The Oklahoma Bar Journal April 2026

L itigation The Whimper (Almost) No One Heard Coming: Berk v. Choy and Anti-SLAPP Statutes

By Mbilike M. Mwafulirwa

“T HIS IS THE WAY THE world ends, not with a bang but a whimper.” – T.S. Eliot 1 When Harold Berk fell out of bed during a trip to Delaware and ended up with a severely deformed ankle after an alleged botched hospital visit, 2 he proba bly did not imagine that his mal practice lawsuit would become a vehicle for the U.S. Supreme Court to reiterate one of its most consequential principles about the nature of federal civil procedure. In Berk v. Choy , 3 the Supreme Court held that Delaware’s “affidavit of merit” requirement for medical malpractice lawsuits is inapplica ble in federal court. 4 Justice Amy Coney Barrett’s opinion is a study in unassuming simplicity; it is the kind of judicial writing that seems almost obvious in retrospect, until one realizes how much it likely, quietly, forecloses. 5 But such is the irony and drama inherent in life. Again, on a seemingly unassuming day, a man fell out of his bed some where in Delaware, 6 but the but terfly effect 7 of that fall, this article contends, will likely reverberate

in diversity jurisdiction cases in federal courts across America for years to come. Berk ’s facts are straightforward. Mr. Berk sued Dr. Wilson Choy and Beebe Medical Center for negligence. 8 Under Delaware law, such a suit cannot proceed unless accompanied by an affidavit from a medical professional attesting to its merit. Mr. Berk, despite a good faith effort, could not produce one in time. 9 The question on certiorari review was whether this Delaware gatekeeping mechanism could operate in federal court, where Mr. Berk had filed his negligence lawsuit based on diversity of citi zenship original jurisdiction. 10 The Supreme Court said no. The affidavit of merit requirement was inapplicable in federal court. 11 More importantly, the court explained why in a manner that likely has (as most Supreme Court cases often do) sig- nificant implications extending well beyond certificates of merit – implications that should give pause to anyone who has assumed that state anti-SLAPP 12 statutes occupy some special exemption from the ordinary rules governing federal procedure.

THE BERK V. CHOY FRAMEWORK

Berk applied a familiar frame work. State law claims in state court usually implicate state law. 13 But when the parties are from different states, the amount at issue exceeds $75,000, and the case is pending in federal court, those courts must apply state substantive law and federal procedural law. 14 To that end, “when a Federal Rule of Civil Procedure is on point,” the court explained, “a federal court bypasses Erie ’s inquiry altogether.” 15 This is because, the court said, “the Rules Enabling Act, which authorizes the Supreme Court to adopt uniform procedural rules for federal district courts, pro vides for the application of federal law.” 16 A valid federal rule, there fore, “ displaces contrary state law even if the state law would qualify as substantive under Erie ’s test.” 17 The analysis proceeds in two steps. First: Does a Federal Rule of Civil Procedure “answer[ ] the question in dispute”? 18 If so, second : the federal rule “governs,” unless it “exceeds statutory authorization or Congress’s rulemaking power.” 19

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

40 | APRIL 2026

THE OKLAHOMA BAR JOURNAL