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Kamelgard v. Macura

October 23, 2009

JOSEPH KAMELGARD, PLAINTIFF-APPELLANT/CROSS-APPELLEE,
v.
JERZY MACURA, DEFENDANT-APPELLEE/CROSS-APPELLANT.



Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08 C 03211-Suzanne B. Conlon, Judge.

The opinion of the court was delivered by: Posner, Circuit Judge.

ARGUED SEPTEMBER 15, 2009

Before POSNER, FLAUM, and ROVNER, Circuit Judges.

The plaintiff, a bariatric surgeon who lives and practices in New Jersey, brought this diversity suit in the federal district court in Chicago. He claims to have been defamed by the defendant, another bariatric surgeon, who practices in New York. The district judge dismissed the suit without prejudice, on the ground that venue in Chicago was improper, and the plaintiff appeals. The defendant cross-appeals, claiming that the dismissal of the suit should have been with prejudice because the suit is time-barred. The cross-appeal is proper-and the plaintiff's challenge to it and his request for sanctions for the filing of the cross-appeal is frivolous and itself sanctionable-because it seeks relief beyond what the defendant obtained from the district court. Greenlaw v. United States, 128 S.Ct. 2559, 2564 (2008); Stone Container Corp. v. Hartford Steam Boiler Inspection & Ins. Co., 165 F.3d 1157, 1159 (7th Cir. 1999); Abbs v. Sullivan, 963 F.2d 918, 924 (7th Cir. 1992).

The plaintiff had testified against the defendant in a malpractice suit in New York, and the defendant had retaliated-according to the plaintiff's complaint-by mailing a defamatory letter on or about March 1, 2006, to the American College of Surgeons, which is located in Chicago. The defendant had on that day mailed what the plaintiff believes to be an identical or nearly identical letter of complaint about the plaintiff's testimony to the American Society of Bariatric Surgeons (now the American Society for Metabolic and Bariatric Surgery), in Florida. That letter is in the record, but the letter to the American College of Surgeons (if there is such a letter) is not, and the plaintiff has seen neither the original nor a copy. On April 5, however, he received a letter from an official of the American College of Surgeons, notifying him that the College had received a complaint about his testimony as an expert witness in the New York malpractice suit against the defendant. But the letter did not identify the complainant.

The College's disciplinary committee assigned three bariatric surgeons to investigate the complaint. In October the College sent the plaintiff a letter charging him with unprofessional conduct. But in March of the following year, after he had informed the College that the defendant had been sued for malpractice 30 times, the College wrote the plaintiff that its disciplinary committee had "voted to take no further action with regard to this matter."

The plaintiff claims not to have known that the defendant was the source of complaints against him until June 13, 2007, when at a convention in California a bariatric surgeon told him about the Florida letter. After that he put two and two together and concluded that the defendant must have been the author of the complaint to the College. His previous ignorance of the putative source of the complaint is a little hard to credit, since the College had told him that the complaint concerned his conduct in the malpractice suit against the defendant. But we'll assume it's true-it has to be, or his goose is cooked, because he didn't file this suit until June 3, 2008. That was more than a year after the alleged defamation by the two letters but just under a year after the conversation in California; and the Illinois statute of limitations, which the plaintiff contends is applicable to his suit (the defendant disagrees, and their disagreement is the principal issue in the appeals), requires that a suit for defamation be brought within a year of the "publication" of the defamatory statement, 735 ILCS 5/13-201; Davis v. Cook County, 534 F.3d 650, 654 (7th Cir. 2008)-unless the plaintiff could not have discovered the defamation within that period. Tom Olesker's Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc., 334 N.E.2d 160, 164 (Ill. 1975); Goodman v. Harbor Market, Ltd., 663 N.E.2d 13, 17-18 n. 3 (Ill. App. 1996); Schweihs v. Burdick, 96 F.3d 917, 920 (7th Cir. 1996) (Illinois law).

We begin our analysis with the issue of the missing letter to the American College of Surgeons. To proceed in a libel suit without the statement that is alleged to be defamatory is unconventional, though there are a few such cases. Trail v. Boys & Girls Clubs of Northwest Indiana, 845 N.E.2d 130, 137-38 (Ind. 2006), for example, was a libel suit by a disgruntled former employee against his supervisors complaining about a biased report that cast him in a negative light. He had not seen the report, and the court ordered the suit dismissed, explaining that "without the statement . . . the court cannot actually determine if the statement is legally defamatory." We haven't found a case in which such a suit was successful, but we don't think there is or should be an absolute rule that without the corpus delicti, as it were, a libel suit must fail. The allegedly libelous document might have disappeared through no fault of the plaintiff and there might be evidence of its existence and contents, such as testimony by persons who had read it-just as key evidence in a slander case, because slander is oral, is the testimony of persons who heard it. Robinson v. Lescrenier, 721 F.2d 1101, 1104 (7th Cir. 1983); Simon v. Shearson Lehman Brothers, Inc., 895 F.2d 1304, 1309 (11th Cir. 1990); Gasbarra v. Park-Ohio, Inc., 382 F. Supp. 399, 403 (N.D. Ill. 1974); Israel Travel Advisory Service Inc. v. Israel Identity Tours, Inc., No. 92-C-2379, 1994 WL 30984 (N.D. Ill. Jan. 28, 1994), affirmed, 61 F.3d 1250 (7th Cir. 1995).

The plaintiff argues that he asked the College for the letter and the College wouldn't give it to him-indeed, would neither admit nor deny the existence of such a letter. He had joined the College as a defendant; and in its motion to dismiss (which was granted), the College argued that if there was such a letter it was privileged by the Illinois Medical Studies Act, 735 ILCS 5/8-2101 ("all information, interviews, reports, statements, memoranda, recommendations, letters of reference or other third party confidential assessments of a health care practitioner's professional competence, or other data of . . . the Illinois State Medical Society, [or] allied medical societies . . . used in the course of internal quality control . . . for improving patient care . . . shall be privileged [and] strictly confidential"); Jenkins v. Wu, 468 N.E.2d 1162, 1168-69 (Ill. 1984); cf. Austin v. American Association of Neurological Surgeons, 253 F.3d 967, 974 (7th Cir. 2001) (Illinois law); by the status of the College as a quasi-judicial body, Illinois College of Optometry v. Labombarda, 910 F. Supp. 431, 432-34 (N.D. Ill. 1996); and by the common law privilege for a communication that the defendant had a duty to make and did not disseminate any further than necessary. Kuwik v. Starmark Star Marketing & Administration, Inc., 619 N.E.2d 129, 132--35 (Ill. 1993); In re Himmel, 533 N.E.2d 790 (Ill. 1988); Smock v. Nolan, 361 F.3d 367, 372 (7th Cir. 2004) (Illinois law); J.D. Edwards & Co. v. Podany, 168 F.3d 1020, 1022 (7th Cir. 1999) (same); Jones v. Western & Southern Life Ins. Co., 91 F.3d 1032, 1035 (7th Cir. 1996) (same). A professional, including a doctor (see American Medical Association, Code of Medical Ethics, Opinion 9.031 ("Reporting Impaired, Incompetent, or Unethical Colleagues"), June 2004, www.ama-assn.org/ama/pub/physicianr esources/medical-ethics/code-medical-et hics/opinion9031.shtml (visited Oct. 4, 2009)), has a duty to notify the proper public or private authorities of unprofessional conduct, which he observes, by a fellow professional.

The plaintiff made no effort to obtain the supposed letter to the American College of Surgeons by compulsory process and seems to have had no plans to do so. As we'll see, he apparently did not realize that he could obtain it, however unwilling the College was to divulge it, by subpoena under Rule 45 of the civil rules unless the College prevailed on one of its claims of privilege.

In light of the plaintiff's failure to obtain the letter, the claim based on it is probably going nowhere even if the letter exists and is not privileged. Indeed the claim may have been dismissed already-and on the merits, rather than for improper venue. The district judge termed the plaintiff's assertion that he could not identify the alleged defamatory statement made by the defendant because "this information is solely in [the College's possession] meritless, given his discovery rights." Later the judge described the plaintiff's complaint as "insufficient to the extent Kamelgard claims Macura made unidentified defamatory statements to . . . American College of Surgeons" and therefore "there presently appears to be no venue in this court for Kamelgard's claims against Macura. Unless Kamelgard remedies this situation within 10 days, his entire complaint shall be dismissed without prejudice for lack of venue." Presumably the judge thought that if the plaintiff couldn't obtain the letter on which he based his claim against the College of Surgeons, the claim had no merit and therefore Illinois (where the College's head-quarters are located) had no connection to the suit: a New Jersey resident would be suing in Illinois a New York resident over a letter mailed to Florida from New York (presumably-but certainly not from Illinois).

When the judge turned down a request by the plaintiff to clarify what she meant by "discovery rights," the plaintiff's lawyer moved to take deposition testimony under Rule 27 of the civil rules. The judge referred the motion to a magistrate judge, who held a hearing at which he expressed bafflement at the plaintiff's invocation of that rule, which governs depositions taken before suit (to preserve evidence) or pending appeal, neither being a concern pertinent to this case. He asked why the plaintiff wasn't proceeding under Rule 45, which governs subpoenas. The plaintiff's lawyer was unacquainted with that rule and, it soon became clear, was in any event not seeking production of the letter, which he could have done (subject to a defense of privilege, Fed. R. Civ. P. 45(c)(3)(A)(iii)) by serving a subpoena duces tecum on the College. Fed. R. Civ. P. 26(b)(1), 45; Gotham Holdings, LP v. Health Grades, Inc., No. 09-2377, 2009 WL 2809386 (7th Cir. Sept. 3, 2009); Capital Co. v. Fox, 85 F.2d 97, 100-01 (2d Cir. 1936) (L. Hand, J.). Instead he wanted to depose the bariatric surgeon who had told him in June 2007 in California about the investigation by the College and the defendant's letter to the American Society of Bariatric Surgeons.

The magistrate judge noted that the plaintiff's lawyer had withdrawn his motion to proceed under Rule 27, and suggested that he proceed under Rule 45 to obtain the letter, but he did not do so. It seems that he may not know how to use compulsory process to obtain a document from a third party for use in a proceeding in a federal court.

The district judge seems to have considered the failure to obtain the letter that the plaintiff thinks is in the College's possession fatal to his claim that the letter defamed him. For remember that she had said that if he didn't "identify" the defamatory statements that he claimed the defendant had made to the College, she would dismiss the case for improper venue, since, as we said, without defamatory statements to the College, Illinois has no connection to the suit. He never did "identify" the statements, and while the dismissal of the suit was without prejudice, probably that was only because the claim against the defendant for defamation by means of the mailing to Florida was still alive when the ...


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