The Supreme Court’s decision in Berk v. Choy is a major Erie / Rules Enabling Act case that sharply limits the reach of state “affidavit of merit” requirements in federal diversity actions.
The story behind the case
Harold Berk injured his ankle while visiting Delaware and was treated at a hospital owned by Beebe Medical Center by Dr. Wilson Choy. An X‑ray showed a fracture, and Dr. Choy ordered a protective boot, but hospital staff allegedly forced Berk’s leg into the boot, twisting the fractured ankle. Berk was sent home with instructions to avoid weight‑bearing and return in two weeks. At the follow‑up visit, a second X‑ray revealed not only a fracture but a severely deformed ankle requiring surgery.
Berk sued Beebe and Dr. Choy for medical malpractice under Delaware law in federal court on the basis of diversity jurisdiction. Delaware’s medical malpractice statute requires an “affidavit of merit” from a medical professional to “accompany” the complaint, or a timely motion for a brief extension; without one, the clerk must refuse to file and docket the complaint. Berk obtained an extension but ultimately could not secure an expert affidavit and instead filed medical records under seal; the district court dismissed for failure to comply with Delaware’s statute, and the Third Circuit affirmed, treating the affidavit requirement as substantive and applicable in federal court under Erie.
What the Court actually held
The Supreme Court reversed, holding that Delaware’s affidavit‑of‑merit requirement does not apply in federal court because it conflicts with, and is displaced by, the Federal Rules of Civil Procedure. Writing for the Court, Justice Barrett framed the “disputed question” as whether Berk’s lawsuit may be dismissed because his complaint was not accompanied by an expert affidavit. The Court held that Rule 8 answers that question by specifying what a complaint must contain: “a short and plain statement of the claim showing that the pleader is entitled to relief,” and nothing more by way of evidentiary support at the pleading stage.
By requiring proof (an expert affidavit) at the outset, Delaware’s statute demands more than Rule 8 allows, turning what is supposed to be a pleading standard into an early evidentiary gate. Rule 12(b)(6) and 12(d) reinforce that the only merits‑based dismissal mechanism at the pleading stage is failure to state a claim on the face of the complaint, and courts may not consider “matters outside the pleadings” in deciding such motions. Because Delaware’s statute and Rule 8 give different answers to whether a complaint can be rejected for lack of an affidavit, the Federal Rule controls so long as it is valid under the Rules Enabling Act.
On validity, the Court applied its familiar “really regulates procedure” test: Federal Rules are permissible so long as they govern the “manner and means” of enforcing rights, not the underlying rights or remedies themselves. Rule 8 regulates procedure in that sense, by dictating what a plaintiff must present to the court at the outset, and does not alter substantive rights or remedies. The Court rejected the argument that a Rule’s validity should turn on whether the displaced state rule is “substantive,” reaffirming that the substantive character or policy of the state law “makes no difference” once a valid Federal Rule is on point.
Why Rule 11 and other workarounds failed
Defendants and the lower courts tried several routes to reconcile Delaware law with the Federal Rules, all of which the Court rejected.
- Recasting the statute as mere “procedure” or evidence: The Court refused to accept a re‑written version of Delaware’s law under which the affidavit could be demanded “early in the case” instead of at filing, with relaxed deadlines and without its gatekeeping function. That version would bear little resemblance to the actual statute, and even then, there would be no Federal Rule mechanism to enforce such a free‑floating evidentiary precondition, since defendants conceded it could not be the basis for a Rule 12(b)(6) dismissal and Rule 56 already governs summary judgment after adequate discovery.
- Reliance on the court’s “inherent authority”: The district court’s use of inherent authority to dismiss for lack of an affidavit was incompatible with the structure of the Rules, which already specify when and how a plaintiff can be put to his proof.
- Invoking Rule 11’s affidavit proviso: Rule 11(a) says that, “[u]nless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit.” Defendants argued that Delaware’s statute is such a “statute.” The Court responded that Rule 11 governs the conduct of attorneys and represented or unrepresented parties, and its proviso merely acknowledges that some rules or statutes require parties themselves to verify pleadings or sign affidavits. It does not incorporate state‑law requirements for third‑party expert affidavits into federal practice.
The upshot: No “loophole” in the Federal Rules permits importing Delaware’s affidavit requirement into federal court.
The concurrence’s different path
Justice Jackson concurred in the judgment but grounded the conflict in Rules 3 and 12 rather than Rule 8. She emphasized that Delaware’s statute speaks first to what is required to commence and docket a case at all: no medical malpractice complaint may be “filed” or “docketed” unless accompanied by an affidavit or extension motion, and the clerk must refuse to file otherwise. Federal Rule 3, by contrast, provides that “[a] civil action is commenced by filing a complaint with the court,” full stop.
On her view, § 6853 and Rule 3 answer the same question—what is required to start a civil action—and conflict because the state law adds a precondition beyond filing the complaint. Because Rule 3 is a valid procedural rule under the Rules Enabling Act, it displaces the Delaware commencement requirement in federal court, and that alone suffices to invalidate the statute’s application in diversity actions. She also criticized the majority’s reliance on a broad negative implication from Rule 8 and highlighted the need, under cases like Gasperini and Shady Grove, to interpret Federal Rules with some sensitivity to state regulatory interests when determining whether a genuine conflict exists.
Practical implications for litigants and courts
For plaintiffs bringing state‑law medical malpractice claims in federal court, Berk v. Choy significantly lowers the front‑end barrier in jurisdictions that use affidavit‑of‑merit statutes. In Delaware, at least, a diversity plaintiff no longer needs to secure an expert affidavit at filing to avoid outright rejection or dismissal; a well‑pleaded complaint that satisfies Twombly’s plausibility standard is enough to proceed to discovery. For defendants and insurers, that means losing an early procedural filter that had functioned as a powerful tool to screen cases before discovery costs mount.
Dozens of states use some form of pre‑suit certification, expert affidavit, or screening requirement in medical negligence cases; Berk gives plaintiffs a roadmap to challenge those provisions in federal diversity cases wherever they conflict with the Federal Rules’ pleading and commencement framework. The decision also reinforces a strong, formalist approach to the Rules Enabling Act: once a Federal Rule “really regulates procedure” and addresses the same question, it displaces even strongly policy‑driven state rules, without a second‑stage inquiry into the substantive importance of the state law. In that sense, Berk sits squarely in the Hanna–Shady Grove line and will likely be cited far beyond the medical malpractice context whenever state procedure collides with the Federal Rules in diversity litigation.
