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The United States Supreme Court has decided that affidavit-of-merit requirements based in state law do not apply in federal courts. This ruling could void many similar requirements and create incentives for forum shopping.
In Berk v. Choy, the Court held that Delaware's affidavit-of-merit requirement for medical malpractice does not apply in federal court. Delaware law requires plaintiffs to file an affidavit of merit with their complaint, certifying that a qualified expert has determined the claim has merit. The plaintiff in Berk failed to do so, even after receiving an extension.
The federal district court dismissed the complaint, and the Third Circuit affirmed, holding that the affidavit requirement was substantive under Erie and therefore applicable in federal court. The Supreme Court reversed. It stated that “a valid Rule of Civil Procedure displaces contrary state law even if the state law would qualify as substantive under Erie's test.” The Court emphasized that Federal Rule of Civil Procedure 8 (FRCP 8) governs what a complaint must allege and “sets a ceiling on the information that plaintiffs can be required to provide about the merits of their claims.” Because Delaware's affidavit-of-merit statute required more than FRCP 8 permits, it could not be enforced in federal court. The district court therefore erred in dismissing the complaint.
Although Berk directly addressed Delaware's medical malpractice statute, its reasoning extends well beyond that context. The decision effectively renders unenforceable similar affidavit-of-merit requirements in other states when cases are litigated in federal court, including statutes governing claims against design professionals, such as Nevada's NRS 11.258. The ruling also casts doubt on the application in federal court of other state procedural statutes that have sometimes been enforced alongside the Federal Rules. For example, Berk undermines prior federal decisions applying Nevada statutes governing physical examinations, recoverable costs, and offers of judgment, areas squarely governed by Federal Rules of Civil Procedure 35, 54, and 68, respectively.
Ultimately, Berk adds another critical consideration to forum-selection strategy. By removing state-law merit-screening requirements from federal cases, the decision may encourage plaintiffs, particularly those with weaker claims, to structure suits to invoke diversity jurisdiction and avoid state-law procedural barriers.
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