• September 28, 2012

Update (September 25, 2012): Michael Brodkorb’s memorandum of law in opposition to the defendants’ motion to dismiss his complaint (including claims for defamation (Counts 5 & 8)) does not start out strong from a rhetorical point of view.   He starts by arguing that the defendants’ motion should be tossed out because defendants refer to evidence outside the four corners of the complaint.  All civil litigators know that one is normally limited to the allegations in a complaint when challenging the complaint on a motion to dismiss.  You generally cannot bring in “extrinsic” evidence to bounce a complaint, except, as all civil litigators know, when you can.

So, if you are going to attack a motion to dismiss for citing to “extrinsic evidence,” maybe particularly in a relatively high profile case, you probably should include some attack on the proposed extrinsic evidence (it is unreliable, it brings in contested facts, it is misleading, it is irrelevant, etc.) rather than rely, on a formalistic objection, an formality devoid of any practical importance or meaning.  You might as well object to the opponent’s improper font size (which, in the U.S. District Court for the District of Minnesota is supposed to be 13-point type, oddly enough). You might be right but who cares?

The Brodkorb brief, in the view of this writer, does not get much stronger after its weak start.  He may survive the motion to dismiss, to be sure.  His burden is not great.  But a win may be shortlived and it may be pyrrhic.  This could be yet another example where a defamation plaintiff turns out to be throwing himself from pique to abyss.

Update (September 18, 2012): The wife of a German politician is horrified to learn that Google Search’s “auto-complete” inserts the words “prostitute” or “escort” after her name is entered in the search bar.  She mounts an aggressive campaign to erase this smear.  In the process, a poll found that 81 percent of Germans had never heard the rumors before she started her campaign to stop them.  Could it be that the best response to a false and vicious smear is the absence of a response?

Original post (September 4, 2012):  In the digital age, (mis)information travels far, fast, and essentially at no up-front cost — as never before.  The potential for far-reaching reputational harm, irretrievable and at light-speed is a new social phenomenon.  This should be news to no one.  There is now a thriving market for “reputation management” (formerly known as public relations, damage control, crisis management?).  And the U.K. has recently increased the price of defamation (?!?).

But think twice before you counsel your client to sue for defamation…

There are many perils in defamation cases.  Perhaps the worst is that current U.S. law and, in particular, the rules for stating claims in complaints arguably require defamed plaintiffs to echo, re-broadcast, and republish the defamatory statements complained of in a public court file.  (Do the rules really require this?  Maybe not. Call to consult.)

How many people would have read or heard of the unflattering descriptions of Dr. McKee if he himself had had not made a case of them?

The case, by the way, is being argued before the Minnesota Supreme Court this morning.  The trial court had tossed out Dr. McKee’s complaint.  The Court of Appeals reversed in part, concluding:

that appellant’s defamation claim shall proceed with respect to the following statements: (1) appellant told the patient that he had to “spend time finding out if you were transferred or died”; (2) appellant said, “44% of hemorrhagic strokes die within 30 days. I guess this is the better option”; (3) appellant said, “You don’t need therapy”; (4) appellant said, “it doesn’t matter” that the patient’s gown did not cover his backside; (5) appellant left the patient’s room without talking to the patient’s family; and (6) a nurse told respondent that appellant was “a real tool.”

Has Dr. McKee’s lawsuit made him more likely or less likely to be widely viewed as “a real tool”?

And if you missed the fascinating New Yorker article about Peter Paul Biro, which portrayed him negatively back in July of 2010, Mr. Biro has made sure the article stays in the public eye with his defamation suit, which a federal court in New York largely but not entirely dismissed last month.  The Court, in order to explain its decision, republished the New Yorker article as an attachment to its order on defendants’ motion to dismiss.  Has Mr. Biro defended or or further damned his reputation with his lawsuit?

Closer to home, it would seem that the defamation complaint of former Minnesota Governor Jesse “The Body” Ventura may have been a bad miscalculation.  Without being named, Ventura was portrayed in a book as having insulted a fallen soldier at a bar in the presence of his mourning friends Ventura’s humiliation appears to be magnified rather than avenged, at least at this point in his defamation suit.   Rather than a single soldier’s book in which Ventura is not even identified by name, now he faces a handful of sworn declarations by U.S. veterans and mothers of the slain soldiers supporting the accused defamer, Chris Kyle.

In short, if you bring a “normal” lawsuit and lose, the reputational risk is relatively slight.  If, however, you bring a defamation lawsuit and you lose, or even if you quietly settle and call it a “win” (which is, all things considered, will be the way over 90% likely outcome), you may have taken whatever harm you originally suffered and magnified it, perhaps exponentially.  Ralph Waldo Emerson famously said, “If you shoot at a king, you must kill him.”  In a defamation case, similarly, plaintiffs had better fully appreciate the stakes of a misfire.

Speaking of the harm suffered by a defamation plaintiff, how is that measured?  Hypothetically, let’s say you are a loud-mouthed, opinionated, litigious, controversial public figure and someone DID falsely claim that you said that U.S. Navy SEALs “deserved to lose a few” in the war in Iraq?  How would anyone be able to say with any verifiable accuracy (even approximate) how much you were damaged by this alleged defamation?  And if there is no way that can be measured (even approximately), how is the justice system to work in such cases?

If a jury agrees with a doctor defamation plaintiff’s claim that a disappointed patient’s family falsely suggested that a nurse called the doctor a “real tool,” can the doctor really trace any actual damages to that unflattering, if ambiguous, label?  And, if not, how is a jury to fix on a dollar amount?  And how much was the claimed damage caused not by the original publication but by the defamation plaintiff’s subsequent lawsuit?

Seth Leventhal is a Minnesota litigator, standing by to counsel Minnesotans and Minnesota businesses who feel they have been defamed or who feel they have been unjustly accused by others.  612-234-7349.

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