Background
Joyce Barber sued orthopedic surgeon Dr. Lawrence Morawa and Ascension Providence Hospital for medical malpractice and negligence arising from a hip replacement surgery performed in October 2020. After a five-day trial, the jury found Dr. Morawa not negligent. A post-verdict poll revealed that five of the six jurors — sufficient for a civil verdict under MCL 600.1352 and MCR 2.514(A) — agreed with the verdict, while the foreperson did not.
Barber moved for a new trial or an evidentiary hearing, alleging juror misconduct: that one juror consulted his mother (a hip surgery patient) about x-rays, that another juror conducted independent online research about a surgical screw’s size, that the foreperson was prevented from reviewing exhibits before voting, and that alternate jurors remained in the jury room during deliberations. The motion rested almost entirely on off-the-record statements from the post-verdict discussion. The affidavits submitted to support it were not notarized. The trial court denied the motion, crediting defendant’s account of the post-verdict discussion over plaintiff’s.
Throughout the litigation, plaintiff’s counsel repeatedly submitted fabricated legal citations generated by artificial intelligence. In the trial court, counsel cited two nonexistent criminal cases — People v. Stubblefield and People v. Royster — as well as a fabricated citation in a motion for a protective order. On appeal, counsel cited a third nonexistent case, Meyer v. Walker, and cited real cases for propositions they did not support. After defendant identified these deficiencies on appeal, counsel filed a “Notice of Correction” that itself attributed quotations to cases that did not contain them — and was also prepared with AI assistance.
The Court’s Holding
The Court of Appeals affirmed the trial court’s denial of plaintiff’s motion for a new trial or evidentiary hearing. The court held that the motion was procedurally defective because the facts supporting it did not appear in the record and the supporting affidavits were unnotarized and therefore invalid under Sherry v. East Suburban Football League, 292 Mich App 23 (2011). Plaintiff’s attempt to invoke the Uniform Unsworn Foreign Declarations Act failed because that statute expressly excludes declarations made within the United States. Even if the affidavits had been valid, plaintiff failed to show that any alleged misconduct materially affected her substantial rights — a required showing under MCR 2.611. Her reliance on the criminal-law presumption of prejudice from Remmer v. United States was misplaced because Remmer expressly applies only to criminal proceedings.
On the sanctions issue, the court held that counsel’s repeated submission of fabricated and unsupported authority violated the duty of reasonable inquiry required by MCR 1.109(E)(5) and rendered the appeal vexatious under MCR 7.216(C)(1)(b). The court joined federal courts in holding that reliance on AI-generated citations without adequate verification constitutes a sanctionable failure of reasonable inquiry, regardless of the attorney’s subjective good faith. The court noted that counsel had been alerted twice before filing the appellate brief that his filings contained fabricated authority, yet the brief on appeal contained another fabricated citation and multiple unsupported ones. The subsequent Notice of Correction compounded the problem rather than curing it.
The court remanded to the trial court to hold an evidentiary hearing and determine the actual damages and reasonable attorney fees defendant incurred as a result of the vexatious appeal. Those sanctions are to be paid personally by plaintiff’s counsel. The court also directed the Clerk to forward the opinion to the Attorney Grievance Commission for possible investigation.
Key Takeaways
- Unnotarized affidavits are invalid under Michigan court rules and cannot support a motion for a new trial based on facts outside the record; the Uniform Unsworn Foreign Declarations Act does not fill that gap for declarations made within the United States.
- The criminal-law presumption of prejudice for juror misconduct (Remmer) does not apply in civil medical malpractice actions; plaintiffs must affirmatively show that alleged misconduct materially affected their substantial rights.
- Michigan now joins federal courts in holding that submitting AI-hallucinated citations violates the duty of reasonable inquiry under MCR 1.109(E)(5), and that an attorney’s subjective good faith is irrelevant to that objective standard.
- Monetary sanctions for a vexatious appeal under MCR 7.216(C)(2) may be imposed personally on counsel and must be determined at an evidentiary hearing on remand; the court also referred counsel to the Attorney Grievance Commission.
Why It Matters
This is the first published Michigan appellate decision to squarely address sanctions for AI-generated (“hallucinated”) legal citations. By grounding its analysis in MCR 1.109(E)(5) — Michigan’s analog to Federal Rule of Civil Procedure 11 — the court establishes that the existing reasonable-inquiry standard governs AI-assisted research failures without any need for new rules. The decision signals that Michigan courts will treat repeated reliance on unverified AI output the same way federal courts have: as a professional responsibility violation carrying mandatory financial consequences.
The opinion also illustrates a compounding-failure pattern that practitioners should heed: sanctions exposure grew with each filing because counsel was on notice of the problem yet continued to use AI without verification. The referral to the Attorney Grievance Commission raises the stakes beyond monetary sanctions to potential disciplinary action, underscoring that the duty to verify cited authority is non-delegable — to an associate, a paralegal, or an algorithm.