U.S. Supreme Court Holds Certificates and Affidavits of Merit Are Not Required for Federal Pleading

By Teresa L. Polk of SMTD Law LLP

On January 20, 2026, the U.S. Supreme Court issued its decision in Berk v. Choy, 607 U.S. 187 (2026) holding that a plaintiff suing for medical malpractice need not file an affidavit of merit required under Delaware state law.

That clarifies that a key state court defense in professional negligence cases does not apply in federal court. That has implications for construction litigators in California and other states in professional negligence cases against architects, engineers, and other design professionals in construction projects. The decision has implications for forum selection, motion strategy, and early case leverage.

In many states, an attorney is required to file an affidavit or certificate of merit together with a professional negligence complaint or within a limited time after a suit is filed. In the context of construction, that rule requires the attorney to first find an architect or engineer who is prepared to testify that the defendant architect or engineer was negligent. That can require substantial time and expenditure before having access to the defendants’ documents through discovery. In contrast, in other types of lawsuits, all of the parties have access to discovery from each other before retaining an expert, and all parties disclose their experts at the same time after fact discovery is completed. Certificate of merit requirements force the plaintiff to do that as soon as their lawsuit is filed.

That front-end barrier is precisely what the U.S. Supreme Court addressed and effectively removed in federal court. While Berk arises in the medical context, the Court’s reasoning applies equally to construction litigators pursuing professional negligence claims against design builders, architects, engineers, and other design professionals.

Berk arises from a challenge to a Delaware statute that requires any plaintiff suing a medical profession to file, together with the complaint, an “affidavit of merit” signed by an expert witness, with the expert’s CV, stating that there are reasonable grounds to believe that there has been medical negligence committed by each defendant. 18 Del. C. § 1685. While a short extension may be available, failure to timely file the affidavit results in dismissal of the complaint without regard to any other fact.

California imposes a similar requirement. California Code of Civil Procedure § 411.35 requires an attorney to file a “certificate of merit” when suing architects, engineers, or land surveyors for professional negligence. The attorney must consult with an architect or engineer who is not a party to the lawsuit and who is licensed in the same discipline as the defendant. In California, the certificate must be signed by the attorney (not the expert) stating that the attorney has reviewed the facts of the case, that the attorney has consulted with and received the opinion from the expert, and that the attorney has concluded based on that review that there is reasonable and meritorious cause for filing the action. The failure to file a certificate is grounds for a demurrer (motion to dismiss based on the pleadings) in state court. Thus, while the California statute is not identical to the Delaware statute discussed in Berk v. Choy, its ultimate effect is the same.

Berk v. Choy held the Delaware statute inapplicable in federal court because there is a specific federal rule directly on point that states the federal requirements for pleading, and that pleading requirement is simple and limited. The Court held the federal rule of pleading controls over state certificate of merit requirements whether those requirements are procedural or substantive. Although no federal court has yet construed Berk v. Choy in the context of California Code of Civil Procedure § 411.35, the reasoning likely applies in the same way to both statutes. The U.S. Supreme Court in Berk explains:

The Rules of Decision Act directs federal courts to apply state substantive law unless the Constitution, a treaty, or a statute otherwise requires or provides. 28 U. S. C. §1652. The Rules Enabling Act, which authorizes the Supreme Court to adopt uniform rules of procedure for district courts, provides for the application of federal law. §2072(a). So, when a valid Federal Rule of Civil Procedure is on point, it displaces contrary state law even if the state law would qualify as substantive under Erie R. Co. v. Tompkins, 304 U. S. 64, 58 S. Ct. 817, 82 L. Ed. 1188. The analysis is straightforward: The Court first asks whether a Federal Rule answers the disputed question. If a Federal Rule does, it governs, unless it “exceeds statutory authorization or Congress’s rulemaking power.”

Federal Rule of Civil Procedure 8 provides that federal court pleadings require only “a short and plain statement of the claim showing that [the plaintiff] is entitled to relief.” Because Rule 8 is a federal rule of civil procedure on point concerning what a plaintiff is required to file to avoid a Rule 12(b)(6) motion to dismiss (roughly the federal equivalent of a California state court demurrer), Rule 8 displaces the state rule whether the state rule is substantive or procedural. The correct federal procedure to challenge the evidence for a professional negligence claim is thus a motion for summary judgment and not a motion to dismiss where the basis for the motion is the opinion of an expert on the merits of the action.

Accordingly, where an owner, construction contractor, or surety files suit against an architect, engineer, or land surveyor in a U.S. district court, governed by California substantive law, no certificate of merit is required.

Berk v. Choy applies only to cases filed in federal court, including suits filed under diversity jurisdiction. Most lawsuits against a designer will be diversity actions if filed in federal court since they do not involve questions of federal law. Diversity requires a showing that the plaintiff’s citizenship is in a different state than the citizenship of all defendants. When that applies, Berk raises an issue that is worth considering in choosing whether to file a case in state court, federal court, or arbitration. It is one issue among others for an attorney to explore with a client before filing suit. Where the contractor, owner or surety needs more time to explore the facts through discovery before bringing an expert witness into the case, the federal court option may be very attractive.

Teresa L. Polk is an attorney at SMTD Law. She focuses her practice in the areas of construction, surety, and real property law. With 30 years of experience, she has handled litigation of cases ranging from small claims to multimillion-dollar complex litigation. Polk’s experience includes cases in urban and rural courts throughout the State of California, in United States District Courts, Bankruptcy Courts, and state courts throughout the state. She has handled out-of-state discovery matters in several other states. Her practice also includes substantial experience in the courts of appeal. She is a member of the American Bar Association’s Torts & Insurance Practice Section. She can be reached at [email protected] or 949.537.3800.