McKee v. Laurion
| Decision Date | 23 January 2012 |
| Docket Number | A11-1154 |
| Parties | David McKee, M. D., Appellant, v. Dennis K. Laurion, Respondent. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2010).
Affirmed in part, reversed in part, and remanded
Considered and decided by Bjorkman, Presiding Judge; Schellhas, Judge; and Crippen, Judge.*
UNPUBLISHED OPINION
Appellant challenges summary judgment dismissing his defamation and interference-with-business claims, arguing that the district court erred by (1) determining that the allegedly defamatory statements constituted opinions, true statements, and statements too vague to carry defamatory meaning, and (2) dismissing his interference-with-business claim without addressing it on the merits. We hold that material fact issues preclude summary dismissal of some of appellant's defamation claims but that appellant's interference-with-business claim fails as a matter of law. Accordingly, we affirm in part, reverse in part, and remand for trial.
Appellant David McKee, M.D., practices neurology at St. Luke's Hospital in Duluth, where he examined respondent Dennis Laurion's father in April 2010. Later the same week, respondent posted negative reviews of appellant on several rate-your-doctor websites, stating the following:
My father spent 2 days in ICU after a hemorrhagic stroke. He saw a speech therapist and physical therapist for evaluation. About 10 minutes after my father transferred from ICU to a ward room, Dr. David C. McKee walked into a family visit with my dad. He seemed upset that my father had been moved. Never having met my father or his 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, My father mentioned that he'd been seen by a physical therapist and speech therapist for evaluation. Dr. McKee said, He pulled my father to a sittingposition and asked him to get out of bed and walk. 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." Five minutes later, Dr. McKee strode out of the room. He did not talk to my mother or me. When I mentioned Dr. McKee's name to a friend who is a nurse, she said, "Dr. McKee is a real tool!"
Respondent also sent letters to St. Luke's Hospital and numerous medical associations and organizations that contained substantially similar statements. The letters also stated that appellant scowled when he left the patient's room, seemed to blame the patient for the loss of appellant's time, treated the patient as a "task and charting assignment," and failed to treat the patient with dignity.
Appellant's complaint alleges that the following statements defame him and interfere with his business: (1) appellant seemed upset that the patient had been transferred from the ICU to a ward room; (2) appellant told the patient that he had to "spend time finding out if you were transferred or died"; (3) appellant said, ; (4) appellant said, "You don't need therapy"; (5) appellant said, "[It] doesn't matter" that the patient's gown did not cover his backside; (6) appellant left the patient's room without talking to the patient's family; (7) appellant seemed to blame the patient for the loss of appellant's time; (8) appellant scowled after he exited the patient's room; (9) appellant treated thepatient as a "task and charting assignment"; (10) appellant did not treat the patient with dignity; and (11) a nurse told respondent1 that appellant was "a real tool."2
Respondent moved for summary judgment. The district court determined that the challenged communications, taken as a whole, state a non-actionable opinion and, individually, constitute opinions, true statements, and statements too vague to harm appellant's reputation. Accordingly, the district court granted summary judgment on all claims but did not specifically address appellant's interference-with-business claim.
Sampair v. Vill. of Birchwood, 784 N.W.2d 65, 68 (Minn. 2010) (citation omitted).
A party seeking to establish a defamation claim must prove that the defendant (1) communicated to a third party (2) a factual assertion (3) that is false and (4) tends to harm plaintiff's reputation in the community. See Bahr v. Boise Cascade Corp., 766N.W.2d 910, 919-20 (Minn. 2009) (); McGrath v. TCF Bank Sav., 502 N.W.2d 801, 808 (Minn. App. 1993) (), modified on other grounds, 509 N.W.2d 365 (Minn. 1993). Respondent agrees that he communicated each of the challenged statements to third parties but denies the remaining elements.
To support a defamation claim, the allegedly defamatory statement must be a factual assertion capable of being proven true or false. McGrath, 502 N.W.2d at 808. "Expressions of opinion, rhetoric, and figurative language are generally not actionable if, in context, the audience would understand the statement is not a representation of fact." Jadwin v. Minneapolis Star & Tribune Co., 390 N.W.2d 437, 441 (Minn. App. 1986). To determine whether a statement is a factual assertion or merely a subjective opinion, courts consider the statement's specificity, verifiability, and context. Huyen v. Driscoll, 479 N.W.2d 76, 79 (Minn. App. 1991), review denied (Minn. Feb. 10, 1992). But courts consider whether a challenged statement is itself a factual assertion in light of its context, not whether all the challenged statements, combined and on balance, constitute a factual assertion. See, e.g., Schlieman v. Gannett Minn. Broad., Inc., 637 N.W.2d 297, 308 (Minn. App. 2001), review denied (Minn. Mar. 19, 2002). Whether a statement is a factual assertion is a question of law. McGrath, 502 N.W.2d at 808.
Appellant argues that all 11 of the challenged statements are factual assertions. We agree, in part, and address them by category.1. Factual assertions: Appellant said he had to "spend time finding out if you were transferred or died"; appellant said, ; appellant said, "You don't need therapy"; appellant said, "[It] doesn't matter" that the patient's gown did not cover his backside; and appellant left the patient's room without talking to the patient's family.
Appellant argues that these statements are factual assertions. We agree. The quotation marks in the first four statements indicate that the statements objectively and specifically recite appellant's words, not respondent's subjective perception of the conversation. Whether appellant made the quoted statements and was silent after leaving the patient's room is verifiable. Thus, these are factual assertions.
2. Factual assertion: A nurse told respondent that appellant was "a real tool."
Respondent asserts that this is a statement of opinion. We disagree. The question is not whether the assertion that "[appellant] is a real tool" is verifiable. Rather, the question is whether the statement "[a nurse] said [Appellant] is 'a real tool'" is verifiable. See Schlieman, 637 N.W.2d at 308 (). As in Schlieman, whether a nurse told respondent that appellant is "a real tool" is susceptible of proof. The statement is therefore a factual assertion.3. Not factual assertions: Appellant seemed upset that the patient had been transferred from the ICU to a ward room; appellant seemed to blame the patient for the loss of appellant's time; appellant scowled after he exited the patient's room; appellant treated the patient as a "task and charting assignment"; and appellant did not treat the patient with dignity.
Appellant concedes that none of these statements, standing alone, is a factual assertion. But he asserts that their context transforms them into factual assertions. We disagree. Each of these statements describes respondent's opinion concerning appellant's demeanor. Words like "upset," "blame," "scowl," and "dignity" are not specific and precise, nor do they express objective facts. See McGrath, 503 N.W.2d at 808 (). And the mere fact that respondent's statements are surrounded by factual assertions does not render them factual assertions as well. See Schlieman, 637 N.W.2d at 308 ().
Appellant's argument heavily relies on the fact that during his deposition, respondent described these statements as a "factual recitation" of his encounter with appellant. But whether a statement is a factual assertion is a question of law for the court to determine. Moreover, appell...
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