In Eppley v. Tri-Valley Loc. Sch. Dist. (5th Dist. No. CT2007-0022), 2008 Ohio 32, appeal allowed, 118 Ohio St.3d 1460, 2008 Ohio 2823, 888 N.E.2d 1113, the Fifth District Court of Appeals reexamined the equal protection issue in light of the legislature's amendment to the general savings statute. The court listed a number of distinguishing features of wrongful death claims and possible rationales for treating wrongful death plaintiffs differently. First, the court looked at whether there was a rational basis for a distinction between wrongful death plaintiffs and all other plaintiffs, including those whose claims were creatures of statute. The court noted the fact that a wrongful death statute of limitations is not a statute of repose, but rather an element of the action itself. Id. at P34. The court then said: "However, this distinction does not explain why a plaintiff who dismisses his action prior to the running of the statute of limitations should not have one year to re-file, while a plaintiff who dismisses an identical action after the running of the statute of limitations is 'saved' by the statute." Id. The Eppley court then acknowledged that a wrongful death claim is a statutory claim, unlike most claims for personal injury, which are based on common law. But the court noted that the Supreme Court of Ohio has applied R.C. 2305.19 to various statutory claims including will contests, suits against the state in the Ohio Court of Claims, workers' compensation cases, and age discrimination actions with no apparent ill effects. Id. at P35. The court then noted the argument that wrongful death claims are derivative in nature as opposed to personal injury claims which are direct claims. Additionally, the Ohio Constitution provides that damages recoverable in wrongful death claims cannot be limited by law, although damages for personal injury can and have been limited. Section 19a, Article 1, Ohio Constitution. However, once again the Eppley court opined that the final step of the analysis was missing, and that no rational relationship to a legitimate state interest had been put forth because of the disparate treatment of wrongful death plaintiffs from other plaintiffs, and the disparate treatment of wrongful death plaintiffs who dismiss their cases too early from those who wait until after the statute of limitations has run. Id. at P36. Finally the court stated that closing the so-called "malpractice gap" in wrongful death actions would not impair a fair and predictable system of justice preserving the rights of those who have been harmed by negligent behavior while curbing frivolous lawsuits. The court concluded that: "preserving our justice system has not required any other claim be subject to the malpractice gap." We agree. As a practical matter, it appears as though the savings provisions of R.C. 2125.04 do not lend themselves to a fair and predictable system of justice, but in fact add to the confusion just as R.C. 2305.19 did before it was amended.