West Virginia Record

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WCHS TV settles defamation suit with daycare provider

By Lawrence Smith | Apr 19, 2012

HUNTINGTON – A Charleston television station has settled a lawsuit with a Cabell County woman who alleged she was defamed by a segment that accused her of facilitating child abuse at her day care center.

U.S. District Judge Robert C. "Chuck" Chambers on Feb. 13 entered an order dismissing Kim Tomblin's suit against WCHS-TV8. The terms of the settlement were not disclosed in Chamber's order.

When contacted, WCHS' local attorney, Jared M. Tully, said he could not disclose the terms due to a confidentiality agreement. During the suit, James D. McQueen Jr. with McQueen Davis in Huntington along Richard M. Goehler Jr. and Patricia M. Foster with Frost Brown Todd's Cincinnati, Ohio, office served as co-counsel.

The suit stemmed from a segment WCHS aired on its July 17, 2008, broadcast regarding an investigation by the state Department of Health and Human Resources into Kim's Kids, a day care center operated by Tomblin in Barboursville. The investigation was prompted by a complaint by made by a parent alleging a boy stuck a finger into her son's rectum and grabbed his genitals.

After the incident, Tomblin claims she received a letter from DHHR on July 1 stating her child care license had expired, and would not be renewed. However, a week later she appealed the decision, and was allowed to continue operating pending the appellate process
Currently, Kim's Kids is still in operation.

In her suit originally filed in Cabell Circuit Court on Oct. 14, 2008, Tomblin alleged the segment depicted either she or her employees as the ones who allegedly abused the child. After the segment aired, Tomblin's husband, Bill, called WCHS to get a clarification, and an apology, all to no avail.

"The broadcast published by [WCHS] on July 17, 2008 about [Tomblin'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 [her]," Tomblin said in her suit. It was transferred to U.S. District court a month later.

In its defense, WCHS said the segment was based largely on information it obtained from DHHR. Also, the segment received approval from DHHR spokesman John Law who was allowed to preview it before it aired.

On Jan. 21, 2010, Chambers granted WCHS' motion for summary judgment. In his ruling, Chambers said the "WCHS news team presented as balanced a perspective as was required on the available information."

"As a fair and accurate representation of the mother's allegations and opinions, the day care's response and the results of the DHHR investigation, the WCHS news broadcast is not capable of carrying a defamatory meaning," Chambers wrote. "They did nothing throughout the broadcast to insert their own opinions or endorse those of any subject in the story."

However, last May the Fourth U.S. Circuit Court of Appeals in Richmond disagreed. In a 47-page unpublished opinion, Judge Paul V. Niemyer wrote because the segment alluded to adult-on-child abuse and not child-on-child abuse, Tomblin had a valid claim for defamation.

"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," Niemeyer wrote.

"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."

Two months after the Fourth Circuit vacated his decision, and remanded the case back to him, Chambers tentatively scheduled it for trial on Jan. 15, 2013. Included in his scheduling order was a Nov. 26 settlement conference.

The sides announced they reached a settlement on Feb. 11. Tomblin was represented by Huntington attorney Jay C. Love.

WCHS and its affiliate station, WVAH-FOX 11, are owned by the Hunt Valley, Md.-based Sinclair Broadcasting Group, Inc.

U.S. District Court for the Southern District of West Virginia case number 08-cv-1294

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