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Will Pennsylvania Supreme Court Hear Risperdal Time Bar Appeal?

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It threatens hundreds of Risperdal gynecomastia lawsuits in the mass tort: should the statute of limitations start running in October 2006 to coincide with the Risperdal label update? The Pennsylvania Supreme Court has been asked to weigh in…

Philadelphia, PAAll eyes are on the Pennsylvania Supreme Court, as justices with the highest hall of justice in the State debate whether, or not to hear an appeal of a lower court ruling that could put an undetermined number of Risperdal gynecomastia lawsuits currently housed in a mass tort, in jeopardy.

Risperdal is the powerful antipsychotic drug widely prescribed for a host of issues, but has come under increased scrutiny in recent years due to its association with the growth of male breast tissue - known medically as gynecomastia. This can, and has affected adolescents as well as adults and in rare cases, males suffering from perhaps the cruelest aspect of Risperdal side effects have been known to lactate, and secrete from the nipples.

The product label for Risperdal was updated in October, 2006 with more accurate information regarding Risperdal and growing male breasts - as labels appearing before that time were inadequate in denoting an accurate level of risk for gynecomastia, later found to be higher than previously thought.

Risperdal is also associated with general weight gain. However, Risperdal gynecomastia is something else again, and is not generally mitigated through the normal process of weight loss. Many plaintiffs having filed a Risperdal lawsuit required surgery to remove their male breast tissue.

When should the time-bar clock start running?

The legal issue at hand for the State Supreme Court to potentially consider is a previous ruling by the Pennsylvania Superior Court with regard to statutes of limitations; specifically when the clock starts to run, and when it should stop.

Two Philadelphia Risperdal lawsuits filed in 2014 as part of the mass tort were lost when the trial judge granted summary judgment to Janssen Pharmaceuticals, the manufacturer of Risperdal. In both cases it was determined that plaintiffs involved should have drawn the connection between Risperdal and growing male breasts, and the antipsychotic medication prescribed to them, well before 2014. To wit, the combination of the label update in 2006 and various studies and reports that had been the subject of widespread media attention should have been sufficient to give pause for plaintiffs to suspect an association between their male breast tissue and Risperdal gynecomastia by June, 2009.

The two cases were consolidated for appeal. Justices for the Pennsylvania Superior Court, in a ruling handed down in November of last year, determined that plaintiffs Joshua Winter and Jonathan Saksek should have been in a position to suspect Risperdal gynecomastia as early as October, 2006 when the product label was updated. Winter, according to the original trial judge in the Philadelphia County Court of Common Pleas, had noticed the growth of his breasts as early as 1998.

"Their breasts were there, and had been there, for years," the opinion by the Pennsylvania Superior Court said. "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."

Hundreds of Risperdal lawsuits could be in jeopardy

Plaintiffs have now taken their case to the Pennsylvania Supreme Court, which is considering whether, or not to hear the appeal. In the meantime Janssen, a subsidiary of Johnson & Johnson, argued in a brief last month that the original ruling should stand.

The outcome could affect countless Risperdal gynecomastia lawsuits that were filed well after the time bar, assuming a clock that runs from the point at which the Risperdal label was updated in October, 2006.

The two Risperdal lawsuits proposed to the Pennsylvania Supreme Court for appeals are Re: Risperdal Litigation etc., Case No. 75 EAL 2018 and 76 EAL 2018, before the Pennsylvania Supreme Court.


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