By Michael Phillips | People’s Law Review

On January 20, 2026, the U.S. Supreme Court issued a unanimous decision in Berk v. Choy, No. 24-440, resolving a contentious procedural issue at the intersection of state tort reform and federal civil procedure: whether a Delaware statute that bars medical malpractice suits unless accompanied by an expert “affidavit of merit” can be enforced in federal court. The Court, in an opinion delivered by Justice Barrett, held that Delaware’s affidavit requirement does not apply in federal court because it is displaced by the Federal Rules of Civil Procedure. The decision reverses the Third Circuit and underscores the primacy of uniform federal procedural rules in federal diversity cases.

The Statutory and Procedural Conflict

Delaware Code Title 18 § 6853(a)(1) requires plaintiffs in medical malpractice actions to file an affidavit of merit from a medical professional—stating that there are reasonable grounds to believe negligence occurred—when initiating a suit. If such an affidavit is absent, the complaint must be refused filing and dismissed. This kind of statute is one of many adopted by states to deter frivolous medical malpractice claims by requiring an early expert attestation.

In Berk, petitioner Harold R. Berk, a pro se plaintiff, sued Dr. Wilson C. Choy and Beebe Medical Center in federal court under diversity jurisdiction for alleged negligent care following an ankle injury in Delaware. Berk failed to file an affidavit of merit with his complaint and instead submitted medical records and sought an extension of time to obtain an affidavit. The district court dismissed the case under the Delaware statute, and the Third Circuit affirmed, holding that the state rule applied unless displaced under the traditional Erie choice-of-law framework.

The Supreme Court’s Framework: Federal Rules vs. State Procedural Law

The Supreme Court’s analysis centered on whether the Federal Rules of Civil Procedure, particularly Rule 8(a)(2), which requires only a “short and plain statement of the claim showing that the pleader is entitled to relief,” answers the same question as the Delaware affidavit law. The Court reiterated that when a valid Federal Rule is “on point,” it displaces contrary state procedural requirements in federal court under the Rules Enabling Act and the Rules of Decision Act, even if the state rule might be substantive under Erie v. Tompkins.

The Court explained that Rule 8 implicitly sets the ceiling for what plaintiffs must allege to commence a federal lawsuit, and it does not require evidence or expert attestation at the outset. Because Delaware’s statute demands an affidavit of merit before a complaint is filed, it conflicts with the Federal Rules. State attempts to recast the affidavit requirement as an “evidentiary” or post-pleading mechanism could not save it, since dismissal based on absence of an affidavit is not permitted under Rule 12(b)(6), and summary judgment under Rule 56 already provides the procedure for testing claims on the merits.

Justice Jackson filed a separate opinion concurring in the judgment, agreeing that Delaware’s rule could not be enforced in federal court but framing the conflict slightly differently.

Legal and Practical Implications

The Berk decision has significant implications for federal diversity litigation:

1. Uniform Federal Pleading Standards: Plaintiffs in federal courts will not be subject to a patchwork of state procedural filing requirements like affidavit-of-merit statutes. This preserves the Federal Rules’ role in fostering consistency and predictability in federal pleadings.
2. Access to Federal Courts Strengthened: Critics of affidavit-of-merit laws have argued that such requirements can impose upfront expert costs that disproportionately burden pro se litigants and those with limited resources, effectively denying access to federal court. By holding that these state hurdles cannot be enforced in federal court, the Supreme Court has maintained a lower threshold for initiating a federal action.
3. Impact on State Tort Reform: While states remain free to impose procedural requirements in their own courts, Berk limits their effect in federal forums. This may dampen forum-shopping incentives if plaintiffs prefer federal venues over states with stringent procedural hurdles, although federal subject matter jurisdiction requirements (diversity of citizenship and amount in controversy) still constrain that choice.
4. Broader Federal Civil Procedure Precedent: The Court’s clear reaffirmation that the Federal Rules govern pleadings—even where state policy goals favor additional safeguards—signals that federal procedure will continue to trump state procedural innovations in federal cases. This may have ripple effects on other state statutes that seek to modify pleading thresholds or impose pre-suit conditions.

Conclusion

Berk v. Choy is a landmark procedural decision clarifying the relationship between state procedural statutes and the Federal Rules of Civil Procedure in federal court. By prioritizing federal uniformity and access to federal forums, the Supreme Court reinforced foundational principles of civil litigation while circumscribing state efforts to condition access to courts through additional filing requirements. For litigants, practitioners, and advocates alike, Berk underscores the continuing relevance of federal procedural supremacy in diversity cases.