Petition for Writ of Certiorari — Harold R. Berk, Petitioner v. Wilson C. Choy, et al.
Supreme Court briefOct 16, 2024
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No.
In the Supreme Court of the United States
HAROLD R. BERK, PETITIONER,
v.
WILSON C. CHOY, MD; BEEBE MEDICAL CENTER, INC.;
ENCOMPASS HEALTH REHABILITATION HOSPITAL OF
MIDDLETOWN, LLC.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
JAKE W. MURPHY
ARNOLD & PORTER
KAYE SCHOLER LLP
Suite 3100
1144 Fifteenth Street
Denver, CO 80202
DEVIN M. ADAMS
ARNOLD & PORTER
KAYE SCHOLER LLP
Suite 4000
700 Louisiana Street
Houston, TX 77002
R. STANTON JONES
ANDREW T. TUTT
Counsel of Record
SAMUEL I. FERENC
JILLIAN M. WILLIAMS
JENNIFER F. KAPLAN
ARNOLD & PORTER
KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, DC 20001
(202) 942-5000
andrew.tutt@arnoldporter.com
QUESTION PRESENTED
This case presents a clear, recognized, entrenched
conflict over an important question about the application
of state procedural rules in federal court.
Delaware, like numerous states, requires that in
certain actions the plaintiff must also file an affidavit of
merit (“AOM”) with the complaint. See 18 Del. C. § 6853.
An AOM is an affidavit signed by an expert stating that
there are reasonable grounds to believe that each
defendant has committed the alleged misconduct. See id.
§ 6853(a)(1).
The Second, Fourth, Fifth, Sixth, Seventh, and Ninth
circuits hold that AOM provisions and comparable
statutes do not govern actions in federal court because
they answer the same question as—and therefore conflict
with—several different Federal Rules of Civil Procedure.
The Third and Tenth circuits, in contrast, hold that they
present “no conflict” with any Federal Rules.
In the decision below, the Third Circuit, in an
unpublished opinion, for at least the fifth time, refused to
hold that an AOM statute conflicts with any Federal
Rules. Judge Phipps “concur[red] in only the judgment.”
Third Circuit precedent required him to vote to affirm, he
explained, but “writing on a clean slate . . . he may not
[have] arrive[d] at that same conclusion.”
The question presented is:
Whether a state law providing that a complaint must
be dismissed unless it is accompanied by an expert
affidavit may be applied in federal court.
(i)
RELATED PROCEEDINGS
U.S. District Court for the District of Delaware:
Harold R. Berk v. Wilson C. Choy, M.D., et al.,
No. 1:22-cv-1506-RGA (Apr. 4, 2023) (dismissing
petitioner’s complaint)
U.S. Court of Appeals for the Third Circuit:
Harold R. Berk v. Wilson C. Choy, MD, et al.,
No. 23-01620 (July 25, 2024) (affirming district
court)
(ii)
TABLE OF CONTENTS
Page
Opinions Below ...................................................................... 1
Jurisdiction ............................................................................. 1
Statutory Provision Involved ............................................... 1
Statement of the Case ........................................................... 1
Reasons for Granting the Petition .................................... 12
I. There Is a Clear and Intractable Conflict Over
a Significant Question.................................................. 12
II. The Question Presented Is Important and
Warrants Review In This Case .................................. 24
Conclusion ............................................................................ 27
Appendix A: Third Circuit Court of Appeals Opinion
(Jul. 25, 2024) ............................................... 1a
Appendix B: District Court Memorandum Opinion
(Apr. 4, 2023) .............................................. 12a
Appendix C: 18 Del. C. § 6853 ........................................ 16a
Appendix D: Fed. R. Civ. P. 8 ........................................ 20a
Appendix E: Fed. R. Civ. P. 9 ........................................ 23a
Appendix F: Fed. R. Civ. P. 11 ...................................... 25a
Appendix G: Fed. R. Civ. P. 12 ...................................... 28a
Appendix H: Amended Complaint
(Jan. 30, 2023) ............................................ 33a
(iii)
TABLE OF AUTHORITIES
Cases
Page(s)
Abbas v. Foreign Pol’y Grp., LLC,
783 F.3d 1328 (D.C. Cir. 2015) ........................................ 25
Albright v. Christensen,
24 F.4th 1039 (6th Cir. 2022) ........................................... 21
Chamberlain v. Giampapa,
210 F.3d 154 (3d Cir. 2000) ...................................... 3, 9, 21
Corley v. United States,
11 F.4th 79 (2d Cir. 2021) ................................ 3, 12, 16, 17
Dambro v. Meyer,
974 A.2d 121 (Del. 2009) .................................................... 7
Deblois v. Corizon Health, Inc.,
No. ELH-20-1816, 2021 WL 3142003
(D. Md. July 23, 2021) ...................................................... 23
Dishmon v. Fucci,
32 A.3d 338 (Del. 2011) ...................................................... 7
Duross v. Connections CSP, Inc.,
No. N19C-05-048, 2019 WL 4391231
(Del. Super. Ct. Sept. 13, 2019) ........................................ 7
Erie Railroad Co. v. Tompkins,
304 U.S. 64 (1938) ........................................... 11, 19, 22, 24
Fiorito v. United States,
No. 22-CV-2597, 2023 WL 4407486
(D. Minn. July 7, 2023) ..................................................... 23
Gallivan v. United States,
943 F.3d 291 (6th Cir. 2019) ...................... 3, 13, 14, 15, 22
Hanna v. Plumer,
380 U.S. 460 (1965) ................................................... 3, 6, 25
Liggon-Redding v. Est. of Sugarman,
659 F.3d 258 (3d Cir. 2011) ................................ 3, 9, 19, 21
(iv)
v
Cases—Continued
Page(s)
Makaeff v. Trump Univ., LLC,
715 F.3d 254 (9th Cir. 2013) ............................................ 25
Mammarella v. Evantash,
93 A.3d 629 (Del. 2014) ...................................................... 7
Martin v. Pierce Cnty.,
34 F.4th 1125 (9th Cir. 2022) ..................... 3, 10, 11, 20, 21
Nuveen Mun. Tr. ex rel. Nuveen High
Yield Mun. Bond Fund v. WithumSmith
Brown, P.C.,
692 F.3d 283 (3d Cir. 2012) .......................................... 3, 21
Passmore v. Baylor Health Care Sys.,
823 F.3d 292 (5th Cir. 2016) ........................................ 3, 19
Passmore v. Baylor Health Care Sys.,
841 F.3d 284 (5th Cir. 2016) ............................................ 19
Petrus v. United States,
No. 16-53, 2022 WL 910263
(D.V.I. Mar. 29, 2022)....................................................... 23
Pledger v. Lynch,
5 F.4th 511 (4th Cir. 2021) ......................... 3, 17, 18, 19, 20
Royalty Network, Inc. v. Harris,
756 F.3d 1351 (11th Cir. 2014) ........................................ 25
Schmigel v. Uchal,
800 F.3d 113 (3d Cir. 2015) .......................................... 3, 21
Shady Grove Orthopedic Assocs., P.A. v.
Allstate Ins. Co.,
559 U.S. 393 (2010) ......................... 6, 13, 14, 15, 18, 24, 26
Shields v. United States,
436 F. Supp. 3d 540 (D. Conn. 2020) .............................. 23
Straughter v. United States,
No. 4:20-cv-127-DPM, 2022 WL 883546
(E.D. Ark. Mar. 24, 2022) ................................................ 23
vi
Cases—Continued
Page(s)
Trierweiler v. Croxton & Trench Holding
Corp.,
90 F.3d 1523 (10th Cir. 1996) ................................ 2, 19, 22
Walker v. Armco Steel Corp.,
446 U.S. 740 (1980) ........................................................... 22
Young v. United States,
942 F.3d 349 (7th Cir. 2019) .................................. 3, 15, 16
Statutes
Federal Tort Claims Act .................................. 14, 17, 18, 22
18 Del. C. § 6853..................................................................... 7
18 Del. C. § 6853(a)(1) ........................................................... 7
Colo. Rev. Stat. § 13-20-602................................................ 22
Conn. Gen. Stat. § 52-190a(a) ............................................. 16
735 Ill. Comp. Stat. § 5/2-622 ................................... 15, 16
Wash. Rev. Code § 7.70A.020 ............................................. 11
W. Va. Code § 55-7B-6 ........................................................ 17
Rules
Fed. R. Civ. P. 1 ............................................................. 14, 22
Fed. R. Civ. P. 3 ............................................................. 20, 21
Fed. R. Civ. P. 8 ...................2, 8, 9, 14, 15, 16, 17, 18, 20, 21
Fed. R. Civ. P. 8(a) .............................................................. 14
Fed. R. Civ. P. 8(a)(2).......................................................... 17
Fed. R. Civ. P. 9 ..................................... 2, 8, 9, 14, 16, 18, 21
Fed. R. Civ. P. 11 ............................................... 2, 8, 9, 18, 22
Fed. R. Civ. P. 12 ................................. 2, 8, 10, 14, 16, 18, 21
Fed. R. Civ. P. 26 ............................................................. 2, 19
Fed. R. Civ. P. 37 ............................................................. 2, 19
Fed. R. Civ. P. 56 ................................................................... 2
Ohio Civ. R. 10(D)(2) ........................................................ 14
vii
Other Authorities
Page(s)
17A James Wm. Moore et al., Moore’s Federal
Practice § 124.07[2][b][i] (Matthew Bender
3d ed. 2024) .......................................................................... 2
19 Charles Alan Wright & Arthur R. Miller,
Federal Practice & Procedure § 4511
(3d ed. 2024) .............................................................. 2, 6, 23
Bates McFadden Holman, Note, Allowing AntiSLAPP Statutes in Federal Court
Perpetuates the Rules Enabling Act’s Erie,
Shady Adumbration,
18 Charleston L. Rev. 429 (2023) ..................................... 2
Benjamin Grossberg, Comment, Uniformity,
Federalism, and Tort Reform: The Erie
Implications of Medical Malpractice
Certificate of Merit Statutes,
159 U. Pa. L. Rev. 217 (2010) ............................................ 2
D. Chanslor Gallenstein, Whose Law Is It
Anyway? The Erie Doctrine, State Law
Affidavits of Merit, and the Federal Tort
Claims Act, 60 U. Louisville L. Rev. 19 (2021) ........ 2, 23
Deanna Arpi Youssoufian, Note, The Rules of
the Malpractice Game: Affidavit of Merit
Statutes, Erie, and the Cautionary Tale of an
Overbroad Application of Rule 11,
87 Brook. L. Rev. 1459 (2022) ........................................... 2
Jason C. Sheffield, Congress Prescribes
Preemption of State Tort-Reform Laws to
Remedy Healthcare “Crisis”: An Improper
Prognosis?, 32 J. L. & Health 27 (2019) ..................... 6, 7
Meryl J. Thomas, Note, The Merits of
Procedure vs. Substance: Erie, Iqbal, and
Affidavits of Merit as MedMal Reform,
52 Ariz. L. Rev. 1135 (2010) .............................................. 2
PETITION FOR A WRIT OF CERTIORARI
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Third Circuit (Pet. App. 1a-11a) is unpublished but
available at 2024 WL 3534482. The decision of the United
States District Court for the District of Delaware (Pet.
App. 12a-15a) is unpublished but available at 2023 WL
2770573.
JURISDICTION
The judgment of the court of appeals was entered on
July 25, 2024. The jurisdiction of this Court is invoked
under 28 U.S.C. § 1254(1).
STATUTORY PROVISION INVOLVED
The relevant statutory provision is reproduced in the
petition appendix at Pet. App. 16a-19a.
STATEMENT OF THE CASE
This case presents a square conflict over an
important question of federal procedure: Whether a state
law providing that a complaint must be dismissed unless
it is accompanied by an expert affidavit may be applied in
federal court.
In the decision below, the Third Circuit held that
Delaware’s affidavit of merit (“AOM”) requirement for
medical negligence claims applies in federal court. Pet.
App. 1a-11a. In doing so, the court acknowledged it was
splitting with five courts of appeals that have ruled similar
AOM statutes do not apply in federal court. Pet. App. 8a
n.10. This marks at least the fifth time the Third Circuit
has insisted that state AOM laws must be enforced in
federal court because they purportedly present “no
conflict” with the Federal Rules of Civil Procedure. Pet.
App. 8a; see Pet. App. 5a, 11a n.12 (citing previous cases).
Only the Tenth Circuit shares this position. See
(1)
2
Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d
1523, 1537-38 (10th Cir. 1996).
This case unquestionably warrants the Court’s
review. The conflict is clear, acknowledged, and deeply
entrenched. Numerous courts and commentators have
recognized it.1 Six courts of appeals have ruled that AOM
statutes similar to Delaware’s do not apply in federal
E.g., 19 Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 4511 & nn.95-108.50 (3d ed. 2024)
(discussing split); 17A James Wm. Moore et al., Moore’s Federal
Practice § 124.07[2][b][i] (Matthew Bender 3d ed. 2024) (discussing
split); Deanna Arpi Youssoufian, Note, The Rules of the Malpractice
Game: Affidavit of Merit Statutes, Erie, and the Cautionary Tale
of an Overbroad Application of Rule 11, 87 Brook. L. Rev. 1459,
1461 (2022); see also id. at 1470-73 (discussing the circuit split); id.
at 1469 n.77 (noting conflict among circuits regarding application of
AOM statues and Rules 8, 9, 12, 26 and 56); D. Chanslor Gallenstein,
Whose Law Is It Anyway? The Erie Doctrine, State Law Affidavits
of Merit, and the Federal Tort Claims Act, 60 U. Louisville L. Rev.
19, 34 (2021) (“[F]ederal courts of appeals have reached . . .
inconsistent results vis-a-vis AOM statutes. Some courts have held
outright that the AOM statutes apply, others have held that the
Federal Rules displace state law, others still have split the baby,
and have created intra-circuit splits on the issue.”) (footnote
omitted); Benjamin Grossberg, Comment, Uniformity, Federalism,
and Tort Reform: The Erie Implications of Medical Malpractice
Certificate of Merit Statutes, 159 U. Pa. L. Rev. 217, 242-64 (2010)
(discussing division among courts addressing whether certificateof-merit statutes conflict with Rules 8, 9, 11, 12, 26, and 37); Meryl
J. Thomas, Note, The Merits of Procedure vs. Substance: Erie,
Iqbal, and Affidavits of Merit as MedMal Reform, 52 Ariz. L. Rev.
1135, 1140-43 (2010) (discussing split); Bates McFadden Holman,
Note, Allowing Anti-SLAPP Statutes in Federal Court
Perpetuates the Rules Enabling Act’s Erie, Shady Adumbration, 18
Charleston L. Rev. 429, 473 n.287 (2023) (discussing “the current
Circuit split on whether state certificate of merit requirements
apply in federal court”).
1
3
court, while two have held the opposite.2 The Third Circuit
has doubled down on its position at least five times.3
Further percolation is pointless: the arguments have been
fully aired, and there is no realistic chance this split will
resolve on its own.
The question presented is of paramount legal and
practical significance, and its proper resolution is
essential for maintaining consistency in the federal
courts. Parties gain little from mastering federal
procedural rules if fifty states can impose a fragmented
array of procedural requirements for every state-law
cause of action litigated in federal court. “One of the
shaping purposes of the Federal Rules is to bring about
uniformity in the federal courts by getting away from local
rules.” Hanna v. Plumer, 380 U.S. 460, 472 (1965)
(citation omitted). That purpose is undermined when
federal courts allow a patchwork of state procedural rules
to govern, creating a chaotic landscape where litigants
face drastically different procedural standards based
solely on where they file. Because this case presents an
ideal vehicle for addressing this crucial issue of federal
law, the petition should be granted.
See Pet. App. 8a n.10 (citing Corley v. United States, 11 F.4th 79,
83 (2d Cir. 2021); Pledger v. Lynch, 5 F.4th 511, 515 (4th Cir. 2021);
Young v. United States, 942 F.3d 349, 350 (7th Cir. 2019); Gallivan
v. United States, 943 F.3d 291, 293-34 (6th Cir. 2019)); see also
Passmore v. Baylor Health Care Sys., 823 F.3d 292, 293 (5th Cir.
2016); Martin v. Pierce Cnty., 34 F.4th 1125, 1129-30 (9th Cir. 2022).
3
See Chamberlain v. Giampapa, 210 F.3d 154, 159-61 (3d Cir.
2000); Liggon-Redding v. Est. of Sugarman, 659 F.3d 258, 262-64
(3d Cir. 2011); Nuveen Mun. Tr. ex rel. Nuveen High Yield Mun.
Bond Fund v. WithumSmith Brown, P.C., 692 F.3d 283, 303-04 (3d
Cir. 2012); Schmigel v. Uchal, 800 F.3d 113, 119-20 (3d Cir. 2015);
Pet. App. 1a-11a.
2
4
A. Factual Background
Petitioner Harold R. Berk is a resident and citizen of
Florida who also owns a home in Delaware. Pet. App. 33a.
In August 2020, petitioner sustained injuries to his left
ankle and foot after falling out of bed in his Delaware
home. Pet. App. 34a-35a. He was taken by ambulance to
the emergency room at Beebe Healthcare, a facility
owned by Respondent Beebe Medical Center, Inc.
(“Beebe”). Id. An X-ray revealed fractures to the tibia and
fibula. Respondent Dr. Wilson C. Choy recommended
petitioner’s ankle be placed in a splint. Pet. App. 35a.
Because petitioner had chronic injuries in his lower
extremities, however, Dr. Choy agreed that a controlled
ankle monitor (“CAM”) boot should be used instead. Pet.
App. 35-36a.
Beebe Healthcare staff attempted with difficulty to
fit petitioner with the CAM boot. Pet. App. 36a-37a. The
staff repeatedly and forcibly twisted and turned
petitioner’s fractured leg and manipulated his ankle in an
attempt to force the boot onto his foot, ultimately failing
to do so. Id. These efforts aggravated and worsened
petitioner’s existing fractures and led him to suffer
extreme pain. Id. Nevertheless, no additional X-ray
imaging of petitioner’s ankle was performed. Pet.
App. 38a.
Petitioner remained hospitalized following the
botched CAM boot placement. Pet. App. 37a-38a.
Dr. Choy visited petitioner that evening and advised him
surgery would not be required for either fracture. Pet.
App. 37a. Dr. Choy also advised petitioner not to put
weight on his left leg for eight weeks. Pet. App. 39a. He
gave no indication that he had consulted with the staff
about their failed, painful efforts to apply the CAM boot
to petitioner’s leg; nor did Dr. Choy order additional Xrays. Pet. App. 37a-38a.
5
After three days at Beebe Healthcare, petitioner was
transferred to Encompass Health Rehabilitation Hospital
of Middletown, owned by Respondent Encompass Health
Rehabilitation
Hospital
of
Middletown,
LLC
(“Encompass”). Pet App. 38a. While at the Encompass
facility, petitioner noticed his left leg appeared deformed
and was oriented at an unusual leftward angle. Id.
Encompass staff were informed of the issue and, in fact,
noted the left foot was “somewhat rotated externally.”
Pet. App. 39a. But no X-rays were performed or
treatment otherwise provided—to the contrary,
petitioner was made to participate in physical and
occupational therapy requiring him to place weight on his
injured left leg, despite Dr. Choy’s orders to the contrary.
Pet. App. 38a-39a.
A week after his discharge from Encompass,
petitioner went to an appointment at Dr. Choy’s office
(though Dr. Choy himself was not present). Pet. App. 40a.
Dr. Choy’s physician assistant ordered an X-ray of
petitioner’s left ankle. Id. That imaging showed
petitioner’s leg was severely deformed, with his fractured
bones pointing in three different directions, a serious
injury known as a trimalleolar ankle fracture. Pet.
App. 40a-41a. After consulting with Dr. Choy by phone,
the physician assistant informed petitioner he required
immediate surgery to correct these deformities. Id.
Petitioner then contacted Dr. Steven Raikin, then-head of
the ankle and foot practice at the Rothman Orthopaedic
Institute. Pet. App. 41a. Dr. Raikin reviewed the imaging
and confirmed it showed major deformities in petitioner’s
left ankle; urgent surgery was necessary. Pet. App. 41a42a. Petitioner was taken that same day to Thomas
Jefferson University Hospital. Pet. App. 42a. After a
diuresis procedure to reduce fluid from petitioner’s lungs,
Dr. Raikin performed the needed surgery. Pet. App. 43a.
At the conclusion of the operation, an external fixator
6
device was installed into petitioner’s bones to hold the
ankle in alignment as it healed. Id.
After four months of constant pain and repeated
treatments for leg ulcers, Dr. Raikin performed a second
successful surgery to remove the external fixator. Pet.
App. 43a-44a. Months of extensive physical and
occupational therapy followed. Pet. App. 44a. Over a year
after the original incident, petitioner was finally able to
walk short distances with a cane in October 2021. Id.
B. Legal Background
1. Federal courts sitting in diversity must “apply
state substantive law and federal procedural law.”
Hanna, 380 U.S. at 465. When both a federal rule and a
state law purport to answer the same question of
procedure, the federal rule will govern, assuming the
federal rule is constitutional and within the scope of the
Rules Enabling Act—notwithstanding the contrary state
provision. Shady Grove Orthopedic Assocs., P.A. v.
Allstate Ins. Co., 559 U.S. 393, 398 (2010) (majority op.).
The first question, then, is whether any Federal Rule of
Civil Procedure “answer[s] the same question” as the
state law or rule. Id. at 401. If so, a court must then ask
whether the Federal Rule is valid under the Rules
Enabling Act and the federal Constitution. Id. at 398. If
so, the inquiry ends—the court must apply the Federal
Rule over the state law or rule.
2. Numerous states have enacted “affidavit of merit”
laws that require “medical-malpractice plaintiffs to file an
affidavit (either before, contemporaneously with, or
shortly after filing a complaint) signed by an expert or the
plaintiff's attorney attesting to the expert’s belief that the
case is meritorious.” Jason C. Sheffield, Congress
Prescribes Preemption of State Tort-Reform Laws to
Remedy Healthcare “Crisis”: An Improper Prognosis?,
32 J. L. & Health 27, 29 (2019); see also 19 Charles Alan
Wright & Arthur R. Miller, Federal Practice & Procedure
7
§ 4511 (3d ed.) (describing statutes). These statutes are
also sometimes referred to as “certificate of review,”
“certificate of merit,” “good-faith certificate,” and “expert
report” statutes. As of 2019, “twenty-seven states
require[d] a certificate of merit in medical-malpractice
cases.” Sheffield, supra at 29; see also id. at 37-47
(surveying statutes).
The Delaware General Assembly passed an affidavit
of merit statute in 2003 amendments to the State’s
Medical Negligence Act. The Delaware AOM statute
requires “that all complaints alleging medical negligence
be accompanied by an affidavit of merit, signed by a
qualified expert witness and stating that there are
reasonable grounds to believe that each defendant has
committed medical negligence.” Dambro v. Meyer, 974
A.2d 121, 132-33 (Del. 2009) (citing 18 Del. C. § 6853). “If
the required affidavit does not accompany the complaint
. . . then the Prothonotary or clerk of the court shall refuse
to file the complaint and it shall not be docketed with the
court.” 18 Del. C. § 6853(a)(1) (emphasis added). This
affidavit is a “filing requirement[],” Dishmon v. Fucci, 32
A.3d 338, 342 (Del. 2011), without which a case cannot “get
through the courthouse doors,” Mammarella v.
Evantash, 93 A.3d 629, 637 (Del. 2014); see also Dishmon,
32 A.3d at 344-45 (without AOM, “the Court will not
entertain the case”); Duross v. Connections CSP, Inc.,
No. N19C-05-048, 2019 WL 4391231, at *3 (Del. Super. Ct.
Sept. 13, 2019) (without AOM, “[c]omplaint is statutorily
deficient”).
C. Procedural Background
1. In November 2022, petitioner initiated this case pro
se in federal district court for the District of Delaware,
alleging claims of medical negligence against Beebe, Dr.
Choy, and Encompass. Attempting to comply with
Delaware’s AOM statute, petitioner filed with the
complaint a motion under 18 Del. C. § 6853(a)(2) for an
8
extension of time to file an affidavit, which was granted.
Pet. App. 14a, 16a. In the meantime, each defendant
answered and filed cross-claims against its co-defendants.
Petitioner then sought an affidavit of merit from Dr.
Raikin, who advised that though Petitioner had what Dr.
Raikin viewed as a good malpractice case, he could not
provide an affidavit. C.A. App’x 202-203. In an attempt to
nonetheless comply with the AOM statute, Petitioner filed
medical records and documents from Beebe, Thomas
Jefferson University Hospital, and the Rothman
Orthopedic Institute with the court under seal. Pet.
App. 12a, 14a.
After Beebe, Encompass, and Dr. Choy filed motions
seeking in camera review of the filings to assess whether
they satisfied the AOM statute, petitioner filed an
opposition to the motions, arguing, inter alia, that the
State’s AOM statute does not apply in diversity actions in
federal court. Pet. App. 14a. But the District Court
dismissed petitioner’s claims for failure to comply with the
AOM law. Pet. App. 14a-15a. In its ruling, the District
Court concluded Third Circuit law required it to apply the
Delaware AOM statute in diversity cases. Pet. App. 14a.
2. The Third Circuit affirmed without argument and
in an unpublished opinion. The court held that Delaware’s
AOM statute did not conflict with the Federal Rules of
Civil Procedure, including Rules 8, 9, 11, and 12, and that
the AOM statute is “substantive state law” that applies in
federal court. Pet. App. 3a-10a.
The Third Circuit recognized that this was not a new
or isolated issue in its circuit. In fact, it has addressed this
question multiple times and repeatedly upheld the
application of state AOM statutes in federal diversity
cases. The Third Circuit emphasized that it had
consistently held that these state statutes do not conflict
with the Federal Rules and must be applied in federal
court. The court specifically noted that its previous
9
decisions regarding the Pennsylvania and New Jersey
AOM statutes—including Liggon-Redding v. Estate of
Sugarman, 659 F.3d 258 (3d Cir. 2011), and Chamberlain
v. Giampapa, 210 F.3d 154 (3d Cir. 2000)—compelled its
ruling here. Pet. App. 5a.
The Third Circuit first addressed whether the AOM
statute conflicts with Rules 8 or 9. Rule 8 requires that a
complaint include a “short and plain statement of the
claim showing that the pleader is entitled to relief”; Rule
9 governs the pleading of special matters and imposes
certain heightened pleading requirements in a small
category of cases. The Third Circuit found no conflict with
either of those rules, explaining that, under its precedent,
an AOM statute does not conflict with Rules 8 or 9 if it
“does not require a plaintiff to set forth any factual
averments upon which a claim is based,” “does not have
any effect on what is included in the pleadings of a case or
the specificity thereof,” and “is not a pleading and need
not be filed until well after the complaint.” Pet. App. 6a
(cleaned up). The Third Circuit held that Delaware’s AOM
statute meets these requirements. Pet. App. 6a. The court
emphasized that “[b]ecause 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.”
Pet. App. 7a.
The Third Circuit turned to Rule 11, which requires
attorneys to sign pleadings and certify that they are being
filed for a proper purpose and that the claims included
have merit. The court explained that the AOM statute
does not conflict with Rule 11 because “Rule 11 governs
attorney conduct, whereas the Delaware statute governs
what an expert must do in a particular type of case.” Pet.
App. 7a. The court concluded that “[t]hese two rules
therefore have different spheres of coverage and do not
conflict.” Pet. App. 7a (cleaned up).
10
Finally, the Third Circuit rejected any conflict
between the AOM statute and Rule 12, which governs
motions to dismiss for failure to state a claim. The court
explained that while Rule 12 provides “a mechanism to
test the sufficiency of the complaint’s factual allegations,”
the AOM statute “serves an entirely different purpose.”
Pet. App. 8a. “Whether a complaint is sufficient . . . has no
bearing on a court’s decision to dismiss an action for
failure to comply with an AOM statute.” Pet. App. 8a.
Delaware’s AOM statute instead “contemplates a process
for addressing noncompliance that differs from a motion
to dismiss based on a pleading defect.” Pet. App. 8a.
“Therefore, the Delaware AOM statute does not collide
with Rule 12.” Pet. App. 8a.
In a footnote, the Third Circuit acknowledged the
existence of a circuit split regarding whether state AOM
statutes apply in federal court. Pet. App. 8a n.10. The
court recognized that five circuits—the Second, Fourth,
Sixth, Seventh, and Ninth circuits—have held that similar
AOM statutes do not apply in federal court. Pet. App. 8a
n.10. The Third Circuit stated that “[m]any” of the cases
were “federal question cases” rather than diversity cases
and appeared to suggest (without explicitly stating) that
state AOM statutes may not apply in federal question
cases. See Pet. App. 8a n.10. The court stated that the
Sixth and Ninth circuits’ positions were “further
distinguishable because they treat AOMs as pleadings . . .
which is contrary to our conclusion that AOMs are not
pleadings where, as here, the state AOM statute permits
temporal separation of the filing of the complaint and the
AOM.” Pet. App. 8a n.10 (cleaned up).4
The Third Circuit incorrectly described the Ninth Circuit
decision in Martin v. Pierce County, 34 F.4th 1125 (9th Cir. 2022),
as addressing an AOM statute. Pet. App. 8a n.10. In fact, Martin
concerned a Washington provision requiring medical-malpractice
4
11
After concluding that there was no conflict between
Delaware’s AOM statute and the Federal Rules, the court
analyzed whether the AOM statute is substantive under
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), and
therefore applicable in federal diversity cases. Pet.
App. 8a-11a. The court applied the two-part Erie inquiry,
evaluating: (1) whether the state law is outcome
determinative, and (2) whether failure to apply the state
law would frustrate the twin aims of Erie—discouraging
forum shopping and avoiding inequitable administration
of the law. Pet. App. 8a-9a.
The court found that Delaware’s AOM statute is
outcome determinative because failure to comply “can
result in the dismissal of [a] case.” Pet. App. 9a. The court
then concluded that failure to apply Delaware’s AOM
statute would frustrate the twin aims of Erie. Pet.
App. 9a-10a. The Third Circuit reasoned that forum
shopping would be a concern because plaintiffs unable to
secure an AOM would have an incentive to file in federal
court. Pet. App. 9a. And permitting diverse plaintiffs to
file federal cases without complying with the AOM statute
would “force[]” defendants “to engage in additional
litigation and expense in a non-meritorious malpractice
suit simply because the plaintiff was from a different
state.” Pet. App. 9a-10a. “Accordingly” the Third Circuit
found “both aims of Erie are satisfied by enforcing the
Delaware AOM statute in federal court.” Pet. App. 10a.
In a footnote, the court noted that Judge Phipps
“concur[red] in only the judgment.” Pet. App. 11a n.12.
plaintiffs to file with their complaint a declaration declining to
submit the case to arbitration. See Martin, 34 F.4th at 1126-27
(citing Wash. Rev. Code § 7.70A.020). Martin nevertheless drew
heavily on AOM case law from the Second, Fourth, Sixth, and
Seventh circuits and applied the same approach to conclude that the
Washington statute is “displaced … in federal court” by the Federal
Rules. Id. at 1132.
12
“Judge Phipps agree[d] with the disposition of [the]
appeal because he [saw] no persuasive grounds for
preventing the legal reasoning in this Court’s prior
precedents.” Pet. App. 11a (collecting Third Circuit
precedents holding that materially similar AOM statutes
from Pennsylvania and New Jersey apply in federal
court). But, Judge Phipps explained that if he were
“writing on a clean slate . . . he may not arrive at that same
conclusion.” Pet. App. 11a n.12.
REASONS FOR GRANTING THE PETITION
I.
THERE IS A CLEAR AND INTRACTABLE
CONFLICT OVER A SIGNIFICANT QUESTION
The decision below deepens an entrenched and
undeniable conflict over a question that one circuit
recognized is “of significance not only in [this circuit], but
also in other circuits which are divided about whether
analogous ‘state law certification requirements should be
given effect in a federal court.’” Corley v. United States,
11 F.4th 79, 87 (2d Cir. 2021) (Lynch, J.) (citation omitted).
The conflict is stark: multiple circuits, including the Third
Circuit below, have openly acknowledged the split and
repeatedly rejected the positions of their sister circuits.
The uncertainty is pervasive, with even some courts on
the majority side of the divide disagreeing on the exact
reasoning for finding AOM statutes inapplicable in
federal court. This disarray only underscores the urgent
need for this Court’s intervention:
• Six circuits—the Second, Fourth, Fifth, Sixth,
Seventh, and Ninth—hold that affidavit of merit
provisions and comparable statutes must not
apply in federal court because they conflict with
one or more Federal Rules.
• Two circuits—the Tenth and Third—hold that
affidavit of merit statutes must apply in federal
13
court because they are substantive and do not
conflict with any Federal Rules.
The stark division over this fundamental question is
untenable. It breeds uncertainty and confusion about
which procedural rules govern actions in federal courts,
undermining the consistency the Federal Rules are meant
to provide. Worse still, it highlights a broader, unresolved
uncertainty in the lower courts about how to conduct
conflicts analysis—an uncertainty that has persisted since
this Court’s decision in Shady Grove Orthopedic
Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393
(2010). This confusion demands immediate resolution.
The conflict here is unmistakable and entrenched,
openly acknowledged by courts and commentators alike,
with no realistic prospect of resolving itself. See, e.g.,
supra note 1. Litigants face dramatically different
procedural rules depending solely on where their case is
heard, creating enormous disparities in the application of
state AOM statutes in federal courts. This split has
persisted for decades, now standing at 6-2, with each side
firmly committed to its position. Any hope that this
division will resolve itself is long gone. The conflict is ripe
for resolution, and this Court’s intervention is urgently
needed to provide definitive guidance on how to address
Federal Rules conflicts in cases involving AOM statutes.
The circuit split is undeniable, deeply rooted, and should
be settled by this Court in this case.
A.1. The decision below directly conflicts with settled
law in the Sixth Circuit. In Gallivan v. United States, the
Sixth Circuit unequivocally held that state-law affidavitof-merit requirements materially similar to Delaware’s do
not apply in federal court. 943 F.3d 291, 293-94 (6th Cir.
2019) (Thapar, J.).5 The court provided a clear and
Just like in Delaware, the Ohio rule at issue in Gallivan
“require[d] a person alleging medical negligence to include a
5
14
detailed analysis of why such requirements conflict with
the Federal Rules of Civil Procedure. Id. Applying the
framework from Shady Grove, 559 U.S. at 398-406, the
Sixth Circuit concluded that Rules 8 and 12 establish the
exclusive requirements to state a claim for relief in federal
court. 943 F.3d at 293-94. State laws that purport to
impose
additional
requirements
are
therefore
inapplicable. Id..
The Gallivan court’s reasoning was straightforward.
Rule 8(a) sets forth the requirements for a complaint, and
“implicitly ‘excludes other requirements that must be
satisfied for a complaint to state a claim for relief.’” Id. at
293 (citation omitted). Rule 12, in turn, allows a complaint
to survive a motion to dismiss by simply alleging facts
“sufficient to state a claim to relief that is plausible on its
face,” without requiring any “evidentiary support.” Id.
Additionally, “Rule 9 confirms the point by specifying the
few situations when heightened pleading is required—for
instance, when a party alleges fraud or mistake.” Id. at
293-94.
Critically, the Sixth Circuit explicitly rejected
arguments that state affidavit-of-merit requirements
should apply in at least some contexts in federal court.
The court rebuffed the United States’ contention that the
Federal Rules of Civil Procedure should be more readily
displaced in Federal Tort Claims Act (FTCA) cases like
Gallivan than in diversity cases. Id. at 294. The court
emphasized that “Rule 1 states that the Federal Rules
apply in basically all civil actions in federal court” and that
an “FTCA action is a civil action in federal court.” Id. As
such, the Federal Rules apply absent clear instructions to
the contrary. Id.
medical professional’s affidavit stating that the claim has merit”
with his complaint. 943 F.3d at 293 (citing Ohio Civ. R. 10(D)(2)).
15
The Sixth Circuit also thoroughly engaged with and
rejected the argument that there was no conflict between
the AOM statute at issue and the federal rules. Id. at 29697. At bottom, the Sixth Circuit concluded that the
affidavit of merit statute functioned as “a pleading
requirement that does not go to the merits of a medicalnegligence claim.” Id. at 296. As a consequence, there was
a “clear conflict between the federal pleading rules and
the state affidavit-of-merit requirement” under this
Court’s guidance in Shady Grove. Id. at 296-97.
Gallivan squarely addresses the issue presented
here and provides a thorough, well-reasoned analysis for
why state affidavit-of-merit requirements do not apply in
federal court. Its holding and reasoning are directly at
odds with the decision below.
2. The decision below also directly conflicts with
settled law in the Seventh Circuit. In Young v. United
States, the Seventh Circuit also held that state-law
affidavit-of-merit requirements just like Delaware’s do
not apply in federal court. 942 F.3d 349, 351 (7th Cir. 2019)
(Easterbrook, J.).6 The court provided a clear and detailed
analysis of why such requirements conflict with the
Federal Rules of Civil Procedure, which provide the
exclusive pleading standards in federal court. Id. at 35051.
The Young court’s reasoning was straightforward.
The court explained that “Rule 8 of the Federal Rules of
Civil Procedure specifies what a complaint must contain”
and “does not require attachments.” Id. at 351. The court
emphasized that in federal court, one can “initiate a
As in Delaware, the Illinois statute at issue in Young requires an
affidavit stating that “there is a reasonable and meritorious cause”
for litigation (along with a physician’s report supporting the
affidavit) to be attached to the complaint unless an exception
applies. 942 F.3d at 350-51 (citing 735 Ill. Comp. Stat. § 5/2-622).
6
16
contract case without attaching the contract, an insurance
case without attaching the policy, a securities case without
attaching the registration statement, and a tort case
without attaching an expert’s report.” Id. “Many cases
hold that federal, not state, rules apply to procedural
matters—such as what ought to be attached to
pleadings—in all federal suits, whether they arise under
federal or state law.” Id. Thus, the affidavit of merit
statute conflicted with Rule 8. Id.
Young squarely addresses the issue presented here
and its holding and reasoning are directly at odds with the
decision below. The Seventh Circuit’s decision in Young is
particularly noteworthy because the Illinois statute at
issue operated in a manner almost precisely identical to
the Delaware statute in this case. The Seventh Circuit’s
unequivocal holding that 735 Ill. Comp. Stat. § 5/2-622
does not apply in federal court, to the extent it functions
as a procedural rule, is in direct conflict with the Third
Circuit’s decision below.
3. The decision below also directly conflicts with
settled law in the Second Circuit. In Corley v. United
States, the Second Circuit held that state-law affidavit-ofmerit requirements like Delaware’s do not apply in
federal court. 11 F.4th at 88-89.7 In reaching the
conclusion that such AOM statutes conflict with Rules 8,
9, and 12, the Second Circuit looked to and followed the
As in Delaware, the Connecticut law at issue in Corley required
a party filing a medical malpractice action to affix to the complaint
a certificate stating that “reasonable inquiry gave rise to a good
faith belief that grounds exist for an action.” 11 F.4th at 85 (quoting
Conn. Gen. Stat. § 52-190a(a)). And to show the existence of such
good faith, the certificate was required to attach “a written and
signed opinion of a similar health care provider [to the treating
physician] . . . that there appears to be evidence of medical
negligence” along with a “detailed basis for the formation of such
opinion.” Id.
7
17
Sixth Circuit’s analysis in Gallivan. Id.8 The Second
Circuit found the reasoning of Gallivan “instructive.” Id.
at 89. “All that Federal Rule of Civil Procedure 8
requires,” the Second Circuit explained, is a “short and
plain statement of the claim showing that the pleader is
entitled to relief.” Id. (quoting Fed. R. Civ. P. 8(a)(2)).
“The Rule embodies a policy of ‘notice pleading’ that
eschews the need to plead specific types of documentary
evidence to establish a plausible claim.” Id. “This is in
direct contrast to the heightened pleading requirement”
imposed by AOM statutes. Id. Thus, the Second Circuit
held that such AOM statutes conflict with the Federal
Rules. Id.
Corley squarely addressed the question presented
and reached a holding utterly irreconcilable with the
answer given by the Third Circuit below. The Second
Circuit’s unequivocal holding that AOM requirements do
not apply in federal court is in direct conflict with the
Third Circuit’s decision below.
4. The decision below further directly conflicts with
settled law in the Fourth Circuit. In Pledger v. Lynch, the
Fourth Circuit also unequivocally held that state AOM
laws conflict with the Federal Rules of Civil Procedure.9 5
The Second Circuit in Corley, like the Sixth Circuit in Gallivan,
also rejected the United States’ argument that that the Federal
Rules of Civil Procedure should be more readily displaced in FTCA
cases than in diversity cases. 11 F.4th at 88-89.
9
Similar to Delaware, the West Virginia law at issue in Pledger
imposed a pre-suit notice and certification requirement for medical
negligence cases. 5 F.4th at 517-18 (citing W. Va. Code § 55-7B-6).
Under that law, would-be medical malpractice plaintiffs must serve
on each putative defendant, at least thirty days prior to filing suit, a
notice of claim that includes a “screening certificate of merit” from
a health care provider who qualifies as an expert under state law.
See id. And in that certificate, the expert must set out and explain
her judgment that the “applicable standard of care was breached”
in a way that “resulted in injury or death.” Id.
8
18
F.4th 511, 518-20 (4th Cir. 2021) (Harris, J.). Explaining
that it was joining a “growing consensus” of courts, the
Fourth Circuit looked to the Sixth Circuit’s analysis in
Gallivan and the Seventh Circuit’s analysis in Young in
similarly concluding that AOM statutes conflict with
Federal Rules of Civil Procedure 8, 9, and 12. Id. at 51820. “Following their guidance,” the Fourth Circuit held,
“we conclude that the Federal Rules governing the
sufficiency of pleadings likewise answer the ‘question in
dispute’ here, and thus supplant” state AOM
requirements. Id. at 519. Rule 8 only requires a short plain
statement to state a claim—no further documents are
required. Id. at 520. Rule 9 provides the narrow set of
circumstances in which the pleading requirements may be
heightened. Id. And Rule 12 provides the exclusive list of
bases for dismissing an action, none of which include the
failure to provide a document. Id.10 The Fourth Circuit
also held that AOM statutes additionally transgress Rule
11 because it is the federal rule designed to deter frivolous
lawsuits, and thus to the extent AOM statutes seek to
accomplish the same purpose through a different
mechanism, they are in conflict. Id.
Judge Quattlebaum dissented from the majority’s
holding that AOM statutes conflict with any of the
Federal Rules of Civil Procedure. Pledger, 5 F.4th at 52735 (Quattlebaum, J., concurring in part and dissenting in
part). He argued that the Federal Rules do not actually
answer the question of whether a certificate of merit is
required, finding no direct conflict under the Shady Grove
analysis. Id. at 527-32. Ultimately, Judge Quattlebaum—
in line with the reasoning of the Third Circuit—concluded
The Fourth Circuit in Pledger, like the Sixth Circuit in Gallivan
and Second Circuit in Corley, also rejected the United States’
argument that that that the Federal Rules of Civil Procedure should
be more readily displaced in FTCA cases than in diversity cases.
Pledger, 5 F.4th at 522.
10
19
that because the relevant certificate of merit requirement
is substantive state law and does not conflict with the
Federal Rules, it should apply in federal court. See id.
5. The decision below also conflicts with settled law in
the Fifth Circuit. In Passmore v. Baylor Health Care
System, the Fifth Circuit held that even AOM statutes
with a twist—requiring an expert report within 120 days
of a defendant’s answer, rather than alongside the
complaint—also cannot apply in federal court. 823 F.3d
292, 293 (5th Cir. 2016). The Fifth Circuit concluded that
by requiring an expert report on a mandatory timeline,
and instructing that complaints must be dismissed if the
deadline is missed, the Texas AOM statute at issue
conflicted with Rules 26 and 37 of the Rules of Civil
Procedure. See id. at 296-97; see also id. at 294 (describing
statute’s requirements). Rule 26(a), the Fifth Circuit held,
governs pretrial disclosures and discovery, including the
disclosure of expert reports, and Rule 37(c) provides the
consequences for a party’s failure to comply with Rule
26(a) requirements. Id. at 296. Those rules conflict with,
and thereby displace, a state AOM requirement that
purports to require the filing of an expert report on a
mandatory timeline and purports to set the consequences
(dismissal) for failure to comply. See id. at 296-98.
Four judges—Jones, Smith, Clement, and Owen—
dissented from the denial of rehearing en banc. Passmore
v. Baylor Health Care Sys., 841 F.3d 284 (5th Cir. 2016).
In their view, the panel “does not apply Erie-related
concepts accurately.” Id. at 285. The dissenters also
stated that the decision of the panel was irreconcilable
with the decisions of the Third Circuit and Tenth Circuit
that had held that AOM statutes can lawfully apply in
federal court. See id. at 285-86 (citing and discussing
Liggon-Redding v. Est. of Sugarman, 659 F.3d 258 (3d
Cir. 2011) and Trierweiler v. Croxton & Trench Holding
Corp., 90 F.3d 1523 (10th Cir. 1996)).
20
6. The decision below further conflicts with settled
law of the Ninth Circuit. In Martin v. Pierce County, the
Ninth Circuit applied AOM case law from the Second,
Fourth, Sixth, and Seventh circuits to hold that federal
courts may not apply a Washington statute that requires
a medical-malpractice plaintiff to file with their complaint
a declaration electing or declining arbitration. 34 F.4th
1125, 1129-32 (9th Cir. 2022). Although the Ninth Circuit
noted that no court had yet addressed “a declaration
requirement exactly like Washington’s,” AOM cases
“provide[d] a useful analogy” because “they generally
require plaintiffs to file a declaration with the pleadings
containing some reassurance, usually by an expert, that
the claim has merit.” Id. at 1129.
Recognizing the “‘growing consensus’ among federal
circuit courts that such certificate requirements do not
govern actions in federal court, because they conflict with
and are thus supplanted by the Federal Rules of Civil
Procedure,” the Ninth Circuit concluded that the
Washington statute creates materially identical conflicts
and is accordingly displaced. Id. at 1130-32 (quoting
Pledger, 5 F.4th at 518). Embracing and applying the
reasoning of the Fourth Circuit in Pledger, the Sixth
Circuit in Gallivan, and the Seventh Circuit in Young, the
Ninth Circuit held that “Rule 8’s requirement of a ‘short
and plain statement’ of the plaintiff's claim, jurisdictional
statement, and explanation of the relief sought is ‘a list of
elements that implicitly excludes other requirements.’”
Id. at 1130 (quoting Pledger, 5 F.4th at 519). Because the
Washington statute attempted to add additional
requirements to that exclusive list, the Ninth Circuit held
that it was displaced by Rule 8. Id.
The Ninth Circuit also held that the Washington
statute was displaced by Federal Rule 3. Id. at 1131-32.
Adopting the “instructive” reasoning of a Sixth Circuit
decision that followed Gallivan, the Ninth Circuit held
21
that Rule 3 “requires only the filing of a complaint to
commence an action—nothing more.” Martin, 34 F.4th at
1131 (quoting Albright v. Christensen, 24 F.4th 1039, 1046
(6th Cir. 2022)). The Washington statute conflicted with
that rule “by adding additional, procedural steps for
commencing a suit beyond those that Rule 3
contemplates.” Id. Because Rule 3 “governs how a lawsuit
is commenced,” and Washington’s law requires filing a
declaration “when commencing a medical malpractice
claim,” the Ninth Circuit held that the state provision was
displaced by Rule 3. Id.
B. In sharp contrast with the six circuits discussed
above, the Third and Tenth circuits have held that
affidavit of merit statutes do not conflict with any valid
federal rules.
1. In a series of cases culminating in the decision
below, the Third Circuit has repeatedly and consistently
held for decades that AOM statutes do not conflict with
any Federal Rules of Civil Procedure. See Pet. App. 1a12a; Schmigel v. Uchal, 800 F.3d 113, 119 (3d Cir. 2015);
Nuveen Mun. Tr. ex rel. Nuveen High Yield Mun. Bond
Fund v. WithumSmith Brown, P.C., 692 F.3d 283, 303-04
(3d Cir. 2012); Liggon-Redding v. Est. of Sugarman, 659
F.3d 258, 262-64 (3d Cir. 2011); Chamberlain v.
Giampapa, 210 F.3d 154, 159-61 (3d Cir. 2000). The Third
Circuit has reasoned that AOM statutes do not affect
pleading requirements and therefore do not conflict with
Rules 8 or 9, and that failure to include an affidavit of
merit is simply another grounds for dismissal, and
therefore does not conflict with the enumerated bases for
dismissal set forth in Rule 12. See Pet. App. 6a-8a.11
In the decision below, the Third Circuit purported to distinguish
this case from the contrary holdings of other circuits on the basis
that this is a diversity case. Pet. App. 8a n.10. But as the Sixth
Circuit persuasively explained in Gallivan, there is absolutely no
11
22
2. The Tenth Circuit has taken the same position as
the Third Circuit. In Trierweiler v. Croxton & Trench
Holding Corp., the Tenth Circuit held that AOM statutes
do not “collide[] with any federal procedural rule[s].” 90
F.3d 1523, 1539-40 (10th Cir. 1996).12 After examining the
statute and the Federal Rules, the Tenth Circuit
concluded that no Federal Rule was “directly on point.”
Id. at 1540. The only rule that it could even be “argued”
would result in a direct collision, according to the Tenth
Circuit, was Rule 11. Id. at 1540. Both the AOM statute
and Rule 11 “demonstrate an intent to weed unjustifiable
claims out of the system.” Id. But “[d]espite the
superficial similarity of the two rules,” the Tenth Circuit
“conclude[d] that they do not collide.” Id. Each could
“exist side by side,” “controlling its own intended sphere
of coverage without conflict.” Id. (quoting Walker v.
Armco Steel Corp., 446 U.S. 740, 752 (1980)). Thus,
“[a]lthough the state and federal rules [were] similar,”
there was “no ‘direct collision’ between the two.” Id.
The Tenth Circuit’s conflicts analysis—which looks
identical to the Third Circuit’s analysis in this case,
including reliance on Walker v. Armco Steel Corp. for its
conflicts analysis—is irreconcilable with the conflicts
analysis used to hold that AOM statutes and similar
difference in Erie analysis between an FTCA case and a diversity
case. See Gallivan, 943 F.3d at 295. The basis for jurisdiction does
not change the nature of the action or the application of the Federal
Rules of Civil Procedure, which apply to “all civil actions.” Fed. R.
Civ. P. 1.
12
Similar to Delaware, the Colorado statute in Trierweiler
required the plaintiff’s attorneys in professional negligence cases to
certify, within sixty days of filing the complaint, that an expert had
examined the clients’ claims and found them to have “substantial
justification,” with failure to comply with this requirement resulting
in dismissal. 90 F.3d at 1537-38 (citing Colo. Rev. Stat. § 13-20-602).
23
provisions are inapplicable in federal court in the Second,
Fourth, Fifth, Sixth, Seventh, and Ninth circuits.
C. Countless courts and commentators have
recognized this split. District courts nationwide have
discussed the sharp circuit conflict. See, e.g., Shields v.
United States, 436 F. Supp. 3d 540, 543, 550 (D. Conn.
2020) (discussing split); Petrus v. United States, No. 1653, 2022 WL 910263, at *2-3 (D.V.I. Mar. 29, 2022) (same);
Deblois v. Corizon Health, Inc., No. ELH-20-1816, 2021
WL 3142003, at *9 (D. Md. July 23, 2021) (same); Fiorito
v. United States, No. 22-CV-2597, 2023 WL 4407486, at *2
(D. Minn. July 7, 2023) (same); Straughter v. United
States, No. 4:20-cv-127-DPM, 2022 WL 883546, at *2
(E.D. Ark. Mar. 24, 2022) (recognizing the “law continues
to percolate on th[is] complicated issue”).
Numerous commentators have also recognized the
split. See, e.g., supra note 1. As the leading treatises on
federal civil procedure have explained, collecting dozens
of cases on all sides of the split, “the proposition that
federal diversity courts must give effect to state rules
requiring plaintiffs to certify that their claims have merit
now has considerable support,” but that “support is far
from unanimous.” 19 Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure § 4511 (3d ed.)
(collecting cases). As another commentator explained,
“federal courts of appeals have reached . . . inconsistent
results vis-a-vis AOM statutes.” D. Chanslor Gallenstein,
Whose Law Is It Anyway? The Erie Doctrine, State Law
Affidavits of Merit, and the Federal Tort Claims Act, 60
U. Louisville L. Rev. 19, 34 (2021). “Some courts have held
outright that the AOM statutes apply, others have held
that the Federal Rules displace state law, while others
still have split the baby, and have created intra-circuit
splits on the issue.” Id. It is difficult to picture many rifts
in circuit authority more glaring and far-reaching than
this.
24
*****
The conflict over the application of state AOM
statutes in federal court is entrenched and intractable,
creating a 6-2 circuit split. This deep division has
persisted for decades, with every circuit that has
addressed the issue firmly choosing a side. Neither bloc is
likely to reverse course, and any further developments
will only deepen the confusion and exacerbate the conflict
between and within the circuits. Until this Court
intervenes, parties will continue to face drastically
different procedural rules depending on the circuit in
which they file, undermining the uniformity the Federal
Rules are meant to provide. Review is urgently
warranted.
II. THE QUESTION PRESENTED IS IMPORTANT
AND WARRANTS REVIEW IN THIS CASE
A. The question presented in this case is important,
with sweeping implications for plaintiffs subject to AOM
requirements, and for clarifying the analysis federal
courts should use to determine whether state procedural
rules conflict with the Federal Rules of Civil Procedure.
The decision below reached the extraordinary conclusion
that a state pleading requirement supersedes federal law
in federal court. That conclusion defies this Court’s Erie
doctrine precedent, as clarified by Shady Grove. It
undermines the exclusive authority of the Federal Rules
in dictating the necessary and sufficient content of
pleadings in federal court. It diverges from the majority
of other circuits that have considered—and rejected—the
application of state AOM and analogous pleading
requirements in these circumstances. And it strikes a
blow at a claimant’s ability to secure relief in a federal
courthouse otherwise open to him.
No further percolation is necessary or likely to
benefit the Court in its review of the question presented.
Further delay in resolving this question is likely only to
25
create greater confusion and further entrench the split.
Eight circuits now resolutely disagree over how to
understand whether state AOM statutes and other
requirements conflict with the Federal Rules of Civil
Procedure. That conflict is rooted in a more fundamental
conflict between the courts of appeals over how to
determine whether state procedural rules and Federal
Rules of Civil Procedure conflict, with consequences
across numerous categories of state-created procedural
rules that might have application in federal courts. See,
e.g., Abbas v. Foreign Pol’y Grp., LLC, 783 F.3d 1328,
1333-34 (D.C. Cir. 2015) (Kavanaugh, J.) (rule requiring
plaintiffs in certain actions to establish a likelihood of
success on the merits in response to special motion or face
dismissal); Royalty Network, Inc. v. Harris, 756 F.3d
1351, 1355, 1358-60 (11th Cir. 2014) (rule requiring
plaintiffs in certain cases to file a written verification that
the claim is “well grounded in fact, . . . warranted under
existing law, and . . . not made for an improper purpose”).
Clarity about this important question is critical.
Stakeholders should know the steps they must take to
successfully litigate their cases, which requires
understanding, at a basic level, which procedural rules
govern in federal courts. As this Court has noted, the
entire purpose of the Rules is to provide litigants with
uniform, nationwide rules of procedure in federal court.
Hanna v. Plumer, 380 U.S. 460, 472 (1965). “Federal
courts have no business applying exotic state procedural
rules which, of necessity, disrupt the comprehensive
scheme embodied in the Federal Rules.” Makaeff v.
Trump Univ., LLC, 715 F.3d 254, 275 (9th Cir. 2013)
(Kozinski, C.J., concurring).
Yet as it now stands, parties have different rights to
bring medical malpractice suits based on nothing more
than the fortuity of where their case happens to arise. And
the tests used to determine whether other state
26
procedural rules might apply in diversity and federal
question suits involving state-law claims are just as
variable and uncertain. Nor is there any hope of this issue
resolving itself. Each side of the split has staked out its
position, and the competing arguments have been
thoroughly examined. The question is ripe for review.
The number of cases in which federal and state
procedural rule conflicts potentially arise confirms the
issue’s importance. This Court’s decision in Shady Grove,
559 U.S. 393, the last time the Court weighed in on this
issue, has been cited more than 1,500 times by the lower
courts, including in nearly 200 court of appeals cases. Just
with respect to medical malpractice alone, the issue of the
applicability of AOM statutes in federal court has arisen
at least five times in the Third Circuit. There is a reason
this issue has gotten the attention it has, including in the
leading treatises on civil procedure and federal practice.
See supra note 1.
B. This case is the ideal vehicle to resolve the conflict
among the circuits. This case ended on dismissal of the
complaint for failure to include an affidavit of merit.
Whether an affidavit of merit is a necessary prerequisite
to the maintenance of this suit in federal court is the sole
issue this case presents, and it was litigated and outcome
determinative at every stage of this case.
The court of appeals ruled against petitioner solely
because his complaint was not accompanied by an
affidavit of merit. Petitioner’s case would have proceeded
to discovery had he filed it in the Second, Fourth, Fifth,
Sixth, Seventh, or Ninth circuits, but instead it was
dismissed because this case arose in the Third. This clean
presentation is the perfect backdrop for a definitive
resolution of this issue by this Court.
27
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
JAKE W. MURPHY
ARNOLD & PORTER
KAYE SCHOLER LLP
Suite 3100
1144 Fifteenth Street
Denver, CO 8020
DEVIN M. ADAMS
ARNOLD & PORTER
KAYE SCHOLER LLP
Suite 4000
700 Louisiana Street
Houston, TX 77002
OCTOBER 2024
R. STANTON JONES
ANDREW T. TUTT
Counsel of Record
SAMUEL I. FERENC
JILLIAN M. WILLIAMS
JENNIFER F. KAPLAN
ARNOLD & PORTER
KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, DC 20001
(202) 942-5000
andrew.tutt@arnoldporter.com
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.