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Advances in Social Sciences Research Journal – Vol. 10, No. 7
Publication Date: July 25, 2023
DOI:10.14738/assrj.107.15075.
Hunter, R. J., & Shannon, J. H. (2023). How a Simple Tort Claim is Transformed into an Exposition of the Implications of Artificial
Intelligence on the American Legal System. Advances in Social Sciences Research Journal, 10(7). 142-170.
Services for Science and Education – United Kingdom
How a Simple Tort Claim is Transformed into an Exposition of the
Implications of Artificial Intelligence on the American Legal
System
Richard J. Hunter
Stillman School of Business, Seton Hall University,
Collins College of Business, University of Tulsa
John H. Shannon
Stillman School of Business, Seton Hall University
ABSTRACT
This article discusses issues relating to artificial intelligence (AI) in the context of a
lawsuit essentially alleging negligence. The case, however, quickly turned to a
discussion relating to how the plaintiff’s attorneys, with the aid of ChatGPT,
fabricated as series of precedents that would have permitted their case to go
forward on the basis of the application of a statute of limitations found in the
Montreal Convention. The article discusses AI as it applies to the Rules of
Professional Conduct and Rule 11 of the Federal Rule of Civil Procedure relating to
the duties and responsibilities of attorneys. All of the quotations and factual
representations are taken from the Case Documentations.
Keywords: Artificial intelligence (AI), Montreal Convention, sanctions, Chat GPT, 12(b)(6)
motion, fabricated research, prompts
Artificial Intelligence: Field of computer science and engineering practices for intelligence
demonstrated by machines and intelligent agents.
INTRODUCTION
In an opinion and order imposing sanctions on Attorneys Peter LoDuca and Steven A. Schwartz,
and the firm of Levidow, Levidow & Oberman, dated June 22, 2023 (Case 1:22-cv-01461-PKC,
Document 54), United State District Court Judge P. Kevin Castel wrote:
“In researching and drafting court submissions, good lawyers appropriately obtain assistance
from junior lawyers, law students, contract lawyers, legal encyclopedias and databases such as
Westlaw and LexisNexis. Technological advances are commonplace and there is nothing
inherently improper about using a reliable artificial intelligence tool for assistance. But existing
rules impose a gatekeeping role on attorneys to ensure the accuracy of their filings.”
In imposing sanctions in a case captioned “Roberto Mata v. Avianca, Inc.,” Judge Castel decided
that the Respondents had “abandoned their responsibilities when they submitted non-existent
judicial opinions with fake quotes and citations created by the artificial intelligence tool
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Hunter, R. J., & Shannon, J. H. (2023). How a Simple Tort Claim is Transformed into an Exposition of the Implications of Artificial Intelligence on the
American Legal System. Advances in Social Sciences Research Journal, 10(7). 142-170.
URL: http://dx.doi.org/10.14738/assrj.107.15075
ChatGPT, then continued to stand by the fake opinions after judicial orders called their existence
into question” (see Felzmann, Villaronga, Lutz, & Tamo-Larrieux, 2019).
The context of this ruling involves one of the most interesting and important areas of law
involving artificial intelligence (AI), and how reliance upon the use of AI had a major impact on
the resolution of this now-infamous American court case.
2. Case Synopsis: How a Simple Tort Claim is Transformed into an Exposition of the Implications
of Artificial Intelligence on the American Legal System (see Case 1:22-cv-01461-PKC, document
55)
In 2019, a New York law firm, employing associates Steven A. Schwartz and Peter LoDuca,
brought suit against the Colombian airline Avianca on behalf of Roberto Mata, who claimed he
was injured on a flight to John F. Kennedy International Airport in New York City due to
Avianca’s “carelessness, recklessness and negligence.” The airline moved to dismiss the
Complaint based on Federal Rule 12(b)(6) (see Marrero, 2018), stating that Mata’s claim is
“time-barred under the Convention for the Unification of Certain Rules Relating to International
Carriage by Air (1999) (DeLeon & Eyskens, 2001), more commonly known as the Montreal
Convention, which had been built upon the earlier “Warsaw Convention” (1929), which had
been promulgated to “reform the Warsaw Convention so as to harmonize the hodgepodge of
supplementary amendments and intercarrier agreements of which the Warsaw Convention
system of liability consists” (see Mata v. Avianca, Inc., 2023, quoting Cohen v. American Airlines,
Inc., 2921, p. 244).
Mata’s attorneys filed a 10-page brief arguing why the suit should proceed. The document cited
more than half a dozen court decisions, including Varghese v. China Southern Airlines, Martinez
v. Delta Airlines, Miller v. United Airlines, Shaboon v. Egyptair, Peterson v. Iran Air, and Estate of
Durden v. KLM. Unfortunately for the plaintiff’s attorneys, the Clerk of the United States Court
of Appeals for the Eleventh Circuit, in response to an inquiry by Judge Castel, “confirmed that
there has been no such case before the Eleventh Circuit with a party named Vargese or Varghese
at any time since 2010.” It also appeared that the non-existent Varghese/Vargese decision
contained numerous “internal citations and quotes, which in turn, are non-existent.” In
addition, the other five decisions submitted by plaintiff’s counsel contained similar deficiencies
and “appeared to be fake as well.”
Interestingly, the research had not actually been prepared by attorney Peter LoDuca, but by his
colleague at the same law firm, Steven A Schwartz, who had been a practicing attorney for more
than 30 years. In his written statement, Schwartz clarified that LoDuca had not been part of the
research and had no knowledge of how it had been carried out.
Nevertheless, LoDuca, who had replaced Schwartz as attorney-of-record, was ordered to show
cause why he ought not to be sanctioned for “citing non-existent cases” to the Court in the
Affirmation of Opposition to defendant’s motion for dismissal and by “submitting to the Court
copies of the non-existent judicial opinions.” What was the cause of this controversy? It
appeared that ChatGPT had, in fact, fabricated all of them.
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Advances in Social Sciences Research Journal (ASSRJ) Vol. 10, Issue 7, July-2023
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A SUMMARY OF THE UNDERLYING CASE (SEE CASE 1:22-CV-01461-PKC, DOCUMENT 55)
Plaintiff Roberto Mata claimed that on August 27 or 28, 2019, he was severely injured when a
metal service tray struck his left knee during an overnight flight from El Salvador to John F.
Kennedy Airport in New York. Defendant Avianca, Inc. moved to dismiss the Complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (see Hamabe, 1993), asserting
that Mata’s claim was time-barred under the Convention for the Unification of Certain Rules
Relating to International Carriage by Air, done at Montreal, Canada (1999), more commonly
known as the Montreal Convention (Oliveto, 2022).
The Montreal Convention is a multilateral treaty that “applies to all international carriage of
persons, baggage or cargo performed by an aircraft . . ..” The Convention states in relevant part
that a “carrier is liable for damage sustained in case of . . . bodily injury of a passenger upon
condition only that the accident which caused the . . . injury took place on board the aircraft . . .
.” Interestingly, while the term ‘accident’ was not defined in the Montreal Convention, the
Supreme Court has interpreted the substantively identical provision of the Warsaw Convention
as ‘an unexpected or unusual event or happening that is external to the passenger.’” Both the
United States and El Salvador are signatories to the Montreal Convention and are therefore
bound by its terms. As such, Mata’s allegations about his injuries fall within the Convention’s
use of the word “accident.”
As such, the timeliness of Mata’s Claim is governed by the Montreal Convention and not the Civil
Practice Law and Rules (CPLR) Section 214(5), which provides, in effect, for a three-year statute
of limitations. Under the Convention, “[t]he right to damages shall be extinguished if an action
is not brought within a period of two years, reckoned from the date of arrival at the destination,
or from the date on which the aircraft ought to have arrived, or from the date on which the
carriage stopped” (Montreal Convention, ch. III, art. 35, Section 1l; see also Stewart, 2015). An
action brought more than two years after the date of arrival is properly dismissed on a Rule
12(b)(6) motion.
Avianca argued that Mata had commenced this action after expiration of the two-year period
prescribed by the Montreal Convention and thus was “time-barred.”
As the record indicated, on August 27, 2019, Mata was traveling on Avianca Flight 670 from El
Salvador to JFK Airport. Mata claimed that sometime between 11 p.m. and 1 a.m., an employee
of Avianca struck him in the left knee with a metal serving cart, resulting in injury. Mata
attributed his injury to Avianca’s “carelessness, recklessness and negligence.” Mata described
the injuries as “grievous and painful,” including unspecified damage to his nervous system that
required medical treatment and which prevented him from working.
On July 20, 2020, Mata had filed a previous complaint with similar allegations against Avianca,
but subsequently learned that Avianca was in bankruptcy proceedings and subject to the
automatic bankruptcy stay under 11 U.S.C. Section 362(a) (see generally Murphy, 1986). Upon
learning in January 2022 that Avianca had emerged from bankruptcy proceedings, Mata
voluntarily dismissed that prior complaint, then brought the current complaint on February 2,
2022, in the New York Supreme Court, New York County, a state court.
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Hunter, R. J., & Shannon, J. H. (2023). How a Simple Tort Claim is Transformed into an Exposition of the Implications of Artificial Intelligence on the
American Legal System. Advances in Social Sciences Research Journal, 10(7). 142-170.
URL: http://dx.doi.org/10.14738/assrj.107.15075
Avianca filed a Notice of Removal on February 22, 2022. The Notice of Removal asserted that
the United States District Court for the Southern District of New York had federal question
jurisdiction because Mata’s claim arose under the Montreal Convention, an international
agreement (see generally Schwartz, 2022).
Later, attorneys for Avianca would file a motion to dismiss the entire matter under Rule
12(b)(6), discussed below.
The 12(b)(6) Motion
Reiser (2016) writes that Rule 12(b)(6) provides that a motion to dismiss a complaint may be
filed for “failure to state a claim upon which relief can be granted.” The purpose of the Rule is to
permit a court to dismiss actions that are “fatally flawed” in their legal premise and which are
destined to fail, sparing the litigants (and the court) “the burdens of unnecessary pretrial and
trial activity” (Advanced Cardiovascular Sys., Inc. v. SciMed Life Sys., 1993), and presumably,
expense, as well.
Hamabe (1993, p. 204) writes that Rule 12(b)(6) may ... serve the functions of important issue
identification and some screening of unmeritorious or insufficient claims or defenses.
“The function of Rule 12(b)(6) can be the disposition of certain cases as follows: i) those which
state no legal theory whatsoever, including frivolous cases... ; ii) those which state no legal
ground to establish a claim...; iii) those which contain no factual allegation of an essential
element of established legal theory...; iv) those which state only conclusory, general allegations
without any description of the basic nature of the dispute...; or v) those containing highly
improbable allegations of an essential element of established legal theory... .”
Under most circumstances, a Rule 12(b)(6) motion will be filed at the beginning of the case and
replaces filing an answer to the complaint. The motion will be decided based on the standards
that the United States District Court for the district in which a complaint was filed and will be
based on the pleadings in the case.
Stone (2023) explains: “A pleading is the name of the formal court documents that the court
requires parties to file at the beginning of a case. Typical pleadings include a statement of
claim and a defense,” which set out the details of the claim or defense that the plaintiff is
making and the facts that underlay that claim or defense. “The purpose of the pleadings is to
identify to the court, and to the other parties, the key issues for determination in the case.” Even
if a court decides that the factual allegations are entitled to an assumption of truth, the facts
must also “plausibly suggest an entitlement to relief” by a plaintiff (Stone, 2023).
To survive a motion to dismiss a complaint under Rule 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face’”
(citing Ashcroft v. Iqbal (2009, p. 678; see also Sirica, 2010; Moore, 2012). The court is required
to examine only the “well-pleaded factual allegations,” if any, “and then determine whether they
plausibly give rise to an entitlement to relief” (Ashcroft v. Iqbal, 2009, p. 679). “Dismissal is
appropriate when ‘it is clear from the face of the complaint, and matters of which the court may
take judicial notice, that the plaintiff's claims are barred as a matter of law’” (citing Parkcentral
Global Hub Ltd. v. Porsche Auto. Holdings SE, 2014).
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The court will accept the truth of all allegations found in the complaint and will “draw all
reasonable inferences in favor of the plaintiff” (Gross v. German Found Indus. Initiative, 2004).
The pleading’s factual content must independently “permit the court to infer more than the
mere possibility of misconduct.”
A Rule 12(b)(6) motion may be based on res judicata (also known as the doctrine of claim
preclusion that bars re-litigating claims previously decided in an earlier action) (Clement,
2016), or, as in the case of Mata v. Avianca, Inc.(2023), when the motion is premised on a statute
of limitations defense (Rycoline Products, Inc. v. CW Unlimited (1997).
In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court may only
consider the complaint, exhibits attached to the complaint, matters of public record, and
“undisputably authentic documents” if the claims are based upon those documents (see PBGC
v. White Consolidated Industries, Inc., 1993). In In re Burlington Coat Factory 1997), the Third
Circuit Court of Appeals noted that a document forms the basis of a claim when it is “integral to
or explicitly relied upon in the complaint” and such a document “may be considered without
converting the motion to dismiss into one for summary judgment.”
Since the facts of the case as evidenced in the Complaint described an “accident” that occurred
between 11 p.m. and 1 a.m. on August 27 or 28, 2019, assuming that Mata’s flight arrived at JFK
Airport in the morning hours of August 28, 2019, Avianca argued that Mata’s claim for damages
became “time barred” on August 28, 2021.
The Core Issue
In opposition to the motion to dismiss, on March 1, 2023, attorney LoDuca filed an “Affirmation
in Opposition” (hereinafter Affirmation) to the motion to dismiss. The Affirmation cited and
quoted from purported judicial decisions that were said to be published in the Federal Reporter,
the Federal Supplement, and Westlaw. Above LoDuca’s signature line, the Affirmation in
Opposition states, “I declare under penalty of perjury that the foregoing is true and correct.”
Although LoDuca signed the Affirmation to Avianca’s 12(b)(6) motion and filed it as required,
he was not its author. It was researched and written by Schwartz. LoDuca reviewed the
affirmation for style, stating, “I was basically looking for a flow, make sure there was nothing
untoward or no large grammatical errors.” Before executing the Affirmation, LoDuca did not
independently review any judicial authorities cited in his Affirmation. There is also no claim or
actual evidence that he made any inquiry of Schwartz as to the nature and extent of Schwartz’s
research or whether Schwartz had found any contrary precedents as required. LoDuca simply
relied on his belief that work produced by Schwartz, a colleague of more than twenty-five years,
would be reliable. There was no claim made by any Respondent in response to the Court’s
Orders to Show Cause, described below, that Schwartz had prior experience with the Montreal
Convention or with bankruptcy stays. Technically, plaintiff’s opposition had been submitted as
an “affirmation” and not a memorandum of law—seen as a distinction without a difference” in
terms of its legal effect. The Local Civil Rules of this District require that “the cases and other
authorities relied upon” in opposition to a motion be set forth in a memorandum of law.
“An affirmation is a creature of New York state practice that is akin to a declaration under
penalty of perjury.” Schwartz has stated that “my practice has always been exclusively in state
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Hunter, R. J., & Shannon, J. H. (2023). How a Simple Tort Claim is Transformed into an Exposition of the Implications of Artificial Intelligence on the
American Legal System. Advances in Social Sciences Research Journal, 10(7). 142-170.
URL: http://dx.doi.org/10.14738/assrj.107.15075
court . . .” and that he had attempted “to research a federal bankruptcy issue with which he was
completely unfamiliar.”
The Affirmation filed by LoDuca argued that Mata’s claim should be governed by Civil Practice
Law and Rules (CPLR) 214(5), which establishes a three-year limitations period for filing
negligence claims. However, Cohen v. American Airlines, Inc. (2021), had rejected the argument
that state tort law can supplant or supersede the provisions of the Montreal Convention relating
to the time period for filing a claim. The Cohen court observed that “courts have consistently
held that the Warsaw and Montreal Conventions preempt state law and provide the sole avenue
for damages claims that fall within the scope of the Conventions’ provisions.”
The Affirmation filed by LoDuca, however, cited certain authorities that purportedly held that
state courts have concurrent jurisdiction with federal courts over Montreal Convention claims.
LoDuca argued that the Convention’s two-year time bar was tolled while Avianca was operating
under the automatic bankruptcy stay. In support of the plaintiff’s position that there was a
tolling of the statute of limitation under the Montreal Convention by reason of a bankruptcy
stay, the plaintiff’s submission cited a decision of the United States Court of Appeals for the
Eleventh Circuit, Varghese v China South Airlines Ltd (2019), bolstering its position that
dismissal was not appropriate.
Recall that Mata had filed an earlier complaint against Avianca on or about July 28, 2020. On
November 20, 2020, Mata’s counsel learned for the first time that Avianca had filed for
bankruptcy in May 2020 and was subject to the Bankruptcy Code’s automatic stay. Thus, in
January 2022, when Mata’s counsel learned that Avianca had emerged from bankruptcy, on
January 31, 2022, the parties filed a stipulation of discontinuance of the prior action. Mata then
filed the complaint in this action on February 2, 2022. Mata asserted that the February 2 action
was timely brought because the automatic bankruptcy stay tolled the Montreal Convention’s
limitations period.
Avianca filed a five-page Reply Memorandum on March 15, 2023. It included the following
statement: “Although Plaintiff ostensibly cites to a variety of cases in opposition to this motion,
the undersigned has been unable to locate most of the case law cited in Plaintiff’s Affirmation
in Opposition, and the few cases which the undersigned has been able to locate do not stand for
the propositions for which they are cited.” The reply memorandum asserted that certain cases
cited in the Affirmation in Opposition were in fact non-existent: “Plaintiff does not dispute that
this action is governed by the Montreal Convention, and Plaintiff has not cited any existing
authority holding that the Bankruptcy Code tolls the two-year limitations period or that New
York law supplies the relevant statute of limitations.”
The Reply Memorandum then detailed by name and citation seven purported “decisions” that
Avianca’s counsel could not locate and set them apart with quotation marks to distinguish a
nonexistent case from a real one, even if cited for a proposition for which it did not stand.
Despite the serious nature of Avianca’s allegations. Respondent never sought to withdraw the
March 1, 2023, Affirmation or provide any explanation to the Court of how it could possibly be
that a case purportedly in the Federal Reporter or Federal Supplement could not be found. The
Court conducted its own search for the cited cases but was unable to locate multiple authorities
cited in the Affirmation in Opposition.