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BPI lawsuit against ABC opening day

ABC news correspondent Jim Avila, right, walks to the Union County Courthouse on June 5 in Elk Point, S.D. on the sixth day of Beef Products Inc.'s $1.9 billion defamation lawsuit against ABC and Avila. An undisclosed settlement the two sides reached halfway through the trial is the Journal's No. 1 business story of 2017.

Tim Hynds, Sioux City Journal

ELK POINT, S.D. | David Theno refers to himself as one of the foremost experts in ground beef in the United States.

A microbiologist and meat scientist who owns a food safety consulting firm, Theno told lawyers for Beef Products Inc. and ABC that he has studied how ground beef is produced and the pathogens that can contaminate it.

So when he was called by ABC News correspondent Jim Avila in March 2012 about BPI's product, Lean Finely Textured Beef, Theno said, he was open to discussing the product and how it was made. What he wasn't ready for, he said, was to be told he was not credible and knew nothing about ground beef. He also didn't expect to have an expletive dropped on him before being hung up on.

"He told me I didn't know a damn thing about it. I was a shill for the company, and he hung up," Theno said in a video deposition shown to jurors Monday.

Thinking his cellphone had dropped the call, Theno called Avila back. Becoming angry, Theno said he told Avila that if he had any journalistic integrity, he would at least want to hear the other side of the story.

"Then he said 'F--- you,' and hung up," Theno said.

Avila called him, Theno said, prior to a March 7, 2012, report on LFTB that aired on "World News Tonight with Diane Sawyer." Theno said he told Avila that at the time he was a paid consultant for BPI. Avila, Theno said, referred to LFTB as being fit only for animal food.

"I told him it was the safest component in ground beef at that stage," Theno said.

While explaining the manufacturing process, Theno said, Avila cut him off and told him he had no credibility.

"I was troubled that he wouldn't at least listen to the other side of the story," Theno said. "He didn't want to listen to anything I had to say."

Avila and ABC's series of reports on LFTB in March and April 2012 regularly referred to the product, which is blended with ground beef to reduce fat content, as "pink slime."

BPI says the reports caused a backlash against the product that eventually cost the Dakota Dunes-based meat processor millions of dollars in sales, forcing it to close three of its four plants.

BPI filed a $1.9 billion defamation lawsuit against ABC and Avila in September 2012, claiming that ABC knowingly used false information about LFTB and interfered with its business relationships with its customers.

ABC has defended its stories as being factual and providing vital information to consumers.

Videos of depositions of ABC producers who had varying levels of involvement in the series were shown Monday as the trial opened its second week in Union County Circuit Court.

The depositions laid out a time line of the news gathering that went into the March 7 and 8 reports that ABC broadcast.

Brian Hartman, a producer who worked with Avila on many of the reports, was asked by BPI lawyer Erik Connolly why broadcasts repeatedly referred to LFTB as being "low-grade" trimmings once only used for pet food and cooking oil, despite having letters from BPI and the American Meat Institute that said the trimmings were of similar quality to the cuts from which they came. Jurors were shown copies of letters from BPI and the AMI, both sent to ABC before its initial broadcast about LFTB.

"I didn't even read this letter as far as I can tell," Hartman said of the letter from the AMI.

"In March 2012, did you identify a single company that sent these trimmings only to be used for pet food?" Connolly asked him.

"No, I didn't," Hartman said.

David Peterkin, an ABC executive director in 2012, said he reviewed every report before it aired. He said he had seen BPI's letter the company sent in answer to ABC's inquiry before the network's first LFTB report.

"We looked at it and read it prior to broadcasting, but we chose not to run a portion of it," Peterkin said.

No portion of the statement appeared in a followup report the next night, he said. Neither did any portion of a letter in support of LFTB from the AMI.

Audrey Taylor, an ABC producer at the time, said she conducted an interview at Hartman's request with Keith Ayoob, a New York nutritionist and dietician, who told her that LFTB was safe and could lower the fat content of ground beef. No portion of the interview ever appeared in ABC's series.

Taylor said she did not know why, but did not consider it unusual that an interview would not be included in a report.

"We do interviews all the time that never get used," she said.

If BPI wins at trial, which is expected to last eight weeks, 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.


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