By Adam J. Levitt, Mark DiCello, and Diandra “Fu” Debrosse
Published in Law360 on March 9 2026. © Copyright 2026, Portfolio Media, Inc., publisher of Law360. Reprinted here with permission.
Modern multidistrict litigation 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. But default reliance on an MDL is not necessarily sound litigation strategy for plaintiffs who are living with catastrophic injuries and limited time.
State courts can also play important roles in mass torts. The first part of this two-part article examined those roles, and how state courts can amplify the effectiveness of an MDL — as well as what happens when state courts merely follow the MDL without adding leverage.
This installment examines how MDLs can drift toward delay, and how to determine whether a state court strategy or an MDL-first strategy is appropriate in a given situation.
Why MDLs Drift Toward Delay — Even When Well Run
The dynamics that can delay resolution in MDLs are not the product of bad faith — they’re structural. And because they’re structural, they’ll recur absent conscious counterweights.
Understanding them is essential to understanding why a state court strategy is sometimes not merely attractive, but necessary. To grasp why a state court play can sometimes be more appealing requires confronting the MDL’s structural incentives.
Scale Without Exit
MDLs aggregate easily, but disaggregation is far more difficult. Remands are theoretically available, but, in practice, are relatively uncommon.
The result is a one-way door. Cases enter the MDL, and then often sit for a very long time with neither an exit nor an off-ramp.
A Single Procedural Clock
In MDLs, one judge — the MDL transferee judge — controls case management for tens of thousands of claims.
Centralization can produce efficiencies — which was Congress’ point in enacting Title 28 of the U.S. Code, Section 1407, to begin with. But it also creates a single point of failure or limitation.
If the MDL slows — because of discovery fights, expert disputes, appellate issues or leadership conflict — everything slows.
Bellwether Distortion
Bellwether trials are meant to inform valuation. In practice, however, they can distort it, or, in certain circumstances, be a wash at best.
Bellwether selection battles can take months. Trial dates slip. The cases chosen may be — and often are — atypical. And, even after verdicts, parties fight about what the bellwethers mean.
Meanwhile, the many remaining plaintiffs’ claims — involving serious and often fatal injuries caused by the defendants’ conduct — remain largely untried.
State courts can counteract this distortion by producing a broader set of verdicts across different plaintiff profiles, different juries and different substantive laws, and they consistently exhibit more diversity in the manner in which trial cohorts are selected.
Settlement Pressure Without Trial Pressure
MDLs generate enormous pressure to settle — through leadership structures, common-benefit economics, the sheer number of cases and judicial emphasis on global peace.
But, as any experienced trial lawyer will tell you, settlement pressure isn’t the same thing as trial pressure. Trial pressure comes from a credible expectation that cases will be tried repeatedly, in meaningful numbers, before different juries, under different state laws, with verdicts that defendants cannot easily cabin or discount.
While some MDLs achieve that credibility, many do not. When an MDL fails to achieve that credibility, delay becomes normalized, settlement discussions become abstract and plaintiffs’ leverage erodes over time.
In that environment, a trial-forward state court isn’t a competitor to the MDL. It’s complimentary, if not corrective — as in the Roundup litigation discussed in this article’s first installment.
From Theory to Filing Decisions
If all of this sounds abstract, it shouldn’t. These aren’t academic debates about federalism; they’re practical questions that arise at the moment of filing, long before any bellwether is selected or any global mediation is scheduled.
So how should plaintiffs counsel decide when a state court strategy is likely to outperform the MDL? The following is a more disciplined checklist.
A state court strategy is more attractive when:
- The state forum has an established coordination mechanism — like California’s Judicial Council Coordinated Proceedings, Philadelphia’s Complex Litigation Center or New Jersey’s multicounty litigation — and a history of trial scheduling;
- You can get a trial date faster than on the MDL bellwether track, and the defendant cares about headline jury risk, as consumer product manufacturers and pharmaceutical companies often do;
- State law often meaningfully differs on key issues, including unanimity of jurors, number of jurors, voir dire, punitive damages, causation standards, consumer protection and statutes of limitation; and
- You have the resources and intent to try cases — because a state court strategy that isn’t trial-ready isn’t a strategy; it’s a hope.
An MDL-first strategy is more attractive when:
- You need economies of scale for discovery, expert development and core motions; and
- The MDL judge has shown an institutional commitment to trial pacing and remand realism, not just settlement management.
A multifront strategy makes sense when:
- The MDL can build the record efficiently, but the state courts can supply trial leverage; and
- The defendant is likely to exploit MDL delays, and you need an alternative clock to make meaningful forward progress.
The Through Line: Judgment, Not Habit
The lesson of modern mass tort litigation isn’t that MDLs are broken, but that they’re only one path to potential justice for victims.
MDLs are powerful tools for coordination, discovery and, at times, resolution. But, it has been repeatedly demonstrated, they can be structurally ill-suited to be the sole forum through which national accountability is achieved.
When every case is funneled into a single proceeding with no realistic exit, the system risks substituting administration for justice.
State courts aren’t a sideshow to the federal MDL system. They are a proper court for many claims — as is the MDL court.
They supply independent procedural clocks, distinct substantive law and, most importantly, real jury risk. They remind defendants that litigation doesn’t exist solely to be managed; it exists to be tried, often on a much shorter timetable than with MDL bellwethers.
For plaintiffs counsel, this imposes a professional obligation. Forum selection in mass torts cannot be reduced to habit, convenience or herd behavior.
It requires judgment — about institutions, incentives, timing and leverage. It requires an honest assessment of whether a given forum is likely to move cases toward trial or warehouse them in the name of efficiency.
And it requires something else that’s often missing from modern mass tort practice: a willingness to create and sustain trial pressure. For that reason, the Roundup example is instructive.
The value created by a state court trial setting isn’t merely the possibility of a verdict. It’s the discipline that it imposes on everyone in the system: lawyers, experts and corporate defendants who suddenly have to prepare for the public reckoning that a jury trial, or multiple jury trials, represents.
Sometimes, the MDL is the right place to start. Sometimes, state court is where value is created. And, sometimes, the most effective strategy is to resist procedural monoculture altogether and allow parallel systems to do what our civil justice system was designed to do: test claims through adjudication, not just aggregation.
That choice — where to file, and why — is no longer a secondary consideration. It’s one of the central strategic decisions in modern mass tort litigation, and, increasingly, one of the clearest measures of whether the plaintiffs bar is serious about trial.
