ELK POINT, SD —It did not take long after Judge Cheryle Gering opened the BPI v. ABC civil defamation trial with a one-hour reading of jury instructions for the proceedings to head for weeds.
The trial got underway Monday in the basement of Union County Court House, which was remodeled to accommodate the large number of participants. The courtroom seats 132, and lawyers and their stuff take up about half the space. At least for the first day, the two armies of attorneys were polite to one another.
In his opening statement for BPI, attorney Dan Webb challenged ABC’s historical perspective on just how in the first place lean finely textured beef (LFTB) came to be approved for use in ground beef without any special labeling.
On March 7, 2012, ABC News reported that Jo Ann Smith, USDA’s assistant secretary for marketing and inspection services, approved the project over the objection of then-USDA scientists Gerald Zirnstein and Carl Custer.
Smith, according to the network report, then left government for a board position at one of BPI’s suppliers. The job netted her more than $1 million over a dozen years, according to the report.
Webb said none of that was true.
He said Ziernstein and Custer never made any recommendations in the process that led to LFTB winning approval. Webb said Zirnstein was not even working for USDA at the time and did not join the agency until eight years later.
In addition, he said Smith was out of government by the time the decision was made. She served during the administration of President George H. W. Bush, from 1988 to January 1993. The product was approved the following fall. Zirnstein and Custer, both now retired, were sources for the 131 news reports on BPI’s lean finely textured beef product that some have come to call “pink slime.”
The reports, which ran on ABC News platforms from March 7, 2012, to April 3, 2012, are the centerpieces of the civil defamation case that started here Monday. The Dakota Dunes, SD-based BPI (Beef Products Inc.) and two of its associated companies have sued the Disney-owned ABC Television network for $1.9 billion over those news reports, which included two segments on “ABC’s World News Tonight” and 10 more on “Good Morning America.” Webb said BPI and its product were defamed more than 350 times by ABC’s on-air reporters, mostly Jim Avila, who referred to its LFTB as “pink slime.”
But Dane Butswinkas, who delivered the opening statement for ABC, said Webb was not telling the whole story in his depiction of how LFTB gain USDA approval. It was a more complicated story, according to Butswinkas.
During Smith’s tenure, Butswinkas said, there was a USDA task force named to study the issue. He said the evidence will show the task force did not want to approve LFTB as equal to ground beef. BPI’s lobbyist continued to work the issue and engaged a Texas researcher with ties to Smith. Butswinkas said Smith is the USDA officials who gave LFTB its temporary approval before she left office.
Opening statements are not evidence, according to the jury instructions outlined by Judge Gering. In their openings, both Webb and Butswinkas promised to present evidence to make the case about how LFTB got its USDA approval. Butswinkas, however, cautioned the jury not to expect much from Smith because she claimed in her deposition not to remember one of her key meetings on the issue.
ABC didn’t break the story or coin the term
Webb said it took Eldon Roth and his family 30 years to build BPI into a successful business, which he charged, ABC took less than 30 days to nearly destroy.
Butswinkas countered by claiming BPI’s demise was well underway before ABC aired its news stories. McDonald’s, Burger King and Taco Bell had already stopped using LFTB in their hamburgers and tacos. They were BPI’s three largest purchasers until they dropped lean finely textured beef.
Also, there were both print and television news reports on the “pink slime” issue before ABC aired its reports. Most notable was the 2009 New York Times report by Michael Moss that won the Pulitzer Prize. BPI was one of the product manufacturers of a single hamburger contaminated with E. coliO157:H7 that severely injured a Minnesota dance instructor. During his reporting for that story Moss found the email where USDA’s Zirnstein coined the “pink slime” term.
Webb depicted ABC’s reports as a “media attack” on BPI and said evidence will show the journalists and their producers bragged about how their stories were causing major retailers and others to drop the product.
As this occurred, he said, BPI saw its sales of 5 million pounds a week shrink in a matter of days to 1.3 million pounds. It had to lay off at least 650 people and shut down production at three plants. Webb said destruction of BPI business was ABC’s goal and that evidence will show it knowingly made false statements to advance its agenda.
Webb said ABC frequently repeated “pink slime” in their broadcasts because it is “disgusting, inedible, unhealthy and harmful.”
BPI’s claims under the South Dakota’s agriculture defamation law could be tripled, which brings ABC’s total risk to $5.7 billion.
Butswinkas said BPI was all about secrecy and that the company’s goal beginning in 1986 was to move its “partially defatted chopped beef product” up the “beef hierarchy” so it could be approved for use in ground beef.
The ABC attorney said the network’s 2012 reports were about breaking that secrecy by asking why labeling was not required so consumers could know if they were being sold “pink slime” when they wanted fresh hamburger. He said Avila and his producers consciously opted not to get into he safety issue because there was not consensus on it.
BPI is represented by Winston & Strawn, Chicago’s oldest law firm. ABC attorneys are from Williams & Connolly, one of Washington D.C’s best known firms. Both are associated with local counsel.
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 was not required to provide any information or to testify. That subpoena is now thought to be inactive.
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