Court documents

Workers move a cart full of trial documents down a sidewalk Monday (June 5) at the Union County Courthouse in Elk Point, S.D., before opening arguments in the trial for Beef Products Inc.’s $1.9 billion defamation lawsuit against ABC and correspondent Jim Avila.

ELK POINT, S.D. | Lean Finely Textured Beef is a lot of things, a meat expert testified Wednesday.

It's definitely meat and definitely beef.

What it is not, Mindy Brashears said, is "pink slime."

"Slime is not beef. It does not meet any of the definitions of beef," Brashears said. "It is false to call LFTB 'pink slime.' It is not 'pink slime.'"

"Why not?" asked Erik Connolly, a lawyer for LFTB's maker, Beef Products Inc.

"Because it is beef," said Brashears, a food safety and public health professor at Texas Tech University.

Use of the term "pink slime" is one of the major complaints listed in BPI's $1.9 billion defamation lawsuit against ABC and correspondent Jim Avila. A series of stories, many reported by Avila, run by the network in March and April 2012 used the term more than 350 times.

BPI claims the network's use of that term in reference to LFTB, which was mixed and sold in ground beef across the nation, caused a backlash against the product, costing the business millions of dollars in sales and leading to the closure of three of its four plants. The Dakota Dunes-based meat processor aims to prove that ABC knowingly used false information in its stories about LFTB and interfered with its business relationships with its customers. If BPI wins at trial, its $1.9 billion claim could be tripled to $5.7 billion under provisions of South Dakota's Agricultural Food Product Disparagement Act. The company also plans to request punitive damages.

During the third day of trial, Brashears told jurors that since being retained by BPI in this case, she has visited its South Sioux City plant 18-20 times in the past four years and has observed the process the company uses to make LFTB.

Connolly asked Brashears about several statements contained in ABC stories, attempting to debunk the wording as false and misleading.

Stories often referred to the product as "filler" made from "low-grade trimmings" that were once only used for dog food and cooking oil.

Brashears said a filler is a non-meat ingredient such as flour that is added to meat products. The USDA does not allow fillers to be added to ground beef.

"It was false to describe LFTB as a filler because it's beef. It's pure beef. It's 100 percent beef," Brashears said.

The sparse lean trimmings used to make LFTB come from all areas of a beef carcass, Brashears said, and were never, to her knowledge, ever restricted for use only in pet food and cooking oil.

Above all, said Brashears, who reviews meat production facilities and procedures nationwide, LFTB is safe. None of the hundreds of processing plants she's visited come close to the BPI plant's cleanliness or the company's testing for bacteria in its product, she said.

ABC attorney Dane Butswinkas had only 15 minutes to cross-examine Brashears before the trial ended for the day. He had begun to question why some USDA scientists were opposed to LFTB prior to the agency's approval of the product in 1993. LFTB, Butswinkas said, appeared to be just a different name for partially defatted chopped beef, the classification BPI's product fell under before it was approved as LFTB. Meat classified under the previous name was not allowed to be mixed with ground beef.

"Was it the same product with a different name?" Butswinkas asked.

Brashears said the USDA decided it was meat and approved the LFTB classification.

"Just because someone is opposed to it doesn't change what it is," she said.

Earlier in the day, BPI lawyers showed the jury a video of the deposition of Sarah Amos, a former senior producer who oversaw ABC's "World News Tonight with Diane Sawyer" web pages and Facebook and Twitter accounts in 2012.

Amos told lawyers in the deposition that she monitored reader comments and questions on those sites and forwarded them to producers and Avila for possible use in other stories about LFTB. Those stories, she said, were among the most popular on the news broadcast's website.

Survey showed people didn't think BPI product was beef

In testimony on Tuesday, a marketing expert hired by BPI’s lawyers said that more than 60 percent of people who watched an ABC news broadcast about Beef Products Inc.'s Lean Finely Textured Beef believed from the report that the product was not beef.

He also found in separate surveys that, after being shown either the March 7, 2012, or March 8, 2012, story that ABC broadcast about LFTB, 32 percent perceived it was not safe, 52 percent thought it had no nutritional value and 31 percent believed BPI improperly obtained federal approval for the product.

All statistical findings were considered significant, said Ran Kivetz, a Columbia University marketing professor who analyzed ABC's 14 stories about LFTB.

"I think there's a strong, very clear conclusion ... that viewers are highly likely to get the implication that LFTB is not safe," said Kivetz.

Conducted in 2015, the surveys, which included more than 1,600 respondents, found that 2 percent believed LFTB was beef, 4.2 percent said they thought it was safe and 1 percent believed it was nutritious. No one responded that they believed BPI properly obtained U.S. Department of Agriculture approval for LFTB.

ABC attorney Dane Butswinkas questioned Kivetz's survey methods, indicating some of the questions may have purposely led respondents to give negative answers. He said that when studying just the results to open-ended questions that asked merely what message the broadcasts sent, only 4 percent of respondents said LFTB was not beef and only 6 percent said it was unsafe. Butswinkas also was critical that only the March 7 and March 8 stories were shown to participants and not other stories that mentioned several times that LFTB was safe.

"In the safety survey, you didn't show participants any of the ABC reports that said it was safe to eat?" Butswinkas asked.

"I showed them the March 7 video," Kivetz said.

"You were aware when you showed the March 7 report there were other reports?" Butswinkas said.

"I showed the reports I thought were appropriate for this case," Kivetz said.

Kivetz, who spent seven hours on the witness stand, reviewed with jurors 12 broadcast stories ABC reported on LFTB. Kivetz counted more than 350 times that the term "pink slime" was used in those stories that were shown on television, reprinted on the network's website or referred to in social media posts and reached millions of viewers and readers.

Constant use of the "pink slime" term basically rebranded the product, Kivetz said.

"When you refer to the product repeatedly as 'pink slime' you're creating a negative frame of the product," Kivetz said.

Jurors hear 2 sides on first day of BPI defamation case