NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

______________ 

No. 23-1620 

______________ 

HAROLD R. BERK, 

 Appellant 

v. 

WILSON C. CHOY, MD; BEEBE MEDICAL CENTER, INC.; ENCOMPASS 

HEALTH REHABILITATION HOSPITAL OF MIDDLETOWN, LLC 

______________ 

On Appeal from the United States District Court 

for the District of Delaware 

(No. 1-22-cv-01506) 

U.S. District Judge: Honorable Richard G. Andrews 

______________ 

Submitted Under Third Circuit L.A.R. 34.1(a) 

July 11, 2024 

______________ 

Before: SHWARTZ, PHIPPS, and MONTGOMERY-REEVES, Circuit Judges. 

(Filed: July 25, 2024) 

______________ 

OPINION∗

______________ 

∗

 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does 

not constitute binding precedent. 
2 

SHWARTZ, Circuit Judge. 

 Harold Berk appeals the District Court’s order dismissing his medical malpractice 

suit against his healthcare providers because he failed to provide an affidavit of merit 

(“AOM”) as required under Delaware law. For the following reasons, we will affirm. 

I 

 After allegedly receiving negligent care for an ankle injury, Berk sued 

Defendants1

 for medical malpractice under Delaware law. The District Court, sitting in 

diversity, dismissed Berk’s complaint for failure to file an AOM as required by the 

Delaware Health-Care Negligence Insurance and Litigation Act, Del. Code Ann. tit. 18, § 

6853.2

 Berk appeals. 

1

 Defendants are Wilson C. Choy, MD, Beebe Medical Center, Inc., and 

Encompass Health Rehabilitation Hospital of Middletown, LLC. 

2

 The Delaware AOM statute provides: 

(a) No health-care negligence lawsuit shall be filed in this State unless 

the complaint is accompanied by: 

(1) An affidavit of merit as to each defendant signed by an expert 

witness, . . . stating that there are reasonable grounds to believe 

that there has been health-care medical negligence committed by 

each defendant. If the required affidavit does not accompany the 

complaint or if a motion to extend the time to file said affidavit as 

permitted by paragraph (a)(2) of this section has not been filed 

with the court, then the Prothonotary or clerk of the court shall 

refuse to file the complaint and it shall not be docketed with the 

court . . . . 

(2) The court, may, upon timely motion of the plaintiff and for good 

cause shown, grant a single 60-day extension for the time of filing 

the affidavit of merit . . . . 
3 

II3

The question before the Court is whether the Delaware AOM statute conflicts with 

the Federal Rules of Civil Procedure (the “Federal Rules”) and if not, whether a federal 

court must apply the AOM statute as a substantive state law. 

A 

Under the Erie doctrine, “a federal court sitting in diversity must apply substantive 

state law and federal procedural law.” Nuveen Mun. Tr. ex rel. Nuveen High Yield Mun. 

Bond Fund v. WithumSmith Brown, P.C., 692 F.3d 283, 302 (3d Cir. 2012) (citing Erie 

R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). To the extent a statute or rule determine 

the outcome of a case, Erie ensures that such an outcome would be the same regardless of 

whether the case is filed in federal or state court. Chamberlain v. Giampapa, 210 F.3d 

154, 158-59 (3d Cir. 2000). Thus, when faced with whether to apply a state statute in a 

federal case, we must determine whether the state statute conflicts with the Federal Rules. 

If there is a conflict, then the federal court must apply the Federal Rule, so long as it “is 

authorized by the Rules Enabling Act[,] [28 U.S.C. § 2072,] and consistent with the 

(3) A motion to extend the time for filing an affidavit of merit is timely 

only if it is filed on or before the filing date that the plaintiff seeks to 

extend[.] 

Del. Code Ann. tit. 18, § 6853(a)(1)-(3). 

3

 The District Court had jurisdiction under 28 U.S.C. § 1332 and we have 

jurisdiction under 28 U.S.C. § 1291. We review questions of law, like whether a state’s 

AOM statute applies in federal courts sitting in diversity, de novo. Schmigel v. Uchal, 

800 F.3d 113, 114 n.4 (3d Cir. 2015) (citation omitted). 
4 

Constitution.” Id. at 159 (citing Hanna v. Plumer, 380 U.S. 460, 470 (1965)).4, 5 If there 

is no conflict, we must consider whether (1) the state statute is outcome determinative, 

and (2) applying it would frustrate Erie. Schmigel v. Uchal, 800 F.3d 113, 119 (3d Cir. 

2015). 

A conflict exists when “the scope of [the] Federal Rule [] is sufficiently broad to 

cause a direct collision with the state law or, implicitly, to control the issue before the 

court, thereby leaving no room for the operation of [the state] law.” Burlington N. R.R. 

Co. v. Woods, 480 U.S. 1, 4-5 (1987) (internal quotation marks omitted) (quoting Walker 

4

 Because we conclude that there is no conflict between the Federal Rules and the 

Delaware AOM statute, we need not engage in the Rules Enabling Act and constitutional 

analysis. 

5

 Contrary to Berk’s argument, the plurality opinion in Shady Grove Orthopedic 

Associates, P.A. v. Allstate Insurance Co. did not change what it described as the 

analytical framework for determining whether there is a conflict between a Federal Rule 

and state law. 559 U.S. 393, 398 (2010). The Shady Grove plurality described its 

conflict-of-law test as “familiar” and, by citing to Burlington, endorsed the Burlington 

test. Id. We have applied Burlington in our cases applying Erie to AOM statutes and, by 

consequence, we have examined the statutes consistent with Shady Grove. See LiggonRedding, 659 F.3d at 262 (“[A] court must determine whether there is a direct collision 

between a federal rule and the state law rule that the court is being urged to apply.”); 

Chamberlain, 210 F.3d at 160 (same). 

Shady Grove simply clarified that, when there is a conflict, the Federal Rule 

preempts the state law, irrespective of whether the state law is of a “substantive nature” 

or serves a “substantive purpose[.]” 559 U.S. at 409; Nuveen, 692 F.3d at 302-04 

(observing the limited import of the Shady Grove plurality: that after a court has 

identified a conflict, it matters not whether the state law is substantive or procedural, but, 

rather, whether the Federal Rule is truly procedural); Schmigel v. Uchal, 800 F.3d at 119 

(same). A rule is procedural if it “really regulat[es] procedure,—the judicial process for 

enforcing rights and duties recognized by substantive law and for justly administering 

remedy and redress for disregard or infraction of them[.]’” Shady Grove, 559 U.S. at 410 

(quoting Sibbach v. Wilson & Co., 312 U.S. 1, 14 (1941)). 
5 

v. Armco Steel Corp., 446 U.S. 740, 749-50 (1980); citing Hanna, 380 U.S. at 471-72)). 

There is no conflict when a state statute and the Federal Rule “can exist side by side, . . . 

each controlling its own intended sphere of coverage without conflict.” Walker, 446 U.S. 

at 752. Applying this standard, we have previously concluded that the analogous AOM 

statutes of Pennsylvania and New Jersey do not conflict with the Federal Rules. See

Liggon-Redding v. Est. of Sugarman, 659 F.3d 258, 262-64 (3d Cir. 2011) 

(Pennsylvania’s AOM statute); Chamberlain, 210 F.3d at 159-61 (New Jersey’s AOM 

statute); see also Nuveen, 692 F.3d at 303-04 (affirming Chamberlain and concluding that 

Shady Grove and other intervening precedent did not render Chamberlain’s collision-oflaw analysis invalid); Schmigel, 800 F.3d at 119 (requiring a federal court sitting in 

diversity to apply Pennsylvania’s requirement that defendant give plaintiff notice about 

the absence of an AOM before moving to dismiss a complaint).6

 

Like the Pennsylvania and New Jersey AOM statutes, Delaware’s AOM statute 

does not conflict with any Federal Rule, including Rules 8, 9, 10, and 11. 

6

 Shady Grove did not upend the “direct collision” test by instructing courts to 

consider whether the Federal Rule “answers the [same] question” as the state statute. 559 

U.S. at 398. In fact, the phrase “answers the question in dispute” incorporates the 

standard articulated in Burlington (i.e., that there is a conflict when “the scope of [the] 

Federal Rule [] is sufficiently broad to cause a direct collision with the state law or, 

implicitly, to control the issue before the court, thereby leaving no room for the operation 

of that law”). Burlington, 480 U.S. at 4-5 (internal quotation marks and citations 

omitted); accord CoreCivic, Inc. v. Candide Grp., LLC, 46 F.4th 1136, 1141 (9th Cir. 

2022) (“[T]he [Shady Grove] majority opinion broke little new ground with respect to the 

standard for assessing a potential conflict between the [F]ederal [R]ules and state law.”). 

Therefore, Shady Grove does not disturb the analysis in our precedent. 
6 

A state AOM statute does not conflict with Federal Rules 87 or 98 if it (1) “does 

not require a plaintiff to set forth any factual averments upon which a claim is based,” 

Liggon-Redding, 659 F.3d at 262; (2) “does not have any effect on what is included in 

the pleadings of a case or the specificity thereof[,]” id. at 263 (internal quotation marks 

and citations omitted); and (3) “is not a pleading and need not be filed until well after the 

complaint,” id. at 263; see also Chamberlain, 210 F.3d at 160 (considering these factors 

while reviewing New Jersey’s AOM statute).9 The Delaware AOM statute (1) does not 

require a plaintiff to state any facts to support his claim and (2) has no impact on the 

contents of the pleadings or specificity of the allegations. See Del. Code Ann. tit. 18, § 

6853(a); see, e.g., Dishmon v. Fucci, 32 A.3d 338, 344 (Del. 2011) (holding that an AOM 

does not need a factual basis and need only contain the “functional equivalent of the 

statutory language”). Unlike Rules 8 and 9, which “dictate the content of the pleadings 

and the degree of specificity that is required,” Chamberlain, 210 F.3d at 160, the 

Delaware statute functions simply “to reduce the filing of meritless medical negligence 

claims.” Dishmon, 32 A.3d at 342. Furthermore, an AOM is not a pleading because it 

does not provide notice of a claim or seek court intervention. See CPR Mgmt., S.A. v. 

Devon Park Bioventures, L.P., 19 F.4th 236, 243 (3d Cir. 2021) (observing that pleadings 

7

 Rule 8 requires that a complaint contain a “short and plain statement of the claim 

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 

8

 Rule 9 sets forth the pleading requirements for certain types of claims, but 

malpractice claims is not one of them. See Fed. R. Civ. P. 9. 

9

 The Pennsylvania and New Jersey statutes require a plaintiff to file an AOM 

within sixty days after filing the complaint. Pa. R. Civ. P. 1042.3(a); N.J. Stat. Ann. § 

2A:53A-27. 
7 

are distinct filings that serve to “provide notice to an adverse party that it has a claim or 

defense and is seeking court intervention”); see also Fed. R. Civ. P. 7(a); 13(b), (g) 

(designating “[p]leadings” as a set of submissions—e.g., a complaint, answer, 

counterclaim, crossclaim—not including attachments). Finally, a plaintiff can seek 

permission to submit the AOM after he files his complaint, thereby demonstrating it is 

separate and distinct from the pleading. See Del. Code Ann. tit. 18, § 6853(a); Nuveen, 

692 F.3d at 303 (explaining that there is no conflict between the state AOM statue and 

Rule 8 when the state AOM law permits “temporal separation of the filing of the 

complaint and the affidavit”). Because the AOM is not a pleading and serves a different 

purpose than pleadings do, there is no conflict between the Delaware statute and Rules 8 

or 9. 

The Delaware AOM statute also does not conflict with Rules 11 or 12. “Rule 11 

requires an attorney to sign a pleading, thereby attesting that the complaint is 

meritorious.” Liggon-Redding, 659 F.3d at 263; see also Fed R. Civ. P. 11(a). In 

contrast, the Delaware AOM statute requires a statement by “an expert witness” 

representing that “there are reasonable grounds to believe that there has been health-care 

medical negligence committed by each defendant.” Del. Code Ann. tit. 18, § 6853(a)(1). 

Put differently, Rule 11 governs attorney conduct, whereas the Delaware statute governs 

what an expert must do in a particular type of case. These two rules therefore have 

different “sphere[s] of coverage” and do not conflict. Walker, 446 U.S. at 752. 

Rule 12 also does not conflict with the Delaware AOM statute. Rule 12 provides 

litigants a mechanism to test the sufficiency of a complaint’s factual allegations and 
8 

whether they provide a basis for relief. See Bell Atl. Corp v. Twombly, 550 U.S. 544 

(2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009); Fed. R. Civ. P. 12(b)(6). Whether a 

complaint is sufficient, however, has no bearing on a court’s decision to dismiss an action 

for failure to comply with an AOM statute. As stated previously, a state AOM statute 

“serves an entirely different purpose” from a pleading and contemplates a process for 

addressing noncompliance that differs from a motion to dismiss based on a pleading 

defect. Liggon-Redding, 659 F.3d at 264. Therefore, the Delaware AOM statute does 

not collide with Rule 12.10 

B 

Having identified no conflict, we next examine whether the Delaware statute is 

substantive (and therefore applicable here) or procedural (and therefore not applicable 

here) by assessing whether: (1) “the state law is outcome-determinative”; and (2) “failure 

to apply the state law would frustrate the twin aims of [] Erie[,]” namely to (a) 

“discourage forum shopping” and (b) “avoid inequitable administration of the law.” 

10 Many of the out-of-circuit cases Berk cites, where courts have declined to 

enforce AOM statutes, involved actions brought by federal prisoners under the Federal 

Tort Claims Act (“FTCA”) and thus are federal question cases. See Corley v. United 

States, 11 F.4th 79, 83 (2d Cir. 2021); Pledger v. Lynch, 5 F.4th 511, 515 (4th Cir. 2021); 

Young v. United States, 942 F.3d 349, 350 (7th Cir. 2019); Gallivan v. United States, 943 

F.3d 291, 293-34 (6th Cir. 2019); see also Appellant Br. at 4. While state laws have a 

role in FTCA cases, the role of those laws address tort liability. Wilson v. United States, 

79 F.4th 312, 318 (3d Cir. 2023). Other out-of-circuit cases that have declined to enforce 

AOM statutes are further distinguishable because they treat AOMs as pleadings, see, e.g., 

Martin v. Pierce Cnty., 34 F.4th 1125, 1129-30 (9th Cir. 2022); Albright v. Christensen, 

24 F.4th 1039, 1045-46 (6th Cir. 2022), which is contrary to our conclusion that AOMs 

are not pleadings where, as here, the state AOM statute permits “temporal separation of 

the filing of the complaint and the [AOM].” Nuveen, 692 F.3d at 303. 
9 

Schmigel, 800 F.3d at 119 (internal quotation marks and citation omitted). For the 

following reasons we conclude that application of the AOM is outcome determinative 

and failing to apply it would frustrate Erie. 

First, in Delaware state court, a plaintiff’s failure to comply with the AOM 

requirement can result in the dismissal of his case. See, e.g., Enhaili v. Patterson, No. 

272, 2018, 2018 WL 5877282, at *1 (Del. Nov. 7, 2018) (affirming an order dismissing a 

complaint alleging medical negligence for failing to file an AOM). “Dismissing a claim 

or case can certainly determine the outcome of the matter.” Liggon-Redding, 659 F.3d at 

264 (observing that “failing to apply the Pennsylvania [AOM] rule in a federal action 

where no certificate of merit was filed would ‘produce a different outcome than that 

mandated in [a] state proceeding’” (quoting Chamberlain, 210 F.3d at 161)). Application 

of the Delaware statute is thus outcome determinative. 

Second, applying the statute would promote Erie’s twin aims. As to the question 

of forum shopping, “a plaintiff ‘who [has] been unable to secure expert support for [his] 

claims and face[s] dismissal under [an AOM] statute in state court may, by filing in 

federal court, be able to survive beyond the pleading stage and secure discovery.” Id. 

(first and second alterations in the original) (quoting Chamberlain, 210 F.3d at 161). 

Thus, allowing such a plaintiff to proceed in federal court would provide him an 

advantage that he would lack in state court and encourage him to find a way to seek relief 

in a federal court. As to the question of inequitable treatment, if we decline to apply the 

Delaware AOM statute, “a defendant in federal court would be forced to engage in 

additional litigation and expense in a non-meritorious malpractice suit simply because the 
10 

plaintiff was from a different state” and filed suit in federal court. Id. (citing 

Chamberlain, 210 F.3d at 161). Accordingly, both aims of Erie are satisfied by enforcing 

the Delaware AOM statute in federal court.11

Therefore, the Delaware AOM statute is substantive and must be enforced by a 

federal court sitting in diversity, and because Berk did not provide an AOM, the District 

Court correctly dismissed his complaint. 

 III 

For the foregoing reasons, we will affirm.12

11 Berk identifies no “countervailing federal interests [that] prevent the state law 

from being applied[.]” Liggon-Redding, 659 F.3d at 262 (citing Chamberlain, 210 at

159-61). 

12 Judge Phipps agrees with the disposition of this appeal because he sees no 

persuasive grounds for preventing the legal reasoning in this Court’s prior precedents, 

which hold that New Jersey’s affidavit-of-merit statute, N.J. Stat. Ann. § 2A:53A-27, and 

Pennsylvania’s certificate-of-merit rule, Pa. R. Civ. P. 1042.3(a)(1), apply as the 

substantive law in diversity suits, from also governing the applicability of the Delaware 

affidavit-of-merit statute, Del. Code Ann. tit. 18 § 6853(a)(1), in diversity suits. See

Schmigel, 800 F.3d at 121–22 (concluding that Pennsylvania’s certificate-of-merit statute 

did not conflict with Federal Rules of Civil Procedure 7(b) or 12(b) and that the rule 

applied since it was substantive); Nuveen, 692 F.3d at 302–03 (holding that there was no 

direct conflict between New Jersey’s affidavit-of-merit statute and Federal Rules of Civil 

Procedure 8 and 9 and that New Jersey’s statute applied because it was substantive); 

Liggon-Redding, 659 F.3d at 262, 264 (holding that Pennsylvania’s certificate-of-merit 

statute did not directly conflict with Federal Rules of Civil Procedure 7, 8, 9, 11, or 41(b), 

and that Pennsylvania’s rule applied as substantive); Chamberlain, 210 F.3d at 160–61 

(concluding that there was no direct conflict between New Jersey’s affidavit-of-merit 

statute and Federal Rules of Civil Procedure 8 and 9, and that New Jersey’s rule applied 

since it was substantive). If writing on a clean slate, however, he may not arrive at that 

same conclusion, and thus he concurs in only the judgment. See Schmigel, 800 F.3d at 

125–26 (Rendell, J., dissenting); Benjamin Grossberg, Uniformity, Federalism, and Tort 

Reform: The Erie Implications of Medical Malpractice Certificate of Merit Statutes, 

159 U. Pa. L. Rev. 217, 242–47, 251–56 (2010).