The Third Circuit in Berk v. Choy did not acknowledge a circuit split on the issue presented.
The United States Supreme Court will consider whether federal courts sitting in diversity jurisdiction should apply Delaware’s “affidavit of merit” statute—essentially requiring a report from a healthcare provider certifying a medical malpractice claim has merit before the case can proceed. The Supreme Court’s ruling will likely have a widespread impact because a majority of states have adopted similar statutes to combat frivolous medical malpractice lawsuits.
Background: Berk v. Choy
After receiving alleged negligent care for an ankle injury, pro se plaintiff Harold Berk sued a doctor and two hospitals for medical malpractice in the United States District Court for the District of Delaware without an affidavit of merit. See Berk v. Choy, 2023 WL 2770573, at *1 (D. Del. Apr. 4, 2023). The district court, sitting in diversity, dismissed the medical malpractice suit because of Berk’s failure to file an affidavit of merit as required under Delaware law. See 18 Del. C. § 6853. In particular, Delaware law contains a statutory provision that mandates that an affidavit of merit accompany a negligence lawsuit against a healthcare provider, which at a minimum must be signed, sworn and express relevant opinions about culpability. See 18 Del. C. § 6853. Berk appealed.
The Third Circuit Decision
On appeal, the United States Court of Appeals for the Third Circuit considered whether the Delaware affidavit of merit statute conflicts with the Federal Rules of Civil Procedure and, if not, whether a federal court must apply the affidavit of merit statute as a substantive state law versus a procedural requirement. See Berk v. Choy, 2024 WL 3534482, at *1 (3d Cir. July 25, 2024).
Relying on the Erie doctrine for its analysis, which requires a federal court sitting in diversity to apply state substantive law and federal procedural law, the Third Circuit determined the Delaware statute does not conflict with Federal Rule 8 (requiring that a complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief”), Rule 9 (setting forth the pleading requirements for certain types of claims) or Rule 12 (providing litigants a mechanism to test the sufficiency of a complaint’s factual allegations) because the Delaware statute:
- Does not require a plaintiff to state any facts to support the claim;
- Has no impact on the contents of the pleadings or specificity of the allegations;
- Is separate and distinct from the pleading because a plaintiff can seek permission to file the affidavit of merit after filing the complaint; and
- Contemplates a different process for addressing noncompliance as opposed to a motion to dismiss based on a pleading defect.
The Third Circuit also found no conflict with Rule 11 (requiring an attorney to sign a pleading, thereby attesting that the complaint is meritorious) because the Delaware statute requires a statement by an expert witness—not an attorney—whereas Rule 11 governs attorney conduct. As such, the Federal Rules and the Delaware statute have different spheres of coverage.
Having identified no conflict between the Delaware statute and Federal Rules, the Third Circuit next examined whether the Delaware statute is substantive, and therefore applicable, or procedural, and therefore not applicable. Ultimately, the Third Circuit determined the Delaware statute is substantive because (1) it is outcome determinative—failure to comply can result in the dismissal of the case—and; (2) its applicability would discourage forum shopping and avoid the inequitable administration of the law (thus, promoting the “twin aims” of the Erie doctrine).
On March 10, 2025, the United States Supreme Court granted certiorari to resolve the issue of 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. Berk v. Choy, 145 S. Ct. 1328 (2025).
Is There Even a Circuit Split?
The Third Circuit in Berk v. Choy did not acknowledge a circuit split on the issue presented. Instead, it distinguished the out-of-circuit cases (from the Second, Fourth, Sixth and Seventh Circuits) cited by Berk by noting that the majority of those cases involved federal prisoners suing under the Federal Tort Claims Act and thus are federal question cases—not diversity cases—and in those, tort law is only applicable to the question of tort liability.
As to the other out-of-circuit cases cited by Berk where courts declined to enforce state affidavit of merit statutes (from the Sixth and Ninth Circuits), the Third Circuit distinguished them by noting that the courts treated the affidavits of merit as a pleading. The Third Circuit found that holding contrary to its own conclusion that the affidavit is not a pleading because the Delaware statute allows the filing of an affidavit separately from the filing of the complaint.
While this issue may not be recognized as a traditional circuit split by the Third Circuit, there is certainly some disagreement among courts on the issue of the enforceability of such statutes in federal court.
Implications
Currently, the question of whether a plaintiff in a medical malpractice case needs to file an affidavit or certificate of merit in federal court varies from circuit to circuit depending (1) on the exact language of the state statute; and (2) whether the court considers the affidavit to be a “pleading” or a separate and distinct substantive requirement. The Supreme Court will hopefully provide some clarity and uniformity on this issue.
In the meantime, it is important to remember the purpose of the certificate of merit statute: To combat frivolous medical malpractice lawsuits. If the Supreme Court indeed finds such statutes inapplicable in federal court, it could encourage forum shopping and a potential increase in unvetted and frivolous medical malpractice claims in federal courts. As a result, defendants would be forced to engage in additional and expensive nonmeritorious malpractice litigation simply because the plaintiff filed suit in federal court.
Also, some state affidavit of merit laws extend beyond just the medical malpractice context and into claims against other licensed professionals, such as architects and attorneys. As such, the Supreme Court’s decision may have implications beyond just the medical malpractice space.
The Supreme Court is expected to hear argument later this year with a decision by next year.
For More Information
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