Supreme Court Decides Berk v. Choy et al.

The Supreme Court held in Berk v. Choy et al., No 24-440, that Delaware’s law providing that a plaintiff may not sue for medical malpractice unless the complaint is accompanied by a medical professional’s affidavit attesting to the suit’s merit is not enforceable in federal court because Federal Rule of Civil Procedure 8 displaces it.

Del. Code, Title 18 § 6853 provides that a plaintiff may not sue for medical malpractice unless an affidavit of merit accompanies the complaint. Mr. Berk sued the hospital where he received medical care as well as his doctor, Dr. Choy, for medical malpractice in federal court based on diversity jurisdiction. Mr. Berk did not file an affidavit, claiming that § 6853 is not enforceable in federal court because the Federal Rules of Civil Procedure displace it.

The district court dismissed Berk’s lawsuit for failure to comply with § 6853’s affidavit requirement. The Third Circuit affirmed, holding that Delaware’s affidavit law applies in federal court. The Third Circuit reasoned that the Federal Rules of Civil Procedure are silent on whether an affidavit must accompany the complaint, and where the Federal Rules are silent, state law applies if it is substantive. The appellate court concluded that § 6853 was substantive, and accordingly dismissal of Berk’s suit was warranted.

The Supreme Court reversed, holding that the Federal Rule of Civil Procedure 8 governed and displaced the Delaware affidavit law. The Rules of Decision Act directs federal courts to apply state substantive law unless the Constitution, a treaty, or a statute otherwise requires or provides. The Rules Enabling Act authorizes the Supreme Court to adopt uniform rules of procedure for district courts, including the Federal Rules of Civil Procedure. If the Federal Rule answers the question in dispute, it governs unless it exceeds statutory authorization or Congress’s rulemaking power. Rule 8 answered the “question in dispute,” i.e. whether an affidavit must accompany the complaint. Rule 8 establishes that a plaintiff need only provide “a short and plain statement of the claim” showing entitlement to relief. The Delaware affidavit law addresses the same issue but imposes a different standard than Rule 8. Accordingly, Rule 8 displaces § 6853 so long as it is valid under the Rules Enabling Act, which requires that Federal Rules be procedural, not substantive. To answer that question, the Court asks whether the rule “really regulates procedure.” The Court concluded that Rule 8 “really regulates procedure,” and thus was valid under the Rules Enabling Act.

The Court also rejected Defendants’ invocation of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), a case which dealt with a state law requiring the posting of a bond as a precondition to suit. The Court held that Cohen was inapposite because the state and federal rules in that case addressed different subjects: the state rule created a liability that had to be secured via a bond, whereas the federal rule was aimed at ensuring notice to the court of the parties in interest in the case before it. Here, by contrast, the Court held that the state law and the Federal Rule addressed the same issue. The Court rejected Defendants’ remaining arguments, which the Court stated amounted to a rewriting of Delaware’s law and an inaccurate reading of Federal Rule of Civil Procedure 11.

Justice Barrett delivered the opinion of the Court, in which Chief Justice Roberts and Justices Thomas, Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh joined. Justice Jackson filed an opinion concurring in the judgment.