In Berk v. Choy, the Supreme Court of the United States held that a state affidavit-of-merit requirement could not be used to dismiss a medical malpractice case filed in federal court because the Federal Rules of Civil Procedure controlled the pleading issue. 607 U.S. 187, 198-200 (2026). Practically, Berk is less about civil procedure doctrine and more about a litigation-management point: removing a case to federal court may eliminate state-law protections that otherwise would have forced plaintiffs to test their claims early.
As courts adjust to the Berk ruling, it may prompt reconsideration of whether state-law protections apply in federal court.
1. Revisit Removal Strategy Before the Deadline Runs
Removal is often treated as a default defense move. After Berk, it should be treated as a business decision. Many states have procedural protections that require plaintiffs to provide early expert support, pre-suit notices, certificates of merit, affidavits of merit, or other screening materials before a case can proceed. Those protections can be especially valuable in healthcare, professional liability, construction, product liability, and other expert-driven disputes.
The risk is that removing to federal court may trade away one of the company’s strongest early defenses. That does not mean removal is wrong. Federal court may still offer advantages, including predictable scheduling, judicial experience with complex disputes, multidistrict coordination, or a more favorable jury pool. But legal teams should now ask a more precise question: Are we removing into a forum where the plaintiff can avoid a state-law gatekeeping requirement that would have applied in state court? That question should be answered before removal, not after the first motion is denied.
2. Adjust Early Case Budgets and Settlement Evaluations
The C-suite impact is cost and timing. If a state-law screening requirement does not apply in federal court, a claim that may have been dismissed early in state court could survive long enough to trigger discovery, expert work, document collection, employee interviews, preservation burdens, and insurance reporting obligations. Even weak claims can become more expensive when the company loses an early procedural off-ramp.
Build this into early exposure assessments. A case may still be defensible on the merits, but if it survives longer because a state-law procedural protection is unavailable in federal court, the settlement value may change. That is the point business leaders need to understand: the underlying law may not have changed, but the cost of getting to the merits may have.
3. Update Strategy for Recurring Claims
Update the litigation playbooks now. The first step is to identify which recurring claims depend on state-law procedural protections. The second step is to determine, by jurisdiction, whether those protections are likely to apply in federal court after Berk. The third step is to build that analysis into removal checklists, budgeting templates, insurer communications, and outside-counsel reporting guidelines.
The practical next step is simple: before making a forum decision, require outside counsel to answer three questions in writing:
- What state-law screening protections exist?
- Would they apply in federal court?
- What defense advantage, if any, are we giving up by removing?
That framework provides a clearer way to advise business leaders, preserve leverage, and avoid turning a routine procedural decision into a more expensive litigation path.
