In Re: Risperdal Litig., Appeal of: Winter, J.

• Court: Supreme Court of Pennsylvania
• Decided: November 20, 2019
• Docket: 23 EAP 2018
• Status: Published

Opinion

[J-52A-2019 and J-52B-2019] [MO: Donohue, J.] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT

IN RE: RISPERDAL LITIGATION : No. 22 EAP 2018 JONATHAN SAKSEK, : : Appeal from the Judgment of Superior Appellant : Court entered on November 13, 2017 : at No. 576 EDA 2015 (reargument : denied January 16, 2018) affirming v. : the Judgment entered on February : 12, 2015 in the Court of Common : Pleas , Philadelphia County, Civil JANSSEN PHARMACEUTICALS, INC., : Division at No. 00183 February Term, JOHNSON & JOHNSON COMPANY, : 2014, No. 296 March Term, 2010. JANSSEN RESEARCH AND : DEVELOPMENT, LLC, : ARGUED: May 16, 2019 : Appellees :

IN RE: RISPERDAL LITIGATION : No. 23 EAP 2018 JOSHUA WINTER, : : Appeal from the Judgment of Superior Appellant : Court entered on November 13, 2017 : at No. 590 EDA 2015 (reargument : denied January 16, 2018) affirming v. : the Judgment entered on February : 10, 2015 in the Court of Common : Pleas , Philadelphia County, Civil JANSSEN PHARMACEUTICALS, INC., : Division at No. 01170 March Term, JOHNSON & JOHNSON COMPANY, : 2014, 296 March Term, 2010. JANSSEN RESEARCH AND : DEVELOPMENT, LLC, : ARGUED: May 16, 2019 : Appellees :

CONCURRING OPINION

JUSTICE BAER DECIDED: NOVEMBER 20, 2019 I join the majority opinion reversing the Superior Court’s affirmance of the trial

court’s grant of summary judgment to Janssen Pharmaceuticals, Inc., Johnson & Johnson Company, and Janssen Research and Development, LLC (collectively, Janssen). I write

separately to reiterate my concerns regarding Pennsylvania’s continued adherence to the

narrow approach to the discovery rule.

The majority correctly summarizes Pennsylvania jurisprudence regarding the

discovery rule as utilizing a “narrow approach” involving “inquiry notice,” which tolls the

statute of limitations until a plaintiff has “actual or constructive knowledge” of the injury

and awareness that the injury was caused by another. Maj. Op. at 11. This paradigm

places a greater burden on plaintiffs as compared with the so-called “liberal” approach

applied by most of our sister states. See Nicolaou v. Martin, 195 A.3d 880, 892-93 (Pa.

2018); Wilson v. El-Daief, 964 A.2d 354, 363-65 (Pa. 2009). The liberal approach looks

to a plaintiff’s actual or constructive knowledge of the existence of a cause of action, which

tolls the statute of limitations until a reasonable plaintiff would have knowledge not only

that an injury was caused by another but that the injury resulted from the negligence of

another. Id.

As I have previously expressed, I question whether this Court should align our

discovery rule jurisprudence with the liberal approach adopted by the majority of our sister

states. See Wilson, 964 A.2d at 371-372 (Baer, J., concurring and dissenting).

Nevertheless, I recognize that the issue is not before the Court in this case. Accordingly,

as was true in our recent decision in Nicolaou, 195 A.3d at 892 n.14, “we await a future

case” to consider whether to adopt the liberal approach.

Justice Donohue joins this concurring opinion.

[J-52A-2019 and J-52B-2019] [MO: Donohue, J.] - 2