Fictitious Party (“John Doe”) Pleading, and Deadlines to Seek Dismissal Based on Statute of Limitations

Baez v. Paulo, ___ N.J. Super. ___ (App. Div. 2018).  This was a medical malpractice/wrongful death case.  The Law Division had precluded plaintiff from adding three doctors as defendants after the statute of limitations had expired, ruling that plaintiff had not exercised sufficient diligence to identify those defendants, who had been named as fictitious defendants under Rule 4:26-4, in timely fashion.  Despite having found that the statute of limitations had run out as to the three doctors, the Law Division ruled that the doctors were estopped from seeking dismissal based on the statute of limitations because they waited until near the end of the discovery period to make their motion.

The doctors sought leave to appeal and plaintiff requested leave to cross-appeal.  Both applications were granted.  Today, in an opinion by Judge Sabatino, the Appellate Division reversed on the doctors’ appeal and affirmed in part and reversed in part on plaintiff’s cross-appeal.  The panel reviewed the legal issues de novo, observing that a statute of limitations question is “ordinarily a legal matter and traditionally within the province of the court.”  On the estoppel issue, Judge Sabatino stated that the panel would “accord substantial deference to the trial court’s equitable authority,” but that such authority had to be exercised fairly and with attention to “values of predictability and uniformity of practice.”

After an extensive recapitulation of the law regarding fictitious party practice, which requires plaintiffs to act with diligence to identify the fictitious parties, Judge Sabatino distinguished among the three doctors.  The names of two of them were typed into the medical records, so that plaintiff should have been able to identify them before the statute of limitations ran.  The name of the third doctor, however, was not typed in any record, but instead appeared only in “illegible handwritten entries within the chart.”  As to that third doctor, there was no lack of diligence, and plaintiff should have been allowed to substitute him for the John Doe originally named.

The two doctors whose names were typed did not escape completely, however.  Judge Sabatino observed that the medical records erroneously reflected that defendant Dr. Paulo was the attending physician, the doctor with primary responsibility for treatment of the decedent.  After the case began, Dr. Paulo submitted an affidavit that clarified that issue.  But prior to that affidavit, plaintiff had no way to learn, even with reasonable diligence, that either or both of the two other doctors at issue on the appeal might have acted as attending physician.  Thus, the panel allowed claims to proceed against those two doctors to the extent that those claims are based on either physician serving as attending physician.  Other claims, however, were barred.

The resolution of the doctors’ appeal from the estoppel ruling below was more straightforward.  As Judge Sabatino rightly noted, “the Rules of Court impose no deadline on the filing of a dismissal motion based on the statute of limitations.”  There was no case management order that set any particular date for such a motion, and the doctors, who had pled the statute of limitations in their answer, never said or did anything to lull plaintiff into thinking that the limitations defense would not be pursued.  Thus, the doctors had the right to wait until the end of discovery to make their motion.  Thus, it was unfair to preclude the doctors from filing their motion.  A contrary result, Judge Sabatino stated, would have created uncertainty in other cases as to when a limitations motion must be filed, and might have led to “premature motion practice lacking a suitably developed record.”