U.S. Supreme Court Decision May Negate State Law Requirement to File a Certificate of Merit with the Complaint in a Federal Action Against a Design Professional
April 27, 2026 —
Christopher Olsen & Phillip Boldt - ConsensusDocsTo deter frivolous and unfounded claims against design professionals, states throughout the country have enacted statutes which generally require litigants to furnish a formal certification of merit (“COM”) from a qualified expert or face potential dismissal of their lawsuit. These COM statutes can impose a significant front-end burden on claimants who must pay an expert to review project records, interview the project team, and prepare a formal report before the lawsuit can be filed—often regardless of the amount in controversy. However, in light of a recent U.S. Supreme Court decision in a medical malpractice case, most, if not all of these statutes, may no longer be enforceable in federal court. This article examines the recent decision in Berk v. Choy, 146 S. Ct. 546 (2026), the decisions thus far which have applied Berk to invalidate COM statutes, and other categories of statutes applicable to the construction industry which may face a similar fate.
The U.S. Supreme Court Decision (Berk v. Choy)
In Berk, the plaintiff, Harold Berk, sued a doctor for medical malpractice under Delaware law in Delaware federal court. 146 S. Ct. at 551. Under Del. Code, Tit. 18, § 6853(a)(1), an affidavit of merit (like a COM) must accompany a complaint alleging medical malpractice. Id. Berk failed to include an affidavit of merit with his complaint. Id. at 552. Applying Delaware state law, the federal court dismissed Berk’s medical malpractice claim. Berk appealed to the Third Circuit, arguing that the affidavit of merit required by § 6853(a)(1) is unenforceable in federal court because it is more onerous than the Federal Rules of Civil Procedure. The Third Circuit affirmed the District Court’s ruling, finding § 6853(a)(1) enforceable in federal court.
Reprinted courtesy of
Christopher Olsen, Peckar & Abramson, P.C. and
Phillip Boldt, Peckar & Abramson, P.C.
Mr. Olsen may be contacted at colsen@pecklaw.com
Mr. Boldt may be contacted at pboldt@pecklaw.com
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Construction Liens: Liening for Amounts Not Yet Technically Due Does Not Mean Lien Is Fraudulent
August 11, 2026 —
David Adelstein - Florida Construction Legal UpdatesA 2024 bankruptcy ruling, In re Edgewater Construction Group, Inc., 657 B.R. 668 (S.D.Fla. 2024), touched upon an interesting issue when it comes to construction liens. Is a construction lien fraudulent simply because the lien includes amounts not yet due? Not necessarily.
In this bankruptcy dispute, the subcontractor debtor (that filed for bankruptcy) recorded two construction liens on projects. The general contractor argued in the bankruptcy court that the subcontractor debtor’s liens were fraudulent.
As to the first lien, the general contractor argued that the lien was fraudulent because it included amounts that the debtor knew the general contractor had already paid to the debtor’s subcontractors/suppliers. The bankruptcy court disagreed: “The Court finds that, although the Debtor had been told that [the general contractor] had paid these subcontractors, in light of the ongoing dispute between Debtor and [the general contractor], it was reasonable for the Debtor to demand proof. Debtor’s subsequent filing of a partial satisfaction of lien once the Debtor received the requested proof of payment from [the general contractor] counters any claim of willful exaggeration.” In re Edgewater Construction Group, supra, at 672-673.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Oracle's $16B Michigan Data Center Secures Financing as Power Contracts Face Appeals
June 08, 2026 —
Bryan Gottlieb - Engineering News-RecordA $16 billion hyperscale data center under construction outside Ann Arbor, Mich., has secured financing backed by Blackstone and other institutional investors, even as the project's power supply agreements now face a legal challenge before the Michigan Court of Appeals.
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Bryan Gottlieb, Engineering News-RecordMr. Gottlieb may be contacted at
gottliebb@enr.com
Powering Data Centers in a Moving Regulatory Landscape: Positioning Deals Before FERC’s Next Move
April 27, 2026 —
Stephen J. Humes, Alicia M. McKnight & Andrew H. Jacobs - Gravel2Gavel Construction & Real Estate Law BlogThe explosive growth of data‑center load—driven by artificial intelligence, cloud computing and the expansion of digital infrastructure across industries—has forced U.S. energy regulators into unfamiliar territory. Nowhere is this more evident than at the Federal Energy Regulatory Commission (FERC), which is actively considering how large, concentrated loads can be powered without compromising grid reliability or shifting costs to other customers.
FERC has not yet issued a standalone rulemaking on data centers. But make no mistake, the regulatory framework is quietly and deliberately being built. For developers, hyperscalers, utilities and investors, the period before FERC finalizes its next round of decisions represents the critical window to crystallize advocacy and structure transactions in ways that anticipate regulatory change.
Reprinted courtesy of
Stephen J. Humes, Pillsbury,
Alicia M. McKnight, Pillsbury and
Andrew H. Jacobs, Pillsbury
Mr. Humes may be contacted at stephen.humes@pillsburylaw.com
Ms. McKnight may be contacted at alicia.mcknight@pillsburylaw.com
Mr. Jacobs may be contacted at andrew.jacobs@pillsburylaw.com
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Seventh Circuit, With an Assist From the Illinois Supreme Court, Finds That “Pollution Exclusion” Bars Coverage For Emissions Allowed Under Regulatory Permit
April 20, 2026 —
Jason Taylor - Traub Lieberman Insurance Law BlogIn Griffith Foods Int’l Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA, 24-1217 & 24-1223 (7th Cir. Mar. 13, 2026), the Seventh Circuit addressed the meaning and scope of a pollution exclusion in a standard-form commercial general liability insurance policy for underlying injuries caused by ethylene oxide (EtO) emissions. The insurance dispute arose out of underlying tort litigation involving bodily injury claims, including cancer, allegedly caused by emissions of ethylene oxide over a 35-year period from 1984 through 2019 by Griffith Foods International and later Sterigenics U.S. The pollution exclusion at issue generally barred coverage for “bodily injury” arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, or other irritants, contaminants or pollutants.
Interpreting similar exclusions, the Illinois Supreme Court has previously held that the standard CGL pollution exclusion bars coverage for bodily injuries caused by traditional environmental pollution (essentially industrial emissions of pollutants), but not by more commonplace emissions (such as carbon monoxide from a residential furnace or excess chlorine in a backyard swimming pool). See American States Insurance Co. v. Koloms, 177 Ill. 2d 473 (Ill. 1997). In Griffith Foods, the District Court initially concluded that the pollution exclusion did not apply because the companies emitted EtO pursuant to a permit issued by the IEPA. The District Court reached this latter conclusion by applying Erie Insurance Exchange v. Imperial Marble Corp., 957 N.E.2d 1214 (Ill. App. Ct. 2011), an Illinois intermediate appellate court decision finding it ambiguous whether a CGL policy’s pollution exclusion barred coverage for emissions authorized by regulatory permit.
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Jason Taylor, Traub LiebermanMr. Taylor may be contacted at
jtaylor@tlsslaw.com
Trend Continues Where Unlicensed Contractors Have No Recourse
July 13, 2026 —
David Adelstein - Florida Construction Legal UpdatesThere’s been a recent trend in Florida case law that has figuratively “killed” unlicensed contractors. Here’s another one. The moral to this trend and case is simple: make sure you have the proper licenses prior to serving as a contractor under Florida law. Trying to be cute, as seemed to be the situation in this case with a creative argument, is not an argument that will carry the day and your resources will be devoted to being creative versus the ultimate merits of the dispute.
In Ramindesign, LLC v. Skarzynski, 2026 WL 1649571 (S.D.Fla. 2026) an owner of real property hired a company to design and construct a spec home on the property. The company and its owner were NOT licensed contractors. The contract stated the company was serving as a “spec developer” and referred to it as the contractor throughout the contract. Other than this, the contract was set up as a cost plus a fee.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Chambers USA Recognizes GRSM as 2026 Industry Leader
June 29, 2026 —
Gordon Rees Scully MansukhaniGordon Rees Scully Mansukhani has once again been recognized by Chambers USA, a prestigious directory of the country’s top law firms. In addition to the firm’s practice recognitions, eight partners, David Capell, Nancy Erfle, Matthew Foy, Ashlee Grant, Craig Heryford, Andrew Port, Todd Regan, and Angela Richie, were recognized among the nation’s top lawyers in their respective fields.
Chambers USA recognized the firm in the following eight categories:
USA – Nationwide – Insurance: Dispute Resolution: Insurer, Band 4
The firm is widely sought after by national insurance sector clients facing a wide array of coverage disputes as well as bad faith claims. The firm has additional capabilities in class actions and appellate litigation. Its broad base of experience includes professional liability, construction, and bankruptcy-related issues. This is the third year the firm has received this recognition.
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Gordon Rees Scully Mansukhani
Fatalities Edge Down: New Data Reveals a Promising Decline
April 27, 2026 —
Construction ExecutiveConstruction fatalities in the United States declined slightly in 2024, according to
new data released from the U.S. Bureau of Labor Statistics. The sector recorded just over 1,000 worker deaths last year—a modest decrease from the previous year but still among the highest totals of any industry.
Falls remained the leading cause of death, accounting for roughly one-third of all construction fatalities. Transportation incidents—including workers struck by vehicles or equipment—ranked second, followed by contact with objects or equipment and electrocutions.
Reprinted courtesy of
Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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