Reply Brief — Harold R. Berk, Petitioner v. Wilson C. Choy, et al.

No. 24-440

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

REPLY BRIEF FOR THE PETITIONER

JAKE W. MURPHY

ARNOLD & PORTER

KAYE SCHOLER LLP

Suite 3100

1144 Fifteenth Street

Denver, CO 80202

(303) 863-1000

DEVIN M. ADAMS

ARNOLD & PORTER

KAYE SCHOLER LLP

Suite 4000

700 Louisiana Street

Houston, TX 77002

(713) 576-2400

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

TABLE OF CONTENTS

Page

Reply Brief for the Petitioner ............................................. 1

Argument .............................................................................. 2

I. The Circuit Conflict Is Square .................................... 2

A. The Conflict in this Case is Widely

Recognized .............................................................. 2

B. Courts On the Long Side of the Split Have

Expressly Rejected Any Distinction Between

FTCA and Diversity Cases.................................... 2

C. The Delaware AOM Statute is Materially

Similar to the Other AOM Statutes Examined

in the Split ............................................................... 6

II. The Decision Below is Wrong ..................................... 8

III. The Question Presented Is Important and This

Case is An Ideal Vehicle ............................................ 10

Conclusion ........................................................................... 11

(i)

TABLE OF AUTHORITIES

Cases

Page(s)

Albright v. Christensen,

24 F.4th 1039 (6th Cir. 2022) .................................... 4, 5, 8

Carbone v. Cable News Network, Inc.,

910 F.3d 1345 (11th Cir. 2018) ......................................... 9

Chamberlain v. Giampapa,

210 F.3d 154 (3d Cir. 2000) ............................................... 6

Comm’r v. McCoy,

484 U.S. 3 (1987) .............................................................. 10

Corley v. United States,

11 F.4th 79 (2d Cir. 2021) ................................. 2, 3, 4, 7, 8

Dupree v. Younger,

598 U.S. 729 (2023) .......................................................... 10

Erie R. Co. v. Tompkins,

304 U.S. 64 (1938) .............................................................. 8

Gallivan v. United States,

943 F.3d 291 (6th Cir. 2019) ................................. 4, 6, 8, 9

Garland v. Aleman Gonzalez,

596 U.S. 543 (2022) .......................................................... 10

Hanna v. Plumer,

380 U.S. 460 (1965) .................................................... 10, 11

Lamps Plus, Inc. v. Varela,

587 U.S. 176 (2019) .......................................................... 10

Liggon-Redding v. Est. of Sugarman,

659 F.3d 258 (3d Cir. 2011) ............................................... 6

Lomax v. Ortiz-Marquez,

590 U.S. 595 (2020) .......................................................... 10

Majestic Bldg. Maint., Inc. v. Huntington

Bancshares Inc.,

864 F.3d 455 (6th Cir. 2017) ............................................ 9

(ii)

iii

Cases—Continued

Page(s)

Makaeff v. Trump Univ., LLC,

715 F.3d 254 (9th Cir. 2013) ............................................. 8

Passmore v. Baylor Health Care Sys.,

823 F.3d 292 (5th Cir. 2016) ............................................. 7

Pledger v. Lynch,

5 F.4th 511 (2021) .................................................. 5, 7, 8, 9

Shady Grove Orthopedic Assocs., P.A. v.

Allstate Ins. Co.,

559 U.S. 393 (2010) ................................................ 2, 4, 5, 8

Trierweiler v. Croxton & Trench Holding Corp.,

90 F.3d 1523 (10th Cir. 1996) ..................................... 8, 10

Wilson v. United States,

79 F.4th 312 (3d Cir. 2023) ............................................... 3

Young v. United States,

942 F.3d 349 (7th Cir. 2019) ..................................... 4, 6, 9

Statutes

735 Ill. Comp. Stat. § 5/2-622 .............................................. 6

Conn. Gen. Stat. § 52-190a(a) .......................................... 3, 7

W. Va. Code § 55-7B-6(b)................................................. 5, 7

Rules

Fed. R. Civ. P. 8........................................................ 3, 4, 8, 9

Fed. R. Civ. P. 8(a) ............................................................... 8

Fed. R. Civ. P. 8(a)(2) .......................................................... 3

Fed. R. Civ. P. 9............................................................ 4, 8, 9

Fed. R. Civ. P. 10.................................................................. 1

Fed. R. Civ. P. 11.............................................................. 8, 9

Fed. R. Civ. P. 11(a) ............................................................. 9

Fed. R. Civ. P. 11(b) ............................................................. 9

Fed. R. Civ. P. 11(c) ............................................................. 9

iv

Rules—Continued

Page(s)

Fed. R. Civ. P. 11(d) ............................................................. 9

Fed. R. Civ. P. 12.......................................................... 4, 8, 9

Ohio Civ. R. 10(D)(2) ............................................................ 6

Other Authorities

19 Charles Alan Wright & Arthur R. Miller,

Federal Practice & Procedure § 4511

(3d ed. 2024) .................................................................... 2

Order, Schmigel v. Uchal,

No. 14-3476 (3d Cir. Oct. 2, 2015) ............................... 10

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

REPLY BRIEF FOR THE PETITIONER

This case presents an exceedingly important question

about the rules of procedure that apply in federal courts.

As the amicus brief of some of the nation’s leading civil

procedure scholars explains, this action implicates “a

significant conflict among the circuits,” and “plainly meets

all of this Court’s criteria for granting review under Rule

10.” Amicus Br. 2.

Respondents make no persuasive arguments against

review. First, they do not dispute that the question

presented is exceptionally important, and their attempt to

explain away the obvious circuit split blinks reality. The

conflict this case presents is square and longstanding and

has been widely recognized by scholars and courts—

including by courts in the split. Respondents’ merits

argument fares no better. The conflict between the

Federal Rules and Delaware’s affidavit of merit (AOM)

statute is undeniable. And respondents’ tacked-on vehicle

argument identifies not one obstacle to review.

(1)

2

Guidance from this Court about how to determine

whether a Federal Rule of Civil Procedure displaces a

state law or rule that “attempts to answer the same

question” is essential for courts confronting these

conflicts nationwide. The Court should grant certiorari.

ARGUMENT

I.

THE CIRCUIT CONFLICT IS SQUARE

A.

The Conflict in this Case is Widely Recognized

The conflict in this case is plain and widely

acknowledged. See Pet. 2 n.1. As the Second Circuit

recognized in Corley v. United States, circuits “are

divided about whether analogous state law certification

requirements should be given effect in a federal court.” 11

F.4th 79, 87 (2d Cir. 2021) (cleaned up). Courts and

commentators have been explicit about which courts are

in this split. See id. at 88-89 (joining Sixth Circuit,

rejecting Tenth); 19 Charles Alan Wright & Arthur R.

Miller, Federal Practice & Procedure § 4511 & nn.95108.50 (3d ed. 2024) (Tenth and Third Circuits on one side;

Sixth on the other). There is no ambiguity in these

analyses; the circuits are hopelessly divided over how to

conduct conflicts analysis “[w]hen both a federal rule and

a state law ‘attempt[] to answer the same question.’”

Corley, 11 F.4th at 88 (quoting Shady Grove Orthopedic

Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 399 (2010)

(majority op.)).

B. Courts On the Long Side of the Split Have

Expressly Rejected Any Distinction Between

FTCA and Diversity Cases

Respondents argue, without merit, that the

entrenched circuit conflict this case raises is “illusory and

overstated” because cases founded on “federal question

jurisdiction” do not count as part of the circuit conflict.

Opp. 2; see also Opp. 16. That argument fails three times

over. First, it ignores that courts in the split have

3

expressly rejected the argument that different conflicts

analyses apply in federal question and diversity cases.

Second, it ignores that the conflicts analysis nearly every

court in the split has applied purported to be the same,

asking whether a state AOM statute “attempts to answer

the same question” as a federal rule. Third, it fails as a

matter of common sense: The basis for federal jurisdiction

makes no difference as to whether a federal court should

apply state procedural rules.1

Take Corley, for example, one of the Federal Tort

Claims Act (FTCA) cases respondents claim is inapposite.

In that case, the Second Circuit considered a Connecticut

requirement that “a party must affix to the complaint ‘a

certificate’” supported by “a written and signed opinion of

a . . . health care provider . . . that there appears to be

evidence of medical negligence.” 11 F.4th at 85 (quoting

Conn. Gen. Stat. § 52-190a(a)). Judge Lynch, writing for a

unanimous panel, deemed that rule a “heightened

pleading requirement” “in direct contrast” with the

Federal Rules of Civil Procedure. Id. at 89. While Federal

Rule 8 “embodies a policy of ‘notice pleading,’” and

requires only a “short and plain statement of the claim

showing that the pleader is entitled to relief,” the

Connecticut law demanded “specific types of

documentary evidence to establish a plausible claim,” the

court found. Id. (citing Fed. R. Civ. P. 8(a)(2)). In

conducting that analysis, the Second Circuit expressly

rejected a distinction urged by the Government—and

respondents here—“that Shady Grove’s conflict analysis

The Third Circuit’s outlier decision in Wilson v. United States,

79 F.4th 312 (3d Cir. 2023), which respondents highlight, is the only

case to draw that distinction. But everyone knows why it did so: to

route around that circuit’s precedent holding that state AOM

statutes do not conflict with any federal rules. Wilson’s strained

reasoning and illogical result only further demonstrates why the

Court should grant review here.

1

4

does not apply outside of diversity jurisdiction cases.” Id.

at 88. If respondents here are right, Judge Lynch wasted

several pages on a Shady Grove conflict analysis that was

wholly unnecessary.

So, too, in Gallivan v. United States, where the Sixth

Circuit rejected federal application of another state AOM

provision. 943 F.3d 291 (2019). There, the district court

concluded—like the Third Circuit here—that an Ohio rule

“requir[ing] a person alleging medical negligence to

include a medical professional’s affidavit stating that the

claim has merit” required dismissal of a complaint lacking

the affidavit. Id. at 293. The Sixth Circuit disagreed,

finding Ohio’s AOM rule in conflict with Rules 8, 9, and 12

of the Federal Rules of Civil Procedure, and thus

displaced in federal court. Id. at 293-94. Again, the Shady

Grove conflicts analysis that Judge Thapar performed to

reach that ruling would be unnecessary if respondents

were right that the source of federal jurisdiction matters.

Id. at 293-94. Instead, like Judge Lynch, Judge Thapar

expressly rejected the argument that “conflict analysis

doesn’t apply in FTCA cases,” id. at 294, because “it

doesn’t make sense for federal courts to have one system

of procedural rules in diversity cases and another in

FTCA cases,” id. at 295; see also Young v. United States,

942 F.3d 349, 351 (7th Cir. 2019) (Easterbrook, J.) (“Many

cases hold that federal, not state, rules apply to

procedural matters . . . in all federal suits.”). Yet

respondents puzzlingly assert that Gallivan excluded

diversity cases from its result—a claim belied by

Gallivan’s immediate progeny, Albright v. Christensen,

24 F.4th 1039 (6th Cir. 2022). In Albright, which

respondents ignore entirely, the Sixth Circuit expressly

applied Gallivan to hold that Michigan’s AOM statute

does not apply in diversity actions. Id. at 1044-46. The

decision in that diversity case irreconcilably conflicts with

the Third Circuit’s decision in this diversity case.

5

Respondents’ purported FTCA-diversity distinction is

thus dead on arrival; the eventuality they say this Court

should await before granting review on this issue has

already occurred. Contra Opp. 3, 18, 27-28.

There is more. The Fourth Circuit matched Gallivan

in Pledger v. Lynch, 5 F.4th 511 (2021), by declining to

apply a West Virginia statute requiring would-be

plaintiffs to acquire a “screening certificate of merit”

before filing suit. Id. at 518 (quoting W. Va. Code § 55-7B6(b)). Judge Harris, writing for the panel majority,

“beg[an] with the fundamental and uncontroversial point

that the Federal Rules of Civil Procedure generally

govern all civil actions in federal court.” Id. Pledger did

not say, as respondents’ framing suggests, that the

Federal Rules govern FTCA actions or federal-question

cases. Instead, Pledger spoke to “all civil actions in

federal court,” id. (emphasis added), brought in diversity

or otherwise. From that foundation, the Fourth Circuit

applied the same Shady Grove framework and concluded

that “the Federal Rules governing the sufficiency of

pleadings . . . answer the ‘question in dispute’ here,”

rendering

West

Virginia’s

AOM

requirement

inapplicable. Id. at 519.

Respondents identify nothing else distinguishing

those cases from this one. Opp. 15-16. They rest on the

illusory diversity-federal question distinction, which they

claim explains why the outcomes were different and

dissolves any circuit split. Id. at 16. But that is simply

untrue, as is clear from the face of the decisions just

described, especially the Sixth Circuit’s decision in the

diversity case Albright. Well-reasoned opinions have

rejected respondents’ distinction as meritless and set

themselves opposite the Third and Tenth Circuits on the

question presented.

6

C.

The Delaware AOM Statute is Materially Similar

to the Other AOM Statutes Examined in the Split

Respondents’ other attack on the split is equally

meritless. Respondents argue there can be no split

because of “critical differences between the requirements

imposed by various States”—i.e., the various AOM

statutes differ too much. Opp. 18. At the outset, that claim

might be more persuasive had the Third Circuit ever met

an AOM it did not like. But it has embraced each and

every one. In fact, the court below specifically noted that

its previous decisions on the Pennsylvania and New

Jersey AOM provisions—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. This despite

petitioner’s extensive discussion of differences in function

between the Delaware AOM statute and its Pennsylvania

and New Jersey counterparts. C.A. Doc. No. 39, at 45-50.

The fact is the AOM provisions at issue in the cases in

the split are similar to Delaware’s in all relevant respects.

All of them were found inapplicable in federal court

because they required a medical malpractice plaintiff to

submit something the Federal Rules do not require to

plead their claim.

• In Gallivan v. United States, 943 F.3d 291 (6th Cir.

2019), the plaintiff needed to include with the

complaint a medical professional’s affidavit stating

that the claim has merit. Id. at 293 (citing Ohio Civ. R.

10(D)(2)).

• In Young v. United States, 942 F.3d 349 (7th Cir.

2019), the plaintiff needed to attach to the complaint

“an affidavit stating that ‘there is a reasonable and

meritorious cause’ for litigation” and “a physician’s

report to support the affidavit’s assertions.” Id. at 350

(quoting 735 Ill. Comp. Stat. § 5/2-622).

7

•

In Corley v. United States, 11 F.4th 79 (2d Cir. 2021),

the plaintiff needed to attach to the complaint “a

certificate . . . [stating] that . . . reasonable inquiry

gave rise to a good faith belief that grounds exist for

an action.” Id. at 85 (quoting Conn. Gen. Stat. § 52190a(a)). “To show the existence of such good faith,”

the certificate had to attach “a written and signed

opinion of a similar health care provider . . . that there

appears to be evidence of medical negligence,”

including a “detailed basis for the formation of such

opinion.” Id. (quoting Conn. Gen. Stat. § 52-190a(a)).

• In Pledger v. Lynch, 5 F.4th 511 (4th Cir. 2021), the

plaintiff needed to serve, in advance of filing the

complaint, a “screening certificate of merit” from a

health care provider, qualified as an expert under

state law, that set out and explained the provider’s

judgment that the “applicable standard of care was

breached” in a way that “resulted in injury or death.”

Id. at 518 (quoting W. Va. Code § 55-7B-6(b)).

• In Passmore v. Baylor Health Care System, 823 F.3d

292 (5th Cir. 2016), the plaintiff needed to serve an

expert report within 120 days after the filing of a

defendant’s original answer. Id. at 293.

Respondents argue there is some legally significant

difference between Delaware’s AOM requirements and

these. But “the devil is in the details.” Opp. 21. And

respondents do not explain how or why the details of these

statutes are different from Delaware’s in any relevant

way. The Third Circuit below did not purport to

distinguish the cases in the split on the basis that the

statutes

implicated

were

materially

different

(Pet. App. 8a n.10)—because they are not. As respondents

aptly put it, all the provisions “require some form of earlystage documentation from the plaintiff that a colorable

claim exists.” Opp. 3. The Third and Tenth Circuits see

such a requirement as posing no conflict with the Federal

8

Rules; the Second, Fourth, Fifth, Sixth, and Seventh take

the opposite view. And all the courts in the split have

correctly taken the issue at the same level of generality.

Respondents manufacture complexity where none exists.

Their voluminous account of state statutes shows only

how disruptive it would be for federal courts to be

dragooned into applying a plethora of “exotic state

procedural rules” if respondents’ view prevailed. Makaeff

v. Trump Univ., LLC, 715 F.3d 254, 275 (9th Cir. 2013)

(Kozinski, C.J., concurring).

II. THE DECISION BELOW IS WRONG

The decision below, and the Third Circuit precedents

it applied, misconstrue this Court’s cases and the

purposes of the Federal Rules. The question is not, as

respondents posit, whether “state law and federal

procedural rules can co-exist.” Opp. 26. Of course they

can. The relevant inquiry is “whether the Federal Rules

‘answer the question in dispute’ (as they do here).”

Gallivan, 943 F.3d at 296 (cleaned up) (quoting Shady

Grove, 559 U.S. at 398); see Corley, 11 F.4th at 88 (“[A]t

the heart of this appeal lies a federalism question similar

to the one raised in the familiar Erie R. Co. v. Tompkins,

304 U.S. 64 (1938), which instructs federal courts sitting

in diversity to apply state substantive law and federal

procedural rules.”). Fifty states cannot dictate whether a

claim gets through the doors of a federal courthouse. The

Federal Rules do that.

“Rules 8(a), 9, 11, and 12 are on point.” Albright, 24

F.4th at 1047. Rule 8 requires only a short and plain

statement to state a claim—no further documents are

required. Rule 9 provides the narrow set of circumstances

in which the pleading requirements for federal court may

be heightened. See Pledger, 5 F.4th at 519-20. Rule 11

attempts “to weed unjustifiable claims out of the system.”

Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d

1523, 1539 (10th Cir. 1996). And Rule 12 provides the

9

exclusive grounds for dismissing an action, which do not

include failure to provide a document. See Pledger, 5 F.4th

at 520.

Yet the Third Circuit found the Delaware AOM law—

requiring additional documents to meet a heightened

pleading standard—did not conflict with the Federal

Rules. That conclusion was wrong. Rule 8 “excludes other

requirements that must be satisfied for a complaint to

state a claim for relief.” Gallivan, 943 F.3d at 293 (quoting

Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1352

(11th Cir. 2018)). It nowhere requires attachments, see

Young, 942 F.3d at 351, and certainly does not require the

merits screening demanded by Delaware law. Rule 9 does

permit heightened pleading standards—but it restricts its

application to a “few situations,” including “when a party

alleges fraud or mistake.” Gallivan, 943 F.3d at 293. Rule

11 declares that “a pleading need not be verified or

accompanied by an affidavit”—which is the polar opposite

of the Delaware AOM law. Pledger, 5 F.4th at 520 (quoting

Fed. R. Civ. P. 11(a)). The Delaware law also expressly

aims to deter frivolous lawsuits—the very goal Rule 11

seeks to accomplish. Id. (citing Fed. R. Civ. P. 11(a)-(d)).

And while Rule 12 allows complaints to progress where

they allege facts “sufficient to state a claim to relief that

is plausible on its face,” the Delaware AOM statute will

not even let a complaint be docketed without its required

attachments. Cf. Gallivan, 943 F.3d at 293 (quoting

Majestic Bldg. Maint., Inc. v. Huntington Bancshares

Inc., 864 F.3d 455, 458 (6th Cir. 2017)). But “a complaint

in federal court cannot properly be dismissed because it

lacks an affidavit” or a “report.” Young, 942 F.3d at 351.

There is simply no way to square affidavit-of-merit

requirements with the basic rules of federal civil

procedure. See Amicus Br. 14-21.

10

III. THE QUESTION PRESENTED IS IMPORTANT

AND THIS CASE IS AN IDEAL VEHICLE

This case raises an important question and is an

optimal vehicle to resolve it. Pet. 24-26. The issue is a pure

question of law; it was squarely adjudicated below; and it

was outcome-determinative. There are no conceivable

obstacles to resolving it here.

Respondents identify no barriers to the Court’s

review. See Opp. 27-28. Respondents argue that the

decision below is non-precedential, but that is irrelevant.

“[T]he fact that the Court of Appeals’ order . . . is

unpublished carries no weight in [the Court’s] decision to

review the case.” Comm’r v. McCoy, 484 U.S. 3, 7 (1987).

Indeed, the Court routinely grants certiorari from

unpublished decisions. See, e.g., Dupree v. Younger, 598

U.S. 729 (2023); Lomax v. Ortiz-Marquez, 590 U.S. 595

(2020); Lamps Plus, Inc. v. Varela, 587 U.S. 176 (2019).

Respondents also argue petitioner should have sought

rehearing en banc. But seeking en banc review is not a

prerequisite to certiorari. See, e.g., Garland v. Aleman

Gonzalez, 596 U.S. 543 (2022) (granting review where en

banc review was not sought). And even if the Third Circuit

had granted en banc rehearing, it could not have mended

the circuit split given the Tenth Circuit’s precedent on the

question presented. See Trierweiler, 90 F.3d at 1537-39.

Experience also suggests a petition would have been

futile. See Order, Schmigel v. Uchal, No. 14-3476 (3d Cir.

Oct. 2, 2015) (denying en banc petition challenging Third

Circuit’s approach to this issue after Shady Grove).

As the petition explained, and the amicus brief

established, the question presented is immensely

important to the appropriate and orderly application of

the Federal Rules of Civil Procedure. “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

11

omitted). The law in the Third and Tenth Circuits is at

odds with the fundamental precepts of the Federal Rules

and the law of a half-dozen other circuits. Only this Court

can restore uniformity to federal law on this important

question.

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

(303) 863-1000

DEVIN M. ADAMS

ARNOLD & PORTER

KAYE SCHOLER LLP

Suite 4000

700 Louisiana Street

Houston, TX 77002

(713) 576-2400

FEBRUARY 2025

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