The Good, The Bad And The Ugly With Online Reviews

May 1, 2013

The Good, The Bad And The Ugly With Online Reviews

Carol M. Langford, Contra Costa Lawyer

A search on the business rating site Yelp for attorneys in San Francisco yields 5,681 results. Although Yelp and similar sites are probably best suited for restaurants and night clubs, many people use the site to review professionals. These reviews influence potential clients. The Lawyerist.com, a blog for legal professionals, recently polled a thousand people with the question: “When you need to find a specialty lawyer, how would you start your search?” Twenty-two percent said that they search Google or another search engine, 10 percent said that they “look elsewhere on the internet” and 2 percent said that they “ask on my favorite social network.”

Yelp is not the best indicator of an attorney’s ability—but most people using Yelp don’t know that. Most experiences with Yelp reveal that generally bad restaurants get bad reviews and good restaurants get good reviews. However, some places of business and now some attorneys either pay people to write good reviews or ask their dearest friends to rate their lawyer skills online. Thus, inexperienced lawyers who are savvy with social networking can have outstanding reviews and more seasoned, but less Internet-savvy attorneys can have bad reviews and not even know about it. In some instances, attorneys might be rated for things that have nothing to do with their legal abilities. There is really no way to tell why someone rated a particular attorney with high marks.

However, the troubling question is, what can a lawyer do to fight back when he or she receives a negative review on Yelp? According to some ethics experts: not much. In the Los Angeles County Bar Association’s Formal Ethics Opinion #525, the authors concluded that any public response to a negative review online must not “disclose confidential information,” must “not injure the former client in any matter involving the prior representation” and must be “proportionate and restrained.” The part about not disclosing confidential information can leave attorneys at a huge disadvantage when responding online.

Because opinions are protected by the First Amendment, clients are usually within their rights to log onto social media sites and trash their attorney, as long as they don’t knowingly make false statements—a hard standard to prove. Further complicating matters is the attorney-client privilege, which restricts the attorney as to what he or she can say to respond, if that requires divulging privileged information. For instance, imagine a client that hired a personal injury attorney with unreasonable expectations of receiving millions of dollars in settlement, or a client that ended up slighted in a divorce settlement because of his or her own bad behavior. The client could then go on Yelp, AVVO, LawyerRatingz, Angie’s List, etc., and tell the world that the attorney botched the case. In this situation most people would reasonably want to defend themselves against these accusations by pointing out the client’s own bad behavior. But as lawyers we cannot. So what can we do?

A professional can always sue over a bad review for defamation—but only if the statements made in the review were false. Even then, it’s probably not a good idea. The Associated Press recently reported about a Minneapolis Neurologist, David McKee, who sued a patient’s son for defamation after he wrote a scathing review, including disparaging comments allegedly said by the doctor to him and his family following his father’s stroke. McKee claims that the statements attributed to him were not true. This particular case has not been decided ( * ), but such suits are rarely successful. A study by Eric Goldman, a professor at Santa Clara University School of Law, revealed that of the 28 physicians who have recently filed similar suits, 16 of them were dismissed and six of them settled.

 

Defendant Dennis Laurion

Defendant Dennis Laurion

 

Tendentious Lawyer

Plaintiff Attorney Marshall Tanick

Plaintiff David McKee MD

Plaintiff David McKee MD

 

 

 

 

 

 

 

The outcome of such suits can be devastating. In a July 13, 2009, article the San Francisco Chronicle reported about a California dentist, Yvonne Wong, who sued a patient and Yelp after the patient posted a negative review on Yelp’s site. Ultimately, Ms. Wong was ordered to pay more than $80,000 in attorney’s fees to her patient and Yelp. The judge ruled in that case that California’s stringent anti-SLAPP law could be applied because the patient had mentioned mercury fillings in her review, and thus the review furthered discussion of an issue of public interest.

Even Yelp’s spokeswoman Kristen Whisenand recommends against using the “nuclear option” and suing for a negative review. Why? Because it usually only brings more attention to the negative review—which is what the professional didn’t want in the first place. For example, in 2007, the New York Times reported about attorney John Henry Browne who sued the lawyer-ranking site Avvo alleging that his 5.7 (out of 10) ranking was damaging to his law practice. A federal judge held that the reviews were protected under the First Amendment right to express opinions and dismissed the case. The case brought more public notice to the negative Avvo reviews that the attorney wanted removed in the first place. A search of the same attorney now shows that he was able to raise that number to 6.6, so maybe he learned a thing or two since then. Or maybe he simply became more Internet-savvy and learned how to work the system.

The best option for attorneys is to check the ratings websites, and respond to the reviews in a friendly, proactive manner. For example, one San Francisco attorney with a rating of 2.5 stars on Yelp (out of 5 possible stars) responded to each and every one of his negative reviews in a polite manner that did not divulge privileged information. Although measures such as these may seem distasteful, the reality is that social media exists, people do check it when searching for an attorney, and the only thing attorneys can do is to stay on top of things.

Carol M. Langford has a practice in State Bar defense and professional licensing disputes in Walnut Creek. She teaches professional responsibility as an adjunct at U.C. Berkeley, Boalt Hall School of Law, and Hastings College of the Law. Additionally, Ms. Langford serves as an expert witness in cases involving complicated ethics issues and presents at conferences and symposiums across the state. She is a past Chair of the California Committee on Professional Responsibility and Conduct.

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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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

 

 

 

 

 

Minnesota Court Of Appeals Overturns $60,000 Jury Verdict For Tortious Interference With Contract Against A Local Blogger

FALL 2012

“Minnesota Court Of Appeals Overturns $60,000 Jury Verdict For Tortious Interference With Contract Against A Local Blogger”

Cassie Batchelder, Silha Research Assistant

Silha Center For The Study Of Media Ethics And Law

University Of Minnesota School Of Journalism And Mass Communication

 An August 20, 2012 decision from the Minnesota Court of Appeals in Moore v. Hoff, A11-1923, 2012 WL 3553180 (Minn. Ct. App. Aug. 20, 2012), overturned a jury verdict against John Hoff, a north Minneapolis resident who writes a blog about local issues entitled “The Adventures of Johnny Northside.”  A jury previously found Hoff liable for tortious interference with a contract after truthful statements on Hoff’s blog resulted in the plaintiff, Jerry Moore, being fired from his job.

Moore formerly directed a community council in north Minneapolis and was fired from that position. The University of Minnesota’s Urban Research and Outreach-Engagement Center then hired Moore in 2009 to study mortgage foreclosures. After Hoff learned the university hired Moore, he penned a blog post alleging that Moore was involved in a fraudulent mortgage resulting in a 16-year prison sentence for Larry Maxwell, a real estate agent. Moore was not criminally charged in that case. The post in question read, “[Moore]—who has been a plaintiff in a lawsuit against JACC [Jordan Area Community Council], and was fired from his executive director position for misconduct, (fistfight, cough cough) is nothing if not a controversial figure in the Jordan neighborhood . . . Repeated and specific evidence in Hennepin County District Court shows [Moore] was involved with a high-profile fraudulent mortgage at 1564 Hillside Ave. N.” The University of Minnesota fired Moore after receiving an email from another blogger, Don Allen, and after Hoff’s blog post was published. Allen’s email was also posted in the comments section of Hoff’s blog. Moore sued Allen, in addition to Hoff, as a result of his firing, but Allen settled before the case went trial and testified against Hoff.

In Hennepin County District Court, Moore’s claim for defamation was dismissed. However, in March 2010 a jury found Hoff liable for tortious interference with a contract, which occurs when one party intentionally damages another party’s contractual relationships. But the jury found that Hoff’s statements about Moore were not false. The jury awarded Hoff $35,000 for lost wages and $25,000 for emotional distress. After the trial, Hoff and his attorney, Paul Godfread, moved for a new trial. District Court Judge Denise Reilly denied the motion and Hoff filed an appeal with the Minnesota Court of Appeals. (For more on the background of the case, see “Defamation Lawsuits Pose Threat to Journalists as Online Communication Complicates First Amendment Analysis” in the Spring 2012 edition of the Silha Bulletin and “Outrageous Speech, ‘Trash Torts’ and the First Amendment” in the Winter/Spring 2011 edition of the Silha Bulletin.)

Godfread and media attorney Mark Anfinson argued on Hoff’s behalf before the Minnesota Court of Appeals. John Borger and Leita Walker, partner and associate, respectively, at Faegre Baker Daniels, submitted an amicus brief on behalf of the Silha Center, the Minnesota chapter of the Society of Professional Journalists, and the Reporters Committee for Freedom of the Press.

Writing for the appellate panel, Judge Jill Flaskamp Halbrooks said, “Because the jury’s verdict is contrary to established law and appellant’s alleged tortious acts are too intertwined with constitutionally protected conduct to avoid infringing on appellant’s First Amendment rights, we reverse and remand.” The court reasoned that the non-defamatory statement made by Hoff could not serve as the basis for a claim of tortious interference, explaining that, to prove tortious interference with a contractual relationship, the plaintiff must establish: (1) that a contracts existed; (2) the defendant’s knowledge of the contract; (3) intentional accomplishment of the contract’s breach; (4) without justification; and (5) damages to the plaintiff. “Hoff’s blog post is the kind of speech that the First Amendment is designed to protect,” Flaskamp Halbrooks wrote. “He was publishing information about a public figure that he believed was true (and that the jury determined was not false) and that involved an issue of public concern . . . Attaching liability to this speech would infringe on Hoff’s First Amendment rights.”

“It’s important to have a strong re-affirmation of the principle that truthful speech does not support a lawsuit for tortious interference,” Borger said in an interview with online news source Twin Cities Daily Planet for a June 5, 2012 story. “We think it is important to recognize and reaffirm when speech is involved and the First Amendment is involved, that the reviewing court needs to apply an independent standard of review looking at all the evidence.”

Itai Maytal, an associate attorney with Miller Korzenik Sommers and a former First Amendment Fellow with The New York Times Company, said the case offered a “welcome vindication of the general principle that truth is an absolute defense to a claim for defamation and to claims for tortious interference with a contract or prospective business advantages arising out of an allegedly defamatory statement,” in an Aug. 30, 2012 commentary for Citizen Media Law Project. “But, it is troubling in as much as the defendant had to incur the time and expense of a jury trial and an uncertain appeal in order to receive the relief he was entitled. In that respect, it offers the cautionary tale to bloggers that reporting the truth, while important and socially valuable, may not come without a price,” Maytal wrote.

The time period for Moore to appeal the appellate court’s decision to the Minnesota Supreme Court has passed without a filing from Moore, so the ruling will stand.

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, Calif. 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.”

SOURCE

Amicus Brief On Behalf Of John Hoff

Court of Appeals Decision About Moore V. Hoff

 

SILHA: Minnesota Courts Address Defamation Claims Stemming from Blog Posts and Online Review

FALL 2012

“Minnesota Courts Address Defamation Claims Stemming from Blog Posts and Online Review”

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

Novel questions about the First Amendment and the law of defamation related to speech individuals post online have come before Minnesota courts in recent months. The Minnesota Court of Appeals reversed a $60,000 jury verdict for tortious interference against John “Johnny Northside” Hoff after a statement he posted on his blog resulted in the subject’s firing. In addition, the Minnesota Supreme Court heard arguments in a case in which a doctor’s alleges patient’s son posted a defamatory review of the doctor online.

Minnesota Court Of Appeals Overturns $60,000 Jury Verdict For Tortious Interference With Contract Against A Local Blogger

An Aug. 20, 2012 decision from the Minnesota Court of Appeals in Moore v. Hoff, A11-1923, 2012 WL 3553180 (Minn. Ct. App. Aug. 20, 2012), overturned a jury verdict against John Hoff, a north Minneapolis resident who writes a blog about local issues entitled “The Adventures of Johnny Northside.”  A jury previously found Hoff liable for tortious interference with a contract after truthful statements on Hoff’s blog resulted in the plaintiff, Jerry Moore, being fired from his job.

Moore formerly directed a community council in north Minneapolis and was fired from that position. The University of Minnesota’s Urban Research and Outreach-Engagement Center then hired Moore in 2009 to study mortgage foreclosures. After Hoff learned the university hired Moore, he penned a blog post alleging that Moore was involved in a fraudulent mortgage resulting in a 16-year prison sentence for Larry Maxwell, a real estate agent. Moore was not criminally charged in that case. The post in question read, “[Moore]—who has been a plaintiff in a lawsuit against JACC [Jordan Area Community Council], and was fired from his executive director position for misconduct, (fistfight, cough cough) is nothing if not a controversial figure in the Jordan neighborhood . . . Repeated and specific evidence in Hennepin County District Court shows [Moore] was involved with a high-profile fraudulent mortgage at 1564 Hillside Ave. N.” The University of Minnesota fired Moore after receiving an email from another blogger, Don Allen, and after Hoff’s blog post was published. Allen’s email was also posted in the comments section of Hoff’s blog. Moore sued Allen, in addition to Hoff, as a result of his firing, but Allen settled before the case went trial and testified against Hoff.

In Hennepin County District Court, Moore’s claim for defamation was dismissed. However, in March 2010 a jury found Hoff liable for tortious interference with a contract, which occurs when one party intentionally damages another party’s contractual relationships. But the jury found that Hoff’s statements about Moore were not false. The jury awarded Hoff $35,000 for lost wages and $25,000 for emotional distress. After the trial, Hoff and his attorney, Paul Godfread, moved for a new trial. District Court Judge Denise Reilly denied the motion and Hoff filed an appeal with the Minnesota Court of Appeals. (For more on the background of the case, see “Defamation Lawsuits Pose Threat to Journalists as Online Communication Complicates First Amendment Analysis” in the Spring 2012 edition of the Silha Bulletin and “Outrageous Speech, ‘Trash Torts’ and the First Amendment” in the Winter/Spring 2011 edition of the Silha Bulletin.)

Godfread and media attorney Mark Anfinson argued on Hoff’s behalf before the Minnesota Court of Appeals. John Borger and Leita Walker, partner and associate, respectively, at Faegre Baker Daniels, submitted an amicus brief on behalf of the Silha Center, the Minnesota chapter of the Society of Professional Journalists, and the Reporters Committee for Freedom of the Press.

Writing for the appellate panel, Judge Jill Flaskamp Halbrooks said, “Because the jury’s verdict is contrary to established law and appellant’s alleged tortious acts are too intertwined with constitutionally protected conduct to avoid infringing on appellant’s First Amendment rights, we reverse and remand.” The court reasoned that the non-defamatory statement made by Hoff could not serve as the basis for a claim of tortious interference, explaining that, to prove tortious interference with a contractual relationship, the plaintiff must establish: (1) that a contracts existed; (2) the defendant’s knowledge of the contract; (3) intentional accomplishment of the contract’s breach; (4) without justification; and (5) damages to the plaintiff. “Hoff’s blog post is the kind of speech that the First Amendment is designed to protect,” Flaskamp Halbrooks wrote. “He was publishing information about a public figure that he believed was true (and that the jury determined was not false) and that involved an issue of public concern . . . Attaching liability to this speech would infringe on Hoff’s First Amendment rights.”

“It’s important to have a strong re-affirmation of the principle that truthful speech does not support a lawsuit for tortious interference,” Borger said in an interview with online news source Twin Cities Daily Planet for a June 5, 2012 story. “We think it is important to recognize and reaffirm when speech is involved and the First Amendment is involved, that the reviewing court needs to apply an independent standard of review looking at all the evidence.”

Itai Maytal, an associate attorney with Miller Korzenik Sommers and a former First Amendment Fellow with The New York Times Company, said the case offered a “welcome vindication of the general principle that truth is an absolute defense to a claim for defamation and to claims for tortious interference with a contract or prospective business advantages arising out of an allegedly defamatory statement,” in an Aug. 30, 2012 commentary for Citizen Media Law Project. “But, it is troubling in as much as the defendant had to incur the time and expense of a jury trial and an uncertain appeal in order to receive the relief he was entitled. In that respect, it offers the cautionary tale to bloggers that reporting the truth, while important and socially valuable, may not come without a price,” Maytal wrote.

The time period for Moore to appeal the appellate court’s decision to the Minnesota Supreme Court has passed without a filing from Moore, so the ruling will stand.

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

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

Amicus Brief On Behalf Of John Hoff

Court of Appeals Decision About Moore V. Hoff

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

 

 

 

 

 

Fierce Health Care: “Chiropractor sues patient over negative online review”

JANUARY 9, 2009

“Chiropractor sues patient over negative online review”

Anne Zieger, Fierce Health Care

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Some insurance companies have been starting to experiment recently with allowing their customers to rate doctors and then make that information generally available. But third-party sites to do the same thing have been around for several years. So what if a user writes a review that is not accurate?

A San Francisco chiropractor is trying to find a way to respond to a negative review that he believes was completely unfair. Originally, the patient published a review on a site called Yelp after visiting the chiropractor for the first time; in it, he didn’t complain about the care he received but did complain about the chiropractor’s billing practices.

Then the chiropractor complained about the review, saying that his billing practices were perfectly standard and that a negative review could drive customers away. So the patient replaced his review with another one, intimating that this was how the chiropractor responded to all negative reviews, and therefore his overwhelmingly positive reviews couldn’t be trusted.

Now the chiropractor is suing the patient. Many observers are saying that the chiropractor simply generated a lot of bad press, and lost himself a lot more patients than if he had just left well enough alone. But the whole case brings up a valid point: What should doctors do if patients are publishing negative, false reviews about them on the Internet?

Showing 5 comments

Alguien: Why are you automatically assuming that the patient’s statements were false?

Howard: Posting a statement about another person (or organization) on the internet should not shield the poster from libel or slander laws – if I accuse a licensed professional, regardless of his or her specialty, of conduct unbecoming etc. I should be prepared either to prove it or deal with the consequences. I am professionally licensed in my field, and someone accusing me of incompetence or dishonesty had better be prepared to document the charge or face the legal consequences. And the cloak of anonymity that the internet offers is a very thin cloak indeed – every posting leaves a trail that can be traced back to the poster. Take my word for it.

JG: The doctor should be able to rebut the negative information (like on EBay). There are two sides to every story and sometimes they’re both true! The consumers should be able to weigh them and make an informed decision.

Someara: This article lead very skillfully conflates “negative” with “false,” and would suggest the reader make the same mistake. Given the documented and well-known medical error rates that lead to roughly 100,000 avoidable deaths every year in the U.S., and even greater numbers of poor outcomes, it seems not genuine at the very least for medical practitioners to claim abuse by consumer feedback on the Web. I don’t see similar concern expressed about the abdication of regulatory responsibility by medical review boards across the U.S. who refuse to police, censure or control incompetent and reckless medical practice. Given how long and hard it took the AMA to buy into the concept of “patients rights,” it’s not surprising that many of its members would be more interested in denying patients’ inalienable rights of speech rather than investigating deficits within individual or group practice.

Anonymous: Whether the client’s statements were false or not is not the issue here. The issue is the negative reviews triggered this kind of response from the chiropractor. I don’t think he really had to sue. He could’ve just hired an online PR firm like Reputec to get rid of the bad links by replacing them with good ones.

http://www.fiercehealthcare.com/story/chiropractor-sues-patient-over-negative-online-review/2009-01-09

In Rahbar v. Batoon, California Supreme Court Declined To Revive A Dentist’s Lawsuit Against A Patient Who Had Posted A Negative Online Review

JANUARY 16, 2013

“Defamation Cases Illustrate Dangers Of Suing Over Critical Internet Reviews”

Arent Fox, Lexology

 In Rahbar v. Batoon, the California Supreme Court declined to revive a dentist’s lawsuit against a patient who had posted a negative online review on Yelp.com. See No. S206889 (Cal. Jan. 3, 2013). The patient, Jennifer Batoon, posted her critical review in August 2008, writing “DON’T GO HERE. MOST PAINFUL DENTIST EVER.” and voicing her displeasure with her dentist’s treatment choices, billing practices, and communication skills. In September 2009, the dentist, Gelareh Rahbar, sued her former patient in San Francisco Superior Court, pleading claims of defamation and invasion of privacy based on the Yelp review.

The defendant ultimately moved to strike these claims under California’s anti-SLAPP (i.e., “Strategic Lawsuit Against Public Participation”) statute, which provides “a cause of action against a person arising from any act of that person in the furtherance of the person’s right of petition or free speech . . . in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” See Cal. Civ. Proc. Code § 425.16. The San Francisco Superior court granted the motion and awarded Batoon $43,035 in attorney fees. Rahbar did not appeal this decision, but instead filed a second lawsuit in August 2010 based on Batoon’s 2008 Yelp review. Again, the defendant filed an anti-SLAPP motion, and the court ruled she was entitled to fees. The plaintiff appealed this decision, and in October 2012, the California Court of Appeal affirmed the trial court’s grant of the special motion to strike and award of attorneys fees to the defendant. See Rahbar v. Batoon, No. A132294 (Cal. Ct. App. Oct. 16, 2012). On January 3, 2013, during its weekly meeting, the California Supreme Court rejected, without comment, Rahbar’s request to challenge the award.

The advent of the Internet has created a new forum for customers to chronicle their purchasing experiences or express their feelings toward service providers, and, in many cases, companies may feel that former customers have been unfairly, or deceptively, critical of their goods or services. Nevertheless, companies should tread carefully when considering legal action against former customers or clients who post unfavorable reviews on the Internet, especially in states like California that have strong anti-SLAPP statutes. In this context, rushing into court can result in an embarrassing defeat, or worse, costly awards under a state’s anti-SLAPP statute.

Dr. Rahbar denies these allegations and contends that both reviewers are lying about her in retaliation because she sent their overdue accounts to collection agencies. Most of the other 41 patients who have reviewed Dr. Rahbar on Yelp give her good marks; her cumulative rating is four stars out of a possible five. But she says these criticisms were devastating.

“I’ve suffered tremendously emotionally because of this,” she told DrBicuspid.com. “I have nothing against online review sites, but I don’t agree with defamatory speech.” She said Yelp advertising representatives had approached her with an offer to prominently display a favorable review in exchange for a monthly fee, an offer that felt to her “like extortion.”

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