Case Law Alerts

January 30, 2026 

In Berk v. Choy, et al. (Case No.24–440), the plaintiff sued a physician and medical center in federal court for medical malpractice under Delaware law, but failed to provide the required expert affidavit. The plaintiff argued that the Delaware requirement of an Affidavit is not enforceable in federal court because it is displaced by the Federal Rules of Civil Procedure. 

The Third Circuit held that because Rule 8(a)(2) of the Federal Rules of Civil Procedure requires no more than a statement of the claim in order to pursue a claim of medical malpractice, this rule establishes “implicitly, but with unmistakable clarity,” that evidence of the claim is not required. The Court held, therefore, that a plaintiff in federal court pursuing a claim of medical malpractice need not file a supporting expert Affidavit in order to maintain their suit, even if the state law requires it.

Maryland and Delaware law provides that a plaintiff may not sue for medical malpractice unless a medical professional attests to the suit’s merit (Delaware requires an "Affidavit of Merit," while Maryland requires a "Certificate of Qualified Expert" and accompanying Expert Report).