                   [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
