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KAMELGARD v. MACURA
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United States Court of Appeals,Seventh Circuit.

Joseph KAMELGARD, Plaintiff-Appellant/Cross-Appellee, v. Jerzy MACURA,

Defendant-Appellee/Cross-Appellant.

Nos. 08-4254, 09-1030.

Decided: October 23, 2009

Before POSNER, FLAUM, and ROVNER, Circuit Judges. Miles J. Zaremski, Attorney (argued),
Zaremski Law Group, Northbrook, IL, for Plaintiff-Appellant. Daniel M. Purdom, Attorney, Adam L.
Saper, Attorney, Hinshaw & Culbertson, Chicago, IL, for Defendant-Appellee.
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 ling 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, --- U.S. ----, 128 S.Ct. 2559, 2564, 171 L.Ed.2d 399 (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 testi ed 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 o cial 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 le 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., 61 Ill.2d 129, 334 N.E.2d 160,
164 (1975); Goodman v. Harbor Market, Ltd., 278 Ill.App.3d 684, 215 Ill.Dec. 263, 663 N.E.2d 13,
17-18 n. 3 (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. Robison 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), a rmed, 61 F.3d 1250 (7th Cir.1995).

The plaintiff contends 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 con dential 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 con dential”); Jenkins v. Wu, 102 Ill.2d 468, 82 Ill.Dec. 382, 468 N.E.2d
1162, 1168-69 (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., 156 Ill.2d 16, 188 Ill.Dec. 765, 619 N.E.2d 129, 132-35 (1993); In re Himmel, 125 Ill.2d 531,
127 Ill.Dec. 708, 533 N.E.2d 790 (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/
physician-resources/medical-ethics/ code-medical-ethics/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 “insu cient to the
extent Kamelgard claims Macura made unidenti ed 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
headquarters 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
ba ement 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., 580 F.3d 664. (7th Cir.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 judge ruled, though that claim was abandoned, both in the
defendant's reply brief in this court and by his lawyer at the oral argument, for reasons explained
later in this opinion.

The most natural interpretation of the district judge's series of orders is thus that the plaintiff
having failed even to attempt by use of process to obtain information that the judge thought vital
to his claim of having been defamed in Illinois, that claim was dismissed under Rule 12(b)(6)
(failure to state a claim), leaving just the claim based on the letter to Florida, which did not
support venue in Illinois. A dismissal for failure to state a claim is a dismissal on the merits,
Fed.R.Civ.P. 41(b), unless the dismissal order states otherwise; and a dismissal on the merits is
normally with prejudice and thus a bar to relitigation. Federated Department Stores, Inc. v.
Moitie, 452 U.S. 394, 399 n. 3, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981); Waypoint Aviation Services
Inc. v. Sandel Avionics, Inc., 469 F.3d 1071, 1073 (7th Cir.2006); 9 Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure § 2373, pp. 739-42 (3d ed.2008). The usual exception is
where the court gives the plaintiff an opportunity to cure the defect in his complaint by ling an
amended complaint. Kaplan v. Shure Brothers, Inc., 266 F.3d 598, 601 (7th Cir.2001); Bastian v.
Petren Resources Corp., 892 F.2d 680, 682 (7th Cir.1990); McLean v. United States, 566 F.3d 391,
400 (4th Cir.2009). The judge had already given the plaintiff an opportunity to cure the defect
(the absence of the letter or its contents), and the plaintiff's lawyer had ubbed it.

We are supported in our interpretation of the district judge's actions by the fact that unless she
intended to dismiss the claim arising from the supposed letter on the merits, her ruling on venue
would not make sense. For if that claim were viable, Illinois would be as good a venue for
litigating it as anywhere, since the parties are residents of two different states and one of the
alleged defamatory statements on which the suit is based was made in Illinois and the other in a
fourth state, Florida. See 28 U.S.C. § 1391(a)(2); Askew v. Sheriff of Cook County, 568 F.3d
632, 636 (7th Cir.2009); Reliance Ins. Co. v. Polyvision Corp., 474 F.3d 54, 59 (2d Cir.2007);
Uffner v. La Reunion Francaise, S.A., 244 F.3d 38, 43 (1st Cir.2001); 14D Charles A. Wright, Arthur
R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3806.1, pp. 199-216 (3d ed.
2007).

At argument the plaintiff's lawyer told us that the Florida letter had been mentioned in the
complaint only to “bolster” the claim arising from the conjectured letter to the American College
of Surgeons; the Florida letter was merely circumstantial evidence that the defendant had
written a similar letter to the American College of Surgeons. So if the claim based on the Illinois
letter was properly dismissed on the merits, then since the claim based on the Florida letter has
been abandoned, the defendant is entitled to dismissal of the entire suit with prejudice, as he
seeks. But there is uncertainty about what the district judge did or meant to do; the defendant
has pitched his defense (and cross-appeal) on a separate ground-choice of law; and the plaintiff
has some evidence that there was a defamatory letter to the American College of Surgeons.
Given the simultaneous mailing to Florida and the fact that the defendant was the likeliest
person to complain to the American College of Surgeons about the plaintiff's testimony in a
malpractice suit against him, he probably did mail an identical or nearly identical letter to the
College. Against this it could be argued that the plaintiff's failure to use compulsory process
suggests doubt on his part about what that endeavor would have produced-perhaps no letter,
perhaps no defamatory statements in the letter. But that would be an inference for the jury to
draw or not as it wished.

So on to choice of law. The defendant argues that the applicable law in this case is not
Illinois law, as he had thought initially, until the district judge had questioned it (and as the
plaintiff continues to argue), but New Jersey law. If he is right, the suit is time-barred because
New Jersey, though like Illinois it has a one-year statute of limitations for defamation suits, 2A
NJSA § 14-3; In re Breen, 113 N.J. 522, 552 A.2d 105, 111 (1989); Doug Grant, Inc. v. Greate Bay
Casino Corp., 3 F.Supp.2d 518, 538 (D.N.J.1998), has no discovery rule for such suits. Palestri v.
Monogram Models, Inc., 875 F.2d 66, 70 (3d Cir.1989) (New Jersey law); Lawrence v. Bauer
Publishing & Printing Ltd., 78 N.J. 371, 396 A.2d 569, 570-71 (1979) (concurring opinion). In
Williams v. Bell Telephone Laboratories Inc., 132 N.J. 109, 623 A.2d 234, 239 (1993) (per curiam),
the New Jersey supreme court suggested a willingness to reconsider the issue in a future case,
but it has yet to do so.

It used to be a at rule (called lex loci delicti-the law of the place of the wrong) that the law
applicable in a tort case is the law of the place where the tort occurred. Slater v. Mexican
National R.R., 194 U.S. 120, 126, 24 S.Ct. 581, 48 L.Ed. 900 (1904) (Holmes, J.); Loucks v.
Standard Oil Co., 224 N.Y. 99, 120 N.E. 198, 201-02 (1918) (Cardozo, J.); Restatement of Con ict
of Laws §§ 377-378 (1934); 2 Joseph H. Beale, A Treatise on the Con ict of Laws § 377.2, pp.
1287-88 (1935). And that means the place where the injury caused by the tort occurred.
Townsend v. Sears, Roebuck & Co., 227 Ill.2d 147, 316 Ill.Dec. 505, 879 N.E.2d 893, 899-900
(2007); Abdullahi v. P zer, Inc., 562 F.3d 163, 190 (2d Cir.2009); Abad v. Bayer Corp., 563 F.3d
663, 669 (7th Cir.2009); Kuehn v. Childrens Hospital, 119 F.3d 1296, 1301 (7th Cir.1997);
Rozenfeld v. Medical Protective Co., 73 F.3d 154, 155-56 (7th Cir.1996). Injury is necessary to
make an act a tort because there is no tort without an injury. Id. at 156; Janmark, Inc. v. Reidy,
132 F.3d 1200, 1202 (7th Cir.1997); Kanar v. United States, 118 F.3d 527, 531 (7th Cir.1997); W.
Page Keeton et al., Prosser & Keeton on the Law of Torts § 1, p. 4 (5th ed. 1984). The theory of
the old rule (if it can be digni ed with the word “theory”), lex loci delicti, as explained in the
Holmes and Cardozo opinions that we cited, is that the right to a tort remedy vests upon injury;
the existence and scope of the right therefore depend on the law of the place of injury; and the
vested right, viewed as a piece of property acquired in the place of injury, is carried by the
plaintiff, like the turtle's shell, to wherever he decides to sue.

The old rule came to seem too rigid, mainly because of such anomalies as suits between
citizens of the same state when it was not the state where the accident had occurred. The rule
has been reduced, in effect, to a presumption, in Illinois as in other states. See Ingersoll v. Klein,
46 Ill.2d 42, 262 N.E.2d 593, 595 (1970); Ferguson v. Kasbohm, 131 Ill.App.3d 424, 86 Ill.Dec.
605, 475 N.E.2d 984, 986-87 (1985); Carris v. Marriott Int'l, Inc., 466 F.3d 558, 560-61 (7th
Cir.2006) (Illinois law); Spinozzi v. ITT Sheraton Corp., 174 F.3d 842, 844-45 (7th Cir.1999)
(same); Travelers Indemnity Co. v. Lake, 594 A.2d 38, 47 (Del.1991); Pevoski v. Pevoski, 371
Mass. 358, 358 N.E.2d 416, 417 (1976); Restatement (Second) of Con ict of Laws § 145
comment e, § 146 (1971). We say “in effect” because most states, including Illinois, nowadays
apply the law of the state that has the “most signi cant relationship” to the claim, e.g., Ingersoll
v. Klein, supra; Esser v. McIntyre, 169 Ill.2d 292, 214 Ill.Dec. 693, 661 N.E.2d 1138, 1141 (1996);
P.V. ex rel. T.V. v. Camp Jaycee, 197 N.J. 132, 962 A.2d 453, 461 (2008); Restatement, supra §
145(1), rather than the lex loci delicti. But as we explained in the Spinozzi case, the state with
the most signi cant relation to a claim is usually the state in which the tort (and therefore the
injury) occurred. That state “has the greatest interest in striking a reasonable balance among
safety, cost, and other factors pertinent to the design and administration of a system of tort law.
 Most people affected whether as victims or as injurers by accidents and other injury-causing
events are residents of the jurisdiction in which the event takes place. So if law can be
assumed to be generally responsive to the values and preferences of the people who live in the
community that formulated the law, the law of the place of the accident can be expected to
re ect the values and preferences of the people most likely to be involved in accidents-can be
expected, in other words, to be responsive and responsible law, law that internalizes the costs
and bene ts of the people affected by it.” 174 F.3d at 845.

Defamation, however, is a tort that the old rule, now a presumption, very often doesn't t, because
often the defamatory statement is communicated in more than one state. There is also
ambiguity concerning the injury caused by defamation-does it occur just where the plaintiff
incurs some tangible harm such as a loss of income, or where his reputation is impaired, and if
the latter does he have a reputation in a state in which the statement is communicated even if no
one there has ever heard of him?

When the defamatory statement is communicated in many different states, it makes sense to
apply the law of the plaintiff's domicile, and that is the usual result in Illinois. See Velle
Transcendental Research Ass'n, Inc. v. Esquire, Inc., 41 Ill.App.3d 799, 354 N.E.2d 622, 625
(1976); Snead v. Forbes, Inc., 2 Ill.App.3d 22, 275 N.E.2d 746, 748-49 (1971); Rice v. Nova
Biomedical Corp., 38 F.3d 909, 915-16 (7th Cir.1994) (Illinois law), as elsewhere. Selle v. Pierce,
494 N.W.2d 634, 636-37 (S.D.1993); Williams v. United States, 71 F.3d 502, 506 (5th Cir.1995)
(Texas law); Reeves v. American Broadcasting Cos., 719 F.2d 602, 605 (2d Cir.1983) (New York
law); Hanley v. Tribune Publishing Co., 527 F.2d 68, 70 (9th Cir.1975) (Nevada law); Restatement,
supra, § 150(2) and comment e (1971). But see Wainwright's Vacations LLC v. Pan American
Airways Corp., 130 F.Supp.2d 712, 721-22 (D.Md.2001) (Maryland law). That is where the
principal injury from a defamation will occur because it is where the victim works and lives and
where (in the usual case) most of the people-family, friends, business associates, etc.-are found
with whom he has personal or commercial transactions, which might be impaired by defamation.
Snead v. Forbes, Inc., supra, 275 N.E.2d at 748-49; Crane v. New York Zoological Society, 894
F.2d 454, 457 (D.C.Cir.1990); Hanley v. Tribune Publishing Co., supra, 527 F.2d at 70; Fitzpatrick
v. Milky Way Productions, Inc., 537 F.Supp. 165, 171 (E.D.Pa.1982). And it is where, according to
Learned Hand, he feels the sting of defamation. Hand said that “the gravamen of the wrong in
defamation is not so much the injury to reputation, measured by the opinions of others, as the
feelings, that is, the repulsion or the light esteem, which those opinions engender.” Burton v.
Crowell Publishing Co., 82 F.2d 154, 156 (2d Cir.1936) (L.Hand, J.).

The Restatement, while stating that in a defamation case “the state of most signi cant
relationship will usually be the state where the person was domiciled at the time,” adds-“if the
matter complained of was published in that state.” Restatement, supra, § 150(2). In the law of
defamation, the word “published” just means that the defamatory statement was made to
someone other than the plaintiff. Frank v. Kaminsky, 109 Ill. 26 (1884); Emery v. Northeast
Illinois Regional Commuter R.R., 377 Ill.App.3d 1013, 317 Ill.Dec. 10, 880 N.E.2d 1002, 1009
(2007); Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1104 (9th Cir.2009). There is no actionable
defamation if the recipient of a letter that libels him, no copy of which has been sent to anyone
else, tears it up without communicating its contents to anyone (that is, without “self-publication,”
as in Rice v. Nova Biomedical Corp., supra ). For then he cannot suffer an injury to his
reputation, or the repulsion that he feels because of the bad opinion of him that readers of the
libel form.
No defamatory letter, so far as appears, was mailed to New Jersey; there was no “publication”
there. But absence of publication in the plaintiff's domicile should not be an absolute bar to the
application of the law of that domicile. What is true, rather, is that the presumption of the
applicability of that law may be rebutted by showing that the plaintiff incurred no harm at all in
his domicile state (an approach intimated in Ramsey v. Fox News Network, LLC, 351 F.Supp.2d
1145, 1149 (D.Colo.2005), and Arochem Int'l, Inc. v. Buirkle, 767 F.Supp. 1243, 1246-47
(S.D.N.Y.1991)), and if no one in that state had seen or learned of the defamatory statement,
even second hand, this would be a powerful rebuttal to the presumption that there was harm
there. But notice that Hand's analysis would suggest that the state of the plaintiff's domicile
would still be the primary site of the plaintiff's injury, implying that its law would govern, even if
the defamation had been communicated entirely to people in other states and no one in the
plaintiff's state-besides the plaintiff-was even aware of it.

The plaintiff is eager to abandon his Florida claim because it would make his suit one charging
multistate defamation, and would thus point-although, as we have just seen, not unwaveringly-to
the application of New Jersey law. He prefers a claim limited to Illinois and governed by Illinois
law (assuming his Illinois claim survived his inability or unwillingness to make a serious effort to
obtain the letter to the College of Surgeons), with its discovery rule. But abandoning the Florida
claim does not establish that Illinois law should trump New Jersey law. The American College
of Surgeons is located in Illinois but is no longer accused of anything, and so Illinois has no
interest in the case. Injury to the plaintiff's reputation, if that should be presumed to occur every
time a bariatric surgeon (or perhaps anyone) learns about the complaint to the College, would
occur wherever members who heard about the complaint live and work, and that could be
anywhere in the United States. There is nothing to suggest that more bariatric surgeons heard
about it in Illinois than in New York or New Jersey or California or any other major state. It's not
as if bariatric surgeons are concentrated in Illinois. Of the 1,712 members of the American
Society for Metabolic and Bariatric Surgery who are actually practicing surgery, only 54 are in
Illinois. (The top states are California, Texas, New York, and Florida, with 193, 180, 117, and 103
such members.) The ve members of the College of Surgeons' disciplinary committee, which
received the complaint about the plaintiff and referred it to the three bariatric surgeons, would be
among the surgeons most likely to have lost esteem for the plaintiff on the basis of the
defendant's letter (always assuming that there was such a letter and that it was defamatory).
But none of the ve lives or practices in Illinois, and none of them is a bariatric surgeon. There
is no indication of where the three bariatric surgeons who evaluated the complaint practice.

The plaintiff's argument that he is injured whenever someone reads or hears about the complaint
to the American College of Surgeons could, if thought a basis for resolving choice of law issues,
lead to ridiculous forum-shopping. If a bariatric surgeon in Iceland read a newspaper article
about the complaint against the plaintiff, could the plaintiff ask the Illinois court to apply
Icelandic law? The plaintiff has no reputation in Iceland to be damaged by an Icelander who
reads about him in an Icelandic newspaper, so unless he were planning to move to that country
he wouldn't suffer any injury for which defamation law would provide a remedy. Mattox v. News
Syndicate Co., 176 F.2d 897, 900 (2d Cir.1949) (L.Hand, J.); Arrowsmith v. United Press Int'l, 320
F.2d 219, 234 (2d Cir.1963) (Friendly, J.); cf. Restatement, supra, § 145, comment e.

It is true that general damages can be awarded in defamation cases against private persons,
which is to say damages not based on proof of tangible injury. Cook v. East Shore Newspapers,
Inc., 327 Ill.App. 559, 64 N.E.2d 751, 767 (1945); Dishnow v. School District of Rib Lake, 77 F.3d
194, 199 (7th Cir.1996) (Wisconsin law); Israel Travel Advisory Service, Inc. v. Israel Identity
Tours, Inc., 61 F.3d 1250, 1255 (7th Cir.1995) (Illinois law); Marcone v. Penthouse Int'l Magazine
for Men, 754 F.2d 1072, 1080 (3d Cir.1985) (Pennsylvania law). That is related to Hand's point
in the Burton case; in Marcone the court remarked that the plaintiff “was entitled to recover
[general damages] for injury to his reputation as well as for personal humiliation and mental
anguish.” 754 F.2d at 1080 (emphasis added). The same point is made in the Cook case, 64
N.E.2d at 767, an Illinois case. But only New Jersey, where the plaintiff has his practice and is
therefore likely to suffer tangible harm from defamation that impugns his professional integrity
and competence, even if the defamation is not published there, has a substantial interest in
protecting him from defamation; and it is therefore New Jersey law that should apply. So the
suit is indeed time-barred, and should, as the defendant urges in his cross-appeal, have been
dismissed with prejudice. The judgment of the district court dismissing the suit is therefore
modi ed to make the dismissal with prejudice.

POSNER, Circuit Judge.

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