Video depositions are being heard during this second week of the $1.9 billion civil defamation trial in Elk Point, SD, that BPI hopes will cause the jury to believe ABC knew the reports it aired about lean finely textured beef being “pink slime” were not truthful.

Beef Products Inc. sued ABC under the South Dakota Food Product Disparagement Act, claiming a series of reports the network’s news division posted between March 7 and April 3, 2012, caused the Dakota Dunes, SD, meat packer to lay off at least 650 workers and closed three production facilities.

During the reports, ABC referred to BPI’s lean finely textured beef product “pink slime” on more 350 occasions.

The beef product is made from lean portions of trimmings that have been processed to separate them from fat. Lean finely textured beef, or LFTB, is a component of some ground beef.

The video deposition that did the most damage to ABC was one featuring David M. (Dave) Theno, currently CEO of the Del Mar, CA-based Gray Dog Partners Inc. Theno, who had consulted with BPI, recalled taking a call from from ABC News reporter Jim Avila shortly before the reports were aired.

Theno said that he recalled, it did not go well.

Avila had called him and Theno had agreed to talk, but the TV journalist soon became hostile.

“He told me I didn’t know a damn thing about it,” Theno said.

“I was a shill for the company and he hung up.”

Theno is the former senior vice president and chief food safety officer for Jack in the Box Inc. He’s won numerous awards for his leadership in food safety, including the Black Pearl from the International Association for Food Protection; the Mark Nottingham Award from the California Environmental Health Association, and in May this year, the Food Safety Summit’s Lifetime Achievement Award.

Theno called Avila back, and was disconnected. He called again and Avila picked up.

In the next segment, Theno told Avila if he had any journalistic integrity, he would at least listen to the other side. In the video, Theno says he told Avila he did not have to use “my side of the story” but he at least ought to hear it.

Avila responded by saying “F— you!” and hanging up again, Theno testified.

Brian Hartman, an ABC News producer who worked with Avila on the 2012 reports, also gave a video deposition.

Hartman acknowledged the network had received letters from both the BPI and the American Meat Institute saying beef trimmings used to make LFTB are not “low-grade.” The ABC reports depicted the beef trimmings as being useful only for “cooking oil and dog food” until LFTB was developed.

Hartman could not recall ever reading the meat institute letter and did not identify “a single company” using the beef trimmings for pet food.

Audrey Taylor, another ABC producer, said she conducted an interview with a nutritionist and dietician who said LFTB was safe and could be used to lower the fat content in ground beef, but the network never used any of that material. Taylor said they often do on camera interviews that never get aired.

The unused interview, however, was inconsistent with the “pink slime” narrative ABC choose to follow, according to BPI attorney Erik Connolly. He noted that emails among the producers also referred to LFTB as slime and feces along with “waste” and “fat” before they knew anything about it.

The jury trial is scheduled to take as long as eight weeks. Disney-owned ABC Television and Avila are the defendants in he case. Should BPI prevail, its $1.9 billion damage claim could be tripled under South Dakota’s agricultural product disparagement law.

There’s also the potential for punitive damages. According to the jury instructions, however, plaintiff BPI must prevail on all the underling points of law before monetary damages can be considered.

Editors Note: Attorney Bill Marler, publisher of Food Safety News, represented retired USDA scientists Gerald Zirnstein and Carl Custer until they were dismissed as defendants in this case. Writer/editor Dan Flynn was served with a subpoena from the plaintiffs during early stages of this litigation, but he was not required to provide any information or to testify. That subpoena is now thought to be inactive.

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