Episode 2
Upcoming Oral Argument | Berk v. Choy | Showdown Over Federal Uniformity and State Authority
Berk v. Choy | Case No. 24-440 | Oral Argument Date: 10/6/25 | Docket Link: Here
Question Presented: Whether Delaware's expert affidavit requirement for medical malpractice claims conflicts with Federal Rules of Civil Procedure when applied in federal diversity cases
Episode Overview
This episode examines Berk v. Choy, a case that started with a simple fall but could reshape how federal courts handle state law requirements across the country. The Supreme Court must decide whether Delaware's expert affidavit requirement for medical malpractice claims conflicts with Federal Rules of Civil Procedure when applied in federal diversity cases, presenting a fundamental clash between federal procedural uniformity and state regulatory authority.
Roadmap
Opening: A Fall That Could Reshape Federal Court Practice
- Harold Berk's fall from bed leads to medical malpractice case with nationwide implications
- Delaware's expert affidavit requirement vs. Federal Rules of Civil Procedure
- 29 states with similar medical malpractice requirements creating potential patchwork
The Legal Framework: Erie Meets the Federal Rules
- Erie Doctrine (1938): Federal courts must apply state substantive law for state claims
- Federal Rules of Civil Procedure (1938): Uniform procedures for all federal courts
- Shady Grove Test: When Federal Rule and state law "answer the same question," Federal Rule wins
- Tension between federal procedural uniformity and state regulatory authority
The Shady Grove Foundation
- Shady Grove Orthopedic Associates v. Allstate Insurance (2010) background
- $500 individual claim vs. multimillion-dollar class action potential
- New York's prohibition on statutory penalty class actions vs. Federal Rule 23
- Fractured Decision: Scalia plurality vs. Stevens concurrence vs. four dissents
The Procedural Journey: From Delaware District Court to the Supreme Court
- Berk's five-month struggle to obtain required expert affidavit
- Dr. Raikin's refusal despite initially supporting Berk's case
- Multiple physicians declining to provide affidavits against other doctors
- Third Circuit's dismissal: affidavit "not a pleading" with "different purpose"
Petitioner's Three-Pronged Attack
- Direct conflict with Federal Rules 8 and 9 under Shady Grove test
- Uniformity concerns: Undermines federal procedural consistency established in 1938
- Anti-circumvention: State requirements shouldn't allow end-run around federal pleading standards
Respondents' Three-Part Defense
- Separate spheres: Delaware law operates as evidentiary requirement distinct from pleading rules
- Erie compliance: Represents substantive state law that federal courts must respect
- Limited Shady Grove: Fractured decision provides narrow precedential value
CASE SIGNIFICANCE
The outcome will likely determine whether federal courts remain faithful to both federal procedural uniformity and state substantive authority, or whether one value must give way to the other in the modern era of complex state regulatory schemes.
Key Legal Concepts Explained
- Diversity Jurisdiction: Federal court authority over cases between citizens of different states involving state law claims
- Erie Doctrine: Principle requiring federal courts to apply state substantive law in diversity cases while using federal procedure
- Federal Rules of Civil Procedure: Uniform procedural rules governing all federal courts since 1938
- Expert Affidavit Requirements: State laws requiring medical expert certification before proceeding with malpractice claims
- Shady Grove Test: When Federal Rule and state law "answer the same question," Federal Rule controls
- Procedural vs. Substantive Law: Distinction between how cases are conducted (procedural) and legal rights/remedies (substantive)
- Forum Shopping: Practice of choosing favorable court jurisdiction for litigation advantage
Transcript
Welcome back to SCOTUS oral arguments and opinions.
Speaker A:This week, we'll begin to preview the upcoming Supreme Court cases.
Speaker A:Oral arguments begin on October 6, less than a month from now.
Speaker A:As I mentioned in previous episodes, this upcoming term features several blockbuster cases.
Speaker A:I'm going to go in order of oral arguments.
Speaker B:Today we're diving into Burke vs Choi, a case that started with a simple fall, but could reshape how federal courts handle state law requirements across the country.
Speaker B:This case is slated for oral arguments on October 6th.
Speaker A:We start with Harold Burke, a Florida retiree who owns a home in Delaware.
Speaker A:He falls out of bed, severely injures his ankle and foot already sounds painful, right?
Speaker A:And he's got pre existing chronic ankle and foot problems.
Speaker A:But he goes to Beebe Medical center and Dr. Wilson Choi for treatment of these new injuries.
Speaker A:Burt claims the medical treatment made his condition worse, caused additional injury beyond his pre existing problems.
Speaker B:Classic medical malpractice setup.
Speaker B:He wants to sue in federal court using diversity jurisdiction.
Speaker A:For our listeners who might not be familiar, diversity jurisdiction lets citizens of different states use federal courts for state law claims.
Speaker A:So Burke, as a Florida resident, can sue Delaware doctors in federal court.
Speaker A:But here's where it gets interesting.
Speaker A:Delaware law requires medical malpractice plaintiffs to file an expert affidavit stating the case has merit.
Speaker A:Think of Delaware saying, before you can proceed with your lawsuit, get a doctor to confirm you actually have a valid claim.
Speaker A:And Burke tried to get this affidavit for nearly five months, despite consulting multiple physicians across three states.
Speaker A:Nobody would provide the required expert statement.
Speaker B:Wait.
Speaker B:What happened with the doctors he consulted?
Speaker A:This is the fascinating part.
Speaker A:Dr. Reikin, the surgeon who successfully treated Burke after the alleged malpractice, had previously told Burke he had a good case.
Speaker A:But when Burke asked for the formal affidavit, Dr. Rakin refused.
Speaker B:That's gotta be frustrating.
Speaker A:Several other physicians Burke consulted said they don't provide affidavits against other doctors.
Speaker A:So the federal courts dismissed Burke's case, saying Delaware's requirement applied even in federal court.
Speaker A:And now the Supreme Court has to decide.
Speaker A:When state law says you must have X to proceed with your lawsuit, do federal courts have to follow that rule?
Speaker B:So let's set up the legal battlefield.
Speaker B:This case sits at the intersection of two major doctrines that govern how federal courts operate.
Speaker B:First is the erie doctrine.
Speaker B: From: Speaker B:The basic idea being if you're suing under Delaware law, you get Delaware legal rights and remedies not some federal substitute.
Speaker A:Exactly.
Speaker A: of Civil procedure, also from: Speaker A:These created uniform procedures for all federal courts.
Speaker A:Rule 8 tells plaintiffs what their complaints must contain.
Speaker A:Rule 12 explains how defendants can challenge those complaints.
Speaker A:The goal was one set of rules for all federal courts, regardless of whether the case involves federal or state law.
Speaker A:But tension emerges when state requirements clash with federal procedures.
Speaker A: The Supreme Court's: Speaker A:If a federal rule and state law answer the same question, the federal rule wins.
Speaker B:Before we dive deeper into Burke's case, we should give our listeners the essential background on Shady Grove, since it's the key precedent here.
Speaker A:Good idea.
Speaker A:So Shady Grove Orthopedic Associates treated a patient injured in a car accident.
Speaker A:When the insurance company paid the medical bills late.
Speaker A:New York law required them to pay 2% monthly interest on the overdue amount.
Speaker A:But Shady Grove's individual claim was only worth about $500.
Speaker A:Not enough for federal court.
Speaker B:Right.
Speaker B:So Shady Grove tried to create a class action, aggregating thousands of similar small claims into a multi million dollar lawsuit.
Speaker B:But New York had a law specifically prohibiting class actions seeking statutory penalties like this interest.
Speaker A:Why did New York have that prohibition?
Speaker B:New York lawmakers worried that class actions would create annihilating punishment by turning small individual penalties into massive aggregate liability.
Speaker A:So here's the legal collision.
Speaker A:Federal Rule 23 says class actions may be maintained if certain conditions are met.
Speaker A:New York law said this particular class action may not be maintained because it sought statutory penalties.
Speaker A:The Supreme Court found these provisions flatly contradicted each other.
Speaker A:Both addressed whether this specific lawsuit could proceed as a class action, since they gave opposite answers.
Speaker A:Federal Rule 23 controlled.
Speaker B:But here's the crucial detail for today's Shady Grove was a fractured decision.
Speaker A:What do you mean by fractured?
Speaker B:Justice Scalia's plurality opinion, joined by only three Justices, contained the most aggressive language about federal rule supremacy.
Speaker B:Justice Stevens provided the crucial fifth vote with a narrower concurrence.
Speaker B:Four Justices dissented entirely.
Speaker B:And this fracture becomes strategically important in Burke vs Choi.
Speaker B:As we'll see when examining how each side characterizes the precedent, let's trace how.
Speaker A:This case moved through the courts.
Speaker A: filed his lawsuit in November: Speaker A:He initially requested extra time to file the required expert affidavit, which the court granted.
Speaker B:So he got nearly five months to find a medical expert willing to support his claims.
Speaker A:Right.
Speaker A:Unable to secure the required expert statement, Burke filed his medical records under seal Instead, the defendants moved for in camera review, meaning they wanted the judge to examine the records privately.
Speaker A:And the district court ultimately dismissed the case because Burke couldn't satisfy Delaware's affidavit requirement.
Speaker A:The Third Circuit Court of Appeals affirmed.
Speaker A:The appellate court ruled that Delaware's law didn't conflict with federal rules because the affidavit is not a pleading and serves a different purpose than pleadings do.
Speaker A:So the Third Circuit essentially said Delaware's requirement operates in a different sphere than federal pleading rules.
Speaker B:Exactly.
Speaker B:And now the Supreme Court gets to weigh in.
Speaker B:So let's examine Harold Burke's arguments for why Delaware's law can't apply in federal court.
Speaker B:His first argument is is the direct conflict claim?
Speaker B:Burke argues that Delaware's affidavit requirement directly conflicts with multiple federal rules under the Shady Grove test.
Speaker A:Walk me through that logic.
Speaker B:Both Delaware law and Federal Rules 8 and 9 answer the fundamental question of what plaintiffs must do to state a claim for relief.
Speaker B:Federal Rule 8 says complaints need three a jurisdictional statement, a short and plain statement of the claim, and a demand for relief.
Speaker B:That's it.
Speaker B:Rule 9 adds special requirements for specific situations like fraud claims.
Speaker B:Right.
Speaker B:So Burke argues that if plaintiffs satisfy these federal requirements, they should be able to proceed.
Speaker B:Period.
Speaker B:Delaware's law says, not so fast.
Speaker B:Even if you meet all federal pleading requirements, you still need this expert affidavit or your case gets dismissed.
Speaker A:That does seem like a direct contradiction.
Speaker A:Plaintiffs who follow Federal Rules 8 and 9 perfectly will still lose their cases under Delaware law.
Speaker B:Exactly.
Speaker B:Burke's second argument focuses on uniformity.
Speaker B: Before: Speaker B:This created what legal scholars called a chaotic patchwork.
Speaker A:How chaotic are we talking?
Speaker B:Federal practice became an activity only for specialists and an abomination for the profession generally.
Speaker B:The Federal Rules eliminated this chaos by creating uniform procedures.
Speaker A: ment would resurrect those pre: Speaker B:Precisely.
Speaker B:Currently, 29 states have affidavit of merit laws for medical malpractice.
Speaker B:If federal courts must apply all these different state requirements, uniformity disappears.
Speaker A:Before we get to the respondents defense, let's step back and see the bigger picture.
Speaker A:This isn't just about Delaware, right?
Speaker B:Absolutely not.
Speaker B:It's part of a nationwide trend where states impose various requirements that plaintiffs must satisfy before proceeding with certain types of lawsuits.
Speaker A:Give me some examples.
Speaker B:Beyond the 29 states with medical malpractice affidavit requirements, several states require special certificates for legal malpractice.
Speaker B:Claims.
Speaker B:Some states impose bonding requirements for certain lawsuits.
Speaker B:Others require pre suit notice periods or mandatory mediation.
Speaker B:What's compelling here is Burke's catalog of other state requirements that courts have confronted.
Speaker B:Georgia requires plaintiffs to attach insurance contracts to certain complaints.
Speaker B:Texas demands affidavits of merit for all professional negligence claims, including architects and engineers.
Speaker B:California conditions certain discovery on particular identification requirements.
Speaker B:The list goes on and on.
Speaker A:So why do states create these requirements?
Speaker B:The rationales vary, but common themes include preventing frivolous litigation, encouraging early settlement, protecting certain industries from excessive lawsuits, and managing court dockets.
Speaker B:But here's the problem for federal courts.
Speaker B:When citizens from different states can choose federal court for their state law claims, do they get to escape these state imposed requirements?
Speaker A:Exactly.
Speaker A:That's the core tension that explains why Burke vs Choi matters far beyond Delaware medical malpractice law.
Speaker B:Burke's final argument targets the Third Circuit's reasoning directly.
Speaker B:The appellate court relied on pre Shady Grove precedent that tried to avoid conflicts between federal rules and state law whenever possible.
Speaker B:And Burke argues this approach directly contradicts Shady Grove's methodology.
Speaker B:The Supreme Court rejected efforts to read federal rules narrowly to avoid conflicts with state law.
Speaker A:Now let's turn to the defense mounted by Dr. Choi and Beebe Medical Center.
Speaker A:Their first argument is that there's no direct collision because Delaware's law operates in a completely different sphere than federal rules.
Speaker B:How do they draw that distinction?
Speaker A:Federal rules govern what pleadings must contain, while Delaware's law creates an evidentiary requirement separate from pleadings.
Speaker A:Rule 8 tells you what to put in your complaint.
Speaker A:Delaware's law tells you what evidence you need to proceed with your case.
Speaker B:And they emphasize that the affidavit doesn't become part of the complaint, stays confidential, and never gets disclosed to defendants.
Speaker A:Right.
Speaker A:Plus, Delaware's law doesn't require the affidavit to be attached to the complaint.
Speaker A:Courts can grant extensions for filing the affidavit well after the complaint is filed.
Speaker A:This temporal separation, they argue, proves the requirements operate independently.
Speaker A:Their second argument is that Delaware's affidavit requirement represents substantive state law that federal courts must respect under Erie.
Speaker A:They trace Delaware's legislative history, showing the General assembly enacted the requirement in response to rising malpractice insurance costs that threatened health care availability.
Speaker B:The requirement is outcome determinative.
Speaker B:Plaintiffs without affidavits cannot proceed with their claims.
Speaker B:Failing to apply Delaware's law in federal court would encourage forum shopping exactly the.
Speaker A:Kind of disparity between state and federal outcomes that Erie sought to prevent.
Speaker A:And they emphasize that Delaware's requirement applies only to medical negligence cases arising under Delaware law.
Speaker A:It's not a general procedural rule.
Speaker B:Now here's where the strategic battle over Shady Grove becomes crucial.
Speaker B:How do respondents characterize that precedent?
Speaker A:They argue that Burke fundamentally misreads Shady Grove as creating a bright line rule hostile to state law.
Speaker A:What stood out to me is how respondents immediately highlight that Shady Grove, the bulk of which did not command a majority, worked a sea change.
Speaker B:That's not just legal nitpicking, is it?
Speaker A:Not at all.
Speaker A:The most aggressive language about federal rule supremacy came from Justice Scalia's plurality opinion, joined by only four Justices.
Speaker A:Respondents emphasized that a majority of Justices actually agreed that courts should avoid immoderate interpretations of the federal rules that would trench on state prerogatives.
Speaker B:So they're arguing that only the narrow points commanding majority support should govern, not the broader plurality reasoning.
Speaker A:Exactly.
Speaker A:And they point out that Shady Grove involved an obvious conflict where Rule 23 said class actions may be maintained, while New York law said certain class actions may not be maintained.
Speaker B:Whereas here, they argue, there's no such obvious conflict.
Speaker B:Delaware's evidentiary requirement can coexist with federal pleading standards.
Speaker A:So how does Burke's reply brief attempt to neutralize the respondents strongest argument on.
Speaker B:The no conflict defense?
Speaker B:Burke argues that respondents miss the forest for the trees.
Speaker B:Whether Delaware calls its requirement evidentiary or procedural doesn't matter.
Speaker A:Both federal rules and Delaware law address the core what must plaintiffs satisfy to maintain their lawsuit?
Speaker B:The reply emphasizes that Shady Grove's test focuses on what rules do, not what they're called or why they exist.
Speaker B:On the substantive law argument, Burke argues that labeling Delaware's requirement as substantive misses the point.
Speaker B:Under modern conflict analysis, even laws serving.
Speaker A:Important substantive policies can conflict with federal rules when they operate through procedural mechanisms.
Speaker A:And here's what's interesting about the Shady Grove characterization.
Speaker A:Burke's reply doesn't acknowledge the fractured nature at all.
Speaker B:Really?
Speaker A:The reply argues that respondents incorrectly minimize Shady Grove's impact by focusing on language about avoiding immoderate interpretations.
Speaker A:Instead, Burke contends that Shady Grove established a clear rule when federal rules and state law answer the same question federal rules control.
Speaker B:Let's talk about what makes this case particularly significant beyond just this one dispute.
Speaker A:It fits into a much broader pattern.
Speaker A:Remember that catalog of state requirements we discussed?
Speaker A:Pennsylvania has special procedures requiring defendants to give plaintiffs notice an opportunity to cure before moving to dismiss.
Speaker A:And federal courts had to graft new procedures onto Rule 12 to make this work.
Speaker B:New Jersey requires special notations on case initiating forms and mandatory case management conferences.
Speaker B:The Third Circuit created modified Affidavit of Merit schemes solely for use in federal court that New Jersey never enacted.
Speaker B:This reveals the deeper issue.
Speaker B:If federal courts must accommodate Delaware's affidavit requirement, what about Texas professional negligence requirements?
Speaker B:Georgia's insurance contract attachments?
Speaker B:Burke argues this would force federal courts to import whole parallel procedural schemes of special pleadings and special motions undermining the federal rule's uniformity.
Speaker B:Federal diversity cases would operate under a bewildering array of state specific requirements that vary by subject matter and jurisdiction.
Speaker A:So this case presents competing visions of how federal diversity jurisdiction should operate.
Speaker B:Walk me through those visions.
Speaker A:Burke's vision prioritizes uniform federal procedure.
Speaker A:When Congress created the federal rules, it chose procedural consistency over accommodation of state variations.
Speaker A: eral Rules resurrects the pre: Speaker A:Respondents vision emphasizes respect for state policy choices.
Speaker A:When states create causes of action, they can condition those rights on reasonable requirements like expert verification.
Speaker A:Federal courts shouldn't become havens where plaintiffs can escape the limitations that state courts would impose on state law claims.
Speaker A:The outcome will likely determine whether federal courts become more uniform policies but less accommodating of state interests, or whether they continue applying state requirements that operate alongside federal procedures.
Speaker B:While Burke vs Choi started with a fall out of bed and allegations of medical negligence in Delaware, the case now presents fundamental questions about the relationship between federal procedural uniformity and state regulatory authority.
Speaker B:The Supreme Court must decide whether Shady Grove's answers the same question test should broadly preempt state requirements that operate alongside federal rules or whether federal courts should continue accommodating state laws that don't directly contradict federal procedures.
Speaker B:The justices will weigh competing procedural uniformity versus state sovereignty, federal efficiency versus accommodation of local policy choices, and bright line rules versus case by case analysis.
Speaker B:Whatever the court decides will affect not just medical malpractice cases but the broader question of how federal diversity jurisdiction operates in our federal system.
Speaker B:The $500 case that Harold Burke couldn't pursue may ultimately determine whether federal courts remain faithful to both federal procedural uniformity and state substantive authority, or whether one value must give way to the other.
Speaker A:The oral arguments should reveal which direction the justices are leaning and whether they view this as a straightforward application of Shady Grove or a more complex balancing of federal and state interests.
Speaker A:That's our analysis of Burke vs Choi.
Speaker A:The oral arguments should reveal which direction the justices are leaning and whether they view this as a straightforward application of Shady Grove or a more complex balancing of federal and state interests.
Speaker A:In our next episode, we'll discuss Villarreal vs Texas, a case that will attempt to answer whether a trial court can constitutionally prohibit a defendant and his counsel from discussing the defendant's testimony during an overnight recess.
Speaker A:Thanks for listening to SCOTUS oral arguments and opinions.
Speaker A:Talk to you soon.
