Wilson v. Durrani (Slip Opinion)

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[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Wilson v. Durrani, Slip Opinion No. 2020-Ohio-6827.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
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     South Front Street, Columbus, Ohio 43215, of any typographical or other
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     the opinion is published.



                         SLIP OPINION NO. 2020-OHIO-6827
          WILSON ET AL., APPELLEES, v. DURRANI ET AL., APPELLANTS.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as Wilson v. Durrani, Slip Opinion No. 2020-Ohio-6827.]
Statutes of limitations—Statutes of repose—Saving statutes—Plaintiff may not use
        the saving statute to refile a medical claim after the statute of limitations
        has expired if the statute of repose has expired—Judgment reversed.
  (No. 2019-1560—Submitted August 5, 2020—Decided December 23, 2020.)
   APPEAL from the Court of Appeals for Hamilton County, Nos. C180194 and
                              C180196, 2019-Ohio-3880.
                               _____________________
        FRENCH, J.
        ¶ 1 This appeal asks whether a plaintiff may take advantage of Ohio’s
saving statute to refile a medical claim after the applicable one-year statute of
limitations has expired if the four-year statute of repose for medical claims has also
expired. We apply the plain and unambiguous language of the statute of repose and
answer that question in the negative.
                             SUPREME COURT OF OHIO




                        Facts and procedural background
       ¶ 2 Appellees, Robert Wilson and Mike and Amber Sand, filed
complaints against appellants, Abubakar Atiq Durrani, M.D.; his clinic, Center for
Advanced Spine Technologies, Inc.; West Chester Hospital, L.L.C.; and UC
Health, in the Hamilton County Court of Common Pleas in December 2015. The
Sands asserted claims that arose out of a spinal surgery that Dr. Durrani had
performed on Mike Sand in April 2010, and Wilson asserted claims that arose out
of spinal surgeries that Dr. Durrani had performed on him in February and April
2011. Appellees are but a few of the many plaintiffs who have filed similar
malpractice and related claims against Dr. Durrani and his clinic.
       ¶ 3 Both the Wilson complaint and the Sands complaint acknowledge that
appellees had previously filed their claims against appellants in prior actions that
were dismissed without prejudice, pursuant to Civ.R. 41(A)(1)(a), but neither
complaint provides any additional information about those actions. Nevertheless,
the parties agree that the Sands and Wilson initially filed their claims against
appellants in the Butler County Court of Common Pleas in March and April 2013
respectively and that appellees voluntarily dismissed those claims without
prejudice in late 2015—the Sands on November 25 and Wilson on December 11—
before refiling their claims in Hamilton County.
       ¶ 4 Appellants moved for judgment on the pleadings in both refiled cases,
arguing that Ohio’s medical statute of repose, R.C. 2305.113(C), barred appellees’
refiled claims because they arose out of surgeries that had been performed more
than four years before appellees refiled.      The trial court agreed and granted
appellants’ motions.
       ¶ 5 Appellees appealed to the First District Court of Appeals, where they
argued that the trial court erred by entering judgment on the pleadings in favor of
appellants, because the Ohio saving statute afforded them one year after the
voluntary dismissals of their claims in Butler County in which to refile their claims,




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notwithstanding the expiration of the statute of repose. The First District reversed
the trial court’s judgment. 2019-Ohio-3880, 145 N.E.3d 1071, ¶ 31-32, 34. It held
that appellees had timely refiled their claims pursuant to the saving statute and that
the statute of repose did not bar their refiled claims. Id. at ¶ 32.
        ¶ 6 This court accepted appellants’ discretionary appeal to address
whether the saving statute permits the refiling of actions beyond the expiration of
the medical statute of repose. See 157 Ohio St.3d 1562, 2020-Ohio-313, 138
N.E.3d 1152.
                                        Analysis
             Statutes of limitations, statutes of repose, and saving statutes
        ¶ 7 The question presented in this appeal requires us to consider the
interplay between three distinct types of statutes: (1) statutes of limitations, (2)
statutes of repose, and (3) saving statutes.
        ¶ 8 Statutes of limitations and statutes of repose share a common goal of
limiting the time during which a putative wrongdoer must be prepared to defend a
claim, but they operate differently and have distinct applications. Antoon v.
Cleveland Clinic Found., 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974,
¶ 11, citing CTS Corp. v. Waldburger, 573 U.S. 1, 7, 134 S.Ct. 2175, 189 L.Ed.2d
62 (2014).
        ¶ 9 A statute of limitations establishes “a time limit for suing in a civil
case, based on the date when the claim accrued (as when the injury occurred or was
discovered).”     Black's Law Dictionary 1707 (11th Ed.2019).             A statute of
limitations operates on the remedy, not on the existence of the cause of action itself.
Mominee v. Scherbarth, 28 Ohio St.3d 270, 290, 503 N.E.2d 717, fn. 17 (Douglas,
J., concurring). A statute of repose, on the other hand, bars “any suit that is brought
after a specified time since the defendant acted * * * even if this period ends before
the plaintiff has suffered a resulting injury.” Black’s Law Dictionary at 1707. A
statute of repose bars the claim—the right of action—itself. Treese v. Delaware,




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95 Ohio App.3d 536, 545, 642 N.E.2d 1147 (10th Dist.). The United States
Supreme Court has likened the bar imposed by a statute of repose to a discharge in
bankruptcy—as providing “a fresh start” and “embod[ying] the idea that at some
point a defendant should be able to put past events behind him.” CTS Corp. at 9.
        ¶ 10 Statutes of limitations and statutes of repose target different actors.
Id. at 8. Statutes of limitations emphasize plaintiffs’ duty to diligently prosecute
known claims. Id., citing Black’s Law Dictionary 1546 (9th Ed.2009). Statutes of
repose, on the other hand, emphasize defendants’ entitlement to be free from
liability after a legislatively determined time. Id. at 9. In light of those differences,
statutory schemes commonly pair a shorter statute of limitations with a longer
statute of repose. California Pub. Emps.’ Retirement Sys. v. ANZ Securities, Inc.,
___ U.S.____, 137 S.Ct. 2042, 2049, 198 L.Ed.2d 584 (2017). When the discovery
rule—that is, the rule that the statute of limitations runs from the discovery of
injury—governs the running of a statute of limitations, the “discovery rule gives
leeway to a plaintiff who has not yet learned of a violation, while the rule of repose
protects the defendant from an interminable threat of liability.” Id. at __, 137 S.Ct.
at 2050.
        ¶ 11 In contrast to statutes of limitations and statutes of repose, both of
which limit the time in which a plaintiff may file an action, saving statutes extend
that time. Saving statutes are remedial and are intended to provide a litigant an
adjudication on the merits. Wasyk v. Trent, 174 Ohio St. 525, 528, 191 N.E.2d 58
(1963). Generally, a saving statute will provide that “where an action timely begun
fails in some manner described in the statute, other than on the merits, another
action may be brought within a stated period from such failure.” Annotation, 6
A.L.R.3d 1043 (1966). It acts as an exception to the general bar of the statute of
limitations. Chadwick v. Barba Lou, Inc., 69 Ohio St.2d 222, 232, 431 N.E.2d 660
(1982) (Krupansky, J., concurring in part and dissenting in part).
        ¶ 12 We now turn to the specific statutes applicable here.




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      The applicable statutes: R.C. 2305.113(A), 2305.113(C), and 2305.19
          ¶ 13 The court of appeals held—and no party disputes—that appellees’
claims constitute “medical claims” as defined in R.C. 2305.113(E)(3). 2019-Ohio-
3880, 145 N.E.3d 1071, ¶ 19. R.C. 2305.113 sets out both a one-year statute of
limitations, R.C. 2305.113(A), and a four-year statute of repose, R.C. 2305.113(C),
that apply to medical claims in Ohio.
          ¶ 14 R.C. 2305.113(A) states, “Except as otherwise provided in this
section, an action upon a medical * * * claim shall be commenced within one year
after the cause of action accrued.” A claim for medical malpractice accrues, and
the one-year statute of limitations begins to run, “(a) when the patient discovers, or
in the exercise of reasonable care and diligence should have discovered, the
resulting injury, or (b) when the physician-patient relationship for that condition
terminates, whichever occurs later.” Frysinger v. Leech, 32 Ohio St.3d 38, 512
N.E.2d 337 (1987), paragraph one of the syllabus.
          ¶ 15 R.C. 2305.113(C) sets out Ohio’s statute of repose for medical
claims:


                 Except as to persons within the age of minority or of
          unsound mind as provided by section 2305.16 of the Revised Code,
          and except as provided in division (D) of this section, both of the
          following apply:
          (1) No action upon a medical * * * claim shall be commenced more
          than four years after the occurrence of the act or omission
          constituting the alleged basis of the medical * * * claim.
          (2) If an action upon a medical * * * claim is not commenced within
          four years after the occurrence of the act or omission constituting
          the alleged basis of the medical * * *claim, then, any action upon
          that claim is barred.




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       ¶ 16 R.C. 2305.113(C) “exists to give medical providers certainty with
respect to the time within which a claim can be brought and a time after which they
may be free from the fear of litigation.” Ruther v. Kaiser, 134 Ohio St.3d 408,
2012-Ohio-5686, 983 N.E.2d 291, ¶ 19. It is a “true statute of repose that applies
to both vested and nonvested claims. Therefore, any medical-malpractice action
must be filed within four years of the occurrence of the act or omission alleged to
have caused a plaintiff’s injury.” Antoon, 148 Ohio St.3d 483, 2016-Ohio-7432,
71 N.E.3d 974, at ¶ 1.
       ¶ 17 Finally, the relevant saving statute is R.C. 2305.19(A), which
provides:


               In any action that is commenced or attempted to be
       commenced, * * * if the plaintiff fails otherwise than upon the
       merits, the plaintiff * * * may commence a new action within one
       year after the date of * * * the plaintiff’s failure otherwise than upon
       the merits or within the period of the original applicable statute of
       limitations, whichever occurs later.


       ¶ 18 R.C. 2305.19(A) neither operates as a statute of limitations nor
operates to toll the statute of limitations. Lewis v. Connor, 21 Ohio St.3d 1, 4, 487
N.E.2d 285 (1985), citing Reese v. Ohio State Univ. Hosp., 6 Ohio St.3d 162, 163,
451 N.E.2d 1196 (1983). Rather, it provides a plaintiff with a limited period of
time in which to refile a dismissed claim by commencing a new action that would
otherwise be barred by the statute of limitations. Internatl. Periodical Distrib. v.
Bizmart, Inc., 95 Ohio St.3d 452, 2002-Ohio-2488, 768 N.E.2d 1167, ¶ 7.




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     Unless the saving statute applies as an exception to the statute of repose,
                     appellees’ refiled claims are time-barred
       ¶ 19 As applicable here, R.C. 2305.113(C) requires plaintiffs to have filed
their medical claims within four years of the occurrence of the acts or omissions
that allegedly caused their injuries. Those acts or omissions are alleged to have
occurred in April 2010 and February and April 2011, when Dr. Durrani operated
on Mike Sand and Wilson.
       ¶ 20 Appellees initially filed complaints in Butler County within four
years of appellants’ alleged acts or omissions, but they voluntarily dismissed those
complaints without prejudice.       A dismissal without prejudice “gives to the
complaining party the right to state a new case, if he can. But it takes away no right
of defense to such suit save that which might be based on the bar of the first action.”
DeVille Photography, Inc. v. Bowers, 169 Ohio St. 267, 272, 159 N.E.2d 443
(1959). “A dismissal without prejudice leaves the parties as if no action had been
brought at all.” Id. When a complaint has been dismissed without prejudice, the
action “is deemed to never have existed.” Antoon, 148 Ohio St.3d 483, 2016-Ohio-
7432, 71 N.E.3d 974, at ¶ 24, citing DeVille Photography, Inc. at 272.
       ¶ 21 In Antoon, we rejected an argument that the initial filing of a medical
claim commences suit and indefinitely suspends the running of the statute of repose,
regardless of a subsequent dismissal without prejudice. Id. at ¶ 24. There, the
plaintiffs had originally filed medical-malpractice claims within the repose period,
but they had voluntarily dismissed those claims without prejudice. We held that
their action on their malpractice claims commenced, for purposes of the statute of
repose, only when they refiled their claims, after the four-year repose period had
expired. Id.
       ¶ 22 The only notable, relevant difference between this appeal and
Antoon is that plaintiffs here refiled their claims by commencing new actions—
purportedly pursuant to the saving statute—within one year of their voluntary




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dismissals without prejudice. Unless R.C. 2305.19 operates as an exception to the
statute of repose, appellees’ refiled claims, like the claims in Antoon, are time-
barred.
       R.C. 2305.19(A) does not create an exception to the statute of repose
          ¶ 23 Appellees contend that, having voluntarily dismissed their claims in
Butler County pursuant to Civ.R. 41(A) and having thus failed otherwise than on
the merits, see Frysinger, 32 Ohio St.3d 38, 512 N.E.2d 337, at paragraph two of
the syllabus, they were entitled to refile those claims within one year, pursuant to
R.C. 2305.19(A). Appellants do not dispute that the saving statute acts as an
exception to a statute-of-limitations defense to appellees’ refiled claims, but they
maintain that it does not also serve as an exception to the statute of repose.
          ¶ 24 This court acknowledged but declined to decide in Antoon whether
the saving statute, if properly invoked, may allow the refiling of an action beyond
the expiration of the statute of repose. 148 Ohio St.3d 483, 2016-Ohio-7432, 71
N.E.3d 974, at ¶ 30. To answer that question now, we first turn to the language of
R.C. 2305.113(C)(1), which clearly and unambiguously states, “No action upon a
medical claim * * * shall be commenced more than four years after the occurrence
of the act or omission constituting the alleged basis for” the claim.            R.C.
2305.113(C) “means what it says. If a lawsuit bringing a medical * * * claim is not
commenced within four years after the occurrence of the act or omission
constituting the basis for the claim, then any action upon that claim is barred.”
Antoon, 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974, at ¶ 23. We must
apply clear and unambiguous statutory language as the General Assembly wrote it.
Ohio Neighborhood Fin., Inc. v. Scott, 139 Ohio St.3d 536, 2014-Ohio-2440, 13
N.E.3d 1115, ¶ 23.
          ¶ 25 We have already rejected the argument that commencement of a
medical claim within the four-year repose period satisfies the statute of repose once
and for all, irrespective of a later voluntary dismissal. See Antoon, at ¶ 24 (“We




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reject the Antoons’ assertion that filing then dismissing a claim will indefinitely
suspend the statute of repose by ‘commencing’ the suit on the date of the first
filing”). But appellees also argue that by refiling their claims within one year of
the voluntary dismissal of their Butler County claims, the new actions relate back
to the dates they initially filed their Butler County claims for purposes of the statute
of repose. We disagree.
        ¶ 26 Frysinger does state:


                Where R.C. 2305.19 applies, the date for filing the new
        action relates back to the filing date for the preceding action for
        limitations purposes. Lewis v. Connor (1985), 21 Ohio St.3d 1, 4,
        21 OBR 266, 268, 487 N.E.2d 285, 287; Reese v. Ohio State Univ.
        Hosp. (1983), 6 Ohio St.3d 162, 163-164, 6 OBR 221, 222-223, 451
        N.E.2d 1196, 1198.


        ¶ 27 32 Ohio St.3d at 42, 512 N.E.2d 337. Neither Lewis nor Reese,
however, actually describes a claim refiled pursuant to the saving statue as relating
back to the date of the prior action. Moreover, our statement in Frysinger about a
refiled action relating back was dicta. See Vogel v. Northeast Ohio Media Group,
L.L.C., 9th Dist. Medina No. 19CA0003-M, 2020-Ohio-854, ¶ 13. The questions
presented in Frysinger were when a cause of action for medical malpractice accrues
and whether a voluntary dismissal pursuant to Civ.R. 41(A)(1) constitutes a failure
otherwise than on the merits. The statement about relation back was of no
consequence to our determination of those issues, and we are not obligated to give
it binding effect. See Cosgrove v. Williamsburg of Cincinnati Mgt. Co., Inc., 70
Ohio St.3d 281, 284, 638 N.E.2d 991 (1994) (plurality).
        ¶ 28 As the Ninth District recognized in Vogel, our more recent
characterization of the saving statute in Internatl. Periodical Distribs., 95 Ohio




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St.3d 452, 2002-Ohio-2488, 768 N.E.2d 1167, at ¶ 7, is more consistent with the
text of R.C. 2305.19. There, we stated, “Savings statutes operate to give a plaintiff
a limited period of time in which to refile a dismissed claim that would otherwise
be time-barred.” That characterization is also consistent with our precedent that an
action that has been dismissed without prejudice is deemed to never have existed.
Antoon, 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974, at ¶ 24. The saving
statute anticipates the commencement of a new action, not the reactivation of the
prior action, and it says nothing about the new action relating back to the filing date
of the prior action. See id. In fact, because the saving statute specifically permits
the refiling of an action beyond the expiration of the statute of limitations, so long
as the refiling occurs within one year of a failure of the prior action otherwise than
on the merits, there is no need for the refiled complaint to relate back.
       ¶ 29 In light of the purpose of a statute of repose—to create a bar on a
defendant’s temporal liability—exceptions to a statute of repose require “a
particular indication that the legislature did not intend the statute to provide
complete repose but instead anticipated the extension of the statutory period under
certain circumstances,” as when the statute of repose itself contains an express
exception. California Pub. Emps.’ Retirement Sys., ___ U.S. at ____, 137 S.Ct. at
2050, 198 L.Ed. 584. The General Assembly did incorporate into R.C. 2305.113(C)
two express exceptions. First, the statute of repose is tolled “as to persons within
the age of minority or of unsound mind as provided in” R.C. 2305.16. Second, R.C.
2305.113(D) extends the four-year repose period for two specific categories of
claims: (1) those that accrue in the last year of the repose period, R.C.
2305.113(D)(1), and (2) those based upon a foreign object left in a patient’s body.
R.C. 2305.113(D)(2). R.C. 2305.113(C) notably does not contain an exception for
application of the saving statute, and we may not read one into the statute by
implication. Unless one of the stated exceptions applies, R.C. 2305.113(C) clearly




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and unambiguously prohibits the commencement of any action upon a medical
claim more than four years after the act or omission upon which the claim is based.
        ¶ 30 The absence of an express exception in R.C. 2305.113(C) for
application of the saving statute takes on additional import when we compare R.C.
2305.113(C) with R.C. 2305.10(C), which imposes a ten-year statute of repose for
product-liability claims, and unlike R.C. 2305.113(C), expressly states that it
applies “[e]xcept as otherwise provided in” R.C. 2305.19, the saving statute. In the
same bill in which it enacted R.C. 2305.10(C), with its express inclusion of the
saving statute, the General Assembly also enacted R.C. 2305.131, which created a
statute of repose for premises-liability and construction-defect claims.        2004
Am.Sub.S.B. No. 80, 150 Ohio Laws, Part V, 7915, 7937-7938. The General
Assembly did not include the saving statute as an express exception to application
of the premises-liability and construction-defect statute of repose. Nor did it take
the opportunity to incorporate the saving statute as an express exception to the
medical statute of repose, even though it made other minor amendments to R.C.
2305.113 in that bill. Id. at 7933, 7936-7937. The “General Assembly’s use of
particular language to modify one part of a statute but not another part demonstrates
that the General Assembly knows how to make that modification and has chosen
not to make that modification in the latter part of the statute.” Hulsmeyer v. Hospice
of Southwest Ohio, Inc., 142 Ohio St.3d 236, 2014-Ohio-5511, 29 N.E.3d 903,
¶ 26.
        ¶ 31 Not only does the General Assembly’s incorporation of the saving
statute in the product-liability statute, R.C. 2305.10(C), demonstrate that the
General Assembly knew how to create an exception to a statute of repose for
application of the saving statute when it intended to do so, but it also demonstrates
the General Assembly’s understanding that without an express indication to the
contrary, the saving statute would not override the statutes of repose. Otherwise,




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there would have been no need for the General Assembly to have expressly
included the saving statute as an exception in R.C. 2305.10(C).
       ¶ 32 Nearly 35 years ago, the Tenth District Court of Appeals held that a
prior version of the medical statute of repose did not preclude application of the
saving statute to permit the refiling of a medical claim beyond the repose period.
Wade v. Reynolds, 34 Ohio App.3d 61, 61-62, 517 N.E.2d 227 (10th Dist.1986).
But the version of the statute of repose at issue in Wade differed appreciably from
the current statute. The prior version of the statute of repose applied to “ ‘all
persons regardless of legal disability and notwithstanding section 2305.16 of the
Revised Code.’ ” Id. at 61, quoting former R.C. 2305.11(B), 1976 Am.H.B. No.
1426, 136 Ohio Laws, Part II, 3840, 3841. That is, R.C. 2305.16—a statutory
provision that would otherwise have tolled the running of limitations periods based
on a plaintiff’s youth or legal disability—did not extend the repose period. Because
the version of the statute of repose at issue in Wade expressly excluded only
application of R.C. 2305.16 and did not expressly exclude application of the saving
statute, the Tenth District reasoned that the saving statute applied to the statute of
repose. Id.
       ¶ 33 While appellees cite Wade in support of their position that the saving
statute operates as an exception to the statute of repose, the Tenth District’s
reasoning in Wade actually supports appellants’ contrary position.               R.C.
2305.113(C) now expressly provides for tolling of the statute of repose under R.C.
2305.16 when a claimant is a minor or of unsound mind, while not providing for
application of any other statutory provisions that would toll or extend statutory time
periods.   Because the statute of repose now expressly incorporates only one
statutory exception, other statutes that extend the time in which to bring an action
must necessarily be excluded.
       ¶ 34 The Federal District Court for the Southern District of Ohio—in
another case against Dr. Durrani—recently held, contrary to our holding today, that




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Ohio’s medical statute of repose does not bar medical claims that have been refiled,
pursuant to R.C. 2305.19, more than four years after the occurrence of the
defendants’ alleged conduct. Atwood v. UC Health, S.D.Ohio No. 1:16cv593, 2018
WL 3956766, * 8 (Aug. 17, 2018). The district court was persuaded in part by
Hinkle v. Henderson, 85 F.3d 298 (7th Cir.1996), in which the Seventh Circuit held
that Illinois’s saving statute permitted a plaintiff to refile a voluntarily dismissed
claim within one year of the dismissal even if the refiling occurred after the
expiration of the statute of repose. Atwood at * 8.
       ¶ 35 The Illinois saving statute differs from the Ohio saving statute; it
provided: “ ‘where the time for commencing an action is limited, if * * * the action
is voluntarily dismissed * * *, the plaintiff * * * may commence a new action within
one year or within the remaining period of limitation, whichever is greater.’ ”
Hinkle at 300, quoting 735 Ill.Stat.Ann. 5/13-217. The Seventh Circuit stated, “The
savings statute expressly applies to cases ‘where the time for commencing an action
is limited,’ which on its face includes both statutes of limitations and statutes of
repose.” Id. at 302, quoting 735 Ill.Stat.Ann. 5/13-217. Likewise, the statute’s use
of the phrase “within the remaining period of limitation” reasonably encompasses
not only the statute of limitations, but also the statute of repose. Id. R.C.
2305.19(A), in contrast, refers exclusively to the “statute of limitations.” Where
the Illinois saving statute, on its face, broadly applied when “the time for
commencing an action is limited,” id., including by a statute of repose, the court
held that “emphasizing the inherent differences” between statutes of limitations and
statutes of repose “beg[ged] the question.” Hinkle at 302. The Ohio saving statute,
however, does not contain this same broad language.
       ¶ 36 The Seventh Circuit ultimately turned to a comparison of the
legislative policy purposes behind the statute of repose and the saving statue. It
noted that the legislature had enacted the medical statute of repose in response to a
perceived medical-malpractice-insurance crisis and to mitigate the effects of the




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discovery rule. Id. at 301. It stated that the statute of repose embodied two related
purposes: “to prevent indefinite potential liability for a particular act or omission
[and] to afford defendants (and insurance companies) greater certainty in predicting
potential liability.” Id. at 302. It concluded that application of the saving statute,
which provided only a year in which to refile a dismissed claim, did not create
“indefinite potential liability” and that, except in the rare case in which the
defendant was unaware of the first action, application of the saving statute would
not affect defendants’ and insurers’ certainty in predicting potential liability. Id. at
303. Thus, the court determined that application of the saving statute would not
frustrate the purposes of the statute of repose.
        ¶ 37 In light of the absence of an express incorporation of the Ohio saving
statute as an exception in the medical statute of repose, the General Assembly’s
express incorporation of the saving statute as an exception to another statute of
repose in R.C. Chapter 2305, and the general character of statutes of repose as
providing an absolute temporal limit on a defendant’s potential liability, we are
unpersuaded by the Seventh Circuit’s analysis in Hinkle. But even were we
persuaded by the Seventh Circuit that, as a policy matter, application of the saving
statute to afford a claimant a limited time to refile a medical claim beyond the
expiration of the statute of repose would not impair the underlying purpose of the
statute of repose, that is a call for the legislature, not this court. See Groch v. Gen.
Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 212 (“It is
not this court’s role to establish legislative policies or to second guess the General
Assembly’s policy choices”).
                                     Conclusion
        ¶ 38 R.C. 2305.113(C) is a true statute of repose that, except as expressly
stated in R.C. 2305.113(C) and (D), clearly and unambiguously precludes the
commencement of a medical claim more than four years after the occurrence of the
alleged act or omission that forms the basis of the claim. Expiration of the statute




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of repose precludes the commencement, pursuant to the saving statute, of a claim
that has previously failed otherwise than on the merits in a prior action. Had the
General Assembly intended the saving statute to provide an extension of the
medical statute of repose, it would have expressly said so in R.C. 2305.113(C), as
it did in the R.C. 2305.10(C), the statute of repose that governs product-liability
claims.
          ¶ 39 For these reasons, we reverse the judgment of the First District Court
of Appeals. Because appellees commenced their actions in Hamilton County more
than four years after the alleged conduct that formed the basis of their claims, the
statute of repose barred appellees’ refiled actions. Accordingly, the trial court
appropriately granted appellants’ motion for judgment on the pleadings.
                                                                   Judgment reversed.
          O’CONNOR, C.J., and KENNEDY, GWIN, and KLATT, JJ., concur.
          STEWART, J., dissents, with an opinion joined by DONNELLY, J.
          W. SCOTT GWIN, J., of the Fifth District Court of Appeals, sitting for
FISCHER, J.
          WILLIAM A. KLATT, J., of the Tenth District Court of Appeals, sitting for
DEWINE, J.
                                 _________________
          STEWART, J., dissenting.
          ¶ 40 I disagree with most of the majority opinion’s analysis and its
conclusion that R.C. 2305.19 does not apply to save a medical-malpractice claim
recommenced outside the four-year statute of repose contained in R.C.
2305.113(C). I therefore dissent.
               Problems with the majority opinion’s textual analysis
          ¶ 41 According to the majority opinion, the only exceptions to the four-
year period of repose on medical-malpractice claims are those exceptions expressly
referred to in R.C. 2305.113(C). One of these exceptions tolls the statute of repose




                                           15
                             SUPREME COURT OF OHIO




for persons within the age of minority or of unsound mind when the action accrues.
Another grants a plaintiff an additional year to commence an action from the date
he discovers his injury provided that the injury is discovered in the final year of the
repose period. The final exception provides a plaintiff with one year to commence
an action from the date he discovers or should have discovered a foreign object left
in his body. The majority asserts that the legislature’s express inclusion of these
exceptions must mean that no other exception applies or possibly could apply.
Majority opinion at ¶ 30.
       ¶ 42 There are two problems apparent in this conclusion. First, if the
majority is correct that the express exceptions referred to in R.C. 2305.113(C)
indicate the legislature’s intent to preclude application of R.C. 2305.19, the saving
statute, when the four-year statute of repose has expired, then we would also have
to find that the language in R.C. 2305.113(A) similarly precludes application of
R.C. 2305.19 after the one-year statute of limitations has expired.               R.C.
2305.113(A), which sets forth the general statute of limitations for medical-
malpractice claims, states: “Except as otherwise provided in this section, an action
upon a medical, dental, optometric, or chiropractic claim shall be commenced
within one year after the cause of action accrued.” (Emphases added.) R.C.
2305.113(B) goes on to provide an exception to the one-year limitation period
contained in R.C. 2305.113(A) by explaining that the period of limitation can be
extended by up to 180 days if the plaintiff gives written notice to the defendant
within the one-year limitations period that he intends to bring a claim. R.C.
2305.113(A), exactly like R.C. 2305.113(C), includes an express exception to the
general rule that commencement of the action outside the specified time-frame is
prohibited. Thus, if we follow the majority opinion’s reasoning that such an
exception is an indication that no other exceptions apply, then R.C. 2305.19 cannot
apply to save a claim recommenced outside the one-year statute of limitations
described in R.C. 2305.113(A). But the majority departs from its own logic when




                                          16
                                January Term, 2020




it reaffirms this court’s longstanding holding that, if properly invoked, R.C.
2305.19 does apply to save an action recommenced outside the limitations period
of the medical-malpractice statute of limitations. Majority opinion at ¶ 14. If the
majority insists upon such rigid reliance on the existence of exceptions within R.C.
2305.113(C) as the basis for its holding today, it needs also to explain why that
same reasoning does not apply to R.C. 2305.113(A). This would be no small feat.
       ¶ 43 The second problem with the majority opinion’s textual analysis is
that it wrongly assumes that if found to apply to this case or others like it, R.C.
2305.19 would operate as an exception to the requirement that an action be
commenced within the four-year repose period contained in R.C. 2305.113(C).
Majority opinion at ¶ 16. This allows the majority to conclude that the absence of
R.C. 2305.19 from R.C. 2305.113(C) as an explicit exception to the general rule
regarding the statute of repose implies legislative intent to exclude its application
when the repose period has expired. Majority opinion at ¶ 31. But it does not
follow that because R.C. 2305.19 provides an additional year to recommence an
action, the statute abrogates the general rule that a medical-malpractice action must
be commenced within four years of the act or omission giving rise to the claim.
What is unique about R.C. 2305.19, compared to the express exceptions listed in
R.C. 2305.113(C), is that it requires that an action have been timely commenced
for its saving provision to have any effect. See Moore v. Mount Carmel Health
Sys., __ Ohio St.3d __, 2020-Ohio-4113, __ N.E.3d __, ¶ 2. Indeed, it is only when
an action is timely commenced, and fails otherwise than on the merits, that R.C.
2305.19 can save an action that would otherwise be time-barred. See id. at ¶ 30. In
contrast, the three exceptions listed in R.C. 2305.113(C) operate as true exceptions
to the general four-year period of repose by either tolling the time to commence an
action or adding additional time to commence an action. These exceptions also
evince a legislative understanding that because of disability or delayed discovery,
see R.C. 2305.113(C), citing R.C. 2305.16 and 2305.113(D), the plaintiff will likely




                                         17
                                   SUPREME COURT OF OHIO




be unable to commence an action within the four-year repose period—hence the
need for tolling or additional time modifications to the general rule. The same is
not true for R.C. 2305.19, which anticipates a timely original filing.
         ¶ 44 For these reasons, and for others I discuss below, it seems clear that
the legislature does not view R.C. 2305.19 as an exception to either the statute of
limitations or the statute of repose. Instead, the function of R.C. 2305.19 is that of
a limited, but freestanding remedial statute that separately and concomitantly
upholds both limitation provisions, and thus operates on equal footing and in
conjunction with those provisions to save an action that previously had been timely
commenced. As such, there was no need for the legislature to include it as “an
exception” to R.C. 2305.113(C).1


1. I am not convinced, though the majority seems to be, majority opinion at ¶ 30, that the legislature’s
inclusion of R.C. 2305.19 as an express exception to the ten-year repose period in R.C. 2305.10(C)
means that it intended R.C. 2305.19 to not apply to other statutes of repose unless also explicitly
excepted.
         To begin, the inclusion of R.C. 2305.19 as an express exception to R.C. 2305.10(C)(1)
makes little sense when you look at the language of the statute:

                   Except as otherwise provided in divisions (C)(2), (3), (4), (5), (6), and
         (7) of this section or in section 2305.19 of the Revised Code, no cause of action
         based on a product liability claim shall accrue against the manufacturer or
         supplier of a product later than ten years from the date that the product was
         delivered to its first purchaser * * *.

(Emphasis added.) R.C. 2305.10(C)(1). This repose statute focuses on the date of accrual. A cause
of action “accrues” on the date of injury or discovery of the injury. Majority opinion at ¶ 9. R.C.
2305.19 has nothing to do with whether a cause of action accrues. Instead, R.C. 2305.19 saves
previously commenced lawsuits on causes of action that have already accrued. With this in mind,
the portion of R.C. 2305.10(C)(1) quoted above becomes baffling: how would a saving statute have
any effect on when a cause of action accrues? Maybe the majority can explain it, but I cannot.
          It is worth noting too that 2004 Am.Sub.S.B. No. 80, as originally introduced and voted on
by the Senate, did not include any reference to R.C. 2305.19 in R.C. 2305.10(C)(1). See 125th
General Assembly Regular Session 2003-2004, Sub.S.B. No. 80 As Passed by the Senate,
http://archives.legislature.state.oh.us/bills.cfm?ID=125_SB_80_PS (accessed Dec. 18, 2020)
[https://perma.cc/9H77-LLE4]. This language was added at some point after the bill moved to the
House and there is no explanation in the legislative record as to why it was added—although the
record does contain explanations for almost all other additions. See 125th General Assembly
Regular Session 2003-2004, Am.Sub.S.B. No. 80 As Passed by the House of Representatives
http://archives.legislature.state.oh.us/bills.cfm?ID=125_SB_80_PH (accessed Dec. 18, 2020)




                                                  18
                                      January Term, 2020




This court’s case law in conjunction with the history and purpose of R.C. 2305.19
   and 2305.113(C) supports the conclusion that the saving statute applies even
                       when the statutory repose period has expired
         ¶ 45 We explained how the saving statute worked over 30 years ago in
Frysinger v. Leech: “Where R.C. 2305.19 applies, the date for filing the new action
relates back to the filing date for the preceding action for limitations purposes.” 32
Ohio St.3d 38, 42, 512 N.E.2d 337 (1987). Between then and now, we have never
once questioned our analysis in that case, nor has the legislature indicated any
disagreement with it—likely because it is straightforward and makes sense. Our
analysis of R.C. 2305.19’s “relation back” properties has been widely adopted and
used by the appellate courts in many decisions over the decades.2 It has withstood


[https://perma.cc/PT5H-RB86];          Synopsis       of     House        Committee       Amendments,
https://www.lsc.ohio.gov/documents/gaDocuments/synopsis125/s0080-125.pdf (accessed Dec. 18,
2020) [https://perma.cc/5N3D-B742]. The Senate voted on the amended bill—which, by the way,
contained extensive tort-reform legislation—on December 9, 2004, during a lame-duck, special
session. See Ohio Senate Session held on December 18, 2004, consideration of Am.Sub.S.B. No.
80 at 00:12:59-00:35:10 and 00:51:28-00:53:20, https://ohiochannel.org/video/ohio-senate-session-
part-7 (accessed Dec. 18, 2020) [https://perma.cc/B3UM-3QFH]. During the Senate floor debates,
one senator expressed concern that he had only just received a copy of the amended bill a few hours
earlier and was expected to vote on it without reading it. See id.
          Given all this, and considering too how a R.C. 2305.19 exception in R.C. 2305.10(C) does
not seem to fit, the majority is overconfident in its position that the inclusion of R.C. 2305.19 as an
express exception to R.C. 2305.10(C) shows some sort of legislative intent that R.C. 2305.19 does
not apply to statutes of repose unless expressly noted. After all, this just might be a legislative
oversight or drafting error. Either conclusion makes at least as much sense as the majority’s reading
but requires less reliance on assumptions and inferences.

2. The First, Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth District Courts of Appeals have
explicitly relied on Frysinger’s relation-back language when resolving questions related to R.C.
2305.19. See U.S. Bank Natl. Assn. v. Broadnax, 1st Dist. Hamilton No. C-180650, 2019-Ohio-
5212, ¶ 12; Mihalcin v. Hocking College, 4th Dist. Athens No. 99CA32, 2000 Ohio App. LEXIS
1188, *15 (Mar. 20, 2000); Johnson v. Stachel, 2020-Ohio-3015, 154 N.E.3d 577, ¶ 23 (5th Dist.);
Topazio v. Acme Co., 186 Ohio App.3d 377, 2010-Ohio-1002, 928 N.E.2d 469, ¶ 20 (7th Dist.);
Vaught v. Pollack, 8th Dist. Cuyahoga No. 103819, 2016-Ohio-4963, ¶ 17; Byers v. Robinson, 10th
Dist. Franklin No. 08AP-204, 2008-Ohio-4833, ¶ 43 (French, J., concurring); Johnson v. H & M
Auto Serv., 10th Dist. Franklin No. 07AP-123, 2007-Ohio-5794, ¶ 8 (French and Klatt, JJ.,
concurring); Thompson v. Ohio State Univ. Hosps., 10th Dist. Franklin No. 06AP-1117, 2007-Ohio-
4668, ¶ 24 (majority opinion of French, J.).




                                                  19
                                SUPREME COURT OF OHIO




the test of time and offered an easy-to-understand and logical explanation of how a
second action could ever be considered “timely” when filed outside of the express
timing limitations for commencement of an action. Nevertheless, the majority
opinion now repudiates our relation-back analysis as nothing more than ill-
considered dicta. Majority opinion at ¶ 27.
        ¶ 46 Why the majority does this is clear. If it cannot distinguish away
Frysinger’s analysis, then the present case must be decided in favor of upholding
the recommenced actions as properly commenced within the four-year statute of
repose. And so what the majority does is masticate Frysinger into a paste, spitting
it out in unrecognizable, and safely ignorable, form.
        ¶ 47 For instance, the majority opinion points out that R.C. 2305.19 does
not say that the recommenced action relates back to the date of the prior
commencement; it finds that the relation-back analysis does not follow from the
cases cited as support; it argues that a more recent decision from this court
characterizes R.C. 2305.19 differently; and it argues that the relation-back analysis
is inconsistent with our precedent that an action dismissed without prejudice is
deemed to never have existed.3 Majority opinion at ¶ 20. But in doing all this, it is

3. None of these arguments is sound. To begin, it is not at all clear that the relation-back
analysis in Frysinger is dicta. Although the specific issue before the court was whether a
voluntary dismissal under Civ.R. 41(A) counted as a “failure otherwise than on the merits”
within the meaning of R.C. 2305.19, the more general and overarching questions were whether
the plaintiff’s original action was timely commenced and whether the second action could be
considered timely commenced based on the first. See id., 32 Ohio St.3d at 39, 512 N.E.2d
337. The court’s interpretation of R.C. 2305.19 assisted in answering those questions.
Furthermore, for a court to decide whether a particular statute applies, it has to have an
understanding of how it applies. The statements regarding relation back ultimately reflect the
court’s understanding of how the statute applied.
         The court’s relation-back analysis in Frysinger also is not at odds with the two cases
used to support it, Lewis v. Connor, 21 Ohio St.3d 1, 4, 487 N.E.2d 285 (1985), and Reese v.
Ohio State Univ. Hosp., 6 Ohio St.3d 162, 163, 451 N.E.2d 1196 (1983). In fact, the relation-
back concept dovetails nicely with the description of the statute in both decisions. It is also
worth noting that these three decisions, which were decided within only a few years of each
other, were decided by a court composed of essentially the same justices. So perhaps we
should take heed when in Frysinger, those justices expounded on what was meant by their
earlier analyses in Lewis and Reese.




                                              20
                                      January Term, 2020




curious that the majority—which otherwise focuses so closely on the language of
R.C. 2305.113(C) and 2305.19 and what intent it implies—never stops to consider


         In a similar vein, the relation back-analysis is not at odds with our more recent
characterization of saving statutes in Internatl. Periodical Distribs. v. Bizmart, Inc., 95 Ohio
St.3d 452, 2002-Ohio-2488, 768 N.E.2d 1167, ¶ 7. To say as we did in that decision that
“savings statutes operate to give a plaintiff a limited period of time in which to refile a dismissed
claim that would otherwise be time-barred,” id. at ¶ 7, in no way nullifies the relation-back concept.
In fact, one could easily tag Frysinger’s analysis onto the end of our more recent analysis in
Internatl. Periodical and end up with a single, cohesive interpretative statement that is supported
by both decisions. Case in point: “saving statutes operate to give a plaintiff a limited period of time
in which to refile a dismissed claim that would otherwise be time-barred by permitting the refiled
complaint to relate back to the date the complaint was filed in the prior action.”
         The majority’s reliance on Internatl. Periodical’s interpretation of R.C. 2305.19 over
Frysinger’s is flawed for yet another reason. The issue before the court in Internatl. Periodical
was which saving statute should apply—the general saving statute, R.C. 2305.19, which gives
a plaintiff a year to refile, or the Uniform Commercial Code saving provision found in R.C.
1302.98(C), which gives a plaintiff six months. Internatl. Periodical at ¶ 6. The specific
question how either statute applied was not before the court. If we follow the majority
opinion’s reasoning for labeling the relation-back analysis in Frysinger dicta, the
characterization of R.C. 2305.19 in Internatl. Periodical must also be dicta. Majority opinion
at ¶ 27. By its own logic then, the majority is simply swapping dicta for dicta.
         The majority opinion also distinguishes Frysinger’s analysis as being inconsistent
with this court’s statement in Antoon v. Cleveland Clinic, 148 Ohio St.3d 483, 2016-Ohio-
7432, 71 N.E.3d 974, ¶ 24, that an action that has been dismissed without prejudice is deemed
to never have existed. Majority opinion at ¶ 28. [Majority at p. 15:8-10] The implication is,
presumably, that a recommenced action cannot relate back to the date of a previously
commenced action that has been dismissed, because the previous action does not exist and
never did exist. This is just wrong. What was stated in DeVille Photography, Inc. v. Bowers—
the case on which this court relied for its statement in Antoon—is that “[a] dismissal without
prejudice leaves the parties as if no action had been brought at all.” 169 Ohio St. 267, 272, 159
N.E.2d 443 (1959). Importantly, the question before the court in Deville was whether an
interlocutory judgment, entered by a court prior to the plaintiff’s voluntary dismissal of the
action, still had effect after the dismissal. See id. at 269. We answered that question in the
negative on several grounds, one being that once a case is voluntarily dismissed, the parties
go back to the position they were in before the action was commenced. See id. at 272-273.
Nothing in Deville suggests that as a metaphysical matter a dismissed action completely ceases
to exist altogether. Indeed, court records would confirm its existence. What the majority
seems not to realize is that by going down a path that upholds the incorrect notion that a
voluntarily dismissed action “never existed,” the saving statute fails to have any meaning or
application. The reason for this is that the saving statute relies on the existence of a previously
filed action. See R.C. 2305.19(A).
         Lastly, the fact that R.C. 2305.19 fails to mention anything about relation-back hardly
means that is not how it works. Indeed, recently this court has used relation-back concepts to
explain how other similarly worded statutes and rules relate to each other. See Moore, __
Ohio St.3d __, 2020-Ohio-4113, __ N.E.3d __, at ¶ 14-16.




                                                  21
                                   SUPREME COURT OF OHIO




what, if any, effect our statements in Frysinger have had on the legislature’s
wording of either statute. This consideration is at least as important as anything
else the majority opinion discusses because the General Assembly legislates against
the backdrop of judicial decisions and is presumed to have full knowledge of our
interpretation of statutes. Wayt v. DHSC, L.L.C., 155 Ohio St. 3d 401, 2018-Ohio-
4822, 122 N.E.3d 92, ¶ 23, citing State ex rel. Huron Cty. Bd. of Edn. v. Howard,
167 Ohio St. 93, 96, 146 N.E.2d 604 (1957). Regardless of whether we were right
or wrong, or whether what we said was dicta or not, there can be no disagreement
that in Frysinger, we interpreted the saving statute when we explained how it
functions within the greater context of statutory timing requirements in R.C.
Chapter 2305 for commencement of actions. Accordingly, what we said in that
decision matters here.
         ¶ 48 Since our decision in Frysinger, the legislature has shown no sign of
moving to supersede our judicial interpretation of R.C. 2305.19. In fact, the statute
remains in substantially the same form as it was then, the only difference being an
expansion of the time a plaintiff has to refile.4 As for the statute of repose, the

4. The version of the saving statute in effect when we decided Frysinger stated:

                  In an action commenced, or attempted to be commenced, if in due time
         a judgment for the plaintiff is reversed, or if the plaintiff fails otherwise than upon
         the merits, and the time limited for the commencement of such action at the date
         of reversal or failure has expired, the plaintiff * * * may commence a new action
         within one year after such date.

Former R.C. 2305.19(A), G.C. 11233. Notably, the statutory language included the phrase “time
limited for the commencement.” This language is nearly identical to language that the majority
agrees “reasonably encompasses not only the statute of limitations, but also the statute of repose.”
Majority opinion at ¶ 35.
         R.C. 2305.19(A) now states:

                   In any action that is commenced or attempted to be commenced, if in due
         time a judgment for the plaintiff is reversed or if the plaintiff fails otherwise than
         upon the merits, the plaintiff * * * may commence a new action within one year
         after the date of the reversal of the judgment or the plaintiff’s failure otherwise
         than upon the merits or within the period of the original applicable statute of
         limitations, whichever occurs later.




                                                   22
                                       January Term, 2020




legislative history shows that the tolling exception based on minority or disability
and the extension exception based on delayed discovery both first appeared in the
statute in 1995. See former R.C. 2305.11, 1995 Am.Sub.H.B. No. 350, 146 Ohio
Laws, Part II, 3867, 3912-3914. The third exception, which offers a limited time
extension for late discovery of foreign objects left inside the body, was added to
the statute of repose in 2001. See 2001 Am.Sub.S.B. No. 281, 149 Ohio Laws, Part
II, 3791, 3799-3801. Accordingly, all three express exceptions to the statute of
repose, which now exist in their current form in R.C. 2305.113(C) and (D), were
added by the General Assembly after this court’s pronouncements in Frysinger. If
we presume—as we should—that our analysis in Frysinger provided the backdrop
for these legislative enactments, then it makes perfect sense that the General
Assembly did not include R.C. 2305.19 as an express exception within the repose



          Although the 2004 amendments to the statute removed the phrase “and the time limited for
the commencement of such action at the date of reversal or failure has expired,” Am.Sub.H.B. No.
161, 150 Ohio Laws, Part II, 3423, this should not be taken to mean that the statute no longer applies
beyond the expiration of the statute of repose. What this means is that now a plaintiff may take
advantage of the saving statute’s recommencement timeframe even though the time limited for
commencement might not have expired. Before the 2004 amendments, this was not the case. Then,
for R.C. 2305.19 to apply, the originally commenced action must have failed following the
expiration of the “time limited for commencement.” To illustrate, suppose that an action is
dismissed without prejudice ten days before the time limited for commencement expires. Under the
former version of the statute, R.C. 2305.19 would not apply and the plaintiff would have only ten
days to recommence the action. Under the current version of the statute, the plaintiff would have
one year to recommence.
          Looking at the current and former versions of R.C. 2305.19 also brings into focus the
superficial nature of the majority opinion’s conclusion that because R.C. 2305.19 mentions the
“statute of limitations,” it is meant to apply only when the statute of limitations has expired and not
when the statute of repose has expired. Majority opinion at ¶ 35. R.C. 2305.19’s reference to the
statute of limitations is not meant to limit its application in this way. Rather, the statement that a
plaintiff may commence a new action within one year of its failure, “or within the period of the
original applicable statute of limitations, whichever occurs later,” indicates only that in those limited
circumstances when the time left on the statute of limitations exceeds a year, a plaintiff will have
that additional time to recommence the action. It is an expansion of the time to recommence. That’s
it.




                                                   23
                             SUPREME COURT OF OHIO




statute. That is not how the saving statute functions. Instead, as noted in our
analysis in Frysinger, R.C. 2305.19 operates within the confines of the statute of
repose through the concept of relation back.
       ¶ 49 That the saving statute acts as a complement to the statute of repose
and not an exception to it is also in line with what we know about the purposes of
each statute. R.C. 2305.19, the saving statute, provides a small window of time
for a plaintiff to recommence an action that had been previously commenced
but failed otherwise than on the merits. The statute is remedial in nature, and
as such, should be given a liberal construction that permits a decision on the
merits of the action rather than a disposition on technical or procedural grounds.
Cero Realty Corp. v. Am. Mfrs. Mut. Ins. Co., 171 Ohio St. 82, 85, 167 N.E.2d
774 (1960). By its terms, the statute insulates a recommenced action from
statutory time-bar defenses only when the original action was commenced in a
timely fashion.
       ¶ 50 On the other hand, the purpose of the statute of repose is to limit
indefinite potential liability and give defendants greater certainty and predictability
by placing an outer time limit on the commencement of a lawsuit. It cannot
seriously be said that giving a plaintiff an additional year to recommence an action
that has already been timely commenced “create[s] the type of indefinite potential
liability that [the statute of repose] was designed to abolish.” Hinkle v. Henderson,
85 F.3d 298, 303 (7th Cir.1996). Nor does it affect the certainty and predictability
that the statute of repose affords. See id; see also See v. Hartley, 257 Kan. 813,
823, 896 P.2d 1049 (1995); Cronin v. Howe, 906 S.W.2d 910, 914 (Tenn.1995);
Vesolowski v. Repay, 520 N.E.2d 433, 434 (Ind.1988).
       ¶ 51 I agree with the majority opinion that it is not our job to establish
legislative policies or to second guess the General Assembly’s policy choices.
Majority opinion at ¶ 37. But that is exactly what the majority is doing here when
it goes out of its way to manufacture reasons to find that two otherwise perfectly




                                          24
                               January Term, 2020




compatible statues are operating at odds with each other. I would affirm the
judgment of the First District Court of Appeals.
       DONNELLY, J., concurs in the foregoing opinion.
                              _________________
       Paul W. Flowers Co., L.P.A., Paul W. Flowers, and Louis E. Grube; Robert
A. Winter Jr.; The Deters Law Firm Co. II, P.A., Benjamin M. Maraan II, and James
F. Maus; and Law Offices of Glenn D. Feagan, P.S.C., and Glenn D. Feagan, for
appellees.
       Taft Stettinius & Hollister, L.L.P., Aaron M. Herzig, Russell S. Sayre, and
Philip D. Williamson, for appellants.
       Paul W. Flowers Co., L.P.A., Paul W. Flowers, and Louis E. Grube, urging
affirmance for amicus curiae Ohio Association for Justice.
       Zagrans Law Firm, L.L.C., and Eric H. Zagrans, urging affirmance for
amicus curiae Cleveland Academy of Trial Attorneys.
       Squire Patton Boggs (US), L.L.P., Benjamin Beaton, Lauren S. Kuley,
Heather L. Stutz, and Christopher Haas, urging reversal for amici curiae Ohio
Hospital Association, Ohio State Medical Association, and Ohio Osteopathic
Association.
       Sean McGlone, urging reversal for amicus curiae Ohio Hospital
Association.
       Tucker Ellis L.L.P., Susan M. Audey, Raymond Krncevic, and Elisabeth C.
Arko, urging reversal for amicus curiae Academy of Medicine of Cleveland &
Northern Ohio.
                              _________________




                                        25

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