FEBRUARY 4, 2013
“Court Kicks Defamation Lawsuit To The Curb”
Jane Pribek, Minnesota Lawyer
When Dennis Laurion wasn’t happy with Dr. David McKee’s care of his father, he posted several scathing online reviews of the Duluth neurologist, calling him “a real tool.”
Laurion’s statements weren’t defamation, according to a January 30 Minnesota Supreme Court ruling in McKee v. Laurion, because they didn’t present genuine issues of material fact as to the statements’ falsity, nor did they convey a defamatory meaning that would harm the doctor’s reputation and lower him in the estimation of the community.
Not only did the ruling shut down the lawsuit, it also makes it much harder for future plaintiffs to state a defamation claim, said McKee’s lawyer, Marshall Tanick.
The dispute stemmed from an April 2010 examination by McKee of stroke patient Kenneth Laurion.
Upon learning of Dennis’ online reviews, McKee filed a defamation lawsuit. St. Louis County District Court Judge Eric Hylden granted summary judgment against McKee.
The Court of Appeals reversed, but the high court unanimously reversed the intermediate court.
To establish 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, and the statement tends to harm the plaintiff’s reputation and to lower the plaintiff in the estimation of the community.
The justices held there were no genuine issues of material fact regarding the falsity of three of Laurion’s statements.
The first statement was Laurion’s assertion that McKee said he had to “spend time finding out if [ Kenneth Laurion was ] transferred or died.” The second statement by Laurion was that McKee had said “44 percent of hemorrhagic strokes die within 30 days. I guess this is the better option.” The third statement was Laurion’s claim that McKee said, “It doesn’t matter” whether Kenneth Laurion’s hospital gown covered his backside.
The other three statements at issue weren’t capable of conveying a defamatory meaning because they didn’t tend to harm McKee’s reputation and lower him in the estimation of the community, the high court concluded.
Laurion had written that McKee said the patient didn’t need therapy. Justice Alan Page wrote that neurologists routinely evaluate whether a patient needs therapy, and since the posting was silent as to whether Kenneth Laurion actually needed therapy, the justices failed to see how the statement could harm McKee’s reputation.
Laurion had additionally written that McKee left the room without talking to the family. That was similarly inactionable, Page wrote, because ” . . . 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 to the family later, or whether he was attending to a time-sensitive matter when he went to the nurse’s station.
Finally, Laurion wrote that a nurse acquainted with McKee characterized him as “a real tool.” The court characterized that as pure opinion protected by the First Amendment – it cannot be proven true or false.
Justice Wilhelmina Wright didn’t participate in the case.
Tanick, of Hellmuth & Johnson in Edina, said the decision “gives individuals a license to engage in disparaging and degrading comments on the Internet and leaves people, especially professionals such as doctors and lawyers, without much recourse.
While the justices concluded some of the statements wouldn’t tend to harm McKee’s reputation or lower him in the estimation of the community, Tanick said he submitted an affidavit from another physician who doesn’t know McKee but works in the same city where McKee practices. That physician concluded that the statement would have a negative effect on a doctor, and that any patient reading them would think less of him.
John Kelly, Laurion’s attorney with Hanft Fride in Duluth, said the fact that Laurion’s statements were published on the Internet might have influenced the justice’s decision to accept the case. “But, as it turns out, they ended up treating it as a series of communications that might just as well have been made around a water cooler, in a newsletter or in any one of a number of ways such statements could be published. It was really kind of a classic, broad application case, and it’s certainly not limited to Internet publications.
In Kelly’s opinion, the case may stand for the proposition that the number of persons whom the publication reaches doesn’t, and shouldn’t, matter.
The decision was “pretty straight forward. It’s almost spare in the way it was handled. And I thought it was appropriate,” Kelly said. “They grouped these statements appropriately into the subcategories, and they didn’t do anything novel in terms of the legal principles on which they decided the case.”
The court reached the correct result, agreed Minneapolis First Amendment attorney Mark Anfinson. Anfinson, who did not participate in the case, 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 straight forward application of long-settled libel law rules,” he said, noting that perhaps the only reason the justices accepted the case was to fix the Court of Appeals’ error.
The “tool” comment, according to Anfinson, is “a wonderful piece of contemporary slang. It’s not flattering, but it’s just too ambiguous to support a libel claim, which is a factually incorrect statement.”
The case is more significant for social commentary purposes than for its legal analysis, Anfinson said. The Internet has made it possible for disparaging remarks to be broadcast to a much larger audience than in bygone years.”
“Ultimately, I have quite a bit of sympathy for Dr. McKee, because professional people in particular pretty much have only their reputations by which to propel their boats. None of these comments is libel, by the traditional meaning of that term. But collectively, they certainly don’t make him look very attractive. And in a prior age, before the Internet and these rating websites, he wouldn’t have been exposed to this, and it probably hurts him,” Anfinson said.
“I don’t have a remedy or solution for him, but I think there’s more to this case than meets the legal eye. Because libel law evolved during a period where nothing like this widespread publication of personal comments was even possible.