Portee v. Cleveland Clinic Found. (Slip Opinion)

2018 Ohio 3263, 118 N.E.3d 214, 155 Ohio St. 3d 1
CourtOhio Supreme Court
DecidedAugust 16, 2018
Docket2017-0616
StatusPublished
Cited by7 cases

This text of 2018 Ohio 3263 (Portee v. Cleveland Clinic Found. (Slip Opinion)) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Portee v. Cleveland Clinic Found. (Slip Opinion), 2018 Ohio 3263, 118 N.E.3d 214, 155 Ohio St. 3d 1 (Ohio 2018).

Opinions

O'Donnell, J.

{¶ 1} The Cleveland Clinic Foundation, Peter J. Evans, M.D., Ph.D., and Nathan Everding, M.D., appeal from a judgment of the Eighth District Court of Appeals that reversed a grant of summary judgment in connection with a medical malpractice action filed by Pamela and Haskell Portee. The issue presented on this appeal is whether the Ohio savings statute applies to a federal court action commenced *215in another state that fails otherwise than upon the merits, thereby permitting a new action to be commenced in an Ohio court within one year after that failure.

{¶ 2} We conclude that the Ohio saving statute does not apply to a federal or state court action commenced in another state that fails otherwise than upon the merits. Thus, the attempted recommencement in an Ohio state court is barred by the applicable statute of limitations, and therefore we reverse the judgment of the appellate court.

Facts and Procedural History

{¶ 3} On October 3, 2012, Pamela Portee, an Indiana resident, had elbow surgery at the Cleveland Clinic. She alleged that the negligent conduct of Dr. Evans and Dr. Everding resulted in the severance of her ulnar nerve, requiring a second surgery. On October 2, 2013, she and Haskell Portee filed a medical malpractice action against the Cleveland Clinic Foundation, Dr. Evans, and Dr. Everding (collectively, the "Clinic") in the United States District Court for the Southern District of Indiana. On July 28, 2014, the federal court dismissed the case for lack of personal jurisdiction.

{¶ 4} On July 17, 2015, the Portees filed an identical action against the Clinic in the Cuyahoga County Common Pleas Court. The Clinic moved for summary judgment, asserting that the one-year statute of limitations in R.C. 2305.113 for medical malpractice actions barred the action and that R.C. 2305.19, the Ohio savings statute, did not apply to save it because the original action had been commenced in another state and pursuant to Howard v. Allen , 30 Ohio St.2d 130, 283 N.E.2d 167 (1972), could not be refiled in Ohio because the saving statute applies only to actions originally commenced in Ohio within the period of the statute of limitations. The trial court, relying on Howard , concluded that the action was untimely and granted the motion for summary judgment.

{¶ 5} The court of appeals reversed the judgment of the trial court and remanded the case for further proceedings, concluding the saving statute did apply, explaining that " R.C. 2305.19 permits a plaintiff, '[i]n any action that is commenced,' to refile his or her case within one year after the action has failed otherwise than upon the merits, even if the applicable statute of limitations has expired" and "does not specify in which court an action must be commenced for the savings statute to apply." 2017-Ohio-1053, 80 N.E.3d 556, ¶ 7-8. The court acknowledged Howard held that R.C. 2305.19" 'is not applicable to actions commenced or attempted to be commenced in foreign states,' " id. at ¶ 9, quoting Howard at 132, 283 N.E.2d 167, but it determined Howard was not dispositive because (1) in that case, the plaintiff filed the original action in a foreign state court, (2) in Wasyk v. Trent , 174 Ohio St. 525, 191 N.E.2d 58 (1963), this court held that the saving statute applied to an action originally commenced in a federal court, and (3) " Howard does not mention federal courts, nor does it mention, let alone overrule, Wasyk ," 2017-Ohio-1053, 80 N.E.3d 556, at ¶ 10. The appellate court noted that Vaccariello v. Smith & Nephew Richards, Inc. , 94 Ohio St.3d 380, 763 N.E.2d 160 (2002), "carved out an exception to Howard " with respect to class-action litigation and "further implied that Howard was not infallible." 2017-Ohio-1053, 80 N.E.3d 556, at ¶ 12. It also noted that Osborne v. AK Steel/Armco Steel Co. , 96 Ohio St.3d 368, 2002-Ohio-4846, 775 N.E.2d 483, applied the saving statute to a claim originally commenced in federal court. The appellate court concluded that "given the law and the policy considerations behind a liberal application of the savings statute," it applied *216to save the action filed by the Portees in Ohio. 2017-Ohio-1053, 80 N.E.3d 556, at ¶ 21.

{¶ 6} The Clinic appealed and presented one proposition of law: "The Ohio savings statute, R.C. 2305.19, generally does not apply to save actions originally commenced outside the State of Ohio."

Positions of the Parties

{¶ 7} The Clinic asserts R.C. 2305.19 generally does not apply to save actions originally commenced outside of Ohio, and it maintains that in concluding the statute applied here, the appellate court improperly disregarded Howard . According to the Clinic, for purposes of applying the saving statute, there is no reason to distinguish between an action originally commenced in a foreign state court, as in Howard , and an action originally commenced in a federal court in a foreign state, as in this case. The Clinic also maintains that Wasyk , Vaccariello , and Osborne are inapposite.

{¶ 8} The Portees maintain that R.C. 2305.19 applies to actions originally commenced in federal court, relying on

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Starner v. Onda
2023 Ohio 1955 (Ohio Court of Appeals, 2023)
Finley v. Miami Univ.
2022 Ohio 3066 (Ohio Court of Appeals, 2022)
Reo v. Lindstedt
2020 Ohio 6674 (Ohio Court of Appeals, 2020)
Smith v. Wal-Mart Stores E., LP
2019 Ohio 5037 (Ohio Court of Appeals, 2019)
State v. DeVore
2019 Ohio 4034 (Ohio Court of Appeals, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
2018 Ohio 3263, 118 N.E.3d 214, 155 Ohio St. 3d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/portee-v-cleveland-clinic-found-slip-opinion-ohio-2018.