I like a good trial as much as the next guy.
Late last week, South Dakota Circuit Judge Cheryle Gering said she was not going to dismiss Beef Products Inc.’s $1.2-billion lawsuit against ABC News.
For a moment at least, we can all have that fantasy about being in Elk Point, SD, someday in the future to watch as Diane Sawyer and Jim Avila, ABC’s on-air personalities, are forced to shuttle back and forth between the Union County Courthouse and the one decent restaurant within 30 miles.
Oprah Winfrey had to make nice to the people of Amarillo for five weeks in 1998 before the jury ruled in her favor. She won because a Texas jury figured it did not hurt anybody to have a vegan cowboy go on the Oprah show to talk about that “mad cow disease.”
BPI vs. ABC is about the 2012 media frenzy over the product the meat industry called “lean finely textured beef” and that the media came to call “pink slime.” Prior to the frenzy, the product was common in hamburger patties sold by major fast-food outlets and served by many a school lunch program.
Afterwards, Dakota Dunes, SD-based BPI was forced to close plants and lay off workers in multiple states as demand for its product dwindled. It sued ABC and some others, who’ve now failed to either get the case moved to federal courts or dismissed by South Dakota’s.
BPI and ABC are represented by mammoth law firms out of Chicago and Washington, D.C., and this is likely still in the opening stages. But this ruling by Judge Gering is concerning because, in declining to dismiss the lawsuit against ABC, she also did not release two of the network’s sources from the case.
Gerald Zirnstein and Carl Custer are the two former USDA Food Safety and Inspection Service employees who spoke to ABC and other media outlets about the BPI products.
It’s troubling that they have not been released from this lawsuit. We’ve come to rely on former employees for truth about government decision-making because, too often, those still on the payroll fear the consequences of candor.
It was Zirnstein who first called the BPI product “pink slime” and Custer, a microbiologist, who saw it as “problematic.” But what this court does not understand is that the fair comment and criticism of those two former USDA professionals did not become relevant until something else happened.
Thousands, no, millions, of men and women went online and started showing they are interested in everything they eat or what they feed to their children. Up until then, BPI could get away with keeping its processes behind a wall.
The media frenzy that so damaged BPI occurred because consumers now insist on knowing how sausage is made. Sure, ABC was responding to consumer interest in the “pink slime” story and was attempting to drive ratings. This is America; that’s what television networks are supposed to be doing.
But drawing two professionals who used to work for the government into this case just because they were sources, offering fair comment and criticism, is certain to make others less likely to speak out. BPI’s business setbacks and its employee layoffs are unfortunate, but the true damage this case could cause is silencing sources.
In her opinion, this judge also specifically declined to dismiss claims based on the truth or meaning of the alleged defamatory statements. I guess the trial is going to be “Alice in Elk Point,” where truth is not a defense.
(Editor’s note: Zirnstein and Custer are represented by attorney Bill Marler, publisher of Food Safety News.)© Food Safety News