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COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE, ss. SUPERIOR COURT
C.A. NO: 1872CV00606
.
DOUGLAS A. CAPAK, PERSONAL,
REPRESENTATIVE OF THE
ESTATE OF DAWN MARIE ROBERTS,
Plaintiff.
Vv,
CLOE F. SHELTON, M.D.,
ANTHONY CARAVELLO, M.D.,
SHARON MAHONEY, M.D.,
SUSAN ANDEREGG, M.D.,
CAPE COD HOSPITAL,
TRISTAN MEDICAL P.C.,
G. CURTIS BARRY, M.D., P.C., AND
CAPE OBSTETRICS & GYNECOLOGY
P.C.,
Defendants,
MOTION IN LIMINE OF DEFENDANTS, CLOE F. SHELTON, M.D. AND ANTHONY
CARAVELLO, M.D. TO PRECLUDE EVIDENCE/ REFERENCES BY COUNSEL
APPEALING TO JURY’S SENSE OF PUBLIC DUTY
NOW COME the Defendants, Cloe F. Shelton, M.D. and Anthony Caravello, M.D. in the
above-referenced matter, and, for the reasons sct forth below, move this Court to enter an order
precluding the Plaintiff and Plaintiff's lay witnesses or experts from offering any testimony,
opinions or evidence, and the Plaintiff's attorneys from making references or statements (at any
stage, from voir dire through closing arguments), aimed to appeal to the jury’s sense of public
duty in protecting the public from the potential of being harmed by the Defendants or the
Defendants’ standards of practice. In support of this motion, the Defendants state that any such
evidence, reference to, or statement about a need to protect the public from the Defendants or
their standards of practice would be unduly prejudicial to the Defendants because it suggests an
improper definition of the applicable standard of care which is contrary to long-established
Massachusetts law, would serve only to inflame the jury, and therefore would deprive the
Defendant of a fair trial.
INTRODUCTION
This is a medical malpractice wrongful death case in which the Plaintiff alleges the
Defendants were negligent in their delay in the diagnosis and treatment of adrenal cancer,
resulting in Dawn Marie Roberts’ death on July 6, 2017. Defendants, Cloe Shelton, M.D. and
Anthony Caravello, M.D., maintain that the care they provided to Dawn Marie Roberts was at all
times appropriate and complied with the standard of care. Defendants further state that nothing
'
they did or allegedly did not do caused or contributed to Dawn Marie Roberts’ death or any
injury alleged by the Plaintiff. Each of the Defendants assert that they were not negligent in any
respect regarding the care and treatment they provided to Dawn Marie Roberts.
“Reptile” Trial Tactics
Counsel may attempt to elicit evidence or make statements about public safety,
community safety, or rules for public safety. or about providing the “best possible” care.
“maximum safety,” or obtaining “as much information as you can,” or avoiding “needlessly
endangering” patients (or similar phrases), and argue that the jury has the power to improve the
safety of themselves, their family members or their community by rendering a verdict that will
reduce, eliminate or deter the Defendants supposedly "dangerous" or "unsafe" conduct. Such a
strategy—often called the “Reptile trial tactics--are being taught in plaintiffs’ trial advocacy
courses and are based on a book by David Ball and Don Keenan entitled "Reptile: The 2009
Manual of the Plaintiffs Revolution." (hereinafter "Keenan, et al.”), Ruskin, W. A., “Plaintiffs’
Bar Embraces Reptile Strategy and Defense Bar Responds.” LexisNexis® Legal Newsroom
Litigation. As reported, Keenan et al. contend that jurors, like all humans, have brains
consisting of three parts which include the reptilian complex. See, David C. Marshall, "Lizards
and Snakes in the Courtroom: What every defense attorney needs to know about the emerging
plaintiffs Reptile strategy," For the Defense, 4/2013, p. 47. The reptilian brain, the authors
argue, instinctively overpowers the cognitive and emotional parts of the brain when core life
functions, such as breathing and hunger, become threatened. Id. The authors contend that
"[w]hen the Reptile sees a survival danger, even a small one, she protects her genes by
impelling the juror to protect himself and the community." Id. The authors further posit that
reducing danger in the community facilitates survival, which awakens the reptilian part of a
human's brain and overcomes logical reasoning. Id., p. 48. To do this, the authors urge,
“plaintiff's lawyers must create ‘safety rules’ and demonstrate the danger to the community in
order to appeal to the reptilian part of each juror’s brain,” and “frame cases so it appears every
defendant chose to violate a safety rule.” Id., p. 48 (emphasis in original).
The Reptile strategy involves convincing the jury that the alleged negligence affects not
only the plaintiff but presents a danger to the community, and that the jury can make the
community (including themselves) safer by rendering a plaintiff's verdict. Id., pp. 47-48. The
proper measure of damages is “not the amount of harm actually caused in a case, but instead
the maximum harm that a defendant’s conduct could have caused.” Id., p. 48.
The "Reptile" strategy, however, creates a false legal standard by which the care at issue
in a medical malpractice case is to be judged. Rather than assisting the jury in understanding the
baseline standard of care followed in the medical community and what that standard requires in a
particular case, reptilian questioning and arguments lure the jury into focusing on community
“safety rules" that are a higher or different standard than the standard of care as established by
the medical community. Keenan et al. argue in their book that, because everyone agrees with the
general rule that "doctors are never allowed to needlessly endanger their patients," the Reptile
strategy “frames medical malpractice cases so that any medical decision other than the absolute
safest choice for a patient constitutes negligence.” Id., p. 51. See, Keenan et al., pp. 62-63, “It
boils the entire case down to the simple theory that ‘the only allowable choice is the safest
available choice’ because any other choice needlessly endangers a patient.” Keenan et al.. pp. 62-
63 (“the only allowable choice is the safest available choice.”) Such an argument is contrary to
Massachusetts law. A legal issue in this medical malpractice lawsuit is not to whether any
defendant chose the “safest” treatment course, or “maximized” patient safety, or ordered all
“possible” tests, consultations or treatment choices, or gathered “as much information” as he or
she could have, or whether their treatment decisions ensure safety for the community. This case
is about whether the Defendants breached the standard of care during their treatment of the
Plaintiff's decedent, and if not, whether that caused any legal harm to the Plaintiff --nothing less
and nothing more.
Rather than simply addressing the concept of Reptile theory, it seems more appropriate to
give the Court concrete examples of the Reptile strategy in a medical malpractice case. The
impetus for this Motion is the fact that the Plaintiffs’ bar has repeatedly attempted to utilize
Reptile tactics appealing to a “public duty” in other cases in Massachusetts and other states, and
to prevent the same at the upcoming trial. In Friedli vy. Grover, MD., First Judicial District Court
of Utah, Civil Action No. 060102383 (2013) --a medical malpractice case where no motion in
limine was filed, the plaintiffs’ counsel's overarching theme was safety rules and community
safety, in contrast to the actual issue of standard of care. The strategy employed by plaintiff's
counsel in the Friedli v. Grover case in 2013 is textbook "Reptile." The following are excerpts
from the trial transcript case which illustrate the Reptile tactics in action:
Voir Dire Arguments by Plaintiffs' counsel:
"Safety rules are there so the person may not get injured, but then
you also said other people might not get injured. That's the reason
for safety rules.”
“How many people have safety rules in their jobs? Nurse to be,
there's all kind of safety rutes. I bet you have had classes on safety
rules, haven't you?"
"Would you agree or disagree with this statement: When it comes to
following rules — and we have said that medicine has rules, safety
rules — when it comes to following rules, no one in any profession
should needlessly endanger others? Does anyone disagree with that
statement? If you do, I would like to know.”
"Do you agree or disagree that if someone, regardless of the
profession, needlessly endangers others by choosing to ignore
safety rules and someone suffers harm or losses, they suffer an
injury, that person that chooses to ignore it should be accountable
for those actions?"
See, Friedli v. Grover, Plaintiff's Voir Dire.
Closing Arguments by Plaintiffs' Counsel:
"Did you know that all of the laws that we have — to the very
essence of the law, court laws, is called safety for the masses.
Safety for the masses. That's the summation of everything we
have."
"It's safety for our community, for our acquaintances, for our
friends, for our families. That's the. essence of the law as you are
going to apply it."
"The point is, you may have been under the mistaken impression
that this case was just about that family, and it's not. It is not. This
case and your decisions are much more than that.”
"I think you understood in voir dire when I asked you, 'Do you
guys agree in the concept that full justice in the right case can
benefit all in the community because it can shape how things
happen in the future? Do you remember us discussing that? And
you saying, 'Yeah, I get how that can. "
"This case, they are representatives of the community. This case
affects so much more than the Friedli family. And | think you have
gotten an idea of that as we have been going through it."
"You have the right to change actions of how people will approach
a similar situation in the future, be it this doctor or any doctor."
"Do you realize enforcing the rules against a rule-breaker makes
everyone safe? And this is a safety rules case, ladies and
gentlemen. Make no mistake about it. It may be applying in the
medical community, but it is a safety case, and you have seen
everyone agree with that."
"It's safety rules — you know, safety rules in the medical
community, safety rules in any other profession are there for the
same reasons. They are there because they are there to protect
people. Safety rules are there to be followed. If safety rules aren't
followed, people get hurt or they die, That's the simple truth of
that. Think of the tragedies that will happen if we the community
say, 'It's okay to ignore safety rules."
“Well, the law, by putting you in this box and being in the jury,
said, ‘This time, this time you have got that power.’ You have the
power to do the right thing for the community. And I'm going to
trust you, that your, that you're going to come up collectively —"
MR OWENS: "I renew my objection. This isn’t about the
community."
THE COURT: "Mr. Worel, if you would, just move on from that
area, please. Thank you."
“And I’m going to ask you when you are finished and you do that
and you come up with a verdict, | want you — it to be a verdict
that you can lean back and you can — held your head high and you
can be proud of And it would be verdict that will send a message
that we want quality medical care.”
See, Friedli vy. Grover, Plaintiff's Closing Argument. The Defendants seek to preclude Plaintiff's
counsel from making similar statements in this trial.
DISCUSSION
“Reptile” trial tactics are based on improper “Golden Rule” arguments because they
ncourage the jury to step into the shoes of the litigant and lose their impartiality
The Court should preclude any arguments regarding personal safety, community safety, or
public safety rules, because they are impermissible Golden Rule arguments, where the jurors are
asked to put themselves in the place of a party, witness or victim. Mass. G. Evid. § 403 states:
“Relevant evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, misleading the jury, being unnecessarily time
consuming, or needless presentation of cumulative evidence.” See Gath v. M/A-Com, Inc., 440
Mass. 482, 488 (2003) (trial court has broad discretion to make evidentiary rulings, including the
power to exclude evidence that would unfairly prejudice an opposing party). Similarly, Mass. R.
Evid. Section | 1 13(b)(3) prohibits such references in closing argument:
The following are not permissible in a closing argument:
(A) to misstate the evidence, to refer to facts not in evidence
(including excluded matters), to use evidence for a purpose other
than the limited purpose for which it was admitted, or to suggest
inferences not fairly based on the evidence;
(B) to state a personal opinion about the credibility of a witness,
the evidence, or the ultimate issue of guilt or liability;
(C) to_appeal to the jurors’ emotions, passions. prejudices, or
sympathies;
(D) to ask the jurors to put themselves in the position of any person
involved in the case,
See Mass. R. Evid. Section 1113(b)(3) emphasis added, Subsection (D) of Mass. R. Evid.
Section 1113(b)(3) is derived from Commonwealth _v. Finstein, 426 Mass. 200, 205 (1997)
where the Court addressed “Golden Rule” arguments. The “Golden Rule” contemplates
arguments from counsel where the jurors are asked to put themselves in the place of a party,
witness or victim. Id., Mass. R. Evid. Section 1113 Notes citing Commonwealth v. Bizanowicz.
459 Mass. 400, 420 (2011); Commonwealth v. Valentin, 420 Mass. 263, 274 (1995). See also,
Spray-Rite Serv. Corp. v. Monsanto Co., 684 F.2d 1226, 1246 (7th Cir. 1982), affd, 465 U.S.
752, 79 L. Ed. 2d 775, 104 S. Ct. 1464 (1984) ("Spray-Rite's counsel should have refrained from
asking the jury to put itself in Spray-Rite's position when it decided how much to award Spray-
Rite").
Massachusetts courts have condemned Golden Rule arguments. See Commonwealth v.
McLaughlin, 431 Mass. 506, 510, 729 N.E.2d 252 (2000) (a prosecutor cannot appeal to the
jurors' sympathies and fears by asking them to imagine themselves in the place of the victim);
Commonwealth y. Harris, 11 Mass. App. Ct. 165, 176, 415 N.E.2d 216 (1981) (the invitation to
the jury to put themselves in the position of the victim is usually improper); Commonwealth v.
Sevieri, 21 Mass. App. Ct. 745, 755, 490 N.E.2d 481 (1986) (error where jury was told to
approach their deliberations 'from the victim's point of view’); Commonwealth v. Jordan, 49
Mass. App. Ct, 802, 816, 733 N.E.2d 147 (2000) ("[t]he prosecutor may have exceeded the
bounds of appropriate argument when he stated, ‘You must, to some extent, put yourselves, as
people who use their common sense. into the shoes of a sister who is in a public courtroom
testifying about the deeds of her very own brother"); Commonwealth y. Finstein, 426 Mass. 200.
205 n.1 (1997) (endorsing trial court judge's issuance of guidelines to counsel before closing
argument for purpose of preventing use of Golden Rule arguments and appeals to the jury's
sympathy and emotions); Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 995 N.E.2d 797,
2013 Mass. App. LEXIS 141, *18, 2013 WL 4824466 (Mass. App. Ct. 2013) (Agnes, J.)
(Concurring) (iterating that the guidelines provided by the trial judge to counsel before closing
argument in Commonwealth v. Finstein should be given to trial counsel in every trial as a matter
of routine); Wu_v. Lauriat, 30 Mass. L. Rptr. 320, 2012 Mass. Super LEXIS 243. at *23-24
(Mass. Super. Aug. 27, 2012) (in context of attorney-conducted voir dire, the "[c}ourt will not
allow questions designed to circumvent the rules on proper argument and pleading, such as
appeals that jurors consider the impact of verdicts upon themselves individually, that they place
themselves in the shows of one party or the other, or that they should ‘send a message.” Likewise,
the Golden Rule argument has been “universally condemned because it encourages the jury to
depart from neutrality and to decide the case on the basis of personal interest and bias rather than
on evidence.” Granfield y. CSX Transp.. Inc., 597 F. 3d 474, 491 (Irst Cir. 2010), quoting Forrestral
. Magendantz, 848 F.2d 303, 309 n.40 (Ist Cir. 1988). See also, Spray-Rite Serv. Corp. 684 F.2d at
1246; Ivy, 585 F.2d at 741.!
"Reptile" trial tactics are a form of long-prohibited “Golden Rule” tactics. “Reptile” trial
tactics seek to have the jurors decide a case not on the evidence presented at trial, but rather on
the potential harms and losses that could have occurred within the greater community, which
includes the jurors and his or her family members. This is accomplished by repeatedly invoking
concepts of societal obligation, self-preservation and community safety throughout jury voir dire,
examination of witnesses, and opening and closing statements. Accordingly, while the Plaintiff
and his counsel may not directly or specifically ask jurors to put themselves in the shoes of the
Plaintiff and his decedent, presenting arguments regarding "personal safety" or “community
safety" has the same intent and mischief—that is to have jurors base their verdict not on the
evidence of the case but rather on the fear that they or other members of their family or
1 For other cases condemning Golden Rule arguments, see Edwards v. City of Philadelphia, 860 F.2d 568, 574 n.6 (3d.
Cir. 1988): Lovett ex rel. Lovett v. Union Pacific R. Co., 201 F.3d 1074, 1083 (8th Cir. 2000); Dole v. USA Waste Servs.
In 100 F.3d 1384, 1388 (8th Cir, 1996): Blevin: essna Aircraft Co,, 728 F.2d 1275, 1580 (10th Cir. 1984); Caudle v.
District of Columbia, 707 F.3d 354, 357 (D.C. Cir, 2013); Chicago & N. W. Ry, v. Kelly, 8 Cir. 1936, 84 F.2d 569, 576;
F, W, Woolworth Co. v. Wilson, 5 Cir. 1934, 74 F.2d 439, 442-43; Klein v. Herring, Fla.Dist.CLApp.1977, 347 So.2d
681, 682; Delaware Olds. Inc. v. Dixon, Del.1976, 367 A.2d 178, 179; Colgan v, Raymond, 1966, 275 Minn. 219, 146
N.W.2d 530, 535; Miku v, Olmen. Fla.Dist.CLApp.1966, 193 So.2d 17, 18, Cert, denied, Fla.1967, 201 So,2d 232; Copial
Dairies, Inc. v. Addkison, 1963, 247 Miss. 327, 153 So,2d 689, 694; Roth v. Jelden, 1962, 80 S.D. 40, 118 N.W.2d 20, 25;
Phillips v. Fulghum, 1962, 203 Va. 543, 125 S.E.2d 835, 839; Brant y. Wabash R.R, 1961, 31 111.App.2d 337, 176
N.E.2d 13, 14, Rev'd on other grounds, 1962, 24 111.2d 541. 182 N.E.2d 181; Jackson v. Southwestem Pub. Serv. Co.
1960, 66 N.M.'458, 349 P.2d 1029, 1040; Faught v. Washam, Mo.1959, 329 S.W.2d 588, 602; Red Top Cab Co. v.
Cap ps, Tex.Civ.App.1954, 270 S.W.2d 273, 275 n.2,
community could be injured and to have them view compensating the Plaintiffs as diminishing
danger to themselves and the community, Reptile trial tactics all culminate in an express or
implied request that the jury depart from its role of impartiality and decide the case on basis of
personal interest—protecting themselves, i.e., "personal safety" and protecting people in their
family and community, i.e., "community safety.” Therefore, this plaintiffs strategy violates the
Golden Rule by indirectly calling upon the jurors to place themselves within the shoes of the
plaintiff or in the shoes of the victim—a position that detracts from the objectivity of the trial.
Thus, any arguments regarding personal safety, community safety, or public safety rules should
be precluded from the trial in this action because they are based on impermissible Golden Rule
arguments,
The Court should preclude the Plaintiff from employing Reptile Public Duty Tactics before
Voir Dire
There is a growing trend whereby the courts recognize that “Reptile” trial tactics are
improper and should be precluded upon a defendant's motion in limine. See Palmer v. Virgini:
Orthopaedic. P.C., No. CL14000665-00. 2015 WL 5311575 (Va. Cir. Ct. June 19, 2015)
granting "[mJotion in limine regarding use of Reptile Theory Tactics, Golden Rule references,
or other "safety rules"); Glover v. State, No. 10-2-35124-8, 2015 WL 7355966 (Wash. Super.
Ct. September 9, 2015) (granting motion to “[p]reclude any attempt by plaintiffs counsel to
utilize the Reptile Strategy"); Harper v. Tveter, 2015 U.S. Dist. LEXIS 114650, *3 (D. Utah
Aug. 27, 2015) ("Golden rule argument or other types of argument such as ‘Reptile brain‘ will
be subject to the general prohibition against impassioning or inflaming the jury"): Pracht v.
Saga Freight Logistics, LLC, 2015 U.S. Dist. LEXIS 149775, *4 (W.D.N.C. Oct. 30, 2015)
("Defendants' motion [in limine] to prohibit any Golden Rule argument and/or Reptile Theory
questions and argument is GRANTED").
Massachusetts trial courts are part of that trend. See, ¢.g.. Spartichino v. Lighthouse of
Ri evere, Inc., Suffolk Superior Court No. 12-2458-D (6/9/2016) (Leighton, J.); Zeoli v. Senior
Residential _Care/Kingston. Inc., Plymouth Superior Court (5/31/2016)(Sullivan, J.)(by
agreement); Galvin v. Zimmer. M.D., Suffolk Superior Court No. 10884CV03462 (4/21/2016);
Gomez y. Town of Little Compton, Bristol Superior Court No. 1273CV00431.
The Court should follow this trend and preclude the Plaintiff. Plaintiff's counsel and
Plaintiffs witnesses from making any argument, comment or reference to and presenting any
evidence as to personal safety, community safety. or public safety rules because such "Reptile"
trial tactics are based on impermissible "Golden Rule" arguments, such tactics are inconsistent
with Massachusetts’ standard jury instructions on duty and impartiality of a jury, they violate
the Defendants' right to a fair trial, and the relevance of such evidence and arguments is
substantially outweighed by the danger of unfair prejudice to the Defendants, confusion of the
issues, and misleading the jury.
The “Reptile” trial tactics impermissibly encourage the jury to ignor
Massachusetts’ standard jury instructions on the duty element of negligence and
impartiality of the jury
The Court should allow this motion jz /inine because "Reptile" trial tactics run afou! of
Massachusetts’ standard jury instructions on the duty element of a negligence claim, and the duty
of the jury to reach a verdict impartially. The supplemental instructions to the Massachusetts
Superior Court Civil Practice Jury instructions provide guidelines to jurors about how to reach a
verdict impartially. During the course of the upcoming trial, this Court will give a number of
instructions to the jury, which may include these supplemental instructions. In pertinent part,
these instructions read:
(a) Prejudice
Your verdict must be based solely on the evidence developed at
trial . it must be clear to you that once you let prejudice or
sympathy, or fear or bias interfere with your thinking. there is a
risk that you will not arrive at a true and just verdict...
, See. Mass. Super. Civ. Prac. Jury Instruction § 1.2.2 (2014) (emphasis in original). The above-
quoted supplemental instruction establishes that jurors are to render a verdict based on the
evidence presented during the trial. The Reptile trial tactics are premised on eliciting fear or
fervor in jurors of future harm if a verdict is not entered against the defendants. Such arguments
would be a blatant appeal to the jury to discount § 1.2.2 and persuade the jury to substitute
sound, impartial judgment with fear or passion. Because Reptile trial tactics risk causing the jury
to ignore § 1.2.2, the Court should preclude the Plaintiff
and his counsel from using such tactics
at trial.
The Defendants’ Due Process rights will be infringed should the Plaintiff resort to
« “Reptile” trial strategies
—eptile” trial strategies
The Defendant's right to a fair trial includes his right to a trial by a fair and impartial
jury. Commonwealth v. Figueroa, 451 Mass. 566, 569 (2008). Any argument that appeals to the
personal safety or community fears of the jury, would violation Massachusetts law, because it
would deprive the Defendant of the right to a fair trial. Plaintiff's counsel may be apt to make
hypothetical arguments against the Defendants that appeal to hypothetical community
sentiments regarding personal and public safety standards. The purpose of the jury is to
determine whether the Defendant is liable to the Plaintiff; not whether the Defendant is a
liability to hypothetical patients. Any argument that the Plaintiff's counsel makes about personal
safety, community safety or public safety goes beyond the scope of what the jury should decide.
The probative value of any evidence of personal safety, community safety, or public safety
ules is outweighed by the danger of unfair prejudice, confusing the issues, and misleading
the jury
Evidence is relevant in Massachusetts if "it has any tendency to make a fact more or less
probable than it would be without the evidence and . . . the fact is of consequence in determining
the action." Mass. G. Evid. 401. “Irrelevant evidence is not admissible" in Massachusetts. Mass.
G. Evid. 402, In addition, "[t]he court may also exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time. or needlessly presenting
cumulative evidence, Mass. G. Evid. 403.
In this instance, any argument the Plaintiff makes regarding personal safety, community
safety, or public safety rules is only marginally relevant, if at all, to the core legal issues raised in
this case. The legal issues to be addressed by the jury include: (I) what is the applicable standard
of care; (2) did the Defendant’s breach the applicable standard of care owed to Plaintiff; (3) was
the Defendant’s breach a proximate cause of injury to the Plaintiff; and (4) whether Plaintiff
suffered actual injury. While patient safety may be a concern, questions as to whether the
Defendant violated any "safety" rules, “needlessly endangered” the lives of any patient, or could
have provided a safer course of treatment to the Plaintiff do not address the question as to
whether the Defendant breached the applicable standard of care and therefore will not assist the
jury in making a factual determination of any issue more or less probable.
The marginal relevance of evidence that appeals to community fear or safety concerns
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, and
misleading the jury. Use of Reptile trial tactics will seek to have the jurors decide a case not
on the evidence presented at trial, but rather on the potential harms and losses that could
have occurred within the greater community, which includes the jurors and his or her family
members. By rendering jurors into that subjective position of the plaintiff or the victim, all
impartiality toward the evidence is lost. Jurors will no longer be able to base their verdict on the
evidence of the case because they will be too concerned with fear and worry for themselves, their
family members, and other members of the community, The jurors will equate compensating the
Plaintiff as curing any potential dangers to themselves and to their community. To have those
fears predominating over the trial is detrimental to the Defendants, and precludes them from
having a fair trial. Whereas the probative value of Reptile trial tactics is far outweighed by the
danger of unfair prejudice, confusion of the issues, and misleading the jury, the Court should
enter an order precluding the Plaintiff
and his counsel from using any such tactics at trial.
WHEREFORE, for the foregoing reasons, the Defendants, Cloe F.Shelton, M.D. and
Anthony Caravello, M.D. respectfully request this Court enter an order preventing the Plaintiff
from referencing or presenting evidence relating to the jury's sense of public duty, as outlined
above.
Respectfully submitted,
Defendants, Cloe F. Shelton, M.D. and
Anthony Caravello, M.D.,
By counsel,
Bloke PF
Christopher Lavoie (BBO No. 638276)
Allyson Hammerstedt (BBO No. 678792)
Dunn & Dunn, P.C.
11 Beacon Street #1100
Boston, MA 02108
(617) 523-2950
lavoie@dunnanddunn.com
ahammerstedt@dunnanddunn.com
DATED: 11/22/23
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COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. SUPERIOR COURT C.A. NO: 1872CV00606 . DOUGLAS A. CAPAK, PERSONAL, REPRESENTATIVE OF THE ESTATE OF DAWN MARIE ROBERTS, Plaintiff. Vv, CLOE F. SHELTON, M.D., ANTHONY CARAVELLO, M.D., SHARON MAHONEY, M.D., SUSAN ANDEREGG, M.D., CAPE COD HOSPITAL, TRISTAN MEDICAL P.C., G. CURTIS BARRY, M.D., P.C., AND CAPE OBSTETRICS & GYNECOLOGY P.C., Defendants, MOTION IN LIMINE OF DEFENDANTS, CLOE F. SHELTON, M.D. AND ANTHONY CARAVELLO, M.D. TO PRECLUDE EVIDENCE/ REFERENCES BY COUNSEL APPEALING TO JURY’S SENSE OF PUBLIC DUTY NOW COME the Defendants, Cloe F. Shelton, M.D. and Anthony Caravello, M.D. in the above-referenced matter, and, for the reasons sct forth below, move this Court to enter an order precluding the Plaintiff and Plaintiff's lay witnesses or experts from offering any testimony, opinions or evidence, and the Plaintiff's attorneys from making references or statements (at any stage, from voir dire through closing arguments), aimed to appeal to the jury’s sense of public duty in protecting the public from the potential of being harmed by the Defendants or the Defendants’ standards of practice. In support of this motion, the Defendants state that any such evidence, reference to, or statement about a need to protect the public from the Defendants or their standards of practice would be unduly prejudicial to the Defendants because it suggests an improper definition of the applicable standard of care which is contrary to long-established Massachusetts law, would serve only to inflame the jury, and therefore would deprive the Defendant of a fair trial. INTRODUCTION This is a medical malpractice wrongful death case in which the Plaintiff alleges the Defendants were negligent in their delay in the diagnosis and treatment of adrenal cancer, resulting in Dawn Marie Roberts’ death on July 6, 2017. Defendants, Cloe Shelton, M.D. and Anthony Caravello, M.D., maintain that the care they provided to Dawn Marie Roberts was at all times appropriate and complied with the standard of care. Defendants further state that nothing ' they did or allegedly did not do caused or contributed to Dawn Marie Roberts’ death or any injury alleged by the Plaintiff. Each of the Defendants assert that they were not negligent in any respect regarding the care and treatment they provided to Dawn Marie Roberts. “Reptile” Trial Tactics Counsel may attempt to elicit evidence or make statements about public safety, community safety, or rules for public safety. or about providing the “best possible” care. “maximum safety,” or obtaining “as much information as you can,” or avoiding “needlessly endangering” patients (or similar phrases), and argue that the jury has the power to improve the safety of themselves, their family members or their community by rendering a verdict that will reduce, eliminate or deter the Defendants supposedly "dangerous" or "unsafe" conduct. Such a strategy—often called the “Reptile trial tactics--are being taught in plaintiffs’ trial advocacy courses and are based on a book by David Ball and Don Keenan entitled "Reptile: The 2009 Manual of the Plaintiffs Revolution." (hereinafter "Keenan, et al.”), Ruskin, W. A., “Plaintiffs’ Bar Embraces Reptile Strategy and Defense Bar Responds.” LexisNexis® Legal Newsroom Litigation. As reported, Keenan et al. contend that jurors, like all humans, have brains consisting of three parts which include the reptilian complex. See, David C. Marshall, "Lizards and Snakes in the Courtroom: What every defense attorney needs to know about the emerging plaintiffs Reptile strategy," For the Defense, 4/2013, p. 47. The reptilian brain, the authors argue, instinctively overpowers the cognitive and emotional parts of the brain when core life functions, such as breathing and hunger, become threatened. Id. The authors contend that "[w]hen the Reptile sees a survival danger, even a small one, she protects her genes by impelling the juror to protect himself and the community." Id. The authors further posit that reducing danger in the community facilitates survival, which awakens the reptilian part of a human's brain and overcomes logical reasoning. Id., p. 48. To do this, the authors urge, “plaintiff's lawyers must create ‘safety rules’ and demonstrate the danger to the community in order to appeal to the reptilian part of each juror’s brain,” and “frame cases so it appears every defendant chose to violate a safety rule.” Id., p. 48 (emphasis in original). The Reptile strategy involves convincing the jury that the alleged negligence affects not only the plaintiff but presents a danger to the community, and that the jury can make the community (including themselves) safer by rendering a plaintiff's verdict. Id., pp. 47-48. The proper measure of damages is “not the amount of harm actually caused in a case, but instead the maximum harm that a defendant’s conduct could have caused.” Id., p. 48. The "Reptile" strategy, however, creates a false legal standard by which the care at issue in a medical malpractice case is to be judged. Rather than assisting the jury in understanding the baseline standard of care followed in the medical community and what that standard requires in a particular case, reptilian questioning and arguments lure the jury into focusing on community “safety rules" that are a higher or different standard than the standard of care as established by the medical community. Keenan et al. argue in their book that, because everyone agrees with the general rule that "doctors are never allowed to needlessly endanger their patients," the Reptile strategy “frames medical malpractice cases so that any medical decision other than the absolute safest choice for a patient constitutes negligence.” Id., p. 51. See, Keenan et al., pp. 62-63, “It boils the entire case down to the simple theory that ‘the only allowable choice is the safest available choice’ because any other choice needlessly endangers a patient.” Keenan et al.. pp. 62- 63 (“the only allowable choice is the safest available choice.”) Such an argument is contrary to Massachusetts law. A legal issue in this medical malpractice lawsuit is not to whether any defendant chose the “safest” treatment course, or “maximized” patient safety, or ordered all “possible” tests, consultations or treatment choices, or gathered “as much information” as he or she could have, or whether their treatment decisions ensure safety for the community. This case is about whether the Defendants breached the standard of care during their treatment of the Plaintiff's decedent, and if not, whether that caused any legal harm to the Plaintiff --nothing less and nothing more. Rather than simply addressing the concept of Reptile theory, it seems more appropriate to give the Court concrete examples of the Reptile strategy in a medical malpractice case. The impetus for this Motion is the fact that the Plaintiffs’ bar has repeatedly attempted to utilize Reptile tactics appealing to a “public duty” in other cases in Massachusetts and other states, and to prevent the same at the upcoming trial. In Friedli vy. Grover, MD., First Judicial District Court of Utah, Civil Action No. 060102383 (2013) --a medical malpractice case where no motion in limine was filed, the plaintiffs’ counsel's overarching theme was safety rules and community safety, in contrast to the actual issue of standard of care. The strategy employed by plaintiff's counsel in the Friedli v. Grover case in 2013 is textbook "Reptile." The following are excerpts from the trial transcript case which illustrate the Reptile tactics in action: Voir Dire Arguments by Plaintiffs' counsel: "Safety rules are there so the person may not get injured, but then you also said other people might not get injured. That's the reason for safety rules.” “How many people have safety rules in their jobs? Nurse to be, there's all kind of safety rutes. I bet you have had classes on safety rules, haven't you?" "Would you agree or disagree with this statement: When it comes to following rules — and we have said that medicine has rules, safety rules — when it comes to following rules, no one in any profession should needlessly endanger others? Does anyone disagree with that statement? If you do, I would like to know.” "Do you agree or disagree that if someone, regardless of the profession, needlessly endangers others by choosing to ignore safety rules and someone suffers harm or losses, they suffer an injury, that person that chooses to ignore it should be accountable for those actions?" See, Friedli v. Grover, Plaintiff's Voir Dire. Closing Arguments by Plaintiffs' Counsel: "Did you know that all of the laws that we have — to the very essence of the law, court laws, is called safety for the masses. Safety for the masses. That's the summation of everything we have." "It's safety for our community, for our acquaintances, for our friends, for our families. That's the. essence of the law as you are going to apply it." "The point is, you may have been under the mistaken impression that this case was just about that family, and it's not. It is not. This case and your decisions are much more than that.” "I think you understood in voir dire when I asked you, 'Do you guys agree in the concept that full justice in the right case can benefit all in the community because it can shape how things happen in the future? Do you remember us discussing that? And you saying, 'Yeah, I get how that can. " "This case, they are representatives of the community. This case affects so much more than the Friedli family. And | think you have gotten an idea of that as we have been going through it." "You have the right to change actions of how people will approach a similar situation in the future, be it this doctor or any doctor." "Do you realize enforcing the rules against a rule-breaker makes everyone safe? And this is a safety rules case, ladies and gentlemen. Make no mistake about it. It may be applying in the medical community, but it is a safety case, and you have seen everyone agree with that." "It's safety rules — you know, safety rules in the medical community, safety rules in any other profession are there for the same reasons. They are there because they are there to protect people. Safety rules are there to be followed. If safety rules aren't followed, people get hurt or they die, That's the simple truth of that. Think of the tragedies that will happen if we the community say, 'It's okay to ignore safety rules." “Well, the law, by putting you in this box and being in the jury, said, ‘This time, this time you have got that power.’ You have the power to do the right thing for the community. And I'm going to trust you, that your, that you're going to come up collectively —" MR OWENS: "I renew my objection. This isn’t about the community." THE COURT: "Mr. Worel, if you would, just move on from that area, please. Thank you." “And I’m going to ask you when you are finished and you do that and you come up with a verdict, | want you — it to be a verdict that you can lean back and you can — held your head high and you can be proud of And it would be verdict that will send a message that we want quality medical care.” See, Friedli vy. Grover, Plaintiff's Closing Argument. The Defendants seek to preclude Plaintiff's counsel from making similar statements in this trial. DISCUSSION “Reptile” trial tactics are based on improper “Golden Rule” arguments because they ncourage the jury to step into the shoes of the litigant and lose their impartiality The Court should preclude any arguments regarding personal safety, community safety, or public safety rules, because they are impermissible Golden Rule arguments, where the jurors are asked to put themselves in the place of a party, witness or victim. Mass. G. Evid. § 403 states: “Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, being unnecessarily time consuming, or needless presentation of cumulative evidence.” See Gath v. M/A-Com, Inc., 440 Mass. 482, 488 (2003) (trial court has broad discretion to make evidentiary rulings, including the power to exclude evidence that would unfairly prejudice an opposing party). Similarly, Mass. R. Evid. Section | 1 13(b)(3) prohibits such references in closing argument: The following are not permissible in a closing argument: (A) to misstate the evidence, to refer to facts not in evidence (including excluded matters), to use evidence for a purpose other than the limited purpose for which it was admitted, or to suggest inferences not fairly based on the evidence; (B) to state a personal opinion about the credibility of a witness, the evidence, or the ultimate issue of guilt or liability; (C) to_appeal to the jurors’ emotions, passions. prejudices, or sympathies; (D) to ask the jurors to put themselves in the position of any person involved in the case, See Mass. R. Evid. Section 1113(b)(3) emphasis added, Subsection (D) of Mass. R. Evid. Section 1113(b)(3) is derived from Commonwealth _v. Finstein, 426 Mass. 200, 205 (1997) where the Court addressed “Golden Rule” arguments. The “Golden Rule” contemplates arguments from counsel where the jurors are asked to put themselves in the place of a party, witness or victim. Id., Mass. R. Evid. Section 1113 Notes citing Commonwealth v. Bizanowicz. 459 Mass. 400, 420 (2011); Commonwealth v. Valentin, 420 Mass. 263, 274 (1995). See also, Spray-Rite Serv. Corp. v. Monsanto Co., 684 F.2d 1226, 1246 (7th Cir. 1982), affd, 465 U.S. 752, 79 L. Ed. 2d 775, 104 S. Ct. 1464 (1984) ("Spray-Rite's counsel should have refrained from asking the jury to put itself in Spray-Rite's position when it decided how much to award Spray- Rite"). Massachusetts courts have condemned Golden Rule arguments. See Commonwealth v. McLaughlin, 431 Mass. 506, 510, 729 N.E.2d 252 (2000) (a prosecutor cannot appeal to the jurors' sympathies and fears by asking them to imagine themselves in the place of the victim); Commonwealth y. Harris, 11 Mass. App. Ct. 165, 176, 415 N.E.2d 216 (1981) (the invitation to the jury to put themselves in the position of the victim is usually improper); Commonwealth v. Sevieri, 21 Mass. App. Ct. 745, 755, 490 N.E.2d 481 (1986) (error where jury was told to approach their deliberations 'from the victim's point of view’); Commonwealth v. Jordan, 49 Mass. App. Ct, 802, 816, 733 N.E.2d 147 (2000) ("[t]he prosecutor may have exceeded the bounds of appropriate argument when he stated, ‘You must, to some extent, put yourselves, as people who use their common sense. into the shoes of a sister who is in a public courtroom testifying about the deeds of her very own brother"); Commonwealth y. Finstein, 426 Mass. 200. 205 n.1 (1997) (endorsing trial court judge's issuance of guidelines to counsel before closing argument for purpose of preventing use of Golden Rule arguments and appeals to the jury's sympathy and emotions); Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 995 N.E.2d 797, 2013 Mass. App. LEXIS 141, *18, 2013 WL 4824466 (Mass. App. Ct. 2013) (Agnes, J.) (Concurring) (iterating that the guidelines provided by the trial judge to counsel before closing argument in Commonwealth v. Finstein should be given to trial counsel in every trial as a matter of routine); Wu_v. Lauriat, 30 Mass. L. Rptr. 320, 2012 Mass. Super LEXIS 243. at *23-24 (Mass. Super. Aug. 27, 2012) (in context of attorney-conducted voir dire, the "[c}ourt will not allow questions designed to circumvent the rules on proper argument and pleading, such as appeals that jurors consider the impact of verdicts upon themselves individually, that they place themselves in the shows of one party or the other, or that they should ‘send a message.” Likewise, the Golden Rule argument has been “universally condemned because it encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on evidence.” Granfield y. CSX Transp.. Inc., 597 F. 3d 474, 491 (Irst Cir. 2010), quoting Forrestral . Magendantz, 848 F.2d 303, 309 n.40 (Ist Cir. 1988). See also, Spray-Rite Serv. Corp. 684 F.2d at 1246; Ivy, 585 F.2d at 741.! "Reptile" trial tactics are a form of long-prohibited “Golden Rule” tactics. “Reptile” trial tactics seek to have the jurors decide a case not on the evidence presented at trial, but rather on the potential harms and losses that could have occurred within the greater community, which includes the jurors and his or her family members. This is accomplished by repeatedly invoking concepts of societal obligation, self-preservation and community safety throughout jury voir dire, examination of witnesses, and opening and closing statements. Accordingly, while the Plaintiff and his counsel may not directly or specifically ask jurors to put themselves in the shoes of the Plaintiff and his decedent, presenting arguments regarding "personal safety" or “community safety" has the same intent and mischief—that is to have jurors base their verdict not on the evidence of the case but rather on the fear that they or other members of their family or 1 For other cases condemning Golden Rule arguments, see Edwards v. City of Philadelphia, 860 F.2d 568, 574 n.6 (3d. Cir. 1988): Lovett ex rel. Lovett v. Union Pacific R. Co., 201 F.3d 1074, 1083 (8th Cir. 2000); Dole v. USA Waste Servs. In 100 F.3d 1384, 1388 (8th Cir, 1996): Blevin: essna Aircraft Co,, 728 F.2d 1275, 1580 (10th Cir. 1984); Caudle v. District of Columbia, 707 F.3d 354, 357 (D.C. Cir, 2013); Chicago & N. W. Ry, v. Kelly, 8 Cir. 1936, 84 F.2d 569, 576; F, W, Woolworth Co. v. Wilson, 5 Cir. 1934, 74 F.2d 439, 442-43; Klein v. Herring, Fla.Dist.CLApp.1977, 347 So.2d 681, 682; Delaware Olds. Inc. v. Dixon, Del.1976, 367 A.2d 178, 179; Colgan v, Raymond, 1966, 275 Minn. 219, 146 N.W.2d 530, 535; Miku v, Olmen. Fla.Dist.CLApp.1966, 193 So.2d 17, 18, Cert, denied, Fla.1967, 201 So,2d 232; Copial Dairies, Inc. v. Addkison, 1963, 247 Miss. 327, 153 So,2d 689, 694; Roth v. Jelden, 1962, 80 S.D. 40, 118 N.W.2d 20, 25; Phillips v. Fulghum, 1962, 203 Va. 543, 125 S.E.2d 835, 839; Brant y. Wabash R.R, 1961, 31 111.App.2d 337, 176 N.E.2d 13, 14, Rev'd on other grounds, 1962, 24 111.2d 541. 182 N.E.2d 181; Jackson v. Southwestem Pub. Serv. Co. 1960, 66 N.M.'458, 349 P.2d 1029, 1040; Faught v. Washam, Mo.1959, 329 S.W.2d 588, 602; Red Top Cab Co. v. Cap ps, Tex.Civ.App.1954, 270 S.W.2d 273, 275 n.2, community could be injured and to have them view compensating the Plaintiffs as diminishing danger to themselves and the community, Reptile trial tactics all culminate in an express or implied request that the jury depart from its role of impartiality and decide the case on basis of personal interest—protecting themselves, i.e., "personal safety" and protecting people in their family and community, i.e., "community safety.” Therefore, this plaintiffs strategy violates the Golden Rule by indirectly calling upon the jurors to place themselves within the shoes of the plaintiff or in the shoes of the victim—a position that detracts from the objectivity of the trial. Thus, any arguments regarding personal safety, community safety, or public safety rules should be precluded from the trial in this action because they are based on impermissible Golden Rule arguments, The Court should preclude the Plaintiff from employing Reptile Public Duty Tactics before Voir Dire There is a growing trend whereby the courts recognize that “Reptile” trial tactics are improper and should be precluded upon a defendant's motion in limine. See Palmer v. Virgini: Orthopaedic. P.C., No. CL14000665-00. 2015 WL 5311575 (Va. Cir. Ct. June 19, 2015) granting "[mJotion in limine regarding use of Reptile Theory Tactics, Golden Rule references, or other "safety rules"); Glover v. State, No. 10-2-35124-8, 2015 WL 7355966 (Wash. Super. Ct. September 9, 2015) (granting motion to “[p]reclude any attempt by plaintiffs counsel to utilize the Reptile Strategy"); Harper v. Tveter, 2015 U.S. Dist. LEXIS 114650, *3 (D. Utah Aug. 27, 2015) ("Golden rule argument or other types of argument such as ‘Reptile brain‘ will be subject to the general prohibition against impassioning or inflaming the jury"): Pracht v. Saga Freight Logistics, LLC, 2015 U.S. Dist. LEXIS 149775, *4 (W.D.N.C. Oct. 30, 2015) ("Defendants' motion [in limine] to prohibit any Golden Rule argument and/or Reptile Theory questions and argument is GRANTED"). Massachusetts trial courts are part of that trend. See, ¢.g.. Spartichino v. Lighthouse of Ri evere, Inc., Suffolk Superior Court No. 12-2458-D (6/9/2016) (Leighton, J.); Zeoli v. Senior Residential _Care/Kingston. Inc., Plymouth Superior Court (5/31/2016)(Sullivan, J.)(by agreement); Galvin v. Zimmer. M.D., Suffolk Superior Court No. 10884CV03462 (4/21/2016); Gomez y. Town of Little Compton, Bristol Superior Court No. 1273CV00431. The Court should follow this trend and preclude the Plaintiff. Plaintiff's counsel and Plaintiffs witnesses from making any argument, comment or reference to and presenting any evidence as to personal safety, community safety. or public safety rules because such "Reptile" trial tactics are based on impermissible "Golden Rule" arguments, such tactics are inconsistent with Massachusetts’ standard jury instructions on duty and impartiality of a jury, they violate the Defendants' right to a fair trial, and the relevance of such evidence and arguments is substantially outweighed by the danger of unfair prejudice to the Defendants, confusion of the issues, and misleading the jury. The “Reptile” trial tactics impermissibly encourage the jury to ignor Massachusetts’ standard jury instructions on the duty element of negligence and impartiality of the jury The Court should allow this motion jz /inine because "Reptile" trial tactics run afou! of Massachusetts’ standard jury instructions on the duty element of a negligence claim, and the duty of the jury to reach a verdict impartially. The supplemental instructions to the Massachusetts Superior Court Civil Practice Jury instructions provide guidelines to jurors about how to reach a verdict impartially. During the course of the upcoming trial, this Court will give a number of instructions to the jury, which may include these supplemental instructions. In pertinent part, these instructions read: (a) Prejudice Your verdict must be based solely on the evidence developed at trial . it must be clear to you that once you let prejudice or sympathy, or fear or bias interfere with your thinking. there is a risk that you will not arrive at a true and just verdict... , See. Mass. Super. Civ. Prac. Jury Instruction § 1.2.2 (2014) (emphasis in original). The above- quoted supplemental instruction establishes that jurors are to render a verdict based on the evidence presented during the trial. The Reptile trial tactics are premised on eliciting fear or fervor in jurors of future harm if a verdict is not entered against the defendants. Such arguments would be a blatant appeal to the jury to discount § 1.2.2 and persuade the jury to substitute sound, impartial judgment with fear or passion. Because Reptile trial tactics risk causing the jury to ignore § 1.2.2, the Court should preclude the Plaintiff and his counsel from using such tactics at trial. The Defendants’ Due Process rights will be infringed should the Plaintiff resort to « “Reptile” trial strategies —eptile” trial strategies The Defendant's right to a fair trial includes his right to a trial by a fair and impartial jury. Commonwealth v. Figueroa, 451 Mass. 566, 569 (2008). Any argument that appeals to the personal safety or community fears of the jury, would violation Massachusetts law, because it would deprive the Defendant of the right to a fair trial. Plaintiff's counsel may be apt to make hypothetical arguments against the Defendants that appeal to hypothetical community sentiments regarding personal and public safety standards. The purpose of the jury is to determine whether the Defendant is liable to the Plaintiff; not whether the Defendant is a liability to hypothetical patients. Any argument that the Plaintiff's counsel makes about personal safety, community safety or public safety goes beyond the scope of what the jury should decide. The probative value of any evidence of personal safety, community safety, or public safety ules is outweighed by the danger of unfair prejudice, confusing the issues, and misleading the jury Evidence is relevant in Massachusetts if "it has any tendency to make a fact more or less probable than it would be without the evidence and . . . the fact is of consequence in determining the action." Mass. G. Evid. 401. “Irrelevant evidence is not admissible" in Massachusetts. Mass. G. Evid. 402, In addition, "[t]he court may also exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time. or needlessly presenting cumulative evidence, Mass. G. Evid. 403. In this instance, any argument the Plaintiff makes regarding personal safety, community safety, or public safety rules is only marginally relevant, if at all, to the core legal issues raised in this case. The legal issues to be addressed by the jury include: (I) what is the applicable standard of care; (2) did the Defendant’s breach the applicable standard of care owed to Plaintiff; (3) was the Defendant’s breach a proximate cause of injury to the Plaintiff; and (4) whether Plaintiff suffered actual injury. While patient safety may be a concern, questions as to whether the Defendant violated any "safety" rules, “needlessly endangered” the lives of any patient, or could have provided a safer course of treatment to the Plaintiff do not address the question as to whether the Defendant breached the applicable standard of care and therefore will not assist the jury in making a factual determination of any issue more or less probable. The marginal relevance of evidence that appeals to community fear or safety concerns is substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury. Use of Reptile trial tactics will seek to have the jurors decide a case not on the evidence presented at trial, but rather on the potential harms and losses that could have occurred within the greater community, which includes the jurors and his or her family members. By rendering jurors into that subjective position of the plaintiff or the victim, all impartiality toward the evidence is lost. Jurors will no longer be able to base their verdict on the evidence of the case because they will be too concerned with fear and worry for themselves, their family members, and other members of the community, The jurors will equate compensating the Plaintiff as curing any potential dangers to themselves and to their community. To have those fears predominating over the trial is detrimental to the Defendants, and precludes them from having a fair trial. Whereas the probative value of Reptile trial tactics is far outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury, the Court should enter an order precluding the Plaintiff and his counsel from using any such tactics at trial. WHEREFORE, for the foregoing reasons, the Defendants, Cloe F.Shelton, M.D. and Anthony Caravello, M.D. respectfully request this Court enter an order preventing the Plaintiff from referencing or presenting evidence relating to the jury's sense of public duty, as outlined above. Respectfully submitted, Defendants, Cloe F. Shelton, M.D. and Anthony Caravello, M.D., By counsel, Bloke PF Christopher Lavoie (BBO No. 638276) Allyson Hammerstedt (BBO No. 678792) Dunn & Dunn, P.C. 11 Beacon Street #1100 Boston, MA 02108 (617) 523-2950 lavoie@dunnanddunn.com ahammerstedt@dunnanddunn.com DATED: 11/22/23