Berk v. Choy

What’s at Stake

Some states have passed “tort reform” laws designed to make it harder to bring certain kinds of state law claims. Delaware is one of those states. This U.S. Supreme Court case is about whether a federal court hearing a case about violations of Delaware law has to follow the procedural “tort reform” requirements applicable in Delaware state courts. If the Supreme Court holds that these state-law procedural requirements do apply in federal court, it opens the door for more state-level “tort reform” obstacles to block cases in federal courts across the country.

Summary

Harold Berk was visiting Delaware when he fell and severely injured his left ankle and foot. He alleges that his injuries were made worse because of negligence from the emergency room doctor and hospital. He suffered unnecessary and extreme pain, the surgery he needed was delayed, and it was difficult for him to heal and recover.

Acting as his own attorney, Mr. Berk brought a state law medical malpractice suit against the emergency room doctor and two healthcare systems in federal district court in Delaware. Mr. Berk tried to comply with a Delaware “tort reform” requirement that his complaint be filed with an expert affidavit attesting that the claim was meritorious (known as an “affidavit of merit”). An affidavit is a written sworn statement that can be submitted to the court as evidence, and it requires affirmation before a notary or officer of the court. Mr. Berk requested an affidavit of merit from his orthopedist, who would not provide one but told Mr. Berk he had a good case. Unable to get an affidavit, Mr. Berk instead submitted his medical records. He also argued that Delaware’s affidavit requirement does not apply in federal court, where he filed his case. The district court dismissed Mr. Berk’s case, holding that his medical records did not satisfy the affidavit of merit requirement, and that other court decisions do show that the Delaware affidavit requirement applies in federal court.

Mr. Berk appealed, but the U.S. Court of Appeals for the Third Circuit upheld the district court’s decision to dismiss.

Core Legal Issues

This case is now before the U.S. Supreme Court to resolve the longstanding circuit split on the question whether state-level affidavit of merit laws like Delaware’s apply in federal courts. The Third and Tenth Circuits have held that they do, while the Second, Fourth, Fifth, Sixth, Seventh, and Ninth have held that they don’t because such statutes conflict with Federal Rules of Civil Procedure.

Our amicus brief in support of Mr. Berk was filed in the Supreme Court on June 3, 2025. Drafted by John Korzen and his students at the Appellate Advocacy Clinic at Wake Forest Law, the brief explains the chaos that would follow if state-level “tort reform” requirements were imported into federal court. It would create inconsistency, uncertainty, and satellite litigation over the sufficiency of affidavits, and whether those determinations are immediately appealable. Adopting the Third Circuit’s approach would particularly exacerbate widespread confusion about the interaction between state and federal pleading requirements. Finally, we argue that a decision to apply could open the door for litigation over whether similar state-law requirements, such as notice-and-cure, could come in.

Oral argument has not been calendared. The Supreme Court’s docket is here.