Berk v. Choy · ¶24

Delaware's affidavit requirement is at odds with Rule 8 because it demands more: A medical malpractice suit cannot proceed “unless the complaint is accompanied by . . . [a]n affidavit of merit.” § 6853(a)(1). Under Rule 8, factual allegations are sufficient, but under the Delaware law, the plaintiff needs evidence too. See Dishmon v. Fucci, 32 A. 3d 338, 344 (Del. 2011) (describing § 6853 as imposing a “prima facie evidentiary requiremen[t]”); see also Brief for Respondent Beebe 23 (same). The two rules thus give different answers to the question whether Berk's complaint can be dismissed as insufficient because it was unaccompanied by an affidavit.

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