and also a recent graduate of the

of care. Here, nothing beats an appeal to com-

2017-2018 Leadership Education and Advanced

mon sense. Of course medicine involves safety

Direction (LEAD) class. Kurt can be reached at

rules. Sharps are placed in special containers.

kurt@summervillefirm.com.

Scalpels are stored in closed drawers. Drugs
are held behind locked doors. Doctors wash

FOOTNOTES

their hands. Indeed, the very purpose

1 See, e.g., Adini v. Costco Wholesale Corp., 2017 U.S. Dist.

of established standards of care is

LEXIS 55863 (Dist. Nev. 2017), as this is a good place to
begin; then, Jackson v. Asplundh Constr. Corp., 2016 U.S.

to protect the health and safety of

Dist. LEXIS 149145, 2016 WL 5941937, at *1 (E.D. Mo.

patients. Defendants are entitled to

Oct. 13, 2016) (declining to issue ruling on motion based

a proper jury instruction on the standard of

on the "reptile theory"); Cameron v. Werner Enterprises,

care, but they are not entitled to hamstring trial

Inc., 2016 U.S. Dist. LEXIS 68711, 2016 WL 3030181,

counsel by prohibiting them from speaking in

at *5 (S.D. Miss. May 25, 2016)  (declining to issue
ruling on motion based on reptilian theory because

terms of public health and safety, concepts at

it was too "hypothetical");  Hensley v. Methodist

the very core of hospital care.

Healthcare Hosps., 2015 U.S. Dist. LEXIS 113565, 2015

particular plaintiff's circumstances, not based
on the experience of individual jurors. The rea-

WL 5076982, at *4-5 (W.D. Tenn. Aug. 27, 2015) (deny-

GETTING THE REMEDY RIGHT

ing "Reptile Theory" motion because "Defendants

soning of the golden rule prohibition leaves a

Many lawyers' first instinct is to request

have again not identified the specific evidence that

lot of arguments fair game. Importantly for

that overbroad motions in limine be denied

is sought to be excluded");Bunch v. Pac. Cycle, Inc.,

reptile theory, it is permissible

outright. Consider, though, whether a better

for attorneys to reference

alternative is to ask the court to defer adju-

the conscience of the com-

dication and to instruct defense counsel to

2

munity, because appealing

object to specific testimony at trial. When

3

to the jurors' desire to create a

the court denies a motion in limine, the objec-

safe community is acceptable.2 In addition, the

tions set out in that motion are preserved on

prohibition on golden rule arguments applies

appeal. 5 The result is that an overbroad motion

only to damages. 3 Preserve credibility with the

works to the movant's advantage, because

court by agreeing not to make true golden rule

even if it is denied, defense counsel can

arguments, but object to motions in limine that

more easily argue on appeal that they have

purport to restrict your conduct in voir dire or

preserved their objections. Where possible,

when addressing liability.

force defense counsel to make live objections.

2015 U.S. Dist. LEXIS 187867, 2015 WL 11622952, at *2
(N.D. Ga. Apr. 27, 2015) (rejecting reptile theory motion
because it was "overbroad").
Hines v. State, 246 Ga. App. 835, 837 (2000).
Naimat v. Shelbyville Bottling Co, 240 Ga. App. 693,
697-98 (1999); see also Valdes v. Miami-Dade City.,
No. 12-22426-CIV, 2015 WL 7253045, at *12 (S.D. Fla.
Nov. 17, 2015) (denying motion to exclude golden rule
arguments; noting "prohibition against golden rule
arguments applies only to damages in this Circuit"
and there was no "indication that [the opposing party]
would violate the golden rule as to damages");
4

Stuckey v. N. Propane Gas Co., 874 F.2d 1563, 1575 (11th Cir.
1989) (finding no error where plaintiff's counsel "made it
clear that a 'message should be sent," because "he also

Another defense approach is to seek a

They might waive an important argument,

prohibition on "send a message" statements.

and even if they do not, the objection will be

But again, there are important caveats to the

a narrow one, applicable to the specific ruling

Ry. v. Jones, 219 Ga. App. 602, 607-08 (Ga. Ct. App. 1995)

restriction on such arguments. Although ask-

made at trial.

(characterizing statements such as "they've [Defendant]

made it clear that an award of only compensatory damages
would suffice to send that message."); see also Norfolk S.

got to hear it from you" and "these people haven't learned

ing a jury to send a message to the broader
regulated community by awarding an over-

a lesson" as "an accurate characterization of the jury's

CONCLUSION

sized amount of punitive damages is imper-

Do not let defendants restrict your ability to

missible, asking the jury to send a message

present your clients' cases in the manner you

role in resolving a prime issue of liability.").
5

See Andres v. Wilbanks, 265 Ga. 555 (1995).

Spring 2018 27



Table of Contents for the Digital Edition of Verdict - Spring 2018

President’s Message
How I Obtained Justice: Sudden Emergency Doctrine
Thank You to Outgoing Verdict Chairman, Madeleine Simmons
Look Before You Leap: Conducting Jury Focus Groups Before Trial
Voir Dire In Low Speed, Soft Tissue Injury Cases
Defeating Reptile Theory Motions in Limine
Leading the Jury Down the Right Path: Framing Your Case During Voir Dire
Hernandez v. State: Empowering Jurors to Seek the Truth
Exploding Takata Airbags From Cover-Up To Accountability
Using Simple Technology to Pick a Better Jury
Case Updates: Who Really Loses When Medical Funding Becomes an Issue at Trial?
Professional Practice Pointers: Voir Dire, An interview with Cobb County State Court Judge Allison Barnes Salter
Dig In To Do Good: Making the World a Better Place
Welcome New GTLA Members!
Champion Members
Meet The Experts
Index to Advertisers/Advertiser.com
Verdict - Spring 2018 - Intro
Verdict - Spring 2018 - bellyband1
Verdict - Spring 2018 - bellyband2
Verdict - Spring 2018 - cover1
Verdict - Spring 2018 - cover2
Verdict - Spring 2018 - 3
Verdict - Spring 2018 - 4
Verdict - Spring 2018 - 5
Verdict - Spring 2018 - 6
Verdict - Spring 2018 - 7
Verdict - Spring 2018 - 8
Verdict - Spring 2018 - 9
Verdict - Spring 2018 - 10
Verdict - Spring 2018 - President’s Message
Verdict - Spring 2018 - How I Obtained Justice: Sudden Emergency Doctrine
Verdict - Spring 2018 - 13
Verdict - Spring 2018 - 14
Verdict - Spring 2018 - Thank You to Outgoing Verdict Chairman, Madeleine Simmons
Verdict - Spring 2018 - Look Before You Leap: Conducting Jury Focus Groups Before Trial
Verdict - Spring 2018 - 17
Verdict - Spring 2018 - 18
Verdict - Spring 2018 - 19
Verdict - Spring 2018 - 20
Verdict - Spring 2018 - Voir Dire In Low Speed, Soft Tissue Injury Cases
Verdict - Spring 2018 - 22
Verdict - Spring 2018 - 23
Verdict - Spring 2018 - 24
Verdict - Spring 2018 - 25
Verdict - Spring 2018 - Defeating Reptile Theory Motions in Limine
Verdict - Spring 2018 - 27
Verdict - Spring 2018 - 28
Verdict - Spring 2018 - Leading the Jury Down the Right Path: Framing Your Case During Voir Dire
Verdict - Spring 2018 - 30
Verdict - Spring 2018 - Hernandez v. State: Empowering Jurors to Seek the Truth
Verdict - Spring 2018 - 32
Verdict - Spring 2018 - 33
Verdict - Spring 2018 - Exploding Takata Airbags From Cover-Up To Accountability
Verdict - Spring 2018 - 35
Verdict - Spring 2018 - 36
Verdict - Spring 2018 - Using Simple Technology to Pick a Better Jury
Verdict - Spring 2018 - Case Updates: Who Really Loses When Medical Funding Becomes an Issue at Trial?
Verdict - Spring 2018 - 39
Verdict - Spring 2018 - Professional Practice Pointers: Voir Dire, An interview with Cobb County State Court Judge Allison Barnes Salter
Verdict - Spring 2018 - Dig In To Do Good: Making the World a Better Place
Verdict - Spring 2018 - 42
Verdict - Spring 2018 - Champion Members
Verdict - Spring 2018 - 44
Verdict - Spring 2018 - Meet The Experts
Verdict - Spring 2018 - Index to Advertisers/Advertiser.com
Verdict - Spring 2018 - cover3
Verdict - Spring 2018 - cover4
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