The U.S. Supreme Court's January 20, 2026 unanimous decision in Berk v. Choy, written by Justice Barrett, held that Federal Rule of Civil Procedure 8 displaces state affidavit-of-merit requirements in diversity medical malpractice cases. The Court reasoned that Rule 8 is a valid procedural rule under the Rules Enabling Act and that it regulates the manner and means by which claims are presented at the pleading stage, leaving no room for state-law evidentiary supplements like Delaware's affidavit requirement.
Six months in, plaintiff firms in states with strict pre-suit screening regimes have adapted case-selection and filing patterns. The decision opens federal-court filing as a viable venue for plaintiffs who would otherwise face dismissal for failure to meet pre-suit affidavit, certificate-of-merit, or expert-screening requirements. The decision does not displace all pre-suit screening, and the open questions matter for case strategy.
What the Decision Reaches
The decision squarely reaches state pleading rules that require a plaintiff to attach an affidavit of merit, certificate of merit, or equivalent expert certification to the complaint. Delaware's rule was the specific subject of the appeal, but the reasoning sweeps in similar rules in Pennsylvania, Connecticut, New Jersey, and several other jurisdictions that require expert certification at the filing stage.
The Court treated the affidavit requirement as a pleading rule rather than a substantive prerequisite to suit. Under the Court's framing, Rule 8 occupies the field for what must accompany a pleading, and a state may not require additional pleading-stage documentation when the federal rule does not. The plaintiff's complaint must still meet Rule 8's notice-pleading standard and Rule 9's particularity requirements where applicable, but state expert-certification rules drop out at the filing stage.
What the Decision Does Not Reach
The decision does not displace substantive prerequisites to suit that operate as conditions precedent rather than as pleading rules. State medical-review-panel requirements, mandatory pre-suit notice statutes, and statutes of limitations that incorporate notice-and-response periods generally remain enforceable in federal court because they create substantive rights and obligations independent of the pleading process.
The line between substantive prerequisite and pleading rule is the analytical pivot. A statute that requires a plaintiff to obtain an expert opinion before filing and to attach it to the complaint looks like a pleading rule and is displaced by Rule 8. A statute that requires the plaintiff to submit the claim to a state medical review panel for non-binding opinion before any complaint is filed looks like a substantive prerequisite and is not displaced. New Mexico's Medical Review Commission framework sits closer to the substantive end of the spectrum and is unlikely to be displaced by Berk.
The decision also does not affect state caps on damages, state-law standards of care, state evidentiary rules at trial, or state statutes of limitation. Plaintiff firms electing federal court for the pleading-stage advantage still face the full substantive state-law framework once the case is in federal court under the Erie doctrine.
Case Selection in Affected Jurisdictions
The threshold case-selection question in affected jurisdictions is whether diversity jurisdiction exists. Diversity requires complete diversity of citizenship and an amount in controversy exceeding $75,000. Most catastrophic medical malpractice cases satisfy the amount requirement easily. The complete-diversity requirement constrains case selection because many malpractice claims involve local hospital systems with the same state citizenship as the plaintiff.
Plaintiff firms should screen affected cases through a diversity-jurisdiction filter at the case-acceptance stage. Cases with out-of-state physician defendants or out-of-state hospital corporations may qualify even where the local treating institution shares the plaintiff's state citizenship, provided the plaintiff can plead a viable claim against the diverse defendant and the local defendant can be omitted from the federal action or analyzed under fraudulent-joinder principles.
Federal-court filing also requires the plaintiff to plead under federal-court standards from the outset. Rule 8's notice-pleading standard, as informed by Twombly and Iqbal, requires sufficient factual content to allow the court to draw a reasonable inference that the defendant is liable. The plaintiff still benefits from skipping the state affidavit-of-merit attachment but must produce a Rule 8 complaint that survives motion to dismiss.
The Open Statute-of-Limitations Question
One open question across affected jurisdictions is how the decision interacts with state statute-of-limitations provisions that incorporate the affidavit-of-merit requirement. In some states, the affidavit-of-merit rule was treated as a condition precedent whose failure to comply tolled or restarted the limitations period for procedural reasons. With the affidavit rule displaced in federal court, the limitations-period mechanics may need re-analysis.
Plaintiff firms should not rely on state-court limitations doctrine to extend the federal-court filing window. The conservative approach is to file the federal action within the unextended limitations period under state substantive law. Cases at the limitations margin should not be the first matters tested under Berk federal-court filing strategy.
Expert Sourcing and Discovery
The pleading-stage relief does not extend to trial. Plaintiff firms electing federal court still need standard-of-care expert testimony to defeat summary judgment and to prove the case at trial. The principal practical benefit of the federal-court route is the additional discovery time between filing and the point at which expert disclosure is required, which can be meaningful in cases where the early expert sourcing was the obstacle to state-court filing.
Expert sourcing under the post-decision framework also benefits from the American Law Institute's Restatement of the Law of Medical Malpractice and the related shift toward evidence-based guideline citation. Expert reports that anchor opinions to specific guideline citations are increasingly defensible against Daubert and Frye challenges in federal court. Our coverage of the broader expert-sourcing developments appears in the industry news weekly recap.
Venue Strategy Beyond the Filing
Federal court is not always the preferable venue once the affidavit-of-merit barrier is removed. Some federal-court judges are less receptive to certain plaintiff arguments than state-court judges in the same geographic area, and the local rules on motion practice, scheduling, and trial preparation vary. Plaintiff firms should evaluate the federal-court venue holistically rather than reflexively electing it because Berk opens the pleading door.
For cases where state-court filing remains preferable on venue grounds but the affidavit-of-merit requirement is binding, plaintiff firms can still pursue expert sourcing through specialized expert-witness brokers and can request extensions of time to file the affidavit if the local rules allow. The decision does not eliminate the state-court pathway; it adds the federal-court pathway as an alternative.
Looking Forward
The most consequential follow-on litigation will be in the circuit courts on the substantive-prerequisite-versus-pleading-rule line. Several state attorneys general are expected to defend specific state pre-suit screening regimes as substantive rather than procedural, and the circuit courts will produce the operative authority on where exactly the line sits in each affected statute. Plaintiff firms should track the appellate dockets in the Third Circuit and Second Circuit where the most active post-Berk challenges are pending. Related developments in case law and settlements appear in our case law and settlements coverage.
The practical takeaway six months into the new regime is that Berk has not produced a wholesale exodus from state-court medical malpractice practice. It has added a federal-court option for cases that satisfy diversity and that would otherwise face dismissal for pre-suit affidavit failure. Firms that have built the case-selection screening into intake are recovering on cases that would have been declined under the prior framework.