concurring in part and dissenting in part.
{¶ 226} I dissent from this court’s holding that R.C. 2305.10 is facially constitutional. I concur with the majority that R.C. 2305.10 is unconstitutional as applied to the appellant and that R.C. 4123.93 and 4123.931 are facially constitutional.
*233I
{¶ 227} It is hard to decide what is more offensive about the majority opinion regarding the facial constitutionality of R.C. 2305.10: how it arrives at its decision or what the decision means for Ohioans. How the decision will affect Ohioans is speculative at this point, but how the majority reaches its decision demonstrates a continued disdain for stare decisis and a propensity to engage in legal mumbo jumbo to obscure that fact.
{¶ 228} Today, the majority bases its decision on Sedar v. Knowlton Constr. Co. (1990), 49 Ohio St.3d 193, 551 N.E.2d 938, a case that has been overruled. It remains overruled. The case that overruled Sedar and declared statutes of repose unconstitutional pursuant to Section 16, Article I of the Ohio Constitution, Brennaman v. R.M.I. Co. (1994), 70 Ohio St.3d 460, 639 N.E.2d 425, remains in effect. Somehow, it does not control this case. This court’s decision in State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, 715 N.E.2d 1062, which reiterated our holding in Brennaman when the General Assembly once again imposed statutes of repose, is ignored. What has changed since this court last overruled statutes of repose in 1994 and 1999? Not the language of the statutes in question and not the Ohio Constitution.
{¶ 229} That this court was clear and blunt in Brennaman was no sin. Section 16, Article I of the Ohio Constitution is also clear and blunt: “All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.”
{¶ 230} As we said in Brennaman, “This section of the Ohio Constitution protects the right to seek redress in Ohio’s courts when one is injured by another.” 70 Ohio St.3d at 466, 639 N.E.2d 425. Brennaman relied in part upon this court’s decision in Burgess v. Eli Lilly & Co. (1993), 66 Ohio St.3d 59, 609 N.E.2d 140, in which “this court held that the General Assembly is constitutionally precluded from depriving a claimant of a right to a remedy ‘before a claimant knew or should have known of her injury.’ ” Brennaman, 70 Ohio St.3d at 466, 639 N.E.2d 425, quoting Burgess, 66 Ohio St.3d at 61, 609 N.E.2d 140. Burgess, in turn, relied upon “a line of cases including Mominee v. Scherbarth (1986), 28 Ohio St.3d 270, 28 OBR 346, 503 N.E.2d 717, Hardy v. VerMeulen (1987), 32 Ohio St.3d 45, 512 N.E.2d 626, and Gaines v. Pretemu-Cleveland, Inc. (1987), 33 Ohio St.3d 54, 514 N.E.2d 709, [in which] this court established a threshold point at which government may impose a statute of limitations on a potential claimant. That line of decisions established that a statute of limitations could not begin to run before a claimant knew or should have known of her injury.” Burgess, 66 Ohio St.3d at 60-61, 609 N.E.2d 140.
*234{¶ 231} As recently as two months ago, Brennaman was cited as authority by this court. In Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 44, the majority opinion cited Brennaman as an example of how this court has defined the rights associated with Section 16, Article I. The majority called this court’s interpretation “well settled”:
(¶ 232} “The definition of these rights is well settled. ‘When the Constitution speaks of remedy and injury to person, property, or reputation, it requires an opportunity granted at a meaningful time and in a meaningful manner.’ Hardy v. VerMeulen (1987), 32 Ohio St.3d 45, 47, 512 N.E.2d 626. We have interpreted this provision to prohibit statutes that effectively prevent individuals from pursuing relief for their injuries. See, e.g., Brennaman v. R.M.I. Co. (1994), 70 Ohio St.3d 460, 466, 639 N.E.2d 425 (finding a statute of repose unconstitutional because it deprived certain plaintiffs of the right to sue before they were aware of their injuries) * * *.”
{¶ 233} For good measure, the Arbino majority cited Brennaman yet again later in the opinion:
{¶ 234} “This right [to a remedy in an open court] protects against laws that completely foreclose a cause of action for injured plaintiffs or otherwise eliminate the ability to receive a meaningful remedy. See Brennaman, 70 Ohio St.3d at 466, 639 N.E.2d 425.” Arbino, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 96.
{¶ 235} The preceding paragraph should have controlled this case. But, in two months, Brennaman has morphed from a case worthy of citation as part of this court’s well-settled jurisprudence regarding Section 16, Article I of the Ohio Constitution to an object of derision by basically the same majority that relied upon it in Arbino.
{¶ 236} The majority states that stare decisis is “ ‘limited to circumstances “where the facts of a subsequent case are substantially the same as a former case,” ’ ” quoting Rocky River v. State Emp. Relations Bd. (1989), 43 Ohio St.3d 1, 5, 539 N.E.2d 103. In considering R.C. 4123.93 and 4123.931, the workers’ compensation subrogation statutes at issue in this case, the majority does indeed describe the significant differences between those statutes and the statutes reviewed in Holeton v. Crouse Cartage Co. (2001), 92 Ohio St.3d 115, 748 N.E.2d 1111. However, the majority makes no attempt to distinguish the statute of repose contained in R.C. 2305.10 from the one at issue in Brennaman — because there is no significant difference, and because Brennaman so clearly and so inconveniently spells out that statutes of repose are unconstitutional in Ohio.
{¶ 237} The majority cites Brennaman as an illustration of the kind of “unstructured approach to overruling a precedent” that led to the more “disciplined” approach set forth in Westfield v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-*2355849, 797 N.E.2d 1256. That approach necessarily includes an application of the talismanic Galatis factors. But the majority, in its attempted de facto overruling of Brennaman, employs none of the Galatis factors. Instead, it resorts to jurisprudence by insult. The author, who calls for civility in judicial opinions not her own (State ex rel. Ohio Gen. Assembly v. Brunner, 114 Ohio St.3d 386, 2007-Ohio-3780, 872 N.E.2d 912, ¶ 87), calls Brennaman “the classic example of the ‘arbitrary administration of justice’ that Galatis cautions against” and claims that “personal judicial whims” drove the result. Does the majority really believe that this court decided Brennaman arbitrarily, on a whim? Does the majority really mean to suggest that Brennaman was written on impulse, resulting from a sudden, capricious idea? Or is the majority simply forced to insult this court’s work in Brennaman because it has no basis to overrule it given the “judicial straitjacket” the majority zipped itself into in Galatisl Does the majority mean to likewise insult the supreme courts of other states that have found statutes of repose unconstitutional? See Heath v. Sears, Roebuck & Co. (1983), 123 N.H. 512, 464 A.2d 288; Lankford v. Sullivan, Long & Hagerty (Ala.1982), 416 So.2d 996; Hazine v. Montgomery Elevator Co. (1993), 176 Ariz. 340, 861 P.2d 625; Battilla v. Allis Chalmers Mfg. Co. (Fla.1980), 392 So.2d 874; Perkins v. Northeastern Log Homes (Ky.1991), 808 S.W.2d 809; Hanson v. Williams Cty. (N.D.1986), 389 N.W.2d 319; Kennedy v. Cumberland Eng. Co. (R.I.1984), 471 A.2d 195; Berry v. Beech Aircraft Corp. (Utah 1985), 717 P.2d 670.
{¶ 238} The majority repeats the bromide that “the legislative branch is ‘the ultimate arbiter of public policy,’ ” quoting Arbino, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 21. The governor, with his role in setting the public policy agenda and armed with a veto, might dispute that characterization. This court, as the steward of the ever-developing common law, also plays a vital role. But even accepting the majority’s characterization of the legislature’s role, the General Assembly may reach only as far as the Constitution allows. This court is the ultimate arbiter of what is constitutional.
{¶ 239} I do not agree that this court owes all legislation passed by the General Assembly the presumption of constitutionality. This presumption, regrettably employed even by me in a few majority opinions, has no basis in the Constitution. Our role is to determine constitutionality, and we undermine our constitutional role by accepting any impingement on that power by any other branch of government.
{¶ 240} In Sheward, 86 Ohio St.3d 451, 715 N.E.2d 1062, this court held that the General Assembly’s attempt to subvert this court’s decision in Brennaman by again passing statutes of repose was unconstitutional. In 1996 Am.Sub.H.B. No. 350, the collection of statutes at issue in Sheward, the General Assembly reenacted the statute overturned in Brennaman as a 15-year statute of repose *236with certain exceptions, provided for a 15-year statute of repose for wrongful-death actions involving a products-liability claim, a 15-year statute of repose for products-liability claims, a six-year statute of repose for professional malpractice claims other than medical, and a six-year statute of repose for medical malpractice claims. See Sheward, 86 Ohio St.3d at 476, 715 N.E.2d 1062. This court wrote that “[i]n enacting and/or amending these sections, the General Assembly chose to usurp this court’s constitutional authority by refusing to recognize our holdings in Brennaman, Cyrus [v. Henes (1994), 70 Ohio St.3d 640, 640 N.E.2d 810], and Ross [v. Tom Reith, Inc. (1995), 71 Ohio St.3d 563, 645 N.E.2d 729].” Id.
{¶ 241} In rejecting the General Assembly’s attempt to reintroduce statutes of repose, the Sheward court wrote:
{¶ 242} “The following language from Bartlett [v. State (1905), 73 Ohio St. 54, 58, 75 N.E. 939], has particular force here:
{¶ 243} “ Tt is sufficient to say that we adhere to [our prior] ruling [declaring acts to be in violation of the constitution]; and that the sections of the statutes now under consideration do not stop short of being a mandate to all of the courts [to accept as legal that which we have declared unconstitutional]. This we regard as wholly beyond the power conferred upon the general assembly by the constitution. The power conferred upon the general assembly is legislative power, and that body is expressly prohibited from exercising any judicial power which is not expressly conferred by the constitution. Article 2, section 32.
{¶ 244} “ ‘At this time, the limits of the power invested in the respective coordinate branches of the government [are] so well defined and so generally understood, that we are constrained to believe that, whatever may have been the thought of the persons who drafted them, the enactment of these sections was an inadvertence on the part of the general assembly; for it is well settled that the legislature cannot annul, reverse or modify a judgment of a court already rendered, nor require the courts to treat as valid laws those which are unconstitutional. If this could be permitted the whole power of the government would at once become absorbed and taken into itself by the legislature.’ ” Sheward, 86 Ohio St.3d at 477-478, 715 N.E.2d 1062.
{¶ 245} Sheward’s discussion on statutes of repose concluded with an admonition ignored by the majority in this case: “While some members of this court, now and in the past, may disagree with the holding in Brennaman, no member of this court can, consistent with his or her oath of office, find that the General Assembly has operated within the boundaries of its constitutional authority by brushing aside a mandate of this court on constitutional issues as if it were of no consequence. Indeed, the very notion of it threatens the judiciary as an *237independent branch of government and tears at the fabric of our Constitution.” Sheward, 86 Ohio St.3d at 478, 715 N.E.2d 1062.
{¶ 246} And so it goes.
{¶247} I would also hold that R.C. 2305.10 violates the Equal Protection Clause of the Ohio Constitution. Section 2, Article I guarantees that citizens shall not be denied equal protection of the law. When the legislation at issue creates classifications involving a fundamental right, it becomes the subject of strict judicial scrutiny and will be upheld only upon a showing that it is justified by a compelling state interest. Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 423, 633 N.E.2d 504.
{¶ 248} In R.C. 2305.10(C), the General Assembly allows a person injured nine years after purchasing a product to assert a cause of action against the manufacturer, but bars a person injured ten years after purchasing a product from bringing the same claim. R.C. 2305.10 takes from one class of potential plaintiffs a fundamental right — the right to a remedy. The General Assembly has failed to assert a compelling state interest to legitimize that distinction.
{¶ 249} The majority applies a rational-basis review to R.C. 2305.10, finding that the statute does not implicate a fundamental right. Even under that standard of review, R.C. 2305.10 fails. In its “statement of findings and intent,” found in Section 3(C) of 2004 Am.Sub.H.B. No. 80, the General Assembly unsuccessfully attempts to articulate a rational basis for the statute’s distinctions. The majority seems satisfied that the General Assembly bothered to create a “statement of findings and intent,” applying no analysis to the statement itself, other than quoting it and essentially saying, “Sounds good to us.”
{¶250} The statement proclaims that subsequent to the delivery of the product, the manufacturer or supplier loses control over the product and that it is more appropriate for the party in control of the product during the intervening time period to be responsible for any harm caused by the product. But that loss of control happens immediately, not at the ten-year mark.
{¶ 251} The General Assembly attempts to legitimize the ten-year distinction by stating, without any support, that more than ten years after delivery, “it is very difficult for a manufacturer or supplier to locate reliable evidence and witnesses regarding the design, production, or marketing of the product.” S.B. 180, Section 3(C)(5). However, the expiration of the statute of repose is an affirmative defense. Thus, the burden will still be on the manufacturer to produce records showing that the product in question has been out of its hands for a period of more than ten years. In the absence of such a showing, there can be no affirmative defense. Thus, manufacturers will need to continue to maintain records. Second, the absence of records regarding a product is a greater handicap to a plaintiff trying to prove a defect than it is to the manufacturer. In *238a products-liability case, the burden of proof is on the plaintiff to show that the product in question is defective.
{¶ 252} The General Assembly suggests that the statute of repose will prevent the inappropriate application of current technological standards to older products. S.B. 80, Section 3(C)(6). This is a solution to a problem that does not exist. There is no statutory or case law that requires an older product to conform to current technological standards in a products-liability case.
{¶ 253} The General Assembly also claims that the statute of repose will “enhance the competitiveness of Ohio manufacturers.” Section 3(C)(7). However, one of the actual effects of the statute of repose in this case is to allow an out-of-state manufacturer to escape liability. Meanwhile, Groch’s Ohio employer, General Motors, remains completely liable and without any way to seek indemnification or contribution from the out-of-state manufacturer of the product that caused Groch’s injuries. Thus, in this case, the statute of repose is actually harming a company manufacturing in Ohio.
{¶ 254} Any serious review of the General Assembly’s “statement of findings and intent” would show that the statement is devoid of factual findings. Whether the statement is honest about the General Assembly’s real intent is dubious. In any case, it does not set forth a rational basis for discriminating against certain victims of defective products.
II
{¶ 255} We do not know yet the full impact of this case on Ohioans. We only know of its potential. Potentially, R.C. 2305.10 affects anyone who drives a car, crosses a bridge, rides an elevator, flies or rides in an airplane, utilizes a medical device, paints, mows grass, uses tools, or depends at all on any product in his or her daily existence. As an example, we can look to Minnesota and the aftermath of the recent 1-35 bridge collapse. Early indicators are that the bridge’s collapse may have originated with the failure of gusset plates that were sized too thin in the bridge’s original 1960s design, http://www.startribune.com/local/13796646. html. The bridge collapse presents an example of a design that was flawed ab initio; the bridge’s eventual collapse was built into it and was not the result of degrading materials. In Ohio, under the majority’s view, none of the victims of the collapse could recover against the designer of the bridge or the supplier of the gusset plates. In Ohio, if the collapse were due to substandard concrete or steel, those suppliers would escape liability if the bridge had been able to remain standing for merely a decade.
{¶ 256} We can look to the past to the infamous Ford Pinto, which had an alleged design flaw that made the car susceptible to bursting into flames upon a rear-end collision. In reviewing a jury verdict that found Ford liable for injuries *239suffered in such an accident, the court in Grimshaw v. Ford Motor Co. (1981), 119 Cal.App.3d 757, 813, 174 Cal.Rptr. 348, found:
{¶ 257} “Through the results of the crash tests Ford knew that the Pinto’s fuel tank and rear structure would expose consumers to serious injury or death in a 20- to 30-mile-per-hour collision. There was evidence that Ford could have corrected the hazardous design defects at minimal cost but decided to defer correction of the shortcomings by engaging in a cost-benefit analysis balancing human lives and limbs against corporate profits. Ford’s institutional mentality was shown to be one of callous indifference to public safety. There was substantial evidence that Ford’s conduct constituted ‘conscious disregard’ of the probability of injury to members of the consuming public.”
{¶ 258} Again, with the Pinto, the injury-causing flaw was part of the original design of the vehicle. It was not Ford’s lack of control over the product that led to the plaintiffs injuries; rather, the accident exposed the flaw that was in the Pinto to begin with. In Ohio, no matter what Ford knew or when it knew it, if the accident occurred after ten years from delivery, a plaintiff could have no recovery.
{¶ 259} Finally, we can look to the details of R.C. 2305.10, and the exceptions the General Assembly has carved out for certain products. The statute of repose contained in R.C. 2305.10(C) does not apply to certain claims — where symptoms tied to exposure often arise beyond ten years after exposure — involving the products described in R.C. 2305.10(B)(1) (hazardous or toxic chemicals, ethical drugs, or ethical medical devices), (B)(2) (chromium), (B)(3) (chemical defoliants or herbicides, including agent orange), and (B)(4) (diethylstilbestrol or other nonsteroidal synthetic estrogens). R.C. 2305.10(C)(7). Presumably, the General Assembly excepted these products because they have been proven to cause injuries years after a potential plaintiff was exposed to them. Products causing delayed injuries exist. Can we assume that the limited list of products in R.C. 2305.10(B) accounts for all such products? We should not. What is the product used by Ohioans today that will fail a decade from now? What is the product used by Ohioans today that is causing damage that will not be revealed until a decade from now? We cannot know. It is a harrowing thought that the products we use today that may be ticking time bombs — be they food additives, cell phones, automobiles — after ten years can leave us profoundly injured with no hope of recovery against the tortfeasor. For manufacturers, the bomb stops ticking at ten years. For Ohio’s consumers, once but no longer protected by the Ohio Constitution, the ticking continues.
Gallon, Takacs, Boissoneault & Schaffer Co., L.P.A., Kevin J. Boissoneault, Theodore A. Bowman, and Russell Gerney, for petitioners. Kerger & Associates and Kimberly Conklin; Lathrop & Gage L.C. and Patrick N. Fanning, for respondent General Motors Corporation. Gallagher Sharp, Robert H. Eddy, and Colleen A. Mountcastle, for respondents Kard Corporation and Racine Federated, Inc. Marc Dann, Attorney General, Elise W. Porter, Acting State Solicitor, and Stephen P. Carney, Deputy State Solicitor, for respondent state of Ohio. Paul W. Flowers, Co., L.P.A., and Paul W. Flowers, in support of petitioners for amicus curiae Ohio Academy of Trial Lawyers. Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy, and Marc J. Jaffy, in support of petitioners for amicus curiae Ohio AFL-CIO. Squire, Sanders & Dempsey, L.L.P., Steven M. Loewengart, and Johnathan E. Sullivan, in support of respondents for amicus curiae COSE Group Services, Inc. Shook, Hardy & Bacon, L.L.P., Victor E. Schwartz, and Mark A. Behrens, in support of respondents for amici curiae National Federation of Independent Business Legal Foundation, Chamber of Commerce of the United States of America, National Association of Manufacturers, American Tort Reform Association, Property Casualty Insurers Association of America, American Chemistry Council, National Society of Professional Engineers, NPES Association for Suppliers of Printing, Publishing and Converting Technologies, National Association of Mutual Insurance Companies, and Association of Equipment Manufacturers. Bricker & Eckler, L.L.P., Kurtis A. Tunnell, and Anne Marie Sferra, in support of respondents for amicus curiae Ohio Alliance for Civil Justice. Porter, Wright, Morris & Arthur, L.L.P., Carolyn A. Taggart, and J.H. Huebert, in support of respondents for amicus curiae Ohio Association of Civil Trial Attorneys. Garvin & Hickey, L.L.C., Preston J. Garvin, and Michael J. Hickey, in support of respondents for amicus curiae Ohio Chamber of Commerce. Bricker & Eckler, L.L.P., and Thomas R. Sant, in support of respondents for amici curiae Ohio Chapter of the National Federation of Independent Business and Ohio Manufacturers Association. Vorys, Sater, Seymour & Pease, L.L.P., and Robert A. Minor, in support of respondents for amicus curiae Ohio Self-Insurers Association.