No professor enjoys poor teaching evaluations but University of Wisconsin-Whitewater communications professor Sally Vogl-Bauer has taken a more aggressive approach. She has sued former student Anthony Llewellyn who took her class last year and wrote a scathing evaluation. She says that the evaluation contains untrue and defamatory statements, but the lawsuit raises troubling questions in the pursuit of a former student for expressing his opinion of a class and a teacher.
Llewellyn posted videos on YouTube and wrote comments on Blogger.com and TeacherComplaints.com. He wrote comments that said that Vogl-Bauer criticized his intellectual ability, treated him unfairly, and was the reason that he failed out of school. He also says that he spoke with Vogl-Bauer about these concerns two months before he was told that she had failed him.
Attorney Tim Edwards is representing Vogl-Bauer and says that the review was not an honest evaluation but “a concerted effort to attack somebody’s reputation because things didn’t go your way, that’s much different.” Llewellyn was asked to take down his comments and videos but refused. Vogl-Bauer then sued him for punitive damages and fees. The case has not been dismissed and will receive a jury trial in September.
Vogl-Bauer’s author bills her as an “award-winning teacher” and she has co-authored a book on “Interpersonal Communications.”
Llewellyn suggests that such interpersonal skills were lacking in alleged comments that he was a terrible student and did not belong in college. Vogl-Bauer calls such comments libel, plain and simple. The lawsuit charges that Llewellyn “engaged in an intentional, malicious and unprivileged campaign to defame Dr. Vogl-Bauer, resulting in substantial economic, reputational and emotional injuries.”
Llewellyn said that he tried to contact the school officials to object to what he called Vogl-Bauer’s “degrading, demeaning, verbally attacking” of him as well as various outside groups.
I have not been able to locate a copy of the complaint, but much of the quoted comments appear to fall into the category of opinion which is not actionable. There does not appear to be a question that the defendant was indeed in the class. Such opinion may be demeaning and degrading but still protected. My concern is that we have seen an increase in actions against people posting reviews of restaurants, hotels, and others on sites inviting reviews. The sites themselves are generally not liable for such comments but they have been hit with lawsuits to strip commenters of anonymity.
The question will come down to what is demonstrably untrue and what is merely an opinion.
The case reminds one of Mr. Chow of New York v. Ste. Jour Azur, 759 F.2d 219, (2d Cir. 1985), where a Chinese restaurant sued a food critic for a negative review. The reviewer made the following allegedly libelous comments:
(1) “It is impossible to have the basic condiments … on the table.”
(2) “The sweet and sour pork contained more dough … than meat.”
(3) “The green peppers … remained still frozen on the plate.”
(4) The rice was “soaking … in oil.”
(5) The Peking Duck “was made up of only one dish (instead of the traditional three).”
(6) The pancakes were “the thickness of a finger.”
The jury found for the restaurant and awarded $20,000 in compensatory and $5 in punitive damages. However, the court of appeals reversed and found that the statements were protected as “opinion.” Notably, the statement about the Peking Duck came closest in the court’s view since it was a factual statement, but the court still found that it would not support the verdict due to the absence of malice:
Because of the absence of evidence showing either that Bridault or Millau knew that Peking Duck was not traditionally served as three dishes or that they subjectively entertained serious doubts about the accuracy of the statement that it is traditionally served in three dishes, we cannot say that the existence of malice has been established by clear and convincing evidence. Thus, this statement cannot support the judgment entered below.
I do not see the Peking Duck comment in the coverage of this lawsuit but that is why it would be good to review the complaint.
Source: Gazette Extra
UPDATE . . . UPDATE
IS A SETTLEMENT IN THE WORKS FOR VOGL-BAUER V. LLEWELLYN?
Anthony Llewellyn now has three lawyers, Andrew Price, Kate E. Maternowski, and Laura Brenner . Jury trial is still scheduled for SEP 15 – SEP 17, 2014, in the Walworth County Judicial Center Courtroom of the Honorable Phillip A Koss; however, it is hard to find any of Anthony Llewellyn’s videos online. IS HE TAKING THE VIDEOS DOWN?
Sally Vogl-Bauer apparently had her pre-trial hearing AUG 20, 2014. It is no longer listed on the pending court docket.
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.
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.
Elizabeth Ethredge has done her own social media review and rating.
She said this about a restaurant:
This was a group of prom students that had a horrible experience. The room has peeling wall paper and the table was nasty. They couldn’t figure out how to get the bill split for them and made the group an hour late to prom!!! For what they paid, this was not a night to remember for the best. The group reservation was to include a surprise for my son’s birthday. OMG, the catering supervisor called and asked him what he would like to do! Sum surprise. This is also the person that called an hour before he was to leave and told me she forgot to run my card for the deposit. So, I have talked to the head chef. He is going to have the Gen. Manager call me. We will see what they would like to do to fix this debacle.
Posted at https://plus.google.com/116278443587676915828/about
Sally Vogl-Bauer isn’t the only teacher drawing attention for suing students.
“Texas teacher sues two students for defamation”
Posted By Kristen Butler, UPI
(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.
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Sally Vogl-Bauer, 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. ]]
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Interesting, but also very unfortunate.
As one of the “trolls” detailed in the BuzzFeed article about David McKee MD v Dennis Laurion, I have no issue with the accuracy of the text – at least as it pertains to me during the case David McKee MD v. Dennis Laurion – 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…”
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.
No: 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.
Thanks, Julie Anne, for the media sources — although the sources for their statements, the videos, are posted under names other than that of the defendant. If ever he agrees to be deposed, then we will see, yes, if ever he filed with the campus disability office and if it had recommendations that the professor did not follow — although they are only recommendations, past the K12 level — and if any recommendations were relevant to the coursework in question. Of course, if he did not file with the disability office, the professor “could well be in the dock” in violation of state policy and federal law for provisions for one student not granted to other students. As for a C in graduate school: Again, see the campus policy, which apparently differs from the policy for the program for your doctorate (sp), whether for core courses or peripherals (sp) aka electives. The policy on other campuses is not relevant — although the policy at the campus in question is fairly common. That policy has no provisions for dismissal based on a grade of C. The policy requires a GPA of B, so it would take more than one poor grade even to be put on probation. For a C to cause dismissal, the student had to already be on probation for poor grades in a previous semester or semesters and then had to continue to earn poor grades. That the defendant continues, across many videos, blogs, websites, and more, to misstate such facts and many others does not suggest credibility re the anonymous statement of a disability — but, again, if ever he complies with the court order to be deposed, we will see.
A few facts to clarify for an earlier poster:
1) Both NBC 15 and CBS 3 reported the student stated that he had a learning disability and that the professor harrassed and belittled him every time they were alone.
2) In graduate school a C is failing. My docterates program I need at least B’s in core work and am allowed ONLY two BCs in pheripheral classes
3) Defamation is not an accomodation. It is a court ruling and based on similar cases (see gradual student) not the most likely outcome here. If someone believes another to be truely dangerous or unprofessional contacting their professional society, posting on rating boards etc is reasonable ant the ethical choice.
4) If the student had taken his problems with the professor to the appropriote authorities and talked to the campus disability office it could well be the professor in the dock (figuratively) or the student and the professor could have been heled to work it out,
I think Professor Streisand could learn something from Doctor Streisand’s hindsight,
Insult And Injury: How Doctors Are Losing The War Against Trolls
BuzzFeed – Jake Rossen
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.”
Finally, another commenter looks at the state court site (public, online, easy to find), as the author and every other media outlet could have done, but I have yet to see one commit such an act of journalism — and although the complaint is not there, much else is that is informative. The suit was filed many months ago. Why is it news now? Because the former student (yes, representing himself) has refused, also for many months, to comply with the standard request to be deposed about his claims, all over the internet and even more extensively than noted above by another commenter; see also blogs, websites, etc., created with the pseudonym, which he admits is him, of a “Barry Grunder.” That is a wide-ranging campaign not to be sniffed at, here and elsewhere, as a standard class evaluation. And there are statements that are obviously untrue, as anyone who ever has looked at a college catalog could know — and as also can be ascertained with a click on the campus website. (No, one C does not mean dismissal from the program; he clearly had to have had poor grades in other courses,) This is news now only because the court had to order him to comply with the deposition — although, again, none of the news coverage has said so — or risk contempt of court for refusing to say, under oath, what he has claimed on the internet. Or, of course, he could do as the professor asked even more months ago and take down the websites, videos, etc. After all, the suit asks only for some hundreds of dollars, hardly the usual in a defamation suit, so clearly intended to get him to just cease and desist. (By the way, to the commenter claiming that the former student has a disability, I did not see that in skimming several of these posts and sites that came up in a search. I did see that he says that he has a disabled sibling. And, of course, disability accommodations do not include the right to defamation.)
ggmcbride – this puts us at odds with Tim Edwards who came on claiming to be the plaintiff’s attorney and who said we could get the complaint online. He was offered the opportunity by Prof Turley to supply the complaint, but to this point has not done so. You are making the claim that the complaint is NOT available online which makes either you or Tim Edwards suspect. Who should we believe?
1. If you look at the state court site, as well as other sources, you will see that is the name of the oplaintiff’s attorney and 2. That he says thecsame thing elsewhere to correct poor reporting, which suggests that the poster probably is the plaintiff’s attorney. 3. If you look at what I posted, you will see that I did not make the claim that you claim that I did; the complaint is not at the state court site, that I can see, but it well may be online. I am not a lawyer, nor do I know legal research. However, you clearly are a prosecutor or have a prosecutorial bent, so do share how and where to search online for the complaint, and I will be happy to click a computer mousiest for you.
It’s counter-productive. When people are afraid to speak out due to an overly litigious climate, everyone suffers.
Yelp does not make billions. Yelp made $263 million in revenues last year.
The complaint is not available on the Wi. court records online website. But, I do note the defendant is representing himself.