By Peg Brickley
A judge in South Dakota has cleared the way to trial of a
lawsuit claiming ABC News "pink slime" coverage caused $1.9 billion
worth of damage to the business of Beef Products Inc., which makes
the meat product tagged with the term.
Judge Cheryle Gering threw out defamation claims against anchor
Diane Sawyer but left standing accusations against ABC News and
multiple Emmy award-winning journalist, Jim Avila.
Judge Gering, in rejecting ABC's bid to have the case dismissed,
said a jury could find the network was pursuing "a negative spin"
on the story before conducting any research and that Mr. Avilla had
an anti-meat-industry agenda.
"Looking at the evidence in a light most favorable to the
plaintiffs, a jury could determine that there is clear and
convincing evidence that ABC Broadcasting and Mr. Avila were
reckless," the judge said, and that "they engaged in purposeful
avoidance of the truth."
Five years in the making, the case threatens ABC News with
punishing damages over its coverage of lean, finely textured beef,
or LFTB, a component of about 70% of the ground beef found on
supermarket shelves in 2012, when the stories ran.
Due to a South Dakota food-libel law that triples damages
against those found to have knowingly lied about the safety of a
food product, ABC News could be hit with as much as $6 billion in
damages.
The network stands by its reporting.
"We are pleased that the Court dismissed all claims against
Diane Sawyer, " ABC News said in a statement. The Court hasn't
ruled on the merits of the case against the other defendants, and
we welcome the opportunity to defend the ABC News reports at trial
and are confident that we will ultimately prevail." Decades of
First Amendment law back ABC's defense -- its right to report
truthfully on a newsworthy subject, what is in the nation's food
supply, the company's lawyers say. Every broadcast said the meat
product was safe.
Beef Products says it was forced to close three of its four
plants and erase hundreds of jobs when consumers recoiled. It
declined to provide current production figures.
The case, the latest media test of the boundaries of the First
Amendment, will play out before a jury in Union County, S.D., where
Beef Products is based, and where jobs were lost after the ABC News
broadcasts.
Beef Products filed the case in state court in September 2012,
but ABC News moved swiftly to move the lawsuit to federal court,
which is generally considered a more comfortable forum for a
national company caught up in a dispute with a local business.
Trial strategists view state courts as a more sympathetic forum for
locally-based businesses, while large corporations fare better in
federal courts.
ABC asked the federal judge to throw out a case that it said
"directly challenges the right of a national news organization, two
USDA scientists, and a former BPI employee to explore matters of
obvious public interest -- what is in the food we eat and how that
food is labeled. The complaint also inhibits others who might
address these subjects in a public forum."
A federal judge in June 2013 sent the case back to state court,
telling ABC News to make its argument for dismissal in that
forum.
A year ago, a Florida jury found Gawker Media Group guilty of
invading the privacy of ex-wrestler Hulk Hogan by publishing a
video of him having sex with the wife of a radio shock jock.
Gawker's legal team for months had signaled they felt there was a
strong possibility the St. Petersburg, Fla., jury would sympathize
with Mr. Bollea, a hometown hero. Facing a $140 million verdict,
Gawker filed for bankruptcy and sold its the business to Univision
Communications Inc.
"The American public is hostile to the media. Every news outfit
should be very afraid of what a jury will do," said Mary-Rose
Papandrea, a professor at the University of North Carolina School
of Law.
Beef Products says ABC News whipped up the controversy about the
meat product to boost ratings, inflaming consumers' fears and
forcing the plant closures.
"This was fake news," Beef Products lawyer J. Erik Connolly told
Judge Gering during arguments in January. "It's perfectly safe.
It's perfectly nutritious. It was properly approved by the USDA.
There was no news here. There was nothing to rush out and talk
about. There was no news."
The term "pink slime" was in wide use after a 2009 New York
Times story on the product, but it exploded on social media after
the ABC News broadcasts. The network focused on the fact ground
beef labels made no mention of LFTB, made from defatted beef
trimmings in a process involving ammonium hydroxide.
"Why -- if it is just another additive, a way to put leaner beef
in the burgers at a cheaper price, if it is no problem, if it's
safe, all those things, why not just label it? Why not just put it
on the package?" Mr. Avila asked a meat industry spokeswoman in an
interview.
Mr. Avila, the judge said, was "rude, agitated and hostile" in
his questioning of the Beef Products defender.
The BPI lawsuit claims ABC News use of the term "pink slime"
amounted to a concerted disinformation against the company,
violating South Dakota's food disparagement law. A dozen other
states have passed similar laws following the 1989 Alar scare.
Apple sales sank after a broadcast on the CBS newsmagazine program
"60 Minutes" linked Alar to health risks, and the pesticide was
banned from use on food.
Michael Roberts, director of the Resnick Program for Food Law
and Policy at University of California Los Angeles School of Law,
says Beef Products pioneered a system to produce a safe meat
product that reduces the number of cattle that need to be
slaughtered. But, he says, food disparagement lawsuits can "detract
from that process" of open public discussion on food safety.
"If you shut down the scrutiny of news organizations, consumers
are going to be very concerned and going to discuss among
themselves on social media," said Mr. Roberts. "Would you rather
have misinformation on social media?"
As the "pink slime" coverage played out, Beef Products endorsed
a USDA move to allow voluntary labeling so consumers would know
which packages of ground beef had LFTB and which didn't.
Beef Products also launched a counteroffensive, mustering
governors of big meat-producing states and advisers to persuade
others writing on the topic that ABC News got it wrong. Marion
Nestle, the Paulette Goddard Professor of Nutrition, Food Studies,
and Public Health at New York University, who wrote about Beef
Products' problem in 2012, says she was confronted with "nothing
less than a major effort to get me to agree that pink slime is
safe, something that was never at issue," she told The Wall Street
Journal. "Yes, it's safe, but that does not make it acceptable.
What we like to eat has a great deal to do with cultural values,
and the unfortunate name, 'pink slime,' made it culturally
unacceptable.
Write to Peg Brickley at peg.brickley@wsj.com
(END) Dow Jones Newswires
March 14, 2017 15:12 ET (19:12 GMT)
Copyright (c) 2017 Dow Jones & Company, Inc.
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