[24-440] Berk v. Choy

Berk v. Choy

Justia · Docket · oyez.org

Argued on Oct 6, 2025.

Petitioner: Harold R. Berk.
Respondent: Wilson C. Choy.

Advocates:

• Andrew T. Tutt (for the Petitioner)
• Frederick R. Yarger (for the Respondents)

Facts of the case (from oyez.org)

Harold R. Berk injured his ankle and allegedly received negligent medical care from three healthcare providers: Dr. Wilson C. Choy, Beebe Medical Center, Inc., and Encompass Health Rehabilitation Hospital of Middletown, LLC. Believing he suffered harm due to their malpractice, Berk filed a lawsuit against them under Delaware law. Like many states, Delaware requires plaintiffs in medical negligence cases to submit an affidavit of merit (AOM)—a statement from a qualified expert certifying that the lawsuit has a reasonable basis—either with the complaint or within a short time after filing.

Berk failed to submit an AOM with his complaint and did not request an extension before the deadline passed. Because the Delaware statute treats the AOM requirement as mandatory, the district court dismissed his case. Berk appealed to the U.S. Court of Appeals for the Third Circuit, which affirmed the dismissal, concluding that the Delaware AOM statute is substantive and therefore must be enforced by a federal court sitting in diversity.

Question

Must a Delaware law providing that a complaint must be dismissed unless it is accompanied by an expert affidavit be enforced by a federal court sitting in diversity?