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

[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