The Deposition of David C. McKee, M.D., was taken before Carol Danielson, RPR, Notary Public, commencing at approximately 11:43 a.m., January 7, 2011. It was introduced as Exhibit AA-156.
Court: Online Patient Reviews Are Protected Speech
By Alicia Caramenico
January 31, 2013
Amid doctors’ wariness about online review sites, the Minnesota Supreme Court yesterday ruled that an online patient review was not defamatory.
The decision ends a four-year legal battle that stemmed from a defamation lawsuit by neurologist David McKee. Following the hospitalization of Dennis Laurion’s father at St. Luke’s Hospital in Duluth, Laurion wrote reviews on several sites, with one claiming a nurse called the doctor “a real tool.”
The high court dismissed the defamation lawsuit and reversed an Appeals Court ruling that the statements harmed McKee’s reputation and could be proven as false. Moreover, according to the state Supreme Court, it doesn’t matter if the unnamed nurse really exists.
“Referring to someone as ‘a real tool’ falls into the category of pure opinion because the term ‘real tool’ cannot be reasonably interpreted as stating a fact, and it cannot be proven true or false,” the opinion states.
The situation also highlights that defamation lawsuits are not without cost–to the providers and the patients involved.
McKee has spent at least $50,000 in legal fees, as well as $11,000 to clear his reputation after the incident prompted hundreds of negative online reviews. For Laurion, litigation costs have totaled more than two years’ income.
“The financial costs are significant, but money is money, and five years from now, I won’t notice the money I spent on this,” McKee said. “It’s been the harm to my reputation through the repeated publicity and the stress.”
Providers can take several steps to control their online reputation, such as training staff to impress and keeping listings up to date and accurate. To avoid defamation lawsuits, experts recommend providers first try to resolve the patient’s complaint, if a name is provided, and encourage them to remove or amend their review.
Minnesota High Court Rules Online Patient Reviews Are Protected Speech
Newsbriefs – PIAA
February 1, 2013
Amid doctors’ wariness about online review sites, the Minnesota Supreme Court has ruled that an online patient review was not defamatory. The decision ends a four-year legal battle that stemmed from a defamation lawsuit by neurologist David McKee. Following the hospitalization of Dennis Laurion’s father at St. Luke’s Hospital in Duluth, Minnesota, Laurion wrote reviews on several sites, with one claiming a nurse called the doctor “a real tool.” The high court dismissed the defamation lawsuit and reversed an Appeals Court ruling that the statements harmed McKee’s reputation and could be proven as false. Moreover, according to the state Supreme Court, it doesn’t matter if the unnamed nurse really exists. “Referring to someone as ‘a real tool’ falls into the category of pure opinion because the term ‘real tool’ cannot be reasonably interpreted as stating a fact, and it cannot be proven true or false,” the opinion states. The situation also highlights that defamation lawsuits are not without cost—to the providers and the patients involved. McKee has spent at least $50,000 in legal fees, as well as $11,000 to clear his reputation after the incident prompted hundreds of negative online reviews.
PIAA is the insurance trade association representing domestic and international medical professional liability (MPL) insurance companies, risk retention groups, captives, trusts, and other entities.
STATE OF MINNESOTA IN COURT OF APPEALS
A14-0680 (Minn. Ct. App. Nov. 24, 2014)
Harpel v. Thurn
Reversed and remanded
McLeod County District Court
File No. 43-CV-13-1456
Considered and decided by Stauber, Presiding Judge; Schellhas, Judge; and Crippen, Judge.
Appellant challenges the dismissal of his defamation complaint under Minn. R. Civ. P. 12.02(e) for failure to state a claim upon which relief can be granted. Because the complaint does not demonstrate that appellant is an all-purpose public figure, and because appellant sufficiently pleaded actual malice in the complaint, we reverse and remand.
This appeal arises from the dismissal of appellant Eric Harpel’s defamation lawsuit against respondents Marie Thurn and Scott Nokes. Harpel is the chairman of the McLeod County Republican Party. Thurn previously served as the vice-chair of the McLeod County Republican Party, and Nokes is an attorney who represented Thurn.
Harpel alleged in his complaint that Thurn and Nokes falsely accused him of threatening Thurn and her husband, causing them concern for their personal safety. Harpel alleged that City Pages published the “false and defamatory statements” about him and that Thurn and Nokes “failed to exercise reasonable care” in making the statements, made the statements with “full knowledge” of their falsity and with “reckless disregard of the truth or falsity of the statements,” and published the statements “with a deliberate disregard for the rights of [Harpel].”
Thurn and Nokes moved to dismiss the complaint under Minn. R. Civ. P. 12.02(e) for failure to state a claim upon which relief can be granted. They maintained that Harpel is an all-purpose public figure and therefore must prove actual malice by Thurn and Nokes to prevail in the lawsuit. Thurn and Nokes argued that the complaint fails to plead facts to support a finding of actual malice. Following a hearing, the district court determined that Harpel is an all-purpose public figure because he “voluntarily assumed the role of local prominence in shaping and conducting the political affairs of society” and “is a local celebrity and prominent social figure who has general fame and notoriety in the community.” The court further held that the complaint does not plead facts necessary to establish actual malice because the complaint’s paragraphs addressing the element of malice include only legal conclusions and no “[c]oncrete facts establishing [Thurn’s and Noke’s] first-hand knowledge of falsity . . . or a reckless disregard for the truth.” The court granted the motion and dismissed the complaint with prejudice.
To establish defamation, a plaintiff must prove that a defamatory statement was communicated to someone other than the plaintiff, that the statement is false, that the statement tends to harm the plaintiff’s reputation and to lower the plaintiff in the estimation of the community, and that the recipient of the statement reasonably understood the statement to refer to a specific individual. McKee v. Laurion, 825 N.W.2d 725, 729-30 (Minn. 2013). When the plaintiff is a public figure, he or she must also prove that the statement was made with actual malice.
. . .
Cengage Advantage Books:
Fundamentals of Business Law Today: Summarized Cases
By Roger Leroy Miller
Case 4.1 McKee V. Laurion, Supreme Court of Minnesota, 825 N. W. 2nd 725, 2013
FACTS: Kenneth Laurion was admitted to St. Luke’s Hospital in Duluth, Minnesota, after suffering a hemorrhagic stroke. Two days later, he was transferred from the intensive care unit (ICU) of St. Luke’s to a private room. The attending physician arranged for Dr. David McKee, a neurologist, to examine him. Kenneth’s son, Dennis, and other Laurion family members were present during the examination. After Kenneth was discharged from the hospital, Dennis posted the following statements on websites for rating physicians.
[ Dr. McKee ] seemed upset that my father had been moved [ into a private room. ] Never having met my father or his family, Doctor McKee said, “When you weren’t in ICU, I had to spend time finding out if you transferred or died.” When we gaped at him, he said, “Well, 44% of hemorrhagic strokes die within 30 days. I guess this is the better option.” . . . When my father said his gown was just hanging from his neck without a back, Dr. McKee said, “That doesn’t matter.” My wife said, “It matters to us; let us go into the hall.”
After learning of the online posts, Dr. McKee filed a suit in a Minnesota state court against Dennis, asserting defamation. The court issued a summary judgment in Dennis’ favor. A state intermediate appellate court reversed this judgment.
ISSUE: Were the statements that Dennis posted online about Dr. McKee defamatory?
DECISION: No. The Minnesota Supreme Court concluded that the lower court properly granted summary judgment in favor of Dennis and reversed the decision of the state intermediate appellate court.
REASON: The state’s highest court pointed out that truth is a complete defense to a defamation action and that true statements, however disparaging, are not actionable. “If the statement is true in substance, minor inaccuracies of expression or detail are immaterial. Minor inaccuracies do not amount to falsities so long as the substance, the gist, the sting of the libelous charge is justified.” Dr. McKee acknowledged in his deposition that when he examined Dennis’ father, Kenneth, he did communicate to those present that some intensive-care-unit patients die, although he denied referencing a specific percentage.
The court believed that even without an exact percentage in his statement, Dr. McKee’s statement satisfied the test “for substantial truth because it would have the same effect on the reader regardless of whether a specific percentage is referenced [ or whether the percentage is accurate ].” Thus Dennis’ online statements were not actionable as defamation because there was no genuine question as to the falsity of the statements – they were substantially true.
Major Principles of Media Law, 2016
By Wayne Overbeck, Genelle Belmas, Jason Shepard
Pages 175 and 176
Libel On Online Review Sites:
As consumer review services like Angie’s List, Yelp, RateMyProfessors, and various doctor review sites become more popular, those who get poor reviews have taken their claims to court. In perhaps the highest profile of these cases, McKee v Laurion (825 N. W. 2nd 725, 2013), the Minnesota Supreme Court said that negative comments posted by a man about the care given to his ailing father by a hospital neurologist were opinion and not actionable. [ Dennis ] Laurion posted comments about Dr. David McKee’s interactions with his father and the family (“Dr. McKee said, ‘When you weren’t in ICU, I had to spend time finding out if you transferred or died.’ When we gaped at him, he said, ‘Well, 44% of hemorrhagic strokes die within 30 days. I guess this is the better option’.”) on various “rate your doctor” sites, and McKee sued. The State Supreme Court evaluated each of six statements and found none of them individually or as a whole were defamatory.
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
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.
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.