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Houston partner Maria Del Puerto “Puertin” Fernandez Sanchez and team had a recent trial win and a victory in the defense against the “Reptile Theory” narrative routinely implemented by plaintiffs’ counsel. The Reptile Theory is a trial strategy that uses fear and anger to make the jury dislike the defendant so strongly that they will award the plaintiff a grossly excessive amount of damages. This case was an excellent use of recent Texas Supreme Court caselaw discovery strategies, pre-trial motions, expert challenges, and theme formulation to narrow in on the reptilian tactics anticipated and offensively combat them through an early admission of liability, an exposure of the psychological manipulation behind gross negligence arguments, and an unveiling of the inherent conflict or self-interest in the world of attorney referred medical treatment.

While this case may not be the beginning of the end for the emotionally charged discovery and trial tactics used by plaintiff’s attorneys to illicit fear- and anger-based verdicts, it does show that by having a clear strategy and focusing on damages, our outstanding legal team at Thompson Coe can expose this emotional manipulation and fight these reptilian tactics.

The Thompson Coe trial team defended their client, an oilfield services company, and its fleet driver, against a cumulative $45 million claim based on attorney driven medical treatment. They challenged injury causation and exposed the bias of Plaintiff’s medical providers, both in their motivation to get paid as contingent Plaintiff experts and in their selective treatment pricing.


The client’s fleet driver fell asleep while driving and veered into oncoming traffic, striking the Plaintiff’s trailer and causing it to completely shear off inducing a loss of control. This driver error was never disputed by the client or the Thompson Coe legal team and the seriousness of fatigued driving and the risks involved were at the top of mind when the client admitted 100 percent liability. Based on bills for a shoulder reconstruction and back surgery and a life care plan including an additional back surgery and a knee surgery, the Plaintiff asked the jury for $15.5 million in actual damages and $30 million in punitive damages. Alternatively, Will and Puertin focused on the injury causation and suggested an award of $250,000 based on Plaintiff’s medical history of similar back and shoulder complaints and injuries.

During a two-week trial in Nueces County, Texas, the jury listened to evidence on aggravated liability by opposing counsel. Aggravated liability typically refers to vehicle accidents in which the driver was not only negligent but behaved in a reckless manner –such as driving under the influence or while distracted. The Thompson Coe legal team acknowledged their client driver had fallen asleep at the wheel and caused the accident, but also emphasized that fatigue is a commonly known danger and the onset of which can be sudden. Therefore, without the driver exhibiting any signs of fatigue on the day of the accident, there was no way for the company to know if he was too tired to drive.

As to the damages, the Thompson Coe legal team explained lien-based medical care and the system of Letters of Protection (LOP) as it relates to medical providers. In cases of lien-based medical care and LOP, the attorney representing the injured party enters into an agreement with the plaintiff’s medical provider that guarantees payment as of result of the future lawsuit or settlement. This type of system can create the potential for bias and challenges to the credibility of medical expenses or treatments. In applying recently authorized discovery strategies following Texas Supreme Court’s finding in In Re Exxon, they were able to explore the financial interests Plaintiff’s medical providers had in the case and reveal the same to the jury.


After hearing all the evidence, the jury found the fleet driver 100% responsible; however, they awarded $0 in damages to the plaintiff, who was seeking more than $45 million. While they found the driver responsible, they did not find that the company had acted with gross negligence. In the end, the jury did not buy the gross negligence arguments and they found Plaintiff’s medical providers unreliable given their financial investment in the outcome of the case.

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