Opening arguments begin in ABC News, BPI defamation case

by Erica Shaffer
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ELK POINT, S.D. – Nearly five years after Beef Products Inc. (BPI), launched a product defamation lawsuit against ABC News, a jury is finally hearing opening arguments in the case.

BPI filed a defamation lawsuit Sept. 13, 2012, against ABC News, reporter Jim Avila and others alleging the network’s news coverage of lean finely textured beef (LFTB) misled consumers to believe the company’s product, labeled in many reports as “pink slime”, was unhealthy and unsafe.  In his opening arguments, lawyer Dan Webb, representing BPI, argued that ABC deliberately ignored experts who refuted the negative portrayals of LFTB.

For example, when ABC used the term “pink slime” the network “…was clearly communicating to viewers that LFTB is not nutritious,” Webb said to jurors. “Viewers do not believe slime is nutritious.”

He also said the ABC news report implied that BPI and the US Dept. of Agriculture (USDA) engaged in improper conduct to gain approval for LFTB, and ignored input by meat industry experts, including food safety specialist David Theno, Ph.D. Instead, Webb argued, ABC News and Jim Avila aired negative comments about LFTB made by sources who had no personal experience with LFTB or were biased against the USDA and BPI.

BPI subsequently closed three processing plants and reported lost products totaled $700 million, while the company’s lost business value was $1.2 billion because of ABC News’ coverage. “You get to decide whether that shows ABC acted with reckless disregard for the truth,” Webb said.

But Dane Butswinkas, representing ABC News, said BPI’s losses were not due to the network’s coverage of BPI and LFTB. “The evidence will demonstrate that the secret ingredient in their product was secrecy,” he said. “What you’ll see is the cat started to come out of the bag, the air started to come out of the balloon, and the secret started to slip away.”

Butswinkas argued that as far back as 1989, scientists at USDA expressed concerns about LFTB and said that LFTB couldn’t qualify as ground beef — but did qualify as partially de-fatted chopped beef.

Butswinkas also argued that the network did not engage in a campaign against BPI because news reports of LFTB amounted at most to 2.5 percent of ABC News’ coverage. Additionally, he referenced an article published in the New York Times in 2005 — before ABC News’ broadcasts — that questioned the safety of LFTB.

Sources included in the story were Gerald Zirnstein and Carl Custer, former scientists with the USDA’s Food Safety and Inspection Service (FSIS) who were critical of LFTB. Zirnstein and Custer also served as sources in other reports about LFTB before ABC News broadcast the network’s reports, Butswinkas said.

The trial is expected to last eight weeks.

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