Fictitious Parties Practice - Relation Back of Amendment - Breach of Warranty


Ex parte Integra LifeSciences Corporation, [Ms. 1170692, Aug. 24, 2018] __ So. 3d __ (Ala. 2018). This unanimous decision by Justice Main grants in part and denies in part a petition for writ of mandamus filed by Integra LifeSciences Corporation in an action involving an allegedly defective surgical mesh implanted during plaintiff’s breast reconstruction procedure on May 19, 2014. While plaintiff filed an action on March 19, 2014, she did not substitute Integra for a fictitious party until March 16, 2017. Ms. *4.

Integra promptly moved for summary judgment on the ground that the claims against it were barred by the statute of limitations and that the complaint against it did not relate back because the plaintiff was in possession of medical records which identified SurgiMend as the surgical mesh used in her procedure. Ms. *4-5.

The Court agreed with Integra. The Court cited prior case law that “‘a party is responsible for knowing the contents of medical records in its possession.’” Ms. *13, quoting Ex parte Mobile Infirmary Ass’n, 74 So. 3d 424, 431 (Ala. 2011). The Court further held that reasonable diligence on the part of the plaintiff would have led to a web site “,” located on Integra’s web site. Ms. *13. The Court noted that plaintiff “does not dispute that a simple Internet query using the word “SurgiMend” would have led her to those Web sites and, ultimately, to Integra’s identity as a manufacturer of the mesh.” Ibid.

The Court reached a different conclusion as to the breach of warranty claim, noting that such a claim is “separate and distinct from an AEMLD claim.” Ms. *16 (internal quote marks omitted). The Court refused to dismiss plaintiff’s breach of warranty claim, because it was asserted against Integra within 4 years of plaintiff’s May 19, 2014 surgery. Ibid.

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