Emerging Impacts of the Supreme Court’s Ruling in Berk v. Choy
In Berk v. Choy, the Supreme Court ruled that the state’s requirement of an Affidavit-of-Merit for medical malpractice suits does not apply to medical malpractice claims in federal courts. See generally, Berk v. Choy, 607 U.S. ___, 146 S. Ct. 546, 223 L. Ed. 2d 463 (2026). Delaware law requires a plaintiff to file an affidavit of merit from a medical professional with the complaint, stating that there are reasonable grounds to believe that there has been health-care medical negligence committed by each defendant. 18 Del. Code § 6853. Harold Berk brought a medical malpractice suit against Defendants for treatment relating to his fractured ankle. Berk at 551. Berk failed to file an affidavit of merit when he filed suit, resulting in its dismissal. Id. at 552. Plaintiff Berk appealed to the Third Circuit, where the District Court’s decision was affirmed. Id. The Supreme Court later reversed this decision, holding that Delaware’s affidavit law does not apply in federal court. Id. at 557. The court reasoned that when a Federal Rule of Civil Procedure is on point, a federal court bypasses Erie’s inquiry into whether a state law is substantive. Id. at 552. A valid Federal Rule of Civil Procedure displaces contrary state law even if the state law would qualify as substantive under Erie. Id. Rule 8 requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Id. at 553. By requiring no more than a statement of the claim, Rule 8 establishes “implicitly, but with unmistakable clarity,” that evidence of the claim is not required. Id. Delaware’s affidavit requirement is beyond that.
The Supreme Court’s holding in Berk extends beyond medical-malpractice actions. It affects professional liability actions that are subject to similar requirements. For example, Maryland Courts and Judicial Proceedings Article § 3-2C-01 imposes a similar requirement for malpractice claims brought against professional engineers. A plaintiff must ordinarily file a certificate of qualified expert (CQE) from an expert stating that the professional failed to meet an applicable standard of professional care within 90 days of filing suit. In a recent action in the District Court of Maryland involving engineering services, the Court concluded that the CQE was inapplicable in federal court based on Berk v. Choy. D.C. Water & Sewer Auth. v. Samaha Assocs., PC, 822 F. Supp. 3d 599 (D. Md. 2026), No. 23-CV-1328-ABA, 2026 WL 1543534 (D. Md. June 2, 2026).
Many states require affidavits of merit, CQEs, and other similar requirements that act as a screening tool for frivolous and unsupported lawsuits, allowing Defendants to challenge weak claims early on without having to go through extensive and costly discovery. Further, the impact of this decision will likely lead to increased federal filings and forum shopping in order to avoid the requirements. Ultimately, the decision in Berk is going to create a significant change in professional liability actions filed in federal court.
Written by J.D. Candidate Agnya M. Patel, reviewed by Marni E. Davenport, Esq.
