Berk v. Choy

A patient suing a doctor for a foot injury in federal court is arguing that Delaware's rule requiring an expert affidavit should not apply. The core of the dispute lies in a conflict between two different sets of rules. Federal courts have their own uniform rulebook, the Federal Rules of Civil Procedure, which states that a lawsuit can begin with just a "short and plain statement" of the claim. However, a Delaware law aimed at curbing frivolous lawsuits requires that any medical malpractice complaint be dismissed unless it is filed with a sworn statement from a medical expert confirming the case has merit.

The patient's lawyer argues that these two rules cannot coexist. He contends that the federal rules are designed to make it simple to start a case, with evidence gathering happening later in a process called discovery. Delaware's law, he claims, fundamentally alters this system by forcing a plaintiff to essentially prove their case before it even begins. The doctor’s attorney counters that the affidavit requirement is not a mere procedural step but a substantive part of Delaware's law, defining what a valid malpractice claim is. They argue that federal courts hearing cases based on state law must respect such substantive state policies.

The Supreme Court must now decide which rule governs when a plaintiff brings a state-law claim in a federal courthouse. The decision will determine whether states can impose special, front-loaded requirements on lawsuits in the federal system, potentially creating different procedural hurdles for accessing federal courts depending on the state.

Notice pleading is the foundational principle for starting a lawsuit in the U.S. federal court system. Governed by Federal Rule of Civil Procedure 8, it requires only that a plaintiff file a "short and plain statement" of their claim. The purpose is to simply put the defendant on notice of what the lawsuit is about, making access to the courts straightforward and inexpensive. The detailed work of gathering evidence, deposing witnesses, and proving the claim is intended to happen later, during a phase called discovery.

The lawyer for a patient suing for malpractice argues that a Delaware law requiring an expert affidavit directly attacks this system. That state law demands that a plaintiff secure a signed, sworn statement from a medical professional that the case has merit before the lawsuit can even proceed. This effectively flips the federal model on its head. Instead of just giving notice, a plaintiff is forced to find and pay an expert to validate their claim before they have the power of discovery to obtain medical records or other crucial evidence from the defendant.

The concern, as voiced by the patient's legal team, is that this creates a system where a plaintiff has to win a mini-trial just to be allowed into court. Justice Kagan highlighted this tension with a hypothetical, asking if a state could require four affidavits, all swearing that malpractice definitely occurred. This illustrated how allowing such state rules could empower states to create impossibly high barriers, effectively blocking access to federal courts and dismantling the simple "notice pleading" system the federal rules were designed to protect.

The doctor's legal team in a malpractice dispute argues that Delaware's expert affidavit requirement is a core piece of substantive state law, not just a procedural hurdle. Their argument rests on the idea that the state legislature created this rule to solve a major policy problem: a flood of frivolous lawsuits driving up healthcare costs. From this perspective, the affidavit isn't just a form to be filed; it is the state's chosen method for defining what constitutes a legitimate, actionable claim for medical negligence from the very beginning.

The lawyers contend that, under Delaware law, a medical malpractice claim simply does not legally exist in a valid form until a qualified expert has certified that there are reasonable grounds for it. Therefore, they argue, the affidavit is an essential element of the claim itself. Justice Alito explored this very point during arguments, questioning whether a state could frame the affidavit as something you must submit to win your case, thereby embedding it into the substantive right to sue. The doctor's side claims this is exactly what Delaware has done.

This distinction is critical because of the principle of federalism. Federal courts are supposed to apply federal procedural rules but must apply the substantive law of the state where the case originated. By framing the affidavit as a substantive requirement, the doctor’s attorneys argue that federal courts must enforce it to respect Delaware's authority to regulate medical liability and prevent plaintiffs from using federal court as a loophole to evade state policy.

This question of labeling is at the heart of the legal battle over a Delaware medical malpractice law. The patient's lawyer argues that Delaware is playing a word game to get around federal rules. Federal Rule 8 governs the content of "pleadings," like a complaint, and requires only a simple statement. By requiring a separate "affidavit," Delaware has created a roadblock that functions just like a heightened pleading standard but avoids using the forbidden term.

During oral arguments, several justices challenged this distinction. Justice Barrett, taking a textualist approach, pointed out that Federal Rule 8 explicitly applies to "pleadings," and an affidavit is not technically a pleading, which poses a direct challenge to the patient's argument. However, Justice Kagan pushed back from a more functional perspective, asking if a state could simply revive old, complex pleading standards by putting the extra requirements in a document labeled "affidavit." This hypothetical suggested that allowing states to bypass federal rules through clever labeling would create a massive loophole, destroying the national uniformity of federal procedure.

The patient's attorney characterized the affidavit as a "super-pleading" in disguise, arguing its only purpose is to control whether a case can proceed at the very outset. He argued that its function, not its label, is what matters. The core issue for the Court is whether to adhere to the strict textual definition of "pleading" or to look at the practical effect of the state's requirement on the federal litigation process.

The potential consequences of allowing Delaware's expert affidavit rule in federal court extend far beyond medical malpractice. The patient's lawyer warned that such a ruling would create a "slippery slope," empowering states to erect numerous barriers that could make it much harder and more expensive for ordinary people to bring a wide variety of claims in federal court.

During oral arguments, Justice Kagan pushed this logic to its extreme. She asked the doctor's attorney if his theory would permit a state to require not just one, but four expert affidavits, all swearing with certainty that malpractice occurred, before a case could even begin. The attorney's concession that this might be permissible highlighted the central fear: that there would be no logical stopping point. If states can add one hurdle, they can add many, effectively closing the courthouse doors to anyone without significant upfront resources.

The patient’s counsel drove this point home in his rebuttal with a memorable hypothetical known as the "12 nuns formulation," suggesting a state could require an affidavit from 12 nuns swearing to a plaintiff's good character. This absurd example was used to argue that if the Court sides with the doctor, it would open the floodgates for states to undermine the federal system by creating a patchwork of unique, burdensome, and potentially bizarre pre-suit requirements for all types of civil litigation, from product liability to civil rights cases.

A major practical problem in the dispute over Delaware's expert affidavit law is how a federal court could possibly apply it without violating its own procedures. The doctor's attorney suggested that a federal judge could simply adapt the state law, for instance by allowing the lawsuit to be filed first and then ordering the plaintiff to produce the affidavit later. This approach aims to preserve the state's goal of weeding out frivolous suits while respecting the federal process for starting a case.

However, this proposed solution met with deep skepticism from the bench. Justice Gorsuch powerfully criticized this pick-and-choose method, questioning what authority a federal court has to rewrite a state's statute. He called the potential result a "Frankenstein of a statute," a stitched-together hybrid of state and federal rules that respects neither. This analogy suggests that trying to merge the two conflicting systems is an unprincipled act of judicial invention rather than a straightforward application of the law.

Justice Sotomayor leveled an even sharper critique, accusing the doctor's counsel of misrepresenting Delaware's law to make it seem compatible with federal rules. She asserted that the state law is clear in its requirements and that the lawyer was contorting it to avoid an obvious conflict. This exchange revealed a core difficulty for the Court: if the state and federal laws truly conflict, the Court cannot simply create a novel, hybrid procedure to make the problem disappear. It must decide which system's rules prevail.