Berk v. Choy · ¶60

Accordingly, because §6853 does not address or govern the required contents of a pleading, Delaware’s law does not answer the same question as Rule 8. Instead, the State’s affidavit requirement (which, incidentally, neither describes the affidavit of merit in relation to a plaintiff ’s obligation to state a claim for relief nor treats it as evidence) is an additional filing requirement for commencing any medical malpractice civil action under state law. See §6853(a)(1) (“No health-care negligence lawsuit shall be filed in [Delaware] unless the complaint is accompanied by . . . [a]n affidavit of merit”). Finding a Rule 8 conflict, as the majority does, thus requires contorting both Rule 8 and §6853. There is no need to do so here, especially given the ready conflict with Rule 3 (discussed above) and Rule 12 (described below).

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