[Cite as Erwin v. Bryan, 125 Ohio St.3d 519, 2010-Ohio-2202.]




  ERWIN, ADMR., APPELLEE, v. BRYAN ET AL.; SWOGER ET AL., APPELLANTS.
         [Cite as Erwin v. Bryan, 125 Ohio St.3d 519, 2010-Ohio-2202.]
Civ.R. 15 — Name of party unknown — Pursuant to Civ.R. 15(D), a complaint
        against a party whose name is unknown must describe the defendant and a
        summons containing the words “name unknown” must be personally
        served on the defendant — Civ.R. 15(D) does not authorize a claimant to
        designate defendants using fictitious names as placeholders in a complaint
        filed within the statute-of-limitations period and then identify, name, and
        personally serve those defendants after the limitations period has elapsed.
   (No. 2009-0580 — Submitted January 12, 2010 — Decided May 25, 2010.)
            APPEAL from the Court of Appeals for Tuscarawas County,
                            No. 08-CA-28, 2009-Ohio-758.
                                 __________________
                               SYLLABUS OF THE COURT
1. Pursuant to Civ.R. 15(D), a complaint against a party whose name is unknown
        must describe the defendant and a summons containing the words “name
        unknown” must be personally served on the defendant.
2. Civ.R. 15(D) does not authorize a claimant to designate defendants using
        fictitious names as placeholders in a complaint filed within the statute-of-
        limitations period and then identify, name, and personally serve those
        defendants after the limitations period has elapsed.
                                 __________________
        O’DONNELL, J.
        {¶ 1} Civ.R. 15(D) provides that when a plaintiff does not know the
name of a defendant, the defendant may be designated in a complaint by any
name and description. It also provides, however, that a plaintiff must aver in the
                            SUPREME COURT OF OHIO




complaint that the name of the defendant could not be discovered, that the
summons issued must contain the words “name unknown,” and that a copy of the
summons must be personally served on the defendant.
       {¶ 2} Civ.R. 15(D) cannot be used to prosecute this action against
William V. Swoger, D.O., and his professional corporation, Union Internal
Medicine Specialties, Inc. (“UIMS”), because at all times relevant to this
proceeding the claimant, Cora Erwin, knew Swoger’s name. Even if she did not
know his name, the effort to use Civ.R. 15(D) to designate Swoger and UIMS as
John Doe defendants did not meet the requirements of the rule in that the
description of the John Doe defendants did not provide sufficient identification to
permit a copy of the summons containing the words “name unknown” to be
personally served upon Swoger or UIMS. And, in fact, no summons containing
the words “name unknown” was ever issued or personally served.
       {¶ 3} Rather, Cora attempted to use Civ.R. 15(D) to name, without
adequately describing, John Doe defendants; she did not request that a summons
issue containing the words “name unknown”; nor did she serve such a summons
on any party. After the two-year statute of limitations for wrongful death had
expired, Cora learned during the discovery deposition of Joseph E. Bryan, M.D.,
of Swoger’s possible culpability.    Cora then amended the complaint to add
Swoger and UIMS, whom she identified as two of the John Doe defendants
named in the original complaint. This, however, is an improper use of the rule.
Pursuant to Civ.R. 15(D), a complaint against a party whose name is unknown
must describe the defendant, and a summons containing the words “name
unknown” must be personally served on the defendant.
       {¶ 4} To construe the rule to allow the use of placeholders for
unidentified defendants would eliminate the statute of limitations for every cause
of action. That is not the purpose of Civ.R. 15(D), and any indication that such a
use is sanctioned by the court is disavowed. The Rules of Civil Procedure are




                                        2
                                January Term, 2010




promulgated to govern the procedural aspects of litigation. Establishing state
policy, including imposing a statute of limitations for a cause of action such as
wrongful death, is the province of the legislative, not the judicial, branch of
government. Neither the Rules of Civil Procedure nor our case law ought be
interpreted or understood to set policy or change existing statutes of limitation for
causes of action.
       {¶ 5} For these reasons, the judgment of the court of appeals is reversed,
and the judgment of the trial court granting summary judgment in favor of
Swoger and UIMS is reinstated.
                          Facts and Procedural History
       {¶ 6} On June 29, 2004, 52-year-old Russell Erwin awoke after midnight
appearing feverish and disoriented, and he began to convulse. His wife, Cora,
called 9-1-1. Paramedics responded, found Erwin unconscious, and transported
him to Union Hospital, where he entered the intensive care unit (“ICU”) as a
patient of Joseph E. Bryan, M.D., who was on call at the hospital at that time.
Because Erwin remained unconscious and seizing, Bryan ordered him sedated.
       {¶ 7} Bryan also sought a consultation by William V. Swoger, D.O., to
evaluate Erwin’s intermittent airway obstruction, and, in his report, Bryan noted
that Erwin had a family history of deep venous thrombosis and pulmonary
embolism. However, Bryan’s impression was that Erwin suffered from alcohol-
withdrawal syndrome.
       {¶ 8} Swoger inserted a breathing tube for Erwin because of the upper
airway obstruction, which Swoger believed had been caused by the sedation and
Erwin’s unresponsiveness. Cora, a housekeeping employee at the hospital,
recognized Swoger and observed him caring for her husband. On the basis of his
examination and his discussion with Bryan, Swoger diagnosed Erwin as suffering
from acute respiratory failure. His report concluded: “Critical care time was 80




                                         3
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minutes. Thanks for allowing [me] to participate in his care. I will follow him in
the ICU setting and give further advice as warranted.”
         {¶ 9} Bryan continued to treat Erwin for alcohol-withdrawal syndrome,
and as hospital staff ceased sedating him, Erwin regained consciousness, and the
breathing tube was removed.        When Erwin’s condition improved, Paul W.
McFadden, M.D., his family doctor, assumed responsibility for his care.
McFadden discharged Erwin from the hospital on July 6, 2004, and prepared a
report in which he indicated a diagnosis of seizures secondary to alcohol
withdrawal. In his report, McFadden noted that “Dr. Swoger was consulted who
assisted in helping manage the respirator.”
         {¶ 10} While recovering at home the next week, Erwin continued to
experience fatigue and complained of nausea. On July 15, 2004, his wife heard a
loud noise coming from another room and discovered Erwin convulsing on the
floor.    She called 9-1-1, but when paramedics arrived, they found him
unresponsive and without a pulse. They transported him to Union Hospital,
where attempts at resuscitation proved unsuccessful. Cora alleges that an autopsy
revealed a massive and fatal pulmonary thromboembolism with evidence of both
recent and organizing peripheral thromboemboli.
         {¶ 11} On July 10, 2006, a few days before the expiration of the statute of
limitations for wrongful death, Cora, individually and as administrator of her
husband’s estate, filed a complaint against Bryan, his professional corporation,
the Union Hospital Association, “John Doe, M.D. No. 1 through 5 (whose real
names and addresses are unknown at the time of filing this Complaint despite
Plaintiffs’ Best and Reasonable Efforts to Ascertain Same),” and the professional
corporations of each John Doe, M.D., alleging that the medical providers
negligently failed to timely diagnose and treat Erwin for the pulmonary embolism,
resulting in his death.    Significantly, no John Doe defendant was personally




                                          4
                                 January Term, 2010




served with a summons containing the words “name unknown” before the
expiration of the statute of limitations.
         {¶ 12} On September 21, 2006, Cora received the Union Hospital medical
records. In his deposition on February 7, 2007, Bryan revealed that he had
consulted with Swoger to evaluate Erwin’s respiratory status and that he and
Swoger understood that Swoger would manage Erwin’s critical care.
         {¶ 13} Thereafter, on June 29, 2007, Cora moved to amend her complaint
to substitute Swoger and UIMS, for John Doe, M.D., and John Doe, M.D.,
Professional Corporation, asserting that she had only recently learned of Swoger’s
role in her husband’s care during the discovery deposition of Bryan. She served
the summons and complaint on Swoger and UIMS on June 29, 2007.
         {¶ 14} The trial court granted leave to amend the complaint, and Cora
filed an amended complaint.        A week later, she filed an affidavit of Joseph
Caprini, M.D., who averred that he had reviewed Erwin’s medical records and
that in his professional opinion Union Hospital, Bryan, and Swoger breached the
standard of care and caused the alleged injuries.
         {¶ 15} The trial court entered summary judgment in favor of Swoger and
UIMS, finding that the claims were time-barred and that Civ.R. 15(D) did not
apply.
         {¶ 16} On appeal, the Fifth District Court of Appeals reversed, holding
that a plaintiff who is unaware of the culpability of a particular person at the time
of filing the complaint may rely on Civ.R. 15(D) to designate a defendant by a
fictitious name, explaining that “a person’s name may be ‘known’ to a plaintiff,
but be ‘unknown’ as a defendant for purposes of litigation.” Erwin v. Bryan,
Tuscarawas App. No. 08-CA-28, 2009-Ohio-758, ¶ 36. Based on this reasoning,
the court concluded that until Cora deposed Bryan, “she had no reason to believe
that Swoger’s conduct was potentially negligent.” Id. at ¶ 37.




                                            5
                             SUPREME COURT OF OHIO




       {¶ 17} Swoger and UIMS appealed that decision to this court, contending
that Cora’s first amended complaint does not relate back to the filing of the
original complaint and is therefore barred by the two-year statute of limitations
for wrongful-death actions. They further contend that Civ.R. 15(D) does not
permit her to designate Swoger by a fictitious name, because she knew both his
name and his involvement in her husband’s care at the time she filed the original
complaint. Instead, they maintain that she had a duty to identify all potential
tortfeasors prior to the expiration of the statute of limitations and that her lack of
diligence in seeking counsel, obtaining medical records, and determining
Swoger’s potential culpability has resulted in her complaint being time-barred.
       {¶ 18} In this court, Cora maintains that the first amended complaint
naming Swoger and UIMS relates back to her timely filed original complaint.
She asserts that a plaintiff does not know the name of a defendant for purposes of
Civ.R. 15(D) until the plaintiff knows of the culpability of that party. She notes
that she did not have all of her husband’s medical records at the time she filed her
complaint, and she argues that even after receiving those records, “not even a
clairvoyant could have predicted that Dr. Swoger could be held responsible” until
Bryan “began to deflect blame toward others during his deposition.” She urges
the court to hold that a defendant in a medical-malpractice action is “known” for
purposes of Civ.R. 15(D) when the actionable conduct could have been
sufficiently understood to permit the plaintiff to obtain an affidavit of merit from
a medical expert.
       {¶ 19} Cora and amicus curiae Ohio State Bar Association suggest that a
contrary holding will result in every health-care provider mentioned in a patient’s
medical records being named in medical-malpractice actions. However, pursuant
to Civ.R. 10(D)(2), an affidavit of merit is required to establish the adequacy of a
medical complaint, and the failure to file an affidavit of merit renders it subject to
dismissal for failure to state a claim upon which relief can be granted. See




                                          6
                                   January Term, 2010




Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, 897
N.E.2d 147, ¶ 13. The affidavit-of-merit requirement thus prevents the filing of
medical claims that are not supported by an expert’s opinion, and it deters filing
actions against all medical providers who cared for a patient.
       {¶ 20} Accordingly, in this case, we focus our attention on the use of
Civ.R. 15(D) to name a John Doe defendant in a complaint and to later amend
that complaint after the expiration of the statute of limitations to identify and
serve a new party to the action.
          Amendment Where the Name of a Defendant is Unknown
       {¶ 21} Civ.R. 15(D) provides: “When the plaintiff does not know the name
of a defendant, that defendant may be designated in a pleading or proceeding by
any name and description. When the name is discovered, the pleading or
proceeding must be amended accordingly. The plaintiff, in such case, must aver in
the complaint the fact that he could not discover the name. The summons must
contain the words ‘name unknown,’ and a copy thereof must be served personally
upon the defendant.” (Emphasis added.)
       {¶ 22} As we explained in State ex rel. Law Office of Montgomery Cty.
Pub. Defender v. Rosencrans, 111 Ohio St.3d 338, 2006-Ohio-5793, 856 N.E.2d
250, ¶ 23, “To interpret court rules, this court applies general principles of
statutory construction. * * * Therefore, we must read undefined words or phrases
in context and then construe them according to rules of grammar and common
usage.” If a court rule is unambiguous, we apply it as written. State ex rel. Potts
v. Comm. on Continuing Legal Edn. (2001), 93 Ohio St.3d 452, 456, 755 N.E.2d
886.
       {¶ 23} According to its unambiguous language, Civ.R. 15(D) provides
that a plaintiff may designate a defendant in a complaint by any name and
description when the plaintiff does not know the name of that party. Thus, Civ.R.
15(D) does not permit a plaintiff to designate a defendant by a fictitious name



                                           7
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when the plaintiff actually knows the name of that defendant. Further, when a
plaintiff designates a defendant by a fictitious name, Civ.R. 15(D) requires that
the plaintiff provide a description of the defendant in the pleadings and aver in the
complaint the fact that the plaintiff could not discover the name. The rule also
directs that the summons contain the words “name unknown” and be personally
served on the defendant.
         {¶ 24} We previously construed Civ.R. 15(D) in Varno v. Bally Mfg.
Co. (1985), 19 Ohio St.3d 21, 19 OBR 18, 482 N.E.2d 342, holding that “the
application of Civ.R. 15(D) is limited to those cases in which the defendant’s
identity and whereabouts are known to the plaintiff, but the actual name of the
defendant is unknown.” (Emphasis added.) Id. at 24. We explained: “Civ.R.
15(D) is clear; the complaint must sufficiently identify the unknown defendant so
that personal service can be obtained upon filing the lawsuit.” Id.
         {¶ 25} Our holding in Varno has been superseded on other grounds by an
amendment to Civ.R. 3(A), but it should be noted that Civ.R. 15(D) has not been
amended.1 Further, nowhere in our decision in Amerine v. Haughton Elevator Co.
(1989), 42 Ohio St.3d 57, 537 N.E.2d 208, in which we suggested that Varno had
been negated by the amendment to Civ.R. 3(A), did we overrule the holding in
Varno that Civ.R. 15(D) applies only when the plaintiff has identified but does

1. In Varno, we also held that “where a complaint is filed which designates certain defendants by
fictitious names, the cause of action is barred by the statute of limitations if the original complaint
or an amended complaint substituting the actual names of the defendants is not personally served
within the limitations period.” Id., at the syllabus. Subsequent to our decision in Varno, this court
amended Civ.R. 3(A) to specify that “[a] civil action is commenced by filing a complaint with the
court, if service is obtained within one year from such filing * * * upon a defendant identified by a
fictitious name whose name is later corrected pursuant to Civ.R. 15(D).” Thereafter, in Amerine v.
Haughton Elevator Co. (1989), 42 Ohio St.3d 57, 537 N.E.2d 208, we recognized that this
amendment had “effectively negate[d] our holding in Varno,” id. at 58, fn. 1., and stated that “the
use of a fictitious name with subsequent correction, by amendment, of the real name of a
defendant under Civ.R. 15(D) relates back to the filing of the original complaint and * * * service
must be obtained within one year of the filing of the original complaint. Under Civ.R. 3(A), as
amended, service does not have to be made on the formerly fictitious, now identified, defendant
within the statute of limitations as long as the original complaint has been filed before expiration
of the statute of limitations.” Id. at 59.




                                                  8
                                January Term, 2010




not know the actual name of the defendant. Rather, Amerine stands only for the
proposition that a plaintiff may benefit from the one-year period allowed in Civ.R.
3(A) to perfect personal service upon the fictitiously named defendant if the
plaintiff has otherwise complied with Civ.R. 15(D) in filing the complaint.
Amerine, 42 Ohio St.3d at 58, 537 N.E.2d 208; see also LaNeve v. Atlas
Recycling, Inc., 119 Ohio St.3d 324, 2008-Ohio-3921, 894 N.E.2d 25, ¶ 15
(holding that an amended complaint substituting the real name for a fictitiously
named defendant does not relate back to the filing of the original complaint if the
summons does not contain the words “name unknown” and is not personally
served).
       {¶ 26} The construction of Civ.R. 15(D) that we articulated in Varno
accords with the principle that a plaintiff has the duty to identify the negligent
party once an injury has been discovered and the claim has accrued. As we
explained in Flowers v. Walker (1992), 63 Ohio St.3d 546, 550, 589 N.E.2d 1284,
“The identity of the practitioner who committed the alleged malpractice is one of
the facts that the plaintiff must investigate, and discover, once she has reason to
believe that she is the victim of medical malpractice.”        Once the claim has
accrued, the failure of the plaintiff to learn the identity of an allegedly negligent
party does not delay the running of the statute of limitations. Id.
       {¶ 27} In promulgating Civ.R. 15(D), we did not relieve a plaintiff of the
duty to identify culpable parties, nor did we extend the two-year statute of
limitations established by R.C. 2125.02(D)(1) for a wrongful-death claim
premised on medical malpractice when a claimant has not timely identified
culpable parties.
       {¶ 28} Notably, the Modern Courts Amendment of 1968, Section 5(B),
Article IV, Ohio Constitution, empowers this court to create rules of practice and
procedure for the courts of this state.         As we explained in Proctor v.
Kardassilaris, 115 Ohio St.3d 71, 2007-Ohio-4838, 873 N.E.2d 872, Section



                                          9
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5(B), Article IV “expressly states that rules created in this manner ‘shall not
abridge, enlarge, or modify any substantive right.’ ” Id. at ¶ 17. “Thus, if a rule
created pursuant to Section 5(B), Article IV conflicts with a statute, the rule will
control for procedural matters, and the statute will control for matters of
substantive law.” Id.
       {¶ 29} The existence and duration of a statute of limitations for a cause of
action constitutes an issue of public policy for resolution by the legislative branch
of government as a matter of substantive law. See Cundall v. U.S. Bank, 122
Ohio St.3d 188,         2009-Ohio-2523, 909 N.E.2d 1244, ¶ 22; Howard v.
Allen (1972), 30 Ohio St.2d 130, 137, 59 O.O.2d 148, 283 N.E.2d 167, quoting
Chase Securities Corp. v. Donaldson (1945), 325 U.S. 304, 314, 65 S.Ct. 1137,
89 L.Ed. 1628; see also State v. Slatter (1981), 66 Ohio St.2d 452, 455, 20 O.O.3d
383, 423 N.E.2d 100, fn.4 (an “indicant of substantive law is the magnitude of the
change in public policy found in a rule or statute”). Cf. State v. Hughes (1975), 41
Ohio St.2d 208, 70 O.O.2d 395, 324 N.E.2d 731, syllabus (invalidating court rule
enlarging prosecution’s statutory right of appeal).
       {¶ 30} We cannot, through a court rule, alter the General Assembly’s
policy preferences on matters of substantive law, and Civ.R. 15(D) therefore may
not be construed to extend the statute of limitations beyond the time period
established by the General Assembly. Instead, Civ.R. 15(D) is designed with the
limited purpose of accommodating a plaintiff who has identified an allegedly
culpable party but does not know the name of that party at the time of filing a
complaint.   Thus, Civ.R. 15(D) does not authorize a claimant to designate
defendants using fictitious names as placeholders in a complaint filed within the
statute-of-limitations period and then identify, name, and personally serve those
defendants after the limitations period has elapsed.
       {¶ 31} Accordingly, a plaintiff may use Civ.R. 15(D) to file a complaint
designating a defendant by any name and designation when the plaintiff does not




                                         10
                               January Term, 2010




know the name of that defendant, provided that the plaintiff avers in the complaint
that the name could not be discovered, the summons contains the words “name
unknown,” and that summons is personally served on the defendant. Although
the plaintiff may designate a defendant whose name is unknown by “any name
and description,” the complaint must nonetheless sufficiently identify that party to
facilitate obtaining personal service on that defendant upon the filing of the
complaint.
                           Application of Civ.R. 15(D)
         {¶ 32} The complaint here does not satisfy the requirements of Civ.R.
15(D).
         {¶ 33} First, Cora knew Swoger’s name at the time she filed the original
complaint by virtue of her employment at Union Hospital, and she recognized
him when he provided care to her husband. She also knew that her husband’s
death may have resulted from malpractice, her duty to investigate the identity of
alleged tortfeasors arose at that time, and the two-year statute of limitations for
wrongful-death actions controls the timeliness of the discovery of Swoger’s
alleged culpability. Notably, Caprini, the expert who examined records for Cora,
averred that his review of the medical records supported his opinion that Swoger
acted negligently. Because Cora knew Swoger’s name, she did not have the
option to designate him as a John Doe defendant in the original complaint,
notwithstanding the fact that she had not identified him as being responsible for
her husband’s death.
         {¶ 34} Second, even if Cora had not known the names of Swoger or his
professional corporation, UIMS, the original complaint did not provide a
description that sufficiently identified either so that personal service could be
obtained upon the filing of the complaint, as the rule directs. Cora brought this
action using the generic description of a doctor licensed in Ohio, whose actions
caused her husband’s death, and that doctor’s professional corporation.         She



                                        11
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therefore did not identify an individual or entity that could be personally served
with the summons as contemplated by Civ.R. 15(D), nor did she attempt personal
service on the fictitiously named defendants using descriptions provided in her
complaint.
       {¶ 35} Accordingly, because she failed to comply with Civ.R 15(D), the
amended complaint does not relate back to the timely filed original complaint,
and Cora therefore did not commence her action against Swoger and UIMS before
the statute of limitations expired.
       {¶ 36} Lastly, we have considered the views of our dissenting colleague
and examined the authority on which he relies, Chief Justice Celebrezze’s
dissenting opinion in Varno. A careful reading of that dissent reveals that Chief
Justice Celebrezze’s view comports with our interpretation of the Rules of Civil
Procedure. Notably, Chief Justice Celebrezze stated the following in his dissent:
       {¶ 37} “I agree that Civ.R. 15(D) will not save appellant's complaint as
that rule is designed to afford relief for a plaintiff who ‘does not know, and is
unable to discover, defendant's first name. He may file the action against
defendant in defendant's last name and later amend in order to set forth
defendant's full name.’ Staff Notes to Civ.R. 15(D). Rule 15(D) is not found in
the Federal Rules and is but a rule of convenience. Id.” Varno, 19 Ohio St.3d at
25, 19 OBR 18, 482 N.E.2d 342 (Celebrezze, C.J., dissenting).
       {¶ 38} Thus, the former chief justice has squarely anticipated the issue
presented in this case and recognized that Civ.R. 15(D) requires the identification
of a potential defendant prior to filing the complaint. Civ.R. 15(D) merely allows
the complaint to be filed and service to made on an identified party whose name is
not known.
       {¶ 39} However, recognizing that a claimant may not be able to identify
all culpable parties at the time of filing a complaint, we point out that nothing in
our opinion should be construed to prevent amendment of a timely filed complaint




                                        12
                                   January Term, 2010




before the expiration of the statute of limitations. See Civ.R. 15(A) (allowing a
party to amend a pleading by leave of court); Civ.R. 21 (“Parties may be dropped
or added by order of the court on motion of any party or of its own initiative at
any stage of the action and on such terms as are just”); see also Darby v. A-Best
Prods. Co., 102 Ohio St.3d 410, 2004-Ohio-3720, 811 N.E.2d 1117, ¶ 16, 36-37
(holding that the trial court has discretion to refuse to allow amendment to add
new party defendants when the plaintiff’s claims against them are, on their face,
“wholly futile”). Nor should this opinion be construed to limit application of
Civ.R. 34(D), which permits a plaintiff, prior to the filing of an action, to file a
petition for discovery to ascertain the identity of a potential adverse party, or R.C.
2317.48, which authorizes an action to discover facts from a potential adverse
party necessary to file a complaint.
                                       Conclusion
          {¶ 40} A claimant may use Civ.R. 15(D) to file a complaint designating a
defendant by any name and designation when the plaintiff has identified but does
not know the name of that party, provided that the plaintiff avers in the complaint
that the name of the defendant could not be discovered and a summons containing
the words “name unknown” is issued and personally served on the defendant.
Although a plaintiff may designate a defendant whose name is unknown by any
name and description, the complaint must nonetheless sufficiently identify that
specific party so that personal service may be made upon its filing.
          {¶ 41} The appellate court decision did not account for the requirements
of this rule. Accordingly, that judgment is reversed, and the judgment of the trial
court is reinstated.
                                                              Judgment accordingly.
          LUNDBERG STRATTON, O’CONNOR, LANZINGER, and GRENDELL, JJ.,
concur.
          PFEIFER, J., dissents.



                                           13
                              SUPREME COURT OF OHIO




          BROWN, C.J., not participating.
          DIANE V. GRENDELL, J., of the Eleventh Appellate District, sitting for
CUPP, J.
                                __________________
          PFEIFER, J., dissenting.
          {¶ 42} "In this case appellant unquestionably filed the complaint within
the applicable statute of limitations. The complaint was later amended to include
the correctly identified defendants but was nevertheless served within one year
after the original complaint was filed on the defendants originally named and
those initially described as unknown. Appellees received the exact same notice
they would have received had appellant correctly named them in the original
caption and then served them within the time provided for service in Civ.R. 3(A).
          {¶ 43} "I believe the majority's hypertechnical reading of our Civil Rules,
to require service on unknown defendants within the statute of limitations, is
unjustified, as such a construction imposes a greater hardship on a plaintiff who
can not identify a defendant than on a plaintiff who can identify him. Rule 3(A)
allows service on a known defendant after the statute of limitations has run so
long as it is served within one year of the complaint's filing (the action is deemed
commenced at filing). However, the majority's inconsistent application of the
rules' interaction demands service on an unknown defendant prior to the running
of the statute of limitations and makes no allowance for Civ.R. 3(A)'s post-filing
period.     Clearly, Rule 15(C) was designed to assist plaintiffs by allowing
amendments to relate back to the time of the original filing and was not intended
to add yet another obstacle in the path to the courthouse. 'Because of relation
back, the intervening statute of limitation does not interfere with the opportunity
to amend.' Staff Notes to Civ.R. 15(C)." (Emphasis sic and footnote omitted.)
Varno v. Bally Mfg. Co. (1985), 19 Ohio St.3d 21, 25-26, 19 OBR 18, 482 N.E.2d
342 (Celebrezze, C.J., dissenting).




                                            14
                               January Term, 2010




       {¶ 44} I can't offer a more coherent or concise explanation of why the
court is as wrong today as it was in 1985. I dissent.
                              __________________
       Paul W. Flowers Co., L.P.A., and Paul W. Flowers; and Becker &
Mishkind Co., L.P.A., Ronald Margolis, and Jessica A. Perse, for appellee.
       Hanna, Campbell & Powell, L.L.P., and Rocco D. Potenza, for appellants.
       Marianna Brown Bettman, William K. Weisenberg, and Eugene P.
Whetzel, urging affirmance for amicus curiae Ohio State Bar Association.
       Rourke & Blumenthal, L.L.P., Jonathan K. Stoudt, and Michael J. Rourke,
urging affirmance for amicus curiae Ohio Association for Justice.
       Bricker & Eckler, L.L.P., Anne Marie Sferra, and Bridget Purdue Riddell,
urging reversal for amici curiae Ohio State Medical Association, Ohio Hospital
Association, and Ohio Osteopathic Association.
                            ______________________




                                         15
