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
Read the full story...
Southwest Super Lawyers Recognizes 50 Snell & Wilmer Attorneys in 2026 Rankings
June 15, 2026 —
Snell & WilmerPHOENIX (April 22, 2026) – Snell & Wilmer is pleased to announce that 50 attorneys in the Phoenix and Tucson offices have been selected for inclusion in the 2026 Southwest Super Lawyers publication. Of those 50, four were recognized for the first time and 24 were recognized as Southwest Rising Stars. Super Lawyers is a listing of lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations, and peer evaluations. Super Lawyers was first published in 1991 by Law & Politics and was acquired by Thomson Reuters, Legal in February 2010. Thomson Reuters is a leading source of information for businesses and professionals. The below Snell & Wilmer attorneys have been selected for inclusion in the 2026 Southwest Super Lawyers rankings.
Read the full story...Reprinted courtesy of
Snell & Wilmer
Mandatory Arbitration Isn’t All Bad, if. . .
July 13, 2026 —
Christopher G. Hill - Construction Law MusingsIn the past week or so mandatory arbitration has been all the rage. From those that argue that
arbitration is becoming more burdensome than litigation, to my friend and fellow construction attorney Scott Wolfe who gives great advice on how to make arbitration worth it again. You can place me in the camp of those that think that mandatory arbitration clauses of the type typically found in contracts can add a layer of expense that can be unnecessary.
However, if an arbitration clause is carefully drafted, and properly used, these clauses an be helpful in assuring that the streamlining effect for which arbitration was created actually occurs. Because the
contract is king in Virginia, these provisions can essentially create the rule of civil procedure used to resolve any dispute relating to the project.
Read the full story...Reprinted courtesy of
The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Nevada’s Mandatory Nonbinding Arbitration Law for Civil Cases is Going Through Changes
May 14, 2026 —
Brandon Wright & Manuel Gurule - Lewis BrisboisNevada currently operates an expedited litigation program designed to resolve civil disputes with a value up to $50,000 without incurring the “usual” expense of litigating these disputes. Over time, however, the number of civil cases that have been “exempted” from this program based on the claimed damages exceeding $50,000 has grown dramatically. In response, the Nevada Legislature recently enacted a number of rule changes designed to streamline Nevada’s arbitration process and include more cases. Among these changes are increasing the arbitration “cap” from $50,000 to $100,000.
By way of background, the Nevada’s Court Annexed Arbitration program is a mandatory, non-binding program for civil cases in judicial districts that have county populations of 100,000 or more [1]. Nevada’s Court Annexed Arbitration was born out of NRS 38.250, which was enacted in 1991 and went into effect in the summer of 1992. The newly enacted NRS 38.250 was regarded as a way to address the problem of increased court caseloads while promoting judicial economy and efficiency in civil cases having a probable jury award of less than $25,000 [2]. Initially, cases that were automatically exempt from the program included class actions, medical malpractice disputes, divorce proceedings, and other domestic relations matters [3].
Reprinted courtesy of
Brandon Wright, Lewis Brisbois and
Manuel Gurule, Lewis Brisbois
Mr. Wright may be contacted at Brandon.Wright@lewisbrisbois.com
Mr. Gurule may be contacted at Manuel.Gurule@lewisbrisbois.com
Read the full story...
Water Reuse Emerges as a Critical Strategy for Data Center Development
June 22, 2026 —
Ashleigh Myers, Jillian Marullo & Jason Drogin Atwood - Gravel2Gavel Construction & Real Estate Law BlogAs demand for data centers continues to accelerate, water availability is emerging as a critical factor in project development and long-term operations. Although power supply and transmission access have historically dominated siting discussions, increasing water constraints in many regions are placing greater focus on the substantial volumes of water required to support data center cooling systems. As we
covered previously, data centers are frequently located in areas already experiencing water stress and require substantial volumes of water to operate—roughly 228 billion gallons in 2023 in the United States alone—with water use projected to
increase by up to 170% by 2030.
Alternative cooling options, such as free-air cooling or mechanical chillers, can reduce direct water consumption but introduce their own tradeoffs. Free-air cooling is climate-dependent and often ineffective in hotter regions, while mechanical chillers increase energy demand, potentially shifting water consumption upstream through increased electricity generation.
Reprinted courtesy of
Ashleigh Myers, Pillsbury,
Jillian Marullo, Pillsbury and
Jason Drogin Atwood, Pillsbury
Ms. Myers may be contacted at ashleigh.myers@pillsburylaw.com
Ms. Marullo may be contacted at jillian.marullo@pillsburylaw.com
Mr. Atwood may be contacted at jason.atwood@pillsburylaw.com
Read the full story...
GRSM Attorneys Recognized in The Best Lawyers in America® 2027
August 24, 2026 —
Gordon Rees Scully MansukhaniGordon Rees Scully Mansukhani is pleased to announce that 183 of its attorneys were listed in The Best Lawyers in America© 2027 Edition, six of whom received “Lawyer of the Year” recognitions. Additionally, 49 GRSM attorneys were recognized in Best Lawyers: Ones to Watch 2027.
Best Lawyers lists are compiled based on peer-review evaluations. For the 2027 edition of The Best Lawyers in America®, results were determined using millions of confidential attorney evaluations. Ones to Watch adopts the same peer-review methodology.
Read the full story...Reprinted courtesy of
Gordon Rees Scully Mansukhani
Los Angeles Times Ranks Lewis Brisbois Third Largest Firm in LA County, Largest for Litigation
June 08, 2026 —
Lewis BrisboisThe Los Angeles Times has ranked Lewis Brisbois the third largest firm in LA County by attorney headcount, and first for number of litigation attorneys.
Lewis Brisbois, whose Los Angeles office is led by Co-Managing Partners Jana I. Lubert and Kathleen Walker, has 273 attorneys working in LA County, including 167 partners.
The firm ranked No. 1 for Litigation in the county, with 206 attorneys under the leadership of Partner Craig Holden.
Read the full story...Reprinted courtesy of
Lewis Brisbois
California Poised for the Most Significant Residential Construction Defect Reforms in Decades
September 01, 2026 —
Thomas D. Fama & Andrew J. Mallon - Wood Smith Henning BermanThe California Legislature is considering legislation that would dramatically alter the landscape of residential construction defect litigation. Assembly Bill 1903, currently pending before the Senate Judiciary Committee, proposes extensive amendments to California's Right to Repair Act (Civil Code sections 895-945.5) that would substantially strengthen procedural protections for builders while narrowing the scope of recoverable construction defect claims.
If enacted, the legislation would affect virtually every stage of a construction defect dispute- from the initial notice of claim through litigation and settlement- and would introduce an entirely new certification process for newly constructed condominium projects. This article details some of the most significant proposed changes.
Higher Burden for Construction Defect Plaintiffs
Perhaps the most consequential change is the bill's modification of the proof required to establish liability. current law generally requires a claimant to demonstrate the residence fails to satisfy one of the statutory performance standards established under the Right to Repair Act. AB1903 would instead require claimants to establish three separate elements:
- A violation of an applicable statutory performance standard;
- The violation caused appreciable, present, non-speculative physical damage to another building component; and
- The violation resulted from the original construction.
Reprinted courtesy of
Thomas D. Fama, Wood Smith Henning Berman and
Andrew J. Mallon, Wood Smith Henning Berman
Mr. Fama may be contacted at tfama@wshblaw.com
Mr. Mallon may be contacted at amallon@wshblaw.com
Read the full story...
