In July 2018, the Pennsylvania Supreme Court announced its decision to review a ruling by the Pennsylvania Court of Common Pleas regarding the statute of limitations in a case regarding the drug Risperdal. Essentially, the Supreme Court will have to decide whether the Court of Common Pleas was correct in dismissing the Plaintiffs’ case on summary judgment, ruling that the statute of limitations barred the plaintiffs from any recovery.
Background
In 2015, Jonathan Saksek and Joshua Winter’s consolidated cases against Janssen Pharmaceuticals were dismissed by the Pennsylvania Court of Common Pleas. Both plaintiffs alleged that Janssen’s drug Risperdal caused them to develop female breast tissue, a condition known as gynecomastia. The Court of Common Pleas did not dismiss the case because there was no proof that Risperdal causes the condition, but because the statute of limitations had run its course. In Pennsylvania, there is a two-year statute of limitations on tort cases.
Judge New, the coordinating judge for Philadelphia’s mass tort program in the Court of Common Pleas, ruled that since Janssen had changed the drug’s label in 2006, both plaintiffs should have been aware at that time of the connection between Risperdal and gynecomastia and they then had two years to file their case. Because they didn’t file until 2014, their cases could not go forward.
Judge New also wrote in his ruling that if the change of the drug’s label wasn’t enough, articles, medical literature, and advertisements should have made the Plaintiffs aware in 2009, and thus their claims should have been filed no later than 2011.
The Superior Court ruled: “Their breasts were there, and had been there, for years. And then, in October 2006, the label on Risperdal changed, expressly linking usage of the drug to gynecomastia.” It went on to say “…by that date, reasonable minds would not differ in finding that appellants knew, or should have known…the cause of those injuries by this point.”
The lawyers for Saksek and Winter alleged that even though both Plaintiffs’ breast tissue growth started back in 1998 and 2002, both plaintiffs were going through puberty at the time, which made it very difficult to attribute the growth to Risperdal instead of just to typical weight gain during puberty.
Tolling
Even though the Superior Court affirmed Judge New’s ruling, Saksek and Winter appealed to the Supreme Court. In July, the Supreme Court agreed to review the case, and Thomas Kline and Chip Becker, the attorneys for the Plaintiffs, filed their first brief to the Supreme Court last week. Kline and Becker are asking the Supreme Court to toll the statute of limitations.
Plaintiffs want the Supreme Court to rule that the statute of limitations can be delayed in this case because the Plaintiffs were not aware that the drug caused their condition until much later than asserted in the Court of Common Pleas’ ruling.
Plaintiffs argue that even though it has been more than two years since they developed symptoms, they should be able to file their lawsuit after that period since they lacked the knowledge necessary in 2009 or 2011 to file their case within the time limit required by the statute of limitations.
The Supreme Court’s decision will not only affect Jonathan Saksek and Joshua Winter’s case, but the nearly 3,000 other cases pending against Janssen Pharmaceuticals alleging Risperdal caused their gynecomastia.
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