ConstructionRisk Report (February 2026)

Inside this Issue

• A1 - State Law Requirements for Affidavits of Merit Don’t Apply to Federal Litigation
• A2 - Plaintiff not Required to File Mediation Request before Filing Suit

Article 1

State Law Requirements for Affidavits of Merit Don’t Apply to Federal Litigation

See similar articles: Affidavit of Merit

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.

***

    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

Article 2

Plaintiff not Required to File Mediation Request before Filing Suit

See similar articles: litigation precondition | Mediation

Plaintiff Healy Long & Jevin, Inc. (“Healy”), a construction subcontractor, filed a Complaint for breach of contract, unjust enrichment, negligent misrepresentation, and violation of the Pennsylvania Contractor and Subcontractor Payment Act (“CASPA”) against Defendants CQSA Construction, LLC (“CQSA”).  CQSA moved to dismiss based on its allegation that the contract between the parties required the Sub to go through mediation before filing suit.  However, Healy argues that dismissal is not required because Healy did comply with the Contract and underwent mediation, which reached an impasse before this case was filed. After communications between the parties and mediator, the mediator formally advised all parties that mediation was no longer viable because the parties had reached an impasse. After the mediator’s declaration, Healy initiated litigation. The court denied the motion.  Healy Long & Javin, Inc., v. CQSA Construction, Civ Action 25-3156 (U.S. Dist. Ct. Eastern Dist. PA (Nov 18, 2025).

The Contract attached as Exhibit A to the Complaint stated:

“The parties shall endeavor to resolve their Claims by mediation . . . . A request for mediation shall be made in writing, delivered to the other party to the Contract, and filed with the person of entity administering the mediation. The request may be made concurrently with the filing of binding dispute resolution proceedings but, in such event, mediation shall proceed in advance of binding dispute resolution proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing . . . .”

The court stated that:

“The plain language of the Contract indicates the clear intention of the parties that a request for mediation be made, but that the request may be made concurrently with the filing of a lawsuit, and that if that happens, mediation shall proceed in advance of the lawsuit’s proceeds, which shall be stayed for 60 days. Id. .3 This language contrasts with other cases where courts have dismissed cases after finding that mediation was a condition precedent to litigation based on contractual language.”

“… The Contract’s language states that a ‘request may be made concurrently with the filing of court proceedings’ and does not indicate that litigation can proceed only if mediation is unsuccessful.”

***

“Moreover, the plain language of the Contract mandates that the parties endeavor to resolve their Claimsby mediation,” but does not mandate that litigation can only be pursued once mediation is deemedunsuccessful. As such, mediation is not a condition precedent to this lawsuit and dismissal is not anappropriate remedy.”

Comment:  If parties intend to require certain steps be taken before litigation is filed, the contract should specifically state those requirements.

 

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