News & Events

Supreme Court Confirms That State Affidavit-of-Merit Laws Don’t Apply in Federal Court

January 30, 2026

Mark S. Wigley and Jeremy M. Wilson and Chris S. Edwards

Ward and Smith, P.A.

The Court’s decision in Berk v. Choy resolves a circuit split and adopts the approach the Fourth Circuit has had in place since 2021.

What Are Affidavit-of-Merit Requirements?

About half of U.S. states have enacted affidavit-of-merit (or certificate-of-merit) requirements for malpractice cases against licensed professionals like doctors or lawyers. These statutes require a plaintiff to obtain—and file or serve—an affidavit from a qualified expert before filing suit. The expert must attest that the plaintiff’s claim has merit, usually by certifying that the defendant professional breached the applicable standard of care and caused the plaintiff’s injuries.

By requiring expert support up front, these statutes, at least in theory, attempt to filter out meritless claims before defendants have to incur litigation costs. At the same time though, they create a procedural hurdle that can be expensive and time-consuming for plaintiffs who must secure expert review before they can even get into court.

The Berk Decision

Last week, the Supreme Court handed down its decision in Berk v. Choy, in which it held that Delaware’s affidavit-of-merit requirements for medical malpractice cases—and, given how broadly the opinion is written, likely all state affidavit-of-merit laws—do not apply in federal court. The decision resolves a longstanding circuit split and confirms that Federal Rule of Civil Procedure 8 displaces state law that would require plaintiffs to submit expert affidavits before filing suit.

The plaintiff, Harold Berk, had filed a medical malpractice suit in federal court against Dr. Wilson Choy and Beebe Medical Center via diversity jurisdiction, alleging negligent treatment of his fractured ankle at a Delaware hospital. Delaware law requires medical malpractice plaintiffs to attach an affidavit from a medical professional attesting to the suit’s merit; otherwise the clerk must refuse to file the complaint. When Berk failed to provide the required affidavit, the district court dismissed his case, and the Third Circuit affirmed.

The Supreme Court reversed. Applying the framework set out by Justice Scalia’s plurality opinion in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., the Court held that Rule 8 and Delaware’s statute answer the same question: what information must a plaintiff provide about the merits of his claim at the outset of litigation? Rule 8 requires only “a short and plain statement of the claim,” establishing “implicitly, but with unmistakable clarity” that evidence is not required to get past the pleading stage. Nothing more, in other words, than a “short and plain statement” can be required. Because Delaware’s affidavit statute (and again, likely all other state affidavit laws) attempted to tack on an additional prerequisite to stating a medical malpractice claim, it conflicted with Rule 8. And when such a conflict occurs, the Federal Rules of Civil Procedure govern over state law under Shady Grove.

Justice Jackson concurred in the judgment but wrote separately to argue that Rules 3 and 12, rather than Rule 8, supply the conflict with Delaware’s statute.

In sum: Berk establishes that state affidavit-of-merit statutes apply in state courts (in jurisdictions where one is on the books), but not in federal courts sitting in that state.

How Berk Affects the Law in Federal Court, Both in North Carolina and Elsewhere

For parties in North Carolina, Berk likely isn’t breaking new ground.

North Carolina does have its own affidavit-of-merit requirement. See N.C. R. Civ. P. 9(j). But the Fourth Circuit has declined to apply affidavit-of-merit statutes in federal court since 2021, when it held in Pledger v. Lynch that West Virginia’s certificate-of-merit statute was displaced by the Federal Rules, just as Berk did with Delaware’s statute.

In essence, then, Berk simply confirms the Fourth Circuit’s prior approach in Pledger was correct—and crucially, it resolves a preexisting circuit split so now the rule applies nationwide. Before yesterday, several circuits had taken the opposite view and had required federal diversity plaintiffs to comply with state affidavit requirements. A plaintiff in New Jersey federal court, for instance, typically would have needed an affidavit before proceeding. Not anymore.

After Berk, it’s likely the case that no federal court anywhere can require compliance with state affidavit-of-merit laws.

One caveat: we say “likely” because malpractice defendants in North Carolina or elsewhere may argue that their state’s particular affidavit-of-merit law is structured in a way that avoids any conflict with Rule 8. While those arguments of course haven’t been tested, they seem difficult to maintain given the broad language Justice Barrett uses in her majority opinion here.

What Berk Means for Practitioners and Litigants

Berk confirms that medical malpractice plaintiffs who can establish diversity jurisdiction have a meaningful procedural advantage: they can bypass affidavit-of-merit requirements that they otherwise would’ve had to comply with if they filed in state court, and won’t need to first secure expert support before filing. And now, plaintiffs won’t have to worry about filing suit in a jurisdiction, like the Fourth Circuit, that’s declined to apply affidavit-of-merit requirements in federal court.

But plaintiffs of course need to remember that the absence of an affidavit requirement doesn’t eliminate the need for expert proof; it just delays when that proof must be presented. Plaintiffs still need expert testimony to survive summary judgment, and defendants can still test claims through Rule 12(b)(6) motions and Rule 56 summary judgment motions after adequate discovery. For that reason, even after Pledger, it’s been common practice for North Carolina plaintiffs to obtain an affidavit before filing suit in federal court anyway. In other words, although plaintiffs likely don’t have to obtain an affidavit up front, it still may be a good idea to do so if possible.

At bottom, post-Berk, medical malpractice cases in North Carolina federal courts will continue to proceed under the Federal Rules’ pleading standards, and likely not the state’s affidavit requirement. That’s been true in North Carolina since Pledger; the difference is that it’s true nationwide as of last week.

Now, professional malpractice plaintiffs across the country benefit from a lower barrier to entry. On the other side of the ledger, defendants in some jurisdictions lose an early screening mechanism they’d had before, but they still retain tools to challenge unsupported claims as litigation progresses.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.

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