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Garber v. Menendez

United States Court of Appeals, Sixth Circuit

May 1, 2018

Marshall Garber, Plaintiff-Appellant,
v.
Heriberto Menendez, M.D., Defendant-Appellee.

          Argued: April 25, 2018

          Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:17-cv-01214-Patricia A. Gaughan, District Judge.

         ARGUED:

          Jacob J. Beausay, DONAHEY, DEFOSSEZ & BEAUSAY, Columbus, Ohio, for Appellant. Kevin M. Norchi, NORCHI FORBES LLC, Cleveland, Ohio, for Appellee.

          Eric E. Murphy, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Amicus Curiae.

         ON BRIEF:

          Jacob J. Beausay, DONAHEY, DEFOSSEZ & BEAUSAY, Columbus, Ohio, for Appellant.

          Kevin M. Norchi, Brendan M. Richard, NORCHI FORBES LLC, Cleveland, Ohio, for Appellee.

          Eric E. Murphy, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Amicus Curiae.

          Before: GUY, SUTTON, and COOK, Circuit Judges.

          OPINION

          SUTTON, CIRCUIT JUDGE.

         Minors injured by medical malpractice in Ohio have one year to sue their doctors after they turn eighteen. When Marshall Garber sued Dr. Heriberto Menendez for malpractice in May 2017, one year had come and gone. But Ohio tolls the statute of limitations if the defendant leaves the State. The clock stopped when Dr. Menendez left Ohio for Florida and stayed stopped when he chose to retire there. That differential treatment of residents and non-residents, says Dr. Menendez, violates the dormant Commerce Clause of the United States Constitution by disincentivizing individuals from leaving Ohio and offering their services (or retirement spending) in other States. But the Ohio tolling provision does not discriminate against out-of-state commerce any more than many other policy benefits reserved for residents of a given State, including the existence of an estate tax for Ohioans but not for Floridians. We reverse.

         I.

         In 2010, Dr. Menendez treated fifteen-year-old Garber for a fever, constipation, and back pain. The treatment did not go well. Garber became a paraplegic.

         Garber's first two attempts to sue Dr. Menendez failed. The state court dismissed Garber's initial lawsuit because he failed to file an affidavit from an expert witness in support of his claim. See Ohio Civ. R. 10(D)(2). In his second lawsuit, Garber tried to serve Dr. Menendez at his Ohio office, but (unbeknownst to him) Dr. Menendez ...


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