Saturday, February 02, 2013

Dennis Laurion answers questions after his recent win in Minnesota Supreme Court against Dr. McKee's lawsuit about online comments

Dennis Laurion

Below are questions asked of Dennis Laurion by interviewers during the lawsuit McKee vs Laurion. Sued for his comments in online rating sites and letters to medical groups, Laurion deferred answering those questions in the past but has now offered his answers in this venue.

1) First and foremost, how’s your dad doing? We’d love to learn a little
more about his service to the country, as well.

ANSWER: My father had his stroke at age 84. He is now 88. He has difficulty with gait and balance. His speech and mental resources remain well. My father enlisted in the Navy at age 17 during World War II. By age 19, he was a Navy combat medic in the Solomon Islands, a Second Class Petty Officer, the equivalent of an Army or Marine Corps Staff Sergeant. My father worked two jobs and supported a family while obtaining a Ph.B. and an M.S. in Geriatric Counseling. He was a Boy Scout leader, an Elder in his church, a high school teacher, and a systems analyst at the advent of the computer age.

2) Undoubtedly, this defamation case has caused some stress for your
family. Would you like to talk a little about that?

ANSWER: 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, writing 19 letters, and 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.

3) You know what they say about talking politics and money in mixed
company, but would you care to talk about the financial situation this
lawsuit has put you in?

ANSWER: 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.

I wish I could sleep, but then my short attention span kicks in: "St. Luke's Hospital, defamation, lawsuit, Minnesota Supreme Court, one sheep, two sheep, three sheep, cow, horse, chicken, duck, duck, goose, old McDonald had a farm; heeeeeeeyy, Macarena!"

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 in http://chronicle.augusta.com/stories/2001/08/27/bus_321610.shtml .

It said in part:

“Message-board participants have the right under the First Amendment to voice their opinions. That freedom is troublesome for companies and their legal and public-relations staffs, which wince about the complaints and scramble to correct inaccurate information that could be posted by consumers, investors, employees or competitors. 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,” he said.

“Companies typically shy from suing customers because it creates bad publicity. Thus, much of the legal activity involves employees or former workers. I’m seeing it happen with increasing frequency…yet very few (cases) go all the way to trial and verdict,” Tanick said.

“A company’s strategy typically includes filing in a state that might be inconvenient and costly for defendants. Lawyers will seek ways to avoid First Amendment issues because they are difficult to win. One option is to allege breach of contract or violation of trade secrets rather than defamation,” he said.

4) You’ve probably learned lots about defamation law since this began,
have you spoken with anyone else who is going through the same thing?
Have they given you any invaluable insight? Support?

ANSWER: 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. Newspaper stories have caused people to call or write me to relate their own medical experiences. I’ve referred them to my lawyers. I've also received encouragement from other persons who have been sued over accusations of libel or slander.

5) Due to the publicity your case has received, has it affected
your dealings with other medical professionals?

ANSWER: My wife, my mother, my father, and I each have a different doctor. Each of us continues to see his or her attending physician, as before. They're all aware of this suit, but none has commented on it.

6) Do you feel like McKee’s status as a doctor has given him an unfair advantage in how the media is covering this lawsuit?

ANSWER: 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.

7) Do you have a favorite founding father?

ANSWER: Thomas Paine.

[Maura Larkins comment: Good choice!]

8) Your father selflessly served this country, and now the laws of the
land are causing you and your family discord. Has this experience
ignited a justice reform fire – with regards to defamation law -- in
your gut?

ANSWER: I've learned that laws about slander and libel do not conform to one's expectations. I've read that an 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 he's arrogant, rudest waiter I ever met, worst plumber ever, etc. 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.

I feel that defamation lawsuits are much too easy for wealthy plaintiffs. If I were to attempt suing a doctor for malpractice, my case would not proceed until I'd obtained an affidavit from another doctor, declaring that the defendant's actions did not conform to established procedures. In a defamation suit, there's generally no exit short of a judge's dismissal order - which can be appealed by the plaintiff. Being called "defendant" is terribly personal, but the civil suit path is totally impersonal. During the three years that I went through depositions, interrogatories, a dismissal hearing, an appellate hearing, and a state Supreme Court hearing; I never once spoke to a judge. At depositions, the plaintiff and I sat opposite each other, while I answered his lawyer's questions, and he answered my lawyer's questions. We were not to speak to each other.

Minnesota and two other states allow "hip pocket" lawsuits. The plaintiff can start a suit by sending the summons and complaint to the defendant without filing the documents in court. The plaintiff enjoys complete anonymity from public awareness. The defendant has 20 days to respond, but the court is unaware that the suit exists. The plaintiff can conduct interrogatories and depositions while the court is unaware that the suit exists. The plaintiff can send settlement demands to the defendant's insurance company while the court is unaware that the suit exists. Until the suit is actually filed, the plaintiff's lawyer orchestrates everything as the officer of the court. If the defendant files his answer, in order to publicly get onto the docket and under the supervision of a judge, the defendant pays the filing fee. In Minnesota, if the plaintiff loses his effort at rule by law, the rule of law generally allows the defendant no remuneration. The plaintiff can lose the suit while winning the battle of financial attrition.

9) Tell us about yourself.

ANSWER: I'm a retired Chief Petty Officer, Social Insurance Specialist, and Medical Records Analyst, having worked for the Coast Guard, the Social Security Administration, and St Mary's Medical Center. I majored in Industrial Supervision at the Purdue University Calumet School of Engineering, Manufacturing, and Technology. My wife and I have 6 children and 9 grandchildren.

Between high school and the Coast Guard, I worked in a steel mill. I spent part of those two years as a blacksmith helper. I helped make pry bars, jackhammer chisel points, air hose couplings, rods, and hooks. I once set the back of my shirt on fire without knowing it, because I was wearing a sweatshirt and flame retardant long underwear.

I've never been afraid of heights, bodies of water, or love - just falling, drowning, and rejection.

I wish I could sleep, but then my short attention span kicks in: "St. Luke's Hospital, defamation, lawsuit, Minnesota Supreme Court, one sheep, two sheep, three sheep, cow, horse, chicken, duck, duck, goose, old McDonald had a farm; heeeeeeeyy, Macarena!"

Dennis

*********************************

Dennis K. Laurion
Chief Yeoman, U. S. Coast Guard (Retired)
Social Insurance Specialist (Disability Post-Entitlement), Social Security Administration (Retired)
Outpatient Medical Records Analyst, St. Mary 's Medical Center (Retired)

19 comments:

Court Watch said...

The plaintiff’s remarks, after the Minnesota Supreme Court dismissed David McKee MD vs Dennis Laurion (case # A11-1154), are shown on patient advocate Trisha Torrey’s Patient Empowerment Blog at http://patients.about.com/b/2013/02/11/and-david-mckee-fires-back-proving-the-point.htm .

Anonymous said...

I just read up on this a little and it is my considered, non-expert opinion that Dr. MaKee MD's behavior is remarkably similar to the behavior one would expect from a deranged jackass.

Chicago Brick said...

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

If hamburgers could sue, the courts (like the eater’s arteries) would be clogged. Scroll down any of the dozens of websites that rate restaurants and you’ll see food described in the vilest terms: hog slop, garbage-dump-ready, rat -meat. The proliferation of rating sites shows both that these sites are providing an appreciated service and that people love to give their opinion. But when you move from hamburgers and hotel rooms to rating people, quite often the fun ends.

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.

Dennis said...

In spite of Supreme Court disagreement and subsequent peer disagreement, Marshall Tanick is STILL saying about David McKee MD v. Dennis Laurion: "The thing that’s often misunderstood is that THIS WAS NOT JUST ABOUT FREE SPEECH, BUT ABOUT MAKING ACTUAL FALSE STATEMENTS. 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."

From the American Health Lawyers Association: IN THIS CASE, THE COURT FOUND THE SIX ALLEGEDLY DEFAMATORY STATEMENTS WERE NOT ACTIONABLE BECAUSE THE “SUBSTANCE, THE GIST, THE STING” OF PLAINTIFF’S VERSION FOR EACH OF THE STATEMENTS AS PROVIDED IN DEPOSITION AND DEFENDANT’S VERSION ESSENTIALLY CARRIED THE SAME MEANING, satisfied the standard for substantial truth, did not show a tendency to harm the plaintiff’s reputation and lower his estimation in the community, or were incapable of conveying a defamatory meaning (e.g., when a nurse told defendant that plaintiff was “a real tool”) based on “how an ordinary person understands the language used in the light of surrounding circumstances.”

From the Business Insurance Blog: THE MINNESOTA HIGH COURT SAID, FOR INSTANCE, THAT DR. MCKEE’S VERSION OF HIS COMMENT ABOUT THE INTENSIVE CARE UNIT WAS SUBSTANTIALLY SIMILAR TO MR. LAURION’S. “In other words, Dr. McKee’s account of what he said would produce the same effect on the mind of the reader,” the court said. “The minor inaccuracies of expression (in the statement) as compared to Dr. McKee’s version of what he said do not give rise to a genuine issue as to falsity.”

From the Duane Morris Media Blog: The doctor said in his deposition that with regard to finding out if Mr. Laurion was alive or dead, “I made a jocular comment… to the effect of I had looked for [Kenneth Laurion] up there in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you’re someplace like this or you leave because you’ve died.” THE COURT SAID THE DIFFERENCES BETWEEN THE TWO VERSIONS OF THE STATEMENTS ABOUT DEATH OR TRANSFER BY BOTH PLAINTIFF AND DEFENDANT WERE SO MINOR THAT THERE WAS NO FALSITY IN THE WEBSITE POSTINGS. In other words, the court indicated that the allegation about the statement was true.

Canadian Bacon said...

“The Streisand Effect.” refers to the consequence of inviting even more negative attention by trying to remove negative attention. (The) inspiration was Barbra Streisand’s objecting to a photo of her house in California being made part of a series documenting coastal erosion. Her complaints made the image far more pervasive online than it would have been had she simply ignored it.

David McKee, M.D., a Duluth, Minn., neurologist, was unaware of this 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.

McKee asked if Kenneth felt like getting out of bed so he could make an assessment on mobility. He did, though his gown was partially undone in the back. 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.”

The family exited the room while McKee conducted a brief examination. Laurion says he returned to find his father partially conscious. His head, Laurion asserts, was “pushed against the railing” of the hospital bed, appearing to be a victim of postural hypotension that resulted in a brief fainting spell.

Unaware of any resentment, McKee went to the nurse’s station to dictate notes; an irritated Dennis Laurion consulted with his family to see if his impression of the arrogant doctor was real or imagined. At no point did he approach McKee to clear the air. Instead, 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. McKee claims the writer called him shortly before close of business Friday to solicit a quote; the story ran the following day. “The article was written like I was being reviewed for misconduct,” McKee says. In fact, no action had been taken against him by any of the organizations Laurion had written to.

Two events further demoralized McKee. In April 2011, the judge granted Laurion’s motion for summary judgment, ruling his comments were protected free speech. Worse, 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.” Their software was apparently unable to determine that a surge of opinion over a matter of hours was highly unusual activity for a physician who normally received perhaps three comments in a year.

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.

Law professor Eric Goldman, who says he feels physicians are “thin-skinned” when it comes to patient complaints, is confident that litigation is never the answer. “I imagine many lawyers saying that’s not good idea,” he says. “Good lawyers, anyway. McKee made a bad call. There are no winners in defamation lawsuits, and you should advise clients of that.”

McKee was rated for several years as a top provider in Duluth Superior Magazine, a well-regarded lifestyle publication that recently folded. But his online reputation will outlive that. “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.”

Full article:
http://www.buzzfeed.com/jakerossen/insult-and-injury-inside-the-webs-one-sided-war-on-doctors

Dennis said...

BUZZFEED: “Insult And Injury: How Doctors Are Losing The War Against Trolls”

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 and Laurion agree on substance…”

From the American Health Lawyers Association: In this case, the court found the six allegedly defamatory statements were not actionable because the “substance, the gist, the sting” of plaintiff’s version for each of the statements as provided in deposition and defendant’s version essentially carried the same meaning, satisfied the standard for substantial truth, did not show a tendency to harm the plaintiff’s reputation and lower his estimation in the community, or were incapable of conveying a defamatory meaning (e.g., when a nurse told defendant that plaintiff was “a real tool”) based on “how an ordinary person understands the language used in the light of surrounding circumstances.”

From the Business Insurance Blog: The Minnesota high court said, for instance, that Dr. McKee’s version of his comment about the intensive care unit was substantially similar to Mr. Laurion’s. “In other words, Dr. McKee’s account of what he said would produce the same effect on the mind of the reader,” the court said. “The minor inaccuracies of expression (in the statement) as compared to Dr. McKee’s version of what he said do not give rise to a genuine issue as to falsity.”

From the Duane Morris Media Blog: The doctor said in his deposition that with regard to finding out if Mr. Laurion was alive or dead, “I made a jocular comment… to the effect of I had looked for [Kenneth Laurion] up there in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you’re someplace like this or you leave because you’ve died.” The court said the differences between the two versions of the statements about death or transfer by both plaintiff and defendant were so minor that there was no falsity in the website postings. In other words, the court indicated that the allegation about the statement was true.

Laurion said...

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.

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.

Harry Nevus said...

“DOC’S DEFAMATION LAWSUIT: THE PATIENT’S SIDE”
PHYSICIANS WEEKLY BY SKEPTICAL 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 recently came up again because BuzzFeed posted an article entitled “Insult And Injury: How Doctors Are Losing The War Against Trolls.” (The Jake Rossen article - http://www.buzzfeed.com/jakerossen/insult-and-injury-inside-the-webs-one-sided-war-on-doctors - would appear here but is deleted because Canadian Bacon posted it above May 4)

I tweeted a link to that article, and Dennis Laurion, whose father was the patient in the Minnesota, case wrote to me. (Laurion's reply to Jake Rossen’s article would be here, but it was posted above on May 7.)

Correspondence of Skeptical Scalpel and Dennis K. Laurion:

[Scalpel] I very much appreciate your email and the clarification of your situation. I hope you realize that I personally took no side in the dispute you had with Dr. McKee.

[Laurion] Thanks, Doctor, for the courtesy of your reply. I do realize that you just tweeted the existence of the article.

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

[Laurion] Yes. For a while, the plaintiff threatened 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.

[Scalpel] Did you win the case?

[Laurion] I won dismissal 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 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. 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 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’ only charged me for my internet rating site reviews and 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.

Reference: http://www.physiciansweekly.com/docs-defamation-lawsuit-patients-side/

Skeptical Scalpel is a retired surgeon and was a surgical department chairman and residency program director for many years. He blogs at SkepticalScalpel.blogspot.com and tweets as @SkepticScalpel.

Anonymous said...

UW-Whitewater professor sues student over postings

By Associated Press
Published: 11:31 EST, 22 May 2014 | Updated: 11:31 EST, 22 May 2014

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 (David McKee MD vs Dennis Laurion), 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

Anonymous said...

To follow the court progress or for information about the plaintiff and defendant - Sally Vogl-Bauer V. Anthony Llewellyn, not David McKee MD V. Dennis Laurion -

1. Visit http://wcca.wicourts.gov/index.xsl .
2. Click "I agree" .
3. You'll be taken to http://wcca.wicourts.gov/simpleCaseSearch.xsl;jsessionid=640964EA587D052C62E1CAF493A883FA.render6 .
4. Name = Llewellyn .
5. County = Walworth .
6. Case Number = 2013CV001140 .

W├╝tend Hund said...

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. ]]

Court Watch said...

David McKee, MD V. Dennis Laurion (Minnesota Supreme Court Case Number A11-1153) has been cited in State of Minnesota Court of Appeals Case Number A13-1012, 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 that either 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.” McKee v. Laurion, 825 N.W.2d 725, 729 (Minn. 2013).

Militia Ethredge said...

"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.

Source: http://www.upi.com/blog/2013/05/13/Texas-teacher-sues-two-students-for-defamation/3031368455783/

Anonymous said...

The Texas teacher probably has a tangible claim for damages. Elizabeth Ethredge got fired according to http://www.texednews.com/2013/38/Ethredge_v_Waller_003-R2-09-2013.pdf.

So far as I know Professor Sally Vogl-Bauer still has tenure at University of Wisconsin, and Dr. David McKee still works for Northland Neurology and Myology, still works for Integrity Health Network, and still sees patients at St. Luke's Hospital in Duluth MN.

Laurion said...

Professor Sally Vogl-Bauer's lawyer, Timothy [[ Edwards released a statement: “Students have a right to express their opinion, 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.” ]]

[[ “When you make false statements of fact repeatedly about another person with the intent of harming them, that’s over the line,” said Tim
Edwards, attorney for UW-Whitewater communications professor Sally Vogl-Bauer. “If you truthfully say, ‘In my experience, this isn’t a good teacher, I didn’t have a good experience, she was late’ and that’s your opinion,
that’s fair,” Edwards said. ]]

Timothy Edwards comments about Ms. Sally Vogl-Bauer's intentions to welcome criticism but sue defamation cause me to think "been there, done that, got
the Supreme Court dismissal." Tim Edwards' comments remind me of opposing counsel remarks while I was sued for defamation - David McKee MD V. Dennis Laurion, Minnesota Supreme Court Case A11-1154, 2010 - 2013.

A Duluth News Tribune article of June 2010 quoted Marshall Tanick, now employed by Hellmuth Johnson law firm, who in a phone interview alleged that Laurion defamed his client in several ways, including posting negative reviews of McKee on various websites. "The basis for the lawsuit is the defamatory statements that were made on websites and to other sources," Tanick said. "However, by no means does Dr. McKee want to in any way prevent or affect any kind of communications that may be made to the Board of Medical Practice or any other regulatory agencies. The purpose of the lawsuit is to prevent defamation being made on the websites and through other
sources."

From BuzzFeed, 2014: 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.”

Taken from videotaped comments to Minnesota Supreme Court: "He may have been upset at how Dr. McKee treated his father. Apparently he was, and he’s entitled to say that. He can say that “I’m upset. Doctor McKee did not treat my father well. He was insensitive.” He can make statements like that: “He didn’t spend enough time in my opinion.” He can make
factual (sic) statements, he can make them on the Internet, he can make them in letters, he can write a letter to the editor, he can stand in front of St.
Luke’s Hospital with a placard saying those things if they are opinions . . ."

Chronicle Reader said...

Marshall H. Tanick of Hellmuth Johnson (now) also said in the past:

. . . If a ( plaintiff ) sues, alleging simple business disparagement or perhaps defamation, its goal isn’t necessarily to win, said Marshall Tanick . . . The strategy is to force the other person to incur huge legal expenses that will deter them and others. . . very few cases go all the way to trial. Lawyers will seek ways to avoid First Amendment issues because they are hard to prove.

These comments can be found at:

http://news.google.com/newspapers?id=MB0VAAAAIBAJ&sjid=wgMEAAAAIBAJ&pg=6682%2C2701449

Anonymous said...

"Plastic surgeon's defamation case thrown out"
Lisa Hutson, COVINGTON, KY (FOX19) , May 23, 2014

Catherine Nazari of Greendale, Ind. said she posted negative reviews of her plastic surgeon online after she suffered horrible scars and disfigurement from her procedures.

That surgeon -- Dr. Jean Loftus of Fort Wright -- took her to court for those comments but the outcome was something neither one of them expected.

"I had breast implants, breast lift, arm lift and a tummy tuck all in the same day," said Nazari, 54.

Nazari said she underwent plastic surgery in 2006 to remedy loose skin caused by losing weight but what she woke up to was not what she expected.

"My hands were numb. I had no feeling in my arms or my hands and she said it was due to the surgery, that it would come back in time but it never did," she said.

Unsightly scars and permanent nerve damage Nazari says are the results of that surgery. Soon after, she took to the Internet to warn others about her plastic surgeon.

"I just wanted people to know. Be diligent. Do your research," she said.

But Loftus has a different view. "I can't stand by and let someone say absolutely false, disparaging, untrue statements, blatant defamatory accusations about me," Loftus said. Loftus said the comments Nazari posted online about her practice were not negative reviews. They were lies. She said Nazari had a previous nerve condition that is causing her medical problems. Her incisions were not even deep enough to reach her nerves according to Loftus. That is when she decided to sue Nazari for defamation. "I did not file this suit to make money or to win an award. I filed this suit to bring out the truth," Loftus said.

But a U.S. District Court judge in Covington did not agree and dismissed the doctor's defamation claim and Nazari's counterclaims citing under the 1st Amendment, Nazari had a right to her opinion.

Local defamation attorney Rob Linneman isn't surprised. "This outcome is the outcome most constitutional scholars would have predicted. The consideration that is given to most 1st Amendment cases is what effect will it have on other people who would make comments if we punish this person for making this comment," Linneman said.

Loftus disagrees. "It gives everybody the lead way to say whatever they want about anything they want and essentially hide behind the 1st Amendment," Loftus said, noting she is most concerned about the precedent her case has set.

Though she is still unhappy with her procedures, Nazari is glad the legal fight is over. "My whole life has been disrupted because of all of this," she said.

Nazari filed a medical malpractice suit against Loftus but the case was thrown out. No medical expert could support her claims that the problems she is experiencing are a result of plastic surgery.

Dr. Sues said...

[[ "He may have been upset at how Dr. McKee treated his father. Apparently he was, and he’s entitled to say that. He can say that “I’m upset. Doctor McKee did not treat my father well. He was insensitive.” He can make statements like that: “He didn’t spend enough time in my opinion.” He can make
factual (sic) statements, he can make them on the Internet, he can make them in letters, he can write a letter to the editor, he can stand in front of St.
Luke’s Hospital with a placard saying those things if they are opinions . . ." ]]

In an after school special, that would sound like this:

Doctor Sues Gets A Ham

He can stand at St. Luke's
With a placard of rebukes.
He can write some letters,
To those he thinks his betters.
He can say it in the dark.
He can say it in the park.
He can say it here or there.
"I don't like him anywhere."

He can say it in a house.
"I don't like him with a mouse,
I don't like him here or there,
I don't like him anywhere."

He can say it in a car.
He can say it in a tree.
"I don't like him in a box,
I don't like him with a fox,
I don't like him in a house,
I don't like him with a mouse,
I don't like him here or there,
I don't like him anywhere."

He can say it in on a train.
He can say it in the rain
He can say "I'm upset."
He can say it till he's wet.
"I don't like him in on a train,
I don't like him in the rain,
I don't like him in the park,
I don't like him in the rain,
I don't like him with a goat,
I don't like him on a boat."

He can say it here or there,
He can say it anywhere,
He can speak till numb,
Even if some should say,
There should be some
Awful Hell Toupee.

Voglbauer V. Llewellyn said...

Sally Vogel-Bauer apparently had her pre-trial hearing AUG 20, 2014. Anthony Llewellyn now has three lawyers, Andrew Price, Kate E. Maternowski, and Laura Brenner . Jury trial is scheduled for SEP 15 - SEP 17, 2014, in the Walworth County Judicial Center Courtroom of the Honorable Phillip A Koss.

Visit http://wcca.wicourts.gov/index.xsl . Click agree.
On next page enter name = Llewellyn,
County = Walworth,
Case Number = 2013CV001140.

You'll see suit history and public data about Sally Vogl-Bauer and Anthony Llewellyn.