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Where’s the beef? The question brings to mind the popular 1980s slogan of the fast-food chain Wendy’s that made its way into politics courtesy of a 1984 presidential debate. More than three decades later, that question is again being raised in a high-stakes, politics-infused showdown between Beef Products Inc. and ABC News.
On Monday, both sides presented opening statements in what could become the biggest defamation trial in American history. With billions of dollars on the line, BPI told jurors how a series of ABC News reports in March 2012 about its product, officially called “lean finely textured beef” (LFTB) and dubbed “pink slime” by critics, is to blame for the loss of 75 percent of its business. ABC, in turn, defended itself with a scathing attack on BPI’s product while defending the integrity of its own journalism.
The proceeding, expected to last a couple of months, is happening in Elk Point, S.D., a town with a population of just 2,000. About five dozen people crammed into a makeshift courtroom in the building’s basement. According to one local newspaper, the county spent $45,000 preparing this windowless scene of the “pink slime” trial with the expectation that both sides would bring an army of lawyers and the national media trailing closely behind.
Those who attended Monday heard two vastly different stories. BPI’s was one of entrepreneurship and destruction. ABC’s was about politics and secrecy.
Dan Webb, a former U.S. attorney and a partner at Winston & Strawn, went first on behalf of BPI.
He took jurors through the story of Eldon Roth, a man who had grown up in South Dakota, never graduated high school, and through his unique mind and expertise with machinery, had founded BPI and created “game-changing technology” to transform the meat industry. BPI’s product was at one point found in 70 percent of the ground beef sold in supermarkets. The company was moving 5 million pounds per week. And Webb presented this as a welcome development because consumers got a good source of lean beef at more affordable prices while also benefiting the environment thanks to fewer slaughtered animals.
Then, ABC came along.
“It took 30 years to succeed and it took ABC less than 30 days to severely damage the company,” Webb told jurors.
On March 7, 2012, ABC’s initial report about LFTB was broadcast on World News, the nightly show then anchored by Diane Sawyer. The report featured interviews with two microbiologists and made what BPI contends were defamatory implications about the safety and nutrition of its product. Subsequent reports that month, including one that featured an interview with a former BPI employee, would lead to the impression in viewer’s minds, BPI argues, that its product isn’t really beef — nor even meat — and was only approved by USDA regulators through the company’s improper conduct.
The number that Webb wants the jury to keep in mind is 350.
That’s how many times ABC on various platforms would call LFTB “pink slime,” a characterization that BPI contends is evidence supporting the preconceived negative message ABC wished to convey.
“They ignored the proper name,” said Webb. “When you have a major news organization that is calling the product ‘slime,’ witnesses will say they can’t imagine anything worse. It connotes something disgusting, inedible.”
The jurors were shown a picture of LFTB.
“It physically doesn’t look like slime,” argued Webb.
The attorney acknowledged that the term wasn’t coined by ABC. It actually came from a 2002 email by Dr. Gerald Zirnstein, a former USDA scientist who was one of the individuals interviewed by ABC. But Webb asserted that the “pink slime” term got “minimal coverage” before ABC repeated it ad nauseum on air and to BPI’s supermarket customers when reporters at the network aimed to figure out who was carrying the product. BPI’s attorney would then lean on the USDA task force approving the product in 1992 in support of the proposition that LFTB was indeed safe and the product’s labeling showing protein and iron content for the proposition that LFTB was indeed nutritious. As for other elements like how LFTB is treated with ammonia, Webb framed it as something that’s routinely done in agriculture.
As BPI is a big company deemed by the judge to be a “public figure,” BPI also has to demonstrate so-called “actual malice” to win a defamation claim. What this means is that BPI needs to show that ABC’s reporters had awareness of the story being false or exhibited a reckless disregarded the truth.
Webb presented ABC’s sources — Zirnstein, another ex-USDA scientist named Carl Custer, and “whistleblower” Kit Foshee, the former director of quality assurance and food safety at BPI — as biased individuals. He added that ABC and its correspondent and co-defendant Jim Avila had ignored “independent experts” who were willing to speak to the quality of its product.
One story in particular was highlighted.
On March 8, 2012, Avila got on the phone with Dr. David Theno, who was a paid consultant in the agriculture industry. According to Webb, Avila hung up on Theno after hearing that LFTB was the safest component in ground beef. Theno thought the two had been disconnected. But Webb added that when Theno called back, Avila said, “F— you.”
“That’s what happens when someone tells ABC something different from what they wanted to hear,” said BPI’s attorney.
Webb ended his opening statements by contrasting what happened at the headquarters of ABC and BPI upon the announcement that the company was closing three of its plants after the fallout from the “pink slime” reports. Raising his voice in outrage, Webb said ABC staffers were congratulating each other in emails and “backslapping” each other. Lowering his voice with a solemn note, Webb talked about the press conference where hundreds learned they would be losing their jobs.
Dane Butswinkas, a partner at Williams & Connolly, then stood up to present ABC’s version.
In pretrial proceedings, ABC’s lawyers argued to no avail that value judgments like what’s safe and what’s nutritious are not provable statements of fact and should therefore not go before a jury. But those are technical, lawyerly arguments, and while Butswinkas certainly did make note of “opinions” during the course of the opening statement, he focused much more heavily on attempting to buttress the truth of ABC’s reports by launching a blistering attack on both BPI’s product and the way it got approved. The courtroom became so heated with objections from the other side that at one point, a judge ordered a recess. A visibly angry Butswinkas muttered to opposing counsel, “You got some nerve.”
Butswinkas began by telling the jurors, “If any of you have children, you know there are two sides to a story. This case is no different. … The secret ingredient in [BPI’s] product was secrecy.”
Taking a Sharpie, the attorney then drew on a board for jurors what he called the “Hamburger Hierarchy,” a list that had ground beef at the top, hamburgers below, beef patties below that, beef patty mix then next, followed by weird-sounding terms like “partially deflated chopped beef” and “partially defatted fatty beef tissue.”
Butswinkas said the true story from a regulatory standpoint was how BPI took its product from the bottom of the hierarchy to nearly the top without anyone knowing it. The attorney then recounted the years-long process where the USDA was bombarded with lobbying letters and how Joann Smith, the former undersecretary of agriculture at the time, would go on to work for BPI’s main supplier.
“None of this was illegal,” Butswinkas told jurors. “Just another day in the swamp. Politics as usual.”
The case is playing out in South Dakota, a state that voted overwhelmingly for Donald Trump, and ABC’s attorney delivered his remarks with some understanding of the local dynamic.
For instance, Butswinkas began a section of his opening statement geared towards all the reporting and commentary that preceded ABC’s by mentioning how Rush Limbaugh had expressed concern with how pink slime was being served to school kids and how the conservative icon had taken the government to task. Butswinkas made sure to mention how Limbaugh cited Custer and Zirnstein, too. The attorney added that the idea for ABC’s report was inspired by a story in the defunct web publication, The Daily, which Butswinkas added gratuitously was owned by the same company that owns Fox.
That Daily report, along with a Pulitzer Prize-winning 2009 exposé in The New York Times titled “Safety of Beef Processing Method Is Questioned,” showcased how “the air of secrecy was already deflating” by the time ABC got around to it, according to Butswinkas. What’s more, the attorney said “the dam had burst” two months before March 2012 when BPI lost its three biggest customers — McDonald’s, Burger King and Taco Bell.
“If school lunches and fast food chains [were pulling away from BPI], how long could it have been for supermarkets to follow?” asked Butswinkas to sustained objections from BPI’s attorneys.
After putting a public face to the journalists at ABC by introducing their backgrounds and accomplishments, Butswinkas then spoke about how ABC’s report wasn’t about safety, but rather about labeling. Whereas Webb mentioned “pink slime” at all opportunities, ABC’s lawyer hardly did, but when he uttered the controversial phrase, he attempted to deflate its importance. The attorney presented an alternative number to the 350 times that ABC used it during the month of March 2012. Butswinkas cited evidence that “pink slime” had been used 3,870 times by others in the media before the ABC report, and how it was actually BPI that originally created the Wikipedia page for the term. He also cited BPI’s own patent as describing its food product invention as “paste.”
But the real core of ABC’s opening statement was Butswinkas‘ detailed review of the history and problems of LFTB based on BPI’s internal documents. Much of this has never been made public before and served as the reason for massive secrecy at the pre-trial stage. In sum, Butswinkas portrayed BPI’s product as maybe being far worse than ever advertised in the news. For example, the attorney spoke how the addition of ammonia changed the PH levels and how the product was treated under heat so as to resolve issues with bacteria including e. coli and salmonella. But the problem, Butswinkas said evidence would show, was that the process was creating a nasty, musty smell and poor taste. So the PH levels were taken down again. When that happened, McDonald’s allegedly reported to BPI that its customers were getting sick, with BPI’s response being, don’t put too much of the product in your ground beef. On the day ABC’s report aired, said Butswinkas, BPI’s product had a positive test for e. coli.
Butswinkas told jurors how some of these issues were rated a “crisis” by BPI’s PR team even more so than than the descriptor “pink slime.” He repeated how the company’s secrecy was the real story for jurors to consider.
Both sides will now present witnesses and evidence. BPI will first look to a marketing expert to testify about the reach of ABC’s so-called “campaign” to tarnish its product. The plaintiff plans to present findings from a survey about whether viewers got the impression that its product was unsafe, not nutritious, and not really meat. When it is ABC’s turn, the network has its own survey lined up. Teased by Butswinkas, it evidently shows 102 out of 102 individuals preferred the visual of “traditional” beef to LFTB and 101 of 102 preferred the taste.
The end of opening statements came when Butswinkas acknowledged how everyone on his side are “outsiders,” and how he had conducted the juror-picking process by focusing on which individuals would work most hard to sort the evidence. He concluded, “The only favor I’ll ask is that you look at the details.”
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