ABSTRACT
Beginning in the 1970s and continuing into the 21st century, states have experimented with various forms of tort reform to address a perception that the amount of tort litigation, particularly medical malpractice litigation, is out of control and must be addressed. An underlying assumption, whether accurate or not, has been that this litigation is largely frivolous. According to the tort reform movement, this type of litigation, if not controlled, will inevitably lead to rising health care costs and increased malpractice premiums.
To address this perceived problem, states have enacted statutes imposing heightened pleading requirements on plaintiffs in medical malpractice cases. In general, these statutes require that plaintiffs in medical malpractice suits submit an affidavit along with their complaint that verifies that a doctor or other medical professional has reviewed the case and has determined that a reasonable and meritorious basis exists for the claims made in the complaint. Underlying this requirement appears to be a belief that it will result in (1) a fewer number of medical malpractice suits being filed, (2) a reduction in the amount of money that is expended to settle frivolous claims, a limitation on the amount of malpractice insurance required, and a reduction in the incentive for medical professionals to settle frivolous claims out of fear of potential lawsuits.
This Article discusses the development of state affidavit of merit statutes and the evolution of the Erie doctrine through the Shady Grove decision, ultimately examining how lower courts have struggled to make sense of Shady Grove in the context of state affidavit of merit pleading requirements. Currently there is a seemingly intractable circuit split over this issue, one that the Supreme Court appears ready to resolve in the next term. This Article then discusses various theoretical solutions that have been offered for this dilemma, concluding that the conflict between state affidavit of merit statutes and the Federal Rules of Civil Procedure is unavoidable and irreconcilable under the Rules Enabling Act and Erie and its progeny. Based on this analysis, this Article concludes that federal courts should not apply state affidavit of merit statutes.
Harrison, Jack, Unnecessary Pleading: Erie and Affidavits of Merit (October 1, 2025), 73 Drake Law Review (forthcoming 2026).
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