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Sidebar - Did a Machine Write Your Report? · Statutes & Stethoscopes | Trial Lessons for Medical Injury Lawyers

• 0:03
  SPEAKER_00: This is that.
• 0:06
  SPEAKER_00: I'm Tracy Libertory.
• 0:08
  SPEAKER_00: Every episode I take one place where medicine and the courtroom collide and break down what actually works.
• 0:14
  SPEAKER_00: You're a clinician who wants this work, or an attorney who needs an expert who can hold up.
• 0:19
  SPEAKER_00: You're in the right place.
• 0:20
  SPEAKER_00: Let's get into it.
• 0:26
  SPEAKER_00: Before we start, a date stamp.
• 0:28
  SPEAKER_00: I'm recording this in October of 2026.
• 0:32
  SPEAKER_00: This is one of the fastest moving areas in the law right now.
• 0:36
  SPEAKER_00: New decisions are coming out every month.
• 0:38
  SPEAKER_00: The Federal Rules Committee is still working on it, and states are adopting their own rules.
• 0:43
  SPEAKER_00: So by the time you hear this, something may have already changed.
• 0:47
  SPEAKER_00: Treat this as a snapshot, not the final word on the subject, and always check the current rules in your court with the retaining attorney.
• 0:56
  SPEAKER_00: Here's why I wanted to do this.
• 0:58
  SPEAKER_00: Experts are getting asked about AI in depositions now, and I have lots of experts asking me questions all the time about using AI.
• 1:06
  SPEAKER_00: Here are some of the questions we're seeing in the courts.
• 1:08
  SPEAKER_00: Did you use AI to write this report?
• 1:11
  SPEAKER_00: Which program?
• 1:12
  SPEAKER_00: What did you type into it?
• 1:14
  SPEAKER_00: What was the prompt?
• 1:15
  SPEAKER_00: In June of 2026, article from experts.com about 40% of the experts on one of their community calls said they had already been asked about AI and a deposition.
• 1:25
  SPEAKER_00: And almost none of them had been prepared for it.
• 1:28
  SPEAKER_00: So let's look at what the courts have actually done already.
• 1:31
  SPEAKER_00: First, the fake citation cases.
• 1:34
  SPEAKER_00: The one everybody cites is Coles versus Ellison, a federal case out of Minnesota from January 2025.
• 1:42
  SPEAKER_00: The expert was Stanford Professor, whose specialty is misinformation and AI.
• 1:48
  SPEAKER_00: He used Chat GPT to help draft his declaration, and it gave him citations to two academic articles that don't exist.
• 1:57
  SPEAKER_00: He didn't check them.
• 1:58
  SPEAKER_00: The judge threw out his declaration and wouldn't let him file a corrected one.
• 2:03
  SPEAKER_00: The court said the fake citations shattered his credibility, and the judge pointed out the irony.
• 2:08
  SPEAKER_00: An expert on the dangers of AI in a case about the dangers of AI, and he fell for it himself.
• 2:16
  SPEAKER_00: But notice what the court did not say.
• 2:19
  SPEAKER_00: It did not say that experts can't use AI.
• 2:22
  SPEAKER_00: It said experts can't stop thinking.
• 2:25
  SPEAKER_00: Then, in August of this year, a federal court in Washington State went further.
• 2:30
  SPEAKER_00: The case is Ladow versus outliers.
• 2:34
  SPEAKER_00: The attorney used AI tools and handed the experts a table of sources, and some of those sources didn't exist.
• 2:41
  SPEAKER_00: The experts put them in their reports without checking.
• 2:44
  SPEAKER_00: The court excluded the causation experts' entire report, even though the bad citations were only in parts of it.
• 2:51
  SPEAKER_00: Without that expert, there was no causation evidence, and the whole case was dismissed with prejudice.
• 2:58
  SPEAKER_00: The attorney was fined, but the case was over.
• 3:02
  SPEAKER_00: So think about that for a minute.
• 3:04
  SPEAKER_00: The expert didn't even create the fake sources.
• 3:07
  SPEAKER_00: Someone else did.
• 3:08
  SPEAKER_00: But the expert's name was on the report.
• 3:11
  SPEAKER_00: So it was the expert's problem.
• 3:13
  SPEAKER_00: It also became the attorney's problem because he was fined and lost his case.
• 3:17
  SPEAKER_00: And it can be small.
• 3:19
  SPEAKER_00: In 2025, in a federal case in California, an expert for an AI company used that company's own chatbot just to format a citation.
• 3:28
  SPEAKER_00: The article was real, but the chatbot changed the title and the authors.
• 3:33
  SPEAKER_00: The court struck that paragraph and said it hurt the credibility of the whole declaration.
• 3:38
  SPEAKER_00: That was formatting, not research, not writing, formatting.
• 3:42
  SPEAKER_00: Second, the cases where the expert couldn't explain the work.
• 3:46
  SPEAKER_00: In a matter of Weber, a New York surrogate court's case from 2024, a damages expert used Microsoft Copilot to cross-check his numbers.
• 3:56
  SPEAKER_00: On the stand, he couldn't say what he typed in, what sources it used, or how it got its answer.
• 4:02
  SPEAKER_00: The judge ran the same question through Copilot on different computers and got different answers each time.
• 4:07
  SPEAKER_00: The court found his testimony unreliable and said that before the AI-generated evidence comes in, the attorney has a duty to disclose it, and it may need a hearing on whether it's reliable before the jury ever sees it.
• 4:21
  SPEAKER_00: Now here's the other side because it matters.
• 4:23
  SPEAKER_00: In Forlito versus Harbor Freight, a federal case in New York from April 2025, an expert wrote his report based on his own decades of experience, and then afterwards asked ChatGPT a question to see if it agreed.
• 4:38
  SPEAKER_00: And it did.
• 4:39
  SPEAKER_00: The defense tried to knock him over for it.
• 4:42
  SPEAKER_00: But the court said no.
• 4:44
  SPEAKER_00: The opinion was his.
• 4:45
  SPEAKER_00: He used the tool to double check, not to think for him.
• 4:49
  SPEAKER_00: So the line the courts are drawing so far is this AI can assist you, it cannot be you.
• 4:57
  SPEAKER_00: Third, and this is the one experts aren't ready for.
• 5:02
  SPEAKER_00: It may be discoverable.
• 5:04
  SPEAKER_00: In May of 2026, a magistrate judge in Connecticut in Conservation Law Foundation versus Shell ordered an expert to turn over the AI prompts she used to sort through the other side's documents.
• 5:18
  SPEAKER_00: The court said an expert's methodology is fair game, and how she narrowed down the documents was part of her methodology.
• 5:27
  SPEAKER_00: That order was put on hold while the district judge reviews it.
• 5:31
  SPEAKER_00: So stay tuned.
• 5:32
  SPEAKER_00: Then, at the end of September, a federal court in Nevada split the difference.
• 5:36
  SPEAKER_00: In Villanuova versus Las Vegas Metropolitan Police Department, the expert had used ChatGPT to summarize cases and helped draft his report.
• 5:46
  SPEAKER_00: The court said the cases summaries ChatGPT gave him had to be turned over because those were information he considered and they could show whether the AI made things up.
• 5:57
  SPEAKER_00: But his prompts and his drafts stayed protected.
• 6:00
  SPEAKER_00: And here's what happens when it goes wrong.
• 6:03
  SPEAKER_00: In a lawsuit over a deadly plant explosion in Houston, an engineering expert hired by 3M used ChatGPT to write his standard of care report.
• 6:12
  SPEAKER_00: His prompts got produced in the middle of his deposition, more than 300 pages of them.
• 6:18
  SPEAKER_00: He had asked ChatGPT to create, quote, an exceptional expert witness report defending the standard of care at 3M and to show 3M was 0% at fault.
• 6:31
  SPEAKER_00: He admitted the report was 85 to 90% ChatGPT.
• 6:35
  SPEAKER_00: He charged more than$90,000 for it, and it went so badly that opposing counsel wanted to call him as their own witness.
• 6:44
  SPEAKER_00: So imagine your prompts being read out loud to a jury.
• 6:47
  SPEAKER_00: If you typed, write me a report saying the nurse breached the standard of care, that's not a methodology.
• 6:53
  SPEAKER_00: That's a conclusion you asked a machine to dress up.
• 6:56
  SPEAKER_00: Fourth, what about formal rules?
• 6:59
  SPEAKER_00: At the federal level, there's a proposed federal rule of evidence, 707, on evidence created by AI.
• 7:05
  SPEAKER_00: It went out for public comment in 2025.
• 7:08
  SPEAKER_00: In May of 2026, the committee sent it back for more work instead of moving it forward, and they're holding a conference on it this month.
• 7:15
  SPEAKER_00: So as of this recording, it is not law.
• 7:18
  SPEAKER_00: Some states have adopted rules that say anyone who uses AI on a court filing has to personally verify every citation.
• 7:26
  SPEAKER_00: Connecticut is one.
• 7:28
  SPEAKER_00: Most of these rules focus on verifying, not on disclosing.
• 7:32
  SPEAKER_00: Some individual judges have their own standing orders, so the rules can change from courtroom to courtroom.
• 7:37
  SPEAKER_00: In Pennsylvania, the Supreme Court adopted an interim policy on AI for judges and court staff that took effect December 2025.
• 7:46
  SPEAKER_00: The Pennsylvania Bar and the Philadelphia Bar issued a joint ethics opinion telling lawyers to check and verify every citation AI gives them.
• 7:55
  SPEAKER_00: And in August of 2026, the Superior Court held in a procedural opinion that made-up citations in a brief are no citations at all.
• 8:04
  SPEAKER_00: So the arguments were waived.
• 8:07
  SPEAKER_00: As of this recording, I'm not aware of a Pennsylvania rule written specifically for expert reports.
• 8:12
  SPEAKER_00: That's exactly why you ask the retaining attorney.
• 8:16
  SPEAKER_00: So what should you actually do?
• 8:18
  SPEAKER_00: Here's my list.
• 8:20
  SPEAKER_00: Number one, never put patient records into a public AI tool.
• 8:26
  SPEAKER_00: Those records are protected health information, and they're usually covered by a protective order in the case.
• 8:32
  SPEAKER_00: Some protective orders now name ChatGPT and other consumer AI tools as off-limits.
• 8:38
  SPEAKER_00: Putting records in there can be a privacy problem and a violation of the court's order.
• 8:42
  SPEAKER_00: Number two, you form the opinion.
• 8:46
  SPEAKER_00: Read the records, apply the standard of care, reach your conclusion, just like we always have.
• 8:52
  SPEAKER_00: If you use a tool at all, use it after.
• 8:55
  SPEAKER_00: The way the expert did in Furlito, never to pick the answer.
• 9:01
  SPEAKER_00: Maybe to proofread, help look at the report, organization, something like that.
• 9:06
  SPEAKER_00: The opinion needs to belong to you.
• 9:09
  SPEAKER_00: Number three, every source in your report, pull and read.
• 9:14
  SPEAKER_00: The actual article, the actual guidelines, the actual policy.
• 9:19
  SPEAKER_00: If you didn't read it, it doesn't go in your report.
• 9:23
  SPEAKER_00: That includes anything the attorney sends you.
• 9:26
  SPEAKER_00: In Delu, the fake sources came from the attorney's side and the experts still paid for it.
• 9:31
  SPEAKER_00: Number four, you have to be able to explain every sentence in your report without the tool.
• 9:37
  SPEAKER_00: If you can't defend it on cross, it shouldn't be in there.
• 9:41
  SPEAKER_00: Number five, assume anything you type into an AI program could end up in front of opposing counsel.
• 9:47
  SPEAKER_00: Write your prompts like they'll be read out loud, because they just might be.
• 9:52
  SPEAKER_00: Number six, talk to the retaining attorney at the start.
• 9:55
  SPEAKER_00: Ask whether the court has an AI order, whether they want you to disclose any AI use and what you need to preserve.
• 10:03
  SPEAKER_00: And number seven, if you're asked in a deposition whether you used AI, tell the truth.
• 10:10
  SPEAKER_00: Every time a tool you used carefully is something you can explain.
• 10:15
  SPEAKER_00: A tool you hid is something that ends your credibility and probably your career.
• 10:20
  SPEAKER_00: So today's takeaway: So far, courts aren't punishing experts for using AI.
• 10:26
  SPEAKER_00: They're punishing experts for letting AI think for them and for putting their name on things that they didn't check.
• 10:33
  SPEAKER_00: Your opinion has to belong to you.
• 10:36
  SPEAKER_00: Your sources have to be real, and you have to be able to explain all of it under oath.
• 10:42
  SPEAKER_00: One more time on the date.
• 10:49
  SPEAKER_00: Decisions are coming out monthly, and the rules may be different by the time you hear this.
• 10:53
  SPEAKER_00: This is educational information, not legal advice.
• 10:56
  SPEAKER_00: Check the current rules in your court and with your retaining attorney.
• 11:01
  SPEAKER_00: This episode of Statutes and Stephenscode.
• 11:04
  SPEAKER_00: If it was useful, follow the show so the next one finds you.
• 11:08
  SPEAKER_00: And if you're a clinician who wants to do this work properly, start with the Expert Report Starter Club at National Expert Academy.com.
• 11:15
  SPEAKER_00: I'm Tracy Liberton.
• 11:17
  SPEAKER_00: I'll see you on the next episode.