Filed: May 11, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1136 KIM TOMBLIN, Plaintiff - Appellant, v. WCHS-TV8, Defendant - Appellee. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, District Judge. (3:08-cv-01294) Argued: January 27, 2011 Decided: May 11, 2011 Before NIEMEYER, DAVIS, and KEENAN, Circuit Judges. Vacated and remanded by unpublished opinion. Judge Niemeyer wrote the majority opinion, in which
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1136 KIM TOMBLIN, Plaintiff - Appellant, v. WCHS-TV8, Defendant - Appellee. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, District Judge. (3:08-cv-01294) Argued: January 27, 2011 Decided: May 11, 2011 Before NIEMEYER, DAVIS, and KEENAN, Circuit Judges. Vacated and remanded by unpublished opinion. Judge Niemeyer wrote the majority opinion, in which ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1136
KIM TOMBLIN,
Plaintiff - Appellant,
v.
WCHS-TV8,
Defendant - Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:08-cv-01294)
Argued: January 27, 2011 Decided: May 11, 2011
Before NIEMEYER, DAVIS, and KEENAN, Circuit Judges.
Vacated and remanded by unpublished opinion. Judge Niemeyer
wrote the majority opinion, in which Judge Keenan joined. Judge
Davis wrote a dissenting opinion.
ARGUED: Jay Carter Love, Sr., JAY LOVE LAW OFFICE, Huntington,
West Virginia, for Appellant. Richard M. Goehler, FROST BROWN
TODD, LLC, Cincinnati, Ohio, for Appellee. ON BRIEF: Patricia
A. Foster, FROST BROWN TODD, LLC, Cincinnati, Ohio; Jared M.
Tully, FROST BROWN TODD, LLC, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
NIEMEYER, Circuit Judge:
After WCHS-TV8 in Charleston, West Virginia, broadcast a
news report that a four-year-old child was sexually abused at
Kim’s Kids Daycare in Barboursville, West Virginia, Kim Tomblin,
the owner of the daycare, commenced this action for defamation
and related torts. On WCHS-TV8’s motion, the district court
entered summary judgment in favor of the television station
(actually Sinclair Media III, Inc., the station’s owner),
concluding that the station accurately reported the abuse
allegations made by the mother of the child.
After review of the record, including a copy of the
broadcast in question, we conclude that there are genuine issues
of material fact as to Tomblin’s claims. By reporting that the
daycare was alleged to have abused a child, the television
station may have published a false statement inasmuch as it knew
and left out the fact that the incident involved one four-year-
old boy touching the rectum and genitalia of another four-year-
old boy. Accordingly, we vacate the summary judgment and remand
to the district court for further proceedings. We also affirm
in part and reverse in part two evidentiary rulings made by the
district court.
2
I
On June 10, 2008, the mother of a four-year-old boy
submitted a complaint to the West Virginia Department of Health
and Human Resources (“DHHR”) that while her son was attending
Kim’s Kids Daycare, another four-year-old boy stuck his finger
in her son’s rectum and grabbed his genitals. Kim’s Kids
Daycare was a state-licensed daycare operated by Kim Tomblin,
her husband, and a staff of approximately six employees. Some
two to three dozen children between the ages of two and five
regularly attended the daycare.
The DHHR investigated the complaint and was unable to
corroborate the charge. It issued a report on June 26, 2008,
indicating that “Child neglect ha[d] not occurred.” The report
did indicate, however, that twice previously the daycare was
cited for inadequate supervision of the children (in 2006 and in
2007) and that “the possibility that an incident [of child
neglect] could occur is likely.” The report also indicated that
staff members were observed smoking, for which the daycare had,
in 2003, also been previously cited. The DHHR provided a copy
of its report to the mother.
On July 1, 2008, when Kim’s Kids Daycare’s license came up
for renewal, the DHHR informed Tomblin that the license would
not be renewed, based on past violations. Tomblin appealed the
3
decision, and, pending appeal, Tomblin was authorized to
continue operating the daycare.
About three weeks after receiving a copy of the report, the
mother of the four-year-old boy who had been inappropriately
touched called WCHS-TV8, a local television station in
Charleston, to report that her child “was sexually abused while
at Kim’s Kids Daycare.” WCHS-TV8 assigned reporter Elizabeth
Noreika to investigate the allegations. After speaking with
John Law, a DHHR official who told Noreika that an investigation
was ongoing and an appeal was pending with respect to the non-
renewal of Tomblin’s license, Noreika interviewed the mother,
who told Noreika that “while at the daycare her child had been
sexually abused.” The mother provided Noreika with a copy of
the DHHR report, which Noreika read in its entirety. The report
provided the details of the charge: “A boy at Kim’s Kids Day
Care touched [a four-year-old boy] inappropriately by sticking
his finger in his rectum and grabbing his genitals. [The four-
year-old boy] is now displaying these behaviors.” The report
then summarized the investigation conducted by the DHHR and
concluded: “Finding(s): Child neglect has not occurred.”
Noreika then had John Law, the DHHR official, meet
separately with a WCHS-TV8 cameraman to give a short statement
about the investigation and the appeal.
4
Finally, Noreika visited Kim’s Kids Daycare and spoke with
a person there (later determined to be Tomblin), who declined to
comment aside from indicating that the allegations of abuse were
false.
That evening, WCHS-TV8 aired a two-minute story, based on
Noreika’s reporting. The story began as follows:
MOTHER: How would you feel if it was your child?
ANCHOR 1: This mother says her child was sexually
abused, our top story tonight, the state is
investigating a daycare . . . .
ANCHOR 2: Some serious allegations of abuse and
neglect have the state keeping a closer eye on a
Barboursville daycare. Eyewitness News reporter
Elizabeth Noreika joins us live in the studio on why
one parent is speaking out.
NOREIKA: Rick, a mother says she has taken her
children out of Kim’s Kids child care in Barboursville
because she says her young son was sexually abused.
The woman asked that we conceal her identity.
MOTHER: I just can’t even describe how I felt, I was
just very angry, that my kids were subjected to this.
NOREIKA: A woman says this daycare in Barboursville
abused her trust and her child [screen displays shots
of Kim’s Kids daycare, including its sign].
MOTHER: He’ll probably be scarred for life from it.
NOREIKA: This mom says she started to worry when her
3-year old began acting different.
MOTHER: My son was displaying abnormal behavior at
home, the minute I saw the behavior, they didn’t go
back.
NOREIKA: She alleges her son was sexually abused
while at Kim’s Kids childcare. She also says the
daycare’s workers smoke around children and engage in
5
other inappropriate behavior [screen displays close-up
shots of language from the DHHR report].
The broadcast continued with footage of Noreika’s visit to Kim’s
Kids Daycare, which showed Noreika asking an unidentified Kim’s
Kids employee for comment. The employee responded “sure” and
invited Noreika in to discuss the allegations. Narrating,
Noreika stated that “workers wanted the camera turned off,
saying any and all allegations aren’t true.” The segment
concluded with on-camera statements from Law, the DHHR
spokesman, who indicated that the DHHR initially moved to close
Kim’s Kids but later “had a change of heart” after Tomblin
appealed.
An identical story was broadcast later on WVAH Fox News 11,
which is an affiliated station.
As a result of the broadcast, Tomblin claimed that she
became depressed. She withdrew from her church congregation for
several months, lost considerable weight, contemplated suicide,
and experienced insomnia. Both Tomblin and her husband also
claimed that eight children pulled out of Kim’s Kids Daycare
following the broadcast.
Tomblin commenced this action in October 2008 against WCHS-
TV8 in the Circuit Court of Cabell County, West Virginia,
alleging that WCHS-TV8 (1) defamed her by falsely stating or
insinuating that she or one of her employees had sexually abused
6
a child; (2) cast her in a false light by showing her image on
the screen during the broadcast, thus implying that she had
sexually abused a child; and (3) intentionally inflicted
emotional distress by falsely accusing her of such acts. WCHS-
TV8 removed the action to the district court and, following
discovery, filed a motion for summary judgment.
Granting the motion, the district court determined that all
of the statements in the July 17, 2008, broadcast were literally
true and that the statements, taken together, did not evince a
false implication endorsed by WCHS-TV8. The court rejected
Tomblin’s false light claim because the footage used of Tomblin
in the broadcast simply reflected Noreika’s effort to get both
sides of the story. Finally, the court found that Tomblin’s
emotional distress claim failed as a matter of law because the
broadcast was not “extreme and outrageous” and was not intended
to cause Tomblin emotional distress or aired in such a way that
it unreasonably endangered Tomblin’s physical safety.
From the district court’s order granting summary judgment,
Tomblin filed this appeal, claiming that the district court
inappropriately resolved questions of fact against her.
7
II
Tomblin argues that the broadcast was capable of multiple
interpretations and could lead a reasonable viewer to believe,
falsely, that an adult at the daycare sexually abused a child.
She also contends that she presented evidence sufficient to
allow a jury to find actual malice on the part of WCHS-TV8,
pointing to the fact that Noreika, the reporter, possessed the
DHHR report which stated that the incident allegedly involved
only a four-year-old boy improperly touching a four-year-old
boy, as distinct from an adult abusing a child.
WCHS-TV8 contends that the district court properly entered
summary judgment because the statements made in the broadcast
were all true in that the mother did in fact allege that her
child had been sexually abused. WCHS-TV8 also argues that
Tomblin failed to proffer evidence of actual malice, as required
to overcome the station’s privilege in reporting matters of
public concern.
Having reviewed the record carefully, including a copy of
the broadcast, we conclude that there are numerous material
statements that are capable of multiple interpretations and that
a jury could conclude that the broadcasts defamed Tomblin and
placed her in a false light.
First, WCHS-TV8 published the statement that “this
daycare . . . abused her trust and her child.” (Emphasis
8
added). Yet, the station acknowledges that the daycare did not
abuse a child. It understood that one four-year-old boy may
have abused another four-year-old boy. But it had no evidence
that the daycare center or any of its employees abused the boy.
WCHS-TV8 rationalizes its publication of the broadcast statement
by arguing that the daycare abused the child because the daycare
was legally responsible for the abuse. This is also the
position taken by Noreika, the reporter, to justify her
reporting of the incident. In her deposition she explained,
“The daycare did not abuse the child,” but “what happens in the
daycare, no matter who does anything, is the responsibility of
the daycare.” This rationalization adopted by both WCHS-TV8 and
Noreika does not, however, transform a misleading statement into
a true statement. A reasonable jury could find that this
statement was defamatory, inasmuch as there is material
difference between a daycare worker actually abusing a child in
his or her care, and a daycare worker negligently supervising a
child such that he or she is ultimately responsible for one
child’s assault of another child.
Second, throughout the broadcast, WCHS-TV8 referred to the
incident as “sexual abuse.” Yet, the term sexual abuse did not
appear in the DHHR report, and there is a genuine issue as to
whether the term “sexual abuse” would be misleading to the
public in this context. WCHS-TV8 acknowledges that the assault
9
allegedly involved one child placing his finger in another
child’s rectum and grabbing the other child’s genitals. Because
this is an unwanted touching of a sexual organ, it argues that
the incident may be characterized as a form of sexual abuse.
Yet, the DHHR did not consider it sexual abuse. It did not
refer to the incident as an incident of sexual abuse, and it
stated, in its subsequent report, “No information was provided
that [the four-year-old assaulting child] was sexual, acted out
upon or acted out himself while at Kim’s Kids Daycare Center.”
The report also included statements from a staff worker, who was
familiar with that child, that “she ha[d] not seen any sexual
acting out by [the four-year-old assaulting child]. He has not
displayed any sexual behaviors. He did not display any age
consistent [sic] sexual behaviors at the center.” Moreover, in
the context of a report about a daycare center involving the
supervision of young children, the term “sexual abuse” is
especially alarming and could reasonably lead a rational jury to
conclude that the term used in that context indicated that an
adult at the daycare sexually abused a child. This issue is
thus an appropriate one for jury resolution, not summary
judgment.
Third, the broadcast stated numerous times that the daycare
was accused of both abuse and neglect, creating a genuine issue
of material fact as to whether the broadcast was suggesting that
10
the daycare did more than negligently supervise children; it
also abused children. In the introductory statement to the
broadcast, the anchor stated “the state is investigating a
daycare” amidst “serious allegations of abuse and neglect.”
From this opening announcement that there was both abuse and
neglect at the daycare, a reasonable jury could conclude that
the term “abuse” implied that an adult actually abused a child,
because the term “neglect” would be sufficient to indicate the
simple lack of supervision. This could be significant in the
context of the summary given by Noreika, the reporter, who
stated that the mother “alleges that her son was sexually abused
while at Kim’s Kids Daycare. She also says that the daycare
workers smoke around children and engage in other inappropriate
behavior.” Noreika’s statement that daycare workers “engage in
other inappropriate behavior” could lead a reasonable jury to
conclude that the daycare was not only neglectful, its workers
were sexually abusing children in their care.
Fourth, we have reviewed the broadcast as a whole and
conclude, when taken as a whole, there could be a question of
fact as to whether the broadcast produced a false “implication,
innuendo or insinuation” about the daycare. See Crump v.
Beckley Newspapers, Inc., 320 S.E.2d 70, 77 (W. Va. 1984). The
broadcast repeatedly referenced the sexual abuse of a child in
the context of a daycare, potentially creating the impression
11
that a daycare worker abused a child. The seriousness and drama
with which the broadcast was made, also indicate, something far
more serious than the failure to prevent the assault of one
four-year-old boy by another.
Finally, on the question of whether WCHS-TV8 deliberately
or recklessly conveyed a false message to sensationalize the
news and thus to provide factual support for a finding of
malice, there are disputed facts. It is undisputed that the
broadcast omitted the most important exculpatory detail, that
the incident involved one four-year-old boy inappropriately
touching another four-year-old boy. Additionally, without
disclosing that fact, the broadcast did not simply report the
mother’s allegation but emphasized the seriousness of the story.
When introducing the segment, the anchor stated that “some
serious allegations of abuse and neglect have the state keeping
a closer eye on the Barboursville daycare.” (Emphasis added).
While Noreika does assert in her deposition that the child’s
mother told her that “while at the daycare her child had been
sexually abused,” the mother in the same context explained her
accusation by providing Noreika with a copy of the DHHR report,
which gave the details that eliminated the false innuendo. Yet,
WCHS-TV8 went on to report the seriousness of the allegations
that a mother claimed that her child had been sexually abused
without reporting the known details contained in the DHHR
12
report. Tomblin argues effectively that because the reporter
knew the allegations of abuse concerned a child on child contact
and yet aired a report that implied that an adult abused a
child, a reasonable jury could find malice.
Even though WCHS-TV8 has a qualified privilege to make a
“fair comment on matters of public concern,” Crump, 320 S.E.2d
at 79; Havalunch, Inc. v. Mazza,
294 S.E.2d 70, 75-76 (W. Va.
1981), that qualified privilege is defeated if the speaker acts
with malice. Malice requires that Tomblin prove that Noreika
have “a subjective appreciation at the time of publication that
either (1) the defamatory statement is false, or (2) the
defamatory statement is being published in reckless disregard or
whether it is false.” Hinerman v. Daily Gazette Co., Inc.,
423
S.E.2d 560, 573 (W. Va. 1992) (emphasis omitted).
If the disputed facts were resolved in Tomblin’s favor, the
record would provide evidence from which a jury could infer that
Noreika acted with reckless disregard of the truth. While she
had a copy of the DHHR report at the time of the broadcast which
indicated that a boy was accused of improperly touching another
boy, she chose to air a news report suggesting that an adult
abused a child, despite her knowledge that there was no
allegation of adult on child abuse. “Where the defendant finds
internal consistencies or apparently reliable information that
contradicts its libelous assertions, but nevertheless publishes
13
those statements anyway, the New York Times actual malice test
can be met.” Schiavone Const. Co. v. Time, Inc., 847 F.2d 1069,
1090 (3d Cir. 1988) (citing Curtis Publ’g Co. v. Butts,
388 U.S.
130, 161 n.23 (1967)).
For the reasons given, we conclude that factual questions
exist in this case, precluding the entry of summary judgment on
Tomblin’s defamation and false light claims.
We also conclude that these factual issues preclude entry
of summary judgment on the claim for intentional infliction of
emotional distress, although the question is substantially
closer. Nonetheless, we must be mindful that leveling false
accusations of sexual abuse at a daycare is, perhaps, the most
outrageous accusation that one could make against that type of
institution, which is charged with children’s well-being. We
have previously acknowledged that the publication of a
defamatory statement can be outrageous. When a newspaper named
a research scientist as a suspect in mailing anthrax-laced
letters without regard for the truth of the accusation, we held
that the publisher’s conduct rose to the level of outrageous
behavior required to establish a claim of intentional infliction
of emotional distress under Virginia law. See Hatfill v. New
York Times Co., 416 F.3d 320, 336 (4th Cir. 2005). In this
case, the accusations made by WCHS-TV8 could similarly be found
to be extreme and likely to create a great public reaction.
14
Because Tomblin has alleged that the station aired this
accusation without regard for the truth of the matter asserted,
a jury could find that WCHS-TV8 recklessly inflicted emotional
distress on Tomblin.
Accordingly, we likewise vacate the summary judgment on
that claim and remand for further proceedings.
III
Tomblin also challenges the district court’s ruling
striking out portions of affidavits she filed from various
members of the community who noted that, after watching the
broadcast, they believed that a daycare worker abused a child.
Tomblin argues that without this evidence, she could not show
that one parent pulled her child out of Kim’s Kids Daycare
because she thought the broadcast meant that an employee had
committed sexual abuse or that people in the Barboursville
community shunned Tomblin after the broadcast and speculated as
to whether “an adult abused a child.” The district court’s
ruling, however, does not go so far as to prevent Tomblin from
making her case. The district court only struck from the
affidavit expressions of the affiants’ subjective impressions
about the broadcast, concluding that such impressions would not
be helpful to the trier of fact because they would be
duplicative of those which could be reached by the jury. The
15
court struck only the inadmissible material and did not prevent
Tomblin from using other portions of the affidavits. It
actually specified that “other statements contained within the
affidavits referring to the state of Mrs. Tomblin’s health or
the withdrawal of children from the daycare are admissible.”
Moreover, witnesses could surely testify to the understanding
about the daycare that they actually took from the broadcast
while watching it. As it stands, we find that the district
court reached an appropriate balance between disallowing
unhelpful opinion testimony and allowing Tomblin to prove her
case. On remand, however, the district court is free to revisit
this evidence’s evidentiary value as discovery proceeds. At
this moment, we do not conclude that the district court abused
its discretion.
Tomblin also challenges the district court’s decision to
strike a portion of an expert report that gave an opinion on how
a reasonable viewer would interpret the July 17, 2008 broadcast.
The court refused to admit the report on the basis that the
expert had not actually watched the broadcast. Because the
expert had not seen the video, the court reasoned, his opinions
were without proper foundation.
Although the expert did not watch the broadcast prior to
preparing his initial report (dated August 24, 2009), he made it
very clear in his final report (dated September 3, 2009) that he
16
had seen the broadcast. Moreover, both reports were filed
several months before the district court issued its ruling on
the report. Accordingly, we reverse the district court’s
evidentiary ruling with respect to the expert’s report. But
again, on remand the district court is free to review the expert
report in its broader context.
IV
For the reasons given, the summary judgment entered by the
district court is vacated, and the case is remanded for further
proceedings. The district court’s ruling on the community
members’ affidavits is affirmed, and the district court’s ruling
on the expert report is reversed.
IT IS SO ORDERED.
17
DAVIS, Circuit Judge, dissenting:
I would affirm the judgment of the district court.
I.
A.
On July 17, 2008, WCHS-TV8, a local ABC affiliate, aired a
newscast regarding allegations involving Kim’s Kids Child Care
in Barboursville, West Virginia. 1 The WCHS broadcast aired at
11:00 p.m., 2 and the daycare story was the first story of the
evening. The anchor offered this lead into the story: “Serious
allegations of abuse and neglect have the State keeping a closer
eye on one Barboursville daycare.” J.A. 36. Reporter Elizabeth
Noreika was also in the studio and began her story by saying,
“[A] mother says she’s taken her children out of Kim’s Kids
Child Care center in Barboursville because she says her young
son was sexually abused.” J.A. 36. A brief statement by the
mother followed, whose image and voice were concealed,
expressing her anger at her son’s experience. Noreika continued,
“A woman says this daycare in Barboursville abused her trust and
her child.” J.A. 37. As Noreika spoke, images of the exterior of
the daycare center, including signs identifying it, were shown.
1
Plaintiff-Appellant Kim Tomblin is the director and co-
owner of the daycare.
2
A nearly identical broadcast aired at 10:00 p.m. on WVAH
Fox11 News, a sister station.
18
The mother again appeared, explaining how she had noticed
changes in her son’s behavior. Noreika then stated that the
mother “alleges that her son was sexually abused while at Kim’s
Kids Child Care. She also says that the daycare’s workers smoke
around children and engage in other inappropriate behavior.”
J.A. 37. The image cut to Noreika knocking on the daycare’s
front door, which was answered by an unidentified woman. 3 Noreika
introduced herself and explained that she wanted to speak to
“someone who worked here about some allegations that were made
against the daycare.” J.A. 37. The woman replied, “Sure,” on
camera, but Noreika explained that “workers wanted the camera
turned off, saying any and all allegations aren’t true.” J.A.
38.
The broadcast described an investigation by the state
Department of Health and Human Resources (DHHR) into the
allegations, with Noreika noting, “A spokesperson for the
Department of Health and Human Resources says an investigation
has only turned up signs of worker inattentiveness, but DHHR
says it was enough to close the facility.” J.A. 38. John Law,
Communications Director for DHHR, explained that DHHR had
advised Kim’s Kids that its license would probably not be
3
Plaintiff-Appellant Tomblin is the woman who opened the
door, but she is not identified by name or as an owner of the
daycare in the broadcast.
19
renewed, but that Kim’s Kids had appealed and DHHR was “working
closely with them” on the problems. J.A. 38. Noreika ended by
noting that the mother wanted the daycare closed and that DHHR
was not allowing the daycare to accept new children while its
appeal was pending. The story was about two minutes in length.
B.
The allegations at issue in the WCHS broadcast were the
subject of a DHHR investigation in June 2008. The investigation
report contained the following allegation: “A boy at Kim’s Kids
touched [child’s name] inappropriately by sticking his finger in
his rectum and grabbing his genitals. [Child’s name] is now
displaying these behaviors.” J.A. 27. Although the summary found
that “the possibility that such an incident could occur is
likely,” the agency determined that “[c]hild neglect has not
occurred.” J.A. 27. Nonetheless, the report found a lack of
effective supervision and evidence of smoking by daycare
employees that warranted further review given the “history of
non-compliance and continuation of the same issues.” J.A. 28.
The term “sexual abuse” was not used in the DHHR report.
In July 2008, DHHR notified Tomblin that her license would
not be renewed and ordered the daycare to cease operation by
July 15, 2008. The agency’s notice stated that its decision was
based on the “repeated violations over the past two years,”
including the inability or unwillingness to “properly supervise
20
children.” J.A. 189. Tomblin appealed the agency determination
and was permitted to continue to operate the daycare while the
appeal was pending. Following an administrative hearing on
November 12, 2008, the agency’s decision was upheld.
The hearing report set forth reasons for upholding the
agency’s decision not to renew the license. In particular, the
hearing officer heard testimony from DHHR officials who said
that the daycare had previously been cited for non-compliance in
2006 and 2007, when children were found to be unsupervised,
sign-in sheets were incomplete, playground equipment failed to
meet regulations, and infants were found strapped in car seats.
As a result of these earlier problems, Kim’s Kids’ license had
been made provisional as of December 2007. With respect to the
allegations at issue in the WCHS broadcast, the hearing officer
heard testimony from the investigating DHHR officer who noted
that, although allegations of abuse or neglect were not
substantiated, he had found evidence of regulatory violations.
Tomblin states that the administrative decision was appealed and
that Cabell County Circuit Court reversed the agency’s decision
and ordered her license restored on July 27, 2009.
C.
WCHS learned of the allegations against Kim’s Kids when the
station received a phone call on July 17, 2008, from the mother
who had complained that her child had been inappropriately
21
touched while at the daycare. Reporter Noreika was assigned to
cover the story, and she called the mother and set up a meeting
with her. Prior to meeting the mother, Noreika testified on
deposition that she called John Law, Communications Director of
DHHR, who agreed to be interviewed for the news report. Noreika
testified that when she met with the mother, the mother told
Noreika “her opinion that Kim’s Kids abused her trust and her
child,” repeating the allegations regarding what had happened to
her son at the daycare. J.A. 276. She also showed Noreika a copy
of the DHHR investigation report, which Noreika read and the
cameraman took video of.
From the report, Noreika was aware that the allegations
involved two children at the daycare and that the agency had
determined that child neglect had not occurred, though she also
knew that the investigation had found “numerous infractions,”
including lack of supervision and smoking. J.A. 276; 314-15.
Noreika then went to Kim’s Kids to discuss the allegations with
employees there, but, after initially being invited in, was
refused further answers other than denial of the allegations.
Noreika testified that she sought comment from Kim’s Kids “to
show that we tried to get both sides in this case.” J.A. 277.
Noreika again checked in with Law, informing him that the
daycare had refused comment. She noted that, “[a]lthough he
could not talk about the specifics of the allegations because an
22
appeal is pending, Mr. Law verified during that call that the
daycare was under investigation.” J.A. 277. After writing her
report, Noreika called Law once again and read him the script,
testifying that “Law approved the script exactly as written by
indicating that he was fine with it.” J.A. 278. Law subsequently
witnessed the taping of the report and expressed no concerns.
Moreover, Noreika noted that another WCHS reporter and the news
director reviewed and approved the report before it aired.
Noreika testified that she decided to include the sexual
abuse allegation in the broadcast because “it was an allegation.
Whether or not it was found to be abuse or not, it was still an
allegation. It was still a concerned mother alleging that her
child was, in fact, sexually abused while in daycare.” J.A.
317f. In response to questioning as to why she did not make
clear who was accused of the sexual abuse, Noreika responded:
“Well, that wasn’t the point. The point is that this daycare was
being investigated. Who did the abusing isn’t the point. The
point is that . . . it happened in the daycare.” J.A. 317e.
D.
On July 19, 2008, two days after the broadcast, Billy
Tomblin, Kim’s Kids co-owner and Kim Tomblin’s husband,
contacted WCHS regarding the news broadcast. Billy Tomblin went
to the station and taped an interview with Bryant Somerville,
another WCHS reporter. Portions of the interview were aired as
23
the top story of the 6:00 p.m., 10:00 p.m., and 11:00 p.m.
newscasts that evening. Kim Tomblin testified that she thought
her husband’s interview “did an excellent job trying to make a
retraction” but felt that it should have run more frequently
throughout the weekend and into Monday.
According to Kim Tomblin’s review of the daycare’s records,
as supported by the affidavit of her employee, Christy Glover,
at least six families withdrew their children from the daycare
after the July 17 broadcast. One of those parents, Sara Miles,
submitted an affidavit explaining that she decided to withdraw
her children from Kim’s Kids after reading a transcript of the
WCHS broadcast on the internet. Moreover, Tomblin submitted
affidavits from former clients, employees, and family members
that attested to the change in her reputation in the community
as a result of the broadcast as well as changes in her mental
and physical health. Tomblin also provided the report of Timothy
Saar, a licensed psychologist, who stated that Kim Tomblin
presented symptoms of depression and anxiety and that she had
not displayed such symptoms prior to the broadcast. Tomblin’s
affidavits set out the physical and emotional toll the
broadcasts took on her, including weight loss, depression,
irritability, marital problems, and feelings of being shunned in
her community.
24
II.
Tomblin brought suit in state court against WCHS on October
14, 2008, alleging defamation, false light invasion of privacy,
and intentional or negligent infliction of emotional distress.
In particular, Tomblin claimed that the station falsely
insinuated that a daycare employee sexually abused a child and,
because images of her person were part of the story, it implied
that she sexually abused a child. Appellee removed the action to
federal court on the basis of diversity of citizenship.
Upon the completion of discovery, on August 12, 2009, WCHS
filed a motion for summary judgment and a motion to strike
certain opinion testimony from the summary judgment record. On
January 21, 2010, the district court granted in part and denied
in part WCHS’s motion to strike and it granted WCHS’s motion for
summary judgment. Tomblin v. WCHS-TV8, 2010 WL 324429 (S.D.W.Va.
Jan. 21, 2010). 4 This appeal followed.
III.
On appeal, Tomblin principally contends that the district
court erred in granting defendant’s motion for summary judgment.
This court reviews a grant of summary judgment de novo. Hill v.
4
My view of the dispositive issues in this appeal makes it
unnecessary for me to address the district court’s rulings on
the disputed evidentiary issues.
25
Lockheed Martin Logistics Management, Inc., 354 F.3d 277, 283
(4th Cir. 2004) (en banc).
A.
Although it is undisputed that West Virginia law governs
Tomblin’s claims, including her defamation claim, this court has
noted that “the First Amendment’s press and speech clauses
greatly restrict the common law where the defendant is a member
of the press, the plaintiff is a public figure, or the subject
matter of the supposed libel touches on a matter of public
concern.” Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1091-92
(4th Cir. 1993). Where the plaintiff is a private person
claiming she was defamed by a media defendant on matters
involving the public interest, courts may “not impose liability
without requiring some showing of fault.” Havalunch, Inc. v.
Mazza,
294 S.E.2d 70, 73 (W. Va. 1981) (citing Gertz v. Robert
Welch, Inc.,
418 U.S. 323 (1974)).
Accordingly, to make out a defamation claim under West
Virginia law, a private individual must show (1) a defamatory
statement; (2) a non-privileged communication to a third party;
(3) falsity; (4) reference to the plaintiff; (5) negligence, at
minimum, on the part of the publisher; and (6) resulting injury.
Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70, 77 (W. Va.
1983). The plaintiff bears the burden of proving both falsity
26
and fault against media defendants in matters of public concern. 5
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776
(1986). In assessing the falsity of an allegedly defamatory
statement, a court “overlooks minor inaccuracies and
concentrates upon substantial truth.” State ex rel. Suriano v.
Gaughan,
480 S.E.2d 548, 561 (W. Va. 1996) (internal quotations
and citations omitted).
Here, the district court granted Appellee’s motion on the
basis that Tomblin could not demonstrate the requisite element
of falsity. In particular, the court determined that the
statements that Tomblin complains of in the broadcast were
“factually accurate and non-actionable as direct defamation.”
2010 WL 324429, at *6. The court noted that it did not need to
decide whether Tomblin was a public figure, as “she has not
provided evidence to support a cognizable claim under the more
lenient test for a private party plaintiff.”
2010 WL 324429, at
*5 n.2. On appeal, Tomblin challenges the district court’s
determination that the statements in the broadcast were all
5
That allegations of abuse and resultant investigations
involving the only licensed daycare in a particular locality
would be considered a matter of public concern appears
unexceptional. See Snyder v. Phelps, 131 S. Ct. 1207, 1216
(2011) (noting that, although “the boundaries of the public
concern test are not well defined,” its scope encompasses
matters of public concern that can “be fairly considered as
relating to any matter of political, social, or other concern to
the community”) (internal citations and quotation marks
omitted).
27
literally true, focusing on two of Noreika’s statements, in
particular: (1) the statement that a mother had reported that
her child had been “sexually abused while at the daycare” and
(2) the statement that “[a] woman says this daycare in
Barboursville abused her trust and her child.” J.A. 36-38.
Although Tomblin’s brief blurs the line between direct and
indirect defamation, I will address each of the disputed
statements under her direct defamation claim before turning to
her claim of implied defamation.
1.
First, Tomblin contends that “sexual abuse” is not an
accurate term for the mother to have used to describe the
conduct at issue. This argument is without merit. The mother
alleged, as evidenced both by the DHHR report and her statements
to Noreika, that another child stuck his finger in her son’s
rectum and grabbed his genitals. I agree that, as a matter of
law, this conduct may fairly be “characterized as abuse of a
sexual nature.” 2010 WL 324429, at *6. Tomblin argues that the
DHHR did not categorize the incident as sexual abuse, but rather
framed it as an issue of ineffective supervision. How the state
agency chose to categorize the incident, however, is not
dispositive of the issue of falsity of the mother’s statement as
reported by the station.
28
It seems quite natural to me that a parent would focus on
the acts committed against her child and not necessarily on the
technical or administrative categorization of the type of
infraction. One of DHHR’s representatives testified on
deposition that the specific allegations found in the DHHR
report and the news story “[i]n broad terms,” “both relate to
sexual abuse” and that, while the “broad statement ‘sexual
abuse’ does not give an indication that it was abuse between two
children,” “typically what you get in news reports and in the
media usually doesn’t tell the whole story at any time.” J.A.
250-51. Because, so viewed and as a matter of law, the mother’s
statement is “substantially true,” 6 Tomblin fails to project
evidence sufficient to carry her burden to show falsity.
Second, Tomblin argues that the statement that the mother
claimed the “daycare . . . abused her trust and her child” is
false because the daycare did not abuse the child. This argument
is also without merit. The statement was properly attributed to
the mother, and the statement plainly constitutes a mother’s
belief as to what happened to her child at the daycare. This
court has noted that, when a reporter is repeating the
6
I note that this would be a different case if the mother
had not actually made the statement to the reporter or if the
reporter had misquoted the mother. However, on the record before
us, we have only Noreika’s undisputed testimony that the mother
made these statements to her.
29
defamatory statements of another, liability may attach if there
are “reasons to doubt the veracity of the informant or the
accuracy of his reports.” Fitzgerald v. Penthouse Intern., Ltd.,
691 F.2d 666, 670 (4th Cir. 1982) (applying the actual malice or
recklessness standard required for public figures).
Here, Tomblin again fails to project evidence sufficient to
carry her burden to demonstrate the falsity underlying the
mother’s statement. See Hepps, 475 U.S. at 776. Although the
DHHR investigation was not able to corroborate the mother’s
allegations (a fact noted by Noreika in her story), its
investigation report noted that “the possibility that such an
incident could occur is likely.” J.A. 27. Laura Sperry, a DHHR
representative, testified on deposition that “eyes on”
supervision is required at a daycare and could have prevented
the kind of inappropriate sexual touching alleged by the mother.
J.A. 158; 409. Although DHHR does not categorize the lack of
supervision as “child abuse,” it held the daycare responsible
for continued violations involving failure to properly supervise
the children under its care. In response to questions regarding
the mother’s allegations of abuse during her deposition, Noreika
stated:
She’s alleging that the abuse happened at the daycare.
When a child is in a daycare, it’s the daycare’s
responsibility what goes on in that daycare. . . .
What I meant was that nowhere does it say a worker
abused a child. But is it the responsibility of the
30
daycare itself to look after children when they’re in
there and to make sure stuff doesn’t happen? Yes, it’s
their responsibility.
J.A. 457. Tomblin admitted to such a responsibility in her
deposition, agreeing in response to a question that it would be
“legitimate” for a parent to believe that “the trust
relationship has been broken” if a child is inappropriately
touched while at a daycare regardless of “whether it was by
another child or by a staff member.” J.A. 111-12. Consequently,
the mother’s statement blaming “the daycare” for abuse because
it failed to provide adequate supervision, when supported by the
DHHR investigation into lack of proper supervision, is not
demonstrably false and not actionable as direct defamation.
2.
Having disposed of Tomblin’s contentions with respect to
her claim of direct defamation, I turn now to address her claim
of indirect defamation. Tomblin argues that, as a result of the
omission of the fact that it was a child that was alleged to
have inappropriately touched another child, the news broadcast
created a “false implication that an adult at the daycare,
specifically the adult whose face was shown in the broadcast,
was accused of sexually abusing the child.” Appellant’s Br. 25.
On appeal, Tomblin challenges the district court’s conclusion
that the reporter’s omission of a relevant fact failed to
establish Appellee’s endorsement of the false implication.
31
Because the evidence, even viewed in the light most favorable to
Tomblin, does not reasonably demonstrate that the station
endorsed or intended the false implication suggested by Tomblin,
I would affirm the district court’s order with respect to this
claim.
The range of meanings reasonably ascribable to the term
“sexual abuse” lies at the root of this dispute. I do not
contend that the term is incapable of a defamatory meaning. See
Crump, 320 S.E.2d at 77 (noting that a statement is defamatory
“‘if it tends so to harm the reputation of another as to lower
him in the estimation of the community or to deter third persons
from associating or dealing with him’”) (quoting Restatement
(Second) of Torts § 559 (1977)). Certainly, accusations of
sexual abuse at a daycare would reflect poorly on those
responsible for that facility, regardless of the specific
circumstances involved. Nonetheless, the defamatory nature of
the term is not at issue in the case before us; rather,
Tomblin’s claim turns on the element of falsity (which I
addressed supra) and the intent to communicate a defamatory
implication.
Although many people of good will and average intelligence
might agree that in the present circumstances the term “sexual
abuse” connotes abuse by an adult of a child, the idea that an
adult at the daycare sexually abused a child is an implication
32
of the disputed broadcast, and is never explicitly stated.
Consequently, the dispositive issue is whether Appellee can be
held liable for this implication. In my view, for the reasons I
discuss below, the record here presents factual questions which,
as a matter of law, no rational trier of fact could reasonably
resolve to support a claim that Appellee intended or endorsed
the implication that an adult at the daycare abused a child.
Consequently, the district court appropriately resolved this
case at the summary judgment stage. 7
West Virginia has recognized that “[d]irect defamatory
statements are not an absolute prerequisite to recovery . . .
7
I disagree with the majority’s view that the record
presents genuine questions of material fact from which a
rational trier of fact reasonably could find implied defamation.
Even accepting the majority’s view, however, I fail to discern
in the majority opinion any useful guidance offered to the
district court as to how to instruct the jury. And, the district
court will need to instruct whatever jury is finally selected as
to the elements and burdens of proof required to prove
defamation-by-implication because Tomblin’s defamation-by-
implication claim poses a high risk that a juror will be seized
by passion or sympathy and render an unsupported verdict.
It requires no reminder that, in a civil action, the
plaintiff loses where she is unable to carry her burden of proof
to establish the elements of her claim by a preponderance of the
evidence. Thus, it was entirely appropriate for the district
court to scrutinize carefully whether substantial probative
evidence, and not simply a scintilla of evidence, was available
to Tomblin to maintain her claim. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a
scintilla of evidence in support of the plaintiff's position
[is] insufficient” to withstand summary judgment.) (alteration
added).
33
because defamation may also be accomplished through inference,
implication, innuendo or insinuation.” Crump, 320 S.E.2d at 77.
However, a plaintiff asserting a claim of defamation by
implication must meet a higher bar to establish her claim. In
particular, where the stated facts are “literally true,” the
language must “not only be reasonably read to impart false
innuendo, but it must also affirmatively suggest that the author
intends or endorses the inference.”
Chapin, 993 F.2d at 1092-93
(internal citations omitted). Although the Chapin case involved
the interpretation of Virginia’s libel law, the court’s
statement with regard to the “especially rigorous showing”
required for a claim of defamation by implication was made in
reference to the constitutional protections provided by the
First Amendment to media outlets reporting on matters of public
concern. See
id.
This court is not alone in finding that constitutional
protections require a greater showing to prove defamation by
implication. The Eighth Circuit, in a suit against a news
magazine for its report of rape allegations involving a public
figure, affirmed the district court’s grant of summary judgment
on the implied defamation claim “because the article in question
cannot be read to imply that Newsweek espoused the validity of
the rape allegation” where the facts reported were materially
accurate. Janklow v. Newsweek, Inc.,
759 F.2d 644, 649 (8th Cir.
34
1985), reheard on other grounds, 788 F.2d 1300 (8th Cir.) (en
banc), cert denied
479 U.S. 883 (1986). Similarly, the D.C.
Circuit has required a public figure plaintiff claiming
defamation by implication to show “affirmative conduct” that
suggests the broadcaster “intends or endorses the inference.”
White v. Fraternal Order of Police, et al.,
909 F.2d 512, 520
(D.C. Cir. 1990). In a defamation-by-implication claim by a
state court judge against a television station, the Ninth
Circuit agreed that a “subjective or actual intent is required”
to make out such a claim. Dodds v. American Broadcasting Co.,
145 F.3d 1053, 1064 (9th Cir. 1998) (noting that “all the courts
of appeal that have considered cases involving defamation by
implication have imposed a similar actual intent requirement”).
See also Johnson v. Columbia Broadcasting System, Inc., 10 F.
Supp. 2d 1071, 1075 (D. Minn. 1998) (finding intent requirement
for implied defamation cases “equally applicable” to cases
involving private figures).
The more stringent requirements to prove implied defamation
also appear to be consistent with West Virginia law. Under West
Virginia law, “[e]vidence that a media defendant intentionally .
. . omitted facts in order to distort the truth may support a
finding of actual malice . . . .” Dixon v. Ogden Newspapers,
Inc., 416 S.E.2d 237, 244 (W. Va. 1992). The language in Dixon
suggests that West Virginia also requires actual intent or
35
endorsement of the false implication. Id. (noting that
plaintiff’s claim should fail unless defendant newspaper
intentionally omitted relevant facts “in order to leave readers
with the [false] impression” alleged) (emphasis added). Cf.
Hinerman v. Daily Gazette Co., Inc.,
423 S.E.2d 560, 572 (W. Va.
1992) (requiring public figures to demonstrate “a subjective
appreciation at the time of publication that either (1) the
defamatory statement is false or (2) the defamatory statement is
being published in reckless disregard of whether it is false”). 8
These exacting standards requiring intent or endorsement are not
satisfied on the present record.
8
The majority’s quotation of this passage from Hinerman in
connection with its discussion of West Virginia’s qualified
privilege for “fair comment” is somewhat confusing. Maj. Op. at
13. The court in Hinerman took pains to disentangle the
privileges claimed by defendants in that case, noting that the
“fair comment” privilege “accorded the media wide latitude for
editorial opinion,” whereas the “fair report” privilege
protected fair and accurate reports of official action regarding
matters of public concern. 423 S.E.2d at 577-78. The court then
proceeded to reject the defendants’ attempts to “shuffle the two
privileges to create an editorial that is primarily a recitation
of alleged facts where the reader is led to believe that the
editorial writer believes the reported unsubstantiated facts,
which are indeed untruths or half-truths.”
Id. at 578. While the
“fair report” privilege might fairly be implicated in this case,
I fail to see how “fair comment” comes into play in the news
report at issue here. With respect to the “fair report”
privilege, this court has noted that it may be lost where “the
press plainly adopts the defamatory statement as its own.”
Chapin, 993 F.2d at 1098 (emphasis added). Clearly, as the
district court noted, there is some overlap between West
Virginia’s fair report privilege and the endorsement requirement
for implied defamation.
2010 WL 323329, at *7.
36
Tomblin cites to several cases to bolster her claim, but
they do not provide the support necessary for her to avoid
summary judgment on this record. She cites Schiavone
Construction Co. v. Time Inc., where the court found a grant of
summary judgment inappropriate in a defamation claim against a
magazine for an article about the FBI’s investigation of former
U.S. labor secretary Robert Donovan. 847 F.2d 1069 (3d Cir.
1988). The article in question omitted an exculpatory fact about
the plaintiff, but included a statement implying that his
alleged connections to organized crime would have negatively
influenced the Secretary’s confirmation hearings in the Senate.
Id. at 1072. The Third Circuit found that the exclusion of the
exculpatory information with the inclusion of the suggestive
comments exceeded the bounds of fair reporting and precluded
summary judgment for the defendants.
Id. at 1092.
Similarly, in Hinerman, which Tomblin also cites, the West
Virginia court affirmed the lower court’s finding of libel in a
suit against a newspaper for an editorial that included only the
bad facts and not one of the exculpatory facts that came out of
the hearing that was the subject of the editorial. 423 S.E.2d at
578. In that case, as in Schiavone, the author included “caustic
and vituperative” editorial comment in addition to the abridged
facts.
Id. Neither of these cases is on point, as the courts in
37
both relied on the editorial commentary, in addition to the
omission of certain facts in order to find the claim actionable.
Here, Tomblin has failed to project sufficient probative
evidence to demonstrate that the statements in the broadcast
were false; further, she is unable to point to any suggestive or
inappropriate editorial comment in the broadcast that would make
this case resemble the facts in Schiavone or Hinerman. Despite
the fact that the report left out relevant details, even highly
relevant details, the record shows that the reporter made a
variety of efforts to investigate the mother’s allegations and
presented the results of the DHHR’s own investigation into the
allegations. Thus, the report, taken as a whole, fails to create
a genuine issue of material fact from which a rational trier of
fact could find any evidence that Appellee intended or endorsed
the false implication alleged by Tomblin.
The summary judgment record would not permit a rational
trier of fact to reasonably find that Appellee intended to imply
that an adult sexually abused a child at the daycare.
Specifically, Noreika testified on deposition, without
contradiction in the record before us, that before meeting the
mother, she called Law, a spokesperson for DHHR. She spoke to
him again after her interview with the mother, informing him of
what she had learned from the mother. Noreika testified that Law
said he could not talk about the allegations, but confirmed that
38
the daycare was under investigation. Noreika then attempted to
interview someone from the daycare who could address the
allegations, but was asked to leave before she could complete
her interview. She called Law upon leaving the daycare and again
after she wrote her story, reading the script aloud to him.
Noreika also testified that her report was reviewed by another
reporter and the news director.
Moreover, the broadcast itself fails to provide any
indication that Appellee endorsed the implication that an adult
at the daycare abused a child. During the broadcast, Noreika
stated that the DHHR investigation had only turned up worker
inattentiveness. DHHR spokesperson Law presented the agency’s
position during the broadcast. In her affidavit in support of
defendant’s motion for summary judgment, Noreika explained that
the “point of the Report was to let people know that Kim’s Kids
Daycare was investigated by the DHHR following a mother’s
allegations of abuse that occurred at the Daycare. . . .
However, the specifics of the allegations were unimportant to
the Report, therefore they were characterized in nature only and
the Report did not identify or describe the people involved or
the specific acts alleged.” J.A. 279. The inclusion of multiple
viewpoints and the reporting of the results of the agency’s
investigation do not support Tomblin’s contention that the
omission of the details of the incident or inclusion of the
39
brief image of her face (captured in an effort to get her to
talk about the allegations on camera) indicate an endorsement by
Appellee of the implication that an adult, and specifically Kim
Tomblin, had engaged in the sexual abuse alleged. 9 Because
Tomblin fails to show the requisite endorsement or intent
required for defamation by implication, her claim based on
indirect defamation also fails. 10
9
Under the majority’s approach, the following two scenarios
would be treated exactly the same:
(1) when the daycare owner is interviewed during the
preparation of the broadcast report, she discloses, on
camera, the detail that the inappropriate touching
alleged was child-on-child contact. Then, when the
story is broadcast, the portion of the tape showing
Tomblin explaining the detail is omitted;
(2) this case, the daycare owner is also offered the
opportunity to present her view of the facts, but she
declines to make any statement on camera and simply
denies the truth of the allegations while she is off-
camera. Then, when the story is broadcast, the
broadcaster, aware that the allegations related to
child-on-child contact, includes the owner’s denials,
but omits that detail.
In my view, the first scenario provides affirmative
evidence of the broadcaster’s intention to make the defamatory
implication; the case should go to the jury. In contrast, the
second scenario, which involves merely an omission, provides no
more than a scintilla of evidence of the broadcaster’s
intention, and the case should be resolved on summary judgment
in favor of the broadcaster and against the plaintiff, who bears
the risk of non-persuasion.
10
In concluding that, as a matter of law, defamation by
implication cannot be shown in this case, I do not intend to
commend the journalistic integrity of Appellee. Allegations of
sexual abuse grab a viewer’s attention more than headlines
concerning lack of supervision; by choosing to frame its report
around the mother’s allegations of sexual abuse, Appellee
appears to have engaged in the kind of titillation that drives
(Continued)
40
* * *
For the reasons set forth above, I would affirm the
district court’s resolution of the defamation claims asserted
here as a matter of law in favor of Appellee.
B.
Tomblin also challenges the district court’s grant of
Appellee’s motion for summary judgment as to the false light
invasion of privacy claim. Under West Virginia law, “defamation
and invasion of privacy remain distinct theories of recovery
entitled to separate consideration.” Crump, 320 S.E.2d at 81.
Further, “the ‘right of privacy’ does not extend to
communications which are . . . matters of legitimate public
interest.”
Id. at 85. A court must not “consider words or
elements in isolation, but should view them in the context of
the whole article to determine if they constitute an invasion of
privacy.”
Id. at 87. For a successful false light claim, “the
matter publicized as to the plaintiff must be untrue.”
Id.
Although a private figure need only prove negligence in
publishing the statement, where a “legitimate matter of public
too much of our contemporary news media. Still, while one may
deplore this tendency toward sensationalism, I do not believe
that common law defamation actions can overcome the
constitutional protections for speech involving matters of
public concern in the absence of some affirmative conduct that
demonstrates the media defendant’s endorsement of the false
implication.
41
interest is involved” and where “a logical nexus exists between
the plaintiff and the matter of public interest,” even a private
figure plaintiff must show “knowledge of falsity or reckless
disregard for the truth.” Bell v. Nat’l Republican Congressional
Cmte., 187 F. Supp. 2d 605, 617 (S.D. W. Va. 2002) (finding
nexus lacking between plaintiff and matter of public concern
addressed by pamphlet). Because Tomblin fails to show that the
broadcast portrayed her in a false light, this claim fails.
Tomblin argues that whether the broadcast portrayed her in
a false light is a question for the jury and should not have
been decided by the district court at the summary judgment
stage. For support, Tomblin attempts to analogize the facts of
her case to the Crump case, where the West Virginia court
reversed a grant of summary judgment. 320 S.E.2d at 90. The
plaintiff in that case was a female coal miner whose image
appeared in defendant’s newspaper with her consent in a 1977
article about female coal miners.
Id. at 75. In 1979, in an
article regarding the difficulties facing female coal miners,
which did not mention plaintiff by name, the paper used another
photo of plaintiff, also taken as part of the 1977 story, but
without plaintiff’s knowledge or consent.
Id. The court found an
issue of material fact: “whether the statements in the article
involved referred to the appellant” and noted that, when the
communication at issue “does not clearly favor one construction
42
over another, the determination of what light it places the
plaintiff is for the jury.” Id. at 90. The court stated that
these two questions went to “the key factual issue upon remand”:
“whether the article implied that Crump had suffered harassment
in the course of her employment, thereby either defaming her or
placing her in a false light before the public.”
Id. Tomblin
contends that a jury should decide whether the “misleading and
incomplete” news story in which her image appeared placed her in
a false light.
Manifestly, Tomblin’s analogy to Crump is inapt, and the
undisputed facts here, viewed in the light most favorable to
Tomblin, fail to create a genuine issue of material fact that
would defeat summary judgment. In particular, Tomblin’s
situation differs from Crump’s in that her connection to the
story in which her image appeared was clear. In Bell, a cropped
photograph of the plaintiff standing next to a political
candidate was published under a caption stating that the
candidate had represented sex offenders. 187 F. Supp. 2d at 617.
The district court there found that the privilege for reporting
on matters of legitimate public interest did not apply because
there was no nexus between the private figure plaintiff’s image
and the implication of the caption.
Id.
Here, it is undisputed that Tomblin was the owner and
director of the daycare that was the focus of the news story and
43
the subject of the mother’s allegations. The investigation of a
licensed daycare was a matter of public concern to the community
served by the TV station. As such, Tomblin had a clear
connection to a news story in which she was pictured. 11 Moreover,
as the district court noted, “The duration of the [sic] Ms.
Tomblin’s presence on camera is a few seconds at most and does
not extend into portions of the story stating the mother’s
opinions and allegations.” 2010 WL 324429, at *10. The district
court also credited Noreika’s testimony regarding her inclusion
of the footage from the daycare:
Ms. Noreika stated in affidavit that this portion of
video was intended to show the reporter’s attempt to
get both sides of the story. This is a legitimate
connection, and a valid message for the news
organization to send its viewers. There is nothing in
the broadcast to suggest that this woman who opened
the door played a larger role in the allegations,
further distinguishing this case from Crump, where the
plaintiff’s picture was the only image next to a
complete article.
Id.
Because Tomblin fails to project more than a scintilla of
evidence to show how the broadcast portrayed her in a false
light in its story about allegations involving her daycare, this
claim fails.
11
To the extent that Tomblin’s false light claim rests on
the alleged implication that an adult at the daycare sexually
abused a child such that the inclusion of her image showed a
reckless disregard for the truth, it fails for the same reasons
as her implied defamation claim fails. See Section II.A.2 supra.
44
C.
Tomblin also challenges the district court’s grant of
summary judgment on her claim of intentional or negligent
infliction of emotional distress. Because Tomblin’s emotional
distress claims fail as a matter of law, the district court was
right to grant summary judgment.
Under West Virginia law, to establish a prima facie case
for intentional infliction of emotional distress, a plaintiff
must show
(1) that the defendant's conduct was atrocious,
intolerable, and so extreme and outrageous as to
exceed the bounds of decency; (2) that the defendant
acted with the intent to inflict emotional distress,
or acted recklessly when it was certain or
substantially certain emotional distress would result
from his conduct; (3) that the actions of the
defendant caused the plaintiff to suffer emotional
distress; and (4) that the emotional distress suffered
by the plaintiff was so severe that no reasonable
person could be expected to endure it.
Philyaw v. Eastern Associated Coal Corp., 633 S.E.2d 8, 13 (W.
Va. 2006) (internal citations and quotations omitted). Claims of
negligent infliction of emotional distress in West Virginia,
moreover, are unlikely to prevail where the facts “do not
pertain to the threatened health or safety of the plaintiff or a
loved one of the plaintiff.” Brown v. City of Fairmont, West
Virginia,
655 S.E.2d 563, 570 (W. Va. 2007) (internal citations
omitted)).
45
Tomblin fails to show that Appellee’s conduct was
outrageous or that it acted recklessly or with intent to inflict
emotional distress. As I discuss above in my analysis of both
the defamation and false light claims, the news broadcast about
Tomblin’s daycare was substantially true and did not portray her
in a false light. Given that description, it is difficult to see
how the broadcast could also be “so extreme or outrageous as to
exceed the bounds of decency.” See Philyaw, 633 S.E.2d at 13.
Nor can a claim that the station intended to inflict emotional
distress be upheld in light of the undisputed fact that the
reporter attempted to get both sides of the story and did not
endorse or intend any false implication created by the report.
As Tomblin’s claims for infliction of emotional distress are
derivative of her earlier claims, they fail as do the others as
a matter of law.
Finally, with regard to the negligent infliction claim,
Tomblin fails to demonstrate how Appellee’s actions threatened
her safety or that of her loved ones. Because Tomblin cannot
establish a prima facie case of either intentional or negligent
infliction of emotional distress, the district court’s grant of
summary judgment on this claim should be affirmed.
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IV.
For the reasons set forth, I would affirm the judgment of
the district court.
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