This year’s decision in Berk v. Choy offers a useful reminder that technical procedural questions determine whether a plaintiff ever gets through the courthouse door. Delaware law requires a plaintiff bringing a medical-malpractice action to submit an affidavit from a medical professional attesting that there are reasonable grounds to believe negligence occurred. This year, the Supreme Court held that Delaware’s affidavit requirement does not apply when a federal court exercises diversity jurisdiction.
The majority explained that when a valid Federal Rule answers the same question as a state law, the Federal Rule controls. Rule 8 requires a plaintiff to provide a “short and plain statement” showing an entitlement to relief. In the Court’s view, that rule establishes that a plaintiff need not also produce evidence supporting the claim at the litigation’s outset. Delaware’s statute demanded more. Because the two rules gave different answers regarding what a plaintiff must provide about the merits of a claim at the outset of a case, the Court held that Rule 8 displaced Delaware law.
Berk is especially interesting from an access-to-justice perspective. State screening requirements like Delaware’s are designed to weed out medical-malpractice claims before litigation proceeds very far. But Berk means that a plaintiff asserting the same state-law claim may find it easier to reach a determination on the merits in federal court than in state court. A plaintiff in Delaware state court must obtain expert support at the outset, while a similarly situated out-of-state plaintiff who can invoke diversity jurisdiction may proceed under the Federal Rules without satisfying that threshold requirement. That difference is striking because federal diversity jurisdiction ordinarily exists to provide an alternative forum for adjudicating state-law rights, not to make those rights easier to pursue.
The decision should also prompt a broader conversation about state constitutional law. Many state constitutions contain guarantees of a right to a remedy or access to the courts. Screening requirements that condition a plaintiff’s ability to proceed on obtaining an expert affidavit or satisfying a similar pre-suit requirement raise an important question. At what point does a mechanism intended to screen weak claims become an obstacle to obtaining a remedy for a potentially meritorious one? Berk does not answer that state constitutional question, but it does make the question more salient. If federal procedural rules permit a plaintiff to reach the merits while state procedural rules close the courthouse door at the threshold, state judges and rulemakers have good reason to consider whether those barriers are consistent with their own constitutions’ guarantees of a right to a remedy.
Finally, Berk connects to issues NCJI has been examining for years. The 2010 Judges Forum examined pleading and access to justice after Twombly and Iqbal. The 2016 Forum focused specifically on the relationship between federal procedural developments and state-court rulemaking. The 2018 Forum explored state constitutions as independent sources of rights, and NCJI has also developed resources collecting state constitutional right-to-remedy provisions and decisions. More recently, the 2023 Forum considered judicial gatekeeping and expert testimony, while the 2025 Forum emphasized the vital role of state courts in constitutional interpretation.
We are also excited to share that our 2027 Forum will focus on how state courts have both the authority and the opportunity to take the lead in developing procedures that facilitate access to justice.
Marcus Gadson, NCJI Academic Program Consultant