The opinion of the court was delivered by: Wayne R. Andersen District Judge
MEMORANDUM OPINION AND ORDER
This matter is before the court on defendant Minnesota Mining and Manufacturing Company's motion for partial summary judgment filed pursuant to Federal Rule of Civil Procedure 56. The defendant's motion encompasses plaintiff's claim under the Illinois Consumer Fraud and Deceptive Business Practices Act ("Consumer Fraud Act"), 815 ILCS 505/2, as well as plaintiff's claim for non-contractual damages. For the following reasons, the defendant's motion is granted in part and denied in part.
In spring, 1995, plaintiff Rush University Medical Center ("Rush") and defendant Minnesota Mining and Manufacturing Company ("3M") began discussions regarding Rush's interest in 3M's Care Innovation system, an integrated clinical information system designed to give medical providers improved electronic access to patient records. On December 24, 1998, after nearly three years of negotiations, the parties signed a contract for Rush to license Care Innovation. The system went "live" at Rush by the fall of 1999.
The parties' contract required 3M's Care Innovation system to link Rush's different computerized clinical and administrative systems into a single, integrated patient data system-a "clinical data repository" ("CDR")-from which Rush's physicians, nurses, and others could obtain information on patients' medical histories and treatments. The contract also required 3M to provide a Care Innovation system with certain "functionalities" that would enable Rush's physicians, nurses, researchers, and administrators to interact with the clinical information in the CDR and provide "workflow" solutions to accommodate the way in which patient care was delivered at Rush. During the negotiations leading up to the parties' agreement, 3M made certain representations to Rush that caused Rush to believe that 3M had the capabilities to provide all of Rush's requested functionalities.
In its complaint, Rush alleges that the Care Innovation system that 3M provided to Rush lacked some or most of the functionalities that 3M had contractually agreed to provide. Specifically, Rush asserts that 3M provided merely a "read-only," non-interactive repository of clinical results of Rush's patients, rather than the interactive system required in the parties' contract. On September 27, 2001, Rush sent a letter to 3M both praising Care Innovation's ease of use in delivering clinical information to Rush's clinicians and also raising specific issues with the system regarding the missing or inactive functionalities that 3M had promised to provide. On October 11, 2001, 3M sent a letter to Rush in which 3M assured Rush that 3M was committed to the development and long-term growth of its Care Innovation system. Rush contends that it relied on those representations and continued to believe that 3M would provide the key functionalities that 3M had promised to provide.
On February 21, 2002, 3M sent Rush and all of 3M's other Care Innovation customers a letter (the "sunset letter") in which 3M made clear that it was no longer committed to developing certain components of Care Innovation. According to Rush, these components included certain functionalities that 3M had contracted to provide to Rush. As a result, Rush signed an agreement with another vendor to provide Rush with a system that would include the functionalities that 3M allegedly failed to provide. That new system is scheduled to go "live" at Rush by March, 2008. Meanwhile, Rush has continued to use 3M's Care Innovation system.
On October 26, 2004, Rush filed this lawsuit against 3M asserting claims for breach of contract, breach of warranty, and statutory fraud under the Consumer Fraud Act. Rush has requested at least $31 million in damages, which includes Rush's alleged $9.5 million cost to replace Care Innovation as well as $22 million in "cost savings" that Rush claims 3M promised but that Rush did not realize. 3M now asks this court to grant summary judgment on Rush's claim under the Consumer Fraud Act on the grounds that (1) the claim is barred by the Consumer Fraud Act's three-year statute of limitations; (2) the claim is entirely based upon language contained in the parties' contract; (3) Rush has not shown the requisite "consumer protection concerns" for a claim under the Consumer Fraud Act; and (4) according to 3M, there is no evidence that 3M made any fraudulent statements to Rush concerning Care Innovation. 3M also seeks partial summary judgment on Rush's demand for damages in excess of the damages limitation provision contained in the parties' contract.
Summary judgment is proper only when the complete record shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
FED. R. CIV. P. 56(c). The moving party has the initial burden of demonstrating the absence of evidence to support the position of the nonmoving party. Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). The burden then shifts to the nonmoving party to establish that there are genuine issues of material fact and that the moving party is not entitled to judgment as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986). A genuine dispute about a material fact exists only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
In ruling on a motion for summary judgment, the Court must draw every reasonable inference from the record in the light most favorable to the nonmoving party and should not make credibility determinations or weigh evidence. Ass'n Milk Producers, Inc. v. Meadow Gold Dairies, Inc., 27 F.3d 268, 270 (7th Cir. 1994). The nonmoving party must support its assertions with admissible evidence and may not rest upon the mere allegations in the pleadings or conclusory statements in affidavits. Celotex, 477 U.S. at 324. Additionally, Rule 56(c) mandates summary judgment when the nonmoving party fails to establish the existence of an element essential to its case and on which that party ...