Del. Code Ann. tit. 18, § 6853(a)(1)-(3)
The Delaware Affidavit of Merit (“AOM”) statute provides:
(a) No health-care negligence lawsuit shall be filed in this State unless the complaint is accompanied by:
(1) An affidavit of merit as to each defendant signed by an expert witness, . . . stating that there are reasonable grounds to believe that there has been health-care medical negligence committed by each defendant. If the required affidavit does not accompany the complaint or if a motion to extend the time to file said affidavit as permitted by paragraph (a)(2) of this section has not been filed with the court, then the Prothonotary or clerk of the court shall refuse to file the complaint and it shall not be docketed with the court . . . .
(2) The court, may, upon timely motion of the plaintiff and for good cause shown, grant a single 60-day extension for the time of filing the affidavit of merit . . . .
(3) A motion to extend the time for filing an affidavit of merit is timely only if it is filed on or before the filing date that the plaintiff seeks to extend[.]
Background Facts
After allegedly receiving negligent care for an ankle injury, Harold R. Berk sued the defendants for medical malpractice under Delaware law. The federal District Court, sitting in diversity, dismissed Berk’s complaint for failure to file an AOM as required by the Delaware Health-Care Negligence Insurance and Litigation Act, Del. Code Ann. tit. 18, § 6853. Berk appealed.
The United States Court of Appeals for the Third Circuit stated in its July 25, 2024 nonprecedential Opinion: “Under the Erie doctrine, “a federal court sitting in diversity must apply substantive state law and federal procedural law” … To the extent a statute or rule determine the outcome of a case, Erie ensures that such an outcome would be the same regardless of whether the case is filed in federal or state court … Thus, when faced with whether to apply a state statute in a federal case, we must determine whether the state statute conflicts with the Federal Rules. If there is a conflict, then the federal court must apply the Federal Rule, so long as it “is authorized by the Rules Enabling Act[,] [28 U.S.C. § 2072,] and consistent with the Constitution” … If there is no conflict, we must consider whether (1) the state statute is outcome determinative, and (2) applying it would frustrate Erie … A conflict exists when “the scope of [the] Federal Rule [] is sufficiently broad to cause a direct collision with the state law or, implicitly, to control the issue before the court, thereby leaving no room for the operation of [the state] law” … There is no conflict when a state statute and the Federal Rule “can exist side by side, . . .each controlling its own intended sphere of coverage without conflict.””
“A state AOM statute does not conflict with Federal Rules 8 or 9 if it (1) “does not require a plaintiff to set forth any factual averments upon which a claim is based,” (2) “does not have any effect on what is included in the pleadings of a case or the specificity thereof[,]”; and (3) “is not a pleading and need not be filed until well after the complaint” … The Delaware AOM statute (1) does not require a plaintiff to state any facts to support his claim and (2) has no impact on the contents of the pleadings or specificity of the allegations.”
The federal appellate court held: “Because the AOM is not a pleading and serves a different purpose than pleadings do, there is no conflict between the Delaware statute and Rules 8 or 9. The Delaware AOM statute also does not conflict with Rules 11 or 12. “Rule 11 requires an attorney to sign a pleading, thereby attesting that the complaint is meritorious.” ). In contrast, the Delaware AOM statute requires a statement by “an expert witness” representing that “there are reasonable grounds to believe that there has been health-care medical negligence committed by each defendant.” Del. Code Ann. tit. 18, § 6853(a)(1). Put differently, Rule 11 governs attorney conduct, whereas the Delaware statute governs what an expert must do in a particular type of case. These two rules therefore have different “sphere[s] of coverage” and do not conflict … Rule 12 also does not conflict with the Delaware AOM statute. Rule 12 provides litigants a mechanism to test the sufficiency of a complaint’s factual allegations and whether they provide a basis for relief … Whether a complaint is sufficient, however, has no bearing on a court’s decision to dismiss an action for failure to comply with an AOM statute. As stated previously, a state AOM statute “serves an entirely different purpose” from a pleading and contemplates a process for addressing noncompliance that differs from a motion to dismiss based on a pleading defect … Therefore, the Delaware AOM statute does not collide with Rule 12.”
The federal appellate court further held: “Having identified no conflict, we next examine whether the Delaware statute is substantive (and therefore applicable here) or procedural (and therefore not applicable here) by assessing whether: (1) “the state law is outcome-determinative”; and (2) “failure to apply the state law would frustrate the twin aims of [] Erie[,]” namely to (a) “discourage forum shopping” and (b) “avoid inequitable administration of the law” … in Delaware state court, a plaintiff’s failure to comply with the AOM requirement can result in the dismissal of his case … Application of the Delaware statute is thus outcome determinative … As to the question of forum shopping … allowing such a plaintiff to proceed in federal court would provide him an advantage that he would lack in state court and encourage him to find a way to seek relief in a federal court … As to the question of inequitable treatment, if we decline to apply the Delaware AOM statute, “a defendant in federal court would be forced to engage in additional litigation and expense in a non-meritorious malpractice suit simply because the plaintiff was from a different state” and filed suit in federal court … Accordingly, both aims of Erie are satisfied by enforcing the Delaware AOM statute in federal court.”
The federal appellate court concluded: “Therefore, the Delaware AOM statute is substantive and must be enforced by a federal court sitting in diversity, and because Berk did not provide an AOM, the District Court correctly dismissed his complaint.”
Source Berk v. Choy, MD, No. 23-1620.
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