author: SNYDER, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. John S. Cooper, Defendant-Appellant.

    Court of Appeals

      Nos. 02-2247-CR, 02-2248-CR.

      Submitted on briefs August 14, 2003.

    Decided October 15, 2003.

    2003 WI App 227
    (Also reported in 672 N.W.2d 118.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of John A. Birdsall of Birdsall. Law Offices, S.C., Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Marguerite M. Moeller, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Anderson, PJ., Brown and Snyder, JJ.

       Petition to review denied 1-23-04.

   SNYDER, J.

¶ 1. John S. Cooper appeals from a judgment of conviction for three counts of first-degree sexual assault of a child. He also appeals from an order denying all but one of his postconviction motions for relief. He argues that the circuit court erred when it reversed his conviction for repeated acts of sexual assault, a single Class B felony encompassing at least three acts, while preserving his convictions on three separate sexual assaults, each a Class B felony. Cooper also claims that he received ineffective assistance of counsel at trial. We disagree and affirm the judgment of conviction as modified by the circuit court's order for postconviction relief.

FACTS

¶ 2. On August 27, 1999, the State charged Cooper with two counts of repeated sexual assault of a child, J.L., contrary to Wis. Stat. § 948.025(1) (2001-02). Count one covered events that occurred between January 1 and October 14, 1997, and count two covered events that occurred between October 1, 1998, and January 25, 1999.

¶ 3. On February 25, 2000, the State brought a second action charging Cooper with three counts of first-degree sexual assault of a child and one count of intimidating a victim, contrary to Wis. Stat. §§ 948.02(1) and 940.45(3), respectively. All of these events occurred between October 1, 1998, and January 25, 1999, and involved the same victim.

¶ 4. Cooper filed a motion to join all six of the charges for trial and the court granted his motion. At trial, counts one and two mirrored the original repeated acts charges filed against Cooper. Counts three, five and six each charged Cooper with one instance of first-degree sexual assault of a child. Count four alleged that Cooper intimidated his victim by threatening him with a gun.

¶ 5. Following a jury trial, Cooper was found guilty on counts two through six. He was found not guilty on count one, the first charge of repeated sexual assault. Cooper brought a motion for postconviction relief, arguing, among other things, that his convictions on the three counts of first-degree sexual assault of a child were illegal in light of his conviction for repeated acts of sexual assault of a child because all four charges involved the same child and the same time period. The circuit court held that the joint trial of the two cases violated Wis. Stat. § 948.025(3) and concluded that reversal of count two would remedy the violation.

¶ 6. Cooper also argued that his convictions on counts two through six should be reversed and a new trial should be ordered because he was denied his right to effective assistance of counsel at trial. The circuit court disagreed.

DISCUSSION

Remedy for Violation of Wis. Stat. § 948.025(3)

¶ 7. Cooper contends that Wis. Stat. § 948.025(3) requires reversal of the convictions for the three specific charges of first-degree sexual assault rather than reversal of the more general charge of repeated acts. During the postconviction motion hearing, the circuit court agreed with Cooper that the consolidated charges violated § 948.025(3), which states in relevant part:

The state may not charge in the same action a defendant with a violation of this section and with a felony violation involving the same child. . . under s. 948.02 . . . unless the other violation occurred outside of the time period applicable under sub. (1). (Emphasis added.)

¶ 8. However, Cooper argues, the circuit court applied the wrong remedy when it reversed the conviction on count two. Cooper posits that the correct remedy under the statute is to reverse counts three, five and six. He argues that once the first action was commenced, the State was "stuck with" the charge of repeated acts under Wis. Stat. § 948.025(1) and that subsequent charges for specific acts of sexual assault were a "blatant violation of the clear statutory mandate" of § 948.025(3). We cannot agree.

¶ 9. Whether the circuit court properly interpreted Wis. Stat. § 948.025(3), dismissing count two rather than counts three, five and six at the postcon-viction hearing, is a question of law which we review de novo. See State v. Piddington, 2001 WI 24, ¶ 13, 241 Wis. 2d 754, 623 N.W.2d 528, cert. denied, 534 U.S. 826 (2001).

¶ 10. The appellate issue is what count(s) should be vacated to comply with Wis. Stat. § 948.025(3)? Cooper argues that the charges filed first in time dictate which convictions must be reversed, but he cites no legal authority for his position. Likewise, we find no controlling precedent in Wisconsin. We take guidance, however, from recent California case law where this precise issue has been addressed. California's statute on continuous sexual abuse of a child prohibits charging continuous sexual abuse and specific felony sex offenses in the same action. The California statute is sufficiently similar to ours to allow us to consider the California court's interpretation. California's statute states, in relevant part:

No other felony sex offense involving the same victim may be charged in the same proceeding with a charge under this section [for continuous sexual abuse of a child] unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative.

Cal. Penal Code § 288.5(c) (2003-04).

¶ 11. In People v. Alvarez, 122 Cal. Rptr. 2d 859, 861 (Cal. Ct. App. 2002), the court of appeals reviewed the trial court's dismissal of the continuous sexual abuse count while preserving the specific felony offenses. The prosecutor moved for dismissal of the repeated sexual assault charge after the evidence was in but before the convictions were entered. Id. The court granted the prosecution motion, dismissed the continuous acts charge, and found Alvarez guilty of the remaining charges. Id. Alvarez appealed. His argument, like that of Cooper, was that the charge of continuous acts barred the prosecution of specific acts involving the same victim and the same time period. Id. at 862. The California Court of Appeals disagreed and affirmed the trial court, stating:

The conclusion we reach is consistent with, and fosters, the apparent legislative purpose of [Cal. Penal Code] section 288.5, which "was enacted because of problems of proof that can arise where the molester resides in the same house as the child. Under such circumstances the child may recall she was molested repeatedly over a period of time, but may not be able to recall discrete instances with sufficient precision to prove multiple counts . . . ." It would be anomalous if section 288.5, adopted to prevent child molesters from evading conviction, could be used by those molesters to circumvent multiple convictions with more severe penalties!.]

Alvarez, 122 Cal. Rptr. 2d at 863-64.

¶ 12. A second California case, People v. Torres, 126 Cal. Rptr. 2d 92 (Cal. Ct. App. 2002), provides a closer procedural analogy. Torres involved a defendant who, like Cooper, had been convicted of continuous sexual abuse and specific felony offenses involving the same child and occurring during the same time period. Id. at 93. Torres argued that when "multiple convictions are obtained in violation of section 288.5, subdivision (c), only the conviction for continuous sexual abuse may stand, and the convictions on the specific counts must be vacated." Torres, 126 Cal. Rptr. 2d at 94. The Torres court disagreed and held that because the specific felony offenses carried a more substantial aggregate sentence and were "most commensurate with [the defendant's] culpability," the proper remedy for violation of Cal. Penal Code § 288.5(c) was to reverse the conviction for continuous acts. Torres, 126 Cal. Rptr. 2d at 96.

¶ 13. We are persuaded by the California court's reasoning. Nothing on the face of the Wisconsin statute requires us to favor charges filed first in time, and Cooper has not demonstrated why such an interpretation would further the interests of justice. The State originally brought two distinct actions against Cooper, alleging two distinct sets of facts to support the allegations. The first action, for repeated acts of sexual assault under Wis. Stat. § 948.025(1), alleged that Cooper had repeatedly fondled J.L. and rubbed his penis against J.L. while they slept in Cooper's basement bed. The second case against Cooper alleged three separate instances of first-degree sexual assault of a child under Wis. Stat. § 948.02(1), including fellatio and two acts of anal intercourse, one of which occurred in the driveway outside of Cooper's house. Because of the distinct facts underlying the separate counts, Cooper was charged but once for each crime or series of crimes. Had the actions remained separate, the convictions on all four counts would have survived a challenge under § 948.025(3).

¶ 14. The State originally brought the more general charges in one action and later brought a separate action alleging the more specific charges. Cooper successfully moved to consolidate the separate actions into one. Cooper, by seeking the consolidation, contributed to what he now contends is error because of the statutory prohibition of a general charge under Wis. Stat. § 948.025(1) being joined with specific charges under Wis. Stat. § 948.02(1) in the same action. Because Cooper directly contributed to the error, he cannot benefit from the error. See State v. Gove, 148 Wis. 2d 936, 944, 437 N.W.2d 218 (1989). The doctrine of judicial estoppel prevents a defendant from benefitting from a manipulation of the judicial system and would present an alternative basis for affirming here. See Salveson v. Douglas County, 2001 WI 100, ¶ 37, 245 Wis. 2d 497, 630 N.W.2d 182 (a party cannot be allowed to play "fast and loose with the judicial system").

¶ 15. We hold that a court may reverse a conviction on the repeated acts charge under Wis. Stat. § 948.025(1) when the proscription against multiple charges in § 948.025(3) is violated. This remedy is proper even where the repeated acts charge was filed prior to an action for specific acts of sexual assault under Wis. Stat. § 948.02(1). Prosecutors should engage in charging practices that avoid violations of § 948.025(3). When necessary, the trial court should address such violations at the time of consolidation rather than during or after trial. If a violation of § 948.025(3) does arise, the State should choose which charge or charges it will pursue.

Double Jeopardy and Due Process

¶ 16. Cooper also argues that counts three, five and six, in relation to count two, violate the Double Jeopardy Clause. He further contends that the convictions on counts two and six violated his right to due process because they did not allow for a unanimous verdict and were multiplicitous. Cooper's arguments are moot because we affirm the circuit court's reversal of the conviction on count two. An issue is moot when its resolution will have no practical effect on the underlying controversy. State ex rel. Olson v. Litscher, 2000 WI App 61, ¶ 3, 233 Wis. 2d 685, 608 N.W.2d 425. Generally, moot issues will not be considered on appeal. Id. While there are exceptions to the rule of dismissal for mootness, see id., none apply here.

Ineffective Assistance of Counsel

¶ 17. Finally, Cooper argues that the circuit court erred when it concluded that he was not denied his right to effective assistance at trial. To support a claim of ineffective assistance of counsel, Cooper must show that his attorney's performance was deficient and that the deficiency prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Kuhn, 178 Wis. 2d 428, 437, 504 N.W.2d 405 (Ct. App. 1993). Both prongs of this test constitute mixed questions of law and fact. State v. Moffett, 147 Wis. 2d 343, 352, 433 N.W.2d 572 (1989).

¶ 18. Cooper has the burden to persuade us that his attorney's performance was deficient and that the deficiency resulted in prejudice. See State v. Sanchez, 201 Wis. 2d 219, 232-36, 548 N.W.2d 69 (1996). Cooper cites six grounds for finding the work of his trial counsel deficient to the extent that it prevented Cooper from receiving a fair trial. Specifically, Cooper asserts that his trial attorney failed to: (1) request a Wallerman stipulation; (2) properly impeach the credibility of witnesses; (3) keep information on Cooper's prior conviction from the jury; (4) protect Cooper's right to pretrial silence; (5) offer character evidence supporting Cooper; and (6) prevent admission of "other acts" evidence, specifically previous allegations of sexual assault. The circuit court found the attorney's performance sufficient in all but one instance. The court determined that failure to object to testimony referencing Cooper's pre- and postarrest silence constituted deficient performance. We will not reverse the circuit court's findings of fact unless they are clearly erroneous. Moffet, 147 Wis. 2d at 352-53. However, whether the attorney's performance was deficient and, if so, whether the deficiency resulted in prejudice are questions of law that we decide without deference to the circuit court. Id. at 353.

¶ 19. The test for determining if there has been an impermissible comment on a defendant's right to remain silent is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the defendant's right to remain silent. State v. Nielsen, 2001 WI App 192, ¶ 32, 247 Wis. 2d 466, 487-88, 634 N.W.2d 325, review denied, 2001 WI 117, 247 Wis. 2d 1036, 635 N.W.2d 784 (Wis. Oct. 23, 2001) (No. 00-3224-CR). The court must look at the context in which the statement was made in order to determine the manifest intention that prompted it and its natural and necessary impact on the jury. Id. The comment referencing Cooper's prearrest silence occurred during a police corporal's testimony regarding her investigation into J.L's allegations against Cooper in 1997. When asked why she eventually closed her investigation, she replied that Cooper "chose not to come in and talk to me." This comment, however, appears in a long line of questioning wherein the corporal previously stated that Cooper did talk to her on the phone. The manifest intention, therefore, was not to imply that Cooper was invoking his right to remain silent, but simply to explain why the 1997 investigation had gone no further. We hold, therefore, that this testimony did not violate Cooper's right to remain silent and his attorney's performance was not deficient for failing to object.

¶ 20. Cooper raises the same issue regarding a police officer's testimony referencing Cooper's postar-rest silence. We again apply the Nielsen test and place the contested testimony in context. In this instance, the police officer testified about an interview he had with Cooper in September 1999. At the beginning of the interview, Cooper had been advised of his right to remain silent. During the course of this interview, the officer posed a rhetorical question: "What would you have done or what would you have said if [J.L.] would have said... I don't like the way you touch me." In response, Cooper remained silent. The officer then continued to ask questions and Cooper answered. In all, the officer estimated that the interview took forty-five minutes. By reviewing the officer's reference to Cooper's silence in the context of a forty-five minute session of questions and answers, we conclude that no violation of Cooper's right to remain silent occurred and that Cooper's attorney acted within the range of competent assistance by choosing not to object to the police officer's comment.

¶ 21. Our review of the record shows that the remaining acts or omissions alleged by Cooper were not "outside the wide range of professionally competent assistance." See State v. Guck, 170 Wis. 2d 661, 669, 490 N.W.2d 34 (Ct. App. 1992), aff'd, 176 Wis. 2d 845, 500 N.W.2d 910 (1993) (citation omitted). Cooper's attorney testified, for example, that using a Wallerman stipulation to dispose of the issue of motive or intent would have flown in the face of Cooper's defense theory that the assaults on J.L. never took place. Cooper's attorney provides an explanation, consistent with this theory of defense, for choosing to forego further impeachment of a prosecution witness, for allowing the nature of Cooper's prior conviction to be heard by the jury, for presenting no more than three character witnesses on Cooper's behalf, and for putting "other acts" evidence before the jury. In reviewing counsel's performance, we give great deference to the attorney's strategic choices and make every effort to avoid making determinations based on hindsight. State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990). We hold that Cooper's attorney's representation did not fall below objective standards of reasonableness, and, therefore, his performance was not deficient. See Strickland, 466 U.S. at 689.

¶ 22. We need not address both prongs of the test if Cooper fails to make a sufficient showing on one of them. See id. at 687, 697. We hold that Cooper has not demonstrated that his attorney's performance was deficient with regard to any of Cooper's six allegations, and thereby fails in his claim of ineffective assistance of counsel.

Citations to Unpublished Opinions

¶ 23. As a final matter, this court notes with dismay the multiple citations to unpublished opinions contained in Cooper's appellate brief. The Rules of Appellate Procedure proscribe as follows:

Unpublished opinions not cited. An unpublished opinion is of no precedential value and for this reason may not be cited in any court of this state as precedent or authority, except to support a claim of claim preclusion, issue preclusion, or the law of the case.

Wis. Stat. Rule 809.23(3) (2001-02).

¶ 24. Cooper's appellate counsel attempts to minimize his culpability by locating such citations in footnotes and providing the disclaimer that citations to unpublished decisions are "for information and illustrative purposes only." His use of the unpublished opinions to support his argument, however, reveals his intent to persuade this court with the improper citations.

¶ 25. When faced with such a blatant disregard for the Rules of Appellate Procedure in the past, this court has not hesitated to impose consequences. While "[w]e sometimes (perhaps too often) make allowances for appellate counsel's failure to abide by these rules . .. [t]here are limits beyond which we cannot go in overlooking these kinds of failings." State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992). Cooper's appellate counsel has exceeded those limits.

¶ 26. We hereby impose a fine of $50 for each violation of Wis. Stat. Rule 809.23(3) (2001-02). We count nine citations to unpublished opinions in the appellant's brief, for a total fine of $450.

CONCLUSION

¶ 27. We hold that the circuit court did not err when it reversed Cooper's conviction on count two for repeated sexual assault of a child. More specifically, we conclude that a violation of Wis. Stat. § 948.025(3) may be resolved by reversal of the charge of repeated acts of sexual assault even where the repeated acts charge under § 948.025(1) was filed prior to an action for specific acts of sexual assault under Wis. Stat. § 948.02(1).

¶ 28. We also conclude that Cooper was not denied his right to effective assistance of counsel.

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted. Changes to Wis. Stat. § 948.025(1), which took effect on February 1, 2003, do not affect our analysis.

       Three elements are necessary to invoke judicial estoppel: (1) the later position must be clearly inconsistent with the earlier position; (2) the facts at issue should be the same in both cases; and (3) the party to be estopped must have convinced the first court to adopt its position. Salveson v. Douglas County, 2001 WI 100, ¶ 38, 245 Wis. 2d 497, 630 N.W.2d 182.

        State v. Wallerman, 203 Wis. 2d 158, 552 N.W.2d 128 (Ct. App. 1996), overruled on other grounds by State v. Veach, 2002 WT 110, 255 Wis. 2d 390, 648 N.W.2d 447.

       These nine unpublished opinions are as follows: State v. Nantelle, 169 Wis. 2d 748, 488 N.W.2d 929 (Ct. App. 1992); State v. Saldana, 214 Wis. 2d 591, 571 N.W.2d 924 (Ct. App. 1997); State v. Groeschl, 2000 WI App 143, 237 Wis. 2d 695, 616 N.W.2d 923; State v. Sarnowski, 209 Wis. 2d 83, 562 N.W.2d 927 (Ct. App. 1997); State v. Rhodes, 197 Wis. 2d 955, 543 N.W.2d 867 (Ct. App. 1995); State v. Kavanagh, 181 Wis. 2d 367, 514 N.W.2d 422 (Ct. App. 1993); State v. Amerson, 205 Wis. 2d 113, 555 N.W.2d 410 (Ct. App. 1996); State v. Hogan, 214 Wis. 2d 591, 571 N.W.2d 924 (Ct. App. 1997); and State v. Cotton, 185 Wis. 2d 710, 520 N.W.2d 111 (Ct. App. 1994).


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Joseph F. Rizzo, Defendant-Appellant.

    Court of Appeals

      No. 03-0163-CR.

      Submitted on briefs September 10, 2003.—

      Decided October 15, 2003.

    2003 WI App 236
    (Also reported in 672 N.W.2d 162.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Franklyn M. Gimbel, Kathryn A. Keppel and Raymond M. Dall'Osto of Gimbel, Reilly, Guerin & Brown of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Jeffrey J. Kassel, assistant attorney general.
    Before Brown, Nettesheim and Snyder, JJ.

       Petition to review denied 12-16-03.

   BROWN, J.

¶ 1. Joseph F. Rizzo appeals from a judgment and an order entered following a remand by our supreme court for a determination as to whether he is entitled to a psychological examination of the sexual assault victim pursuant to State v. Maday, 179 Wis. 2d 346, 507 N.W. 2d 365 (Ct. App. 1993). See State v. Rizzo, 2002 WI 20, ¶ 2, 250 Wis. 2d 407, 640 N.W.2d 93 (Rizzo /). On remand, the trial court denied Rizzo's motion for a psychological examination and a new trial, ruling that the Jensen testimony offered in this case was limited to the victim's delayed reporting, and Rizzo's expert established that he could offer an opinion concerning the delayed reporting aspects of the case without conducting a psychological examination of the victim. On appeal, Rizzo argues that the State's Jensen testimony covered all of the victim's postassaultive behavior, not just her delay in reporting, and that his expert’s statements confirm that a personal interview with D.F. was essential for him to form an opinion as to whether her behavior was consistent with the behaviors of victims of sexual abuse. We conclude that the State's Jensen evidence was confined to delayed reporting. We also hold that Rizzo failed to demonstrate that a psychological examination of the victim is necessary for his expert to develop opinion testimony that would counter the State's Jensen evidence concerning delayed reporting. We affirm.

¶ 2. All of the charges in this case involved sexual contact with the same fourteen-year-old girl, D.F. In late 1995, D.E’s parents began noticing that D.F was exhibiting problems, including a lack of communication, bad grades, lying, wearing inappropriate clothes and make-up, failing to explain her whereabouts and her relationships with kids who associáted with gang members. They contacted Rizzo, their neighbor, who had helped them with marital problems in the past and had become a good friend and family member. D.F.'s parents believed that Rizzo was able to straighten out troubled people and that he had been trained by Chinese monks in both martial arts and "healing." Rizzo went to D.F.'s home on December 8, 1995, and he and D.F.'s parents discussed what he would do to help D.F. They agreed on a "hands over body" healing technique that would not involve touching D.F. Rizzo indicated that he saw D.F. approximately five times between December 1995 and May 1996 and spoke with her often by telephone. D.F.'s mother, however, stated that Rizzo would come to their home "almost every night" for healing sessions with D.F.

¶ 3. In May 1996, D.F. told her parents that Rizzo had been touching her inappropriately since December 1995. D.F.'s mother called Rizzo the next day and told him that D.F. would no longer be counseling with him. D.F. and her parents did not report Rizzo's alleged conduct with D.F. until June 1997. Rizzo denied ever touching D.F. inappropriately. Subsequently, the State charged Rizzo with three counts of second-degree sexual assault of a child in violation of Wis. Stat. § 948.02(2) (2001-02); one count of repeated acts of sexual assault to the same child in violation of Wis. Stat. §§ 948.02(2) and 948.025(1); and one count of intimidating a witness, party to a crime, in violation of Wis. Stat. §§ 939.05, 940.44 and 940.45. Following a trial, a jury found Rizzo guilty on all counts and he appealed.

¶ 4. In the previous appeal, the primary issue was whether the State's expert, Dr. Linda Marinaccio Pueei, a clinical psychologist who treated D.P. in 1996 and 1997, gave Jensen testimony. We held that Dr. Pucci's testimony constituted Jensen testimony and that Rizzo was entitled to a new trial because he had "lost his right to obtain access to relevant evidence necessary to be heard in his own defense." State v. Rizzo, 2001 WI App 57, ¶¶ 7, 14, 241 Wis. 2d 241, 624 N.W. 2d 854. Our supreme court affirmed our ruling that the State had introduced Jensen testimony, but reversed our order for a new trial. Rizzo I, 250 Wis. 2d 407, ¶ 2. The court reasoned that it was Rizzo's "right to a pretrial determination under Maday that was violated" and hence Rizzo's right to a fair trial was violated only if his request for a pretrial psychological examination should have been granted. Rizzo I, 250 Wis. 2d 407, ¶ 44. Accordingly, the supreme court remanded the case so that the trial court could determine whether Rizzo was entitled, pursuant to Maday, to a pretrial examination of D.F. Rizzo I, 250 Wis. 2d at 407, ¶ 55.

¶ 5. Following the remand from the supreme court, Rizzo filed a motion seeking a determination that he was entitled to a psychological examination of D.F. and, therefore, to a new trial. In support of the motion, Rizzo filed an affidavit from Dr. Marc Ackerman, a psychologist whom Rizzo had retained. The trial court held an evidentiary hearing on the motion in September 2002, at which Dr. Ackerman provided extensive testimony. The court subsequently issued a written decision and order denying the motion, concluding that it was clear that Dr. Pucci's Jensen testimony was confined to delayed reporting and that the hearing established that "Dr. Ackerman could without conducting a psychological examination of [D.F.] offer an opinion concerning why someone would not immediately report such a crime just as Dr. Pucci did." Accordingly, the court held,'"[t]here is no compelling need to examine [D.F.] to give that opinion in regard to people who are alleged to be victims of sexual abuse or sexual assault." Rizzo appeals.

¶ 6. We begin by addressing Rizzo's claim that Dr. Pucci's Jensen testimony was not confined to D.F.'s reporting behavior. Rizzo argues that the trial court's conclusion that the State's Jensen evidence did not embrace a more general comparison between D.F.'s behaviors and the common behaviors of sexual assault victims is a mischaracterization of Dr. Pucci's testimony. To accurately address Rizzo's argument, we believe it is important that we first provide a detailed description of the content of Dr. Pucci's testimony.

¶ 7. Dr. Pucci first gave extensive factual testimony with regard to her knowledge and treatment of D.F. Dr. Pucci testified that her initial treatment of D.F. spanned four to five months, from April until August 1996, and that D.F. returned to her in 1997 for additional therapy.

¶ 8. Dr. Pucci testified that in April 1996, before D.F. had made her accusations against Rizzo, D.F. and her parents met with Dr. Pucci. D.F.'s parents told Pucci that they were concerned about problems with D.F.— her lying, her behavior problems, her threatening to jump out of a window or hurt herself, her falling grades, her spending time with kids associated with gangs, her leaving home without permission and her running away from home. In speaking with D.F., Dr. Pucci learned that D.F. had been abusing inhalants, including nail polish and whiteout, and had tried beer, wine and other alcoholic beverages. Dr. Pucci testified that her treatment goals for D.F. at that point were to stop the inhalants, develop a support system outside of gangs, build a positive self-concept and build trust within the family. Dr. Pucci stated that she noticed progress in these four areas immediately. Dr. Pucci testified that at the fifth session, D.F. told her that an adult had until recently been "messing with her," but that she would not tell her who it was or what had happened. Dr. Pucci testified that she did not press D.F. for more details and that D.F. did not further disclose the details of the person's identity in the 1996 sessions.

¶ 9. Dr. Pucci testified that the family returned to see her in 1997. At that time, both D.F. and her parents told her that she had been molested by a family friend, who was a neighbor. The parents told Dr. Pucci they were concerned about how D.F. was doing. She was expressing a lot of fear and anxiety and she was not eating or sleeping. Dr. Pucci testified that she did not make any connection as to why D.F. was coming to see her in 1997 and her disclosure about the sexual contact in 1996. Dr. Pucci then stated that she considered the problems she was treating D.F. for in 1997 to be "symptoms."

¶ 10. Dr. Pucci testified that over the course of D.F.'s treatment in 1997, D.F. told her Rizzo had molested her and provided more details as to the sexual abuse. D.F. told Dr. Pucci that in the context of providing his counseling to her in "the way monks do," he would touch her in an effort to adjust her aura. D.F. told Dr. Pucci that Rizzo messed with her chest, squeezed and rubbed her breasts, and rubbed her legs. D.F. remembered him reaching under her pants and rubbing her in the vaginal area and that he tried to stick his tongue in her mouth. D.F. told Dr. Pucci that Rizzo would talk to her about sexual dreams and problems he was having with his wife. D.F. told Dr. Pucci that Rizzo would suggest to her that she had been "sexually abused by her adult males essentially trying to create false memories." Dr. Pucci testified that D.F. felt threatened by Rizzo and people associated with him:

According to [D.F.], [Rizzo] had threatened to kill her and kill her parents if she told anyone. He told her he was associated and worked for the mafia and that things could happen to her, and no one would ever know; and she took this to mean that her life and her parents' life was in danger.

¶ 11. As Dr. Pucci's factual testimony concluded, the prosecutor engaged her in the following exchange:

Q: Did you ever discuss with [D.F.] in the course[ ] of your treatment why she delayed this report for over a year?
A: Yes. We talked about why she finally did report it, and she talked about not wanting to report it when I saw her in 1996 because she and her family didn't want to press charges; and that changed throughout the course of time, and by 1997 she did want to report it....
Q: Dr. Pucci, do you have an opinion as to a reasonable degree of psychological certainty why someone would not report a crime like this under these circumstances?
[DEFENSE COUNSEL]: Objection, your Honor.
THE COURT: It's overruled. The witness may answer.
A: Could you repeat the question?
Q: Do you have an opinion to a reasonable degree of psychological certainty why someone would, in this position, would not immediately report a crime like this?
A: Often people are reluctant to report this kind of crime because of threats the offender or the abuser makes to them about it, either directly telling them not to tell or threatening them if they do tell. Often people are embarrassed. They may be afraid that they are not going to be believed. Sometimes they have some positive feelings about the abuser and may not want to get that person into trouble. Those tend to be the most common reasons.

¶ 12. In addition, upon redirect, examination, Dr. Pucci gave further testimony concerning D.F.'s delay in reporting:

Q: Dr. Pucci, what was your recollection of the reason [D.F.] did not want to report this in 1996?
A: She did not want to press charges against Mr. Rizzo, and she just wanted him. to leave them alone and just wanted him to go away and not hurt anyone again.
Q: Did she ever discuss with you anything in regard to concerns about whether or not she would be believed? Was that ever discussed that you recall or not?
A: She told me that he, that Mr. Rizzo, had told her that if she told anyone she would not be believed.
Q: 1997. Dr. Pucci, I'm framing that question in terms of your contact with her in 1997. Did she indicate at that time whether that was something she had internalized as a reason she didn't want to report, or was she discussing that with you as one of the many things that was said?
A: My impression is that she had internalized it.

¶ 13. In examining Dr. Pucci's testimony, we are mindful of our supreme court's admonition in Rizzo I that we are not to take a mechanistic approach when making a Jensen evidence determination. See Rizzo I, 250 Wis. 2d 407, ¶ 21. Rizzo I teaches us that while there are no magic words that must be used by the expert, the essence of Jensen evidence is the comparison that the expert witness makes between the behaviors of the sexual assault victim and the common behaviors of other persons known to be victims of sexual abuse. See Rizzo I, 250 Wis. 2d 407, ¶ 21. The prosecutor's questions and the State's expert's answers must in some way lead the finder of fact to understand that it may draw a direct comparison between the alleged victim's postassaultive behaviors and those of other victims.

¶ 14. Clearly, the exchanges between the prosecutor and Dr. Pucci on direct and redirect examination make only the requisite comparison between D.F.'s reporting behaviors and the common reporting behaviors of sexual assault victims. See id., ¶ 23 (noting that the reasons that Dr. Pucci gave on redirect examination in explaining why D.F. did not report the sexual assault are strikingly similar to the reasons she gave on direct examination explaining why sexual assault victims generally delay reporting). The only other testimony that could possibly be construed as Jensen evidence is Dr. Pucci's statement that she considered D.F.'s behaviors to be "symptoms." However, Dr. Pucci did not testify explicitly that D.F.'s "symptoms" were consistent with those of sexual assault victims nor did she discuss anywhere in her testimony what "symptoms" known sexual assault victims commonly exhibit. We can find nothing in her testimony that would lead a jury to even infer that Dr. Pucci was equating D.F.'s other postas-saultive behaviors or "symptoms" with those commonly observed in others known to be sexual assault victims. Dr. Pucci simply provided a fact-intensive discussion of D.F.'s own postassaultive reactive behaviors without providing any information that would serve as the basis for comparing D.F.'s behaviors with those of other known sexual assault victims. We therefore conclude that the trial court properly determined that Dr. Pucci's Jensen testimony was limited to D.F.'s reporting behaviors.

¶ 15. Rizzo also contends that in Rizzo I our supreme court examined Dr. Pucci's testimony and "unequivocally concluded" that her Jensen testimony encompassed more than just delayed reporting and that we are bound by this determination. Rizzo submits that in the decision, the supreme court spoke in very broad terminology that generically categorized Dr. Pucci's testimony as Jensen evidence. The supreme court's chosen terminology, however, must be read in the context in which it was written.

¶ 16. In reaching its conclusion that the State had introduced Jensen evidence, our supreme court expressly relied on the two exchanges between Dr. Pucci and the prosecutor on direct and redirect examination that specifically involved delayed reporting to conclude that Dr. Pucci had made the necessary comparison between D.F. and the common behaviors of sexual assault victims. Rizzo I, 250 Wis. 2d 407, ¶¶ 21-23. According to the court, it was the phrasing of the prosecutor's questions and the substance of Dr. Pucci's answers in those two specific exchanges that combined to send a clear message to the jury that a direct comparison was to be drawn between D.F. and others who shared her circumstances. See id. We can find nothing in the supreme court's discussion of Dr. Pucci's testimony in Rizzo I suggesting that the court interpreted Dr. Pucci's testimony as drawing a more general comparison between D.F.'s postassaultive behaviors and their consistency with the common behaviors of sexual assault victims. Accordingly, we decline to accept Rizzo's invitation to read Rizzo I as establishing that Dr. Pucci's Jensen testimony embraced more than just delayed reporting.

¶ 17. Having established the scope of the Jensen evidence in this matter, we now turn to whether Rizzo is entitled to have his expert, Dr. Ackerman, conduct a psychological evaluation of D.F. In Maday, we held that a defendant is entitled to a pretrial psychological examination of a complainant when the State seeks to offer Jensen testimony. Maday, 179 Wis. 2d at 357. Recognizing the need to balance the defendant's right to present relevant evidence with the privacy interests of the victim, we determined that a defendant is not entitled to a pretrial psychological examination in every case where the State intends to introduce Jensen evidence. Maday, 179 Wis. 2d at 360; Rizzo I, 250 Wis. 2d 407, ¶ 15. Rather, we concluded that the defendant must present the circuit court with "evidence that he or she has a compelling need or reason" for the examination. Maday, 179 Wis. 2d at 360. We identified seven factors for circuit courts to consider in determining whether to grant the defendant's request for an examination; however, only the seventh factor — that is, whether, based on the testimony of the defendant's named experts, a personal interview with the victim is essential before the experts can form an opinion, to a reasonable degree of psychological or psychiatric certainty, that the victim's behaviors are consistent with the behaviors of other victims of sexual abuse — is relevant in this appeal. The determination of whether a defendant has presented evidence demonstrating a compelling need for a pretrial psychological examination based on the seven factors is a matter for the trial court's discretionary determination. Rizzo I, 250 Wis. 2d 407, ¶ 43.

¶ 18. Rizzo submits that in his affidavit and through his testimony at the motion hearing, Dr. Ack-erman established that a psychological examination of D.F. is necessary for him to develop opinion testimony that would counter the State's Jensen evidence regarding D.F.'s behavior. Rizzo points out that Dr. Ackerman testified that a personal interview with and a psychological examination of D.F. was necessary for him to render an expert opinion as to whether D.F.'s "behaviors and symptomatology" were consistent with those of other sexual abuse victims and that without such an examination he would not "be able to render a psychologically accurate opinion as to whether or not D.F.'s condition was consistent with that of other sex-abuse victims." Rizzo also cites to Dr. Ackerman's testimony that he would like to administer psychological tests because they would "tell us whether the individual is lying or exaggerating if she has been sexually abused." Finally, Rizzo observes that in his affidavit Dr. Acker-man avowed that he had identified twenty-seven areas of concern that an independent psychological evaluation and record review would help to resolve, including: several incidents of prior unreported sexual abuse by D.F., a history of her acting out sexually, inconsistencies with her definition of sexual abuse, the frequency of the alleged abuse by Rizzo, D.F.'s history of lying and blaming others, evidence of delayed recall, evidence of false memories, and presence or absence of a basis for psychological testing.

¶ 19. While Dr. Ackerman's statements in his affidavit and on direct examination explain why he believes a psychological examination of D.F. is necessary for him to render expert opinion testimony on a variety of topics, including whether or not the allegations were false, these statements do not provide any basis for concluding that a psychological examination is necessary to develop an opinion that responds to Dr. Pucci's Jensen testimony about delayed reporting. The purpose of the Maday rule is to level the playing field by giving the defendant an opportunity to counter the State's Jensen evidence. See Maday, 179 Wis. 2d at 357 ("A defendant who is prevented from presenting testimony from an examining expert when the state is able to present such testimony is deprived of a level playing field .... Fundamental fairness requires that [the defendant] be given the opportunity to present relevant evidence to counter this evidence from the state.") We cannot find any statement, nor does Rizzo point to any statement, by Dr. Ackerman that he required a personal interview with the victim in order to rebut the State's Jensen testimony about delayed reporting. In fact, on cross-examination, Dr. Ackerman essentially conceded that he could assess the delayed reporting aspects of the case without conducting a personal interview. Accordingly, we conclude that the trial court properly exercised its discretion when it found that Rizzo had not demonstrated a compelling need for a psychological examination of D.F.

By the Court. — Judgment and order affirmed.

        State v. Jensen, 147 Wis. 2d 240, 242, 432 N.W.2d 913 (1988) (holding that expert testimony that a child sexual assault complainant's behavior was consistent with the common behaviors of known sexual assault victims is admissible).

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       The seven factors the Maday court identified are:
      (1) the nature of the examination requested and the intrusiveness inherent in that examination;
      (2) the victim's age;
      (3) the resulting physical and/or emotional effects of the examination on the victim;
      (4) the probative value of the examination to the issue before the court;
      (5) the remoteness in time of the examination to the alleged criminal act;
      (6) the evidence already available for the defendant's use; and
      (7) whether, based on the testimony of the defendant's named experts, a personal interview with the victim is essential before the expert can form an opinion, to a reasonable degree of psychological or psychiatric certainty, that the victim's behaviors are consistent with the behaviors of other victims of sexual abuse.

        State v. Maday, 179 Wis. 2d 346, 360, 507 N.W.2d 365 (Ct. App. 1993).

       The State's cross-examination of Dr. Ackerman concluded with this exchange:
      Q: Let me ask you this again, Dr. Ackerman .... Given the review you have had of this case, which is limited in terms of what you have been apparently given to review, if I were to ask you now do you have an opinion why someone would not immediately report sexual assault, would you, Dr. Ackerman, [with Dr. Pucci's testimony] as your credential be able to offer an opinion on that question?
      A: Yes.
      Q: And would you be able to offer an opinion on that I think pretty simple question, probably simpler than anything I have asked today, without conducting testing or an examination of the person involved in that specific case?
      A: The answer to that specific question would be yes.

       On appeal, Rizzo also argues that we should determine that he is entitled to have Dr. Ackerman review D.F.'s treatment records. However, because we conclude that Rizzo has not shown a compelling need for a psychological examination of D.F. pursuant to Maday, 179 Wis. 2d at 359-60, and is therefore not entitled to a new trial, we need not address his request for the treatment records.


author: VERGERONT, J.

text:
    Brian Hart, Plaintiff-Appellant, v. Kenneth Bennet and Family & Children's Center, Inc., Defendants-Respondents, Mark R. Zellmer and University of Wisconsin-La Crosse, Defendants.
    Court of Appeals

      No. 02-2933.

      Submitted on briefs May 14, 2003.—

      Decided October 16, 2003.

    2003 WI App 231
    (Also reported in 672 N.W.2d 306.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Jeffrey C. Mochalski, Moch-alski Law Office, Holmen.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Michael P. Obert, Jr. and David J. Pliner, Madison.
    Before Dykman, Vergeront and Lundsten, JJ.
   VERGERONT, J.

¶ 1. Brian Hart filed this action after the coordinator of a men's abuse program in which Hart was participating sent a copy of a letter the coordinator wrote Hart to Hart's program supervisor at the University of Wisconsin-La Crosse. The complaint alleged violation of Wis. Stat. § 146.82 (2001-02), which concerns confidentiality of patient health care records, and claims of defamation, professional negligence, and intentional infliction of emotional distress. The trial court dismissed all claims on summary judgment and Hart appeals. We conclude: (1) summary judgment was proper on the § 146.82 claim because, based on the undisputed facts, the letter was not prepared by or under the supervision of a health care provider as defined in Wis. Stat. § 146.81(1); (2) the trial court erred in deciding that the coordinator was not liable for the defamatory statements in the letter because it is not a defense that the coordinator accurately repeated what someone else told him about Hart; (3) the trial court erred in dismissing the professional negligence claim because the defendants did not establish that they were entitled to summary judgment on that claim; (4) summary judgment was proper on the claim for intentional infliction of emotional distress because, based on the undisputed facts, Hart did not suffer extreme and disabling emotional distress. Accordingly, we affirm in part, reverse in part, and remand for further proceedings on the defamation and professional negligence claims.

BACKGROUND

¶ 2. In October 1997, Hart was charged with battery and two counts of disorderly conduct in a criminal complaint alleging that he had caused bodily harm to his girlfriend, Deana Eley. At the time, Hart was enrolled in the Physician Assistant Program at UW-La Crosse. Mark Zellmer, the administrator of that program, gave Hart the option of taking a leave of absence from the program or being dismissed, and Hart requested a leave of absence. In December 1997, the Student Progress and Conduct Committee voted to dismiss Hart from the program. Hart appealed that decision.

¶ 3. In July 1998, during the course of Hart's efforts to appeal his dismissal, he entered into a diversion agreement on the criminal charges. The agreement required participation in the Men's Abuse Program at the Family & Children's Center in La Crosse and required that Hart sign any releases necessary "to allow the counselor to report compliance or lack thereof, to the District Attorney's Office." Kenneth Bennet was employed by the Center as coordinator of the Men's Abuse Program. On September 8, 1998, Bennet wrote to the deferred prosecution coordinator stating that Hart had learned a great deal in the program, recommending further therapy, and concluding with the suggestion that the university committee reviewing Hart's dismissal consider that, although he had made a mistake, "he had made every effort to follow through with everything that was required of him," and he possessed the same qualities now as he did when he was admitted to the Physician Assistant Program. This letter was copied to Hart and to the attorney representing him in his appeal with the University.

¶ 4. After writing that letter, Bennet spoke to Eley, and then wrote the letter to Hart that prompted this lawsuit. In this letter, Bennet stated that because of the information he received from Eley and from the victim witness coordinator, he was "recanting the position and decision [he] presented in the previous letter." Bennet acknowledged that he had been at fault for not talking to Eley previously, but, he wrote,

[t]he greater fault is your failure to be honest with me. From our discussion [Eley informed me] that:
1. You were taking approximately 20 white crosses (amphetamines) a day.
2. In the month of August 1997, you hit her at least 15 of the 31 days - even if it was a punch on her shoulder or a slap on the back of her head.
3. You compared [Eley] to your former partner Angie. You called her names such as "fat bitch" and "stupid". You treated her like a slave - even on the evening you battered her, you ordered her to get your study materials after the beating and said you were leaving.
4. You wouldn't let her put on a seat belt, and said you were going to kill her and you.
5. You stole a key to Gundersen's library and made [Eley] have a copy made.
6. You told me you made [Eley] show you her phone bills and credit card slips when, in fact, you took them from her desk.
7. After having seen the pictures of [Eley], I can only say you were fortunate to have been given a diversion agreement rather than probation.

The letter concluded with Bennet's decision that Hart participate further in a program at the Center. This letter was copied to Hart's attorney, personnel at the district attorney's office, and to Zellmer. It is undisputed that Bennet actually sent the letter to the persons copied.

¶ 5. The committee at UW-La Crosse that was reviewing Hart's dismissal either removed itself or was removed from further considering Hart's dismissal after receiving a copy of Bennet's September 18 letter from Zellmer. An ad hoc committee was then assigned to review Hart's dismissal. Ultimately the UW-La Crosse chancellor issued a decision overturning the decision of the ad hoc committee and finding that Hart had been afforded adequate due process in this dismissal from the Physician Assistant Program.

¶ 6. In his complaint, Hart alleged that Bennet knowingly violated Wis. Stat. § 146.82 by sending the September 18 letter to others without his consent. For his defamation claim, he alleged that the September 18 letter contained these false and defamatory statements that accuse Hart of committing crimes: (1) he possessed and used amphetamines; (2) he committed multiple acts of battery against Eley in August 1997; (3) he threatened to kill her, which, he alleges, constitutes disorderly conduct; and (4) he stole her personal belongings. Hart also alleged that Bennet was professionally negligent in relaying confidential therapist/client information to third parties without his consent, and that this conduct was extreme and outrageous, and done with the intent to cause Hart extreme emotional distress, which it did cause him. The Center was liable for Bennet's conduct, the complaint alleged, because Bennet was acting within the scope of his employment with the Ce'nter when he sent the letter.

¶ 7. Bennet and the Center (the defendants) moved for summary judgment on these grounds: (1) the September 18 letter was not a health care record within the meaning of Wis. Stat. § 146.81(4) because it was not prepared by or under the supervision of a health care provider as defined in § 146.81(1) and it was "a letter and not a record related to the health of a patient"; (2) the September 18 letter contained only true statements; and (3) the September 18 letter did not cause Hart's damages.

¶ 8. Regarding Hart's claim under Wis. Stat. § 146.82, the defendants submitted the affidavits of the CEO of the Center, John Burgess, which averred as follows. Bennet was not licensed as a psychiatrist or psychologist in the State of Wisconsin and did not perform the services of a licensed psychiatrist or psychologist. The Men's Abuse Program, which he was employed to coordinate, was not a counseling program regulated by the Department of Regulation and Licensing, but was an intervention program using an instructional and modeling approach to teach certain skills on both a group and individual basis. The Center ran an outpatient mental health facility certified by the state and employed licensed psychiatrists and psychologists to meet the requirements of that certification, but the Men's Abuse Program had no relation to that facility, to the Children's Day Treatment Program or any other program regulated by the Wisconsin Department of Regulation and Licensing.

¶ 9. In support of the defendants' position that all the statements in the September 18 letter were true, the defendants submitted the affidavit of Eley, which related the particular statements she made to Bennet about Hart's conduct when Bennet contacted her sometime before September 18. Each of the points 1 through 6 in Bennet's letter accurately describes a statement Eley avers she made to Bennet.

¶ 10. In response, Hart submitted his affidavit denying the truth of Eley's statements concerning drugs, battery, disorderly conduct, and taking her property that were contained in the September 18 letter. Other averments in this affidavit are described later in the opinion.

¶ 11. The trial court concluded that, based on the undisputed facts, Bennet was not a health care provider under Wis. Stat. § 146.81(1) and was not working under the supervision of a health care provider. The court also concluded that, as a matter of law, the September 18 letter was not a patient health care record under § 146.81(4) because it was not "related to the health of a patient." With respect to the defamation claim, the court concluded that in the September 18 letter, Bennet was simply reciting information provided by Eley and was not conveying his opinion of Hart; and Eley, not Bennet, was the source of any defamatory statement. The court entered an order dismissing all the claims against Bennet and the Center.

DISCUSSION

¶ 12. We review the grant or denial of summary judgment de novo, applying the same standard as does the trial court. Mach v. Allison, 2003 WI App 11, ¶ 14, 259 Wis. 2d 686, 656 N.W.2d 766. A party is entitled to summary judgment if there are no disputed issues of fact and that party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). The first step of the methodology is to analyze the complaint to determine whether it states a claim. Mach, 259 Wis. 2d 686, ¶ 15. If it does and if the defendant is moving for summary judgment, we examine the defendant's submissions to determine whether they establish a prima facie defense to the claim. Id., ¶ 14. If they do, we then determine whether the plaintiffs submissions in response create a genuine issue of material fact that defeats the motion for summary judgment and entitles the plaintiff to a trial. Id.

A. Wisconsin Stat. § 146.82 Claim

¶ 13. Wisconsin Stat. § 146.82(1) provides that, with certain exceptions, all patient health care records shall remain confidential and may be released only to persons designated in the statute or to others with the informed consent of the patient or one authorized by the patient. Patient health care records are defined as "records related to the health of a patient prepared by or under the supervision of a health care provider." Wis. Stat. § 146.81(4). "Health care provider" is defined in § 146.81(1) and includes a number of health care professionals licensed or certified by statute. Section 146.81(l)(a)-(hp). It also includes a partnership of any of those providers, § 146.81(l)(i); a "corporation or limited liability company of any providers specified under pars, (a) to (hp) that provides health care services," § 146.81(l)(j); and a number of entities or facilities that are licensed or regulated by statute. Section 146.81(k)-(p).

¶ 14. Hart contends that the trial court erred in applying Wis. Stat. § 146.82(1) because the court considered only whether Bennet was a health care provider and not whether the Center was a health care provider. There is no dispute that Bennet is not licensed as any health care provider listed in Wis. Stat. § 146.81(l)(a) to (hp). However, Hart argues on appeal, as he did in the trial court, that the Center is a health care provider under para. (l)(j) and the Center supervises Bennet, its employee; thus, contends Hart, the September 18 letter was "prepared. .. under the supervision of a health care provider." Section 146.81(4). According to Hart, the Center is a health care provider as defined in para. (l)(j) because it is a corporation and it employs individuals who are health care providers under § 146.81(l)(d) and (h) — licensed psychiatrists and psychologists.

¶ 15. It is not disputed that the Center is a corporation or that it employs licensed psychiatrists and psychologists. It is also not disputed that no licensed psychiatrist or psychologist is employed by the Center in the Men's Abuse Program and that Bennet is not supervised by a licensed psychiatrist or psychologist.

¶ 16. Hart's argument requires that we construe Wis. Stat. § 146.81(l)(j). This presents a question of law, which we review de novo. State v. Setagord, 211 Wis. 2d 397, 405-06, 565 N.W.2d 506 (1997). The purpose of statutory interpretation is to discern the legislature's intent. Id. at 406. We first consider the language of the statute. Id. If that clearly and unambiguously sets forth the legislature's intent, we do not look outside the statutory language to ascertain that intent; rather, we apply the plain language to the facts at hand. Id. A statute is ambiguous when it is capable of being understood in two or more different senses by reasonably well-informed persons. Id. If a statute is ambiguous, we look to the scope, history, context, subject matter, and object of the statute in order to ascertain legislative intent. Id. When we construe a particular section of a statute, we do not consider it in isolation, but in the context of related sections. J.L.W. v. Waukesha County, 143 Wis. 2d 126, 130, 420 N.W.2d 398 (Ct. App. 1988).

¶ 17. Beginning with the language of Wis. Stat. § 146.81(1)0’), the critical words are "[a] corporation or limited liability company of any providers specified under pars, (a) to (hp)." A readily apparent reasonable meaning of these words is that the corporation's shareholders are the providers listed in paras. (l)(a) through (hp). However, Hart reads this phrase to mean "a corporation that employs any providers." Although "of any providers" is an unusual way to say "that employs any providers," we will assume for purposes of argument that Hart's construction is a reasonable one. However, we conclude it is not the meaning the legislature intended. Rather, for the following reasons, we are persuaded that the more reasonable reading is that the corporation's shareholders are providers specified in paras, (a) to (hp).

¶ 18. First, many corporations employ licensed health care providers to provide health care services even though the business of the corporation has nothing to do with health — a factory might employ a nurse, for example, to provide health care services to its employees. Considering all such corporations as health care providers makes little sense in the context of this statute. Such corporations do not in any reasonable sense of the words prepare or supervise the preparation of records relating to the health care of their employees; that is done by the individual health care providers such corporations employ. Second, Hart's reading creates a category of "health care providers," a factory, for instance, that is not tied to any licensing, certification, or regulation by the state, unlike every other category listed in Wis. Stat. § 146.81(1). (In a partnership of providers under para, (i), each provider would, by definition, be licensed.) Third, if the legislature intended the meaning Hart proposes, it would be unnecessary to list the facilities listed in paras. (l)(k) through (l)(p) because they no doubt are corporations that employ health care providers listed in paras. (l)(a) through (hp).

¶ 19. Fourth, corporations that have shareholders who are health care professionals are specifically provided for and regulated by statute under Wis. Stat. §§ 180.1901-1921. This statute was enacted in 1961, well before Wis. Stat. § 146.81 was enacted in 1979. By definition all shareholders in a service corporation are licensed, certified, or regulated by the state, Wis. Stat. § 180.1903(1), and this comports with the other categories in § 146.81(1).

¶ 20. Construing Wis. Stat. § 146.81(l)(j) to mean a corporation that has shareholders who are providers as listed in paras, (a) to (hp), we conclude that, based on the undisputed facts, the Center is not such a corporation. From the name of the Center — "Family & Children's Center, Inc." — the only reasonable inference is that it is not a service corporation because it does not contain the designations required by law. See Wis. Stat. § 180.1907. Accordingly, the September 18 letter Ben-net wrote is not a "a patient health care record" under § 146.81(4) because Bennet is not a health care provider within the meaning of § 146.81(1), and he was not supervised in the preparation of that letter by a health care provider. This conclusion makes it unnecessary to decide whether that letter meets other requirements of the definition of "patient health care record." The trial court therefore properly dismissed the claim for a violation of Wis. Stat. § 146.82.

B. Defamation

¶ 21. The elements of a defamation claim are: (1) a false statement, (2) communicated by speech, conduct, or in writing to a person other than the person defamed, and (3) the communication is unprivileged and is defamatory, that is, tends 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. Mach, 259 Wis. 2d 686, ¶ 12.

¶ 22. Hart argues on appeal that the trial court erred in concluding that Bennet was not, as a matter of law, liable for Eley's allegedly false and defamatory statements because he accurately repeated them. By "republishing" her statements, Hart contends, Bennet is liable for those defamatory statements. The defendants respond that we should not address this theory of liability because Hart did not brief it in the trial court, and the trial court therefore properly disregarded it. We disagree and conclude Hart did not waive the right to raise this theory of liability on appeal.

¶ 23. The complaint adequately states a claim for defamation based on Bennet's repeating Eley's statements to others. The complaint (1) attaches the September 18 letter, sets forth the specific statements in the September 18 letter that Hart is complaining about and alleges they are false; (2) alleges that Bennet sent the letter to the persons named at the end of the letter, including Zellmer; and (3) alleges that those statements were not privileged and harmed his reputation. One can readily conclude that the specified statements meet the definition of defamatory in that they would "tend[] to harm one's reputation." Mach, 259 Wis. 2d 686, ¶ 12. It is evident from the complaint and attached letter that Hart is claiming that Bennet is liable to him because he repeated Eley's statements to others by sending the letter to persons other than Hart. There is no requirement that Hart specifically allege that Bennet is liable because he "repeated" or "republished" Eley's statements, as the trial court apparently thought.

¶ 24. In an effort to establish a defense to this claim, the defendants submitted Eley's affidavit to show that the statements Bennet attributed to her in his letter were indeed made by her. Hart's brief in response emphasized the falsity of Eley's statements, relying on his affidavit as a factual basis. In the defendants' reply brief, they contended it was irrelevant whether Eley's statements to Bennet were true because her affidavit established that she indeed told Bennet what he related in the letter. At the hearing on the motion, Hart's counsel responded to this argument by asserting that one can be liable by republishing defamatory statements. It would have been preferable if Hart had more fully explained in his brief why in his view the defendants' theory of defense was incorrect, rather than waiting until oral argument. Nonetheless, the emphasis in his brief — that it was the truth or falsity of Eley's statements that mattered — is the essence of his theory of Bennet's liability. Because we conclude Hart did not waive the right to argue on appeal that Bennet is liable for repeating Eley's statements to third parties, we next consider whether the trial court erred in ruling that, as a matter of law, Bennet was not liable.

¶ 25. Applying summary judgment methodology, we have already concluded the complaint states a claim for defamation against Bennet. Eley's affidavit establishes a prima facie defense to this claim only if accurately repeating her statements to others is a defense. It is not. "One who repeats or otherwise republishes defamatory matter is subject to liability as if he had originally published it." Restatement (Second) of Torts § 578 (1977). In this context, "publication" means communication to a third person or persons. Hucko v. Jos. Schlitz Brewing Co., 100 Wis. 2d 372, 377 n.3, 302 N.W.2d 68 (Ct. App. 1981). This rule applies when the original statement is spoken and the republisher repeats it to others in written form. Restatement (Second) of Torts § 578 cmt. d. The principle of the republisher's liability was recognized in Wisconsin almost a century and a half ago in Sans v. Joerris, 14 Wis. 722, 726 (1861):

The law is well settled that it is no justification in an action for libel, that the libelous matter was previously published by a third person, and that the defendant, at the time of his publication, disclosed the name of that person and believed all the statements in the libel to be true.

¶ 26. Because it is not a defense that Bennet accurately repeated Eley's statements, the trial court erred in ruling the defendants were entitled on this ground to summary judgment on the defamation claim.

¶ 27. The trial court also concluded that Bennet was not liable because he did not convey in the letter that he believed Eley's statements were true. This was incorrect for two reasons. First, whether the repub-lisher expresses belief or disbelief or neither does not affect liability: the republisher is subject to liability even if he or she expresses disbelief in the republished statement. Restatement (Second) of Torts § 578 cmt. e. "The fact that [the republisher] expresses belief or disbelief may, however, be taken into account in determining damages for the harm to the reputation of the person defamed for which the repeater will be liable." Id. Second, we conclude that the only reasonable reading of the September 18 letter is that Bennet believed Eley's statements were true. In the letter Bennet characterized her statements as "new information"; he stated that he was "recanting the position and decision" he had expressed in his September 8 letter; and he faulted Hart for not being honest with him. Indeed, the defendants concede this in a later section of their appellate brief: Bennet was entitled to copy this letter to Zellmer, they assert, because the information he received from Eley caused him to change his mind about the recommendation he had made to the University about Hart.

¶ 28. The defendants argue that we should affirm on the alternative basis that Bennet had a conditional privilege and did not abuse it. According to the defendants, because Bennet had reason to believe that Hart or his counsel intended to show his September 8 letter to persons at UW-La Crosse to aid Hart in the review of his dismissal, Bennet had a legitimate interest in protecting his reputation by correcting what he now believed to be an inappropriate recommendation.

¶ 29. Privileged conduct as a defense to a defamation claim is based on "the public policy that certain conduct which would otherwise be actionable may escape liability because the defendant is acting in furtherance of some interest of societal importance, which is entitled to protection even at the expense of uncompensated harm to the plaintiff." Zinda v. Louisiana Pac. Corp., 149 Wis. 2d 913, 921-22, 440 N.W.2d 548 (1989). In the area of conditional privilege, we look to Restatement (Second) of Torts. See id. at 922. The conditional privilege the defendants rely on is:

§ 594. Protection of the Publisher's Interest
An occasion makes a publication conditionally privileged if the circumstances induce a correct or reasonable belief that
(a) there is information that affects a sufficiently important interest of the publisher, and
(b) the recipient's knowledge of the defamatory matter will be of service in the lawful protection of the interest.

Restatement (Second) of Torts § 594.

¶ 30. A conditional privilege is forfeited if it is abused in any of these ways:

(1) [D]efendant. . . [had] knowledge or reckless disregard as to the falsity of the defamatory matter; (2) the defamatory matter is published for some purpose other than that for which the particular privilege is given; (3) . .. the publication is made to some person not reasonably believed to be necessary for the accomplishment of the purpose of the particular privilege; (4). .. the publication includes defamatory matter not reasonably believed to be necessary to accomplish the purpose for which the occasion is privileged; or (5) the publication includes unprivileged matter as well as privileged matter.

Zinda, 149 Wis. 2d at 925 (citing Restatement (Second) of Torts §§ 600-605A).

¶ 31. We cannot affirm the dismissal of the defamation claim on the ground of conditional privilege. There are reasonable inferences from the evidence that, if believed by a jury, would defeat this defense. To give just three examples: (1) there is no evidence that Hart or his attorney had already forwarded the September 8 letter to UW-La Crosse, and no evidence that Bennet attempted to ascertain whether this had occurred; one could therefore reasonably infer that Bennet did not have a reasonable belief that copying the letter to Zellner was necessary to protect Bennet's interest and reputation; (2) it is reasonable to infer from the September 18 letter itself that Bennett did not contact Hart to hear his response to what Eley told him before copying the letter to Zellmer; one could reasonably infer from this that Bennet acted with reckless disregard of the truth or falsity of Eley's statements; and (3) a reasonable fact finder could decide that the September 18 letter contained defamatory material not reasonably believed to be necessary to accomplish the purpose for which Bennet claims the privilege.

¶ 32. In summary, we conclude that the trial court erred in granting summary judgment on the defamation claim and that Hart is entitled to a trial on this claim.

C. Professional Negligence

¶ 33. Hart contends the trial court erred in dismissing the professional negligence claim because that claim is not dependent on the success of a claim under Wis. Stat. § 146.82 and the court provided no independent ground for dismissal of the negligence claim. The defendants respond that Hart did not present a separate argument in the trial court on the negligence claim and therefore we should not address it on appeal. We conclude Hart did not waive the right to present this argument on appeal.

¶ 34. Because the defendants moved for summary judgment, Hart's responsibility was to respond to their legal arguments and factual submissions. The only argument the defendants made in their first brief to the trial court that obviously related to the professional negligence claim (because it related to all claims) was that the September 18 letter did not cause Hart damages. In support of this assertion, they submitted Hart's responses to interrogatories from which one could reasonably infer that the September 18 letter was not considered by the persons that ultimately affirmed his dismissal from the Physician Assistant Program. In response, Hart averred that he had incurred additional legal expenses because the first committee had to be removed after receiving Bennet's letter from Zellmer and a second committee formed, and he attached billing statements for his attorney's services. He also averred that he had undergone counseling and therapy from named providers regarding "confusion, disillusionment and therapist-patient trust caused by Ken Bennet's betrayal of confidence" in publishing the September 18 letter, and this counseling and therapy was in addition to the requirements of the diversion agreement. Hart's affidavit creates a disputed issue of fact on whether he incurred damages as a result of Bennet's copying of the letter to Zellmer. Accordingly, the defendants were not entitled to summary judgment on the professional negligence claim on the ground that Bennet's alleged negligence conduct did not cause damages.

¶ 35. It appears that the defendants may have assumed in their summary judgment motion that, if they prevailed in their arguments to dismiss Hart's Wis. Stat. § 146.82 claim, dismissal of the professional negligence claim was automatically proper. However, they did not make this argument in the trial court and they do not develop it on appeal.

¶ 36. With respect to the negligence claim, the complaint alleges: (1) Bennet was a practicing professional psychologist, who, although not licensed by the state, possessed the education, knowledge, and experience generally required of all practicing professional psychologists; (2) as a practicing professional psychologist, he had a duty in counseling Hart to exercise the degree of care, skill, and judgment that reasonable psychologists would exercise; (3) he breached this duty by relating, in the September 18 letter, confidential therapist/patient information to third parties without the client's consent; and (4) Hart was damaged as a result in that he suffered emotional harm requiring psychotherapy and the UW-La Crosse appeal proceedings were disrupted, resulting in additional legal expenses.

¶ 37. It is not self-evident that Bennet does not have the duty alleged in the complaint solely because he is not a health care provider within the definition of Wis. Stat. § 146.81(1); nor is it self-evident that the September 18 letter does not contain confidential information solely because it does not meet the definition of patient health care record in § 146.81(4). Because the defendants do not develop these arguments, we conclude they are not entitled to summary judgment on these grounds.

D. Intentional Infliction of Emotional Distress

¶ 38. As with the claim for professional negligence, Hart contends the trial court erred in dismissing the claim for intentional infliction of emotional distress without explanation. His affidavit, he asserts, is sufficient to establish an issue of material fact with respect to each element of this claim. The elements are: (1) the defendant intended to cause emotional distress by his or her conduct; (2) that conduct was extreme and outrageous; (3) that conduct was a cause-in-fact of the plaintiffs emotional distress; and (4) the plaintiff suffered an extreme disabling response to the defendant's conduct. Rabideau v. City of Racine, 2001 WI 57, ¶ 33, 243 Wis. 2d 486, 627 N.W.2d 795.

¶ 39. We conclude that Hart's affidavit is not sufficient to entitle him to a trial on his claim for intentional infliction of emotional distress because it is not sufficient to create a factual dispute on the fourth element of the claim — that his emotional distress was extreme and disabling. This standard is met only when the plaintiff is "unable to function in . . . other relationships because of the emotional distress caused by [the] defendant's conduct." Alsteen v. Gehl, 21 Wis. 2d 349, 360-61, 124 N.W.2d 312 (1963); see also Wis JI — Civil 2725. The only averments relating to his emotional reaction to Bennet's conduct are those we have recounted in the preceding section — that Hart engaged in counseling and therapy regarding "confusion, disillusionment and therapist-patient trust caused by Kenneth Bennet's betrayal of confidence" in publishing the September 18 letter, and this counseling and therapy was in addition to the requirements of the diversion agreement. Accepting these averments as true and drawing all reasonable inferences from them in Hart's favor, we conclude that, as a matter of law, they fall far short of establishing extreme and disabling emotional distress. Accordingly, the defendants are entitled to summary judgment on this claim.

CONCLUSION

¶ 40. We affirm summary judgment dismissing the claim under Wis. Stat. § 146.82 and the claim for intentional infliction of emotional distress. We reverse summary judgment on the defamation and professional negligence claims and remand for further proceedings on those claims.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       The first paragraph of this letter stated:
      I am baffled by the process you employ in working around appointments and schedules, or to avoid them entirely. Your behavior surrounding our last appointment is suggestive of someone who is attempting to forestall unwanted news. The news is something you won't want to hear, hut I wanted to present it to you in person, however, that won't he necessary at this point.

       One of the persons copied was "Ann Quinlisk, D.VI.E Program Coordinator." We are unable to tell from the record who this person is, but we assume she is connected either with the Center or the District Attorney's Office. In any event, we understand from the record and briefs that Hart's claims all depend on the fact that Bennet sent this letter to Zellmer, and that none depend upon the letter being sent to the other persons copied.

       Wisconsin Stat. § 146.82(1) provides:
      (1) Confidentiality. All patient health care records shall remain confidential. Patient health care records may be released only to the persons designated in this section or to other persons with the informed consent of the patient or of a person authorized hy the patient.

        Hart also alleged in the complaint that Bennet violated Wis. Stat. § 146.83(4) by altering records that Bennet kept on his meetings with Hart. However, his arguments on appeal are confined solely to the September 18 letter. Accordingly, we do not separately address the claim of alteration of records. However, from our conclusion that the September 18 letter was not a "patient health care record" under Wis. Stat. § 146.81(4) because it was not prepared by or under the supervision of a health care provider as defined in § 146.81(1), it follows that the documents Hart alleged and averred that Bennet altered were not "patient health care records."

       The complaint also alleged claims against Zellmer and the University of Wisconsin-La Crosse. It appears that they have been dismissed from the action. At any rate, they are not involved in this appeal.

       The motion for summary judgment contained an additional ground — that Hart agreed to the release of the information contained in his health care records to Zellmer and others at UW-La Crosse. The defendants argued that Hart was aware that the September 8, 1998 letter had been copied to Hart's attorney for her use in the appeal of his dismissal from the Physician Assistant Program, and that constituted a voluntary authorization to release the information in that letter to Zell-mer and others at UW-La Crosse. Since the September 18 letter was a "recantation" of the September 8 letter, the defendants continued, the voluntary authorization applied to the September 18 letter as well. In his affidavit, Hart averred that he did not give Bennet or the Center "permission to . . . release information regarding [his] counseling with Ken Bennet" to any person other than those named in the releases in the record, which do not include Zellmer or anyone at UW-La Crosse. The trial court did not address this argument and defendants do not appear to argue on appeal that it is an alternative ground on which to affirm the grant of summary judgment as to any claim. To avoid any misunderstanding, we conclude that the defendants are not entitled to summary judgment on the ground that Hart consented to the copying of the September 18 letter to Zellmer because, based on his affidavit, there are disputed issues of fact on that question.

       Wisconsin Stat. § 146.81(1) provides in full:
      Health care records; definitions. In ss. 146.81 to 146.84:
      (1) "Health care provider" means any of the following:
      (a) A nurse licensed under ch. 441.
      (b) A chiropractor licensed under ch. 446.
      (c) A dentist licensed under ch. 447.
      (d) A physician, physician assistant, perfusionist, or respiratory care practitioner licensed or certified under subch. II of ch. 448.
      (dg) A physical therapist licensed under subch. Ill of ch. 448.
      (dr) A podiatrist licensed under subch. IV of ch. 448.
      (em) A dietitian certified under subch. V of ch. 448.
      (eq) An athletic trainer licensed under subch. VI of ch. 448.
      (es) An occupational therapist or occupational therapy assistant licensed under subch. VII of ch. 448.
      (f) An optometrist licensed under ch. 449.
      (fm) A pharmacist licensed under ch. 450.
      (g) An acupuncturist certified under ch. 451.
      (h) A psychologist licensed under ch. 455.
      (hg) A social worker, marriage and family therapist, or professional counselor certified or licensed under ch. 457.

        (hm) A speech-language pathologist or audiologist licensed under subch. II of ch. 459 or a speech and language pathologist licensed by the department of public instruction.
      (hp) A massage therapist or bodyworker certified under ch. 460.
      (i) A partnership of any providers specified under pars, (a) to (hp).
      (j) A corporation or limited liability company of any providers specified under pars, (a) to (hp) that provides health care services.
      (k) An operational cooperative sickness care plan organized under ss. 185.981 to 185.985 that directly provides services through salaried employees in its own facility.
      (L) A hospice licensed under subch. IV of ch. 50.
      (m) An inpatient health care facility, as defined in s. 50.135(1).
      (n) A community-based residential facility, as defined in s. 50.01(lg).
      (p) A rural medical center, as defined in s. 50.50(11).
      At the time relevant to this appeal, the definition of "health care provider" under Wis. Stat. § 146.81(1) had not been amended to include perfusionists, para, (d), athletic trainers, para, (eq), and massage therapists and bodyworkers, para. (hp). Because these changes do not affect our analysis, we cite to the current statute.

       Although Burgess' affidavit averred only that Bennet was not licensed as a psychologist or psychiatrist by the State of Wisconsin, Hart alleged in his complaint that, on information and belief, Bennet "was not licensed by the State of Wisconsin," and no party contends otherwise.

       We are uncertain whether Hart is contending that there are disputed issues of fact on the question whether the Center is a health care provider under Wis. Stat. § 146.81(l)(j). If he is, we disagree. He asserts that the trial court considered only Burgess' affidavits and not that of Sonja Byrne, which he submitted. Byrne's affidavit avers that she was informed by staff of the Quality Assurance Division of the Wisconsin Department of Health and Family Services that the Center has been certified as an outpatient mental health clinic under Wis. Admin. Code § HFS 61.91, and a day treatment center for children under Wis. Admin. Code § HFS 40.11(2)(a) since 1994. Attached to her affidavit are copies of the Center's website pages, which describe the Center as "serv[ing] children, families and individuals with a continuum of services designed to strengthen families and promote individual well-being." The pages also describe specific services and programs of the Center. The Men's Abuse Program is referred to under the heading "Educational and Outreach Programs" as one of several programs "that address specific family issues: ... the Men's Abuse Program, a long-term education program to help men who have been violent toward a female partner." Byrne's affidavit is consistent, not inconsistent, with Burgess' affidavits regarding the Center's programs and services and the description of the Men's Abuse Program.

       Wisconsin Stat. § 180.1903 provides:
      Formation of service corporation. (1) Except as provided in sub. (lm), one or more natural persons licensed, certified, or registered pursuant to any provisions of the statutes, if all have the same license, certificate, or registration or if all are health care professionals, may organize and own shares in a service corporation. A service corporation may own, operate, and maintain an establishment and otherwise serve the convenience of its shareholders in carrying on the particular profession, calling, or trade for which the licensure, certification, or registration of its organizers is required.
      (lm) A service corporation for carrying on the profession of certified public accounting may be organized under sub. (1) if more than 50% of the shareholders are certified public accountants.
      (2)Professional or other personal services, consultation or advice in any form may be rendered only by directors, officers, agents or employees of the service corporation who are licensed, certified or registered pursuant to statute in the field of endeavor designated in the articles of incorporation of the service corporation.
      (3) Liability may not accrue to a service corporation or its shareholders solely as a result of a decision to organize under sub. (1) or solely as a result of a decision to include or exclude a category of health care professionals as eligible to become shareholders of the service corporation.
      (4) Each health care professional, other than a physician or nurse anesthetist, who is a shareholder of a service corporation and who has the authority to provide health care services that are not under the direction and supervision of a physician or nurse anesthetist shall carry malpractice insurance that provides coverage of not less than the amounts established under s. 655.23 (4).

       Wisconsin Stat. §§ 146.81-83 were enacted by Laws of 1979, ch. 221 § 649t. That first version defined health care provider as:
      (1) "Health care provider" means a nurse registered or licensed under ch. 441, a chiropractor licensed under ch. 446, a dentist licensed under ch. 447, a physician, podiatrist or physical therapist licensed under ch. 448, an optometrist licensed under ch. 449, a psychologist licensed under ch. 455, a partnership thereof, a corporation thereof that provides health care services, an operational cooperative sickness care plan organized under ss. 185.981 to 185.985 that directly provides services through salaried employes in its own facility, or an inpatient health care facility as defined in s. 140.85(1).
      At that time, Wis. Stat. § 180.99 (1979-80) governed service corporations and § 180.99(2) provided:
      (2) Formation of corporation. One or more natural persons licensed, certified or registered pursuant to any provisions of the statutes, provided all have the same license, certificate or registration, may organize and own stock in a service corporation under this section. Such corporation may own, operate and maintain an establishment and otherwise serve the convenience of its shareholders in carrying on the particular profession, calling or trade for which the licensure, certification or registration of its organizers is required; provided that professional or other personal services, consultation or advice in any form may be rendered only by officers, agents, or employes (as defined in sub. (9)) of such corporation who are themselves licensed, certified or registered pursuant to statute in the field of endeavor designated in the articles of such corporation.
      Subsequently, this was renumbered and amended to the present version to allow, as an alternative to all shareholders having "the same license, certificate or registration," all shareholders to be "health care professionals" as defined in the statute. Sections 180.1903(1) and 180.1901(lm).

       The court in Torgerson v. Journal/Sentinel Inc., 210 Wis. 2d 525, 534 n.9, 563 N.W.2d 472 (1997), noted that more recent cases of this court had, without discussion, used a standard of four elements derived from Restatement (Second) of ToRts § 558 (1977): a false and defamatory statement; an unprivileged publication to a third party; fault amounting to at least negligence on the part of the publisher; and either actionability regardless of special harm or the existence of special harm caused by the publication. See, e.g., Erdmann v. SF Broad, of Green Bay, Inc., 229 Wis. 2d 156, 164, 599 N.W.2d 1 (Ct. App. 1999). However, the supreme court in Torgerson stated that "[flor present purposes the distinctions between the two sets of elements, if any, are unimportant." 210 Wis. 2d at 535 n.9. The same is true in this case.

       Wisconsin Stat. § 802.03(6) requires that "the particular words complained of shall be set forth in the complaint, but their publication and application may be stated generally."

       More recently we alluded to this principle in Hucko v. Jos. Schlitz Brewing Company, 100 Wis. 2d at 377, in addressing the liability of the original publisher. We explained that the originator of the statements is liable for any secondary publication that is the natural and probable consequence of his or her act, even though the secondary publisher, or republisher, may be liable as well.
      We observe that some jurisdictions have recognized a "neutral reportage" privilege to the established common law rule of liability for republication; the privilege applies to charges about a public figure or public official in certain situations. 1 Rodney A. Smolla, Law of Defamation §§ 4:96-4:101 (2d ed. 1999). By adhering to the established common law rule in this case, we do not intend to express any view on the neutral reportage privilege.

       The defendants raised this defense in their reply brief in the trial court, hut the court did not address it.

       The defendants again argue that Hart waived the right to make this argument on appeal, and again we disagree. The defendants did not refer to the claim for intentional infliction of emotional distress in their first brief supporting their motion on summary judgment. In their reply brief, they referred to it in a footnote, asserting that this "claim necessarily falls with the others, based on the arguments herein." In particular, they asserted, the evidence showed the first and second elements were not met as a matter of law. Defendants' counsel did not separately address this claim at oral argument. If their position is that their arguments on the defamation claim also defeated the first two elements of the emotional distress claim, then logically Hart adequately responded to their position by disputing their factual and legal assertions on the defamation claim. Indeed, because they first mentioned the emotional distress claim in their reply brief, Hart would have been entitled, had he asked, to the opportunity to submit additional factual material on that claim. He did not do so, and we understand from his brief on appeal that he is not contending he was deprived of an opportunity to submit additional factual material on this claim.