The Journal of The DuPage County Bar Association

Back Issues > Vol. 18 (2005-06)

Understanding the Illinois Respondent in Discovery Statute
By Bradley C. Nahrstadt and John E. Newton

Your good friend has called to let you know that he has been sued … he thinks. Instead of being named as a defendant in a lawsuit, your friend has been named as a "respondent in discovery". Your friend does not know what this designation means and wants you, his trusted lawyer, to provide an explanation. The purpose of this article is to explain to the uninitiated what the respondent in discovery statute is, why the statute was created and what burdens the designation of "respondent in discovery" places upon the parties involved in a lawsuit.

THE RESPONDENT IN DISCOVERY STATUTE

The respondent in discovery statute, presently codified as 735 ILCS 5/2-402, provides that as long as a person or entity is named as a respondent in discovery within the statute of limitations period, a plaintiff then has an additional six months to obtain information which may indicate that that person or entity should be converted to a defendant. Allen v. Thorek Hospital, 275 Ill.App.3d 695, 656 N.E.2d 227 (1st Dist. 1995). Basically, the statute provides a vehicle for plaintiffs to bring individuals and entities into a lawsuit in order to determine whether those individuals and entities should be named as defendants, without actually labeling those individuals as defendants. Plaintiffs can then learn whether or not they should name the individuals as defendants through the use of traditional discovery methods such as written interrogatories and depositions.

Specifically, the present statute provides, in part, as follows:

The plaintiff in any civil action may designate as respondents in discovery in his or her pleadings those individuals or other entities, other than the named defendants, believed by the plaintiff to have information essential to the determination of who 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 evidence discloses the existence of probable cause for such action.

A person or entity named a respondent in discovery may upon his or her own motion be made a defendant in the action, in which case the provisions of this Section are no longer applicable to that person.

A copy of the complaint shall be served on each person or entity named as a respondent in discovery.

Each respondent in discovery shall be paid expenses and fees as provided for witnesses.

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 2006). Once a plaintiff names a respondent in discovery, the plaintiff has six months to determine whether he would like to move to convert the respondent in discovery to a defendant in the lawsuit. If a plaintiff so decides he must submit evidence at a hearing to convert which discloses the existence of probable cause for such action. If the plaintiff has followed the procedural requirements of the statute, and presented the appropriate evidence, the respondent will be converted to a defendant, even if the original statute of limitations has already expired. For example, if an injury occurred on January 1, 2001 and the plaintiff files suit naming a respondent in discovery on December 31, 2002, the respondent may be converted to a defendant as late as June 31, 2003 despite the fact that the original statute of limitations would have run on January 1, 2003. This is only true, of course, if the plaintiff has complied with the provisions of the statute.

HISTORY & PURPOSE

Chances are that your friend in the above-noted scenario is a doctor and has been named as a respondent in discovery for a medical malpractice claim. Although the statute clearly states that it can be utilized in "any civil action" most courts discussing the purpose of the statute agree that it was enacted for use in medical malpractice cases. For example, in Clark v. Brokaw Hospital, 126 Ill.App. 3d 779, 467 N.E.2d 652 (4th Dist. 1984), the Illinois appellate court discussed the statute’s legislative history, noting that "its purpose was to provide plaintiff’s attorneys with a means of filing medical malpractice suits without naming everyone in sight as a defendant" because being named as a defendant was contributing "to the spiraling cost of medical malpractice insurance." Clark, 467 N.E.2d at 655 (citing transcript of proceedings, House of Representatives, June 10, 1976, pages 32-33). Put another way, "the purpose of section 2-402 is obviously to permit an aggrieved party in a malpractice case to name parties not as defendants but as respondents to enable a plaintiff through liberal discovery rules to determine whether the respondent should be made a defendant." Hugley v. Alcaraz, 144 Ill.App.3d 726, 494 N.E.2d 706 (1st Dist. 1986).

In Robinson v. Johnson, 346 Ill.App.3d 895, 809 N.E.2d 123 (1st Dist. 2003), the First District Appellate Court explained that the legislature was attempting to balance the need to protect physicians from the increasing costs of malpractice insurance which resulted from frivolous lawsuits and plaintiffs’ needs to determine the surrounding circumstances and involvement of each person who could possibly be a defendant in the case. The Robinson court further explained that §5/2-402 is a special statutory action and, therefore, entirely foreign to the common law. The statute creates a procedural right to name a party as a respondent in discovery for the purpose of discovering against whom one may or may not have a cause of action.

Despite the statute’s obvious goal of balancing an aggrieved plaintiff’s interests and the interests of physicians to be free from frivolous lawsuits, the courts in this state have made clear that the statute applies to all civil actions. For example, in Maldonado v. Creative Woodworking Concepts, 296 Ill.App.3d 935, 694 N.E.2d 1021 (3rd Dist. 1998), the plaintiff filed sued after she was injured by an allegedly defective door on a riverboat casino. The plaintiff learned from the named defendants that the door was manufactured by a company called Creative Woodworking. The plaintiff, in turn, named Creative Woodworking as a respondent in discovery. Although there was no discussion regarding the applicability of the respondent in discovery statute to breach of implied merchantability cases, nothing in the opinion suggests that the plaintiff’s use of the statute was inappropriate in a case that did not center around alleged malpractice.

In McGee v. Heimburger, 287 Ill.App.3d 242, 678 N.E.2d 364 (4th Dist. 1997), a plaintiff filed a wrongful death suit stemming from a shooting incident. The plaintiff sued a minor as a defendant and named the minor’s parents as respondents in discovery. The plaintiff moved to convert the minor’s parents to defendants, which the trial court ultimately denied. The appellate court reversed the lower court’s ruling finding that the plaintiff had provided sufficient evidence to establish probable cause and to convert the respondents in discovery to defendants. This decision clearly indicates that the respondent in discovery statute can be invoked in just about any type of case.

THE SIX MONTH DISCOVERY PERIOD

The respondent in discovery statute provides that a person or entity named a respondent in discovery may be made a defendant in that action anytime within six 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. Therefore, it is conceivable that §2-402 can extend the original two year statute of limitations period for a personal injury claim to two and a half years. The six month statutory period begins running on the day the plaintiff files a complaint naming the respondents in discovery. Allen, supra.

Any counsel dealing with a case involving respondents in discovery must be mindful that the six month limitations period set forth in 735 ILCS 5/2-402 is strictly enforced by the courts, as is any other statute of limitations. Because the limitations period is created by statute, enforcement of it has often lead to the barring of an otherwise valid claim. For example, in Murphy v. Giardina, 78 Ill.App.3d 896, 397 N.E.2d 845 (1st Dist. 1979), the plaintiff sued a doctor for malpractice after his pregnant wife and unborn son died during her pregnancy. The plaintiff filed an amended complaint naming a hospital and several physicians as respondents in discovery. All three respondents in discovery filed motions to dismiss asserting that the statute (at that time codified as 21.1 of the Civil Practice Act) was unconstitutional. The motions of 2 of the 3 respondents in discovery were granted but the plaintiff was given leave to file an amended complaint. The lower court’s ruling was issued roughly 5.5 months after the complaint naming the respondents in discovery was filed. The plaintiff filed an amended complaint a month and a half after the court’s ruling (more than 6 months after the complaint naming the respondents in discovery was filed). The defendants (former respondents in discovery) filed motions to dismiss arguing that the complaint was time-barred. Those motions were granted.

The appellate court elected not to address the plaintiff’s claim that the respondent in discovery statute was unconstitutional because, the court reasoned, the plaintiff failed, as an initial matter, to comply with the very terms of the statute. The court ruled that since the statute requires conversion from respondents in discovery to defendants within 6 months of the initial filing, and the plaintiff did not convert the respondents in discovery until more than 7 months later, the plaintiff failed to comply with the express terms of the statute. Because the plaintiff failed to comply with the statute he was precluded from relying on its provisions.

The plaintiff then filed an appeal with the Illinois Supreme Court (Murphy v. Giardina, 82 Ill.2d 529, 413 N.E.2d 399). The Supreme Court affirmed the appellate court’s ruling that the plaintiff failed to comply with the statute’s requirement of converting the respondents in discovery to defendants within six months of the filing of the complaint.

The courts have also held that while the statute indicates that a respondent must be converted within the six month period, respondents can actually be converted after the six month period has expired, provided the plaintiff has moved to convert the respondents to defendants within the statutory six month time frame. According to the courts, since a plaintiff cannot always control the length of time it takes for a motion to be spindled and eventually heard by a judge, the plaintiff must simply issue notice of his motion to convert within the six month period, even if the hearing and ruling do not actually take place until after the six month period has expired.

This concept was discussed in Clark, supra. In that case, the plaintiff sued a hospital as a defendant and named two doctors as respondents in discovery after her husband was not admitted for psychiatric care and committed suicide. The plaintiff sent out notice of a motion for leave to file an amended complaint, which added the respondents in discovery as defendants, just prior to the expiration of the six month period. The motion was heard and granted by the trial court three days later, still within the 6 month period. The defendants moved to vacate the order, arguing that notice was improper. That motion was granted. At the next hearing on the plaintiff’s motion for leave to file an amended complaint, the court denied the motion on the grounds that the plaintiff failed to secure leave of court to add the respondents as defendants within 6 months as required by the statute. The plaintiff then appealed.

The appellate court held that while technically a respondent cannot be converted to a defendant until the plaintiff obtains leave of court, if a plaintiff sends out notice of a motion to convert within the six month time frame (and the motion is granted sometime after the 6 month period expires) the respondent in discovery will be made a defendant pursuant to §2-402 (assuming the plaintiff presents sufficient evidence of proximate cause). The court reasoned that the plaintiff cannot be charged with the time it takes for a hearing and ultimate ruling on a motion to convert. Interestingly, the court did not discuss whether or not the notice was proper. The court simply held that a respondent in discovery may be made a defendant so long as a motion is filed within 6 months after the respondent is first named in the complaint and either (1) the motion indicates on its face that the purpose of the amendment is to add the respondent in discovery as a defendant or (2) the amended complaint naming the respondent as a defendant is presented for filing with the motion.

Recently, the First District Appellate Court held that under no circumstances can a trial court grant an extension of time beyond the original six month conversion period set forth in §5/2-402. Robinson v. Johnson, supra. In that case the plaintiff argued that two extensions previously granted by the trial court were necessary because of the respondent’s failure to answer discovery in a timely manner. The appellate court found that the plaintiff’s counsel was also responsible for the delay in discovery and further reasoned that the clear language of the statute indicates that no extensions are to be allowed. The appellate court rejected the trial court’s reliance on Supreme Court Rule 183 and also rejected the plaintiff’s argument that extensions of the six month time frame set forth in the statute should be allowed since denying requested extensions could lead to unjust results. According to the court, "when a plaintiff is proceeding on a special statutory cause of action, she must scrupulously observe all the requirements mandated in the statute." Robinson, 809 N.E.2d at 130. And, since the plain and unambiguous language of the statute does not allow for extensions of the six month time frame for conversion, the appellate court held that the trial court erred when it granted the plaintiff’s requested extensions.

In Brown v. Jaimovich, 2006 WL 845592 (Ill.App. 1 Dist. March 31, 2006), the appellate court held that the Robinson decision was to be given prospective application—that is, it was to be applied only to those cases where the 6 month time limit set forth in the statute began to run as of the day after the issuance of the Robinson decision. Since the plaintiffs filed their cause of action naming respondents in discovery before the Robinson opinion was handed down, and thus, the six month time frame for conversion did not commence after the Robinson decision, the court held that the custom and practice of allowing for extensions and conversions in existence before Robinson applied. Brown, 2006 WL 845592 at *7.

In response to the Browning decision, the Illinois legislature amended §2-402 to specifically allow for extensions of the six month time frame. The new statute, which became effective on January 1, 2006, now states, in relevant part, as follows:

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. An extension from the original 6-month period for good cause may be granted only once for up to 90 days for (i) withdrawal of plaintiff’s counsel or (ii) good cause. Notwithstanding the limitations in this Section, the court may grant additional reasonable extensions from this 6-month period for failure or refusal on the part of the respondent to comply with timely filed discovery.

The plaintiff did not obtain leave of court to file this amended complaint.

On appeal, the defendants (formerly respondents in discovery) argued that the plaintiff’s failure to obtain leave of court caused the filing of the amended complaint to be defective and that the plaintiff did not engage in discovery to adduce the required evidence in violation of the statute. The court held that the plaintiff’s failure to obtain leave of court in compliance with the statute deprived the circuit court of jurisdiction over the defendants. The court further held that a hearing on the issue of probable cause was required by the language of the statute itself. According to the court, the language of the statute presupposes a required hearing where evidence is presented to determine if conversion is appropriate. Torley, 452 N.E.2d at 10.

In Froehlich v. Sheehan, 240 Ill.App.3d 93, 608 N.E.2d 889 (1st Dist. 1992), the plaintiff filed a medical malpractice claim on behalf of the estate of Paul Edwards. He named two doctors as respondents in discovery. After conducting some discovery, the plaintiff filed a motion for leave to file an amended complaint converting the respondents in discovery to actual defendants. The plaintiff placed the motion to convert on the routine motion call and the trial court granted the motion without a hearing. Within 30 days of the entry of the order allow the plaintiff leave to file an amended complaint converting the respondents in discovery to defendants, those defendants moved to vacate the order, arguing that the plaintiff had disclosed no evidence of probable cause for conversion as required by §2-402. The trial court granted the motion to vacate and dismissed the complaint against the defendants. The plaintiff then appealed.

In affirming the dismissal of plaintiff’s complaint, the appellate court noted that §2-402 permits respondents in discovery to be converted into defendants only if the evidence discloses the existence of probable cause for doing so. Thus, according to the court, the plain meaning of the statute is that a court cannot grant a motion to convert without making an evidentiary determination. And, since the filing of a routine motion tells the court that it need not conduct an evidentiary hearing, a motion to convert cannot be granted as a matter of routine. Froehlich, 608 N.E.2d at 895-896. Plaintiff’s failure to request a probable cause hearing doomed his efforts to convert. Id.

BURDEN ON THE PLAINTIFF - PROBABLE CAUSE

Once a plaintiff moves to convert a respondent in discovery to a defendant, the plaintiff bears the burden of establishing probable cause. The statute provides that the plaintiff’s motion to convert will be granted "if the evidence discloses the existence of probable cause for such action." 735 ILCS 5/2-402.

Unfortunately, the otherwise clear and concise statute does not offer a definition of probable cause, nor does it provide any detail as to when probable cause will be found in any given case. Accordingly, the meaning of probable cause in the context of the respondent in discovery statute has been left up to the courts. Not surprisingly, whether or not probable cause exists is one of the most hotly debated issues with respect to this statute.

The courts have held that probable cause will be established where "a person of ordinary caution and prudence would entertain an honest and strong suspicion that the purported negligence of the respondent in discovery was a proximate cause of plaintiff’s injury." Jackson-Baker v. Immesoete, 337 Ill.App.3d 1090, 787 N.E.2d 874 (3rd Dist. 2003). The evidence need not rise to the level of a high degree of likelihood of success on the merits or the evidence necessary to defeat a motion for summary judgment in favor of the respondents in discovery, nor is the plaintiff required to establish a prima facie case against the respondent. Williams v. Medenica, 275 Ill.App.3d 269, 655 N.E.2d 1002 (1st Dist. 1995).

It should be noted that the type of evidence considered by the court on a motion to convert need not be admissible evidence. For example, "hearsay is properly considered on a motion to convert" under Section 2-402. Coley v. St. Bernard’s Hospital, 281 Ill.App.3d 587, 667 N.E.2d 493 (1st Dist. 1996). In Coley, the court reasoned that the respondent in discovery statute was intended to deter frivolous actions, not to serve as a means of depriving a plaintiff of a trial on the merits. Accordingly, the probable cause requirement should be liberally construed "to the end that controversies may be determined according to the substantive rights of the parties." Coley, 667 N.E.2d at 497.

According to one court, an unsigned report from a putative expert, coupled with an affidavit from the prosecuting attorneys, can satisfy the probably cause requirements. Moscardini v. Neurosurg, S.C., 269 Ill.App.3d 329, 645 N.E.2d 1377 (2nd Dist. 1994). In that case the plaintiff moved to convert several respondents to defendants after taking the discovery depositions of a number of the plaintiff’s treating physicians. The plaintiff also submitted evidence in the form of an unverified letter from a physician with an affidavit of genuineness from the plaintiff’s attorney (consistent with 735 ILCS 5/2-622). The trial court denied the plaintiff’s motion. On appeal, the appellate court accepted the plaintiff argument that §2-402 should be read in pari materia with 2-622 because both statutes were enacted for similar purposes—to maintain a balance between the right of an aggrieved plaintiff to file suit and the right of health care professionals to be free from the burden of defending groundless suits. Accordingly, the appellate court found that because an unverified report with an attorney’s affidavit was sufficient for purposes of §2-622, it is also sufficient for purposes of a §2-402 hearing. As such, the appellate court reversed the trial court’s ruling and remanded the case for further proceedings.

While the burden of proof to establish probable cause to convert is low, the plaintiff must present some credible evidence to meet its burden. In Froehlich, supra, the First District Appellate Court noted that, along with the plaintiff’s other failures in the case, the plaintiff failed to meet its evidentiary

735 ILCS 5/2-402 (West 2006). On other point concerning the six month discovery period deserves mentioning. The respondent in discovery statute can only be used to lengthen the applicable period of limitations, not shorten it. In Allen, supra, the plaintiff filed a motion to convert the respondents to defendants six months after the original statute of limitations had expired, but 6 months and one day after she filed her medical malpractice complaint. The trial court denied the plaintiff’s motion claiming it was filed a day late because it was due, under §2-402, 6 months after the original complaint was filed, not 6 months after the original statute of limitations ran. The appellate court affirmed the lower court’s ruling, noting that the plaintiff in that case failed to follow the statute’s provisions. Although the trial court’s ruling was affirmed, the appellate court did note that while the six month period set forth in §5/2-402 can serve to extend in applicable period of limitations, it can never foreshorten it. In other words, if a plaintiff files an action well within the applicable statute of limitations, and the plaintiff fails to convert the respondents to defendants within six months of naming them, his failure to do so is of no consequence as long as the original limitations period has not expired. See, Flores v. St. Mary of Nazareth Hospital, 149 Ill. App. 3d 371, 502 N.E.2d 1 (1st Dist. 1986) (holding that the six month provision set forth in 735 ILCS 5/2-402 may only extend, and not shorten, any limitations period against a respondent in discovery).

To this end, special consideration is warranted in cases involving minors. For example, the Fifth District ruled that despite the termination of respondent in discovery status for several physicians due to a plaintiff’s failure to meet the probable cause burden, the minor beneficiaries in that case were not precluded "from refiling their action so long as the statute of limitations has not expired." Murphy v. Aton, 276 Ill.App.3d 127, 657 N.E.2d 1209 (5th Dist. 1995). The court reasoned that "so long as a complaint has been filed within the applicable statute of limitations, the pendency of an action naming a defendant as a respondent in discovery … is without any significance." Murphy, 657 N.E.2d at 1211. See also, Engel v. St. Mary’s Hospital of Decatur, 198 Ill.App.3d 174, 555 N.E.2d 810 (4th Dist. 1990).

OTHER REQUIREMENTS

As noted above, once a plaintiff files a complaint naming respondents in discovery, the plaintiff must strictly abide by all of the statute’s provisions. Robinson, supra. In addition to complying with the six month limitations period previously discussed, there are a number of other obligations that must be "scrupulously" observed.

Initially, attorneys must be aware of the fact that the statute requires that at least one true defendant be named in any complaint that also names respondents in discovery. In the case of Gonzales v. Pro Ambulance Service, 219 Ill.App.3d 284, 579 N.E.2d 1184 (4th Dist. 1991), the plaintiff sued several parties as respondents in discovery without naming a defendant. The respondents in discovery moved to dismiss the action claiming that the court lacked subject matter jurisdiction because there was no defendant named. The trial court granted the motion. On appeal, the plaintiff argued that the intention of §2-402 is to allow for discovery against respondents before naming them as defendants and, as such, no actual defendant needs to be named prior to the conversion of a respondent in discovery to a direct defendant. The appellate court disagreed and upheld the ruling of the trial court, reasoning that the clear language of §2-402 indicates that at least one defendant must be named. Similar results were reached in cases where a plaintiff filed suit against a fictitious defendant and actual respondents in discovery. See, e.g., Armour v. Peterson, 219 Ill.App.3d 289, 579 N.E.2d 1188 (4th Dist. 1991); Jacobs v. Abbott Laboratories, 213 Ill.App.3d 998, 572 N.E.2d 1231 (5th Dist. 1991); Neufville v. Diamond, 267 Ill.App.3d 1002, 638 N.E.2d 683 (1st Dist. 1994) and Bogseth v. Emanuel 166 Ill.2d 507, 655 N.E.2d 888 (1995) (wherein the Illinois Supreme Court held that allowing plaintiffs to name "John Doe" defendants could result in procedural abuses because plaintiffs could automatically obtain six month extensions by suing "John Doe" and naming all potential defendants as respondents in discovery as the two year statute was about to expire).

Plaintiff’s counsel should also keep in mind that he is required to serve the respondents in discovery with a copy of the complaint. In Allen, supra, the court ruled that the plaintiff’s failure to serve the respondents in discovery with a copy of her complaint was sufficient reason to deny the plaintiff’s motion to convert the respondents to defendants. Allen, 656 N.E.2d at 233. The court reasoned that the plaintiff’s failure to serve the respondents deprived the trial court of personal jurisdiction over the respondents. Without jurisdiction, the court could not convert the respondents in discovery into defendants. Id.

The respondent in discovery statute also requires that the plaintiff actually move to convert the respondents in discovery to defendants. In other words, there is no automatic conversion. If a plaintiff fails to move to convert the respondents within the six month time frame, the respondents are essentially off the hook and the plaintiff is barred from naming them as defendants (unless, as earlier noted, the original statute of limitations has not yet run).

Similarly, plaintiffs must seek an actual hearing before the court in order to convert respondents in discovery into defendants. This is so because a court must hold an evidentiary hearing to review the discovery materials showing that a plaintiff has probable cause to convert the respondents to defendants prior to granting a motion to convert. Torley v. Foster G. McGaw Hospital, 116 Ill.App.3d 19, 452 N.E.2d 7 (1st Dist. 1983). Simply put, plaintiffs cannot file routine motions to convert respondents in discovery to defendants, nor can they simply file their proposed amended complaint converting the respondents to defendants with the court. In Torley, the plaintiff sued a hospital as a defendant and named several physicians as respondents in discovery. Just prior to the expiration of the 6 month period to convert the respondents in discovery to defendants, the plaintiff filed an amended complaint naming the respondents in discovery as defendants. burden. The plaintiff in that case presented no affidavits, no x-rays, no reports by the respondents, nor any other evidence other than an unsworn, unsigned and undated internist’s letter. The court held that this "evidence" was simply insufficient to meet the plaintiff’s burden of proof. Froehlich, 608 N.E.2d at 896.

In Long v. Matthew, 336 Ill.App.3d 595, 783 N.E.2d 1076 (4th Dist. 2003), the plaintiff filed a medical malpractice action naming one of the decedent’s physicians as a respondent in discovery. In support of his motion to convert the respondent in discovery to a defendant, the plaintiff secured an affidavit from a medical expert. Although the court noted that the expert’s affidavit was "not artfully phrased", it held that the affidavit was minimally sufficient to satisfy the plaintiff’s burden of establishing probable cause to convert a respondent in discovery into a defendant since it described the events leading up to the plaintiff’s decedent’s death and listed specific findings of negligence and the actual, readily discoverable cause of the decedent’s signs and symptoms. Long, 783 N.E.2d at 1084.

And in Ingle v. Hospital Sisters Health System, 141 Ill.App.3d 1057, 491 N.E.2d 139 (4th Dist. 1986), the plaintiff filed a medical malpractice action in the Circuit Court of Sangamon County. She named as respondents in discovery several of her doctors. Prior to the expiration of the six month time frame set forth in §2-402, the plaintiff filed a motion for leave to amend her complaint to add the respondents as defendants. In support of her motion, plaintiff attached the affidavit of an expert witness, the deposition testimony of the respondents, x-rays interpreted by the respondents and the reports issued by the respondents to the plaintiff’s other treating physicians. The appellate court held that this evidence was more than sufficient to determine that probable cause existed to convert the respondents in discovery to defendants. The Ingle decision is clear. The sufficiency of proof necessary to convert a respondent in discovery into a defendant is a showing "such that a man of ordinary caution and prudence would entertain an honest and strong suspicion that the purported negligence of the respondent-in-discovery was a proximate cause of plaintiff’s injury." Ingle, 491 N.E.2d at 143.

Although the movant is required to present evidence to support the conversion of a respondent in discovery to a defendant, the courts have held that the evidence of probable cause does not need to be filed at the time the motion is filed. In Shanklin v. Hutzler, 294 Ill.App.3d 659, 691 N.E.2d 7 (1st Dist. 1997), the plaintiff filed her motion to convert and provided expert affidavits stating that there was reasonable and meritorious cause for filing a medical malpractice action against the respondents. Additionally, in her motion, the plaintiff indicated that at the time of the hearing, she would be producing records, x-rays and other evidence that had been obtained during the six month discovery period. The Shanklin court held that the plaintiff was not required to file that evidence with the court within the six month time frame set forth in §2-402. Shanklin, 691 N.E.2d at 13. See also, Medjesky v. Cole, 276 Ill.App.3d 1061, 659 N.E.2d 47 (4th Dist. 1995)(noting that although the better practice would have been to attach evidence to the motion to convert, the court could consider the evidence at a later hearing).

BURDEN ON THE RESPONDENT

Being designated as a respondent in discovery carries with it the burden of cooperating with the plaintiff’s discovery requests. The current statute provides that "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 …" 735 ILCS 5/2-402.

Although those named as respondents in discovery are not "parties" to the litigation, Allen, supra, the courts do possess in personam jurisdiction over the respondents in discovery once the respondents have been served with a copy of the complaint naming them as respondents in discovery. Coyne v. OSF Healthcare Systems, 332 Ill.App.3d 717, 773 N.E.2d 732 (3rd Dist. 2002). Therefore, respondents in discovery are subject to the same procedures and discovery rules and safeguards as traditional defendants. See also, Whitley v. Lutheran Hospital, 73 Ill.App.3d 763, 392 N.E.2d 729 (3rd Dist. 1979) ("The power acquired by service of notice of designation as a respondent in discovery permits the circuit court to compel discovery in the same manner as from a defendant.").

Because the trial courts have jurisdiction over respondents in discovery, they can compel the respondents to comply with plaintiff’s discovery requests and punish noncompliance. Accordingly, once a client has been named a respondent in discovery, the client should be informed that, for purposes of discovery, the client will be treated just like a defendant. The respondent can be required to answer written interrogatories, respond to requests to produce or requests to admit and can be deposed by the plaintiff as well. Moreover, the respondent’s failure to comply with a plaintiff’s discovery requests can lead to motions to compel, adverse court rulings and even sanctions, just as though the client were an actual defendant in the litigation. Therefore, the client named as a respondent should be informed from the onset of their involvement in the case that, while they are not yet and may never be named as defendants and become "parties" to the litigation, their involvement cannot be taken lightly and their cooperation is essential.

OTHER SIGNIFICANT POINTS

As noted previously, Illinois courts have ruled that respondents in discovery are not "parties" in the traditional sense. Therefore, while respondents will be treated similarly to defendants with respect to discovery issues, respondents do not enjoy all of the same rights as named defendants. According to some Illinois courts, since respondents in discovery are not parties, they cannot bring motions to dismiss pursuant to 735 ILCS 2-619. Shanklin, supra; Engel, supra. The Shanklin court noted that the express language of 735 ILCS 2-619 permits only a "defendant" or "any other party against whom a claim is asserted" to bring a motion to dismiss. Shanklin, 695 N.E.2d at 12. Because respondents in discovery are not parties, and because §2-402 only bestows a right upon respondents to convert themselves to defendants (should they choose), but is silent regarding all other motions, it was improper for the trial court to grant a respondent’s 2-619 motion to dismiss. Id. It should be noted that these rulings stand in stark contrast to the Gonzales opinion cited earlier. In Gonzales, the court granted a respondent’s motion to dismiss for the plaintiff’s failure to name a true defendant. A strict reading of the Shanklin case would suggest that such a motion should never have been brought and certainly should not have been granted. This conflicting issue has not been formally resolved by the Illinois Supreme Court.

Furthermore, courts have held that even where respondents in discovery should clearly be allowed to depart from the litigation, "dismissing" the respondents is not the appropriate form of removal. In Murphy v. Aton, supra, the appellate court held that trial courts should not enter orders "dismissing" respondents in discovery if the plaintiff fails to meet her burden of showing probable cause. According to the court, since no cause of action has actually been pled against a respondent in discovery, no cause of action can be dismissed. The proper procedure is to terminate the action against the respondents. Murphy, 657 N.E.2d at 1211. Consequently, if an individual or a corporate entity is named as a respondent in discovery, and the plaintiff does not move to convert within six months of naming the respondent in discovery, the respondent should move to terminate his status as a respondent in discovery.

In some instances, a plaintiff will name several individuals as respondents in discovery and, during the course of the next six months, conduct no discovery whatsoever in regard to the respondents. The respondents then file motions to terminate their status as respondents in discovery or oppose plaintiff’s motion to convert on the grounds that the plaintiff conducted no discovery during the six month time frame set out in §2-402. However, at least two different courts have held that a plaintiff does not actually need to engage in discovery to properly convert a respondent in discovery into a defendant. See, Long, supra; Torley, supra.

It is also important to remember that an argument can be made that the respondent in discovery statute should be applied in federal court. In Moomaw v. Mentor H/S, Inc., 313 Ill.App.3d 1031, 731 N.E.2d 816 (4th Dist. 2000), the Illinois appellate court held that the respondent in discovery statute is substantive in nature and therefore could be applied in a case that had been removed to federal court. However, at least one federal court has ruled that §2-402 is procedural in nature and therefore does not apply to actions brought in federal court. See, Murphy v. Schering Corp., 878 F.Supp. 124 (N.D.Ill. 1995).

Finally, one last case deserves special mention. In the case of Medjesky v. Cole, 276 Ill.App.3d 1061, 659 N.E.2d 47 (4th Dist. 1995), the Fourth District Appellate Court ruled that a respondent in discovery does not have to be given notice of a plaintiff’s motion to convert that respondent into a defendant. The Medjesky case arose out of a motor vehicle accident. The plaintiff sued several defendants and also named several respondents in discovery. Nearly five months after filing the complaint naming the respondents in discovery, the plaintiff moved to amend her complaint to remove two improper defendants and to convert two respondents into defendants. The plaintiff attached an unverified copy of the proposed amended complaint to her motion to amend. Notice was not given to the two respondents the plaintiff was seeking to convert to defendants. Roughly one week before §2-402’s six month time frame was set to expire, the trial court granted the plaintiff’s motion to amend "without objection." The defendants (formerly respondents in discovery) later moved to dismiss on several grounds which the trial court granted. The plaintiff then appealed.

In reversing the order of dismissal entered by the trial court, the appellate court stated the following:

We do not agree with defendant’s position that a respondent in discovery must be given notice of the motion to amend the complaint. Supreme Court Rule 104(b) requires that motions filed with the clerk should be served on all parties who have appeared…The failure to serve notice does not impair the jurisdiction of the court…Nor does section 2-402 mandate any notice prior to granting a motion to amend.

Medjesky, 659 N.E.2d at 49 (emphasis added). Although notice need not be given to the respondents in discovery, if the plaintiff fails to give the respondents notice and, consequently, they fail to raise any objections at the hearing on the motion to convert, those objections will not be deemed to have been waived and the respondents will be allowed to raise them at a later date. See, e.g., Browning v. Jackson Park Hospital, 163 Ill. App. 3d 543, 516 N.E.2d 797 (1st Dist. 1987)(the court held that the failure of the respondents in discovery to object to the motion to add them as defendants based on lack of probable cause did not constitute a forfeiture of that objection since the respondents had not received notice of the motion to convert).

CONCLUSION

The respondent in discovery statute can be a useful tool for plaintiffs to use in all cases, not just those involving medical malpractice. The procedural requirements of the statute are straightforward and compliance is relatively simple. However, if the procedural requirements are ignored, the statute can lead to harsh results such as the barring of a plaintiff’s claim or sanctions against a respondent.

Bradley C. Nahrstadt is a partner in the Chicago litigation firm of Williams Montgomery & John, Ltd. He is a summa cum laude graduate of Monmouth College and a cum laude graduate of the University of Illinois College of Law. He concentrates his practice in products liability and complex commercial litigation. He is a member of the ISBA, DRI, IDC and the Chicago-Lincoln Inn of Court. He can be reached at bcn@willmont.com.

John E. Newton is an associate at Crisham & Kubes, Ltd. Mr.Newton has extensive experience in civil litigation in state and federal courts. His litigation caseload includes defending professionals (such as architects, engineers, accountants and attorneys), product liability, personal injury defense, construction law, breach of contract, fraud, negligent misrepresentation, and insurance/defense coverage disputes.


 
 
DCBA Brief