By Clifford C. Masch, Esq.

Pamela Portee, et al. v. The Cleveland Clinic Foundation, et al.


Reminger attorneys recently convinced the Ohio Supreme Court that the Ohio Saving Statute does not apply to refiled actions originally filed in another state.  When applicable, the saving statute permits a plaintiff to refile an action within one year after the date of the voluntary dismissal or dismissal otherwise than on the merits.  In 1972, the Ohio Supreme Court decided the case of Howard v. Allan, 30 Ohio St.2d 130, wherein the Court held that the Ohio Saving Statute did not apply if the original action was commenced in a state other than Ohio.  The Portee case involved a situation where the original case was filed in a Federal Court located in a state other than Ohio.  The Eighth District Court of Appeals held that the Howard case should not apply as the original action was commenced in a Federal Court outside of Ohio as opposed to a state court.  In so holding, the Eighth District also questioned the legitimacy of the Howard decision in light of the age of the decision and a perceived trend in the law since Howard was decided. 

In the Portee case, the plaintiff instituted a medical negligence claim against the Cleveland Clinic and several physicians in an action filed in a federal court situated in Indiana. The federal court dismissed the case, without prejudice, finding that the court lacked personal jurisdiction over the defendants. The plaintiff then refiled the dismissed action in an Ohio state court based on the application of the Ohio Saving statute.

In holding to reaffirm the legitimacy of the Howard decision and in proclaiming that it has equal application to causes of action filed in a federal court outside of the state of Ohio, the Portee court held: “if an action is commenced in either a state or federal court  and fails otherwise than on the merits and the statute of limitations for commencement of such an action has expired, the Ohio Saving Statute  does not apply to permit commencement of a new action within one year.”  This decision brings further clarity to the understanding that the Ohio Saving Statute can only be used by a plaintiff where the first action is commenced in the state of Ohio.  The only exception to this rule was announced in another decision by the Ohio Supreme Court in the case of Vaccariello v. Smith and Matthew Richards, Inc., 94 Ohio St.3d 380, wherein the court held that the Howard decision in light of the age of the ruling does not apply to class actions first filed in other states as such a policy would potentially conflict with the public policy behind class action litigation.

Should anyone have any questions regarding this decision and how it may apply to any particular situation, please feel free to contact any of the attorneys listed.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.


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