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06/22/95 ROSALIE BOGSETH v. DR. B. EMANUEL ET AL.

June 22, 1995

ROSALIE BOGSETH, AS NEXT FRIEND OF LARRY BOGSETH, JR., A MINOR, APPELLEE,
v.
DR. B. EMANUEL ET AL., APPELLANTS. TIMOTHY NEUFVILLE, APPELLANT, V. MERLE DIAMOND, M.D., ET AL. (MERLE DIAMOND, M.D., APPELLEE).



The Honorable Justice Heiple delivered the opinion of the court: Justice Miller, concurring in part and dissenting in part:

The opinion of the court was delivered by: Heiple

JUSTICE HEIPLE delivered the opinion of the court:

In these consolidated appeals, we are asked to determine whether a fictitious "John Doe" may properly be considered a "named defendant" under section 2-402 of the Code of Civil Procedure (735 ILCS 5/2-402 (West 1992)), the respondent in discovery statute.

BACKGROUND

No. 77280

Rosalie Bogseth, on behalf of her minor son, Joseph A. Bogseth, filed a complaint naming as the sole defendant a fictitious individual called "John Doe" and 28 other parties as respondents in discovery. The complaint alleged that, after Joseph's birth, he suffered respiratory distress which the respondents in discovery cared for or should have cared for, and that, as a result of the respiratory distress, Joseph suffered permanent neurological problems. After conducting discovery, plaintiff sought to convert four respondents in discovery to defendants. These respondents then filed a motion to dismiss the complaint pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)), contending that the original complaint was a nullity, because it only named a "John Doe" defendant. Following oral argument, the trial judge, Judge Casciato, denied the respondents' motion to dismiss.

In Bogseth, 261 Ill. App. 3d 685, 199 Ill. Dec. 108, 633 N.E.2d 904, the first district of the appellate court, sixth division, affirmed the trial court's denial of the motion to dismiss. It found that nothing in the statute's language precluded an action against a fictitious defendant. After examining the legislative history of section 2-402, the Bogseth court concluded that the legislature intended to permit plaintiffs, at least in some circumstances, to name a "John Doe" defendant. Bogseth, 261 Ill. App. 3d at 691.

No. 77855

Timothy Neufville filed a complaint naming as the sole defendant "John Doe, M.D.," and Merle Diamond, M.D., and St. Francis Hospital as respondents in discovery. The complaint alleged that he was injured through the negligent treatment of his back pain and paresthesia. Within the six-month time period allottedby section 2-402, Neufville converted Dr. Diamond and St. Francis Hospital from their status as respondents in discovery to defendants. After they were converted, Dr. Diamond and St. Francis Hospital moved to dismiss the action pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)), asserting that the trial court never entertained subject matter jurisdiction over the cause because, in bringing the action against "John Doe, M.D.," Neufville did not comply with section 2-402. The trial court judge, Judge Casciato, dismissed the action.

In Neufville, 267 Ill. App. 3d 1002, 202 Ill. Dec. 815, 638 N.E.2d 683, the first district of the appellate court, fifth division, concluded that the trial court properly dismissed plaintiffs action for lack of subject matter jurisdiction because plaintiff failed to name a real party in interest. The Neufville court rejected the Bogseth court's analysis, concluding that Bogseth "misstates the law." Neufville, 267 Ill. App. 3d at 1007.

This court granted leave to appeal in both petitions (145 Ill. 2d R. 315(a)), and consolidated them for purposes of this opinion.

ANALYSIS

Section 2-402 provides, in pertinent part:

"ยง 2-402. Respondents in discovery. The plaintiff in any civil action may designate as respondents in discovery in his or her pleading those individuals or other entities, other than the named defendants, believed by the plaintiff to have information essential to the determination ...


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