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An Atlanta woman who says ABC News broke a promise not to broadcast pictures of her child has taken her claim to Georgia’s Fulton County State Court. Toni W. Odum, the mother of a 15-year-old girl at the center of a paternity dispute that reached the U.S. Supreme Court, said she agreed to give an exclusive off-camera interview to ABC News correspondent Steve Osunsami on condition that her daughter’s face not appear in the network’s broadcast . Chandria Smith v. ABC News and Osunsami, No. 04VS066925Y (Fult. St., filed May 20, 2004). Almost two years after pictures of the child were used on “World News Tonight,” a suit filed in her name seeks damages for breach of contract, fraud, negligence, invasion of privacy and intentional infliction of emotional distress. Odum, an investigator with the DeKalb Public Defender’s Office, spoke with Osunsami following the U.S. Supreme Court’s decision not to hear a case brought by Odum’s former boyfriend, Carnell A. Smith. Believing he was the father of Odum’s daughter, Smith paid child support to his former girlfriend for more than 10 years before he acted on a hunch and took a DNA test in 2000. The test results showed that Smith was not the father of Odum’s child. Smith accused Odum of fraud and asked the court to set aside its most recent child support order — which raised Smith’s monthly payment from $375 to $750 — and to award him the approximately $40,000 he had paid the child’s mother over the previous decade. Smith’s claim was rejected by DeKalb Superior Court Judge Edward A. Wheeler, saying Smith should have done more due diligence during the earlier child support proceedings. The Georgia Court of Appeals declined to hear the case on discretionary appeal and, six months later, the state Supreme Court denied cert. Following the U.S. Supreme Court’s decision not to hear the case, Smith and Odum entered into a consent agreement in February 2003, allowing Smith to remove his name from the child’s birth certificate and relieving him of all future and any past-due child support payments. Meanwhile, when the child learned Smith was not her father, she became depressed and began “manifesting severe physical reactions, including balding and skin disorders,” according to D. Brandon Hornsby, the attorney representing Odum against ABC News and Osunsami. ODUM APPROACHED BY MEDIA During the summer of 2002, Odum was called by reporters about Smith’s case at the U.S. Supreme Court. She agreed to speak with Osunsami, an Atlanta-based correspondent who joined ABC News in 1997. Odum agreed to be interviewed for a story to be aired on ABC’s “World News Tonight” on the condition that neither the reporter nor ABC News, would “show any pictures of [the daughter's] face on television or anywhere else,” according to the suit. Odum told the Daily Report that Osunsami first approached her attorney, Corinne M. Mull. Osunsami then met with Odum and Mull and offered assurances that the girl’s face would not be shown, according to Odum. In the suit, Odum claims that Osunsami said he wouldn’t show the girl’s picture because “such publication would rightfully result in both him and ABC News being sued.” When the story aired on Aug. 2, 2002, on “World News Tonight”, the broadcast contained three photographs of the girl. Carnell Smith said he supplied the photographs to Osunsami, but only on the condition that the girl’s face not appear on the air. Smith, however, is not a part of the suit. “He broke his promise to me,” Smith said of Osunsami. “I only allowed them [ABC News] to use the photographs under the specific condition that her face would not be shown.” Smith said he called ABC News afterward and spoke with several producers but “no one would take responsibility.” Odum said Osunsami called her on the Monday after the broadcast and apologized for showing her daughter’s photos, explaining that someone had changed the story while he was out of town. She also received a fruit basket a few days later, from Osunsami, accompanied by a note that read: “I just saw the story and am about to call you. By the time you get this, we will have probably already talked. It’s been explained to me how this happened, but in the end, I feel responsible. Steve O.” Osunsami did not return a call seeking comment for this story. Jeffrey Schneider, a vice president of news media relations at ABC News in New York, declined to discuss the case. “We’ve just been served with the complaint today and we’re reviewing it and evaluating it,” he said. Despite Smith’s protests, ABC News posted a story about the paternity battle on its Web site where subscribers to “ABC News On Demand” could watch Osunsami’s original broadcast. Odum said her daughter viewed the broadcast on the Internet site and she also endured teasing at school after classmates saw it. “It was like a slap in the face,” Odum said of the online story posting. Hornsby said there was no need to broadcast the girl’s picture. The moral and ethical obligation was to protect the child, he said. “They just wanted to make the story better, more appealing to the viewers,” Hornsby said. $500,000 VERDICT IN MACON Almost a decade ago, a Macon, Ga., television station was ordered to pay a $500,000 verdict after mistakenly showing the face of an AIDS patient during a talk show. In Multimedia v. Kubach, 212 Ga. App. 707 (1994), the Georgia Court of Appeals affirmed in part the decision of the Bibb County Superior Court jury that awarded $500,000 in general damages and $100 in punitive damages to the AIDS patient who agreed to appear on a television program on condition that he would not be recognizable. However, the TV station’s “digitization” didn’t adequately mask his appearance. Multimedia v. Kubach, 212 Ga. App. 707 (1994). The Court of Appeals noted that punitive damages may be awarded “only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression or that entire want of care which would raise the presumption of conscious indifference to consequences.” Since the trial evidence did not support the award of punitive damages, the court said the $100 must be “written off.” OTHER REPORTERS BLAMED Other courts have held reporters responsible for broken promises. The Supreme Court of Minnesota ultimately awarded $200,000 to Dan Cohen, an advertising and public relations executive who, in 1982, supplied the Minneapolis Star and Tribune (now the Star Tribune) and the St. Paul Pioneer Press with information about the arrest record of a political candidate. Reporters promised Cohen anonymity in return for the information. However, both newspapers printed the executive’s name and the Star Tribune also said where Cohen was employed. Cohen was fired the same day the stories were published. According to the Minnesota Supreme Court decision, the newspapers’ editors overruled the reporters’ agreements with Cohen. He sued for breach of contract and fraud and won an initial jury verdict of $700,000. The Minnesota Court of Appeals set aside the punitive damages part of the verdict, $500,000, and the state’s Supreme Court later set aside the remaining $200,000, comprising the compensatory damages. The newspapers argued that the First Amendment protected them from any breach of contract or fraudulent misrepresentation claims brought by Cohen. The U.S. Supreme Court appeal revived the case when the justices ruled that the doctrine of promissory estoppel, and its use to enforce confidentiality promises, does not infringe on the newspapers’ First Amendment rights. On remand, the Minnesota Supreme Court affirmed the decision of the state’s court of appeals, retaining $200,000 in compensatory damages from the original $700,000 verdict. Cohen v. Cowles, 479 N.W. 2d 387. “Neither side in this case holds the higher moral ground,” the Minnesota high court justices wrote, “but in view of the defendants’ concurrence in the importance of honoring promises of confidentiality, and absent the showing of any compelling need in this case to break that promise, we conclude that the resultant harm to Cohen requires a remedy here to avoid an injustice. In short, defendants are liable in damages to plaintiff for their broken promise.”

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