The Neurologist Sued A Patient’s Son For Online Review

MARCH 21, 2013

“Have You Heard The One About The Physician Who Sued A Patient’s Son For Online Comments? Some People Just Never Learn.”

By Dan Hinmon, Health Care News Feed

A four-year legal battle over a patient’s right to make negative comments about a doctor in social media ended last week when the Minnesota Supreme Court ruled unanimously that the comment was protected speech. We covered the case in an earlier blog post.

The battle started when Dr. David McKee sued Dennis Laurion for calling him “a real tool” on physician rating sites after McKee treated Laurion’s father poorly during a hospital stay.

“Referring to someone as ‘a real tool’ falls into the category of pure opinion because the term ‘real tool’ cannot be reasonably interpreted as stating a fact and it cannot be proven true or false,” wrote the court.

Laurion, who was forced to deplete his savings and borrow from relatives to pay for his defense, was not surprisingly relieved.

The shocker, though, was the response of McKee. According to the Star Tribune, McKee is now ticked off at the people who posted hundreds more negative comments about him after the story went viral. Incredulously, the story reports that McKee “hasn’t ruled out a second lawsuit stemming from these posts.”

Yes, you read that right. After spending “at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral,” McKee is considering suing the rest of the people who, exercising their right of protected speech, chimed in.

I’m speechless.

Plaintif

Dr. David McKee
Defendant

Dennis K Laurion

FULL ARTICLE

Defendant Dennis Laurion’s Web Posting

Defendant Dennis Laurion’s Patient Complaint

Plaintiff David McKee’s Reply To Patient Complaint

Plaintiff David McKee’s Cease And Desist Letter To Defendant Dennis Laurion

Defendant Dennis Laurion’s Complaint To Minnesota Board Of Medical Practice

Plaintiff David McKee’s Complaint To Sixth Judicial District Duluth Court

Plaintiff David McKee’s Response To Minnesota Board Of Medical Practice

Defendant Dennis Laurion’s Answer To Plaintiff David McKee’s Complaint

Defendant Dennis Laurion’s Motion For Summary Judgment

Defendant Dennis Laurion’s Deposition Extracts

Plaintiff David McKee’s Deposition Testimony About Circumstances Before Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Circumstances After Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony In Response To Questions By Marshall Tanick

Affidavits By Defendant Dennis Laurion’s Parents

Defendant Dennis Laurion’s Supplemental Motion For Summary Judgment

Plaintiff David McKee’s Motion To Oppose Summary Judgment

Defendant Dennis Laurion’s Reply Memo In Support Of Motion For Summary Judgment

Sixth Judicial District Court’s Order On Motion For Summary Judgment

Plaintiff David McKee’s Appeal Of Order On Motion For Summary Judgment

Plaintiff David McKee’s Brief To Minnesota Court Of Appeals

Defendant Dennis Laurion’s Brief To Minnesota Court Of Appeals

Plaintiff David McKee’s Reply Brief To Minnesota Court Of Appeals

Minnesota Court Of Appeals Order To Strike Portion Of Plaintiff David McKee’s Reply Brief

Minnesota Court Of Appeals Announces Decision

Defendant Dennis Laurion’s Petition For Review By Minnesota Supreme Court

Plaintiff David McKee’s Opposition To Review By Minnesota Supreme Court

Defendant Dennis Laurion’s Brief To Minnesota Supreme Court

Plaintiff David McKee’s Brief To Minnesota Supreme Court

Defendant Dennis Laurion’s Reply Brief To Minnesota Supreme Court

Minnesota Supreme Court Decision On David McKee MD V. Dennis K. Laurion

David McKee MD v. Dennis Laurion 2010

David McKee MD v. Dennis Laurion 2011

David McKee MD v. Dennis Laurion 2012

David McKee MD v. Dennis Laurion 2013

McKee V Laurion Is A Textbook Case

 

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McKee V. Laurion Defendant Brief To Minnesota Supreme Court

APRIL 24, 2012

 No. All-1154

STATE OF MINNESOTA IN SUPREME COURT

David McKee, M.D.,Respondent,  vs.  Dennis K. Laurion,  Appellant.

 BRIEF OF APPELLANT DENNIS K. LAURION

John D. Kelly,   Attorney Reg. No. 54732

David L. Tilden,  Attorney Reg. No. 0388539

HANFT FRIDE

1000 U.S. Bank Place,   130 West Superior Street

Duluth, MN 55802

218/722-4766

Attorneys For Appellant

Marshall H. Tanick, Attorney Reg. No. 108303

Teresa J. Ayling, Attorney Reg. No. 157478

1700 U.S. Bank Plaza South, 220 South Sixth Street

Minneapolis, MN 55402-4511

612/339-4295

Attorneys For Respondent

STATEMENT OF THE ISSUES

WHETHER THE COURT OF APPEALS ERRED IN HOLDING THAT SIX OF ELEVEN STATEMENTS PUBLISHED BY THE APPELLANT PRESENTED FACTUAL ISSUES OF TRUTH OR FALSITY FOR A JURY TO DETERMINE AND CONSTITUTED POTENTIAL HARM TO RESPONDENT’S REPUTATION IN THE COMMUNITY?

Answer: Yes. The Court of Appeals erred in determining that there were issues of fact as to whether six of eleven statements made by appellant were defamatory. The District Court properly determined that, whether viewing all of appellant’s statements individually or as a whole, all eleven statements were not defamatory as a matter of law.

APPOSITE AUTHORITY

Milkovich v. Lorain Journal Co. et al., 497 U.S. 1, 110 S.Ct. 2695 (1990)

Geraci v. Eckankar, 526 N.W.2d 391 (Minn. App. 1995)

McGrath v. TCF Bank Savings, 502 N.W.2d 801 (App. 1993)

Lee v. Metropolitan Airport Com., 428 N.W.2d 815 (Minn. Ct. App. 1988)

Bebo v. Delander, 632 N.W.2d 732, 740 (Minn. Ct. App. 2001)

Jadwin v. Minneapolis Star and Tribune Co., 390 N.W.2d 437 (Minn. App. 1986)

Barna Log Homes of GA, Inc. v. Wischmann, 310 Ga. Ct. App. 2011)

Field v. Grant, 30 Misc. 3d 1217A (N.Y. Sup. Ct. 2010)

Horizon Group Management, L.LC. v. Bonnen, 2009L008675, Circ. Ct. Cook County, IL

Penn Warranty Corp. v. DiGiovanni, I O Misc. 3d 998 (N.Y. Sup. Ct. 2005)

Guerrero v. Carva, 10 A.D.3d 105, 779 N.Y.S. 2nct 12, 17 (1st Dep’t 2004)

STATEMENT OF THE CASE

Appellant’s father, Kenneth Laurion, is an elderly retiree who served honorably as a Navy medic in the pacific during World War II. By the age of 19, he had achieved the rank of Second Class Petty Officer. After his service, he earned a Ph.B. and a Master’s Degree in geriatric counseling. He worked as a high school teacher and, later, as a systems analyst at the dawn of the computer age. He served as a Boy Scout leader and an elder in his church.

On April 17, 2010, Kenneth Laurion suffered a hemorrhagic stroke. He was rushed to St. Luke’s Hospital where he was admitted to the Intensive Care Unit. Two days later, he was moved to a private room. He was joined there by his wife Lois, his son Dennis, and his daughter-in-law, Bonnie Laurion. Lois was terrified that her husband was going to die. The atmosphere in that room was charged with anxiety, fear and uncertainty. At a certain point, the respondent, Dr. McKee, entered the room, and encountered the Laurions. By his account, Dr. McKee introduced himself to the family by making a “jocular comment” to the effect that “I had looked for (Kenneth Laurion) up in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you are someplace like this or you leave because you’ve died.” David McKee Deposition Transcript (“McKee Depo.”) at 40. Under the circumstances, the Laurion family perceived this attempted jocularity as untimely, inappropriate, arid insensitive. During the balance of his time with them, Dr. McKee reinforced the family’s impression that he was insensitive to their needs of the moment, those of Kenneth Laurion, but those of the others as well.

Later that week, appellant published his views on Dr. McKee’s conduct through a letter to a representative of St. Luke’s Hospital (and to other health care related agencies) and by posting comments on two “rate your doctor” websites.

The Complaint in this action asserts that eleven statements culled from appellant’s written criticisms of the respondent’s interaction with Kenneth Laurion and his family on April 19, 2010 were defamatory.

Appellant moved for summary judgment, asserting that all eleven of the statements represented constitutionally protected opinion, were substantially true as demonstrated by the respondent’s own deposition testimony and writings, or were too imprecise to be defamatory. The District Court, Judge Eric Hylden, ruled that the statements, taken as a whole, represented appellant’s protected opinion and, individually, were either opinion, substantially true, or too imprecise to be actionable. The Court of Appeals affirmed in part, reversed in part, and remanded, concluding that six of the statements (a) represented “factual assertions” capable of verification by a jury as true or false and (b) were capable of harming the doctor’s reputation. The six statements at issue are:

  • (Respondent) stated to (Kenneth Laurion) that he had to ‘spend time finding out if you were transferred or died.”
  • Respondent stated that “44% of hemorrhagic strokes die within 30 days. I guess this is the better option.”
  • Respondent “told (Kenneth Laurion) that ‘it doesn’t matter’ that the (hospital) gown was hanging from the neck, without any back.”
  • Respondent “told (Kenneth Laurion) that ‘you don’t need therapy.'”
  • (Respondent) strode out of the room without talking to (Kenneth Laurion’s) wife or (Appellant).”
  • (Appellant) subsequently stated that ‘Dr. McKee is a real tool!”‘

STATEMENT OF THE FACTS

Kenneth Laurion, appellant Dennis Laurion’s father, suffered a stroke on April 17, 2010. (Dennis Laurion Deposition Transcript (“Laurion Depo.”) at 34:12; Appellant’s Appendix (“AA”) at 55.) He was transferred to St. Luke’s Hospital by ambulance and admitted to the Intensive Care Unit. (Laurion Depo. at 35-36; AA 55.) On April 19, 2010, he was moved to a private room. (Laurion Depo. at 37:21-22; AA 55.) Kenneth Laurion’s family – his wife Lois, son Dennis, and daughter-in-law Bonnie – joined him soon after he was transferred out of the ICU. (AA 27, 55.) Lois was terrified that her husband was going to die. The atmosphere in that room was charged with anxiety, fear and uncertainty.

At a certain point, the respondent, Dr. McKee, entered the room, and encountered the Laurions. By his account, Dr. McKee introduced himself to the family by making a “jocular comment” to the effect that “I had looked for (Kenneth Laurion) up in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you are someplace like this or you leave because you’ve died.” David McKee Deposition Transcript (“McKee Depo.”) at 40. Under the circumstances, the Laurion family perceived this attempted jocularity as untimely, inappropriate, arid insensitive. During the balance of his time with them, Dr. McKee reinforced the family’s impression that he was insensitive to their needs of the moment, those of Kenneth Laurion, but those of the others as well.

On April 22, 2010, appellant wrote an email titled “patient care complaint” to St. Luke’s Hospital, which was copied to other health-care related entities, regarding respondent’s treatment of his father. (AA 26 – 29.) Appellant and his family were taken aback, not by respondent’s medical treatment of Kenneth Laurion, but by what they saw as the brusque and insensitive manner in which respondent conducted himself toward Kenneth Laurion during the visit. (Id.; see also Laurion Depo at 52 – 53; 56.) Appellant described the events at issue as follows:

  • Respondent asked Kenneth Laurion if he was Mr. Laurion. When Kenneth Laurion said yes, respondent said, “When you weren’t in the ICU, I had to find out whether you had transferred or died.”
  • Respondent “sounded like he blamed my father for this loss of time. When my wife and mother and I gaped at the doctor, he told my father, ‘Some stroke patients die before getting out of ICU; I guess this is the better ‘ I was appalled! . . . . My mother didn’t need to be reminded that my father could have died.”
  • Respondent said “I have to do a neurology ” When Kenneth Laurion stated that therapists had been seeing him, and that he was used to their exams, respondent said, “Therapy? You don’t need that!”
  • Respondent asked Kenneth Laurion if he could sit up and began lifting him up by his When Kenneth Laurion was seated on the edge of the bed, respondent asked him to get out of bed and walk around. Kenneth Laurion’ s gown hung from his neck, but his backside was exposed. Kenneth Laurion said, “I think I can walk; but this gown doesn’t cover my backside;’ Respondent said, ”That doesn’t matter,” and pulled Kenneth Laurion’s arms toward him. Bonnie Laurion asked respondent to wait a moment while Dennis, Bonnie, and Lois Laurion left the room to stand immediately outside the door.
  • When respondent left the room, he glanced at the waiting family members and said, “You can go back ” Respondent did not give the family a status update or ask any questions of the family. Respondent walked over to a nurse near a tub of patient char1s and stood near her, scowling.

Appellant subsequently mentioned his father’s experience to a nurse friend. She concluded that appellant was speaking of respondent and, when questioned, stated “He’s a tool!”

(AA 28.) After providing this description, appellant set out his purpose for the communication, stating “I think that all of your organizations should reinforce the need to see the patient as a person.” (Id.) Appellant felt that “Dr. McKee saw my father as a task and a charting assignment. He should have listened to him, he should have asked his wife some questions.” (Id.) Appellant proudly described his father’s accomplishments throughout a life of service to country, community, and family. (Id.) Appellant stated that “(a)t a time when my mother was terrified that her husband was about to die, I truly wish that Dr. McKee had taken the time to afford my father the dignity that he deserves.”

On or about April 22 and 23, appellant posted a shortened description of the encounter on two “doctor rating” websites, Insider Pages and Vitals. (Laurion Depo. at 118:5-6; AA 32 – 34.) These postings contained the same statements set forth in the April 22 and 24 complaints, with only slight differences. ( Compare AA 28 with AA 34: (“Enclosure 1”).) Rather than stating that respondent had said ‘Some stroke patients die before getting out of ICU; I guess this is the better option,” Appellant recalled respondent saying, “Well, 44% of hemorrhagic strokes die within 30 days. I guess this is the better option.” (Id.)

The record before the District Court and Court of Appeals reflected that respondent did make statements and conduct himself substantially in accordance with appellant’s recollection, although respondent disagreed with appellant’s interpretation of his words and demeanor. ( Compare AA 28 with McKee Depo. at 26 – 34 and Exhibits. 16 and 17.)

Respondent said he initially attempted to locate his patient, Kenneth Laurion, in the Intensive Care Unit and Kenneth Laurion was not there, so he went off to find him. (McKee Depo. at 16:9 – 17:5.) Respondent acknowledged that, in his experience, stroke patients and their families typically are anxious or upset, sometimes “extremely anxious.” (Id. at 10:18 – 11:7.) Respondent further acknowledged that stroke patients and their families will look to him for clues as to what can be expected moving forward. (Id. at 11:8 – 13.)

Footnote 1: Appellant initially thought he posted to four websites. (AA 32 – 33.) When he went to remove his postings after receiving respondent’s threat letter, he found that he had posted to only two of the sites. (Laurion Depo. at 117 – 118.) Those sites removed appellant’s postings. (Id. at 180 – 81 and Exh. 12.) Whether appellant posted on two or four websites is of no consequence to this appeal, as appellant asked the District Court to assume his statements were published to third parties in analyzing whether the statements were defamatory.

When respondent entered the Kenneth Laurion’ s hospital room on the evening of April 19, 2010, he recalled that he: ([made a jocular comment meant to kind of relieve tension that I had looked for him up in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you’re someplace like this or you leave because you’ve died.]] (Id. at 40:14 – 23.) Similarly, in his May 6, 2010 letter to Dr. Peterson, respondent stated that: [[(w)hen I entered the room, I certainly wasn’t angry or annoyed but did make the comment that I had looked for him in the intensive care unit and was glad to see that he had been transferred from there to a regular hospital bed, as the two possibilities when one leaves the ICU are that you (have) improved . . . or . . . ha(ve) died. This was no(t) glib or morose . . . ]] (Id. at Exh. 16, p. 1.) The Laurions were not amused by this “jocular comment,” and respondent’s statements only served to heighten a very tense and anxious time for the family. (AA 52 – 53; 56.)

Respondent confirmed there was an exchange between the parties involving the fastening of Kenneth Laurion’s hospital gown during the examination. In his May 6, 2010 letter to St. Luke’s, respondent stated that ([when (Kenneth Laurion) was half-standing, half-sitting . . . (Respondent) . . . made the observation that the patient’s hospital gown was only tied at the neck. By the way that he said this, I thought that his concern was that the gown might fall off, but I could see the knot was well tied and told him that I thought it would be fine. It never crossed my mind that he was concerned about his father’s modesty with the back of the gown open . . . (McKee Depo. at Exh. 16, p. 1.) In his deposition, Dr. McKee stated that [[the gown ‘appeared good to me . . . like the gown wasn’t in any risk of falling off. And so I said, ‘It looks like it’s okay.”‘]] (Id. at 44:14 – 16.)

Respondent also confirmed in his letter to St. Luke’s that a conversation related to the therapy Kenneth Laurion had already received took place during the visit. (Id. at Exh. 16, p. 1 (“I asked the patient if he had been out of bed that day and after hearing that the therapists had worked with him but had not gotten him out of bed, I asked if he felt up to that and if he wanted to try to stand and walk a little bit.”)

The following compares appellant’s description of respondent’s statements and conduct with respondent’s own description.

Dennis Laurion:

  • “When you weren’t in the ICU, I had to find out whether you had transferred or died.” (AA 28.)

David McKee:

  • I made a jocular comment . . . to the effect of I had looked for (Kenneth Laurion) up in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you’re someplace like this or you leave because you’ve died.” (McKee Depo. at 40.)

Dennis Laurion:

  • Patient care complaint: When my wife and mother and I gaped at (Respondent), he told my father ” Some patients die before getting out of ICU; I guess this is the better option.” (AA 28.)
  • Online posting: When we gaped at (Appellant), he said, “Well, 44% of hemorrhagic strokes die within 30 days. I guess this is the better option.” (Laurion Depo at Exh. 1.)

David McKee:

  • Letter to St. Luke’s: “(T)he two possibilities when one leaves the ICU are that you have improved or ha(ve) died.” (McKee Depo. at Exh. 16.)
  • Deposition Testimony: “(Y)ou only go one of two ways when you leave the intensive care unit; you either have improved to the point where you’re someplace like this or you leave because you’ve died.” (McKee Depo. at 40.)
  • Deposition Testimony: “I would have said it’s probably somewhere between a third and half, probably closer to a third.” (McKee Depo. at 102.)

Dennis Laurion:

  • My father’s gown hung from his neck, but his back was exposed. He said, “(T)his gown doesn’t cover my backside.” Appellant said, “That doesn’t matter.” (AA 28.)

David McKee:

  • Deposition Testimony: The gown “appeared good to me . . . like the gown wasn’t in any risk of falling off. And so I said, ‘It looks like it’s okay.”‘
  • Letter to St. Luke’s: “(Respondent) . . . made the observation that the patient’s hospital gown was only tied at the neck. By the way that he said this, I thought that his concern was that the gown might fall off but I could see the knot was well tied and told him that I thought it would be fine. It never crossed my mind that he was concerned about his father’s modesty with the back of the gown open.” (McKeeDepo. at Exh. 16.)

Dennis Laurion:

  • When my father answered that a physical therapist and a speech therapist had seen him, and that he was used to being asked his date of birth, asked where he was, and asked to pull or push against the examiner’s hands, Appellant said, “Therapy? You don’t need that!” (AA 28.)

David McKee:

  • “I asked the patient if he had been out of bed that day and after hearing that the therapists had worked with him but had not gotten him out of bed, I asked if he felt up to that and if he wanted to try to stand and walk a little bit.” (McKee Depo. at Exh. 16.)

Dennis Laurion:

  • Patient care complaint: When Plaintiff left five minutes later, he glanced at us and said, “You can go back in.” He didn’t give us status or ask for family observations about my dad’s mental or physical state. He walked to a nurse seated next to a tub of patient charts and stood near her, scowling. (AA 28.)
  • Online posting: Five minutes later, Dr. McKee strode out of the room. He did not talk to my mother or me. (Laurion Depo. at Exh. 1.)

David McKee:

  • Deposition Testimony: After conducting the exam: “I left the patient’s room and went to the nurse’s station,” which closed Dr. McKee’s encounter with Kenneth Laurion, and was the last time Dr. McKee had any contact with the Laurions. (McKee Depo. 56:20 – 22; 58:20 – 60:3.)

On May 3, 2010, respondent received a phone call from Gary Peterson, M.D., Medical Director at St. Luke’s Hospital, concerning appellant’s complaint. (McKee Depo. at Exh. 16.) Respondent answered by letter to Dr. Peterson on May 6, 2010. (Id.) In the letter, respondent acknowledged making statements substantially in accordance with appellant’s recollection, although he disagreed with appellant’s interpretation of his statements and demeanor. (See id.)

By letter to Dennis Laurion dated the next day, May 7, 2010, respondent, through counsel, claimed that appellant had defamed him. (Laurion Depo. at Exh. 6.) He stated he was prepared to pursue “appropriate legal action to protect and preserve his reputation.” (Id.) Respondent stated that, before doing so, he “want(ed) to give you an opportunity to correct th(e) matter” by (a) removing all web postings, and (b) discontinuing further communications. (Id.) The letter concluded with the following threat: “Please be mindful that [respondent) has the means and motivation to pursue all available recourse against you.” (Id.) At no point before sending this letter had respondent made any personal attempt to contact either Kenneth Laurion or appellant regarding appellant’s complaints, much less extend an apology for any offense given. (McKee Depo. at 80:22; 81:21.)

Appellant answered respondent’s threat letter via email on May 7, 2010. Appellant told respondent that he had no intention of posting anything more, and that he would consider the matter finished. (Laurion Depo. at Exh. 7.) Further, appellant requested removal of his online postings. (Laurion Depo. at p. 180 and Exh. 12.)

On May 14, 2010, appellant formalized his previously emailed complaint to the Board of Medical Practice using the Board’s preferred form. (Laurion Depo. at Exh. 14.) By Complaint dated four days later (May 18, 2010), respondent commenced this litigation against appellant. (AA 21.)

ARGUMENT

STANDARD OF REVIEW

On appeal from summary judgment, a reviewing court determines whether there

are genuine issues of material fact, and whether the lower courts erred in the application of the law. Minn. R. Civ. P. 56.03; State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The reviewing court views the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). “Even so, summary judgment is mandatory against a party who fails to establish an essential element of (the) claim, if that party has the burden of proof, because this failure renders all other facts immaterial.” Bebo v. Delander, 632 N.W.2d 732, 737 (Minn. App. 2001)

MINNESOTA STANDARDS FOR DEFAMATION

Minnesota law has created a specific framework for determining whether a statement is defamatory. At issue are six statements made by appellant in relation to respondent’s treatment of appellant’s father. To establish that any of the six statements were capable of defamatory meaning, respondent must show that the statements were ( 1) false; (2) communicated to third parties; and (3) tended to harm respondent’s reputation and lower him in the estimation of the community. Bebo, 632 N.W.2d at 739. Respondent “cannot succeed in meeting the burden of proving falsity by showing only that the statement[s are) not literally true in every detail. Ifthe statement is true in substance, inaccuracies of expression or detail are immaterial.” Jadwin v. Minneapolis Star and Tribune Co., 390 N.W.2d 437, 441 (Minn. App. 1986) (citing Stuempges v.Parke Davis, 297 N.W.2d 252, 255-56 (Minn. 1980). “A statement is substantially accurate if its gist or sting is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced.” Id. Truth is a complete defense, and true statements, however disparaging, are not actionable. Stuempges, 297 N. W.2d at 255. A statement is capable of harming reputation where it exposes an individual “to public contempt or ridicule, and thus induc(ing) an ill opinion of him, and impair(ing) him in the good opinion and respect of others.” Byram v. Aiken, 65 Minn. 87, 87, 67 N.W. 807, 808 (1876).

Further, “expressions of opinion, rhetoric, and figurative language are generally not actionable if, in context, the audience would understand the statement is not a representation of fact.” Jadwin, 390 N.W.2d at 447. Whether a statement can be tnterprnted as stating actionable facts or can be proven false is a question of law for the court. Geraci v. Eckankar, 526 N.W.2d 391, 397 (Minn. App. 1995); McGrath v. TCF Bank Sav., 502 N.W.2d 801, 808 (Minn. App. 1993)

As an example of the sort of utterances Minnesota courts have said cannot be reasonably interpreted as stating facts the statements, in Geraci, that the plaintiff “had poisoned the board,” was “out of control,” “a bad influence,” “emotional,” and “not a team player” were found not actionable because the statements did not contain facts or factual connotations that could be proven false. In McGrath, where bank managers called an employee a troublemaker,” the court determined that the term was not actionable because it lacked precision and specificity, failed to suggest verifiable false facts about the plaintiff, was so ambiguous that it prevented any underlying facts from being inferred from the term, and was accordingly constitutionally protected. 502 2d at 808 n.4. Similarly, in Bebo, 632 N.W.2d at 740, the court found that the terms “a–hole” and “c—sucker” are pure vulgarity, have no basis in fact and are not defamatory as a matter of law. In Lee v. Metropolitan Airport Com., 428 N.W.2d 815, 821 (Minn. Ct. App. 1988) the court held as a matter of law that the terms “fluffy”, “bitch” and “flirtatious” were too imprecise in nature to be actionable defamatory statements.

THE COURT OF APPEALS ERRED IN HOLDING THAT SIX OF ELEVEN STATEMENTS PUBLISHED BY THE APPELLANT PRESENTED FACTUAL ISSUES OF TRUTH OR FALSITY FOR A JURY TO DETERMINE AND CONSTITUTED POTENTIAL HARM TO RESPONDENT’S REPUTATION IN THE COMMUNITY.

The case before the Court is well defined, and the record is clear on the issues in controversy. Fundamentally, the issues before the Court can be boiled down to three main main points. First, when viewed individually, the statements published by appellant are either substantially true, lack specificity and/or are incapable of harming respondent’s reputation. Second, the District Court was correct in holding that, when taken as a whole, appellant’s published statements were protected opinion. Finally, appellant’s letter to St. Luke’s was a privileged communication sent with the intention of expressing a grievance related to patient care, an act supported and encouraged by Minnesota’s Patient Bill of Rights. Each of these points is discussed below.

EACH OF THE SIX STATEMENTS MADE BY APPELLANT WERE EITHER SUBSTANTIALLY TRUE, TOO IMPRECISE TO BE DEFAMATORY OR DID NOT HAVE THE CAPACITY TO HARM RESPONENT’S REPUTATION.

Taken individually, appellant’s statements were either substantially true, too imprecise to be defamatory or did not have the capacity to harm respondent’s reputation. Each of the six statements that the Court of Appeals held were actionable will be addressed individually below.       

(1) (Respondent) stated to (Kenneth Laurion) that he had to ‘spend time finding out if you were transferred or died.”‘ and (2) Respondent stated that “44°/o of hemorrhagic strokes die within 30 days. I guess this is the better option.”

As the Court of Appeals acknowledged, what appellant asserted respondent said and what respondent recalled saying is similar. However, the Court of Appeals concluded that the gist or sting differed because, by his account, respondent intended to express happiness at Kenneth Laurion’s survival. This is to mistake motive for perception. Either version was susceptible to being perceived as insensitive and inapropriate persons in a tense and anxious situation such as the Laurions were in.

Appellant published his recollection that the doctor said, “When I couldn’t find you in ICU, I had to find out if you were transferred or died.” The doctor agrees that he made a substantially similar statement. But he claims he was only trying to make a “jocular comment . . . to the effect of I had looked for him up in the (ICU) and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave (ICU); you either have improved . . . or . . . you’ve died.”

The Court of Appeals noted the doctor’s claim that he was trying to “express happiness” and held that, “(i)f the jury believes respondent, then the challenged statement is not substantially accurate,” and thus potentially defamatory. But whether or not a jury believes the doctor wasn’t trying to be insensitive cannot change the fact that the statement recalled by respondent was substantially the same as the statement published by appellant. Respondent’s subjective intent cannot operate to change what he said or alter appellant’s perception of what was said and how it was said.

Likewise, respondent argues that he did not use 44% when making the second portion of this statement. In his deposition, respondent noted that the figure is actually “probably closer to a third.” (McKee Depo. at 102). As the District Court correctly recognized, appellant’s version of what was said is substantially true by reference to respondent’s own deposition testimony and prior writings. (App. Add. 4 – 5, 14; see also McKee Depo. at 100 – 101 and Exhs. 16 – 17.). As with the ICU statement, the Court of Appeals concluded that there is a fact issue if a jury believes respondent did not intend to have his comment perceived in a negative manner. Respondent’s subjective intent however, does not raise a fact issue where the statement recalled by appellant is substantially true and accurately reflects the essence of respondent’s statement.

Accordingly, it was error for the Court of Appeals to hold that there is a factual question as to the truth or falsity of these statements based upon the subjective intent of respondent in making them.

(3) Respondent “told (Kenneth Laurion) that ‘it doesn’t matter’ that the (hospital) gown was hanging from the neck, without any back.”

This statement is substantially true by respondent’s own admission. (McKee Depo. at 44: 14 – 16 and Exh. 16, p. 1.) Kenneth Laurion had just been moved from the ICU. His wife, son and daughter-in-law were in the room when respondent began his examination by asking Kenneth Laurion to stand up. Kenneth Laurion, concerned over his modesty, informed respondent that the gown he was wearing did not cover his back side. Respondent dismissed these concerns. Whether respondent stated “That doesn’t matter” or “It looks like it’s okay” is immaterial. The fundamental gist of either statement is that respondent was not sensitive to Kenneth Laurion’ s concerns for his modesty.

Simply because it “never crossed (respondent’s) mind   that (appellant) was concerned about his father’s modesty with the back of the gown open” does not make Laurion’s comment on respondent’s insensitivity defamatory. (McKee Depo at Ex. 16.) The Court of Appeal’s conclusion that there is an issue of fact regarding the subjective intent of respondent in making the statement, does not make appellant’s stated impression of the statement defamatory.

(4) Respondent “told (Kenneth Laurion) that ‘you don’t need therapy.”‘

Respondent acknowledged that a conversation related to the therapy appellant’s father had received took place. (McKee Depo. at Exh. 16, p. 1.). After the conversation, appellant and his family were left with the impression that respondent did not think Kenneth Laurion needed therapy.

As published, this statement is too ambiguous and lacking in context to be capable of lowering respondent’s reputation. The statement does not suggest that respondent had reached an incorrect medical conclusion. As the District Court noted, a medical professional might well hold that a patient does not need therapy as a valid medical opinion. (AA 14.). Seen in context, the published statement may convey something of appellant’s sense of the respondent’s brusque approach to his father, but the statement itself is far from sufficient to expose respondent to “public contempt or ridicule.”

Additionally, this statement is too imprecise and lacking in specificity to be deemed defamatory. Kenneth Laurion was in the hospital. He clearly needed, and was receiving medical care.

(5) Respondent) strode out of the room without talking to (Kenneth Laurion’s) wife or (Appellant).”

The Court of Appeals held that there is a factual issue as to whether respondent said anything to appellant and his family when he left Kenneth Laurion’s hospital room. The Court of Appeals held that this statement suggests that respondent is uncaring and as such, is capable of harming his reputation.

Whether or not respondent told the family they could “go back in” is irrelevant, because the gist and sting of this statement is true by respondent’s testimony. (McKee Depo. 56:20 – 22; 58:20 – 60:3.) Respondent did not stop to chat, provide a bit of reassurance, a tincture of hope, or report to the family regarding Kenneth Laurion’s condition upon leaving the room. (McKee Depo. at 56 – 59.) The Laurions were on the floor waiting for the examination to finish. (AA 28.)

Further, this statement is too imprecise and lacking in specificity to be deemed defamatory or to have any adverse impact on respondent’s reputation in the community. A listener or reader of this statement is left with nothing but speculation – did respondent leave the room without speaking to family members intentionally, did respondent even see family members outside the room, did waiting family members attempt to speak with respondent or ask him to stop, was respondent simply distracted by a subsequent matter to attend to? A statement so lacking in context or objective facts that cannot be proven one way or another is too imprecise to be deemed defamatory, does not tend to lower respondent’s reputation within a community, and cannot provide a basis for a defamation claim.

(6) “(Appellant) subsequently stated that ‘Dr. McKee is a real tool!”‘

The Court of Appeals held that there was a question of fact as to whether this statement was actually made and that the statement had the capacity to harm respondent’s reputation. Regardless of the veracity of this statement, however, the phrase “real tool” lacks precision and specificity and, like the terms “troublemaker,” “c—sucker,” “a–hole,” “fluffy,” and “bitch” cannot be defamatory.

The decision of the Court of Appeals in relation to the phrase “real tool” permits the possibility of the imposition of liability for words of expression, rhetoric, and

figurative language that repeated United States Supreme Court and Minnesota decisions have found to be too vague and imprecise to be defamatory. See, e.g., Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S. Ct. 2695, 2706 (1990) (protecting statements that cannot be reasonably interpreted as stating actual facts about an individual); Jadwin v. The Minneapolis Star and Tribune Co., 390 N.W.2d 437, 441 (Minn. App. 1986) (expressions of opinion, rhetoric, and figurative language generally non-actionable); McGrath v. TCF Bank Sav., 502 N.W.2d 801, 808 (Minn. App. 1993) (calling plaintiff a “troublemaker” is non-actionable for lack of specificity and failure to suggest any verifiable false facts); Bebo v. Delander, 632 N.W.2d 732, 740 (Minn. Ct. App. 2001), (the terms “a–hole” and “c—sucker” are pure vulgarity, have no basis in fact and are not defamatory as a matter of law); Lee v. Metropolitan Airport Com., 428 N.W.2d 815, 821 (Minn. Ct. App. 1988)( the terms “fluffy”, “bitch” or “flirtatious” are too imprecise in nature to be actionable defamatory statements).

The Court of Appeals draws an artificial distinction based upon whether appellant or appellant’s nurse friend stated, “Dr. McKee is a real tool,” suggesting that the statement is somehow defamatory if made by a nurse. The distinction has no legal significance. The focus must be on the word itself, not if or by whom the word was uttered. The Court of Appeals acknowledged that neither the court nor the parties could define the precise meaning of the term. Calling someone “a real tool” is a definitive example of an utterance lacking specificity or verifiable false facts about the subject, and calling a doctor “a real tool” is clearly incapable of suggesting anything about his professional capabilities. Indeed, the term “tool” is significantly milder than the terms “a–hole”, “c—sucker”, “fluffy” or “bitch”, all which Minnesota courts have held are not defamatory as a matter of law as their meaning is too imprecise.

ONLINE REVIEWS CONSTITUTE OPINION WHICH IS PROTECTED UNDER THE FIRST AMENDMENT.

Taken as a whole, appellant’s statements constitute protected opinion under the first amendment of the Constitution. When the respondent first encountered appellant and his family, the atmosphere in Kenneth Laurion’s hospital room was tense and anxious. Respondent, rather than comforting and communicating with appellant and his family, made “jocular” comments about Kenneth Laurion’s options as an ICU patient that were not well received and, in appellant’s view, acted insensitively to his father while appellant was in the room. To express his opinion about respondent’s bedside manner, appellant wrote to a representative of St. Luke’s Hospital and posted comments on two “rate your doctor” websites.

Appellant is entitled to voice his opinion in relation to respondent’s conduct. Jadwin, 390 N.W.2d at 447. In cases appropriately governed by constitutional law principles, the Supreme Court has found statements not actionable in defamation if they fall into the categories of hyperbole or personal expression, i.e., statements that cannot reasonably be interpreted as stating actual facts about a person. Mllkovich v. LorainJournal Co., 110 S. Ct. 2695 (U.S. 1990). Taken as a whole, appellant’s comments reflect his subjective impression of respondent’s demeanor and conduct toward his father. Appellant’s statements paint a picture of appellant’s subjective view of respondent’s bedside manner and should be interpreted as the personal expression of appellant rather than a factual statement about respondent. The District Court correctly held that, in that context, appellant’s statements were protected opinion.

The context in which people view ratings websites is also critical. The very nature of online forums, such as review websites, inherently frames comments in the context of expression of individual opinion and not as fact. The allegedly defamatory statements made by appellant are significantly tamer than the language contained in the average Amazon.com product review. When individuals peruse ratings websites, they are aware that what they are reviewing are commenters’ subjective personal expressions. On any given product or service, there are likely good reviews, average reviews and negative reviews. The average person viewing such a site is able to parse through various opinions and come to his/her own conclusion.

Minnesota courts have not addressed defamation as it relates to online reviews of services, products or professionals. Courts in numerous other jurisdictions, however, have addressed the issue of defamation and free speech rights in cyberspace in the context of review of products and services and have almost unanimously upheld the fundamental right of the individual to express opinions online.

In Barna Log Homes of Ga., Inc. v. Wischmann, 310 Ga. App. 844 (Ga. Ct. App. 2011), an individual posted a review to the website of a log home manufacturer , which stated in relevant part “(n)o problem with Barna directly, but the distributor, Barna Log Homes of GA, was grossly overcharging for the materials and did a poor job on the engineering overview and window specifications.” Id. at 845. The log home manufacturer brought suit alleging that the review constituted actionable defamation. Id. at 844. The Court found in favor of the reviewer, holding that the individual’s statements that the corporation was grossly overcharging and did a poor job on the engineering overview and window specifications were his opinions of those matters based on his experience working with the corporation. Id. at 847-848.

In Field v. Grant, 30 Misc. 3d 1217A (N.Y. Sup. Ct. 2010), an attorney’s former client posted unflattering comments relating to his representation on several ratings websites. The comments included the following: [[ Gary P. Field Fool Attorney who practices Fraud . . . Gary Field a/k/a ‘the Walking Fool’ is the most worst attorney licensed to practice in the State of New York . . . Overall, he is dumb . . .I hired Gary P. Field and he screwed up my divorce. Residence (sic) of Suffolk County have a right to expect that a witness/lawyer who testified before the Supreme Court will tell the truth. The court system cannot function if witnesses/lawyers are not held accountable for false statements made under oath. If a witness makes a choice to ignore his obligation to testify honestly there must be consequences.]] Id. The attorney brought suit against his former client alleging that the online postings were defamatory. Id. The Court held that despite the unflattering nature of the reviews: [[(T)he complained of comments purportedly posted by the defendant on the identified web pages are not actionable as they constitute mere opinions of the writer. Viewed in the context in which they were relayed and the web-site forums on which they were posted, the comments constitute pure opinions which cast general reflections upon the plaintiff s character and/or qualities which are not a matter of such significance and importance so as to amount to actionable defamation . . .]] Id. See also Penn Warranty Corp. v. DiGiovanni, 10 Misc. 3d 998 (N.Y. Sup. Ct. 2005)(individual who designed “gripe site” alleging that company participated in deceptive business practices was expressing opinion and was not liable for defamation); Guerrero v. Carva, 10 A.D.3d 105, 779 N.Y.S.2d 12, 17 (1st Dep’t 2004) (recognizing constitutional protection for statements of opinion in context of internet product reviews); Hammer v. Trend!, 2002 U.S. Dist. LEXIS 25487 (E.D.N.Y. Oct. 10, 2002) (author failed to demonstrate a likelihood of success on the merits on his defamation claims because the online reviews of his book were expressions of opinion).

In Horizon Group Management, L.L.C. v. Bonnen, 2009L008675 (Circ. Ct. Cook County, Ill., filed July 20, 2009), a tenant composed the following Tweet: “@JessB123 You should just come anyway. Who said sleeping in a moldy apartment was bad for you? Horizon realty(sic) thinks it’s ok.” The landlord sued the tenant under a theory of libel per se, claiming that the alleged defamatory statement damaged its business reputation. Id. The tenant filed a motion to dismiss, claiming that the “statement was made in a social context where the average reader would understand that the statement was (the tenant’s) opinion, not an objectively verifiable fact.” Id. The tenant’s motion to dismiss was granted on the basis that her tweet was protected opinion.

The Grant court succinctly framed the issue when it held that “(v)iewed in the context in which they were relayed and the website forums on    which they were posted, the comments constitute pure opinions. . .” This is the context in which appellant’s comments were published. Readers of web rating sites expect to see opinions in the form of debate, disagreement, and back and forth commentary. Given these expectations, on the part of both readers and contributors, readers are unlikely to see such postings as factual.

Under the framework suggested by the Court of Appeals, a dissatisfied diner could be sued for defamation after leaving a two star review on the internet complaining that “my food was cold and the service was incompetent.” Publishing one’s opinion on the Internet should be treated no differently than water cooler exchanges in determining whether a statement is defamatory. Whether a statement is published to three people or three million, the analysis remains the same. The District Court was correct – there has to be some breathing space for what most people see as the personal expression of subjective views.

APPELLANT’S LETTER TO ST. LUKE’S IS SUBJECT TO A QUALIFIED PRIVILEGE AND IS SUPPORTED BY MINNESOTA’S HEALTHCARE BILL OF RIGHTS.

Appellant’s letter to St. Luke’s is not only subject to a qualified privilege, but is also fully compatible with the legislative policy of the State of Minnesota as outlined in Minnesota’s Health Care Bill of Rights.

“One who makes a defamatory statement will not be held liable if the statement is published under circumstances that make it qualifiedprivileg and if the privilege is not abused.” Bol v. Cole, 561 N.W.2d 143, 149 (Minn. 1997). Qualified privilege applies when a court determines that statements made in particular contexts or on certain occasions should be encouraged despite the risk that the statements might be defamatory. Id. For a defamatory statement to be protected by such a privilege, it must be made in good faith and must be made upon a proper occasion, from a proper motive, and must be based upon reasonable or probable cause. Id.

Appellant’s letter to St. Luke’s was sent in good faith with the stated motive of informing St. Luke’s of appellant’s concerns over the care his father received after spending days in the ICU recovering from a hemorrhagic stroke. The letter to St. Luke’s was sent in the hope that future patients would not undergo the indignities appellant perceived his father had endured. Accordingly, considering the obvious tenor and purpose of appellant’s statements regarding respondent’s treatment of his father, all of the statements were qualified privilege.

Minnesota’s Health Care Bill of Rights encourages patients, guardians, or other interested persons, i.e., family members, to voice grievances-to anyone they deem appropriate-when patients are not treated with courtesy and respect. Minn. Stat. § 144.651, subds. 1, 5, 19, and 20. The legislature, in expressing its intent behind the statute stated that: [[ It is the intent of the legislature and the purpose of this section to promote the interests and well being of the patients and residents of health care facilities . . . . Any guardian or conservator of a patient or resident or, in the absence of a guardian or conservator, an interested person, may seek enforcement of these rights on behalf of a patient or resident.]] Id. at subd. 1. Appellant was frustrated with what in his opinion was respondent’s insensitive treatment of his father in front of his anxious and concerned family. Appellant voiced his frustrations by writing a letter to St. Luke’s, which he copied to other health care organizations, and by publishing his views on the internet. Appellant’s letter is the kind of grievance that Minn. Stat. § 144.651 is meant to protect. The Health Care Bill of Rights specifically encourages individuals such as appellant to voice their concerns over patient care. Appellant was doing this and nothing more.

CONCLUSION

For the foregoing reasons, appellant Dennis Laurion respectfully requests that this Court reverse the Court of Appeal’s decision regarding the six statements in issue and remand the case to the District Court for reinstatement of its judgment in favor of the appellant.

Dated this  24th day of April, 2012.

Hanft Fride

A Professional Association

By _________________________

John D. Kelly

Attorney Registration 54732

David L. Tilden

Attorney Registration 388539

Attorneys for Appellant

Dennis K. Laurion

1000 U. S. Bank Place

130 West Superior Street

Duluth, Minnesota 55802-2094

(218) 722-4766

Full Defendant Brief in PDF Format


Defendant Dennis Laurion’s Web Posting

Defendant Dennis Laurion’s Patient Complaint

Plaintiff David McKee’s Reply To Patient Complaint

Plaintiff David McKee’s Cease And Desist Letter To Defendant Dennis Laurion

Defendant Dennis Laurion’s Complaint To Minnesota Board Of Medical Practice

Plaintiff David McKee’s Complaint To Sixth Judicial District Duluth Court

Plaintiff David McKee’s Response To Minnesota Board Of Medical Practice

Defendant Dennis Laurion’s Answer To Plaintiff David McKee’s Complaint

Defendant Dennis Laurion’s Motion For Summary Judgment

Defendant Dennis Laurion’s Deposition Extracts

Plaintiff David McKee’s Deposition Testimony About Circumstances Before Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Circumstances After Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony In Response To Questions By Marshall Tanick

Affidavits By Defendant Dennis Laurion’s Parents

Defendant Dennis Laurion’s Supplemental Motion For Summary Judgment

Plaintiff David McKee’s Motion To Oppose Summary Judgment

Defendant Dennis Laurion’s Reply Memo In Support Of Motion For Summary Judgment

Sixth Judicial District Court’s Order On Motion For Summary Judgment

Plaintiff David McKee’s Appeal Of Order On Motion For Summary Judgment

Plaintiff David McKee’s Brief To Minnesota Court Of Appeals

Defendant Dennis Laurion’s Brief To Minnesota Court Of Appeals

Plaintiff David McKee’s Reply Brief To Minnesota Court Of Appeals

Minnesota Court Of Appeals Order To Strike Portion Of Plaintiff David McKee’s Reply Brief

Minnesota Court Of Appeals Announces Decision

Defendant Dennis Laurion’s Petition For Review By Minnesota Supreme Court

Plaintiff David McKee’s Opposition To Review By Minnesota Supreme Court

Defendant Dennis Laurion’s Brief To Minnesota Supreme Court

Plaintiff David McKee’s Brief To Minnesota Supreme Court

Defendant Dennis Laurion’s Reply Brief To Minnesota Supreme Court

Minnesota Supreme Court Decision On David McKee MD V. Dennis K. Laurion

David McKee MD v. Dennis Laurion 2010

David McKee MD v. Dennis Laurion 2011

David McKee MD v. Dennis Laurion 2012

David McKee MD v. Dennis Laurion 2013

McKee V Laurion Is A Textbook Case

McKee V. Laurion Defendant Responds To Plaintiff’s Supreme Court Brief

JUNE 1, 2012

No.  All-1154 STATE OF MINNESOTA IN SUPREME COURT

David McKee, M.D., Respondent, V. Dennis  K.  Laurion,   Appellant.

REPLY BRIEF OF APPELLANT DENNIS K. LAURION

John D. Kelly Attorney Reg. No. 54732 and David L. Tilden Attorney Reg. No. 0388539
HANFT PRIDE, A Professional Association, 1000 U.S. Bank Place
130 West Superior Street Duluth, MN  55802-2094
218/722-4766
Attorneys for  Appellant

Marshall H. Tanick Attorney Reg. No. l 08303 and Teresa J. Ayling Attorney Reg. No. 157478
220 South Sixth Street
Minneapolis, MN  55402-4511 612/339-4295
Attorneys for  Respondent

ARGUMENT

I.    THE SIX STATEMENTS AT ISSUE ARE SUBSTANTIALLY TRUE, TOO IMPRECISE TO BE DEFAMATORY OR ARE NOT CAPABLE OF HARMING RESPONDENT’S PROFESSIONAL REPUTATION.

Rather than addressing the substantive arguments raised by appellant in his brief, respondent spends the majority of his brief attempting to portray Mr. Laurion as a vindictive and spiteful man with the avowed goal of destroying Dr. Mckee’s professional reputation and injuring his standing in the medical community.  Respondent asserts that each of six statements made by appellant constitutes an accusation of “aberrant” behavior which implies that respondent endangered and purportedly degraded his own patients. While it is entirely possible that such eccentric characterizations of the events at issue represent respondent’s own subjective view of Mr. Laurion’s actions, the simple facts of the case do not support his assertions.  Appellant’s statements, taken at face value, simply reflect the reactions of a concerned son who was offended at what he perceived as respondent’s insensitive conduct and statements while he was seeing his father. In his brief, respondent takes the position that each of the six statements left standing after the Court of Appeal’s decision were a.) false and b.) defamatory as a matter of law.  Taken individually, however, appellant’s statements were either substantially true, too imprecise to be defamatory or did not have the capacity to harm respondent’s reputation and thus, were not defamatory. As discussed in appellant’s initial brief, the statements published by appellant are substantially true by respondent’s own admission.  Respondent’s blanket denial of the truth of the statements made by appellant rings hollow in the light of respondent’s deposition testimony.  Although the parties disagree about minor differences, such as the inclusion of percentages or the use of a word here or a word there, the deposition testimony of both appellant and respondent shows that statements virtually identical to those published by appellant were made by respondent while he was evaluating appellant’s father.  For example, appellant published the statement “When you weren’t in the ICU, I had to find out whether you had transferred or died.” AA 28.  In his deposition, respondent concedes that he stated: I made a jocular comment . . . to the effect of I had looked for [Kenneth Laurion] up in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you’re someplace like this or you leave because you’ve died. (McKee Depo. at 40.)

The chart contained in appellant’s initial brief illustrates that the statements published by appellant and the statements respondent admits to making are functionally identical.  Statements which are substantially true, by carrying the same gist, are not defamatory.  Jadwin v. Minneapolis Star and Tribune Co., 390 N.W.2d 437, 441 (Minn. App. 1986). The record shows that the statements made by appellant are substantially similar to the statements made by respondent and are not defamatory. Likewise, respondent fails to rebut the argument that several of the statements are too imprecise to be defamatory.  Statements such as “you don’t need therapy” or he “strode out of the room without talking” are so vague and lacking in context or meaning that they cannot be deemed defamatory under Minnesota law.

Respondent also argues that each of the six statements tends to harm his professional reputation.  Respondent argues that  appellant’s statements paint a picture of an “aberrant” physician endangering the lives of his patients as a result of his purposeful patient mismanagement.  On their face, appellant’s statements paint no such picture.  At worst, appellant’s statements constitute a critique of what he perceived as Dr. McKee’s poor bedside manner.  None of the statements accused Dr. McKee of being a poor physician or providing appellant’s father with improper medical treatment.  Such vague statements made in the course of treating appellant’s father are not concrete enough to harm respondent’s reputation in the community and are not defamatory.

Finally, respondent once again raises the specters of the alleged “phantom nurse” and the much debated term “real tool.” Respondent alleges that the existence of the nurse, and whether she uttered the phrase “real tool”, constitute fact questions which should   go to the jury. Whether the statement is attributable to appellant himself, a nurse or someone else is ultimately irrelevant. The distinction of who made the statement has   no legal significance and does not create a factual question for the jury. The focus must be on the word itself, not if or by whom the word was uttered. As discussed in great detail in appellant’s previous submission, words much more offensive than ” real tool” such as “a-hole”, “c—sucker”, “fluffy” or “bitch” are not defamatory as a matter of law in Minnesota as their meaning is too imprecise. Likewise, the word “real tool,” by whomever uttered, is not defamatory as a matter of law.

II.    TAKEN AS A WHOLE, THE SIX STATEMENTS ARE PROTECTED   OPINION.

The District Court was correct when it held that appellant’s statements, taken as a whole, are protected opinion and therefore not defamatory.  Conversely, respondent argues that appellant’s statements cannot be construed as opinion as they constitute verifiable fact.

The Supreme Court has found statements not actionable in defamation if they fall into the categories of hyperbole or personal expression.  Milkovich v. Lorain Journal Co., 110 S. Ct. 2695 (U.S. 1990).  When viewed as a whole, appellant’s comments reflect his subjective impression of respondent’s demeanor and conduct toward his father. Appellant’s statements represent a personal view of respondent’s bedside manner and should be interpreted as the personal expression of appellant rather than a factual statement about respondent. Context is also critical.  The vast majority of the dispute between the parties  centers upon statements published by appellant on several doctor rating websites.  As was noted in the well-reasoned decision in Field v. Grant, 30 Misc. 3d 1217A (N.Y. Sup. Ct. 2010): [The]very nature of online forums, such as review websites, inherently frames comments in the context of expression of individual opinion and not as fact. . . That is, online review websites contain a spectrum of good, bad and mixed opinions on various services or products.

Many reviews contained on doctor rating websites are not laudatory.  The sentiments expressed in those reviews, however, are personal opinion based upon the reviewer’s subjective impression of his or her time with the physician.  Generally, mixed in with these critical reviews are contrary opinions praising the physician as a capable and compassionate medical care provider.  Review websites are online marketplaces of opinion, where viewpoints can be traded freely.  Because of the broad spectrum of sentiments, however, these sites must be taken with a grain of salt. Under the framework proposed by respondent, if a patient left a review stating that the “doctor did not listen to a word I said,” the review could be deemed defamatory if the doctor could show that she actually did listen to at least “a” word said by this patient. Holding that appellant’s statements are not protected could subject individuals who were merely exercising their right of personal expression online to defamation lawsuits.  The District Court was right – there has to be some breathing space for what most people see as the personal expression of subjective views.  As such, the District Court was correct in holding that, when viewed as a whole, appellant’s statements are protected opinion.

III.    THE ISSUE OF PRIVILEGE AND THE HEALTHCARE BILL OF RIGHTS IS PROPERLY BEFORE THE COURT.

Respondent asserts that appellant’s arguments regarding the Health Care Bill of Rights fall outside of the scope of appellate review.  Respondent further argues that even if the Health Care Bill of Rights provided appellant with a privilege, appellant’s allegedly “wanton” conduct defeated any immunity he may have had.  Both of these arguments are without merit.

The issue of whether appellant’s statements were privileged under Minnesota’s Patient Health Care Bill of Rights is properly before this Court.  Minn. R. Civ. App. P. 110.01 provides that the “papers filed in the trial court, the exhibits, and the transcript of  the proceedings, if any, shall constitute the record on appeal in all cases.” The comments following the Rule note that the “original trial court record is the official and only record on appeal.” Id. at 1967 Adv. Comm. Note.  Appellant’s Memorandum in Support of Motion for Summary Judgment dealt extensively with the issue of privilege as well as the Health Care Bill of Rights.  AA 12-15. Appellant again raised the issue of the Health Care Bill of Rights, without objection from respondent, in his submission to the Court of Appeals.  Appellant’s memorandum is part of the trial court record and is within the scope of allowable appellate review. In order for a privilege to be defeated, it must be shown that a party “made a statement from ill will and improper motives, or causelessly and wantonly for the purpose of injuring the plaintiff.” Stuempges v. Parke, Davis & Co., 297 N.W.2d 252 (Minn. 1980). Although respondent attempts to frame appellant as vindictive, there is no evidence to support this assertion.  As discussed, supra, both parties agree on the general content of the statements made by respondent and later published by appellant.  Although there is some bickering over wording and the inclusion of a percentage, these disputes do not alter the central fact that the statements are substantially similar. There is no evidence, aside from respondent’s unsupported conjecture, that appellant published the statements with “ill will.” Rather, the content of the letter to the hospital, the online reviews and appellant’s deposition testimony make it clear that appellant’s statements were published because he was upset at what he perceived as respondent’s insensitive treatment of his father.  He wanted respondent, and other physicians, to remember that their patients are people with feelings and to treat them accordingly.  There is no evidence that appellant published the statements with malicious intent toward respondent.  Absent such evidence, appellant is entitled to a privilege for the statements he published.

CONCLUSION

For the foregoing reasons, appellant Dennis Laurion respectfully requests that this Court reverse the Court of Appeal’s decision regarding the six statements in issue and remand the case to the District Court for reinstatement of its judgment in favor of the appellant.

Dated this 1st day of June, 2012.

HANFT FRIDE,
A Professional Association
John D. Kelly
Attorney Registration No. 54732
David L. Tilden
Attorney Registration No. 388539
Attorneys for Appellant Dennis K. Laurion
1000 U.S. Bank Place
130 West Superior Street Duluth, Minnesota 55802-2094
(218) 722-4766

Full Brief in PDF Image Format


Defendant Dennis Laurion’s Web Posting

Defendant Dennis Laurion’s Patient Complaint

Plaintiff David McKee’s Reply To Patient Complaint

Plaintiff David McKee’s Cease And Desist Letter To Defendant Dennis Laurion

Defendant Dennis Laurion’s Complaint To Minnesota Board Of Medical Practice

Plaintiff David McKee’s Complaint To Sixth Judicial District Duluth Court

Plaintiff David McKee’s Response To Minnesota Board Of Medical Practice

Defendant Dennis Laurion’s Answer To Plaintiff David McKee’s Complaint

Defendant Dennis Laurion’s Motion For Summary Judgment

Defendant Dennis Laurion’s Deposition Extracts

Plaintiff David McKee’s Deposition Testimony About Circumstances Before Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Circumstances After Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony In Response To Questions By Marshall Tanick

Affidavits By Defendant Dennis Laurion’s Parents

Defendant Dennis Laurion’s Supplemental Motion For Summary Judgment

Plaintiff David McKee’s Motion To Oppose Summary Judgment

Defendant Dennis Laurion’s Reply Memo In Support Of Motion For Summary Judgment

Sixth Judicial District Court’s Order On Motion For Summary Judgment

Plaintiff David McKee’s Appeal Of Order On Motion For Summary Judgment

Plaintiff David McKee’s Brief To Minnesota Court Of Appeals

Defendant Dennis Laurion’s Brief To Minnesota Court Of Appeals

Plaintiff David McKee’s Reply Brief To Minnesota Court Of Appeals

Minnesota Court Of Appeals Order To Strike Portion Of Plaintiff David McKee’s Reply Brief

Minnesota Court Of Appeals Announces Decision

Defendant Dennis Laurion’s Petition For Review By Minnesota Supreme Court

Plaintiff David McKee’s Opposition To Review By Minnesota Supreme Court

Defendant Dennis Laurion’s Brief To Minnesota Supreme Court

Plaintiff David McKee’s Brief To Minnesota Supreme Court

Defendant Dennis Laurion’s Reply Brief To Minnesota Supreme Court

Minnesota Supreme Court Decision On David McKee MD V. Dennis K. Laurion

David McKee MD v. Dennis Laurion 2010

David McKee MD v. Dennis Laurion 2011

David McKee MD v. Dennis Laurion 2012

David McKee MD v. Dennis Laurion 2013

McKee V Laurion Is A Textbook Case

McKee V. Laurion Respondent Brief To Minnesota Supreme Court

MAY 24, 2012

A11-1154

State of Minnesota

In Supreme Court

DAVID MCKEE, M.D., Respondent V. DENNIS LAURION, Appellant

RESPONDENT’S BRIEF, ADDENDUM AND APPENDIX

MANSFIELD, TANICK, AND COHEN P. A.

Marshall H. Tanick (#108303)

Teresa J. Ayling (#157478)

1700 U.S. Bank Plaza South

220 South Sixth Street

Minneapolis, Minnesota, 55402-4511

Tel: (612) 339-4295

Fax: (612) 339-3161

Attorneys for Respondent

David McKee, M.D.

HANFT FRIDE,

A Professional Association

John D. Kelly (#54732)

Nathan N. LaCoursiere (#0388349)

1000 U.S. Bank Place

130 West Superior Street

Duluth, MN 55802

Tel: (218) 722-4766

Fax: (218) 529-2401

Attorneys for Appellant

Dennis K. Laurion

STATEMENT OF ISSUES

Did the Court of Appeals correctly reverse Summary Judgment on grounds that six specific statements are actionable as libel?

How Issue Was Raised Below: The issue was raised in the Trial Court in opposing Summary Judgment and on appeal before the Court of Appeals.

Ruling Below: The Trial Court granted the Appellant’s Motion for Summary Judgment dismissing the action, which the Court of Appeals reversed.

How Issue Was Preserved for Appeal: The issue was briefed and argued in the Trial Court in the Memorandum in Opposition to Motion for Summary Judgment, and in briefs and oral argument before the Court of Appeals.

Apposite cases:

Melina v. Chaplin, 327 N.W.2d 19 (Minn. 1982);

Morey v. Barnes, 212 Minn. 153, 2 N.W.2d 829 (1942);

Jadwin v. Star & Tribune Co., 390 N.W.2d 437 (Minn. Ct. App. 1986); and

Entravision Commc ‘ns Corp. v. Belalcazar, 99 S.W.3d 393 (Tex. App. 2003).

* * * * * * * *

Does a qualified privilege from defamation exist under the Health Care Bill of Rights for the statements?

How Issue Was Raised Below: The issue was raised in the Trial Court, but not in the Court of Appeals.

Ruling Below: The issue was not ruled upon by the Trial Court and was not raised in the Court of Appeals.

How Issue Was Preserved for Appeal: It was not. The issue was not raised in Appellant’s Petition for Review.

Apposite Cases:

 City of West St. Paul v. Krengel, 768 N.W.2d 352 (Minn. 2009);

Crossroads Church of Prior Lake Minn. v. County of Dakota, 800 N.W.2d 608 (Minn. 2011);

Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991);

Minn. Stat.§ 144.651;

Minn. Stat.§ 147.121;

Minn. Stat.§ 145.63.

* * * * * * * *

STATEMENT OF THE CASE

This case was brought by a Duluth doctor against the son of a patient he briefly treated after a stroke in April, 2010. Dr. David McKee, a neurologist, was accused by Dennis Laurion in multiple public internet postings and in numerous emails and letters to his professional peers and organizations, of aberrant behavior and improper treatment that endangered the patient. Dr. McKee sued Laurion for Defamation and Interference with Business in St. Louis County District Court.

The Trial Court granted Summary Judgment on grounds that some of the statements made by Laurion were opinions, that the gist or sting of some of the statements was true, that some were too vague to have a defamatory meaning, and others left “nothing for the jury to decide.” Resp. App. 13-18. The Trial Court also dismissed the Interference claim.

Dr. McKee appealed to the Court of Appeals, which reviewed and remanded, holding that six particular statements were actionable as defamation. Resp. Add. 13. It reasoned that a trier-of-fact could find them to be libelous and award damages to Dr. McKee. It also upheld dismissal of the Interference claim. Resp. Add. 14.

Laurion’s Petition for Review as to the defamation claim was granted by this Court, to determine whether any of the six specific statements could be defamatory. No other issues have been raised by the parties.

STATEMENT OF THE FACTS

The Parties

Dr. McKee is a highly-regarded neurologist who has been practicing medicine for 18 years in Duluth and the surrounding community. He is a member of a medical clinic and has hospital privileges at St. Luke’s Hospital, among other places. AA-446; Resp. App. 49-50 (1) .

Defendant Laurion’s father was briefly attended to by Dr. McKee when he was a patient at St. Luke’s Hospital, while recovering from a hemorrhagic stroke in April, 2010.

The April 19th Incident

The elder Laurion suffered a stroke and was hospitalized in St. Luke’s Intensive Care Unit (ICU) over the weekend of April 17-18, 2010. After two days in ICU, he was moved to another unit around dinner time on Monday, April 19th.  Defendant Laurion, along with his wife and mother, came to visit his father, about the time of the father’s transfer. Dr. McKee, who had been asked by the patient’s primary physician to assess him, came into the room a short while later. AA-447, 448.

Dr. McKee conducted a routine neurological examination, consistent with normal medical practices, which took about 20 minutes. AA-448, 449, 454-458. After the examination, he discussed with the patient his assessment of his medical condition and ongoing medical care, and asked if the patient had any questions. AA-458.

What happened during the exam is hotly disputed and forms the basis for this lawsuit. The parties present two starkly different factual accounts. Dr. McKee maintains that nothing exceptional occurred. Laurion portrays a markedly different encounter, describing what he terms a “factual recitation” of events in which Dr. McKee treated his father and the family improperly. AA-022, 308, 314, 316-17, 353, 355.

Footnote 1: “AA-” refers to Laurion’s Appendix. “Resp. Add. “is the Addendum to Dr. McKee’s brief. “Resp. App.”refers to the Appendix hereto. “Tr.” refers to the Transcript of the hearing on the Motion for Summary Judgment.

The patient was released from the hospital the next day, April 21, 2010. The following day, April 22, 2010, Laurion maintains that he was at a post office in Duluth when he ran into a woman he described as a “friend” who worked as a nurse at another Duluth hospital where Laurion himself had once worked for about seven years. According to Laurion, he recounted his father’s treatment to the “friend,” who “guessed” that the physician was Dr. McKee, whom she described to Laurion as a “real tool,” a derogatory phrase that Laurion later published on the internet and in correspondence to others. Laurion later acknowledged that he should not have used that remark in his subsequent Internet postings and other communications. AA-317-18, 350.

There are three versions of what occurred with Laurion’s supposed nurse “friend.” Laurion testified that the nurse “friend” guessed that he was referring to Dr. McKee but that he did not confirm it. AA-318. But in an internet posting, Laurion says that he affirmatively “mentioned Dr. McKee’s name” to the nurse. AA-358, 359, 360, 441. Laurion’ s wife, to whom he described the incident, says that Laurion admitted confirming to the “friend” that the attending physician was Dr. McKee. Resp. App. 47. At any rate, Laurion used the derogatory statement of the purported nurse “friend” in his website postings and in his multiple letters.

This “friend” has never been named or identified by Laurion. There is strong reason to believe she is fictitious. Despite investigative efforts on behalf of Dr. McKee, she could not be found. Resp. App. 3~5. Even the Trial Court, in dismissing the case, questioned whether the nurse “friend” really exists or was fabricated by Laurion. In his Memorandum, the Judge noted that Laurion has been “unable to even provide a very good description of her [the nurse], much less a name or other identifying information.” Resp. App. 6.

The Defamatory Diatribes

Laurion, a former Boy Scout, did not do a good deed when he engaged in defamation against Dr. McKee. Two days after the ex-boy scout’s supposed encounter with the phantom “nurse,” he posted vitriolic accounts about Dr. McKee, which Laurion described as “factual recitations,” on multiple internet web sites, including: http://www.vitals.com; http://www.drscore.com; http://www.insiderpages.com; and http://www.healthgrades.com. AA-32-33, AA-326-328. Each of these websites contains evaluative information about physicians (and others) and is available to the general public via the internet. AA-327, 358-360. Laurion followed up these postings with letters to a dozen (or more) entities, including peer organizations in the medical profession,containing a substantially similar “factual recitation.” AA-3 3 9, 400-4 23.2 These entities include: American Academy Of Neurology; American Neurology Association; Attending Physician Craig Gilbertson, M.D.; Lake Superior Medical Society; Minnesota Medical Association; Minnesota Quality Improvement Organization; Office Of Quality Monitoring Of The Joint Commission Of The American Hospital Organization; The Patient’s Action Network Of The American Medical Association; St. Louis County Public Health And Human Services Advisory Council; St. Luke’s Hospital Patient Advocates; Minnesota Department Of Health; Office Of The Medicare Ombudsman; And The American Board Of Psychiatry & Neurology, Inc. AA-396, 400-423.

Laurion acknowledges making at least two general postings, perhaps more, on April22, 2010.3 These undisputed postings were made on the Insiderpages.com website, which contains profiles about individuals, and Vitals.com, which has biographical information about individuals in the medical profession, such as Dr. McKee. AA-327. The internet postings were nearly identical. They stated: “My father spent 2 days in ICU after a hemorrhagic stroke. He saw a speech therapist and physical therapist for evaluation. About 10 minutes after my father transferred from ICU to a ward room, Dr. David C. McKee walked into a family visit with my dad. He seemed upset that my father had been moved. Never having met my father or his family, Dr. McKee said, ‘When you weren’t in ICU, I had to spend time finding out if you transferred or died.’ When we gaped at him, he said, ‘Well, 44% of hemorrhagic strokes die within 30 days. I guess this is the better option.’ My father mentioned that he’d been seen by a physical therapist and speech therapist for evaluation. Dr. McKee said, ‘Therapists? You don’t need therapy.’ He pulled my father to a sitting position and asked him to get out of bed and walk. When my father said his gown was just hanging from his neck without a back, Dr. McKee said, ‘That doesn’t matter.’ My wife said, ‘It matters to us; let us go into the hall.’ Five minutes later, Dr. McKee strode out of the room. He did not talk to my mother or me. When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, “Dr. McKee is a real tool!””

Footnote 2: Laurion and his wife also sent separate complaints to the Minnesota Board of Medical Practice, but none of the claims in this case extends to communications to that body or any other government licensing entity. The claims refer only to website postings and communications made to nongovernmental entities and physician peers. Laurion asserts he did not write, but only proofread his wife’s complaint. AA-355. His wife says he wrote it. Resp. App. 46. While not germane to the defamation claim, this intra-spousal discrepancy further reflects Laurion’s lack of veracity.

Footnote 3: Laurion maintains that he managed to post his “factual recitation” on only two websites, insiderpages.com and vitals.com, and was unable to access the other two. AA-325. But prior to this lawsuit, in a letter to McKee’s attorney, he said he posted on four web sites. AA-32-33. He now retracts that assertion that he posted only on two sites. Appellant’s Brief, p. 6, n. 1. AA-358-59. (AA-360 is very similar.)

Similar statements, with some embellishments and more inconsistencies, were embodied in the longer diatribes he sent to the dozen or more professional organizations and peer agencies. AA-400-423.  Laurion described his diatribes in the internet postings and the letters including the precise quotations ascribed to Dr. McKee as “an accurate account of what happened” during Dr. McKee’s examination of his father. AA-326. His avowed purpose of the postings and correspondence was to degrade Dr. McKee in the eyes of others, including fellow physicians and patients. He made his internet postings and wrote his letters after he was upset at seeing Dr. McKee’s good reputation on other websites, and his goal was to debase those views. He hubristically proclaimed that he hoped “someone would say [to Dr. McKee], ‘You should be very careful how you address your patients so that we don’t get these complaint letters.”‘ AA-337.

The following features are undisputed in this case:

(1) Laurion’ s statements constitute a ”factual recitation … concerning Dr. McKee’s conduct” as alleged by Laurion. Laurion characterized his remarks this way in his Answer and twice in his deposition: AA-317; 355. He also deseribes his statements as “an accurate account of what happened.” AA-326.

(2) Laurion’s remarks are very specific, including explicit verbatim quotations ascribed to Dr. McKee and, in the concluding line, the phantom nurse “friend.”

(3) Nearly all of the assertions are disputed by Dr. McKee, who claims that the portrayal is false and the incidents did not occur as asserted in Laurion’s “factual recitation.”

(4) Several of the remarks in the internet postings and letters are palpably false and fabricated; ascribing to Dr. McKee a statement about the statistical rate of mortality of those in the patient’s condition; asserting that the physician stalked out of the treatment room without talking to the family; and quoting the “phantom,” apparently non-existent, “nurse” making a pejorative remark about Dr. McKee.

(5) All of the statements were published to third parties, indeed to the world at large. Laurion acknowledges that the statements were “actually posted” on the two internet sites and were published to third parties, and that the website publications were available to anyone in the world with a computer. AA-327.

( 6) People actually viewed the website postings, reacted to it, and informed others about it. AA-449-50.

(7) Laurion’s deprecatory and pejorative statements were for the express purpose of portraying the episode involving Dr. McKee in a negative light to the world at large. AA-326-27, 337, 350.

 McKee’s Mitigation

Dr. McKee became aware of the internet postings when a patient saw one and called it to his attention. He then checked them out himself. AA-449-50. He also learned of Laurion’s libelous letters to various professional organizations and peer groups. AA-449-50.  The doctor tried to mitigate the harm by sending a cease-and-desist letter to Laurion. AA-393-94. Laurion responded by identifying four websites on which he placed the postings (not the two he later claimed in the lawsuit), as well as dozens of entities to whom he sent the deprecatory letters. AA-395-96. Laurion stated he would try to remove the website postings, that he was “no longer inclined to discuss Dr. McKee’s behavior with anybody,” and would “consider this matter finished.” AA-395-397.

Despite his professed desire to put the matter behind him, Laurion proceeded full throttle forward. While he claims to have removed the items from the internet, a number still lurk there despite efforts by Dr. McKee to have them removed. AA-459. A couple of days after he claimed the matter was “finished,” Laurion contacted two Duluth television stations and the Duluth News Tribune newspaper, to try to pitch the story about the dispute about McKee’s treatment of his father. The Duluth newspaper subsequently did write a story about this lawsuit, which was then circulated on the internet. AA-355.

The Libel Lawsuit

Aware that Laurion was intent on further disseminating the defamation, Dr. McKee brought this lawsuit. The claim of defamation per se is based on the Internet website postings and the communications to various private medical organizations.

Proceedings Below

The Trial Court Dismissed

After the parties exchanged written discovery and depositions were taken of Laurion, his wife, and Dr. McKee, Laurion brought a Motion for Dismissal on the Pleadings under Minn. R. Civ. P. 12 and for Summary Judgment under Minn. R. Civ. P. 56, which the Trial Court considered as a Motion for Summary Judgment under Rule 56 because he relied on matters outside the pleadings in the Motion. See Minn. R. Civ. P.

The Trial Court granted Laurion’s Motion, and judgment was entered dismissing the case. Although Laurion harshly accused Dr. McKee of improper and unsafe practices, the Trial Court, in its Memorandum, benignly characterized Laurion’s internet postings and letters as Laurion’s expression of “Dr. McKee’s insensitive treatment of his father.” Resp. App. 2. It proceeds erroneously to observe that “overall the parties agree on the substance of how things went” during the examination, Resp. App. 3, even though they disagree on almost everything that Laurion alleges occurred.

Noting that the internet postings and letters must be viewed “as a whole,” Resp. App. 9, the Trial Court below examined each individual comment separately. Resp. App. 13- 18. It found that the “gist or sting of some of the statements were true, that others were opinion, that one was too vague to be defamatory, and that “[t]here is simply nothing for a jury to decide here.” Resp. App. 14-18. In so doing, it did not address at all one of the most heinous statements: that Dr. McKee endangered the physical safety of the patient.Despite Laurion’s acknowledgment that his internet postings and letters were “factual recitation(s),” the Trial Court viewed them as subjective emotional expressions. It concluded that”[t]aken as a whole, the statements in this case appear to be nothing more or less than one man’s description of shock at the way he and in particular his father were treated by a physician.” Resp. App. 12. Rather than accept Dr. McKee’s assertions of falsity, as required on a motion for summary judgment, the Trial Court saw “a common thread tying together both sides of this story.” Resp. App. 12. The Trial Court also dismissed the Interference with Business claim, without any findings or discussion, and that issue has not been appealed here.

The Appellate Court Reversed

The Appellate Court, in reversing, viewed the matter much differently than did the Trial Judge. It held that a half-dozen of the statements made by Laurion on his web site postings and parallel correspondence, all of which the doctor denies, constituted actionable defamation: (1) that the doctor said he had to “spend time finding out if you were transferred or died”; (2) that the Doctor stated that “44% of hemorrhagic strokes die within 30 days. I guess this is the better option”; (3) that the Doctor told the patient “You don’t need therapy; (4) that the doctor said that “it doesn’t matter that the patient’s hospital gown did not cover his backside”; (5) that the Doctor left the patient’s room without talking to the family; and (6) that a nurse referred to the Doctor “a real tool.” Resp. Add. 13.

All of the statements were deemed by the Court of Appeals to be factual statements that could be found to be false and defamatory by the trier-of-fact. Therefore, the case was remanded for trial. This Court then accepted review of the Court of Appeals’ decision.

SUMMARY OF ARGUMENT

The Court of Appeals correctly determined that the lawsuit should not have been dismissed on Summary Judgment.

This case presents two starkly different portrayals of the facts concerning Dr. McKee’s treatment of Laurion’s father. Laurion made explicit, abrasive, negative statements about how Dr. McKee examined his father, the patient, which Dr. McKee largely disputes. The six controverted statements made by Laurion are defamatory. They were very specific observations, including verbatim quotations, casting Dr. McKee in a negative light and harmful to his reputation. They were published to the public at large on the internet, as well as to Dr. McKee’s peers throughout the medical profession. Laurion did so for the avowed purpose of harming Dr. McKee’s reputation, which he accomplished, and deterring patients from seeking Dr. McKee’s services. They constitute defamation per se because they impugn the Doctor’s professional capabilities and qualities.

The Appellate Court was right in viewing Laurion’s remarks as objective, factual statements which Laurion characterized as a “factual recitation” and an “accurate account of what happened.” AA-22, 326. Dr. McKee contests nearly all of the “factual recitation” and maintains that the encounter did not happen as recounted by Laurion.  The summary judgment standard requires that these factual disputes be resolved in favor of Dr. McKee, the non-moving party. Under this criteria a trier of fact must  determine whether the disputed statements are truthful, as Laurion contends, or false, as Dr. McKee asserts, whether they tend to harm the doctor’s reputation, and the amount of Dr. McKee’s damages.

STANDARD OF REVIEW

This Court reviews dismissal on Summary Judgment de novo. Save/a v. City of Duluth, 806 N.W.2d 793, 796 (Minn. 2011).

Summary judgment is a “blunt” instrument that should be used only in limited circumstances where it is “clearly applicable.” Osborne v. Twin Town Bowl, Inc., 749 N.W.2d 367, 371 (Minn. 2008); Katzner v. Kelleher Constr., 535 N.W.2d 825, 828 (Minn. Ct. App. 1995). Summary judgment may be granted only when there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03; J.E.B. v. Danks, 785 N.W.2d 741, 748 (Minn. 2010). All doubts must be resolved in favor of Dr. McKee, the non-moving party. J.E.B., 785 N.W.2d at 751. “The moving party has the burden of showing an absence of factual issues. Anderson V. State Department Of Natural Resources. 693N. W. 2d 181, 191 (Minn. 2005). “The nonmoving party must provide evidence on which a jury could reasonably find in that party’s favor on each element of the claim.” White v. Many Rivers W Ltd. P’ship, 797 N.W.2d, 743 (Minn. Ct. App. 2011).

Because there are genuine issues of material fact at issue here, the Court of Appeals properly reversed and remanded as to the six defamatory statements.

ARGUMENT

LAURION’S STATEMENTS ARE LIBELOUS

The Defamation Standard

Defamation consists of a false statement of fact made to third parties that harm the reputation of the subject of the statements. See Geraci v. Eckankar, 526 N.W.2d 391, 397 (Minn. Ct. App. 1995); Bahr v. Boise Cascade Corp., 766 N.W.2d 910, 919-20 (Minn. 2009); see also Milkovich v. Lorain Journal Co., 497 U.S. 1, 17-18 (1990). The first step is for the Court to determine, as a threshold matter, whether the statements are reasonably capable of having a defamatory meaning. Utecht v. Shopko Dept. Store, 324 N.W.2d 652, 653 (Minn. 1982). If so, it is then up to the jury, as the trier of fact, to decide if they are indeed defamatory. !d. at 654. See also Schlieman v. Gannett Minn.Broad., Inc., 637 N.W.2d 297, 307 (Minn. Ct. App. 2001) (stating that the jury retains the ultimately responsibility for determining whether statements are defamatory). The Court of Appeals properly determined that the six specific statements are capable of being defamatory.

One category of defamation is libel per se, which consists of statements that impugn a person in his profession or occupation. Bahr, 766 N.W.2d at 920; Langbehn v.Schoenrock, 727 N.W.2d 153, 158 (Minn. Ct. App. 2007). When statements are defamatory per se, as they are here, the claimant may recover compensatory damages without proof of actual harm since damages are presumed in such cases. Bahr, 766 N.W.2d at 920; Langbehn, 727 N.W.2d at 160.

This case basically is one of credibility. Laurion provides a “factual recitation” of his version of what occurred when Dr. McKee examined his father. Dr. McKee paints a vastly different picture. This case is quintessentially not susceptible to summary disposition because credibility is so crucial to the outcome. The trier of fact, the jury, must make this determination. See Powell v. Anderson, 660 N.W.2d 107, 122 (Minn. 2003) (stating that the district court is “not authorized to make credibility determinations” on summary judgment); Howie v. Thomas, 514 N.W.2d 822, 825 (Minn. Ct. App. 1994) (noting that the test for summary judgment requires the district court and the reviewing court to “assume the credibility of the opposing party’s evidence”); Tsudek v. Target Stores, Inc., 414 N.W.2d 466, 469 (Minn. Ct. App. 1987) (“Weighing conflicting testimony and determining witness credibility is within the province of the jury.”).

Laurion’s “Factual Recitation” Is Actionable

The Statements Are Inherently Harmful. The pervasiveness of internet websites, where Laurion made multiple postings of his “factual recitation,” makes aspersions published on it particularly harmful. By reaching everyone all of the time, they become a permanent indelible stain. See Yath V. Fairview Clinics, NP., 767 N.W.2d 34, 43 (Minn. Ct. App. 2009) (noting, in a privacy case, “Internet communication is materially similar in nature to a newspaper publication or a radio broadcast because upon release it is available to the public at large.”); N Am.Recycling, LLC v. Texamet Recycling, LLC, No. 2:08-cv-00579, 2010 WL 4806733, *3 (S.D. Ohio Nov. 17, 2010) (unpublished) . (Magistrate judge, in a report and recommendation, retorting, “To make matters worse, many of these defamatory statements have been posted on the internet”). Resp. App. 83. See also Clay Calvert & Robert D. Richards, “Defending the First in the Ninth: Judge Alex Kozinski and the Freedoms of Speech and Press”, 23 Loy. L.A. Ent. L. Rev. 259, 276 (2003) (“[A blogger] can get an audience of 10,000 overnight – much more than a lot of small town newspapers.”).

Laurion hit his main target because the postings were seen in Duluth. AA-449-50. But he did not confine his handiwork to the internet; he sent similar, even more pointed assertions to a dozen or more organizations and colleagues of Dr. McKee, motivated by Laurion’s professed desire to harm the doctor’s reputation. AA-400.

The statements made by Laurion satisfy the standards for actionable defamation, libel in this case. See LeDoux v. Nw. Publ’g., Inc., 521 N.W.2d 59, 68 (Minn. Ct. App.1994) (“Because the news article implied improper conduct by LeDoux, a Jury reasonably could conclude that the articles harmed LeDoux’s reputation.”).

There is no dispute that they were communicated or published to third parties – the world at large for the internet postings, as well as the dozen or so letters targeted to professional organizations, peers, and colleagues of Dr. McKee. Nor is there – or should there be- any dispute as to the inherently harmful character of these communications.

These letters and, more ominously, the internet postings, are not equivalent to a “water cooler exchange,” as Laurion pleads. Appellant’s Brief, p. 24. They were not one-on-one chats about personal likes or dislikes, but were aimed at harming the McKee’s reputation by dissemination to the world at large. Nor are they like restaurant reviews, reports with personal opinions of taste. I d., pp. 23-24. They constituted factual statements of events that did not occur or Laurion fabricated. Expressing an opinion that the food at a restaurant was bad or the service poor is not actionable, but stating that particular food was not tasty would be actionable if that food was never served. Similarly, saying that a particular wait person made specific quoted statements when they did not, would be actionable. So would making up a non-existent diner, like the phantom nurse, who berates the facility. That is essentially what Laurion did to Dr. McKee. He fabricated statements, events, and even a person that never happened or existed. Laurion’s restaurant review analogy, therefore, cannot be swallowed.

When reviewing a defamation claim on summary judgment, the “individual statements must be looked at as a whole.” Jadwin v. Minneapolis Star & Tribune Co.,390 N.W.2d 437, 443 (Minn. Ct. App. 1986) (emphasis added) (“The defamatory character of any particular statement must be construed in the context of the article as a whole.”); Schlieman, 637 N.W.2d at 304 (“[C]ourts must interpret the defamatory meaning element of a defamation action in light of the context surrounding the alleged defamatory statements”). Viewing the statements in this context, as a whole, they are defamatory. The totality of the statements, which are presumed false for summary judgment purposes, reflects inappropriate behavior on the part of a physician and improper treatment of a patient. These accusations are indicative of faulty medical practices that an outside expert describes as “harmful to the doctor-patient relationship and could impede proper medical treatment.” Resp. App. 26.

Laurion’s innocuous description of his aspersions mischaracterizes their gravity. He asserts that his internet postings and corresponding letters did not question Dr. McKee’s “medical treatment,” but only the physician’s “brusque and insensitive manner.” Appellant’s Brief, p. 4. But his diatribes are much more severe. The way a physician interacts with a patient is part of the medical treatment. The statements here relate to medical care and advice supposedly furnished by Dr. McKee (such as “You don’t need therapy.”) These statements are not simply deviations from politeness, but go to the heart of medical care and treatment decisions.

Likewise, a physician’s so-called “bedside manner” is part of the “medical treatment” since it affects how the patient receives and responds to the care given by the physician. Resp. App. 20, 26-28. See also Resp. App. 23-30; Helen Riess, “Empathy in Medicine-A Neurobiological Perspective,” J. Am. Med. Ass’n, Oct. 13, 2010, at 1604, 1605 (emphasizing the importance of physician empathy on the quality of medical care, stating, “empathy is an important component of clinical competence, without which there can be serious consequences”), Resp. App. 102; Anand K. Parekh, “Winning Their Trust,” N.E. J. Med., June 1, 2011, at e51(1), e51(2) (explaining the importance of bedside manner to medical care and patient outcomes), Resp. App. 104; see also Fuste v.Riverside Healtcare Ass’n, Inc., 575 S.E.2ct 858, 861 (Va. 2003) (internal citations omitted) (finding that statements that physicians had “‘abandoned’ their patients and that there were ‘concerns about their competence’ not only prejudice the doctors in the practice of their profession, but also contain ‘a provably false factual connotation”‘ (citation omitted)).

Rather than attacking Dr. McKee’s incivility, Laurion offers a “factual recitation” to the world at large and Dr. McKee’s peers, too, of the doctor’s alleged inappropriate, improper and hazardous medical practices toward the patient and his family. These statements attack the professional qualities of Dr. McKee and necessarily harm his reputation in the eyes of others, including other medical referral sources and potential future patients. Resp. App. 28-29.

Dr. Harry Farb, a veteran doctor with substantial experience in the Duluth medical community, pointed out to the Trial Court: “The totality of statements made on these websites would be injurious to the reputation and standing of a doctor in the eyes of others who might see it, including patients or prospective patients, colleagues, peers, referral sources, and others. These statements are made as factual reporting of eyewitness observations by Defendant Laurion and normal readers would draw negative impressions of Dr. McKee from these statements and lower his esteem in their eyes. It is inherent that such statements would tend to impugn the doctor’s professional capabilities and diminish his reputation in the eyes of others.

Prospective patients who view the websites naturally would be deterred from utilizing his services, too. Resp. App. 27-29; AA-461-462. As expert Farb opined, the internet postings are expected to have a “very detrimental effect” on McKee’s professional reputation with a “potential negative impact on his livelihood due to fewer referrals and fewer patients.” Resp. App. 30. A study, introduced below, reflects that some 78% of consumers rely on material on websites on the internet in making decisions on goods and services. Resp. App. 40.

The Court of Appeals was mindful of the negative impact these statements could have on the doctor’s reputation and professional standing. They variously portray him as “insensitive to the feelings, fears, and modesty concerns of the patient and his family,” Resp. Add. 12; reflect that he was “arrogant and careless” in his medical treatment. Resp. Add. 12; suggest that the doctor is “too busy or uncaring” to communicate with the patient’s family “in a time of crisis,” Resp. Add. 13; and, the statement ascribed to the phantom nurse (who may be fabricated) reflects “disapproval of another medical professional [that] is capable of harming [Dr. McKee’s] reputation as a doctor.” Resp. Add. 13.

The Statements Must Be Viewed “As A Whole ”

Courts in other jurisdictions have taken the required broad view of communications to determine their defamatory nature. In Baylor v. Comprehensive Pain Mgmt. Ctr., Inc., No. 7:09cv00472, 2011 WL 1327396, at *1-2 (W.D. Va. Apr. 6, 2011) (unpublished}, Resp. App. 51-52, a doctor and member of the Army Reserves was fired by the private practice clinic where he worked after returning from active duty. He sued for defamation after the clinic made “a host of derogatory statements to patients after his termination, such as telling his patients that he had left, that his whereabouts were unknown, that he was let go for ethical reasons and that his integrity was not high.” Id. Resp. App. 52.

Denying summary judgment, the court noted that “[a] defamatory statement may be made ‘by inference, implication or insinuation.”‘ !d. at *7 (quoting Carwile v. Richmond Newspapers, 82 S.E. 2d 588, 592 (Vir. 1954)). Resp. App. 57. Statements may rise to the level of defamation “by imputing an unfitness to perform job duties or a lack of integrity in the performance of duties” which “are actionable as defamation per se.” Id. at *7. Resp. App. 57. The court explained “[i]n considering whether a statement is one of fact or opinion, a court must consider the statement as a whole; it may not isolate parts of an alleged defamatory statement from another portion of the statement.” Id. at *8. Resp. App. 58. Citing to a leading treatise on defamation, the court, in allowing the doctor’s defamation claim to proceed, explained: Defendants can be held liable for defamation “when a negative characterization of a person is coupled with a clear but false implication that the author is privy to facts about the person that are unknown to the general reader.” The test for determining whether facts that may be actionable defamation have been implied is “whether a reasonable listener would take [the speaker] to be basing his ‘opinion’ on knowledge of facts of the sort than can be evaluated in a defamation suit.” !d. at * 11 (alteration in original) (citing Robert D. Sack, “Sack on Defamation: Libel, Slander, and Related Problems” (4th ed. 2010). Resp. App. 60-61. See also Condit v. Nat’ Enquirer, Inc., 248 F. Supp. 2d 945, 968 (E.D. Cal. 2002) (tabloid report that the wife of a congressman whose intern was missing, had a “furious phone call” with the intern before her disappearance, which the wife denied, “could falsely convey to the reader that Plaintiff is an intemperate hothead who engaged in a scream fest on a long distance phone call with a person she did not know, when prudence dictated terminating that call and not ‘losing her temper,”‘ [and] “[s]uch conduct could cause others to have contempt for, to ridicule, shun or avoid Plaintiff, making the statements reasonably susceptible to a defamatory meaning”).

Summary judgment also was denied for another physician’s claim of defamation against a television station in Entravision Commc ‘ns. Corp. v. Bealcazar, 99 S.W.3d 393, 400 (Tex. App. 2003). The court there, as in Baylor, looked to the entirety of the offensive piece, even though each individual segment in isolation may be non-actionable. The TV report portrayed the physician as having committed malpractice without mentioning he had been dismissed from the malpractice lawsuit. Affirming denial of summary judgment, the court explained:

Because a reasonable person’s interpretation is on the entirety of a publication, even though each individual statement considered alone might be literally true, we cannot conclude that the broadcast at issue did not convey a defamatory meaning when it juxtaposed [the physician’s] office and name with the report that a doctor left gauze in [the patient’s] abdomen, and yet did not mention [the physician’s] dismissal. Id. at 398.

As in Baylor and Entravision, the Court of Appeals looked at Laurion’s offensive statements as a whole in concluding that the statements were defamatory, not whether each individual remark is actionable, in isolation.

Had to find out if you transferred or died”

Laurion’s assertion that Dr. McKee said to his father when meeting him “I had to spend time finding out if you were transferred or died” is defamatory. As the Court of Appeals concluded, this statement, which Dr. McKee denies making, reflects “that he is rude, insensitive, and morbid,” since it casts him as “insensitive to the feelings, fears, and modesty concerns of the patient and his family.” Resp. Add. 12. It portrays him in a way that other patients and professionals who refer cases to him would tend to shun, which constitutes a triable defamation. See Ritter v. United States Fid. & Guar. Co., 573 F .2d 539, 542 (8th Cir. 1978) (defining defamatory statement as ‘”one which tends to hold the plaintiff up to hatred, contempt or ridicule, and to cause him to be shunned or avoided “(quoting W. Prosser, “The Law of Torts” 739 (4th ed. 1971))).

  “44% of hemorrhagic strokes die within 30 days”

Laurion also makes the “factual” assertion that Dr. McKee told the patient and family members that “44% of hemorrhagic strokes die within 30 days,” which Dr. McKee denies occurred. AA-358-60. Even other members of the Laurion clan,  present during the examination, are unsure if the doctor actually made such a statement. Laurion maintains Dr. McKee said “44%,” while his wife and mother recall reference to some type of ratio but do not recall any specific percentage. AA-330, Resp. App. 45. But Dr. McKee denies making this statement at all and supports his denial by noting that this figure is something he has not ever heard previously. AA-468-469.

The real explanation lies elsewhere. An entry in “Wikipedia” about strokes reports a mortality rate of 44% within 30 days. AA-329-330, 367. Laurion consulted this source after Dr. McKee examined his father. AA-329-330. The Trial Court got this right: Judge Hylden viewed Dr. McKee’s point “somewhat convincingly … that Mr. Laurion may have made this up” based on the “44%” figure Laurion saw in “Wikipedia” after the incident. Resp. App. 14. This likely fabrication is buttressed because: 1) Dr. McKee was not aware of any such statistics and claims he never said it, and 2) Laurion’s other family members also do not recall it being said that way by Dr. McKee, either. AA-468-469; Resp. App. 45. Simply put, there is strong reason to believe that Laurion fabricated this accusation.

The statement “Well, 44% of hemorrhagic strokes die within 30 days,” which Dr. McKee denies, is even more defamatory when viewed in the context of the entire statement. The “factual recitation” of such a specific statistic to someone who is seriously ill, and had only 10 minutes earlier left the Intensive Care Unit having spent two days there, could be viewed not only as rude and insensitive, but downright morbid, sadistic, and frightening. Taken in context, the Court of Appeals correctly viewed it as one that a reasonable fact finder could regard as “rude, insensitive, and morbid.” Resp. App. 12.

It “doesn’t matter” the gown did not cover the  backside

Another statement made by Laurion pertains to the patient’s hospital gown, which allegedly was loose in the back. On his website postings and in his correspondence, Laurion ascribes to Dr. McKee a statement that it “doesn’t matter” if a gown is hanging open in the back:. AA 358-60, 401, 404, 407, 410, 413, 416, 419, 422. Dr. McKee denies making this remark, AA-452, 454, which the Appellate Court rightly saw as making him seem “insensitive” and uncaring to the modesty of the patient and family members and would have the effect of lowering his reputation. Resp. Add. 12.

“You don’t need therapy”

This statement, which Dr. McKee denies making, falsely casts him as an insensitive, uncaring, and incompetent physician.

Laurion also stated that his father “spent 2 days in ICU after a hemorrhagic stroke. He saw a speech therapist and physical therapist for evaluation” and that his “father mentioned that he’d been seen by a physical therapist and a speech therapist.” AA-360. In the context of a patient who had had a stroke so severe that it resulted in two days in the Intensive Care Unit, it is unfathomable that such a patient would not have a medical need for therapy and it certainly is derogatory to accuse a physician of saying so.

The Court of Appeals correctly viewed the statement’s content as portraying Dr. McKee as “insensitive and inaccurate” because he “hastily concluded that therapy was unnecessary.” Resp. Add. 12. After the patient spent two days in the ICU and other physicians recommended speech and physical therapy, falsely ascribing this remark to Dr. McKee could give him “a reputation for being arrogant and careless.” Resp. Add. 12.

“He did not talk” to the family

Laurion goes on to explain that he and his wife left the room while Dr. McKee examined the patient, which is about the only thing that everyone agrees occurred. After Dr. McKee completed his examination and spoke with the patient about his condition, he exited and told the Laurion family that they ”can go back in.” AA 401, 404, 407, 410, 413, 416, 419, 422. But on his website postings, Laurion falsely states that Dr. McKee ignored them and left the room without saying anything. As Laurion asserts in his “factual recitation”: Dr. McKee exited the patient’s room and “did not talk” to the patient’s family. AA-358-360. But Laurion admits that Dr. McKee did talk to the three of them, telling them “You can go back in.” AA-401, 404, 407, 410, 413, 416, 419, 422. This disparity reflects the falsity of Laurion’s internet postings and would harm the reputation of the treating physician. Resp. App. 27.  It also, placed in context, suggests that the doctor was “too busy or uncaring” to talk to the patient’s family, which the Court of Appeals correctly viewed as a remark that “could lower the community’s esteem” for Dr. McKee. Resp. Add. 13.

Laurion also asserted that the safety rail of his father’s bed was raised when he was required to stand and his hand Was caught in the rail creating yet another “safety risk,” an allegation Dr. McKee also denied. AA-353.  These self-described “factual recitation(s)” are inconsistent, progressively inflammatory, and damaging to the doctor’s reputation. Dr. McKee categorically refutes these offensive accounts. AA-454.

Nurse calls him a “real tool”

Finally, Laurion concludes his diatribes by quoting the nurse “friend” that Dr. McKee is “a real tool.” While Laurion asserts that he does not know what it means, he recognizes that it was a “pejorative” comment. AA-319. Yet he published this for the world at large, without knowing its meaning , as a way of degrading the doctor. Even Laurion admits that he “shouldn’t have” used that phrase, but it is too little, too late now. As Laurion belatedly laments: “I was simply stating what had happened. I now feel that perhaps I shouldn’t have quoted somebody if I couldn’t go back and present her. But at the time, I simply repeated it.”AA-350.

The “real tool” comment that Laurion reported is not only deprecatory, but it seems to be another fabrication by him. He may have conjured up the phantom “nurse,” not simply repeated what a non-existent person never said. Although he calls her a “friend,” with whom he worked for more than seven years, Laurion does not know the name of the nurse and is barely able to describe her at all. An inquiry by Dr. McKee failed to turn up anyone meeting that description. AA-468. Likewise, an independent licensed investigator was unable to find anyone resembling the “friend” to whom Laurion ascribes the “real tool” comment. Resp. App. 19-22. After unsuccessful efforts to locate the maker of the supposed statement, it is doubtful whether she even exists, and the evidence, viewed in the light most favorable to Dr. McKee, as it must be on summary judgment, shows it was a fabrication of Laurion’s fertile imagination, as the Trial Court suggests. Resp. App. 6.

The statement that “Dr. McKee is a real tool,” which Laurion attributes to this phantom “nurse,” could certainly be read by a reasonable person to mean that Dr. McKee had engaged in similar unprofessional conduct and poor medical care in the past. Although this statement itself might be a non-actionable opinion if it was the only thing Laurion stated, in the context of his other disparaging statements, this remark by a phantom nurse, who apparently does not exist, adds to the sting of the defamation, casting Dr. McKee in an extremely unfavorable light professionally. As the Court of Appeals noted, this supposed “disapproval of another medical professional is capable of harming [Dr. McKee’s] reputation as a doctor.” Resp. Add. 13.

In Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 501 (1991), the Supreme Court analyzed a number of false quotations, including an alleged quotation attributed to the plaintiff that “two well-respected senior colleagues considered [the plaintiff] an ‘intellectual gigolo.'” The Court held that an admission by the plaintiff, which he denied, “that two well-respected senior colleagues considered him ‘an intellectual gigolo’ could be as, or more, damaging than a similar self-appraisal.” !d.

Likewise, in this case the allegation by Laurion that another medical professional considered Dr. McKee a “real tool” is much more damaging than that phrase coming from a family member of a patient.  The phantom nurse “friend” that Laurion claims prompted his defamatory attacks, could be the Rosetta Stone to this case. If Laurion made up the tale of his nurse “friend,” as the record suggests, Laurion is a liar; he fabricated an individual, identified her as a nurse who knows Dr. McKee; ascribed a pejorative about him to her; and implied that she was representative of the medical profession who looked down on Dr. McKee.  There is a vital fact dispute whether she exists and if she does, what, if anything, she told Laurion that he later published to the world at large. Dr. McKee, under the applicable standard for summary judgment, is entitled to prove that Laurion’s nurse “friend” is a figment of Laurion’ s imagination, an imaginary friend so to speak, and does not really exist.

Even if calling someone a “real tool” is not, in itself, defamatory, the gravamen here is that Laurion fabricated a person, a nurse no less, and ascribed the statement to her, a piece of fiction or falsity, that never happened.

Laurion could counter at trial by proving the existence of this phantom “friend” and identifying her or calling her to testify (by subpoena or otherwise) at trial.

Ultimately, the jury must decide, as a matter of law, if she exists and whether she made the comment about Dr. McKee or if Laurion made her up and lied about her. Melina v.Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (“It is the jury’s function to determine credibility.”); see also 4 Minn. Prac. Jury Instr. Guides, Civil, CIVJIG 12.15 (5th ed. 2010) (Evaluation of Testimony – Credibility of a Witness), CIVJIG 12.25 (Impeachment), CIVJIG 12.35 (Failure to Produce Evidence- Interference). The jury might determine that if Laurion lied about his phantom “friend,” he prevaricated about other matters, as well. This credibility concern alone averts summary judgment as a matter of law, and warrants a trial, especially when coupled with Laurion’s other lies.

Footnote 4: 4As plaintiff, Dr. McKee has the burden to prove falsity. See Ferrell v. Cross, 557 N.W.2d 560, 565 (Minn. 1997).

A reasonable jury, viewing these statements as a whole, as they must be, could view them as depicting McKee as a doctor who is incompetent, dangerous, and insensitive to the needs or his patients and their families. Because a reasonable jury could view the statements as defamatory, the Court of Appeals, properly held that Summary Judgment is inappropriate.

The Statements Are Not “Opinions.”

Laurion’s claim that he made imprecise statements akin to protected opinions is wrong.  In his Answer to the Complaint, P 4, Laurion states that the communications at issue are a “factual recitation … concerning plaintiffs conduct in examining defendant’s father at St. Luke’s Hospital.” AA-022. He repeated that sentiment on multiple occasions in his deposition, repeatedly proclaiming that his statements constituted “factual” accounts, not subjective opinions, AA-317, 355, and he was “giving an accurate account of what happened.” AA-326. These admissions alone should have been fatal to his argument on Summary Judgment that his statements are non-actionable “opinions.”

While pure opinion is not actionable as defamation, the category of “opinion” includes only those statements that “cannot reasonably be interpreted as stating facts.” McGrath v. TCF Bank Sav., FSB, 502 N.W.2d 801, 808 (Minn. Ct. App. 1993), as modified, 509 N.W.2d 365 (Minn. 1993); see also Milkovich, 497 U.S. at 18-21. In other words, if the statement in question “impl[ies] an assertion of objective fact,” it is not protected by the First Amendment. Milkovich, 497 U.S. at 18. As the Supreme Court of the United States has explained: Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications. . . . [It] would be destructive of the law of libel if a writer could escape liability for accusations of [defamation] simply by using, explicitly or implicitly, the words, “I think.” !d. at 18-19 (first alteration in original) (citations omitted).

Minnesota courts have found only wholly subjective, unverifiable statements to be opinions, not an account of factual events. See, e.g., McGrath, 502 N. W.2d at 808 (plaintiff was a “troublemaker”); Lund v. Chicago & Nw. Transp. Co., 467 N.W.2d 366, 368-69 (Minn. Ct. App. 1991) (plaintiff was a “brown-noser”); Lee v. Metro. Airport Comm ‘n, 428 N.W.2d 815, 821 (Minn. Ct. App. 1988) (plaintiff was flirtatious, fluffy, and a b-tch).

While some of the statements made by Laurion in his website postings and parallel correspondence seem couched as subjective impressions, the remarks that the Court of Appeals viewed as actionable constitute factual statements. The essence of this case is that Laurion conveyed a fabricated account of what transpired in order to portray Dr. McKee in an extremely negative light. Laurion published a fictional account of what occurred when Dr. McKee examined his father. Dr. McKee refutes almost every feature of that account. AA-450-458. That Laurion used very specific, graphic comments and information, not speculation, and renders the “factual” statements individually, and the entire account collectively, actionable.

Footnote 5: Even though some of Laurion’s comments may be opinions, that does not immunize the balance of the statements, especially those that are provably false “factual recitations.” That portions of offensive statements are not actionable does not give a free-pass to those that are defamatory. See, e.g., Schlieman, 637 N.W.2d at 307; Workman v. Serrano, No. A05-834, 2006 WL 771580, at *4-5 (Minn. Ct. App. Mar. 28, 2006) (unpublished). Resp. App. 73-74. In fact, the jury instructions can be constructed in a way that highlights the allegedly culpable statements separate from those that are not. 4 Minn. Prac. Jury Instr. Guides, Civil, CIVJIG 50, Note 1 (5th ed. 2010); CIVSVF 50.90; see also Tr. 41-44.

The use by Laurion of quotation marks in describing Dr. McKee’s supposed statements illustrate their specificity. By ascribing precise quotes to the physician, Laurion carries out his mission – providing a “factual recitation.”

The United States Supreme Court in Masson, 501 U.S. at 511, discussed the significance of the use of quotation marks in determining whether a statement is an opinion. The Supreme Court observed: “In general, quotation marks around a passage indicate to the reader that the passage reproduces the speaker’s words verbatim. They inform the reader that he or she is reading the statement of the speaker, not a paraphrase or other indirect interpretation by an author. By providing this information, quotations add authority to the statement and credibility to the author’s work. Quotations allow the reader to form his or her own conclusions and to access the conclusions of the author, instead of relying entirely upon the author’s characterization of her subject. … [T]he attribution may result in injury to reputation because the manner of expression or even the fact that the statement was made indicates a negative personal trait or an attitude the speaker does not hold. Id.

Likewise, in Graham v. Boehringer Ingelheim Pharm., No. CV040488908S, 2007 WL 3317528 (Conn. Super. Ct. Oct. 19, 2007) (unpublished), Resp. App. 80, a supervisor reported to company officials that the plaintiff had threatened to bring a gun into the workplace and “go postal.” Id. at *2, Resp. App. 86. The court held that this statement was not an opinion, but was ”in effect, of a fact – that [the employee] made statements. And the statements, if believed by the hearer as coming from [the employee], by their very nature would defame him.” Id. at *3, Resp. App. 87. The court, therefore, held that the jury, as trier of fact, must resolve the issue. Id. at *5, Resp. App. 89.

In this case, the Court of Appeals insightfully pointed out that the first four actionable remarks, ostensible quotations from Dr. McKee, “objectively and specifically recite” the physician’s supposed words, which he denied saying. Resp. Add. 6. Because it is “verifiable” whether he said them and whether he was “silent” after exiting the room, those statements are factual assertions susceptible to determination by the jury. Resp. Add. 6. So, too, is the quotation – “a real tool” – ascribed to the phantom nurse. Whether these matters actually were said or occurred, as communicated by Laurion, raise factual issues that preclude summary disposition.

Likewise, whether or not there was a nurse who made the specific quotation, is capable of being proven or disproven, and therefore is not an opinion. The question is not whether Dr. McKee is “a real tool,” but, as the Appellate Court noted, whether a real “nurse” said so. This is “susceptible to proof’ and, therefore, may be defamatory. See Schlieman, 637 N.W.2d at 308.

The context of deprecatory remarks reflects why the internet postings and letters are actionable. Laurion published the internet remarks to the world at large, knowing they would be seen by anyone, anywhere, with access to the internet. Laurion was upset. He knew that Dr. McKee was highly-regarded and had a stellar reputation. He wanted to get him in trouble with his peers or colleagues and to lower his reputation. As Laurion states: [[I thought that somebody with an M.D. after his name would call him in and say, “We don’t like getting complaints like this. Could you be a little friendlier in the future, and we’ll consider this over.” . . . I wanted somebody to tell him that they either felt that that was poor behavior or that the writer thought that was poor behavior. and we don’t like getting letters like this.]] AA-335.

The sheer magnitude of Laurion’s libel is reflective of its harm. His stated desire was to expose Dr. McKee’s allegedly improper medical practices to the world at large, including current and potential patients visiting the websites, and in the voluminous correspondence to professional colleagues and peers.

Thus, the misstatements of his publications, their universal recipients, and Laurion’s underlying motivation all show that he thought his “factual recitation” would harm Dr. McKee’s reputation. It is untenable for him to now deny what he purposefully set out to accomplish.

In sum, Laurion made a “factual recitation” of events that did not occur. They are not legally protected opinions, but are admittedly factual observations that would inevitably and inherently lower the esteem of Dr. McKee as a professional, and are defamatory per se.

The Statements Are False

Not only are Laurion’s statements “factual,” as he describes them, but they are false, too.

Laurion’s argument that some of the statements are true, or substantially true, is wrong. Dr. McKee denies them all. This raises the threshold issue of fact for resolution by the jury. Lewis v. Equitable Life Assurance Socy., 389 N.W.2d 876, 889 (Minn. 1986) (“the truth or falsity of a statement is inherently within the province of the jury”); see also Morey v. Barnes, 212 Minn. 153, 156, 2 N.W.2d 829, 831 (1942).

But the statements at issue are palpably false. For example, Laurion made a subtle, but significant change in his account of the hospital encounter from the letters he sent to the later Internet postings. In the letters, he quoted Dr. McKee as saying “some” stroke patients die in the Intensive Care Unit. But, in the subsequent websites, he quotes the physician as saying “44%” of patients expire there. Appellant’s Brief, p. 6. This change from “some” to the specific “44%” is significant because Laurion looked in “Wikipedia” and found the “44%” figure after the encounter with Dr. McKee, who denies ever saying, or hearing of, the statistic. Thus, Laurion made up the statement and falsely placed it, with quotation marks, no less, in Dr. McKee’s mouth. It is not substantially true that Dr. McKee said this, it is wholly false. Even the Trial Court found it “somewhat convincing” that Laurion “may have made this up after the fact.” Resp. App. 14.

Similarly, Laurion’s accusation that Dr. McKee left the hospital room “without speaking” to the family is palpably false, too. The doctor told the family, as Laurion acknowledges, that they could go back in the room now. AA-314. The reticence ascribed to Dr. McKee by Laurion is not just a failure to “stop to chat.” Laurion now admits that Dr. McKee did speak to the family, albeit briefly, when he left the hospital room. AA-314. Appellant’s Brief, p. 18. Laurion portrays the doctor as ignoring the family when he did, in fact, acknowledge their presence and spoke to them.

Laurion’s encounter with the phantom “nurse,” who Laurion could not identify and who cannot be found, is another apparent fabrication that is “susceptible of proof.” Resp. Add. 6.

In addition, Laurion put at least four specific statements in Dr. McKee’s mouth that the physician claims he never said (“transferred or died; “44% die;” loose gown “doesn’t matter;” “You don’t need therapy.”) and took some words out of his mouth that he did say (“did not talk” to the family), and even made up words from a fabricated “nurse” (“a real tool”) that were never said. The Court of Appeals correctly determined that these falsified factual statements all cast the doctor in a negative light and could be harmful to his reputation. Resp. Add. 8-13. There are triable issues of fact concerning the truthfulness of Laurion’s “factual recitations,” whether the statements harmed the reputation of Dr. McKee, and the resulting damages. All of these determinations should be left to the trier-of-fact, the jury. Morey, 212 Minn. at 156, 2N.W.2d at 831; Rowe v. Munye, 702 N.W.2d 729, 746 (Minn. 2005) (Jury determines damages); Northfield Nat’; Bank v. Assoc. Milk Producers, Inc., 390 N.W.2d 289, 298 (Minn. Ct. App. 1986) (damages in a per se defamation case are for jury to decide).

The Health Care Bill of Rights Is Inapplicable

Finally, Laurion’s search for a qualified privilege under the Patient’s Health Care Bill of Rights, Minn. Stat. § I44.051, is unavailing for several reasons. Appellant’s Brief pp. 24-25.

First, the issue was not raised before the Court of Appeals or in its Petition for Review to this Court. Because it was not raised below or in its Petition for Review, it is waived. City of West St. Paul v. Krengel, 768 N.W.2d 352, 355, n. 3 (Minn. 2009) (“We do not reach this issue because it was not raised in the … petition for review of the court of appeals’ decision”); Crossroads Church of Prior Lake Minn. v. County of Dakota, 800 N.W.2d 608,617 (Minn. 2011) (citing Thiele v. Stich, 425 N.W.2d 580, 582 (1988).

Moreover, while the statute certainly encourages patients to make their views known to the medical profession, there is no applicable privilege here for several reasons: (1) the statute refers only to actions by patients, not family members; and (2) the statute contains no privilege or immunity, as Laurion asserts. If a privilege or immunity, had been intended, the legislature would have so specified in the statute, as it has done for complaints to the Medical Board and other matters. See, e.g., Minn. Stat. § 147.121 (reports to medical board “absolutely privileged”); Minn. Stat. § 145.63 (immunity for participation on medical review organization).

Thus, there is no basis for assertion of privilege relating to the Patient’s Bill of Rights, which does not furnish a license to family members of patients to commit libel.

Even if some type of privilege exists, which it does not, it is only a qualified one and defeated with a showing that the defendant “‘made the statement from ill will and improper motives, or causelessly and wantonly for the purpose of injuring the plaintiff.”‘ Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 257 (Minn. 1980) (quoting McKenzie v. William J Burns Int’l Detective Agency, Inc., 149 Minn. 311, 312, 183 N.W. 516, 517 (1921) ). Laurion would even be liable under the higher standard of privilege which applies to public officials under New York Times Co. v. Sullivan, 376 U.S. 254, 280 ( 1964 ), which need not be met here, “knowledge of falsity or reckless disregard as to truth or falsity.” Masson, 501 U.S. at 513. As the Court held in Masson, “[D]eliberate alteration of the words uttered by a plaintiff’ shows knowledge of falsity when “the alteration results in a material change in the meaning conveyed by the statement.” Masson, 501 U.S. at 517. Laurion attributed statements to Dr. McKee which he denies. Whether Dr. McKee made the statements is an issue of fact. There is ample evidence of malice here. Thus, the issue of malice is a factual one that must be decided by the jury. Stuempges, 297 N.W.2d at 258.

In sum, six controverted statements constitute factual statements capable of being defamatory. They constitute actionable defamation and a jury must determine if they are false, harmful to Dr. McKee’s reputation, and, if so, award damages.

CONCLUSION

For the above reasons, the decision of the Court of Appeals should be affirmed and this case remanded for trial.

Dated: May 24, 2012              _____s/Marshall H. Tanick_________________________________

MANSFIELD, TANICK, AND COHEN P. A.

Marshall H. Tanick (#108303)

Teresa J. Ayling (#157478)

1700 U.S. Bank Plaza South

220 South Sixth Street

Minneapolis, Minnesota, 55402-4511

Tel: (612) 339-4295

Fax: (612) 339-3161

Attorneys for Respondent

David McKee, M.D.

Full Brief in PDF Format


Defendant Dennis Laurion’s Web Posting

Defendant Dennis Laurion’s Patient Complaint

Plaintiff David McKee’s Reply To Patient Complaint

Plaintiff David McKee’s Cease And Desist Letter To Defendant Dennis Laurion

Defendant Dennis Laurion’s Complaint To Minnesota Board Of Medical Practice

Plaintiff David McKee’s Complaint To Sixth Judicial District Duluth Court

Plaintiff David McKee’s Response To Minnesota Board Of Medical Practice

Defendant Dennis Laurion’s Answer To Plaintiff David McKee’s Complaint

Defendant Dennis Laurion’s Motion For Summary Judgment

Defendant Dennis Laurion’s Deposition Extracts

Plaintiff David McKee’s Deposition Testimony About Circumstances Before Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Circumstances After Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony In Response To Questions By Marshall Tanick

Affidavits By Defendant Dennis Laurion’s Parents

Defendant Dennis Laurion’s Supplemental Motion For Summary Judgment

Plaintiff David McKee’s Motion To Oppose Summary Judgment

Defendant Dennis Laurion’s Reply Memo In Support Of Motion For Summary Judgment

Sixth Judicial District Court’s Order On Motion For Summary Judgment

Plaintiff David McKee’s Appeal Of Order On Motion For Summary Judgment

Plaintiff David McKee’s Brief To Minnesota Court Of Appeals

Defendant Dennis Laurion’s Brief To Minnesota Court Of Appeals

Plaintiff David McKee’s Reply Brief To Minnesota Court Of Appeals

Minnesota Court Of Appeals Order To Strike Portion Of Plaintiff David McKee’s Reply Brief

Minnesota Court Of Appeals Announces Decision

Defendant Dennis Laurion’s Petition For Review By Minnesota Supreme Court

Plaintiff David McKee’s Opposition To Review By Minnesota Supreme Court

Defendant Dennis Laurion’s Brief To Minnesota Supreme Court

Plaintiff David McKee’s Brief To Minnesota Supreme Court

Defendant Dennis Laurion’s Reply Brief To Minnesota Supreme Court

Minnesota Supreme Court Decision On David McKee MD V. Dennis K. Laurion

David McKee MD v. Dennis Laurion 2010

David McKee MD v. Dennis Laurion 2011

David McKee MD v. Dennis Laurion 2012

David McKee MD v. Dennis Laurion 2013

McKee V Laurion Is A Textbook Case

 

 

Patient Advocate Trisha Torrey and San Diego Education Report Blogger Have Each Discussed McKee V. Laurion

March 7, 2013

“Dr. David Mckee Seems Unaware That He Has Abused The Legal System To Torment Dennis Laurion For Exercising His Right To Free Speech”

Maura Larkins, San Diego Education Report Blog

Even after losing his defamation suit, Dr. David McKee seems unaware that he has abused the legal system to torment Dennis Laurion for exercising his right to free speech.

Even after losing his defamation lawsuit in the Minnesota Supreme Court ( 1), Dr. David McKee seems completely unaware that he has tormented a patient’s family for discussing his bedside manner on the Internet. (2)

Many people would consider Dr. McKee to be cowardly and relentless to have dragged a man through the courts simply for taking advantage of his First Amendment rights. The financial resources of the doctor and the man he sued were vastly disparate.

On February 7, 2013, Patient Advocate Trisha Torry (3) wrote about David McKee MD V. Dennis K. Laurion in About.com Guide. Defendant Dennis Laurion replied to her posting on February 7, 2013. On February 11, 2013, Ms. Torrey wrote another web posting. Plaintiff David McKee wrote to Patient Advocate Trisha Torrey to express his feelings. Defendant Dennis Laurion’s rebuttal and Torrey’s responses caused a three way argument on Tricia Torrey’s website. Nobody confined their responses to the same webpage, and some people were quoted in the Duluth (Minnesota) News Tribune, but the conversation is compiled in order below.

Dennis Laurion, FEB 7, 2013, About.com: Trisha, thanks for your coverage of David McKee vs. Dennis Laurion.

You said, “The reason Mr. Laurion didn’t lose the suit was because he related facts and observations – not opinions and generalities. That’s the real hot water test. The difference between recounting opinions vs facts can be the difference between winning and losing a defamation lawsuit.” I’ve learned that laws about slander and libel do not conform to one’s expectations. I’ve read that online complaints are safe “if you stick to the facts.” That’s exactly the wrong advice – at least in Minnesota. I did not want to merely post my conclusions. I wanted to stick to my recollection of what I’d heard. I don’t like to read generalities like “I’m upset. He did not treat my father well. He was insensitive. He didn’t spend enough time in my opinion.” However, such generalities are excused as opinion, hyperbole, or angry utterances. Had the Minnesota Supreme Court concluded that I offered facts, I’d be awaiting jury trial. It was, I believe, the conclusion that I’d offered opinions that caused dismissal.

You also said “He wrote reviews of Dr. McKee on 19 different websites, reporting, according to a Duluth (MN) news article in April 2011 ” While being sued for defamation, I have been called a passive aggressive, an oddball, a liar, a coward, a bully, a malicious person, and a zealot family member. I’ve been said to have run a cottage industry vendetta, writing 19 letters, and posting 108 or 118 adverse Internet postings in person or through proxies. That’s not correct. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again. Several newspapers accounts have repeated assertions about how many letters I wrote and how many reviews I wrote. You’ll find accusations that I wrote 108 or 118 subsequent postings. You’ll find remarks that most were traced to a single IP address in Duluth. It wasn’t mine, and my internet provider tells me that nobody has ever asked about my IP address.

You also said “No matter what you think of the outcome of this lawsuit, know that it cost Dr. McKee more than $60,000 out of his pocket, including his attempt to try to repair his reputation.” The plaintiff’s first contact with me was a letter that said in part that he had the means and motivation to pursue me. The financial impact of being sued three years to date has been burdensome, a game of financial attrition that I haven’t wanted to play. The suit cost me the equivalent of two year’s net income – the same as 48 of my car payments plus 48 of my house payments. My family members had to dip into retirement funds to help me.

Trisha Torrey FEB 7, 2013, About.com: Dennis, thank you for contributing to this report. I have corrected the statement about your father’s life and apologize for getting that wrong. Re: your report on how many comments were made, who made them, etc — you have enlightened us all…. And it proves exactly what I was saying – we cannot assume that anything we write online, especially through anger or frustration, can’t be tested at unlimited cost. The power still remains with the monied and we can’t forget that.

Tricia Torrey, FEB 11, 2013, About.com: Last week, I followed up on the final Minnesota Supreme Court verdict in the lawsuit where Dr. David McKee, a neurologist, sued his patient’s son, Kenneth Laurion, who was so unhappy with Dr. McKee’s treatment of his father, that he posted negative reviews all over the internet, citing Dr. McKee’s arrogance. And Dr. McKee is NOT happy with the verdict, or my assessment of it. In fact, he is so unhappy that he posted comments to the original post from 2011 ( 3 ), where I told you about the lawsuit when the first court reached a verdict. Because that post is so old, and therefore few would ever see the comments, I wanted to bring to your attention just what he said.

Dr. David McKee, FEB 10, 2013, About.com: Okay let me set you straight on a few things. First, Mr. Laurion and I do not agree at all as to what was said and what happened. More importantly, Mr. Laurion (the son, not the patient) contradicted his account of what happened numerous times. No Trisha, I am not a real SOB as you have concluded based on accepting the statements which I sued Laurion over as truthful. If they were truthful I would not have brought the suit forward. Dennis Laurion is a sick malicious bully. He wrote several versions of what transpired in his father’s hospital room, each more slanderous and exaggerated than the last. As an example, in the earliest versions of Laurion’s description, he mentioned, accurately, that I helped his father to a standing position. A later version stated that I pulled his father out of bed; still later that I jerked his father against a closed bedrail and against his will.

Laurion also complained that I humiliated his father by not tying the back of his father’s hospital gown. In fact, Dennis Laurion was sitting in a chair on the same side of his father’s bed as the patient. He would have needed only to lean forward a little to reach the ties of the gown. I was on the opposite side of the bed and could not have reached the back of the gown if I had wanted to.

Maura Larkins, MAR 7, 2013, San Diego Education Report: All three versions could be true. Since the father was unhappy to be standing in his skimpy gown, and he knew what kind of gown it was before he got up, it seems quite likely that he was not willing to get up. But really, why make such a big deal out of this sort of thing? Sometimes a doctor does have to demand that a patient stand up so that he knows how well the patient can stand. And it’s quite likely that a doctor would not want to use his well-educated hands to tie a dressing gown on a patient–I’m not saying I approve this attitude, just that I think it’s a common one.

Dennis Laurion, FEB 11, 2013, About.com: While my father was lying down, and when he was seated, I was unaware that the back string was untied. It was my father who mentioned his parting gown. We then insisted on leaving the room to wait in the hall. In my postings to the public, I stopped short of details that would have embarrassed my father but shared those details with a state agency. McKee is apparently including my comments to a state agency, while insisting he didn’t sue me for those contacts.

Dr. David McKee, FEB 10, 2013, About.com: After I left the patient’s room I was sitting at a nurses station only 30 feet from where Dennis Laurion was sitting and in plain sight. He could have discussed any concern with me then without the slightest difficulty. Instead he chose to begin his smear campaign against me. He fired off 19 letters of complaint within the next few days.

Dennis Laurion, FEB 11, 2013, About.com: Dr. McKee is apparently including letters that I wrote as a response to his suit.

Dr. David McKee, FEB 10, 2013, About.com: He tried for several weeks to get the local media outlets interested; none would have anything to do with him until he met up with Mark Stodghill of the Duluth News Tribune. The two of them met several times over a 2 week period to come up with a great doctor bashing piece of propaganda. Stodghill placed a call to my office at 4:55 p.m. on a Friday. I was not on call and had left for the day. This was the only attempt he made to contact me. The newspaper article came out only 10 hours later. Still the one half-hearted attempt to reach me allowed the reporter to accurately state that “calls to Dr. McKee were not returned”, implying that I had something to hide. The article was so biased that of approximately 80 conversations with patients who brought up the matter, only 2 understood that I was suing Laurion; the rest misunderstood and believed I was being sued by Laurion.

Dennis Laurion, FEB 11, 2013, About.com: When McKee sent a threat letter, I asked three local media outlets if such a suit would be a “man bites dog” story. I never mentioned Dr. McKee’s name and would not have, had there been no suit. In spite of follow-up inquiries by the press, I demurred giving his name until a public record existed. On the day of filing, Mr. Stodghill found the public record without my prompting and ran the story. Mr Stodghill contacted me once by email and once by phone. We did not meet over any time period, and I did not recognize Mr. Stodghill, when he was covering my first court appearance.

Fred Friedman, Chief Public Defender, Northeastern Minnesota, AUG 2, 2013, Duluth News TribuneMark Stodghill and I go back a long way. Long before Mark covered courts and crime for the News Tribune, we shared stories and interests in baseball, basketball, nonfiction books and the complications of father-son relationships, both in terms of our fathers and our sons. We have friends in common for the past 40 years.

I saw Mark gain interest in running and lose interest in professional sports. I followed Mark’s career going from a writer to a columnist to a writer. I miss Mark’s columns, both the ones that were popular and the ones when he got ripped (a Stodghill slang word, incidentally).

As a writer covering the courts beat, he had a tough job. Court cases are all about advocacy, and everyone including me thinks they have the corner on fairness and justice. Avoiding saying something foolish is always the No. 1 goal. Mark was good at understanding our job but never forgetting his.

The best writers, including Mark, tell a good story in a fair way and always invite comment from the participants before publication. I know he endeavored to be fair and thorough. I do not believe some copy editors and headline writers Mark worked with always shared that commitment. I always have wondered how many reporters, including Mark, resented headline writers who missed the point and copy editors who sliced up a story beyond recognition, either looking for sensationalism or looking to save an inch.

Finally, Mark Stodghill enjoyed a youth that most men could only imagine. He was a schoolboy pitching star; bat boy for the Minnesota Twins, including during the 1965 World Series and All Star Game; and was up-close and personal with Twins greats Harmon Killebrew (Mark’s favorite, after his father), Tony Oliva and Rod Carew and with baseball greats Willie Mays, Sandy Koufax and more. He also was a ball boy for the Minnesota Vikings, a Vietnam-era U.S. Air Force veteran and a college basketball star who sometimes got to write on anything he wanted, earning the respect of his peers and friends.

Mark S. Rubin, St. Louis County Attorney, AUG 2, 2013, Duluth News Tribune I learned recently Iceland is rewriting its constitution. The primary agreed-upon theme is, of course, liberty. The second primary principle is responsibility. Interesting, don’t you think? I will bet that to our Founding Fathers, “responsibility” was considered a given in our Constitution, and it wasn’t necessary to make specific mention of it.

A free press is a critical component for preserving and growing our still-evolving democracy. Today News Tribune journalist Mark Stodghill retires. He has practiced his craft with the utmost of integrity and responsibility. Just ask anyone who has worked in the courts and criminal justice system over the last 35 years; they will tell you Mark was respectfully relentless in his efforts to get his stories right.

We are a better-informed community, our liberty is stronger, and our citizens are more enlightened and thus empowered because of Mark’s recognition and understanding of his responsibility to his craft. His goal was to report the truth — the facts — about some of the most tragic and difficult stories imaginable. Time and time again he succeeded.

Mark Stodghill is a Vietnam veteran deserving of our gratitude, a marathon athlete who leaves us in awe, and a husband and father who loves and cares deeply. And yes, he is a journalist who saw, accepted and carried out his responsibility to his fellow citizens in our sometimes-fragile democracy. He is and will continue to be the standard for the next generation to follow.

Gordon Ramsay, Duluth Police Chief, AUG 2, 2013, Duluth News Tribune Mark Stodghill, a talented, old-school journalist with a conscience, will walk out the doors of the News Tribune today for the last time and into retirement.

He’s a fascinating guy who has done a lot in his life and who has covered a lot of different beats since the 1970s. For the past 15 years or so he covered police and courts. When horrible crime and its impacts on families and communities happened, Mark usually was there.

For the first time in many years, Mark Stodghill’s familiar name will not appear in a byline. He will no longer have to try to interview grieving family or be accused of demonizing a family member who committed a crime.

I know Mark worked diligently to always be fair to victims and suspects alike. When a family member or friend was upset with a story he wrote, Mark took it to heart. He cared about getting his stories right and worked diligently to ensure they were accurate.

He would sometimes tell me about incidents where upset family members had contacted him and accused him of shedding bad light on their loved one. He was bothered by this element of his job; I would attribute that to his strong character.

No one could ever accuse Mark of being a sensationalist writer. Rather, he’s a talented, old-school journalist with a conscience who won’t be easily replaced.

Dr. David Mckee, FEB 10, 2013, About.com: I have been the victim of a cowardly relentless series of attacks by a truly sick human being. The fact that you appear to always assume that if a complaint is made against a physician, the physician must be in the wrong, makes you little better than Mark Stodghill who was willing to use the lowest possible journalistic standards seemingly designed to get the story wrong so as to allow for the most inflammatory headline possible.

Dennis Laurion, FEB 11, 2013, About.com: McKee has learned to exercise his own free-speech rights. In earlier responses to publicity, I’ve been called an oddball sort of fellow, passive-aggressive, liar, bully, coward, and malicious person. I think somebody should have told McKee about the Streisand Effect.

Trisha Torrey, FEB 11, 2013, About.com: This is strictly “he said, he said” – and it cannot be recreated or witnessed. That means we are left with the perceptions of the two people involved and, truthfully, neither one of you gets big points for handling this well.

However, YOU are the professional. As such, part of your responsibility is to communicate clearly and with enough compassion and empathy that your patients and their loved ones don’t misunderstand what you have said, decided, ordered or done.

Look – I can understand that you were upset at what he said about what he perceived as your arrogance. But as is true in any form of communication – perception is the receiver’s reality. Had you not come across as brusque, callous, disrespectful, arrogant, or any other adjective for disconnected one can use, Mr. Laurion would not have pursued a public punishment for you.

And when he did, I dare say, fixing it would have required only an apology from you, whether or not you agreed with his perception. Two words, “I’m sorry,” would have made a world of difference.

Would that have been so difficult? Evidently, yes. The fact that you are now calling him names as if you were both in middle school speaks volumes. Even if Mr. Laurion is a bully, that must have been triggered by something. So instead of taking care of it the way a professional should, you instead chose to escalate the problem. Unprofessional and undignified.

Sadly (from your perspective), instead you have become the poster boy for doctors who don’t communicate well, providing a lesson for all doctors who arrogantly treat their patients and families like second-class citizens. You may have outstanding neurology skills (I have no idea if you do or don’t), but if you can’t communicate respectfully, clearly and with empathy, then your skills as a physician are lacking, and your patients and their families are not being well-served.

Dr. David McKee, FEB 12, 2013, About.com: Trisha, just read the first sentence of your post. You concluded by the fact that Laurion made disparaging (and inaccurate) comments and complaints that “…Dr McKee must have been a real SOB, abrupt and rude at the very least” You had no grounds for such an emphatic conclusion. The conclusion is reasonable only if you somehow know the statements made by Laurion are accurate. The fact that I brought a lawsuit against him for inaccurately portraying my interaction with his father should cast enough doubt to preclude your statement presented as fact. You also concluded that because I responded to your defamatory statement I proved your original premise….HUH???

So the doctor is wrong because Laurion says he behaved poorly and the doctor is wrong again because he responds to your unfounded and malignant comments. Nice.
As for Laurion’s recent responses they are inaccurate and very disingenuous and he knows it.

He did file 19 letters of complaint based on an innocuous interaction with his father; including 2 complaints to the MN Board of Medical Practice. The second was filed as if written by his wife; though in deposition his wife acknowledged Laurion wrote both letters (the second was an exaggeration of the first; neither resulted in any action by the board). There is substantial evidence that on learning that his original motion to dismiss was going to be acted on favorably he and others encouraged by Laurion, made roughly 120 negative entries on various doctor rating sites. This occurred in a 2 day period and before the court’s decision was made public. There is no chance that this was action taken by actual patients or that it occurred spontaneously. Yes I think the term bully is, if anything an understatement.

As for Laurion’s suggestion that he is somehow a victim of a game of financial attrition. He was given multiple opportunities to settle without financial demands. When he was deposed he acknowledged that he went back on the offensive despite the very early option of settling at essentially no cost. The 120 March 2011 postings will likely form the basis of a second suit. Laurion has repeatedly refused to guarantee that he will not engage in further slander so I really have no option here. One of the great injustices is that people like you assume the physician must be at fault and are willing to attack without bothering to investigate. Your illogical deductions are not investigation. In the end, the negative commentary sticks to the physician as a permanent aspect of his reputation whereas people like you profit whether your statements are accurate or not. For Laurion to cast himself as the victim of my responses is cynical beyond measure.

Since you choose to reach your conclusions by inference you might chew on this. I have been in practice for 22 years. I have evaluated over 20,000 patients during that time. I estimate that, on average I have met one family member for each patient. Conservatively that makes 40,000 patients and family members. Dennis Laurion’s 19 letters of complaint amount to 75% of the complaints I have received in total vs. hundreds of letters thanks, gratitude etc. But it is primarily Laurion’s mischief that shows up when patients, friends, family research my name.

Trisha, I think it is your arrogance that is the real problem here. You are so self certain that you can determine right and wrong by inference that investigation is not needed. I am not going to make any further posts on this site but you need to clean up your act.

Dennis Laurion, FEB 21, 2013, About.com: Dr. McKee has said “Mr Laurion and I do not agree at all as to what was said and what happened.” I agree.

McKee v. Laurion resolved

Even after losing defamation suit, Dr. David McKee seems unaware that he has abused the legal system

Trisha Torrey

Fred Friedman

Mark S. Rubin:

Gordon Ramsay

Defendant Dennis Laurion’s Web Posting

Defendant Dennis Laurion’s Patient Complaint

Plaintiff David McKee’s Reply To Patient Complaint

Plaintiff David McKee’s Cease And Desist Letter To Defendant Dennis Laurion

Defendant Dennis Laurion’s Complaint To Minnesota Board Of Medical Practice

Plaintiff David McKee’s Complaint To Sixth Judicial District Duluth Court

Plaintiff David McKee’s Response To Minnesota Board Of Medical Practice

Defendant Dennis Laurion’s Answer To Plaintiff David McKee’s Complaint

Defendant Dennis Laurion’s Motion For Summary Judgment

Defendant Dennis Laurion’s Deposition Extracts

Plaintiff David McKee’s Deposition Testimony About Circumstances Before Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Circumstances After Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony In Response To Questions By Marshall Tanick

Affidavits By Defendant Dennis Laurion’s Parents

Defendant Dennis Laurion’s Supplemental Motion For Summary Judgment

Plaintiff David McKee’s Motion To Oppose Summary Judgment

Defendant Dennis Laurion’s Reply Memo In Support Of Motion For Summary Judgment

Sixth Judicial District Court’s Order On Motion For Summary Judgment

Plaintiff David McKee’s Appeal Of Order On Motion For Summary Judgment

Plaintiff David McKee’s Brief To Minnesota Court Of Appeals

Defendant Dennis Laurion’s Brief To Minnesota Court Of Appeals

Plaintiff David McKee’s Reply Brief To Minnesota Court Of Appeals

Minnesota Court Of Appeals Order To Strike Portion Of Plaintiff David McKee’s Reply Brief

Minnesota Court Of Appeals Announces Decision

Defendant Dennis Laurion’s Petition For Review By Minnesota Supreme Court

Plaintiff David McKee’s Opposition To Review By Minnesota Supreme Court

Defendant Dennis Laurion’s Brief To Minnesota Supreme Court

Plaintiff David McKee’s Brief To Minnesota Supreme Court

Defendant Dennis Laurion’s Reply Brief To Minnesota Supreme Court

Minnesota Supreme Court Decision On David McKee MD V. Dennis K. Laurion

David McKee MD v. Dennis Laurion 2010

David McKee MD v. Dennis Laurion 2011

David McKee MD v. Dennis Laurion 2012

David McKee MD v. Dennis Laurion 2013

McKee V Laurion Is A Textbook Case

“Health Care Tech Review” Analyzes David McKee MD V. Dennis K Laurion

 APRIL 2, 2013

“More Doctors Sue Over Bad Online Reviews”

Scott Gibson, Health Care Tech Review (News and Updates for Healthcare IT Professionals)

 As more people turn to the web to help them make decisions about their healthcare, that means more potential patients will check out online reviews about doctors. And many physicians will do everything they can to protect their reputations on the web. In some cases, that includes taking a patient to court because of negative online reviews.

Dr. David McKee of Duluth, Minnesota recently lost a court battle in which he sued a patient’s son who had written negative comments about Dr. McKee on several doctor rating websites. The negative reviews were related to comments Dr. McKee had made to the patient and his family. Though Dr. McKee claimed the online reviews hurt his reputation and his business, the court threw out the case on the grounds that the comments were true and therefore not defamatory.

Doctors rarely win those cases. David McKee isn’t the only doctor who’s gone to court recently because of negative online reviews, says a story in the Boston Globe. According to the Digital Media Project at Harvard University, there have at least seven court cases over the past five years or so related to online reviews of doctors.

Those lawsuits show how difficult it is for doctors to win. In all of those cases, patients either agreed to take down their comments to avoid a suit, or the court threw out the case. In one of the incidents, a neurosurgery patient posted several negative comments about a surgeon online, including insinuations that the doctor was responsible for creating an unusually high risk of death for patients. But when the surgeon sued, the court threw out the case on the grounds that the patient was engaging in free speech about a public issue. The doctor was ordered to pay $50,000 in legal fees.

Most experts warn doctors against taking legal action because of negative online reviews. In addition to the potential for losing a costly legal battle, they warn that in many cases, filing a suit only brings attention to the patient’s complaints.

On top of that, the majority of doctors believe that online ratings have no impact on their business and don’t believe patients give them much weight when they make health care decisions.

Full Article

Defendant Dennis Laurion’s Web Posting

Defendant Dennis Laurion’s Patient Complaint

Plaintiff David McKee’s Reply To Patient Complaint

Plaintiff David McKee’s Cease And Desist Letter To Defendant Dennis Laurion

Defendant Dennis Laurion’s Complaint To Minnesota Board Of Medical Practice

Plaintiff David McKee’s Complaint To Sixth Judicial District Duluth Court

Plaintiff David McKee’s Response To Minnesota Board Of Medical Practice

Defendant Dennis Laurion’s Answer To Plaintiff David McKee’s Complaint

Defendant Dennis Laurion’s Motion For Summary Judgment

Defendant Dennis Laurion’s Deposition Extracts

Plaintiff David McKee’s Deposition Testimony About Circumstances Before Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Circumstances After Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony In Response To Questions By Marshall Tanick

Affidavits By Defendant Dennis Laurion’s Parents

Defendant Dennis Laurion’s Supplemental Motion For Summary Judgment

Plaintiff David McKee’s Motion To Oppose Summary Judgment

Defendant Dennis Laurion’s Reply Memo In Support Of Motion For Summary Judgment

Sixth Judicial District Court’s Order On Motion For Summary Judgment

Plaintiff David McKee’s Appeal Of Order On Motion For Summary Judgment

Plaintiff David McKee’s Brief To Minnesota Court Of Appeals

Defendant Dennis Laurion’s Brief To Minnesota Court Of Appeals

Plaintiff David McKee’s Reply Brief To Minnesota Court Of Appeals

Minnesota Court Of Appeals Order To Strike Portion Of Plaintiff David McKee’s Reply Brief

Minnesota Court Of Appeals Announces Decision

Defendant Dennis Laurion’s Petition For Review By Minnesota Supreme Court

Plaintiff David McKee’s Opposition To Review By Minnesota Supreme Court

Defendant Dennis Laurion’s Brief To Minnesota Supreme Court

Plaintiff David McKee’s Brief To Minnesota Supreme Court

Defendant Dennis Laurion’s Reply Brief To Minnesota Supreme Court

Minnesota Supreme Court Decision On David McKee MD V. Dennis K. Laurion

David McKee MD v. Dennis Laurion 2010

David McKee MD v. Dennis Laurion 2011

David McKee MD v. Dennis Laurion 2012

David McKee MD v. Dennis Laurion 2013

McKee V Laurion Is A Textbook Case

IDAHO BUSINESS REVIEW ANALYZES DR. DAVID MCKEE’S RESPONSE TO NEGATIVE REVIEW

MAY 11, 2013

“With Online Reviews, It Pays To Know What You’re Doing”

Jane Pribek, Idaho Business Review

What would you do if someone called you “a real tool” on Avvo?

Don’t follow in the footsteps of Dr. David McKee, who responded to his negative review by filing a defamation lawsuit, which the Minnesota Supreme Court recently ruled was not actionable. In addition to losing the case, McKee’s action generated negative publicity about the poor review. If only he had known about online reputation management.

“The spread of social media has touched everyone and every business owner,” said Joe Preston, of Attorney Reputation Management, a Washington-based marketing and public relations firm. “We’ve had clients who’ve been affected by jealous competitors, disgruntled former employees and sometimes, frankly, clients who are unreasonable.”

There are steps attorneys can and should take to protect their reputations, said Preston and intellectual property attorney Scott Scioli, who are co-authoring a book on the topic, scheduled for publication in June.  They recommend you start by claiming your profiles on the various directories and reviewing websites, primarily for search engine optimization purposes. Then, you’ll need to monitor the reviews or comments on those websites, frequently, along with periodically Googling your name and your firm’s name to see what results come up. Some advise using Google Alerts and similar services to stay on top of new mentions. But you can’t rely on alerts alone, Preston said, because Google has curtailed how often the alerts are sent.

You can be proactive by encouraging happy clients to write positive, truthful reviews. Many websites use algorithms to determine the credibility of posted reviews, and reviews sent from mobile devices often are seen as more likely to be authentic, Preston said.

When someone posts an unflattering review, don’t expect the website to take action. Still, you should bring blatantly false reviews to their attention, such as when you never represented the reviewer. But website owners’ tend to trust their own software’s indicia of authenticity over your word, Preston warned. Once they deem a review authentic, it’s very hard to convince the company to remove it.

More often, it’s better to respond to negative reviews, tactfully and ethically. Be cautious not to reveal any confidential information about the representation.  Reach out to the reviewer, Preston said. Be positive, and ask him or her to call so you can resolve the matter.

As for taking legal action, Scioli advised against it, noting that when you file a defamation lawsuit, it makes the news and keeps the negative information as a top result on Google. Moreover, there can be significant proof issues: Sometimes people use proxies or hire people outside the U.S. to write negative reviews. Then there’s the issue of whether you even can collect the judgment.

“The perception of being the kind of person who sues someone for criticizing you is very negative, and can lead to additional negative feedback about you and your firm,” Scioli said. “You have to be careful about asserting your rights, even when you’re in the right, because sometimes it’s not a question of who’s right, but rather what’s the better strategy.”

Full Article

Defendant Dennis Laurion’s Web Posting

Defendant Dennis Laurion’s Patient Complaint

Plaintiff David McKee’s Reply To Patient Complaint

Plaintiff David McKee’s Cease And Desist Letter To Defendant Dennis Laurion

Defendant Dennis Laurion’s Complaint To Minnesota Board Of Medical Practice

Plaintiff David McKee’s Complaint To Sixth Judicial District Duluth Court

Plaintiff David McKee’s Response To Minnesota Board Of Medical Practice

Defendant Dennis Laurion’s Answer To Plaintiff David McKee’s Complaint

Defendant Dennis Laurion’s Motion For Summary Judgment

Defendant Dennis Laurion’s Deposition Extracts

Plaintiff David McKee’s Deposition Testimony About Circumstances Before Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Circumstances After Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony In Response To Questions By Marshall Tanick

Affidavits By Defendant Dennis Laurion’s Parents

Defendant Dennis Laurion’s Supplemental Motion For Summary Judgment

Plaintiff David McKee’s Motion To Oppose Summary Judgment

Defendant Dennis Laurion’s Reply Memo In Support Of Motion For Summary Judgment

Sixth Judicial District Court’s Order On Motion For Summary Judgment

Plaintiff David McKee’s Appeal Of Order On Motion For Summary Judgment

Plaintiff David McKee’s Brief To Minnesota Court Of Appeals

Defendant Dennis Laurion’s Brief To Minnesota Court Of Appeals

Plaintiff David McKee’s Reply Brief To Minnesota Court Of Appeals

Minnesota Court Of Appeals Order To Strike Portion Of Plaintiff David McKee’s Reply Brief

Minnesota Court Of Appeals Announces Decision

Defendant Dennis Laurion’s Petition For Review By Minnesota Supreme Court

Plaintiff David McKee’s Opposition To Review By Minnesota Supreme Court

Defendant Dennis Laurion’s Brief To Minnesota Supreme Court

Plaintiff David McKee’s Brief To Minnesota Supreme Court

Defendant Dennis Laurion’s Reply Brief To Minnesota Supreme Court

Minnesota Supreme Court Decision On David McKee MD V. Dennis K. Laurion

David McKee MD v. Dennis Laurion 2010

David McKee MD v. Dennis Laurion 2011

David McKee MD v. Dennis Laurion 2012

David McKee MD v. Dennis Laurion 2013

McKee V Laurion Is A Textbook Case