Numerous states require that a plaintiff filing a medical malpractice suit must include an Affidavit of Merit with the complaint signed by an expert attesting to the merits of the suit. Where a Delaware plaintiff filed suit in federal court, it failed to submit the required affidavit within the time permitted by state law. The federal district court dismissed the suit based on Plaintiff’s failure to obtain the required affidavit. The U.S. Supreme Court reversed this and held that the requirement is not enforceable in federal court because it is displaced by the Federal Rules of Civil Procedure. Although this case dealt only with medical malpractice cases, it seems logical that the Court would apply its reasoning here to litigation against design professionals where states also require affidavits of merit be filed. R. Beck v. Wilson C. Choy,607 U.S. (2026), January 20, 2026.
The issue arose here because the parties were from different states and the plaintiff chose to file suit in federal court instead of state court. When a Federal Rule of Civil Procedure is on point, the substantive rules of the state must yield if the Constitution, a treaty, or a statuteotherwise require[s] or provide[s]. “The Rules Enabling Act, which authorizes the Supreme Court to adopt uniform rules of procedure fordistrict courts, provides for the application of federal law. §2072(a); see also Fed. Rule Civ. Proc. 1 (These rules govern the procedure in all civil actions and proceedings in the United States district courts . . . ). Thus, a valid Rule of Civil Procedure displaces contrary state law even if the state law would qualify as substantive under Erie’s test.” The court explained its reasoning as follows:
“In this case, the disputed question is whether Berk’s law-suit may be dismissed because his complaint was not ac-companied by an expert affidavit. Rule 8 gives the answer.
It prescribes the information a plaintiff must present about the merits of his claim at the outset of litigation: a short and plain statement of the claim showing that [he] is entitled to relief. Fed. Rule Civ. Proc.8(a)(2). By requiring no more than a statement of the claim, Rule 8 establishes simplicity, but withunmistakable clarity (citation omitted).
Rule 12 reinforces the point. It provides only one ground for dismissal based on the merits: failure to state a claim upon which relief can be granted.
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Delaware’s affidavit requirement is at odds with Rule 8 because it demands more: A medical malpractice suit can-not proceed unless the complaint is accompanied by . . . [a]n affidavit of merit. §6853(a)(1). UnderRule 8, factual allegations are sufficient, but under the Delaware law, the plaintiff needs evidence too. See Dishmon v. Fucci, 32 A. 3d 338, 344 (Del. 2011) (describing §6853 as imposing a prima facie evidentiary requiremen[t]); see also Brief for Re-spondent Beebe 23 (same). The two rules thus give differ-ent answers to the question whether Berk’s complaint can be dismissed as insufficient because it was unaccompanied by an affidavit.
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Defendants devote most of their energy to arguing that the Federal Rules contain a loophole. According to defendants, a proviso tucked into Rule 11 makes state affidavit laws applicable in federal court even if they conflict with other Federal Rules. Rule 11 provides that [u]nless a rule or statute specifically statesotherwise, a pleading need not be verified or accompanied by an affidavit. Fed. Rule Civ. Proc. 11(a).Defendants argue that §6853 is a statute [that] specifically states otherwise, ibid., and it therefore applies in federal court regardless of whether it conflicts with other Federal Rules.
The Court concluded: “The sentence has nothing to do with affidavits from third parties. Accordingly, Rule 11 does not shield Delaware’s law from displacement by Rule 8.”
Comment: This decision by the Supreme Court will no doubt be used in a future case involving design professionals where a plaintiff may be required by relevant state law to file an affidavit of merit and fails to file such an affidavit in federal court. If the Court applies the reasoning applied here, it will hold that state requirements concerning such affidavits are unenforceable in federal court.
About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with ConstructionRisk Counsel, PLLC) representing design professionals, contractors and project owners. He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk Report, Vol. 28, No. 1 (February 2026).
Copyright 2026, ConstructionRisk, LLC
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