Berk v. Choy: What the Supreme Court's Ruling Means for Your Mediation Practice
When the Courthouse Door Moves,
So Does the Settlement Table
A January 2026 Supreme Court ruling quietly changed the litigation landscape for malpractice cases — and every mediator, attorney, and party working toward settlement needs to understand why.
Most landmark shifts in dispute resolution do not arrive with fanfare. They arrive as procedural rulings — dense, technical, easy to overlook — that quietly reshape the conditions under which parties negotiate, settle, and seek resolution.
Berk v. Choy, decided by the United States Supreme Court on January 20, 2026, is exactly that kind of ruling. On its face, it is a case about a missing affidavit and an ankle injury. Beneath the surface, it is a decision about who controls access to the courthouse — and when it changes hands, everything downstream changes with it, including the timing, dynamics, and preparation demands of mediation.
The Case in Plain Terms
Harold Berk, a Florida resident visiting Delaware, was injured at a hospital. He alleged that staff mishandled his ankle during treatment and that the treating physician failed to order timely follow-up care, resulting in surgery. He sued in federal court under diversity jurisdiction — meaning federal court heard his state-law malpractice claim because the parties were from different states.
Under Delaware law — as in many states — a plaintiff filing a medical malpractice claim must attach an "affidavit of merit" to the complaint: a sworn statement from a qualified medical expert attesting that the claim has genuine merit. Berk tried to obtain one. His orthopedist told him he had a good case but declined to sign. Unable to secure one in time, Berk submitted his medical records instead. The district court dismissed his case. The Third Circuit agreed. The Supreme Court reversed — unanimously.
When a valid Federal Rule answers the same question as the state rule, the federal rule controls. Rule 8 sets the ceiling for what a plaintiff must provide at the pleading stage — and states cannot raise it.
— Justice Amy Coney Barrett, Berk v. Choy (2026)Writing for the Court, Justice Barrett held that Delaware's affidavit requirement conflicts with Federal Rule of Civil Procedure 8, which requires only a "short and plain statement of the claim." Because the Federal Rules govern pleading in federal court, states cannot add to them. The result: medical malpractice plaintiffs filing in federal court under diversity jurisdiction no longer need to clear the affidavit hurdle before their cases can proceed.
Why This Matters Beyond the Courtroom
Affidavit-of-merit requirements functioned, in practice, as a pre-filing screening mechanism. Cases that cleared the hurdle arrived at mediation with at least one expert already on record, a formed liability theory, and counsel who had made a meaningful upfront investment. After Berk, that pre-mediation filtering no longer happens in federal court — which changes the timing, preparation, and leverage dynamics at the settlement table.
Four Shifts Every Practitioner Should Expect
The Bigger Ripple: Beyond Medical Malpractice
The Supreme Court's reasoning does not stop at hospital waiting rooms. Affidavit requirements for claims against lawyers, engineers, architects, and accountants face the same vulnerability in federal court. Anti-SLAPP statutes — which impose similar early evidentiary burdens — are already being challenged under Berk's framework. The broader principle the Court announced is sweeping: when the Federal Rules answer a procedural question, they answer it for everyone who files in federal court.
What This Means for DC and the Mid-Atlantic
Washington sits at the intersection of law, policy, and institutional dispute resolution in ways few cities do. The federal courts in this circuit handle a substantial volume of professional liability and malpractice claims involving out-of-state parties. Berk directly changes the calculus for where to file, how to prepare, and when to bring a dispute to mediation across this entire region.
The easier it is to get into court, the more mediation becomes a merits-focused process rather than a screening mechanism. That is precisely where it does its best work.
— DC Mediation & Dispute Resolution InstituteAt the DC Mediation and Dispute Resolution Institute, we have always believed that the best mediation happens when both parties come to the table prepared on the merits — with a genuine understanding of their risk and the openness to pursue a durable resolution. Berk reinforces that vision: by moving the focus away from filing technicalities and toward the substance of the dispute itself, it creates more room for skilled neutrals to do what they do best.
Berk v. Choy, 607 U.S. ___ (2026). Argued October 6, 2025. Decided January 20, 2026. Opinion by Justice Barrett; Justice Jackson concurred in the judgment.
