specially concurring:
I agree with the majority’s conclusion that the medical malpractice count must be dismissed because the plaintiff, Cindy Miller, failed to file a certificate of merit as required by statute (735 ILCS 5/2 — 622 (West 1994)). I also agree with the majority’s holding that this cause be remanded to give Miller the opportunity to state a spoliation claim under Boyd v. Travelers Insurance Co., 166 Ill. 2d 188 (1995).
I write separately, however, to clarify that this court is not suggesting that anytime a plaintiff in a medical malpractice action fails to file a certificate of merit while claiming that certain evidence has been lost or destroyed, then, ipso facto, the plaintiff has a cause of action for spoliation of evidence. Rather, the dismissal of a medical malpractice claim for failure to file a certificate of merit establishes only that the plaintiff has failed to file the required certificate of merit. It does not satisfy the causation element of an action for negligent spoliation of evidence.
A majority of this court set forth the elements of a cause of action for negligent spoliation of evidence in Boyd. We explained there that to establish causation in such an action, a plaintiff must show that the defendant’s loss or destruction of the evidence caused the plaintiff to be unable to prove an underlying lawsuit. Boyd, 166 Ill. 2d at 196. We further explained that a plaintiff must demonstrate that, but for the loss or destruction of the evidence, the plaintiff had a reasonable probability of succeeding in the underlying suit. Boyd, 166 Ill. 2d at 196 n.2. As elaborated on in Boyd, the causation element requires a plaintiff to demonstrate how the missing evidence is critical to the plaintiff’s inability to prove the underlying suit, and it prevents a plaintiff from recovering where the underlying suit is meritless. Boyd, 166 Ill. 2d at 196 n.2, 200. Boyd’s discussions concerning the causation element represent a careful balancing of the rights of plaintiffs and defendants. The causation element is intended to ensure that plaintiffs do not wrongfully benefit from the spoliation of evidence. In particular, courts must guard against plaintiffs who may be tempted to manufacture a spoliation claim out of an insignificant piece of missing evidence because they know that they cannot win their underlying suit.
The record in this case reveals that Miller filed a two-count complaint against Dr. Narendra K. Gupta, charging him with medical malpractice and spoliation of evidence. Among other things, Miller’s first-amended complaint alleged that a podiatrist named Dr. William Hess told Miller that her foot problems may have resulted from medical malpractice committed by Gupta, and that he would need to see the X rays taken before and after her earlier surgery to determine if Gupta had committed malpractice. Miller’s complaint further alleged that she was not able to obtain a certificate of merit for her medical malpractice action because the subject X rays had been destroyed. She therefore asserted that the destruction of the X rays had deprived her of any remedy obtainable under the medical malpractice count.
Gupta moved to dismiss the malpractice count pursuant to section 2 — 619 of the Civil Practice Law (735 ILCS 5/2 — 619 (West 1994)) because Miller failed to attach the required certificate of merit. Gupta also moved to dismiss the spoliation count under section 2 — 615 of the Civil Practice Law (735 ILCS 5/2 — 615 (West 1994)), claiming that he owed no duty to preserve the X rays. The trial court granted both motions, and this appeal followed. This concurrence addresses only the section 2 — 619 motion.
One of the enumerated grounds for a section 2 — 619 motion to dismiss is that the claim is barred by affirmative matter which avoids the legal effect of or defeats the claim (Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 485-86 (1994)), such as for the failure to file a certificate of merit in a medical malpractice action (see 735 ILCS 5/2 — 622(g) (West 1994)). For purposes of deciding a section 2 — 619 motion, the court must accept as true all well-pleaded facts in the complaint and may consider all pleadings, depositions, and affidavits submitted by the parties. See Zedella v. Gibson, 165 Ill. 2d 181, 185 (1995).
Although the majority opinion does not clarify this point, for purposes of this appeal, we accepted as true all well-pleaded facts in Miller’s complaint. It is important to note, however, that the allegations in Miller’s complaint have never been subjected to adversarial testing and have never been adjudicated on the merits. As a result, in any subsequent action for negligent spoliation of evidence, Miller still bears the burden of establishing all the elements of that cause of action, including causation, and Gupta remains entitled to present relevant arguments and evidence in response.
In this appeal, Gupta mentions arguments that he may raise in a spoliation action against him. For example, Gupta suggests that other X rays of Miller’s foot are available from another physician who treated Miller shortly before Gupta did. If this is indeed true, and those X rays can substitute for those taken by Gupta himself, then the destruction of the subject X rays has not caused Miller to be unable to prove her underlying malpractice suit against Gupta. Gupta further submits that some of Miller’s claims, e.g., that Gupta failed to obtain Miller’s consent to perform a certain medical procedure, have no relevance to. the missing X rays. As noted above, Gupta is entitled to raise relevant arguments such as these in an action for negligent spoliation of evidence.
In summary, proof that a plaintiff’s underlying medical malpractice claim was dismissed for failure to file a certificate of merit, standing alone, is simply not sufficient to fulfill the causation element of a negligent spoliation claim. This is because the issue of whether the defendant’s loss or destruction of the evidence actually caused the plaintiff to be unable to prove the underlying malpractice suit remains to be determined on its merits.