Berk v. Choy | 10/06/25 | Docket #: 24-440
24-440 BERK V. CHOY
DECISION BELOW: 2024 WL 5354482
CERT. GRANTED 3/10/2025
QUESTION PRESENTED:
This case presents a clear, recognized, entrenched conflict over an important
question about the application of state procedural rules in federal court.
Delaware, like numerous states, requires that in certain actions the plaintiff must
also file an affidavit of merit ("AOM") with the complaint.
See
18 Del. C. § 6853. An
AOM is an affidavit signed by an expert stating that there are reasonable grounds to
believe that each defendant has committed the alleged misconduct.
See id.
§ 6853(a)(l).
The Second, Fourth, Fifth, Sixth, Seventh, and Ninth circuits hold that AOM
provisions and comparable statutes do not govern actions in federal court because they
answer the same question as-and therefore conflict with-several different Federal Rules
of Civil Procedure. The Third and Tenth circuits, in contrast, hold that they present "no
conflict" with any Federal Rules.
In the decision below, the Third Circuit, in an unpublished opinion, for at least the
fifth time, refused to hold that an AOM statute conflicts with any Federal Rules. Judge
Phipps "concur[red] in only the judgment." Third Circuit precedent required him to vote
to affirm, he explained, but ''writing on a clean slate ... he may not [have] arrive[d] at that
same conclusion."
The question presented is:
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.
LOWER COURT CASE NUMBER: 23-1620