Berk v. Choy

    Issues

    Does a state law that requires an expert affidavit to successfully bring a lawsuit in some cases also apply in federal court? 

    Oral argument:
    October 06, 2025
    Court below:
    United States Court of Appeals for the Third Circuit

     

    This case asks the Supreme Court to determine whether a Delaware law that imposes an extra pleading requirement for medical malpractice complaints applies in federal cases. Berk maintains that the Delaware law is incompatible with numerous Federal Rules of Civil Procedure and is procedural, and therefore cannot be applied in federal courts under the Erie doctrine. Respondents contend that the affidavit of merit simply screens the merits of a suit without altering pleadings, which avoids any conflicts with the Federal Rules, is specifically contemplated by Rule 11(a), and should be interpreted as a substantive rule under Erie. The Third Circuit held that there was no conflict with the Federal Rules and that the Delaware law is substantive. This created a circuit split contradicting other appellate courts that refused to apply similar laws from other states. This case will potentially affect forum‑shopping incentives, plaintiffs’ access to courts, and healthcare litigation exposure.

    Questions as Framed for the Court by the Parties

    Whether a state law providing that a complaint must be dismissed unless it is accompanied by an expert affidavit may be applied in federal court.

    Facts

    Harold Berk (“Berk”), the petitioner, filed a medical malpractice lawsuit against Dr. Wilson Choy (“Choy”), Beebe Medical Center (“Beebe”), and Encompass Health Rehabilitation Hospital in the U.S. District Court of Delaware, alleging that he received negligent care for an injured ankle.  Since the amount in question was over $75,000, and both parties were domiciled in different states, the federal court had jurisdiction. However, petitioner did not file the affidavit of merit (“AOM”) typically required under Delaware Law to bring healthcare tort claims.

    Delaware’s AOM statute (“Delaware Law”) maintains that healthcare negligence lawsuits cannot be filed in the state without an affidavit certified by a qualified expert witness. Delaware Law requires this affidavit establish a reasonable ground for believing that the defendant(s) committed healthcare negligence. Furthermore, the affidavit must include the expert’s professional opinion determining whether an applicable standard of care was breached by the defendants and if the breach was the proximate cause of the injuries. Delaware’s AOM requirements for an expert witness include medical licensure, recent engagement in patient treatment, and/or medical education within three years of the alleged negligent act, as well as board certification in the same or similar medical specialty as the defendant. Because Berk failed to file an affidavit of merit, the district court dismissed his claims. The district court stated that the Third Circuit had already held that certificate of merit statutes were state substantive law and therefore applicable in federal courts sitting in diversity.

    Berk appealed to the United States Court of Appeals for the Third Circuit which considered whether the Delaware Law conflicted with the Federal Rules of Civil Procedure (“Federal Rules”), and, if it did not, “whether a federal court must apply the [Delaware] statute as substantive state law.” The Third Circuit held that the Delaware statute did not conflict with the Federal Rules because it did not impose procedural requirements that conflicted with the Federal Rules regarding either pleadings, attorney conduct, or the sufficiency of a complaint’s factual allegations.   The Third Circuit also held that Delaware’s statute was substantive law for two reasons. First, because the law was outcome determinative, failing to comply with the Delaware statute results in a dismissal of the case. Second, applying the statute would promote the twin aims of Erie: (1) preventing forum shopping; and (2) promoting equitable administration of justice. Thus, the Third Circuit affirmed the district court’s ruling.  

    Berk petitioned the Supreme Court of the United States for a writ of certiorari challenging all of the Third Circuit’s findings.  The Supreme Court granted certiorari on March 10, 2025.

    Analysis

    WHETHER A CONFLICT EXISTS WITH FEDERAL LAW

    Harold Berk (“Berk”) argues that if a state law and a Federal Rule “answer the same question,” the state law and the Federal Rule conflict, and the Federal Rule applies in federal court.  Berk claims that the Federal Rules should not be interpreted in a way to avoid creating conflict, but should be read based on “what they plainly say.” Berk posits that Federal Rules 8 and 9 and the Delaware Law answer the same question: “what must a complaint include to state a claim for relief?” Berk argues that Federal Rule 8 sets out the sole requirements for filing a complaint, except in cases where another federal rule specifically adds further conditions. The Delaware Law, Berk maintains, creates a heightened pleading standard that contradicts the standard set forth in Rule 8. Finally, Berk notes that most federal appeals courts have ruled that state affidavit-of-merit laws do not apply in federal court. Berk further argues that other Federal Rules conflict with the Delaware Law. First, Berk argues that Federal Rule 12 sets forth exhaustive grounds for when a complaint can be dismissed “before a responsive pleading is filed” and since the Delaware Law imposes additional requirements for a case to survive dismissal through the complaint stage, then Federal Rule 12 and the Delaware Law conflict.

    Berk also contends that Federal Rule 11 conflicts with the Delaware Law because Federal Rule 11 and the Delaware Law impose competing requirements for whether a pleading needs to be accompanied by an affidavit. Berk argues that since Federal Rule 11(a) states that “a pleading [does not need to be] verified or accompanied by an affidavit,” and the Delaware Law demands the pleading to be accompanied by an affidavit, the Delaware Law and Rule 11 conflict. Berk further argues that Federal Rule 11(a) is referring to Federal Rules and federal statutes when it states that “[u]nless a rule or statute specifically states otherwise” prior to stating that a pleading does not need to be verified or accompanied by complaint.  Berk supports his claim by highlighting the fact that the word “statute” is accompanied by the word “rule,” which when written in the Federal Rules is used to refer to either a federal court rule or another Federal Rule. Berk argues that since the words “rule” and “statute” complement each another in Federal Rule 11(a), the word “statute” only refers to federal statutes.

    Wilson Choy (“Choy”) argues that a state law provision conflicts with a Federal Rule only when the conflict is “direct,” “obvious,” “undeniable,” and “unavoidable.” Choy further contends that a state law conflicts with the Federal Rules only when the state law and Federal Rule are mutually exclusive. Additionally, Choy claims federal courts should read the Federal Rules in a way that avoids conflicts between state law. Beebe Medical Center, Inc. (“Beebe”) further maintains that courts have affirmed that the Federal Rules should be read in a way to avoid variations in outcomes of state and federal litigation, arguing that if there is more than one reasonable interpretation of a rule, it should be read in a way that avoids conflict between state statutes and Federal Rules. 

    Choy claims that the Delaware Law is not a pleading, so it does not conflict with Federal Rule 8 or 9. Choy argues that it does not fit the description of a pleading in Federal Rule 7, is considered “outside the pleadings” under Federal Rule 12(d), and, under the Delaware Civil Rules, an affidavit is not considered a pleading. Beebe argues that the Delaware Law does not conflict with Federal Rule 12, because the Delaware Law is not directed at either of Federal Rule 12’s subjects: how a defendant responds to a complaint and how the contents of a complaint can be insufficient. Beebe contends that Federal Rule 11(a) does allow for the addition of affidavits from state statutes. Beebe argues that this interpretation is reasonable by examining Federal Rule 11 in relation to other Federal Rules, noting that Rule 12(a) specifies only federal statutes, as opposed to statutes generally, may alter the time for serving a pleading. As a result, Beebe contends, since Federal Rule 11 (a) just says “a statute,” it is referring to something broader. Beebe also claims that even if the wording “a statute” is considered ambiguous, Federal Rule 11 should be read to include state statutes to avoid conflicts between the Federal Rules and state law.  

    FEDERAL RULES VALIDITY

    Berk claims that Congress has very broad power to make Federal Rules, and that a Federal Rule will be deemed valid provided the rule regulates something “rationally capable of classification” as procedural. Berk argues that if a Federal Rule regulates how substantive rights are enforced, not the substantive right itself, then the Federal Rule is valid. Berk argues that the Federal Rules 11, 8, 9, and 12 are all valid exercises of Congress’s authority under the Rules Enabling Act. Berk further argues that nothing within these Federal Rules “changes litigants’ substantive rights,” which would make the rule invalid. Berk contends that these rules regulate how substantive rights are enforced, merely specifying what a complaint needs to include to avoid dismissal, and when to file expert disclosures, not people’s substantive rights themselves.

    Beebe claims that Berk fails to consider that whether a Federal Rule is valid is also determined by the way the Federal Rule is applied. Beebe contends that certain Federal Rules were previously deemed invalid because they effectively modified the substantive rights of the parties in the case. Beebe argues that applying the Federal Rules in the way Berk claims they should be applied would modify substantive rights of people in the case. Beebe contends that here, the Delaware Law is so interconnected with the substantive rights of parties, including allowing victims to get redress from medical negligence, that it alters substantive rights. Finally, Beebe maintains that the Federal Rules should not be interpreted the way Berk argues they should to avoid “a potential clash” with the Rules Enabling Act.

    PROCEDURAL VERSUS SUBSTANTIVE

    Berk argues that the Delaware Law is procedural, not substantive. Berk claims that under Erie, federal courts should not be required to apply state laws that change how process is served because these laws have little effect on litigation. Additionally, Berk claims that prior courts have found that other affidavit-of-merit statutes are procedural, and thus should not apply in federal court. Finally, Berk posits that the Delaware Law is not “meant to govern substance,” and laws affecting pleading standards are not a substantive law that would affect forum choices, and therefore should be considered procedural.

    Conversely, Beebe argues that the Delaware Law is substantive because the Delaware Law is outcome determinative. Beebe contends that a law is outcome determinative when barring the enforcement of the law would lead to forum shopping and inequitable administration of laws. Beebe claims that failing to apply the Delaware Law would lead to forum shopping because someone who was unable to secure expert support for their claims and would face dismissal in state court would choose to file in federal court instead, to be able to proceed in their lawsuit. Additionally, failing to apply the Delaware Law would lead to inequitable administration of the law, Beebe maintains, because in a federal court that refused to apply the Delaware Law, a defendant would face unnecessary litigation costs and delays to get baseless lawsuits dismissed, solely because the plaintiff lives in another state.

    Discussion

    IMPACT ON ACCESS TO JUSTICE AND HEALTHCARE SYSTEM

    In support of Berk, the American Association for Justice (“AAJ”) asserts that if the Supreme Court affirms the Delaware Law, the court would create overwhelming roadblocks for potential litigants with medical malpractice claims. This is so, AAJ maintains, because medical malpractice lawsuits already only have a 27% success rate for plaintiffs, while general tort claims have a 50% success rate for plaintiffs. AAJ contends that allowing AOM requirements to continue would make it more difficult for injured patients to receive justice. Public Justice, in support of Berk, contends that affirming Delaware’s AOM requirements would inordinately hurt marginalized populations who do not have the means to maneuver through the intricate requirements imposed by the Delaware Law.  Public Justice argues that patients from vulnerable groups would fall victim to a two-tiered justice system where only well-resourced plaintiffs can access the courts.

    On the other hand, the American Medical Association (“AMA”), in support of Respondents, claims that AOM requirements prevent frivolous lawsuits that would overwhelm the healthcare system. The AMA notes that nearly 65% of medical malpractice claims are ultimately dropped, dismissed, or withdrawn. AMA argues that eliminating AOM laws would force physicians to defend against more unmeritorious claims than they already do. The American Hospital Association (“AHA”) further maintains that AOM requirements are necessary to protect providers from abusive claimsAHA argues that states with AOM requirements demonstrate the effectiveness of these protections, pointing to Ohio’s 50% decline in malpractice claims after Ohio passed AOM laws as evidence that AOM regulations prevent costly litigation.

    HEALTHCARE COSTS AND PATIENT SAFETY IMPLICATIONS

    Public Justice contends that striking down AOM requirements disincentivizes accountability and degrades safety standards. Public Justice argues that accessible malpractice litigation leads to enhanced safety measures, and that upholding restrictive AOM requirements could lead to more harm and deaths. Public Justice maintains that AOMs are necessary because medical errors lead to 163,000 deaths annually, and eliminating this requirement could lead to even more harm or deaths.

    The State of Tennessee et al. (“Tennessee”), in support of Respondents, argue that eliminating AOM requirements would exacerbate healthcare costs by unleashing baseless litigation that wastes the time and resources of the judiciary and medical professionals.  Tennessee contends that overruling the Third Circuit would increase defensive medicine practices, adding between 2.9% and 13% to patient costs. AHA maintains that affirming the Third Circuit would ameliorate healthcare costs. AHA posits that states with AOM laws see average liability costs of $4,228 per provider versus $11,433 in states without AOM laws.  

    FEDERAL COURT SYSTEM AND LEGAL UNIFORMITY

    Public Justice argues that allowing AOM requirements to stand would create chaos in federal courts by forcing judges to navigate numerous different pleading standards. They argue that this would create “satellite litigation” over procedural law instead of substantive issues, undermining the federal rules designed to provide judicial efficiency and fairness. Civil Procedure Professors, in support of Berk, further contend that upholding AOM laws could overwhelm federal courts by forcing judges to interpret different state expert witness qualification standards. Civil Procedure Professors argue that this burden would compromise the federal courts’ ability to give efficient rulings in medical malpractice cases.

    On the other hand, the AMA argues that striking down AOM requirements would undermine state authority over tort law and healthcare regulation. AMA claims that eliminating that power would undermine the authority states have traditionally possessed. Tennessee maintains that affirming the Third Circuit’s ruling on AOM requirements is essential to preserve state sovereignty over healthcare regulation and licensing. Tennessee argues that these areas are core state functions where the federal government should not interfere as it would disrupt the balance between state policy-making and federal procedure.

    Conclusion

    Authors

    Written by:      John Lauro and Evan Pittman

    Edited by:       Garrett Taylor

    Additional Resources