Amicus Curiae 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, ET AL.,

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE STATE OF TENNESSEE AND

TWENTY-SIX OTHER STATES AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

Office of Tennessee

Attorney General

and Reporter

P.O. Box 20207

Nashville, TN 37202

(615) 532-6026

Matt.Rice@ag.tn.gov

JONATHAN SKRMETTI

Attorney General

J. MATTHEW RICE

Solicitor General

Counsel of Record

HARRISON GRAY KILGORE

Senior Assistant Attorney

General for Strategic Litigation

Counsel for Amicus Curiae State of Tennessee

i

QUESTION PRESENTED

Petitioner states the question presented as:

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.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF THE ARGUMENT ............................ 2

ARGUMENT ................................................................ 3

I.

Affidavit-of-merit laws are critical features of

state medical malpractice schemes. ..................... 3

II. Federalism must guide this Court’s inquiry. ..... 10

A. Federalism-based canons regularly prevent

federal intrusion on state interests. ................... 11

B. Federal Rules should be construed to avoid

conflicts with state laws...................................... 14

C. A

federalism

approach

abides

by

Congressionally imposed limits on the Federal

Rules. ................................................................... 21

CONCLUSION .......................................................... 24

iii

TABLE OF AUTHORITIES

Cases

Ala. Ass’n of Realtors v. HHS,

594 U.S. 758 (2021) ................................................ 14

Am. Fam. Life Assur. Co. of Columbus v. Teasdale,

733 F.2d 559 (8th Cir. 1984) .................................... 8

BFP v. Resol. Tr. Corp.,

511 U.S. 531 (1994) ................................................ 13

Bond v. United States,

564 U.S. 211 (2011) ................................................ 12

Bond v. United States,

572 U.S. 844 (2014) .................................... 12, 13, 14

Boyle v. United Techs. Corp.,

487 U.S. 500 (1988) ................................................ 15

Buckman Co. v. Plaintiffs’ Legal Comm.,

531 U.S. 341 (2001) .................................................. 3

Burlington N. R. Co. v. Woods,

480 U.S. 1 (1987) .................................................... 17

Cipollone v. Liggett Grp., Inc.,

505 U.S. 504 (1992) .......................................... 10, 13

Cohen v. Beneficial Industrial Loan Corp.,

337 U.S. 541 (1949) .................................... 17, 18, 23

iv

EPA v. Calumet Shreveport Ref., LLC,

145 S. Ct. 1735 (2025) ............................................ 15

Erie Railroad Co. v. Tompkins,

304 U.S. 64 (1938) ................................................ 1, 4

FTC v. Bunte Bros.,

312 U.S. 349 (1941) ................................................ 14

Gasperini v. Ctr. for Humans., Inc.,

518 U.S. 415 (1996) .................................. 1, 3, 17, 18

Gonzales v. Carhart,

550 U.S. 124 (2007) .................................................. 3

Gregory v. Ashcroft,

501 U.S. 452 (1991) .............................. 11, 12, 13, 14

Guar. Tr. Co. of N.Y. v. York,

326 U.S. 99 (1945) ........................................ 1, 23, 24

Hanna v. Plumer,

380 U.S. 460 (1965) ...................................... 1, 15, 18

Hillsborough Cnty. v. Automated Med. Lab’ys Inc.,

471 U.S. 707 (1985) .................................................. 3

Jones v. United States,

529 U.S. 848 (2000) ................................................ 13

La. Pub. Serv. Comm’n v. FCC,

476 U.S. 355 (1986) ................................................ 21

Liggon-Redding v. Estate of Sugarman,

659 F.3d 258 (3d Cir. 2011) ............................. 19, 20

v

McDonnell v. United States,

579 U.S. 550 (2016) ................................................ 14

M’Culloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ................................ 11

Medtronic, Inc. v. Lohr,

518 U.S. 470 (1996) .................................................. 3

Merrill Lynch, Pierce, Fenner & Smith Inc. v.

Manning,

578 U.S. 374 (2016) ................................................ 14

Palmer v. Hoffman,

318 U.S. 109 (1943) ................................................ 17

Pledger v. Lynch,

5 F.4th 511 (4th Cir. 2021) .................................... 19

Ragan v. Merchants Transfer & Warehouse Co.,

337 U.S. 530 (1949) ................................................ 17

Rice v. Santa Fe Elevator Corp.,

331 U.S. 218 (1947) ................................................ 13

Sackett v. EPA,

598 U.S. 651 (2023) .......................................... 10, 21

SEC v. Variable Annuity Life Ins. Co. of Am.,

359 U.S. 65 (1959) .................................................... 4

Semtek International Inc. v. Lockheed Martin Corp.,

531 U.S. 497 (2001) .......................................... 18, 22

vi

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

Co.,

559 U.S. 393 (2010) .................. 1-2, 11, 14-19, 21-23

Solid Waste Agency of N. Cook Cnty. v. U.S. Army

Corps of Eng’rs,

531 U.S. 159 (2001) ................................................ 13

Stuka v. Fleming,

561 So.2d 1371 (La. 1990)........................................ 4

Trierweiler v. Croxton & Trench Holding Corp.,

90 F.3d 1523 (10th Cir. 1996) ................................ 19

U.S. Forest Serv. v. Cowpasture River Pres. Ass’n,

590 U.S. 604 (2020) ................................................ 13

United States v. Bass,

404 U.S. 336 (1971) ................................................ 13

United States v. Five Gambling Devices Labeled in

Part “Mills,” & Bearing Serial Nos. 593-221,

346 U.S. 441 (1953) ................................................ 14

Walker v. Armco Steel, Co.,

446 U.S. 740 (1980) .......................................... 15, 18

Watson v. Maryland,

218 U.S. 173 (1910) .................................................. 3

West Virginia v. EPA,

597 U.S. 697 (2022) ................................................ 12

Will v. Mich. Dep’t of State Police,

491 U.S. 58 (1989) .................................................. 13

vii

Statutes

18 Del. C. § 6853 ........................................................ 23

28 U.S.C. § 2072 .................................................. 11, 21

28 U.S.C. § 2072(b) ................................................ 1, 22

Rules

Fed. R. Civ. P. 11(a) ................................................... 20

Other Authorities

Joseph P. Bauer, Shedding Light on Shady Grove:

Some Further Reflections on the Erie Doctrine

from a Conflicts Perspective, 86 Notre Dame L.

Rev. 939 (2011) ....................................................... 16

Charles E. Clark, State Law in the Federal Courts:

The Brooding Omnipresence of Erie v. Tompkins,

55 Yale L. J. 267 (1946) ......................................... 10

Anthony Dippolito, et al., Republication: History of

physicians fighting frivolous lawsuits: An overview,

2 Inter. J. Academic Med. (Supplement 1) S34

(2016) ........................................................................ 5

Earl C. Dudley, Jr., and George Rutherglen,

Deforming the Federal Rules: An Essay on What’s

Wrong with Recent Erie Decisions, 92 Va. L. Rev.

707 (2006) ............................................................... 14

Allan Erbsen, Erie’s Starting Points: The Potential

Role of Default Rules in Structuring Choice of Law

Analysis, 10 J. L. Econ. & Pol’y 125 (2013)........... 15

viii

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)....... 20

José R. Guardado, Policy Research Perspectives: Medical Liability Claim Frequency Among U.S. Physicians, Am. Med. Ass’n, (2023).................................. 6

Allen Hardiman, Policy Research Perspectives: Upward Trajectory of Medical Liability Premiums

Persists for Sixth Year in a Row, Am. Med. Ass’n

(2025) ........................................................................ 7

Fred J. Hellinger, PhD, and William E. Encinosa,

PhD, The Impact of State Laws Limiting Malpractice Damage Awards on Health Care Expenditures,

96 Am. J. of Pub. Health 1375 (Aug. 2006) ......... 5, 7

Allan Ides, The Standard for Measuring the Validity

of A Federal Rule of Civil Procedure: The Shady

Grove Debate Between Justices Scalia and Stevens,

86 Notre Dame L. Rev. 1041 (2011) ...................... 19

Anupam Jena, et al., Physician Spending and Subsequent Risk of Malpractice Claims: Observational

Study, British Med. J. 1 (Nov. 2015) ....................... 8

Glenn S. Koppel, The Fruits of Shady Grove: Seeing

the Forest for the Trees, 44 Akron L. Rev. 999

(2011) ...................................................................... 16

ix

Eric Lindenfeld, Moving Beyond the Quick Fix:

Medical Malpractice Non-Economic Damage Caps

A Poor Solution to the Growing Healthcare Crisis,

41 T. Marshall L. Rev. 109 (2015) ........................... 9

Michelle Mello, et al., National Costs of the Medical

Liability System, 29(9) Health Aff. (Millwood) 1569

(2010) .................................................................... 6, 8

Daniel Miller, Liability for Medical Malpractice: Issues and Evidence, U.S. Cong. Joint Econ. Comm.

(2003) ............................................................ 4, 5, 6, 7

Kyle Miller, Note, Putting the Caps on Caps:

Reconciling the Goal of Medical Malpractice

Reform with the Twin Objectives of Tort Law,

59 Vand. L. Rev. 1457 (2006)............................. 9, 10

Mitchell J. Nathanson, It’s the Economy (and

Combined Ratio), Stupid: Examining the Medical

Malpractice Litigation Crisis Myth and the

Factors Critical to Reform, 108 Penn St. L. Rev.

1077 (2004) ......................................................... 9, 10

Robert L. Rabin, Federalism and the Tort System, 50

Rutgers L. Rev. 1 (1997) .......................................... 4

Michael Rothberg, The Cost of Defensive Medicine on

3 Hospital Medicine Services, 174 JAMA Internal

Med. 1867 (Nov. 2014) ......................................... 7, 8

Gary T. Schwartz, Considering the Proper Federal

Role in American Tort Law, 38 Ariz. L. Rev. 917

(1996) ........................................................................ 4

x

Adam N. Steinman, What Is the Erie Doctrine? (And

What Does It Mean for the Contemporary Politics of

Judicial Federalism?), 84 Notre Dame L. Rev. 245

(2008) ...................................................................... 16

Margaret S. Thomas, Constraining the Federal Rules

of Civil Procedure Through the Federalism Canons

of Statutory Interpretation, 16 N.Y.U. J. Legis. &

Pub. Pol’y 187 (2013) ....................................... 13, 21

Robert White, Medical malpractice payouts are ballooning—and insurers are warning it will cost

patients, Fortune (July 2, 2024, at 7:21 a.m. ET) ... 5

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) .............................................................. 6, 8, 20

Joshua P. Zoffer, Note, An Avoidance Canon for Erie:

Using Federalism to Resolve Shady Grove’s

Conflicts Analysis Problem, 128 Yale L. J. 482

(2018) .......................................................... 15, 16, 18

INTEREST OF AMICI CURIAE

The amici States have a long-recognized interest

in protecting the proper allocation of governmental

power between the federal government and the States.

That interest includes ensuring that the “legal rules

determin[ing] the outcome” of a state-law claim

brought in federal court by virtue of diversity jurisdiction are “substantially the same” as they “would be if

tried in a State court.” See Guar. Tr. Co. of N.Y. v.

York, 326 U.S. 99, 109 (1945). Indeed, respect for substantive state interests by federal courts sitting in diversity is “one of the modern cornerstones of our federalism.” See Hanna v. Plumer, 380 U.S. 460, 474

(1965) (Harlan, J., concurring). But the “federalism

grounding” of Erie Railroad Co. v. Tompkins, 304 U.S.

64 (1938), and its progeny has become “ero[ded]” in the

context of alleged conflicts between Federal Rules and

state laws. See Shady Grove Orthopedic Assocs., P.A.,

v. Allstate Ins. Co., 559 U.S. 393, 458 (2010) (Ginsburg,

J., dissenting)

Now’s the time to correct course. The amici States

urge the Court to affirm that “important state interests and regulatory policies,” Gasperini v. Ctr. for Humans., Inc., 518 U.S. 415, 427 n.7 (1996), must guide

courts in navigating alleged conflicts between Federal

Rules and state laws. Rather than reading Federal

Rules broadly to invite clashes with state laws, courts

should return to Erie’s roots and employ federalismbased canons to favor interpretations that fairly avoid

such conflicts. On top of furthering federalism, this

approach also comports with Congress’s command

that this Court’s rules may not “abridge, enlarge or

modify any substantive right.” 28 U.S.C. § 2072(b).

2

SUMMARY OF THE ARGUMENT

According to Petitioner, state affidavit-of-merit

laws do not apply in federal diversity actions because

they conflict with the Federal Rules. But before overriding these state laws that are carefully crafted to advance important state interests and regulatory policies, the Court should employ familiar federalismbased canons to ask, “[i]s this conflict really necessary?” Shady Grove, 559 U.S. at 458 (Ginsburg, J.,

dissenting). So considered, the answer is often, as

here, “no.”

I. Affidavit-of-merit laws are important, substantive features of many States’ medical malpractice

schemes. They impose a nominal barrier to recovery

for those injured by negligent medical care, while

providing critical protection for providers, insurers,

and the public against the ills that accompany frivolous claims. These laws therefore serve as a means of

defining the scope of substantive rights and remedies.

II. This Court regularly considers federalism when

determining the scope of federal statutes. Recognizing

that Congress legislates against the backdrop of our

federal system, the Court typically allows only the

clearest textual commands to alter the balance of state

and federal power. This federalism-based interpretive

principle is deeply rooted in the Court’s jurisprudence

and is often invoked to preserve the States’ broad authority.

Similar interpretative canons are warranted for

determining the scope of Federal Rules. Such an approach is in line with the federalism underpinnings of

3

Erie and its progeny. It also comports with past decisions of this Court that have interpreted Federal

Rules with “sensitivity to important state interests

and regulatory policies.” Gasperini, 518 U.S. at 427

n.7.

Applying federalism-based canons when interpreting Federal Rules also respects the explicit limits that

Congress has placed on this Court’s rulemaking authority in the Rules Enabling Act. This Court regularly evaluates regulatory actions by federal agencies

through a federalism lens, requiring a clear statement

of congressional intent before allowing overrides of

core state interests. Evaluating the validity of this

Court’s exercise of its delegated rulemaking authority

should proceed similarly.

ARGUMENT

I.

Affidavit-of-merit laws are critical features

of state medical malpractice schemes.

1. Policing medical malpractice is a core state

function. The States have “historic primacy” over the

regulation of health and safety. Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 348 (2001) (quoting

Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)).

This includes the power to “regulat[e] the medical profession.” Gonzales v. Carhart, 550 U.S. 124, 157

(2007). Indeed, “[t]here is perhaps no profession more

properly open” to regulation under the States’ “police

power.” Watson v. Maryland, 218 U.S. 173, 176

(1910); see also Hillsborough Cnty. v. Automated Med.

Lab’ys Inc., 471 U.S. 707, 719 (1985). The regulation

of insurance also “has traditionally been under the

4

control of the States.” SEC v. Variable Annuity Life

Ins. Co. of Am., 359 U.S. 65, 69 (1959). And the States

are traditionally the font of substantive tort law. See

Erie, 304 U.S. at 77-78.

Medical malpractice sits at the intersection of

these spheres of traditional state authority. And regulating such claims has long been the prerogative of

the States given the highly localized nature of medical,

legal, and insurance practices. See, e.g., Robert L.

Rabin, Federalism and the Tort System, 50 Rutgers L.

Rev. 1, 29 (1997); Gary T. Schwartz, Considering the

Proper Federal Role in American Tort Law, 38 Ariz. L.

Rev. 917, 922-24 (1996). State medical malpractice

schemes have “two ostensible goals: to compensate the

negligently injured, and to deter negligent behavior.”

Daniel Miller, Liability for Medical Malpractice: Issues and Evidence, U.S. Cong. Joint Econ. Comm. 2

(2003), https://perma.cc/9KN2-Q85H (“Congressional

Report”).

2. States working to achieve these dual aims must

consider competing interests to strike an appropriate

balance between the rights of the injured, the obligations of medical professionals, public health outcomes,

and burdens to the judicial system.

a. States, of course, seek to establish medical malpractice schemes that compensate victims of negligent

care. See, e.g., Stuka v. Fleming, 561 So.2d 1371, 1373

(La. 1990). But allowing free-for-all litigation has

“rarely compensate[d] individuals who suffer injuries

through medical negligence”; instead, such systems

5

“often compensate[] those who suffer injuries unrelated to medical negligence.” Fred J. Hellinger, PhD,

and William E. Encinosa, PhD, The Impact of State

Laws Limiting Malpractice Damage Awards on Health

Care Expenditures, 96 Am. J. of Pub. Health 1375,

1375 (Aug. 2006) (citing study finding that only 2% of

negligent injuries resulted in a claim and only 17% of

claims involved negligent injuries). In other words,

medical malpractice schemes often “provid[e] compensation to the wrong people.” See Congressional Report, supra, at 9.

Thus, a recognized “drawback of the medical liability system is the incentives for unwarranted, or nuisance lawsuits.” Id. And as medical malpractice

awards swell, see Robert White, Medical malpractice

payouts are ballooning—and insurers are warning it

will cost patients, Fortune (July 2, 2024, at

7:21 a.m. ET), https://perma.cc/NA9B-SZ4H, frictionless systems incentivize “significant fraud and abuse

of the tort system,” Congressional Report, supra, at 9.

“The economic motivation of insurers to settle claims

quickly, combined with the contingent fee system, provides incentives for plaintiffs and their attorneys to

pursue frivolous claims or to embellish valid ones.”

Anthony Dippolito, et al., Republication: History of

Physicians Fighting Frivolous Lawsuits: An Overview,

2 Inter. J. Academic Med. (Supplement 1) S34, S38

(2016), available at https://perma.cc/Z7K7-MNT8. Indeed, “fear of overly sympathetic jury verdicts” has

cultivated a “‘culture’ of early settlement of cases for

their nuisance value and continued litigation costs.”

Id.

6

b. States also must account for the impact medical

malpractice suits have on the behavior of medical providers and, relatedly, public health. Nearly a third of

physicians will face a malpractice claim at some point

in their career. See José R. Guardado, Policy Research

Perspectives: Medical Liability Claim Frequency

Among U.S. Physicians, Am. Med. Ass’n, 2 (2023),

https://perma.cc/8N8T-RFEZ. Of course, “getting sued

is not necessarily indicative of medical error,” as most

medical malpractice claims are “dropped, dismissed or

withdrawn.” Id. And of the few claims “decided by a

trial verdict, 89 percent [are] won by the defendant.”

Id.

Still, such “excessive tort” litigation “impose[s] a

significant cost on defending individuals.” 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, 1462-63 (2022). It costs tens

of thousands of dollars to defend a malpractice claim.

See Congressional Report, supra, at 8. Even claims

that are ultimately dropped or dismissed are costly to

defend. Id. Malpractice suits also “produce costs of

time away from patient care … , with resulting lost

productivity and income.” Michelle Mello, et al., National Costs of the Medical Liability System, 29(9)

Health Aff. (Millwood) 1569, 1574 (2010).

Moreover, the costs of malpractice litigation “extend beyond” the provider defendant to “taxpayers,

state economies, and the judicial system.” See Youssoufian, supra, at 1462; see also Mello, supra, at 1575

(estimating that in 2008 the “medical liability system

7

costs the nation more than $55 billion annually”). For

starters, excessive claims threatening big payouts

warp the malpractice insurance market, driving up

premiums and making it “extremely difficult” for physicians to obtain coverage. Congressional Report 6; see

also Allen Hardiman, Policy Research Perspectives:

Upward Trajectory of Medical Liability Premiums

Persists for Sixth Year in a Row, Am. Med. Ass’n

(2025), https://perma.cc/2ZZA-7RRL. These higher

“costs are passed on to consumers[,] adversely impact[ing] the affordability of health insurance.” Congressional Report, supra, at 6.

Defensive medicine is an even more damaging attribute of medical malpractice systems that permit excessive or frivolous claims. See Hellinger, supra, at

1375-76. Defensive medicine generally manifests in

actions taken by physicians that lack medical necessity and offer no benefits to the patient. See Congressional Report, supra, at 11-13. Sometimes these “additional tests and treatments … themselves expose patients to additional risk of injury.” Id. at 11. The

threat of malpractice liability also may dissuade doctors from “recommending treatments that might be

considered riskier, but that are also more medically

appropriate.” Id. It also “deters health care providers

from recognizing and reporting errors and working to

prevent future mistakes.” Id. at 12. Thus, defensive

medicine reduces the quality and efficiency of medical

care at every turn.

Defensive medicine also increases costs for the

healthcare system. It accounts for between 2.9% and

13% of patients’ medical costs. See Michael Rothberg,

8

The Cost of Defensive Medicine on 3 Hospital Medicine

Services, 174 JAMA Internal Med. 1867, 1867-68

(Nov. 2014). In 2008, around the time many States

were reforming their malpractice schemes, defensive

medicine was estimated to have generated nearly $46

billion in costs, a huge proportion of the total cost of

the nation’s medical liability system. See Mello, supra, at 1574. And because studies have shown that

greater spending by physicians reduces the risk of incurring a malpractice claim, see Anupam Jena, et al.,

Physician Spending and Subsequent Risk of Malpractice Claims: Observational Study, British Med. J. 1

(Nov. 2015), https://perma.cc/6HE7-M8LN, poorly

structured malpractice schemes encourage these

higher costs.

c. Finally, States crafting medical malpractice

policies must account for the burdens excessive lawsuits place on their judicial systems. “[F]rivolous lawsuits consume already scarce judicial resources and

prevent individuals with meritorious claims from receiving judicial relief.” Youssoufian, supra, at 1463.

Thus, “the entire public inevitably suffers” when

plaintiffs are allowed to “prosecut[e] frivolous lawsuits” that “squander[] limited judicial resources.”

Am. Fam. Life Assur. Co. of Columbus v. Teasdale, 733

F.2d 559, 570 (8th Cir. 1984).

3. Weighing all these factors, States have deployed a suite of tools to craft medical malpractice

schemes that preserve significant rights for the injured without imposing an undue burden on providers,

healthcare systems, or the courts. Affidavit-of-merit

laws—adopted now by more than half of the States—

9

are key among those reforms. These laws require a

medical malpractice plaintiff “to file a certificate (either before, in conjunction with, or shortly after the

filing of the complaint) that certifies, typically by way

of an attached expert report, that the claim is meritorious.” See Mitchell J. Nathanson, It’s the Economy

(and Combined Ratio), Stupid: Examining the Medical

Malpractice Litigation Crisis Myth and the Factors

Critical to Reform, 108 Penn St. L. Rev. 1077, 1111

(2004).

Affidavit-of-merit laws “appear[] to succeed where

other methods of reform have failed.” Id. For example, the year after Maryland implemented its affidavit-of-merit law, “medical malpractice filing rates

dropped by 36%,” signaling a deterrence against damaging frivolous claims. Id. Pennsylvania has also

“seen very positive results from the certificate of merit

requirement, experiencing a 46.5% dip in the amount

of case filings in the state since” implementing the requirement. Eric Lindenfeld, Moving Beyond the Quick

Fix: Medical Malpractice Non-Economic Damage Caps

A Poor Solution to the Growing Healthcare Crisis, 41

T. Marshall L. Rev. 109, 124 (2015).

And affidavit-of-merit laws “achieve the goal” of

medical malpractice “reform without offending the

twin objectives of tort law.” Kyle Miller, Note, Putting

the Caps on Caps: Reconciling the Goal of Medical

Malpractice Reform with the Twin Objectives of Tort

Law, 59 Vand. L. Rev. 1457, 1491 (2006). By limiting

frivolous suits, affidavit-of-merit laws “impact the

area of greatest economic waste, namely expenses incurred in defending meritless medical malpractice

10

cases.” Nathanson, supra, at 1119. At the same time,

these laws maintain the rights of the victims of medical negligence, because the plaintiffs most affected by

affidavit-of-merit laws are “those with illegitimate

claims.” Miller, supra, at 1491. The “legitimate plaintiff is ultimately unaffected” by these laws, thereby

“reducing the … costs associated with litigating meritless claims without affecting the amount paid to legitimately injured plaintiffs in indemnity payouts.”

Nathanson, supra, at 1120. Thus, affidavit-of-merit

laws help relieve stress on providers, the healthcare

system, and the courts, while maintaining the rights

of victims of medical negligence. As such, they are

critical features of state medical malpractice schemes.

II. Federalism must guide this Court’s inquiry.

The “difficulties of adjusting the spheres of authority of two independent, co-ordinate, and largely

competitive sovereignties operating in the same territory” are inherent to “our federal system.” Charles E.

Clark, State Law in the Federal Courts: The Brooding

Omnipresence of Erie v. Tompkins, 55 Yale L. J. 267,

269 (1946). To protect the constitutional balance of

power between the States and the federal government,

this Court regularly applies federalism-based interpretative canons to federal statutes and regulatory actions to prevent unintended interference with core

state interests, see Sackett v. EPA, 598 U.S. 651, 679

(2023), or preemption of state laws, see Cipollone v.

Liggett Grp., Inc., 505 U.S. 504, 516 (1992). These canons require clear congressional intent to displace state

prerogatives.

11

A similar approach is warranted when assessing

whether a Federal Rule preempts a state law. Indeed,

five Justices in Shady Grove explicitly recognized the

general need “to interpret Federal Rules with awareness of, and sensitivity to, important state regulatory

policies.” Shady Grove, 559 U.S. at 437, 442 n.2 (Ginsburg, J., dissenting); see id. at 418, 430 (Stevens, J.,

concurring in part and concurring in the judgment).

And the other four Justices accepted that conflictavoiding approach, at least for “ambiguous Federal

Rule[s],” to avoid “substantial variations [in outcomes]

between state and federal litigation.” See id. at 405

n.7 (quotation omitted). Using well-worn federalismbased canons to “fairly construe[]” Federal Rules to

avoid conflicts with state affidavit-of-merit laws would

reverse an “unwise[] and unnecessar[y] retreat[] from

the federalism principles undergirding Erie.” See id.

at 439, 451 (Ginsburg, J., dissenting). It would also

restore the “balance that Congress struck” in

28 U.S.C. § 2072 between uniform rules of federal procedure and substantive state-created rights. See id. at

424-25 (Stevens, J., concurring in part and concurring

in the judgment)

A. Federalism-based canons regularly prevent federal intrusion on state interests.

“[O]ur Constitution establishes a system of dual

sovereignty” that divides power “between the States

and the Federal Government.” Gregory v. Ashcroft,

501 U.S. 452, 457 (1991). Under that system, the federal government wields only the “enumerated powers”

that the States surrendered in the Constitution.

M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405

(1819). The States, by contrast, retain “numerous and

12

indefinite” powers that “extend to all the objects …

concern[ing] the lives, liberties, and properties of the

people; and the internal order, improvement, and

prosperity of the State[s].” Gregory, 501 U.S. at 458

(quoting The Federalist No. 45, at 292-93 (James Madison) (Clinton Rossiter ed. 1961)).

This system of joint sovereignty “preserves the integrity, dignity, and residual sovereignty of the

States,” and thereby “secures to citizens the liberties

that derive from the diffusion of sovereign power.”

Bond v. United States (Bond I), 564 U.S. 211, 221

(2011) (quotations omitted). Such diffusion of power

in turn “assures a decentralized government that will

be more sensitive to the diverse needs of a heterogenous society,” “makes government more responsive

by putting the States in competition for a mobile citizenry,” and “allows for more innovation and experimentation in government.” Gregory, 501 U.S. at 458.

In short, reserving States’ significant lawmaking powers reflects that citizens are often best served by “governments more local and more accountable than a distant federal authority.” West Virginia v. EPA, 597

U.S. 697, 739 (2022) (Gorsuch, J., concurring) (cleaned

up).

Recognizing the importance of state sovereignty,

this Court has long presumed that Congress legislates

with an eye toward preserving “the constitutional balance between the National Government and the

States.” See Bond v. United States (Bond II), 572 U.S.

844, 862 (2014) (quotation omitted). So any inquiry

into whether a federal law preempts a state law

“start[s] with the assumption that the historic police

13

powers of the State [are] not to be superseded by …

Federal Act unless that [is] the clear and manifest

purpose of Congress.” Cipollone, 505 U.S. at 516

(quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218,

230 (1947)). It is thus not enough for preemption that

a state law merely frustrates a federal purpose. Rather, “rebutting the presumption” against preemption

“requires a showing that preemption is implicitly required by the statutory structure or purpose.” Margaret S. Thomas, Constraining the Federal Rules of Civil

Procedure Through the Federalism Canons of Statutory Interpretation, 16 N.Y.U. J. Legis. & Pub. Pol’y

187, 225-26 (2013) (emphasis added).

Otherwise, to displace traditional spheres of state

authority, Congress must “make its intention to do so

‘unmistakably clear in the language of [a] statute.’”

Gregory, 501 U.S. at 460 (quoting Will v. Mich. Dep’t

of State Police, 491 U.S. 58, 65 (1989)). The text itself

must contain “exceedingly clear language … to significantly alter the balance between federal and state

power.” U.S. Forest Serv. v. Cowpasture River Pres.

Ass’n, 590 U.S. 604, 622 (2020).

This federalism-based interpretive principle is

deeply rooted in the Court’s jurisprudence and is often

invoked when construing acts of Congress. The Court

has respected federalism when interpreting laws that

implicate civil rights, property rights, natural resources, and criminal punishment. See id. at 621-22;

Bond II, 572 U.S. at 857-60; Solid Waste Agency of N.

Cook Cnty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159,

174 (2001); Jones v. United States, 529 U.S. 848, 858

(2000); BFP v. Resol. Tr. Corp., 511 U.S. 531, 544

14

(1994); Will, 491 U.S. at 65; United States v. Bass, 404

U.S. 336, 349-50 (1971). It has respected federalism

when considering laws setting qualifications for state

office, Gregory, 501 U.S. at 457-64, and laws regulating interactions between state officials and their constituents, McDonnell v. United States, 579 U.S. 550,

576-77 (2016). It has repeatedly shown respect for federalism when construing congressional delegations of

legislative power. See Ala. Ass’n of Realtors v. HHS,

594 U.S. 758, 764 (2021) (per curiam); United States v.

Five Gambling Devices Labeled in Part “Mills,” &

Bearing Serial Nos. 593-221, 346 U.S. 441, 449-51

(1953); FTC v. Bunte Bros., 312 U.S. 349, 351 (1941).

And “[o]ut of respect for state courts, this Court has

time and again declined to construe federal jurisdictional statutes more expansively than their language,

most fairly read, requires.” Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, 578 U.S. 374, 389 (2016).

In sum: Before upsetting “the usual constitutional

balance of federal and state powers,” it is “incumbent

upon the … courts to be certain of Congress’[s] intent.”

Bond II, 572 U.S. at 858 (quoting Gregory, 501 U.S. at

460) (cleaned up).

B. Federal Rules should be construed to

avoid conflicts with state laws.

The “principal arena in which controversies persist under the Erie doctrine” is “conflicts with the Federal Rules and state law.” Earl C. Dudley, Jr., and

George Rutherglen, Deforming the Federal Rules: An

Essay on What’s Wrong with Recent Erie Decisions, 92

Va. L. Rev. 707, 737 (2006). But are these “conflict[s]

really necessary?” Shady Grove, 559 U.S. at 437

15

(Ginsburg, J., dissenting). In answering that question, “[t]he scope of a federal rule is often the central

disputed issue,” but the Court “has tied itself in knots

trying to explain how to determine that scope.” Allan

Erbsen, Erie’s Starting Points: The Potential Role of

Default Rules in Structuring Choice of Law Analysis,

10 J. L. Econ. & Pol’y 125, 146-47 (2013).

This Court’s familiar federalism-based canons

provide the solution. “The Federal Rules should,” of

course, “be given their plain meaning,” Walker v.

Armco Steel Co., 446 U.S. 740, 750 n.9 (1980), just like

with statutes, see EPA v. Calumet Shreveport Ref.,

LLC, 145 S. Ct. 1735, 1750 (2025). And consonant

with the Court’s approach to interpreting federal statutes that run up against core state authorities, see supra 12-14, “fairly” construing “the federal rules to

avoid conflict with important state regulatory policies”

properly stalls federal preemption of core state prerogatives. See Shady Grove, 559 U.S. at 439, 441 (Ginsburg, J., dissenting) (quotation omitted); id. at 421,

430 (Stevens, J., concurring in part and concurring in

the judgment). This “pay[s] greater respect to important state interests by more often giving them effect in federal court,” thereby reinforcing Erie’s federalism underpinnings and “protect[ing] the separation

of powers by limiting judicial power to displace state

law.” Joshua P. Zoffer, Note, An Avoidance Canon for

Erie: Using Federalism to Resolve Shady Grove’s Conflicts Analysis Problem, 128 Yale L. J. 482, 489 (2018).

1. Erie and its progeny are “deeply rooted in notions of federalism.” Boyle v. United Techs. Corp., 487

U.S. 500, 517 (1988) (Brennan, J., dissenting). Indeed,

16

Erie has been described as “one of the modern cornerstones of our federalism.” Hanna, 380 U.S. at 474

(Harlan, J., concurring). The “constitutional core” of

Erie is that “federal judicial lawmaking cannot override substantive rights where such lawmaking has

only an adjudicative rationale.” Adam N. Steinman, What Is the Erie Doctrine? (And What Does It

Mean for the Contemporary Politics of Judicial Federalism?), 84 Notre Dame L. Rev. 245, 316 (2008); see

also Zoffer, supra, at 508 (describing the appropriate

federal-state balance of power as “a value of constitutional magnitude”). This “helped to restore eroded

state power and prepare for a realignment of state and

federal areas of concern.” Glenn S. Koppel, The Fruits

of Shady Grove: Seeing the Forest for the Trees, 44 Akron L. Rev. 999, 1013 (2011) (citation omitted).

Employing “relentless[]” or “wooden[]” interpretations of the Federal Rules “unwisely and unnecessarily retreats from the federalism principles undergirding Erie.” See Shady Grove, 559 U.S. at 437, 451

(Ginsburg, J., dissenting); see also Joseph P. Bauer,

Shedding Light on Shady Grove: Some Further Reflections on the Erie Doctrine from a Conflicts Perspective,

86 Notre Dame L. Rev. 939, 985 (2011) (criticizing

Shady Grove for failing to “take seriously ... the agreed

benefits of identifying, and then deferring to, state interests”). Indeed, such an “approach … will necessarily undermine state policies and regulatory goals.”

See Zoffer, supra, at 519. This in turn “cuts against”

important aspects of our federal system, like the “diffusion of sovereign power and the role of states as innovators, as competitors in a policy market, and as

guarantors of legal rights.” See id. at 508 & n.128.

17

2. Five Justices therefore “agree[d]” in Shady

Grove that “Federal Rules should be read with moderation in diversity suits to accommodate important

state concerns.” 559 U.S. at 442 n.2 (Ginsburg, J., dissenting); see also id. at 418, 430-31 (Stevens, J., concurring in part and concurring in the judgment). Even

the four other Justices recognized that when more

than “one reading” of a rule is possible, the rule should

be read to “avoid ‘substantive variations [in outcomes]

between state and federal litigation.’” See id. at 405

n.7 (citation omitted). So, where a Federal Rule can

be “fairly construed” using familiar federalism-based

canons to “leav[e] … room for the operation” of the

state law, the latter should apply. See Burlington N.

R. Co. v. Woods, 480 U.S. 1, 4-5 (1987); Shady Grove,

559 U.S. at 452-58 (Ginsburg, J., dissenting). This approach is consistent with a long line of this Court’s

cases that have “interpreted the Federal Rules … with

sensitivity to important state interests and regulatory

policies.” Gasperini, 518 U.S. at 427 n.7; see Shady

Grove, 559 U.S. at 439 (Ginsburg, J., dissenting).

Consider some pre-Hanna decisions. In Palmer v.

Hoffman, this Court read Federal Rule 8(c), which

lists affirmative defenses, to control only the manner

of pleading the listed defenses in diversity cases, while

state law controls the burden of proof in those cases.

318 U.S. 109, 117 (1943). In Ragan v. Merchants

Transfer & Warehouse Co., this Court held that

Rule 3’s specification that “[a] civil action is commenced by filing a complaint with the court” could coexist with a state law that keyed commencement to

service of the summons. 337 U.S. 530, 531-33 & n.1

(1949). In Cohen v. Beneficial Industrial Loan Corp.,

18

the Court held that even though the Federal Rule

specifying prerequisites for stockholders to maintain a

derivative suit did not require a bond as security for

cost, a state statute requiring such a bond should

nonetheless be enforced. See 337 U.S. 541, 556 (1949).

And while Hanna found the conflict there “unavoidable,” 380 U.S. at 470, the Court after Hanna “continued to “interpre[t] the federal rules to avoid conflict

with important state regulatory policies,” Shady

Grove, 559 U.S. at 441 (Ginsburg, J., dissenting) (citation omitted). Walker, for example, again avoided

reading Federal Rule 3 to override state rules around

the commencement of an action in light of significant

state policy interests. 446 U.S. at 749-52. And in Semtek International Inc. v. Lockheed Martin Corp., this

Court held that Rule 41(b) did not bar an action that

state law otherwise allowed because a different holding “‘would arguably violate the jurisdictional limitation of the Rules Enabling Act’ and ‘would in many

cases violate [Erie’s] federalism principle.’” See Shady

Grove, 559 U.S. at 442 (Ginsburg, J., dissenting) (quoting 531 U.S. 497, 503, 504 (2001)). Thus, “before and

after Hanna,” this Court has “cautioned” courts to “‘interpre[t] the Federal Rules ... with sensitivity to important state interests,’” and “‘to avoid conflict with

important state regulatory policies.’” Id. (quoting

Gasperini, 518 U.S. at 427 n.7, 438 n.22).

3. Avoiding conflicts also means “more frequent

application of state law in federal courts,” which will

“better serve Erie’s twin aims.” Zoffer, supra, at 523.

“Whenever a Federal Rule displaces state law in federal court, it results in different legal standards in

19

state and federal courts,” inviting forum shopping. Id.

at 523-24. Indeed, the Shady Grove plurality recognized that the conflict created by its reading of Rule 23

would drive litigation barred in state court to federal

courts. Shady Grove, 559 U.S. at 415 (Scalia, J., plurality opinion). But the shoulder-shrug reaction to

that concern “undervalues a principle of federalism

that arises when, in a diversity case, the conflicting

law is both state-created and substantive.” See Allan

Ides, The Standard for Measuring the Validity of A

Federal Rule of Civil Procedure: The Shady Grove Debate Between Justices Scalia and Stevens, 86 Notre

Dame L. Rev. 1041, 1063 (2011). For example, allowing federal courts to become havens for frivolous

claims threatens to disrupt the balance of interests

that States have carefully weighed in formulating

their medical malpractice schemes to avoid the ills of

excessive litigation while protecting the rights of those

injured by medical negligence. See supra 8-10.

4. Petitioner counters that Rule 11 is the means

of preventing frivolous suits in federal courts. Pet. Br.

24-25. But Rule 11 is a case study for how a federalism-based approach avoids unnecessary disruption of

state interests. The “fact that both” Rule 11 and affidavit-or-merit laws “address frivolous litigation

hardly creates a conflict.” Pledger v. Lynch, 5 F.4th

511, 531 (4th Cir. 2021) (Quattlebaum, J., concurring

in part and dissenting part). Rather, these mechanisms can be read to “co-exist.” See Liggon-Redding v.

Estate of Sugarman, 659 F.3d 258, 263 (3d Cir. 2011);

see also Trierweiler v. Croxton & Trench Holding

Corp., 90 F.3d 1523, 1539-41 (10th Cir. 1996).

20

Setting aside the distinctions that courts have

drawn between the applicability of Rule 11 and affidavit-of-merit laws, see, e.g., Liggon-Redding, 659 F.3d

at 263, Petitioner argues that Rule 11 states that “‘a

pleading need not be verified or accompanied by an affidavit—precisely what Delaware demands.” Pet. Br.

24 (emphasis in original) (quoting Fed. R. Civ. P.

11(a)). But Rule 11(a) does not require verification or

an affidavit “[u]nless a rule or statute specifically

states otherwise.” Fed. R. Civ. P. 11(a) (emphasis

added). The rule “does not specify whether the ‘rule or

statute’ exception applies only to federal enactments

or whether state statutes can also override the exception.” Benjamin Grossberg, Comment, Uniformity,

Federalism, and Tort Reform: The Erie Implications of

Medical Malpractice Certificate of Merit Statutes, 159

U. Pa. L. Rev. 217, 251 (2010). Under a federalismbased approach, state affidavit-of-merit laws would fit

comfortably within Rule 11’s rule-or-statute exception

allowing verification. See Youssoufian, supra, at

1475-76. Such a reading not only comports with the

text of the rule, but it also “promotes the principles of

federalism and separation of powers underlying the

Erie doctrine and our governance system.” Id.; see id.

at 1476-83 (explaining benefits of such an interpretation). Indeed, many cases that have “considered this

question in the context of certificate of merit statutes

has found that the exception does include state statutes.” Grossberg, supra, at 251 (collecting cases).

21

C. A federalism approach abides by Congressionally imposed limits on the Federal Rules.

Importing federalism-based canons to construe

Federal Rules also flows from Congress’s “incomplete”

rulemaking delegation under the Rules Enabling Act.

See Thomas, supra, at 241-43. As with regulations

promulgated by federal executive agencies, see, e.g.,

La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374

(1986), the Federal Rules derive from a congressional

delegation of rulemaking authority, 28 U.S.C. § 2072.

So just as Congress must use “clear” statutory language to authorize an agency to “significantly alter the

balance between federal and state power,” see Sackett,

598 U.S. at 679-80, the Court “should generally presume” that Congress has not exercised its “constitutional power ‘to supplant state law’ with rules that are

‘rationally capable of classification as procedure,’” see

Shady Grove, 559 U.S. at 422 (Stevens, J., concurring

in part and concurring in the judgment) (quoting id. at

406, (Scalia, J., plurality opinion)); see also Thomas,

supra, at 241-42. In other words, adopting Federal

Rules that intrude on traditional areas of state autonomy should require a “manifestation of intent by Congress to displace state law,” particularly “in areas

where states are exercising their historic police powers.” See Thomas, supra, at 193.

And Congress’s “mandate that federal rules ‘shall

not abridge, enlarge or modify any substantive right’

evinces” an intent to preserve state laws promoting

substantive state rights and policies, “as does Congress’[s] decision to delegate the creation of rules to

this Court rather than to a political branch.” Shady

22

Grove, 559 U.S. at 422 (Stevens, J., concurring in part

and concurring in the judgment). The limits imposed

by the Rules Enabling Act were meant to strike a balance “between uniform rules of federal procedure and

respect for a State’s construction of its own rights and

remedies.” Id. at 424-25. They thereby enforce “the

separation-of-powers presumption and federalism

presumption that counsel against judicially created

rules displacing state substantive law” that animated

Erie. See id. at 425 (citation omitted).

Thus, the inquiries into whether a Federal Rule

unavoidably conflicts with state law and whether its

application is valid under the Rules Enabling Act

“bleed” together. See id. 559 U.S. at 422; see also Semtek Int’l Inc., 531 U.S. at 503-04 (interpreting

Rule 41(b) to avoid a conflict because “the federal

court’s extinguishment of” a state-created right

“would seem to violate” 28 U.S.C. § 2072(b)). “When a

federal rule appears to abridge, enlarge, or modify a

substantive right, federal courts” then “must consider

whether the rule can reasonably be interpreted to

avoid that impermissible result.” Shady Grove, 559

U.S. at 422-23 (Stevens, J., concurring in part and concurring in the judgment). “This application” of the

Rules Enabling Act “shows ‘sensitivity to important

state interests’ and ‘regulatory policies,’ but it does so

as Congress authorized.” Id. at 423 (quoting id. at

437, 442 (Ginsburg, J., dissenting)).

This does not mean that Federal Rules can never

“displace state policy judgments; it means only that

federal rules cannot displace a State’s definition of its

23

own rights or remedies.” Id. at 418 (Stevens, J., concurring in part and concurring in the judgment). But

whether a state law “defines the scope of [a] state-created right” does not necessarily turn on whether the

state law is labeled substantive or procedural. See id.

at 423. A “state procedural rule, though undeniably

‘procedural’ in the ordinary sense of the term, may exist ‘to influence substantive outcomes[.]’” Id. at 42021 (citation omitted).

Consider, for example, state affidavit-of-merit

laws. As described, those laws balance the rights and

obligations of those injured by negligent care and medical providers at risk of ruinous frivolous suits. Supra

8-10. Thus, to whatever extent those laws are considered “procedural,” they are nevertheless “so bound up

with the state created right or remedy” that they help

“define[] the scope of [the] substantive right or remedy.” Shady Grove, 559 U.S. at 420-21 (Stevens, J.,

concurring in part and concurring in the judgment).

For example, Delaware’s affidavit-of-merit law resides

within the substantive provisions of its medical malpractice scheme, see 18 Del. C. § 6853, unlike New

York’s prohibition against statutory-damages class actions, which was a creature of the State’s procedural

code. See id. at 416, 436 (concluding that the state

law’s placement “in New York’s procedural code” signaled a lack of substantive import). And Justice Stevens recognized that other “seemingly procedural

rules” that make it “more difficult to bring or prove a

claim,” are of the kind that Congress meant to guard,

as they “serv[e] to limit the scope of that claim.” Id. at

420 (citing Cohen, 337 U.S. at 555; Guar. Tr. Co., 326

24

U.S. at 99). “When a State chooses to use a traditionally procedural vehicle as a means of defining the

scope of substantive rights or remedies, federal courts

must recognize and respect that choice.” Id.

CONCLUSION

The judgment of the Third Circuit should be affirmed.

Respectfully submitted,

JONATHAN SKRMETTI

Attorney General

J. MATTHEW RICE

Solicitor General

Counsel of Record

HARRISON GRAY KILGORE

Senior Assistant Attorney General

for Strategic Litigation

State of Tennessee

Office of the Attorney General

and Reporter

P.O. Box 20207

Nashville, TN 37202

(615) 532-6026

Matt.Rice@ag.tn.gov

Counsel for Amicus Curiae

State of Tennessee

AUGUST 6, 2025

ADDITIONAL COUNSEL

Steve Marshall

Attorney General

State of Alabama

Tim Griffin

Attorney General

State of Arkansas

Philip J. Weiser

Attorney General

State of Colorado

James Uthmeier

Attorney General

State of Florida

Chris Carr

Attorney General

State of Georgia

Raúl Labrador

Attorney General

State of Idaho

Theodore E. Rokita

Attorney General

State of Indiana

Brenna Bird

Attorney General

State of Iowa

Kris W. Kobach

Attorney General

State of Kansas

Russell Coleman

Attorney General

Commonwealth of

Kentucky

Liz Murrill

Attorney General

State of Louisiana

Keith Ellison

Attorney General

State of Minnesota

Lynn Fitch

Attorney General

State of Mississippi

Andrew Bailey

Attorney General

State of Missouri

Michael T. Hilgers

Attorney General

State of Nebraska

Matthew J. Platkin

Attorney General

State of New Jersey

Drew H. Wrigley

Attorney General

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Dave Yost

Attorney General

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David W. Sunday, Jr.

Attorney General

Commonwealth of

Pennsylvania

Alan Wilson

Attorney General

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Marty Jackley

Attorney General

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Ken Paxton

Attorney General

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Derek Brown

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Charity R. Clark

Attorney General

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Virginia

John B. McCuskey

Attorney General

State of West Virginia