Justices reject state limits on malpractice actions for cases in federal court

As the justices turn at last to releasing opinions in argued cases, it should be no surprise that they start with unanimous decisions like Berk v. Choy. There, although several of the justices may not be fans of medical malpractice litigation, none of them was willing to clutter up the federal district courts with the special procedures Delaware (like many other states) has designed to limit that litigation.

Justice Amy Coney Barrett starts her opinion with a description of a medical encounter of Harold Berk which did not, as she said, “go well.” Inconsistent treatment over repeated visits for what seemed like a minor ankle injury that happened on a visit to Delaware ultimately led to serious problems requiring surgery. Berk responded, predictably enough, by suing the hospital and one of the responsible doctors. Because the injuries occurred in Delaware, the defendants argued that the court should dismiss the suit since Berk didn’t include an “affidavit of merit” – a certification from a third-party doctor that Delaware law requires, attesting that Berk’s claims have merit. The district court agreed and dismissed the case, which was affirmed by the U.S. Court of Appeals for the 3rd Circuit.

Contrary to the lower courts, the Supreme Court sees no room in federal procedure for the special Delaware requirements. As Barrett explains, whenever parties bring state-law claims in federal court, the federal court “faces a choice-of-law problem: whether to apply state or federal law.” She notes that the federal Rules of Decision Act tells courts that they should apply state law if it is “substantive,” but acknowledges that it is often a hard question “determining whether a state law is substantive,” as this must be resolved under what the court has called “Erie’s murky waters” (referring to a leading Supreme Court decision from the 1930s).

Here, though, Barrett explains that the “federal court bypasses Erie’s inquiry altogether,” because “a Federal Rule of Civil Procedure is on point.” That is because the Rules Enabling Act provides that, for federal courts, “a valid Rule of Civil Procedure displaces contrary state law even if the state law would qualify as substantive under Erie[].”

For Barrett, “Rule [of Civil Procedure] 8 gives the answer” to the “disputed question” in this case – whether Berk must comply with Delaware’s affidavit requirement. From her perspective, Rule 8 “prescribes the information a plaintiff must present about the merits of his claim at the outset of litigation,” and the only thing it calls for is “a short and plain statement of the claim showing that he is entitled to relief.” As Barrett puts it: “By requiring no more than a statement of the claim, Rule 8 establishes … that evidence of the claim is not required.”

The majority also relies on Rule 12, which establishes the standard for dismissing a claim on the merits. As the court’s cases on Rule 12 make clear, a court under that Rule “asks only whether the complaint’s factual allegations, if taken as true, ‘state a claim to relief that is plausible on its face.’” Barrett explains that this low bar is part of a “system of pleading [that] makes it relatively easy for plaintiffs to subject defendants to discovery—even for claims that are likely to fail.” She acknowledges that “lower federal courts have sometimes tried to require more information for certain kinds of claims” – “tried” being the key word – but goes on to say that “[w]e have consistently rejected such efforts.” In sum, she says, “Delaware’s affidavit requirement is at odds with Rule 8 because it demands more”: the affidavit of merit.

Barrett then turns to the defendants’ creative efforts to design a “workaround,” under which a court could ignore most of the specific timelines of the Delaware statute but nevertheless dismiss a matter “early” on if the affidavit is not present. Barrett scoffs at this “rewrit[ing of] Delaware’s law,” which leaves (as she sees it) nothing but “a free-floating evidentiary requirement that can serve as the basis for an early dismissal.” “That defendants cannot fit the affidavit requirement into the Federal Rules,” she says, only “illustrates that it has no place there.”

Having determined that the Federal Rule and the Delaware statute conflict, the last task for her opinion is to consider the validity of Rule 8, which “governs so long as it is valid under the Rules Enabling Act.” That problem does not detain Barrett long, as she starts by quoting the court’s earlier statement that it has “rejected every statutory challenge to a Federal Rule that has come before us.” The rule here, as she sees it, is valid because it in fact is a procedural rule – it “determines what plaintiffs must present to the court about their claims at the outset of litigation.”

The only disagreement with Barrett’s opinion comes from a detailed concurrence by Justice Ketanji Brown Jackson, who reaches the same outcome as Barrett, but relies on an entirely different set of Federal Rules that she views as conflicting with the Delaware statute.

I may be wrong about this, but my strong guess is that this case will not have a major impact on malpractice litigation. Statutes like those in Delaware exist in a lot of states, and the possible availability of an escape hatch by filing the case in federal court has not been around until recently. That the justices have closed that door firmly puts plaintiffs back where they’ve been for several years – subject to the rules state legislators adopt to stifle their litigation.

Having said that, the opinion is interesting in its own way because it draws on a vision of the federal rules that goes far beyond the text. Barrett easily could have written an opinion saying there is no direct conflict between the rules and Delaware law. In truth, the conflict is between Delaware law and the grand conception of what the federal rules are designed to accomplish: a system where the courthouse doors are wide open upon a simple statement of a claim. For its paean to that system, I suspect this opinion will be widely noted.