Justices Cool to Using State Malpractice Rule in Federal Court

Medical malpractice plaintiffs may find it easier to sue health-care providers in federal courts once the US Supreme Court decides a case argued Monday.

Justices Sonia Sotomayor, Elena Kagan, Brett M. Kavanaugh, and Ketanji Brown Jackson appeared especially doubtful of the providers’ argument that federal courts should apply a Delaware statute requiring plaintiffs to file with their complaint an expert affidavit attesting to their belief that there are “reasonable grounds” for finding the defendant committed medical negligence. Federal Rules of Civil Procedure 3, 8, and 9 have no such requirement.

By adding the affidavit of merit requirement to “initiate a claim,” the law appears to conflict with at least Rule 3, which says a “civil action is commenced by filing a complaint with the court,” Jackson said.

The “essence” of the federal rules is that they provide a uniform means for bringing and litigating claims in federal courts, Kagan said. Rule 8 requires filing only a concise, precise statement of a claim, while Rule 9 sets out items that need not be pleaded, such as a defendant’s capacity to sue or be sued.

None of those rules require filing additional items with the complaint, said Andrew Tutt, who argued for the plaintiff Harold Berk. Delaware’s law is “fundamentally at odds with the federal rules’ notice pleading structure,” he said. There is a “direct conflict,” and the federal rules prevail when there’s such a conflict, he said.

Frederick Yarger, who argued for the defendant health-care providers, said Berk “manufactured” the conflict. He didn’t point to a single rule that directly conflicts with the state law in his filings, Yarger said.

But there’s clearly a conflict here, so the court “doesn’t need to get to Erie,” Kagan said, referring to the ruling that requires federal courts sitting in diversity to apply state substantive law, unless it directly conflicts with federal law, and use federal procedural rules.

Kavanaugh pointed out that affidavits of merit are filed under seal in Delaware. No one sees them but the judge, and they can’t be used in evidence. Yet a plaintiff’s failure to file one results in dismissal, he said.

Yarger said that wasn’t entirely true—a trial court can extend the time for filing an affidavit of merit, so it needn’t absolutely be filed with the complaint. Additionally, it’s privileged under state law, he said.

“You’re cracking and extracting” things from the state law, making a “Frankenstein” of the statute, Kavanaugh said. A court clerk can’t even docket a case without an affidavit of merit, Jackson added, raising concerns among the justices that the Delaware law essentially forces malpractice plaintiffs to prove their claims before they’ve even filed a complaint

The case presents a decades-old question dating back to when states began adopting various “tort reform” measures to weed out frivolous cases and head off a perceived crisis caused by doctors’ insurers threatening to flee states with high jury verdicts. Not all federal courts have reached the same conclusion as to whether these state mandates apply in federal courts.

The Second, Fourth, Fifth, Sixth, Seventh, and Ninth circuits hold that affidavit of merit and similar provisions don’t apply in federal courts because they directly conflict with federal procedural rules, while the Third and Tenth circuits have applied them.

Here, a Florida man sued his Delaware providers in federal court. The federal trial court dismissed his complaint because he hadn’t filed an affidavit of merit in accordance with Delaware law. The Third Circuit affirmed, saying the state law was substantive in nature because it was outcome determinative and a failure to apply it might encourage forum shopping.

Tutt is with Arnold & Porter Kaye Scholer. Yarger is with Wheeler Trigg O’Donnell LLP.

Covington & Burling LLP, Bradley Arant Rose & White, Elzufon Austin & Mondell PA, and Marshall Dennehey PC also represent the providers.

The case is Berk v. Choy, U.S., No. 24-440, oral arguments 10/6/25.