Law360 Declares “”Online Critique Of Doctor Not Defamatory: Minn. High Court”

JANUARY 30, 2013

“Online Critique Of Doctor Not Defamatory: Minn. High Court”

Keith Goldberg, Law360

Image-Defamation-Montage-4

Minnesota’s top court nixed a neurologist’s defamation suit against a patient’s son who criticized him online, concluding it couldn’t be proven that six statements at issue — including one calling the doctor “a real tool” — were either false or defamatory.

The Minnesota Supreme Court, in reversing an appeals court ruling, said three allegedly defamatory statements posted online by Dennis K. Laurion criticizing Dr. David McKee for what he perceived as rude and insensitive behavior when treating his father isn’t actionable because there is no genuine issue of material fact as to whether the statements are true or false.

The other three allegedly defamatory statements aren’t actionable because they don’t convey a defamatory meaning as a matter of law, the court ruled. The high court also said a review of Laurion’s entire online posting doesn’t change its position.

“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,” Justice Alan C. Page wrote for the court. “Therefore, we reject any argument that the totality of Laurion’s statements makes his online posting actionable.”

Justice Wilhelmina M. Wright, who wasn’t on the bench when the case was appealed to the high court, didn’t participate in the decision.

The case dates back to April 2010, when Laurion’s father, Kenneth, was admitted to St. Luke’s Hospital in Duluth, Minn., after suffering a hemorrhagic stroke. He was examined there by McKee, during which time the doctor made certain statements and acted in a manner that the Laurion family perceived as rude and insensitive, according to the opinion.

After Kenneth Laurion was released from the hospital, Dennis Laurion criticized McKee in postings on various “rate-your-doctor” websites, which included the statement: “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!’,” according to the opinion.

Laurion also sent letters to a variety of medically affiliated institutions complaining about McKee’s conduct, which contained substantially the same statements as the ones in his online postings, the opinion said.

McKee sued Laurion for defamation and interference with business, alleging 11 of his statements were defamatory. A Minnesota district judge tossed the suit, concluding that as a whole, the statements lacked defamatory meaning and that individually, the statements were protected opinion, substantially true, or too vague to convey a defamatory meaning.

McKee appealed the ruling to the Minnesota Court of Appeals, which reversed the lower court’s decision regarding six of the 11 statements in January 2012, saying they were factual assertions and not opinions, there were genuine issues of material fact as to if they were true or false, and that they tended to harm McKee’s reputation, according to the opinion.

However, the Supreme Court said Wednesday that the district court properly dismissed the suit in its entirety. As to the statement in which a nurse described McKee as “a real tool,” the high court said that was incapable of conveying a defamatory meaning.

“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 [the statement] — that a nurse made the statement — does not cast Dr. McKee in a negative light, [the statement] as a whole is not actionable,” Justice Page wrote.

John Kelly, an attorney for Laurion, said his client was relieved by the ruling and noted that the court’s decision applied well-established defamation standards to Internet postings. “It treats the statements as if they had been made around the water cooler or printed in a newsletter,” Kelly told Law360.

Counsel for McKee couldn’t immediately be reached for comment.

Dennis Laurion is represented by John D. Kelly and David L. Tilden of Hanft Fride PA.

[Dr. David] McKee is represented by Marshall H. Tanick and Teresa J. Ayling of Hellmuth & Johnson PLLC.

The case is David McKee MD v. Dennis K. Laurion, case number A11-1154, in the Minnesota Supreme 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

 

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