The Supreme Court’s decision on January 26, 2026, in Berk v. Choy should put to rest the long‑running debate over whether state-law certificate of merit requirements apply in federal court. Under the Court’s straightforward reasoning, they do not. This clarification carries meaningful consequences for construction disputes, particularly for owners weighing whether to file in state or federal court.
Certificate of Merit Statutes
Many states impose certificate of merit requirements as “gatekeeping” mechanisms for professional liability claims against design professionals such as architects, engineers, and land surveyors. These statutes typically require plaintiffs to submit an expert affidavit or declaration identifying the alleged negligent acts and the factual basis of those allegations. The goal is to ensure that a qualified peer has vetted the claim’s technical merit before litigation proceeds. Most states require the plaintiff to file the certificate contemporaneously with the complaint or shortly thereafter.
The Federal Split
Federal courts have long disagreed on whether these state statutes apply in diversity cases. One line of cases holds that certificate of merit requirements conflict with Federal Rules of Civil Procedure 8 and 9 and therefore do not apply in federal court because they change the requirements for an initial pleading (certificate of merit requirements also arguably conflict with Rules 11, 12, 26, and 37). See, e.g., Vargas v. Kiewit Louisiana Co., 2011 WL 13268825, at *4 (S.D. Tex. Dec. 9, 2011) (COM requirement “is in direct conflict with the text and purpose of the federal pleading standards of Rules 8 and 9”); Est. of C.A. v. Grier, 752 F. Supp. 2d 763, 770–71 (S.D. Tex. 2010) (COM requirement conflicts with Rules 8 and 9 because it “requires a plaintiff to file contemporaneously with the complaint an affidavit”).
But another line of cases holds that the certificate of merit requirements are independent of what must be contained in an initial pleading and thus do apply in federal court. See, e.g., Chamberlain v. Giampapa, 210 F.3d 154, 160 (3d Cir. 2000) (concluding that New Jersey’s COM requirement was not a pleading and does not conflict with Rules 8 or 9); State Auto. Mut. Ins. Co. v. Dunhill Partners, Inc., 2013 WL 11821466 (N.D. Tex. May 28, 2013) (similar).
The Supreme Court’s ruling in Berk should resolve this conflict.
The Berk Decision
In Berk, the plaintiff brought a Delaware medical malpractice claim in federal court. Delaware law requires a medical expert’s affidavit to “accompany” the complaint and directs clerks to reject noncompliant filings. The district court dismissed the case for failure to comply, and the U.S. Court of Appeals for the Third Circuit affirmed.
The Supreme Court, however, reversed. The Court held that when a Federal Rule squarely addresses a procedural issue, it governs and displaces contrary state law. Rule 8 specifies what a complaint must contain—a “short and plain statement” showing entitlement to relief—and does not require evidence to be submitted with the pleading. The Court found that the Delaware affidavit requirement conflicted with Rule 8, so the statute did not apply in federal court. The Court also pointed to Rule 12, which at that stage of the litigation limited dismissal to the pleadings and bars consideration of outside materials. The Court found that an external affidavit requirement was incompatible with that framework.
Justice Ketanji Brown Jackson concurred in the judgment, concluding that the Delaware statute conflicted with Rules 3 and 12 rather than Rule 8, but agreeing that the statute did not apply in federal court.
Implications for Construction Litigation
Although Berk involved medical malpractice affidavits, its reasoning should apply equally to certificate‑of‑merit statutes governing claims against design professionals. The decision is especially significant for construction disputes, in which preparing a certificate of merit can be time‑consuming and costly—often requiring extensive expert analysis before the owner has access to the contractor’s internal documents.
With Berk, federal court becomes even more attractive for owners pursuing professional‑negligence claims in large construction matters. The ruling removes a substantial upfront burden and eliminates a procedural hurdle that often disadvantages owners at the outset of litigation.
McGuireWoods continues to follow significant appellate decisions shaping professional‑negligence claims in construction matters. For questions about related topics, contact the authors or a member of the Construction Practice Area.