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Week 3: BPI continues case against ABC in defamation trial

logo BPIThe $1.9 billion state civil defamation trial pitting Beef Products  Inc. against Disney-owned ABC Television and reporter Jim Avila enters its third week today in Elk Point, SD. The 12-member jury and four alternates—11 women and five men—have so far heard only the live testimony or video depositions of plaintiff witnesses as BPI puts forward its case.

As it closed out the second week of the trial, BPI’s witness list went from defendant Jim Avila and continued through retired USDA scientist Gerald Zirnstein. Here are some of the highlights:

JIM AVILA — The ABC News reporter and occasional weekend anchor appeared in video testimony running about two hours. Under questioning by BPI attorney Dan Webb, Avila said he was not aware of the background of two of the sources ABC used in its first report on lean finely textured beef (LFTB) that aired on March 7, 2012.

Specifically, Avila said he did not know Kit Foshee was fired by BPI and his termination was upheld by a court. Nor, he said, did he know Zirnstein, who was first to call LFTB “pink slime” and saw himself as a “crusader” against the BPI product. Moreover, Avila testified that neither he nor any ABC producer had seen a copy of any report by USDA microbiologists opposing the use of LFTB in ground beef that reportedly went to their USDA superiors.

Jim Avila

Jim Avila

The ABC journalist was confident about his primary sources, however, because they’d been quoted in the New York Times and the online Daily, which has ceased publication, without any challenge.

BPI’s lean finely textured beef was one of four sources for ground beef produced by Cargill in 2007 that was linked to an 844,812-pound recall and an outbreak that sickened 940 people. Some said LFTB was not likely the source of the E. coli because of the effectiveness of its ammonia treatment. However, the incident opened a window on LFTB that did not previously exist.

CARL CUSTER — A retired USDA scientist who said he stands by statements he made in 2012, and make them again if given the opportunity.

Custer said he never wrote an official report to object to LFTB being used in ground beef. He had researched an earlier product in 1989-90, but not the lean finely textured beef as approved by USDA in 1993. As for the statement attributed by former USDA  assistant secretary Joann Smith —“It’s pink, therefore its meat.”— Custer never heard Smith or anything other USDA official say it.

He said it on camera for the ABC report, and explained it was something he picked up in hallway at USDA from someone who claimed to have heard it in a meeting, but that cannot be corroborated.

BPI graphic process for LFTB

BPI has several videos, including one containing this slide, on its website www.beefisbeef.com.

KIT FOSHEE — The former BPI employee, who lost both his job and his wrongful termination lawsuit against his former employer, Foshee appeared in a video deposition.    He said he described LFTB for ABC as “pink slime” and “play dough,” and said he found it to be more like gelatin than beef.

Foshee said BPI’s product is a cheap replacement for a high quality meat item. His departure from BPI was over disagreement with owner Eldon Roth about the use of connective tissue.

RICH JOCHUM — BPI’S corporate administrator testified that prior to the ABC reports, which ran from March 7 to April 3, 2012, sales of 5 million pounds a week of LFTB were being recorded. But after the stories aired and were posted on ABC’s various platforms, sales fell to 1.2 million pounds a week. Demand fell off rapidly as numerous fast food and grocery store chains ceased using the product. Taco Bell, McDonald’s and Burger King had all stopped using it in 2011.

Jochum said the reduction in sales had an “immediate and direct impact” on BPI and its two sister companies, with revenues falling off in a proportional amount. He said the information he provided to ABC prior to their reports was not used by the network.

Jo Ann Smith

Jo Ann Smith

JO ANN SMITH — In her video deposition, the former USDA assistant secretary for marketing and inspection services denied there was any connection between her temporary approval of LFTB and her later appointment to the board of directors of a BPI supplier.

Smith left USDA as President Bill Clinton took office in January 1993. LFTB gained final approval the following September.

GERALD ZIRNSTEIN — The former USDA scientist, who was first to call LFTB “pink slime,” does not believe the product belongs in ground beef. He says it “lost the functionality of meat. It has a different composition entirely than meat.”

Zirnstein said if LFTB was to be included in ground beef, it would only be fair if the consumer was told something of lower quality was being included in their burgers. He said LFTB is a lower quality protein because of its excess collagen.

The trial, which is being conducted by the First Judicial District of South Dakota in the Union County Courthouse, is scheduled to take up as much as another six weeks. On more than 350 occasions ABC’s reports referred to BPI’s lean finely textured beef as “pink slime.  Those statements are at the heart of the food product disparagement claim BPI is making under South Dakota law.

That statute could open ABC to treble damages, which means $5.7 billion is at stake.

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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