Appeals court upholds win in ‘mad cow’ lawsuit

From the Spring 2000 issue of The News Media & The Law, page 16.

The U.S. Court of Appeals in New Orleans (5th Cir.) ruled in February that Oprah Winfrey and her guest Howard Lyman did not knowingly and falsely depict American beef as unsafe.

The court upheld the partial dismissal of the claims brought by Texas cattlemen after Winfrey discussed “mad cow disease” on her show in 1996.

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British health officials announced in March 1996 that consumption of beef infected with bovine spongiform encephalopathy — popularly called “mad cow disease” — was linked to a similar fatal human disease that affects the human brain.

The disease is most likely to appear in cattle that have been fed contaminated “ruminant-derived protein supplements,” which are made from rendered cattle and sheep.

The resulting panic in Great Britain over whether they should ban beef that could be contaminated was widely reported in the United States and producers and editors of the “Oprah Winfrey Show” decided to do a segment on the topic. Her researchers found that U.S. government authorities, several professors and researchers felt that “mad cow disease” could not occur in the United States. They also found Howard Lyman, a former cattle rancher who had become both a vegetarian and an activist for the Humane Society, who believed “mad cow disease” could become a threat in the United States and could potentially cause an epidemic worse than AIDS.

The show, taped in April 1996, included discussions by Lyman along with a representative of a cattlemen’s association and an expert in the disease with the U.S. Department of Agriculture. Winfrey discussed the threat of the disease in the United States, and what steps were being taken to prevent an outbreak here.

The cattleman and scientist responded to Lyman’s statements about a threat in this country by pointing out the steps that had been taken to prevent such an outbreak, and added that U.S. cattlemen had voluntarily banned “ruminant-to-ruminant” feeding, although they acknowledged that the U.S. government had not actually banned such feeding.

Much of the discussion was edited out to fit time constraints. Editors eliminated claims about the voluntary ban on ruminant-to-ruminant feeding and what that meant, the differences between the U.S. and British approaches, discussion about safeguards against slaughterhouse processing of sick cattle, and an admission by Lyman that American beef is safe.

After the broadcast, prices offered on the Texas and national cattle markets dropped significantly and remained depressed for a number of weeks. Within an hour of the broadcast, cattle futures prices on the Chicago Mercantile Exchange dropped below the “limit-down” — the price that determines when trading will be suspended for the day.

A number of cattlemen sued Winfrey, producers and distributors of the show and Lyman in state and federal courts in Texas, and the suits were joined into one case in federal court in Amarillo. The cattlemen alleged violations of the Texas Disparagement of Perishable Food Products Act and damages from business disparagement, defamation and negligence.

The product disparagement act allows producers of perishable foods to sue those who knowingly disseminate false information stating or implying that the producer’s product is not safe for public consumption. A “perishable food product” is defined by the Act as “a food product of agriculture or aquaculture that is sold or distributed in a form that will perish or decay beyond marketability within a limited period of time.” In judging falsity, the court must determine “whether the information was based on reasonable and reliable scientific inquiry, facts, or data.”

In February 1998, after the plaintiffs presented their case, the court dismissed all of the claims except the business disparagement claim. The food disparagement statute does not apply to cattle, because they are not perishable foods, the court held. In addition, it said, there was insufficient proof that Winfrey knowingly disseminated false information.

The jury then deliberated and found in favor of Winfrey on the remaining claim of business disparagement. The cattlemen appealed to the U.S. Court of Appeals in New Orleans (5th Cir.).

In February 2000, a unanimous panel of the appellate court upheld the lower court’s decision in favor of Winfrey.

The appeals court found that the cattlemen failed to prove that Winfrey “knowingly disseminated false information tending to show that American beef is not fit for public consumption.”

There is “little doubt,” the court said that the show “melodramatized” the disease scare and whether it could happen in the United States. Winfrey’s “exclamation that she was ‘stopped cold from eating another burger.'” was of no small importance, the court said, noting, “When Ms. Winfrey speaks, America listens.” But that claim is not a false statement of fact, the court decided.

The cattlemen had claimed that Lyman’s assertion that mad cow disease could make AIDS look like the common cold was false, as was his claim that the United States failed to take any substantial measures to prevent an outbreak. But the court noted that the AIDS comparison was “hyperbolic” and an exaggeration that did not amount to defamation. The accusation about the measures taken was a “sincerely held opinion supported by the factual premise that only a mandatory ban on ruminant-to-ruminant feeding would disperse with the danger,” the court ruled. Neither statement contained a provably false factual connotation, according to the court.

The court also rejected the cattlemen’s claim that the editing of the show by Winfrey and her employees made the broadcast defamatory. While much of the content was removed, the editing was done to cut out the redundancies in the interviews and cut the piece to fit into a smaller time frame, and did not misrepresent the experts’ responses.

“Stripped to its essentials, the cattlemen’s complaint is that the ‘Dangerous Food’ show did not present the Mad Cow issue in the light most favorable to United States beef,” which falls short of establishing that knowingly false information was distributed, the court noted.

The cattlemen had objected to the way the business disparagement claim was presented to the jury, but the appellate court upheld the lower court’s decision.

The cattlemen argued that under such a claim, they should not have had to show that the statements made on the Winfrey show were “of and concerning” their specific cattle or cattle at all — they should have only had to show that the statements were made about beef generally. But the appellate court noted that the cattlemen’s objection when the judge gave the jury those instructions was “insufficiently specific” to allow them to appeal that issue. The court noted that they did not indicate at trial that they specifically objected to the “of and concerning” requirement, and they did not propose alternate instructions for the jury.

The court declined to consider the cattlemen’s appeal that the Texas food disparagement statute pertaining to perishable foods would cover cattle, finding it was unnecessary because they had failed to establish that false statements were made. But in a concurring opinion, Judge Edith Jones said she would have held that cattle meant for the meat markets are clearly within the scope of the statute.

“The purpose of the statute’s definition is to distinguish perishable from processed food products, not to eliminate protection for some of the farmers and ranchers for whom the statute was intended,” she stated.