SUPREME COURT LIMITS STATE TORT REFORM IN FEDERAL COURTS
A quiet procedural requirement in state tort law has just become a significant strategic issue for defendants nationwide. In Berk v. Choy, the Supreme Court of the United States held that Delaware’s affidavit-of-merit statute cannot be enforced in federal court because it conflicts with the Federal Rules of Civil Procedure. The ruling may weaken certain tort-reform mechanisms and could shift how businesses, insurers, and healthcare providers evaluate litigation risk and forum selection.
Litigation strategy often begins with a fundamental question: where will the case be heard? The recent ruling from the Supreme Court of the United States suggests that the answer may now matter even more for defendants. In Berk,the Court limited the ability of federal courts to enforce certain state tort-reform measures—specifically Delaware’s affidavit-of-merit requirement—because it conflicts with the Federal Rules of Civil Procedure. The decision could reshape how defendants approach venue strategy in professional liability and other tort cases.
Businesses and other frequent defendants understandably prefer to avoid litigation whenever possible. Defense counsel is costly, and even well-managed litigation expenses can escalate quickly. In many states, “tort reform” measures are the product of longstanding policy debates and lobbying efforts between insurers and corporate interests—who often bear significant defense costs—and plaintiffs’ firms that rely heavily on tort litigation as a core component of their practice.
Personal injury law is primarily governed by state law. Even when a tort case is litigated in federal court, it is typically state substantive law—not federal law—that determines the outcome. Over time, states have enacted a wide range of tort reform measures. Some cap punitive damages, others limit recovery based on collateral insurance payments, and many impose procedural requirements designed to screen out weak claims. One common example is the “affidavit of merit” requirement.
Under these statutes, a plaintiff bringing a medical malpractice claim—or other professional negligence claims, depending on the jurisdiction—must submit a sworn statement from a qualified expert attesting that the claim has a reasonable basis. In many states, the affidavit must be filed at the same time as the complaint or within a defined period shortly thereafter. The purpose of these provisions is straightforward: to deter frivolous claims and ensure that litigation proceeds only when supported by an appropriate professional opinion.
Historically, federal courts have applied these state-law requirements when hearing state tort claims. This practice stems from the U.S. Supreme Court’s 1938 decision in Erie Railroad Co. v. Tompkins, which requires federal courts exercising diversity jurisdiction to apply substantive state law to prevent forum shopping between state and federal courts.
The Supreme Court’s 2026 Decision
On January 20, 2026, the U.S. Supreme Court limited federal courts’ ability to enforce these affidavit-of-merit statutes. In Berk, the Court held that Delaware’s affidavit-of-merit requirement conflicts with the Federal Rules of Civil Procedure and therefore cannot be imposed in federal court.
In essence, the Court concluded that Delaware’s statute demands more than what the federal rules require for initiating a civil action. Because the Federal Rules govern procedural requirements in federal court, they supersede the state statute when the two conflict.
The decision surprised many court observers. The Supreme Court last confronted a closely related question in 2010, but the Justices were unable to produce a majority opinion. In the intervening years, however, much of the Court’s composition has changed. The 8–1 ruling in Berk suggests a renewed consensus among the Justices regarding the relationship between state procedural statutes and the Federal Rules under the Erie doctrine.
The practical result is that certain state tort-reform mechanisms—particularly procedural gatekeeping requirements such as affidavits of merit—may no longer apply when cases are litigated in federal court.
Implications for Defendants and Policy Advocates
The decision carries several implications for defendants and policymakers.
First, companies that traditionally prefer federal court may want to reassess that strategy in certain jurisdictions. Large corporate defendants often seek removal to federal court because they perceive federal judges and broader jury pools as more predictable. However, if a state court offers procedural safeguards—such as affidavit-of-merit requirements—that could lead to early dismissal of weak claims, federal court may no longer provide the same strategic advantage.
For example, healthcare providers in Delaware may find that claims lacking proper expert support can be dismissed quickly in state court, whereas a similar case filed in federal court could proceed further into discovery before being resolved.
Second, legislators and tort-reform advocates may need to reconsider how reform statutes are drafted. Substantive measures—such as damages caps or statutory fee limitations—are more likely to survive scrutiny in federal court. By contrast, procedural mechanisms designed to filter cases at the pleading stage may be vulnerable if they conflict with the Federal Rules of Civil Procedure.
As lower courts begin to apply Berk, the decision may influence how tort reform statutes operate nationwide. Jurisdictions that rely heavily on procedural gatekeeping provisions could see uneven enforcement depending on whether a case is litigated in state or federal court.
For businesses and insurers, the key takeaway is clear: venue strategy may need to evolve as courts continue to interpret and apply the Supreme Court’s latest guidance on the Erie doctrine.
