Leyhane Blogspot: “For What It’s Worth: Doctor Sues Patient”

OCTOBER 8, 2011

“For What It’s Worth: Doctor Sues Patient”

Leyhane Blogspot

Medical malpractice suits are common (even if they are not as common as some doctors fear). But a suit by a doctor against a patient? That would seem to fit the ancient definition of news. Yet I hadn’t heard of Dr. David McKee’s defamation suit against Dennis Laurion before I received an email about the case.

Actually, Dennis Laurion was not McKee’s patient. Dr. McKee, a neurologist, treated Dennis’s father, Kenneth, a World War II vet, who suffered a hemorrhagic stroke in April 2010. The younger Mr. Laurion was not at all happy with how Dr. McKee treated his father. The elder Mr. Laurion survived, but his son felt that Dr. McKee failed to accord his father appropriate dignity and respect. He didn’t sue for malpractice; instead, he blasted the doctor on a number of ratings sites.

There are ratings services for every business and profession out here on the Internet (including sites that rate lawyers). I haven’t used the Internet to check out a doctor since… let’s see… yesterday. Usually, though, I’m only looking for confirmation of the spelling of the doctor’s name, or to verify an address or phone number. I personally don’t put much stock in so-called “reviews.” On any random site, some reviews will seem as if they’d been written by the doctor’s mother. Others read as if they’d been written by the doctor’s bitter ex-spouse.

Nevertheless (and understandably), doctors are a bit sensitive about how they are portrayed online. See, “Why doctors hate online reviews,” by Dr. Rahul Parikh, in the “Pop Rx” column on Salon.com, September 5, 2011.

There are services that promise to provide some protection to the small businessperson who suffers the slings and arrows of outrageous Internet attacks. Reputation Defender is one product that advertises heavily in this market (and the website seems to pitch at doctors in particular); TheReviewBuster.com is another one I found in a quick search today. Public relations firms would, presumably, be able to offer some assistance to the aggrieved professional in straits similar to those in which Dr. McKee apparently found himself.

But Dr. McKee decided to sue instead.

The trial court entered summary judgment against McKee. The various sources I’ve consulted today dispute whether Dennis Laurion voluntarily removed his comments from ratings sites when Dr. McKee asked. Depending on the point of view of the poster, McKee’s suit was either an honorable response to vicious online attacks or a callous attempt to stifle the Laurion family’s free speech rights. And there may have been a SLAPP angle, too: In addition to posting negative reviews, Dennis Laurion made a complaint to the hospital where Dr. McKee worked and to the Minnesota Board of Medical Practice. Supposedly, just before the summary judgment motion was resolved against McKee, a hundred new negative reviews appeared on line about Dr. McKee. McKee’s lawyer blamed Laurion; Laurion denied it. I have to wonder whether these additional postings might have been a product of the Streisand Effect.

In the course of today’s efforts, I do not claim to have peeled through the many layers of conflicting opinion to reveal any hard kernel of truth about this case. The headline on this post, however, “Doctor sues patient’s family — and everybody loses” (HealthExecNews.com, May 10, 2011), struck me as probably accurate. I can report that McKee’s appeal is scheduled for a hearing before the Minnesota Court of Appeals, in Duluth, on November 10.

Not knowing the actual facts and being unschooled in Minnesota law (and being unlicensed in that state), I venture no prediction about the outcome of the doctor’s appeal.

But the question arises how a similar suit might fare in Illinois. Would our Citizen Participation Act (735 ILCS §110/1 et seq.) apply? Shoreline Towers Condominium Association v. Gassman, 404 Ill.App.3d 1013, 936 N.E.2d 1198 (1st Dist. 2010), may provide some guidance. Ms. Gassman kept installing a mezuzah outside the front door of her condominium; the homeowners’ association kept taking it down, insisting it was prohibited by a policy that prohibited “[m]ats, boots, shoes, carts or objects of any sort… outside Unit doors.” Gassman, a lawyer, initiated a raft of lawsuits and religious discrimination complaints with a number of state agencies, challenging the association’s ban.

The association changed its policy. And, for good measure, the City of Chicago passed an ordinance and the State of Illinois passed a law prohibiting others from attempting similar bans.

But relations between Gassman and the Association had soured in the meantime to the point where all sorts of accusations were made by one side and the other. Ultimately the Association filed a 10-count complaint against Gassman alleging a variety of theories. Gassman moved to dismiss all counts under the Citizen Participation Act (or, as it also sometimes called, the anti-SLAPP Act). The trial court agreed that the Act applied to some, but not all of the counts.

On appeal, the Association argued that the Act shouldn’t have applied to any of its claims (404 Ill.App.3d at 1020): Shoreline argues that SLAPP suits are “lawsuits brought to silence public outcry regarding issues of significant public concern,” and it characterizes SLAPP suits as actions brought against “a person or group [who] was using a public forum to voice an opinion regarding a public issue.” It suggests that “[i]t could hardly be argued that [Gassman’s] campaign of defamation, tortious interference, harassment, intimidation, and personal attacks, as to the affairs of a private condominium association, and against the members of the Board personally, rises to the level of an ongoing attempt to petition a governmental entity for public redress.”

But the Appellate Court disagreed (404 Ill.App.3d at 1021-22):

[T]he Act does not protect only public outcry regarding matters of significant public concern, nor does it require the use of a public forum in order for a citizen to be protected. Rather, it protects from liability all constitutional forms of expression and participation in pursuit of favorable government action.

To the extent, then, that our hypothetical Illinois doctor’s suit might be seen as retaliation for complaints to licensing authorities, my suspicion is that an Illinois court might find that the anti-SLAPP statute applicable. Maybe.

But the anti-SLAPP statute provides no license for Internet trolls out to sabotage a professional’s reputation.

SOURCE

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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Oregon Appellate Court Rules Online Commenter Critical Of Business Can Be Sued For Defamation

March 12, 2014

IN COURT OF APPEALS OF THE STATE OF OREGON

Carol C. NEUMANN

and Dancing Deer Mountain, LLC,

an Oregon domestic limited liability company,

PlaintiffsAppellants CrossRespondents,

v.

Christopher LILES, Defendant-Respondent CrossAppellant.

Lane County Circuit Court 121103711; A149982

Charles D. Carlson, Judge.

Argued and submitted April 12, 2013.

Steve C. Baldwin argued the cause for appellants-cross- respondents. With him on the briefs was Watkinson Laird Rubenstein Baldwin & Burgess, P.C.

Linda K. Williams argued the cause and filed the briefs for respondent-cross-appellant.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Lagesen, Judge.*

On appeal, reversed and remanded as to defamation claim, attorney fee award vacated and remanded; otherwise affirmed. Cross-appeal dismissed as moot.

LAGESEN, J.

After attending a wedding at plaintiff Dancing Deer Mountain, LLC, a wedding venue co-owned and operated by plaintiff Carol Neumann and her husband, Timothy Benton, defendant Christopher Liles posted a negative review on google.com. In the review, defendant characterized the venue as a “disaster” and Neumann as “two faced, crooked, and * * * rude to multiple guest[s].” He stated further that Neumann and her husband “changed the rules as they saw fit” by informing guests that they needed to leave the premises earlier than they had originally been told, and that Neumann would find a way to retain any security deposit and charge even more money for use of the facility. Neumann and Dancing Deer Mountain sued defendant, with Neumann asserting claims for defamation and invasion of privacy by false light, and Dancing Deer Mountain asserting claims for intentional interference with economic relations and invasion of privacy by false light. On defendant’s motion, the trial court dismissed the case under ORS 31.150,1 Oregon’s anti-Strategic Lawsuits against Public Participation (anti-SLAPP) statute, concluding both that plaintiffs’ claims fell within the scope of ORS 31.150(2), making them subject to the anti-SLAPP procedures, and that plaintiffs failed to establish a prima facie case in sup- port of any of their claims, as required by ORS 31.150(3). We reverse, concluding that the trial court erred when it deter- mined that Neumann had not established a prima facie case in support of her defamation claim.

BACKGROUND

Defendant attended a wedding at Dancing Deer Mountain. During the event, tensions arose between Dancing Deer Mountain staff, including Neumann, and the wedding party and guests, after staff observed attendees consuming alcohol in a manner that violated Dancing Deer Mountain’s alcohol policy. Those tensions were exacerbated when, at approximately 8:30 p.m. on the night of the wedding, Neumann and her staff began asking guests to leave, in accordance with Dancing Deer Mountain’s requirement, contained in its rental agreement, that the wedding party and guests vacate the premises by 8:30 p.m.

Two days after the wedding, defendant posted a review of Dancing Deer Mountain on google.com. The review, which was entitled “Disaster!!!!! Find a different wedding venue,” stated: “There are many other great places to get married, this is not that place! The worst wedding experience of my life! The location is beautiful the problem is the owners. Carol (female owner) is two faced, crooked, and was rude to multiple guests. I was only happy with one thing: it was a beautiful wedding, when it wasn’t raining and Carol and Tim stayed away. The owners did not make the rules clear to the people helping with set up even when they saw something they didn’t like they waited until the day of the wedding to bring it up. They also changed the rules as they saw fit. We were told we had to leave at 9pm, but at 8:15 they started telling the guests that they had to leave immediately. The ‘bridal suite’ was a tool shed that was painted pretty, but a shed all the same. In my opinion She will find a why [sic] to keep your $500 deposit, and will try to make you pay even more.”

Plaintiffs sued defendant, alleging that by publishing the review, defendant committed the torts of defamation and invasion of privacy by false light against Neumann, and the torts of intentional interference with economic relations and invasion of privacy by false light against Dancing Deer Mountain. Defendant filed a special motion to strike all claims under ORS 31.150. Defendant’s theory was that his online review qualified as either a “written statement * * * presented * * * in a place open to the public or a public forum in connection with an issue of public interest,” ORS 31.150(2)(c), or, alternatively, “other conduct in furtherance of the exercise of * * * the constitutional right of free speech in connection with a public issue or an issue of public inter- est,” ORS 31.150(2)(d), thereby making the anti-SLAPP procedures applicable to plaintiffs’ claims, which arose out of defendant’s online review. In response, plaintiffs submit- ted evidence to support a prima facie case on their claims, in accordance with ORS 31.150(3). Plaintiffs also argued that the anti-SLAPP procedures should not apply to their claims because their claims did not target speech in connec- tion with government: “Anti-SLAPP statutes were created  to allow for unfettered speech in matters of governmental gatherings. They were not intended to apply to cases such as this.”

Following a hearing, the trial court granted the special motion to strike in full. The court entered a general judgment dismissing the complaint without prejudice, and awarding $8,000 in attorney fees, $337 in costs, and a $500 prevailing party fee to defendant. Plaintiffs timely appealed, and defendant timely cross-appealed. On appeal, plaintiffs assert that the trial court erred in two respects: by concluding that their action was subject to the anti-SLAPP proce- dures, and by concluding that Neumann had not established a prima facie case of defamation. On cross-appeal, defendant contends that the trial court erred by awarding him less than the full amount of attorney fees that he requested.

STANDARD OF REVIEW

A “two-step burden-shifting process” governs the resolution of a special motion to strike under Oregon’s anti- SLAPP statute, ORS 31.150. Young v. Davis, 259 Or App 497, 501, 314 P3d 350 (2013). In accordance with ORS 31.150(3), a court must first determine “whether the defendant has met its initial burden to show that the claim against which the motion is made ‘arises out of’ one or more protected activities described in [ORS 31.150(2)].” Id. Second, if the defendant meets that burden, the court must determine whether the plaintiff has “establish[ed] that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case.” Id. (inter- nal quotation marks omitted). Each step of that process presents a question of law. See Young, 259 Or App at 507-10 (whether the plaintiff has established a probability of prevailing presents a legal question); Blackburn v. Brady, 116 Cal App 4th 670, 676 (2004) (whether anti-SLAPP statute “applies to a particular complaint[ ] presents a legal question”)

ANALYSIS

As noted, plaintiffs contend that the trial court erred at both steps of the process governing the resolution of a special motion to strike. They argue that “[p]laintiffs’ complaint is not a SLAPP suit,” and that the trial court therefore erred by concluding that their complaint was sub- ject to dismissal under ORS 31.150. Plaintiffs argue further that, even if their complaint falls within the scope of Oregon’s anti-SLAPP statute, the trial court erred when it concluded that Neumann had not presented substantial evi- dence establishing a prima facie case of defamation. For the reasons explained below, we do not resolve the first alleged error identified by plaintiffs, but agree that the trial court erred when it concluded that Neumann had not established a prima facie case of defamation sufficient to withstand dis- missal under ORS 31.150. Accordingly, we reverse.

With respect to the first alleged error identified by plaintiffs—the trial court’s determination that plain- tiffs’ claims were subject to the anti-SLAPP procedures— plaintiffs do not offer a focused argument on appeal as to why defendant’s online review does not fall into one of the four categories of protected activities delineated in ORS 31.150(2). In particular, plaintiffs do not address defendant’s theory that his review was a statement “in connection with an issue of public interest” published in “a place open to the public or a public forum” under ORS 31.150(2)(c). In fact, plaintiffs do not address the terms of the statute at all, or argue that the text, context, and legislative history demon- strate that the legislature did not intend for online reviews such as the one at issue here to fall within the scope of ORS 31.150(2)(c) or, alternatively, ORS 31.150(2)(d). Instead, relying primarily on law review articles and Illinois cases interpreting the Illinois anti-SLAPP statute4—a statute that is worded differently from, and more narrowly than, ORS 31.150—plaintiffs assert that we “should rule in accor- dance with [those] authorities * * * and reverse the trial court” and that “[t]he same reasoning should apply to the interpretation of every anti-SLAPP statute.”

We recently declined to address a similar argument in Young under similar circumstances, where, as here, the plaintiff did not develop a sufficiently focused argument on appeal as to why the allegedly defamatory statements at issue did not fall within the scope of ORS 31.150(2). 259 Or App at 505 (observing that it is not “our proper function to make or develop a party’s argument when that party has not endeavored to do so itself” (citations and internal quotations marks omitted)). We take the same approach here, both to be consistent with Young and because the trial court’s deter- mination that the online business review at issue qualifies as a protected activity under ORS 31.150(2) is not clearly erroneous. Indeed, we note that the trial court’s interpretation of ORS 31.150(2) to encompass online business reviews appears to be consistent with the plain text of the statute,5 although we do not assess the ultimate correctness of that interpretation at this time.

We nevertheless conclude that the trial court erred by dismissing Neumann’s defamation claim. Contrary to the court’s conclusion, the evidence supporting the defamation claim was sufficient to meet the “low bar” established by ORS 31.150 “to weed out meritless claims meant to harass or intimidate” a defendant. Young, 259 Or App at 508; see also Staten v. Steel, 222 Or App 17, 32, 191 P3d 778 (2008), rev den, 345 Or 618 (2009) (“The purpose of the special motion to strike procedure, as amplified in the pertinent legislative history, is to expeditiously terminate unfounded claims that threaten constitutional free speech rights, not to deprive litigants of the benefit of a jury determination that a claim is meritorious.” (Emphases in original.)). That is, the evidence submitted by plaintiffs, if credited, would permit a reasonable factfinder to rule in Neumann’s favor on the defamation claim, and the evidence submitted by defendant does not defeat Neumann’s claim as a matter of law. Young, 259 Or App at 508-11.

Under Oregon law, a claim for defamation has three elements: “(1) the making of a defamatory statement; (2) publication of the defamatory material; and (3) a result- ing special harm, unless the statement is defamatory per se and therefore gives rise to presumptive special harm.” National Union Fire Ins. Co. v. Starplex Corp., 220 Or App 560, 584, 188 P3d 332, rev den, 345 Or 317 (2008). “In the professional context, a statement is defamatory if it is false and ascribes to another conduct, characteristics or a condition incompatible with the proper conduct of his lawful busi- ness, trade, [or] profession.” 6 Brown v. Gatti, 341 Or 452, 458, 145 P3d 130 (2006) (internal quotation marks and cita- tions omitted). Statements falsely alleging facts that are “likely to lead people to question [a] plaintiff’s fitness to per- form his job” are defamatory per se. L & D of Oregon, Inc. v. American States Ins. Co., 171 Or App 17, 25, 14 P3d 617 (2000) (discussing the holding in Slover v. State Board of Clinical Social Workers, 144 Or App 565, 568-69, 927 P2d 1098 (1996)); see also National Union Fire Ins. Co., 220 Or App at 584-85 (statements that would tend to harm a plain- tiff in his or her business or profession are actionable per se without proof of special harm).

Here, the evidence submitted by plaintiffs, if true, would permit a reasonable fact finder to find in Neumann’s favor on a claim of defamation concerning her profession. Specifically, if true, plaintiffs’ evidence could permit a reasonable fact finder to find that defendant published false statements attributing to Neumann conduct and characteristics “incompatible with the proper conduct of [her] lawful business” of operating a wedding venue, as well as a false statement alleging that Neumann is dishonest.

In particular, that evidence demonstrates that defendant published in an online forum7 statements alleging that Neumann was “rude to multiple guest[s],” that she “changed the rules” by directing guests to leave at 8:15 p.m. after originally telling guests that they could stay until 9:00 p.m., that Neumann “will find a [way] to keep your $500 deposit, and will try to make you pay even more,” and that Neumann is “crooked.” Neumann’s evidence also provides a basis from which a fact finder could find that defendant’s statements were false. Neumann and two others who were present at the wedding that defendant attended submitted affidavits in which they declared that defendant’s statements were not true. And a fact finder could find that defendant’s online statements impute to Neumann conduct that is incompatible with the proper conduct of the opera- tion of a wedding venue. Couples often intend weddings to be significant, once-in-a-lifetime events that (they hope) will be unblemished by breaches in etiquette and unexpected hitches. As Dancing Deer Mountain’s co-owner Benton observed in his affidavit, “no one in their own best inter- est would call a venue who[se] owners” were alleged to have engaged in the conduct that defendant ascribed to Neumann; that conduct is inconsistent with a positive wed- ding experience.

In addition, a fact finder could find that defendant’s statement that Neumann is “crooked,” apart from implying that she is not a wedding vendor who can be trusted, alleges that she is dishonest, and would be defamatory for that reason. See Mannex Corp. v. Bruns, 250 Or App 50, 52, 57-61, 279 P3d 278 (2012) (recognizing that statements that the plaintiff “was a ‘crook[],’ that [a third party] should ‘never want to do business with [the plaintiff],’ and that [the third party] should ‘remember that name’” were defamatory, although concluding that the plaintiff’s claim for defamation failed because the statements were protected by qualified privilege); Durr v. Kelleher, 54 Or App 965, 967-68, 636 P2d 1015 (1981) (affirming trial court verdict awarding damages on defamation claim where “[t]he court found that [the] defendant had maliciously slandered [the] plaintiff by calling him a ‘crook’ and a ‘dishonest’ police officer”).

Finally, because a fact finder could find that defendant’s statements attacked Neumann’s professional or business reputation, and, for that reason, would be defamatory per se, plaintiffs were not required to present evidence of special harm to establish a prima facie case of defamation. See National Union Fire Ins. Co., 220 Or App at 584-85 (statements are per se defamatory if they “tend[] to injure the plaintiff in his or her profession or business”; only when a statement is not slander per se must a plaintiff allege special harm). Plaintiffs nevertheless did present evidence that would permit a fact finder to find that Neumann was harmed by defendant’s statements. Neumann and her co-owner attested to a fairly significant drop in bookings of the venue for weddings almost immediately after the challenged post was made, as well as to expenditures made to mitigate the harm to Neumann’s reputation as a wedding-venue operator. A reasonable fact finder could find based on that evidence that Neumann suffered special harm resulting from defendant’s statements.

Defendant makes several arguments as to why plaintiffs’ evidence is insufficient to establish the prima facie case required by ORS 31.150. For the reasons set forth below, we are not persuaded by them.

First, defendant asserts that his statements were non-actionable opinion. “Opinions, as ‘statements that can- not reasonably be interpreted as stating actual facts,’ are constitutionally protected.” Hickey v. Settlemier, 141 Or App 103, 110, 917 P2d 44, rev den, 323 Or 690 (1996) (quoting Milkovich v. Lorain Journal Co., 497 US 1, 20, 110 S Ct 2695, 111 L Ed 2d 1 (1990)). “Nevertheless, when an ‘opinion’ implies the existence of undisclosed defamatory facts, it is actionable.” Id. Here, notwithstanding defendant’s use of the phrase “in my opinion” at one point in the review, defendant’s statements reasonably could be understood to state facts or imply the existence of undisclosed defamatory facts. By stating that Neumann was rude to multiple guests, defendant, at a minimum, implied that Neumann engaged in conduct that breached the rules of decorum expected at a wedding. By stating that, in his opinion, Neumann will find a way to keep a wedding party’s deposit and then charge more, defendant implied that that is, in fact, what happened at the wedding he attended. The statement that Neumann forced guests to leave earlier than agreed upon is an asser- tion of fact, as is the statement that Neumann is crooked, in the context of the review.

Second, relying on federal cases, defendant asserts that his statements are not defamatory because, in his view, the context of the statements demonstrates that they are figurative, rhetorical, or hyperbolic. See Obsidian Finance Group, LLC v. Cox, 812 F Supp 2d 1220, 1222-25 (D Or 2011), affd in part, revd in part on other grounds, 740 F3d 1284 (9th Cir 2014) (describing test used by the Ninth Circuit to determine whether a statement is opinion or fact for defamation purposes under its First Amendment jurisprudence, and noting several examples of non-actionable hyperbole, figurative language, and rhetoric). To the extent that extra- jurisdictional authority informs our analysis, we disagree that defendant’s statements, as a whole, are hyperbolic. True, some of what defendant says in the challenged post is opinion and is hyperbolic (e.g., “worst wedding experience of my life!”). However, the bulk of the post is nonrhetorical and factual (e.g., “[t]he owners did not make the rules clear”; “when they saw something they didn’t like they waited until the day of the wedding to bring it up”; “[w]e were told we had to leave at 9pm, but at 8:15 they started telling the guests that they had to leave immediately”; “[t]he ‘bridal suite’ was a tool shed that was painted pretty, but a shed all the same”). Those factual details demonstrate that defendant’s statements are not mere hyperbole and, more to the point, would not be brushed off as mere hyperbole by a reasonable reader of those statements. See Wheeler v. Green, 286 Or 99, 104-06, 593 P2d 777 (1979) (analyzing whether recipient of statements would have understood statements to defame the plaintiff in order to determine whether statements were defamatory).

Third, defendant claims that plaintiffs qualify as limited public figures who were required to present evidence that defendant acted with malice in order to establish a prima facie case of defamation. However, the evidence at this stage of the proceedings does not show that plaintiffs are public figures or limited public figures, as that phrase has been interpreted by Oregon courts, and defendant is not a “media defendant.” See Bank of Oregon v. Independent News, 298 Or 434, 441, 693 P2d 35 (1985), cert den, 474 US 826 (1985) (“Two recent cases have held that liability applies where the plaintiff is not a ‘public figure’ and the defendant is not a part of the media.” (Citing Wheeler, 286 Or 99; Harley-Davidson v. Markley, 279 Or 361, 568 P2d 1359 (1977).)); id. at 443 (“Merely opening one’s doors to the public, offering stock for public sale, advertising, etc., even if considered a thrusting of one’s self into matters of public interest, is not sufficient to establish that a corporation is a public figure.”). As a result, Neumann was not required to present evidence of malice in order to establish a prima facie case of defamation under ORS 31.150.

Finally, defendant argues that, to establish a prima facie case of defamation, Neumann was required to present evidence rebutting his affirmative defense that he had a qualified privilege to make the statements that he did, or showing that he abused that qualified privilege. But a claim of privilege is an affirmative defense to a claim for defamation on which a defendant bears the burden of proof. Walsh v. Consolidated Freightways, 278 Or 347, 355, 563 P2d 1205 (1977). On this record, we cannot conclude as a matter of law that defendant was privileged to make the allegedly defamatory statements regarding Neumann.8 See Young, 259 Or App at 507-10 (in resolving a special motion to strike, a court assesses a defendant’s evidence only to evaluate whether the defendant’s evidence defeats the plaintiff’s claim as a matter of law).

Accordingly, we conclude that the trial court erred when it struck Neumann’s defamation claim, and we reverse the judgment of dismissal for that reason. Because plaintiffs have not separately addressed the trial court’s dismissal of the other claims in their briefing on appeal, we do not reverse the court’s decision to strike those claims We note, however, that those claims were dismissed without prejudice – as was required by ORS 31.150(1) – and that the trial court retains its authority on remand under ORCP 23 to entertain proposed amendments to the pleadings, as appropriate. ORCP 23; Allen v. Premo, 251 Or App 682, 685-87, 284 P3d 1199 (2012). Finally, because we have reversed the judgment in defendant’s favor, we also vacate the attorney fee award because it was predicated on the trial court’s determination that the special motion to strike should be granted as to all of plaintiffs’ claims. ORS 20.220(3). Thus, defendant’s cross-appeal, challenging the fee award, is moot.

 CONCLUSION

For the foregoing reasons, the trial court erred by granting the special motion to strike Neumann’s defamation claim. We therefore reverse the trial court’s decision as to   the defamation claim, vacate the attorney fee award, and remand for further proceedings consistent with this opinion.

On appeal, reversed and remanded as to defamation claim, attorney fee award vacated and remanded; otherwise affirmed. Cross-appeal dismissed as moot.

 

Pop Rx: “Why Doctors Hate Online Reviews”

Image-Angry-Doctor

SEPTEMBER 5, 2011

“Why Doctors Hate Online Reviews”

Rahul Parikh, MD

Dr. David McKee, a neurologist in Duluth, Minn., didn’t much like an Internet review that called him “a real tool” and suggested he didn’t care about his patients’ comfort. So he filed a defamation suit against the patient’s son who wrote the critical piece, which also alleged McKee wasn’t interested that his dad’s gown was hanging from his neck with his backside exposed.

A judge ultimately dismissed the case, stating that “the court does not find defamatory meaning, but rather a sometimes emotional discussion of the issues.” But it’s not the first time a physician filed a suit against a consumer for a bad Internet review — and probably won’t be the last. A physician’s reputation is all he or she has, and a sour review on the Web can make us very anxious.

Online review sites, of course, are imperfect and open to manipulation. But we all head to Google nevertheless in search of information and advice, whether we’re shopping for a book or a new physician. So how do you know whether the doctor you’re seeing is any good? And how do I know how good a doctor I am?

I recently Googled myself to determine how I fared on sites like Healthgrades, which exclusively rates doctors; and Yelp! and Angie’s List, which grade doctors alongside restaurants and plumbers. The results were inconclusive. Many sites had me listed but not rated. However, on Vitals.com I earned a mere one-star review (out of four). I had no idea who had rated me, or why I earned such a subpar grade. Some of the other information on the site was correct and some was not.

All of which suggests the amount of information online about doctors and the growth of ratings sites doesn’t make it any easier to figure out whether your doctor is brilliant or a quack.

The main reason for this is because it’s hard to figure out what “good” means. On one hand, it could mean delivering safe and effective care. Let’s call this high-quality care (though even defining “quality” this way is also sure to raise debate). Practically speaking, this could mean that if you bring your child to me with fever and an earache, I have the skill to diagnose an ear infection (an accurate exam) and prescribe the correct treatment (the right dose of the right antibiotic for the right number of days). On the other hand, “good” can also mean determining the kind of service I provided. When you brought your child to see me, did I greet you with a smile, listen, show some empathy? Was my office staff courteous and professional? Was it hard to find parking? Did you wait too long? Ideally, we want our doctors to give us both the highest-quality care and service. In reality, that’s almost impossible to judge.

Vitals and other sites have collected lots of anecdotal information about service — indeed, it’s one reason why the site was launched. “I was about to get my Achilles’ tendon repaired. On the table, the doc said, ‘I’m excited to do one of these. It doesn’t happen to me that often.’ That’s not the info I wanted to know then,” said Mitch Rothschild, the CEO of Vitals. “So we started Vitals to help people get that info ahead of time — when they are deciding, not when they are in a hospital gown.”

Rothschild said that we “are a social species — we care what other people think. And many of us make decisions not empirically, but by soliciting other people’s opinions.” Online sites are often the easiest place to speak out as well. After all, how many of us know where and how to file a formal complaint against a doctor or hospital?

But even with the best intentions and rationale, ratings sites have taken fire from the medical community. Much of this has to do with the traditional culture of medicine — new-media transparency causes a clash between the conservative and hierarchical nature of medicine and the forces that are trying to level the playing field between doctor and patient. In our guts, doctors are deeply uneasy about transparency; no one wants their strengths and weakness splayed for all to see in even the smallest open square, let alone anyone who Googles us. We want to care for patients in the best ways possible, despite all of the modern factors (insurance, bureaucracy, cost, risk) that have made this harder than in the past. So a negative review, while usually not leading to a lawsuit, often leads to anxiety, a crisis of confidence and concern for our reputation.

These sites also do very little to help me get better as a doctor or improve the doctor-patient relationship. Did my one-star review come from someone who felt I was rude or from someone who demanded a prescription but didn’t get one from me? With anonymity, it is impossible to tell. And even if I wanted to respond, federal privacy laws would not allow it.

Perhaps the biggest limitation with Vitals and other sites has to do with the paucity of reviews. While Vitals claims it has information on some 720,000 doctors, according to Rothschild, each doctor has only an average of four ratings. In another study of physician rating sites, researchers found that only three out of 250 doctors had been rated five or more times. Given the thousands of patient visits one doctor will take part in each year, one-to-four opinions hardly counts as the wisdom of the crowd.

Perhaps “how good is your doctor?” is the wrong question to ask. Given how complex medicine and medical care is these days, no single doctor can know it all and do it all. Instead, it may be better to look for a system of care — primary care, specialists and other members of a team — that works to provide quality care and multi-star service in a coordinated fashion. A few such systems exist around the country, and as healthcare reform continues, we’ll probably see more sprouting up. If you’re skeptical of that view, just look at the scandal in the military at Walter Reed Hospital. That shameful service and quality wasn’t because of a single doctor, but because the entire system meant to take care of wounded soldiers was in shambles, leaving patients out in the cold.

REMARKS

Mobutu: Same Old Same Old. Every professional prefers the safety of peer evaluation. Do college professors like to be rated by know-nothing students? No. Do professional politicians like to be evaluated by ignorant voters? No. Doctors are no different. But they are playing with the lives of their patients, and these people need to make their voices heard, because to them it could be a matter of life or death.

Allen3: Doctors need to be proactive. IMO, health care providers should be proactive on this issue by collecting and publishing feedback and ratings, rather than waiting for outside organizations such as Vitals.com to do it

Dr. Stan: MD’s are as a whole over paid whiners. The primary reason, according to research, people go to med school is “to make money, lot’s of it”. In addition the state medical boards regularly fail to discipline incompetent and unethical medical practitioners. Consequently they are not held in high esteem, which they feel is their “right”. If the medical boards did their job and weeded out the poor performers the need for these ratings would disappear.

Bigguns: I can understand your frustration with an anonymous person giving you one star without explanation. I might hesitate to hire you based upon a one-star review. Professionally, I don’t like working with doctors. They don’t listen well. They think they know better. They’re like you, doc.

Elian Gonzales: Puh-leeze! “It’s unclear how that number was calculated.” Really? Here’s something to do on the rest of your vacation: go to some doc’s office and quietly ask how long people have been waiting. The drug reps get in before the patients and *NO* doctor looks at an appointment time as anything to keep but a recommendation.

Aunt Messy: I see the whining has started. The problem with online reviews is that people who are happy with their doctors don’t write them. As with any type of rating, the only ones that bother are the ones with something to bitch about. I’m beginning to think I’m about the only one in the world willing to take ten minutes to go to a rating site and tell the world that I’ve happened on a fabulous doctor. I’ve had three or four bad doctors over the years and I fired them. It’s easy to do, you know. It’s really irritating when I hear someone complain endlessly about their GP (or whoever), but refuses to go shopping for a new one. I’m not interested in hearing the whining if you’re not going to do anything to fix the situations.

Sedan Chair: How bout this? I’ll review doctors scientifically when doctors start prescribing medication scientifically.

Odin’s Legacy: After more than four decades in a classroom, I notice that a little respect for the students goes a long way in getting a good review. Our sawbones might heed that. Having made that comment, I have to say that the younger doctors are much better at bedside manners than those my age. But I do agree about the anonymous part. Patients and students should be up front. Don’t unload on the receptionist about the wait time; wait until you’re in the room with the boss. Same with the prof. If teacher or dr flares up, then it’s time to look elsewhere.

DrSteevo: My Schedule is my review. If it is full, then I am doing a good job. I don’t care what online reviewers say about me, and neither do most of my patients. Word-of-mouth is far more important to a doctor.

Skeptonomist: If physicians don’t like popular ratings and being held accountable by lawyers, maybe they should accede to some real ratings and policing systems. Patients can certainly rate physicians on various kinds of unprofessional behavior, which is quite common and for which there is otherwise little accountability in private practice.

St. Simeon: These websites are not about honest, useful reviews of much of anything. They’re more bullshit designed to sell advertising. Have you seen the unbelievable nonsense people put on the internet? It’s all about making money and suckering people into thinking they’re getting something useful. Craigslist is one of the few sites I might actually trust, and that’s because – obviously – they aren’t trying to sell me anything.

Odetteroulette: Who cares if it’s “scientific?” The reviews are not there to be scientific. They are opinions. Opinions aren’t scientific. Duh. The thing to watch for, and to notice, is repetition and really, astoundingly bad reviews that repeat themselves. Then, you can be wary. But, transparency is a good thing. If you have a lot of low reviews, instead of writing fake reviews to ‘up’ your score, how about reading the reviews and really analyzing your work, to see if the criticism has any truth to it. Of course, if your office is full, then what do you care? Honestly, the reviews aren’t for YOU anyway.

Alien in Reno: Yes, the criteria used for these ratings are arbitrary, and, given that satisfied patients rarely write reviews, easily skewed. However, I think publicly available evaluations of a doctor’s effectiveness are way overdue. After all, we subsidized your education, and pay your wages, why should we be denied a means of gauging whether we will get skilled care? At my workplace, we now have a ‘consumer driven, high deductible PPO’ – this means we are expected to pay 100% of costs until we reach our $2000 deductible. So, shopping around a few doctors, at who knows how much per visit, quickly adds up. In the absence of a personal recommendation by someone who has the same condition, how on earth are we supposed to know if a doctor has done one hip replacement, or a thousand (or a thousand crappy hip replacements, for that matter)?Trust me, this is coming, and you’d better get used to it – you are very well rewarded for what you do, and you should expect a high degree of scrutiny and accountability to go with it.

Aquatic: I’ve found doctor reviews to be invaluable and I make a point to post reviews especially of good docs. Because at the end of the day we read the reviews to find the good ones. Without these online reviews, unless you are lucky enough to find enough information by word of mouth you are truly choosing blindly for some of the most important decisions in your life. A bad doctor can kill you – literally. Hell, they don’t even have to be bad, just uninterested and negligent. Can you tell I’ve met a few? There needs to be some source of accountability and publicly available information beyond reporting someone to the medical board. Dr. Parikh, if your concern really is to be a better doc then don’t let that one star review trouble you. Instead set up a process to solicit feedback from your patients. I have no doubt it will be helpful and your patients will feel heard and valued and so then value you even more. And one day you’ll check that ratings site and there will be five star reviews from patients saying – wow, my doc cares so much that he has us give him feedback on purpose and this is really a patient centered practice.

Jberejik: Go with the simplest explanation. We patients come to office on time, and then we wait. If you ask, without exception every one of your patients will complain about this. It is the one constant in American medical care. Fix this and you’ll get five stars across the board.

Jberejik: Dear Doctor, please read and take seriously the under current of anger and frustration in these responses. The relationship between doctor and patient is fundamentally broken in our society. Write about that. Try to understand why we are so upset. You listed a number of possible and seemingly illegitimate reasons why you didn’t get five stars – e.g. parent wanted drugs that you would not prescribe. But we are saying something different. Very different. Please, please, work and write and think about how this mess of a medical system itself requires healing.

Fernie: A doctor suing a patient’s relative for speaking up on a website? These are the same so-called “professionals” who are trusted with people’s lives, expect to be highly regarded in society, and in most cases honestly believe people look up to them. You are doing more to damage patients’ trust than you know, and if I was in the market for a pediatrician I certainly wouldn’t go to you after reading that about your response to your rating, because it looks like you are desperate for business and perhaps too self-conscious to be good at much. Now I would not trust you to wash your hands unless I directly observed you doing so. No competent conscientious professional should try to suppress their patients from sharing information.

Jeremy: If doctors made it easier for bad doctors to lose their licenses the medical profession would be much better off. Instead, they all band together and make it near-impossible get rid of a bad doctor, and impossible to sue them when they’re incompetent.

SOURCE

Dr. Rahul Parikh

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

In Rahbar v. Batoon, California Supreme Court Declined To Revive A Dentist’s Lawsuit Against A Patient Who Had Posted A Negative Online Review

JANUARY 16, 2013

“Defamation Cases Illustrate Dangers Of Suing Over Critical Internet Reviews”

Arent Fox, Lexology

 In Rahbar v. Batoon, the California Supreme Court declined to revive a dentist’s lawsuit against a patient who had posted a negative online review on Yelp.com. See No. S206889 (Cal. Jan. 3, 2013). The patient, Jennifer Batoon, posted her critical review in August 2008, writing “DON’T GO HERE. MOST PAINFUL DENTIST EVER.” and voicing her displeasure with her dentist’s treatment choices, billing practices, and communication skills. In September 2009, the dentist, Gelareh Rahbar, sued her former patient in San Francisco Superior Court, pleading claims of defamation and invasion of privacy based on the Yelp review.

The defendant ultimately moved to strike these claims under California’s anti-SLAPP (i.e., “Strategic Lawsuit Against Public Participation”) statute, which provides “a cause of action against a person arising from any act of that person in the furtherance of the person’s right of petition or free speech . . . in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” See Cal. Civ. Proc. Code § 425.16. The San Francisco Superior court granted the motion and awarded Batoon $43,035 in attorney fees. Rahbar did not appeal this decision, but instead filed a second lawsuit in August 2010 based on Batoon’s 2008 Yelp review. Again, the defendant filed an anti-SLAPP motion, and the court ruled she was entitled to fees. The plaintiff appealed this decision, and in October 2012, the California Court of Appeal affirmed the trial court’s grant of the special motion to strike and award of attorneys fees to the defendant. See Rahbar v. Batoon, No. A132294 (Cal. Ct. App. Oct. 16, 2012). On January 3, 2013, during its weekly meeting, the California Supreme Court rejected, without comment, Rahbar’s request to challenge the award.

The advent of the Internet has created a new forum for customers to chronicle their purchasing experiences or express their feelings toward service providers, and, in many cases, companies may feel that former customers have been unfairly, or deceptively, critical of their goods or services. Nevertheless, companies should tread carefully when considering legal action against former customers or clients who post unfavorable reviews on the Internet, especially in states like California that have strong anti-SLAPP statutes. In this context, rushing into court can result in an embarrassing defeat, or worse, costly awards under a state’s anti-SLAPP statute.

Dr. Rahbar denies these allegations and contends that both reviewers are lying about her in retaliation because she sent their overdue accounts to collection agencies. Most of the other 41 patients who have reviewed Dr. Rahbar on Yelp give her good marks; her cumulative rating is four stars out of a possible five. But she says these criticisms were devastating.

“I’ve suffered tremendously emotionally because of this,” she told DrBicuspid.com. “I have nothing against online review sites, but I don’t agree with defamatory speech.” She said Yelp advertising representatives had approached her with an offer to prominently display a favorable review in exchange for a monthly fee, an offer that felt to her “like extortion.”

Source

Source

McKee V. Laurion: McKee Filed Brief With Minnesota Court Of Appeals In August 2011

In McKee V. Laurion, Dr. David McKee filed a Brief with the Minnesota Court Of Appeals in August 2011.

He argued that the Trial Court erred in granting Defendant Laurion Summary Judgment on grounds that the offensive statements were opinions or otherwise not actionable.

The Trial Court erred in dismissing the Interference With Business Claim. The Trial Court dismissed the Complaint in its entirety but did not specifically address the Interference With Business Claim.

Defamatory diatribes were distributed to third parties as factual recitations to degrade Dr. McKee in the eyes of others.

Laurion’s statements were libelous by the defamation standard.

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Editor Footnote 1: Dennis Laurion Deposition Transcript about his avowed purpose of postings and correspondence

TANICK: I think you told us what prompted you to put the postings on Vitals and InsiderPages, but what was your purpose in doing it?

LAURION: In doing what?

TANICK: In posting – in making those postings about your encounter with Dr. McKee. You told us, I think, that you said you saw he had a profile there and he was kind of mediocre, and that kind of prompted you to put something on there. But what was your purpose? What was your goal or objective?

LAURION: I think it was simply to state a case of bad behavior from that individual while sticking to not causing any conclusions. I didn’t make any reference to his skill as a doctor, but I –

TANICK: Well – go ahead.

LAURION: – felt the site exists for that purpose.

TANICK: For what purpose?

LAURION: If you see a doctor, you can go there and rate him. You can tell good things about him and you can tell bad things about him.

TANICK: And you told bad things?

LAURION: I told that one episode. I didn’t make any predictions or characterizations.

TANICK: Fair enough.

TANICK: And did you use any material – did you use any notes or source material or anything in connection with those various letters?

LAURION: No. I simply drafted it.

TANICK: And you sent it to St. Luke’s Hospital. Right?

LAURION: Yes.

TANICK: Why?

LAURION: Because he has privileges from St. Luke’s, and at that point, 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.”

TANICK: So the reason you wrote to St. Luke’s – you wanted somebody in authority there to admonish Dr. McKee. Right?

LAURION: 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.

TANICK: Did you have any communications back from St. Luke’s?

LAURION: Yes.

TANICK: Was that Dr. Gary Peterson?

LAURION: Yes.

TANICK: He was the medical director there. Right?

LAURION: I’m not sure what his title is, but he’s the senior medical officer, by whatever name.

TANICK: And what – what did he tell you?

LAURION: Initially I got a letter from him that said that Dr. McKee is not their employee and that therefore his recourse was limited to giving a copy of my complaint to Dr. McKee, and that he had done so.

TANICK: You also wrote to the Minnesota Medical Association?

LAURION: Yes.

TANICK: And what was your purpose in doing that?

LAURION: My purpose was the same as my purpose in all of the others. They were either regulatory bodies or they were peer-review bodies, and my ultimate goal was that somebody would say, “You should be careful how you address your patients so that we don’t get these complaint letters.

Editor’s Footnote 3: Dennis Laurion’s Deposition Transcript about going full throttle forward

TANICK: On page 3, you state at the end of the first paragraph you had no intention of doing anything more about it, posting any more information about Dr. McKee or corresponding with anybody about Dr. McKee. Right? That’s what you said in your letter?

LAURION: I said that with the preface “otherwise.”

TANICK: “Otherwise.” So what did you mean, “otherwise?”

LAURION: I meant that if there’s no further need to post about him, that I won’t. If I’m left alone, I’m fine.

TANICK: All right. And you conclude by saying, “I am no longer inclined to discuss Dr. McKee’s behavior with anybody.” And the next paragraph is “I’ll consider this matter finished. Right? And “Will Doctor McKee” question mark. Right?

LAURION: Yes, and I was taking your threat letter at face value, that if I complied with what you wanted, that would be the end of the issue.

TANICK: However, you decided not to do that. Right?

LAURION: No, I don’t agree with that.

TANICK: All right. So the letter prompted you to do something?

LAURION: Yes.

TANICK: And what is it, it prompted you to do?

LAURION: You told me not to talk to anybody else and to delete the postings. I deleted the postings and stopped talking to anybody else.

TANICK: Did you do anything else relative to that?

LAURION: Ask me something specific, so I can answer it one way or the other.

TANICK: Did you do anything relative to the Dr. McKee situation other than try to delete postings?

LAURION: I successfully deleted the postings, those sites I wrote to and asked them to delete them and they deleted them. The sites that hadn’t posted them wrote and told me that they hadn’t posted them. I just did not delete them manually.

TANICK: Did you have any communication at any time, Mr. Laurion, with any members of the media respecting or regarding Dr. McKee and the situation with he (sic) and your father?

LAURION: Not by name. I wrote to – only after I got your threat letter, I wrote to Mark Stodghill and to two television stations. I said, “I have been threatened by a lawsuit by a doctor. If he follows through, is it newsworthy?” Nowhere in these contacts did I say his name or even my father’s name or St. Luke’s Hospital as a track back.

TANICK: Mr. Laurion, I have before you Exhibit 11, and that’s a collection of communications that you made to members of the media, right, concerning the situation with Dr. McKee. Right?

LAURION: It was concerning the fact that a doctor was suing me, and I asked if that was newsworthy.

TANICK: Sure.

TANICK: Exhibit 12 is a document that you sent to ImproveVitals and to Legal – or to InsiderPages and also to City Search – well, no. City – that’s their response. These are – Exhibit 12 is correspondence that you sent to ImproveVitals and InsiderPages asking to delete the postings you had made. Right?

LAURION: Yes.

TANICK: And that was a response to my letter to you on May 7th. Right?

LAURION: Yes.

TANICK: Okay, why did you – I think you indicated that the reason you sent these letters to these people was to see if my communications to you on behalf of Dr. McKee was (sic) somehow newsworthy. Right?

LAURION: Oh, no. No.

TANICK: All right. Well you tell me why you sent those letters.

LAURION: I sent them to ask if a resulting lawsuit would be noteworthy. I didn’t ask them anything about your letter, nor did I want them to do a piece about my father’s treatment. I was not contacting any of those sources and saying “A doctor was rude to my father. Would you run with it?” because, obviously, that wouldn’t be newsworthy. I asked “If I’m sued, will it be newsworthy?”

TANICK: Why were you asking if this was newsworthy? What was your purpose?

LAURION: From what I’ve read on the Internet, this is a prececdent type of situation. If you Google doctors who are suing their patients, you will find only six or seven names.

MCKEE: I’m not suing a patient.

TANICK: Go ahead.

LAURION: And there are several – this apparently is a hot topic. Not only doctors suing families, but anybody suing somebody for Internet defamation. I think even your own website describes Internet defamation as a brand new field, a brand new area of experience. There’s a lot of conversation about it. There are a lot of sites written by doctors for doctors, some of them internists, some of them dentists, and so forth, and inevitably on all of them there’s a question of “How do I respond when somebody complains about me on the Internet?” And the advice generally given is either ask them to retract it, which they probably won’t do, or ignore it, it will make the Web site go higher, and if you sue anybody, it will garner publicity. Also, I never cared about Internet defamation before, but I’ve been converted and I’ve read sites about Internet defamation, and they generally all say if somebody sues you for defamation, you should shine a spotlight on it; and therefore, I felt that if he sues me, he should have the courage of his convictions and let the entire community know it. The article says he rebuts all of those statements. So fine, he got to say he rebutted them. I got to say that I affirmed them. It’s a public debate.

TANICK: All right. And on May 11th, you were contacting media to see if there was some interest on their part in writing an article if you were sued. Right?

LAURION: But I was not writing about Dr. McKee. I was writing and saying I might be sued by a doctor and is that newsworthy.

TANICK: Right.

LAURION: I purposely redacted everything from my complaint letter that would even lead them to what hospital. Had he not sued me, and they contacted me again and said what’s happening, I would have said nothing, and I would have never revealed his name.


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: Laurion Filed Respondent Brief To Minnesota Court Of Appeals

SEPTEMBER 9, 2011

No. All-1154

STATE OF MINNESOTA IN COURT OF APPEALS

David McKee, M.D., Appellant

Dennis K. Laurion, Respondent

BRIEF OF RESPONDENT DENNIS K. LAURION

John D. Kelly

Attorney Reg. No. 54732

Nathan N. LaCoursiere Attorney Reg. No. 0388349

HANFT FRIDE,

A Professional Association 1000 U.S. Bank Place

130 West Superior Street Duluth, MN 55802-2094 218/722-4766

Attorneys for Respondent

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 Appellant

STATEMENT OF THE ISSUES

1. WHETHER THE DISTRICT COURT ERRED BY GRANTING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT?

Held: The district court held that, whether viewing Respondent’s statements individually or as a whole, the statements did not support a claim of defamation as a matter of Minnesota 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 (Minn. App. 1993)

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

2. WHETHER THE DISTRICT COURT ERRED BY DISMISSING APPELLANT’S “INTERFERENCE WITH BUSINESS CLAIM,” WHICH WAS WHOLLY DEPENDENT ON APPELLANT’S DEFAMATION CLAIM?

Held: Appellant waived this issue on appeal by failing to properly raise it below. Further, the vaguely pled “interference with business” claim fails to state a claim on which relief can be granted under Minnesota law. Also, the claim is derivative and wholly dependent on proving defamation, which the district court correctly held Appellant could not do. Thus, the district court did not err by dismissing the entirety of Appellant’s claims.

Apposite Authority:

Thiele v. Stich, 425 N.W.2d   580 (Minn. 1988)

Wild v. Rarig, 302 Minn. 419, 447, 234 N.W.2d 775, 793 (Minn. 1975)

STATEMENT OF THE CASE

Respondent Dennis Laurion spoke up for his father when he thought his father was treated with a lack of decency, dignity, and respect by Appellant Dr. David McKee.

Appellant sued him for defamation after threatening that he had the “means and motivation to pursue all available recourse against you.” (Appellant’s Appendix (“AA”) 74.) The district court properly dismissed Appellant’s suit, ruling that, whether read individually or as a whole, none of the statements attributed to Respondent were defamatory as a matter of law. Respondent respectfully requests that this Court affirm the decision of the district court.

STATEMENT OF THE FACTS

Kenneth Laurion, Respondent Dennis Laurion’s father, suffered a stroke on April 17, 2010. (Dennis Laurion Deposition Transcript (“Laurion Depo.”) at 34:12.) He was transferred to St. Luke’s Hospital by ambulance and admitted to the Intensive Care Unit. (Laurion Depo. at 35-36; Respondent’s Appendix (“RA”) at 55.) On April 19, 2010, he was moved to a private room (Laurion Depo. at 37:21-22; RA 55.) Kenneth Laurion’s family, his wife Lois, son Dennis, and daughter-in-law Bonnie-visited him after he was transferred out of ICU. (RA 27, 55.)

Shortly thereafter, Appellant Dr. David McKee arrived to conduct a neurological exam. Appellant had never before met any of the Laurions. (McKee Depo. at   12:10- 13.) None of the Laurions had ever met Appellant. (Laurion Depo. at 44:6-9; RA 56.) The encounter between Appellant and the Laurions lasted no more than 20 minutes. (David McKee Deposition Transcript (“McKee Depo.”) at 20: 16-17.) Respondent was offended by the manner in which Appellant conducted himself toward Kenneth Laurion during the examination. (See, e.g., RA 27 – 29; 52 – 53; 56.)

Respondent’s Statements

On April 22, 2010, Respondent wrote a patient care complaint to St. Luke’s Hospital, which was copied to other health-care related entities, regarding Appellant’s treatment of his father. (RA 27 – 29.) It is apparent from this patient care complaint that Respondent and his family were taken aback, not by Appellant’s medical treatment of Kenneth Laurion, but by the brusque and disrespectful manner in which Appellant conducted himself toward Kenneth Laurion during the visit. (Id.; see also RA 52 – 53; 56.) Respondent described the events as follows:

  • When Appellant entered the room, he “appeared ” annoyed.
  • Appellant asked Kenneth Laurion if he was Mr. Laurion. When Kenneth Laurion said yes, Appellant said, “When you weren’t in the ICU, I had to find out whether you had transferred or died.”
  • Appellant “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 option.’ I was appalled! . . . . My mother didn’t need to be reminded that my father could have died.”
  • Appellant said “I have to do a neurology exam.” When Kenneth Laurion stated that therapists had been seeing him, and that he was used to their exams, Appellant said, “Therapy? You don’t need that!”
  • Appellant asked Kenneth Laurion if he could sit up and began lifting him up by his arms. When Kenneth Laurion was seated on the edge of the bed, Appellant asked him to get out of bed and walk around. Kenneth Laurion’s gown hung from his neck, but his back was exposed. Kenneth Laurion said, “I think I can walk, but this gown doesn’t cover my backside.” Appellant said, “That doesn’t matter,” and pulled Kenneth Laurion’s arms toward him. Bonnie Laurion asked Appellant to wait a moment while Dennis, Bonnie, and Lois Laurion left the room.
  • In the hall, Lois Laurion, Kenneth’s wife, expressed consternation over Appellant’s “transferred or died.”
  • When Appellant left the room, he glanced at the waiting family members and said, “You can go back in.” Appellant did not give the family a status update or ask any questions of the Appellant walked over to a nurse near a tub of patient charts and stood near her, scowling.
  • Respondent subsequently mentioned his father’s experience to a nurse friend. She concluded that Respondent was speaking of Appellant and, when questioned, stated “He’s a tool!”

After providing this description, Respondent shared 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.) Respondent 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.” Respondent proudly described his father’s accomplishments throughout a life of service to country, family, and community. Respondent 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, Respondent also posted a shortened description of the encounter on two “doctor rating” websites, Insiderpages.com and Vitals.com.

(Laurion Depo. at 118:5-6; AA 70-72.) These postings contained the same statements set forth in the April 22 and 24 patient care complaints, with only slight difference.

( Compare RA 28 with AA 70.) Rather than stating a recollection that Appellant had said “Some stroke patients die before getting out of ICU; I guess this is the better option,” Respondent recalled Appellant saying, “Well, 44% of hemorrhagic strokes die within 30 days. I guess this is the better option.” (Id.)

Appellant’s   Testimony and Prior Writings Establish that Appellant Did Conduct Himself and Utter Statements in Accordance with Respondent’s Recollection.

The record before the district court reflected that Appellant did make statements and conduct himself substantially in accordance with Respondent’s recollection, although Appellant disagreed with Respondent’s interpretation of the meaning and intent behind his words and demeanor. ( Compare RA 28 with McKee Depo. at 26 – 34 and Exhs. 16 and 17.)

Appellant said that he initially attempted to locate his patient, Kenneth Laurion, in the intensive care unit, that Kenneth Laurion was not there, and that he then went off to find him. (McKee Depo. at 16:9 – 17:5.) Appellant acknowledged that, in his experience, when dealing with patients and their families following a stroke episode, people are typically anxious or upset, sometimes “extremely anxious.” (Id. at 10:18 – 11:7.) Appellant 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.)

When Appellant entered the Kenneth Laurion’s hospital room on the evening of April 19, 2010, he made a jocular comment meant to kind of relieve tension . . . to the effect of 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, Appellant 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 Appellant’s statements only served to heighten a very tense and anxious time for the family. (RA 52 – 53; 56.)

Appellant 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, Appellant 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.) Appellant 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 gottenhim out of bed, I asked if he felt up to that and if he wanted to try to stand and walk a little bit.”).)

Kenneth, Lois, Dennis, and Bonnie Laurion all recall Appellant stating that, when he couldn’t find Kenneth Laurion in the ICU, he had to find out whether Kenneth had transferred or died. (Dennis Laurion Depo. at 48; RA 50 (Bonnie Laurion Depo. at 30: 12), 52, 56.) Dennis, Bonnie, and Lois recall Appellant making a statement about how many people die following strokes, and that not dying was the better option. (Laurion Depo. at 49; RA 51 (Bonnie Laurion Depo. at 43.), 53.) Dennis, Bonnie, and Kenneth all recall Appellant telling Kenneth that he “didn’t need therapy.” (Laurion Depo. at p. 51; RA 50 (Bonnie Laurion Depo. at 31:35), 56.) All of the Laurions remember that Kenneth did not want to get out of bed with his backside exposed through the hospital gown, and that Appellant seemed dismissive of the concern, stating something to the effect that “it doesn’t matter.” (Laurion Depo. at 60; RA 50, 53, 56.) All of the Laurions came away from the encounter with a very poor opinion of Appellant’s bedside manner, i.e., his basic people skills.

Appellant’s Response to Respondent’s Patient Care Complaints

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

By letter dated the very next day, Appellant, through counsel, claimed that Respondent had defamed him. (Laurion Depo. at Exh. 6.) He stated that he was prepared to pursue “appropriate legal action to protect and preserve his reputation.” (Id.) Appellant 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 [Appellant] has the means and motivation to pursue all available recourse against you.” (Id.) At no point before sending this letter had Appellant made any personal attempt to contact either Kenneth Laurion or Respondent regarding the patient care complaints, much less extend an apology for any offense given. (McKee Depo. at 80:22; 81:21.)

Respondent responded to Appellant’s threat letter via email the same day. Respondent told Appellant that he had no intention of posting anything more, and he stated that he would consider the matter finished. (Laurion Depo. at Exh. 7.) Further, Respondent removed his online postings.   (Laurion Depo. at p. 180 and Exh. 12.)

On May 14, 2010, Respondent 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), Appellant commenced this litigation against Respondent.   (RA 21.)

Appellant’s Defamation   Suit Against Respondent

Appellant’s Complaint alleged that 11 of the statements contained in Respondent’s communications to various medical organizations and online were defamatory. (RA 18 – 20.) These are the only statements before the Court on appeal. The Complaint also claimed that the same conduct, i.e., the alleged defamation, constituted “Interference With Business.”   (RA 20.)Respondent moved for summary judgment on the ground that his statements of opinion concerning the encounter with Appellant could not be reasonably interpreted as stating facts capable of being proven either true or false. (RA 3 – 11.) Before Appellant had responded to the motion, and before the hearing on the motion, the parties noted the depositions of Dr. McKee, Dennis Laurion, and Bonnie Laurion. These depositions, along with Appellant’s prior writings to St. Luke’s and the Minnesota Board of Medical Practice, established that Appellant had communicated and conducted himself substantially in accordance with Respondent’s recollection of the encounter. (McKee Depo. at pp. 26 -34; Exhs. 16 and 17.) Accordingly, Respondent presented further argument to the district court that summary judgment was appropriate because the gist and sting of the statements attributed to Respondent were substantially true. (RA 39 et seq.) The district court heard argument on Respondent’s motion and dismissed Appellant’s claims by Order and Memorandum filed April 28, 2011. (Appellant’s Addendum (“App. Add.”).)

Appellant’s   Factual Misrepresentations

Appellant’s “Statement of the Facts” is, on the whole, more an ad hominem attack on Respondent than an accurate representation of the simple record before this Court.

Pursuant to Minn. R. Civ. App. P. 128.02, subd. l(c), Appellant has a duty to set forth a statement of the facts “fairly, with complete candor, and as concisely as possible,” with specific page references to the record. Id.; see also Minn. R. Civ. App. P.   128.03.

Instead, Appellant has taken every opportunity to denigrate Respondent and, in several places, gone outside the record to do so. Respondent addresses the most serious misrepresentations:

First, Appellant claims that this suit is not in response to Respondent’s absolutely privileged complaint to the Board of Medical Practice, yet he repeatedly represents to this Court that Respondent defamed him by stating that Appellant placed Kenneth Laurion at physical risk. (Brief of Appellant David McKee (“App. Br.”) at pp. 3, 5, 8, 12, 19, 27.) Appellant claims that Respondent’s letters to various health care organizations, unlike Respondent’s internet postings, contain an “additional accusation” that Appellant placed Kenneth Laurion in physical jeopardy. (Id. at p. 8.) Later in his brief, Appellant claims that the district court “overlooked one of the most heinous-and controverted-of [Respondent]’s statements-the alleged physical mistreatment of his father.”   (App. Br. at 27.)

As is clear on the face of the 11 statements copied in the Complaint, none of the statements under review, and none of Respondent’s communications in general, state that Appellant placed Kenneth Laurion in physical jeopardy. Laurion Depo. at Exhs. 1 – 3, 8.) None of the statements are critical of Appellant’s medical treatment of Respondent’s father. (Id .) The statements at issue are critical of the lack of dignity and respect with which Appellant treated Kenneth Laurion. (Id.) The only place Respondent shared safety concerns about Appellant’s treatment of his father was in his complaint to the Minnesota Board of Medical Practice, which is absolutely privileged under Minn. Stat. § 147.121, subd. 1 (2010). 1

Second, Appellant claims that he tried to “mitigate the harm” of Respondent’s statements by sending a cease-and-desist letter, but Respondent “proceeded full throttle forward,” and Appellant, claiming to be “aware” that Respondent was “intent on further disseminating the defamation,” commenced this suit. (App. Br. at pp. 10-11.) Appellant is attempting to draw attention away from the chronology of the case. Between Appellant’s May 7 threat letter and May 18 Complaint, the only communication Respondent made naming Appellant was the formal filing of his previously emailed complaint to the Board of Medical Practice on May 14.

Third, Appellant attributes to Respondent an “avowed pmpose” to “degrade [Appellant] in the eyes of others,” a “professed desire to harm the doctor’s reputation,” a “stated desire . . . to expose [Appellant’s] allegedly improper medical practices to the world at large,” and an intent to “harm [Appellant] financially.” (App. Br. 8, 10, 18, 33, 36.) These statements have no foundation in the record, and can be found nowhere in the 11 statements under review. Respondent was clear at his deposition concerning his purpose in registering his criticisms of Appellant’s treatment of his father. He said he hoped that “somebody with an M.D. after his name would call [Appellant] 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.”‘ (Laurion Depo. at 158.) Regarding complaints to peer-review bodies, Respondent’s goal was to have someone say, “you should be very careful how you address your patients so that we don’t get these complaint letters.” (Id. at   166.)

Fourth, Appellant claims that Respondent instigated the extensive Duluth News Tribune coverage surrounding this litigation. (App. Br. at p. 11, n.5.) That is inaccurate. Offended by Appellant’s May 7 threat letter, Respondent contacted local media entities on May 11 and asked if it would be newsworthy if the doctor followed through with his threat to sue. (Laurion Depo. at Exh. 11.) Respondent did not mention Appellant by name (id.), and it is undisputed that press coverage did not follow until after the June 9, 2010 public filing of the lawsuit. (RA 107.) The news coverage of this case followed as a result of Appellant’s decision to file a defamation lawsuit against the son of a former patient. Respondent is not responsible for News Tribune publications that follow on the heels of publicly filed pleadings.

Appellant’s brief contains additional misrepresentations, which Respondent will address further in the analysis below.

CONCLUSION

By taking liberties with the record and using inflammatory descriptions of Respondent’s conduct wherever possible, Appellant seeks to propel Respondent’s statements to the level of actionable defamation. But the simple record reflects that Respondent spoke up for his father when he thought his father was treated with a lack of dignity and respect by Appellant, and none of the statements attributed to Respondent are defamatory as a matter of law, either because the statements are substantially true by Appellant’s own admission, or they represent Respondent’s constitutionally protected opinion of Appellant’s treatment of his father.

Argument

The case before the Court is simple, and the record is narrowly confined. For purposes of his motion for summary judgment, Respondent asked the district court to assume that the 11 statements attributed to him in Appellant’s Complaint were (a) actually made; and (b) communicated to third parties. Thus, the sole question on appeal is whether the district court correctly ruled that the 11 statements, whether read individually or as a whole, were not defamatory as a matter of law. The answer to that question is “yes.” All of the statements attributed to Respondent are either (a) substantially true, as established by Appellant’s own deposition testimony and prior writings; (b) constitutionally protected statements of opinion; and/or (c) too vague, ambiguous, and lacking in context to be capable of lowering reputation.

1. STANDARD OF REVIEW.

On appeal from summary judgment, this Court determines whether there are genuine issues of material fact, and whether the district court erred in its 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).

Appellant misrepresents the standard of review in his brief by claiming, without citation, that the district court was required to “accept [Appellant]’s assertions of falsity, as required on a motion for summary judgment.” (App. Br. 13.) Respondent is unaware of a decision providing that this Court or the district court must assume all of the statements attributed to him are false for purposes of resolving a motion for summary judgment. Rather, Appellant has the burden of proving falsity. Jadwin v. The Minneapolis Star and Tribune Co., 390 N.W.2d 437, 440 n.l; see also Hunter v.Hartman, 545 N.W.2d 699, 705 (Minn. App. 1996) ( citing Moldea v. New York Times Co., 22 F.3d 310, 317 (D.C.Cir. 1994), for the proposition that “only if ‘no reasonable person could find’ the allegedly defamatory statements ‘supportable interpretations’ of the situation being described are the statements actionable in defamation,” and Liberty Lobby v. Dow Jones & Co., 838 F.2d 1287, 1292 (D.C.Cir. 1988), for the proposition that “[w]here the question of truth or falsity is a close one, a court should err on the side of nonactionablitity,” review denied (Minn. June 19, 1996).) In light of Appellant’s own deposition testimony and prior writings, Appellant did not, and can not, meet the burden of proving falsity in this case.

2. APPLICABLE LAW

Minnesota law requires that allegedly defamatory statements be specifically pled, and Appellant set out 11 in his Complaint. Bebo, 632 N.W.2d at 739. To prove that any of the 11 statements were capable of defamatory meaning, the elements of defamation required Appellant to prove that the statements were (1) false; (2) communicated to third parties; and (3) tended to harm Appellant’s reputation and lower him in the estimation of the community. Bebo, 632 N.W.2d at 739. Appellant “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, 390 N.W.2d at 441 (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.

Further, under Milkovich v. Lorain Journal Co., the United States Supreme Court held that two types of statements are protected under the First Amendment: (1) statements about matters of public concern not capable of being proven true or false; and (2) statements that cannot be interpreted reasonably as stating facts. Id. at 18-21, 110 S. Ct. at 2705-07; see also Bebo, 632 N.W.2d at 739 (providing that statements which cannot be reasonably interpreted as stating actual facts are absolutely protected by the First Amendment); 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), aff’d as modified, 509 N.W.2d 365 (Minn. 1993). Whether a statement can be interpreted as stating actionable facts or can be proven false is a question of law for the court. Geraci, 526 N.W.2d at 397; McGrath, 502 N.W.2d at 808. “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.

As an example of the sort of utterances Minnesota courts have stated cannot be reasonably interpreted as stating facts, in Geraci, statements 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. 526 N.W.2d at 397; see also Huyen v. Driscoll, 479 N.W.2d 76, 79 (Minn. App. 1991), review denied (Minn. Feb. 10, 1992) (statements concerning plaintiff’s level of accountability and uneven use of authority, even though hybrid statements containing both opinion and underlying fact, were not actionable because, when all underlying predicate facts were considered, with all their conflicting inferences, the statements were still not provable one way or the other). As an additional tool for distinguishing a protected statement of opinion from an actionable statement of fact, Minnesota courts may consider the following four factors:

  • the statement’s precision and specificity;
  • the statement’s verifiability;
  • the social and literary context in which the statement was made; and
  • the statement’s public

Huyen, 479 N.W.2d at 79; Geraci, 526 N.W.2d at 397; Bebo, 632 N.W.2d at 740. As an example of how these four factors have been applied, 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 N.W.2d at 808 n.4.

3. The District Court Correctly Ruled That Appellant Had Failed To Allege Any Actionable Statements As A Matter Of Law

The district court closely analyzed the 11 statements attributed to Respondent and correctly held that, whether read as a whole or individually, the statements were not defamatory. (App. Add. 12 – 18.)

  1. None Of The Alleged Statements Are Defamatory

[1] “[Appellant] ‘seemed upset’ that [Kenneth Laurion] had been transferred from an ICU (intensive care unit) to a ward room.” This statement cannot be interpreted reasonably as stating fact versus subjective opinion, and thus is entitled to constitutional protection. Milkovich , 497 U.S. at 18-21, 110 S. Ct. at 2705-07; Bebo, 632 N.W.2d at 739. The statement lacks precision, and is incapable of independent verification by a jury.   Appellant could testify that, to the best of his recollection, he was not upset, and thus should not have “seemed upset” to others at the time, but such testimony does not convert Respondent’s opinion of Appellant’s demeanor into a provably false statement of fact.

[2] “[Appellant] stated to [Kenneth Laurion] that he had to ‘spend time finding out

if you were transferred or died.”‘ By Appellant’s own testimony, we know that the gist or sting of this statement is substantially true, and thus not defamatory. Jadwin, 390 N.W.2d at 441; see also supra. at pp. 5 – 6 (citing McKee Depo. at 40:14 – 23 and Exh. 16).

[3] Appellant stated that “44%, of hemorrhagic strokes die within 30 days. I guess this is the better option.” As the district court correctly recognized, whether the figure in the statement is “44%,” “50%,” “half,” or any other figure, this statement is substantially true by reference to Appellant’s own deposition testimony and prior writings. (App. Add. 4 – 5, 14; see also McKee Depo. at 40:14 – 23 and Exhs. 16 – 17.) Appellant concedes making the “jocular” comment that one leaves the ICU in only one of two ways-by improving to transfer into a regular hospital bed, or dying. Thus, as the district court noted, “the general import of the conversation (that some stroke patients never make it out of the ICU) is true,” and where the gist or sting of an alleged statement is true, it is not defamatory. (App. Add. 14 (citing Jadwin, 390 N.W.2d at 441).)

[4] Appellant “told [Kenneth Laurion] that ‘you don’t need therapy.'”Appellant acknowledged that a conversation related to the therapy Respondent’s father had received took place. (McKee Depo. at Exh. 16, p. 1.). Further, Kenneth (the patient himself), Dennis, and Bonnie Laurion all recall a comment by Appellant substantially in accordance with this statement. (Laurion Depo. at p. 51; RA 50 (Bonnie Laurion Depo. at 31:3 – 5); RA 56.) Again, where the gist or sting of a statement is true, it is not defamatory.

Further, the statement is too ambiguous and lacking in context to be capable of lowering Appellant’s reputation. The statement does not suggest that Appellant, by stating Kenneth Laurion did not need therapy, had reached an incorrect medical conclusion. As the district court noted, a medical professional stating that a patient does not need therapy could well be a valid medical opinion. (App. Add. 14.)

[5] Appellant “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 Appellant’s own admission. (McKee Depo. at 44:14 – 16 and Exh. 16, p. 1.) Simply because it “never crossed [Appellant’s] mind that [Respondent] was concerned about his father’s modesty with the back of the gown open” does not provide grounds for Appellant to sue for defamation. Respondent believed Appellant was being insensitive to his father’s modesty concerns, and Respondent is entitled to voice his opinion in that regard. Further, in addition to constitutional speech protections, the legislative policy of this state supports and encourages patients and family members to register such concerns.2

[6] “[Appellant] strode out of the room without talking to [Kenneth Laurion’s] wife or [Respondent].” Whether or not Appellant told the family they could “go back in” is irrelevant, because the gist and sting of this statement is true by Appellant’s own testimony. (McKee Depo. 56:20 – 22; 58:20 – 60:3.) Appellant did not provide a status update or report to the family regarding Kenneth Laurion’s condition upon leaving the room, notwithstanding his testimony that, following a stroke episode, patients and their families are typically anxious, and look to him for clues as to what can be expected moving forward. (McKee Depo. at 56 – 59.)

[7] Respondent] subsequently stated that ‘Dr. McKee is a real tool!'” As a preliminary matter, Respondent notes that he did not make this statement, although he does not dispute that he published the statement. Appellant’s frequent insults and allegations to the contrary are offensive, unprofessional, and even defamatory in light of Appellant’s deposition testimony in this case. (See, e.g., App. Br. 29-30 (“Dr. McKee . . . 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. . . . This credibility concern alone . . . warrants a trial, especially when coupled with Laurion’s other lies.”).) Even if Respondent had made this statement directly, rather than publishing the statement of another, Appellant fails to show how this statement is defamatory as a matter of Minnesota law. The statement that “Dr. McKee is a real tool” is not defamatory because the term “tool,” like the term “troublemaker” in McGrath, lacks precision or specificity, fails to suggest any verifiable false facts about the plaintiff, and is so ambiguous as to prevent any underlying facts from being inferred from the phrase. 502 N.W.2d at 808; see also Jadwin, 390 N.W.2d at 441 (“Expressions of opinion, rhetoric, and figurative language are generally not actionable.”). It is significant that none of the parties have any idea what this term actually means. (Laurion Depo. at 95; McKee Depo. at 96 – 97.) Because this language is not actionable under Minnesota law, all of Appellant’s attempts to create a trial issue out of what he repeatedly and offensively refers to as the “phantom nurse” may be disregarded.

[8] “[Appellant] ‘blamed’ [Kenneth Laurion] for loss of [Appellant’s] time.” As with the statement that Appellant “seemed upset,” this statement cannot be reasonably interpreted as stating fact, as opposed to Respondent’s constitutionally protected opinion, and thus is not defamatory. Appellant could testify that he did not blame Kenneth Laurion for any loss of his time, but this does not render Respondent’s opinion of Appellant’s demeanor and conduct a provably false statement of fact.

[9]”[W]hen he exited the room where [Kenneth Laurion] was located, [Appellant] was ‘scowling.”‘ This is another statement of Respondent’s subjective interpretation and opinion of Appellant’s demeanor at the time, rather than any independently verifiable false statement of fact. The district court correctly determined that this statement was not defamatory under Minnesota law. (App. Add. At 17 (“What some people might perceive as a scowl might simply be another person’s standard facial expression.”).)

[10] “[Appellant] regarded [Kenneth Laurion] as a ‘task and a charting assignment.”‘ This is clearly a statement of protected opinion. Appellant could testify to ajury that he did not regard Kenneth Laurion as a task and charting assignment, but such testimony can never transform Respondent’s perception and opinion of the manner in which Appellant treated his father into any verifiable false statement of fact. The reader/listener would always understand this statement to be an expression of opinion, rather than a representation of fact.

[11] “[Appellant] did not treat [Kenneth Laurion] with dignity.”More than any other statement, this is an expression of Respondent’s constitutionally protected opinion. It serves as the strongest statement of Respondent’s criticism of Appellant’s conduct toward his father. Respondent felt that Appellant treated Kenneth Laurion without the dignity and respect he deserved. Respondent is absolutely entitled to speak his opinion in that regard. It is difficult to imagine the extent to which our society would be lessened if our Courts subjected citizens to liability for this kind of speech whenever someone with “means and motivation” chose to commence suit.

  1. Reading Each Statement In Context Of The Whole Does Not Render The Statements Any More Defamatory

Appellant’s primary claim of error on appeal is that the district court failed to consider each of Respondent’s statements within the context of the whole. (App. Br. 19 (claiming that the district court “took a myopic view” of Respondent’s statements and “erred in parsimoniously parsing each individual statement, as an isolated remark, and ignoring the overall context and effect of the statements”).)

First, Appellant is incorrect. The district court did consider Respondent’s statements as a whole. (App. Add. 12.) The district court rightly concluded that, “taken 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.” (Id .)

Placing oneself in the seats of the audience reading Respondent’s communications, the correctness of the district court’s decision is apparent. See Jadwin, 390 N.W.2d at 447 (“Expressions of opinion . . . are generally not actionable if, in context, the audience would understand the statement is not a representation of fact.”) There are two separate communications from which Appellant drew the 11 allegedly defamatory statements: (a) the patient care complaint sent to St. Luke’s and other health care related organizations; and (b) the online postings to Insiderpages.com and Vitals.com.

Reading the patient care compliant in the context of the whole, the   overall statement is a criticism of what Respondent perceived to be the doctor’s brusque and insensitive treatment of his father during an anxious and difficult time. The patient care complaint describes Respondent’s recollection of the encounter in detail, but it is always understood that the gist of the criticism is the doctor’s lack of sensitivity. The statement relays Respondent’s opinion that his father was treated with a lack of dignity and respect. As opinion, the statement as a whole is entitled to constitutional protection. There are no provably false statements of fact, and no potential fact questions for a jury to resolve. A jury cannot find Respondent’s personal opinion to be false.

Second, as the district court correctly held, none of the 11 statements alleged to be defamatory are actionable as a matter of law, either because the statements are substantially true by Appellant’s own admission, or the statements represent constitutionally protected opinion. Because none of the individual statements are defamatory, it cannot follow that the statements, read together, are somehow converted into a defamatory publication. There is no dispute that Respondent’s patient care complaint, read as a whole, was critical of the doctor’s treatment of Kenneth Laurion. But none of the puzzle pieces which fit together to make the overall complaint are defamatory. Simply because a grouping of substantially true and constitutionally protected statements of opinion are joined together to create a more forceful criticism of Appellant’s conduct does not render the criticism as a whole defamatory.

  1. Appellant’s Remaining Arguments For Reversal Lack Merit

Appellant’s brief, as a whole, seeks to distract the Court from the narrow record and simple questions presented on appeal. Respondent has addressed Appellant’s primary claims for reversal above, but will address a few of Appellant’s remaining arguments in turn.

Appellant argues that “this case is quintessentially not susceptible to summary disposition because credibility is so crucial to the outcome.” (App. Br. 16-17.) Appellant appears to be claiming that, because the parties’ subjective recollections of the hospital encounter differ, the case should be presented to a jury to determine whether Appellant or Respondent is more credible. (See id.) Credibility has nothing to do with the legal standard for determining, as a threshold matter, whether specifically pied statements are capable of defamatory meaning under Minnesota and federal constitutional law. The question is whether, assuming the 11 statements set out in the Complaint were actually made by Respondent and published to third parties, they are potentially defamatory. The district court properly held that they were not.

Appellant next argues that Respondent’s statements are inherently more harmful because they were published, at least in part, on the internet. (App. Br. 17.) But Appellant’s burden to establish actionable defamation is not somehow lowered because a statement is published on the internet. Appellant must still show the statements were capable of defamatory meaning. The district court properly determined that Appellant had not done so in this case. (App. Add. 12.) (“In modern society, there needs to be some give and take, some ability for parties to air their difference. Today, those disagreements may take place on various Internet sources. Because the medium has changed, however, does not make statements of this sort any more or less defamatory.”)

Appellant next turns to an alleged “expert” in the field of professional reputation in an attempt to bolster his argument that Respondent’s statements were capable of harming reputation. As Respondent argued in his Reply Brief to the district court, the opinion is inadmissible and unhelpful. (RA 97 – 99.) It is the province of the court, not a purported expert, to determine as a threshold matter whether statements are capable of defamatory meaning. Further, even if the statements are capable of harming Appellant’s reputation, they are not defamatory because (a) they are substantially true by Appellant’s own admission; or (b) they represent constitutionally protected statements of opinion.

  1. The District Court Did Not Err By Dismissing The Entirety Of Appellant’s Claims.

The second ground for reversal alleged by Appellant is that the district court erred by dismissing Count II of his Complaint (Interference with Business) without considering the claim separate and independent of Count I (Defamation). Because fhis argument is raised for the first time on appeal, Appellant has waived the issue, and it is unnecessary for the Court to consider it. Further, “interference with business” is not a cause of action on which relief may be granted in Minnesota. Even if it were, as Appellant conceded below, and as the Complaint shows, Count II is wholly dependent on showing actionable defamation, which the district court correctly held is not present in this case.

  1. Appellant Waived This Issue By Failing To Raise It Below.

This Court will generally not consider matters not argued and considered in the court below. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

For the first time on appeal, Appellant argues that his interference claim is “separately actionable,” even if his defamation claim is not. (App. Br. at 35.) Appellant did not present this argument to the district court, either in his brief in response to Respondent’s motion, or in oral argument before the district court. Appellant stated only that “[b]ecause the defamation claims are viable, the interference with business claim, which is a derivative of the defamation is also actionable.” (RA 81.) Appellant failed to raise this argument even though Respondent specifically asserted in his briefing to the district court that Appellant’s vaguely pled “interference with business” claim should be dismissed because it was clearly dependent on proving defamation. (RA 11 at n. l (citing Wild v. Rarig, 302 Minn. 419, 447, 234 N.W.2d 775, 793 (1975).) Because Appellant failed to raise this arument below, Appellant has waived the issue, and it is unnecessary for the Court to consider it on appeal.

  1. “Interference With Business” Is Not A Claim On Which Relief Can Be Granted Under Minnesota Law

Count II of Appellant’s Complaint asserted a vaguely pied “Interference with Business claim,” claiming that Respondent’s alleged defamation “interferes with Plaintiff’s business activities.” (Complaint at p. 3.) Appellant cites Harbor Broadcasting, Inc. v. Boundary Waters Broadcasters, Inc., 636 N.W.2d 560, 569 (Minn. App. 2001), as setting forth the elements for “interference with business.” Harbor Broadcasting referenced the elements of tortious interference with business expectancy, but the Court noted that it declined to recognize the cause of action as a valid tort claim under Minnesota law. Id. at 569, n.5. The Court stated that only the tort of intentional interference with prospective contractual relations had been recognized by the Supreme Court. Id.

Appellant’s Complaint fails to state a cause of action under either tort claim, recognized or unrecognized, and the record lacks evidence supporting the elements of both claims. To show tortious interference with contractual relations, Appellant must show existence of a contract, Respondent’s knowledge of the contract, Respondent’s intentional procurement of its breach, without justification, and resulting damages. R.A., Inc. v. Anheuser-Busch, Inc., 556 N.W.2d 567, 570 (Minn. App. 1996), review denied (Minn. Jan. 29, 1997). Even if Appellant had intended to plead this recognized tort claim in the Complaint, there is no evidence in the record of any contract, Respondent’s knowledge of a contract, or Respondent’s intentional procurement of a breach.

To show tortuous interference with business expectancy, Appellant must show that Appellant had a reasonable expectation of economic advantage, that Respondent had knowledge of the expectation of economic advantage, that Respondent wrongfully and without justification interfered with this expectation, that, in the absence of the wrongful act, it is reasonably probably that Appellant would have realized the economic advantage or benefit, and damages. See Harbor Broad., Inc. v. Boundary Waters Broadcasters,Inc., 636 N.W.2d 560, 569 and n.5 (Minn. App. 2001). Appellant failed to adequately state this claim in the Complaint, which is likely due to the fact that the cause of action has not yet been recognized in Minnesota. Id. at 569 n.5. Even if he had, there is no evidence in the record that Respondent had knowledge of any particular expectation of economic advantage on the part of Appellant, or that Appellant would have recognized any particular advantage in the absence of Respondent’s patient care complaints. Further, there is no wrongful, unjustified act on the part of Respondent. Respondent’s patient care complaints were both justified and entitled to constitutional protection.

  1. Even If Appellant Had Adequately Pled A Recognized Tort Claim, It Does Not Exist Independently Of The Defamation Claim.

As the Harbor Broadcasting court recognized, intentional interference with business expectancy requires, at the very least, a showing of some wrongful act on the part of the defendant. Id. at 569 and n.5. The only wrongful conduct claimed by Appellant is the alleged defamation. Count II of Appellant’s Complaint simply reincorporated previous allegations and alleged that the “aforesaid conduct by Defendant,” i.e., the alleged defamation, provided the basis for the interference claim. (Complaint at p. 3.) Thus, because the district court correctly dismissed Appellant’s defamation claim, there was no need to address the wholly derivate and dependent interference claim. See Harbor Broadcasting, 636 N.W.2d at 569 (requiring, in relevant part, a “wrongful act”); see also, e.g., Wild v. Rarig, 302 Minn. 419, 447, 234 N.W.2d 775, 793 (Minn. 1975) (concluding that where a wrongful interference with business relationships claim stemmed from and grew out of the defamation as in a defamation claim, both actions were governed by the statute of limitations for defamation).

CONCLUSION

 

For all the foregoing reasons, Respondent Dennis Laurion respectfully requests that this Court affirm the district court’s decision in its   entirety.

Dated this 9th day of September, 2011.

Hanft Fride

A Professional Association

By John D. Kelly _______________

Attorney Registration No. 54732

Nathan LaCoursiere

Attorney Registration No. 0388349

Attorneys For Respondent

1000 U. S. Bank Place

130 West Superior Street

Duluth, Minnesota 55802-2094

(218) 722-4766

1 “Any person . . . is immune from civil liability or criminal prosecution for submitting a report to the board pursuant to section 147.111 or for otherwise reporting to the board violations or alleged violations of section 147.091. All such reports are confidential and absolutely privileged communications.”

2 Minnesota’s Health Care Bill of Rights encourages patients and their 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.


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

TECHDIRT: “Doctor Plans To Appeal Ruling That Said Complaining About His Bedside Manner Was Not Defamation”

June 30, 2011

“Doctor Plans To Appeal Ruling That Said Complaining About His Bedside Manner Was Not Defamation”

Mike Masnick, TECHDIRT

Trying-Our-Patients-Bedside-Manner

We recently wrote about a court ruling against a doctor who tried to sue someone who wrote some bad reviews about the doctor’s bedside manner online. Thankfully, the court ruled that those reviews were not defamatory. The court noted that the guy posting the material was clearly not happy with Dr. David McKee, but that: “In modern society, there needs to be some give and take, some ability for parties to air their differences…. Today, those disagreements may take place on various Internet sources. Because the medium has changed, however, does not make statements of this sort any more or less defamatory.”

Now, a smart doctor might take that lesson and move forward, and perhaps look into ways to respond reasonably to complaints. Or, there’s Dr. David McKee, who has announced that he has “no choice” but to appeal the ruling. That’s actually wrong. He has plenty of choices. For example, he could not appeal the ruling.

Amusingly, part of the reason that Dr. McKee is apparently filing the appeal is because he claims that the same guy started writing a bunch more critical messages about him online after the ruling came out. However, the guy, Dennis Laurion, insists that he hasn’t posted anything since the lawsuit began, and suggests that perhaps all of those anti-McKee posts came about because of the negative publicity associated with the lawsuit. Specifically, he notes that “there was an influx of Internet chatter about McKee after a link to a story about McKee appeared on the high-traffic website reddit.com.” So what next? Will Dr. McKee try to sue a bunch of Reddit posters too? I’m sure that will go over well.

REMARKS

That Anonymous Coward: Its your fault people think I am a horrible doctor! None of my actions can possibly lead to this! Personal Responsibility…. its dead…

Anonymous Coward: People should use this a lot more often. http://www.ratemds.com/doctor-ratings/1212092/Dr-David-McKee-DULUTH-MN.html

Nicedoggy: If anything that doctor deserves more bad reviews just for being so stupid.

tebee: You know who’s effect…. I think Dr McKee needs an introduction to my friend Ms. Streisand. I have this feeling he may not have heard of her, but will be getting to know her very well soon.

OtherKevin: One other choice… Improve his bedside manner. There have been numerous studies showing a strong link between negative bedside manner and malpractice lawsuits. Basically, the better your bedside manner and the more your patients like you personally, the less likely you are to be sued for malpractice, even when you screw up. But apparently this dude just LOVES spending money on lawyers.

The Devil’s Coachman: Sounds like this quack is someone to avoid. If it looks like a duck . . .

Senshikaze: What exactly is defamation? Can anyone explain the US defamation laws? It seems fairly arbitrary, what is the difference between a bad review and defamation? Though this doctor should be beaten by court order for his utter stupidity. It’s just a review. America needs to grow up and stop treating the legal system as a nanny.

DannyB: “Can anyone explain the US defamation laws? It seems fairly arbitrary, what is the difference between a bad review and defamation?” Defamation starts out life, in this situation, as a bad review. If the subject of the bad review is not merely incompetent, but also a litigious nut willing to spend money to sue everyone, then the bad review grows up and becomes defamation. In short: the difference is whether one can afford the money and vast waste of time of a lawyer. Hope that answers your question.

Brian Schroth: The bad review grows up and becomes defamation? Sounds like the makings of a Schoolhouse Rock song.

John William Nelson: A bad review is not defamation. U.S. defamation is essentially the intentional telling of an untruth that harms the reputation of another person. A bad review might be defamation, but it might not.

Noah V: Read the judge’s report On Point News posted the judge’s order as a .pdf.
http://www.onpointnews.com/docs/Mckee-v-Laurion.pdf

FormerAC: Did you see the Google News search on Ratemds? When I followed the link to ratemds, I notice a box in the middle with a current “Google News” results for Dr. David Mckee … which is, of course, an article about him vowing to appeal the ruling, LOL

Any Mouse: Finding a doctor that you like is a very personal thing, which some people do not realize. There are doctors that I will have nothing to do. They’re great doctors. They have patients who truly love them and what they do. On the other hand, my personality clashes with his, and we do not ever see eye to eye. I think he’s rude, cold and argumentative. it’s all just personal opinions one way or the other. Now, if the doctor is a total screw-up, doesn’t know shit, and acts like he’s the best thing to come out of the medical profession, well… doubt anyone’s going to like him, anyways.

BeeAitch: I have to second this point. My significant other has numerous serious medical issues. Her doctor has been nothing less than excellent with her care. He has gone above and beyond simple care and attention to health. He has given her his home phone number so she can call him when we have to take a trip to the emergency room (happens usually at least twice a month). The same doctor was on duty at the ER when I came in with a case of acute pancreatitis. I ended up leaving that hospital and going to another(I even removed my own IV lines and walked out when they told me I couldn’t check myself out). I did not get along with him at all as a patient. I know he is an excellent doctor, but his bedside manner really pissed me off. This man is probably the best doctor I have ever known, and is a pleasant person for me to deal with in a non-doctor/patient relationship. He and I butted heads about my care, and he is not my doctor now. If I gave a review, it might very well sound negative to another even though he is an excellent doctor. Any review should be taken with a grain of salt.

Reddit Reader: So what next? Will Dr. McKee try to sue a bunch of Reddit posters too? This doctor’s profile is at Vitals . Before his ratings is a field called General Information. On 9/28/11 it says “Personal Statement: This site, and similar sites are an unreliable way of assessing physicians. They are easily abused and virtually no surveillance is undertaken by the site to prevent this. My ratings and comments have been contaminated by a very malicious person, Dennis Laurion and friends of his who have made well over 100 negative postings on Vitals and Health Grades. Mr. Laurion’s entries have been dishonest and those of his acquaintances pure fiction. Vitals should not allow anonymous comments and should make it easier for physicians to remove blatantly false or fictional ones. Health Grades was very responsive and quickly identified the 60+ bogus entries and removed them. Vitals has been remarkably difficult to work with. Even after acknowledging the fact that most or all of the negative ratings were bogus it took week to get them to do even a partial retraction. They have agreed to provide IP addresses for suspicious entries; that is something I suppose.” So, yes, it appears Dr. McKee might try to sue a bunch of Reddit posters.

Source

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