By: Shauna LaMagna
Introduction
Anti-strategic lawsuits against public participation statutes (also known as anti-SLAPP statutes) have occupied an uneasy space between substance and procedure. Designed to deter meritless (often speech-based) litigation and protect residents from strategic lawsuits against public participation[1], in January of this year, the United States Supreme Court concluded in Berk v. Choy that these statutes collide with federal procedural rules when diversity cases are brought in federal court.[2] In practice, the anti-SLAPP protections have grown “into a sword for proverbial Goliaths to hinder, delay, or strike down legitimate litigation at the outset,”[3] as they are often used by large, corporate health systems to stop, most commonly, malpractice litigation, before it gets started.
In Berk v. Choy, the United States Supreme Court held that Delaware’s Anti-SLAPP regime which includes the submission of a compulsory affidavit-of-merit to be produced for a malpractice lawsuit to proceed past the pleadings stage will not follow litigants into federal proceedings.[4] Although much of the post-Berk commentary has focused on forum shopping and federal docket growth[5], the decision’s more consequential shift may occur quietly in conference rooms rather than courtrooms. For large healthcare systems operating under healthcare enterprise risk-management frameworks[6], the loss of Delaware’s affidavit-of-merit screening mechanism increases early litigation uncertainty and front-end defense costs. In an environment where discovery expenses can rapidly escalate, even borderline claims may become economically rational to settle. The decision therefore alters not merely a litigation team’s procedural posture, but also their bargaining leverage.
Background
Since the first anti-SLAPP statute was passed in the 1990’s, many States have followed suit.[7] The main mechanism of these statutes is to use a “special motion to dismiss” that shifts the burden to plaintiffs to prove their claim has a probability of success.[8] This burden causes a significant issue when plaintiffs bring defamation actions in federal court. Under the Federal Rules, all the plaintiff needs to do to proceed to discovery is to show they have alleged sufficient facts to support their claim (if their facts are accepted as true).[9] Commonly, defamation defendants have tried to use state anti-SLAPP laws in federal court to increase the plaintiff’s burden and force them to produce additional evidence beyond the complaint before moving on to discovery.[10] Similarly, Delaware’s statute 18 Del. C. §6853[11] which requires the dismissal of a medical malpractice claim that fails to provide an affidavit-of-merit with their pleading, took center stage with the United States Supreme Court this past year as the court considered Berk v. Choy.[12]
Berk v. Choy
In Berk v. Choy, the Court considered whether Delaware’s medical malpractice affidavit-of-merit requirement applies in federal diversity actions or is displaced by the Federal Rules of Civil Procedure.[13] Berk filed a medical malpractice action under Delaware law in federal court based on diversity jurisdiction after treatment at Beebe Medical Center.[14] Because the complaint was not accompanied by an affidavit-of-merit, as required by 18 Del. C. § 6853,[15] the question became whether the state statute governed in federal court.[16]
Under § 6853, a plaintiff may not file a medical malpractice complaint unless an affidavit-of-merit “accompanies” the pleading.[17] The affidavit, signed by a qualified medical professional[18], must state that there are “reasonable grounds to believe that there has been health-care medical negligence committed by each defendant.”[19] The statute permits a single sixty-day extension for “good cause,” but only if requested at or before filing.[20] Absent compliance, the clerk must “refuse to file the complaint and it shall not be docketed,” and courts must review the affidavit in camera upon motion.[21]
The defendants argued that § 6853 is unenforceable in federal court because it conflicts with the Federal Rules of Civil Procedure.[22] As the Court noted, the Rules of Decision Act directs federal courts to apply state substantive law, “leaving federal law to cover the rest.”[23] Where a Federal Rule answers the same question as a state law, and is valid under the Rules Enabling Act, it governs.[24]
The Court concluded that Federal Rule of Civil Procedure 8 directly addresses what a plaintiff must plead to initiate a claim. Rule 8 requires only “a short and plain statement of the claim showing that [the pleader] is entitled to relief,” and does not require evidentiary support at the pleading stage.[25] In evaluating a motion to dismiss, courts may not consider “matters outside the pleadings” under Rule 12(d), and instead assess whether the complaint’s factual allegations, taken as true, “state a claim to relief that is plausible on its face.”[26]
Because § 6853 requires plaintiffs to submit evidentiary material at filing, it imposes a higher threshold than Rule 8.[27] The Court held that the state affidavit requirement and the Federal Rules answer the same procedural question but in different ways.[28] Accordingly, Rule 8 governs in federal court, and Delaware’s affidavit-of-merit statute does not apply in federal diversity actions.[29] The Court of Appeals’ decision was reversed and remanded the case for further proceedings.[30]
Analysis
Although written as a primer in the technical application of Erie principles, Berk may carry consequences that extend well beyond. Much of the early commentary has centered on whether the decision will encourage forum shopping,[31] increase federal malpractice filings,[32] or burden already crowded federal dockets.[33] Others have minimized its impact, noting that competent plaintiffs’ attorneys typically secure expert review before filing suit and therefore are unlikely to bring truly unsupported claims.[34] Both perspectives focus on whether more cases will be filed. But that framing may obscure a more consequential shift: how long cases will now survive, and how that survival alters settlement incentives.
Before Berk, Delaware’s affidavit-of-merit requirement functioned as a front-end screening mechanism.[35] A plaintiff who failed to secure expert support risked dismissal at the outset, often before the defendant incurred meaningful discovery costs.[36] The Delaware statute thus created early leverage for healthcare defendants, particularly institutional providers capable of aggressively pushing compliance with 18 Del. C. § 6853.[37] In federal court, however, that screening device no longer applies.[38] So long as a complaint satisfies Rule 8’s requirement of “a short and plain statement”[39] and pleads facts sufficient to state a plausible claim, the case proceeds into discovery without evidentiary substantiation.
That procedural shift matters because medical malpractice litigation can be discovery-intensive and expert-driven. Even claims that might ultimately fail at summary judgment will now survive long enough to potentially trigger document production, depositions of treating physicians, expert retention, and internal compliance review. Litigation costs in such cases can begin to escalate rapidly, often reaching big numbers before a Rule 56 motion is resolved. The question then becomes, not whether plaintiffs will file more suits, but whether defendants will rationally choose to litigate them to conclusion.
For large healthcare systems operating under comprehensive risk-management frameworks, prolonged discovery exposure introduces financial volatility that boards and insurers are designed to minimize. When the cost of defending a weak case exceeds the expected settlement value, engaging in an earlier negotiated resolution becomes economically preferable. In this respect, Berk subtly reshapes the bargaining leverage in diversity medical malpractice cases. It does not alter the substantive merits of malpractice claims, but it increases the probability that even weak cases survive long enough to become expensive, and expense is often the decisive variable in an organization’s settlement calculus.
Conclusion
Berk v. Choy is not a sweeping tort reform decision. However, by removing Delaware’s affidavit-of-merit screening mechanism from federal diversity actions, the Court has altered the timing of evidentiary testing in medical malpractice litigation. Claims that once faced immediate dismissal now survive into discovery. That survival increases front-end defense costs, introduces financial volatility into institutional risk modeling, and shifts bargaining leverage in early negotiations. For large healthcare systems and their insurers, the rational response may be to lean toward early resolution.
By confining anti-SLAPP procedural mechanisms to state courts, the Court has not dismantled them; instead, it has merely limited their reach. The result is not a triumph of plaintiffs over providers, nor an assault on healthcare stability. It is instead a modest rebalancing of early-stage litigation dynamics. If anti-SLAPP–style gatekeeping has evolved into a sword for the “Goliaths” of healthcare, Berk ensures that, at least in federal court, “David” is more likely to reach discovery before the battle is decided.
About the Author
Shauna LaMagna is a second year, extended division student at Widener University Delaware Law School and has been named Lead Articles Editor for Volume 52 of the Delaware Journal of Corporate Law. While in law school, Shauna works full time as a Program Coordinator and Associate Professor in the Health Sciences Division at Montgomery County Community College in Pennsylvania. She is excited to continue to incorporate her experience in health care delivery and education into her future legal practice.
[1] Sarah Petrowich, Anti-book Ban Legislation and Additional Free Speech Protections Now Law in Delaware, Del. Pub. Media (September 17, 2025 at 6:44 PM), https://www.delawarepublic.org/politics-government/2025-09-17/anti-book-ban-legislation-and-additional-free-speech-protections-now-law-in-delaware.
[2] Berk v. Choy, No. 24–440 (U.S. Jan. 20, 2026).
[3] Christopher Frost & Nicholas Lauber, Anti-SLAPP Statutes: From Shield to Sword, Daily J. (Oct. 4, 2024), https://www.dailyjournal.com/articles/381255-anti-slapp-statutes-from-shield-to-sword#:~:text=Enacted%20by%20the%20California%20Legislature,on%20matters%20of%20public%20concern.
[4] Berk, No. 24–440, slip op. at 1.
[5] Travis F. Chance & Sean S. Cuff, Supreme Court Ruling Signals Trouble Ahead for Anti-SLAPP Statutes in Federal Court, Wash. Legal Found.(January 26, 2026) (pdf on file with the author); U.S. Supreme Court to Consider Whether a State Malpractice Statute Applies in Federal Court, Duane Morris (July 14, 2025), https://www.duanemorris.com/alerts/us_supreme_court_consider_whether_state_malpractice_statute_applies_federal_court_0725.html; Buckner Wellford et al., Berk v. Choy: What the Supreme Court’s Ruling Means for Medical Malpractice Litigation, Baker Donelson (January 22, 2026), https://www.bakerdonelson.com/berk-v-choy-what-the-supreme-courts-ruling-means-for-medical-malpractice-litigation; Y. Peter Kang, High Court’s Med Mal Ruling Won’t Spark Rise in Suites, Law360 (January 23, 2026), https://www.law360.com/articles/2433360/high-court-s-med-mal-ruling-won-t-spark-rise-in-suits.
[6] Richard P. Kusserow, Enterprise Risk Management: How Leading Healthcare Organizations Reduce Compliance Risk, Strategic Mgmt. Serv. (May 2025), https://www.compliance.com/resources/enterprise-risk-management-for-healthcare-organizations-a-complete-guide/#:~:text=These%20factors%20significantly%20increase%20performance,ERM%20insights%20to%20business%20decisions (stating that “98% of large healthcare organizations now use at least some form of ERM program – with 76% of senior leadership teams and boards applying ERM insights to business decisions”).
[7] Benjamin Carbery et. al., Early Evidence? Not in this Court!: Supreme Court Clarifies Federal Rules Governs Over State Law,Benesch (January 23, 2026), https://www.beneschlaw.com/insight/early-evidence-not-in-this-court-supreme-court-clarifies-federal-rules-govern-over-state-law/.
[8] Id.
[9] Fed. R. Civ. P. 12(b)(6).
[10] Carbery et al., supra note 7.
[11] Del. Code Ann. tit. 18, § 6853(a)(1).
[12] Berk v. Choy, No. 24–440 (U.S. Jan. 20, 2026).
[13] Id. at 1.
[14] Id. at 1-2.
[15] Del. Code Ann. tit. 18, § 6853(a)(1).
[16] Berk, No. 24–440, slip op. at 4.
[17] tit. 18, § 6853(a)(1).
[18] Id. § 6853(c).
[19] Id.
[20] Id. § 6853(a)(2).
[21] tit. 18, § 6853(a)(1).
[22] Berk v. Choy, No. 24–440, slip op. at 6 (U.S. Jan. 20, 2026).
[23] Id. at 3.
[24] Id. at 11.
[25] Fed. R. Civ. P. 8.
[26] Fed. R. Civ. P. 12(d).
[27] Berk, No. 24–440, slip op. at 10.
[28] Id. at 11.
[29] Id.
[30] Id.
[31] Travis F. Chance & Sean S. Cuff, Supreme Court Ruling Signals Trouble Ahead for Anti-SLAPP Statutes in Federal Court, Wash. Legal Found.(January 26, 2026) (pdf on file with the author); U.S. Supreme Court to Consider Whether a State Malpractice Statute Applies in Federal Court, Duane Morris (July 14, 2025), https://www.duanemorris.com/alerts/us_supreme_court_consider_whether_state_malpractice_statute_applies_federal_court_0725.html.
[32] Buckner Wellford et al., Berk v. Choy: What the Supreme Court’s Ruling Means for Medical Malpractice Litigation, Baker Donelson (January 22, 2026) https://www.bakerdonelson.com/berk-v-choy-what-the-supreme-courts-ruling-means-for-medical-malpractice-litigation.
[33] Y. Peter Kang, High Court’s Med Mal Ruling Won’t Spark Rise in Suites, Law360 (January 23, 2026).
[34] Id.
[35] Carbery, supra note 7.
[36] Id.
[37] Del. Code Ann. tit. 18, §6853(a)(1)(2025).
[38] Berk, No. 24–440, slip op. at 11.
[39] Fed. R. Civ. P. 8.
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