Before the start of the BPI v. ABC trial this past Monday in Elk Point, SD, I read a story by Eriq Gardner in the Hollywood Reporter that boiled the case down to “whether preconceived negative spin in the media should result in massive punishment.”
I can answer that question right now after only hearing one week of testimony in a trial that is scheduled to last eight weeks. ABC did have a “preconceived negative spin” about BPI’s lean finely textured beef (LFTB) product. It would not have called the product “pink slime” more than 350 times in a month if it was trying to put a little positive tilt on their stories.
Massive punishment in this civil defamation case means only one thing — money.
The Walt Disney Co. is one of six corporations that control 90 percent of the media. It owns ABC Television, ESPN, Marvel and Pixar and had overall 2016 revenues of $55.63 billion. Who’s going to notice if Disney has to roll off nearly $6 billion for harming BPI?
But, wait, wait, wait. I almost forgot, this is why we are having the trial is it not?
“Preconceived negative spin” is one thing, but so is the use of truth as a defense. That’s why the trial is now in the fact-building phase, with BPI putting on expert witnesses to testify that LFTB is meat, and is beef, and is nutritious. And showing that comparisons to slime or jello are off target.
For every BPI expert, there is an ABC attorney ready with a cross examination, making it clear that whatever preconceived notions network reporters and producers had, they were getting confirmations for their reports from their own experts and generally following common journalistic practices.
It’s probably going to go on like this for a while. It’s a tedious process this search for justice, especially for those directly impacted.
BPI founder Eldon Roth and family sit on the right side of the courtroom in the front row, listening to every word. Roth is a South Dakota native. When times were tough, without a high school diploma or college degree, he discovered his own mechanical genius and demonstrated it at the patent office as he built the industrial plants that made his beef recovery processes an economic success.
Just a few feet away, to Roth’s left, sits Jim Avila, currently Senior Law and Justice Correspondent for ABC News. Amicable with a broad easy smile, Avila is from a broadcast family. He and his brothers adopted their maternal grandmother’s name as a way not relying on their father’s name. Their dad was Jim Simon of the Mutual Broadcasting Network fame who is often referred to as “the father of talk radio.” In addition to reporting, Avila frequently anchors ABC’s World News Saturday.
A 12-member jury with four alternates — 11 women and five men — are going to have to sort this all out. Each time they come and go from the court room, the judge gives them a stern warning not to talk to each other or anyone else about the case; and not to expose themselves to any media about it. Judge Cheryle Gering always ends it by telling jurors they need to keep an open mind.
Those repeated warnings aren’t the only sign that the judge is going to keep a tight rein. By mid-week, this reporter observed two grey vans that appeared to be providing transportation for the jurors to and from their homes. She also made it no secret that jurors could be sequestered once they begin deliberations.
The jury instructions were read aloud before opening statements. The instructions say jurors are to make decisions by using a preponderance of the evidence. But, it sounds like BPI has to prevail on every part of their complaint before they can move to the monetary awards phase where winnings could be tripled under South Dakota law.
If BPI can convince the jury to award its full claim of $1.9 billion, that amount theoretically could be tripled under the South Dakota Food Products Disparagement Act. That’s where the $5.7 billon number comes from that is associated with this litigation.
But, there’s a long way to go and some of it will be over new ground. ABC spread its “pink slime” broadcast reports across all available platforms — websites, Twitter, Facebook etc. We’ve probably seen the last time when a libel or disparagement lawsuit is going to be about a single program or news story. All those platforms added up by BPI is why it can say ABC called LFTB “pink slime” more than 350 times.
Using all those platforms is even more common now than it was in 2012, but until now it’s not been tested before a jury.
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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