More Testimony Analysis In BPI/ABC Lawsuit

Amidst the minute-by-minute grind of corporate litigation — as the lawyers try to poke even the tiniest hole in witnesses’ testimony, and the witnesses try to get their larger points across — there are those palm-to-forehead moments that stand out.In Beef Products Inc.’s $1.9 billion defamation lawsuit against ABC News and reporter Jim Avila, one of those landed Tuesday afternoon. As North American Meat Institute senior vice president for public affairs, Janet Riley, picked her way through more than four hours of live testimony in the courtroom in Elk Point, S.D., she was asked to relate the substance of a brief, casual meeting she’d had with one of the ABC producers involved in the reports that called BPI’s lean finely textured beef product “pink slime.” Their children attended the same school, and Riley and the producer had met up at a football game.It was after BPI had sued the network, Riley recalled. “She (the producer) said she wasn’t surprised [BPI filed suit]. She thought [the network had] pushed too hard,” she said.Riley’s testimony. Indeed, most of Riley’s testimony sorted through volumes of emails as BPI’s attorneys sought to show that Riley, the American Meat Institute and others had provided ABC’s producers with plenty of information to balance the reporting the network did on LFTB, before the reports were broadcast, and that their contributions were all but ignored.Under cross-examination, however, ABC’s attorney Dane Butswinkas aimed to reframe the circumstances, illustrating that AMI had worked closely with BPI, BPI’s outside public relations firm and the third-party experts AMI had suggested to ABC in a way that could be seen as trying to control the flow of information.Butswinkas also questioned Riley extensively about whether or not Avila and ABC had said that the product was unsafe, pointing out that on several occasions the reports stated LFTB was “safe”. Rather, Butswinkas pointed out, the issue was why the product wasn’t mentioned on ground beef labels.Riley’s contention was that LFTB is simply beef and so there is nothing to be labeled separately. Moreover, although the network called LFTB “safe” the fact that the reports repeatedly referred to it as “slime” and called for it to be labeled separately, and listed the supermarket chains that had, or had not, banned the substance from their meat cases implied a danger to consumers, regardless of statements to the contrary.Video testimony. Videotaped testimony from ABC producer Brian Hartman and former evening news anchor Diane Sawyer, which bookended Riley’s time on the stand, affirmed that the network relied on information believed to be accurate. The report had been provided by sources with documented expertise in the field — the network’s “whistleblower” microbiologists who had worked at USDA.Examining mostly email communications about the “pink slime” reports at the time that the network was preparing them, Hartman did testify on camera that he had been contacted by several sources, including BPI and AMI, telling him that LFTB is beef prior to the airing of a broadcast in which Sawyer refers to LFTB as “filler.”Hartman then argued over the use of the term “filler,” and said that the fact that the product was separated from ground beef, then added back into the mix, made it something other than ground beef, in his opinion.Similarly, Sawyer said in video testimony, in the context of describing her role in the broadcasts, “I read the script and it seemed to be absolutely factual and fair, and read to me as credible reporting on this issue, and raising an important issue.”As part of his questioning, Winston & Strawn attorney Dan Webb, representing BPI, quoted from an email from Avila directing ABC producers across the country to go to their areas’ largest supermarkets “as consumers” and ask if the store sold ground beef with LFTB.Sawyer testified that she didn’t know if the producers identified themselves as being from ABC News, or not. If they did not, she said, she didn’t feel the practice was deceptive “because they are also consumers, and would be getting the answers the way consumers would.”Webb asked if ABC, by sending its producers out “as consumers,” was trying to create the very public outcry to retailers that days later it would report on as a further development in the story, and Sawyer denied that that was the case. The point could be key in the case: If BPI can convince the jury that this is a case of product disparagement, as described under South Dakota law, it could be eligible for treble damages.