On Jan 20, 2026, in a unanimous decision in Berk v. Choy, the Supreme Court held that Delaware’s medical-malpractice “affidavit of merit” requirement cannot be enforced in federal court when plaintiffs bring state-law claims there. Writing for the Court, Justice Barrett concluded that Rules 8 and 12 set the federal pleading and dismissal framework—requiring a short and plain statement and plausibility, not early evidentiary certification, so the state affidavit regime must give way under the Rules Enabling Act.
One question this raises is what (if anything) it means for cases previously dismissed for lack of an affidavit: if a case is still on direct review, Berk may support vacatur and remand; if the judgment is final, Rule 60(b) relief may be possible, but certainly not a slam dunk; and if the dismissal was without prejudice, refiling in federal court may be an option without an affidavit, but subject to the statute of limitations (plus any savings/tolling doctrines). If the SoL has run, the plaintiff may be out of luck, as Berk does not appear to extend it. Thoughts?
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