The Rise of AI and Other Changes Abound in the Law: A 2024 Year-End Review
December 09, 2024
By Daniel E. Cummins
CUMMINS LAW
As 2024 goes into the books, here is a look back at the notable trends and decisions in Pennsylvania civil litigation over the past year.
The Advent of AI in Legal Filings
An apparent emerging trend in civil litigation practice involves counsel utilizing artificialintelligence (AI) platforms in order to draft motions and briefs to be filed with the court.
In May of this year, the Pennsylvania Bar Association and the Philadelphia Bar Association issued a joint formal opinion providing advice on the use of artificial intelligence in the legal profession.
The opinion itself notes that it is an "advisory only" opinion, that is, an opinion that is not binding on the Disciplinary Board of the Pennsylvania Supreme Court or any other court.
Generally speaking, the opinion suggests that attorneys be aware of, and competent with, the use of AI in the legal profession. The opinion recommends that all information generated through the use of AI, including citations to legal authority, be checked for accuracy and confirmed for veracity. The opinion also cautions that client confidentiality should be protected at all times when utilizing AI platforms.
In addition to the joint formal opinion by bar associations, the courts of Pennsylvania have also begun to craft parameters for the use of AI in the creation of documents to be filed with the courts.
In the federal courts of Pennsylvania, U.S. District Court Judge Karoline Mehalchick of the Middle District of Pennsylvania crafted and issued what appears to be the first civil practice order on use of generative artificial intelligence to be issued in the commonwealth.
Under this order, Mehalchick requires any party to any litigation pending before her that has utilized AI in preparation of any filing, to include with the filing a certificate of use of generative AI. In that certificate of use of generative AI, the party is required to disclose and certify the following information:
The specific AI tool utilized
Identification of the portions of the filing prepared by the AI program; and
Certification that a person filing the document has checked the accuracy of any portion of the document generated by AI, including all citations and legal authority
In the order, Mehalchick cautioned that failure to comply with this civil practice order could result in sanctions.
At the state court level, the Pennsylvania Supreme Court has created an advisory committee on artificial intelligence in the Pennsylvania courts. That committee was created to propose appropriate statewide rules to provide guidance to counsel on the use of AI with filings in the state court systems.
Rather than utilizing a time consuming committee possibly bound by red tape, one may wonder why the Pennsylvania Supreme Court does not just simply ask an AI platform to craft such rules and then determine if those AI-generated rules meet the satisfaction of the Court.
Regular Use Exclusion Upheld as Valid and Enforceable
Back on Jan. 29, 2024, the Pennsylvania Supreme Court issued its long-awaited, much anticipated decision in the regular use exclusion case of Rush v. Erie Insurance Exchange, 308 A.3d 780, and, in the process, showed moderation with respect to its previous trend of favoring plaintiffs’ causes.
In Rush, much to the surprise of some,the Pennsylvania Supreme Court ruled that, as presented in this case, the regular use exclusion contained in motor vehicle insurance policies did not violate the express language of Pennsylvania's Motor Vehicle Financial Responsibility Law (MVFRL).
The plaintiff in Rush was a police officer who was injured in a motor vehicle accident while driving his police vehicle. The plaintiff recovered the liability limits from the tortfeasor's policy and the UIM limits on the police vehicle. The plaintiff then sought to obtain additional compensation from the Erie Insurance policies that covered his own personal vehicles at home. Erie Insurance relied upon a regular use exclusion contained in the policy to deny coverage on the UIM claim.
Generally speaking, the regular use exclusion is a standard provision in automobile insurance policies that precludes coverage for injuries sustained by an insured who, at the time of the accident, was in a vehicle that the insured did not own but which vehicle, unbeknownst to the insurance company, was regularly available for the insured’s use. The inclusion protects the carrier from having to provide coverage for risks that the insured did not pay a premium for protection against. In other words, the exclusion upholds the all-American principle that you cannot get something (coverage) for nothing.
The Pennsylvania Supreme Court reversed the erroneous decisions of the trial court and the Superior Court in this Rush case and thereby upheld the validity and enforceability of the regular use exclusion. In so ruling, the Supreme Court rejected the plaintiff's unduly expansive argument that UIM coverage must be provided in all circumstances regardless of which vehicle the injured party was located in at the time of the accident. The court noted that, to accept such an argument, would render all insurance policy exclusions invalid.
The Supreme Court also rejected the plaintiff's reliance upon the Pennsylvania Supreme Court's previous decision in Gallagher v. GEICO for the proposition that the regular use exclusion should be eradicated across the board just as the Household Exclusion had been eradicated in Gallagher as allowing for a de facto waiver of stacked coverage when the MVFRL requires carriers to secure a written waiver of coverage from its insureds.
In this Rush case, the Pennsylvania Supreme Court once again confirmed that it had previously clarified and narrowly limited its erroneously overly broad opinion in Gallagher case in the court’s more recent decision in the case of Erie Insurance Exchange v. Mione.
The Supreme Court in Rush specifically held that the regular use exclusion remained a permissible limitation of UIM coverage within the parameters of the MVFRL. The court confirmed that, "with decades of reliance by insureds and insurers, and no justification to allow this court to depart from decades of established law," the court would maintain its continued course on this issue of upholding the validity of the regular use exclusion "unless and until the General Assembly or the Insurance Department acts in a way that would suggest we do otherwise."
Service of Process
In the spring of this past year, the Pennsylvania Supreme Court also provided its latest guidance on the issue of proper and timely service of process in civil litigation matters.
In the case of Ferraro v. Patterson-Erie, 313 A.3d 987 (Pa. April 25, 2024), the Pennsylvania Supreme Court addressed service of process issues in a slip and fall case. According to the opinion, the plaintiff slipped and fell at a Burger King and, thereafter, filed a negligence lawsuit against the operators of the restaurant.
The plaintiff filed her complaint within the two-year statute of limitations. However, the plaintiff encountered difficulties with serving the complaint on the defendants due to issues with the Sheriff’s unsuccessful attempts at service during the COVID-19 pandemic.
The plaintiff eventually served the complaint on the defendant through the separate means of a private process server. Such service was not in accordance with the mandates of the Pennsylvania Rules of Civil Procedure, which requires service on in-state defendants by a Sheriff’s Department. As such, the plaintiff later reinstated the complaint and then served it through the Sheriff. However, this service by the Sheriff occurred after the statute of limitations period had elapsed.
The defendants argued that the action was barred by the statute of limitations because the plaintiff did not make a good faith effort to serve them in a timely manner.
The Pennsylvania Supreme Court held that the plaintiff had failed to meet her burden of demonstrating that she made a good faith effort in diligently and timely serving process on the defendants. Accordingly, the Supreme Court found that the defendants’ informal receipt of actual notice was irrelevant to the analysis.
The court emphasized that the plaintiffs are not permitted to opt out of the Rules of Civil Procedure regarding service in order to give notice of the commencement of a lawsuit by way of informal means. As such, the plaintiff’s case was dismissed due to the lack of timely, proper service of the lawsuit upon the defendant.
Justice David Wecht's dissenting opinion in this case provides an excellent and thorough overview of the current jurisprudence in Pennsylvania on the requirements relative to proper service of process and the uncertainties related thereto. Wecht also proposed ways to provide clarity on this area of law going forward.
Punitive and Treble Damages
In the case of Dwyer v. Ameriprise Financial, 313 A.3d 969 (Pa. April 25, 2024), the Pennsylvania Supreme Court, showing that it still had a penchant for favoring plaintiffs’ causes, held that a trial court may, under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL), award both punitive damages and treble damages.
This case involved plaintiffs who sued Ameriprise Financial for negligent and fraudulent misrepresentation relative to a life insurance policy. The plaintiffs alleged that the carrier misrepresented to them that their quarterly premium payments would remain the same for the life of the policy. In reality, if the plaintiff’s premium payment had remained the same, the policy allegedly would have lapsed for insufficient funds in 2020.
The trial court found Ameriprise guilty of violating Pennsylvania Unfair Trade Practices and Consumer Protection Law and awarded compensatory damages. The trial court declined to award treble damages under the UTPCPL under a rationale that such damages would be duplicative of the punitive damages that were awarded by the jury on the common law claims. The Pennsylvania Superior Court had affirmed this decision.
Going up to the appellate ladder to the Pennsylvania Supreme Court, that court reversed and held that treble damages under the UTPCPL are to be considered a separate, additional remedy available to the plaintiffs and must be considered by the trial court without regard to a punitive damages award that may be awarded in the same case on related common law claims.
The Pennsylvania Supreme Court noted that nullifying the availability of a statutory award because of an entitlement to a common law award was not a permissible exercise of discretion by the trial court. Accordingly, the Pennsylvania Supreme Court reversed the lower court’s decision and remanded the case back down to the trial court for reconsideration of the appropriate amount of damages under the UTPCPL.
Plaintiff Must Answer Questions at IME or DME
Another recurring issue that typically arises in personal injury civil litigation matters is the extent to which a plaintiff may refuse to answer questions posed to the plaintiff by a doctor at a medical examination arranged by the defense in accordance with Pa.R.C.P. 4010.
Pennsylvania Rule of Civil Procedure sets out the parameters for examinations in personal injury matters arranged by the defense which are typically called independent medical examinations (IMEs) by the defense and defense medical examinations (DMEs) by plaintiffs counsel.
In the Monroe County case of Nelson v. Wilkins, No. 1381-CV-2022 (C.P. Monroe Co. Jan. 26, 2024 C. Daniel Higgins, Jr., J.) from earlier this year, the court granted a defendant’s motion to compel a plaintiff to provide information to the IME doctor during an independent medical examination of a plaintiff in a case arising out of a motor vehicle accident.
According to this decision, the plaintiff had appeared for an examination but refused to answer the IME doctor’s questions, asserting that the questions were allegedly outside the scope of Pa. R.C.P. 4010 about the occurrence of the accident that led to the plaintiff’s alleged injuries.
Judge C. Daniel Higgins Jr. of Monroe County noted that Rule 4010 provides that the examiner is limited to inquiring into matters regarding the facts of liability that were germane to the issue of damages. Rule 4010 itself provides that “the examiner's oral interrogation of the person to be examined shall be limited to matters specifically relevant to the scope of the examination.”
The court found that the plaintiff’s attorney’s position that the IME doctor should not ask questions regarding the history of the accident that could relate to liability and the plaintiff’s argument that the doctor could avoid the problem by reviewing depositions, police reports, Interrogatories, and other discovery materials “was untenable” because it placed too high of a burden on the examining doctor.
In granting the defendant’s motion to compel in this regard, the court ordered that the plaintiff was required to cooperate and answer the questions of the examining doctor. The court noted that, as set forth under Rule 4010, the plaintiff could have her counsel or other representative present during the examination.
Use of Exhibits in Opening Statements
A common dispute at civil litigation trials is the extent to which one party or the other may utilize demonstrative exhibits during the course of opening statements. Typically, trial court judges have punted on the issues and have stated that such exhibits will only be permitted during opening statements if the attorneys have agreed on the same.
In what appears to be the first detailed opinion of its kind, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the recurring issue of whether a party may utilize demonstrative exhibits during an opening statement in the case of Webb v. Scranton Quincy Hospital, No. 2021-CV-4073 (Lacka. Co. March 8, 2024 Nealon, J.). In this decision, Nealon provided a thorough analysis of the law applicable to the reference to admissible evidence during the course of an opening statement.
In this medical malpractice case, the plaintiff filed a motion in limine seeking leave of court to utilize admissible excerpts of videotaped depositions of certain witnesses during the course of the opening Statement to be presented by plaintiff’s counsel.
As confirmed by Nealon's opinion, there is a dearth of precedent on this common issue.
After reviewing the sparse law on the issue, Nealon noted that the reference and showing of admissible evidence during the course of an opening statement can be permitted by a trial court judge under the broad discretionary powers of judges to run trials that occur before them.
On the basis of that general law, Nealon ruled that, since the video deposition testimony of the parties, their officers, directors, managing agents, any designated witnesses, and any nonparty medical witnesses and expert witnesses “may be used against any party” at trial “for any purpose” pursuant to Pa. R.C.P. 4017.1(g) and 4020(a)(2) and (5), then “any part or all” of those video depositions of those types of witnesses may be shown to the jury during an Opening Statement to the extent that those excerpts from the video depositions would be admissible at the trial.
The court otherwise ordered the plaintiff to identify which portions of what video deposition they intended to utilize during the course of the opening statement so that the opposing party could argue any reserved evidentiary objections to those excerpts so that any required rulings on admissibility could be made prior to the opening statement.
Hills and Ridges Doctrine
The Hills and Ridges Doctrine is a doctrine that applies in wintry slip and fall cases and generally provides that a landowner cannot be held liable unless the plaintiff can establish that the owner had allowed ice or snow on the property to unreasonably accumulate over time into ridges and elevations.
Over the past year, one court addressed the issue of whether the Hills and Ridges Doctrine should be applied where a plaintiff fell in an area that was covered by an awning or a canopy.
In the case of Johnson v. Harris-Dent, No. 23-00,097 (C.P. Lyc. Co. July 8, 2024 Linhardt, J.), Judge Eric R. Linhardt denied a motion for summary judgment in a slip and fall case that occurred when the plaintiff allegedly slipped on alleged black ice that was allegedly located on the top step of a homeowner's porch that was covered by an awning.
The court denied the motion based upon issues of fact. In this case, Linhardt relied upon the case of Heasley v. Carter Lumber, 843 A.2d 1274 (Pa. Super. 2004), for the proposition that the Hills and Ridges Doctrine is not applicable where the incident occurred in an area that was covered by an awning.
Lindhart noted that, in the Heasley case, the plaintiff’s slip and fall occurred while the plaintiff was walking in a shed that had three walls, with the fourth side open. The shed had an overhead roof with an awning extending from it. In that case, the Pennsylvania Superior Court held that the Hills and Ridges Doctrine did not apply to a fall occurring inside an outdoor storage shed.
In the Heasley case, the court reasoned that the Hills and Ridges Doctrine was intended to protect property owners from an undue burden of ensuring that open spaces such as sidewalks and parking lots are constantly kept clear of snow and ice. The court in Heasley found that the defendant did not present anything that demonstrated that keeping a structure, which is only partially open to the elements, free of snow and ice presented any burden at all, let alone an undue burden on its owners. The Heasley court also indicated that the extension of the Hills and Ridges doctrine to structures and/or other partially opened areas would raise many difficult questions. As such, the Pennsylvania Superior Court in the Heasley case declined to extend the application of the Hills and Ridges Doctrine to an incident that occurred in a structure covered by a roof and/or an awning.
Linhardt applied the rationale of the Heasley case to this Johnson case in which the plaintiff alleged that he fell on black ice on the top step of the defendant’s covered porch which step was allegedly covered by an awning. Linhardt noted that, under the current status of Pennsylvania law, if that allegation was proven, then it appeared that the Hills and Ridges Doctrine would not be applicable to this litigation. The court therefore found that genuine issues of material fact must be resolved by the jury in this regard and that, as such, the defendant’s motion for summary judgment was denied by the court.
Certificates of Merit in Medical Malpractice Cases
Over the past year, there were a couple of decisions of note that came down regarding certificates of merit that are required in medical malpractice cases in Pennsylvania.
In the case of Rightmyer v. Philly Pregnancy Center, No. 23-1925 (E.D. Pa. March 1, 2024 Quinones Alejandro, J.), the court granted a defendant’s motion to dismiss after confirming that the certificate of merit requirements for medical malpractice claims under Pennsylvania state law also applied in federal court proceedings. In this case, the court also held that a nurse is not qualified to execute a required Pennsylvania certificate of merit in a medical malpractice action against a medical doctor.
In the separate case of Berk v. Rothman Institute Orthopedic Foundation, No. 23-1437 (E.D. Pa. March 28, 2024 Murphy, J.), the court addressed the extent to which a plaintiff could attempt to compel one of the plaintiff’s own doctors to write a certificate of merit to enable the plaintiff to pursue a claim against another medical provider in a medical malpractice action.
In Berk, the plaintiff sued his own doctors who declined to give him certificates of merit to allow the plaintiff to pursue a medical malpractice claim against other doctors. The plaintiff sought to compel his own doctors to provide him with the necessary certificates of merit.
The court granted the doctors' motion to dismiss after finding that treating physicians do not owe their patients any fiduciary duty to provide them with a Certificate of Merit that would allow the patient to sue other doctors for medical malpractice. The rationale for this decision was, in part, the general rule that potential experts may not be compelled to issue expert opinions against their will.
The court otherwise found that there is no valid cause of action for an alleged intentional deprivation of legal recourse for an alleged injury.
2024 National Champion
As this year comes to an end, here’s one last tip of the hat to the 2024 Abington Heights Mock Trial Team from Clarks Summit, Pennsylvania (near Scranton) for their incredible run during which they became the first team from Pennsylvania in the 40-year history of the competition to win the National High School Mock Trial Championship, essentially beating out over 2,300 teams from all across the nation.
Looking Ahead
In terms of looking ahead for anticipated notable decisions in 2025, keep an eye out for a decision from the Pennsylvania Supreme Court on the parameters of the doctrine of forum non conveniens in the case of Tranter v. Z & D Tour. Also keep an eye out for the Pennsylvania Supreme Court to possibly issue statewide rules governing the use of AI platforms in the drafting of court filings. Here’s to hoping that 2025 brings a year of zealous but civil litigation.
Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@cumminslaw.net.
Reprinted with permission from the July 26, 2024 edition of the Pennsylvania Law Weekly (c) 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.
