ABC News to Defend ‘Pink Slime’ Coverage Before South Dakota Jury

by Eliana Johnson

A South Dakota judge on Thursday gave the green light to one of the most high-stakes defamation lawsuits in U.S. history. Judge Cheryle Gering denied ABC News’ motion to dismiss the $1.2 billion dollar lawsuit filed against it by Beef Products, Inc. (BPI) in the wake of a series of reports that BPI alleges led people to believe its product, known as lean finely textured beef, is unsafe, and ignited an industry backlash.

The case is now headed toward a trial where ABC personalities Diane Sawyer and Jim Avila will take the witness stand before a South Dakota jury, defending the network’s journalistic practices and its right to lead consumer-oriented crusades. 

“We are pleased with the court’s decision, which rejected nearly all of the defendants’ arguments,” BPI’s attorney Erik Connolly said in a statement. ”We look forward to starting discovery and ultimately presenting our case to a jury.” ABC did not immediately respond to a request for comment. 

The reports that sparked the lawsuit aired in March 2012, mostly on the network’s primetime broadcast, World News. (I wrote about them last month here.) At the crux of the controversy are anchor Diane Sawyer and ABC News correspondent Jim Avila repeated references to lean finely textured beef, as “pink slime.”

In Sawyer’s first report on “pink slime,” a product intended to prevent the sort of contamination that, in the early 1990s, claimed the lives of three children who ate undercooked burgers at Jack in the Box, she warned that beef trimmings “once used only in dog food and cooking oil” might be be hiding in your dinner. The network sent Avila to grocery stores across the country to ask whether their ground beef contained “pink slime” and urged consumers to demand answers to the same question.

Many of the nation’s largest grocery chains moved quickly to remove it from their shelves; a number of fast food restaurants swore it off; and the U.S. Department of Agriculture announced that schools would not have to serve ground beef that contained it. BPI said in legal filings that it was forced to close three of its four factories and to lay off over 650 employees as a result. 

ABC filed motions to dismiss the suit on several grounds, including that “slime” is not a derogatory term by which to refer to beef. Lean finely textured beef, “much like all ground beef, is slimy,” it argued.

If the parties do not reach a settlement, Gering’s decision will force Sawyer, Avila, and ABC News correspondent David Kerley, who is also named in the lawsuit to testify before a South Dakota jury where BPI, which is based in the state, will have a home-court advantage. ABC sought to remove the case from state court South Dakota and into federal court, but was denied.

Sawyer faced a similar situation over two decades ago, when she flew to Greensboro, North Carolina to defend the network’s coverage of the unsanitary practices taking place in back rooms of the grocery-store chain Food Lion. Two of her producers had lied on employment applications in order to obtain jobs with Food Lion and obtain access to those back rooms. A $5.5 million verdict in Food Lion’s favor was ultimately overturned, and ABC ordered to pay just $2 in damages.​

The court battle over “pink slime” is being waged by legal titans on both sides. ABC has retained Williams & Connolly, where the team of lawyers representing the network is headed by Kevin Baine. In the late 1990s, Baine successfully handled CNN’s libel lawsuits stemming from the network’s botched 1998 Operation Tailwind report alleging that the United States used nerve gas in the Vietnam War.

Dan Webb, the chairman of the Chicago-based firm Winston & Strawn, leads the team representing BPI. He is the author of the Webb report, which revealed that former chairman and CEO of the New York Stock Exchange Richard Grasso had been overpaid $156 million in the job. It was Webb’s prosecution, too, that put former national-security adviser John Poindexter behind bars for his role in the Iran-contra affair.

The court’s decision comes just days after ABC News president Ben Sherwood, who has championed the coverage of soft news like the consumer-oriented “pink slime” features, got a big promotion: He was named co-chairman of Disney Media Networks and president of the Disney/ABC Television Group on Monday. 

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