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

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 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.

S LIP O PINION N O
. 2020-O HIO -6827

W ILSON ET AL ., A PPELLEES , v. D URRANI ET AL ., A PPELLANTS
. [Until this opinion appears in t he Ohio Official Reports advanc e 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 statut e of repose has expired

— Judgment reversed. (No. 2019-1560—Submitted August 5, 2020—Decided December 23, 20 20.)

A PPEAL from the Court of Appeals for Hamilton County, Nos. C180194 and C180196, 2019-Ohio-3880.

_____________________ F RENCH , J. {¶ 1} This appeal asks whether a plaintiff may take advantage of Ohio ’s saving statute to refile a medical claim after the applicable o ne-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 st atute of repose and answer that question in the negative.S UPREME C OURT OF O HIO

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 C ourt of Common Pleas in Decembe r 2015. The Sands asserted claims that arose out of a spinal surgery that D r. Durrani had performed on Mike Sand in Apr il 2010, and Wilson asserted claim s that arose out of spinal surgeries that Dr. Durrani had performed on him in Fe bruary and April 2011. Appellees are but a few of the many plaintiffs who have filed similar malpractice and related claims a gainst Dr. Durrani and his clin ic. {¶ 3} Both the Wilson complaint and the Sands complaint acknowledge t hat 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 actio ns. Nevertheless, the parties agree that the Sands and Wilson initially filed the ir claims against appellants in the Butler County Court of Common Pleas in March and April 2013 respectively and that appellees voluntarily dismissed those cla ims without prejudice in late 2015—the Sands on November 25 and Wilson on D ecember 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 re pose, R.C. 2305.113(C) , barred appellees’ refiled claims because they arose out of surgeries that had bee n performed more than four years before appellees refiled. The trial court agre ed and granted appellants’ motions. {¶ 5} Appellees appealed to the First D istrict Court of Appeals, wher e they argued that the trial court erre d by entering judgment on the p leadings in favor of appellants, because the Ohio saving statute afforded them one y ear after the voluntary dismissals of their cl aims in Butler County in which to refile their claims,January Term, 2020

3 notwithstanding the expiration of the statute of repose. The F irst 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 beyo nd 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 t he interplay between three distinct types of statutes: (1) statute s of limitations, (2) statutes of repose, and (3) saving statutes. {¶ 8} Statutes of limitations and statutes of repose share a common g oal of limiting the time during which a putative wrongdoer must be pre pared to defend a claim, but they operate differently and have distinct applicati ons. 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 inj ury occurred or was discovered).” Black's Law Dictionary 1707 (11th Ed.2019). A statute of limitations operates on the remed y , 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 r epose, 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 ,S UPREME C OURT OF O HIO

4 95 Ohio App.3d 536, 545, 642 N.E.2d 1147 (10th Dist.). The Uni ted States Supreme Court has likened the ba r imposed by a statute of repos e to a discharge in bankruptcy—as providing “a fresh start” and “embod[ying] the id ea that at some point a defendant should be abl e 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 limitation s 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). Wh en the discovery rule—that is, the rule that the statute of limitations runs fro m the discovery of injury—governs the running of a statute of limitations, the “di scovery rule gives leeway to a plaintiff who has not yet learned of a violation, w hile 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 pl aintiff may file an action, s aving statutes extend that time. Saving statutes are remedial and are intended to pr ovide a litigant an adjudication on the merits. Wasyk v. Trent , 174 Ohio St. 525, 528, 191 N.E.2d 58 (1963). Generally, a saving sta tute will provide that “where a n action timely begun
fails in some manner described in the statute, other than on th e 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 b ar of the statute of
limitations. Chadwick v. Barba Lou, Inc. , 69 Ohio St.2d 222, 232, 431 N.E.2d 660 (1982) (Krupansky, J., concurri ng in part and dissenting in par t). {¶ 12} We now turn to the specific st atutes 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 repos e, 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 commence d within one year after the cause of action accrued.” A claim for medical malpra ctice accrues, and the one-year statute of limitati ons begins to run, “(a) when th e patient discovers, or in the exercise of reasonable care and diligence should have di scovered, the resulting injury, or (b) when the physician-patient relationshi p 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 st atute 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 mo re 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 w ithin four years after the occurrence of the act or omission constitu ting the alleged basis of the medical * * *claim, then, any action u pon that claim is barred.S UPREME C OURT OF O HIO

6 {¶ 16} R.C. 2305.113(C) “exists to give medical providers certainty wi th respect to the time within which a claim can be brought and a t ime 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-ma lpractice 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 plainti ff fails otherwise than upon the merits, the plaintiff * * * may commence a new action within on e year after the date of * * * the plaintiff’s failure otherwise than upon the merits or within the period of the original applicable stat ute of limitations, whichever occurs later.

{¶ 18} R.C. 2305.19(A) neither operates as a statute of limitations no r 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 a ction 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 hav e 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. Du rrani operated
on Mike Sand and Wilson. {¶ 20} Appellees initially filed complaints in Butler County within fo ur years of appellants’ alleged acts or omissions, but they volunt arily dismissed those complaints without prejudice. A dismissal without prejudice “g ives to the complaining party the right to state a new case, if he can. Bu t it takes away no right of defense to such suit save that which might be based on the b ar of the first action.” DeVille Photography, Inc. v. Bowers , 169 Ohio St. 267, 272, 159 N.E.2d 443 (1959). “A dismissal without pre judice leaves the parties as i f no action had been brought at all.” Id. When a complaint has been dis missed 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 indefi nitely suspends the running of t he statute of repose, regardless of a subsequent dismissal without prejudice. Id. at ¶ 24. There, the plaintiffs had originally filed m edical-malpractice claims with in the repose period, but they had voluntarily dismisse d those claims without prejudi ce. We held that their action on their malpracti ce claims commenced, for purpose s of the statute of repose, only when they refiled their claims, after the four-yea r 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 savin g statute—within one year of t heir voluntaryS UPREME C OURT OF O HIO

8 dismissals without prejudice. U nless R.C. 2305.19 operates as an exception to the statute of repose, appellees’ refiled claims, like the claims i n Antoon , are timebarred. R.C. 2305.19(A) does not create an exception to the statute of repose

{¶ 23} Appellees contend that, having vol untarily dismissed their clai ms in Butler County pursuant to Civ.R. 41(A) and having thus failed o therwise 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 sta tute acts as an exception to a statute-of-limitations defense to appellees’ ref iled claims, but they
maintain that it does not also serve as a n exception to the sta tute 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, 2 016-Ohio-7432, 71 N.E.3d 974, at ¶ 30. To answer that question now, we first tur n to the language of R.C. 2305.113(C)(1), which clearly and unambiguously states, “N o action upon a
medical claim * * * shall be commenced more than four years aft er 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 medic al * * * 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 A ssembly 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-yea r repose period satisfies the statute of repose once and for all, irrespective of a later voluntary dismissal. See Antoon, at ¶ 24 (“WeJanuary Term, 2020

9 reject the Antoons’ assertion that filing then dismissing a cla im will indefinitely suspend the statute of repose by ‘commencing’ the suit on the d ate of the first filing”). But appellees also argue that by refiling their clai ms within one year of the voluntary dismissal of their Butler County claims, the new actions relate back to the dates they initially file d their Butler County claims fo r 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 cl aim refiled pursuant to the sav ing statue as relating back to the date of the prior ac tion. 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 qu estions 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) c onstitutes a failure
otherwise than on the merits. T he statement about relation bac k was of no consequence to our determinati on of those issues, and we are no t 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 OhioS UPREME C OURT OF O HIO

10 St.3d 452, 2002-Ohio-2488, 768 N.E.2d 1167, at ¶ 7, is more con sistent with the text of R.C. 2305.19. There, we s tated, “Savings statutes oper ate to give a plaintiff a limited period of time in which to refile a dismissed claim t hat 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 n ever have existed.

Antoon , 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974, at ¶ 24. The saving statute anticipates the commen cement of a new action, not the r eactivation 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 y ear of a failure of the prio r action otherwise than on the merits, there is no need f or the refiled complaint to re late 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 repos e require “a particular indication that the leg islature did not intend the s tatute to provide complete repose but i nstead anticipated the extension of the st atutory period under certain circumstances,” as when the statute of repose itself co ntains an express exception. California Pub. Emps

. ’ Retirement Sys. , ___ U.S. at ____, 137 S.Ct. at 2050, 198 L.Ed. 584. The General Asse mbly did incorporate into R.C. 2305.113(C) two express exceptions. First, th e statute of repose is tolled “as to persons within the age of minority or of unsound mind as provided in” R.C. 230 5.16. Second, R.C. 2305.113(D) extends the four-year repose period for two specifi c categories of claims: (1) those that accrue in the last year of the repose pe riod, 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) clearlyJanuary Term, 2020

11 and unambiguously prohibits the c ommencement of any action upon a medical claim more than four years afte r 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 stat ute takes on additional import wh en we compare R.C. 2305.113(C) with R.C. 2305.10(C), which imposes a ten-year stat ute of repose for product-liability cla ims, and unlike R.C. 2305.113(C), expressl y states that it applies “[e]xcept as otherwise provided in” R.C. 2305.19, the s aving 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-defec t claims. 2004 Am.Sub.S.B. No. 80, 150 Ohio Laws, Part V, 7915, 7937-7938. Th e General Assembly did not include the saving statute as an express excep tion to application of the premises-liability and construction-defect statute of re pose. 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 amen dments 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 ano ther part demonstrates that the General Assembly knows how to make that modification a nd has chosen
not to make that modification in t he 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 Assemb ly’s incorporation of the savin g statute in the product-liabilit y statute, R.C. 2305.10(C), demo nstrate that the General Assembly knew how to create an exception to a statute o f repose for application of the saving st atute when it intended to do so, bu t it also demonstrates the General Assembly’s understa nding that without an express in dication to the contrary, the saving statute w ould not override the statutes of repose. Otherwise,S UPREME C OURT OF O HIO

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 Dis trict Court of Appeals held t hat 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 repos e applied to “ ‘all persons regardless of legal disability and notwithstanding sect ion 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. 2305.1 6—a statutory provision that would otherwise have tolled the running of limit ations 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 di d not expressly exclude appli cation of the saving statute, the Tenth District reasoned that the saving statute ap plied 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 no t providing for application of any other statuto ry provisions that would toll o r extend statutory time periods. Because the statute of repose now expressly incorpora tes only one statutory exception, other statut es that extend the time in whi ch to bring an action must necessarily be excluded. {¶ 34} The Federal District Court for t he Southern District of Ohio—in another case against Dr. Durrani—recently held, contrary to our holding today, thatJanuary Term, 2020

13 Ohio’s medical statute of repose does not bar medical claims th at have been refiled, pursuant to R.C. 2305.19, more than four years after the occurr ence 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 persua ded 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 occ urred after the expiration of the sta tute of repose. Atwood at * 8. {¶ 35} The Illinois saving statute differs from the Ohio saving statut e; it provided: “ ‘where the time for commencing an action is limited , if * * * the action is voluntarily dismissed * * *, the plaintiff * * * may commenc e a new action within one year or within the remaining period of limitation, whicheve r is greater.’ ”

Hinkle at 300, quoting 735 Ill.Stat.Ann. 5/13-217. The Seventh Circui t 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 limita tions and statutes of repose.” Id. at 302, quoting 735 Ill.Stat.Ann. 5/13-217. Likewise, the stat ute’s use of the phrase “within the remaining period of limitation” reaso nably encompasses not only the statute of limitations, but also the statute of re pose. Id . R.C. 2305.19(A), in contrast, refers exc lusively 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 inhere nt differences” between statut es 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 behi nd the statute of repose and th e saving statue. It noted that the legislature had e nacted the medical statute of r epose in response to a perceived medical-malpractice-insurance crisis and to mitigate the effects of theS UPREME C OURT OF O HIO

14 discovery rule. Id. at 301. It stated that the stat ute of repose embodied two rela ted purposes: “to prevent indefinite potential liability for a part icular act or omission [and] to afford defendants (and insurance companies) greater ce rtainty in predicting potential liability.” Id . at 302. It concluded that application of the saving statute, which provided only a year in wh ich to refile a dismissed claim , did not create “indefinite potential liability” and that, except in the rare c ase in which the
defendant was unaware of the fi rst action, application of the s aving statute would not affect defendants’ and insurers’ certainty in predicting po tential liability. Id . at 303. Thus, the court determined t hat application of the saving statute would not frustrate the purposes of t he 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 G eneral 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 statu tes 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 Circu it that, as a policy matter, appl ication of the saving
statute to afford a claimant a limited time to refile a medical claim beyond the expiration of the statute of re pose would not impair the underl ying purpose of the statute of repose, that is a ca ll 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 establis h legislative policies or to s econd guess the General Assembly’s policy choices”).
Conclusion {¶ 38} R.C. 2305.113(C) is a true statute of repose that, except as ex pressly stated in R.C. 2305.113(C) and (D), clearly and unambiguously p recludes 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. Exp iration of the statuteJanuary Term, 2020

15 of repose precludes the commencement, pursuant to the saving st atute, of a claim that has previously failed otherwise than on the merits in a pr ior action. Had the General Assembly intended the sa ving statute to provide an exte nsion of the medical statute of repose, it w ould 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 gover ns product-liability
claims. {¶ 39} For these reasons, we reverse the judgment of the First Distric t Court of Appeals. Because appellees c ommenced their actions in Hamil ton County more than four years after the allege d conduct that formed the basis of their claims, the statute of repose barred appellees’ refiled actions. According ly, the trial court appropriately grante d appellants’ moti on for judgment on the pl eadings. Judgment reversed.
O’C ONNOR , C.J., and K ENNEDY , G WIN , and K LATT , JJ., concur.
S TEWART , J., dissents, with an opinion joined by D ONNELLY , J.

W. S COTT G WIN , J., of the Fifth District Court of Appeals, sitting for

F ISCHER , J.

W ILLIAM A. K LATT , J., of the Tenth District Court of Appeals, sitting for

D E W INE , J.

_________________ S TEWART , 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-m alpractice claim recommenced outside the four-year statute of repose contained i n 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 e xceptions expressly referred to in R.C. 2305.113(C). One of these exceptions tolls the statute of reposeS UPREME C OURT OF O HIO

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 ac tion from the date he discovers his injury provide d that the injury is discovered in the final year of the repose period. The final excepti on provides a plaintiff with o ne year to commence an action from the date he disc overs or should have discovered a foreign object left in his body. The majority asserts that the legislature’s expre ss inclusion of these exceptions must mean that no other exception applies or possibl y 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 in tent to preclude application of R. C. 2305.19, the saving statute, when the four-year stat ute of repose has expired, then we would also have to find that the language in R.C. 2305.113(A) similarly preclud es application of R.C. 2305.19 after the one-year s tatute of limitations has expi red. R.C. 2305.113(A), which sets forth the general statute of limitation s 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 accru ed.” (Emphases added.) R.C. 2305.113(B) goes on to provide an exception to the one-year lim itation period contained in R.C. 2305.113(A) by ex plaining that the period of limitation can be extended by up to 180 days if the plaintiff gives written notic e 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 specif ied time-frame is prohibited. Thus, if we follow the majority opinion’s reasonin g 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 i ts own logic whenJanuary Term, 2020

17 it reaffirms this court’s longst anding holding that, if properl y invoked, R.C.
2305.19 does apply to save an action recommenced outside the limitations pe riod of the medical-malpractice statute of limitations. Majority op inion at ¶ 14. If the majority insists upon such rigid reliance on the existence of e xceptions within R.C. 2305.113(C) as the basis for its holding today, it needs also t o explain why that same reasoning does not appl y 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 excepti on to the requirement that a n 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 conclud e 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 th e general rule that a medical-m alpractice action must be commenced within four years of the act or omission giving ri se to the claim. What is unique about R.C. 2305.19, compared to the express exce ptions listed in R.C. 2305.113(C), is that it require s 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) opera te as true exceptions to the general four-year period of repose by either tolling the time to commence an action or adding additional time t o commence an action. These exceptions also evince a legislative understanding that because of disability o r delayed discovery,

see R.C. 2305.113(C), citing R.C. 2305.16 and 2305.113(D), the pla intiff will likelyS UPREME C OURT OF O HIO

18 be unable to commence an action within the four-year repose per iod—hence the need for tolling or additional time modifications to the genera l 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 cle ar that the legislature does not view R.C. 2305.19 as an exception to e ither the statute of
limitations or the statu te of repose. Inst ead, the function of R.C. 2305.19 is that of a limited, but freestanding remedial statute that separately an d concomitantly upholds both limitation provisions, and thus operates on equal footing and in conjunction with those provisions t o save an action that previo usly had been timely commenced. As such, there was no need for the legislature to i nclude it as “an exception” to R.C. 2305.113(C). 1

1. I am not convinced, though the majority seems to be, majorit y opinion at ¶ 30, that the legislature’s inclusion of R.C. 2305.19 as an express exception to the ten-ye ar repose period in R.C. 2305.10(C) means that it intended R.C. 2305.19 to not apply to other statu tes 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 t he product was delivered to its first purchaser * * *.

(Emphasis added.) R.C. 2305.10(C)(1). This repose statute foc uses on the date of accrual. A cause of action “accrues” on the date of injury or discovery of the i njury. Majority opinion at ¶ 9. R.C. 2305.19 has nothing to do with whether a cause of action accrue s. 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 majori ty can explain it, but I cannot. It is worth noting too that 2004 Am.Sub.S.B. No. 80, as origina lly 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 t o 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 t hat 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 acti on relates back to the filing date for the preceding action for li mitations 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 legislat ure indicated any disagreement with it—likely because it is straightforward and m akes sense. Our analysis of R.C. 2305.19’s “relation back” properties has been widely adopted and used by the appellate courts i n 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/s008 0-125.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 o f Am.Sub.S.B. No. 80 at 00:12:59-00:35:10 and 00:51:28-00:53:20, https://ohiochan nel.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 vo te on it without reading it. See id. Given all this, and considering too how a R.C. 2305.19 exceptio n 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 legisla tive 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 a s 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 a nd Klatt, JJ., concurring); Thompson v. Ohio State Univ. Hosps. , 10th Dist. Franklin No. 06AP-1117, 2007-Ohio4668, ¶ 24 (majority opinion of French, J.).S UPREME C OURT OF O HIO

20 the test of time and offered an easy-to-understand and logical explanation of how a
second action could ever be cons idered “timely” when filed outs ide of the express timing limitations for commencement of an action. Nevertheless , the majority opinion now repudiates our relati on-back analysis as nothing mo re than illconsidered dicta. Maj ority 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-y ear 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 f rom this court
characterizes R.C. 2305.19 differe ntly; and it argues that the relation-back analysis is inconsistent with our precedent that an action dismissed wit hout 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 wh ether a voluntary dismissal under Civ.R. 41(A) counted as a “failure ot herwise than on the merits” within the meaning of R.C. 2305.19, the more general and overar ching questions were whether the plaintiff’s original action was timely commenced and whethe r 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 an swering 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 statu te in both decisions. It is also worth noting that these three decisions, which were decided wit hin 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 in tent it implies—never s tops to consider

In a similar vein, the relation back-analysis is not at odds wi th 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 th at 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 ti me-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 cour t in Internatl

. Periodical was which saving statute should apply—the general saving statut e, R.C. 2305.19, which gives a plaintiff a year to refile, or the Uniform Commercial Code sa ving 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 fo r 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 dismiss ed 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 a t 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 plainti ff’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 volu ntarily dismissed, the parties go back to the position they were in before the action was comm enced. See id . at 272-273. Nothing in Deville suggests that as a metaphysical matter a dismissed action comp letely ceases to exist altogether. Indeed, court records would confirm its e xistence. 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 statut e 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 ab out relation-back hardly means that is not how it works. Indeed, recently this court ha s 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.S UPREME C OURT OF O HIO

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 i mportant as anything else the majority opinion discusses because the General Assembl y 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). R egardless of whet her we were right or wrong, or whether what we said was dicta or not, there can b e no disagreement
that in Frysinger , we interpreted the saving st atute when we explained how it functions within the greater context of statutory timing requir ements 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 judici al 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 f ails otherwise than upon the merits, and the time limited for the commencement of such a ction at the date of reversal or failure has expired, the plaintiff * * * may com mence a new action within one year after such date.

Former R.C. 2305.19(A), G.C. 11233. Notably, the statutory lan guage included the phrase “time limited for the commencement.” This language is nearly identic al 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, i f in due time a judgment for the plaintiff is reversed or if the plainti ff 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 appli cable statute of limitations, whichever occurs later.January Term, 2020

23 legislative history shows that the tolling exception based on m inority or disability and the extension exception based on delayed discovery both fir st 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 off ers 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 t hat the General Assembly did not include R.C. 2305.19 as an express exception w ithin 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 fail ure 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 mean s 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 amendment s, 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 illustra te, suppose that an action is dismissed without prejudice ten days before the time limited fo r 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 th e 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 be cause R.C. 2305.19 mentions the “statute of limitations,” it is meant to apply only when the st atute 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 fail ure, “or within the period of the original applicable statute of limitations, whichever occurs la ter,” 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 expans ion of the time to recommence. That’s it.S UPREME C OURT OF O HIO

24 statute. That is not how the saving statute functions. Instea d, 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 ab out the purposes of
each statute. R.C. 2305.19, the saving statute, provi des a small window of time for a plaintiff to recommence an action that had been previousl y commenced
but failed otherwise than on the merits. The statute is remedi al 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 c ommenced in a timely fashion. {¶ 50} On the other hand, the purpose of the statute of repose is to l imit indefinite potential liability and give defendants greater cert ainty 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 i ndefinite 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 certai nty 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 est ablish legislative policies or to second guess the General Assembly’s policy choices. Majority opinion at ¶ 37. But that is exactly what the majorit y is doing here when it goes out of its way to manufacture reasons to find that two otherwise perfectlyJanuary Term, 2020

25 compatible statues are operating at odds with each other. I wo uld affirm the judgment of the First Dis trict Court of Appeals.

D ONNELLY , J., concurs in the foregoing opinion.

_________________ Paul W. Flowers Co., L.P.A., Paul W. Flowers, and Louis E. Grub e; Robert A. Winter Jr.; The Deters Law Firm Co. II, P.A., Benjamin M. Ma raan 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, f or appellants. Paul W. Flowers Co., L.P.A., Paul W. Flowers, and Louis E. Grub e, urging
affirmance for amicus curiae Ohio Association for Justice. Zagrans Law Firm, L.L.C., and Eric H. Zagrans, urging affirmanc e for amicus curiae Cleveland Academy of Trial Attorneys. Squire Patton Boggs (US), L.L.P., Benjamin Beaton, Lauren S. Ku ley, Heather L. Stutz, and Christopher Haas, urging reversal for ami ci 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 Elis abeth C. Arko, urging reversal for amicus curiae Academy of Medicine of Cleveland &
Northern Ohio.

_________________