In
Ex parte Nail, [Ms. 1110742, Aug. 16, 2012] __ So. 3d __ (Ala. 2012), the Supreme Court
denied a petition for a writ of mandamus seeking to direct a circuit court
to vacate its order denying nurses' motions for summary judgment,
which contended that plaintiffs failed to use due diligence in identifying
the nurses who participated in responding to a Code at a hospital. Denying
the nurses' petition, the Supreme Court held that the due diligence
required to invoke the relation back principles of Ala.R.Civ.P. 9(h) and
15(c) "means
ordinary, rather than extraordinary, diligence." Ms. at * 17 (emphasis in
original). Because the plaintiffs filed interrogatories seeking to identify
the nurses who participated in the Code when they filed their complaint
within the statute of limitations, the "nurses have not produced
undisputed evidence of the absence of due diligence on the [plaintiffs']
part. Consequently, they have failed to show that they are entitled to
the writ of mandamus they seek." Ms. at * 18.
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