CHARLESTON — A federal judge ordered a lawsuit against CBS Broadcasting alleging defamation of a Mingo County pharmacist to be dismissed.
U.S. District Judge Joseph Goodwin filed the judgment order, dismissing the case and having it stricken from the docket.
Goodwin stated in his memorandum opinion and order that CBS investigated the opioid epidemic in West Virginia and aired four broadcasts reporting on their findings. Two of these broadcasts mentioned the plaintiff, Samuel R. Ballengee.
"These broadcasts were not only tolerable—they were applaudable," Goodwin wrote. "The people of West Virginia, indeed those all over the country, deserve to know about the evolution of the opioid epidemic and the identities of the bad actors."
Goodwin noted that while Ballengee would have preferred to not be used as an example, CBS and the rest of the defendants did not engage in conduct that was “atrocious, intolerable, and so extreme and outrageous as to exceed the bounds of decency," according to the memorandum opinion and order.
“We are pleased with the court’s decision and its recognition that our news reports were 'thoroughly investigated' and our reporting 'applaudable,'" a CBS spokesperson said in a statement provided to The West Virginia Record.
Ballengee opened Tug Valley Pharmacy in 2007 within two blocks of two pill mills that were inevitably shut down by the government. In 2009 alone, the pharmacy filled 42,115 hydrocodone prescriptions in a town with a population of 3,090, according to the court documents.
Several customers also sued Ballengee between 2010 and 2012 for negligently filling prescriptions. They alleged Ballengee contributed to their drug addictions and one customer even died of an overdose.
"Several customers alleged that they saw drug deals occur right outside of Tug Valley," the order states. "Customers also alleged that Mr. Ballengee would fill opioid prescriptions before their refill date, particularly if they paid in cash. The State of West Virginia has described Tug Valley as one of 'the most notorious of the pill mill pharmacies in Southern West Virginia.'"
The judge noted that Ballengee was aware when he opened his pharmacy that it was between two notorious pill mills.
In 2017, Ballengee filed his lawsuit against CBS Corporation, CBS Broadcasting, CBS News, Jim Axelrod, Ashley Velie and Scott Pelley.
He claimed he opened his pharmacy in Williamson, where he and his pharmacy were well respected in the community.
Ballengee claimed in 2010, 2011 and 2012, he and Tug Valley were among a number of doctors and pharmacies in the area who were named in multiple civil suits filed by customers and/or patients and Ballengee maintained his business and reputation during the lawsuits, suffering little or no long-term economic loss.
Tug Valley was also voted Best Pharmacy in the Mingo/Logan area by residents in 2007, 2008 and 2011, according to the suit.
Ballengee claimed in September 2015, he and McKesson Corporation entered into a supply agreement for the supply of controlled and non-controlled pharmaceutical drugs to the pharmacy and, prior to the execution of the supply agreement, Ballengee and a compliance officer from McKesson spoke concerning his control orders, past history and requested a copy of his past dispensing reports, which he provided.
On Jan. 7, 2016, a news story was broadcast across the United States on a CBS Evening News television program, according to the suit. When you access the article online, Ballengee’s image appears as the first freeze screen, along with the title, “Drug Distributors Under Fire In West Virginia Pail Killer Epidemic.”
Ballengee claimed the defendants made and published statements that falsely implied that he had in the past and was in the present intentionally and illegally dispensing prescriptions while making millions of dollars in profit.
The defendants also implied that Ballengee was making millions of dollars in profit through criminal acts and implied that he was being criminally charged for intentionally, negligently or illegally dispensing prescriptions while making millions of dollars in profit through criminal acts, according to the suit.
Ballengee claimed after the CBS report, McKesson ended its relationship with him.
The plaintiff’s reputation in the professional pharmacy community was ruined, destroyed and devalued as a direct consequence of the CBS news story, according to the suit.
Ballengee claimed his total prescriptions filled dropped from 9,258 to 7,536 in the month after the news story. His total dropped again to 6,410 in February 2016.
After the news story, Ballengee claimed he was unable to find distributors to sell him non-controlled pharmaceutical drugs and was unable to refill his pharmaceutical drug supply with a long-term supplier and was rapidly losing customers who did not want to go to two different pharmacies to fill prescriptions, according to the suit.
Ballengee claimed he was faced with the prospect of terminating his employees and ruining a local business he had built from the ground up, or to sell the pharmacy, which he elected to do.
Ballengee was seeking compensatory damages in the amount of $5 million and punitive damages in the amount of $10 million.
Ballengee was represented by James D. McQueen Jr. and Anthony E. Nortz of McQueen Davis; and Christopher J. Heavens of Heavens Law Firm.
The defendants were represented by Jay Ward Brown, Maxwell S. Mishkin and Michael D. Sullivan of Ballard Spahr; Tom Flaherty and Wesley P. Page of Flaherty Sensabaugh & Bonasso; and Justin Dale Pritt of the Law Office of Justin D. Pritt.
U.S. District Court for the Southern District of West Virginia case number: 2:17-cv-00212
