J-A27023-16

____________________________________

* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: RISPERDAL LITIGATION 

JONATHAN SAKSEK 

Appellant

v.

JANSSEN PHARMACEUTICALS, INC., 

JOHNSON & JOHNSON COMPANY, 

JANSSEN RESEARCH AND 

DEVELOPMENT, LLC,

:

:

:

:

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 576 EDA 2015

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 

JOSHUA WINTER 

Appellant

v.

JANSSEN PHARMACEUTICALS, INC., 

JOHNSON & JOHNSON COMPANY, 

JANSSEN RESEARCH AND 

DEVELOPMENT, LLC,

:

:

:

:

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 590 EDA 2015

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.
J-A27023-16

- 2 -

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.merriamwebster.com/dictionary/gynecomastia (last visited August 7, 2017).
J-A27023-16

- 3 -

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.
J-A27023-16

- 4 -

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 
J-A27023-16

- 5 -

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)
J-A27023-16

- 6 -

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)
J-A27023-16

- 7 -

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. 
J-A27023-16

- 8 -

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. 
J-A27023-16

- 9 -

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 
J-A27023-16

- 10 -

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. 
J-A27023-16

- 11 -

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”); 
J-A27023-16

- 12 -

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 
J-A27023-16

- 13 -

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 
J-A27023-16

- 14 -

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. 
J-A27023-16

- 15 -

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 
J-A27023-16

- 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.”) 
J-A27023-16

- 17 -

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 
J-A27023-16

- 18 -

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
J-A27023-16

- 19 -