There are a handful of ways to lose a Minnesota lawsuit without anybody ever looking at whether you were wronged. I put the expert affidavit at the top of that list. Nothing else in Minnesota practice ends cases this early, this permanently, on this little.
If you sue a doctor, a lawyer, an accountant, an architect, or an engineer in Minnesota, you don’t just file a complaint. You also have to produce a sworn statement that a qualified expert has reviewed the case and says it has merit — and you have to produce it on a schedule that starts running before you’ve taken a single deposition. Miss it without an extension, and the statute doesn’t leave the result to the court’s discretion. On a motion, it says the case is dismissed.
On January 20, 2026, the Supreme Court held that a requirement of exactly this kind doesn’t apply in federal court.
Minnesota was on the losing side of that argument. On purpose.
What Minnesota requires
Two statutes do the work, and they’re close cousins.
Minn. Stat. § 145.682 covers malpractice actions against health-care providers. It requires two affidavits. The first has to be served with the summons and complaint, stating that the plaintiff’s attorney has reviewed the facts with a qualified expert and that the expert believes a defendant deviated from the standard of care and caused injury. If the statute of limitations meant that review couldn’t reasonably be obtained before the action was commenced, the attorney can say so instead, and the expert-review affidavit is then due within 90 days after service of the summons and complaint. The second, identifying the experts who will testify and summarizing their opinions and the grounds for them, is due within 180 days after discovery commences.
Minn. Stat. § 544.42 does the same for other licensed professionals — attorneys, architects, certified public accountants, engineers, land surveyors, and landscape architects. Same structure, same two affidavits, same clock.
And the same consequence. Here’s § 544.42’s penalty provision for the first affidavit:
“Failure to comply with subdivision 2, clause (1), within 60 days after demand for the affidavit results, upon motion, in mandatory dismissal of each cause of action with prejudice as to which expert testimony is necessary to establish a prima facie case.”
Section 145.682, subd. 6(a), says the same thing with “with prejudice” moved up: “mandatory dismissal with prejudice of each cause of action”. Each statute has a parallel provision for the second affidavit.
Mandatory. With prejudice. There are relief valves, and they’re narrow. Both statutes give a plaintiff 60 days after a demand to produce the first affidavit. Both allow extensions of the time limits by agreement or for good cause shown. Section 544.42 also lets the court waive or modify the first affidavit for good cause, on an application served when the action starts. And both give a plaintiff a chance to fix a deficient second affidavit: § 544.42 won’t let an initial motion be granted until the court has given notice, with specific findings, and 60 days to cure, and § 145.682 requires the motion to identify the deficiencies, sets the hearing at least 45 days out, and lets the plaintiff serve a corrected affidavit before it. But the whole scheme is built to end cases early and for good. That’s why I treat the affidavit as part of the complaint itself: no expert lined up, no filing.
The policy behind it isn’t a mystery. These statutes are screens, passed to keep weak professional-liability claims from ever reaching discovery, on the theory that malpractice insurance costs everyone money. Whatever you think of that trade, the Legislature was entitled to make it.
The question the Supreme Court just answered is a different one: does that choice follow the claim into federal court?
Berk v. Choy
Harold Berk fell out of bed while traveling in Delaware. He was taken to a hospital, an X-ray showed a fractured ankle, and a doctor recommended a protective boot. According to his complaint, hospital employees forced his leg into the boot and twisted the fractured ankle. Nobody ordered a new X-ray that day. Two weeks later a second X-ray showed the ankle wasn’t just fractured but severely deformed, and surgery followed.
Berk sued the doctor and the medical center. Because he and the defendants were citizens of different states, he could sue in federal court.
Delaware, like Minnesota, requires an affidavit of merit to go with a malpractice complaint. Berk asked for an extension, spent it trying to find a doctor willing to sign — an effort the Court noted “spawn[ed] separate litigation” of its own — and came up empty. He filed his medical records under seal instead and argued that the Delaware statute couldn’t be enforced in federal court because the Federal Rules of Civil Procedure already answered the question.
The district court dismissed. The Third Circuit affirmed, reasoning that the Federal Rules were silent and that Delaware’s law was “substantive” under Erie.
The Supreme Court reversed. Justice Barrett wrote for eight members of the Court; Justice Jackson concurred in the judgment.
The reasoning is short and, once you see it, hard to unsee. Federal Rule of Civil Procedure 8 already tells a plaintiff what he has to put in front of the court at the start of a case: “a short and plain statement of the claim showing that [he] is entitled to relief.” By requiring no more than a statement of the claim, the Court said, Rule 8 establishes “implicitly, but with unmistakable clarity,” that evidence of the claim is not required at the pleading stage. Rule 12 backs that up, offering exactly one merits-based ground for dismissal and barring courts from considering “matters outside the pleadings” in deciding it.
So Delaware’s statute and Rule 8 answered the same question and gave different answers. When that happens, the Federal Rule wins, so long as it’s valid — and Rule 8, the Court held, plainly “really regulates procedure.”
The defendants had a fallback: read the Delaware statute not as a pleading rule but as a free-floating evidence requirement. The Court didn’t buy it. The Federal Rules already have a way to make a plaintiff prove his case before trial. It’s called summary judgment, and it’s Rule 56.
The Minnesota detail
Tennessee led an amicus brief urging the Court to affirm — that is, to hold that state affidavit statutes do apply in federal court. Twenty-six other state attorneys general signed on, twenty-seven states in all.
Minnesota’s Attorney General was one of them.
That’s not a knock. It’s the ordinary job of a state’s chief legal officer, who has an interest in seeing his Legislature’s laws given effect wherever the claim is filed. But it tells you how the state saw the stakes. Minnesota didn’t treat this as some technical question about Delaware. It treated it as a question about whether §§ 145.682 and 544.42 mean what they say when a Minnesota plaintiff walks into the federal courthouse in Minneapolis or St. Paul instead of the state courthouse across the street.
The Court’s answer to the Delaware version of that question was no.
What this does and doesn’t change in Minnesota
This is exactly the kind of decision that gets over-read into malpractice. So here’s what it does and doesn’t do.
It doesn’t change anything in state court. Most Minnesota professional-liability cases — nearly all of them, in my experience — are filed in Hennepin, Ramsey, or another Minnesota district court, and in those courts §§ 145.682 and 544.42 apply with full force. Nothing in Berk touches them. If your case is in state court, the affidavit deadlines are exactly as real today as they were in December.
It only matters where there’s a federal forum. That means diversity of citizenship — parties from different states, with enough in controversy — or a federal claim to hang the case on. Two Minnesotans fighting over Minnesota malpractice in Minnesota have no federal forum, and the question never comes up.
The Eighth Circuit hasn’t decided whether Berk reaches Minnesota’s first affidavit. The reasoning lines up closely: the first affidavit under each statute is expressly tied to the pleading, served “with the summons and complaint” or “with the pleadings,” which is the same feature that put Delaware’s law on a collision course with Rule 8. But the court hasn’t said so, and federal courts sitting in Minnesota enforced § 145.682 for decades before January. When the Eighth Circuit applied § 544.42 in May, it didn’t reach the question: the plaintiffs there had filed the first affidavit, and the case turned on the second.
The second affidavit is a different question, and the Eighth Circuit has now enforced it. The expert-disclosure affidavit due 180 days after discovery commences isn’t attached to a pleading at all. It looks a lot more like an expert-disclosure obligation, and the Federal Rules have their own machinery for that in Rule 26. In Everest Stables, Inc. v. Porter, Wright, Morris & Arthur LLP, decided May 14, 2026, a legal-malpractice case filed in federal court in Minnesota, the plaintiffs never served the § 544.42 disclosure affidavit, and the Eighth Circuit affirmed the dismissal of the claims it held needed expert testimony. It held that the motion had to be treated as one for summary judgment under Rule 56, because deciding it meant considering matters outside the pleadings, and it cited Berk in a footnote telling litigants to label their motions under the Federal Rules. The opinion doesn’t take up an argument that Berk displaces the second affidavit, and it doesn’t mention § 145.682. So after Berk, the Eighth Circuit has enforced the disclosure affidavit in federal court through Rule 56, and an argument that Berk displaces it now has to deal with that decision.
And nobody should skip an affidavit on the strength of a blog post — including this one. If you guess wrong about which forum you’re in or how a court will read the statute, the sanction is dismissal with prejudice, and by the time you find out, the statute of limitations has usually run. My advice after Berk isn’t to stop preparing affidavits. It’s this: a plaintiff who genuinely can’t get one in time may now have an argument he didn’t have before, and where the case belongs is worth thinking hard about at the start, not after a dismissal.
Why this is bigger than procedure
Some people treat these questions as housekeeping. They aren’t.
Minnesota’s affidavit statutes decide cases. A claim a jury would have found meritorious can end because a busy expert didn’t call back inside a statutory window, and the dismissal is with prejudice, which means it’s over forever. When a rule has that much power, where it applies isn’t a technicality. It’s often the whole case.
What Berk holds is narrow and, in a way, modest: when the Federal Rules have already answered a question, a state answer to the same question doesn’t displace them in federal court. It doesn’t say Minnesota’s screening policy is bad, and it doesn’t say a plaintiff should be able to sue a doctor on nothing. It says Rule 8 already decided what a complaint has to contain, and Rule 56 already decided when a plaintiff gets put to his proof.
For most Minnesota plaintiffs, nothing changes. For the ones with a federal forum and a real case they couldn’t get an expert to back in time, something just did.
If you’re facing a professional-liability claim — or an affidavit deadline you’re not sure you can meet — raise the forum question early, not late. Send us a message or call 612-470-6529.
Sources: Berk v. Choy, 607 U. S. 187 (2026) (Barrett, J.), No. 24–440, decided January 20, 2026; Everest Stables, Inc. v. Porter, Wright, Morris & Arthur LLP, No. 25-1950 (8th Cir. May 14, 2026) (motion under Minn. Stat. § 544.42 treated as one for summary judgment under Fed. R. Civ. P. 56; dismissal for failure to serve the § 544.42, subd. 4 expert-disclosure affidavit affirmed; Berk cited at n.3); Minn. Stat. §§ 145.682, 544.42 (2025); Fed. R. Civ. P. 8, 12, 56. This article is general commentary on a published decision and on Minnesota statutes, not legal advice, and reading it does not create an attorney–client relationship. Whether any particular affidavit requirement applies to any particular case depends on facts and on the forum. No outcome is promised or implied.