The following post is from Jill Fisch (Penn), on last week’s arguments in Berk v. Choy, considering whether Erie/Hanna requires federal courts to apply state affidavit of merit laws. Jill has been writing on this issue (before the cert grant).
Last week’s argument in Berk v. Choy, was the first Erie doctrine case heard by the Court since its 2010 plurality decision in Shady Grove. As such, it represents an opportunity to clarify a confusing body of jurisprudence based on two largely inconsistent approaches to analyzing when a state law conflicts with a federal rule of civil procedure (FRCP) reflected in Gasperini and Shady Grove
The case involves the question of whether a federal court should apply Delaware’s affidavit of merit (AOM) statute, a decision that would have the effect of dismissing Berk’s medical malpractice case against his healthcare providers. State AOM statutes are a common component of state tort reform, but they vary tremendously in their terms. The Delaware statute is notable for imposing a variety of highly specific requirements in addition to that of filing the affidavit including requiring that the affidavit be filed with the Prothonotary or clerk of the court and remain sealed and confidential, as well as limiting its future evidentiary use.
After Shady Grove, the majority of federal courts rejected the application of state AOM statutes in federal court reasoning that the requirements of those statutes conflict with various provisions of the FRCP. As the Fourth Circuit observed in Pledger v. Lynch, “there is now a growing consensus that certificate requirements like West Virginia’s do not govern actions in federal court, because they conflict with and are thus supplanted by the Federal Rules of Civil Procedure.” In identifying a conflict, courts applied Justice Scalia’s test from Shady Grove — whether the federal rule answers the same question as a state law. Using that test, courts identified conflicts with a wide variety of federal rules including 3, 4, 8, 9, 11, 12 and more. The Third Circuit was the exception.
Oral argument reflected the confusing state of Erie jurisprudence. The Justices questioned what it means for a statute to conflict with the FRCP. Justice Scalia’s opinion in Shady Grove took a broad view of conflict but, as Justice Gorsuch pointed out at oral argument, that opinion only spoke for a plurality of the Court. Moreover, several Justices appeared skeptical of the broad assertion of conflict advanced by counsel for the petitioner, Andrew Tutt. Justice Sotomayor questioned whether petitioner could plausibly claim that statute conflicted with rules 3, 8, 9, 11 and 12. When Justice Barrett pressed Mr. Tutt to identify the best examples of rules with which there was a conflict, he named rules 8 and 9, leading Justices Barrett and Jackson to question how an affidavit, which is not a pleading, could conflict with those rules. Counsel for the respondents, Frederick Yarger, urged the Court to use the language of Walker and construe the statute narrowly to avoid a direct collision with federal law.
This assertion led Justice Gorsuch in particular to question whether it was appropriate for federal courts to pick apart an AOM statute to apply only certain of its components or whether it had to apply or reject statute in its entirety. Justice Gorsuch criticized Mr. Yarger for applying a “crack-and-extract thing,” asking whether, in so doing, the federal courts would be rewriting Delaware law. “We’re creating this Frankenstein of a statute, right?” Mr. Yarger also responded to the Justices’ concern that the Delaware statute imposes extra burdens on the plaintiff by reminding the Court that Cohen upheld the application of a state statute requiring that plaintiff post a bond in a derivative case. He argued that, as in Cohen, the affidavit requirement was “manifestly substantive.”
Perhaps the biggest takeaway from the oral argument was the seeming importance of the idiosyncratic details of the Delaware statute. State AOM statutes vary tremendously and reflect differing approaches to balancing the costs and benefits of malpractice litigation. Nonetheless, the Court and the litigants appear to be taking a one-size-fits-all approach to the question of whether to apply state AOM statutes in federal court. Rather adopting a categorical rule, I argue in my working paper, Affidavit of Merit Statutes and the Erie Shadowland, that the Court should implement a more nuanced approach that considers the specific features of an individual statute. Although such an approach is concededly more complex, it is faithful to the objectives behind the Erie decision of enabling states to experiment with different approaches to achieving substantive objectives.