The Supreme Court's January 20, 2026 unanimous decision in Berk v. Choy held that state laws requiring an affidavit of merit at the pleading stage do not apply in federal court because they conflict with Rule 8 of the Federal Rules of Civil Procedure. Four months later, plaintiff firms litigating medical malpractice cases are working through the practical implications, and the result is a quiet but meaningful shift in forum selection for cases with diverse parties or federal-question hooks.
The threshold question for any plaintiff firm with med-mal cases originating in a strict affidavit-of-merit state is now this: when is federal court the better forum, and what is the operational cost of opening that door?
What Berk decided and what it did not
Justice Barrett's opinion for a unanimous Court reversed the Delaware district court's dismissal of the plaintiff's malpractice claim, which the lower court had dismissed for failure to file an affidavit of merit under Delaware Code Ann. tit. 18, § 6853. The opinion rests on the supremacy of Rule 8's pleading standard over state procedural rules that impose additional pleading-stage requirements. The decision is narrow but its reasoning extends to any state law that operates as a pleading-stage filter rather than a substantive element of the cause of action.
What the decision does not do: it does not change the substantive standard of care, the requirement for expert testimony at trial, or the certificate-of-merit requirements that some states impose as a condition for serving discovery or surviving summary judgment. Plaintiff counsel proceeding in federal court still must produce a qualified expert at the appropriate stage. Berk eliminates the pleading-stage filter, not the trial-stage proof.
States most affected
The decision matters most in jurisdictions with strict pleading-stage affidavit or certificate requirements. The list, drawing on plaintiff-side analyses published since January, includes Delaware, New Jersey, Pennsylvania, Massachusetts, New York (CPLR 3012-a certificate), Florida, Texas, Missouri, Georgia, and Maryland, among others. Each of these states applies its requirement somewhat differently, and the federal-court workaround under Berk is more useful in some than in others.
Practitioners running medical-malpractice cases out of New Jersey and Pennsylvania, in particular, have reported the most active reconsideration of forum strategy. New Jersey's affidavit of merit under N.J.S.A. 2A:53A-27 is a frequent source of pleading-stage dismissals, and the federal-court alternative under Berk now provides a route around the New Jersey 60-day filing deadline that has produced significant inventory of dismissed cases.
When federal forum makes sense
The decision is not a free pass to federal court. Plaintiff firms considering forum selection should weigh several factors:
- Subject-matter jurisdiction. Berk does not create federal-question jurisdiction where none exists. Diversity is the typical hook, requiring complete diversity of parties and amount in controversy above $75,000.
- Local-rule disclosure and discovery practices. Some federal districts have expert-disclosure rules that operate as practical equivalents of state pleading-stage requirements, just at a later stage.
- Judge mix and trial calendar realities. Federal docket cycles in some districts are materially longer than parallel state-court cycles, particularly in EDNY, SDNY, and EDPA.
- Removal risk. A case filed in federal court is not subject to plaintiff-side removal, but a defendant who wanted to remove from state to federal court is no longer doing so for purposes of triggering the affidavit requirement. The removal calculus has changed.
Several plaintiff firms in New Jersey have reported a deliberate strategy of filing diverse out-of-state defendant cases in federal court directly, bypassing the state-court affidavit timeline entirely. Where the defendant is a hospital system with diverse corporate citizenship, this approach has become viable.
What defense counsel are doing
Defense counsel response has been pragmatic. The most common adjustments since January include:
- Earlier motion-to-dismiss practice under Federal Rule 12(b)(6) where the complaint fails to plead the elements of the cause of action with sufficient particularity under Twombly and Iqbal.
- Earlier expert-disclosure motions and Daubert challenges to plaintiff's experts, often filed at the close of fact discovery rather than waiting for the dispositive-motion deadline.
- More aggressive use of state-court litigation as a forum-preference signal, with corporate-citizenship maneuvering to defeat diversity where viable.
The doctrinal effect is to push the filter that previously operated at the pleading stage further into the case, typically to summary judgment or the close of expert discovery. Defense counsel report that case timelines in federal-court med-mal matters are extending modestly, with the expert-discovery stage becoming the new pressure point.
Practical workflow adjustments
For plaintiff firms electing federal forum under Berk, several workflow adjustments are visible:
- Earlier expert engagement. Plaintiff counsel are retaining experts at the case-acceptance stage rather than at the affidavit-deadline stage, because the federal expert-disclosure deadline drives the timing of expert development.
- Tighter coordination between case acceptance and expert availability. The lead time between intake and a viable expert opinion is materially shorter in federal court, where the early case management conference often sets expert deadlines within 90 to 120 days.
- Updated retainer language. Several firms have reported updates to client retainer agreements to address the longer federal-court trial calendar and the possibility of mid-litigation transfer or remand.
The effect on case economics is mixed. Federal-court litigation typically requires more lawyer hours per case, but the elimination of pleading-stage dismissal risk reduces the inventory of cases that close at zero net recovery after weeks of work. For higher-damages med-mal claims, the math favors federal forum where diversity exists.
Open questions
Several open doctrinal questions remain after four months of post-Berk practice. The most consequential are:
- Whether state laws requiring an expert affidavit at the summary-judgment or pretrial stage, rather than at pleading, also conflict with federal procedure. The text of Berk does not address this directly, and several federal district courts are now being asked.
- Whether state laws requiring particular expert qualifications (board certification, active practice within a specified period) survive in federal court. Most circuits to address the question have held that substantive state-law qualification requirements survive, but the line between procedural and substantive is increasingly contested.
- Whether the holding extends to other professional-malpractice contexts (legal malpractice, accountant negligence) where similar affidavit-of-merit requirements exist.
The first federal circuit decisions interpreting Berk in adjacent contexts are expected within the next six months. PI firms with mixed case-law and mass-tort books should expect the doctrine to continue evolving.
Forum-selection takeaway
For med-mal practitioners in strict affidavit states, the operational takeaway four months in is that Berk creates a meaningful forum-selection option where diversity exists, but the option carries costs in timeline, lawyer hours, and discovery exposure. It is not a default. It is a calculated choice for the right case. Firms that have built rapid expert-engagement workflows benefit most. Firms still working through the operational adjustment may find the federal track more expensive than expected in the short term, with the payoff coming as the practice matures over the next six to twelve months.