concurring in part and dissenting in part:
I agree with the principal holding in the majority opinion — that at least one actual person or entity must be named a defendant for the respondent in discovery statute, section 2 — 402 of the Code of Civil Procedure, to apply. (735 ILCS 5/2 — 402 (West 1992).) I do not agree, however, with the majority’s additional determination to make today’s decision purely prospective, so that it will govern only cases in which the notice of appeal is filed on or after the date this opinion is announced. (166 Ill. 2d at 517.) Far from being the type of matter in which purely prospective application of a new rule of law is appropriate, the present decision announces no new rule of law and thus raises no retroactivity question at all.
The very arguments marshalled by the majority in support of today’s interpretation of section 2 — 402 are also arguments for the retroactive application of today’s result. The majority correctly concludes that the legislative intent may be discerned from the clear terms of section 2 — 402, without resort to interpretive tools or canons of construction, and that the plain language of the statute requires the result reached here. Because the statutory language is clear, I must disagree with the majority’s further conclusion that the present holding should be made purely prospective, so that it applies only to appeals brought after the present opinion is filed. The present consolidated cases satisfy none of the criteria mentioned by the majority in its discussion of the retroactivity question. See Elg v. Whittington (1987), 119 Ill. 2d 344, 357.
Although one early appellate court opinion contained dicta supporting the construction urged by the plaintiffs (Whitley v. Lutheran Hospital (1979), 73 Ill. App. 3d 763), later appellate court opinions have made clear that section 2 — 402 requires the naming of at least one defendant (see Gonzales v. Pro Ambulance Service (1991), 219 Ill. App. 3d 284; Armour v. Petersen (1991), 219 Ill. App. 3d 289; Jacobs v. Abbott Laboratories (1991), 213 Ill. App. 3d 998; Guertin v. Guertin (1990), 204 Ill. App. 3d 527). Moreover, this court has long prohibited actions against fictitious parties. (Ohio Millers Mutual Insurance Co. v. Inter-Insurance Exchange of the Illinois Automobile Club (1937), 367 Ill. 44, 54.) Accordingly, when Gonzales, Armour, Jacobs, and Guertin stated that section 2 — 402 requires the naming of a defendant, those opinions could not have meant, contrary to the majority’s view, that a fictitious defendant would suffice. That result was already prohibited by Ohio Millers Mutual, and section 2 — 402 did not expressly authorize it.
In any event, regardless of whether today’s result was "foreshadowed” by prior judicial decisions, it was "foreshadowed” by the clear and unambiguous language of the statute. Thus, even in the absence of a prior judicial determination anticipating today’s result, we should decline the plaintiffs’ invitation to make our decision here purely prospective. Today’s construction of section 2 — 402 is compelled by the language of the statute, which, as the majority concludes, clearly requires this result. Having determined that section 2 — 402 does not authorize actions against fictitious parties, we should now enforce the terms of the statute — not only in future cases, but in these and other pending cases as well. Courts have no license to ignore valid legislative requirements.
The majority’s determination to make today’s ruling purely prospective can only invite litigants to find a retroactivity puzzle in every case of statutory construction. We have not previously hesitated to apply new statutory interpretations to existing disputes, however. (See Castaneda v. Illinois Human Rights Comm’n (1989), 132 Ill. 2d 304, 329-30; Rothe v. Maloney Cadillac, Inc. (1988), 119 Ill. 2d 288, 295.) Consistent with our past practice, as well as with the clear terms of section 2 — 402, I would apply the requirements of that statute to these and other pending cases.