Supreme Court: Calling someone “a real tool” isn’t defamatory, because it’s opinion, not fact

January 30, 2013

“Supreme Court: Calling Someone A Real Tool Isn’t Defamatory, Because It’s Opinion, Not Fact”

Aaron Rupar, Twin Cities Blog

Image-McKee-Computer-Picture

Is Dr McKee (pictured) a real tool? According to the Supreme Court, it depends whom you ask.


An opinion released by the Minnesota Supreme Court today is an especially fun read as far as court rulings go. At issue is whether calling a professional “a real tool” in online reviews of their work is defamatory.

As we told you in October, Duluth neurologist Dr. David McKee sued Dennis Laurion, the son of a former patient, for $50,000, alleging that statements Laurion published online defamed him. Among the statements was this gem: “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!'”

Laurion’s father had a stroke, and Laurion was upset about the way Dr. McKee treated him. A Jewish World Review report provides more details:

In his online postings, Dennis Laurion wrote that McKee “seemed upset” because he thought his father, then 84, was still in intensive care.

“Never having met my father or his family, Dr. McKee said, ‘When you weren’t in the ICU, I had to spend time finding out if you transferred or died,'” according to Laurion’s account. “When we gaped at him, he said, ‘Well, 44 percent of hemorrhagic strokes die within 30 days. I guess this is the better option.'”

Laurion, who was visiting with his wife and mother, wrote that McKee was brusque and dismissive during the exam, especially when his father raised concerns that his hospital gown was hanging open at the back. “Dr. McKee said, ‘That doesn’t matter,'” according to Laurion’s account. “My wife said, ‘It matters to us,'” and they left the room.

McKee claims he spent more than $7,000 to “scrub” more than 100 negative comments about his work, many of them originating from a single IP address in Duluth, the Review reports.

But in today’s opinion, the Supreme Court unanimously ruled that Laurion’s online comments don’t constitute defamation.

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

Something to keep in mind next time one of your pals says “[insert name] is a total toolbox” and you disagree. “The Supreme Court says that’s just your opinion, man!”

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

 

Healthcare Business News: Minnesota Supreme Court Rules Against Doctor In Defamation Suit

 JANUARY 30, 2013

Minnesota Supreme Court Rules Against Doctor In Defamation Suit

Andis Robeznieks, Healthcare Business News

If a patient’s son refers to his father’s neurologist “as a real tool” in an online post—even if he attributes the statement to an unidentified nurse—the physician in question does not have grounds for legal action.

That appears to be the message in Minnesota Supreme Court Decision A11-1154, which said six statements made by Dennis Laurion were not actionable because either there was no issue as to whether they were false and they “do not convey a defamatory meaning as a matter of law.”

Laurion was sued for defamation and interference with business by Dr. David McKee, a Duluth, Minnesota,  neurologist, after Laurion posted online comments about McKee’s perceived insensitive behavior to his father following a hemorrhagic stroke in April 2010. (The comments were not directed at the medical treatment his father received.)

The case took a twisted path to the state’s highest court. A district court dismissed the complaint, but an appellate court ruled in the doctor’s favor, stating that six of the 11 statements could be construed as fact and therefore could be actionable. The appellate court also ruled that it was up to a jury to decide whether the statements were true or false and defamatory.

Laurion successfully blocked this action, and the appellate court’s ruling went to the state Supreme Court, where arguments were heard this past September.

Image-Minnesota-Supreme-Court

In the Supreme Court ruling, Justice Alan Page wrote that the court’s narrow task was to determine whether “genuine issues of material fact exist and whether the district court correctly applied the law.” He wrote, “We view the evidence in the light most favorable” to Laurion.

Image-Justice-Alan-Page

Among the statements being ruled on was one in which Laurion said he quoted an anonymous nurse as saying, “Dr. McKee is a real tool!”

The fact that this nurse has never been identified was not important, Page wrote, saying it was an opinion “that is not susceptible to proof and is therefore not actionable.”

Comments

Jason Smith: So, the doctor found out that the family of a patient wasn’t happy with how their family member was treated by him, and the doctor’s response was to SUE? Sounds like that doctor is a real tool.

Image-Doctor-With-Tool

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

 

Maura Larkins: Patients Also Have The Right To Report Their Opinions To Medical Groups.

January 30, 2013

“Patient Who Commented On Internet Wins In Minnesota Supreme Court Against Doctor Who Sued Him For Defamation”

Maura Larkins, Thank Heaven For Insurance Copmanies

2d01f-dennis2blaurion

Mr. Laurion wins.

4b64c-doc0612w

Dr. McKee loses.

The Minnesota Supreme Court agrees with Mr. Laurion that patients have a right to report on the Internet their observations regarding the behavior of doctors. Patients also have the right to report their opinions to medical groups. I don’t know what country Dr. McKee thought he was living in. I believe Dr. McKee proved that he has a bad attitude by hounding Mr. Laurion.

See post: Can you tag your doctor a ‘tool’ online?

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 – A Texbook Case

 

MPR: Calling A Doctor ‘A Tool’ Is Protected Speech

 JANUARY 30, 2013

“Calling A Doctor ‘A Tool’ Is Protected Speech”

Bob Collins, Minnesota Public Radio News Cut

 Image-Doctor-With-Tool

The Minnesota Supreme Court has thrown out the case against a man for rating a doctor online.

Kenneth Laurion had a stroke in 2010 and was examined in St. Luke’s Hospital by neurosurgeon (sic) Dr. David McKee in Duluth. Laurion’s son found McKee to be “rude and insensitive” during the 20-minute examination. So he posted the following on some “rate-your-doctor” websites:

My father spent 2 days in ICU after a hemorrhagic stroke. He saw a speech therapist and a physical therapist for evaluation. About 10 minutes after my father transferred from ICU to a ward room, Dr. McKee walked into a family visit with my dad. He seemed upset that my father had been moved. Never having met my father or his family, Dr. McKee said, “When you weren’t in ICU, I had to spend time finding out if you transferred or died.” When we gaped at him, he said, “Well, 44% of hemorrhagic strokes die within 30 days. I guess this is the better option.” My father mentioned that he’d been seen by a physical therapist and speech therapist. Dr. McKee said, “Therapists? You don’t need therapy.” He pulled my father to a sitting position and asked him to get out of bed and walk.[] When my father said his gown was just hanging from his neck without a back, Dr. McKee said, “That doesn’t matter.” My wife said, “It matters to us; let us go into the hall.” Five minutes later, Dr. McKee strode out of the room. He did not talk to my mother or myself. When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, “Dr. McKee is a real tool!”

McKee sued for defamation. A district court judge court threw the case out, but an appeals court kept the defamation claims intact.

The Minnesota Supreme Court threw those claims out, too, saying there’s no indication they were false, and there does not appear to be any harm to the doctor.

Statement 3 was published as follows: “Dr. McKee said, ‘Therapists? You don’t need therapy.’ ” We fail to see how this statement, standing alone, is capable of a defamatory meaning that would harm Dr. McKee in the eyes of the community. By itself, Statement 3 is harmless. Doctors routinely evaluate whether therapy is appropriate for a given patient.

Of particular interest in the case is the debate over whether calling a doctor “a tool” is protected speech. It is, the court said today:

Referring to someone as “a real tool” falls into the category of pure opinion because the term “real tool” cannot be reasonably interpreted as stating a fact and it cannot be proven true or false…. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-20 (1990). We conclude that it is an opinion amounting to “mere vituperation and abuse” or “rhetorical hyperbole” that cannot be the basis for a defamation action. (explaining that people often engage in name-calling “without any real intent to make a defamatory assertion, and it is properly understood by reasonable listeners to amount to nothing more”).

Nonetheless, the assertion that a nurse told Laurion that Dr. McKee is a “real tool” is one of fact because whether a nurse actually made the statement to Laurion is an assertion that can be proven true or false. Dr. McKee argues that Laurion’s possible fabrication of the existence of the nurse, and thus the statement attributed to the nurse, creates a genuine issue of fact as to the falsity of Statement 6. As described above, Laurion’s assertion that the nurse made the statement to him and the implicit assertion that the nurse exists are susceptible to proof. We nevertheless conclude that even though Statement 6 includes a factual assertion that can be proven true or false, Statement 6 is not actionable because the statement is incapable of conveying a defamatory meaning. First, the part of the statement that can be proven true or false–whether a nurse made the statement to Laurion–does not itself place Dr. McKee in a negative light even if it is false. The assertion that a nurse made the statement only has the potential to cast Dr. McKee in a negative light when combined with the second part of the statement–that Dr. McKee is a “real tool.” However, attributing the statement to an unidentified nurse does not add defamatory meaning to the statement.

As a final matter, a review of Laurion’s online posting as a whole does not change our holding in this case. Given the reasoning underlying our conclusion that the six individual statements at issue are not actionable, it would defy logic to conclude that the posting, when viewed as a whole, is somehow actionable. Therefore, we reject any argument that the totality of Laurion’s statements makes his online posting actionable.

Nonetheless, there’s clearly a lesson here regarding posting material online: Be careful.

Jeff Hermes, director of the Citizens Media Law Project at Harvard University’s Berkman Center for Internet and Society, told the Associated Press at the beginning of the case that “people who want to post critical reviews should think about whether they can back up their statements. And they can strengthen their position by stating the facts on which their opinions are based.”

“The reality is that we bet our house every time that we post content online,” Professor Eric Goldman told the Associated Press. “It’s a lousy answer from a societal standpoint because we need people to share their experiences so vendors will be punished or rewarded as appropriate.”

Comments

GT: Wow, if I sued when someone called me a name, people might think I was a real tool!

Joanna: I notice that the court did not rule on whether or not the doctor exhibited toolish behavior in their consideration of whether or not the statement concerning his toolhood was fact or opinion. It is my opinion that the description of the doctor’s behavior suggests a violation of the hospital’s Patients’ Bill of Rights.

Bob Collins: They did not rule on whether or not the doctor exhibited toolish behavior in their consideration. They weren’t asked to rule on that.

Gary: So now thousands of people are made aware of Dr. McKee’s “toolish” behavior who would never have heard of it otherwise. If the good doctor was hoping to protect his reputation, I think he actually did the exact opposite. Which is another lesson we can take away from the whole affair.

BJ: Another lesson we can take away from the whole affair is that bullying works? I’m sure many people think the doctor is a tool (even I do) but if the lesson is to let bullies get away with something – because you deserve it – is still bullying. Free speech has limits – this person doesn’t appear to have come close to crossing it. But that doesn’t mean that just because you can say a thing, that you should say a thing. Like the title implies the opinion of the doctors behavior, calling this guy a tool, is protected. It appears that his skills as a doctor (besides beside manor) were not discussed in the online postings.

tribune reader: Doctor David McKee, a neurologist with Northland Neurology and Myology, practicing at St. Luke’s Hospital, told the Duluth News Tribune he was disappointed and frustrated. “We need to change the law so someone with a personal vendetta who is going to use the Internet to make defamatory statements can be held responsible,” he said.

The Star Tribune said it’s a frustrating end for McKee, 51, who said he’s spent at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral, resulting in hundreds more negative postings about him — likely from people who never met him. He hasn’t ruled out a second lawsuit stemming from those posts.

“The financial costs are significant, but money is money and five years from now I won’t notice the money I spent on this,” he said. “It’s been the harm to my reputation through the repeated publicity and the stress.”

McKee’s lawyer, Marshall Tanick, told the Associated Press that he and McKee plan no further appeals and that they were disappointed with the ruling. “We feel it gives individuals undue license to make disparaging and derogatory statements about these people, particularly doctors and other licensed professionals, on the Internet without much recourse,” Tanick said.

From the American Health Lawyers Association: In this case, the court found the six allegedly defamatory statements were not actionable because the “substance, the gist, the sting” of plaintiff’s version for each of the statements as provided in deposition and defendant’s version essentially carried the same meaning, satisfied the standard for substantial truth, did not show a tendency to harm the plaintiff’s reputation and lower his estimation in the community, or were incapable of conveying a defamatory meaning (e.g., when a nurse told defendant that plaintiff was “a real tool”) based on “how an ordinary person understands the language used in the light of surrounding circumstances.”

From the Business Insurance Blog: The Minnesota high court said, for instance, that Dr. McKee’s version of his comment about the intensive care unit was substantially similar to Mr. Laurion’s. “In other words, Dr. McKee’s account of what he said would produce the same effect on the mind of the reader,” the court said. “The minor inaccuracies of expression (in the statement) as compared to Dr. McKee’s version of what he said do not give rise to a genuine
issue as to falsity.”

From the Duane Morris Media Blog: The doctor said in his deposition that with regard to finding out if Mr. Laurion was alive or dead, “I made a jocular comment… to the effect of I had looked for [Kenneth Laurion] up there 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.” The court said the differences between the two versions of the statements about death or transfer by both plaintiff and defendant were so minor that there was no falsity in the website postings. In other words, the court indicated that the allegation about the statement was true.

In reply to an e-patients.net article “Minnesota Supreme Court sides with patient on social media defamation suit,” Attorney Marilyn Mann said, “I think McKee’s lawyer is incorrect. The case turned on standard principles of defamation law and doesn’t really break new ground.”

Jane Kirtley, a professor of media ethics and law at the University of Minnesota School of Journalism, told the Star Tribune that the ruling stems from “an elementary principle of libel law.” She said that this isn’t a blank check for people to make false factual statements. She said, rather, that it’s “an endorsement that statements of
opinion are protected under the First Amendment.”

According to the Duluth News Tribune, Minnesota Newspaper Association attorney Mark Anfinson, who watched the oral arguments before the Supreme Court in September, said that the justices made the right decision. Anfinson also told the News Tribune, “What this case really exemplifies is not so much legal precepts in
libel law, but the impact of the Internet on the ability to publish unflattering comments about people.”

The Mankato Free Press said in February 2013: “It’s puzzling why McKee’s defamation lawsuit — filed nearly four years ago — was still in court. It’s long been established that people may spout any opinion they want without fear of being
sued . . . It’s unsettling that the Appeals Court earlier ruled to allow the suit to continue.”

In his Technology & Marketing Law Blog, Eric Goldman said on February 4, 2013, “I’ve been tracking doctor v. patient lawsuits for online reviews. . . doctors usually lose or voluntarily drop these lawsuits. Indeed, with surprising
frequency, doctors end the lawsuit by writing a check to the defendant for the defendant’s attorneys’ fees where the state has a robust anti-SLAPP law. Doctors and other healthcare professionals thinking of suing over online
reviews, take note: you’re likely to lose in court, so legal proceedings should be an absolute last-resort option–and even then, they might not be worth pursuing.”

Dan Hinmon, the principal of Hive Strategies, wrote for Health Care Communication, on March 21, 2013, “According to the Star Tribune, McKee is now ticked off at the people who posted hundreds more negative comments about him after the story went viral. Incredulously, the story reports that McKee ‘hasn’t ruled out a second lawsuit stemming from these posts.’ Yes, you read that right. After spending ‘at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral,’ McKee is considering suing the rest of the people who, exercising their right of protected speech, chimed in. I’m speechless.”

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 – A Texbook Case

 

Bring Me The News: Court Rejects Case Of Doctor Who Sued Over ‘Real Tool’ Remark

JANUARY 30, 2013

“Court Rejects Case Of Doctor Who Sued Over ‘Real Tool’ Remark”

Ben Grove, Bring Me The News

 Image-This-Is-Not-A-Drill-Hammer-SmallerImage-This-Is-Not-A-Drill-Hammer-Smaller

The Minnesota Supreme Court on Wednesday threw out the case of a Duluth doctor who sued after a patient’s son called him “a real tool on a rate-your-doctor website.

In the court ruling, the justices noted that there was no proof that six comments made by the son were false or harmful to the neurologist’s reputation. The unanimous opinion reversed an earlier Appeals Court decision and effectively rejects the lawsuit of Dr. David McKee, who had been in a two-year legal battle with Dennis Laurion. McKee had alleged defamation and claimed the comments interfered with his business.

Observers said the case presented an interesting battle between free speech rights and the rights of workers to protect their professional reputations.

Laurion had been upset with McKee’s bedside manner as he was treating his father after a hemorrhagic stroke in April 2010. Among the comments that Laurion posted to an online doctor review site was the assertion by a nurse friend of his that “Dr. McKee is a real tool!”

The court ruled that comment was protected by the First Amendment: “Referring to someone as ‘a real tool’ falls into the category of pure opinion because the term ‘real tool’ cannot be reasonably interpreted as stating a fact and it cannot be proven true or false.”

Laurion told the Duluth News Tribune, “The initial excitement has not worn off. I’m very gratified it’s all over.”

COMMENTS

Janelle Markgren: The doc decides to sue over a comment… What is the definition of ‘tool’ again? Lol I think this guy hit the nail on the head with that description.

Jen Vinson: Hahaha suing someone over calling you a tool automatically affirms that you are indeed a tool.

Dennis Laurion: Although the Minnesota Supreme Court dismissed David McKee MD vs Dennis Laurion, the entire experience has been distressing to my family. We were initially shocked and blindsided by “jocular” comments made so soon after my father’s stroke by somebody who didn’t know us. We were overwhelmed by my being sued after posting a consumer opinion, and we were shocked by the rapidity with which it happened. My parents would be 88-year-old witnesses. My mother and wife prefer no discussion, because they don’t want to think about it. Conversation with my father only reminds him of his anger over this situation. My siblings and children don’t often bring it up, because they don’t know how to say anything helpful. I have been demoralized by three years of being called “Defendant Laurion” in public documents. While being sued for defamation, I have been called a passive aggressive, an oddball, a liar, a coward, a bully, a malicious person, and a zealot family member. I’ve been said to have run a cottage industry vendetta, posting 108 adverse Internet postings in person or through proxies. That’s not correct. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again.

The plaintiff’s first contact with me was a letter that said in part that he had the means and motivation to pursue me. The financial impact of being sued three years to date has been burdensome, a game of financial attrition that I haven’t wanted to play. The suit cost me the equivalent of two year’s net income – the same as 48 of my car payments plus 48 of my house payments. My family members had to dip into retirement funds to help me.

After receipt of a threat letter, I deleted my rate-your-doctor site postings and sent confirmation emails to opposing counsel. Since May of 2010, postings on the Internet by others include newspaper accounts of the lawsuit; readers’ remarks about the newspaper accounts; and blog opinion pieces written by doctors, lawyers, public relations professionals, patient advocates, and information technology experts. Dozens of websites by doctors, lawyers, patient advocates, medical students, law schools, consumer advocates, and free speech monitors posted opinions that a doctor or plumber shouldn’t sue the family of a customer for a bad rating. These authors never said they saw my deleted ratings – only the news coverage.

I’ve learned that laws about slander and libel do not conform to one’s expectations. I’ve read that online complaints are safe “if you stick to the facts.” That’s exactly the wrong advice. I did not want to merely post my conclusions. I wanted to stick to my recollection of what I’d heard. I don’t like to read generalities like “I’m upset. He did not treat my father well. He was insensitive. He didn’t spend enough time in my opinion.” However, such generalities are excused as opinion, hyperbole, or angry utterances. If one purports to say what happened, factual recitations can be litigated. The plaintiff must prove the facts are willfully misstated, but the defendant can go broke while waiting through the effort.

I feel that defamation lawsuits are much too easy for wealthy plaintiffs. If I were to attempt suing a doctor for malpractice, my case would not proceed until I’d obtained an affidavit from another doctor, declaring that the defendant’s actions did not conform to established procedures. In a defamation suit, there’s generally no exit short of a judge’s dismissal order – which can be appealed by the plaintiff. Being called “defendant” is terribly personal, but the civil suit path is totally impersonal. During the three years that I went through depositions, interrogatories, a dismissal hearing, an appellate hearing, and a state Supreme Court hearing; I never once spoke to a judge.

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 – A Texbook Case

 

It’s Tool Time At The Supreme Court

JANUARY 31, 2013

“Know what time it is at the Supreme Court? It’s tool time!”

James Lileks , Star Tribune

 Image-Tool-Time

 So I’m standing on Marshall Avenue in St. Paul during morning rush hour, the car in a snowbank, tire blown. The AAA guy can’t get the wheel off, so he goes to the truck and brings back a block of wood. Wham! Off goes the wheel. He holds up the wood. “Swedish impact wrench,” he says.

I am appalled. He’s equated Sweden, and hence people of Swedish descent, with crude technology. It’s particularly hurtful because a Swedish relative of my wife patented the modern crescent wrench, a technological contribution of which he was obviously unaware. I should go online and say the guy was a total tool.  I did not, for good reasons:

  • When it comes to slights about my diverse Northern European heritage, my skin is not 0.001 millimeter thick.
  •  It was funny.
  • Most important, he was changing my tire in the snow with good cheer while I stood there useless. I scribble and yammer for a living, and these guys fix things. Solve problems. Get you on your way. There’s not one Triple-A guy who ever finds himself in need of a metaphor, and thinks “if only there was someone I could call to provide a figure of speech.”

But let’s say I was a jerk, and went online to complain about the tool. Would that be defamatory? If only there were a Minnesota Supreme Court ruling on the matter! There is. The court has spoken. But first, rewind this a bit.

Image-Tool-Academy

You go to law school: a long, hard, dry slog through case law and statutes, your youthful idealism withered by the realization that truth, in the legal sense, can be a slender reed battered by the gales of rhetoric. After graduation, there’s private law, lucrative, but you work horrible hours and never see your family. You’re a bee that excretes gold, nothing more.

So you go into the public sector, and defend murderers for the same amount of money as an Applebee’s manager, but someone has to, right? It’s America. Someone has to rearrange the schedule so there’s always enough servers on the nights when the Vikings play. What? Oh, right, defending murderers. That’s important, too.

Then you’re a judge, steering the balky cart of justice down its rutted path. For a few, the honor of the Supreme Court Justice. You’ve arrived. Then one day you look at the case you have to decide. Some guy called another guy a “tool” on the Internet. Is that OK?

The Supreme Court has declined to condemn tool talk. To be specific, “a real tool.” The comment was made on a rate-a-doctor website, and the doctor took the poster to court. The Supremes dismissed the case.

Too bad there’s no trial; it would be fun to hear the defendant say it was meant as a compliment.

Image-Doctor-With-Tool

Caption: The doctor was the very definition of a useful implement. Like a drain snake or a plunger, he solved my problems; like a hammer, he connected the crossbeam of my questions to the 2-by-4 of my doubts. Five stars.

Other terms, however, remain in limbo. Dork, Dorkenhemier, Spaz (including Total Spaz), Jerk, Twanch, Dillweed, and of course Blathering Idiot in the Newspaper Who Just Goes On and On.

The last one is probably legal, but hey, go ahead, file suit. We need clarification on these matters. You’d hate to think that people go on the Internet and call other people stupid names without some guidelines. The reason this went to the Minnesota Supreme Court, after all, is because a lower court couldn’t say “tool” was acceptable public speech. Bravery personified. Wouldn’t want to call them tools, though. Tools are useful.

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

 

Star Tribune: Supreme Court Tosses Duluth Doctor’s Lawsuit Against Patient’s Son

JANUARY 30, 2013, 11:14 AM

“Supreme Court Tosses Duluth Doctor’s Lawsuit Against Patient’s Son”

ABBY SIMONS, Star Tribune

Image-Minnesota-Supreme-Court

 A Duluth neurologist has no legal claim against the son of a patient who posted negative comments on a rate-your-doctor website because there’s no proof that they’re false or that they’re capable of harming his reputation, the Minnesota Supreme Court ruled Wednesday.

The unanimous ruling reverses an earlier Appeals Court decision and throws out Dr. David McKee’s two-year-old lawsuit against Dennis Laurion, who, angry with McKee’s bedside manner after his father suffered a hemorrhagic stroke, posted several comments on a website, including an alleged assertion from Laurion’s nurse friend that “Dr. McKee is a real tool!”

McKee sued, alleging that 11 statements from Laurion’s online postings and letters to medical institutions were defamatory. A St. Louis County judge threw out McKee’s claims, saying they were either protected opinion, substantially true or too vague to convey a defamatory meaning.

The Appeals Court reversed the ruling regarding six statements, reasoning that they were factual assertions and not opinions, that they harmed McKee’s reputation and that they could be proven as false.

Among Laurion’s statements: accusing McKee of saying he had to “spend time finding out if you were transferred or died” or that “44 percent of hemorrhagic strokes die within 30 days. I guess this is the better option” or that “It doesn’t matter that the patient’s gown did not cover his backside.”

In the opinion, Justice Alan Page reasoned that even if the statements were viewed in a light most favorable to McKee, he acknowledged in earlier depositions that the gist of some of the statements were true, even if they were misinterpreted.

Page wrote that the statements also didn’t pass the test of defaming McKee’s character, including the following by Laurion: “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!” Page reasoned that the statement is protected under the First Amendment. “Referring to someone as ‘a real tool’ falls into the category of pure opinion because the term ‘real tool’ cannot be reasonably interpreted as stating a fact and it cannot be proven true or false.” Page wrote.


JANUARY 30, 2013, 9:59 PM

“Supreme Court Tosses Duluth Doctor’s Lawsuit Against Patient’s Son”

ABBY SIMONS, Star Tribune

Image-Justice-Alan-Page

Finding no harm done, justices toss out lawsuit by Duluth physician.

Dennis Laurion fired off his screed on a few rate-your-doctor websites in April 2010, along with some letters about what he saw as poor bedside manner by his father’s neurologist. He expected at most what he calls a “non-apology apology. I really thought I’d receive something within a few days along the lines of ‘I’m sorry you thought I was rude, that was not my intent’ and that would be the end of it,” the 66-year-old Duluth retiree said. “I certainly did not expect to be sued.”

He was. Dr. David McKee’s defamation lawsuit was the beginning of a four-year legal battle that ended when the Minnesota Supreme Court ruled the doctor had no legal claim against Laurion because there was no proof that his comments were false or were capable of harming the doctor’s reputation.

The unanimous ruling reverses an earlier Appeals Court decision and brings to an end the closely watched case that brought to the forefront a First Amendment debate over the limits of free speech online.

It’s a frustrating end for McKee, 51, who said he’s spent at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral, resulting in hundreds more negative postings about him — likely from people who never met him. He hasn’t ruled out a second lawsuit stemming from those posts.   “The financial costs are significant, but money is money and five years from now I won’t notice the money I spent on this,” he said. “It’s been the harm to my reputation through the repeated publicity and the stress.”

He said he offered to settle the case at no cost after the Supreme Court hearing. Laurion contends they couldn’t agree on the terms of the settlement, and said he not only deleted his initial postings after he was initially served, but had nothing to do with subsequent online statements about McKee.

The lawsuit followed the hospitalization of Laurion’s father, Kenneth, for a hemorrhagic stroke at St. Luke’s Hospital in Duluth. Laurion, his mother and his wife were also in the room when McKee examined the father and made the statements that Laurion interpreted as rude. After his father was discharged, he wrote the reviews and sent the letters.

On at least two sites, Laurion wrote that McKee said that “44 percent of hemorrhagic strokes die within 30 days. I guess this is the better option,” and that “It doesn’t matter that the patient’s gown did not cover his backside.”

Laurion also wrote: “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!'”

McKee sued after he learned of the postings from another patient. A St. Louis County judge dismissed the lawsuit, saying Laurion’s statements were either protected opinion, substantially true or too vague to convey a defamatory meaning. The Appeals Court reversed that ruling regarding six of Laurion’s statements, reasoning that they were factual assertions and not opinions, that they harmed McKee’s reputation and that they could be proven as false.

The Supreme Court disagreed. Writing the opinion, Justice Alan Page noted that McKee acknowledged that the gist of some of the statements were true, even if they were misinterpreted. Page added that the “tool” statements also didn’t pass the test of defaming McKee’s character. He dismissed an argument by McKee’s attorney, Marshall Tanick, that the “tool” comment was fabricated by Laurion and that the nurse never existed. Whether it was fabricated or not was irrelevant, the court ruled.

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

Tanick said the ruling could present a slippery slope.

“This decision gives individuals a license to make derogatory and disparaging statements about doctors, professionals and really anyone for that matter on the Internet without much recourse,” he said.

Jane Kirtley disagreed. The professor of media ethics and law at the University of Minnesota School of Journalism said the ruling stems from “an elementary principle of libel law.” “I understand the rhetoric, but this is not a blank check for people to make false factual statements,” she said. “Rather, it’s an endorsement that statements of opinion are protected under the First Amendment.”

Laurion’s attorney, John D. Kelly, said the fact that Laurion’s speech was made online was inconsequential to the ruling, which treated it as a standard defamation case. “It’s almost as if things were said around the water cooler or perhaps posted in a letter to the editor,” he said. “I think the principles they worked with are applicable to statements made irrespective of the medium.”


COMMENTS

aanen1: If you don’t want to hear the answers, don’t ask for opinions. There was a place on this website to rate doctors, the patient’s family did, end of discussion. As a doctor, if you don’t want patients or their families commenting on your performance, then don’t put your name on a website that rates doctors. And be nice!!

dymoman: All I’m getting out of this one is that I make SURE I don’t end up on bed that doctor visits!

lloyd55423: I wonder if the court’s finding would be the same if the words in question were spoken in a hardware store, such as, “don’t buy that Stanley pliers, this Craftsman is a real tool.”Image-Not-A-Drill-Screwdriver-On-Whitemilhouse: Ironically the doctor suing the patient’s son will likely have caused more harm to himself than ignoring the website comment ever would.

zyxwvu: Good doctors are more concerned for their patients welfare, their reputation will thus take care of itself….

aanen1:  Doctors don’t sign up for these websites. All doctor’s names are listed, and doctors don’t have the choice of having their name removed. Unfortunately only the patients who are unhappy post comments, the happy, satisfied patient doesn’t bother to post in most cases.

ericgus55: Seeing the things that folks write in reviews and online in general, I’m surprised anyone would ever want to be included in any online review system. A disgruntled customer with time on their hands and an axe to grind is a terrifying thought. Maybe this doctor deserved it, maybe not, who knows?

Image-Doctor-With-Tool

Dymoman: The other thing that should be taken away from this is never to do business with the patient’s son.

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

 

Duluth News Tribune – Website Comments About Duluth Doctor Not Defamatory

JANUARY 30, 2013,

“Minnesota Supreme Court – Website Comments About Duluth Doctor Not Defamatory”

Steve Kuchera Image-Duluth-News-Tribune

Criticisms a patient’s son made about a Duluth neurologist — including one referring to the physician as a “real tool” — are not cause for a lawsuit, the Minnesota Supreme Court ruled.

In an opinion filed Wednesday, the court found for Dennis Laurion, the patient’s son, reversing a Minnesota Court of Appeals decision that had sent Dr. David McKee’s defamation lawsuit against him back to the District Court in Duluth.

Laurion had posted his comments on a website where patients review their doctors. The case has been watched with interest because of the potential conflict between free speech versus protection of professional reputations on the Internet.

The opinion, written by Justice Alan Page, said the statements Laurion wrote about McKee were not defamatory because they’re opinions entitled to free-speech protections. “Referring to someone as ‘a real tool’ falls into the category of pure opinion because the term ‘real tool’ cannot be reasonably interpreted as stating a fact and it cannot be proven true or false,” the justices said. “We conclude that it is an opinion amounting to ‘mere vituperation and abuse’ or ‘rhetorical hyperbole’ that cannot be the basis for a defamation action.”

The ruling also said it doesn’t matter whether an unnamed nurse to whom Laurion attributed the “real tool” comment actually exists. McKee’s attorney argued that Laurion might have fabricated the nurse, something Laurion’s attorney denied.

Image-Boxing-Doctor

Laurion said the entire experience was stressful on his family. “The initial excitement has not worn off,” he told the News Tribune. “I’m very gratified it’s all over.”

Minnesota Newspaper Association attorney Mark Anfinson, who watched the oral arguments before the Supreme Court in September, said on Wednesday the justices made the right decision.

That being said, “You can’t blame a guy like Dr. McKee for being upset,” Anfinson said. “What this case really exemplifies is not so much legal precepts in libel law, but the impact of the Internet on the ability to publish unflattering comments about people.” Before the Internet, people who complained about others typically did so to a small group of family, friends and acquaintances. “No one in the wider world ever heard them,” Anfinson said. That is no longer the case. “If you’re a practicing physician or other professional in a highly competitive environment, and this stuff is out there for any potential patient or client to see, it isn’t as simple as a superficial reading of the Supreme Court opinion would suggest,” he said. “I kind of feel for the guy, but the law as it is currently constituted really doesn’t provide him much of a remedy. That is the moral of the story.”

McKee, a neurologist with Northland Neurology and Myology, said Wednesday he was disappointed and frustrated. “We need to change the law so someone with a personal vendetta who is going to use the Internet to make defamatory statements can be held responsible,” he said.

McKee filed the lawsuit against Laurion, of Duluth, in 2010. McKee alleged that Laurion defamed him and interfered with his business by posting false statements on the Internet and to various third parties, including the American Academy of Neurology, the American Neurological Association, the St. Louis County Public Health and Human Services Advisory Committee and St. Luke’s hospital, among others. McKee asked for more than $50,000 in damages.

Laurion was critical of how his father, Kenneth, now 88, and his family were treated by McKee after his father suffered a hemorrhagic stroke and spent four days at St. Luke’s hospital April 17 through 21 of 2010. Laurion claimed that any statements he made about the doctor were true and that he is immune from any liability to the plaintiff.

In 2011, State District Judge Eric Hylden ruled that McKee was not defamed by the criticism and dismissed the doctor’s lawsuit.

McKee appealed to the Minnesota Court of Appeals and in January 2012 that court sent the case back to the district court for a jury to decide whether six statements Laurion posted about McKee on rate-your-doctor websites and distributed elsewhere were defamatory.

To establish a defamation claim, a party must prove that the defendant communicated to a third party a factual assertion that is false and tends to harm a plaintiff’s reputation in the community.

Laurion appealed the Court of Appeals decision to the Supreme Court and the case was heard in St. Paul in September.

The Associated Press contributed to this report.

REMARKS

Alysia Colandrea says: When Dennis Laurion posted his personal opinion about Dr. David McKee online and how he believed that he and his family were treated poorly under his medical watch, he was completely protected by his first amendment right to free speech when doing so. Laurion was not putting off his opinion as fact that the doctor was an awful doctor, he was stating HIS personal opinion. By taking Laurion to court on a libel case, he failed to recognize the fact that this opinion based article posted by Laurion was nothing more than an OPINION. He was not defaming him– he was stating his personal experience with the doctor, as well as comments that his own nurses had shared about him, such as “he’s such a tool.” As the case was appealed to different courts, the rulings were always in favor of Laurion. However, since it’s a case containing a First Amendment issue, it was brought to Supreme Court and was continually ruled in Laurion’s favor.

Brian Lambert says: I think I mentioned this before. But if every journalist ripped in the comments section took his complaint to court …

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

 

 

Minnesota Supreme Court Dismisses McKee V. Laurion A11-1154

JANUARY 30, 2013

“Minnesota High Court Says Online Post Legally Protected”

Steve Karnowski, Associated Press

MINNEAPOLIS (AP) — A man’s online post calling a doctor “a real tool” is protected speech, the Minnesota Supreme Court ruled Wednesday. The state’s highest court dismissed a case by Duluth neurologist David McKee, who took offense when a patient’s son posted critical remarks about him on rate-your-doctor websites. Those remarks included a claim that a nurse called the doctor “a real tool,” slang for stupid or foolish.

The decision reversed a Minnesota Court of Appeals decision that would have let the doctor’s lawsuit proceed to trial.

The opinion, written by Justice Alan Page, said the comments posted by Dennis Laurion don’t add up to defamation because they’re opinions that are entitled to free speech protections.

“Referring to someone as `a real tool’ falls into the category of pure opinion because the term `real tool’ cannot be reasonably interpreted as stating a fact and it cannot be proven true or false. … We conclude that it is an opinion amounting to `mere vituperation and abuse’ or `rhetorical hyperbole’ that cannot be the basis for a defamation action,” the justices said.

The ruling also said it doesn’t matter whether the unnamed nurse actually exists. McKee’s attorney argued that Laurion might have fabricated the nurse, something Laurion’s attorney denied. And it said the doctor’s objections to Laurion’s other comments also failed the required legal tests.

Image-Big-Nurse

The case highlighted the tension that sometimes develops on ratings sites, such as Yelp and Angie’s List, when the free speech rights of patients clash with the rights of doctors, lawyers and other professionals to protect their good names.

Experts say lawsuits over negative professional reviews are relatively uncommon and rarely succeed, partly because the law favors freedom of speech.

This dispute was over how McKee treated Laurion’s father, who had suffered a stroke, during a single hospital visit in 2010 that lasted 10 to 15 minutes. Laurion expressed his dismay in several online posts with what he considered the doctor’s insensitive manner.

“I’m sure he and his family are very happy with this result,” Laurion’s attorney, John Kelly, said. “It’s been a long and difficult process for them.”

McKee’s lawyer, Marshall Tanick, said he and McKee plan no further appeals and that they were disappointed with the ruling. “We feel it gives individuals undue license to make disparaging and derogatory statements about these people, particularly doctors and other licensed professionals, on the Internet without much recourse,” Tanick said.

While the decision is not binding in other states, Kelly and Tanick agreed that it might influence how other courts would rule on similar questions. Kelly said lawyers often look at rulings from other jurisdictions when they put cases together, sometimes for leads or guidance.

“Certainly this is a cutting edge issue and I’m sure lawyers and courts in other jurisdictions will pay attention to this decision and give it the weight it deserves,” Tanick said.

Image-Doctor-With-Tool

SOURCE

COMMENTS

Chris Mankey: That doctor is a real tool.


Spence: Maybe with online ratings doctors may have to actually show some compassion towards their patients. I realize this does not apply to all but there are plenty of Dr’s that could prescribe themselves some bedside manners.


A Grown-Up: Hey Doc, perhaps you want to give yourself a prescription for a pair of testicles. It may help with that crybaby problem of yours.


Just Saying: No kidding. But ol’ David McKee had to push his luck in cyberworld, a place he has no REAL understanding of. Well guess what ol’ Davie – you just made yourself the tool fool and everybody will now say “wow, ain’t that the doctor without any nads? Hmmm – neurology or no neurology, a man should at least have nads.


McKee V. Laurion: “We feel it gives individuals undue license to make disparaging and derogatory statements about these people, particularly doctors and other licensed professionals, on the Internet without much recourse,” Tanick said.


American Health Lawyers Association: In this case, the court found the six allegedly defamatory statements were not actionable because the “substance, the gist, the sting” of plaintiff’s version for each of the statements as provided in deposition and defendant’s version essentially carried the same meaning, satisfied the standard for substantial truth, did not show a tendency to harm the plaintiff’s reputation and lower his estimation in the community, or were incapable of conveying a defamatory meaning (e.g., when a nurse told defendant that plaintiff was “a real tool”) based on “how an ordinary person understands the language used in the light of surrounding
circumstances.”


Business Insurance Blog: The Minnesota high court said, for instance, that Dr. McKee’s version of his comment about the intensive care unit was substantially similar to Mr. Laurion’s. “In other words, Dr. McKee’s account of what he said would produce the same effect on the mind of the reader,” the court said. “The minor inaccuracies of expression (in the statement) as compared to Dr. McKee’s version of what he said do not give rise to a genuine issue as to falsity.”


Duane Morris Media Blog: The doctor said in his deposition that with regard to finding out if Mr. Laurion was alive or dead, “I made a jocular comment… to the effect of I had looked for [Kenneth Laurion] up there 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.” The court said the differences between the two versions of the statements about death or transfer by both plaintiff and defendant were so minor that there was no falsity in the website postings. In other words, the court indicated that the allegation about the statement was true.


Content Scraper: In reply to an e-patients.net article “Minnesota Supreme Court sides with patient on social media defamation suit,” Attorney Marilyn Mann said, “I think McKee’s lawyer is incorrect. The case turned on standard principles of defamation law and doesn’t really break new ground.”

Jane Kirtley, a professor of media ethics and law at the University of Minnesota School of Journalism, told the Star Tribune that the ruling stems from “an elementary principle of libel law.” She said that this isn’t a blank check for people to make false factual statements. She said, rather, that it’s “an endorsement that statements of opinion are protected under the First Amendment.”

According to the Duluth News Tribune, Minnesota Newspaper Association attorney Mark Anfinson, who watched the oral arguments before the Supreme Court in September, said that the justices made the right decision. Anfinson also told the News Tribune, “What this case really exemplifies is not so much legal precepts in libel law, but the impact of the Internet on the ability to publish unflattering comments about people.”

Anfinson was also interviewed by Minnesota Lawyer. He said, “Anyone who knew about the case, who observed the oral arguments, and who knows something about libel law is about as unsurprised with this result as they can be. It’s about as perfunctory and routine as the Supreme Court ever gets. It was a completely straightforward application of long-settled libel-law rules.”

Anfinson said the case is more significant for social commentary purposes than for its legal analysis, noting that perhaps the justices only accepted the case to fix an error of the Court of Appeals.

Laurion’s attorney, John D. Kelly, said the fact that Laurion’s speech was made online was inconsequential to the ruling, which treated it as a standard defamation case. “It’s almost as if things were said around the water cooler or perhaps posted in a letter to the editor,” he said. “I think the principles they worked with are
applicable to statements made irrespective of the medium.”

Commenting about this case on his own blog, February 8, 2013, Aaron Kelly, internet law & defamation law attorney, said “Thanks to the First Amendment, free speech is the law of that land, and that means being able to communicate our views publicly – no matter how offensive.”

Mark A Fischer of Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, said on February 11, 2013, “For those who are under criticism, one of the practical consequences of bringing a defamation action is that more publicity for the accused statements is almost an inevitable result, whether the statements are ultimately found libelous or not. In other words, in weighing the pros and cons of initiating a lawsuit, all potential defamation and privacy claim plaintiffs should consider the rule of Hippocrates applicable to physicians, ‘First do no harm.’”

In his Technology & Marketing Law Blog, Eric Goldman said on February 4, 2013, “I’ve been tracking doctor v. patient lawsuits for online reviews. . . doctors usually lose or voluntarily drop these lawsuits. Indeed, with surprising frequency, doctors end the lawsuit by writing a check to the defendant for the defendant’s attorneys’ fees where the state has a robust anti-SLAPP law. Doctors and other healthcare professionals thinking of suing over online
reviews, take note: you’re likely to lose in court, so legal proceedings should be an absolute last-resort option–and even then, they might not be worth pursuing.”


Dennis Laurion: Although the Minnesota Supreme Court dismissed David McKee MD vs Dennis Laurion, the entire experience has been distressing to my family. We were initially shocked and blindsided by “jocular” comments made so soon after my father’s stroke by somebody who didn’t know us. We were overwhelmed by my being sued after posting a consumer opinion, and we were shocked by the rapidity with which it happened. It has been the 800 pound gorilla in the room. My parents would be 88-year-old witnesses. My mother and wife prefer no discussion, because they don’t want to think about it. Conversation with my father only reminds him of his anger over this situation. My siblings and children don’t often bring it up, because they don’t know how to say anything helpful. I have been demoralized by three years of being called “Defendant Laurion” in public documents. While being sued for defamation, I have been called a passive aggressive, an oddball, a liar, a coward, a bully, a malicious person, and a zealot family member. I’ve been said to have run a cottage industry vendetta, posting 108 adverse Internet postings in person or through proxies. That’s not correct. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again.

The plaintiff’s first contact with me was a letter that said in part that he had the means and motivation to pursue me. The financial impact of being sued three years to date has been burdensome, a game of financial attrition that I haven’t wanted to play. The suit cost me the equivalent of two year’s net income – the same as 48 of my car payments plus 48 of my house payments. My family members had to dip into retirement funds to help me.

After receipt of a threat letter, I deleted my rate-your-doctor site postings and sent confirmation emails to opposing counsel. Since May of 2010, postings on the Internet by others include newspaper accounts of the lawsuit; readers’ remarks about the newspaper accounts; and blog opinion pieces written by doctors, lawyers, public relations professionals, patient advocates, and information technology experts. Dozens of websites by doctors, lawyers, patient advocates, medical students, law schools, consumer advocates, and free speech monitors posted opinions that a doctor or plumber shouldn’t sue the family of a customer for a bad rating. These authors never said they saw my deleted ratings – only the news coverage. Newspaper stories have caused people to call or write me to relate their own medical experiences. I’ve referred them to my lawyers. I’ve also received encouragement from other persons who have been sued over accusations of libel or slander.

It was not my intention to use any descriptions or conclusions. It was also not my intention to claim that I had proof. Only my family and the doctor were in the room. My intention was to portray my recollection of what happened in my father’s room. The public could decide what to believe and what – if any – impact it had on them: insensitive doctor or overly-sensitive consumer?

Medical peer newsletters or magazines that interviewed the plaintiff did not approach me. Websites maintained by doctors for doctors or lawyers for lawyers often caused an inference that I was a zealot family member or somebody who had asked about my dad’s chances and then shot the messenger. Generally, however, those websites echoed other websites in advising public relations responses other than a lawsuit – for fear of creating the “Streisand Effect.” As a retired layman, I brought far less resources to the battle of financial attrition.

I’ve learned that laws about slander and libel do not conform to one’s expectations. I’ve read that online complaints are safe “if you stick to the facts.” That’s exactly the wrong advice. I did not want to merely post my conclusions. I wanted to stick to my recollection of what I’d heard. I don’t like to read generalities like “I’m upset. He did not treat my father well. He was insensitive. He didn’t spend enough time in my opinion.” However, such generalities are excused as opinion, hyperbole, or angry utterances. If one purports to say what happened, factual recitations can be litigated. The plaintiff must prove the facts are willfully misstated, but the defendant can go broke while waiting through the effort.

I feel that defamation lawsuits are much too easy for wealthy plaintiffs. If I were to attempt suing a doctor for malpractice, my case would not proceed until I’d obtained an affidavit from another doctor, declaring that the defendant’s actions did not conform to established procedures. In a defamation suit, there’s generally no exit short of a judge’s dismissal order – which can be appealed by the plaintiff. Being called “defendant” is terribly personal, but the civil suit path is totally impersonal. During the three years that I went through depositions, interrogatories, a dismissal hearing, an appellate hearing, and a state Supreme Court hearing; I never once spoke to a judge. At depositions, the plaintiff and I sat opposite each other, while I answered his lawyer’s questions, and he answered my lawyer ‘s questions. We were not to speak to each other.


Martha Bebinger: Mr Laurion – thanks so much for taking the time to post this account. I appreciate the clarifications and additional details about your experience. I’ve lost track, is the case down at this point?


NYC SKP: This is a good thing. I can’t even begin to imagine the crazy suits that would follow had the decision gone the other way.


Nancy Cawley Jean: There’s quite a bit of difference between true libel and just an opinion, and this is definitely great advice for those in the medical field to follow.


Tribune Reader: It’s puzzling why McKee’s defamation lawsuit — filed nearly four years ago — was still in court. It’s long been established that people may spout any opinion they want without fear of being sued. It’s different from knowingly telling a lie about someone in order to harm their reputation or business. The high court, in throwing out the doctor’s defamation suit, pointed out that you can’t prove if someone is or is not “a tool.” It’s unsettling that the Appeals Court earlier ruled to allow the suit to continue.


Free Speech: The Minneapolis Star Tribune said it’s a frustrating end for McKee, 51, who said he’s spent at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral, resulting in hundreds more negative postings about him — likely from people who never met him. He hasn’t ruled out a second lawsuit stemming from those posts. “The financial costs are significant, but money is money and five years from now I won’t notice the money I spent on this,” he said. “It’s been the harm to my reputation through the repeated publicity and the stress.”


Maitiu Rozinka: Wow, is this doctor an idiot? You want to remove something from the internets, and you take the case all the way to the Minnesota Supreme Court? Yeah, cue the Streisand Effect on this one. LOL


Adam Heskin: I get called worse than that all the time on these comment pages and I don’t go crying and filing a lawsuit. What a baby.


Mark Durand Jr: You tool. LOL.


Walt Huemmer: I’ve been called a lot worse from the people who love me. Man, this guy must have the thinnest skin I’ve ever seen.


Joe Merlot: These stuffed coats are arrogant jackasses. Your recourse? Treat people as a peer and with respect even if you do make 5 times what they earn, and you won’t have a problem. I’m sorry that you have to lower yourself to such a level that requires you to be concerned about the feelings of those you feel are below you. The consequence for not doing so is that others will be told of your behavior, and it will impact your business.


As posted in Pioneer Press

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

Supreme Court of Minnesota: David McKEE, M.D., Respondent, v. Dennis K. LAURION, Appellant, No. A11-1154

Decided January 30, 2013

Supreme Court of Minnesota.

David McKEE, M.D., Respondent, v. Dennis K. LAURION, Appellant.

No. A11–1154.

Marshall H. Tanick, Teresa J. Ayling, Hellmuth & Johnson, PLLC, Edina, Minnesota, for respondent. John D. Kelly, David L. Tilden, Hanft Fride, P.A., Duluth, Minnesota, for appellant.

OPINION

This case presents the narrow question of whether the court of appeals erred in concluding that six allegedly defamatory statements made by appellant Dennis Laurion regarding an encounter with respondent David McKee, M.D., survive summary judgment. We hold that none of the six statements is actionable either (1) because there is no genuine issue of material fact as to the falsity of the statements or (2) because the statements are not capable of conveying a defamatory meaning that would harm respondent’s reputation and lower him in the estimation of the community. Therefore, we reverse.

On April 17, 2010, Kenneth Laurion, the father of Dennis Laurion (Laurion), was admitted to St. Luke’s Hospital in Duluth after suffering a hemorrhagic stroke. On April 19, Kenneth Laurion was transferred from the intensive care unit (ICU) of St. Luke’s to a private room. The attending physician arranged for Dr. McKee, a neurologist, to examine Kenneth Laurion. Dr. McKee had never met Kenneth Laurion before he examined him on April 19.

Three family members were present in Kenneth Laurion’s hospital room when Dr. McKee’s examination began: Laurion, his mother, and his wife. The examination lasted no longer than 20 minutes, during which time Dr. McKee made certain statements and acted in a manner that, as a whole, the Laurions perceived as rude and insensitive. After Kenneth Laurion had been discharged from the hospital, Laurion posted the following statements regarding Dr. McKee on various “rate-your-doctor” websites:

My father spent 2 days in ICU after a hemorrhagic stroke. He saw a speech therapist and a physical therapist for evaluation. About 10 minutes after my father transferred from ICU to a ward room, Dr. McKee walked into a family visit with my dad. He seemed upset that my father had been moved. Never having met my father or his family, Dr. McKee said, “When you weren’t in ICU, I had to spend time finding out if you transferred or died.” When we gaped at him, he said, “Well, 44% of hemorrhagic strokes die within 30 days. I guess this is the better option.” My father mentioned that he’d been seen by a physical therapist and speech therapist. Dr. McKee said, “Therapists? You don’t need therapy.” He pulled my father to a sitting position and asked him to get out of bed and walk.[ ] When my father said his gown was just hanging from his neck without a back, Dr. McKee said, “That doesn’t matter.” My wife said, “It matters to us; let us go into the hall.” Five minutes later, Dr. McKee strode out of the room. He did not talk to my mother or myself. When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, “Dr. McKee is a real tool!”

Laurion also sent letters to a variety of medically-affiliated institutions complaining about Dr. McKee’s conduct. The letters included substantially the same statements communicated in the online postings. According to Laurion, his purpose in sending the letters was to get somebody to tell Dr. McKee (1) that he exhibited “poor behavior” and (2) that the recipients “don’t like getting letters like this.”

After learning of Laurion’s online postings from another patient, Dr. McKee commenced this action against Laurion, asserting claims for defamation per se and interference with business. Dr. McKee’s complaint alleged that 11 statements from Laurion’s online postings and letters were defamatory. After some discovery, Laurion moved for summary judgment seeking dismissal of Dr. McKee’s lawsuit. The district court granted Laurion’s motion and dismissed Dr. McKee’s claims with prejudice, concluding that, as a whole, the statements lacked defamatory meaning and that, individually, the statements were either protected opinion, substantially true, or too vague to convey a defamatory meaning.

The court of appeals affirmed the district court’s dismissal of the interference with business claim, but reversed the district court with respect to six of the allegedly defamatory statements posted online by Laurion. McKee v. Laurion, No. A11–1154, 2012 WL 177371, at *6–7 (Minn.App. Jan.23, 2012). As to those six statements, the court concluded that (1) the statements were factual assertions and not opinions, (2) there were genuine issues of material fact as to the statements’ falsity, and (3) the statements tended to harm Dr. McKee’s reputation. Id. at *2–6. The actionable statements identified by the court of appeals are as follows:

  • Statement 1: Dr. McKee said he had to “spend time finding out if you [Kenneth Laurion] were transferred or died.”
  • Statement 2: Dr. McKee said, “44% of hemorrhagic strokes die within 30 days. I guess this is the better option.”
  • Statement 3: Dr. McKee said, “You [Kenneth Laurion] don’t need therapy.”
  • Statement 4: Dr. McKee said, “[I]t doesn’t matter” that the patient’s gown did not cover his backside.
  • Statement 5: Dr. McKee left the room without talking to the patient’s family.
  • Statement 6: A nurse 1 told Laurion that Dr. McKee was “a real tool!” 2 Id. at *6.

We review the district court’s grant of summary judgment de novo. Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn.2010). Our task is to determine whether genuine issues of material fact exist and whether the district court correctly applied the law. Id. We view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). No genuine issue for trial exists when “ ‘the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.’ “ DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

To establish the elements of a defamation claim in Minnesota, a plaintiff must prove that: (1) the defamatory statement was “communicated to someone other than the plaintiff”; (2) the statement is false; (3) the statement tends to “harm the plaintiff’s reputation and to lower [the plaintiff] in the estimation of the community,” Bahr v. Boise Cascade Corp., 766 N.W.2d 910, 919–20 (Minn.2009); and (4) “the recipient of the false statement reasonably understands it to refer to a specific individual.” State v. Crawley, 819 N.W.2d 94, 104 (Minn.2012).

Statements 1, 2, & 4

Truth is a complete defense to a defamation action and “true statements, however disparaging, are not actionable.” Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn.1980). As a general rule, the truth or falsity of a statement is a question for the jury. Lewis v. Equitable Life Assurance Soc’y of the United States, 389 N.W.2d 876, 889 (Minn.1986). If the statement is true in substance, minor inaccuracies of expression or detail are immaterial. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) (explaining that the common law approach to falsity in the context of libel “overlooks minor inaccuracies and concentrates upon substantial truth”); see also Clancy v. Daily News Corp., 202 Minn. 1, 11, 277 N.W. 264, 269 (1938) (characterizing the question of truth as “[w]hether the publications were substantially true”); Restatement (Second) of Torts § 581A cmt. f (1977) (“Slight inaccuracies of expression are immaterial provided that the defamatory charge is true in substance.”). “Minor inaccuracies do not amount to falsity so long as ‘the substance, the gist, the sting, of the libelous charge [is] justified.’ “ Masson, 501 U.S. at 517 (quoting Heuer v. Kee, 15 Cal.App.2d 710, 59 P.2d 1063, 1064 (Cal.Dist.Ct.App.1936)). A statement is substantially true if it would have the same effect on the mind of the reader or listener as that which the pleaded truth would have produced. Id. The plaintiff has the burden of proving falsity in order to establish a successful defamation claim. Crawley, 819 N.W.2d at 104.

Viewing the evidence here in a light most favorable to Dr. McKee, we conclude that there is no genuine issue of material fact as to the falsity of Statements 1, 2, and 4. As to Statement 1 (Dr. McKee said he had to “spend time finding out if you transferred or died.”), Dr. McKee described his account of the statement in his deposition testimony:

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

In light of the substantial similarity between Statement 1 and Dr. McKee’s account, we conclude that any differences between the two versions are nothing more than “minor inaccuracies” that cannot serve as a basis for satisfying the falsity element of a defamation claim. Masson, 501 U.S. at 516. Here, the “gist” or “sting” of Laurion’s and Dr. McKee’s versions are the same. Id. at 517. Both communicate the notion that patients in the intensive care unit who have suffered a hemorrhagic stroke leave the intensive care unit either because they have been transferred to a regular room or they have died. Therefore, “the substance” of Statement 1 is justified given the similarity of the two versions. Id. In other words, Dr. McKee’s account of what he said would produce the same effect on the mind of the reader as Statement 1. The minor inaccuracies of expression in Statement 1 as compared to Dr. McKee’s version of what he said do not give rise to a genuine issue as to falsity. For these reasons, we conclude that there is no genuine issue of material fact as to the falsity of Statement 1.

As to Statement 2 (Dr. McKee said, “Well, 44% of hemorrhagic strokes die within 30 days. I guess this is the better option.”), Dr. McKee acknowledged in his deposition that during the examination of Kenneth Laurion, he communicated to those present that some ICU patients die. However, he denies referencing a specific percentage. Thus, Dr. McKee posits that Statement 2 is false, or that, at the least, there is a genuine issue of material fact as to the falsity of Statement 2 because he never stated a specific percentage. The problem for Dr. McKee with respect to Statement 2 is that the gist or sting of Statement 2 is the mention of hemorrhagic stroke patients dying and not the percentage referenced. Statement 2 squarely satisfies the test for substantial truth because it would have the same effect on the reader regardless of whether a specific percentage is referenced (or whether the percentage is accurate). See Masson, 501 U.S. at 517. The presence or absence of a specific percentage within Statement 2, without more, has no bearing on how a reader would perceive the statement because the gist or sting of Dr. McKee’s reference to death does not change based on the statistical reference. Nor does the presence, absence, or inaccuracy of the stated percentage, without more, cast Dr. McKee in a more negative light than does his discussion of patients dying. That is especially true when the reader is given no context for the statistics. Therefore, we conclude that there is no genuine issue of material fact as to the falsity of Statement 2.

As to Statement 4 (Dr. McKee said, “That doesn’t matter” that the patient’s gown did not cover his backside), Dr. McKee testified that he told the patient that the gown “looks like it’s okay” because it did not appear that the gown was at risk of falling off. We are not persuaded that there is any meaningful difference between the two versions of the statements sufficient to create a genuine issue as to the falsity of Statement 4. The substance or gist of the two versions is the same. Commenting that the gown “looks like it’s okay” is another way of communicating that “it didn’t matter” that the gown was not tied in the back. Thus, any inaccuracy of expression does not change the meaning of what Dr. McKee admits to having said. For these reasons, we conclude that Statement 4 is not actionable.

Statements 3, 5, & 6

Next, we consider whether Statements 3, 5, and 6 are capable of conveying a defamatory meaning. In order for a statement to be defamatory, it must tend to “harm the plaintiff’s reputation and ․ lower him in the estimation of the community.” Stuempges, 297 N.W.2d at 255. In the context of libel, “a publication may be defamatory on its face; or it may carry a defamatory meaning only by reason of extrinsic circumstances.” Utecht v. Shopko Dept. Store, 324 N.W.2d 652, 653 (Minn.1982). The question of whether a statement’s language reasonably conveys a defamatory meaning is one of law. Id. Whether a defamatory meaning is conveyed depends upon how an ordinary person understands “the language used in the light of surrounding circumstances.” Gadach v. Benton Cnty. Co-op. Ass’n, 236 Minn. 507, 510, 53 N.W.2d 230, 232 (1952). In deciding whether the words bear an innocent meaning, the words “must be construed as a whole without taking any word or phrase out of context.” Morey v. Barnes, 212 Minn. 153, 156, 2 N.W.2d 829, 831 (1942). If the words are capable of conveying a defamatory meaning, it is for the jury to decide whether they were in fact so understood. Utecht, 324 N.W.2d at 654.

We conclude, as a matter of law, that Statements 3, 5, and 6 are not capable of conveying a defamatory meaning. Statement 3 was published as follows: “Dr. McKee said, ‘Therapists? You don’t need therapy.’ “ We fail to see how this statement, standing alone, is capable of a defamatory meaning that would harm Dr. McKee in the eyes of the community. By itself, Statement 3 is harmless. Doctors routinely evaluate whether therapy is appropriate for a given patient. Reading Statement 3 in the context of the entire posting, see Morey, 212 Minn. at 156, 2 N.W.2d at 831, we reach the same conclusion. The posting is silent as to Kenneth Laurion’s actual need, if any, for therapy after his stroke. Given that neurologists routinely evaluate whether a patient does or does not need therapy and the posting’s silence as to whether Kenneth Laurion actually needed therapy, we fail to see how Statement 3 could harm Dr. McKee’s reputation. Simply put, there are no facts in the posting, or in the record before us for that matter, that provide a context in which Statement 3 is capable of lowering Dr. McKee in the estimation of the community. See Stuempges, 297 N.W.2d at 255. Presumably, the purpose of Dr. McKee’s visit was to evaluate Kenneth Laurion’s condition. Given this purpose, a determination as to whether or not Kenneth Laurion needed ongoing therapy was appropriate. Therefore, we reject Dr. McKee’s assertion that the statement calls into question his competency as a physician. We also reject the notion that, in the light of surrounding circumstances, Statement 3 is capable of conveying a defamatory meaning as published and conclude that it is not actionable as a matter of law.

Statement 5 was published as follows: “Five minutes later, Dr. McKee strode out of the room. He did not talk to my mother or myself.” Laurion argues that Statement 5 is true because Dr. McKee did not stop to chat, provide reassurance, or report to the family regarding Kenneth Laurion’s condition. Dr. McKee asserts that, although he admitted during his deposition that he did not talk with Laurion or his mother when he finished examining Kenneth Laurion, the statement is false because Laurion admitted in his deposition that Dr. McKee said to the Laurion family, “you can go back in,” after leaving the hospital room. In the end, any dispute as to whether Dr. McKee spoke with Laurion or his mother upon leaving the room is not material because we conclude that Statement 5 is not capable of conveying a defamatory meaning.

As with Statement 3, taking “the language used in the light of surrounding circumstances,” Gadach, 236 Minn. at 510, 53 N.W.2d at 232, we fail to see how Statement 5 is reasonably capable of conveying a defamatory meaning that would harm Dr. McKee’s reputation and “lower him in the estimation of the community.” Stuempges, 297 N.W.2d at 255. In the context of the posting as a whole, there is no indication whether Dr. McKee’s choice not to speak to the family was justified based on how busy he was, whether he returned to speak with the family later, or whether he was attending to a time-sensitive matter when he went to the nurse’s station. Moreover, Dr. McKee’s own deposition testimony demonstrates the innocuous nature of Statement 5. When asked whether it is common practice to stop and speak to the spouse of the patient after a medical evaluation, Dr. McKee logically explained that “it depends on whether or not I think the patient has understood ․ the information at hand and [is] able to relate it.” Dr. McKee continued: “If I’ve just explained things to a patient who seems to understand well and expect that the family will be going in shortly thereafter, I wouldn’t necessarily ․ repeat the entire conversation to a family member․” Given Dr. McKee’s own testimony, in addition to the context in which Statement 5 was published, we conclude that the statement is not capable of conveying a meaning that would lower Dr. McKee in the estimation of the community. Accordingly, we conclude that Statement 5 is not actionable.

Statement 6 was published as follows: “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!’ “ The parties dispute whether Statement 6 is protected opinion. The First Amendment protects statements of pure opinion from defamation claims. Diesen v. Hessburg, 455 N.W.2d 446, 450 (Minn.1990) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 339–40, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974)). Referring to someone as “a real tool” falls into the category of pure opinion because the term “real tool” cannot be reasonably interpreted as stating a fact and it cannot be proven true or false. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 19–20, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). We conclude that it is an opinion amounting to “mere vituperation and abuse” or “rhetorical hyperbole” that cannot be the basis for a defamation action. See id. at 17, 20; Restatement (Second) of Torts § 566 cmt. e (1977) (explaining that people often engage in name-calling “without any real intent to make a defamatory assertion, and it is properly understood by reasonable listeners to amount to nothing more”).

Nonetheless, the assertion that a nurse told Laurion that Dr. McKee is a “real tool” is one of fact because whether a nurse actually made the statement to Laurion is an assertion that can be proven true or false. Dr. McKee argues that Laurion’s possible fabrication of the existence of the nurse, and thus the statement attributed to the nurse, creates a genuine issue of fact as to the falsity of Statement 6. As described above, Laurion’s assertion that the nurse made the statement to him and the implicit assertion that the nurse exists are susceptible to proof. We nevertheless conclude that even though Statement 6 includes a factual assertion that can be proven true or false, Statement 6 is not actionable because the statement is incapable of conveying a defamatory meaning. First, the part of the statement that can be proven true or false—whether a nurse made the statement to Laurion—does not itself place Dr. McKee in a negative light even if it is false. The assertion that a nurse made the statement only has the potential to cast Dr. McKee in a negative light when combined with the second part of the statement—that Dr. McKee is a “real tool.” However, attributing the statement to an unidentified nurse does not add defamatory meaning to the statement. See Seelig v. Infinity Broad. Corp., 97 Cal.App.4th 798, 119 Cal.Rptr.2d 108, 118 (Cal.Ct.App.2002) (noting that the attribution of a vague, derogatory statement to the plaintiff’s ex-husband did not make the statement actionable). Because, as discussed above, the assertion that Dr. McKee is a “real tool” is an opinion that is not susceptible to proof and is therefore not actionable, and because the first part of Statement 6—that a nurse made the statement—does not cast Dr. McKee in a negative light, Statement 6 as a whole is not actionable.

As a final matter, a review of Laurion’s online posting as a whole does not change our holding in this case. Given the reasoning underlying our conclusion that the six individual statements at issue are not actionable, it would defy logic to conclude that the posting, when viewed as a whole, is somehow actionable. Therefore, we reject any argument that the totality of Laurion’s statements makes his online posting actionable.

Because the six statements at issue, viewed individually or in the context of the entire posting, are not actionable, we conclude that the district court properly granted summary judgment in favor of Laurion.

Reversed.

PAGE, Justice.

WRIGHT, J., not having been a member of this court at the time of submission, took no part in the consideration or decision of this case.

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