Elk Point population sign credit Dan FlynnELK POINT, SD — Apple growers sued CBS News 28 years ago over just one segment on “60 Minutes” about the chemical Alar that aired on Feb. 26, 1989, and Texas cattlemen sued Oprah 21 years ago because she expressed her fears about Mad Cow Disease during just one of her programs in April 1996. Those were the days when any newspaper or television station sued for libel was quick to tell their journalists to be sure not to repeat “the libel” or the words somebody was claiming as libel.

In the $1.9 billion civil lawsuit that’s now being heard by a South Dakota jury, Beef Products Inc. has invested $1.8 million in its first expert witness for testimony that depicts Disney’s ABC Television as a sort of defamation carpet bomber.

First to testify for BPI was Columbia University Business School Professor Ran Kivetz, who acknowledged on cross examination that he’s earned $1.8 million since joining BPI’s team four years ago. Kivetz holds the Philip H. Geier endowed chair at Columbia and is considered an expert in the areas of behavioral economics, decision making, marketing, customer behavior, incentives and innovation.

Kivetz frequently is recognized as an expert witness and almost always turns to give his answers directly to the jury. Combined, he was on the witness stand for more than a day during the trial here Monday and Tuesday in the Union County Court House.

illustration survey saysHe testified he had a number of jobs for BPI. He tallied every “media communication” from ABC, including all of its various news platforms as they existed in 2012. He conducted four consumer surveys to measure public opinion on how BPI’s lean finely textured beef (LFTB) product was viewed by consumers who were exposed to ABC’s reports.

According to Kivetz, ABC is resonsible for 131 “media communications” between March 7  and April 3 in 2012 that together referred to BPI’s lean finely textured beef as “pink slime” more than 350 times.

The Columbia University professor tracked every one of ABC’s pink slime stories across every platform that was available to the network in 2012, on-air, videos and text files on ABC’s website, Facebook and Twitter.

Kivetz contracted with shopping mall survey companies to collect public opinion on ABC reports that aired on March 7 and 8, 2012. More than 1,600 people participated in four surveys. He testified he found 61 percent said BPI’s product was not beef; 32 percent did not consider it safe; and 52 percent did not view it as nutritious. In the fourth survey, 31 percent suspected BPI of improper conduct.

Ran Kivetz, left, and Dane Butswinkas
Ran Kivetz, left, and Dane Butswinkas

During cross examination, ABC attorney Dane Butswinkas asked Kivetz to acknowledge that pushing broadcast stories across multiple platforms is “the way it’s down now.” Also Kivetz admitted two calculations in his reports were in error and were not corrected until reviewed by ABC’s expert.

The ABC attorney also questioned Kivetz’s story selection for the survey work. An on-air piece on the safety of “pink slime” was not included in the survey work.

The Alar lawsuit, where the apple growers were seeking $250 million, was tossed because a federal judge decided it was not possible to prove what CBS said was false.

The Texas cattlemen lost their $12 million lawsuit against Oprah. It, like BPI v ABC, involved food disparagement law.

The South Dakota food disparagement law is one of 13 state laws that typically allow a food manufacturer or processor to sue a person or group who makes disparaging comments about their food products.

As for the trial scheduled to last eight weeks, testimony begins each day at 8:30 a.m. and concludes at 4 p.m. There’s one 20-minute break in the morning and another in the afternoon with 45 minutes for lunch. If it takes longer than scheduled, it is nothing to be for lack of trying.

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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