Authored by: Rob Mohr
On June 3rd, 2025, Public Justice filed an amicus curiae brief in support of Harold Berk. Berk suffered a fall on a trip to Delaware and suffered significant injuries to his left foot and ankle. Alleging medical malpractice, Berk filed a claim in Delaware federal district court against the emergency room doctor who treated him and other parties. Representing himself, Berk claims negligence on the part of the emergency room doctor and the hospital inflicted “unnecessary and extreme” pain, delayed his surgeries, and hampered his recovery efforts.
Under Delaware state law, Berk must submit an affidavit of merit from an expert certifying his claims are meritous. Berk’s orthopedist would not produce an affidavit of merit but advised Berk that his case was credible. Berk shared his medical records with the court and argued that because his case is in federal court, Delaware’s tort laws do not apply. Ultimately, the court dismissed Berk’s case, ruling that his medical records were insufficient for meeting the affidavit of merit requirement and that other decisions support the use of Delaware’s affidavit of merit requirement in federal courts.
Currently, the case is awaiting Supreme Court argument. Circuit courts differ on the issue; the Third and Tenth Circuit courts support the dismissal. Conversely, the Second, Fourth, Fifth, Sixth, Seventh, and Ninth Circuits all disagree with the application of Delaware’s affidavit of merit requirement, citing a conflict with the Federal Rules of Civil Procedure.
Public Justice cautions that Berk v. Choy could set a chaotic and confusing precedent if state requirements, particularly those aimed at tort reform, are used in federal court. The organization predicts a rush of satellite litigation concerning affidavits and unclear guidelines on the appeals process surrounding them. The case has not yet been scheduled for oral argument.
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