[co-author: Jamil AbuRoomi]
In more than half of U.S. states, a plaintiff filing a medical malpractice action must submit an “affidavit of merit” or similar document at an early stage of the case. This document is typically an affidavit by a medical professional (i) that the defendant’s actions fell below an acceptable professional standard of care or by the attorney confirming they consulted with such a professional. And in some states, including in New Jersey and Pennsylvania, this requirement applies beyond the medical profession to malpractice claims against any “licensed professional,” such as a lawyer (ii).
Last week, the U.S. Supreme Court answered a question that has divided federal courts: do state-law “affidavit of merit” requirements apply if a plaintiff brings a state-law malpractice claim in federal court? In Berk v. Choy, 607 U. S. ___ (2026), a unanimous Supreme Court answered “no,” state-law “affidavit of merit” requirements do not apply to malpractice claims brought in federal court because such a requirement would conflict with the uniform pleading standards of the Federal Rules of Civil Procedure.
Berk itself was a medical malpractice action brought under Delaware law and filed in federal district court in Delaware. When the plaintiff did not file the “affidavit of merit” required by Delaware law along with his complaint, both the district court and Third Circuit Court of Appeals held that this requirement was substantive, not procedural, and therefore applied in federal court, requiring dismissal of the case.
Reversing, the Supreme Court (in an opinion by Justice Barrett) explained that the substantive v. procedural distinction does not apply if there is a valid Federal Rule of Civil Procedure that conflicts with the state law. To decide, the court asks simply whether a valid Federal Rule “answers the question in dispute.” If it does, the Federal Rule, which is adopted pursuant to a federal statute, reigns supreme and trumps the state law.
According to the court, Federal Rule of Civil Procedure 8 applies directly and requires that, in initiating a federal lawsuit, a plaintiff supply only a “short and plain statement of the claim showing that the pleader is entitled to relief.” By specifying what is required, the Rule implicitly but clearly excludes additional state-mandated documentation like expert affidavits at the pleading stage. In addition, Federal Rule of Civil Procedure 12(b)(6) provides the exclusive ground for dismissal at the pleading stage, and Rule 12(d) prohibits courts from considering “matters outside the pleadings” when evaluating a motion to dismiss, including a state-law affidavit of merit.
For malpractice defendants in federal court, Berk is a sea change that will prevent the use of state-specific affidavit of merit requirements as a basis for dismissal. Conversely, while plaintiffs can proceed in federal court without the immediate burden of state expert affidavits, they must still allege sufficient facts to survive a Rule 12(b)(6) motion before reaching discovery.
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i See Zach Barreto, Expert Institute, Which States Require a Certificate or Affidavit of Merit in Medical Malpractice Lawsuits? (Aug. 5, 2025).
ii N.J.S.A 2A:53A-27; Pa. R.C.P. 1042.3.
