No Certificate of Merit Requirement in Federal Court

Berk v. Choy, 607 U.S. ---, --- S. Ct. ---, 2026 WL 135975 (January 20, 2026)

In Pennsylvania, it has long been the rule that a party pursuing a lawsuit against a licensed professional must first obtain expert support for his claims. Specifically, when a plaintiff claims that a licensed professional deviated from an acceptable professional standard, he must file a certificate of merit that either “an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm”, or expert testimony is not required. Pa. R. Civ. P. 1042.3. The defendant is not required to respond to the complaint, in Pennsylvania, until such certificate of merit is filed. Pa. R. Civ. P. 1042.4. This is not the case, however, in federal court, even when the court is hearing a state law professional liability claim.

In Berk, the United States Supreme Court considered whether the Delaware affidavit requirement applies in federal court. In Delaware, similar to Pennsylvania, a plaintiff cannot sue for medical malpractice without an affidavit signed by a medical professional stating that there are reasonable grounds to believe that the defendant was negligent in providing medical services. The plaintiff in Berk brought his medical malpractice claims in federal court based on diversity jurisdiction. The plaintiff ultimately did not file an affidavit of merit in the time period prescribed by Delaware law, and the district court dismissed his claims. The Third Circuit affirmed the dismissal.

On appeal, the Supreme Court reversed, holding that Federal Rule of Civil Procedure 8 provides the requirements for a pleading: “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” The Court found that the state law affidavit of merit requirement was at odds with Rule 8 because it requires that the plaintiff does more than the Rule requires. Under the Rules Enabling Act, Federal Rule of Civil Procedure 8 applies to professional negligence claims brought in federal court, and the contradictory Delaware law does not. Thus, the Court concluded that Delaware’s affidavit law does not apply in federal court. Likewise, Pennsylvania’s certificate of merit requirement will not apply to professional malpractice claims brought in federal court under Berk.