Pain clinic not defamed by minor errors in CBS broadcasts

Minor inaccuracies in two CBS Evening News reports about a West Virginia pharmacy and its role in the opioid crisis did not support a claim for defamation because the broadcast likely had the same effect on the viewer as the actual truth.

Background

In 2016, CBS Evening News aired two reports on the opioid crisis in West Virginia that featured Samuel Ballengee and his pharmacy. Ballengee sued, alleging among other things that the news reports were defamatory. The district court granted summary judgment in favor of the defendants on all claims.

Ballengee now appeals the district court’s ruling as to only two allegedly defamatory statements in the reports. The two statements of which Ballengee complains are: (1) “Records show Tug Valley was filling more than 150 pain prescriptions a day from one clinic alone” and (2) Ballengee “admit[ed] to filling 150 pain pill prescriptions daily for one clinic alone.”

Analysis

As an initial matter, Ballengee is correct that he did not literally state in his deposition that he was filling 150 pain prescriptions daily for one clinic alone. Rather, he testified that he filled “maybe 150 to 200” prescriptions per day from Mountain Medical, a pain management clinic, and that “most of” its patients “got some pain medication.”

The court agrees with the district court that no reasonable juror could find that the broadcast statement “‘would have a different effect on the mind of the [viewer] from that which the pleaded truth would have produced.’” The substance, gist or sting of the broadcast statement was that Ballengee had admitted to filling a high volume of pain prescriptions daily, even from just one clinic. Ballengee’s deposition testimony would have produced a similar effect on the viewer as the broadcast statement. That is, the broadcast statement was “‘substantially’ true in overall effect,” and therefore insufficient to establish falsity.

Turning to the other statement, the pleaded truth, undisputed by Ballengee, is that on seven occasions from 2008 to 2009, Tug Valley Pharmacy filled more than 150 pain prescriptions in a single day from one clinic; Tug Valley Pharmacy filled more than 160 hydrocodone prescriptions per day on average in 2009; a majority of those pain prescriptions came from only two clinics and Ballengee had admitted in his deposition to filling a high volume of pain prescriptions from Mountain Medical per day.

The broadcast statement was “‘substantially’ true in overall effect” and the sting of the statement—that Tug Valley Pharmacy was filling a suspiciously high number of pain prescriptions, including prescriptions from a single clinic—was justified by the facts. Because Ballengee failed to offer evidence from which a reasonable juror could find that the allegedly defamatory statements in the CBS reports were false, rather than minor inaccuracies, and he bears the burden of proof on this element of his defamation and false light invasion of privacy claims, summary judgment on both claims was appropriate.

Ballengee attempts to raise for the first time on appeal two new implications of the news reports: (1) that he was filling high numbers of pain prescriptions in 2016 at the time the broadcasts aired and (2) a “guilt by association relationship” between Tug Valley Pharmacy and McKesson. “[I]ssues raised for the first time on appeal generally will not be considered,” absent “very limited circumstances, such as where refusal to consider the newly raised issue would be plain error or would result in a fundamental miscarriage of justice.”

Ballengee does not argue that any exception to the general rule applies here. He specifically identified only three allegedly defamatory implications for the district court, and his failure to provide the district court with an opportunity to consider these two additional implications forecloses his ability to raise them now.

Affirmed.

Ballengee v. CBS Broadcasting Inc., Appeal No. 18-2078, August 3, 2020. 4th Cir. (Rushing), from SDWVA at Charleston (Goodwin). James D. McQueen Jr. for Appellant. Michael D. Sullivan for Appellees. VLW 020-2-212. 14 pp.