SEPTEMBER 9, 2011
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
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.
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.
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.)
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.
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.
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.)
- None Of The Alleged Statements Are Defamatory
 “[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.
 “[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).
 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).)
 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.)
 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
 “[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.)
 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.
 “[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.
”[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.”).)
 “[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.
 “[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.
- 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.
- 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.
- 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.
- 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.
- “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.
- 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).
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.
A Professional Association
By John D. Kelly _______________
Attorney Registration No. 54732
Attorney Registration No. 0388349
Attorneys For Respondent
1000 U. S. Bank Place
130 West Superior Street
Duluth, Minnesota 55802-2094
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.