                             UNPUBLISHED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Vacated and remanded by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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.




                                        46
                            IV.

     For the reasons set forth, I would affirm the judgment of

the district court.




                              47
