McGathey v. Brookwood Health Services, Inc., [Ms. 1110760, Dec. 13, 2013] ___ So. 3d ___ (Ala. 2013). Application for rehearing overruled. In its August 2, 2013, opinion, the Supreme Court upheld a summary judgment on the ground that the plaintiff did not exercise due diligence in substituting the two individual defendants, Rawlings and Nunnally, for fictitiously named defendants. The medical records had the names of these two as being among the personnel in the operating room, but plaintiff asserted that she had no information that they were the persons responsible for injuring her until she took their depositions, which she was not able to take until after the two-year period of limitations expired. The Supreme Court rejected this argument: "McGathey's argument mistakenly focuses on when she learned of the specific details of Rawlings's and Nunnally's role in causing her injury rather than on when she knew the identities of those potential parties. Our cases emphasize that Rule 9(h) concerns the identity of a party, not the cause of action against a party." Counsel from our firm and others filed an amicus curiae brief on behalf of the Alabama Association for Justice arguing that the August 2 opinion changed the law of fictitious-party practice. Our brief discussed cases that we contended were inconsistent with the above-quoted holding in McGathey. Nevertheless, the Supreme Court overruled the application for rehearing without explanation.
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