Legal Newsline Legal Journal: Online Criticisms Not Defamatory Statements

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FEBRUARY 11, 2013

Minnesota Supreme Court Says Online Criticisms Not Defamatory Statements

Nathan Bass, Legal Newsline Legal Journal

St. Paul, Minnesota – The Minnesota Supreme Court has found that six statements posted online criticizing a doctor for “what the appellant perceived as rude and insensitive behavior” are not actionable as defamatory statements.

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Justice Alan C. Page wrote the Jan. 30 opinion for the court.

“On April 17, 2010, Kenneth Laurion, the father of Dennis 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,” the opinion states.

There were three family members present in Kenneth Laurion’s hospital room when McKee began his examination – Dennis Laurion, his mother, and his wife. In the less than 20 minute examination, McKee made several statements which the Laurions “perceived as rude and insensitive,” according to the opinion.

After Kenneth Laurion was discharged from the hospital, Dennis Laurion posted the following statements regarding Dr. McKee on various 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!’”

According to the opinion, Dennis Laurion sent letters including substantially the same statements to a variety of medically-affiliated institutions. His purpose in sending the letters was to convey to Dr. McKee that he had exhibited “poor behavior” and to alarm the recipients of the letters who he felt “don’t like getting letters like this.”

Dr. McKee asserted claims for defamation per se and interference with business in a complaint filed in state district court. The complaint alleged that 11 statements posted online and in letters were defamatory.

The district court granted Laurion’s motion for summary judgment and dismissed Dr. McKee’s claims with prejudice, concluding that the statements, as a whole, lacked defamatory meaning and that the statements individually were either “protected opinion, substantially true, or too vague to convey a defamatory meaning.”

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The court of appeals affirmed the district court’s dismissal of the interference with business claim but reversed the court with respect to six of the allegedly defamatory statements.

The six statements were:

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 told Laurion that Dr. McKee was “a real tool!”

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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.

The state’s highest court then took the matter on appeal.

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“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,”; and (4) “the recipient of the false statement reasonably understands it to refer to a specific individual,” Page wrote.

The Court then looked at statements 1, 2, and 4.

“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,” Page wrote.

Page then discussed that in all three of the statements in question, the statements made were closely aligned with statements the doctor made in testimony. Page ruled that statements were each “substantially true” in the light of all the evidence.

Next, the Court looked at statements 3, 5, and 6.

“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. The question of whether a statement’s language reasonably conveys a defamatory meaning is one of law,” Page wrote.

“Whether a defamatory meaning is conveyed depends upon how an ordinary person understands the language used in the light of surrounding circumstances. 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.

“If the words are capable of conveying a defamatory meaning, it is for the jury to decide whether they were in fact so understood.

“We conclude, as a matter of law, that Statements 3, 5, and 6 are not capable of conveying a defamatory meaning.”

Page looked at each statement individually before concluding that each was incapable of conveying a defamatory meaning as published.

“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,” he wrote. “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.”

The opinion of the court of appeals having been reversed, the decision of the trial court which dismissed the action on summary judgment, will stand.

Comments

Harry Nevus: This lawsuit, McKee v Laurion, was named among “The top lawsuits of 2013” by “Twin Cities Business
Magazine” on December 20, 2013:

Dr. David McKee, a Duluth neurologist, was not laughing when he saw what one former client wrote about
him on a doctor-rating website. The reviewer, Dennis Laurion, complained that McKee made statements that he interpreted as rude and quoted a nurse who had called the doctor “a real tool.” As these statements echoed through the
Internet, McKee felt his reputation was being tarnished. He sued, and so began a four-year journey that ended this year in the Minnesota Supreme Court.

Laurion was unhappy with the way McKee treated his father, who was brought to the doctor after he had a stroke.
Laurion went to several rate-your-doctor sites to give his opinion. That’s just free speech, isn’t it? It sure is, says Laurion’s attorney, John D. Kelly of the Duluth firm Hanft Fride. “The court held that what my client was quoted as saying was not defamatory,” he says. “I do think the Internet makes it much easier for persons exercising poor judgment to broadcast defamatory statements, however… a medium… doesn’t change the quality of a
statement from non-defamatory to defamatory.”

But McKee’s lawyer, Marshall Tanick, of Hellmuth & Johnson, says no matter where it was said, defamation is
defamation. “The thing that’s often misunderstood is that this was not just about free speech, but about making actual false statements,” Tanick says. “The problem is today’s unfettered opportunity to express opinion, whether or not
the substance of what’s said is true or not. We need some boundaries.”

But boundaries were not on the minds of the Minnesota Supreme Court. Free speech was. Chief Justice Lorie Gildea
wrote, “The point of the post is, ‘This doctor did not treat my father well.’ I can’t grasp why that wouldn’t be protected opinion.”

As to referring to the doctor as “a real tool,” Justice Alan Page wrote that the insult “falls into the category of pure opinion because the term … cannot be reasonably interpreted as a fact and it cannot be proven true or false.”

The takeaway from this case might be the knowledge that behind any rating service lie real people with real feelings. McKee spent more than $60,000 in the effort to clear his name, as he saw it.

Dennis Laurion told the Star Tribune he spent the equivalent of two years’ income, some of which he had to borrow
from relatives who supplied the money by raiding their retirement funds.


Uranus: 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 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.”

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.

Marshall Tanick told the Star Tribune that 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.

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.”

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.”

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.”

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

 

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