A Requiem for Certificate of Merit Statutes in Federal Court
By Jonathan C. Shoemaker, Esq. | Lee/Shoemaker PLLC
Legislatures from twelve states across the country enacted certificate of merit (“COM”) statutes designed to protect architects and engineers from the cost of frivolous lawsuits. A COM is an affidavit from a like-licensed individual attesting to the merit in claims being brought against another licensed professional. In January 2026, the United States Supreme Court issued a decision raising questions about the enforceability of these certificates of merit in federal court. The key lesson for design professionals is simple: what the legislature giveth, the legislature or courts may taketh away.
The US Supreme Court Weighs in on COM Statutes
In Berk v. Choy, the US Supreme Court addressed the interplay between state COM statutes and the Federal Rules of Civil Procedure in a case involving claims against medical professionals in Delaware where the trial court dismissed the case when the plaintiffs failed to file a COM in a timely manner. On appeal, the plaintiffs argued that the Federal Rules of Civil Procedure – which do not mention any state COM statutes—set forth the pleading requirements for filing a complaint in federal court and that the Delaware COM statute conflicted with the Federal Rules of Civil Procedure by imposing additional barriers to pursuing a claim in federal court. The US Supreme Court agreed with the plaintiffs, finding that the state COM statute was preempted by the Federal Rules of Civil Procedure and did not apply to the claims asserted by the plaintiff in federal court.
While the case involved medical malpractice claims, the ruling may impact design professionals who practice in states with certificate of merit statutes. Certainly, there are arguments that some state COM statutes do not conflict with the Federal Rules of Civil Procedure; however, the lower federal courts which have considered COM statutes since the Berk decision have found all such statutes inapplicable to lawsuits filed in federal court—including cases involving design professionals.
Implications for Design Professionals
While the Berk decision may affect the enforceability of COM statutes in federal court proceedings, the consequences may be relatively limited for design professionals. The majority of lawsuits filed against design professionals are filed in state court, reflecting a perception amongst plaintiffs lawyers that federal courts are more likely than state courts to grant early dispositive motions, preclude testimony by experts of dubious merit, and grant motions for summary judgment ahead of trial. Moreover, as cases in federal court tend to move more quickly than cases in state court, plaintiffs who decide to file a lawsuit in federal court likely retained experts to evaluate the merit of the case before making the tactical decision to proceed in federal court.
Conversely, plaintiffs who decide to file a lawsuit in state court often defer the cost of retaining an expert to evaluate the merit of their claims to see whether the claims may be capable of resolution before any costs are incurred retaining an expert. As cases in state court tend to move more slowly than cases in federal court, plaintiffs have an opportunity to see whether the design professionals they have sued are willing to pay money to resolve the claims based, in whole or in part, on the exposure to litigation costs.
Lessons Learned for Design Professionals
There are two lessons to be learned from the Berk decision for design professionals:
- Reliance on Legislation Can Be Risky. Prudent design professionals understand the legislation in the jurisdictions they practice in when negotiating contracts, but also appreciate that statutes can be modified by future legislatures and/or interpreted by courts in unexpected ways. Rather than rely on favorable legislation, design professionals should incorporate into their contracts those risk management provisions which they believe are necessary and appropriate for the projects being executed.
- Contractual COM Provisions Should Be Considered. Unlike statutory requirements, contractual provisions are negotiated and cannot be unilaterally changed by legislation or—in all likelihood—disregarded by courts. Moreover, a contractual COM provision may require more information about the claim than a state COM statute and/or may be required even before a lawsuit is filed as part of a contractual dispute resolution process.
Negotiating these clauses gives design professionals a measure of control: firms can request detailed information early in the claims process and clarify expectations about expert involvement. While design professionals may face an increased number of non-meritorious cases as a result of the Berk decision, this decision (hopefully) illustrates the risk to architects and engineers of relying on legislation as a primary risk management tool.
Jonathan C. Shoemaker is a lawyer at Lee/Shoemaker PLLC, a law firm devoted to the representation of design professionals in DC, Maryland, and Virginia. The content of this article was prepared to educate related to potential risks, but is not intended to be a substitute for professional legal advice.
Lee/Shoemaker PLLC is an Educational Program Allied Member of AIA Potomac Valley.
