We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
NOW SERVING: ‘BERK CHOY’ IN ERIE SAUCE
Jacques Anatole Francois Thibault wrote in Le Lys Rouge (what I otherwise thought was a dreadful novel when I was forced to read it as a callow youth) that
The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.
Like their noncustodial brethren, Federal prisoners who suffer from ham-handed medical care while in Bureau of Prisons custody have always been able to sue for medical malpractice. They must do so through the Federal Tort Claims Act (FTCA), which provides a legal framework for suing the United States in what otherwise is a plain-vanilla state law med-mal suit.
Most states have adopted in one form or another (by statute or in rules of civil proceeding) a requirement that a med-mal complaint must be supported by an “affidavit of merit,” a statement under oath by a medical expert that attests to the merit of the claim. The reason for such a requirement is to winnow out nonsensical malpractice claims early on to decrease the burden on the courts and the inconvenience to defendants and the insurance companies who defend them.
Sounds like a great idea! What could possibly go wrong?
Just this: Hiring a medical expert (almost always a licensed physician who also works as an expert witness) to review a med-mal complaint requires an upfront outlay of somewhere north of $5,000 to get the medical file read and the affidavit signed. Especially given the unforgiving statute of limitations binding FTCA plaintiffs (six months from denial of the administrative claim to filing the suit), these state “affidavit of merit” requirements shut down med-mal remedies for all but the wealthiest inmate filers.
The rich have to hire experts out of their pocket change if they want to bring an FTCA action. Seems only fair that the impoverished be required to do so as well. Ah, the law’s “majestic equality.”
Normally, a med-mal victim finds a lawyer (usually one who advertises on late-night TV) to take the case and front costs such as the expert’s fee. But prisoners do not, because their medical costs have been paid by the governments and juries don’t care much that prisoners – whose living costs are already being paid by the government – suffered some pain and inconvenience because of medical lunacy. Generally speaking, if a plaintiff’s lawyer cannot see $250,000 or more in likely damages, he won’t take the case no matter what his freeway billboard might say.
Add to that the fact that the government already has a stable of lawyers, so legal costs are not a factor in figuring out whether to settle, and the inmate has a case that attracting a lawyer to take it on for a percentage is a very tall order.
Over the years, I have worked on any number of unsuccessful arguments to district courts and courts of appeal that state laws and rules mandating “affidavits of merit” do not bind federal courts. Back in the day, when I was studying law by candlelight, we 1Ls pored over Erie Railroad Co. v. Tompkins, a civil procedure classic in which the Supreme Court ruled that in a civil case brought in federal court (where no federal statute applied), courts were to apply federal rules of procedure but state common law. Erie is a little more complex than that, but you get the gist: a med-mal plaintiff must use state med-mal law in proving that the doctor screwed up, but the rules governing how to proceed – from everything from what motions may be brought, how discovery is conducted, and how the defendant gets served – depends on the Federal Rules of Civil Procedure.
Harold Berk sued Dr. Wilson Choy in federal court for medical malpractice under Delaware state law. Section 6853 of Title 18, Delaware Code, required Harry to accompany his complaint with an affidavit of merit “signed by an expert witness, as defined in § 6854 of this title, and accompanied by a current curriculum vitae of the witness, stating that there are reasonable grounds to believe that there has been health-care medical negligence committed by each defendant.” Harry claimed that Erie made § 6853 unenforceable in federal court because it is displaced by the Federal Rules of Civil Procedure. He lost in the district court and 3rd Circuit.
This week, however, the Supreme Court handed Harry a 9-0 win, turning Delaware’s statute into chopped ‘Berk Choy.”
The Court found the analysis to be simple. If a Federal rule governs a question arising in a civil action, it applies unless it exceeds statutory authorization or Congress’s rulemaking power. Here, the Court ruled, FRCivP 8 answers the question: Rule 8 prescribes the information a plaintiff must present about the merits of his claim at the outset of litigation: “a short and plain statement of the claim showing that [he] is entitled to relief.” By requiring no more than a statement of the claim, the Court held, Rule 8 establishes “implicitly, but with unmistakable clarity that evidence of the claim is not required.”
Rule 12 reinforces the point, Justice Amy Coney Barrett wrote for the Court: “By providing only one ground for dismissal based on the merits — ‘failure to state a claim upon which relief can be granted,’ Rule 12(b)(6) — and prohibiting courts from considering “matters outside the pleadings” when evaluating whether a plaintiff has stated a claim,” the federal procedural rules ask only whether the complaint’s factual allegations, if taken as true, “state a claim to relief that is plausible on its face.”
Justice Barrett observed that the Supreme Court “has consistently rejected efforts by lower federal courts to require more information than Rule 8 requires. Delaware’s law and Rule 8 thus give different answers to the question whether Berk’s complaint can be dismissed as insufficient because it was unaccompanied by an affidavit.”
For federal prisoners and even impecunious pro se filers, this ruling is significant. They may still face a mountain to climb in proving their case, but at least they’ve crossed the foothills by getting on file without paying an enormous upfront cost.
Writing in SCOTUSBlog, Ronald Mann said that Berk v. Choy
is interesting in its own way because it draws on a vision of the federal rules that goes far beyond the text. Barrett easily could have written an opinion saying there is no direct conflict between the rules and Delaware law. In truth, the conflict is between Delaware law and the grand conception of what the federal rules are designed to accomplish: a system where the courthouse doors are wide open upon a simple statement of a claim. For its paean to that system, I suspect this opinion will be widely noted.
Berk v. Choy, Case No. 24-440, 2026 US LEXIS 497 (January 20, 2026)
Erie Railroad. Co. v. Tompkins, 304 US 64 (1938)
SCOTUSBlog.com, Justices reject state limits on malpractice actions for cases in federal court (January 21, 2026)
~ Thomas L. Root
Edward Martin – the man who was too pro-Trump even for some Republican senators to serve as U.S. Attorney in the District of Columbia, being relegated instead to be Pardon Attorney and as Dept of Justice “weaponization” czar – has been quietly stripped of one title and is expected to step down as Pardon Attorney in the next few weeks.
As Pardon Attorney, Martin prioritized clemency for people connected to the President and the MAGA movement, and people whose families have been major donors to the Trump campaign or projects. He proudly declared on the X formerly known as Twitter that his pardon policy was “No MAGA left behind.”
