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Docket No. 93982-Agenda 11-March 2003.

BRENDA BRANDT, Appellant, v. BOSTON SCIENTIFIC 
CORPORATION (Sarah Bush Lincoln Health Center,
Appellee).

Filed June 5, 2003

JUSTICE GARMAN delivered the opinion of the court:

Plaintiff, Brenda Brandt, suffered severe complicationsfollowing the surgical implantation of a medical device that waslater recalled by the manufacturer for being substandard. Brandtfiled an amended complaint that included a breach of impliedwarranty of merchantability claim (810 ILCS 5/2-314 (West1998)) under the Uniform Commercial Code (UCC) (810 ILCS5/1-101 et seq. (West 2000)) against her treating hospital,defendant Sarah Bush Lincoln Health Center (Health Center). Thecircuit court of Coles County dismissed the claim, and theappellate court affirmed (329 Ill. App. 3d 348). We grantedBrandt's petition for leave to appeal (177 Ill. 2d R. 315) to resolvethe question whether Brandt can bring a viable cause of action forbreach of the UCC implied warranty of merchantability against theHealth Center after a defective medical device was surgicallyimplanted during her medical treatment in that hospital.

BACKGROUND

Brandt was admitted to the Health Center to receive treatmentfor urinary incontinence. While there, a ProteGen Sling (sling) wassurgically implanted on December 23, 1998. A charge for the slingwas 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 wascausing medical complications in 7% of patients. Brandt sufferedserious complications, including pain, infection, bleeding, anderosion of vaginal tissue. In response to these complications, thesling was surgically removed in November 1999.

Brandt filed a six-count complaint in July 2000, allegingnegligence, strict liability, and breach of warranty againstdefendants Boston Scientific Corporation and Sarah Bush LincolnHealth Center. The Health Center filed a motion to dismiss countsIV through VI under section 2-615 of the Code of Civil Procedure(Code) (735 ILCS 5/2-615 (West 1998)) because the HealthCenter was not a merchant of medical devices and because thetransaction between Brandt and the Health Center waspredominantly for services instead of goods. Pursuant to section2-619 of the Code (735 ILCS 5/2-619 (West 1998)), the motionalleged Brandt failed to comply with the pleading requirements ofsection 2-622 of the Code (735 ILCS 5/2-622 (West 1998)).Section 2-622 requires a plaintiff to attach an affidavit "[i]n anyaction, whether in tort, contract or otherwise, in which the plaintiffseeks damages for injuries or death by reason of medical, hospital,or other healing art malpractice." 735 ILCS 5/2-622(a) (West1998). The trial court granted the motion to dismiss withoutprejudice 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 ScientificCorporation and are not part of this appeal. Count IV alleged abreach of warranty claim against the Health Center; no section2-622 affidavit was attached. Count IV specifically stated that theHealth Center "was engaged in the sale and distribution of medicalproducts, including [the] pubovaginal sling." As for the nature ofthe transaction, Brandt alleged:

"Plaintiff, BRENDA BRANDT, purchased a ProteGenSling catalog no. 820-121, lot. No. 027101, sold anddistributed by Defendant, SARAH BUSH LINCOLNHEALTH CENTER, and was implanted with the saidproduct on or about December 23, 1998, at the SARAHBUSH LINCOLN HEALTH CENTER in Mattoon,Illinois."

The Health Center again filed a motion to dismiss undersections 2-615 and 2-619 of the Code, citing the same threearguments it had raised about the original complaint. The trialcourt dismissed count IV with prejudice for failure to comply withthe pleading requirements of section 2-622; the court expressed noopinion regarding the other arguments asserted in the HealthCenter's motion.

The appellate court found that the trial court erred in holdingthat count IV alleged a healing art malpractice claim. Thus, section2-622 did not apply. 329 Ill. App. 3d at 353-54. The appellatecourt affirmed the dismissal of count IV, however, because itfound that the transaction between Brandt and the Health Centerwas primarily for services rather than goods so that the UCC didnot apply. 329 Ill. App. 3d at 353-54. The appellate courtacknowledged that Garcia v. Edgewater Hospital, 244 Ill. App. 3d894 (1993), reached the opposite conclusion but expresslydeclined to follow Garcia. 329 Ill. App. 3d at 353. The appellatecourt concluded that Garcia erroneously relied upon this court'sdecision in Cunningham v. MacNeal Memorial Hospital, 47 Ill. 2d443 (1970), because Cunningham had been entirely overruled bysubsequent legislation and, further, because Cunningham involveda strict liability claim rather than a UCC claim. 329 Ill. App. 3d at353.

Because Brandt prevailed on the section 2-622 issue beforethe appellate court, she only raises the arguments from the section2-615 motion to dismiss before this court. She submits that theappellate court erred in finding that her transaction with the HealthCenter was primarily for services and in asserting thatCunningham was no longer good law. We now consider thepropriety of the dismissal of the breach of warranty claim againstthe Health Center.

ANALYSIS

A section 2-615 motion to dismiss presents a question of law,which is reviewed de novo. Oliveira v. Amoco Oil Co., 201 Ill. 2d134, 147-48 (2002). In reviewing a motion to dismiss undersection 2-615, we accept as true all well-pleaded facts andreasonable inferences therefrom. Jackson v. South Holland Dodge,Inc., 197 Ill. 2d 39, 44 (2001). We determine whether plaintiffasserts a cause of action upon which relief may be granted afterconsidering all allegations in a light most favorable to plaintiff.Jackson, 197 Ill. 2d at 45.

Article 2 of the UCC imposes the implied warranty ofmerchantability. 810 ILCS 5/2-314 (West 2000). To succeed ona claim of breach of implied warranty of merchantability, aplaintiff must allege and prove: (1) a sale of goods (2) by amerchant of those goods, and (3) the goods were not ofmerchantable quality. 810 ILCS 5/2-314(1) (West 2000); seeGarcia, 244 Ill. App. 3d at 902; Malawy v. RichardsManufacturing Co., 150 Ill. App. 3d 549, 558 (1986). Unlessexcluded or modified, this warranty is implied in every sale underthese conditions. 810 ILCS 5/2-314(1) (West 2000).

Article 2 applies to "transactions in goods." 810 ILCS5/2-102 (West 2000). The UCC defines goods as "all things,including specially manufactured goods, which are movable at thetime of identification to the contract for sale." 810 ILCS5/2-105(1) (West 2000). Where there is a mixed contract forgoods and services, there is a "transaction in goods" only if thecontract is predominantly for goods and incidentally for services.Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill.2d 325, 352-53 (2002). This analysis is known as the"predominant purpose" test.

The parties here do not dispute that the sling implanted inBrandt satisfies the UCC definition of goods. The parties dodispute, however, whether the exchange between Brandt and theHealth Center constituted a transaction in goods; the Health Centerargues that it primarily provided medical services rather thangoods to Brandt.

In addition, an implied warranty of merchantability appliesonly to a merchant of goods of the kind involved in the contract."Merchant" is defined in the UCC as:

"a person who deals in goods of the kind or otherwise byhis occupation holds himself out as having knowledge orskill peculiar to the practices or goods involved in thetransaction or to whom such knowledge or skill may beattributed by his employment of an agent or broker orother intermediary who by his occupation holds himselfout as having such knowledge or skill." 810 ILCS5/2-104(1) (West 2000).

Section 2-314 provides, "a warranty that the goods shall bemerchantable is implied in a contract for their sale if the seller isa merchant with respect to goods of that kind." (Emphasis added.)810 ILCS 5/2-314(1) (West 2000). UCC comments explain thatthis language in section 2-314 requires a merchant to haveprofessional status as to a particular kind of goods, which isnarrower than the general definition of merchant found in section2-104. 810 ILCS Ann. 5/2-104, Uniform Commercial CodeComment 2, at 70-71 (Smith-Hurd 1992); Siemen v. Alden, 34 Ill.App. 3d 961, 964 (1975). The Health Center disputes that it is amerchant of medical devices.

Finally, a plaintiff must show that the goods in question werenot of merchantable quality. Merchantable means of a qualitycommensurate with that generally accepted within the trade underthe description of the goods in the contract. 810 ILCS Ann.5/2-314, Uniform Commercial Code Comment 2, at 186 (Smith-Hurd 1992). There is little dispute in this case that the sling wasnot merchantable. In its notice of voluntary recall of the sling, themanufacturer conceded as much by explaining, "we cannot assureourselves that the overall experience with ProteGen meets ourstandards for product performance."

We must determine whether, accepting the truth of thecomplaint allegations and reasonable inferences, Brandt has stateda cause of action upon which relief may be granted. Jackson, 197Ill. 2d at 44-45. The complaint alleged: (1) Brandt purchased thesling from the Health Center; (2) the sling was implanted in herbody at the Health Center; and (3) the Health Center was engagedin the sale of medical products, including slings. Thus, we mustdetermine whether these allegations assert that the transactionbetween Brandt and the Health Center was predominantly forgoods, and if so, that the Health Center can be considered amerchant of slings.

As an initial matter, we address Brandt's contention that suchan evaluation is not properly made upon review of a motion todismiss because we have only the amended complaint and billingstatements to consider. Illinois courts on several occasions haveevaluated whether a contract involved a transaction in goods orservices upon review of dismissal of a UCC claim. Pitler v.Michael Reese Hospital, 92 Ill. App. 3d 739, 742-43 (1980)(hospital delivery of radiation treatment was predominantly forservices, so the breach of warranty claim was properly dismissed);see also Zielinski v. Miller, 277 Ill. App. 3d 735, 741 (1995)(masonry subcontract was primarily for services, so dismissalunder the UCC statute of limitations was inappropriate); TivoliEnterprises, Inc. v. Brunswick Bowling & Billiards Corp., 269 Ill.App. 3d 638, 645-47 (1995) (bowling lane construction contractwas predominantly for goods, so dismissal under the UCC statuteof limitations was proper); Bob Neiner Farms, Inc. v. Hendrix, 141Ill. App. 3d 499, 501-03 (1986) (building construction contractwas primarily for goods, so claim properly was dismissed underUCC statute of limitations); Nitrin, Inc. v. Bethlehem Steel Corp.,35 Ill. App. 3d 577, 594-95 (1976) (breach of implied warranty ofmerchantability claim properly stricken by trial court becauseconstruction contract was predominantly for services). We agreethat the predominant purpose test can be applied at this stage ofthe proceedings.

In addition, even what ordinarily may be a question of factbecomes a question of law if the factual circumstances areundisputed and no reasonable difference of opinion could ariseabout the inferences that can be made from those facts. See CeresIllinois, Inc. v. Illinois Scrap Processing, Inc., 114 Ill. 2d 133, 142(1986); Zale Construction Co. v. Hoffman, 145 Ill. App. 3d 235,242 (1986). The parties do not dispute that Brandt purchased asling from the Health Center, which was implanted in her body atthe Health Center. It is reasonable to infer that Brandt had amedical condition, which was diagnosed and treated through asurgical procedure at the Health Center. According to the billingstatement, the hospital clearly provided medical facilities andtreatment necessary to enable the implantation of the sling. Thepurchase of the sling was not an isolated transaction; it is notreasonable to infer that Brandt simply went to the hospital, boughtthe sling, and left. There is no reasonable dispute about the factsof this case.

Plaintiff asserts that the amended complaint does not allegethat the surgeon acted as an employee or agent of the hospitalwhen performing the implantation surgery and that we should notpresume as much. Defendant does not dispute the status of thesurgeon. The status of the surgeon is not determinative, and weproceed on the assumption that the surgeon was not in any wayaffiliated with the Health Center because the pleadings do notaddress the surgeon's status.

Thus, we can analyze, as a matter of law, whether thehospital's sale of the sling and facilitation of its surgicalimplantation was a transaction in goods under the UCC. There islittle Illinois case law evaluating the nature of such a hospital-patient transaction, and other jurisdictions are divided on this issue(1 J. White & R. Summers, Uniform Commercial Code