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.)

  • Agree, 100%. I am greatly disappointed she didn’t release Zirnstein and Custer. And I must repeat how profoundly grateful I am that Bill Marler is seeing that these individuals have representation.

    I read the decision and, overall, found it lacking. I may not be a lawyer, but I’ve read too many judicial decisions lately that seem to express an incredibly cavalier attitude towards Constitutional rights, when it comes to ruling against individuals in favor of large corporations.

    The Chevron decision, this case, the one I’ve been following for years (Ringling Brothers RICO case against several animal welfare groups)…when did we, the people become so inconsequential? When did freedom of speech and association become so expendable?

    Completely unrelated, but a Judge in the Ringling case is demanding the animal welfare groups turn over confidential donor lists, just so Feld Entertainment’s lawyers could depose some poor Jane who donated 10 bucks to the fight for circus elephants 8 years ago. By all that’s holy, where is the _balance_ in decisions like this?

    And in this case, can we no longer even give our opinions? Can a news organization no longer go to someone like the USDA and just ask the question: is this product safe?

    I look at the list of so-called “disparaging” statements. The material used is referred to as “trimmings”. Another word for trimmings is scrap. Yes, it really is. Yes, the material was once used for dog food and cooking oil. Yes, it is a lower quality material–are they claiming it’s comparable to sirloin steak? And yes, the resulting material is “pink” and it is “slimy”–both of which are subjective, so how can they be found to be “false”?

    (I’m really looking forward to the day in court when the defendants bring in boxes of BPI’s product, and give it to the jury to fondle…)

    Will people like me be hauled into court, just for writing a comment like this some day? In the response to the individual defendants motion to dismiss, the document states that the use of the word “adulterant” in regards to the BPI product is defamatory. I used this word myself, in a published writing available online—will I get hauled into court? Especially since yes, it is a proper word to use?

    It’s insane, it’s disappointing, and it’s scary.

    A bit off topic: Could you possibly post court documents online? I can get access to federal court case documents through PACER, but I can’t access the pink slime, oh excuse me, BPI court case documents online. I’ve managed to track down quite a few via judicious searching, but had hoped to fill in the gaps.

    As a general rule, I’d be really grateful if Food Safety News posted court documents for public access. You could see about getting an account at DocumentCloud, to ensure simpler posting and access. Yes, most people won’t want to read the documents. Yes, legal documents in the hands of non-professionals probably does make most lawyers and judges cringe—but I think it’s important for people to have the ability to go beyond what’s released in the news in these stories.

    • Oginikwe

      “when did we, the people become so inconsequential?”

      Inconsequential we can at least address through our purchasing power. “When did we, the people become the enemy?” is what I worry about because yes, the day seems to be approaching when people like you will be hauled into court or just arrested as some kind of food/animal “terrorist.”

  • when you industrialize our food and livestock to the point that factory
    farming is today, you have a very serious threat to human and animal health. and
    then you have this ;

    Monday, March 3, 2014

    Gov. C.L. “Butch” Otter of Idaho signs bill that will force consumers to
    eat dead stock downers and whatever else the industry decides


    it is what it is, $$$

    Terry S. Singeltary Sr.

  • Barb3000

    I don’t eat beef or pork anymore. I saw a film a few years ago about how the meat was processed before becoming sausages with large slabs of fat from slaughter plants dumped in the large vats along with spices and ground up and stuffed in the sausage casing. No wonder there is so much heart disease in this country. With rows in every supermarket stuffed with junk food loaded with sugar, sodium, fat and who knows what else.

    • Mulamootil

      Not sure if you are aware that heart diseases are very high in places in India where people are vegetarians in high numbers. There is lot more to it than eating meat. In moderation all is good.

  • LouWho

    I’m sure the laid off employees find it to be more than “unfortunate”.

  • Bill Simmons

    I find it sad that people are throwing away parts of an animal because rich people in the media made it “icky” to cause a scare, to sell more ads. They are the worst of the dirty capitalists. It’s wrong to kill an animal and then throw it away.