Supreme Court Strikes Down State Certificate of Merit Requirements
Kenneth A Slavens
|April 17, 2026
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Some states require plaintiffs suing design professionals to file a
certificate of merit when initiating the lawsuit. For those unfamiliar with this
requirement, James Elton and Paul A. Bennet provide an insightful overview in their
article, "Certificates of Merit: Practical Guidance to Avoid Procedural Pitfalls,"
published in Under Construction, the American Bar
Association Forum on Construction Law's magazine, on December 11, 2020. The authors
state that the purpose of these statutes is "to assist in the efficient identification
and disposal of meritless claims."
The certificate of merit concept first came about in medical malpractice suits
during the medical malpractice crisis of a few years ago, and the process related to the
design professions mirrors the medical malpractice process.
Even though only a minority of states have these statutes, several recent state court decisions have addressed certificate of merit issues, including the following.
Estate of Alexander v.
Northeast Sweepers, No. A-1486-23, 2025 N.J. Super. Unpub. LEXIS
1108, 2025 WL 171136 (Super. Ct. App. Div. June 19, 2025), examined whether
construction administration services—such as reviewing compliance with drawings and
specifications—constitute "professional services" requiring a certificate of
merit.
Boynton Williams &
Assocs., PLLC v. Dilley Indep. Sch. Dist., No. 04-25-00046-CV, 2025
WL 3018246, 2025 Tex. App. LEXIS 8313 (Oct. 29, 2025), clarified what constitutes a
relevant "practice area" when determining whether a certificate of merit meets
Texas's statutory requirement that the certificate comes from someone in the same
practice area.
Aran & Franklin
Eng’g, Inc. v. Zody, No. 13-24-00180-CV, 2025 WL 866855, 2025 Tex.
App. LEXIS 1855 (Mar. 20, 2025), addressed the qualifications required for the
person or entity executing the certificate of merit under Texas law.
Most recently, the US Supreme Court ruling in Berk v. Choy, 146 S. Ct. 546
(2026), eliminates the certificate of merit requirement when a suit is filed in the
federal court system.
The Court's Holding
While Berk v. Choy involved a
medical malpractice claim rather than a suit against design professionals, the
holding applies equally to claims against architects, engineers, and other design
professionals where a certificate of merit is required. In Delaware medical
malpractice lawsuits, the law requires that the initial filing must be accompanied
by an expert affidavit attesting to the suit's merit. Plaintiff Berk failed to
obtain the required affidavit; as a result, the Delaware Court dismissed the
lawsuit.
Plaintiff Berk appealed, and the case eventually reached the US
Supreme Court. The court reversed the dismissal, holding that Delaware's affidavit
requirement does not apply in federal court because it conflicts with Federal Rule
of Civil Procedure 8. Rule 8 requires only a "short and plain statement of the
claim" to initiate a lawsuit, while the Delaware statute requires
evidence—specifically, a certificate of merit—at the outset.
The court concluded that both the Delaware statute and Rule 8
address the same fundamental question: what a plaintiff must provide regarding the
claim's merits when filing suit. The court concluded that, when a valid Federal Rule
answers the question in dispute, it governs—even if state law is considered
"substantive."
Rule 8 governs initial pleading requirements in federal court, and
the Federal Rules of Civil Procedure control procedural matters in all federal
cases, including diversity cases, ensuring uniform pleading standards across all
claims. Consequently, Delaware's affidavit requirements for medical malpractice
cases cannot be enforced in federal courts.
Takeaways
The bottom line is straightforward: When a lawsuit is filed in
federal court, the Federal Rules of Civil Procedure supersede state laws requiring
certificates of merit—whether the suit involves design professionals or medical
professionals.
Those seeking to sue design professionals in states with
certificate of merit requirements will likely seek ways to invoke federal
jurisdiction to avoid the initial burden of (a) finding an expert witness early in
the litigation, and (b) meeting the certificate of merit requirements that they
would otherwise face in state court.
This decision creates a significant procedural advantage for plaintiffs who can
establish federal jurisdiction in their cases against design professionals.
Opinions expressed in Expert Commentary articles are those of the author and are not necessarily held by the author's employer or IRMI. Expert Commentary articles and other IRMI Online content do not purport to provide legal, accounting, or other professional advice or opinion. If such advice is needed, consult with your attorney, accountant, or other qualified adviser.
Some states require plaintiffs suing design professionals to file a certificate of merit when initiating the lawsuit. For those unfamiliar with this requirement, James Elton and Paul A. Bennet provide an insightful overview in their article, "Certificates of Merit: Practical Guidance to Avoid Procedural Pitfalls," published in Under Construction, the American Bar Association Forum on Construction Law's magazine, on December 11, 2020. The authors state that the purpose of these statutes is "to assist in the efficient identification and disposal of meritless claims."
The certificate of merit concept first came about in medical malpractice suits during the medical malpractice crisis of a few years ago, and the process related to the design professions mirrors the medical malpractice process.
Even though only a minority of states have these statutes, several recent state court decisions have addressed certificate of merit issues, including the following.
Most recently, the US Supreme Court ruling in Berk v. Choy, 146 S. Ct. 546 (2026), eliminates the certificate of merit requirement when a suit is filed in the federal court system.
The Court's Holding
While Berk v. Choy involved a medical malpractice claim rather than a suit against design professionals, the holding applies equally to claims against architects, engineers, and other design professionals where a certificate of merit is required. In Delaware medical malpractice lawsuits, the law requires that the initial filing must be accompanied by an expert affidavit attesting to the suit's merit. Plaintiff Berk failed to obtain the required affidavit; as a result, the Delaware Court dismissed the lawsuit.
Plaintiff Berk appealed, and the case eventually reached the US Supreme Court. The court reversed the dismissal, holding that Delaware's affidavit requirement does not apply in federal court because it conflicts with Federal Rule of Civil Procedure 8. Rule 8 requires only a "short and plain statement of the claim" to initiate a lawsuit, while the Delaware statute requires evidence—specifically, a certificate of merit—at the outset.
The court concluded that both the Delaware statute and Rule 8 address the same fundamental question: what a plaintiff must provide regarding the claim's merits when filing suit. The court concluded that, when a valid Federal Rule answers the question in dispute, it governs—even if state law is considered "substantive."
Rule 8 governs initial pleading requirements in federal court, and the Federal Rules of Civil Procedure control procedural matters in all federal cases, including diversity cases, ensuring uniform pleading standards across all claims. Consequently, Delaware's affidavit requirements for medical malpractice cases cannot be enforced in federal courts.
Takeaways
The bottom line is straightforward: When a lawsuit is filed in federal court, the Federal Rules of Civil Procedure supersede state laws requiring certificates of merit—whether the suit involves design professionals or medical professionals.
Those seeking to sue design professionals in states with certificate of merit requirements will likely seek ways to invoke federal jurisdiction to avoid the initial burden of (a) finding an expert witness early in the litigation, and (b) meeting the certificate of merit requirements that they would otherwise face in state court.
This decision creates a significant procedural advantage for plaintiffs who can establish federal jurisdiction in their cases against design professionals.
Opinions expressed in Expert Commentary articles are those of the author and are not necessarily held by the author's employer or IRMI. Expert Commentary articles and other IRMI Online content do not purport to provide legal, accounting, or other professional advice or opinion. If such advice is needed, consult with your attorney, accountant, or other qualified adviser.