Jason Pannu | Freeman Mathis & Gary
The U.S. Supreme Court’s January 2026 decision in Berk v. Choy marks an important development in professional liability litigation with implications extending beyond medical malpractice. For architects, engineers, and other licensed construction professionals, the ruling substantially limits the enforceability of state-law certificate or affidavit of merit statutes in federal diversity actions.
Although Berk arose from a medical malpractice claim, the Court’s reasoning applies equally to state statutes requiring pre-suit expert certifications in claims against design professionals. The decision calls for a reassessment of litigation strategy in construction and design disputes.
The decision in brief
In Berk, the Court considered a Delaware statute requiring plaintiffs to file an affidavit of merit from a qualified expert contemporaneously with the complaint. The plaintiff failed to comply, and the case was dismissed by the lower courts.
The Supreme Court reversed, holding that the Delaware statute could not be enforced in federal court because it conflicted with the Federal Rules of Civil Procedure—specifically Rules 8 and 12.
Federal rules supersede state pleading requirements
The Court’s analysis was direct and decisive:
- Rule 8 requires only a “short and plain statement” of the claim, not evidentiary support.
- Rule 12(b)(6) permits dismissal for failure to state a plausible claim, not for failure to submit expert proof.
- State laws that impose affidavit or certificate requirements at the pleading stage add evidentiary burdens inconsistent with the Federal Rules.
Because the Federal Rules address what is required to initiate and sustain a claim, they displace conflicting state procedural requirements in federal court, regardless of those statutes’ substantive purposes.
Implications for architects and engineers
Twelve states—Arizona, California, Colorado, Georgia, Maryland, Minnesota, Nevada, New Jersey, Oregon, Pennsylvania, South Carolina, and Texas—currently require certificates or affidavits of merit in professional negligence claims against architects and engineers. These statutes are intended to deter meritless claims, require early expert vetting, and reduce litigation costs.
After Berk, those objectives face meaningful limitations in federal court.
Certificates of Merit in federal court
The reasoning of Berk applies squarely to design professional statutes:
- They require expert validation at the outset of litigation.
- They impose requirements beyond Rule 8’s pleading standard.
- They often mandate dismissal for noncompliance.
Under Berk, such requirements are unlikely to be enforceable in federal diversity cases.
Increased importance of forum selection
Plaintiffs can be expected to favor federal court where jurisdiction permits, given the absence of certificate of merit requirements and lower upfront costs. For defendants and their insurers, this eliminates a key early-stage defense and reduces opportunities for prompt dismissal.
Shift from pleading to discovery
Certificate statutes function as gatekeeping mechanisms. Without them:
- Marginal claims may survive the pleading stage.
- Case dispositive review is deferred until summary judgment.
- Litigation costs and timelines are likely to increase.
The Court emphasized that federal procedure provides mechanisms to test claims—such as summary judgment—but only after adequate discovery. As a result, more cases involving design professionals may proceed deeper into litigation before resolution.
Takeaways for design professionals & insurers
- Reevaluate litigation risk in federal forums
- Anticipate increased defense costs due to longer case lifecycles
- Consider contractual risk-shifting provisions and dispute resolution clauses
For owners & developers
- Federal court may present a more accessible forum for claims
- Early expert certification may no longer be required
For counsel
- Forum selection is now a threshold strategic decision
- Removal to federal court may eliminate state-law procedural defenses
- Early motion practice must focus on substantive challenges rather than procedural challenges
Conclusion
Certificates of merit were intended to screen out unsubstantiated claims at the outset of litigation. After Berk v. Choy, that screening function no longer applies in federal court. Instead, the gatekeeping role shifts to later stages—discovery, expert disclosure, and summary judgment—where the costs are higher and the stakes more firmly established.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 801.641.8304, or email experts@adviseandconsult.net.