The case arises from a medical malpractice suit filed by Harold R. Berk against Wilson C. Choy and others in federal court. Delaware law requires that no medical malpractice complaint may even be docketed unless it is accompanied by an expert affidavit of merit — a document signed by a qualified medical professional attesting that there are reasonable grounds to proceed. Berk, a pro se plaintiff who alleged that staff at a Delaware medical facility injured him while fitting him with medical equipment, could not obtain the affidavit; his treating physician reportedly told him he had a good malpractice case but would not sign the affidavit. The trial court dismissed the case after determining the affidavit requirement was unsatisfied.
At oral argument on October 6, 2025, in Berk v. Choy, No. 24-440, petitioner's counsel Andrew T. Tutt argued that Delaware's statute conflicts with more than a half dozen Federal Rules of Civil Procedure — including Rules 3, 8, 9, 11, and 12 — and therefore cannot apply in federal court. The federal rules, Tutt argued, establish a comprehensive notice-pleading system under which a plaintiff need only file a complaint stating a claim for relief, with defendants then having structured opportunities under Rules 12 and 56 to test the suit's sufficiency. Requiring a plaintiff to produce an expert-vetted affidavit before the case is even docketed, he contended, forces litigants to develop evidence outside the discovery process and is fundamentally at odds with that structure.
Respondents' counsel Frederick R. Yarger countered that the conflicts Berk identifies are entirely hypothetical. In this case, he argued, the defendants answered the complaint, the pleadings closed, and the case entered discovery — no federal rule was actually triggered in a way that collided with the Delaware statute. The affidavit-of-merit requirement, Yarger maintained, can be enforced in federal court through existing mechanisms such as involuntary dismissal under Rule 41(b) or early summary judgment, as both the Seventh Circuit and Third Circuit have held. He analogized the requirement to the bond condition at issue in Cohen, arguing that states retain broad authority to regulate medical negligence claims.
The justices probed the argument from multiple angles. Justice Kagan pressed Yarger with a hypothetical asking whether his theory would permit states to require multiple affidavits from doctors each swearing that there was an actual violation of the standard of care before a lawsuit could begin. Justice Sotomayor noted that the Delaware statute changes when a defendant's answer is due, running from the filing of the affidavit rather than the complaint, and said Yarger was rewriting the Delaware rule to make it fit the federal framework. Justice Jackson focused on what she described as the clearest and narrowest potential conflict: Rule 3 provides that a civil action is commenced by filing a complaint, while the Delaware statute directs the clerk to refuse to docket a complaint not accompanied by the affidavit — a direct collision over when a case begins.
Justice Barrett asked Tutt to identify the best rules for a Hanna v. Plumer direct-conflict analysis if the Court were to rule in his favor, and also raised the Rules Enabling Act question — specifically whether the Court needs to resolve the tension between the Sibbach test and Justice Stevens's concurrence in Shady Grove. Tutt embraced Sibbach's formulation, under which a rule is valid if it regulates the manner and means of enforcing rights, and argued that even under Justice Stevens's more demanding test the federal rules would prevail here. Justice Gorsuch raised Gasperini and the so-called crack-and-extract problem: if a federal court applies only portions of the Delaware scheme — for instance, Yarger proposed treating the affidavit as a state-law privilege under Federal Rule of Evidence 501 while discarding the sealing and pre-docketing requirements — it is effectively rewriting a statute the Delaware legislature designed as an integrated whole.
The case presents questions about the scope of the Rules Enabling Act and the reach of the Hanna framework, with potential implications for the many states that have enacted similar affidavit-of-merit or certificate-of-merit requirements for medical malpractice claims.