Supreme Court Shifts Design‑Professional Malpractice Claims Toward Federal Court

Courts and legislatures in many states require plaintiffs to file an expert affidavit or certificate of merit at the beginning of a malpractice case, including claims against architects, engineers, and other design professionals. These requirements often function as early gatekeeping tools, allowing defendants to seek early dismissal. A recent U.S. Supreme Court decision, however, may limit the impact of those statutes in federal court and change litigation strategy in design‑professional cases.

As my Duane Morris colleagues explained in an  Alert on January 22, 2026, the U.S. Supreme Court in Berk v. Choy ruled that state affidavit‑of‑merit requirements do not apply in federal court, and that reasoning is not limited to medical malpractice cases—it may also affect similar rules for other licensed professionals. This means that people bringing malpractice claims against architects and engineers in federal court may no longer need to file the expert affidavit that many states require at the start of a case, making it easier for those claims to move forward and removing an early‑dismissal tool for defendants. It may also change how strict filing deadlines, like statutes of repose, work in federal court, because a case is considered started as soon as the complaint is filed. The decision makes federal court a more appealing option for plaintiffs and shifts how design‑professional malpractice cases are handled.

For design professionals, insurers, and others in the construction industry, this shift raises important considerations. Removal to federal court may now eliminate a key procedural defense that would otherwise be available in state court. As courts begin applying Berk beyond the medical‑malpractice context, parties should expect meaningful differences between state and federal practice in professional‑liability cases and adjust their litigation strategies accordingly.

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