Photo: JB Reed/Bloomberg

Two men who started taking the antipsychotic drug Risperdal in the 1990s had no way of suspecting its link to excessive breast tissue growth they experienced—until their mothers saw TV commercials discussing the link more than a decade later—attorneys have argued to the Pennsylvania Supreme Court in an effort to expand the statute of limitations for bringing lawsuits over the drug.

Attorneys for plaintiffs Jonathan Saksek and Joshua Winter filed a brief to the Pennsylvania Supreme Court on Wednesday asking the justices to overrule a Superior Court decision that said plaintiffs should have been aware of the connection by 2006.

According to attorneys involved in the litigation, the issues raised in the cases Saksek v. Janssen and Winter v. Janssen affect more than 40 percent of the roughly 6,700-strong Risperdal docket, which has seen dramatic growth over the past few years.

The plaintiffs, both of whom sued drugmaker Janssen Pharmaceuticals in 2014 after their mothers saw a TV commercial linking Risperdal to excess growth of breast tissue, asked the justices to remand the cases back to the Philadelphia Court of Common Pleas for further proceedings.

Both of the cases had been dismissed on summary judgment after Philadelphia Court of Common Pleas Judge Arnold New, who oversees the city's Complex Litigation Center, determined that, based on the medical literature, newspaper articles and attorney advertisements, their claims began to run no later than August 2009. The Superior Court affirmed that ruling, and further determined that their claims began to accrue even earlier, saying the plaintiffs should have known about their injuries by the time that Janssen decided to change Risperdal's label in 2006.

In July, the justices agreed to take up the statute of limitations issue.

The brief, which was filed by Kline & Specter attorneys Thomas Kline and Charles “Chip” Becker, noted that the plaintiffs grew the breast tissue while they were in puberty, making it difficult for the boys to notice any link between the breast growth and the drug, rather than the common weight gain that can occur during puberty. The brief also argued that neither boy was taking the drug by 2004, so they would not have been aware of the 2006 label change.

“The October 2006 inset may have sufficed to put somebody on notice of the Risperdal-gynecomastia connection so as to cause that individual's Risperdal claims against Janssen to accrue by that date. But nothing in this record suggests that the label change sufficed to place Jonathan or Joshua on notice as a matter of law,” the brief said. “Janssen has a classic jury argument. The court should require Janssen to make that argument to a jury, and allow jurors to decide its persuasiveness.”

In an emailed statement, Kline and Becker said they were pleased the justices had agreed to take up the case.

“Judge New's decision, affirmed in non-precedential fashion by the Superior Court, time-bars plaintiffs from bringing claims concerning permanent injuries that the plaintiffs did not know they had suffered and had no reason to relate to their ingestion of Risperdal,” they said in the statement. “We are hopeful that the court will reinstate the legal rights of thousands of valid Risperdal claims.”

A spokeswoman for Janssen said the company declined to comment on the brief, but added “we will continue to defend the claims in this litigation.”