Mark v. Fisher's Blend Station, KOMO-TV

• Decision Date: 29 September 1980
• Docket Number: No. 7779-1-I,KOMO-TV,7779-1-I
• Citation: 621 P.2d 159,27 Wn.App. 916
• Parties: Albert MARK, Appellant, v. FISHER'S BLEND STATION, a Washington Corporation, d/b/aChannel 4, Respondent.
• Court: Washington Court of Appeals

Page 916

27 Wn.App. 916

621 P.2d 159

Albert MARK, Appellant, v. FISHER'S BLEND STATION, a Washington Corporation, d/b/a KOMO-TV Channel 4, Respondent.

No. 7779-1-I.

Court of Appeals of Washington, Division 1.

Sept. 29, 1980.

Albert Mark, pro se.

Snyder & Middleton, Thomas Middleton, Seattle, for appellant.

William, Lanza, Kastner & Gibb, Joseph Lanza, Seattle, for respondent.

RINGOLD, Judge.

Albert Mark appeals the entry of summary judgment in favor of defendant, Fisher's Blend Station, Inc., in his action for negligent defamation.

On December 30, 1976, KOMO-TV, operated by Fisher's Blend Station, Inc., broadcast several reports about the filing of multiple counts of grand larceny, forgery and tampering with evidence in a Medicaid fraud case against the operator of two west Seattle pharmacies, Albert Mark. On May 19, 1977, KOMO-TV broadcast a report about complaints by defense counsel that the prosecutor was denying Mark a fair trial by overpublicizing the case. On May 27, 1977, KOMO-TV broadcast a report about the progress of the trial. A broadcast on June 7, 1977, concerned the jury's return of guilty verdicts on one count of grand larceny and five counts of first degree forgery. On September 23, 1977, KOMO-TV broadcast two reports about Marks' sentencing.

Mark subsequently brought an action for defamation based on statements made in all of these broadcasts except the one on June 7, 1977. In essence, he alleged that KOMO-TV grossly exaggerated the amount of money involved, distorted the alleged means of committing the offenses, accused him of a motive for cheating the State and accused him of destroying evidence. Marks' complaint and amended complaint alleged negligent defamation and did not allege malice.

Mark first alleges defamation in the statement of December 30, 1976, that the prosecutor's office called this "the largest case of Medicaide (sic) fraud by a pharmacy in memory." He also alleges defamation in the re-publication of this statement in the May 19, 1977 broadcast which stated that "Seattle TV stations called it the biggest Medicaide (sic) fraud case in memory involving drugs." This statement has its origin in a comment made by the chief of the prosecutor's fraud division, who was filmed making this statement in a telecast on December 30 by KOMO-TV. Mark submitted evidence of the possible falsity of this claim in the form of a Seattle Times report of a similar case in Chicago involving millions of dollars. The date of the article was September 26, 1976.

Mark next alleges defamation in the broadcast of December 30 which reported figures of $300,000 and $350,000 as the amount of false claims for Medicaid prescriptions. He alleges the republication of this statement on May 19 in a broadcast which reported that "earlier stories had indicated that Mark may have cheated the State out of $200,000 in fraudulent billings." He also alleges defamation in another portion of the December 30 broadcast which reported that the chief prosecutor in the fraud division had filed an affidavit stating that Mark had made about $100,000 in phony claims in each of 3 years. One source of the dollar figures was the affidavit of probable cause filed with the criminal information and given to the media by the prosecutor's office. There was a factual error in the broadcast. The court documents reflect that the dollar figure was "over $200,000 in fraud billing for the 22/3 years" (not $300,000, $350,000 nor $100,000 per year).

Mark next alleges defamation in the December 30 broadcast that "investigators say that sixty five per cent (65%) of the medicaid (sic) prescriptions billed to the state in an audit sample were invalid." The affidavit of probable cause reflects a 63 percent invalid figure. It also mentions the need to verify the invalidity rate by using a larger sample. KOMO-TV reported that there were efforts to verify the survey.

Mark next alleges defamation in the December 30 broadcast that investigators learned the records were missing when they returned to the pharmacy to verify their survey. This information is found in the prosecutor's affidavit of probable cause.

Mark next alleges defamation in the December 30 broadcast that the chief prosecutor in the fraud division filed an affidavit stating that Mark forged prescriptions for nonexistent patients and added drugs to valid prescriptions. The affidavit of probable cause includes statements by the chief prosecutor in the fraud...