ELK POINT, S.D. | Certain ABC expert witnesses will not be able to testify, or will have the scope of their testimony limited, when lawyers defend the network against Beef Products Inc.'s $1.9 billion defamation lawsuit at trial this summer.
Circuit Judge Cheryle Gering on Friday also ruled against BPI's motions to keep two other ABC experts off the witness stand, saying it will be up to jurors hearing the case to decide whether ABC or BPI experts have the more reliable opinions.
"I'm not the arbiter of who is correct and who is not correct in their opinions" when it comes to expert testimony, Gering said during a daylong hearing in Union County Circuit Court.
Jury selection is scheduled to begin May 31 and testimony on June 5 for what is expected to be an eight-week trial.
BPI had filed motions to exclude trial testimony of five ABC witnesses expected to rebut BPI expert testimony about the company's total amount of lost sales, business value and other economic factors used to determine the amount of damages the Dakota Dunes-based company says it suffered from a series of ABC stories and broadcasts that began in early March 2012 about the company's Lean Finely Textured Beef, its signature lean beef product.
BPI alleges the "prolonged disinformation campaign" caused a backlash against the product, which critics repeatedly referred to as "pink slime," and led to a loss of business, forcing the family-owned business to close all but its South Sioux City plant and lay off more than 700 workers. BPI sued ABC, its correspondents, federal officials and a former employee in September 2012.
Gering denied BPI motions to keep defense witnesses Scott Fausti and David Scheffman, economists who analyzed the findings of BPI experts' opinions, from testifying at trial, and it would be up to jurors to decide whether to believe their testimony.
Defense witness Jean-Pierre Dube will not be allowed to testify. In granting BPI's motion to exclude him, Gering said information Dube gathered to dispute BPI's economic figures was unreliable.
Gering also ruled that Mark Zmijewski and Donald Frankenfeld will be limited in their testimony about BPI's damages and business evaluations, respectively.
Earlier this week, Gering denied ABC motions to prohibit two BPI-retained experts who calculated the amount of lost sales and business value of the company from testifying.
Gering previously dismissed former "World News Tonight" anchor Diane Sawyer from the case, saying that Sawyer's role as an anchor limited her involvement in doing research and was not enough to establish defamation. The ruling left American Broadcasting Companies Inc., the parent of ABC News, and correspondent Jim Avila as defendants.
BPI lawyers previously dismissed ABC News, network producer David Kerley, former U.S. Department of Agriculture officials Gerald Zirnstein and Carl Custer and former BPI employee Kit Foshee from the lawsuit.
BPI estimates that the reports did $1.9 billion in actual damages to the company and is seeking a jury award in that amount. If BPI wins at trial, its claim could be tripled to $5.7 billion under provisions of South Dakota's Agricultural Food Product Disparagement Act.