Jay J. Schindler v. JOSEPH C. SEILER and SYNTHES SPINE COMPANY , L.P.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2299
J AY J. S CHINDLER ,
Plaintiff-Appellant,
v.
J OSEPH C. S EILER and
S YNTHES S PINE C OMPANY , L.P.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 05 C 521—Barbara B. Crabb, Chief Judge.
____________
A RGUED N OVEMBER 29, 2006—D ECIDED F EBRUARY 5, 2007
____________
Before B AUER , C UDAHY , and R OVNER , Circuit Judges.
B AUER , Circuit Judge. Dr. Jay J. Schindler appeals
the entry of summary judgment in favor of Joseph Seiler
and Seiler’s employer, Synthes Spine Company, L.P.
(“Synthes”). Dr. Schindler brought this diversity action,
alleging that Seiler had defamed him by informing a
third party, Dr. Kerry White, that Dr. Schindler was a
“bad doctor” who had “paralyzed four patients.” Both
Seiler and Dr. White deny that Seiler made these state-
ments.
The sole evidence offered by Dr. Schindler to prove that
these statements were made was his own testimony that

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2 No. 06-2299
Dr. White had said to him, “Joe Seiler is downstairs right
now and just told me that you paralyzed four patients.”
The district court ruled that Dr. Schindler’s testimony
about what Dr. White had said to him was inadmissable
hearsay and granted summary judgment in favor of the
defendants. We affirm.
I. Analysis
Because the district court’s decision to grant sum-
mary judgment is premised on its evidentiary finding, a
combined standard of review is appropriate. Corder v.
Lucent Technologies Inc., 162 F.3d 924, 927 (7th Cir. 1998).
“We review a district court’s decision that a particular
hearsay statement is not admissible under an abuse of
discretion standard.” United States v. Hall, 165 F.3d 1095,
1108 (7th Cir. 1999). However, we review the district
court’s grant of summary judgment de novo and consider
all evidence in the light most favorable to the nonmoving
party. Sartor v. Spherion Corp., 388 F.3d 275, 277-78 (7th
Cir. 2004). Summary judgment is proper if the plead-
ings, depositions, answers to interrogatories, and admis-
sions on file, together with any affidavits, show that there
is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law. F ED . R. C IV . P.
56(c). In order to defeat a motion for summary judgment,
a plaintiff must present admissible evidence that raises
a genuine issue of material fact. Rogers v. City of Chicago,
320 F.3d 748, 751 (7th Cir. 2003).
As a federal court sitting in diversity, we apply Wis-
consin state law to resolve substantive questions and
federal law to resolve evidentiary issues. Bevolo v. Carter,
447 F.3d 979, 982 (7th Cir. 2006). Under Wisconsin state
law, an action for defamation has three elements: (1) the
statement must be false; (2) the statement must be
communicated by speech, conduct or in writing to a per-

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No. 06-2299 3
son other than the person defamed; and (3) the com-
munication must be unprivileged and tend to harm one’s
reputation so as to lower him or her in the estimation of
the community or to deter third persons from associating
or dealing with him or her. Torgerson v. Journal/Sentinel,
Inc., 210 Wis. 2d 524, 534, 563 N.W.2d 472, 477 (Wis.
1997). In an action for slander, “the particular words
complained of shall be set forth in the complaint.” Wis.
Stat. § 802.03(6). Thus, to prove his claim of defamation
against Seiler and Synthes, Dr. Schindler must offer
evidence that Seiler said to Dr. White that Dr. Schindler
is a “bad doctor” who had “paralyzed four patients.”
Because Dr. Schindler offered no admissible evidence
that Seiler made these statements to Dr. White, the
district court properly granted the defendants’ motion for
summary judgment.
In his appeal, Dr. Schindler first argues that the district
court erred in excluding as inadmissible hearsay his
testimony that Dr. White told him that “Joe Seiler is
downstairs right now and just told me that you paralyzed
four patients.” Hearsay is an out-of-court statement that
is offered to prove the truth of the matter asserted, F ED . R.
E VID . 801(c), and, generally, is inadmissible. See F ED . R.
E VID . 802. Dr. Schindler contends that the district court
erred because his testimony is not being offered to prove
the truth of the matter asserted, i.e., that Dr. Schindler
paralyzed four patients, but rather to prove that the
defamatory statements were made.
Statements that constitute verbal acts (e.g., words of
contract or slander) are not hearsay because they are not
offered for their truth. See F ED . R. E VID . 801(c) Advisory
Committee Notes (noting that the Rule 801(c) excludes
from the definition of hearsay “ ‘verbal acts’ and ‘verbal
parts of an act,’ in which the statement itself affects the
legal rights of the parties or is a circumstance bearing on
conduct affecting their rights.”). Similarly, a statement

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4 No. 06-2299
offered to show its effect on the person who heard the
statement is not hearsay. See United States v. Robinzine,
80 F.3d 246, 252 (7th Cir. 1996) (ruling that words offered
to show why a witness recanted her testimony are not
hearsay where the words are offered to show how they
affected the witness).
Where a plaintiff attempts to introduce the testimony
of an individual who did not personally witness the al-
leged defamatory statement but was later told by an-
other that the statement was made, such testimony is
rejected as hearsay. See Haywood v. Lucent Technologies,
Inc., 323 F.3d 524, 533 (7th Cir. 2003); Bularz v. Pruden-
tial Insurance Company Of America, 93 F.3d 372, 377-78
(7th Cir. 1996). This is precisely what Dr. Schindler is
attempting to do through his own testimony.
Seiler testified during his deposition that he had in-
formed Dr. White that he had overhead others making
derogatory remarks about Dr. Schindler. Seiler denied,
however, that he relayed any specific details of the deroga-
tory statements to Dr. White. Likewise, Dr. White testi-
fied that Seiler had not told him that Dr. Schindler had
paralyzed four patients or that Dr. Schindler was a bad
doctor. Had Dr. White testified to the contrary, that Seiler
had said to him that Dr. Schindler was a “bad doctor”
who had “paralyzed four patients,” Dr. White’s testimony
would be admissible. Dr. Schindler, however, has failed
to present testimony from any individual who personally
heard Seiler make the defamatory statements. And
Dr. Schindler’s own testimony as to what Dr. White said
to him is offered precisely to prove the ultimate fact in
question and the truth of the matter asserted therein:
Seiler said to Dr. White that Dr. Schindler was a “bad
doctor” who had “paralyzed four patients.” Dr. Schindler
has not asserted any other non-hearsay purpose for
offering his testimony. The district court properly ex-
cluded such evidence as inadmissible hearsay.

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No. 06-2299 5
Alternatively, Dr. Schindler argues that even if his
testimony is hearsay, it is admissible under either the
present sense impression exception to the general rule
barring hearsay, F ED . R. E VID . 803(1), or the unavailable
witness exception, F ED . R. E VID . 804(a)(3). Neither excep-
tion is applicable here.
Under Rule 803(1), hearsay is admissible as a present
sense impression if the “statement describing or explain-
ing an event or condition [was] made while the declarant
was perceiving the event or condition, or immediately
thereafter.” There are three criteria for the admission of
statements under Rule 803(1): “(1) the statement must
describe an event or condition without calculated narra-
tion; (2) the speaker must have personally perceived
the event or condition described; and (3) the statement
must have been made while the speaker was perceiving
the event or condition, or immediately thereafter.” United
States v. Ruiz, 249 F.3d 643, 646 (7th Cir. 2001). “A
declarant who deliberates about what to say or provides
statements for a particular reason creates the possibility
that the statements are not contemporaneous, and,
more likely, are calculated interpretations of events
rather than near simultaneous perceptions.” United States
v. Woods, 301 F.3d 556, 562 (7th Cir. 2002).
Dr. White testified that he told Dr. Schindler “that Mr.
Seiler had brought to my attention that disparaging and
derogatory comments were being made at institutions
outside of Eau Claire.” He also testified that he told
Dr. Schindler about the derogatory comments because
he was concerned about their impact on Dr. Schindler
and his reputation. Additionally, Dr. Schindler claims
that Dr. White testified that he immediately went to
Dr. Schindler after hearing Seiler’s defamatory state-
ment. This claim is untrue. Although Dr. White testified
that he conveyed the information that he had received
from Seiler to Dr. Schindler, he never testified that he did

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6 No. 06-2299
so immediately after speaking with Seiler. Dr. Schindler
relies on his own testimony—that Dr. White told him, “Joe
Seiler is downstairs right now and just told me that you
paralyzed four patients”—to prove the immediacy of
Dr. White’s statement. Because Dr. White’s statement to
Dr. Schindler was a calculated narration, made for a
specific reason, and Dr. Schindler has failed to present
admissible evidence of the statement’s immediacy, the
present sense impression exception to the hearsay rule
does not apply.
Dr. Schindler’s final argument is that Dr. White is an
unavailable witness under Rule 804(a)(3), and therefore,
his own testimony is admissible as evidence of his recol-
lection of Dr. White’s conversation with him. Under Rule
804(a)(3), a declarant is unavailable if he or she “testifies
to a lack of memory of the subject matter of the de-
clarant’s statement.” Dr. Schindler’s argument fails for
two reasons. First, Dr. White is not an unavailable wit-
ness: he testified that Seiler did not tell him that
Dr. Schindler “had paralyzed patients” or was a “bad
doctor.” Second, Dr. Schindler’s statement of what Dr.
White allegedly told him does not fit into any of the
categories outlined in F ED . R. E VID . 804(b), which lists the
types of statements that are not excluded by the hearsay
rule when the declarant is unavailable.
Because Dr. Schindler’s testimony is hearsay that is
not subject to any exception to the general rule prohibit-
ing such statements from being received into evidence,
we find that Dr. Schindler is unable to meet his burden
of proving that Seiler communicated to Dr. White that
Dr. Schindler was a “bad doctor” who had “paralyzed four
patients.” Summary judgment in favor of the defendants
was therefore appropriate.

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No. 06-2299 7
II. Conclusion
For the reasons stated above, we A FFIRM the district
court’s grant of summary judgment.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-5-07

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