ELK POINT, SD — It would probably not be accurate to say Professor Mindy Brashears speaks with a Texas twang or that ABC’s attorney Dane Butswinkas has a Richmond dialect, but the difficulty the two have understanding each other slowed proceedings on the fourth day of the $1.9 billion civil defamation trial against the network.

Butswinkas, who is a  Virginian, had only about 10 minutes to cross-examine Brashears on Wednesday. He made up for it Thursday by keeping her on the witness stand for most of the day. Brashears is a professor and director of the International Center for Food Industry Excellence at Texas Tech University.

On direct examination Wednesday, Brashears offered her testimony as one of the top beef safety experts in nation, saying the lean finely textured beef produced in 2012 by Dakota Dunes-based Beef Products Inc. (BPI) was “definitely meat and definitely beef” and that it was not “pink slime.”

BPI is suing Disney-owned ABC Television and reporter Jim Avila over multiple broadcast and internet reports about its lean finely textured beef product (LFTB), which the network referred to as “pink slime” more than 350 times during a month-long period beginning March 7, 2012.

A Union County jury began hearing the dispute Monday under the South Dakota Food Product Disparagement Act.

Let’s do the time warp
Thursday was for sparing between the defense attorney and the beef safety professor. There was a sort of dividing line in time. Brashears kept returning to the LFTB product, approved with its beef label in September 1993, as it existed in 2012 and since.  Butswinkas used most of the cross examination to get into BPI’s earlier history.

The defense attorney asked the witness numerous questions about BPI’s pre-1993 product, which was called “partially defatted chopped beef.” It was not permitted in ground beef. BPI petitioned for a reclassification to allow the product to be included in ground beef and to change its name in April 1990.

Butswinkas wanted Brashears to acknowledge that at least three scientists at USDA’s Food Safety and Inspection Service opposed the BPI petition. She did, but only after talking about how the nonprofit, non-governmental National Academy panel approved it.

The two also went at it about whether the trimmings used by BPI for it’s LFTB product — which are 70 percent fat — are more dangerous than more lean trimmings used by other beef processors. At one point in time, FSIS was on the record saying there was increased danger with LFTB. Brashears, however, testified that she did her own study on the issue and found the theory did not hold up.

Butswinkas did get the professor to admit BPI was suspended from the National School Lunch Program on multiple occasions in 2007 and 2008. Brashears said those suspensions were essentially voluntary actions by BPI taken after pathogens were discovered in its product by the lab working for the lunch program. She said the action was consistent with BPI’s food safety plan.

Butswinkas produced a notice sent out by FSIS after BPI won its reclassification request for the product formerly known as “partially defatted chopped beef” that said the action was only a name change.

Brashears said the notice was neither official or complete. She also said she did not agree with some prominent meat scientists Butswinkas quoted. Those scientists said LFTB’s substance is “like coupe” — an ice cream or sherbet dessert — with “a consistency like mashed potatoes.”

The bottom line is the bottom line of this case
The meat packer sued ABC after the network’s reports in March 2012, citing them as the reason the BPI order book shrank by about 80 percent from 5 million pounds a week to about 1 million. The beef processor closed three of its four plants and terminated the employment of at least 650 workers, including many long-time employees.

Major grocery stories and fast food outlets ceased using LFTB as a ground beef component, but the sea change began before March 2012. McDonald’s stopped using it in August 2011 and Taco Bell and Burger King had both stopped using it by the end of that year.

BPI’s burden is significant. According to Circuit Judge Cheryle Gering’s jury instructions, it must prevail on every element of the charges or else it cannot proceed to the damage phase of the trial process. The entire jury would have to agree on every element.

Should it get that far, however, BPI’s $1.9 billion damages claim could be tripled to $5.7 billion under South Dakota’s Food Product Disparagement Act.

BPI is represented by Winston & Strawn, Chicago’s oldest law firm. ABC is represented by Williams & Connolly, one of Washington D.C.’s best known legal businesses.

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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