Supreme Court: Calling someone "a real tool" isn't defamatory, because it's opinion, not fact

Categories: Law
stethoscope.jpeg
Image by Tatiana Craine -- Dr. McKee picture from Quora
Is Dr. McKee (pictured) a "real tool"? According to the Supreme Court, it depends who you ask.
An opinion released by the Minnesota Supreme Court today is an especially fun read as far as court rulings go. At issue is whether calling a professional "a real tool" in online reviews of their work is defamatory.

SEE ALSO: Supreme Court considering case of Duluth doc who sued after reviewer called him "a real tool"

As we told you about in October (link above), Duluth neurologist Dr. David McKee sued Dennis Laurion, the son of a former patient, for $50,000, alleging that statements Laurion published online defamed him. Among the statements was this gem: "When I mentioned Dr. McKee's name to a friend who is a nurse, she said, 'Dr. McKee is a real tool!'"

Laurion's father had a stroke, and Laurion was upset about the way Dr. McKee treated him. A Jewish World Review report provides more details:
In his online postings, Dennis Laurion wrote that McKee "seemed upset" because he thought his father, then 84, was still in intensive care.

"Never having met my father or his family, Dr. McKee said, 'When you weren't in the ICU, I had to spend time finding out if you transferred or died,'" according to Laurion's account. "When we gaped at him, he said, 'Well, 44 percent of hemorrhagic strokes die within 30 days. I guess this is the better option.'"

Laurion, who was visiting with his wife and mother, wrote that McKee was brusque and dismissive during the exam, especially when his father raised concerns that his hospital gown was hanging open at the back. "Dr. McKee said, 'That doesn't matter,'" according to Laurion's account. "My wife said, 'It matters to us,'" and they left the room.
McKee claims he spent more than $7,000 to "scrub" more than 100 negative comments about his work, many of them originating from a single IP address in Duluth, the Review reports.

But in today's opinion, the Supreme Court unanimously ruled that Laurion's online comments don't constitute defamation.

"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." Justice Alan Page wrote. You can read the whole thing here.

Something to keep in mind next time one of your pals says "[insert name] is a total toolbox" and you disagree. "The Supreme Court says that's just your opinion, man!"

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tryingourpatients
tryingourpatients

[[[ The complaint states that Ethredge "mentioned to her students that they might be able to help recover her son's property." She invited any student with a Facebook account to help by messaging the suspected thief to try and purchase the stolen item from him. ]]]


She tried inducting them into her "Militia Ethredge."

herbrice
herbrice

Here's another teacher following the path of Sally Vogl-Bauer - who is following the path of David McKee MD.


"Texas teacher sues two students for defamation"

Posted By Kristen Butler, UPI,  May 13, 2013

[[ May 13 (UPI) -- High school English teacher Elizabeth Ethredge has filed suit against two students claiming she was suspended and may be fired because they told the principal that she had asked her class to stalk a suspected thief on Facebook. Ethredge claims she was giving an "oral storytelling" lesson in November 2012 when she told her class an anecdote about her son having personal property stolen at a high school in another district, reports Courthouse News Service.

[[ The complaint states that Ethredge "mentioned to her students that they might be able to help recover her son's property." She invited any student with a Facebook account to help by messaging the suspected thief to try and purchase the stolen item from him.

[[ Ethredge claims the two students only brought it up months later, in March of this year, when she sent them to the principal's office for disruptive behavior and a dress code violation.

[[ "Defendants wrote statements about the oral storytelling exercise that were clearly retaliatory in nature, designed to take the focus off of their inappropriate behavior and to instead focus the principal's attention on plaintiff," the complaint states.

[[ As further evidence of the students' alleged "deliberate and malicious intent to injure plaintiff's reputation," the complaint shows that one student posted a message to Facebook during school hours that said, "Hey Ethredge, "I threw stones at your house" what you got for me big bada**? Case closed!"

[[ The second student named in the suit commented on the post, saying "Hahahahah [expletive] ain't got [expletive]!"

[[ Days after the cited Facebook posts, the Board of Trustees of the Waller Independent School District proposed termination of Ethredge's employment.

[[ Ethredge seeks punitive damages for defamation and intentional infliction of emotional distress. ]]

Herb
Herb

Also from the blog of Sceptical Scalpel:

[ Scalpel ] I agree that most of the stories about your case tended to sympathize with the doctor and that his defamation suit brought far more attention to him and his behavior than if he had simply let it go. I have some questions. Is the litigation completely over?

[ Laurion ] Yes. For a while, the plaintiff threatened, mostly in settlement demands, to sue me for 500+ remarks made on Reddit.com. His “proof” was that most of the remarks came from Duluth, and I live in Duluth. (He also lives and works in Duluth.) He threatened to subpoena IP numbers and sue every poster, presumably all my relatives and friends, if I didn’t settle. I hadn’t posted to Reddit, I don’t know anybody who did, and nobody ever asked my ISP for my IP number or browsing history. The statute of limitations has now passed.

[ Scalpel ] If so, did you win the case?

[ Laurion ] I won dismissal with prejudice from the Minnesota Supreme Court; he won the right to make me spend $56K I didn’t have. Minnesota allows “hip pocket lawsuits.” The plaintiff served me but didn’t file in court. He almost immediately asked my insurance company for a settlement, apology, and confidentiality agreement. This lawsuit was apparently supposed to last 3 weeks and never be filed in court; however, my insurance company doesn’t offer me defamation coverage, and, rather than reply only to the plaintiff, I filed my reply through the court, putting the suit into public record and the attention of newspapers.

[ Scalpel ] Do you have any recourse as far as say, counter-suing Dr. David McKee?

[ Laurion ] No. In Minnesota, each party is responsible for their own legal fees. Dr. McKee had to reimburse me about $2000 of filing fees and printing costs. I’d have contemplated a suit for abuse of process, but the Appellate Court’s decision not to dismiss tended to dilute my complaint.

[ Scalpel ] Are you familiar with strategic lawsuit against public participation(SLAPP) lawsuits? If I recall correctly, your case took place in Minnesota which has an anti-SLAPP law.

[ Laurion ] I wanted my lawyer to file a SLAPP motion, but Minnesota SLAPP law only applies to actions that are wholly or in part government petitions. The plaintiff’s lawyer only charged me for my internet rating site reviews and my letter to the hospital. The complaint avoided any mention of my letter to the Medicare Ombudsman, the County Health Department, or the Minnesota Board of Medical Review; however, my comments to those sources were quoted in briefs and newspaper comments.

Herb
Herb

[ Herb ] From the blog of Skeptical Scalpel:

 [ Scalpel ] Are you familiar with a case in Minnesota where a doctor sued a patient’s son for defamation over a negative review he posted? Dr. David McKee’s defamation lawsuit, a 4-year legal battle ended up in the Minnesota Supreme Court. The story recently came up again because BuzzFeed posted an article entitled “Insult And Injury: How Doctors Are Losing The War Against Trolls” discussing how doctors are having trouble defending themselves against negative reviews.

I tweeted a link to that article, and Dennis K. Laurion, whose father was the patient in the Minnesota, case wrote to me. He says no one ever asks him about his side of the story. He’s agreed to let me publish his comments:

[ Dennis ]  As one of the “trolls” detailed in the article, I have no issue with the accuracy of the text—at least as it pertains to me—but the tone of the title fails to distinguish sincere complaints about bedside manner from attacks on mental stability, attacks on medical prowess, fake websites, allegations of dangerous injections, and use of multiple identities. The author said “McKee [the doctor in the case] and Laurion agree on substance…”  (View excerpts of the case from various media outlets in unabridged letter here.)

This entire experience has been distressing to my family. We were initially shocked and blindsided by “jocular” comments made so soon after my father’s stroke by somebody who didn’t know us. We were overwhelmed by my being sued after posting a consumer opinion, and we were shocked by the rapidity with which it happened. It has been the 800 pound gorilla in the room. My parents would be 88-year-old witnesses. My mother and wife prefer no discussion, because they don’t want to think about it. Conversation with my father only reminds him of his anger over this situation. My siblings and children don’t often bring it up, because they don’t know how to say anything helpful. I have been demoralized by three years of being called “Defendant Laurion” in public documents.

While being sued for defamation, I have been called a passive aggressive, an oddball, a liar, a coward, a bully, a malicious person, and a zealot family member. I’ve been said to have run a cottage industry vendetta, posting 108 adverse Internet postings in person or through proxies. That’s not correct. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again.

What it’s like for a patient or family member to be caught up in a case like this was already described by the plaintiff’s lawyer in a Star Tribune newspaper article, “Company sues over info put on Yahoo message board,” August 27, 2001, and repeated here. It said in part: “If a company sues, alleging simple business disparagement or perhaps defamation, its goal isn’t necessarily to win,” said Marshall Tanick, a First Amendment expert at Mansfield & Tanick in Minneapolis. “The strategy is to force the other person to incur huge legal expenses that will deter them and others from making such statements…yet very few [cases] go all the way to trial and verdict.”

The plaintiff’s first contact with me was a letter that said in part that he had the means and motivation to pursue me. The financial impact of being sued three years to date has been burdensome, a game of financial attrition that I haven’t wanted to play. The suit cost me the equivalent of two year’s net income—the same as 48 of my car payments plus 48 of my house payments. My family members had to dip into retirement funds to help me.

After receipt of a threat letter, I deleted my Rate-Your-Doctor site postings and sent confirmation emails to opposing counsel. Since May of 2010, postings on the Internet by others include newspaper accounts of the lawsuit; readers’ remarks about the newspaper accounts; and blog opinion pieces written by doctors, lawyers, public relations professionals, patient advocates, and information technology experts. Dozens of websites by doctors, lawyers, patient advocates, medical students, law schools, consumer advocates, and free speech monitors posted opinions that a doctor or plumber shouldn’t sue the family of a customer for a bad rating. These authors never said they saw my deleted ratings—only the news coverage.

It was not my intention to use any descriptions or conclusions. It was also not my intention to claim that I had proof. Only my family and the doctor were in the room. My intention was to portray my recollection of what happened in my father’s room. The public could decide what to believe and what, if any, impact it had on them: insensitive doctor or overly-sensitive consumer?

Medical peer newsletters or magazines that interviewed the plaintiff did not approach me. Websites maintained by doctors for doctors or lawyers for lawyers often caused an inference that I was a zealot family member or somebody who had asked about my dad’s chances and then shot the messenger. Generally, however, those websites echoed other websites in advising public relations responses other than a lawsuit for fear of creating the “Streisand Effect.” As a retired layman, I brought far less resources to the battle of financial attrition.

I’ve learned that laws about slander and libel do not conform to one’s expectations. I’ve read that online complaints are safe “if you stick to the facts.” That’s exactly the wrong advice. I did not want to merely post my conclusions. I wanted to stick to my recollection of what I’d heard. I don’t like to read generalities like “I’m upset. He did not treat my father well. He was insensitive. He didn’t spend enough time in my opinion.” However, such generalities are excused as opinion, hyperbole, or angry utterances. If one purports to say what happened, factual recitations can be litigated. The plaintiff must prove the facts are willfully misstated, but the defendant can go broke while waiting through the effort.

WuetendHund
WuetendHund

David McKee, MD V. Dennis Laurion has precedent become. 

David McKee, MD V. Dennis Laurion (Minnesota Supreme Court Case Number A11-1153) was in United States Court of Appeals, Eighth Circuit, Case Number 12-3625, Dave THOMAS v. UNITED STEELWORKERS LOCAL 1938 and so further, cited.

[[ Dave Thomas appealed the district court’s grant of summary judgment in favor of United Steelworkers Local 1938 (Local 1938); United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW); and Jon Malek on Thomas’s state-law defamation claim arising out of a fact-finding meeting concerning a workplace dispute. In affirming the dismissal, the United States Court of Appeals, Eighth Circuit, Decision, filed February 20, 2014 stated:

[[ To satisfy the falsity element of a defamation claim under Minnesota law, “a plaintiff must make an initial demonstration that there is a material dispute as to the truth or falsity of the statements at issue,” Weinberger v. Maplewood Review, 668 N.W.2d 667, 680 (Minn.2003), and “ ‘[o]nly statements that present or imply the existence of fact that can be proven true or false are actionable.’ “ Gacek v. Owens & Minor Distrib., Inc., 666 F.3d 1142, 1147 (8th Cir.2012) (alteration in original) (quoting Schlieman, 637 N.W.2d at 308). For instance, “[i]f it is plain that the speaker is expressing a ‘subjective view, an interpretation, a theory, conjecture, or surmise,’ rather than claiming to be in possession of ‘objectively verifiable facts,’ the statement is not actionable.” Id. (quoting Schlieman, 637 N.W.2d at 308). Whether a statement is an opinion or fact is a matter of law, Lund v. Chi. & Nw. Transp. Co., 467 N.W.2d 366, 369 (Minn.Ct.App.1991), but “the truth or falsity of a statement is inherently within the province of a jury.” Kuechle v. Life’s Companion P.C.A., Inc., 653 N.W.2d 214, 218 (Minn.Ct.App.2002). “ ‘[T]rue statements, however disparaging, are not actionable.’ “ McKee v. Laurion, 825 N.W.2d 725, 730 (Minn.2013)

[[ We agree with the district court that Malek’s statements that “Thomas is a prick,” “he is tired of [Thomas's] crap,” and he “is not going to put up with his sh-anymore” are all statements of Malek’s subjective view or opinion and, by themselves, are not actionable as a matter of law. See McKee v. Laurion, 825 N.W.2d at 733; see also Lund, 467 N.W.2d at 369 (holding that statements at issue were protected expressions of opinion because they lacked specificity and precision, and the factual implications concerning such statements were unclear). We do not, however, agree with the district court’s conclusion as it relates to the remaining statements.

[[ Although we are aware that Minnesota courts have held “[m]inor inaccuracies do not amount to falsity so long as the substance, the gist, the sting,” of the defaming statement can be justified, McKee v. Laurion, 825 N.W.2d at 730 (internal quotation marks omitted)), the inaccuracies here are substantial enough to create a genuine dispute of material fact as to their truth. ]]

harrynevus
harrynevus

[quote] It's not clear how successful the lawsuit will be, but a similar case in Minnesota ended with a ruling in favor of the person who posted the online rating.[/quote]


David McKee MD v. Dennis Laurion was named one of the "Top Minnesota Lawsuits of 2013" and should be a beacon to Professor Sally Vogl-Bauer and Professor Timothy Edwards, Esquire.



TWIN CITIES BUSINESS

The Top Lawsuits Of 2013

by Steve Kaplan

December 20, 2013

 

Never Shout "He's a Tool!" On a Crowded Website?

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

Laurion was unhappy with the way McKee treated his father, who was brought to the doctor after he had a stroke. Laurion went to several rate-your-doctor sites to give his opinion. That’s just free speech, isn’t it?

It sure is, says Laurion’s attorney, John D. Kelly of the Duluth firm Hanft Fride. “The court held that what my client was quoted as saying was not defamatory,” he says. “I do think the Internet makes it much easier for persons exercising poor judgment to broadcast defamatory statements, however… a medium… doesn’t change the quality of a statement from non-defamatory to defamatory.”

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

But boundaries were not on the minds of the Minnesota Supreme Court. Free speech was. Chief Justice Lorie Gildea wrote, “The point of the post is, ‘This doctor did not treat my father well.’ I can’t grasp why that wouldn’t be protected opinion.” As to referring to the doctor as “a real tool,” Justice Alan Page wrote that the insult “falls into the category of pure opinion because the term … cannot be reasonably interpreted as a fact and it cannot be proven true or false.”

The takeaway from this case might be the knowledge that behind any rating service lie real people with real feelings. McKee spent more than $60,000 in the effort to clear his name, as he saw it. Dennis Laurion told the Star Tribune he spent the equivalent of two years’ income, some of which he had to borrow from relatives who supplied the money by raiding their retirement funds.

See rest of article: http://tcbmag.com/Industries/Law/2013-Lawsuits-Of-The-Year

tryingourpatients
tryingourpatients

Paging Professor Streisand?


WHITEWATER, Wis. (AP) — A University of Wisconsin-Whitewater professor is suing a former graduate student who posted online comments and videos that the teacher considers defamatory.


Anthony Llewellyn took a class last year from communications professor Sally Vogl-Bauer, but the experience didn't go well, the Janesville Gazette reported (http://bit.ly/1hcjNmn ) Thursday.


Llewellyn posted comments on professor-rating sites accusing the teacher of criticizing his academic abilities, grading him unfairly and causing him to fail out of school. He said he spoke with her in April about his concerns, two months before he was told he had failed her class.


Vogl-Bauer contends the comments amount to defamation, while Llewellyn says his goal was simply to inform the public about how the professor treated him.


Tim Edwards, the attorney representing Vogl-Bauer, said the comments could be especially damaging to someone in a small professional community. He said he and Vogl-Bauer agree that students should be allowed to express their opinions, "but when you go so far beyond that, into a concerted effort to attack somebody's reputation because things didn't go your way, that's much different."



Edwards and Vogl-Bauer asked Llewellyn to take down his online comments and videos. They filed the lawsuit after he refused.



Llewellyn said it's important for the videos and comments to stay online so the public can remain informed.


"I don't feel I've (gone) too far with my videos and comments because everything posted basically communicates exactly how Sally Vogl-Bauer treated me," Llewellyn said.


The lawsuit seeks punitive damages and attorney and trial fees. The case is scheduled to go a jury trial in September.


It's not clear how successful the lawsuit will be, but a similar case in Minnesota ended with a ruling in favor of the person who posted the online rating. In the case, a doctor took offense when a patient's son went on a rate-your-doctor website and called him "a real tool," slang for stupid or foolish. The Minnesota Supreme Court ruled in January 2013 that the comment wasn't defamatory because it was an opinion protected by free-speech rights.



Information from: The Janesville Gazette, http://www.gazetteextra.com


tryingourpatients
tryingourpatients

@WuetendHund,

David McKee, MD V. Dennis Laurion (Minnesota Supreme Court Case Number A11-1153) has also  been cited in State of Minnesota Court of Appeals Case NumberA13-1012, Connie Grill, Appellant, V. North Star Mutual Insurance Company., Respondent.

Grill sued North Star for denial of her total - loss claim, and the district court granted summary judgment to North Star and denied Grill’s claim for living expenses. In affirming the dismissal, the Court of Appeals Opinion filed January 27, 2014 stated:

A district court properly grants summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits. . . show that there is no genuine issue as to any material fact and thateither party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. Appellate courts conduct a de novo review of the district court’s summary - judgment decision and “view the evidence in the light most favorable to the party against whom summary judgment was granted.” David McKee MD  v. Dennis Laurion, 825 N.W.2d 725, 729 (Minn. 2013).

 

harrynevus
harrynevus

Professor Sally Vogl-Bauer seems unaware of the Streisand Effect. It took Neurologist David McKee MD four years to verbalize understanding of the Streisand Effect.


This is from an April 4, 2014, Buzzfeed article by Jake Rossen.

[BEGIN] David McKee, M.D., a Duluth, Minn., neurologist, was unaware of the Streisand phenomenon at the time he decided to sue Dennis Laurion. Laurion’s father, Kenneth, had suffered a stroke in April 2010; McKee was called in to assess Kenneth’s condition.

According to the Laurions, McKee was oblivious to Kenneth’s modesty. “His son was right there,” McKee counters. “If he was concerned about the gown, he didn’t get out of his chair to tie it.”

Dennis Laurion consulted with his family to see if his impression of the arrogant doctor was real or imagined. He fired off a dozen or more letters to a variety of medical institutions, including the hospital’s ombudsman, the Minnesota Board of Medical Practice, Medicare, and the American Medical Association.

McKee sued Laurion for defamation. A local Duluth newspaper picked up on the story, favoring Laurion’s interpretation of events.

In April 2011, the judge granted Laurion’s motion for summary judgment, ruling his comments were protected free speech. A user on Reddit.com posted the newspaper story. Almost overnight, dozens of “reviews” popped up on RateMDs.com and other sites with outlandish commentary on McKee, who was referred to as “the dickface doctor of Duluth.”

McKee found no easy way to exit the situation. “You get drawn in,” he says, suggesting his lawyer nudged him into further action. “It’s throwing good money after bad. … I wanted out almost as soon as I got in, and it was always, ‘Well, just one more step.’” McKee appealed, and the summary judgment was overturned. The case, and the measurable impact of being labeled a “real tool,” was now headed for the Minnesota Supreme Court.

McKee was rated for several years as a top provider in Duluth Superior Magazine, but “From now until the end of time, I’ll be the jerk neurologist who was rude to a World War II veteran,” the physician says. “I’m stuck with it forever.” [END]

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