Photo: Wikimedia Commons

The Pennsylvania Supreme Court has agreed to consider whether thousands of Risperdal cases should be barred on statute of limitations grounds.

The high court last week agreed to consider whether Philadelphia Court of Common Pleas Judge Arnold New, who oversees the city’s Complex Litigation Center, should have granted summary judgment to drugmaker Janssen Pharmaceuticals on statute of limitations grounds in the Risperdal mass tort. According to attorneys involved in the litigation, the issue affects more than 40 percent of the roughly 6,700-strong Risperdal docket, which has seen dramatic growth over the past few years.

The question the justices agreed to take up on appeal comes in the cases Saksek v. Janssen and Winter v. Janssen, which were both dismissed for failing to bring the claims within the applicable two-year statute of limitations.

“We are pleased that the Supreme Court has agreed to review the Winter and Saksek cases.  Judge New’s decision, affirmed in non-precedential fashion by the Superior Court, time-bars plaintiffs from bringing claims concerning permanent injuries that the plaintiffs did not know they had suffered and had no reason to relate to their ingestion of Risperdal,” Kline & Specter attorneys Thomas Kline and Charles “Chip” Becker, who are representing the plaintiffs, said in an emailed statement. “We are hopeful that the court will reinstate the legal rights of thousands of valid Risperdal claims.”

Attorney Stephen Sheller, who is also a leading attorney in the Risperdal litigation, said the statute of limitations issue should be considered in each case on an individual basis, and he is glad the Supreme Court agreed to consider the issue.

“They’re supposed to have the ability to have information that most physicians, most doctors and most people would have no idea about? We say that has to be developed on an individual case-by-case basis,” Sheller said. “Particularly when the kids often have disabilities.”

A spokeswoman for Janssen said the company was disappointed in the Supreme Court’s decision to hear the appeal.

“We believe the trial court acted appropriately in granting our motion for summary judgment, and the Superior Court affirmed that ruling,” Janssen spokeswoman Kelsey Buckholtz said in an emailed statement. “We will continue to defend this litigation.”

When New entered his order in 2015 imposing the statute of limitations, 275 cases were dismissed. However, the docket has grown from less than 2,000 in 2016 to where it stands now, with nearly 6,700 cases pending. Plaintiffs in each case contend that Janssen failed to warn that Risperdal caused a condition known as gynecomastia, which is excessive breast tissue in boys and young men.

Although plaintiffs Jonathan Saksek and Joshua Winter contended that New should have allowed juries to decide the statute of limitations question, the Superior Court determined late last year that New properly granted summary judgment with June 30, 2009, as the date plaintiffs reasonably should have known about the link between the drug and the plaintiffs’ breast growth.

Superior Court Judge Jack Panella, who wrote the three-judge panel’s unanimous decision in Saksek and Winter, noted that the plaintiffs allegedly began growing breasts in 1998 and 2002, but did not sue until 2014. The plaintiffs, he said, failed to investigate whether their injuries could be connected to the drug.

“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,” Panella said. “Accordingly, by that date, ‘reasonable minds would not differ in finding that,’ appellants knew, or should have known, of their injuries and the cause of those injuries by this point.”

During the argument session before the Superior Court in late 2016, Becker said New’s order failed to account for considerations about what individual plaintiffs actually knew about their alleged injuries and the connections those injuries had to gynecomastia.

Becker told the panel New’s reasoning, which pointed to the availability of medical journal articles, print media and television segments about the alleged dangers of Risperdal, did not account for facts such as where the plaintiffs lived, what media they consumed and their general awareness of the injuries.