2:27pm PT by Eriq Gardner
ABC Confronts Beef Company's Lawyer With Rush Limbaugh's "Pink Slime" Commentary
Given that ABC was hardly the first to describe lean finely textured beef as "pink slime," why is this broadcast network and not The New York Times, Rupert Murdoch's News Corp., or Rush Limbaugh on trial in a $5.7 billion defamation case in Elk Point, South Dakota? On Wednesday, a jury got an answer of sorts from Rich Jochum, corporate administrator at Beef Products Inc.
The trial is now in its 13th day of testimony. BPI continues to press its case that in March 2012, ABC falsely stated or implied that lean finely textured beef (LFTB) isn't beef, isn't nutritious, isn't safe and was only approved by government regulators through misconduct. The proceedings continue to spotlight the themes of media bias and corporate secrecy outlined in opening statements.
On Wednesday, the "pink slime" proceeding moved away from mysteries about BPI's product to what's been generally known about LFTB — and how the plaintiff reacted to and influenced that perception. ABC lawyer Dane Butswinkas forced Jochum to confront the many comments about his company's product before World News had ever uttered "pink slime" on the air.
Jochum has been on the witness stand for several days now, and before today's testimony, Butswinkas presented a Pulitzer Prize–winning 2009 exposé in The New York Times titled "Safety of Beef Processing Method Is Questioned."
That led to a flurry of objections from BPI, which eventually resulted in a new instruction given to the jury by South Dakota Judge Cheryle Gering.
The judge said that if ABC personnel reviewed pre-March 2012 "pink slime" stories, jurors may consider those stories "solely for the purpose of evaluating whether the ABC reports caused the financial damages being sought and defendants' knowledge or state of mind," and that if ABC personnel hadn't reviewed those stories, jurors may consider those articles "both on the issue of causation and the issue of ABC's knowledge or state of mind."
In other words, jurors can't use the articles to form any conclusions about BPI's product. But they can use them to help figure out responsibility for damage as well as whether ABC had recklessly disregarded truth.
With that important context, Butswinkas pointed Jochum's attention to what Limbaugh told listeners on March 6, 2012 — a day before ABC World News covered "pink slime."
The conservative radio host was responding to an article in The Daily —a web-only publication that was published by News Corp. before shuttering. A transcript of Limbaugh's commentary is still on his website.
"What did you think beef is?" asked Limbaugh. "I know you don’t eat it, but what did you think it was? No, it’s the muscle. And it’s not cows; it’s steers. Cow meat goes into this garbage they give to kids at school when the federal government’s in charge of it."
Later, Limbaugh added, "So this is what happens if you let the government get involved. Pink slime that’s said to be ground beef, but it isn’t, served to your unsuspecting kids at school."
Jochum was read what Limbaugh said.
"Yeah, I see," responded BPI's lawyer. "I hadn't focused on that. It's kind of interesting because it displays his lack of knowledge."
"By this time, there was thousands of articles referring to your product as 'pink slime,' right?" Butswinkas asked.
Jochum says he didn't know.
"After the Daily article and Rush Limbaugh show, things were spiraling out of control," said Butswinkas. "Isn't that what your lawyer said to you?"
Jochum again expressed a lack of knowledge even when he was shown a letter from BPI's outside attorney. "He may have," said the witness. "He'd have no way of knowing."
"Was the negative publicity that BPI was receiving a significant issue?" asked Butswinkas.
"No, we had not lost any business," responded Jochum.
Voilà! Perhaps here's the real reason why the first three letters of the alphabet are becoming acquainted with a South Dakota town with the population of 2,000. BPI evidently can tolerate a Pulitzer Prize–winning article in the nation's most influential newspaper, but having "pink slime" uttered 361 times in 131 broadcast and social media communications is too much. Lost business. ABC producers asking supermarkets whether they carried "pink slime" might result in such harm.
But then again, BPI has a small problem.
"Weren't you concerned that from January 2009 to February 2012, 60 percent of your business was gone?" asked Butswinkas, referring to how BPI lost its three biggest customers — McDonald's, Burger King and Taco Bell — in the time preceding ABC's reporting.
Jochum stumbled through an answer. He said it was an "opportunity," that while those customers pulling business "wasn't something that was enjoyable," BPI had a "plan," and that he was confident that over time, the company would win them back.
Butswinkas moved to a related subject — how BPI had hired the public relations firm Levick around the time that Jamie Oliver's ABC reality series Food Revolution had broadcast a report about the company's beef product.
One of the things that Levick did for BPI in July 2011 was create a Wikipedia page for "pink slime."
Jochum admitted it.
"They were putting together a Wikipedia site for us to be able to discuss that it was a derogatory term," he said.
Given information from BPI and allowed to tour the production facility, the company's communications expert that year put together a draft for the Wikipedia page that included a line how "this lean beef product is USDA approved and is a component of less than 15 percent of nearly three quarters of all ground beef in the United States."
Butswinkas read that.
"Yes," responded Jochum. "Obviously, we had some education to do with him."