In an effort to combat the rise in potentially frivolous lawsuits against professionals, including physicians, attorneys, and journalists, states have passed malpractice legislation requiring plaintiffs to file an affidavit of merit (AOM) attesting to the validity of their claims. However, these AOM statutes may conflict with Federal Rule of Civil Procedure 11, which provides that “a pleading need not be verified or accompanied by an affidavit” unless a rule or statute states otherwise. This is a classic Erie/choice-of-law problem for federal courts sitting in diversity, which are tasked with applying federal procedural law and state substantive law, and now must determine whether these statutes are substantive or procedural in nature. The circuit courts of appeals are split in deciding whether these AOM statutes apply, particularly in light of Rule 11’s silence on whether its exception pertains to both federal and state rules and statutes, or federal rules and statutes only. This note proposes a solution to the circuit split by reading the exception in Rule 11 as inclusive of state rules and statutes, as per precedent and the Supreme Court’s teachings of federal rule construction, thereby permitting their application in diverse federal courts and avoiding the murky substantive/procedural debate. In doing so, courts not only vindicate valid state interests of protecting professionals from lengthy and costly litigation, but also better promote the aims of Erie/choice-of-law doctrine and preserve crucial federalism and separation of power principles underlying our system of governance.
Deanna A. Youssoufian,
The Rules of the Malpractice Game: Affidavit of Merit Statutes, Erie, and the Cautionary Tale of an Overbroad Application of Rule 11,
87 Brook. L. Rev.
Available at: https://brooklynworks.brooklaw.edu/blr/vol87/iss4/14