Doe v. Tinsley

2021 IL App (1st) 210228-U

• Court: Appellate Court of Illinois
• Decided: December 21, 2021
• Docket: 1-21-0228
• Status: Unpublished

Opinion

2021 IL App (1st) 210228-U

SECOND DIVISION December 21, 2021 1-21-0228

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

JANE DOE, ) ) Plaintiff-Appellee, ) ) v. ) Appeal from the ) Circuit Court of ELTON X. TINSLEY, M.D., Individually and as ) Cook County. Agent of RITA PHILLIPS and as Agent of ) FLAWLESS SERVICE CORPORATION; RITA ) No. 20 L 7196 PHILLIPS, Individually and as Agent of FLAWLESS ) SERVICE CORPORATION; FLAWLESS SERVICE ) Honorable CORPORATION f/k/a TINSLEY AND ) Karen O’Malley, ASSOCIATES INC.; CELL TO CELL ) Judge Presiding. TECHNOLOGIES LLC; and FLAWLESS CENTER ) FOR COSMETIC MEDICINE, ) ) Defendants-Appellants. )

JUSTICE HOWSE delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment.

ORDER

¶1 Held: We affirm the order of the circuit court allowing plaintiff to proceed under a pseudonym and we remand the cause for further proceedings.

¶2 Plaintiff, identifying herself as Jane Doe, commenced this action against defendants,

cosmetic surgeon Dr. Elton X. Tinsley and his employers, under the Gender Violence Act and 1-21-0228

for fraud and deceit, breach of fiduciary duty, and defamation. Plaintiff then filed a motion for

leave to proceed anonymously as Jane Doe. Following a hearing, the trial court granted

plaintiff’s motion.

¶3 In this interlocutory appeal, defendants contend the trial court abused its discretion in

finding that plaintiff showed good cause to proceed under a pseudonym and as to all counts in

the complaint. Defendants also contend the trial court erred in finding plaintiff did not waive the

right to sue under a pseudonym based on other litigation filed in her name.

¶4 For the following reasons, we affirm the trial court’s order granting plaintiff leave to

proceed as Jane Doe in this litigation.

¶5 BACKGROUND

¶6 On July 7, 2020, plaintiff filed a complaint against defendants alleging a statutory cause

of action under the Gender Violence Act (740 ILCS 82/1 et seq. (West 2018)) and for fraud and

deceit, breach of fiduciary duty, and defamation. According to plaintiff, on four occasions, the

defendant doctor drugged her and then engaged in nonconsensual sex with her, which resulted in

her pregnancy and birth of a son. Plaintiff expressly alleged facts common to all counts to

support the related causes of action.

¶7 Defendants moved to dismiss the complaint because plaintiff filed anonymously without

seeking leave of court and without demonstrating good cause as required under section 2-401(e)

of the Code of Civil Procedure (735 ILCS 5/2-401(e) (West 2018)).

¶8 Plaintiff subsequently filed a motion for leave to proceed anonymously under section 2-

401(e). Citing Doe v. Doe, 282 Ill. App. 3d 1078 (1996), plaintiff alleged she has a compelling

interest as a victim of a sexual assault to proceed anonymously and that interest outweighs the

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public’s interest in open court proceedings. Plaintiff also alleged the child’s privacy interests

should be protected by allowing plaintiff to proceed anonymously in this litigation.

¶9 Defendants subsequently withdrew their motion to dismiss plaintiff’s complaint.

Defendants then filed a response to plaintiff’s motion for leave to proceed anonymously.

Defendants argued the motion was procedurally improper and substantively unwarranted.

Defendants also argued that plaintiff waived any right to proceed anonymously by pursuing a

parentage action and orders of protection using her name and the child’s name.

¶ 10 At the hearing on plaintiff’s motion for leave to proceed anonymously, plaintiff argued

for the “special protection” of her identity “given the nature of sexual assault that occurred.”

Defendants acknowledged there are exceptional circumstances where a person’s right to privacy

outweighs the public’s right to know about court proceedings. Although defendants claimed that

plaintiff disclosed her identity in other litigation including petitions for orders of protection,

defendants conceded there were no allegations of rape in those filings. Rather, plaintiff’s

allegation of sexual assault was raised in a complaint she filed with a state licensing agency, but

plaintiff did not file that complaint in her own name. Defendants, nevertheless, challenged

plaintiff’s general allegation that victims of sexual abuse are entitled to Jane Doe status.

Defendants also pointed out section 2-401(e) governs a party’s use of a fictitious name and that

the child is not a party to this litigation.

¶ 11 The trial court allowed plaintiff to proceed under the pseudonym Jane Doe. In doing so,

the court observed that a determination of good cause depends on whether plaintiff has a right to

privacy that outweighs the public’s right to know about court proceedings: “I’m aware of the

right of the public to know the scope and nature of litigations, I weigh that against the plaintiff’s

right to privacy here.” The court recognized different factors play a role in that determination,

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including whether plaintiff’s identity has been disclosed to the public. The court did not discuss

any other factors but found that plaintiff has a compelling interest that meets the requirements of

section 401(e) as interpreted by Doe v. Doe and subsequent authority.

¶ 12 Defendants filed this interlocutory appeal under Illinois Supreme Court Rule 307(a)(1)

(eff. Feb. 26, 2010).

¶ 13 ANALYSIS

¶ 14 Defendants contend the trial court abused its discretion in finding plaintiff demonstrated

good cause to proceed under a pseudonym. They argue plaintiff failed to meet her burden of

showing a “protectible privacy interest that outweighs the constitutional mandate of open court

proceedings.” According to defendants, neither plaintiff’s allegation of sexual assault, nor the

privacy interest of the child are sufficient to establish good cause to proceed anonymously.

Defendants also claim plaintiff waived the right to proceed anonymously because plaintiff’s

identity is already in the public domain based on her litigious history. Finally, defendants argue

the trial court abused its discretion by allowing plaintiff to proceed anonymously on the counts

for fraud, breach of duty, and defamation because those allegations have nothing to do with the

sexual assault allegation. The parties agree the trial court’s order allowing a party to proceed

anonymously is reviewed under the abuse of discretion standard. Doe v. Northwestern Memorial

Hospital, 2014 IL App (1st) 140212, ¶ 36.

¶ 15 Good Cause under Section 2-401(e)

¶ 16 Suing or defending under a pseudonym is disfavored because the identity of the parties is

related to the public nature of civil judicial proceedings. A.P. v. M.E.E., 354 Ill. App. 3d 989,

1003 (2004) (citing Coe v. County of Cook, 162 F.3d 491, 498 (7th Cir. 1998) and Doe v. Blue

Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir. 1997)). There is a

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presumption of openness in judicial proceedings. Chicago Tribune Co. v. Cook County

Assessor’s Office, 2018 IL App (1st) 170455, ¶ 51 (citing Doe v. Doe, 282 Ill. App. 3d 1078,

1084 (1996)).

¶ 17 For that reason, a party must set forth the names of all parties for and against whom relief

is sought in the pleading. 735 ILCS 5/2-401(c) (West 2018). There are exceptions, however.

Section 2-401(e) of the Code of Civil Procedure provides that parties may appear under fictitious

names upon application and for good cause shown. 735 ILCS 5/2-401(e) (West 2018). Whether a

plaintiff’s particular situation is “exceptional” must be made on a case-by-case basis.

Northwestern Memorial Hospital, 2014 IL App (1st) 140212, ¶ 44. The fundamental question is

whether the moving party has shown a privacy interest that outweighs the public’s interest in

open judicial proceedings. Doe, 282 Ill. App. 3d at 1088. We will not reverse the trial court’s

determination of good cause absent an abuse of discretion. Northwestern Memorial Hospital,

2014 IL App (1st) 140212, ¶ 36.

¶ 18 However, section 2-401(e) does not define “good cause.” Northwestern Memorial

Hospital, 2014 IL App (1st) 140212, ¶ 39. Before Doe v. Doe, 282 Ill. App. 3d 1078 (1996), no

Illinois decision had considered the issue. Id. The appellate court in Doe looked to nationwide

cases where anonymity was granted to a party and observed those cases concerned “exceptional”

situations in which the party has shown a privacy interest that outweighs the public’s interest in

open judicial proceedings. Doe, 282 Ill. App. 3d at 1088. Subsequent Illinois decisions have

followed that approach.

¶ 19 In Doe v. Doe, 282 Ill. App. 3d at 1082, the appellate court considered whether alleged

potential harm to the defendant’s family and reputation constitutes “good cause” to require both

parties to litigate under fictitious names over the plaintiff’s objection. The plaintiff filed a

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complaint against the defendant, who was her uncle by marriage, and alleged he sexually

molested her when she was a minor. Doe, 282 Ill. App. 3d at 1079-80. The plaintiff identified

herself as Jane Doe and her uncle as John Doe. Id. at 1080. The defendant filed an ex parte

motion to prohibit the plaintiff from disclosing his name in any pleadings filed in the litigation or

filing any other action in which the defendant’s identity is disclosed. Id. The defendant argued

disclosure would cause embarrassment, humiliation, and detriment to his reputation in the

community and profession and would cause severe damage to his wife and children. Id. After the

trial court granted the defendant’s motion, the plaintiff unsuccessfully moved to vacate the

court’s ruling. Id.

¶ 20 On interlocutory appeal, the plaintiff argued the potential damage to the defendant’s

reputation and the alleged harm to his family were insufficient reasons for prohibiting her from

disclosing her name or the defendant’s identity. Doe, 282 Ill. App. 3d at 1081. Given the lack of

a statutory definition of “good cause,” the appellate court looked at cases nationwide discussing

the conditions under which party anonymity is usually allowed. Id. at 1088. Those cases describe

“exceptional” situations involving matters of a “highly personal” nature such as abortion,

adoption, sexual orientation, and religion. Id. By contrast, the appellate court did not see the case

before it as an exceptional situation. Id. The appellate court declined to say that potential damage

to the defendant’s professional or personal reputation amounts to a protectible privacy interest.

Id. Accordingly, the appellate court found the trial court abused its discretion in prohibiting the

plaintiff from disclosing her name or the defendant’s name in the litigation. Id. at 1089. It bears

noting it was the alleged perpetrator of sexual molestation who sought to proceed anonymously,

not the sexual assault victim.

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¶ 21 Since Doe, the appellate court revisited the meaning of “good cause” under section 2-

401(e) in Doe v. Northwestern Memorial Hospital, 2014 IL App (1st) 140212. In that case, the

appellate court agreed with the trial court’s determination that the plaintiffs demonstrated good

cause to appear under fictitious names. Id. ¶ 42. The defendants stored the plaintiffs’ semen or

testicular tissue inside their cryogenic tanks, which failed and resulted in the loss of the

plaintiffs’ samples. Id. ¶ 3. The plaintiffs individually moved to appear under fictitious names.

Id. ¶ 8. They alleged their interest in proceeding anonymously outweighs any public interest in

their names. Id. As grounds, they cited the sensitive medical conditions and treatment underlying

the storage of their biological samples. Id. ¶¶ 8-9. The trial court granted plaintiffs leave to

appear under fictitious names (id. ¶ 6), and the defendants unsuccessfully moved to dismiss the

trial court’s ruling (id. ¶¶ 22-24).

¶ 22 On interlocutory appeal, the defendants argued that no reported decision in Illinois

recognizes a party’s reproductive health or a party’s underlying medical condition as good cause

to proceed anonymously under section 2-401(e). Northwestern Memorial Hospital, 2014 IL App

(1st) 140212, ¶ 38. The appellate court disagreed. Id. ¶ 42. The appellate court noted federal

caselaw stating, “ ‘the fact that a case involves a medical issue is not a sufficient reason for

allowing the use of a fictitious name, even though many people are understandably secretive

about their medical problems.’ ” Id. (quoting Doe v. Blue Cross & Blue Shield United of

Wisconsin, 112 F.3d 869, 872 (7th Cir. 1997)). Yet the appellate court imagined few situations

“more devastating, more highly personal and more entitled to privacy” than the plaintiffs’ “most

basic human right, to have a biological child,” which was destroyed by the failure of the

defendants’ cryogenic tanks. Id. The appellate court explained it was not the plaintiffs’

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allegations of serious injury that warranted their appearance under fictitious names but the

exceptional circumstances underlying those allegations. Id. ¶ 43.

¶ 23 In finding the trial court did not abuse its discretion in allowing the plaintiffs to proceed

under fictitious names, the appellate court reasoned:

“This is an exceptional situation, where plaintiffs facing grave health issues

utilized the defendants’ services to preserve their ability to reproduce with the intention

that this would be done with their privacy maintained. The implicit details of the

procedures involved in the plaintiffs’ commitment to this process are highly personal in

nature, including, in addition to the particular disease that led them to participate in the

process, the steps necessary to obtain the semen and testicular tissues as well as the

procedures necessary to achieve the later reproduction. These highly personal matters

were never intended to see the light of publicity and defendants’ alleged failure to

adequately protect this biological material did not change that fact.” Northwestern

Memorial Hospital, 2014 IL App (1st) 140212, ¶ 44.

¶ 24 Here, the parties recognized that “good cause” demands exceptional circumstances where

a person’s right to privacy outweighs the public’s right to know about court proceedings, and the

trial court recognized it may consider different factors in assessing whether plaintiff established

good cause to file anonymously. In finding plaintiff showed good cause, the trial court

considered her allegation of sexual assault, the absence of any indication her identity has been

disclosed to the public, and the public’s right to know about the court proceedings.

¶ 25 The Seventh Circuit has recognized that allegations of sexual assault are “highly

sensitive, personal matters that involve the disclosure of information of the utmost intimacy.”

Doe v. Cook County, Illinois, ___ F. Supp. 3d ___ (2021), No. 1:20-CV-5832, at *4 (N.D. Ill.

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June 3, 2021); accord Doe No. 2 v. Kolko, 242 F.R.D. 193, 195 (E.D.N.Y. 2006) (the Seventh

Circuit has recognized that sexual assault victims are a prime example of those entitled to a grant

of anonymity). Even so, a sexual assault allegation, alone, is not dispositive. See id. at *5 (and

cases cited therein) (“an allegation of sexual assault alone does not end the inquiry”). Other

factors must be considered when balancing a person’s right to privacy with the public’s right to

know. See id.; see also Doe v. Skyline Automobiles, Inc., 375 F. Supp. 3d 401, 405-06 (S.D.N.Y.

2019) (“other factors must be taken into consideration and analyzed in comparison to the

public’s interest and the interests of the opposing parties”).

¶ 26 However, the Seventh Circuit has not established a specific test for determining whether

a person may proceed under a pseudonym. Cook County, Illinois, ___ F. Supp. 3d ___ (2021),

No. 1:20-CV-5832, at *3. The Seventh Circuit has nevertheless recognized various non-

exhaustive factors considered by other courts including: (1) whether the case involves a highly

sensitive personal matter; (2) whether the movant would suffer harassment, ridicule, or

embarrassment; (3) whether there is a risk of prejudice to the opposing party; (4) whether the

movant’s identity has already been disclosed to the public; and (5) whether the opposing party is

a governmental entity or private individual. Id. (and cases cited therein).

¶ 27 This case involves an exceptional situation. Plaintiff alleges her own doctor drugged and

sexually assaulted her. Plaintiff alleges she became pregnant and gave birth to a child because of

the attack by defendant doctor. The implicit details underlying plaintiff’s allegations are deeply

personal and highly sensitive facts, which we conclude satisfy the good cause requirement of

section 2-401(e). See Northwestern Memorial Hospital, 2014 IL App (1st) 140212, ¶ 44.

¶ 28 Defendants maintain that plaintiff has not identified any case under the Gender Violence

Act where a plaintiff was permitted to proceed anonymously. However, defendants have likewise

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not identified any case under the Gender Violence Act where a court denied a victim of sexual

assault permission to file a private cause of action under a pseudonym against the perpetrator.

We decline to be the first. An abuse of discretion occurs when “ ‘the trial court’s ruling is

arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by

the trial court.’ ” Blum v. Koster, 235 Ill. 2d 21, 36 (2009) (quoting People v. Hall, 195 Ill. 2d 1,

20 (2000)). Here, we cannot say no reasonable person would allow plaintiff to proceed

anonymously based on this exceptional situation. Therefore, we find no abuse of discretion by

the trial court.

¶ 29 Waiver of Right to Proceed Anonymously

¶ 30 Defendants also argue that plaintiff waived the right to proceed anonymously because she

filed petitions for orders of protection against the defendant doctor in a parentage action.

Defendants claim these filings are public and show there was a sexual relationship between

plaintiff and defendant doctor; hence, plaintiff’s right to proceed anonymously is defeated.

¶ 31 “Waiver” is the “voluntary relinquishment of a known right.” Pinske v. Allstate Property

and Casualty Insurance Co., 2015 IL App (1st) 150537, ¶ 18. By contrast, “forfeiture” is “the

failure to make the timely assertion of the right.” Id. Waiver and forfeiture are limitations upon

the parties and not the reviewing court. Id. ¶ 19. Whether plaintiff’s filing of petitions for orders

of protection in other litigation constitutes a waiver of her right to proceed anonymously presents

a legal question subject to de novo review. See Midland Funding LLC v. Hilliker, 2016 IL App

(5th) 160038, ¶ 26 (whether Midland’s participation in the litigation constituted a waiver of the

right to arbitrate is a legal question subject to de novo review).

¶ 32 Here, defendants claimed at the hearing on plaintiff’s motion to proceed anonymously

that plaintiff disclosed her identity in other litigation including petitions for orders of protection.

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However, defendants conceded there were no allegations of rape in those filings. Instead,

plaintiff’s allegation of sexual assault was raised in a complaint she filed with a state licensing

agency, but plaintiff did not file that complaint in her own name. Plaintiff’s filings in other

litigation do not support an inference that she implicitly waived the right to proceed

anonymously in this case; thus, as a matter of law, we conclude plaintiff did not waive the right

to proceed under a pseudonym. See Board of Education of City of Chicago v. Illinois State Board

of Education, 2017 IL App (1st) 161147, ¶ 17 (“as a matter of law, the Board did not waive its

right to object to future extensions of the statutory time period for the dismissal hearing.”).

¶ 33 Allowing Plaintiff to Proceed Anonymously on All Counts

¶ 34 Defendants argue the trial court abused its discretion by allowing plaintiff to proceed

anonymously on the counts for fraud, breach of duty, and defamation because those allegations

have no connection with the sexual assault allegation. Defendants made this “argument in the

alternative” at the hearing on plaintiff’s motion for leave to proceed anonymously, which

preserved the issue for appeal. See People v. Norris, 8 Ill. App. 3d 931, 935 (1972) (defense

counsel orally presented the issue at the hearing on the posttrial motion and the trial court heard

arguments of the parties). As the hearing transcript confirms, defendants characterized this

argument as their “fallback position,” and plaintiff asserted, “The additional counts in the

complaint do arise out of the fiduciary duty.”

¶ 35 Although defendants frame the issue as an abuse of discretion, they cite section 2-603(b)

of the Code of Civil Procedure, which requires each separate cause be stated in a separate count

(735 ILCS 5/2-603(b) (West 2018)), and they note “[t]he sufficiency of each count in the

ultimate resolution of a claim for relief is a separate legal question,” which we review de novo.

(Fort v. Smith, 85 Ill. App. 3d 479, 482 (1980) (emphasis added)). Under either standard, the

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result would be the same. See, e.g., Capstone Financial Advisors, Inc. v. Plywaczynski, 2015 IL

App (2d) 150957, ¶ 7 (“While we can imagine similar scenarios where these two standards might

be in tension, we need not address the issue as the result under either standard would be the same

here.”).

¶ 36 In addition to the pleading requirement of section 2-603(b), section 2-613(a) of the Code

of Civil Procedure permits a party to “plead as many causes of action” (735 ILCS 5/2-613(a)

(West 2018)). Moreover, section 2-613(b) allows a party to state alternative causes of action

“regardless of consistency.” 735 ILCS 5/2-613(b) (West 2018). Plaintiff has satisfied these

pleading requirements with respect to her complaint against defendants. See Mueller by Math v.

Community Consolidated School District 54, 287 Ill. App. 3d 337, 341 (1997) (“plaintiff’s

complaint plainly and clearly attempts to allege four different causes of action”).

¶ 37 In her complaint, plaintiff expressly alleged facts underlying the sexual assault that are

common to all counts to support the related causes of action. The Gender Violence Act provides

victims of sexual assault “with a private cause of action against those who personally committed

the acts of gender-related violence and against those who encouraged or assisted the acts of

gender-related violence.” (Emphasis added.) Doe v. University of Chicago, 404 Ill. App. 3d

1006, 1008-09 (2010) (citing 740 ILCS 82/5, 10 (West 2004)).

¶ 38 Although the facts regarding plaintiff’s sexual assault are common to the counts for fraud

and breach of duty against the defendant employer, defendants maintain the trial court erred in

allowing plaintiff to proceed anonymously on the defamation count, which does not concern the

sexual assault. Critically, defendants cite no authority to support their proposition that “[i]f a

plaintiff brings any claim that does not justify anonymous pleading, then an application under

Section 2-401(e) must be denied as to the entire complaint.” Both coherent argument and citation

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to relevant authority are required of defendants as appellants under Illinois Supreme Court Rule

341(h)(7) (eff. Oct. 1, 2020). See Vancura v. Katris, 238 Ill. 2d 352, 369-70 (2010). We thus find

defendants have forfeited review of this claim. See, e.g., State by Raoul v. Hitachi, Ltd., 2021 IL

App (1st) 200176, ¶ 49.

¶ 39 Forfeiture aside, defendants’ claim is without merit. Defendants conflate pleading

requirements for complaints with the requirement that plaintiff, “upon application,” show good

cause to appear under a pseudonym. A trial court determines whether a moving party showed

good cause under section 2-401(e) on a case-by-case basis, not a count-by-count basis. See

Northwestern Memorial Hospital, 2014 IL App (1st) 140212, ¶ 44 (whether the movant’s

particular situation is “exceptional” must be made on a case-by-case basis). Although defendants

claim that plaintiff should bring a separate action for any counts unrelated to the alleged sexual

assault, we see no support for that proposition. Moreover, although an abuse of discretion has

been found where the trial court sealed the entire court files and “not every document contained

in the record *** was continually and intimately linked to minors’ privacy, confidential business

plans, or private financial information,” this is not the case here. See A.P., 354 Ill. App. 3d at

997-98. We conclude the trial court did not abuse its discretion in granting plaintiff Jane Doe

status as to her entire complaint.

¶ 40 CONCLUSION

¶ 41 For the reasons stated, we affirm the order of the circuit court of Cook County and

remand the cause for further proceedings.

¶ 42 Affirmed; cause remanded for further proceedings.