No Need for Expert Evidence as to Media Defendant Negligence in Resisting Anti-SLAPP Motion,

at least when the dispute is over a simple identification error./

McCleary v. Nexstar Media Group, Inc., decided last month by the Oklahoma Court of Civil Appeals, but just posted a few days ago on Westlaw, involved a libel lawsuit and a defendant's motion to dismiss under the Oklahoma "anti-SLAPP" statute. That statute requires that plaintiffs (usually defamation plaintiffs) who are suing over defendants' speech on matters of public concern establish, at an early stage, "by clear and specific evidence a prima facie case for each essential element of the claim in question."

From the opinion by Vice-Chief Judge Stacie Hixon, joined by Judges Deborah Barnes and Jim Huber:

KFOR, a news station …, presented a news segment about several individuals who had been prosecuted for charges of human sex trafficking in Texas federal court. One of the defendants in that case was named Christopher McCleary. With that segment, KFOR ran a photograph of Appellee, an Oklahoma resident, Christopher Renyles McCleary ("McCleary"). However, the defendant named in the Texas criminal case was Texas resident, Christopher Lynn McCleary. The Appellee, McCleary, was not related to nor was he charged with any of the crimes discussed in Nexstar's report.

McCleary sued for defamation, and the key legal question was whether he had to introduce expert evidence that defendants' actions were negligent:

McCleary conducted discovery and deposed KFOR producer, Cristi Jill Wolf ("Producer"), who prepared the original story. Thereafter, McCleary responded to Nexstar's original Motion to Dismiss presenting his proposed evidence in support of the elements of his defamation claim. Essentially, McCleary presented evidence that Producer originally learned of the story from a Texas news station concerning a sex trafficking ring operating in North Texas and Oklahoma. She thought the story would be of interest because one of the other defendants involved was a football player originally from Oklahoma.

However, she noticed that there was no photo included for one suspect, Christopher McCleary, and thought the story would be more appealing with a photograph. Producer or those assisting her attempted to locate a photo of the man implicated in the incident solely by checking the website of the Oklahoma Department of Corrections (ODOC), where she obtained a mugshot of McCleary from an unrelated conviction.

McCleary presented Producer's deposition testimony that she had been trained to verify the identities of criminal defendants before running stories by reviewing items such as court documents, news sources, police sources, Oklahoma State Bureau of Investigation (OSBI) reports, Public Access to Court Electronic Records (PACER), Oklahoma State Court Network (OSCN), or the Texas court system. However, Producer testified she did not recall verifying McCleary's identity by reviewing the court documents in the Texas case or checking any other source other than pulling his photo from the ODOC website. McCleary also presented evidence which he contended demonstrated that Nexstar would have learned he was not the Christopher McCleary charged in the sex trafficking case, had it taken steps to verify his identity.

Nexstar presented "rebuttal" evidence in reply to McCleary's response. It presented the affidavit of Producer and her supervisor, KFOR's News Director, as proposed television news experts. These proposed experts contended that Producer exercised the same degree of care ordinarily prudent persons in the same kind of business would have used, and claimed to have had no reason to suspect McCleary was not the individual referenced in the news reports. They also contended the news story they presented was based on a story from a Texas news station, which the News Director averred it had no obligation to "reinvestigate," though Nexstar acknowledged the original story never included a picture of the suspect Christopher McCleary. However, Producer contended the sex trafficking case concerned crimes in both Texas and Oklahoma, and that McCleary's name was sufficiently unusual to reasonably assume the McCleary on the ODOC website was the same person charged in Texas.

Nexstar argued that it was not professionally negligent, based on the affidavits presented, and that McCleary had failed to present conflicting expert testimony supporting his prima facie case. Thus, Nexstar contended it was entitled to dismissal of Plaintiff's claims under the OCPA….

The court rejected Nexstar's argument; a short excerpt from the long analysis:

Oklahoma jurisprudence, "[t]he terms 'affidavit of merit' or 'certificate of merit' are generic terms applied to a variety of special certifications--usually supplied by medical experts--that verify the legitimacy of claims involving professional standards of care." The Oklahoma Supreme Court has consistently held that "[costs associated with obtaining affidavits of merit] create an impermissible hurdle unconstitutionally restricting the right of citizens to access the courts in violation of art. 2, § 6 of the Oklahoma Constitution."

Arguably, requiring expert testimony at this stage would invoke a similar concern. Given the time frames imposed by the OCPA, plaintiffs would be required to obtain expert testimony before filing the case or shortly thereafter to meet their "clear and specific" evidence burden in response to a Motion to Dismiss. However, the OCPA does not actually contain an "affidavit of merit" requirement or any restriction on a plaintiff's ability to file suit, if he has basis to do so. The question is whether the Act's requirement that a party present "clear and specific" evidence requires expert testimony at this stage of a case….

While [the OCPA] clearly requires parties to go beyond vague notice pleading and disclose the factual basis for their claims, we question whether the Act intended to impose a burden to present expert testimony at the inception of the case. Here, McCleary has supplied a clear factual basis for his claim. He has presented undisputed evidence that KFOR displayed his photograph and falsely indicated he was charged with sex trafficking. Nexstar acknowledged in oral argument that McCleary's claim is not frivolous. Given the Act's lack of any express requirement that a plaintiff supply expert testimony, our interpretation of "clear and specific evidence" and the Oklahoma Supreme Court's concerns with imposing similar hurdles in other professional negligence cases, we decline to hold that McCleary's burden required expert testimony, as opposed to an obligation to provide "enough detail to show the factual basis for [his] claim." …

Nexstar does not appear to genuinely dispute that it generally has an obligation to report truthfully or accurately, or that its duty of ordinary care would include correctly identifying those accused of crimes. Instead, it seems to contend that expert testimony is required to establish what steps Nexstar should reasonably have taken to do verify its story, or McCleary's identity. However, the means of verifying McCleary's identity are not highly technical or beyond a lay person's understanding, nor is his theory of liability particularly complicated.

Alternatively, Nexstar's own "expert" Producer supplied sufficient testimony to meet McCleary's burden. Producer acknowledged she is trained to verify criminal defendants' identities and that means exist to do so through court documents or various court databases. She testified that she had been trained to use court documents, news sources, police reports, OSBI reports, OSCN, etc. Producer and KFOR employees have access to PACER, which has access to the Texas federal case at issue. However, she testified she did not recall making any of these efforts in McCleary's case. She obtained a photo of McCleary from the ODOC website and did nothing further to verify whether he was the defendant in the Texas news story….

We find Producer's testimony, along with McCleary's other evidence, sufficient to meet his burden to produce "clear and specific" evidence to support his claim, whether expert testimony is required or not. Nexstar is free to contend that it acted with ordinary care. Producer's testimony contradicts these assertions and supports McCleary's claim. While Nexstar's rebuttal evidence might give rise to a question of fact on the issue of fault, it does not supply a defense as a matter of law necessary to support a dismissal….

The court also concluded that the evidence sufficed for plaintiff to be able to argue "actual malice," as required for presumed and punitive damages:

Though Producer's failure to investigate, even if negligent, cannot support a showing of actual malice, what she knew or did not know when she published McCleary's photo is arguably relevant to whether she had knowledge or doubts as to its falsity. McCleary presented evidence that Producer displayed his photo, without doing anything other than pulling his mugshot from the ODOC website. Producer did not claim to have acted in necessary haste or on word of a third party. She merely added McCleary's mugshot to add visual interest to the story.

When deposed, Producer could not identify what news story she relied upon to craft her segment or any background information she obtained supporting it. She could offer nothing about her subjective mental state, other than to state it appeared she made a mistake. However, in the testimony provided, she also offered no reason why she concluded McCleary was the same Christopher McCleary in the Texas criminal prosecution, other than the case's connection to Oklahoma and the fact he had a mugshot in Oklahoma. She volunteered no identifying factor that would lead one to conclude these may be the same people. She did not suggest McCleary had been convicted of a similar crime or offer information that might suggest McCleary was connected to the other defendants. In short, apart from the availability of his mugshot, Producer did not identify anything supporting her belief McCleary was the same Christopher McCleary in the Texas story.

From the totality of evidence presented, we conclude McCleary presented clear and specific evidence from which a reasonable person could conclude that Producer had no reasonable basis to conclude McCleary was the defendant charged in the Texas case, and clear and specific evidence to support prima facie actual malice based on high degree of awareness of the probable falsity of the report and/or obvious reasons to doubt the veracity of the report. We acknowledge that "actual malice" is a high standard. However, McCleary is not obligated at this stage to present the level of proof necessary to prevail or sufficient to persuade a jury against Nexstar's conflicting evidence at trial. He is required to present something more than notice pleading, a factual basis for the elements of his claim….

Donald E. Smolen, II, Michael F. Smith, and Dustin J. Vanderhoof (Smolen | Law, PLLC) represent plaintiff.