WCHS parent wants daycare case moved to federal court

HUNTINGTON – Sinclair Media III has requested a federal court dismiss a case in which a Huntington woman claimed WCHS-TV8 falsely accused her of abusing a child in her daycare business.

Sinclair, which owns WCHS, denies Kim Tomblin's claims that the station broadcast a story on July 17 that shed false light on Kim's Kids Child Care Facility, the daycare Tomblin owns.

During the story, reporter Elizabeth Noreika stated, "A mother says she's taken her child out Kim's Kids Child Care in Barboursville because she says her son was sexually abused…A woman says, this daycare in Barboursville abused her trust and her child…She alleges her son was sexually abused while at Kim's Kids Child Care…She also says the daycare's workers…engage in other inappropriate behavior," the suit filed Oct. 14 in Cabell Circuit Court states.

WCHS anchor Rick Lord also said, "Serious allegations of abuse and neglect have the state keeping a closer eye on one Barboursville daycare," the suit states.

During the broadcast, the station showed clips of Tomblin standing in front of her daycare and of the report and anchors used certain words such as "smoking," Tomblin claims.

Sinclair argues all statements in its story were true and were constitutionally protected statements of opinion.

"Statements broadcast by Sinclair were not broadcast with knowledge of falsity or reckless disregard for the truth; rather, all statements were broadcast in good faith, for a proper purpose, without malice of any type, and, as such, are privileged," Sinclair's answer to the complaint states.

In addition, the statements throughout the story are protected speech, according to Sinclair's answer.

However, Tomblin alleges that throughout the broadcast, she or daycare workers are depicted as the ones who abused the child.

But Tomblin insists the abuse was done by a child at the center, not one of its workers.

The West Virginia Department of Health and Human Resources investigated the incident and issued a detailed report on June 10, according to the complaint.

"The sole allegation listed in that report was the following: 'A boy at KIMS KIDS DAY CARE touched (child's name) inappropriately by sticking his finger in his rectum and grabbing his genitals," the suit states.

After the incident, Tomblin claims she received a letter on July 1 stating her child care license had expired and would not be renewed.

Tomblin appealed the decision July 8 and was allowed to continue operating pending the appellate process, according to the complaint.

After seeing the broadcast, Tomblin's husband, Bill, called the station to clear his wife's name and her business's reputation, but Tomblin has not received an apology, the suit states.

In its answer, Sinclair claims it owed no apology to Tomblin.

"Sinclair denies that a 'prompt, prominent and abject apology' is required at this time," the answer states.

In addition, Tomblin claims the station has not issued a retraction of its statements.

Because of the broadcast, Tomblin claims she has suffered substantial damage to her reputation, mental suffering, annoyance, emotional distress and other pecuniary damages.

She also claims to have lost clients from her daycare, which has resulted in a loss of monthly income.

"The broadcast published by the Defendant on July 17, 2008 about the Plaintiff's business are defamatory in that they harmed its reputation, lowered it in the estimation of the community, deterred people from associating or dealing with her, and reflected shame, contumely, and disgrace upon the Plaintiff," the suit states.

But the station claims any harm done to Tomblin's business was her fault, not theirs.

"Plaintiff's harm and/or injury, if any, was not caused in whole or in part by the statements broadcast by Sinclair, but was caused by Plaintiff's own actions or inactions, or the actions or inactions of parties for whom Sinclair is not responsible," the answer states.

Tomblin is seeking unspecified compensatory and punitive damages, plus interest, costs, attorney's fees, punitive damages and other relief the court deems just.

Sinclair removed the case to federal court because Tomblin is seeking more than $75,000 and because the case implicates First Amendment issues, which should be placed under federal jurisdiction.

Because Tomblin does not state a claim against Sinclair, it claims the case should be dismissed.

All of Tomblin's claims fail because she cannot prove Sinclair failed to act reasonably and cannot prove the company acted with actual malice, according to the answer.

Jay C. Love of Huntington is representing Tomblin.

James D. McQueen, Jr., of Frost Brown Todd in Charleston will be representing Sinclair Media.

U.S. District Court case number: 3:08-CV-1294