Nevada Lawyer Features Lowry Article On How Berk V. Choy Affects Personal Injury Cases Removed To Federal Courts

Michael Lowry (Partner-Las Vegas) authored “Are Nevada Procedural Statutes Still Effective in Federal Courts?” appearing in the June 1, 2026, edition of Nevada Lawyer magazine. The article analyzes the U.S. Supreme Court's recent decision in Berk v. Choy and its potential impact on Nevada litigation. In Berk v. Choy, the Supreme Court considered whether Delaware’s requirement that medical malpractice plaintiffs file an expert affidavit with their complaint applies in federal court. The Court held it does not, reasoning that Federal Rule of Civil Procedure 8 governs pleading requirements and displaces conflicting state procedural rules in federal diversity actions. The ruling reinforces that when a valid Federal Rule of Civil Procedure governs a disputed issue, it controls in federal court notwithstanding conflicting state procedural requirements. Michael explores how Berk may affect the application of several Nevada statutes in federal diversity cases, including provisions governing affidavits of merit, security for costs, physical and mental examinations, jury selection, recoverable costs, and offers of judgment. He suggests that if Berk is broadly applied, the decision could limit the effectiveness of certain Nevada procedural safeguards in federal court and reshape litigation strategy for parties deciding whether to proceed in state or federal court. Drawing on recent federal and appellate decisions involving Nevada law, the article examines how courts have addressed these issues and what Berk may mean for future litigation, removal decisions, and forum-selection strategy. Michael observes, “Berk adds further considerations when evaluating whether to cross the street from state to federal court based on diversity jurisdiction," highlighting the decision's potential influence on forum selection in Nevada cases.

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