## Facts

- Dr. Jay J. Schindler, a Wisconsin physician, brought a diversity defamation action against Joseph C. Seiler, a medical-device sales representative, and Seiler’s employer, Synthes Spine Company, L.P.
- Schindler alleged Seiler told Dr. Kerry White that Schindler was a “bad doctor” who had “paralyzed four patients.”
- Schindler’s only proof that Seiler made the specific accusation was Schindler’s testimony that White told him: “Joe Seiler is downstairs right now and just told me that you paralyzed four patients.”
- Seiler denied making the statement, and White denied that Seiler said Schindler had “paralyzed four patients,” though White acknowledged communicating that disparaging remarks about Schindler were being made.
- The district court excluded Schindler’s testimony as hearsay and granted summary judgment for defendants due to the absence of admissible evidence that the alleged defamatory statement was communicated to a third party.

## Issues

1. Whether Schindler’s testimony recounting White’s out-of-court report of Seiler’s alleged statement was admissible under the present-sense impression exception, Fed. R. Evid. 803(1).
2. Whether, absent that testimony, Schindler produced admissible evidence sufficient to create a genuine dispute of material fact on publication of a defamatory statement for purposes of summary judgment.

## Decision

- The court affirmed summary judgment for Seiler and Synthes.
- Schindler’s proffered testimony was inadmissible double hearsay, and the outer layer (White’s report to Schindler) did not qualify as a present-sense impression under Rule 803(1).
- Because Schindler lacked admissible evidence that Seiler communicated the alleged “paralyzed four patients” statement to White, no genuine issue of material fact existed on an essential element of defamation.

## Legal Principles

- Hearsay is inadmissible at summary judgment to the same extent it would be inadmissible at trial; a nonmovant must present admissible evidence to show a genuine dispute of material fact.
- Present-sense impression under Fed. R. Evid. 803(1) requires a statement describing or explaining an event or condition made while or immediately after the declarant perceived it; the proponent must show sufficient contemporaneity to support reliability.
- When evidence contains multiple hearsay layers, each layer must independently satisfy an exclusion from hearsay or a hearsay exception.
- Under Wisconsin defamation law, a plaintiff must prove, among other elements, communication of the defamatory statement to someone other than the plaintiff (publication); failure of proof on publication defeats the claim without reaching falsity or privilege.

## Conclusion

The court upheld summary judgment because the plaintiff’s sole proof of the alleged defamatory publication was double hearsay not saved by Rule 803(1), leaving no admissible evidence that the defendant made and communicated the specific accusation to a third party.


Schindler v. Seiler, 474 F.3d 1008 (7th Cir. 2007)