J-A27023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: RISPERDAL LITIGATION            :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
JONATHAN SAKSEK                        :
                                       :
                  Appellant            :
                                       :
                                       :
            v.                         :
                                       :   No. 576 EDA 2015
                                       :
JANSSEN PHARMACEUTICALS, INC.,         :
JOHNSON & JOHNSON COMPANY,             :
JANSSEN RESEARCH AND                   :
DEVELOPMENT, LLC,

            Appeal from the Judgment Entered February 12, 2015
            In the Court of Common Pleas of Philadelphia County
          Civil Division at No(s): February Term, 2014, No. 00183,
                                   March Term, 2010, No. 296

IN RE: RISPERDAL LITIGATION            :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
JOSHUA WINTER                          :
                                       :
                  Appellant            :
                                       :
                                       :
            v.                         :
                                       :   No. 590 EDA 2015
                                       :
JANSSEN PHARMACEUTICALS, INC.,         :
JOHNSON & JOHNSON COMPANY,             :
JANSSEN RESEARCH AND                   :
DEVELOPMENT, LLC,

           Appeal from the Judgment Entered February 10, 2015
           In the Court of Common Pleas of Philadelphia County
            Civil Division at No(s): March Term, 2010, No. 296,
                                     March Term, 2014, No. 01170


BEFORE:    PANELLA, J., RANSOM, J., and FITZGERALD*, J.


____________________________________
* Former Justice specially assigned to the Superior Court.
J-A27023-16



MEMORANDUM BY PANELLA, J.                          FILED NOVEMBER 13, 2017

       In these consolidated appeals, Appellants, Jonathan Saksek and

Joshua Winter, appeal from the judgments entered in the Philadelphia

County Court of Common Pleas. Appellants contend the trial court erred in

determining that their claims were barred by the statute of limitations.

Therefore, Appellants argue the orders granting summary judgment in favor

of Appellees, Janssen Pharmaceuticals, Inc., Johnson & Johnson, and

Janssen Research & Development, LLC, were improper. We affirm.

       Appellees    developed      and    manufactured   risperidone,   an   atypical

antipsychotic for the treatment of schizophrenia in adult patients. In 1993,

the Food and Drug Administration granted approval to Appellees to market

risperidone for this purpose. And they brought it to market under the brand

name Risperdal.

       In 1997, at the age of 17, Winter was prescribed Risperdal for the

treatment of anger issues. He remained on Risperdal until 1998, at which

point his physician discontinued Winter’s use of the medication. By

December 31, 1998, Winter observed he was suffering from unexplained

weight gain and gynecomastia.1



____________________________________________


1 Merriam-Webster’s online dictionary defines gynecomastia as “excessive
development of the breast in the male.” http://www.merriam-
webster.com/dictionary/gynecomastia (last visited August 7, 2017).




                                           -2-
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       In 1998, at the age of 11, Saksek was prescribed Risperdal to treat

attention deficit disorder, attention deficit hyperactivity disorder, and bipolar

disorder.2 He remained on Risperdal until 2004. Saksek admitted he

observed unexplained weight gain concurrent with an increase in his breast

size by December 31, 2002.

       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.

       Both complaints were filed as part of the In re Risperdal mass tort

program, and incorporated allegations found in the master complaint.3
____________________________________________


2 See U.S. Food & Drug Administration, Understanding Unapproved Use of
Approved        Drugs         “Off         Label,”        available       at
https://www.fda.gov/forpatients/other/offlabel/default.htm     (last visited
August 24, 2017).

3 The In Re Risperdal® Litigation mass tort program was formed on May
26, 2010, as a depository for the filings of pleadings, motions, orders, and
other documents common to all Risperdal cases in the Philadelphia County
Court of Common Pleas. See Case Management Order 1, 5/26/10, In Re
Risperdal® Litigation, March Term 2010 No. 296.



                                           -3-
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Appellants raised identical claims against Appellees of (I) negligence; (II)

negligent design defect; (III) fraud; (IV) strict liability failure to warn; (V)

strict liability design defect; (VI) breach of express warranty; (VII) breach of

implied warranty; (VIII) violation of Pennsylvania’s Unfair Trade Practices

and Consumer Protection Law (“UTPCPL”), 73 P.S. § 201, et. seq.; (IX)

unfair and deceptive trade practices; (X) conspiracy; (XI) punitive damages;

and (XII) medical expenses incurred by parent. Appellees denied Appellants’

allegations and asserted several defenses, including the statute of limitations

defense.

      On February 10, 2014, Appellees filed a motion for partial summary

judgment on the master docket disputing the validity of the punitive

damages claim. The trial court granted Appellees’ motion on May 2, 2014,

and dismissed all plaintiffs’ claims for punitive damages. Further, the trial

court denied a subsequent motion for reconsideration of the summary

judgment order on July 18, 2014.

      In August 2014, Appellees filed motions for summary judgment in both

Appellants’ cases, asserting the statute of limitations barred both actions.

Appellants responded, arguing that because Appellees concealed the link

between    Risperdal   usage   and   the   development   of   gynecomastia    in

adolescent males, the discovery rule and the doctrine of fraudulent

concealment tolled the statute of limitations.

      On January 13, 2015, the trial court granted Appellees’ motion in

Winter’s case, holding that Winter’s claims were barred because he had

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commenced his action after the applicable statutes of limitation had expired.

See Trial Court Opinion, 1/13/15, at 1. Further, the trial court found that the

application of the discovery rule or claims of fraudulent concealment could

not save Winter’s claims, as Winter knew of his injury at the time he

developed breast tissue, and should have reasonably known of the link

between his gynecomastia and Risperdal usage by June 30, 2009, at the

latest. See id.

       Subsequently, on January 30, 2015, the trial court granted Appellees’

motion for summary judgment against Saksek, holding the rationale

underlying its decision in Winter’s case controlled. See Trial Court Opinion,

1/30/15, at 2-3 (unpaginated).

       The parties later stipulated to the dismissal of Appellants’ claims

against Excerpta Medica Incorporated and Elsevier, Inc., and the trial court

simultaneously entered a judgment to that effect. Both Winter and Saksek

filed timely notices of appeal. This Court consolidated Winter’s and Saksek’s

appeals.

       On appeal, Appellants contend the trial court erred in granting

Appellees’ summary judgment motions and dismissing Appellants’ tort claims

on statute of limitations grounds.4 See Appellants’ Brief, at 3. While

____________________________________________


4 In its January 13, 2015 opinion, the trial court divided Appellants’ claims
into four categories based upon the applicable statute of limitations: tort
claims (i.e., negligence; negligent design defect; fraud; strict liability, failure
to warn; strict liability, design defect; unfair and deceptive trade practices;
(Footnote Continued Next Page)


                                           -5-
J-A27023-16



Appellants admit the timing of their complaints implicates the statute of

limitations, Appellants argue that in both cases the trial court usurped a

jury’s role by determining several genuine issues of material fact related to

the question of whether the discovery rule or the doctrine of fraudulent

concealment applied to toll the relevant statute of limitations. 5 See id., at

27.

(Footnote Continued) _______________________

and conspiracy); warranty claims (i.e., breach of express warranty; and
breach of implied warranty), UTPCPL claims; and miscellaneous claims (i.e.,
medical expenses incurred by parents). See Trial Court Opinion, 1/13/14, at
4, n.4, 5.

  After categorizing the claims, the trial court concluded that the warranty
claims, UTPCPL claim, and miscellaneous claims could not be tolled by the
application of the discovery rule or the doctrine of fraudulent concealment
and therefore dismissed these claims as untimely without analyzing the
application of either rule to toll their respective statute of limitations. See id.
Appellants do not appear to challenge this aspect of the trial court’s
summary judgment orders; in fact, Appellants focus their appellate brief
solely on the alleged error the trial court committed when it dismissed their
tort claims. See Appellants’ Brief, at 21, 23. Therefore, Appellants have not
preserved any challenges related to this issue, and we will not address the
trial court’s decision to dismiss Appellants’ claims of breach of implied
warranty, breach of express warranty, violation of Pennsylvania’s UPTCPL, or
medical expenses incurred by parents. See Umbelina v. Adams, 34 A.3d
151, 161 (Pa. Super. 2011).

5 Through their respective notices of appeal, Appellants purport to appeal all
previously non-final orders that merged into and were made appealable by
the entry of the final judgment. See Notice of Appeal (Saksek), 3/6/15, at 2
(unpaginated); Notice of Appeal (Winter), 3/12/15, at 2 (unpaginated).
These orders include the order of May 2, 2014, entering partial summary for
Appellees, the order entered July 18, 2014, denying Appellants’ motion for
reconsideration, and the orders entered January 13 and 30, 2015, entering
summary judgment on the rest of Appellants’ claims. However, through their
appellate brief, Appellants only challenge the entry of summary judgment
(Footnote Continued Next Page)


                                          -6-
J-A27023-16



      We review a challenge to the entry of summary judgment as follows:

      [We] may disturb the order of the trial court only where it is
      established that the court committed an error of law or abused
      its discretion. As with all questions of law, our review is plenary.

      In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. See Pa.R.C.P. Rule 1035.2. The rule
      states that where there is no genuine issue of material fact and
      the moving party is entitled to relief as a matter of law,
      summary judgment may be entered. Where the nonmoving
      party bears the burden of proof on an issue, he may not merely
      rely on his pleadings or answers in order to survive summary
      judgment. Failure of a non-moving party to adduce sufficient
      evidence on an issue essential to his case and on which he bears
      the burden of proof establishes the entitlement of the moving
      party to judgment as a matter of law. Lastly, we review the
      record in the light most favorable to the nonmoving party, and
      all doubts as to the existence of a genuine issue of material fact
      must be resolved against the moving party.

E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013)

(citation omitted; brackets in original).

      The    trial   court   granted    summary   judgment   after   determining

Appellants’ causes of action were barred due to their failure to file their

claims within the applicable statute of limitation period. “[A] cause of action

accrues, and thus the applicable limitations period begins to run, when an

injury is inflicted.” Wilson v. El-Daief, 964 A.2d 354, 361 (Pa. 2009)

(citation omitted). Thus, in most situations, once the period prescribed by


(Footnote Continued) _______________________

entered January 13 and 30, 2015, respectively. Thus, we restrict our review
accordingly.



                                          -7-
J-A27023-16



the applicable statute has passed, the plaintiff is barred from bringing suit.

See Gleason v. Borough of Moosic, 15 A.3d 479, 484 (Pa. 2011).

      Appellants concede the applicable statute of limitations period for their

tort claims is two years. See Appellants’ Brief, at 23. See also 42 Pa.C.S.A.

§ 5524(7). Further, the parties agree that more than two years had elapsed

between the infliction of Appellants’ alleged injuries and the filing of their

complaints. See Appellants’ Brief, at 25-26; Appellees’ Brief, at 5. However,

Appellants argue that a jury was required to determine if the filing periods

for their tort claims were tolled by the application of the discovery rule

and/or Appellants’ fraudulent concealment. See Appellants’ Brief, at 27, 46.

      We first address Appellants’ contention that the trial court incorrectly

determined that the discovery rule did not apply to toll the applicable statute

of limitations. See id., at 27. The discovery rule acts as an exception to the

principle that a party cannot act upon his claims once the prescribed

statutory period has expired. See Fine v. Checchio, 870 A.2d 850, 858 (Pa.

2005). Instead, in situations

      where the complaining party is reasonably unaware that his or
      her injury has been caused by another party’s conduct, the
      discovery rule suspends, or tolls, the running of the statute of
      limitations. 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.




                                     -8-
J-A27023-16



Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 279 (Pa.

Super. 2016) (internal citations and quotation marks omitted).

     Reasonable, or due diligence, is an objective standard “but takes into

account   individual   capacities   and   society’s expectations of attention,

knowledge, intelligence and judgment for citizens to protect their own

interests.” Simon v. Wyeth Pharm., Inc., 989 A.2d 356, 365 (Pa. Super.

2009) (citation and internal quotation marks omitted).

     Therefore, when a court is presented with the assertion of the
     discovery rule[’]s application, it must address the ability of the
     damaged party, exercising reasonable diligence, to ascertain
     that he has been injured and by what cause. Since this question
     involves a factual determination as to whether a party was able,
     in the exercise of reasonable diligence, to know of his injury and
     its cause, ordinarily a jury would decide it. Where, however,
     reasonable minds would not differ in finding that a party knew or
     should have known on the exercise of reasonable diligence of his
     injury and its cause, the court determines that the discovery rule
     does not apply as a matter of law.

Fine, 870 A.2d at 858-859 (internal citations omitted).

     Nevertheless, the party asserting application of the discovery
     rule bears the burden of proof, and Pennsylvania courts have not
     hesitated, where appropriate, to find as a matter of law that a
     party has not used reasonable diligence in ascertaining his or her
     injury and its cause, thus barring the party from asserting his or
     her claim under the discovery rule.

Gleason, 15 A.3d 479, 485-486 (internal citations omitted).

     The crux of Appellants’ argument is that summary judgment was

improper due to the existence of several genuine issues of disputed fact

concerning the applicability of the discovery rule. See Appellants’ Brief, at



                                      -9-
J-A27023-16


27-31. Appellants essentially6 argue there were two issues of material fact

that should have been determined by a jury. See id., at 27-45. First,

Appellants contend there was a genuine issue of material fact as to when

Appellants had “sufficient notice to suspect their breast growth was

gynecomastia.” Id., at 27-28. Second, Appellants maintain there is a

genuine issue as to the date they were placed on notice that their

gynecomastia was the result of a tortious act by Appellees. See id., at 28.



____________________________________________


6  In their appellate brief, Appellants argue there were three issues of
material fact that should have been determined by the 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. See Appellants’ Brief,
at 27-28, 42. However, 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. See id., at 24.

  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.




                                          - 10 -
J-A27023-16


      Turning to Appellants’ first claim, Appellants argue they could not have

reasonably known they were injured until they were diagnosed with

gynecomastia in 2013. See id. Conversely, Appellees claim that Appellants’

own pleadings prove that they were aware of their injuries as soon as they

occurred, and thus they cannot now feign ignorance. See Appellees’ Brief, at

10-12.

      Our Supreme Court has repeatedly held that “knowledge of ‘injury’ and

‘cause’ does not require a precise medical diagnosis….” Wilson 964 A.2d at

365 (citations omitted). Thus, a plaintiff is not required to “know the precise

medical cause of her injury” before a statute of limitations period begins to

run. Id., at 364 n.10 (citations omitted).

      Here,    Appellants    repeatedly      acknowledge    they    developed

gynecomastia in in 1998 and 2002, respectively. See Appellants’ Brief, at

26. While Appellants claim the statute of limitations should be tolled because

they did not have a diagnosis at that time, the law does not require a

diagnosis before the statute begins to run, only awareness of an injury. All of

the arguments presented to the trial court claim that Appellants were keenly

aware of their injuries as soon as they were incurred. See Winter’s Response

to Summary Judgment Motion, 9/9/14, at 2 (“This case is about Joshua

Winter, a young man who ingested [Appellees’] drug, Risperdal, as a minor

and developed large, female-like breasts as a result, mentally wounding him

deeply and creating a condition that may last for the rest of his life”);


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J-A27023-16


Saksek’s Response to Summary Judgment Motion, 9/9/14, at 2 (“This case

is about Jonathan Saksek, a young man who ingested [Appellees’] drug,

Risperdal, as a minor and developed large female-like breasts as a result,

mentally wounding him deeply and creating a condition that may last for the

rest of his life.”)

       Appellants attempt to downplay the knowledge of their injuries by

arguing that, as was the case in both Fine and Wilson, the potential

confusion as to whether their breasts were temporarily caused by weight

gain or were the result of a more permanent medical condition. See

Appellant’s Brief, at 28-31. However, both of those cases are readily

distinguishable.

       In Fine, appellant began to experience numbness after having four

wisdom teeth removed by Appellee. See 870 A.2d at 854. Appellee

repeatedly informed appellant that numbness was a typical side effect that

could take up to six months to remedy. See id. After a year, appellant

began to believe his facial numbness might be permanent and filed suit after

the two-year statute of limitations period had run. See id., at 854-855.

       Our Supreme Court found that because appellant’s facial numbness

could either be a “temporary physical consequence that resulted from the

very nature of the procedure that [appellee] performed on [appellant] or it

was a manifestation of [appellant]’s injury, a permanent condition that

resulted from underlying nerve damage,” a jury, rather than a court, should


                                   - 12 -
J-A27023-16


decide whether appellant exercised reasonable diligence in ascertaining his

injury. Id., at 861-862.

         Likewise, in Wilson, our Supreme Court found that a jury should

determine      whether    the   appellant   exercised   reasonable   diligence    in

ascertaining her injury where appellant experienced constant pain after a

surgery but was repeatedly informed by her surgeon, appellee, that he could

not discern an injury. See 964 A.2d at 365-366.

         Unlike the case before us, both of those cases involved an appellant

who actively sought, and received, conflicting, medical advice concerning an

injury. Because their search resulted in potential confusion about the nature

of their injury, our Supreme Court determined that a jury needed to decide if

the manner of their search constituted reasonable diligence. Here, in stark

contrast, there is no dispute that Appellants did not seek any medical advice

concerning their breast growth. There cannot be potential confusion about a

diagnosis if Appellants did not even seek a diagnosis. As such, we are

required to rely upon Appellants’ own assertions, that they were aware of

their injuries as early as 1998 and 2002, respectively. Thus this argument

fails.

         Next, Appellants contend there was a genuine issue of material fact as

to   when     they were    placed on    notice   that   their   injuries were    the

manifestation of Appellees’ tortious conduct. See Appellants’ Brief, at 27-45.

Appellants allege Appellees’ actions in concealing the link between Risperdal


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J-A27023-16


usage and gynecomastia in adolescent males significantly hindered their

ability to discover that their gynecomastia was the manifestation of

Appellees’ tortious conduct. See id., at 28. Therefore, Appellants argue a

jury   should   have   determined      when     “sufficient   information   of   the

gynecomastia-Risperdal link was available to have enabled [Appellants], in

the exercise of reasonable diligence, to discover the causal relationship

between their breast growth and Risperdal.” Id., at 27.

       Here, the trial court determined

       the existence of the link between Risperdal and gynecomastia
       was discoverable in October 2006 when Risperdal’s label was
       changed to reflect the connection. Furthermore, the link between
       Risperdal and gynecomastia was so widely discussed in the
       mainstream media, and in medical journals, that by June 30,
       2009, [Appellants’] inquiry should have been awakened and
       [they] should have discovered the existence of [their] claims
       against [Appellees]. Accordingly, as a matter of law, the
       discovery rule can only toll the statutes of limitation until a
       maximum date of June 30, 2009 for plaintiffs who ingested
       Risperdal prior to October 2006.

Trial Court Opinion, 1/13/14, at 15.

       Appellees agree with the trial court that the statute of limitations

mandated the grant of summary judgment, but contend that if the discovery

rule applied, it would have only tolled the statute of limitations until October

2006, when the Risperdal label was changed to include a warning about

gynecomastia. See Appellees’ Brief, at 23. After this point, Appellees argue,

a party exercising even a modicum of diligence would have been able to

discover the cause of their injuries. We agree.


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      As noted above, the onus of proving the applicability of the discovery

rule falls squarely upon the person, or people, asserting its applicability. See

Gleason 15 A.3d at 485-486. Thus, in order to meet their burden,

Appellants were required to establish they acted “with reasonable diligence

in determining the fact and cause of [their] injur[ies] but [were] unable to

ascertain it.” Nicolaou v. Martin, 153 A.3d 383, 389 (Pa. Super. 2016) (en

banc) (citation omitted). Appellants were aware of their injuries when they

began experiencing unexplained weight gain—and breast growth—after

starting Risperdal treatment in 1998 and 2002. However, from 1998 and

2002 until 2013, when Appellants were notified of the commercial claiming a

link between gynecomastia and Risperdal, they did nothing to uncover the

cause of their unexplained breast growth and weight gain. Appellants cannot

hope to establish that they acted with reasonable diligence, when they admit

that they failed to act at all.

      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. Fine, 870 A.2d at 858. 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


                                     - 15 -
J-A27023-16


later than October 31, 20087—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.8

       Finally, Appellants argue the trial court erred by granting Appellees’

motions for summary judgment as Appellees’ fraudulent concealment of the

link between Risperdal usage and gynecomastia is an alternative basis for

tolling the statute of limitations. See Appellants’ Brief, at 46-49.

       Similar to the discovery rule, the doctrine of fraudulent concealment

tolls the applicable statute of limitations under specific circumstances. Based

on a theory of estoppel, the doctrine holds that a “defendant may not invoke

the statute of limitations, if through fraud or concealment, he causes the

plaintiff to relax his vigilance or deviate from his right of inquiry into the

facts.” Fine, 870 A.2d at 860 (citation omitted). The doctrine does not
____________________________________________


7 Pursuant to Pennsylvania’s Minor Tolling Statute, Saksek’s claims did not
accrue until February 10, 2005, the date of his eighteenth birthday. See 42
Pa.C.S.A. § 5533(b)(1)(i). Thus, we have used this date to calculate the
beginning of the applicable two-year statute of limitations period.

8 While the trial court discussed the October 31, 2006 tolling date for the
discovery rule that we have adopted, it ultimately determined Appellants’
claims began to run on June 30, 2009. This difference in date does not affect
our analysis, as Appellants’ claims are patently untimely pursuant to either
of these dates. Further, an appellate court can affirm on any basis. See In
re Jacobs, 15 A.3d 509 n.1 (Pa. Super. 2011) (“We are not bound by the
rationale of the trial court, and may affirm on any basis.”)



                                          - 16 -
J-A27023-16


require proof of an intent to deceive, but requires proof of an unintentional

deception. See id. However,

      [t]he defendant must have committed some affirmative
      independent act of concealment upon which the plaintiffs
      justifiably relied. Mere mistake or misunderstanding is
      insufficient. Also, mere silence in the absence of a duty to speak
      cannot suffice to prove fraudulent concealment.

McClean v. Djerassi, 84 A.3d 1067, 1070 (Pa. Super. 2013) (citation

omitted).

      As with the discovery rule, Appellants are held to a standard of

reasonable diligence and “a statute of limitations that is tolled by virtue of

fraudulent concealment begins to run when the injured party knows or

reasonably should know of his injury and its cause.” Fine, 870 A.2d at 861.

Further, “[t]he plaintiff has the burden of proving fraudulent concealment by

clear, precise, and convincing evidence.” Id., at 860 (citation omitted).

      Appellants maintain that Appellees have spent years trying to conceal

the relationship between Risperdal and gynecomastia. See Appellants’ Brief,

at 46-49. To support this claim, Appellants point to Appellees’ actions in

misreporting     the   incidence   of    gynecomastia     following   Risperdal    use,

encouraging off-label use of Risperdal, and a 2003 article that Appellees

approved    of   which   disputed       the   link   between   Risperdal   usage   and

gynecomastia. See id., at 47.

      However, as noted, “reasonable minds cannot differ” in concluding that

both Appellants knew of their injuries, and should have known of the cause


                                          - 17 -
J-A27023-16


of their injuries by October 31, 2006, at the latest. Thus, even assuming

that fraudulent concealment served to toll the relevant statute of limitations

until October 31, 2006, Appellants were required to file their tort claims by

October 31, 2008, in order to preserve them. This conclusion defeats the

assertion that fraudulent concealment tolled the relevant statute of

limitations until 2013, just as it defeated the assertion that the discovery

rule tolled the relevant statute of limitations until 2013.

      Accordingly, the trial court did not abuse its discretion in determining

that the doctrine of fraudulent concealment did not toll the relevant statute

of limitations, and granting Appellees’ motions for summary judgment.

Appellants’ final issue merits no relief.

      Judgments affirmed.

      Judge Ransom joins the memorandum.

      Justice Fitzgerald concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2017




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