Amicus Loss in U.S. Supreme Court in Affidavit of Merit Case

On January 20, 2026, the U.S. Supreme Court in a case in which PAMED, the AMA, and the Delaware and New Jersey Medical Societies joined together to file an . The case addressed the question whether a state law providing that a complaint must be dismissed unless it is accompanied by an expert affidavit may be applied in federal court. 

The case, Berk v. Choy, was a medical malpractice case out of Delaware filed in federal court concerning allegedly negligent treatment of an ankle injury. It was filed in federal court because of diversity jurisdiction, meaning one of the parties to the suit was located outside of Delaware. The issue concerns the affidavit of merit, the requirement that a medical malpractice complaint include an affidavit from an expert saying that the claim has a degree of merit to it. This is a Delaware state law requirement that is essentially the same as Pennsylvania’s certificate of merit requirement. 

Some of the federal appellate court circuits enforce a state law affidavit requirement. Some do not. The Third Circuit, in which both Pennsylvania and Delaware are located, enforce the affidavit requirement. In this case, the Third Circuit upheld the trial court’s dismissal of the case because the plaintiff had failed to file the required affidavit. The Supreme Court then agreed to review the case.

Our brief offered two arguments as to why the Court should affirm the Third Circuit decision, upholding the affidavit requirement. First, application of the federal rules of civil procedure requires that the Delaware affidavit required be enforced, and second, federal caselaw requires that the affidavit requirement be enforced. 

The Court found neither argument persuasive. The Court focused on Federal Rule of Procedure 8. That rule prescribes the information a plaintiff must present about the merits of his claim at the outset of litigation. Rule 8 does not require any affidavit of merit. The rule only requires “a short and plain statement of the claim showing that [he] is entitled to relief.” Applying precedent, the Supreme Court determined that when a valid Federal Rule of Civil Procedure is on point, it displaces contrary state law even if the state law would qualify as substantive in nature. If the rule answers the disputed question, in this case whether the affidavit is required, then the rule displaces the state law unless the rule exceeds the rulemaking authority granted by Congress. The Court reversed the Third Circuit and remanded the case back to the District Court.  

Expect to see plaintiffs attempt to bring medical malpractice cases in federal court instead of state court to avoid the affidavit requirement. To do so, a plaintiff will need to establish that the parties are citizens of two different states.