"Without dissent, the Court held that a Delaware law requiring plaintiffs suing for medical malpractice to include an "affidavit of merit" with their complaint does not apply in federal court. Relying on diversity jurisdiction, Harold Berk sued Dr. Wilson Choy and Beebe Medical Center for medical malpractice under Delaware law in federal district court. He alleged that he injured his ankle while on a trip to Delaware, and that this injury was exacerbated by Dr. Choy and hospital staff."
"Delaware law requires a plaintiff to obtain and attach to his complaint an "affidavit of merit" executed by a medical professional, attesting that the suit has merit. Berk's complaint did not attach the required affidavit, so the district court dismissed his lawsuit. The Third Circuit affirmed. It reasoned that the Federal Rules of Civil Procedure are silent as to whether an affidavit must accompany a complaint, and that under Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), where the Federal Rules are silent,"
Harold Berk filed a diversity-based medical-malpractice suit alleging an ankle injury exacerbated by Dr. Wilson Choy and Beebe Medical Center. Delaware law requires plaintiffs to attach an affidavit of merit executed by a medical professional to their complaints; Berk did not attach one and the district court dismissed the case. The Third Circuit affirmed, reasoning that the Federal Rules of Civil Procedure are silent on the affidavit requirement and that Erie requires application of state substantive law. The Supreme Court reversed and remanded in an opinion by Justice Barrett, explaining that a Federal Rule on point displaces state law and bypasses the Erie inquiry.
Read at National Association of Attorneys General
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