Bogseth v. Emanuel, s. 77280
| Court | Supreme Court of Illinois |
| Writing for the Court | HEIPLE |
| Citation | 211 Ill.Dec. 505,166 Ill.2d 507,655 N.E.2d 888 |
| Parties | , 211 Ill.Dec. 505 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). |
| Docket Number | 77855,Nos. 77280,s. 77280 |
| Decision Date | 22 June 1995 |
Page 888
Minor, Appellee,
v.
Dr. B. EMANUEL et al., Appellants.
Timothy NEUFVILLE, Appellant,
v.
Merle DIAMOND, M.D., et al. (Merle Diamond, M.D., Appellee).
Rehearing Denied Oct. 2, 1995.
Page 889
[166 Ill.2d 508] [211 Ill.Dec. 506] Mark C. Fedota and Timothy J. Mahoney, of Brinton & Fedota, Chicago, for appellants B. Emanuel and R. Nachman.
Lawrence M. Lulich, of Aries & Purmal, Chicago, for appellants Edgewater Medical Center and M. Simken.
[166 Ill.2d 509] William J. Sneckenberg, Chicago, and Marshall P. Whalley, Merrillville, IN, for appellee in No. 77280.
Saul J. Morse and Robert John Kane, Springfield, for amicus curiae Illinois State Medical Society.
Stephen I. Lane, of Lane & Lane, Chicago, for appellant in No. 77855.
Wildman, Harrold, Allen & Dixon, Chicago (Kathy P. Fox and James G. Bonebrake, of counsel), for appellee in No. 77855.
David A. Decker, Dennis A. Rendleman and Athena T. Taite, Springfield, for amicus
Page 890
[211 Ill.Dec. 507] curiae Illinois State Bar Association in No. 77855.James T. Newman, Chicago, for amicus curiae Illinois Trial Lawyers Association in No. 77855.
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.
[166 Ill.2d 510] 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 v. Emanuel (1994), 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, 199 Ill.Dec. 108, 633 N.E.2d 904.
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 allotted [166 Ill.2d 511] by 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 v. Diamond (1994), 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 plaintiff's 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, 202 Ill.Dec. 815, 638 N.E.2d 683.
This court granted leave to appeal in No. 77280 (145 Ill.2d R. 315(a)), received a certificate of importance in No. 77855 (134 Ill.2d R. 316), and consolidated them for purposes of this opinion.
Section 2--402 provides, in pertinent part:
" § 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 of who
Page 891
[211 Ill.Dec. 508] should properly be named as additional defendants in the action.Persons or entities so named as respondents in discovery shall be required to respond to discovery by the plaintiff in the same manner as are defendants and may, on motion of the plaintiff, be added as defendants if the [166 Ill.2d 512] evidence discloses the existence of probable cause for such action.
* * * * * *
A person or entity named as a respondent in discovery in any civil action may be made a defendant in the same action at any time within 6 months after being named as a respondent in discovery, even though the time during which an action may otherwise be initiated against him or her may have expired during such 6 month period." (735 ILCS 5/2--402 (West 1992).)
Plaintiffs contend that "named defendant" is ambiguous, and since the statute is silent regarding whether a plaintiff may name a "John Doe" defendant, this court must, in analyzing the statute, consider the legislative history and underlying purpose of the legislation.
To support their position, plaintiffs note the following exchange which took place during legislative debate over the bill:
"Leinenweber: 'Representative Beaupre, would it be possible to file a John Doe lawsuit and proceed without having to name any doctor or a medical care provider at all under this Amendment and then proceed for discovery?'
Beaupre: 'I think the way the Amendment is written, that it would.'
Leinenweber: 'I ... Mr. Speaker, very briefly, I would certainly support this Amendment as probably the key Amendment to the entire malpractice package. This ... this Amendment will go a long way for relieving the re ... the possibility that a physician or health care provider would have to name ... have to be named in a lawsuit because of the fact that it would be extremely difficult on the part of the plaintiff to determine the involvement of the particular individual. This, as has been pointed out, would permit discovery proceedings to be taken under oath prior to having to name a person in a lawsuit.' " (Ill.Gen.Assem., House Proceedings, June 10, 1976, at 35.)
This colloquy, contends the plaintiffs, reveals the legislative purpose underlying section 2--402 and the legislature's[166 Ill.2d 513] express intent that "John Doe" lawsuits be pled under the statute.
We cannot accept plaintiffs' construction of the statute, for, in construing section 2--402, we find it unnecessary to examine its legislative history. While it is true that the primary rule of statutory construction is to ascertain and effectuate the legislature's intent, the language of the statute is considered the primary source from which to infer this intent. If the language of the statute is clear, the court should give effect to it and not look to extrinsic aids for construction. (In...
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Exelon Corp. v. Department of Revenue, No. 105582.
...by prospective or retroactive application; and (3) a balance of the equities mandates prospective application. Bogseth v. Emanuel, 166 Ill.2d 507, 515, 211 Ill.Dec. 505, 655 N.E.2d 888 (1995); Deichmueller, 151 Ill.2d at 417-18, 177 Ill.Dec. 446, 603 N.E.2d 516; Elg, 119 Ill.2d at 357, 116 ......
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Stone v. Paddock Publications, Inc., No. 1–09–3386.
...is to provide plaintiff attorneys with a means of filing suits without “naming everyone in sight as a defendant.” Bogseth v. Emanuel, 166 Ill.2d 507, 514, 211 Ill.Dec. 505, 655 N.E.2d 888 (1995). Thus, the language of both enactments shows that they are governed by a single policy of limiti......
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Mikolajczyk v. Ford Motor Co., No. 1-05-3133.
...if the decision overrules past precedent or decides an issue of first impression that was not clearly foreshadowed. Bogseth v. Emanuel, 166 Ill.2d 507, 515, 211 Ill.Dec. 505, 655 N.E.2d 888 (1995). If either of those propositions is 870 N.E.2d 903 true, in determining whether to apply the d......
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Harris v. Thompson, No. 112525.
...for solely prospective application of a new decision. Tosado, 188 Ill.2d at 197, 242 Ill.Dec. 120, 720 N.E.2d 1075;Bogseth v. Emanuel, 166 Ill.2d 507, 515, 211 Ill.Dec. 505, 655 N.E.2d 888 (1995); see Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 496, 88 S.Ct. 2224, 20 L.......
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Exelon Corp. v. Department of Revenue, No. 105582.
...by prospective or retroactive application; and (3) a balance of the equities mandates prospective application. Bogseth v. Emanuel, 166 Ill.2d 507, 515, 211 Ill.Dec. 505, 655 N.E.2d 888 (1995); Deichmueller, 151 Ill.2d at 417-18, 177 Ill.Dec. 446, 603 N.E.2d 516; Elg, 119 Ill.2d at 357, 116 ......
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Stone v. Paddock Publications, Inc., No. 1–09–3386.
...is to provide plaintiff attorneys with a means of filing suits without “naming everyone in sight as a defendant.” Bogseth v. Emanuel, 166 Ill.2d 507, 514, 211 Ill.Dec. 505, 655 N.E.2d 888 (1995). Thus, the language of both enactments shows that they are governed by a single policy of limiti......
-
Mikolajczyk v. Ford Motor Co., No. 1-05-3133.
...if the decision overrules past precedent or decides an issue of first impression that was not clearly foreshadowed. Bogseth v. Emanuel, 166 Ill.2d 507, 515, 211 Ill.Dec. 505, 655 N.E.2d 888 (1995). If either of those propositions is 870 N.E.2d 903 true, in determining whether to apply the d......
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Harris v. Thompson, No. 112525.
...for solely prospective application of a new decision. Tosado, 188 Ill.2d at 197, 242 Ill.Dec. 120, 720 N.E.2d 1075;Bogseth v. Emanuel, 166 Ill.2d 507, 515, 211 Ill.Dec. 505, 655 N.E.2d 888 (1995); see Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 496, 88 S.Ct. 2224, 20 L.......