Berk v. Choy and the Federal Forum Question: A Strategic Guide for Professional Liability Defense
For the Defense
The Supreme Court’s January 20, 2026 decision in Berk v. Choy, 607 U.S. 187 (2026), has drawn considerable attention for what it does: it renders state affidavit of merit and certificate of merit requirements unenforceable in federal court when they conflict with the Federal Rules of Civil Procedure. For defense counsel representing licensed professionals across a wide range of disciplines (physicians, attorneys, engineers, architects, accountants, and others), the more pressing question is what the decision means for strategy: specifically, whether to remove a case to federal court in the first place.
That question does not have a universal answer. Berk recalibrates the removal strategy in ways that demand deliberate, case-by-case analysis, and the implications vary depending on the specific screening requirements the relevant state imposes.
