By Michael C. Loulakis, Esq., FDBIA, M.ASCE, and John M. Neary, Esq., M.ASCE
For decades, many states have enacted statutes that require plaintiffs alleging professional negligence against design professionals, doctors, lawyers, and other licensed individuals to file a certificate of merit at or near the outset of litigation.
While these statutes vary in their details, they all typically require a qualified expert to attest that there were reasonable grounds to find that the licensed professional committed negligence. These statutes serve an important gatekeeping function and are designed to weed out frivolous claims before discovery imposes significant costs on defendants.
In January 2026, the U.S. Supreme Court issued a decision, Harold R. Berk v. Wilson C. Choy, that fundamentally altered the landscape for certificate-of-merit requirements in federal court. Although the case arose in the medical malpractice context, federal courts are already extending its reasoning to claims against design professionals, with potential far-reaching consequences for the construction industry.
Given the importance of this to our readers, we thought it appropriate to provide an explanation of both the Berk case and its application by the courts in its aftermath.
The Berk decision
The question before the Supreme Court in Berk was one that lawyers have wrestled with for years — namely, what rules apply when a state-law claim is brought in federal court? The Supreme Court dealt with this almost 90 years ago and established the principle that federal courts hearing state-law claims must apply state substantive law but follow federal procedural law. The Federal Rules of Civil Procedure provide a uniform procedural framework for all federal district courts, regardless of which state’s substantive law governs the underlying dispute.
Berk considered how to address state certificate-of-merit requirements. Were they considered substantive and applicable in federal court? Or were they considered procedural, and therefore displaced by the FRCP? Before Berk, federal courts were divided. Some federal courts, like those interpreting Pennsylvania law, enforced certificate-of-merit requirements on the grounds that they were substantive. Other federal courts interpreted the applicable state statute as being procedural, meaning that a certificate of merit was not required for federal court actions.
Berk involved a lawsuit in federal court brought by Harold Berk against his physician and hospital for medical malpractice under Delaware law. Because Mr. Berk did not submit the affidavit of merit required under the Delaware statute, the court dismissed the lawsuit. Mr. Berk appealed to the Third Circuit Court of Appeals (an intermediate federal court), which affirmed the result. The Supreme Court reversed the previous courts’ decisions, overwhelmingly agreeing (in an 8-1 decision) that certificates of merit were procedural and not required for federal court actions.
The decision held that the FRCP “answers the question in dispute” — namely, what information a plaintiff must provide about the merits of a claim at the outset of litigation. Under the FRCP, a plaintiff only needs to provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Based on the rules, the court concluded that it was clear that evidence of the claim is not required at the pleading stage and that Delaware’s affidavit requirement did not apply.
Applying Berk
The most significant post-Berk decision for the construction industry is District of Columbia Water and Sewer Authority v. Samaha Associates, from the U.S. District Court for the District of Maryland. D.C. Water brought negligence and breach-of-contract claims in that federal court against Samaha, a design professional, in connection with engineering services. Maryland has a statute that requires plaintiffs to file a “certificate of qualified expert” within 90 days of filing a complaint in actions alleging negligence or breach of contract against licensed professionals, including architects and engineers.
Samaha moved for summary motion to dismiss the case, arguing that D.C. Water’s CQE failed to comply with Maryland’s statute. Before the court could hold a hearing, the Supreme Court handed down Berk. After supplemental briefing, the district court denied Samaha’s motion, holding that Maryland’s statute conflicted with the FRCP.
Stated differently, the court held that CQEs need not be filed in federal court, and it allowed D.C. Water to pursue its action. The Samaha decision is significant because it involved a design professional, not a physician — confirming that Berk’s holding extends beyond the medical malpractice context.
Practical implications
The Berk decision represents a significant development for anyone involved in professional liability claims against engineers and other design professionals. While the immediate effect is straightforward — i.e., no certificate of merit is required in federal court — the downstream consequences are still unfolding.
The decision was released only a few months ago. This means that litigation strategies, contract provisions, and risk management approaches may all require reassessment in light of this shift. As federal courts continue to apply Berk to new factual contexts, practitioners would be well-advised to monitor these developments closely.
For plaintiffs and their counsel, the most obvious takeaway is that filing an action against a design professional in federal court eliminates the obligation of the plaintiff to produce a certificate of merit. This means that forum selection (which court and where a trial will take place) now carries added strategic weight in cases involving design professionals. Plaintiffs with viable claims that might have been delayed or dismissed due to technical deficiencies in their certificates can now proceed directly to the merits in federal court as long as the jurisdictional predicates for being in federal court are met.
For design professionals and their defense counsel, the landscape has shifted significantly. Certificate-of-merit statutes provided a powerful early dismissal tool for deterring unmeritorious claims. That tool is no longer available in federal court, meaning more claims will proceed past the pleading stage and into discovery. This also means significant amounts of time and money will be spent on claims that may ultimately be meritless. Defense counsels will need to adjust their litigation strategies accordingly, focusing earlier on expert retention and factual development to position cases for summary judgment.
For contract drafters, the decision will likely prompt changes in design professional service agreements. Several standard form contracts, including certain American Institute of Architects documents, already require a certificate of merit as a contractual condition regardless of state law.
Expect an uptick in such provisions as design professionals seek contractual screening mechanisms that Berk has removed as a matter of procedural law. Contractors may also need to pay closer attention to forum selection clauses as they contract with design professionals, particularly on design-build relationships.
Finally, Berk highlights a broader tension. Certificate-of-merit requirements served a legitimate purpose: screening out frivolous claims before discovery imposes costs on defendants and the judicial system. With that safeguard gone in federal court, summary judgment becomes the primary tool for addressing unmeritorious claims.
However, as a practical matter, summary judgment is only a viable option after the parties spend money going through discovery, which is precisely what these statutes were designed to avoid. The Supreme Court acknowledged this consequence but held that it did not change the analysis. Whether contractual provisions can fill the gap, whether states will explore legislative responses, and whether arbitration clauses will become more prevalent in design professional agreements all remain to be seen.
Michael C. Loulakis, Esq., FDBIA, M.ASCE, is the president and CEO of Capital Project Strategies LLC in Reston, Virginia.
John M. Neary, Esq., M.ASCE, is co-chair of Akerman’s construction practice and represents owners, developers, contractors, and design professionals in civil litigation matters.
This article first appeared in the November/December 2026 issue of Civil Engineering as “Certificates of Merit for Claims against Engineers: The Landscape Might Be Changing in a Major Way.”
