The opinion of the court was delivered by: Justice Garman
Docket No. 93982-Agenda 11-March 2003.
Plaintiff, Brenda Brandt, suffered severe complications following the surgical implantation of a medical device that was later recalled by the manufacturer for being substandard. Brandt filed an amended complaint that included a breach of implied warranty of merchantability claim (810 ILCS 5/2-314 (West 1998)) under the Uniform Commercial Code (UCC) (810 ILCS 5/1-101 et seq. (West 2000)) against her treating hospital, defendant Sarah Bush Lincoln Health Center (Health Center). The circuit court of Coles County dismissed the claim, and the appellate court affirmed (329 Ill. App. 3d 348). We granted Brandt's petition for leave to appeal (177 Ill. 2d R. 315) to resolve the question whether Brandt can bring a viable cause of action for breach of the UCC implied warranty of merchantability against the Health Center after a defective medical device was surgically implanted during her medical treatment in that hospital.
Brandt was admitted to the Health Center to receive treatment for urinary incontinence. While there, a ProteGen Sling (sling) was surgically implanted on December 23, 1998. A charge for the sling was included in her bill from the Health Center. In January 1999, the manufacturer of the sling, Boston Scientific Corporation, issued a voluntary recall of the product because the product was causing medical complications in 7% of patients. Brandt suffered serious complications, including pain, infection, bleeding, and erosion of vaginal tissue. In response to these complications, the sling was surgically removed in November 1999.
Brandt filed a six-count complaint in July 2000, alleging negligence, strict liability, and breach of warranty against defendants Boston Scientific Corporation and Sarah Bush Lincoln Health Center. The Health Center filed a motion to dismiss counts IV through VI under section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 1998)) because the Health Center was not a merchant of medical devices and because the transaction between Brandt and the Health Center was predominantly for services instead of goods. Pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 1998)), the motion alleged Brandt failed to comply with the pleading requirements of section 2-622 of the Code (735 ILCS 5/2-622 (West 1998)). Section 2-622 requires a plaintiff to attach an affidavit "[i]n any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice." 735 ILCS 5/2-622(a) (West 1998). The trial court granted the motion to dismiss without prejudice for failure to comply with section 2-622.
Brandt filed a four-count amended complaint in May 2001. The first three counts again were against Boston Scientific Corporation and are not part of this appeal. Count IV alleged a breach of warranty claim against the Health Center; no section 2-622 affidavit was attached. Count IV specifically stated that the Health Center "was engaged in the sale and distribution of medical products, including [the] pubovaginal sling." As for the nature of the transaction, Brandt alleged:
"Plaintiff, BRENDA BRANDT, purchased a ProteGen Sling catalog no. 820-121, lot. No. 027101, sold and distributed by Defendant, SARAH BUSH LINCOLN HEALTH CENTER, and was implanted with the said product on or about December 23, 1998, at the SARAH BUSH LINCOLN HEALTH CENTER in Mattoon, Illinois."
The Health Center again filed a motion to dismiss under sections 2-615 and 2-619 of the Code, citing the same three arguments it had raised about the original complaint. The trial court dismissed count IV with prejudice for failure to comply with the pleading requirements of section 2-622; the court expressed no opinion regarding the other arguments asserted in the Health Center's motion.
The appellate court found that the trial court erred in holding that count IV alleged a healing art malpractice claim. Thus, section 2-622 did not apply. 329 Ill. App. 3d at 353-54. The appellate court affirmed the dismissal of count IV, however, because it found that the transaction between Brandt and the Health Center was primarily for services rather than goods so that the UCC did not apply. 329 Ill. App. 3d at 353-54. The appellate court acknowledged that Garcia v. Edgewater Hospital, 244 Ill. App. 3d 894 (1993), reached the opposite conclusion but expressly declined to follow Garcia. 329 Ill. App. 3d at 353. The appellate court concluded that Garcia erroneously relied upon this court's decision in Cunningham v. MacNeal Memorial Hospital, 47 Ill. 2d 443 (1970), because Cunningham had been entirely overruled by subsequent legislation and, further, because Cunningham involved a strict liability claim rather than a UCC claim. 329 Ill. App. 3d at 353.
Because Brandt prevailed on the section 2-622 issue before the appellate court, she only raises the arguments from the section 2-615 motion to dismiss before this court. She submits that the appellate court erred in finding that her transaction with the Health Center was primarily for services and in asserting that Cunningham was no longer good law. We now consider the propriety of the dismissal of the breach of warranty claim against the Health Center.
A section 2-615 motion to dismiss presents a question of law, which is reviewed de novo. Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 147-48 (2002). In reviewing a motion to dismiss under section 2-615, we accept as true all well-pleaded facts and reasonable inferences therefrom. Jackson v. South Holland Dodge, Inc., 197 Ill. 2d 39, 44 (2001). We determine whether plaintiff asserts a cause of action upon which relief may be granted after considering all allegations in a light most favorable to plaintiff. Jackson, 197 Ill. 2d at 45.
Article 2 of the UCC imposes the implied warranty of merchantability. 810 ILCS 5/2-314 (West 2000). To succeed on a claim of breach of implied warranty of merchantability, a plaintiff must allege and prove: (1) a sale of goods (2) by a merchant of those goods, and (3) the goods were not of merchantable quality. 810 ILCS 5/2-314(1) (West 2000); see Garcia, 244 Ill. App. 3d at 902; Malawy v. Richards Manufacturing Co., 150 Ill. App. 3d 549, 558 (1986). Unless ...