JOSEPH R. GOODWIN, UNITED STATES DISTRICT JUDGE.
In 2007, the plaintiff, Samuel Ballengee, opened Tug Valley Pharmacy ("Tug Valley") in Williamson, West Virginia, within two blocks of two notorious pill mills that were eventually shut down by government agencies. Customers formed lines outside of these pill mills daily before they opened. Tug Valley filled eye-popping quantities of pain prescriptions written by reckless doctors at these pill mills. In 2009, Tug Valley filled 42,115 hydrocodone prescriptions in a town with a population of only 3090. This was more than enough to give every man, woman, and child in Williamson a hydrocodone prescription every month of the year.
From 2010 to 2012, several of Mr. Ballengee's customers sued him and Tug Valley for negligently and/or recklessly filling prescriptions and for contributing to the customers' drug addictions. At least one of these customers died of an overdose from prescription opioids. Several customers alleged that they saw drug deals occur right outside of Tug Valley. Customers also alleged that Mr. Ballengee would fill opioid prescriptions before their refill date, particularly if they paid in cash. The State of West Virginia has described Tug Valley as one of "the most notorious of the pill mill pharmacies in Southern West Virginia." Defs.' Mot. Summ. J. ("Defs.' Mot.") Ex. 41, at 32 [ECF No. 169-41].
CBS found this information newsworthy. After extensively investigating the opioid epidemic in West Virginia, CBS showcased Tug Valley during two broadcasts in 2016. Although the government has apparently decided not to take action against Mr. Ballengee, despite the egregious facts that follow, he nonetheless filed this defamation action against CBS. Mr. Ballengee alleges that the CBS broadcasts were defamatory, placed him in a false light, tortiously interfered with various contracts, and amounted to intentional infliction of emotional distress. The court must now decide whether these claims can survive summary judgment. For the reasons stated herein, the court concludes that they cannot.
From 2007 to 2014, Mr. Ballengee owned and operated Tug Valley in Williamson, West Virginia. Compl. ¶¶ 29, 92. When Mr. Ballengee opened Tug Valley, he was aware that Mountain Medical Care Center ("Mountain Medical") and Dr. Diane Shafer's office were located within one block of the pharmacy. Defs.' Mot. Ex. 3, at 5-6 [ECF No. 169-3]. Both of these offices were notorious pill mills.
Tug Valley filled large quantities of controlled substance prescriptions, many of which were pain prescriptions,
On December 4, 2009, police executed a search warrant at Dr. Shafer's office because she was under investigation for improperly distributing controlled substances. Defs.' Mot. Ex. 11, at 1-2 [ECF No. 169-11]. On December 18, 2009, she surrendered her license to practice medicine. Id. Dr. Shafer ultimately pleaded guilty to conspiring to misuse a Drug Enforcement Administration registration number and was sentenced to six months in federal prison. Defs.' Mot. Ex. 22, at 3 [ECF No. 169-22]. In March 2010, the FBI raided Mountain Medical and closed the clinic for improperly prescribing controlled substances in violation of federal and state law. Defs.' Mot. Ex. 2, at 6 [ECF No. 169-2]; Tug Valley Pharmacy, LLC v. All Plaintiffs Below in Mingo Cty., 235 W.Va. 283, 773 S.E.2d 627, 629 (2015).
From 2010 to 2012, Mr. Ballengee and Tug Valley were named in four lawsuits filed by Tug Valley customers. Compl. ¶ 32. The lawsuits alleged that Mr. Ballengee and Tug Valley negligently and/or recklessly filled prescriptions for controlled substances and contributed to the customers' addictions. Defs.' Mot. Ex. 13, at 5 [ECF No. 169-13]; Defs.' Mot. Ex. 14, at 2-7 [ECF No. 169-14]. One of the lawsuits was brought on behalf of a Tug Valley customer who died of an overdose after consuming alprazolam and hydrocodone. Defs.' Mot. Ex. 10, at 6 [ECF No. 169-10]; Defs.' Mot. Ex. 14, at 2-8.
Sula Collins, who had prescriptions filled at Tug Valley for approximately four years, was one of the plaintiffs who sued Mr. Ballengee. Defs.' Mot. Ex. 15, at 3 [ECF No. 169-15]. She described her experience at Tug Valley as such:
Defs.' Mot. Ex. 18, at 12 [ECF No. 169-18]. Another customer testified that he also saw drug deals occur right outside of Tug Valley and that Tug Valley would fill narcotic prescriptions before their refill date, particularly if the customer paid in cash. Id. at 13.
On January 13, 2011, in relation to one of the civil lawsuits, Mr. Ballengee was deposed regarding his relationship with Mountain Medical. Defs.' Mot. Ex. 2, at 5-8. The following exchange took place during the deposition:
Id. During the same deposition, Mr. Ballengee was also questioned regarding patients lining up outside of Mountain Medical:
Id. at 6-7.
In 2012, the State of West Virginia sued eleven pharmaceutical drug distributors that it alleges contributed to the prescription drug abuse problem in West Virginia. Defs.' Mot. Ex. 41, at 4 [ECF No. 169-41]. While the State did not name any pharmacies as defendants in the lawsuit, it discussed several pharmacies' practices in its second amended complaint. Id. at 1. The State described Tug Valley's role in the lawsuit in regard to AmerisourceBergen as such:
Id. at 16. The State also describes Tug Valley's role in the lawsuit in regard to H.D. Smith Wholesale Drug Co.:
Id. at 32-38.
On January 7, 2016, CBS aired a broadcast
Id. at 3-6.
Following the broadcast, one of Tug Valley's suppliers, McKesson, terminated its supply agreement with the pharmacy. Pl.'s Resp. Opp'n to Defs.' Mot. Summ. J. 5 ("Pl.'s Resp.") [ECF No. 183]. In an affidavit of Gary Boggs, Senior Director of Regulatory Affairs at McKesson, Mr. Boggs states that the January broadcast "alerted [him] that Tug Valley Pharmacy was a defendant in a lawsuit in Mingo County that alleged that Tug Valley Pharmacy contributed to the plaintiffs' addictions by dispensing high volumes of controlled substances." Defs.' Mot. Ex. 35 ("Boggs Aff."), ¶ 12 [ECF No. 169-35]. This "prompted [Mr. Boggs] to initiate a review of Tug Valley Pharmacy." Id. ¶ 13. As part of this review, Mr. Boggs read the plaintiffs' brief in the customers' lawsuit against Tug Valley. Id. ¶ 14. From reading the brief, Mr. Boggs learned that "Tug Valley Pharmacy's owner, Samuel Ballengee, testified that he filled more than 150 prescriptions daily from one pain clinic alone." Id. "Based upon the totality of the facts and circumstances, [Mr. Boggs] determined that McKesson had a good-faith belief that continued shipments to Tug Valley Pharmacy put McKesson `in jeopardy of being non-compliant' with federal and/or state laws and regulations concerning the distribution of controlled substances." Id. ¶ 16. Thus, "[o]n January 8, 2016, McKesson determined to immediately terminate shipments of controlled substances to Tug Valley Pharmacy and notified Mr. Ballengee of the determination." Id. ¶ 17.
Thereafter, McKesson refused to supply Tug Valley with controlled substances until Mr. Ballengee no longer owned nor worked for the pharmacy. Pl.'s Resp. 5. Mr. Ballengee was unable to find a distributor to sell him controlled substance prescriptions. Compl. ¶ 82. In March 2016, Mr. Ballengee was rapidly losing customers and sold Tug Valley. Id. ¶ 92. He then attempted to obtain employment as a pharmacist for Wal-Mart, where he had worked for fifteen years prior to opening Tug Valley, but was unable to do so. Pl.'s Resp. 36. After selling Tug Valley, Mr. Ballengee breached a contract with his ex-wife concerning alimony and child support and was forced to renegotiate the terms of that contract. Compl. ¶ 214.
On May 25, 2016, CBS aired a second broadcast
Id. at 4-5.
On January 6, 2017, Mr. Ballengee filed this lawsuit against CBS Corporation, CBS Broadcasting, Inc., CBS News, Inc., Jim Axelrod, Ashley Velie, and Scott Pelley. Compl. 1. The Complaint contains four counts: (1) defamation, (2) false light invasion of privacy, (3) tortious interference, and (4) intentional infliction of emotional distress. Id. ¶¶ 175-243. On June 18, 2018, the defendants
To obtain summary judgment, the moving party must show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). "Facts are `material' when they might affect the outcome of the case." News & Observer Publ'g. Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). "A genuine issue of material fact exists if ... a reasonable fact-finder could return a verdict for the non-movant." Runyon v. Hannah, No. 2:12-1394, 2013 WL 2151235, at *2 (S.D. W. Va. May 16, 2013) (citations omitted); Williams v. Griffin, 952 F.2d 820, 824 (4th Cir. 1991) ("Disposition by summary judgment is appropriate... where the record as a whole could not lead a rational trier of fact to find for the non-movant."). The moving party bears the burden of showing that "there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In considering a motion for summary judgment, the court will not "weigh the evidence and determine the truth of the matter." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Instead, the court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548. The nonmoving party must satisfy this burden of proof by offering more than a mere "scintilla of evidence" in support of his or her position. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Likewise, conclusory allegations or unsupported speculation, without more, are insufficient to preclude the granting of summary judgment. See
This case is a diversity jurisdiction action brought under West Virginia law. Compl. 1-5. When exercising diversity jurisdiction, a district court applies the choice-of-law rules of the state in which it sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 S.Ct. 1477 (1941); Wells v. Liddy, 186 F.3d 505, 521 (4th Cir. 1999). In tort cases in West Virginia, the applicable substantive law is the law of the place of injury. McKinney v. Fairchild Int'l, Inc., 199 W.Va. 718, 487 S.E.2d 913, 922 (W. Va. 1997) ("Traditionally, West Virginia courts apply the lex loci delicti choice-of-law rule; that is, the substantive rights between the parties are determined by the law of the place of injury."). Here, the place of injury is West Virginia. Therefore, the court will apply West Virginia law.
First, the defendants argue that they are entitled to summary judgment on the plaintiff's defamation claim. In Count I of the Complaint, the plaintiff alleges that the CBS broadcasts contained both defamatory statements and defamatory implications. The court will address these allegations separately. In West Virginia, the essential elements for a successful defamation action are (1) a defamatory statement; (2) a nonprivileged communication to a third party; (3) falsity; (4) reference to the plaintiff; (5) negligence or actual malice on the part of the publisher;
The plaintiff alleges that both CBS broadcasts contained defamatory statements. The "court must decide initially whether as a matter of law the challenged statements in a defamation action are capable of a defamatory meaning." Pritt v. Republican Nat'l Comm., 210 W.Va. 446, 557 S.E.2d 853, 861 (2001). 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." Crump, 320 S.E.2d at 77 (quoting Restatement (Second) of Torts § 559 (1977)). To determine this, the court must "consider whether the allegedly defamatory statements could be construed as statements of opinion. `A statement of opinion which does not contain a provably false assertion of fact is entitled to full constitutional protection.'" Pritt, 557 S.E.2d at 861 (citations omitted). "[W]hether a statement is one of fact or opinion is an issue that must be decided initially by a court." Id. (alteration in original).
The allegedly defamatory statements appeared in both broadcasts, varying only slightly their wording. The statement at issue from the January broadcast is,
May Tr. 5-6. These statements are not opinions and are capable of harming Mr. Ballengee's reputation and deterring others from associating with him. Therefore, the statements are capable of a defamatory meaning.
Because the allegedly defamatory statements are capable of a defamatory meaning, the court must now analyze the elements of Mr. Ballengee's defamation claim regarding these statements to determine whether there are any genuine disputes of material fact. Because Mr. Ballengee has the burden of proof on each element of his defamation claim, summary judgment is proper if there is no genuine dispute of material fact regarding any one of the required elements. See Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548 ("Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.").
The court will begin with the element of falsity. "The common law of libel takes but one approach to the question of falsity, regardless of the form of the communication. It overlooks minor inaccuracies and concentrates upon substantial truth." Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991). "Minor inaccuracies do not amount to falsity so long as `the substance, the gist, the sting, of the libelous charge be justified.'" Id. Thus, a "statement is not considered false unless it `would have a different effect on the mind of the reader from that which the pleaded truth would have produced.'" Id. Generally, this "inures to the benefit of the accused, i.e. if something is `substantially' true in overall effect, minor inaccuracies or falsities will not create falsity." Matter of Callaghan, 238 W.Va. 495, 796 S.E.2d 604, 628 (2017).
The defendants argue that Mr. Ballengee has failed to make a showing sufficient to establish falsity because the allegedly defamatory statements are, at best, minor inaccuracies, and thus are substantially true. The first statement at issue appeared in both broadcasts. During the January 7, 2016 broadcast, Mr. Axelrod reported that "[r]ecords show Tug Valley was filling more than 150 pain prescriptions a day from one clinic alone." Jan. Tr. 4. During the May 25, 2016 broadcast, Mr. Axelrod reported "that Randy Ballengee is facing several lawsuits for negligence, admitting to filling 150 pain pill prescriptions daily for one clinic alone." May Tr. 5-6.
The plaintiff claims that these statements are false because he never filled more than 150 pain prescriptions "a day"/"daily" from one clinic alone. Pl.'s Resp. 9. The court disagrees. The defendants submitted records that demonstrate that on at least seven occasions, the plaintiff did fill more than 150 pain prescriptions in a single day from one clinic.
A "statement is not considered false unless it `would have a different effect on the mind of the reader from that which the pleaded truth would have produced.'" Masson, 501 U.S. at 517, 111 S.Ct. 2419. Here, the pleaded truth, undisputed by the plaintiff, is that, on seven occasions, Tug Valley filled more than 150 pain prescriptions in a single day from one clinic. The allegedly defamatory statement is that "Tug Valley was filling more than 150 pain prescriptions a day/daily from one clinic alone." Thus, based on the undisputed evidence, I conclude that no reasonable juror could find that the broadcast statement "would have a different effect on the mind of the reader from that which the pleaded truth would have produced." Masson, 501 U.S. at 517, 111 S.Ct. 2419. Therefore, the broadcast statement is "`substantially' true in overall effect," and thus insufficient to create falsity for purposes of the plaintiff's defamation claim. See Matter of Callaghan, 796 S.E.2d at 628.
Additionally, the May broadcast stated that Mr. Ballengee admitted to filling 150 pain prescriptions daily for one clinic alone. May Tr. 5. This statement refers to Mr. Ballengee's testimony during a deposition in relation to one of the civil lawsuits in which he was a defendant. The relevant portion of the deposition reads as follows:
Defs.' Mot. Ex. 2, at 5-8.
The court agrees with the plaintiff that he did not literally state in his deposition that he was filling 150 pain prescriptions daily for one clinic alone. Instead, he stated that he was filling between 150 and 200 prescriptions in a day from Mountain Medical, and that most of those patients received pain medication. Again, based on the undisputed evidence, I conclude that no reasonable juror could find that the broadcast statement "would have a different effect on the mind of the reader from that which the pleaded truth would have
Falsity is a required element of Mr. Ballengee's defamation claim, and he bears the burden of proof on this element. Mr. Ballengee failed to offer any evidence from which a reasonable juror could find that the allegedly defamatory statements in the CBS broadcasts are false, rather than minor inaccuracies. Because there is no genuine dispute of material fact regarding the falsity of the allegedly defamatory statements, summary judgment on this claim is proper. See Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548 ("Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.").
Mr. Ballengee further alleges that the CBS broadcasts contained three defamatory implications:
Pl.'s Resp. 16-17.
Defamation may be accomplished through a direct statement, inference, implication, innuendo, or insinuation. Crump, 320 S.E.2d at 77. Before addressing whether an alleged implication is defamatory, the court first must determine whether the implication is in fact present. "A defamatory implication must be present in the plain and natural meaning of the words used." Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir. 1993). "[B]ecause the constitution provides a sanctuary for truth," a plaintiff alleging defamation by implication "must make an especially rigorous showing where the expressed facts are literally true." Id. at 1092-93. The language must (1) be reasonably understood to impart the false innuendo, and (2) affirmatively suggest that the author intends or endorses the inference. Id. at 1093.
The first alleged implication is that Mr. Ballengee or his pharmacy was sued by the State of West Virginia. Pl.'s Resp. 17. The plaintiff notes that the January broadcast references several civil lawsuits in which Mr. Ballengee and/or Tug Valley were named as defendants, but the broadcast fails to mention that the lawsuits were filed by former customers of Tug Valley — not the State of West Virginia. Jan. Tr. 3. Mr. Pelley begins the broadcast by stating that "the State is suing, accusing pharmacies and drug distribut[o]rs of making millions pushing narcotics to anyone who wants them." Jan. Tr. 3. A short time later, Mr. Axelrod discusses the lawsuits that were filed against Mr. Ballengee, without stating who was suing him. Id. at 4-5. A few lines after that, Mr. Axelrod mentions "the unprecedented lawsuit" in which the State is suing eleven defendants. Id. at 5-6. The broadcast, however, only names one of those defendants — AmerisourceBergen. Id. This series of statements creates a genuine dispute of material fact as to whether the broadcast could be reasonably understood to impart that Tug Valley was sued by the State of West
As an initial matter, the court finds that the implication that Mr. Ballengee and/or Tug Valley were being sued by the State of West Virginia is not an opinion, and is capable of a defamatory meaning. See Pritt, 557 S.E.2d at 861. Therefore, the court will now turn to the elements of Mr. Ballengee's defamation claim regarding this implication to determine whether there are any genuine disputes of material fact.
The court will again begin with the element of falsity. The parties agree that the State of West Virginia did not sue Mr. Ballengee or Tug Valley. However, the defendants submitted evidence that shows that the State of West Virginia did sue eleven pharmaceutical drug distributors for contributing to the prescription drug abuse problem in West Virginia. Defs.' Mot. Ex. 41, at 4. Although the State did not name any pharmacies, including Tug Valley, as defendants in the lawsuit, it discussed several pharmacies' practices in its complaint. Specifically, the State described Tug Valley's relationship with AmerisourceBergen as such:
Id. at 16. The State also described Tug Valley's relationship with H.D. Smith Wholesale Drug Co. as such:
Id. at 32-38.
Although Mr. Ballengee may dispute these characterizations of Tug Valley by the State of West Virginia, he does not dispute that the characterizations did in fact appear in West Virginia's complaint against the drug distributors. Thus, the pleaded truth, undisputed by the plaintiff, is that the State of West Virginia did not sue Mr. Ballengee or Tug Valley, but it did describe Tug Valley as "among the most notorious of the pill mill pharmacies in Southern West Virginia," and described in detail some of Tug Valley's concerning practices regarding the distribution of narcotics.
Based on the undisputed evidence, I conclude that no reasonable juror could find that the implication that the State of West Virginia was suing Mr. Ballengee or Tug Valley "would have a different effect on the mind of the reader from that which the pleaded truth would have produced." Masson, 501 U.S. at 517, 111 S.Ct. 2419; see also Walters v. City of Kenova, No. 17-0451, 2018 WL 2174129, at *4 (W. Va. May 11, 2018) (affirming trial court's grant of summary judgment on the basis that it was a minor inaccuracy for the defendant to publish that the plaintiff was arrested for unlawful possession of cocaine or crack cocaine when the plaintiff was arrested for unlawful possession of hydrocodone). Additionally, no reasonable juror could find that "the substance, the gist, the sting, of the" implication is not justified by the undisputed facts. See Masson, 501 U.S. at 517, 111 S.Ct. 2419. Therefore, the implication is "`substantially' true in overall effect," and thus insufficient to create falsity for purposes of the plaintiff's defamation claim. See Matter of Callaghan, 796 S.E.2d at 628.
As with Mr. Ballengee's defamation claim based on defamatory statements, falsity is a required element of his defamation-by-implication claim, and he bears the burden of proof on this element. Mr. Ballengee failed to offer any evidence from which a reasonable juror could find that the allegedly defamatory implication is false, rather than a minor inaccuracy. Because there is no genuine dispute of material fact regarding the falsity of the allegedly defamatory implication, summary judgment on this claim is proper. See Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548 ("Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."); see also Walters, 2018 WL 2174129, at *4 ("Having drawn any permissible inferences from the underlying facts in the light most favorable to petitioner, we concur with the circuit court's finding that petitioner's defamation claim fails as a matter of law because petitioner cannot establish the falsity element of his claim.").
The second alleged implication is that Mr. Ballengee was criminally charged or was currently (at the time of the broadcast) under investigation by the State of West Virginia or by federal authorities. Pl.'s Resp. 17-20. According to the plaintiff, this can be implied from the following portion of the January broadcast:
Jan. Tr. 4-5 (emphasis added).
The plaintiff points to the fact that the defendants describe the criminal charges against Mr. Wooley and then "[a]bruptly... show Tug Valley Pharmacy with the Plaintiff's name on the window, stating, `but Cagle told us the problem persists. This pharmacy, Tug Valley, is now being sued for negligently filling prescriptions.'" Pl.'s Resp. 18. According to the plaintiff, "a reasonable viewer could easily think that the problem referred to is the illegal actions of Mr. Wooley." Id. at 19. He also points to the fact that the defendants used the word "charges" when describing his civil lawsuits. Id. at 18.
The plaintiff's arguments are unpersuasive. "A defamatory implication must be present in the plain and natural meaning of the words used." Chapin, 993 F.2d at 1092. The broadcast must be "reasonably read to impart the false innuendo." Id. at 1093. The January broadcast discussed West Virginia's problems with opioid pain prescriptions. Jan. Tr. 3. Mr. Axelrod's opening remarks begin, "No state has had more trouble with prescription pain[] pills than West Virginia ...." Id. Mr. Axelrod then discusses the criminal charges filed against Mr. Wooley and then the civil lawsuits filed against Mr. Ballengee. Id. at 3-7. No reasonable juror could find that Mr. Axelrod's statement that "the problem persists" could be reasonably understood to refer to criminally charged pharmacists. When viewing the broadcast as a whole, the only rational interpretation of "the problem" for any reasonable trier of fact is that it refers to the State's problem with opioid pain prescriptions.
Additionally, when discussing Mr. Ballengee, Mr. Axelrod says, "Tug Valley, is now being sued. for negligently. filling prescriptions," and Mr. Ballengee is "named in a lawsuit. alleging substandard care." Id. at 4 (emphasis added). The plain and natural meaning of the words used is that Mr. Ballengee was named in a civil action. And, as the plaintiff himself admits, this is in fact true. See. Pl.'s Resp. 2 ("In 2010, 2011, and 2012, the Plaintiff and Tug Valley Pharmacy were named in multiple civil suits filed by former customers of Tug Valley Pharmacy alleging that the Plaintiff was negligently filling prescriptions.").
Therefore, no reasonable juror could find that the use of the word "charges" in this context could be reasonably understood to imply that Mr. Ballengee was facing criminal. charges. See Chapin, 993 F.2d at 1093. Moreover, given the numerous references to Mr. Ballengee's involvement in civil lawsuits, no reasonable juror could find that the language of the broadcast affirmatively suggests that CBS intended or endorsed the inference that Mr. Ballengee was criminally. charged. See id. Thus, Mr. Ballengee has failed to produce evidence from which a reasonable juror could find that the Chapin. elements are satisfied regarding the implication that he
The final alleged implication is that Mr. Ballengee "intentionally acted illegally, acted immorally, and/or contributed to the opioid epidemic for profit." Pl.'s Resp. 16-17. As an initial matter, it would not be defamatory for CBS to imply that Mr. Ballengee acted immorally. "A statement of opinion which does not contain a provably false assertion of fact is entitled to full constitutional protection." Pritt, 557 S.E.2d at 861. Whether someone acted immorally is a matter of opinion. Therefore, this alleged implication is not capable of a defamatory meaning, and cannot serve as the basis of a defamation claim.
Next, the court will assume without deciding that the CBS broadcasts contain the implication that Mr. Ballengee "contributed to the opioid epidemic for profit." However, the defendants have submitted numerous pieces of evidence to show that this implication is substantially true, and the plaintiff has not submitted any evidence to the contrary. For example, the defendants submitted evidence that Mr. Ballengee admitted that when he opened Tug Valley, he was aware that Mountain Medical and Dr. Shafer's office — two notorious pill mills — were within walking distance of his pharmacy. Defs.' Mot. Ex. 3, at 5-6. Mr. Ballengee was aware that patients frequently lined up outside of Mountain Medical before it opened to wait for prescriptions. Defs.' Mot. Ex. 2, at 6-7. Although Mr. Ballengee was aware of this problematic behavior, he never questioned the office's practices. Instead, he filled huge quantities of prescriptions for controlled substances coming from Mountain Medical, and many other offices, in a town with a population of 3090. Defs.' Mot. Ex. 6.
In 2008, Tug Valley filled 10,195 controlled substance prescriptions written by Dr. Shafer, and 11,111 controlled substance prescriptions written by doctors at Mountain Medical. Id. In 2009, Tug Valley filled 17,055 prescriptions for controlled substances written by Dr. Shafer, and 29,027 prescriptions for controlled substances written by doctors at Mountain Medical. Id. In 2009, Tug Valley filled 42,115 hydrocodone prescriptions. This averages to 162 prescriptions per business day, which was more than enough to give every man, woman, and child in Williamson a hydrocodone prescription every month of the year. Agencies eventually closed Mountain Medical and Dr. Shafer's offices for improper prescription practices. Defs.' Mot. Ex. 22, at 3; Defs.' Mot. Ex. 2, at 6; Tug Valley Pharmacy, LLC, 773 S.E.2d at 629. Dr. Shafer surrendered her license to practice medicine and was sentenced to six months in federal prison for her practices. Defs.' Mot. Ex. 22, at 3.
Sula Collins, who had her prescriptions filled at Tug Valley from Mountain Medical for approximately four years, Defs.' Mot. Ex. 15, at 3, described her experience at Tug Valley as such:
Defs.' Mot. Ex. 18, at 12. Another customer testified that he also saw drug deals occur right outside of Tug Valley, and that Tug Valley would fill narcotic prescriptions before the refill date, particularly if the customer paid in cash. Id. at 13.
Finally, Mr. Ballengee himself admits that his salary as a full-time pharmacist and pharmacy owner was $290,000.00 in 2015 before the broadcasts. Compl. ¶ 159.
Thus, I conclude that no reasonable juror could find that "the substance, the gist, the sting, of the" implication that Mr. Ballengee contributed to the opioid epidemic for profit is not justified by the undisputed facts. See Masson, 501 U.S. at 517, 111 S.Ct. 2419. Therefore, the implication is "`substantially' true in overall effect," and thus insufficient to create falsity for purposes of the plaintiff's defamation claim. See Matter of Callaghan, 796 S.E.2d at 628.
The only remaining issue is whether CBS implied that Mr. Ballengee intentionally acted illegally. Just as the court found that Mr. Ballengee has failed to produce evidence from which a reasonable juror could find that the Chapin. elements are satisfied regarding the implication that he was criminally charged or under investigation, the court similarly finds that there is no evidence from which a reasonable juror could find that the Chapin. elements are satisfied regarding the implication that he "intentionally acted illegally." Because no reasonable juror could find that the CBS broadcasts contained this implication, summary judgment is proper.
In summary, the plaintiff failed to offer more than a mere scintilla of evidence that any of the allegedly defamatory statement or implications were false, rather than minor inaccuracies. Falsity is a required element of the plaintiff's defamation claim (including defamation by implication), and he bears the burden of proof. Because he failed to establish that there is a genuine dispute of material fact as to this required element, summary judgment on the plaintiff's defamation claim is proper. See Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548 ("[T]here can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.").
Next, the defendants argue that they are entitled to summary judgment on the plaintiff's claim for false light invasion of privacy. In Count II of the Complaint, the plaintiff alleges that the CBS broadcasts portrayed him in a false light that would be highly offensive to a reasonable person. Compl. ¶¶ 192-93.
"[P]ublicity which unreasonably places another in a false light before the public is an actionable invasion of privacy." Crump, 320 S.E.2d at 86. "A plaintiff states a claim for false light invasion of privacy when he demonstrates publicity which places him in a false light before the public." Bell v. Nat'l Republican Cong. Comm., 187 F.Supp.2d 605, 617 (S.D. W. Va. 2002). "[C]ourts and commentators have consistently treated false light privacy claims in essentially the same manner as they have treated defamation." Crump, 320 S.E.2d at 87. This is because there are "a number of similarities between actions for false light invasion of privacy and actions for defamation." Id. Like in defamation claims, "the matter publicized as to the plaintiff must be untrue." Id.
As described in detail above, the plaintiff failed to provide any evidence from which a reasonable juror could find that the statements and implications in the
Next, the defendants argue that they are entitled to summary judgment on the plaintiff's claim for tortious interference with a contract or prospective business relationship. In Count III of the Complaint, the plaintiff alleges that the defendants tortiously interfered with various contracts and prospective business relationships, and as a result he suffered damages. Compl. ¶¶ 208-29.
Tiernan v. Charleston Area Med. Ctr., Inc., 203 W.Va. 135, 506 S.E.2d 578, 591-92 (1998) (quoting Torbett v. Wheeling Dollar Sav. & Tr. Co., 173 W.Va. 210, 314 S.E.2d 166, 167 (1983)).
The Restatement (Second) of Torts further provides, "Since interference with contractual relations is an intentional tort,... the injured party must show that the interference with his contractual relations was either desired by the actor or known by him to be a substantially certain result of his conduct." Restatement (Second) of Torts § 767, cmt. d; see also Torbett, 314 S.E.2d at 171-72 (citing § 767 and noting that the Supreme Court of Appeals of West Virginia has "relied upon the Restatement for guidance in outlining elements of and defenses to improper interference but, of course, [is] not tied to its categories and definitions"). Furthermore, "truthful information is an absolute bar to a claim of tortious interference `whether or not the information is requested.'" Tiernan, 506 S.E.2d at 593 (quoting Restatement (Second) of Torts § 772, cmt. b).
Mr. Ballengee identifies two contracts and one prospective business relationship with which he claims the defendants tortiously interfered. First, Mr. Ballengee claims that, due to the allegedly defamatory broadcasts, he was forced to breach and renegotiate a contract with his ex-wife concerning alimony and child support. Compl. ¶ 214. Mr. Ballengee does not provide any further details on how the broadcasts allegedly caused him to breach his contract with his ex-wife.
Regarding this first contract, Mr. Ballengee has produced no evidence from which a reasonable juror could find "that the interference with his contractual relations was either desired by the actor or known by him to be a substantially certain result of his conduct." Restatement (Second) of Torts § 767, cmt. d. In fact, there is no evidence to suggest that the defendants were even aware of Mr. Ballengee's
Second, Mr. Ballengee claims that the allegedly defamatory broadcasts caused McKesson to terminate its supply agreement with Tug Valley Pharmacy. Compl. ¶ 213. However, the affidavit of Mr. Boggs, Senior Director of Regulatory Affairs at McKesson, shows otherwise. In the affidavit, Mr. Boggs states that the January broadcast "alerted [him] that Tug Valley Pharmacy was a defendant in a lawsuit in Mingo County that alleged that Tug Valley Pharmacy contributed to the plaintiffs' addictions by dispensing high volumes of controlled substances." Boggs Aff. ¶ 12. This "prompted [Mr. Boggs] to initiate a review of Tug Valley Pharmacy." Id. ¶ 13. As part of this review, Mr. Boggs read the plaintiffs' brief in the customers' lawsuit against Tug Valley. Id. ¶ 14. From reading the brief, Mr. Boggs learned "that Tug Valley Pharmacy's owner, Samuel Ballengee, testified that he filled more than 150 prescriptions daily from one pain clinic alone." Id. "Based upon the totality of the facts and circumstances, [Mr. Boggs] determined that McKesson had a good-faith belief that continued shipments to Tug Valley Pharmacy put McKesson `in jeopardy of being noncompliant' with federal and/or state laws and regulations concerning the distribution of controlled substances." Id. ¶ 16. Thus, "[o]n January 8, 2016, McKesson determined to immediately terminate shipments of controlled substances to Tug Valley Pharmacy and notified Mr. Ballengee of the determination." Id. ¶ 17.
Mr. Boggs's affidavit shows that the only information he learned from the January broadcast was that "Tug Valley Pharmacy was a defendant in a lawsuit in Mingo County that alleged that Tug Valley Pharmacy contributed to the plaintiffs' addictions by dispensing high volumes of controlled substances." Id. ¶ 12. Any other information that may have influenced McKesson's decision to terminate its supply agreement with Tug Valley was learned through Mr. Boggs's independent review of the brief in the customers' lawsuits.
Mr. Ballengee does not dispute this evidence. In fact, Mr. Ballengee submitted additional evidence, in the form of deposition testimony from Mr. Boggs, that confirms his statements in the affidavit. See Notice of Filing & Mot. to Seal Dep. of Gary Boggs Ex. A, at 47:12-16 [ECF No. 216-1]. During his deposition in this case, Mr. Boggs confirmed that the decision to terminate Tug Valley's contract was based on his review of various court documents in the customers' lawsuit, not the broadcast: "I based my decision on going and reviewing the court documents and the respondent's briefs and it was information contained in the respondent's briefs that specifically led to my determination." Id.
Importantly, the single piece of information that Mr. Boggs attributes to the January broadcast — "that Tug Valley Pharmacy was a defendant in a lawsuit in Mingo County that alleged that Tug Valley Pharmacy contributed to the plaintiffs' addictions by dispensing high volumes of controlled substances" — is true, and Mr. Ballengee does not argue to the contrary. See Pl.'s Resp. 2 ("In 2010, 2011, and 2012, the Plaintiff and Tug Valley Pharmacy were named in multiple civil suits filed by former customers of Tug Valley Pharmacy alleging that the Plaintiff was negligently filling prescriptions."). "[T]ruthful information is an absolute bar to a claim of tortious interference `whether or not the information is requested.'" Tiernan, 506 S.E.2d at 593 (quoting Restatement (Second) of Torts § 772(a), cmt.
Finally, Mr. Ballengee claims that the defendants tortiously interfered with his prospective employment relationships after he lost his job at Tug Valley Pharmacy. Compl. ¶ 211. Specifically, Mr. Ballengee claims that, due to the defendants' allegedly defamatory broadcasts, he was unable to secure employment as a pharmacist with Wal-Mart, even though he had worked there for approximately fifteen years prior to opening Tug Valley. Pl.'s Resp. 36. Again, Mr. Ballengee has produced no evidence from which a reasonable juror could find "that the interference with his contractual relations was either desired by the actor or known by him to be a substantially certain result of his conduct." Restatement (Second) of Torts § 767, cmt. d. There is no evidence to suggest that, at the time of the allegedly defamatory broadcasts, the defendants were aware of Mr. Ballengee's anticipated employment with Wal-Mart. Therefore, Mr. Ballengee has offered no evidence that the defendants intentionally interfered with this prospective business relationship.
In summary, Mr. Ballengee has offered no evidence from which a reasonable juror could find a prima facie case of tortious interference with his divorce agreement with his ex-wife, his supply agreement with McKesson, or his anticipated employment with Wal-Mart. Accordingly, the defendants are entitled to judgment as a matter of law on Mr. Ballengee's tortious interference claim, and summary judgment is proper.
Finally, the defendants argue that they are entitled to summary judgment on the plaintiff's claim for intentional infliction of emotional distress ("IIED"). In Count IV of the Complaint, the plaintiff alleges that defendants "intentionally caus[ed] false information to be published about the Plaintiff," and that this "constitutes conduct that is atrocious, intolerable, and so extreme and outrageous as to exceed the bounds of decency." Compl. ¶ 231.
In West Virginia, the plaintiff must prove the following elements in order to recover for IIED:
Travis v. Alcon Labs., Inc., 202 W.Va. 369, 504 S.E.2d 419, 425 (1998).
"Whether conduct may reasonably be considered outrageous is a legal question, and whether conduct is in fact outrageous is a question for jury determination." Id. at 428. In order for conduct to be considered outrageous, it must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Harless v. First Nat'l Bank in Fairmont, 169 W.Va. 673, 289 S.E.2d 692, 705 (1982).
Here, the defendants thoroughly investigated the opioid epidemic in West
For the reasons stated herein, the Defendants' Motion for Summary Judgment [ECF No. 169] is GRANTED. The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. The court further DIRECTS the Clerk to post a copy of this published opinion on the court's website, www.wvsd.uscourts.gov.
