Oral Argument on experts in medical negligence cases: Berk v. Choy

Oral argument audio (including transcript) of case
[24-440] Berk v. Choy
argued at the Supreme Court of the United States on Oct 6, 2025.

More information about the case:
Justia: https://supreme.justia.com/cases/fede...
Docket: https://www.supremecourt.gov/docket/d...
Oyez.org: https://www.oyez.org/cases/2025/24-440

Video produced based on information and transcripts on oyez.org, licensed under a CC-BY-NC License (https://creativecommons.org/licenses/....
Not affiliated with oyez.org or the Supreme Court.

Argued on Oct 6, 2025.
Petitioner: Harold R. Berk
Respondent: Wilson C. Choy
Advocates:
Andrew T. Tutt (for the Petitioner)
Frederick R. Yarger (for the Respondents)

Chapters
0:00:00 Andrew T. Tutt
0:31:03 Frederick R. Yarger
0:59:33 Rebuttal: Andrew T. Tutt

Facts of the case (from oyez.org)
Harold R. Berk injured his ankle and allegedly received negligent medical care from three healthcare providers: Dr. Wilson C. Choy, Beebe Medical Center, Inc., and Encompass Health Rehabilitation Hospital of Middletown, LLC. Believing he suffered harm due to their malpractice, Berk filed a lawsuit against them under Delaware law. Like many states, Delaware requires plaintiffs in medical negligence cases to submit an affidavit of merit (AOM)—a statement from a qualified expert certifying that the lawsuit has a reasonable basis—either with the complaint or within a short time after filing.

Berk failed to submit an AOM with his complaint and did not request an extension before the deadline passed. Because the Delaware statute treats the AOM requirement as mandatory, the district court dismissed his case. Berk appealed to the U.S. Court of Appeals for the Third Circuit, which affirmed the dismissal, concluding that the Delaware AOM statute is substantive and therefore must be enforced by a federal court sitting in diversity.

Question
Must a Delaware law providing that a complaint must be dismissed unless it is accompanied by an expert affidavit be enforced by a federal court sitting in diversity?