McKee V. Laurion, June 2011, Plaintiff Initiates Appeal of Dismissal

Standard

In June 2011, Dr. David McKee of McKee V. Laurion filed an appeal of the dismissal of David McKee MD V. Dennis Laurion. His Statement Of The Case of Appellant is reproduced below, as is Statement of the Case of Respondent.


 

STATE OF MINNESOTA IN COURT OF APPEALS

DAVID MCKEE, M.D., APPELLANT,

vs.

DENNIS LAURION, RESPONDENT.

                                           STATEMENT OF THE CASE OF APPELLANT

 TRIAL COURT CASE NO.: 69-DV-CV-10-1706

 APPELLATE COURT CASE NUMBER: A11-1154

1. Court or agency of case origination and name of presiding judge or hearing.

St. Louis County District Court. The Honorable Eric L. Hylden.

2. Jurisdictional statement. Appeal from Final.

Statute, rule or other authority authorizing appeal: Rule 103.03(a), Minn. R. Civ. App. P.

Authority fixing time limit for filing notice of appeal.

60 Days from entry of judgment, Rule 104.01, subd. (1).

Finality of order or judgment.

Does the judgment or order to be reviewed dispose of all claims by and against all       parties, including attorney fees?

Yes.

If yes, provide dates of order.

April 28, 2011.

If yes, cite rule, statute, or other authority authorizing appeal: Rule 103.03(a), Minn. R. Civ. App. P.

3. State type of litigation and designate any statutes at at issue.

Appellant sued Defendant for defamation and interference with business because of false statements made by Respondent about Appellant on the Internet and in various letters.

4. Brief description of claims, defenses, issues litigated and result.

Appellant McKee, a physician in private practice in Duluth, provided medical treatment to the father of Respondent Laurion at a hospital in Duluth. Respondent made numerous postings on the Internet, which he termed a “factual recitation,” and wrote several letters to Dr. McKee’s professional colleagues that were highly critical of the doctor’s treatment. Laurion’s “factual recitation” contained many inaccurate or fabricated facts, including an assertion that the doctor endangered the safety of the patient.   The Internet postings were widely available and were seen by others, as were the disparaging letters. Dr. McKee maintains that the Internet postings and letters falsely described the treatment he furnished to Laurion’s father and that the statements harmed his reputation and his business. He sued Laurion for defamation and interference with business.

The Trial Court granted Laurion’s Motion for Summary Judgment on grounds that the statements were not defamatory because they were constitutionally­ protected opinions or otherwise not actionable. The Court dismissed the entire lawsuit without addressing the separate interference claim.

5. List specific issues proposed to be raised on appeal.

  1. Did the Trial Court err in granting Summary Judgment on grounds that the offensive statements were opinions or otherwise not actionable?
  2. Did the Trial Court err in dismissing the interference claim?

6.   Related Appeals.

None.

List any known pending appeals in separate actions raising similar issues to this appeal.   If none are known, so state.

None are known.

7. Contents of Record.

Is a transcript necessary to review the issues on appeal? Yes (x) No ( )

If yes, full (   ) or partial (x) transcript?

Has the transcript already been delivered to the parties and filed with the trial court administrator? Yes ( ) No (x)

If not, has it been ordered from the court reporter? Yes ( ) No (x)

In lieu of the record as defined in Rule 1 1 0.01, have the parties agreed to prepare a statement of the record pursuant to Rule   110.04? Yes ( ) No (x)

8. Is oral argument requested? Yes (x) No ( )

If so, is argument requested at a location other than that provided in Rule 134.09, subd. 27 Yes ( ) No (X)

If yes, state where argument is requested.

9. Identify the type of brief to be filed.

Formal brief under Rule 128.02. (x)

  1. Names, addresses, zip codes and telephone numbers of attorney for appellant and respondant

MANSFIELD, TANICK & COHEN, P.A.

ATTORNEYS FOR APPELLANT, JUNE 27, 2011

Marshall H. Tanick (#108303) 1700 U.S. Bank Plaza South 220 South Sixth Street

Minneapolis, MN 55402

Hanft, Fride

ATTORNEYS FOR RESPONDENT

John Kelly (#54732), Nathan LaCoursiere (#0388349)

1000 U.S. Bank Place, 130 West Superior Street Duluth, MN 55802


STATE OF MINNESOTA IN COURT OF APPEALS

DAVID MCKEE, M.D., APPELLANT,

vs.

DENNIS LAURION, RESPONDENT.

                                           STATEMENT OF THE CASE OF RESPONDENT

 TRIAL COURT CASE NO.: 69-DV-CV-10-1706

 APPELLATE COURT CASE NUMBER: A11-1154

TO: THE CLERK OF APPELLATE COURTS AND THE HONORABLE JUDGES OF THE COURT OF APPEALS:

Respondent Dennis K. Laurion submits this statement of the case to request oral argument in Duluth and correct misrepresentations of the record on appeal reflected in Appellant’s statement of the case.

* * * *

3. State type of litigation and designate any statutes at issue.

Defamation. Appellant’s complaint also asserts a claim for “interference with business” which is wholly dependent on proving defamation.

4. Brief description of claims, defenses, issues litigated and result.

Appellant claims that Respondent made 11 allegedly defamatory statements about him in Internet postings and letters to various groups. Respondent denies that any statements he made about Dr. McKee were defamatory. Respondent moved for summary judgment on the grounds that his statements were constitutionally protected statements of opinion, the gist and substance of his statements were true, and all of his statements were entitled to qualified privilege. The district court granted Respondent’s motion for summary judgment on the grounds that the statements were not defamatory as a matter of law. As a result of the district court’s ruling, it was unnecessary for the court to address the wholly dependent “interference with business claim.”

Paragraph 4 of Appellant’s statement of the case alleges that “Laurion’s ‘factual recitation’ contained many inaccurate or fabricated facts, including an assertion that the doctor endangered the safety of the patient.” This is a misrepresentation of the record. None of the allegedly defamatory statements under review contain an assertion that Dr. McKee endangered the safety of Respondent’s father. The 11 statements under review relayed what Respondent felt to be Dr. McKee’s rude and insensitive treatment of his father during a difficult time for the Laurion family. Respondent’s complaint to the Minnesota Board of Medical Practice did raise a safety concern, but that complaint is confidential, absolutely privileged, and immune from civil liability under Minn. Stat. § 147.121, subd. I. Further, the phrase “factual recitation” is attributable to Appellant’s counsel, not Respondent, and the record on appeal will establish that the gist and substance of Respondent’s statements were true with reference to Dr. McKee’s own deposition testimony and prior statements.

5. List specific issues proposed to be raised on appeal.

The only issue on appeal is whether the district court properly applied common law and constitutional principles to the record before it on summary judgment. The district court’s conclusion that Respondent’s statements were not defamatory rendered it unnecessary to address Appellant’s dependent interference with business claim.

* * * *

8. Is oral argument requested? Yes (X) No ( )

If so, is argument requested at a location other than that provided in Rule 134.09, subd.2?

Yes (X) No ( )

If yes, state where argument is requested.

Duluth. Pursuant to Minn. R. Civ. App. P. 134.09, subd. 2(a)(2), Respondent respectfully requests that oral argument be held in Duluth, which is the location of the district court issuing the ruling and the home of all parties and counsel with the exception of Appellant’s counsel.

Dated this 30th day of June, 2011.

HANFT FRIDE,

A Professional Association

By

John D. Kelly, Attorney Registration No. 54732,

Nathan N. LaCoursiere, Attorney Registration No. 0388349,

Attorneys for Defendant Dennis K. Laurion,

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

Street Duluth, Minnesota 55802-2094

(218) 722-4766


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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