By Mark DiCello, Adam J. Levitt and Diandra “Fu” Debrosse
Published in Law360 on March 6, 2026. © Copyright 2026, Portfolio Media, Inc., publisher of Law360. Reprinted here with permission.
For years, the default advice from many mass tort law firms has been simple, confident and largely unexamined: Get your case into multidistrict litigation. Today, however, that advice is materially incomplete.
Modern MDL practice is designed to centralize discovery, coordinate pretrial proceedings and impose order on what would otherwise be sprawling, duplicative litigation. In many cases, it does exactly that.
And in some cases, the MDL judge is a genuine architect of national resolution — In re: Vioxx Products Liability Litigation, in the U.S. District Court for the Eastern District of Louisiana, being the chief example.
But such default reliance on an MDL is not necessarily sound litigation strategy, particularly for plaintiffs who are living with catastrophic injuries and limited time.
That reality was recently underscored in In re: Roundup Products Liability Litigation, in the U.S. District Court for the Northern District of California.
In this MDL, the court continues to manage a docket that — years after the initial $10 billion settlement framework — still contains unresolved cases and ongoing pretrial disputes.
Meanwhile, just last month, a global settlement for all outstanding current and future Roundup cases was reached in Monsanto Co. v. Durnell, in Missouri’s 22nd Judicial State Court.
The first part of this two-part article examines the unique roles that state courts can play in mass torts, how they can amplify the effectiveness an MDL, and what happens when they merely follow the MDL without adding leverage.
MDLs or State Courts: A Strategic Choice
For many plaintiffs attorneys, what’s quietly happened over the last two decades is that MDLs have drifted from a pretrial coordination device into something closer to a de facto national court for mass torts — one judge, one forum, one procedural clock and often one dominant narrative.
That drift has consequences. It reshapes leverage, normalizes delay and increasingly treats adjudication as a precursor to settlement, rather than a core, necessary and unique function of the U.S. civil justice system.
Against that backdrop, the strategic question for plaintiffs counsel isn’t whether MDLs are useful in the abstract.
It’s whether, in a given mass tort, the MDL is the forum most likely to produce the desired outcome in terms of timely trials, meaningful accountability and fair value for individual clients — or whether a disciplined state court strategy can be more effective, timely and just.
The last few years have supplied a vivid reminder that state courts are not merely parallel forums. In some litigations, they are the leverage point.
Indeed, sometimes the MDL is the right answer, but other times it’s not. And sometimes the best outcomes emerge not from procedural monoculture, but from parallel federal and state proceedings exerting pressure on one another.
Understanding when state courts can lead, when they merely follow and when they meaningfully amplify MDL proceedings is no longer theoretical. It’s a core strategic decision in modern mass tort practice.
In the Roundup litigation, unsettled MDL cases are still being worked up for trial, but the litigation, although ongoing, has been considered by many to be too slow-moving.
By contrast, the Complex Litigation Center within the Court of Common Pleas of Philadelphia — one of the country’s most sophisticated mass tort dockets — continued to set Roundup cases for trial and tried six cases to jury verdict in the four years since Bayer set aside $10 billion to settle approximately 125,000 cases in the Northern District of California.
In so doing, the Philadelphia court created precisely the kind of immediate risk not available through the MDL — risk that’s been instrumental in resolving hundreds of previously unresolved cases.
To that end, in January 2024, McKivison v. Monsanto Co. went to trial in the Complex Litigation Center, where a Philadelphia jury returned a $2.25 billion verdict for the plaintiffs.
The outcome underscores a point that mass tort lawyers sometimes forget: Value isn’t created by the existence of a docket. It’s created by the credible imminence of trial.
Three Different Roles That State Courts Can Play
Before turning to specific litigations, it helps to be precise about what state court leadership actually means. In practice, state courts tend to fall into one of three recurring roles.
1. State Court as Pacesetter
State trials tend to occur early, verdicts arrive before federal bellwethers and those outcomes reset the litigation’s risk profile — including in the MDL.
2. State Court as Leverage Amplifier
The MDL builds the record and resolves common issues, but state courts supply the credible, repeat-trial threat that prevents the MDL from becoming a warehouse.
3. State Court as Follower
State courts stay or slow their dockets, adopt MDL rulings wholesale, and allow the federal proceeding to determine the direction of state court litigation.
Each role can be rational, and each can be defensible. But each also has consequences — for leverage, timing and, ultimately and most importantly, for clients.
When State Courts Set the Pace — And the Price
The question for filing counsel is not whether these outcomes are interesting in hindsight. Rather, it’s whether they were predictable ex ante — and whether they offer actionable guidance for future litigations.
In each of the examples set forth below, state court leadership was not accidental. It flowed from identifiable institutional features that were visible at the outset, and could have informed strategic and proper filing decisions.
Roundup: How California’s Early Verdicts Changed the Risk Calculus
Roundup is a canonical illustration of state courts as pacesetters. In addition to the Philadelphia state consolidation, the California state litigation was not a sideshow; it was an engine.
A few timeline anchors matter:
- In California, Roundup cases were consolidated in a Judicial Council Coordination Proceeding — a state-level consolidated litigation similar to an MDL in federal court — before Judge Winifred Smith in the Alameda County Superior Court. This structure is designed to coordinate discovery and motion practice while still producing trial-ready cases.
- Pilliod v. Monsanto Co., tried in the Alameda County Superior Court, produced a headline verdict in May 2019. Although it was later reduced, it became a reference point in the broader settlement dialogue because it dramatized punitive exposure.
In the Roundup litigation, Philadelphia and California state courts did not merely coexist with the MDL. They demonstrated, early and repeatedly, that Roundup’s manufacturer could lose in front of juries — badly.
That matters because mass tort valuation is not set by briefs — it is set by jury risk.
The deeper strategic lesson is structural: State courts can produce multiple real-world juries faster than an MDL can produce a carefully curated bellwether lineup.
Even where an MDL ultimately tries bellwethers, state court verdicts can arrive earlier and create an anchoring effect that has national implications, for both the MDL and state court mass litigations.
Talc: How St. Louis Trials Created Leverage While the MDL Moved Slowly
The talc litigation is a second example of state court as pace-setter — and, at times, benchmark.
Long before In re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices & Products Liability Litigation, the federal talc MDL, ever approached a bellwether trial posture, Missouri state courts, particularly in St. Louis, were trying cases to verdict and realizing significant compensatory and punitive awards.
Those verdicts — whether ultimately reduced, appealed or contested — altered the bargaining environment, because they created a concrete and repeatable trial risk.
Meanwhile, the federal MDL was centralized in 2016 in the U.S. District Court for the District of New Jersey.
The point is not that state verdicts always survive intact. Rather, the point is that they can arrive — and the arrival itself can be value-setting, as well as paradigm-shifting.
Philadelphia’s Mass Tort Docket: Trial Credibility as a Persistent Feature
Philadelphia’s Complex Litigation Center was built specifically to manage complex mass tort litigation, and the court has long been associated with a willingness to schedule and try cases.
The center’s institutional history underscores what sophisticated state courts can be designed to do: manage volume while maintaining trial proximity.
That trial-forward posture — whatever one thinks of the outcomes — illustrates a recurring advantage of certain state forums: Defendants cannot assume that pretrial coordination will last indefinitely.
When State Courts Amplify MDL Leverage, Without Replacing It
For strategic purposes, these cases may be the most instructive of all. They demonstrate that the choice is not binary.
Plaintiffs counsel need not decide between blind allegiance to the MDL and quixotic isolation in state court. Parallelism — if managed deliberately — can be a force multiplier.
In re: Vioxx Products Liability Litigation, centralized in 2005 in the Eastern District of Louisiana, is an example of a case that squarely belongs in this category. In Vioxx, the MDL was central, but coordinated state courts were a vital part of the engine.
The official record reflects a global settlement of $4.85 billion, announced on Nov. 9, 2007, and the MDL court’s ongoing role in implementing and supervising aspects of the settlement program.
It also reflects that the parties kept the MDL court and coordinated state courts — including courts in Texas, New Jersey and California — informed during settlement negotiations.
So, if that’s what happened, why talk about state courts at all in Vioxx? The answer is simple: Vioxx shows how a mass tort can be driven by a federal-state coordination regime.
New Jersey’s mass tort designation centralized management and trial in Atlantic County under Judge Carol Higbee. California also had coordinated proceedings, and Judge Victoria Chaney is frequently referenced as a coordinating state court counterpart in settlement discussions.
In other words, Vioxx is an example where the state court did not supplant the MDL — but the state court still mattered as part of a coordinated pressure system. The credible existence of multiple trial venues, multiple judges and multiple procedural clocks helps prevent any single forum from becoming a unilateral bottleneck.
The best mass tort outcomes sometimes come from parallelism, not monoculture.
When State Courts Follow the MDL — and What That Costs
Not every state forum plays a leading role. Sometimes, state courts defer — explicitly or implicitly — to federal MDL leadership.
The Wholesale Adoption Problem
A recurring version of this pattern is the wholesale adoption of MDL evidentiary rulings. The motivation is understandable — why reinvent the wheel? But the cost is high.
State evidentiary standards aren’t always identical to the federal Daubert standard, codified in Rule 702 of the Federal Rules of Evidence. When state courts import federal rulings without independent analysis, they effectively outsource state law to the MDL.
The lesson isn’t that state judges are doing something wrong. Rather, it’s that plaintiffs counsel should not assume that filing in state court automatically buys you speed, independence or leverage. Indeed, those plus factors depend on the judge, the docket culture and the litigation’s posture.
The second installment of this article will examine how MDLs, even when well-run, can drift toward delay, and how to determine whether a state court strategy or an MDL-first strategy is appropriate in a given situation.
