Engineers, architects, and other licensed design professionals face a heightened federal court litigation risk following a recent U.S. Supreme Court decision that weakens state certificate of merit requirements. Claims that previously could have been dismissed early for lack of peer certification may now proceed in federal court, increasing the likelihood of non‑meritorious claims, expanded discovery obligations, and rising defense costs.
Overview
The U.S. Supreme Court's holding in Berk v. Choy, Case No. 24-440, 607 U.S. ____, (January 20, 2026) earlier this year renders state-imposed certificate of merit requirements largely unenforceable in federal diversity actions concerning professional liability claims against architects, engineers, or other licensed construction professionals.
Specifically, the United States Supreme Court unanimously held that Delaware's affidavit of merit requirement for medical negligence cases does not apply when such cases are filed in federal court based on diversity jurisdiction. Although this case concerns medical professionals, its application reaches construction professionals too.
Currently, 12 states (Arizona, California, Colorado, Georgia, Maryland, Minnesota, Nevada, New Jersey, Oregon, Pennsylvania, South Carolina, and Texas) require an affidavit – or certificate – of merit when filing professional liability claims against architects, engineers, or other licensed professionals for breach of the standard of care. Simply put, this requirement is a certification made by another experienced design professional attesting to the merit of a professional negligence claim. Its purpose is to screen out unsupported claims by ensuring that a qualified peer has evaluated the claim's technical merit before litigation commences. Under the Court's holding in Berk v. Choy, those states' certificate of merit requirements should no longer apply in federal court.
Practical Implications
- Easier Access to Federal Courts: Claimants bringing professional negligence claims in federal court will no longer be required to comply with state-law affidavit or certification requirements at the pleading stage. This lowers the barrier to filing suit in federal court.
- Increased Defense Costs: Without pre-suit screening mechanisms, defendants may face an increase in non-meritorious claims proceeding past the initial pleading stage. This will lead to broader discovery obligations and, as a result, increased defense costs.
- Forum Shopping Considerations: The decision may incentivize claimants to file in or remove cases to federal court to avoid stricter state procedural hurdles, particularly in states with robust pre-suit certification regimes for architects, engineers, or other licensed professionals.
- Early Case Strategy Shifts: Defendants can no longer rely on the absence of an affidavit of merit as a basis for early dismissal in federal court. Instead, challenges will likely shift to Rule 12(b)(6) motions or early summary judgment after some discovery.
- State versus Federal Divergence: The ruling creates a sharper procedural distinction between state and federal courts. Construction litigants must carefully evaluate forum selection, as the viability and timing of claims may differ significantly depending on where the case is filed.
What Design Professionals Should Be Doing Now
In light of this decision, engineers, architects, and other licensed design professionals should proactively assess whether their existing risk assumptions still hold true in federal court. Specifically, design professionals and their firms should consider:
- Reviewing forum-selection and venue clauses;
- Re-evaluating early-stage litigation and defense cost expectations;
- Coordinating with professional liability insurers and risk managers; and
- Reassessing dispute-resolution provisions and risk mitigation practices.
Baker Donelson's Construction Group regularly advises engineers, architects, and design professionals on litigation risk management, contract strategy, and forum selection considerations. If you have questions about how Berk v. Choy influences your contracts or disputes, or if you would like to discuss strategy in light of this ruling, please contact ;Michael Schollaert, Tim Maffett, or a member of Baker Donelson's Construction Group.