Berk v. Choy · ¶67

As far as I can tell, then, there is no daylight between my view of the Rule 12 conflict and the majority’s assessment. But far from “reinforc[ing]” a conflict with Rule 8, ante, at 5, our shared evaluation of Rule 12 is, to me, yet another reason why Delaware’s law is not in conflict with Rule 8. See Part II–B, supra. The conflicts analysis concerning these two Rules is based on diametrically opposed characterizations of Delaware’s affidavit of merit: The affidavit must be either a “matter outside the pleadings” (and thus §6853 conflicts with Rule 12, per the Delaware Supreme Court’s decision in Hall) or it is part of what the pleadings must contain (giving rise to the purported conflict with Rule 8). A coherent conflicts analysis cannot have it both ways.

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