                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         APR 5 2002
                           FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    MARY WILEY,

              Plaintiff - Appellant,

    v.                                                 No. 01-6062
                                                (D.C. No. 99-CV-1644-ML)
    OHIO/OKLAHOMA HEARST-                           (W.D. Oklahoma)
    ARGYLE TELEVISION, INC., doing
    business as KOCO-TV, a Nevada
    corporation,

              Defendant - Appellee,

    and

    AMERICAN RED CROSS,

              Defendant.


                           ORDER AND JUDGMENT           *




Before TACHA , Chief Judge, SEYMOUR , Circuit Judge, and        BRORBY , Senior
Circuit Judge.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      In this diversity case, plaintiff Mary Wiley appeals the district court’s grant

of summary judgment in favor of defendant Ohio/Oklahoma Hearst-Argyle

Television, Inc. on her defamation claim. Because plaintiff failed to raise a

genuine issue of fact as to whether defendant breached its duty of care, we affirm.

      After tornadoes ripped through central Oklahoma on May 3, 1999, the

American Red Cross and other agencies immediately set up relief centers,

including two in Del City, Oklahoma. On May 4, plaintiff volunteered to work at

the Del City High School relief center. According to police reports, she was

asked to leave after witnesses saw her taking donated items without permission.

      On May 5, plaintiff went to a second relief shelter where she told witnesses

that she had donations which she would deliver to the back of the shelter.

According to police reports, however, when plaintiff drove her car to the back of

the shelter, she informed volunteers that she had received permission from

someone up front to take relief supplies for her family. Red Cross volunteers

helped plaintiff gather food, clothing, boots, and bedding, which they loaded into

her car. When the assistant manager observed this, she had a security guard take


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down plaintiff’s license plate as she drove off, and police were notified. The

Oklahoma Attorney General’s fraud control unit subsequently notified guards to

be on the lookout for plaintiff, who was accused of taking items from the relief

center without permission. When plaintiff returned to the relief shelter the next

afternoon, she was approached by a security guard, who requested her

identification and then notified the police. The police gave plaintiff Miranda

warnings, questioned her, took her photograph, seized her Red Cross name tag,

and released her.

      Over the next few days, police and/or the Attorney General’s fraud unit

took statements from Red Cross volunteers and employees, and Police Detective

Magni prepared a file for presentation to the district attorney’s office. The

detective also prepared a report for the district attorney’s office which listed

under the category of “charges” that plaintiff was accused of obtaining property

by false pretenses in violation of Okla. Stat. tit. 5, § 21-1542. See Aplee. App.

at 161.

      On May 12, Randy McIlwain, a reporter from defendant’s Oklahoma City

television station, KOCO-TV, spoke with Detective Magni about plaintiff’s case

and reviewed the case file. He reported the information to KOCO-TV’s producer,

who drafted several news scripts. That evening, the station broadcast a trailer

which stated “Another possible scam after the storm. Tonight a metro woman is


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accused of being a relief thief. Pretending to be a Red Cross volunteer, while

taking off with donations for tornado victims. It’s a story you’ll see only on

Five.” Aplt. App., Ex. D. Later that night, the station displayed a picture of

plaintiff with the word “THIEF” across the top, and reported the following:

      Charges are pending tonight against 69 year old Mary Wiley of
      Oklahoma City. The theft happened at this temporary Red Cross
      shelter in Del City. Police say Wiley took a load of items intended
      for tornado victims. She was wearing a Red Cross name tag. The
      District Attorney has accepted the police report and plans to file
      charges.

Id. Substantially the same information was reported the next morning, although

that report also included an incorrect statement that police were looking for

plaintiff. See id. at Ex. E. Plaintiff was never formally charged by the District

Attorney.

      Plaintiff filed suit in state court against the American Red Cross and

defendant. After removal to federal court, plaintiff dismissed her claims against

the American Red Cross, and filed an amended complaint against defendant,

alleging defamation. Defendant’s disclosed witnesses included a journalism

professor who intended to testify that the television station complied with the

standard of care ordinarily exercised by members of the news media. In contrast,

plaintiff’s disclosure failed to identify any witness who would testify regarding

the standard of care. Defendant filed for summary judgment asserting the

evidence was undisputed that it exercised due care, and that plaintiff could not

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show a breach of care. The district court granted summary judgment, and

plaintiff appeals.

      We review a grant of summary judgment de novo, applying the same

standards as those applied by the district court. Robbins v. Jefferson County Sch.

Dist. R-1 , 186 F.3d 1253, 1258 (10th Cir. 1999)   . Summary judgment is

appropriate when a record demonstrates that “there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c).

      Plaintiff argues that the district court erred in granting summary judgment

because defendant’s negligence could be determined by a layperson and did not

require testimony from an expert. Her entire argument in this regard is that “[i]f

a news station broadcasts falsehoods or lies that are not based on the information

gathered, an ordinary layman can make that determination.” Aplt. Br. at 12.

No cases are cited to support her position.

      Plaintiff’s argument has several flaws. First, she relies completely on

proffered supplemental material which we decline to consider for the first time on

appeal. 1 Second, despite the Oklahoma Supreme Court’s holding that media


1
      Plaintiff has moved to supplement the record with excerpts of deposition
testimony by Del City Police Detective Magni and reporter McIlwain which were
not before the district court. We deny this motion. When reviewing a grant of
summary judgment, we consider only the record that was before the district court
                                                                    (continued...)

                                           -5-
negligence is to be determined under a professional negligence standard which

should ordinarily be proven by an expert, see Malson v. Palmer Broadcasting

Group, 936 P.2d 940, 942 (Okla. 1997), plaintiff failed to present any evidence to

the district court regarding the standard of care. In the face of defendant’s

affidavit evidence that it complied with the standard of care, plaintiff could not

simply rest on her argument that the broadcast of incorrect information inherently

demonstrates negligence. See Anderson v. Liberty Lobby, Inc.    , 477 U.S. 242, 256

(1986) (when moving party submits properly supported summary judgment

motion, nonmoving party must produce affirmative evidence to demonstrate

genuine issue of fact, and may not rely simply on denials or allegations in

pleadings).

      We AFFIRM the judgment of the district court.


                                                     Entered for the Court


                                                     Stephanie K. Seymour
                                                     Circuit Judge


1
 (...continued)
when the decision was made. John Hancock Mut. Life Ins. Co. v. Weisman, 27
F.3d 500, 506 (10th Cir. 1994). Although plaintiff argues we should consider the
new testimony because the depositions were taken after defendant’s summary
judgment motion was filed, she has not shown why the depositions were not taken
earlier, or why, after learning of the testimony, she did not immediately
supplement her pending summary judgment response with a motion and affidavit
pursuant to Fed. R. Civ. P. 56(f).

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