Berk v. Choy · ¶13

Attempting to comply with § 6853, Berk immediately moved for an extension of time to file an affidavit. The District Court granted Berk's motion, and Berk tried to track down a doctor willing to provide an affidavit (an ordeal spawning separate litigation). But the clock ran out, and coming up empty-handed, Berk instead fled his medical records under seal. Defendants moved the District Court to review Berk's submissions in camera to determine whether they complied with § 6853. Berk countered that § 6853 is not enforceable in federal court because it is displaced by the Federal Rules of Civil Procedure. The District Court disagreed with Berk and dismissed his lawsuit for failure to comply with Delaware's affidavit law. See 2023 WL 2770573, *1–*2 (D Del., Apr. 4, 2023).

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