Attorneys for two Risperdal gynecomastia plaintiffs will appear before the Pennsylvania Supreme Court in Harrisburg today, where they’ll seek reversal of a lower court ruling that dismissed their clients’ cases as time-barred.
The Court’s ultimate decision on the Risperdal statute of limitations question will decide the fate of thousands of similar claims currently pending in a mass tort program underway in Philadelphia.
Both men began taking the powerful antipsychotic drug in the 1990s, when they were children. They subsequently developed gynecomastia, a disfiguring condition marked by the growth of female-like breasts in men and boys. They filed suit in 2014 and alleged that Janssen Pharmaceuticals failed to warn that Risperdal could stimulate the excess production of prolactin, a hormone central to female breast development. High levels of prolactin can also cause gynecomastia in males.
The following year, however, Philadelphia Common Pleas Court Judge Arnold New dismissed their lawsuits for being time-barred. He determined the Risperdal statute of limitations had begun tolling in August 2009, based on the body of medical literature, newspaper articles, and attorney advertisements available by that time.
The Pennsylvania Superior Court went even further, and determined that the statute of limitations actually began running when Janssen updated the Risperdal label’s gynecomastia information in October 2006.
According to their Risperdal lawsuits, the plaintiffs’ doctors had wrongly diagnosed their excessive breast growth as weight gain in the 1990s. Without a medical background or knowledge of this possible side effect, they had no reason to suspect otherwise until their mothers first viewed attorney advertising linking Risperdal to gynecomastia in 2013.
“The October 2006 insert may have sufficed to put somebody on notice of the Risperdal-gynecomastia connection so as to cause that individual’s Risperdal claims against Janssen to accrue by that date,” their attorneys argued in a brief submitted to the Supreme Court last October. “But nothing in this record suggests that the label change sufficed to place Jonathan or Joshua on notice as a matter of law. Janssen has a classic jury argument. The Court should require Janssen to make that argument to a jury, and allow jurors to decide its persuasiveness.”
There are currently more than 7,000 gynecomastia lawsuits pending in the Pennsylvania mass tort program. If the state’s Supreme Court upholds the Risperdal statute of limitations ruling, about 40% of those claims will be subject to dismissal.