Plaintiffs suing over Risperdal side effects are asking a Pennsylvania appeals court to reverse a trial court’s decision that their claims are time-barred.

Plaintiffs Jonathan S. and Joshua W. argued that the trial judge was wrong to decide that the plaintiffs should have realized the connection between Risperdal and male breast growth by no later than 2009.

They say the date by which they should have made that connection is a question that should properly be resolved by a jury.

In January 2015, U.S. District Judge Arnold New dismissed Joshua’s claim as having been initiated too late. New found that the two-year state statute of limitations began running in 2009, when the judge was satisfied that plaintiffs had enough information available to make the connection between Risperdal and their abnormal breast development, known as gynecomastia.

Risperdal, or risperidone, is a psychiatric medication now approved by the FDA to treat schizophrenia, bipolar mania, and irritability associated with autistic disorder. Originally approved for sale in 1993 in adult patients only, Risperdal was not approved for use in juvenile patients until 2006.

The judge said that a large wave of studies published in the late 2000s concerning the risk of Risperdal gynecomastia were adequate to give Joshua notice about the link between Risperdal and gynecomastia. The information was available through “medical journal articles, print media articles, television media exposure, and lawyer advertising,” the judge said.

He noted that the labeling for Risperdal did not provide adequate information about gynecomastia until October 2006, but he also found that the labeling change was not enough to put Joshua on notice about the risk. Joshua had reported having first noticed his Risperdal side effects in 1998.

The judge then applied the same rationale in dismissing Joshua’s claim, then said he would also dismiss over 250 other Risperdal lawsuits for the same reasons. A total of about 1,500 of these Risperdal lawsuits are now pending in state court in Philadelphia.

Before the court of appeals, Joshua and Jonathan argued that while the flurry of publicity may have been enough to put someone somewhere on notice, there was no evidence in the record that that publicity was sufficient to put Jonathan and Joshua on notice in particular.

They said Judge New had incorrectly applied rulings in other cases addressing at what point in time patients taking Seroquel, Avandia and Vioxx should have become aware of the link between those drugs and their injuries. Jonathan and Joshua said that those cases involved national media coverage, while the information about Risperdal side effects was in media scattered throughout the country and buried among information concerning other drugs.

Risperdal Damage Awards

Four Risperdal lawsuits have gone to trial in Philadelphia. Two of these have ended in plaintiff’s verdicts of $2.5 million and $1.75 million, respectively. In another case, the jury found there was insufficient evidence to link Risperdal to the plaintiff’s gynecomastia.

The fourth trial ended with a $500,000 award for the plaintiff, who has since asked for a retrial on the subject of damages.

This Risperdal Litigation is pending in the Court of Common Pleas of Philadelphia County under the title In re: Risperdal Litigation.