* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 5 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

MARY WILEY,

Plaintiff - Appellant,

v.OHIO/OKLAHOMA HEARSTARGYLE TELEVISION, INC., doing business as KOCO-TV, a Nevada corporation, Defendant - Appellee, and AMERICAN RED CROSS,

Defendant. No. 01-6062 (D.C. No. 99-CV-1644-ML) (W.D. Oklahoma)

ORDER AND JUDGMENT *

Before TACHA , Chief Judge, SEYMOUR , Circuit Judge, and BRORBY , Senior Circuit Judge.-2-

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. In this diversity case, plaintiff Mary Wiley appeal s the district court’s grant of summary judgment in favor of defendant Ohio/Oklahoma Hearst-Argyle Television, Inc. on her defamation claim. Because plaintiff failed to raise a genuine issue of fact as to whether defendant breac hed its duty of care, we affirm. After tornadoes ripped through central Oklahoma on May 3, 1999, the American Red Cross and other agencies immediately s et up relief centers, including two in Del City, Oklahoma. On May 4, pla intiff volunteered to work at the Del City High School relief center. According to police reports, she was asked to leave after witnesses saw her taking donat ed items without permission. On May 5, plaintiff went to a second relief shelterwhere she told witnesses that she had donations which she would deliver to the back of the shelter. According to police reports, however, when plaintif f drove her car to the back of the shelter, she informed volunteers that she had r eceived permission from someone up front to take relief supplies for her fa mily. Red Cross volunteers helped plaintiff gather food, clothing, boots, and bedding, which they loaded into her car. When the assistant manager observed this, she had a security guard take-3-

down plaintiff’s license plate as she drove off, an d police were notified. The Oklahoma Attorney General’s fraud control unit subs equently notified guards to be on the lookout for plaintiff, who was accused of taking items from the relief center without permission. When plaintiff returnedto the relief shelter the next afternoon, she was approached by a security guard, who requested her identification and then notified the police. The p olice gave plaintiff Miranda warnings, questioned her, took her photograph, seiz ed her Red Cross name tag, and released her. Over the next few days, police and/or the Attorney General’s fraud unit took statements from Red Cross volunteers and emplo yees, and Police Detective Magni prepared a file for presentation to the distr ict attorney’s office. The detective also prepared a report for the district attorney’s office which listed under the category of “charges” that plaintiff was accused of obtaining property by false pretenses in violation of Okla. Stat. tit. 5, § 21-1542. See Aplee. App.
at 161. On May 12, Randy McIlwain, a reporter from defendant’s Oklahoma City television station, KOCO-TV, spoke with Detective M agni about plaintiff’s case and reviewed the case file. He reported the inform ation to KOCO-TV’s producer, who drafted several news scripts. That evening, th e station broadcast a trailer which stated “Another possible scam after the storm . Tonight a metro woman is-4-

accused of being a relief thief. Pretending to be a Red Cross volunteer, while taking off with donations for tornado victims. It’ s a story you’ll see only on Five.” Aplt. App., Ex. D. Later that night, the s tation displayed a picture of plaintiff with the word “THIEF” across the top, andreported the following: Charges are pending tonight against 69 year old Mary Wiley of Oklahoma City. The theft happened at this temporary Red Cross shelter in Del City. Police say Wiley took a load of items intended for tornado victims. She was wearing a Red Cross n ame tag. The District Attorney has accepted the police report an d plans to file charges. Id. Substantially the same information was reported the next morning, although that report also included an incorrect statement th at police were looking for plaintiff. See id. at Ex. E. Plaintiff was never formally charged by the District Attorney. Plaintiff filed suit in state court against the Ame rican Red Cross and defendant. After removal to federal court, plainti ff dismissed her claims against the American Red Cross, and filed an amended compla int against defendant, alleging defamation. Defendant’s disclosed witness es included a journalism professor who intended to testify that the televisi on station complied with the standard of care ordinarily exercised by members of the news media. In contrast, plaintiff’s disclosure failed to identify any witne ss who would testify regarding the standard of care. Defendant filed for summary judgment asserting the evidence was undisputed that it exercised due care, and that plaintiff could not1 Plaintiff has moved to supplement the record with e xcerpts of deposition

testimony by Del City Police Detective Magni and re porter McIlwain which were not before the district court. We deny this motion . When reviewing a grant of summary judgment, we consider only the record that was before the district court (continued...) -5- show a breach of care. The district court granted summary judgment, and plaintiff appeals. We review a grant of summary judgment de novo, appl ying the same standards as those applied by the district court. Robbins v. Jefferson County Sch.
Dist. R-1 , 186 F.3d 1253, 1258 (10th Cir. 1999) . Summary judgment is appropriate when a record demonstrates that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). Plaintiff argues that the district court erred in g ranting summary judgment because defendant’s negligence could be determined by a layperson and did not require testimony from an expert. Her entire argum ent in this regard is that “[i]f a news station broadcasts falsehoods or lies that are not based on the information gathered, an ordinary layman can make that determin ation.” Aplt. Br. at 12. No cases are cited to support her position. Plaintiff’s argument has several flaws. First, she relies completely on proffered supplemental material which we decline to consider for the first time on appeal. 1 Second, despite the Oklahoma Supreme Court’s hold ing that media1 (...continued)

when the decision was made. John Hancock Mut. Life Ins. Co. v. Weisman , 27 F.3d 500, 506 (10th Cir. 1994). Although plaintiff argues we should consider the new testimony because the depositions were taken af ter defendant’s summary judgment motion was filed, she has not shown why th e depositions were not taken earlier, or why, after learning of the testimony, s he did not immediately supplement her pending summary judgment response wi th a motion and affidavit pursuant to Fed. R. Civ. P. 56(f). -6- negligence is to be determined under a professional negligence standard which should ordinarily be proven by an expert, see Malson v. Palmer Broadcasting Group , 936 P.2d 940, 942 (Okla. 1997), plaintiff failed to present anyevidence to the district court regarding the standard of care. In the face of defendant’s affidavit evidence that it complied with the standa rd of care, plaintiff could not simply rest on her argument that the broadcast of i ncorrect information inherently demonstrates negligence. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 256 (1986) (when moving party submits properly supporte d summary judgment motion, nonmoving party must produce affirmative ev idence to demonstrate genuine issue of fact, and may not rely simply on d enials or allegations in pleadings).
We AFFIRM the judgment of the district court.

Entered for the Court
Stephanie K. Seymour Circuit Judge