In re Philips Recalled CPAP, Bi-Level PAP, and Mechanical Ventilator Products Liability Litigation (Gravelyn Transfer Order)

What did the court warn about?

No monetary sanction. The Panel stated: "We admonish plaintiff and his counsel for fabricating and misrepresenting legal authorities. This is an abuse of the judicial process, and one which we do not take lightly." It warned that "[a]ny further non-compliant submissions from plaintiff may be stricken or result in additional appropriate corrective action." On the merits, the Panel rejected the plaintiff's arguments about his medical condition, California witnesses, and individualized damages, and transferred Gravelyn to the Western District of Pennsylvania, assigned with that court's consent to Judge Joy Flowers Conti.

Why does In re Philips Recalled CPAP, Bi-Level PAP, and Mechanical Ventilator Products Liability Litigation (Gravelyn Transfer Order) matter for law firms using AI?

The Gravelyn order is a short Panel transfer ruling with an unusual final section. After explaining why a plaintiff with Stage IV lung cancer, California witnesses, and individualized damages still belonged in the Philips CPAP MDL, the Panel said it “must raise an additional issue, given our serious concerns about the integrity of the record in this matter.” Footnote 1 sets out the problems: Xarelto was cited with a reporter citation for a different MDL, and the correct Xarelto decision rejected an argument based on “individualized factual issues”; Eliquis, though correctly cited, created an MDL rather than denying transfer. The plaintiff’s earlier, replaced brief had also cited Bard IVC Filters and Vioxx with citations leading to district court decisions.

On AI, the Panel stated a possibility, not a finding. It said the nature of the misrepresentations “suggests that counsel may have used generative artificial intelligence,” added “though it is possible counsel used some other unreliable source,” and in footnote 2 quoted Reilly v. Connecticut Interlocal Risk Management Agency on AI’s tendency to produce “fictional or hallucinatory citations.” It then wrote that “[r]egardless, plaintiff improperly submitted a brief with false legal representations,” and stated, citing In re Snowflake, that “[p]arties have a duty to ensure that citations are, in fact, real.”

The consequence was an admonishment of “plaintiff and his counsel for fabricating and misrepresenting legal authorities” and a warning that further non-compliant submissions “may be stricken or result in additional appropriate corrective action.” Firms documenting compliance may wish to consider that here the Panel reviewed citations in a brief on a routine transfer question and addressed both client and counsel.