U.S. Supreme Court Scraps State Affidavit of Merit Requirement for Professional Liability Cases Filed in Federal Court

In Berk v. Choy, 607 U.S. 187 (2026), the U.S. Supreme Court unanimously held that Delaware’s affidavit of merit (“AOM”) requirement for professional liability claims does not apply to cases filed in federal court under diversity jurisdiction. Although the Court decided the issue only with respect to Delaware law, the decision will affect all states with a similar AOM statute, such as New Jersey, Pennsylvania, and New York because it incentivizes plaintiffs to file professional malpractice claims in federal court where state AOM requirements are inapplicable.

Affidavits of Merit and Their Purpose

An AOM, also referred to as a certificate of merit, is a filing supported by a licensed professional’s attestation that there is a reasonable basis for the plaintiff’s professional malpractice or negligence claim. N.J.S.A. 2A:53A-27; see Pa. R.C.P. No. 1042.3; see also N.Y. C.P.L.R. § 3012-a; and Del. Code, Tit. 18 § 6853(a)(1).

In New Jersey and Pennsylvania, AOMs are required in professional liability claims. They are intended “to weed out frivolous lawsuits early in the litigation while, at the same time, ensuring that plaintiffs with meritorious claims will have their day in court.” Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 150 (2003) (quoting Hubbard v. Reed, 168 N.J. 387, 395 (2001); N.J.S.A. 2A:53A-27; Womer v. Hilliker, 908 A.2d 269, 275 (Pa. 2006) (explaining Pennsylvania’s certificate of merit statute was meant to “identify and weed non-meritorious malpractice claims from the judicial system efficiently and promptly”); and Pa. R.C.P. No. 1042.3.

AOMs in New Jersey and Pennsylvania mirror one another: (1) they must demonstrate the allegations of breach of a professional duty are supported (Ferreira, 178 N.J. at 150; and Womer, 908 A.2d at 275-76); (2) they must be provided within at most 120 days of the filing of the defendants’ answer (N.J.S.A. 2A:53A-27; and Pa. R.C.P. No. 1042.3(a), (d)); and (3) the failure to serve a timely AOM requires dismissal. Ferreira, 178 N.J. at 150 (citing N.J.S.A. 2A:53A-29); and Pa. R.C.P. No. 1042.7. New Jersey further mandates that a “case management conference be held within ninety days of the service of an answer in all malpractice actions” where the defendant must assert “any deficiency in an [AOM] already served in order to give the plaintiff the opportunity to cure the defect within the 120-day period.” A.T. v. Cohen, 231 N.J. 337, 346-47 (2017) (quoting Knorr v. Smeal, 178 N.J. 169, 182 (2003)).

However, New York—like Delaware—only requires AOMs for “medical, dental or podiatric malpractice.” Compare N.Y. C.P.L.R. § 3012-a(a) with Del. Code, Tit. 18 § 6853(a) (requiring AOMs only for “health-care negligence” claims). New York requires the AOM to be filed within ninety days after service of the complaint, N.Y. C.P.L.R. § 3012-a(a)(2), but the court retains discretion to extend the time to file. Fortune v. N.Y.C. Health & Hosps. Corp., 193 A.D.3d 138, 144 (1st Dept. 2021).

The U.S. Supreme Court Holds State Affidavit of Merit Statutes are Inapplicable in Federal Court

Harold Berk fractured his ankle while on a trip in Delaware. He was incorrectly advised by medical staff to be fitted with a protective boot, which he alleged exacerbated his injuries, and to “keep weight off his ankle.” Berk, 607 U.S. at 190. A second X-ray revealed he not only fractured his ankle, but that it was “severely deformed” and required surgery. Ibid.

Mr. Berk sued the hospital and doctor under Delaware law for medical malpractice in the U.S. District Court for the District of Delaware, invoking diversity jurisdiction. Ibid. Delaware law requires that an AOM be filed concurrently with a plaintiff’s complaint or that a one-time sixty-day extension of time to file the affidavit must be requested before or when the complaint is filed. Id. at 190-91 (citing Del. Code, Tit. 18 §6853(a)(1)). Mr. Berk never timely filed his AOM even though he obtained a sixty-day extension to file his AOM. Id. at 191. Accordingly, the District Court dismissed his complaint with prejudice, declining to accept his argument that the AOM requirement was supplanted by the pleading standards outlined in the Federal Rules of Civil Procedure. Ibid.

In an unpublished opinion, the Third Circuit Court of Appeals affirmed the dismissal. Berk v. Choy, No. 23-1620, 2024 U.S. App. LEXIS 18336 (July 25, 2024). It held that Delaware’s AOM was applicable in federal court. Id. at *4 (citing Chamberlain v. Giampapa, 210 F.3d 154, 159-61 (3d Cir. 2000) (holding New Jersey’s AOM statute was substantive and must be applied in federal courts)) (citing Liggon-Redding v. Est. of Sugarman, 659 F.3d 258, 262-64 (3d Cir. 2011) (holding Pennsylvania’s certificate of merit statute was substantive and also must be applied in federal courts)). The Supreme Court granted certiorari. Berk v. Choy, 604 U.S. 1193 (2025).

The Supreme Court reversed. After analyzing Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) to determine whether the Federal Rules of Civil Procedure superseded Delaware’s AOM law, the Court held that because “Rule 8 sets a ceiling on the information that plaintiffs can be required to provide about the merits of their claims” and “Delaware’s affidavit requirement . . . demands more,” Rule 8 displaced Delaware’s state law requirement to file an AOM with a claim for professional malpractice. Berk, 607 U.S. at 194. The Court further held that because Rule 8 is valid under the Rules Enabling Act, 28 U.S.C. § 2072(a), and “really regulates procedure,” it governs rather than Delaware’s substantive AOM law. Id. at 198-99 (quoting Sibbach v. Wilson & Co., 312 U.S. 1, 14 (1941)). The Court also found Rule 12, which sets forth the standard for dismissal of claims based on the substantive allegations set forth in a plaintiff’s complaint, was the only “ground for dismissal based on the merits[.]” Id. at 193.

At bottom, Berk holds that a litigant filing a professional liability claim in federal court based on diversity jurisdiction need not abide by a state’s substantive pleading requirements for concurrent or early filing of an AOM.

The Aftermath of Berk and Its Possible Effect on New Jersey, New York, and Pennsylvania Professional Liability Litigation

Berk may change New Jersey and Pennsylvania professional liability cases by creating a lower pleading standard for filing in federal court than in state court. This may lead to forum selection, where plaintiffs file more frequently in federal court when it is available than in state court. It may also lead to fewer cases being dismissed during the early stages of litigation, thereby requiring the parties to conduct substantial discovery. In addition, the weeding function of the New Jersey and Pennsylvania AOM statutes may be thwarted in diversity cases now that plaintiffs with weaker claims may elect to circumvent the early scrutiny of those statutes by filing in federal court. Notably, a claim for professional malpractice or negligence is only cognizable in federal court if the amount in controversy is greater than $75,000 and diversity requirements are met, 28 U.S.C. § 1332, meaning not every claim will be able to take advantage of this lesser pleading standard. As such, this could limit the impact.

In Pinheiro v. Langan Engineering & Environment Services, Inc., No. ESX-0442-23 (Law Div. 2024), the plaintiff, a Philadelphia resident, was injured when he stepped onto a loose piece of plywood covering a mechanical shaft and fell approximately twenty feet onto a concrete slab. He filed a complaint in New Jersey Superior Court alleging, among other things, that O’Toole Scrivo’s client, a New Jersey-based corporation, was negligent and failed to comply with all industry standards, which resulted in the plaintiff’s injuries. The firm successfully argued for dismissal based on the plaintiff’s failure to timely file an AOM. Had the plaintiff’s claim been brought today in federal court following Berk, dismissal on this ground would not have been warranted.

Another possible consequence of Berk is that it could result in increased professional liability claims. Since an AOM is no longer mandatory when filing in federal court, the lower upfront costs may make attorneys more willing to accept cases that appear less viable at the outset. This increase in potential cases may be detrimental to professionals. It could also have a deleterious effect on non-professional liability cases, in part due to the backlogs the federal court system is facing. See U.S. Courts, The Need for Additional Judgeships: Litigants Suffer When Cases Linger. More cases filed mean less time federal judges can spend on other pending matters.

Berk could also impact New York litigation, but unlike New Jersey and Pennsylvania, will be limited to cases involving medical, dental, or podiatric malpractice. In those instances, when a plaintiff files a lawsuit in federal court, they will not be required to abide by New York AOM requirements. This could result in more medical, dental, and podiatric malpractice claims being brought in federal rather than New York state court.

Overall, it remains to be seen the extent to which Berk will affect litigation in New Jersey, New York, and Pennsylvania. However, these issues require counseling from attorneys experienced in defending professional liability lawsuits in state and federal courts who can guide clients through the nuances.