Berk v. Choy: Supreme Court to Decide Whether Federal Courts Must Enforce State Affidavit of Merit Laws in Medical Malpractice Cases
The U.S. Supreme Court is set to resolve a long-standing and consequential question in medical malpractice litigation: Must federal courts sitting in diversity jurisdiction enforce state statutes requiring an affidavit of merit from a qualified medical expert? In Berk v. Choy, a case arising from Delaware, the Court’s decision could reshape how attorneys approach pre-suit requirements, expert witness engagement, and procedural strategy in federal malpractice claims.
The stakes are high – not just for parties in this case, but for personal injury attorneys, healthcare providers, and law firms nationwide. At issue is a critical tension between state-imposed safeguards against frivolous malpractice claims and the federal rules that govern civil litigation procedure.
Case Background: Dismissal for Failure to File Affidavit of Merit
In 2022, Harold Berk filed a federal medical malpractice lawsuit in the U.S. District Court for the District of Delaware. He named three defendants: Dr. Wilson Choy, Beebe Medical Center, and Encompass Health Rehabilitation Hospital of Middletown. Berk alleged that negligent care related to an ankle injury led to further harm and long-term complications.
Delaware law requires plaintiffs in medical negligence cases to file an affidavit of merit. This sworn statement must come from a qualified medical expert and confirm that the claim is based on sound facts and accepted medical standards.
Berk appealed, but the Third Circuit Court of Appeals upheld the dismissal. The appellate court ruled that Delaware’s affidavit requirement is substantive rather than procedural and is therefore enforceable in federal court under the Erie Doctrine. In doing so, the Third Circuit aligned itself with other appellate courts, such as the Tenth Circuit, which have also upheld similar state requirements in federal forums.
In March 2025, the U.S. Supreme Court granted certiorari to resolve a deepening split among the circuits – a move that signals the Court’s recognition of the issue’s national importance.
Legal Issue: Substantive vs. Procedural Law Under Erie
At the heart of Berk v. Choy lies a doctrinal dilemma: Should affidavit of merit statutes be categorized as substantive state law, enforceable in federal court, or as procedural requirements, which may be preempted by the Federal Rules of Civil Procedure?
Under the Erie Doctrine, federal courts sitting in diversity jurisdiction must apply state substantive law and federal procedural law. Determining which side of the divide an affidavit of merit falls on is no small matter. If deemed procedural, these statutes could be superseded by Federal Rules, particularly Rules 8 (pleading standards) and 11 (certification of claims). But if they are deemed substantive, they must be applied in federal court, even if they create additional barriers for plaintiffs.
Appellate courts have split on this issue:
- The Third and Tenth Circuits have ruled that affidavit of merit statutes serve a substantive function – screening out baseless claims early and promoting judicial efficiency.
- In contrast, the Ninth Circuit and some district courts have found that such statutes intrude on federal procedural norms, creating unequal burdens for plaintiffs depending on where they file.
The Supreme Court’s ruling will clarify how federalism principles and procedural fairness interact in the context of professional negligence claims.
Implications for Litigation Strategy and Expert Engagement
If the Court affirms the Third Circuit, several strategic consequences will follow:
- Plaintiffs’ attorneys will need to secure expert support earlier, often before discovery or even filing.
- The cost and time burden of engaging experts will shift to the pre-filing phase, potentially reducing access to the courts for lower-income clients.
- Defense attorneys may have stronger grounds for early dismissal, especially if affidavits are missing, vague, or signed by inadequately qualified experts.
If the Court instead rules that these laws are procedural and unenforceable in federal court, it may open the door to:
- A more flexible federal forum for malpractice claims, particularly for out-of-state plaintiffs.
- An increased volume of federal malpractice cases, as attorneys may choose to bypass stricter state requirements.
- A heavier emphasis on expert testimony during discovery and trial, rather than at the pleading stage.
In either scenario, law firms will need to revise their case intake checklists, retainer agreements, and litigation timelines to adapt.
National Ripple Effects Beyond Delaware
Though Berk’s case originated in Delaware, the Supreme Court’s ruling will impact states with similar laws, including New Jersey, Pennsylvania, Illinois, Texas, and California. These jurisdictions impose pre-suit hurdles like affidavits or certificates of merit to deter meritless litigation and protect healthcare providers.
Depending on how broadly the Court frames its opinion, its decision could also influence how other state-imposed procedural prerequisites—such as pre-suit notices, waiting periods, and caps on damages – are treated in federal court. The outcome could shift forum shopping dynamics, encouraging or deterring litigants from filing in federal court based on perceived procedural advantages.
Conclusion: A High-Stakes Decision for Medical Malpractice Law
Berk v. Choy may appear at first glance to be a technical dispute over affidavits – but it carries weighty implications for civil procedure, federalism, and access to justice. A Supreme Court ruling on whether state affidavit requirements must be enforced in federal court will likely reshape malpractice litigation nationwide.
Attorneys, insurers, hospital systems, and policymakers alike should pay close attention. The decision will establish new ground rules for how and where medical malpractice claims can be pursued – and what procedural burdens plaintiffs and defense counsel must meet.
