Lawyers: 'Pink slime' lawsuit an uphill climb

[September 14, 2012]  LINCOLN, Neb. (AP) -- 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."

[Associated Press; By GRANT SCHULTE and CHET BROKAW]

Brokaw reported from Pierre, S.D. Associated Press writer Kristi Eaton contributed from North Sioux City, S.D.

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