Statute of Limitations: When is the Discovery Rule a Question of Fact for the Jury Such that Summary Judgment is Improper?

In Re: Risperdal Litigation, 2017 WL 5256400 (Pa. Super. 2017) (unreported), allocatur granted July 5, 2018, appeal dockets 22 EAP 2018 (Saksek) and 23 EAP 2018 (Winter)

Plaintiffs in the Risperdal mass tort litigation allege negligence and other claims against Janssen and other pharmaceutical companies for marketing Risperdal, an antipsychotic drug used to treat schizophrenia, bipolar disorder and attention deficit disorder that had a side effect of causing weight gain and gynecomastia, an excessive development of breast tissue in men.  Saksek and Winters, prescribed Risperdal as minors, brought claims that they acknowledged were beyond the two-year statute of limitations, but that they claimed were timely because the discovery rule tolled the running of the statute.  The trial court granted summary judgment on the defendants’ statute of limitations defense and Superior Court affirmed.

Saksek was prescribed Risperdal in 1998, when he was 11, and Winter was prescribed it in 1997, when he was 17.  Both experienced symptoms of unexplained weight gain and gynecomastia by 2002 and 1998, respectively. As the Superior Court explained, reports that the drug caused these effects began appearing in 2003, but neither plaintiff commenced a lawsuit until 2014, when they learned that others had pursued suits:

 As early as 2003, medical journals began exploring the link between Risperdal usage and the development of gynecomastia. Additionally, in October 2006, the Risperdal label was updated with warnings indicating “gynecomastia was reported in 2.35% of risperidone-treated patients.” Trial Court Opinion, 1/13/14, at 8 (citations to the record omitted). In 2013, Appellants learned, through a television commercial, that other Risperdal users with gynecomastia had pursued lawsuits against Appellees. Based upon this information, Saksek filed a complaint against Appellees on February 4, 2014, and Winter filed a complaint on March 10, 2014.

Slip Op. at 3.

Saksek and Winter concede that the statute of limitations is implicated, but argue that it is tolled by the discovery rule.  As the court explained:

To successfully invoke the discovery rule, a party must show the inability of the injured, despite the exercise of due diligence, to know of the injury or its cause. A party fails to exercise reasonable diligence when it fails to make an inquiry when the information regarding the injury becomes available. Mistake, misunderstanding or lack of knowledge in themselves do not toll the running of the statute.

Slip 8, quoting Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 279 (Pa. Super. 2016).

Saksek and Winter argued to the Superior Court that disputed issues of fact precluded the trial court from granting summary judgment on statute of limitations grounds, and specifically that the issue of whether the discovery rule tolled the statute involved three disputed facts that should have been determined by a jury:

1) when Appellants had sufficient notice to suspect their breast growth was gynecomastia; 2) when Appellants were placed on notice their gynecomastia was the result of a tortious act; and 3) whether the exercise of reasonable diligence would have permitted Appellants to discover a causal connection between their gynecomastia and Appellees’ conduct.

Slip Op. at 10 n. 6.

The Superior Court rejected the division of questions two and three into separate steps, reasoning:

the division of the last two issues into distinct issues is based upon a misconception of the applicable law. Appellants purportedly believe that the discovery rule requires “inquiry notice” that a plaintiff’s symptoms are the manifestation of tortious conduct before a plaintiff is required to use “reasonable diligence” to discover a causal relationship to another’s conduct. …

 As discussed in more detail above, however, the law requires that a party use “reasonable diligence” to determine first, that he has suffered an injury and second, that this injury was caused by another. See Gleason, 15 A.3d at 485. Once a party has utilized “reasonable diligence” to gain “actual or constructive notice” of both of these aspects, some courts have described this as a party receiving “inquiry notice,” and pinpoint this time as when the limitations period begins to run. See id., at 484. Thus, because “inquiry notice” is properly viewed a result of using “reasonable diligence” rather than the inverse, Appellants’ third issue is properly viewed as a subset of their second issue, rather than a distinct issue of its own.


As to the “sufficient notice” issue, Superior Court rejected the contention that Sestak and Winters could not have known they were injured until they were diagnosed with gynecomastia in 2013, distinguishing discovery rule cases in which plaintiffs sought a diagnosis and received conflicting medical advice.  The court pointed to statements Saksek and Winter each made that they were aware of their injuries no later than 2002, and concluded “[t]here cannot be potential confusion about a diagnosis if Appellants did not even seek a diagnosis.”  Id. at 13.

As to when Saksek and Winter were placed on notice that their injuries were the manifestation of defendants’ tortious conduct, the trial court and Superior Court concluded that it could not have been later than 2006, when Risperdal’s label was changed to reflect the connection.  The court found rejected the notion that there are material facts in dispute to be resolved by a jury because no reasonable mind would differ in finding that Saksek and Winter knew or should have known by 2006 that their injuries were caused by Risperdal:

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. Their breasts were clearly not temporary by 2006. 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. …. As such, the discovery rule is not applicable to toll the relevant statutes of limitations. Pursuant to 42 Pa.C.S.A. § 5524(7), Appellants should have commenced their actions no later than October 31, 2008—over five and a half years prior to their February 4, 2014 and March 10, 2014 filing dates. Thus, the trial court’s conclusion that the discovery rule did not apply to toll the statute of limitations was correct, and Appellants can garner no relief on this argument.

Slip Op. at 15-16.

Using the same analysis, the Superior Court likewise rejected Saksek’s and Winter’s claims that the statute of limitations was tolled by defendants’ fraudulent concealment.

The Supreme Court has granted allocatur on the statute of limitations question:

[S]hould summary judgment have been granted in Janssen’s favor on statute of limitations grounds?

For more information, contact Kevin McKeon or Dennis Whitaker.