Berk v. Choy · ¶71

As far as I can tell, then, there is no daylight between my view of the Rule 12 confict and the majority's assessment. But far from “reinforc[ing]” a confict with Rule 8, ante, at 193, our shared evaluation of Rule 12 is, to me, yet another reason why Delaware's law is not in confict with Rule 8. See Part II–B, supra. The conficts 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 conficts 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 confict with Rule 8). A coherent conficts analysis cannot have it both ways.

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