[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 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

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

2

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, 
January Term, 2020 

3

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, 
SUPREME COURT OF OHIO

4

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. 
January Term, 2020 

5

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-Ohio3880, 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. 
SUPREME COURT OF OHIO

6

{¶ 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. 
January Term, 2020 

7

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-Ohio7432, 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 
SUPREME COURT OF OHIO

8

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 timebarred. 

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 
January Term, 2020 

9

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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10 

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 
January Term, 2020 

11 

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, 
SUPREME COURT OF OHIO

12 

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 
January Term, 2020 

13 

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 
SUPREME COURT OF OHIO

14 

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 
January Term, 2020 

15 

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 fouryear 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 
SUPREME COURT OF OHIO

16 

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 medicalmalpractice 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 
January Term, 2020 

17 

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 
SUPREME COURT OF OHIO

18 

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) 
January Term, 2020 

19 

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-sessionpart-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-Ohio5212, ¶ 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-Ohio4668, ¶ 24 (majority opinion of French, J.). 
SUPREME COURT OF OHIO

20 

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 illconsidered 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 relationback 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. 
January Term, 2020 

21 

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-Ohio7432, 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. 
SUPREME COURT OF OHIO

22 

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-Ohio4822, 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. 
January Term, 2020 

23 

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.
SUPREME COURT OF OHIO

24 

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 
January Term, 2020 

25 

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. 

_________________