Kennedy v. W. Res. Senior Care

[This opinion has been published in Ohio Official Reports at 177 Ohio St.3d 403.]

KENNEDY, EXR. OF THE ESTATE OF GERRES, APPELLANT, v. WESTERN RESERVE

SENIOR CARE ET AL., APPELLEES.

[Cite as Kennedy v. W. Res. Senior Care, 2024-Ohio-5565.]

Medical malpractice—Out-of-state defendant—R.C. 2305.15(A)—Dormant

Commerce Clause of United States Constitution—R.C. 2305.15(A) does not

violate dormant Commerce Clause as applied to a physician who moved out

of Ohio to practice medicine in another state—Judgment reversed and

cause remanded to trial court.

(No. 2023-0372—Submitted July 9, 2024—Decided November 27, 2024.)

APPEAL from the Court of Appeals for Portage County,

No. 2021-P-0055, 2023-Ohio-264.

__________________

STEWART, J., authored the opinion of the court, which FISCHER, DEWINE,

BRUNNER, and DETERS, JJ., joined. KENNEDY, C.J., concurred in judgment only.

DONNELLY, J., dissented and would dismiss the appeal as having been

improvidently accepted.

STEWART, J.

{¶ 1} R.C. 2305.15, commonly referred to as “the tolling statute,” states that

if a person who is subject to a lawsuit leaves the State, the statutory periods for

commencing that lawsuit do not begin to run—that is, those statutory periods are

tolled—while the person remains out of the State. See R.C. 2305.15(A).1 In this

1. R.C. 2305.15 was amended by the General Assembly while this action was pending. See 2024

Am.H.B. No. 179 (effective Oct. 24, 2024). This opinion analyzes the constitutionality of the tolling

statute as it existed before the 2024 amendments took effect. See Am.Sub.S.B. No. 281, 149 Ohio

Laws, Part II, 3791, 3804. All references to R.C. 2305.15 in this opinion refer to the pre-amendment

version of the statute.

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case, we are asked to determine whether the tolling statute violates the Commerce

Clause of the United States Constitution. See U.S. Const., art. I, § 8, cl. 3. For the

reasons that follow, we hold that it does not. We therefore reverse the judgment of

the Eleventh District Court of Appeals and remand this matter to the trial court for

further proceedings.

BACKGROUND

{¶ 2} This case concerns a wrongful-death claim involving allegations of

medical malpractice. In September 2014, appellant, Claudia Kennedy, executor of

the estate of Donald R. Gerres, filed a medical-malpractice action against appellees,

Western Reserve Senior Care, Dr. Sataya Acharya, and others (collectively, “the

healthcare providers”), on behalf of Gerres’s estate. See Kennedy v. Robinson Mem.

Hosp., Portage C.P. No. 2014 CV 00764 (Sept. 23, 2014). Kennedy asserted that

the healthcare providers’ substandard medical care wrongfully caused Gerres’s

death in October 2013. Id. Kennedy voluntarily dismissed the action without

prejudice in January 2019, see Kennedy, Portage C.P. No. 2014 CV 00764 (Jan. 28,

2019), and refiled suit within one year. The healthcare providers moved for

judgment on the pleadings in the refiled action, arguing that the four-year statute of

repose for medical claims barred Kennedy’s refiled action from proceeding.

Kennedy opposed the motion, arguing, among other things, that Ohio’s saving

statute, R.C. 2305.19, saved the refiled action from expiring under the four-year

statute of repose for medical claims because she had originally commenced the

action within four years of Gerres’s death—in other words, she had filed the

original medical-malpractice action within the four-year repose period. The trial

court denied the motion, finding that the saving statute applied to preserve the

refiled action.

{¶ 3} Just over a year after the trial court denied the healthcare providers’

motion for judgment on the pleadings, this court issued its decision in Wilson v.

Durrani, 2020-Ohio-6827. In Wilson, this court reached the opposite conclusion of

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the trial court in this case, holding that the saving statute does not operate to

preserve claims that were filed within the four-year repose period when those

claims were voluntarily dismissed and then refiled after the statute of repose’s four-

year timing limitation has expired. Id. at ¶ 18-38.

{¶ 4} Following this court’s decision in Wilson, the healthcare providers in

this case sought leave from the trial court to move for summary judgment, again

pointing to the statute of repose as a bar to Kennedy’s refiled action. The trial court

denied the healthcare providers’ motion on the basis that the case had been pending

for almost three years and was scheduled for a jury trial in less than a month. The

healthcare providers filed a motion for a directed verdict on the last business day

before the trial began, again arguing that this court’s decision in Wilson controlled

and therefore Kennedy’s refiled medical-malpractice action was barred by the

statute of repose and not saved by the saving statute. Following Kennedy’s opening

statements, the trial court granted the healthcare providers’ motion for a directed

verdict.

{¶ 5} Kennedy appealed the trial court’s judgment to the Eleventh District.

2023-Ohio-264 (11th Dist.). On appeal, Kennedy argued that regardless of whether

the saving statute applied to preserve her refiled medical-malpractice action,

another statute, R.C. 2305.15(A), preserved her action against Dr. Acharya. The

version of R.C. 2305.15(A) that was in effect when Kennedy commenced her

original medical-malpractice action in 2014 and her refiled action in 2019 and when

the Eleventh District issued its judgment in this matter stated:

When a cause of action accrues against a person, if the

person is out of the state, has absconded, or conceals self, the period

of limitation for the commencement of the action as provided in

sections 2305.04 to 2305.14, 1302.98, and 1304.35 of the Revised

Code does not begin to run until the person comes into the state or

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while the person is so absconded or concealed. After the cause of

action accrues if the person departs from the state, absconds, or

conceals self, the time of the person’s absence or concealment shall

not be computed as any part of a period within which the action must

be brought.

(Emphasis added.) Am.Sub.S.B. No. 281, 149 Ohio Laws, Part II, 3791, 3804.

Kennedy argued that R.C. 2305.15(A) tolled the four-year statute of repose for her

claim against Dr. Acharya because Dr. Acharya had moved to Pennsylvania after

Gerres’s death and had continued to live outside Ohio when both the original

medical-malpractice action and the refiled action were brought and that Dr. Acharya

remained outside Ohio while the refiled action was pending before the trial court.

{¶ 6} While Kennedy’s direct appeal was pending before the Eleventh

District, this court issued its decision in Elliot v. Durrani, 2022-Ohio 4190. In

Elliot, we held that R.C. 2305.15(A) tolls the running of the four-year medical-

malpractice statute of repose set forth in R.C. 2305.113(C) when a defendant has

fled the country. Elliot at ¶ 1. The Eleventh District recognized our decision in

Elliot as relevant to the present case. See 2023-Ohio-264 at ¶ 35-38 (11th Dist.).

Nevertheless, the court of appeals affirmed the trial court’s dismissal of Kennedy’s

refiled action on the theory that application of the tolling statute to the medical-

malpractice action against Dr. Acharya, whom it determined had left the State for

legitimate business purposes to seek employment in Pennsylvania, violates the

dormant Commerce Clause by interfering with the right of Congress to regulate

commerce. Id. at ¶ 39. In reaching that conclusion, the court of appeals primarily

relied on Bendix Autolite Corp. v. Midwesco Ents., Inc., 486 U.S. 888 (1988), in

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which the United States Supreme Court examined Ohio’s tolling statute2 and struck

down the statute as unconstitutional as applied to an out-of-state corporation doing

business in Ohio on the ground that it impermissibly burdened interstate commerce.

See 2023-Ohio-264 at ¶ 39 (11th Dist.).

{¶ 7} Kennedy appealed to this court. We accepted jurisdiction over

Kennedy’s third proposition of law, which states: “Regardless of whether a

defendant leaves the state for ‘legitimate business purposes,’ the medical

malpractice statute of repose is tolled pursuant to R.C. 2305.15(A).” See 2023-

Ohio-1830; 2023-Ohio-4773.

ANALYSIS

{¶ 8} Kennedy challenges the Eleventh District’s determination that

R.C. 2305.15(A) is unconstitutional under the dormant Commerce Clause.

“Whether a statute is constitutional is a question of law that we review de novo.”

Portage Cty. Educators Assn. for Dev. Disabilities-Unit B, OEA/NEA v. State Emp.

Relations Bd., 2022-Ohio-3167, ¶ 7. “[A]ll statutes are presumed [to be]

constitutional, and the party challenging a statute bears the burden of proving

otherwise.” State v. Boczar, 2007-Ohio-1251, ¶ 9.

{¶ 9} The United States Constitution provides that Congress shall have the

power “[t]o regulate Commerce . . . among the several States.” U.S. Const., art. I,

§ 8, cl. 3. While the language of the Commerce Clause speaks directly to

Congress’s power to regulate commerce, the clause has been interpreted to contain

an implicit limitation on state governments’ ability to take actions that would impair

interstate commerce. See DIRECTV, Inc. v. Levin, 2010-Ohio-6279, ¶ 17. This

implicit limitation on state power is known as the dormant Commerce Clause. See

2. The version of the tolling statute reviewed by the United States Supreme Court in Bendix was

substantively the same as the version of R.C. 2305.15(A) that we analyze here. Compare Am.S.B.

No. 5, 129 Ohio Laws 13, 177, with Am.Sub.S.B. No. 281, 149 Ohio Laws, Part II, at 3804.

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id. We have previously described the history and purpose of the dormant

Commerce Clause as follows:

The doctrine of the dormant Commerce Clause traces its

roots to “[t]he desire of the Forefathers to federalize regulation of

foreign and interstate commerce.” H.P. Hood & Sons, Inc. v. Du

Mond (1949), 336 U.S. 525, 533, 69 S.Ct. 657, 93 L.Ed. 865. As

the court explained in Camps Newfound/Owatonna, Inc. v. Harrison

(1997), 520 U.S. 564, 571, 117 S.Ct. 1590, 137 L.Ed.2d 852,

“[d]uring the first years of our history as an independent

confederation, the National Government lacked the power to

regulate commerce among the States. Because each State was free

to adopt measures fostering its own local interests without regard to

possible prejudice to nonresidents, what Justice Johnson

characterized as a ‘conflict of commercial regulations, destructive

to the harmony of the States,’ ensued.” Id., quoting Gibbons v.

Ogden (1824), 22 U.S. (9 Wheat.) 1, 224, 6 L.Ed. 23 (Johnson, J.,

concurring).

Accordingly, the modern cases arising under what has

become known as the dormant Commerce Clause are “driven by

concern about ‘economic protectionism—that is, regulatory

measures designed to benefit in-state economic interests by

burdening out-of-state competitors.’” Kentucky Dept. of Revenue

[v. Davis], 553 U.S. [328,] 337-338, 128 S.Ct. 1801, 170 L.Ed.2d

685 [(2008)], quoting New Energy Co. of Indiana v. Limbach (1988),

486 U.S. 269, 273-274, 108 S.Ct. 1803, 100 L.Ed.2d 302. The

dormant Commerce Clause thus enshrines the economic policy of

the framers to prohibit states from erecting barriers to free trade

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across state borders and from enacting laws that favor local

enterprises at the expense of out-of-state businesses. Boston Stock

Exchange v. New York State Tax Comm. (1977), 429 U.S. 318, 328-

329, 97 S.Ct. 599, 50 L.Ed.2d 514.

(First set of brackets in original.) DIRECTV at ¶ 18-19.

{¶ 10} The dormant Commerce Clause prohibits state laws that protect in-

state economic interests at the expense of out-of-state competitors. See Wyoming

v. Oklahoma, 502 U.S. 437, 454 (1992). The United States Supreme Court

previously announced a two-tiered approach to analyzing dormant Commerce

Clause challenges. See Brown-Forman Distillers Corp. v. New York State Liquor

Auth., 476 U.S. 573, 578-579 (1986). The first tier requires reviewing courts to

inquire whether the law “directly regulates or discriminates against interstate

commerce, or [if its] effect is to favor in-state economic interests over out-of-state

interests.” Id. at 579. If under this first tier the law is found to be discriminatory3

on its face or in its purpose or effect, the law will be deemed “virtually per se

invalid,” Oregon Waste Sys., Inc. v. Oregon Dept. of Environmental Quality, 511

U.S. 93, 99 (1994), unless the State can meet the requirements of strict scrutiny by

showing that the law “‘advances a legitimate local purpose that cannot be

adequately served by reasonable nondiscriminatory alternatives,’” id. at 101,

quoting New Energy Co. at 278. If, however, “a statute has only indirect effects on

interstate commerce and regulates evenhandedly,” the reviewing court must

proceed to the second tier of the analysis and apply a balancing test to determine

whether the law nevertheless violates the dormant Commerce Clause by

impermissibly burdening interstate commerce. Brown-Forman at 579. Under this

3. In this context, “discrimination” is defined as the “differential treatment of in-state and out-of-

state economic interests that benefits the former and burdens the latter.” Oregon Waste Sys., Inc. v.

Oregon Dept. of Environmental Quality, 511 U.S. 93, 99 (1994).

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balancing test, known as the Pike balancing test, a law “will be upheld unless the

burden imposed on such commerce is clearly excessive in relation to the putative

local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).

{¶ 11} Although this two-tiered approach provides a basic framework for

reviewing state laws and regulations under the dormant Commerce Clause, the

Supreme Court has struggled with defining a clear set of rules that can be applied

consistently in these cases. Indeed, the two-tiered approach has been criticized on

the ground that the “effects” prong of the first tier will eventually overlap with the

second tier, resulting in a lack of clarity about whether strict scrutiny or the more

permissive balancing test should apply to the analysis. See, e.g., Brown-Forman at

579, (“[T]here is no clear line separating the category of state regulation that is

virtually per se invalid under the Commerce Clause, and the category subject to the

Pike v. Bruce Church balancing approach. In either situation the critical

consideration is the overall effect of the statute on both local and interstate

activity.”), citing Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429, 440-441

(1978); Gen. Motors Corp. v. Tracy, 519 U.S. 278, 298, fn. 12 (1997) (noting there

is no clear line between the first tier and second tier of the Pike balancing test);

Camps Newfound/Owatonna at 596 (Scalia, J., dissenting) (“Our [dormant

Commerce Clause] cases have struggled (to put it nicely) to develop a set of rules

by which we may preserve a national market without needlessly intruding upon the

States’ police powers, each exercise of which no doubt has some effect on the

commerce of the Nation.”); Kassel v. Consol. Freightways Corp. of Delaware, 450

U.S. 662, 706 (1981) (Rehnquist, J., dissenting) (“the jurisprudence of the

[dormant] Commerce Clause remains hopelessly confused”).

{¶ 12} Recently however, in Natl. Pork Producers Council v. Ross, 598 U.S.

356 (2023), the United States Supreme Court clarified the application of the

dormant Commerce Clause by synthesizing decades of its jurisprudence into a few

key takeaways. Central among these is that economic “antidiscrimination . . . lies

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at the ‘very core’ of [the Court’s] dormant Commerce Clause Jurisprudence,” id. at

369. Another key takeaway is that a state law will not be deemed invalid under the

first tier of review (the tier applying strict scrutiny) just because the law may have

practical effects on interstate commerce. See id. Rather, for strict scrutiny to apply,

there must be a showing that the law in question purposefully discriminates against

out-of-state interests as a means of benefitting in-state interests. Id. at 378.

{¶ 13} The Court also explained in Ross that the two tiers of the dormant

Commerce Clause analysis may seem to overlap because the Pike balancing test

has, for the most part, been used by the Court as a means of sussing out whether a

law has a discriminatory purpose when it may otherwise appear to be neutral. Ross

at 377-379. Specifically, the Court stated:

While many of our dormant Commerce Clause cases have asked

whether a law exhibits “‘facial discrimination,’ ” “several cases that

have purported to apply [Pike,] including Pike itself,” have “turned

in whole or in part on the discriminatory character of the challenged

state regulations.” [Gen. Motors Corp., 519 U.S. at 298, n. 12]. In

other words, if some of our cases focus on whether a state law

discriminates on its face, the Pike line serves as an important

reminder that a law’s practical effects may also disclose the presence

of a discriminatory purpose.

Pike itself illustrates the point. That case concerned an

Arizona order requiring cantaloupes grown in state to be processed

and packed in state. 397 U.S., at 138-140. The Court held that

Arizona’s order violated the dormant Commerce Clause. Id., at 146.

Even if that order could be fairly characterized as facially neutral,

the Court stressed that it “requir[ed] business operations to be

performed in [state] that could more efficiently be performed

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elsewhere.” Id., at 145. The “practical effect[s]” of the order in

operation thus revealed a discriminatory purpose—an effort to

insulate in-state processing and packaging businesses from out-of-

state competition. Id., at 140, 145.

Other cases in the Pike line underscore the same message.

In Minnesota v. Clover Leaf Creamery Co., [a case involving a

Minnesota law prohibiting the retail sale of milk and milk products

in nonrefillable, nonreturnable plastic containers,] the Court found

no impermissible burden on interstate commerce because, looking

to the law’s effects, “there [was] no reason to suspect that the

gainers” would be in-state firms or that “the losers [would be] out-

of-state firms.” 449 U.S. 456, 473 (1981); see also id., at 474-477,

and n. 2, (Powell, J., concurring in part and dissenting in part)

(asking whether the “actual purpose,” if not the “‘avowed purpose,’”

of the law was discrimination). Similarly, in Exxon Corp. v.

Governor of Maryland, [a case involving a Maryland law that

prohibited oil producers or refiners from operating gasoline stations

within the state and required producers and refiners to extend

temporary price cuts to all the stations they supplied,] the Court

keyed to the fact that the effect of the challenged law was only to

shift business from one set of out-of-state suppliers to another. 437

U.S. 117, 127 (1978). And in United Haulers [Assn., Inc. v. Oneida-

Herkimer Solid Waste Mgt. Auth.], a plurality upheld the challenged

law[, a local flow-control ordinance requiring locally produced

garbage to be delivered to local, publicly owned facilities,] because

it could not “detect” any discrimination in favor of in-state

businesses or against out-of-state competitors. 550 U.S. [330,] 346

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[(2007)]. In each of these cases and many more, the presence or

absence of discrimination in practice proved decisive.

Once again, we say nothing new here. Some time ago, [Gen.

Motors Corp.] identified the congruity between our core dormant

Commerce Clause precedents and the Pike line. 519 U.S., at 298,

n. 12. Many lower courts have done the same. See, e.g., Rosenblatt

v. Santa Monica, 940 F.3d 439, 452 (CA9 2019); Park Pet Shop, Inc.

v. Chicago, 872 F.3d 495, 501 (CA7 2017); Amanda Acquisition

Corp. v. Universal Foods Corp., 877 F.2d 496, 505 (CA7 1989). So

have many scholars. See, e.g., R. Fallon, The Dynamic Constitution

311 (2d ed. 2013) (observing that Pike serves to “‘smoke out’ a

hidden” protectionism); B. Friedman & D. Deacon, A Course

Unbroken: The Constitutional Legitimacy of the Dormant

Commerce Clause, 97 Va.L.Rev. 1877, 1927 (2011); Regan, [The

Supreme Court and State Protectionism: Making Sense of the

Dormant Commerce Clause,] 84 Mich.L.Rev. [1091,] 1286

[(1986)].

(First, third through fifth, and seventh and eighth sets of brackets in original.) Ross

at 377-379.

{¶ 14} Lastly, the Court emphasized in Ross that “‘“extreme caution’” is

warranted,” id. at 390, quoting Gen. Motors Corp. at 310, quoting Northwest

Airlines, Inc. v. Minnesota, 322 U.S. 292, 302 (1944) (Black, J., concurring), when

reviewing dormant Commerce Clause claims because “[p]reventing state officials

from enforcing a democratically adopted state law in the name of the dormant

Commerce Clause is a matter of ‘extreme delicacy,’ something courts should do

only ‘where the infraction is clear,’” id., quoting Conway v. Taylor’s Executor, 66

U.S. 603, 634 (1862). Considering the principles outlined above, we find that

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applying R.C. 2305.15(A) to this case based on Dr. Acharya’s absence from the

State does not result in a clear infraction of the dormant Commerce Clause.

Tier I Review: R.C. 2305.15(A) Does Not Have a Discriminatory Purpose

{¶ 15} This court has already determined that R.C. 2305.15(A) does not

evince a discriminatory intent on its face. See Johnson v. Rhodes, 2000-Ohio-235.

In Johnson, we held that R.C. 2305.15(A) does not violate the dormant Commerce

Clause when applied to those persons who “temporarily leave[] the state of Ohio

for non-business reasons.” Johnson at ¶ 12. In other words, we determined that as

applied to the individual facts of that case, R.C. 2305.15(A) is not unconstitutional.

It is important to note that we could not have reached the conclusion that we did in

Johnson had we not first determined that the statutory language was neutral and

nondiscriminatory on its face. See Oregon Waste Sys., 511 U.S. at 99 (statutes that

place restrictions on interstate commerce and are facially discriminatory are

“virtually per se invalid”). Accordingly, we find that R.C. 2305.15(A) is not

facially discriminatory. We also find that neither the history nor the practical effects

of the law evince an economically protectionist purpose.

{¶ 16} In Garber v. Menendez, the United States Court of Appeals for the

Sixth Circuit encountered the same question we now face: whether R.C.

2305.15(A) violates the dormant Commerce Clause as applied to a physician who

moved out of Ohio. 888 F.3d 839, 840 (6th Cir. 2018). In upholding the

constitutionality of R.C. 2305.15(A), the Sixth Circuit traced the origin of the

tolling statute back to the early nineteenth century and the complications arising

from an era when a state court’s personal jurisdiction over a defendant was dictated

by the defendant’s physical presence within the State and nothing more. The Sixth

Circuit explained:

For the first century and a half of American history, the

States could not authorize their courts to impose liabilities upon

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people over whom they had no control. The “foundation of

jurisdiction” being “physical power,” McDonald v. Mabee, 243 U.S.

90, 91, 37 S.Ct. 343, 61 L.Ed. 608 (1917), a State could not exercise

personal jurisdiction over a defendant unless the plaintiff served the

defendant with process within the State, where it could exercise

physical control over him. See Burnham v. Superior Court of Cal.,

495 U.S. 604, 616, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990).

Pennoyer v. Neff converted this common law rule into a

constitutional command. It construed the Due Process Clause [of

the Fourteenth Amendment to the United States Constitution] to

mean that one State could not compel a party residing in another

State to respond to a lawsuit. 95 U.S. 714, 733, 24 L.Ed. 565 (1877).

The common law rule and Pennoyer created a practical

problem. Defendants might commit wrongs against a State’s

residents and avoid liability by leaving the State and waiting for the

statute of limitations to expire. Meyer v. Paschal, 330 S.C. 175, 498

S.E.2d 635, 637 (1998). Once a statute of limitations started, it

usually did not stop. Many States responded to the problem by

enacting laws that tolled the limitations period for out-of-state

defendants, whether they fled the jurisdiction in the face of a lawsuit

or left innocently for greener pastures. 2 H.G. Wood, A Treatise on

the Limitation of Actions at Law and in Equity § 244, at 1143-47

(Dewitt C. Moore, ed., 4th ed. 1916) (collecting statutes).

Ohio joined this crowd early. Seven years after Ohio became

a State in 1803, its legislature enacted a law that tolled the statute of

limitations “when any person or persons against whom there is [a]

cause of action[] shall have left the state.” An Act for the Limitation

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of Actions, ch. 213, § 2 (1810), reprinted in 1 The Statutes of Ohio

and of the Northwestern Territory 656 (Salmon P. Chase, ed., 1833).

The premises of these policies and constitutional rulings

shifted over time. By the early Twentieth Century, new modes of

transportation and communication meant that many businesses sold

their products in many States, not just one, and that most individuals

could travel readily between and among the States.

Cue International Shoe. It held that the Due Process Clause

no longer required in-state personal service on defendants for a state

court to exercise personal jurisdiction over them. Intl. Shoe Co. v.

Washington, 326 U.S. 310, 316, 319, 66 S.Ct. 154, 90 L.Ed. 95

(1945). After International Shoe, after the Court liberated the States

from the requirement of having physical control over the parties in

a lawsuit in its jurisdiction, every State enacted a long-arm statute

that allowed claimants to file lawsuits against out-of-state

defendants. See 1 Robert C. Casad, William M. Richman & Stanley

E. Cox, Jurisdiction in Civil Actions § 4.01 (4th ed. 2014).

This change in law changed the policy calculus for tolling

statutes of limitations, as the most salient justification for tolling the

statute of limitations against out-of-state defendants no longer

existed. Some state legislatures as a result amended their tolling

statutes to apply only if their long-arm statute—usually construed to

extend as far as the Due Process Clause permitted—could not reach

the out-of-state defendant. See, e.g., 735 Ill.Comp.Stat. 5/13-208;

N.C.Gen.Stat. § 1-21; N.Y.C.P.L.R. § 207(3); Utah Code Ann. §

78B-2-104. Some state courts interpreted their tolling laws to have

the same effect. See, e.g., Meyer, 498 S.E.2d at 638-639; Kuk v.

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Nalley, 166 P.3d 47, 50-55 (Alaska 2007); Walsh v. Ogorzalek, 372

Mass. 271, 361 N.E.2d 1247, 1250 (1977).

But several States, including Ohio, did not alter their tolling

statutes, whether via amendment or interpretation. The tolling laws

of Ohio thus work today the way they always have worked. Seeley

v. Expert, Inc., 26 Ohio St.2d 61, 269 N.E.2d 121, 128 (Ohio 1971)

(refusing to interpret Ohio’s tolling statute to apply to a defendant

only when Ohio’s long-arm statute could not reach him).

Garber at 841-842.

{¶ 17} We agree with the Sixth Circuit’s summary in Garber of the history

of Ohio’s tolling statute and find as that court did: that the underpinnings of R.C.

2305.15(A) are wholly innocuous. Nothing in the history of the tolling statute

suggests that its enactment was motivated by a desire to undertake state economic

protectionism; rather, “Ohio passed the law to address a quaint problem—that

plaintiffs at one point in American legal history had no authority to pull out-of-state

individuals or entities into the jurisdiction to defend a lawsuit,” Garber at 843.

{¶ 18} We also find that the practical effects of the facially neutral law are

not so onerous on interstate commerce that they disclose some hidden economic

protectionism. See Ross, 598 U.S. at 377 (“a law’s practical effects may also

disclose the presence of a discriminatory purpose”). The primary practical effect

of R.C. 2305.15(A) is to toll the statutory periods for commencing a lawsuit while

a defendant is not present in the State.4 Although the tolling statute may no longer

be as necessary as it was a century ago since personal jurisdiction is no longer tied

4. R.C. 2305.15 as amended effective October 24, 2024, provides that the tolling provision set forth

in division (A)(1)—the language of which is substantially similar to the language in the version of

R.C. 2305.15(A) that we analyze here—does not apply to statutes of repose, including those

contained in R.C. 2305.113(C) or (D) pertaining to medical claims. See 2024 Am.H.B. No. 179.

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to a defendant’s physical presence within the State, the law nevertheless serves a

legitimate local purpose: It stops the running of the statutory periods for

commencing a lawsuit when a defendant is out of the State and potentially difficult

to locate. See Garber at 846. The tolling statute applies with equal force to both

residents and nonresidents of Ohio. See Johnson, 2000-Ohio-235. And nothing

about R.C. 2305.15(A) directly regulates or touches on trade or business or any of

the instrumentalities thereof—i.e., things traditionally associated with commerce.

Thus, if R.C. 2305.15(A) can be said to have any practical effects on interstate

commerce, those effects are incidental in nature, and are, at any rate, entirely

dependent on the factual circumstances of each case.

Tier II Review: R.C. 2305.15(A) Does Not Unduly Burden Interstate

Commerce

{¶ 19} Although the dormant Commerce Clause is generally “concern[ed]

with preventing purposeful discrimination against out-of-state economic interests,”

Ross at 371, the United States Supreme Court nevertheless acknowledged that it

has “left the courtroom door open to challenges premised on even

nondiscriminatory burdens” and that “a small number of [its] cases have invalidated

state laws . . . that appear to have been genuinely nondiscriminatory” (cleaned up),

id. at 379. Our task here under the second tier of review is to determine whether

the present challenge to R.C. 2305.15(A) presents one of those rare instances in

which a genuinely nondiscriminatory law should be struck down as

unconstitutional because it is overly burdensome to interstate commerce. In

making this determination, we are aided by the Pike balancing test, which instructs

that a nondiscriminatory law must be upheld “unless the burden imposed on

[interstate] commerce is clearly excessive in relation to the putative local benefits,”

Pike, 397 U.S. at 142. We find that the balancing test weighs in favor of upholding

the constitutionality of R.C. 2305.15(A).

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{¶ 20} The putative local benefit of R.C. 2305.15(A) is to toll the running

of the time for filing a lawsuit while a defendant remains out of the State, because

an out-of-state defendant is potentially more difficult to locate and serve with a

lawsuit. See Garber, 888 F.3d at 846-847. Here, Dr. Acharya takes the position

that R.C. 2305.15(A) is unconstitutional because it discourages people like her

from leaving the State for legitimate business purposes because of the threat of

“perpetual liability” if the statutory period for commencing any potential lawsuit

against them were to toll. Ultimately, this is the position that the Eleventh District

adopted. In reaching its decision, the court of appeals relied on Bendix. The United

States Supreme Court in Bendix held that applying Ohio’s tolling statute to an out-

of-state corporation violates the dormant Commerce Clause because the

corporation would be forced “to choose between exposure to the general

jurisdiction of Ohio courts or forfeiture of the limitations defense, remaining

subject to suit in Ohio in perpetuity.” Bendix, 486 U.S. at 893. The Court held that

facing general jurisdiction for “all transactions, including those in which it did not

have the minimum contacts necessary for supporting personal jurisdiction is a

significant burden” that the tolling statute imposed only on out-of-state

corporations. Id. According to the Court, that burden far outweighed the statute’s

local benefit of “protecting its residents from corporations who become liable for

acts done within the State but later withdraw from the jurisdiction,” because Ohio’s

long-arm statute provides a similar local benefit in most instances. Id. at 894.

{¶ 21} The Eleventh District determined that the United State Supreme

Court’s holding in Bendix controls the outcome of this case. See 2023-Ohio-264 at

¶ 39 (11th Dist.). In doing so, it noted its prior agreement with a federal district

court’s understanding of the law as being one by which “‘interstate commerce is

clearly affected when persons move between states in the course of or in search of

employment,’” id., quoting Lovejoy v. Macek, 122 Ohio App.3d 558, 562 (11th Dist.

1997), citing Tesar v. Hallas, 738 F.Supp. 240, 242 (N.D.Ohio 1990). Having

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determined that “there [was] no dispute that Dr. Acharya [had] moved from Ohio

for legitimate business purposes,” id., the court of appeals held that “the tolling

statute [could not] be constitutionally applied to her,” id.

{¶ 22} In light of the United States Supreme Court’s decision in Ross,5 we

disagree with the Eleventh District’s determination that R.C. 2305.15(A) is

unconstitutional as applied to Dr. Acharya on the grounds that commerce is affected

when people move from one state to another. As noted above, the Supreme Court’s

decision in Ross made clear that just because a state law may have practical effects

on interstate commerce does not mean that the law will be struck down as

unconstitutional under the dormant Commerce Clause. See Ross, 598 U.S. at 377-

379 (explaining that to be struck down as unconstitutional, the state law must be

shown to have a discriminatory effect or to impose such a substantial burden on

interstate commerce that it overcomes the Pike balancing test). Furthermore,

despite the Supreme Court’s holding in Bendix, we are not convinced that the

burden imposed by R.C. 2305.15(A) on Dr. Acharya is clearly excessive in relation

to the statute’s putative local benefit.

{¶ 23} To begin with, there is a stark contrast between the facts presented

in this case and those in Bendix. In Bendix, the defendant corporation was an out-

of-state entity that did some business in Ohio. Bendix, 486 U.S. at 889. To be

considered present within the State for purposes of Ohio’s tolling statute, the

corporation would have had to have hired a statutory agent for service of process

in Ohio and by doing so, would have succumbed to the general jurisdiction of Ohio

for all lawsuits—regardless of whether the lawsuit originated in Ohio. Id. at 892-

894. The Supreme Court found that this burden on interstate commerce outweighed

the local benefit of R.C. 2305.15(A) as applied to the corporation. Id. at 894. This

makes sense. To have held otherwise would have meant that any corporation doing

5. The Supreme Court issued its decision in Ross less than four months after the Eleventh District

issued its decision in this case.

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January Term, 2024

business in Ohio would have to hire a statutory agent for service of process in Ohio

and submit to the general jurisdiction of Ohio courts because that corporation now

has a physical presence in Ohio. Under such circumstances, Ohio courts might

have become an epicenter of all business and tort litigation in the country just

because of its tolling statute. This certainly would have had a significant impact on

interstate commerce.

{¶ 24} But it is important to note here that unlike the defendant corporation

in Bendix, Dr. Acharya is not a corporation, a business, or any other kind of entity

that is in the business of regularly trading goods or services across state lines for

profit. Dr. Acharya is a physician. As a physician, her relationship to commerce is

attenuated, at best. As a physician, Dr. Acharya is also subject to state-medical-

board licensing in whichever state she chooses to practice, and state medical-

licensing laws have been upheld as valid health-and-safety regulations imposed at

the state level. See Hillsborough Cty., Fla. v. Automated Med. Laboratories, Inc.,

471 U.S. 707, 717 (1985). It appears to us that factors such as where a physician is

licensed to practice medicine, the particular field of medicine a physician

specializes in, and the locations of training programs and availability of attending

positions to which a physician may be accepted are likely just as impactful if not

more impactful determinants of whether a physician will cross state lines to practice

medicine or will be limited in his or her movement than Ohio’s tolling statute.

Indeed, the same could be said for the impact of other state laws like state income-

tax laws and property-tax laws. Each of these factors may, individually or together,

persuade a physician not to relocate to another State. Although we understand that

the effect of R.C. 2305.15(A) on a physician’s movement for legitimate business

purposes must be evaluated in its own right—an analysis we endeavor to engage in

despite limited evidence in the record—we mention these other factors because they

help frame the conversation around whether and to what extent R.C. 2305.15(A)

impacts a physician’s decision to remain in Ohio or to leave the State and practice

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medicine elsewhere and whether this impact is, in the grand scheme of things,

substantial enough for the statute to survive the Pike balancing test.

{¶ 25} Of course, we do not disagree with Dr. Acharya’s counsel’s

averments at oral argument that there may be times when a physician may regularly

cross state lines for legitimate business purposes, such as when a renowned surgeon

in a specialized field travels to perform a complicated procedure. It is

hypothetically possible that in such circumstances, Ohio’s tolling statute may

dissuade some physicians from traveling into or out of Ohio for fear of being

exposed to continuing legal liability. But we are not persuaded that this is so

common an occurrence that “the burden imposed on [interstate] commerce is

clearly excessive in relation to the putative local benefits,” Pike, 397 U.S. at 142.

At least, we see no such evidence in this record, and it is Dr. Acharya who has the

burden of proving R.C. 2305.15(A) unconstitutional by means of actual evidence,

not just hypotheticals, see Boczar, 2007-Ohio-1251, at ¶ 9. As the United States

Court of Appeals for the Seventh Circuit explained,

[a]ny balancing approach, of which Pike is an example, requires

evidence. It is impossible to tell whether a burden on interstate

commerce is “clearly excessive in relation to the putative local

benefits” without understanding the magnitude of both burdens and

benefits. Exact figures are not essential (no more than estimates

may be possible) and the evidence need not be in the record if it is

subject to judicial notice, but it takes more than lawyers’ talk to

condemn a statute under Pike.

(Citations omitted.) Baude v. Heath, 538 F.3d 608, 612 (7th Cir. 2008). On the

record we have before us, we find that R.C. 2305.15(A) does not impose a burden

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January Term, 2024

on interstate commerce that is clearly excessive in relation to its putative local

benefits.

CONCLUSION

{¶ 26} We hold that Ohio’s tolling statute, specifically R.C. 2305.15(A),

does not violate the dormant Commerce Clause of the United States Constitution

as applied to a physician who left Ohio to practice medicine in another state. We

therefore reverse the judgment of the Eleventh District Court of Appeals and

remand this matter to the trial court for further proceedings.

Judgment reversed

and cause remanded to the trial court.

__________________

Plevin & Gallucci Co., L.P.A., Michael D. Shroge, and Frank L. Gallucci

III; and Flowers & Grube, Paul W. Flowers, and Kendra N. Davitt, for appellant.

Buckingham, Doolittle & Burroughs, L.L.C., Dirk E. Riemenschneider, and

Justin S. Greenfelder, for appellees.

Dave Yost, Attorney General, T. Elliot Gaiser, Solicitor General, and

Michael J. Hendershot, Chief Deputy Solicitor General, urging reversal for amicus

curiae, Ohio Attorney General Dave Yost.

__________________

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