Ballengee v. CBS Broad., Inc.

• Decision Date: 03 August 2020
• Docket Number: No. 18-2078,18-2078
• Citation: 968 F.3d 344
• Parties: Samuel R. BALLENGEE, Plaintiff - Appellant, v. CBS BROADCASTING, INC.; CBS News, Inc.; Jim Axelrod; Ashley Velie; and Scott Pelley, Defendants - Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

968 F.3d 344

Samuel R. BALLENGEE, Plaintiff - Appellant,

v.CBS BROADCASTING, INC.; CBS News, Inc.; Jim Axelrod; Ashley Velie; and Scott Pelley, Defendants - Appellees.

No. 18-2078

United States Court of Appeals, Fourth Circuit.

Argued: January 29, 2020

Decided: August 3, 2020

ARGUED: James D. McQueen, Jr., MCQUEEN DAVIS, Huntington, West Virginia, for Appellant. Michael D. Sullivan, BALLARD SPAHR LLP, Washington, D.C., for Appellees. ON BRIEF: Christopher J. Heavens, HEAVENS LAW OFFICES, Charleston, West Virginia, for Appellant. Thomas V. Flaherty, Wesley P. Page, FLAHERTY SENSABAUGH BONASSO PLLC, Charleston, West Virginia; Jay Ward Brown, Maxwell S. Mishkin, BALLARD SPAHR LLP, Washington, D.C., for Appellees.

Before KEENAN, WYNN, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Rushing wrote the opinion, in which Judge Keenan and Judge Wynn joined.

RUSHING, Circuit Judge:

In 2016, CBS Evening News aired two reports on the opioid crisis in West Virginia that featured Samuel "Randy" Ballengee and his pharmacy. Ballengee sued, alleging among other things that the news reports were defamatory. The district court granted summary judgment in favor of the defendants on all claims. Ballengee now appeals the district court's ruling as to only two allegedly defamatory statements in the reports. Because we agree with the district court that there can be no material dispute of fact that those statements were substantially true, we affirm.

I.

A.

Randy Ballengee opened Tug Valley Pharmacy in Williamson, West Virginia in 2007. When he opened the pharmacy, Ballengee was aware that two pain management clinics were within a two-block radius: Mountain Medical Care Center (Mountain Medical) and Dr. Diane Shafer's office.

During the first few years it was open, Tug Valley Pharmacy filled a large number of prescriptions for controlled substances from Mountain Medical and Dr. Shafer's office. Many of those prescriptions were for pain medications—hydrocodone, oxycodone

, Endocet, Vicodin, Lorcet, and Lortab—all of which are considered opioids. In a "customer profile" Tug Valley Pharmacy completed for one of its drug distributors, it disclosed that 66% of all prescription drugs purchased at the pharmacy were controlled substances. By contrast, "in a typical retail pharmacy, controlled substances might amount to between five and twenty percent of the pharmacy's purchases." Southwood Pharm., Inc., 72 Fed. Reg. 36,487, 36,492 (Dep't of Just. July 3, 2007) (revocation of registration) (internal quotation marks omitted). In 2009 alone, Tug Valley Pharmacy filled 42,115 hydrocodone prescriptions, which averages to 162 hydrocodone prescriptions per business day. Many of those prescriptions for hydrocodone and other controlled substances were filled for patients of Dr. Shafer and Mountain Medical. For example, in 2008, Tug Valley Pharmacy filled 10,195 prescriptions for controlled substances from Dr. Shafer and 11,111 prescriptions for controlled substances from doctors at Mountain Medical. Similarly, in 2009, Tug Valley Pharmacy filled 17,055 prescriptions for controlled substances from Dr. Shafer and 29,027 prescriptions for controlled substances from Mountain Medical. By comparison, Tug Valley Pharmacy filled a total of 65,532 prescriptions for controlled substances from all providers in 2009. On seven occasions from 2008 to 2009, Tug Valley Pharmacy filled more than 150 prescriptions for pain medication from Mountain Medical alone in a single day.

In 2009, Dr. Shafer came under investigation for improperly distributing controlled substances. She ultimately surrendered her license to practice medicine, pleaded guilty to conspiring to misuse a Drug Enforcement Administration (DEA) registration number, and was sentenced to six months in federal prison. After a law enforcement raid in 2010, Mountain Medical also was closed for improperly prescribing controlled substances.

From 2010 to 2012, former customers of Tug Valley Pharmacy filed several lawsuits against the pharmacy and Ballengee. See Compl., Collins v. Tug Valley Pharmacy, LLC , No. 10-C-251 (W. Va. Cir. Ct. Mingo Cnty. Aug. 24, 2010); Compl., Salmons v. Shafer , No. 11-C-332 (W. Va. Cir. Ct. Mingo Cnty. June 17, 2011); Compl., Collins v. Tug Valley Pharmacy, LLC , No. 12-C-38 (W. Va. Cir. Ct. Mingo Cnty. Feb. 21, 2012). The lawsuits alleged that Ballengee and Tug Valley Pharmacy negligently or recklessly filled prescriptions for controlled substances and contributed to the customers’ addictions. As part of these civil suits, one customer testified that he saw drug deals occur right outside of Tug Valley Pharmacy and that the pharmacy would fill narcotic prescriptions before their refill date, particularly if the customer paid in cash. Another customer testified that the pharmacy was crowded whenever she arrived to pick up a prescription, with some customers "slumped over" and "totally out of their mind," and other customers completing drug deals right outside. J.A. 1198. The customers also alleged that one doctor from Mountain Medical, Dr. Ryckman, "was not at [Mountain Medical] in Williamson except for one time after 2005 although his name and DEA number were continuously used for prescriptions for narcotics which [Tug Valley Pharmacy and others] continuously filled." J.A. 399.

Ballengee was deposed in connection with one of these lawsuits. During the deposition, Ballengee admitted that he filled prescriptions written by Dr. Ryckman even though he never once saw him in person or spoke with him. Ballengee also confirmed, more generally, that he filled high numbers of pain prescriptions from Mountain Medical, testifying as follows:

Q: What would be in the ballpark when Dr. Hoover and [Mountain Medical] were in their prime, so-to-speak, how many prescriptions would you say you fill a day from there?

A: It would be an estimate, maybe 150 to 200.

...

Q: Those would be if not 100 percent controlled substances, certainly a large part of that 150 would be for a controlled substances, wouldn't it?

A: Most of their patients got more than just pain medication and nerve medication.

Q. I understand, but virtually, everyone of them got some pain medication, didn't they?

A. Most of them did.

J.A. 252–255. These civil suits remain pending.

In 2012, the State of West Virginia sued eleven pharmaceutical drug distributors for contributing to the prescription drug abuse problem in West Virginia. Compl., West Virginia v. AmerisourceBergen Drug Corp. , No. 12-C-141 (W. Va. Cir. Ct. Boone Cnty. June 26, 2012) ; Second Am. Compl., AmerisourceBergen , No. 12-C-141. The State did not name any pharmacies as defendants, but the complaint discussed several pharmacies’ practices. The State described Tug Valley Pharmacy, along with two other pharmacies in Williamson, as "among the most notorious of the pill mill pharmacies in Southern West Virginia." Second Am. Compl. at 31, AmerisourceBergen , No. 12-C-141. Elsewhere the complaint described Tug Valley Pharmacy as a "pill mill pharmacy ... located within yards of two notorious pill mill physicians," whose "voluminous illegal prescriptions written for non-medical purposes were filled daily by this pharmacy." Id. at 15. The State further alleged that one distributor should have been alarmed by the "volume of oxycodone and hydrocodone pills distributed to Tug Valley Pharmacy" given, among other things, the town's small population and the pharmacy's proximity to "pill-pushing physicians whose reputations were both well-known and the subject of extensive publicity." Id. at 36–37.

In January 2016, CBS Evening News began a series on the opioid crisis in West Virginia. The second report in the series aired on January 7. Host Scott Pelley opened the segment by noting that West Virginia was "suing, accusing pharmacies and drug distributors of making millions pushing narcotics to anyone who wants them." J.A. 510. The segment included an interview with attorney James Cagle, who represents the State in the lawsuit against the distributors. In the interview, CBS correspondent Jim Axelrod discussed one pharmacist who lost his license and spent time in prison "for illegally dispensing drugs." J.A. 511. Axelrod then described Tug Valley Pharmacy, stating:

But Cagle told us the problem persists. This pharmacy, Tug Valley, is now being sued for negligently filling prescriptions. Records show Tug Valley was filling more than 150 pain prescriptions a day from one clinic alone.

...

We decided to ask owner Randy Ballengee about the charges.

J.A. 511. The report then showed Ballengee declining to be interviewed.

Following the January 7 broadcast, one of Tug Valley Pharmacy's distributors, McKesson, terminated its supply agreement with the pharmacy. After McKesson terminated the contract, Ballengee was unable to find a distributor to sell him controlled substances. In March 2016, Ballengee sold Tug Valley Pharmacy.

On May 25, 2016, CBS broadcast the fourth report in its series on the opioid crisis. J.A. 608–614. In that report, Jim Axelrod stated:

West Virginia is suing McKesson. ... The suit alleges that while West Virginia was drowning in painkillers, McKesson continued to incentivize sales with bonuses for the sale of oxycodone and hydrocodone.

Last winter we traveled to this small Appalachian town where we found Tug Valley Pharmacy, which until January was supplied by McKesson.

...

We discovered that pharmacist Randy Ballengee is facing several lawsuits for negligence, admitting to filling 150 pain pill prescriptions daily for one clinic alone.

J.A. 611–612. The report then showed the same footage of Ballengee declining to be interviewed. Axelrod then stated that "McKesson terminated its contract with Tug Valley, but only after learning about the charges from our CBS News investigation, raising the question: why hadn't the company discovered that on its own?" J.A. 612.

Since the CBS Evening News series, the opioid crisis in West Virginia has also captured the attention of Congress. A report...