Supreme Court of the United States · Official docket →
Harold R. Berk v. Wilson C. Choy, et al.
Paid petition · United States Court of Appeals for the Third Circuit, No. 23-1620 · judgment July 25, 2024
Before the decision, about 7.8× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a Third Circuit decision below, and a circuit split argued in the petition.
Question presented
This case presents a clear, recognized, entrenched conflict over an important question about the application of state procedural rules in federal court. Delaware, like numerous states, requires that in certain actions the plaintiff must also file an affidavit of merit ("AOM") with the complaint. See 18 Del. C. § 6853. An AOM is an affidavit signed by an expert stating that there are reasonable grounds to believe that each defendant has committed the alleged misconduct. See id.§ 6853(a)(l). The Second, Fourth, Fifth, Sixth, Seventh, and Ninth circuits hold that AOM provisions and comparable statutes do not govern actions in federal court because they answer the same question as-and therefore conflict with-several different Federal Rules of Civil Procedure. The Third and Tenth circuits, in contrast, hold that they present "no conflict" with any Federal Rules. In the decision below, the Third Circuit, in an unpublished opinion, for at least the fifth time, refused to hold that an AOM statute conflicts with any Federal Rules. Judge Phipps "concur[red] in only the judgment." Third Circuit precedent required him to vote to affirm, he explained, but ''writing on a clean slate ... he may not [have] arrive[d] at that same conclusion." The question presented is: Whether a state law providing that a complaint must be dismissed unless it is accompanied by an expert affidavit may be applied in federal court.
Counsel of record
For petitioner
Andrew Timothy Tutt
Arnold & Porter Kaye Scholer
For respondent
Sarah Elaine Harrington
Covington & Burling LLP
Case
Conference history
Distributed for 3 conferences
Amicus briefs
1 cert-stage · 10 merits
(4 supporting pet./neither, 6 respondent)
Argument & decision
Argued October 6, 2025 — Andrew T. Tutt · Frederick R. Yarger. Audio and transcript
Decided January 20, 2026. Opinion by Barrett.
Proceedings
- Feb 23 2026Judgment Issued.
- Jan 20 2026Judgment REVERSED and case REMANDED. Barrett, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh, JJ., joined. Jackson, J., filed an opinion concurring in the judgment.
- Oct 06 2025Argued. For petitioner: Andrew T. Tutt, Washington, D. C. For respondents: Frederick R. Yarger, Denver, Colo.
- Sep 23 2025Record received electronically from the United States Court of Appeals for the Third Circuit and available with the Clerk.
- Sep 05 2025Motion for divided argument filed by respondents DENIED.
- Sep 02 2025CIRCULATED
- Aug 29 2025Reply of petitioner Harold R. Berk filed. (Distributed)
- Aug 13 2025Record requested from the United States Court of Appeals for the Third Circuit.
- Aug 12 2025SET FOR ARGUMENT on Monday, October 6, 2025.
- Aug 06 2025Brief amici curiae of American Hospital Association, et al. filed.
- Aug 06 2025Brief amici curiae of Insurance Companies, et al. filed.
- Aug 06 2025Brief amici curiae of Tennessee, et al. filed.
- Aug 05 2025Brief amicus curiae of Professor Michael T. Morley filed.
- Aug 04 2025Brief amici curiae of American Medical Association, et al. filed.
- Aug 01 2025Amicus brief of DRI Center for Law and Public Policy not accepted for filing. (August 06, 2025 - Corrected brief to be submitted.)
- Aug 01 2025Brief amicus curiae of DRI Center for Law and Public Policy filed (August 11, 2025).
- Jul 30 2025Brief of respondent Wilson C. Choy, MD filed.
- Jul 30 2025Brief of respondent Beebe Medical Center filed.
- Jun 11 2025Motion for divided argument filed by respondents.
- Jun 03 2025Brief amicus curiae of American Association for Justice filed.
- Jun 03 2025Brief amicus curiae of Public Justice filed.
- Jun 03 2025Brief amici curiae of Civil Procedure Professors filed.
- Jun 03 2025Brief amicus curiae of Honorable Mark W. Bennett, et al. filed.
- May 27 2025Brief of petitioner Harold R. Berk filed.
- May 27 2025Joint appendix filed. (Statement of costs filed)
- Mar 27 2025Motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioner's brief on the merits is extended to and including May 27, 2025. The time to file respondents' brief on the merits is extended to and including July 30, 2025.
- Mar 25 2025Motion for an extension of time to file the briefs on the merits filed.
- Mar 10 2025Petition GRANTED.
- Mar 03 2025DISTRIBUTED for Conference of 3/7/2025.
- Feb 12 2025DISTRIBUTED for Conference of 2/28/2025.
- Feb 10 2025Reply of petitioner Harold R. Berk filed. (Distributed)
- Jan 27 2025Brief of respondents Beebe Medical Center, et al. in opposition filed.
- Dec 26 2024Response Requested. (Due January 27, 2025)
- Dec 18 2024DISTRIBUTED for Conference of 1/10/2025.
- Dec 17 2024Waiver of right of respondent Beebe Medical Center to respond filed.
- Dec 17 2024Waiver of right of respondent Wilson C. Choy, MD to respond filed.
- Dec 13 2024Letter from counsel for petitioner submitted pursuant to Rule 12.6 filed.
- Nov 18 2024Brief amici curiae of Civil Procedure Professors filed.
- Oct 30 2024Motion to extend the time to file a response is granted and the time is extended to and including December 18, 2024, for all respondents.
- Oct 28 2024Motion of Encompass Health Rehabilitation Hospital of Middletown, LLC to extend the time to file a response from November 18, 2024 to December 18, 2024, submitted to The Clerk.
- Oct 16 2024Petition for a writ of certiorari filed. (Response due November 18, 2024)