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Petition: Berk v. Choy, No. 24-440 (March 10, 2025)
Decision Below: No. 22-1506, 2023 WL 2770573 (3d Cir. 2024)
Issue: Whether Delaware’s state law requirement that medical malpractice complaints be filed with an affidavit of merit applies in federal court.
Since their adoption in 1938, the Federal Rules of Civil Procedure have formed the bedrock of civil litigation enabling the fair, efficient, timely, and accessible resolution of disputes. These rules standardize procedures in federal courts and are essential to safeguarding litigants’ rights while promoting judicial economy. Among the most important principles underlying the rules is that when a federal court sits in diversity jurisdiction—meaning the case is between citizens of different states—it must apply the substantive law of the state where the court sits, unless there is a federal law that directly applies. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). The line between substance and procedure, however, is not always clear.
At issue in this case is a Delaware state law that requires plaintiffs in medical malpractice lawsuits to file an affidavit of merit (AOM) with their complaint. 18 Del. C. § 6853. An AOM is a document signed by an expert stating that there are reasonable grounds to believe that the defendant has breached the medical standard of care causing proximate harm to the plaintiff. Id. If the AOM is not filed with the complaint, the case must be dismissed. Petitioner Harold Berk, a 78-year-old, initially filed a pro se suit in federal court against his physicians alleging medical negligence under diversity jurisdiction and submitted his medical records as evidence. Berk v. Choy, No. 22-1506, 2023 WL 2770573, at *1 (D. Del. Apr. 4, 2023). The district court dismissed the case citing non-compliance with the AOM requirements of the Delaware statute. Id. at 2. The U.S. Court of Appeals for the Third Circuit affirmed, refusing to find that the state law conflicts with the Federal Rules. Berk v. Choy, No. 23-1620, 2024 WL 3534482, at *4 (3rd Cir. July 11, 2024).
Berk argues that Delaware’s AOM requirement directly conflicts with Rule 8(a), which requires only “a short and plain statement of the claim.” Fed. R. Civ. P. 8(a). Citing the Supreme Court’s ruling in Hanna v. Plummer, 380 U.S. 460 (1965), Berk argues that when a federal rule squarely governs an issue, that rule displaces conflicting state law in federal court. Petition for Writ of Certiorari at 3, Berk v. Choy, 2024 WL 3534482 (No. 24-440). Berk also points out the entrenched circuit split noting six federal appellate courts—the Second, Fourth, Fifth, Sixth, Seventh, and Ninth Circuits—have held that similar expert affidavit statutes cannot be enforced in federal court because they conflict with the Federal Rules. Id. at 10.
Respondent Choy argues that the Delaware statute is substantive in nature and designed to reduce frivolous medical malpractice lawsuits by requiring an early showing of merit. Brief in Opposition at 13-15, Berk v. Choy, 2024 WL 3534482 (No. 24-440). Choy contends that there is no direct conflict with Rule 8 since the statute governs what must accompany a complaint, not the contents of the complaint itself. Id. at 23-24. Additionally, Choy argues that Delaware’s law serves important state policy goals to disincentivize plaintiffs from forum shopping, otherwise known as choosing the jurisdiction most favorable for a litigant’s desired outcome. Id. at 15.
Two amicus briefs support Berk’s challenge to the Third Circuit’s interpretation. One brief argues that Delaware’s AOM statute imposes procedural burdens that directly conflict with the streamlined pleading regime under the Federal Rules and, if upheld, would erode national uniformity. The other brief stresses the practical harms of enforcing AOM statutes in federal courts, including disproportionately burdening vulnerable plaintiffs with upfront expert costs as well as creating litigation over the sufficiency and qualifications of experts before discovery even begins.
What's at Stake
If the Supreme Court upholds the Third Circuit’s ruling, federal courts across the country could become subject to a patchwork of state procedural requirements. For plaintiffs in medical malpractice cases, this would mean that the ability to pursue claims in federal court could hinge on state-level filing requirements, like obtaining costly expert affidavits, before the case can move forward. This precedent could open the door for states to impose similarly onerous hurdles in federal court and deter legitimate claims. This will disproportionately affect litigants with low income who may lack resources to meet these demands. They also may face greater access-to-justice barriers, especially if they lack legal representation. Preserving the ability to file in federal court is essential to toll the statute of limitations while plaintiffs work to secure competent counsel.
Stefan Shaibani, SShaibani@aarp.org
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