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Tuesday, March 14, 2017

ABC News to Face South Dakota Jury Over ‘Pink Slime’ Story

Lawsuit claims reporting caused $1.9 billion worth of damage to meat-product maker Beef Products Inc.

Ninety-seven percent lean ground beef is a product of meat processed after the fatty portion is removed in 2014 at Beef Products Inc. in South Sioux City, NE.
Ninety-seven percent lean ground beef is a product of meat processed after the fatty portion is removed in
 2014 at Beef Products Inc. in South Sioux City, NE. PHOTO: DAVE EGGEN FOR THE WALL STREET JOURNAL
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.

From the Archives

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There’s plenty of blame to go around for the pink-slime frenzy. The only innocent bystander is the cow. John Bussey on The News Hub looks at why producers finally capitulated this week and agreed to label their product. Photo: Nati Harnik/AP (Originally published April 5, 2012)
“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,” s
he 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.”