Mitchell v. Griffin Television, LLC

• Decision Date: 06 September 2002
• Docket Number: No. 96,640.,96,640.
• Citation: 2002 OK CIV APP 115,60 P.3d 1058
• Parties: H.L. MITCHELL, Plaintiff/Appellee, v. GRIFFIN TELEVISION, L.L.C., an Oklahoma corporation, and Chris Halsne, an individual, Defendants/Appellants.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

60 P.3d 1058

2002 OK CIV APP 115

H.L. MITCHELL, Plaintiff/Appellee, v. GRIFFIN TELEVISION, L.L.C., an Oklahoma corporation, and Chris Halsne, an individual, Defendants/Appellants.

No. 96,640.

Court of Civil Appeals of Oklahoma, Division No. 3.

September 6, 2002.

Certiorari Denied November 25, 2002.

Douglas E. Stall, David Von Hartitzsch, Latham, Stall, Wagner, Steele, & Lehman, Tulsa, OK, Clyde A. Muchmore, Mary Hirth Tolbert, Crowe & Dunlevy, Oklahoma City, OK, for Plaintiff/Appellee.

Robert D. Nelon, Jon Epstein, Susanna G. Voegeli, Hall, Estill, Hardwick, Gable, Golden & Nelson, Oklahoma City, OK, for Defendants/Appellants.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3. Opinion by CAROL M. HANSEN, Presiding Judge:

¶ 1 Defendant/Appellants, Griffin Television, L.L.C. (Griffin) and Chris Halsne (collectively KWTV), seek review of the trial court's judgment based on a jury verdict in favor of Plaintiff/Appellee, H.L. Mitchell. We affirm as to the finding of liability and award of punitive damages, reverse as to compensatory damages, and remand for new trial as to compensatory damages.

¶ 2 Mitchell is a veterinarian in Bristow, Oklahoma. Between January 27, 1998, and September 13, 1998, KWTV broadcast seven stories dealing with Mitchell's treatment of a halter horse named This Lady Sings at the 1997 World Quarter Horse Championships in Oklahoma City and the death of a quarter horse named Doo Dominate at the All American Futurity in New Mexico on September 5, 1994. Mitchell sued KWTV for defamation and false light invasion of privacy arising from the stories.

¶ 3 A jury trial took place in June 2001. At the close of evidence, KWTV moved for a directed verdict. The trial court denied the motion and submitted the case to the jury. The jury specially found Griffin and Halsne acted in reckless disregard of the truth of the statements published and intentionally and with malice concerning Mitchell. It awarded $6,000,000.00 in actual damages against Griffin and Halsne, $250,000.000 in punitive damages against Griffin, and $250,000.00 in punitive damages against Halsne. The trial court granted judgment for the verdict amount, as well as $1,323,950.00 in prejudgment interest and $5,010.02 in costs, for a total judgment amount of $7,828,960.02. KWTV appeals from that judgment.

I

¶ 4 One group of KWTV's contentions raises the issue of whether there was sufficient evidence for the jury to hold KWTV liable to Mitchell. KWTV argues the trial court should have directed a verdict in its favor because Mitchell (1) failed to present evidence from which a jury could reasonably conclude any of the statements about which he complained is substantially false, (2) presented no evidence of special damages to support a defamation per quod claim, (3) failed to submit expert testimony that KWTV departed from the standard of care to which reasonable journalists ordinarily adhere under similar circumstances, (4) failed to present clear and convincing evidence of actual malice, and (5) put on no evidence any harm to his reputation was caused by false statements rather than true ones. Because the last contention relates to damages, we will address it in Part II below.

¶ 5 In order to recover for defamation, a private figure must prove (1) a false and defamatory statement, (2) an unprivileged publication to a third party, (3) fault amounting at least to negligence on the part of the publisher; and (4) either the actionability of the statement irrespective of special damage, or the existence of special damage caused by the publication. Sturgeon v. Retherford Publications, Inc., 1999 OK CIV APP 78, 987 P.2d 1218, 1223. If the publication is a fair and true report of a proceeding authorized by law or anything said in the proceeding, it is privileged. 12 O.S.1991 § 1443.1(A). Negligence is the failure to exercise ordinary care, which is "that degree of care which ordinarily prudent persons engaged in the same kind of business usually exercise under similar circumstances." Martin v. Griffin Television, Inc., 1976 OK 13, 549 P.2d 85, 92. Slander is actionable per se, without a showing of actual damage, if it falls within the first four sections of 12 O.S.1991 § 1442.¹ Standifer v. Val Gene Management Services, Inc., 1974 OK CIV APP 41, 527 P.2d 28, 31.

¶ 6 While negligence is the minimum level of fault necessary for a private figure to recover for slander, the plaintiff may expand the relief available by showing greater culpability on the defendant's part. Upon a showing of actual malice, the plaintiff may recover punitive damages, and, where otherwise allowed, presumed damages.² Martin v. Griffin Television, Inc., 1976 OK 13, 549 P.2d 85, 93. "Actual malice" means "with knowledge that it was false or with reckless disregard of whether it was false or not." Id. (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). Proof of malice obviates the need to prove negligence.

¶ 7 In order to recover for false light invasion of privacy, the plaintiff must show (1) the defendant gave publicity to a matter concerning the plaintiff that placed the plaintiff before the public in a false light, (2) the false light in which the plaintiff was placed would be highly offensive to a reasonable person, and (3) the defendant had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. McCormack v. Oklahoma Pub. Co., 1980 OK 98, 613 P.2d 737, 740.

¶ 8 In reviewing a judgment based on a jury verdict, we may not disturb the jury's verdict where there is any competent evidence reasonably tending to support it. The jury is the exclusive arbiter of the credibility of the witnesses, and its verdict is conclusive as to all disputed facts and all conflicting statements. We must determine the sufficiency of the evidence to sustain a judgment in light of the evidence tending to support it, together with every reasonable inference deducible therefrom, rejecting all evidence adduced by the adverse party which conflicts with it. Florafax Intern., Inc. v. GTE Market Resources, Inc., 1997 OK 7, 933 P.2d 282, 287. As to the element of malice, the evidence must be sufficient for a trier of fact to find or infer its existence subject to a clear and convincing standard of proof. Herbert v. Oklahoma Christian Coalition, 1999 OK 90, 992 P.2d 322, 328. This standard applies to both public officials and private figures. Gaylord Entertainment Co. v. Thompson, 1998 OK 30, 958 P.2d 128, 141 n. 46. However, it does not apply to any element other than malice.

¶ 9 The news stories of which Mitchell complains began with reports relating to This Lady Sings. Mitchell testified he examined the horse soon after she was unloaded at the fairgrounds before the horse show. He said she was "a little tender on her right front foot" and had twisted her shoe. He testified he told the trainer the horse needed a farrier. Mitchell said the trainer was unable to find a farrier that evening and was worried the horse would "fret all night and gan up and lose weight and quit drinking." Mitchell said he wrapped her foot, but could see she was not very comfortable on it, so he "did a Sarapin posterior digital heel block on her" with "three-quarters of a cc" of Sarapin, which was "a minute amount." He said Sarapin is called a natural block in holistic circles and wears off in 24 to 36 hours. Mitchell testified This Lady Sings was not hobbling when he saw her.

¶ 10 This Lady Sings was sold after the show. On January 21, 1998, her purchaser sued the sellers and trainer in federal district court for rescission of the contract and damages for breach of warranty and fraud in the inducement of the contract. The complaint alleged as follows:

12. That on November 15, 1997, Skoda [the purchaser] had the mare inspected by Dr. Mitchell, a veterinarian on the grounds of the show, who conducted a prepurchase exam of the horse and represented to Skoda, and his insurer, that the horse was sound.

. . .

16. That the mare was then presented to the previous examining veterinarian, which [sic] found some bruising on the hoof wall, apparently related to improper shoeing and that silicone had been placed under the pad of the mare's left hoof; the silicone pads prevented a clear view of the sole at the time of the original purchase examination.

...

19. That Skoda conducted a further investigation into the unsoundness of the mare and later on November 22, 1997, learned from Dr. Mitchell that prior to the Amateur Division Showing, he had "blocked" one of Casper's adult horses scheduled to appear in the Amateur Division showing; said block being a veterinary technique to numb pain, so that the horse will not present outward manifestation of pain, or unsound gate.

20. That Casper had only one adult horse to be presented and [sic] the said showing, to wit; "This Lady Sings".

21. That Casper knew that the mare was unsound at the time of the negotiations with Skoda and had undertaken specific overt acts to disguise the lame condition.

¶ 11 In the January 26, 1998 10:00 p.m. news broadcast, Halsne reported,

This Lady Sings was named best-amateur-in-the-world just three months ago. Now, her new trainer ... says lameness in her front feet have [sic] ended the horse's career....

There is a dark secret to this horse's injury.. . One the American Quarter Horse Association has under investigation. This Lady Sings was hobbling before the World Championships. . . and was given a painkiller....

What [Mitchell] did was put a chemical called Sarapin in her foot to mask the pain.

Prior to the next evening's broadcast, KWTV ran a promotional tape in which the announcer stated, "An Oklahoma vet linked in a federal lawsuit to masking the injuries of a champion show horse." In the 10:00 p.m. broadcast, Halsne reported,

The federal case says Mitchell knew that This Lady

...