Earlier this year, the U.S. Supreme Court issued a decision in a Delaware medical malpractice action with particularly important ramifications for all professional malpractice actions brought in federal court. In sum, the court held that state-law affidavit-of-merit statutes are inapplicable in federal court, thereby making it considerably easier for plaintiffs to assert malpractice claims against professionals.

To understand this holding, it is important to take a close look at the facts and decision in Berk v. Choy, 607 U.S. 187 (2016).

Harold Berk, a New York citizen, brought a medical malpractice action in federal court against Beebe Medical Center and Dr. Wilson Choy after his ankle fracture was allegedly worsened by improper boot fitting and delayed imaging. Berk, 607 U.S. at 190. Under the applicable Delaware law, a plaintiff is required to file a medical professional’s affidavit of merit together with his complaint, subject to a single, 60‑day extension for good cause. Id. 

Berk received the 60-day extension, but he was unable to obtain the requisite affidavit of merit within that extended time. Id. at 191. The defendants moved to dismiss Berk’s complaint, while Berk argued that Delaware state law is displaced by the Federal Rules of Civil Procedure (FRCP). Id. The district court dismissed the action, and the 3rd U.S. Circuit Court of Appeals affirmed. Id. 

The Supreme Court granted certiorari and reviewed the Third Circuit’s decision.

FRCP governs

In a majority opinion written by Associate Justice Amy Coney Barrett, the Court framed the disputed question as whether Berk’s suit may be dismissed for lack of an accompanying expert affidavit of merit. Id. at 192-93. 

Rule 8(a)(2) of the FRCP requires only “a short and plain statement of the claim” and, by necessary implication, does not require evidentiary support at filing. Id. at 193. The Court emphasized that Rule 8 sets the maximum information required on the merits at the pleading stage unless another federal rule specifically says otherwise. 

Looking at the Delaware affidavit-of-merit statute, the Court found that the statute improperly required more than Rule 8 allows by conditioning the ability to proceed on an expert affidavit attesting to negligence by each defendant. Id. at 194.

Furthermore, Rule 12 of the FRCP provides that a dismissal for failure to state a claim is limited to that ground, and courts are barred from considering materials outside the pleadings at that stage. This is also inconsistent with the requirement of an affidavit of merit. 

The Court rejected the view that the affidavit’s status as a document outside the “pleading” saves it, reasoning that Rule 8 forecloses additional evidentiary demands, whether within or appended to the complaint. Id. at 194-95.

Defendants argued that the federal court could require the affidavit “early” rather than “accompanying” the complaint, effectively recasting the Delaware statute as a flexible, free‑floating evidentiary timing rule. Id. at 197. The Court rejected that view because the statute’s extension is narrow, requires good cause and must be sought before or at filing. The state law also defers defendants’ obligations until after the affidavit is filed, a feature that conflicts with Rule 12(a)(1) of the FRCP. Id.

Recognizing the weaknesses in most of their arguments, the defendants spent most of their time arguing that Rule 11 of the FRCP supports maintaining the state-law governing affidavits of merit in federal cases. Id. at 197. 

The defendants invoked Rule 11(a)’s requirement that pleadings need not be verified or accompanied by an affidavit “unless a rule or statute specifically states otherwise,” contending it preserves state affidavit statutes in federal court. Id. The Court held that Rule 11 regulates the conduct of attorneys and represented or pro se parties and acknowledges party verification or affidavits in specific contexts, not third‑party expert affidavits, as the Delaware affidavit of merit statute requires. Id. at 198. Accordingly, the Court held that Rule 11 offers “no loophole” to apply the Delaware affidavit-of-merit statute in federal court. Id. at 197-98.

The Court noted its track record of upholding federal rules governing practice and procedure and held that Rule 8 likewise regulates procedure by specifying what plaintiffs must present at the outset, affecting process but not rights, remedies or rules of decision. Id. at 199.

Thus, the Supreme Court reversed the Third Circuit, holding that Delaware’s affidavit requirement does not apply in federal court because it conflicts with and is displaced by the FRCP. Id. at 200. The decision was almost unanimous, with seven other justices agreeing with Justice Barrett. Associate Justice Ketanji Brown Jackson concurred in the judgment but wrote separately to express her view that the operative rules in the FRCP that apply are Rules 3 and 12, not Rule 8. Id.

Application to design professionals

The holding in Berk is that a state law requiring an expert affidavit of merit to accompany, or be filed as a precondition to proceeding on, a professional negligence claim conflicts with Rules 8 and 12 of the FRCP and, therefore, does not apply in federal court.

This reasoning does not only apply to medical malpractice claims. It applies equally to state affidavit‑of‑merit statutes governing claims against professional engineers and architects. The Supreme Court did not limit its analysis to medical malpractice. Instead, it noted the general incompatibility between Rule 8’s pleading requirements and any state‑law evidentiary requirements at the outset, coupled with Rule 12’s limits on dismissal. 

Thus, there is no reason why the Court’s analysis would not apply equally to professional malpractice actions, predicated on diversity of citizenship, against architects and engineers. Indeed, since Berk, several lower federal courts have applied the Supreme Court’s holding and found that state-law evidentiary or affidavit-of-merit statutes are inapplicable in federal court. See Ramirez v. Bohm, No. 25-CV-1660-PHX-KML, 2026 WL 171740 (D. Ariz. Jan. 22, 2026); Allen v. Voorstad, No. 3:25-CV-106, 2026 WL 184276 (M.D. Pa. Jan. 23, 2026).

Finally, in District of Columbia Water & Sewer Auth. v. Samaha Assocs., PC, 822 F. Supp.3d 599 (D. Md. 2026), a Maryland district court directly held that the state’s affidavit-of-merit statute did not apply to claims against design professionals.

Takeaways

Federal courts sitting in diversity will not enforce state affidavit‑of‑merit statutes against professionals in malpractice actions. While such statutes were initially enacted as “gatekeeping” devices designed to weed out frivolous claims, they are simply inconsistent with the requirements set forth in the FRCP in federal courts. 

While the holding in Berk and its progeny does not bode well for design professionals (or any other professionals subject to state affidavit-of-merit statutes), they need to be cognizant of the U.S. Supreme Court’s holding should they find themselves facing a malpractice action in federal court.

Disclaimer

This article is for informational purposes only and not for the purpose of providing legal advice. Nothing in this article should be considered legal advice or an offer to perform services. The application and impact of laws may vary widely depending on the specific facts at issue. Do not act upon any information provided in this article, including choosing an attorney, without independent investigation or legal representation. The opinions expressed in this article are the opinions of the individual author and may not reflect the opinions of his firm.