The Reporters Committee For Freedom Of The Press Cites Mckee V. Laurion In Its Supreme Court Of Oregon Amicus Brief About Carol C. Neumann And Dancing Deer Mountain V. Christopher Liles

SEPTEMBER 24, 2014

IN THE SUPREME COURT OF THE STATE OF OREGON

CAROL C. NEUMANN and DANCING DEER MOUNTAIN, LLC, an Oregon Domestic Limited Liability Company, Plaintiffs-Appellants, Cross-Respondents, Respondents on Review

v.

CHRISTOPHER LILES, Defendant-Respondent, Cross-Appellant, Petitioner on Review

Lane County Circuit Court

Court of Appeals A149982

Supreme Court S062575

BRIEF OF AMICUS CURIAE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS IN SUPPORT OF PETITION FOR REVIEW. AMICUS CURIAE INTENDS TO FILE A BRIEF ON THE MERITS OF THE CASE ON REVIEW

Court of Appeals opinion dated: March 12, 2014

I. REVIEW OF THE DECISION IS IMPORTANT TO CLARIFY THE PROPER ANALYSIS OF OPINION IN DEFAMATION ACTIONS

The Reporters Committee for Freedom of the Press (“Reporters Committee”) urges this Court to take review of the Court of Appeals’ decision (the “Decision”) in order to resolve a conflict between state and federal courts in Oregon on an issue of fundamental importance to free speech: the proper analysis of opinion in a defamation action. The Decision’s narrow application of that doctrine is at odds with recent federal case law originating from Oregon, creating uncertainty that makes it not only difficult for journalists to report news to the public without increased fear of civil liability, but also harms the public’s ability to engage in public discourse online. The confusion the Decision creates concerning what may be stated in an online review, and what will expose a commenter to liability, could effectively limit free speech and thus have serious consequences for public debate.

The news media has a substantial interest in advocating for robust protections for statements of opinion, and in ensuring that the hyperbole commonly employed in the context of online speech is fully considered when analyzing whether challenged speech constitutes protected opinion. The right to express one’s opinion is a cornerstone of the promotion of public discourse and the free flow of ideas. The internet provides a wealth of opportunities for consumers to offer reviews of products and services, and for other consumers to make more informed decisions based on others’ opinions. Because the internet is a forum that thrives on immediate give-and-take, discourse naturally tends to be more hyperbolic, and it is vital for courts to take that context into account when determining whether online speech is actionable. It is crucial that Oregon courts not adopt an analysis that will limit the free flow of ideas and opinions in online forums.

II. REVIEW OF THE DECISION IS IMPORTANT TO CLARIFY THE PROPER ANALYSIS OF OPINION IN DEFAMATION

The Decision’s analysis places state and federal courts in Oregon at odds over the proper interpretation of the opinion doctrine under the First Amendment. This case thus presents an important opportunity for this Court to address the non-uniform application of the opinion doctrine in Oregon courtrooms.

The Court of Appeals rejected defendant Christopher Liles’s argument that numerous statements that he made in his review of Dancing Deer Mountain on the website Google.com were not actionable as opinion and/or hyperbolic statements, and therefore not defamatory. In particular, the Decision concludes that, in the context of an online review of a consumer’s business experience, the words “rude” and “crooked” to describe the plaintiff were defamatory.

See Neumann v. Liles, 261 Or App 567, 578-79 (2014). That analysis is difficult to reconcile with the Ninth Circuit’s recent opinion in Obsidian Finance Group, LLC v. Cox, 740 F3d 1284 (9th Cir 2014), which held (in an appeal from the District of Oregon) that the defendant’s use of such terms as “immoral,” “thugs,” and “evil doers” to describe the plaintiff on her website was not defamatory. Obsidian Finance, 740 F3d at 1294. The Ninth Circuit based its decision on the context of the statements, including the general tenor of the posts and the fact that they were made on an online blog in which the defendant used “extreme language,” indicating to the court that much of what the defendant wrote was hyperbole. See id. In short, the Ninth Circuit’s analysis factored in the realities of the online medium of communication in evaluating the context of the statements.

The Decision here, in contrast, rejects the argument that defendant’s challenged statements were hyperbole. Neumann v. Liles, 261 Or App at 579. The Decision reached that conclusion despite the fact that defendant titled his online review “Disaster!!!!! Find a different wedding venue” and included the statement “The worst wedding experience of my life!” Both statements signify that the defendant was using hyperbole of the type common in online forums. Yet the Decision concludes that the “bulk of the post is not rhetorical and factual,” apparently including the challenged statements “rude” and “crooked.” Neumann v. Liles, 261 Or App at 578-79. As discussed below, that analysis is flawed in that it fails to properly consider the context of the statements.

But in any event, just as significant for purposes of this Court’s review is the Decision’s suggestion that such an analysis may be of only limited relevance to Oregon courts, because it is based on “extra-jurisdictional authority” from the Ninth Circuit’s “First Amendment jurisprudence.” See 261 Or App at 579 (“To the extent that extra-jurisdictional authority informs our analysis, we disagree that defendant’s statements, as a whole, are hyperbolic”).1 The protection afforded to speech should not depend on whether a defendant is in a state or federal court in Oregon. The Decision’s analysis, however, suggests that reality.

It is not simply an issue of an inconsistency with Ninth Circuit authority. If this Court grants review, the Reporters Committee intends to file a brief addressing why binding United States Supreme Court precedent supports a more robust evaluation of context in determining whether a challenged statement is actionable, focusing on two broad principles reaffirmed by the United States Supreme Court in Milkovich v. Lorain Journal Co., 497 US 1 (1990): First, “a statement on matters of public concern must be provable as false before there can be liability.” Id. at 19-20 (citations omitted). And second, a statement is not defamatory if it “cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual,” a requirement that the Court described as “provid[ing] assurance that public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our Nation.” Id. at 20 (citations omitted). The Reporters Committee intends to argue how these principles, and the case law on which they are based, support a fuller analysis – and a different result – than that in the Decision.

It was error for the Court of Appeals not to fully consider the context of the purportedly defamatory statements. The Reporters Committee urges this Court to grant review in this case to establish the framework for Oregon courts to consider that context in the future. That framework should provide that any evaluation of opinion or hyperbole in an online setting must include consideration of both the importance of contributing to a robust public discourse on issues of public concern as well as the more informal and hyperbolic context of online reviews.

Failure of the courts to take such context into account could result not only in the imposition of excessive liability on members of the public who choose to share their opinions online, but the chilling of this type of speech.

Online sites such as Yelp, TripAdvisor, and Google Plus provide public forums for consumers to post their opinions of service providers for other members of the public to read and use to make their own consumer choices. Such sites are invaluable resources for today’s average consumer, who can now look to innumerable reviews available online to decide where to eat, which doctor to visit, or how to choose a provider of virtually any service imaginable. Sharing information and views on these services is unquestionably a matter of public interest and concern. It is critical that consumers be able to post reviews without fear that their negative opinions and frequent hyperbole will result in a lawsuit, and a potentially staggering amount of financial penalties.

This emphasis on the statement’s context is particularly applicable in cases involving online consumer reviews. Such reviews must be evaluated in a way that recognizes their informality of expression and tendency toward hyperbole. Like online message boards, review websites encourage a “looser, more relaxed communication style,” allowing users to “engage freely in informal debate and criticism.” Krinsky v. Doe, 159 Cal App 4th 1154, 1162-63 (Cal Ct App 2008). In this setting, “[h]yperbole and exaggeration are common, and ‘venting’ is at least as common as careful and considered argumentation.” Larissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 Duke LJ 855, 863 (2000). Online forums for consumer reviews—which are in many ways designed for “venting”—encourage posters to use a different tone, and that is the context in which writers and readers understand the reviews.

The question of how to evaluate online review opinions in defamation actions is one that many courts around the country are facing.  As these suits For example, the United States Court of Appeals for the Sixth Circuit recently held that a TripAdvisor ranking of the “Dirtiest Hotels” on their website was protected, non-actionable opinion because the tone of the list made clear that actual facts were not being stated. See Seaton v. TripAdvisor LLC, 728 F3d 592 (6th Cir 2013); see also, e.g., McKee v. Laurion, 825 NW2d 725 (Minn 2013) (dismissing doctor’s defamation claims against patient’s son who wrote negative reviews on rate-your-doctor websites about the care his father received)  The Reporters Committee urges this Court to take review and establish that framework for Oregon courts.

III. CONCLUSION

For the foregoing reasons, the Reporters Committee urges this Court to accept review of the Decision. If such review is granted, the Reporters Committee expects to file a brief on the merits.

DATED this 24th day of September, 2014.

SOURCE

Newman V. Liles History

McKee V. Laurion History

Sten Hoidal: Five Key Social Media Questions All Health Care Employers Should Consider

June 24, 2015

netWORKed

Five Key Social Media Questions All Health Care Employers Should Consider:

Question #5: How Can We Protect The Online Image Of Our Organization?

Sten Hoidal, Fredrikson & Byron, P. A.

We have all read, relied upon or at least considered online reviews … you know, the ratings, stars or “opinions” that represent a person’s experience with a product or service. Healthcare consumers frequently use these reviews to evaluate which hospital or clinic to use and which provider to see. Job applicants also use their sites in evaluating employment opportunities. Many times the online review process will actually help, not harm, health care employers.  At other times, unfortunately, health care employers will be faced with negative online reviews.

Let’s take a hypothetical. A former employee (or patient) anonymously posts false and misleading information about one of your physicians on Vitals. The posts relate to allegedly disrespectful treatment of employees, poor patient care, and poor bedside manner. You investigate and confirm that these statements are not true.  But what are your options?

You certainly have the right to respond to any negative online post. For example, Glassdoor provides companies the opportunity to post “their side of the story.” But before you decide to react to a bad online review, we recommend that you step back and think about the following:

Does the post contain HIPAA-protected information, or other sensitive, confidential information? If the answer is yes, then seek legal counsel as you may have a legal obligation to take action (not just to respond to the negative review).

Is the post believable – that is, will it really hurt your organization? And does the post violate any laws? Many sites won’t take down posts unless you can show that there is a violation of law (i.e. release of HIPAA-protected information), or the posts are threatening (think violent) to a particular person or entity, or the like.

Does the post rise to the level of defamation? If the posts are clearly false statements of fact (not opinion) and are likely to harm your business reputation, then seek legal counsel – but remember, defamation claims can be long fought battles and often hard to win.

For example, in McKee vs. Laurion, Dr. McKee sued Laurion (the son of one of his patients) for his online posts on a “rate your doctor” site. Following several years of court action, the Minnesota Supreme Court concluded that none of the statements posted online by the patient’s son, Laurion, regarding Dr. McKee’s care amounted to defamation. The court dismissed the defamation lawsuit altogether and Dr. McKee gained nothing from bringing the legal action.

Keeping in mind the uphill battle of a defamation lawsuit, what are some other options?

If the post does not reveal patient information or other confidential business information, does not implicate any laws and is not violent/threatening, you may want to stop and consider whether any response at all is warranted. Sometimes simply ignoring the post is the better course of action so as not to escalate the situation or draw greater attention to it.

If ignoring the post altogether seems like a bad idea – and you feel you have a good story to tell – then consider writing a neutral, objective response. While this might prompt your anonymous poster to rage on, it also might help to even the playing field and show the reading public that the poster’s statements may not be legitimate.

Or, consider options for increasing your organization’s positive online image. For example, create (and maintain) a Google Plus Account and write about all of the great things your organization does! Maintain a Facebook or LinkedIn page for the organization, providing general guidance and educational information, not medical advice, on how patients can improve their health, or feature “star” employees (with their consent of course).

Using social media as a platform to highlight your organization’s accomplishments, community involvement, and areas of expertise will hopefully leave the online public with favorable impressions of your organization while minimizing the impact of the occasional negative review.

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

More Doctor Lawsuits

Duluth Doctor’s Claim For Defamation Based On An Online Review Reaches The Minnesota Supreme Court

FALL 2012

Duluth Doctor’s Claim For Defamation Based On An Online Review Reaches The Minnesota Supreme Court

Cassie Batchelder, Silha Research Assistant

Silha Center For The Study Of Media Ethics And Law

University Of Minnesota School Of Journalism And Mass Communication

Image-University-Of-Minnesota

Displeased by the treatment his father received in the hospital, Dennis Laurion took his complaint online. Laurion wrote a review of Dr. David McKee, a neurologist who treated his father at St. Luke’s Hospital in Duluth, Minnesota. following a stroke, on a rate-your-doctor website.

Laurion wrote in the online review that his family was displeased with McKee’s “bedside manner.” The review read, “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!’” according to a March 24, 2012 story in the Minneapolis Star Tribune. Laurion’s complaint focused on Dr. McKee’s “body language and comments” when he treated Laurion’s father on April 20, 2010.

McKee reportedly read the comments online after another patient alerted him to their existence. McKee responded by filing a lawsuit for defamation and sought more than $50,000 in damages in district court in Duluth. He claimed he has spent $7,000 attempting to eliminate the comments from the Internet. “It’s like removing graffiti from a wall,” McKee’s lawyer, Marshall Tanick, a partner with Mansfield, Tanick & Cohen, P.A. told the Star Tribune. He argues Laurion has continued to distort the facts of the situation, both online and in complaints he has filed with various medical groups since the original online complaint. “He put words in the doctor’s mouth,” and made McKee “sound uncaring, unsympathetic or just stupid.”

In St. Louis County District Court in Duluth, District Judge Eric Hylden agreed with Laurion, writing, “The statements in this case appear to be nothing more or less than one man’s description of shock at the way he and in particular his father were treated by a physician.” Hylden dismissed McKee’s lawsuit in April 2011. The Minnesota Court of Appeals, however, disagreed. The court reversed and remanded the dismissal in January 2012, finding that some of Laurion’s comments could subject him to liability for defamation.

Laurion appealed the decision to reverse and remand the case to the Minnesota Supreme Court, which heard arguments on September 4, 2012. The issue in McKee’s appeal is whether statements Laurion published describing McKee’s treatment of his father are not pure opinion but, rather, factual assertions capable of being proven true or false. This is the standard the United States Supreme Court set forth in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), for what establishes opinion protected by the First Amendment.

“I argued that the posting to a website is part of the context that colors or shapes what Mr. Laurion was trying to do, and the essential nature of one of these websites is to provide subjective feedback and people get lots of subjective feedback from different perspectives and from different experiences,” John Kelly, an attorney with Hanft Fride, P.A., who represented Laurion before the Minnesota Supreme Court, told the Duluth News Tribune for a September 5, 2012 story.

“We argued to the court that Mr. Laurion published both on the Internet and to approximately 20 others, including medical organizations, false statements about Dr. McKee that disparaged his professional abilities and hurt his reputation,” Tanick, who also represented McKee before the Minnesota Supreme Court, told the Duluth News Tribune. “We asked the court to affirm the decision of the Court of Appeals so that Dr. McKee has the opportunity to present this to a jury and get his day in court.”

Lawsuits like McKee’s are rare, Eric Goldman, professor at Santa Clara University School of Law told the Star Tribune. However, Goldman said “they’ve been popping up around the country as patient review sites such as Vitals and Rate Your Doctor have flourished.” Lawsuits claiming defamation are “kind of the nuclear option,” Goldman said. “It’s the thing that you go to when everything else has failed.” Goldman tracks lawsuits healthcare providers file against online reviewers, and told the Reporters Committee for Freedom of the Press (RCFP) for the Fall 2012 issue of The News Media and The Law that, of the 28 lawsuits he has tracked, courts dismissed 16 of them, six settled, and the other six are still pending.

In one such suit, an Arizona cosmetic surgeon, Dr. Albert Carlotti III, won a $12 million verdict against a former patient in February 2012, according to a Feb. 20, 2012 post by the American Medical Association on its website. The patient wrote reviews on numerous websites and created her own website stating Carlotti disfigured her face, was not board-certified, and was being investigated by the state medical board, although no records of such investigations exist; the patient is appealing the judgment.

Online reviews of other businesses and services have resulted in lawsuits alleging defamation around the country, as well. For example, an owner of a Sarasota, Fla. computer graphics company sued a reviewer after the reviewer wrote a negative, one-star review on Yelp.com, a website that allows anyone to post reviews of a wide range of businesses. The review called the owner “a scam liar and complete weirdo,” according to a Dec. 18, 2011 report in the Sarasota Herald Tribune. A dentist in Foster City, California, filed a similar suit in Santa Clara County Superior Court in 2008 after a patient’s parents posted a negative review on Yelp.com, according to a Jan. 13, 2009 story in the San Francisco Chronicle.

Because online reviewers are subject to defamation lawsuits, Rob Heverly, assistant professor of law at Albany Law School of Union University, wrote a guide for online reviewers on Madisonian.net, a blog focused on law, technology, and culture, which features written contributions from many law professors, on April 13, 2010. “The lesson here is straight forward: if you are making statements online about another person, a business or a service, do not embellish beyond what you can show factually,” Heverly wrote. “Statements of opinion were, in the past, considered absolutely protected, but the U.S. Supreme Court has clarified that opinion-statements backed by implied facts will be actionable where the facts implied are false.” The Minnesota Supreme Court is expected to release its decision in early summer.

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

 

 

 

 

 

YELP YOURSELF

cropped-cropped-cropped-wordpress-trying-our-patients1.jpg

NOVEMBER 1, 2011

“Can One Bad Comment Or Online Review Ruin Your Practice?”

The Doctors Company

 Unhappy patients rarely retract derogatory or even defamatory statements made online. Should you fight the commenters?

 Fighting defamation, at least in some cases, might make the situation worse. Even if disgruntled commenters desist, the defamation is in the public domain and will circulate again and again.

Consider the following recent court case: A neurologist in Duluth, Minn., sued a family member of an unhappy patient for defamation because of a negative review written on a third-party website. The media picked up the story, multiplying the negative aspects of the case and presenting additional facts that were not supportive of the physician’s office staff. Ultimately, the case was dismissed by the judge, who declared that “the court does not find defamatory meaning, but rather a sometimes emotional discussion of the issues.”

Fighting commenters on an Internet review site can escalate a poor interaction or outcome into a full-blown complaint to the state medical board — as it did in Texas, where anonymous commenters and complainants led to medical board actions. In response, physicians banded together and pushed the passage of a law that prevents the Texas Medical Board from considering anonymous complaints against physicians for disciplinary actions. Other states may take up the issue as well.

If you should receive a negative or unfair comment or review online, avoid responding to the post. Review the comment from the point of view of a patient. Can any information shared in the comment help improve the practice? Trust that established, potential, or new patients will use their own intelligence and judgment when reading the post.

To help maintain positive relationships with your patients, consider the following ideas:

Trust your patients and your practice. Don’t have patients sign “gag orders” preventing them from commenting about their experience. This puts a therapeutic relationship onto a potentially adversarial footing.

Give patients a direct line to the practice through patient satisfaction surveys. Discuss the results in regular staff meetings and address any patient concerns.

Consider sending a letter to new patients after their first visit, thanking them for choosing the practice and stating that you hope to see them in the future.

Encourage satisfied patients to post their experience as well, to help balance the reviews.

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

Internet Globalization Class: “Rating, Ranking & Reviewing: Everyone Is A Critic”

NOVEMBER 19, 2011

“Rating, Ranking & Reviewing: Everyone Is A Critic”

Internet Globalization Class

I rate my profs

If the Web and online social networks have “democratized” many functions in society, one of them is rating, ranking and reviewing — of everything from consumer products, songs and movies to university professors and doctors. This function of qualitative assessment was formerly exclusive to “professional” critics such as journalists, or in the case of professors and doctors was conducted by professional peers and bureaucratic hierarchies. On the Web, however, everyone can be a critic.

What is is behind this phenomenon? Thanks to the Web, there are no more barriers for anyone who wants to rate, rank or review something or someone. There are now many websites devoted to rating, ranking and reviewing, such as Yelp and Trip Advisor. Other sites such as Amazon feature rating, ranking and reviewing features. Many people now trust these sites more than they do “professional” critics. Indeed, the democratization of rating, ranking and reviewing has had a major impact on the commercial success of products — and even the reputation of professors and doctors.

For a background article on the role of online social networks in this phenomenon, see this piece in Time magazine, When Everyone’s a Critic, and this article the Guardian with a similar title, “Everyone’s a Critic Now“.

Online rating and ranking has become so widespread that sites like TripAdvisor and Yelp are now indispensable tools for planning everything from a night out for a meal and movie to a holiday in an exotic location. As a Harvard study found, positive Yelp reviews definitely boost business for local restaurants. Yelp has been controversial, however, sometimes accused of charging businesses for playing up positive reviews and playing down negative reviews.

Controversy has dogged other rating and review sites like TripAdvisor and Amazon. TripAdvisor has been accused of featuring “fake” reviews. In the UK, the site has even been threatened with investigation over these practices. Amazon’s reviews have also been called in to question, according to an article, “What Shoppers Don’t Realize About Amazon’s Reviews“.

As noted above, university professors are now rated by students on RateMyProfessors.com, a site whose popularity does not always please the academic profession. RateMyProfessors.com is controversial due to rating criteria like physical attractiveness (“Chilli Pepper”) and easiness, but the site is nonetheless used by millions of students not only for entertainment but also to select their courses.

In another area, patients also rate and review doctors online — and not always to the liking of doctors themselves. Patient criticism can indeed result in controversy, as revealed in this article, A Physician Review Gone Wrong.

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

Leyhane Blogspot: “For What It’s Worth: Doctor Sues Patient”

OCTOBER 8, 2011

“For What It’s Worth: Doctor Sues Patient”

Leyhane Blogspot

Medical malpractice suits are common (even if they are not as common as some doctors fear). But a suit by a doctor against a patient? That would seem to fit the ancient definition of news. Yet I hadn’t heard of Dr. David McKee’s defamation suit against Dennis Laurion before I received an email about the case.

Actually, Dennis Laurion was not McKee’s patient. Dr. McKee, a neurologist, treated Dennis’s father, Kenneth, a World War II vet, who suffered a hemorrhagic stroke in April 2010. The younger Mr. Laurion was not at all happy with how Dr. McKee treated his father. The elder Mr. Laurion survived, but his son felt that Dr. McKee failed to accord his father appropriate dignity and respect. He didn’t sue for malpractice; instead, he blasted the doctor on a number of ratings sites.

There are ratings services for every business and profession out here on the Internet (including sites that rate lawyers). I haven’t used the Internet to check out a doctor since… let’s see… yesterday. Usually, though, I’m only looking for confirmation of the spelling of the doctor’s name, or to verify an address or phone number. I personally don’t put much stock in so-called “reviews.” On any random site, some reviews will seem as if they’d been written by the doctor’s mother. Others read as if they’d been written by the doctor’s bitter ex-spouse.

Nevertheless (and understandably), doctors are a bit sensitive about how they are portrayed online. See, “Why doctors hate online reviews,” by Dr. Rahul Parikh, in the “Pop Rx” column on Salon.com, September 5, 2011.

There are services that promise to provide some protection to the small businessperson who suffers the slings and arrows of outrageous Internet attacks. Reputation Defender is one product that advertises heavily in this market (and the website seems to pitch at doctors in particular); TheReviewBuster.com is another one I found in a quick search today. Public relations firms would, presumably, be able to offer some assistance to the aggrieved professional in straits similar to those in which Dr. McKee apparently found himself.

But Dr. McKee decided to sue instead.

The trial court entered summary judgment against McKee. The various sources I’ve consulted today dispute whether Dennis Laurion voluntarily removed his comments from ratings sites when Dr. McKee asked. Depending on the point of view of the poster, McKee’s suit was either an honorable response to vicious online attacks or a callous attempt to stifle the Laurion family’s free speech rights. And there may have been a SLAPP angle, too: In addition to posting negative reviews, Dennis Laurion made a complaint to the hospital where Dr. McKee worked and to the Minnesota Board of Medical Practice. Supposedly, just before the summary judgment motion was resolved against McKee, a hundred new negative reviews appeared on line about Dr. McKee. McKee’s lawyer blamed Laurion; Laurion denied it. I have to wonder whether these additional postings might have been a product of the Streisand Effect.

In the course of today’s efforts, I do not claim to have peeled through the many layers of conflicting opinion to reveal any hard kernel of truth about this case. The headline on this post, however, “Doctor sues patient’s family — and everybody loses” (HealthExecNews.com, May 10, 2011), struck me as probably accurate. I can report that McKee’s appeal is scheduled for a hearing before the Minnesota Court of Appeals, in Duluth, on November 10.

Not knowing the actual facts and being unschooled in Minnesota law (and being unlicensed in that state), I venture no prediction about the outcome of the doctor’s appeal.

But the question arises how a similar suit might fare in Illinois. Would our Citizen Participation Act (735 ILCS §110/1 et seq.) apply? Shoreline Towers Condominium Association v. Gassman, 404 Ill.App.3d 1013, 936 N.E.2d 1198 (1st Dist. 2010), may provide some guidance. Ms. Gassman kept installing a mezuzah outside the front door of her condominium; the homeowners’ association kept taking it down, insisting it was prohibited by a policy that prohibited “[m]ats, boots, shoes, carts or objects of any sort… outside Unit doors.” Gassman, a lawyer, initiated a raft of lawsuits and religious discrimination complaints with a number of state agencies, challenging the association’s ban.

The association changed its policy. And, for good measure, the City of Chicago passed an ordinance and the State of Illinois passed a law prohibiting others from attempting similar bans.

But relations between Gassman and the Association had soured in the meantime to the point where all sorts of accusations were made by one side and the other. Ultimately the Association filed a 10-count complaint against Gassman alleging a variety of theories. Gassman moved to dismiss all counts under the Citizen Participation Act (or, as it also sometimes called, the anti-SLAPP Act). The trial court agreed that the Act applied to some, but not all of the counts.

On appeal, the Association argued that the Act shouldn’t have applied to any of its claims (404 Ill.App.3d at 1020): Shoreline argues that SLAPP suits are “lawsuits brought to silence public outcry regarding issues of significant public concern,” and it characterizes SLAPP suits as actions brought against “a person or group [who] was using a public forum to voice an opinion regarding a public issue.” It suggests that “[i]t could hardly be argued that [Gassman’s] campaign of defamation, tortious interference, harassment, intimidation, and personal attacks, as to the affairs of a private condominium association, and against the members of the Board personally, rises to the level of an ongoing attempt to petition a governmental entity for public redress.”

But the Appellate Court disagreed (404 Ill.App.3d at 1021-22):

[T]he Act does not protect only public outcry regarding matters of significant public concern, nor does it require the use of a public forum in order for a citizen to be protected. Rather, it protects from liability all constitutional forms of expression and participation in pursuit of favorable government action.

To the extent, then, that our hypothetical Illinois doctor’s suit might be seen as retaliation for complaints to licensing authorities, my suspicion is that an Illinois court might find that the anti-SLAPP statute applicable. Maybe.

But the anti-SLAPP statute provides no license for Internet trolls out to sabotage a professional’s reputation.

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

 

In Social Media, Why Let The Facts Get In The Way?

MARCH 14, 2011

“Libel Abounds, But Libel Lawsuits Are Rare.”

Kevin Giles, STAR TRIBUNE

One Facebook user, angry over a dispute with a neighbor, ridicules her online as a thief and a liar. On Twitter, someone accuses a murder suspect of being a killer. A blogger discloses sensitive details about a political candidate’s personal life.

In Minnesota, and everywhere else, a perplexing phenomenon has emerged as millions of people have their say in social media. In today’s world, libelous online comments are rampant – and yet with the notable exception of the “Johnny Northside” blog case, very few people have filed lawsuits over reckless and untrue statements.

Court actions involving users on youth-dominated social media remain surprisingly low, suggesting a new outspoken culture that’s more tolerant of lies, rude behavior and character assassination.

“They’ve come to accept this kind of hurly-burly Internet conversation as normal,” said Mark Anfinson, a Minneapolis media attorney. “There are a lot of folks out there who never had a voice before. They now talk in a context just like in a bar or across the backyard fence.”

While loose lips have become common in social media exchanges, consequences loom for people who launch false attacks that threaten to inflict serious harm on someone’s reputation. Libel cases, often driven by anger and a quest for vengeance, can cost tens of thousands of dollars in attorney fees and result in unflattering publicity.

In Minnesota, only a handful of people have been sued for comments they made online and even fewer cases go to trial. Reasons for this, experts say, include:

  • Attorneys can’t sue Internet companies — who have the deep pockets — for what individual users say because of protection from the federal Communications Decency Act.
  • A blurring between fact and fiction continues unabated on Internet sites.
  • Many states have no laws to address the endless ways people fabricate information.
  • Many online postings are never seen in the first place. Unlike permanent comments in newspapers, postings can slide past without being noticed — but whether they ever disappear from databases remains in dispute.
  • Online postings, depending on how they’re delivered, can have narrow audiences.

Ordinary folks are held to the same legal standards as news reporters and anyone else who makes written statements in public, but few seem to know that – or care.

“People do and say things online that they aren’t likely to do in the physical world,” said David Ardia, director of the Citizen Media Law Project at Harvard Law School in Boston. Libel suits related to social media are rare nationwide, he said, in part because users can fire off instant replies to nasty comments. “There’s this feeling of engagement that people have available to them, tools they didn’t have in the past,” Ardia said.

In Minnesota, social media engages millions of residents who post comments on Facebook, My Space, Twitter, personal blogs and elsewhere. Some are citizen journalists, some are back porch commentators, but most are just chatterers who want a say in the world around them.

An estimated 3 million Minnesotans sign onto Facebook alone, although actual use is difficult to verify. Many offending comments relate to politics, religion and interpersonal relationships — topics sure to inspire arguments in face-to-face conversations.

Social media, Ardia said, has made the world into one big chat with everyone speaking at once. The cacophony of voices seems to race at Mach speed, with new comments continually burying old ones, but experts say it’s a mistake to presume libelous comments will disappear entirely.

“The rule is you’re responsible for what you say,” said Minneapolis attorney Leita Walker. Whether posting on Facebook, writing a letter to the editor of a newspaper, blogging or otherwise expressing an opinion, “you strive to be accurate and fair and make sure what you write is true. You don’t want to repeat a rumor to find out the rumor isn’t true.”

This past week, a challenge over statements that Minneapolis blogger Johnny Northside made in 2009 led to a jury determination Friday that he must pay $60,000 in damages. Northside, whose real name is John Hoff, was sued by Jerry Moore, former director of the Jordan Area Community Council. Northside wrote about Moore’s associations with a major mortgage fraud case that sent one man to prison for 16 years. Moore was never charged in the case.

Moore said posts by Hoff or anonymous people caused the University of Minnesota to fire him. In reply, Hoff defended his comments as protected speech, but the jurors disagreed.

Suits against bloggers — often known as “citizen journalists” — won’t make much money for anyone seeking damages, said Jane Kirtley, a University of Minnesota professor of media law and ethics. “A lot of people recognize that these unaffiliated bloggers don’t have a lot of financial resources.”

That’s another reason many victims don’t sue. Libel also can be hard to prove. Plaintiffs have to show damage to their reputations.

The motivation, then, for filing suit? Anger, outrage, a sense of being violated in a public way among friends and neighbors.

From the opposing point of view, a blogger might embrace free speech protections under the First Amendment. Or, more commonly, a caustic-tongued user on Facebook or My Space doesn’t know the law and doesn’t care.

Anfinson, who teaches a media law course at the University of St. Thomas, said younger people today worry far less about libeling someone because of a higher tolerance for online name-calling that older readers of newspapers won’t accept.

To younger people, Ardia said, suing somebody seems like a heavy-handed, disproportionate way to respond to offending comments. But he also thinks it’s hard to track much of the underlying turmoil. Many people, instead of hiring attorneys, will send threatening letters and e-mails to people they think have done them harm, demanding that the offensive post be removed. “The surface might seem very calm,” Ardia said, “but below it there might be a lot more going on than we’re aware of.”

Kevin Giles • 651-735-3342

SOURCE

Braverman V Yelp

Chaudhry V Robillard

Henry V Doe

Loftus V Nazari

Tuli V Votour

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