Max Mitchell, The Legal Intelligencer
September 28, 2016
A trial judge’s decision to establish a litigationwide cutoff date for when claims should have been brought against Janssen Pharmaceuticals over the drug Risperdal fails to apply standard discovery-rule principles, unfairly placing hundreds of cases at risk of dismissal, an attorney representing numerous plaintiffs told a Pennsylvania Superior Court panel Tuesday.
Kline & Specter attorney Charles “Chip” Becker told the three-judge panel the issue directly affects 275 cases that have been dismissed as a result of Supervising Judge Arnold New’s application of the statute of limitations in Risperdal litigation. Becker said it could also impact hundreds more in the Philadelphia Court of Common Pleas, where more than 2,000 cases are pending.
“These kids didn’t even know they had an injury,” Becker told the judges. With New’s ruling “the entire world, including these two kids, was barred.”
Superior Court Judges Jack Panella, Lillian Ransom and James J. Fitzgerald III heard argument Tuesday afternoon on numerous issues on appeal in three cases involving plaintiffs claiming that the antipsychotic drug Risperdal caused them to develop excessive breast tissue—a condition known as gynecomastia. The issues included efforts to overturn a defense verdict in the case Cirba v. Janssen Pharmaceuticals, and the application of Michigan law in the mass tort program, but a determination on the statute of limitations question, raised in cases brought by plaintiffs Jonathan Saksek and Joshua Winter, stands to have the largest global impact on the litigation.
Becker said New’s order establishing June 30, 2009, as the date all potential plaintiffs should have been aware that Risperdal potentially caused their gynecomastia failed to account for considerations about what individual plaintiffs actually knew about their alleged injuries and the connections those injuries had to gynecomastia. Becker said 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.
New’s ruling meant “that these young men in Harrisburg and Hazelton should have had access to and should have been plumbing the depths of the psychopharmacology literature,” Becker said. “Judge New overreached.”
Becker suggested that the reasoning behind New’s ruling may have been more of a bargain between the two sides of the litigation in order to establish a limit on the size of the mass tort.
Dechert attorney Robert C. Heim, who represented Janssen, agreed the statute of limitations ruling would mean dismissal of hundreds of cases, but noted that thousands more are pending in the court.
“Unfortunately for our courts there are many, many, many more cases that won’t be dismissed,” he said. “It’s not like there aren’t plenty of plaintiffs who did file within the statute of limitations.”
Heim noted that Winter and Saksek were around 30 years old when they filed their claims and had been off Risperdal for several years. They’d had plenty of time to identify and investigate the cause of their breast tissue, Heim said.
“If there was a duty of inquiry, then the statute of limitations would have expired some 14 years ago for Mr. Winter and 10 years for Mr. Saksek,” Heim said. “Neither made any inquiry at the time they developed these large female breasts.”
At one point during the arguments, Panella asked whether doctors for Winter or Saksek had ever diagnosed gynecomastia as the reason for their breast growth, or whether the physicians had attributed the tissue to general weight gain.
Becker said that by the time the cases were dismissed the record had not yet been developed enough to determine that specifically.
“I don’t stand here to say I’m entitled to summary judgment on this issue,” Becker said. “I’m not asking for the directed verdict. All I’m saying is that they’re not entitled to one either.”