Lawyers: ‘Pink slime’ lawsuit an uphill climb

A sam­ple of Beef Prod­ucts Inc.

CHET BROKAW

GRANT SCHULTE

Asso­ci­ated Press

LINCOLN, Neb. — Beef Prod­ucts Inc. will face a steep climb in its “pink slime” defama­tion law­suit against ABC News as the South Dakota-based meat proces­sor works to rebuild its pub­lic image, legal experts say.

BPI sued ABC News, Inc. for defama­tion Thurs­day over its cov­er­age of a meat prod­uct that crit­ics dub “pink slime,” claim­ing the net­work dam­aged the com­pany by mis­lead­ing con­sumers into believ­ing it is unhealthy and unsafe.

The Dakota Dunes, S.D.-based meat proces­sor must prove that the net­work know­ingly pub­lished false infor­ma­tion and intended to harm its busi­ness. A lawyer for BPI expressed con­fi­dence that the com­pany would pre­vail. But defama­tion– and food-law experts said the case would be dif­fi­cult to win.

The law­suit seeks dam­ages under South Dakota’s defama­tion law, as well as a 1994 state law that allows busi­nesses to sue any­one if they know­ingly spread false infor­ma­tion that a food prod­uct is unsafe. The com­pany is seek­ing $1.2 bil­lion in dam­ages for roughly 200 “false and mis­lead­ing and defam­a­tory” state­ments about the prod­uct — offi­cially known as lean, finely tex­tured beef — said Dan Webb, BPI’s Chicago-based attorney.

The 257-page law­suit names Amer­i­can Broad­cast­ing Com­pa­nies Inc., ABC News Inc., ABC news anchor Diane Sawyer and ABC cor­re­spon­dents Jim Avila and David Ker­ley as defen­dants. It also names Ger­ald Zirn­stein, the USDA micro­bi­ol­o­gist who named the prod­uct “pink slime”; Carl Custer, a for­mer fed­eral food sci­en­tist; and Kit Fos­hee, a for­mer BPI qual­ity assur­ance man­ager who was inter­viewed by ABC.

ABC News, owned by The Walt Dis­ney Co., denied BPI’s claims.

“The law­suit is with­out merit,” Jef­frey W. Schnei­der, the news station’s senior vice pres­i­dent, said in a brief state­ment Thurs­day. “We will con­test it vigorously.”

Webb expressed con­fi­dence Thurs­day that the com­pany would win. The law­suit filed in a Union County Court in South Dakota cites net­work reports that said the prod­uct was made with “low grade” meat, includ­ing “scraps” and “waste.” ABC News also allegedly said the beef was made from con­nec­tive ani­mal tis­sue, when, in fact, it’s made from mus­cle, accord­ing to the lawsuit.

Com­pany offi­cials have long insisted that the prod­uct is safe and healthy, and blamed the clo­sure of three plants and roughly 700 lay­offs on what they viewed as a smear campaign.

The lean, tex­tured beef trim­mings were the sub­ject of many media reports ear­lier this year, and also have drawn com­ments from tele­vi­sion chefs and food com­men­ta­tors. This year’s social media uproar prompted Beef Prod­ucts to sus­pend oper­a­tions at plants in Amar­illo, Texas; Gar­den City, Kan.; and Water­loo, Iowa. Beef Prod­ucts’ plants in Iowa and Kansas each pro­duced about 350,000 pounds of lean, finely tex­tured beef per day, while the one in Texas pro­duced about 200,000 pounds a day.

Nick Roth, direc­tor of engi­neer­ing for BPI, said the com­pany is “absolutely ded­i­cated to rebuild­ing,” but he con­ceded that it’s going to be hard to get back to where they were before the con­tro­versy. Com­pany offi­cials said there are no plans to file for bank­ruptcy at this time.

“The U.S. places great impor­tance on free speech and the value of open pub­lic debate,” Hamil­ton said. “A jury may have a very dif­fi­cult time find­ing the news sto­ries involved here were defam­a­tory, or that there was any intent to harm the company.”

South Dakota is one of 13 states that have enacted a food-disparagement law, but there’s vir­tu­ally no his­tory of the laws being used in law­suits, said Neil Hamil­ton, a Drake Uni­ver­sity pro­fes­sor and direc­tor of the Agri­cul­tural Law Cen­ter in Des Moines, Iowa.

Food-disparagement laws are also in place in Alabama, Ari­zona, Col­orado, Florida, Geor­gia, Idaho, Louisiana, Mis­sis­sippi, North Dakota, Ohio, Okla­homa and Texas. Hamil­ton said the most recent state to approve a law was North Dakota in 1998, and the issue has since received lit­tle attention.

One of the most high-profile cases involved Oprah Win­frey, who was sued in 1998 by a group of Texas ranch­ers for a show in which she swore off eat­ing ham­burg­ers because of mad cow dis­ease. The Texas law for­bids false and dis­parag­ing remarks about agri­cul­tural prod­ucts. A jury even­tu­ally sided with Win­frey and another defen­dant, ani­mal wel­fare activist Howard Lyman.

Greg Sat­ti­zahn, chief legal coun­sel for South Dakota’s judi­cial sys­tem, said no appeal deal­ing with the food dis­par­age­ment law has come before the state Supreme Court. The judi­cial sys­tem does not track civil cases filed in cir­cuit court by the sec­tion of law cited, but he does not remem­ber hear­ing of any law­suit based on the dis­par­age­ment law being filed in cir­cuit court any­where in South Dakota.

BPI will have to pro­duce “extreme” evi­dence that the net­work acted irre­spon­si­bly, such as proof that their research used obvi­ously unre­li­able sources, said Uni­ver­sity of Wis­con­sin jour­nal­ism pro­fes­sor Bob Drech­sel, who teaches media law.

Drech­sel said he wasn’t sur­prised to see the law­suit but ques­tioned whether it would suc­ceed. Most defama­tion cases end with a set­tle­ment or a judge’s order dis­miss­ing the case before it goes to trial, he said.

“It’s always an uphill bat­tle for any­one to win a libel suit,” Drech­sel said. “They’re going to have to prove that ABC falsely reported infor­ma­tion, and they’re going to have to prove that ABC News knew that the sto­ries were false or they had seri­ous doubts about the truth.”

Drech­sel said the law­suit may also be a tool to gen­er­ate pub­lic­ity and restore the company’s image.

“Some­times, you don’t always sue to win,” he said. “You win when you sue.”

Posted by AP News on Sep 14 2012. You can follow any responses to this entry through the RSS Feed. Comments can be made below.