SCOTUS Rejects Delaware Affidavit of Merit Requirement

In Berk v. Choy, 607 U.S. ____ (2026), the U.S. Supreme Court unanimously held that a Delaware law requiring a plaintiff suing for medical malpractice to provide an affidavit from a medical professional attesting to the suit’s merit conflicts with a valid Federal Rule of Civil Procedure. Accordingly, the state law does not apply in federal court.

Facts of the Case

Delaware state law, Del. Code, Tit. 18, §6853(a)(1) (2025), provides that a plaintiff may not sue for medical malpractice unless a medical professional attests to the suit’s merit in an “affidavit of merit” that “accompanie[s]” the plaintiff’s complaint. The affidavit must be signed by a medical professional, and it must state that there are “reasonable grounds to believe that there has been health-care medical negligence committed by each defendant.”

A plaintiff with “good cause” may secure a single 60-day extension of time in which to file the affidavit, but he must file the extension motion before or when he files the complaint. If an affidavit does not accompany the complaint and the plaintiff has not filed a timely extension motion, then the clerk of court shall “refuse to file the complaint and it shall not be docketed.”

The defendants need not take any action with respect to the complaint until 20 days after the affidavit of merit is filed. Upon the defendants’ motion, the court must determine in camera if the affidavit satisfies the statutory requirements.

Petitioner Harold Berk sued Dr. Wilson Choy and Beebe Medical Center in federal court for medical malpractice under Delaware law, but failed to provide the affidavit required by §6853. Berk argued that §6853 is not enforceable in federal court because it is displaced by the Federal Rules of Civil Procedure. The District Court disagreed with Berk and dismissed his lawsuit for failure to comply with Delaware’s affidavit law.

The Third Circuit Court of Appeals affirmed, holding that §6853 applies in federal court. The court concluded that the Federal Rules of Civil Procedure are silent as to whether an affidavit must accompany the complaint.

Under Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), where the Federal Rules are silent, state law applies if it is substantive. A state law is substantive if (1) it is outcome determinative, and (2) failing to apply it in federal court would promote forum shopping and the inequitable administration of the law. After applying this test, the Third Circuit concluded that §6853 is substantive and affirmed the dismissal of Berk’s suit.

Supreme Court’s Decision

The Supreme Court unanimously reversed, holding that Delaware’s affidavit law does not apply in federal court. Justice Amy Coney Barrett wrote on behalf of the justices.

As Justice Barrett explained, when a plaintiff brings a state-law claim in federal court, the court faces a choice-of-law problem: whether to apply state or federal 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, which authorizes the Supreme Court to adopt uniform rules of procedure for district courts, provides for the application of federal law. “Yet when a Federal Rule of Civil Procedure is on point, a federal court bypasses Erie’s inquiry altogether,” Justice Barrett explained.

According to the Court, Fed. R. Civ. P. 8 answered the question of whether the plaintiff’s lawsuit must be dismissed. “By requiring no more than a statement of the claim, Rule 8 establishes implicitly, but with unmistakable clarity that evidence of the claim is not required,” Justice Barrett wrote.

As Justice Barrett explained, Rule 8 “prescribes the information a plaintiff must present about the merits of his claim at the outset of litigation,” and only requires “a short and plain statement of the claim showing that he is entitled to relief.”She added: “Delaware’s affidavit requirement is at odds with Rule 8 because it demands more.”

The Court went on to reject what Justice Barrett characterized as a “workaround” offered by the defendants. According to the Court, after defendants’ edits, the Delaware law is “no longer a pleading requirement but a free-floating evidentiary requirement that can serve as the basis for an early dismissal.”

As Justice Barrett explained, “But that requirement could not be enforced under the Federal Rules. Defendants concede that the absence of an affidavit is not grounds for dismissal under Rule 12(b)(6). And Rule 56 already prescribes the mechanism.”

Justice Ketanji Brown Jackson authored a concurring opinion. She argued that the Delaware affidavit-of-merit law conflicts with Rule 3. Under that rule, civil actions are commenced in federal courts “as soon as the complaint—and only the complaint—has been filed by the plaintiff.”