IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION

CIVIL ACTION CAUSE NUMBER
2:96-CV-208-J

[filed: February 26, 1998]
[11 Supp.2d 858 (N.D., 1998)]

TEXAS BEEF GROUP, PERRYTON
FEEDERS, INC., MALTESE, CROSS
CATTLE COMPANY, BRAVO
CATTLE COMPANY, ALPHA 3
3 CATTLE COMPANY, PAUL F.
ENGLER, CACTUS FEEDERS, INC.,
CACTUS GROWERS WC., and
DRIPPING SPRINGS CATTLE
COMPANY

Plaintiff's,

v.

OPRAH WINFREY
HARPO PRODUCTIONS, INC., and
HOWARD LYMAN

Defendants

 

ORDER

    Plaintiff's Texas Beef Group, Perryton Feeders, Inc-, Maltese Cross Cattle Company, Bravo Cattle Company, Alpha 3 Cattle Company, Paul F. Engler, Cactus Feeders, Inc,, Cactus Growers Inc., and Dripping Springs Cattle Company sue Defendants Oprah Winfrey, Harpo Productions, Inc., and Howard Lyman alleging causes of action for- (1) False disparagement of perishable food products, in violation of Texas Civil Practice and Remedies Code Section 96.002; (2) common law business Disparagement; (3) common law defamation; and (4) negligence and negligence per se. [1] The cause of action arises out of an Oprah Winfrey show taped on April 11, 1996, and aired on April 16, 1996, which included a segment on Bovine Spongiform, Encephalopathy (BSE).

    Defendants contend that Plaintiffs failed to adduce evidence on at least one essential element of each cause of action. At the close of Plaintiffs’ case, the Court granted judgment as a matter of law on all claims except common law business disparagement.

Background

    On March 20, 1996, British Health Minister Stephen Dorell announced to the House of Commons that a committee of scientists had linked a deadly, degenerative brain disease in cattle known as Bovine Spongiform Encephalopathy (BSE) with a invariably fatal new variant of the human disorder known as Creutzfeldt-Jalcob Disease (CJD). Minister Dorrell announced that British researchers had further determined that consumption of beef was "the most likely explanation" for this new variant CJD (V-CJD). Both ESE and the human CJD are forms of Transmissible Spongiform Encephalopathy (TSE) which is characterized by the formation of holes in the brain creating a sponge-like appearance of brain tissue. It is always fatal.

    BSE is commonly referred to as "Mad Cow Disease." It was first diagnosed in cattle herds in Great Britain in 1986. BSE is an infectious neurologic disorder of cattle whose rapid spread in some countries, particularly Great Britain, is believed to have been caused by the feeding of certain infected cattle and sheep tissues to cattle in the form of "ruminant" derived protein supplements. Ruminant animals are animals with split hooves, multiple stomachs, and which chew a cud. Cattle are ruminant animals. Since its discovery in Great Britain, BSE has been diagnosed in cattle herds in the Republic Ireland, Switzerland, France, Oman, Portugal and in other European countries. One case was diagnosed in Canada in a cow imported from Great Britain, BSE has never been diagnosed in the United States cattle herd, nor has new variant CJD been diagnosed in the U.S.

    On March 22, 1996, two days after the British announcement the Animal & Plant Health Inspection Service (APHIS) of the United States Department of Agriculture (USDA) called an emergency meeting to explain the information coming out of Great Britain on Mad Cow Disease and to answer questions.

    On March 29, 1997, the USDA and the National Cattlemen's Beef Association (NCBA) announced a voluntary ban on feeding ruminant-derived proteins to ruminant animals.

    On April 2 and 3, 1996, the World Health Organization convened a two-day session to discuss Mad Cow Disease and issued a report stating, in part: "'All countries should ban the use of ruminant tissues -in ruminant feed."'

    On April 8, 1996, representatives from the Center & for Disease Control and Prevention, (CDC), the National Institutes of Health (NIH), the Food and Drug Administration (MA), the USDA, and the United States Department of Defense held a meeting to share information about the British announcement of the suspected link between BSE and the new variant of CJD in Britain. Parties stipulated to facts attached as Appendix A.

    The British Health Minister's announcement generated numerous reports in the United States. Print media reports included; A March 21, 1996, New York Times article announced "Britain Ties Deadly Brain Disease to Cow Ailment,"' On March 28, 1996, The Wall Street Journal ran an article entitled "Agriculture Officials Say Mad-Cow Risk Is Small in U.S. but Don't Rule It Out." An April 5, 1996, New York Times article that quoted an expert estimating that "a teaspoonful of highly infective cattle feed is enough to cause mad-cow disease." An April 8, 1996, Newsweek headline read, "Mad Cow Disease in the U.S.? Don't panic, but one version's already here."' Television reports included: A March 14, 1996, Dateline report on Mad Cow Disease which -included video of a CJD victim hospitalized in New York. On March 22, 1996. CNBC's America's Talking aired a segment on Mad Cow Disease which featured a debate between Dr. Gary Weber and Howard Lyman. The CNBC program attracted the attention of staffers on The Oprah Winfrey Show to Weber and Lyman as Prospective guests for the "Dangerous Foods" program.

    On June 5, 1997, 14 months after the "Dangerous Food"' segment aired, the FDA published the final rules on a ruminant-to-ruminant feed ban, That ban became effective on August 4, 1997.

The Show

    On April 16, 1996, The Oprah Winfrey Show broadcast a program entitled "Dangerous Food" which included a segment on BSE. A transcript of the show as it aired is attached as Appendix B. The show was taped on April 11, 1996. It was then edited to fit within a 42 minute and 30 second time frame. Only the portion of the show discussing BSE is challenged by the Plaintiffs.[ 2]

    The show began with a discussion of BSE in England- A guest for this segment was Beryl Rimmer from England, whose granddaughter was in a coma suffering from a form of CJD. Ms. Rimmer believed that her granddaughter contracted CJD from eating hamburger tainted by BSE. She was, critical of what she believed has been a cover-up by the British government of the link between BSE and CJD.

    The second segment considered the question, "Could it happen here?" Guests in connection with that segment included Dr. Gary Weber, a representative of the National Cattleman's Beef Association; Dr. William Hueston from the U. S. Department of Agriculture and Defendant Howard Lyman, a Former cattle rancher-turned-vegetarian who is executive direction of the Humane Society's Eating With Conscience campaign. Lyman vigorously asserted the need for a mandatory ban in ruminant-to-ruminant feeding and stated that the United States is at risk of an outbreak similar to that in England, if the practice continued. Weber and Hueston argued that U.S. beef is safe because BSE does not exist in the United States and that the United States has carefully monitored the situation for 10 years. The program did not mention Texas or name any of the Plaintiffs.

Plaintiffs' Contentions

    The Plaintiffs are cattlemen operating in the Panhandle of Texas. In the Pretrial Order, filed December 29, 1991, Plaintiffs claim that the "Dangerous Food"' show was "nothing more than a scary story, falsely suggesting that U. S. beef is highly dangerous because of Mad Cow Disease and that a horrible epidemic worse than Aids could occur from eating U.S. beef."' Plaintiffs claim that Defendant Lyman is "a vegetarian activist and lobbyist, with an agenda to wipe out the U. S. Beef industry and that Defendant Harpo "intentionally edited from the taped show much of the factual and scientific information that would have calmed the hysteria it knew Lyman's false exaggerations would create." They further claim that Harpo "maliciously edited most of Drs. Hueston's and Weber's statements out of the show so that Dr. Hueston's and Weber's scientific refutation of Defendant Lyman was never heard by Oprah's 20 million American TV viewers." Plaintiffs contend that the April 16, 1996, broadcast of The Oprah Winfrey Show caused beef markets to "immediately" crash and that they were damaged thereby.

The First Amendment & Matters of Public Concern

    Any consideration of the cause of action here is governed by the First Amendment to the United States Constitution and the decisions of the courts Concerning what is required to pass constitutional muster. We consider this case "'against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. V. Sullivan, 376 U.S. 254, 270 (1964). "Accordingly the Court has frequently reaffirmed that speech on public issues occupies the "highest rung of the hierarchy of First Amendment values," and is entitled to special protection."' Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759 (1985) (citing NAACP v. Claiborne Hardware Co., 458 U. S. 886, 913 (1982).

    The trial court is to determine whether the speech at issue in a case can "be fairly characterized as constituting speech on a matter of public concern" before further analyzing allegations of unconstitutional restrictions on speech. Connick v. Myers, 461 U.S. 13 8, 146 (1983).

    The speech in question dealt with a matter of public concern. Statements of fact and opinion on the issue of whether the feeding practices of American cattlemen on or before April 16, 1996, contributed to a danger that BSE or the deadly and incurable new variant CJD could occur in the United States, cannot be considered as anything other than a matter of legitimate public concern. It would be difficult to conceive of any topic of dissension that could be of greater concern and interest to all Americans than the safety of the food that they eat.

False Disparagement of Perishable Food Products Act

Chapter 96 of the Texas Civil Practice & Remedies Code is the False Disparagement of Perishable Food Products Act. It provides:

In this chapter, "perishable food product"' means a food product of agriculture or aquaculture that is sold or distributed in a form that wilt perish or decay beyond marketability within a limited period of time. ( 96.00 1)

(a) A person is liable as provided by Subsection (b) if:

(1) the person disseminates in any manner information relating to a perishable food product to the public;

(2) the person knows the information is false; and

(3) the information states or implies that the perishable food product is not safe for consumption by the public.

(b) A person who is liable under Subsection (a) is liable to the producer of the perishable food product for damages and any other appropriate relief arising from the person's dissemination of the information. ( 96.002)

    In determining if information is false, the trier of fact shall consider whether the information was based on reasonable and reliable scientific inquiry, facts, or data. (96.003)

    Plaintiffs' product is sold in the form of live cattle. Live cattle are not generally perishable as perishable is defined in the statute. [Plaintiffs] contend, however, that fed cattle in a feedlot are a perishable food product because there is an optimal time for fed cattle to be marketed to the slaughterer. There is evidence that live fed cattle may decay in the sense that as they age they may pass into a state of less perfection. For example, cattle in a feedlot, if fed beyond a certain point, may be less profitable because feed cost exceeds the price obtained for additional pounds gained, may be discounted by a buyer if they become fatter and are regarded as a lower quality, or may not be purchased by a particular buyer because the cuts are too large for that particular buyer's needs. There is also evidence that if the cattle's feed is controlled to prevent gain that the cattle might be discounted because their meat might then be of a lesser grade. None of this is evidence that live fed cattle fit within the carefully crafted statutory language which requires that the food product in question perish or decay "beyond marketability.'' The cattle in question are still marketable, although they may be less profitable, and in some cases not marketable to every buyer. Even assuming but not deciding that Eve cattle are a food product, Plaintiffs do not produce a food product that will perish or decay beyond marketability within a limited period of time.

    Further, even if Plaintiffs' cattle were covered within the definition of a perishable, food product under Chapter 96, Plaintiffs have failed to adduce evidence to go to a jury of another essential element. Chapter 96 requires that the disparaging statement be knowingly made. The requirement of a knowing mental state is the strictest standard in First Amendment jurisprudence. In crafting this standard, the Texas Legislature exceeded even the constitutionally required "actual malice" standard of knowledge or reckless disregard established in New York Times Co. v. Sullivan, 376 U.S. 254 (1964) for defamation of public officials.

    To withstand a Motion for Judgment as a Matter of Law, Plaintiffs must have presented substantial evidence of such quality and weight that reasonable and fair-minded jurors, in the exercise of impartial judgment, might reach a conclusion that Plaintiffs had actual knowledge of falsity if indeed there was falsity. Boeing Co. v. Shipman, 411 F. 2d 3 65, 3 74 (5th Cir. 1969). Judges are not " required to submit a question to a jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such character that it would warrant the jury in finding a verdict in favor of that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986) (quoting Improvement Co. v. Munson, 14 Wall 442, 449, 20 L. Ed. 867 (1872). Plaintiffs have wholly failed in this burden. There is no evidence by which a reasonable juror could conclude that the Defendants had actual knowledge of the falsity, if any, of the statements made.

    Indeed, Dr. Weber and Dr. Hueston themselves validated a substantial part of the program. At one point, Defendant Winfrey asked Dr. Hueston if Howard Lyman was an alarmist, in his opinion. Hueston replied:

Well I would say Howard is an example of what makes America the great country that it is now. And that is, we have the freedom for people to voice their opinions and, different opinions and we believe that, that freedom of individual consumers and producers to raise ideas, is part [of] the system that keeps us the best.

In another exchange between Defendant Winfrey and Dr. Weber who represented the National Cattleman's Beef Association, Ms. Winfrey asked if we are feeding cattle to cattle and Dr. Weber replied that there is a limited amount of that done in the United States.

Common Law Defamation and Statutory Libel Claims

A defamation claim requires proof that the defendant in question published to a third person, person, in the absence of one of the applicable privileges, a false statement of defamatory fact that was "of and concerning" the Plaintiff in question with the required degree of fault which approximately caused damage to the reputation of the Plaintiff in question. Rosenblatt v. Baer, 383 U.S. 75, 81, 86 S.Ct. 669, 673, 15 L.Ed.2d 597 (1966).

    The Court held in Rosenblatt that the jury could not find liability by inference and without the constitutionally required "'evidence that the asserted implication" of the published statement "was made specifically of and concerning"' the plaintiff. Texas law imposes the same "of and concerning''' standard before a plaintiff can state a defamation claim. Newspapers, Inc. v. Matthews, 339 S.W.2d 890, 894 (Tex. 1960) (stating that "the settled law requires that the false statement point to the plaintiff and to no one

    Texas codified common law defamation: "A libel is a defamation expressed in written or other graphic form that tends to blacken the memory of the dead or that tends to injure a living person's reputation and thereby expose the person to public hatred contempt or ridicule, or financial injury or to impeach any person's honesty, integrity virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury."' Tex. Civ. Prac. & Rem, Code 73.001 (1997).

    The action for defamation is to protect the personal reputation of the injured party as distinguished from an action for disparagement which is to protect the economic interest of the injured party against pecuniary loss. Herlburt v. Gulf Atlantic Life Ins. Co, 749 S.W.2d 762, 766 (Tex. 1987).

    Even if a statement on the program could be construed to meet the statutory definition of defamation, it cannot meet the "of and concerning requirement. None of the Plaintiffs were mentioned by name on the April 16, 1996 Oprah Winfrey Show, and it is stipulated that this program did not mention by name the State of Texas, the Texas Panhandle, or West Texas. Plaintiff Paul Engler testified that the statements made were about him "as well as the rest of the cattle feeding industry." Engler also testified that them are "about a million " cattlemen in the United States and that the states of Kansas and Colorado have feeding operations similar to Cactus Feeders in Texas.

    The Texas Court of Appeals has held "as a matter of law that an individual may not recover damages for defamation of a group or class in excess of 740 persons of which he is a member." Webb v. Sessions, 531 S.W,2d 211, 213 (Tex. Civ. App. - Eastland 1975, no writ) [3] Therefore, Plaintiffs have failed as a matter of law to meet their burden of establishing the "of and concerning element of the defamation cause of action.

Negligence and Negligence per se

    Plaintiffs' asserted tort claims for negligence and negligence per se fail as attempts to claim additional tort recovery based on speech under less stringent standards than the defamation claims See Hustler Magazine v. Falwell, 485 U. S. 46, 57 (1998);. Eimann v. Soldier of Fortune Magazine, Inc., 880 F.2d 830, 838 (5th Cir. 1989), cert. denied, 493 U.S. 1024 (1990). The Texas Supreme Court has expressly refused to recognize causes of action that merely duplicate the remedy of defamation and are creatively pled in an attempt to avoid the constitutional protections mandated by the First Amendment and the Texas Constitution. See e.g. Cain v. Hearst, 878 S.W.2d 577, 584 (Tex. 1994) (refusing to recognize a cause of action for false light invasion of privacy because (1) it duplicates other rights of recovery, particularly defamation, and (2) it lacks many of the procedural limitations for defamation "thus unacceptably increasing the tension that already exists between free speech, constitutional guarantees, and tort laws.") It would "be ironic if an individual could avoid all constitutional restrictions on defamation claims merely by disguising such claims in negligence terms."' Bird v. W. C. W., 868 S.W.2d 767, 772 n. 7 (Tex. 1994).

    Accordingly, the Court GRANTS Defendants' Motion for Judgment as a Matter of Law made at the close of Plaintiffs' case on the Chapter 96, defamation and negligence claims. The Court DENIES Defendants' motion as to the Common Law Business Disparagement claim.

It 'is SO ORDERED .

Signed this 26th day of February, 1998.

[signature]
MARY LOU ROBINSON
UNITED STATES DISTRICT JUDGE

 

ENDNOTES
[footnotes in original opinion]

[1] Prior to the close of discovery, Defendants' motions for summary judgment were denied to afford Plaintiffs full opportunity to conduct discovery, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On December 16, 1997, just one month prior to trial, the court granted Plaintiffs' mot-Ion to take the deposition of a former employee of Harpo Productions, Inc. Discovery for all purposes in this matter ended on December 19, 1997. Analysis of the issues resented in this case requires the court to consider the United States Supreme Court's reservation of the standard of proof in Gertz v. Robert Welch Inc. 418 U.S. 323 (1974), and the quantum of proof in Philadelphia Newspaper Inc- v. Hepps, 475 U.S. 767(1986). Recognizing other questions would have to be tried and the evidence required would be the same, and in the interests of judicial economy, this court allowed the Plaintiff's to present evidence at trial on all three causes.

[2] After the BSE segment, the program discussed the dangers of Escherichia coli (E. coli) contamination from eating beef that is not fully cooked. Guests for this segment included a heartbroken father whose young child died from E. coli poisoning contracted when the father fed his child the edges of a hamburger that was not fully cooked in the middle. Another guest was a young woman who was hospitalized after she contracted E. coli poisoning from lettuce in a Caesar salad.

    Other segments included: Food handling tips, a health inspection of a, Chicago restaurant, and discussions about the hazards of eating oysters, drinking diet herbal tea, and the safety of drinking water supplies.
    Plaintiffs do not challenge these segments of the program.

[3] Webb was brought as the result of a June 19, 1974 newspaper article printed in the Dallas Morning News that reported "petty thievery" and the acceptance of small business bribes but the court found "did not refer to any individual by name and could not be construed to mean and include all of the deputies, agents and employees of the Dallas County Sheriff’s office." Id.

 

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION

CIVIL ACTION CAUSE NUMBER
2:96-CV-208

[filed: January 21, 1998]

TEXAS BEEF GROUP, PERRYTON
FEEDERS, INC., MALTESE, CROSS
CATTLE COMPANY, BRAVO
CATTLE COMPANY, ALPHA 3
3 CATTLE COMPANY, PAUL F.
ENGLER, CACTUS FEEDERS, INC.,
CACTUS GROWERS WC., and
DRIPPING SPRINGS CATTLE
COMPANY
Plaintiff's,

v.

OPRAH WINFREY
HARPO PRODUCTIONS, INC., and
HOWARD LYMAN
Defendants

PARTIES’ NARRATIVE OF STIPULATED FACTS

    This is a suit arising from statemants made on the April 16,1996, Oprah Whinfrey Show. The plaintiffs are: Texas Beef Group, Perryton Feeders, Inc.., Maltese Cross Cattle Company, Bravo Cattle Company, Alpha 3 Cattle Company, Paul F. Engler, Cactus Feeders, Inc,, Cactus Growers, 'Inc., and Dripping Springs Cattle Company.

    The defendants are: Oprah Winfrey, and the company which produces her television program Harpo Productions, Inc,, Howard Lyman who was a guest on the April 16,1996, Oprah Winfrey Show. We will refer April 16 program as "The Program."

    Bovine Spongiform Encephalopathy ("BSE") commonly referred to as Mad Cow Disease, is a Degenerative brain disease in cattle, It was diagnosed in cattle herds in Great Britain in 1996. It was subsequently diagnosed in cattle herds in Ireland some other countries on the European Continent. One case has been diagnosed in Canada in a cow imported from Great Britain. Mad Cow Disease has never been diagnosed in United States cattle.

    In July of 1989, the United States government banned the importation of cows from countries with BSE in their cattle herd. That same year, 1989, the U.S. cattle industry instituted a voluntary ban on the sale of sheep offal as a meat and bone meat product to be included in U.S. cattle feed.

    In 1990, the United States government formed a BSE management team.

    On March 22, 1996, an emergency meeting was convened by the Animal & Plant Health Inspection Service ("APHIS") of the United States Department of Agriculture ("USDA"). The purpose of the meeting was to explain to all potentially affected or interested parties what the new formation coming out of Great Britain on Mad Cow Disease was to answer questions.

    On March 29, 1996, the National Cattlemen s Beef Association ("NCBA") and the United States Department of Agriculture ("USDA") announced a voluntary ban on feeding ruminant-derived proteins to ruminant animals. Ruminant animals are animals with split hooves, multiple stomachs, which chew a cud. Cattle are ruminant animals.

    On April 2 and 3, 1996, the World Health Organization convened a two-day session in Geneva, Switzerland regarding NW Cow Disease and issued a report stating, in part: "All countries should ban the use of ruminant tissues in feed."

    The April 8, 1996, edition of Newsweek contained an article on Mad Cow Disease entitled "Mad Cow in the U.S.?"

    On April 8, 1996, representatives from the Centers for Disease Control and Prevention, the National Institutes of Health the Food and Drug Ad ministration United States Department of Agriculture, the United States . Department of Defense participated in a meeting to share information about the British announcement of the suspected between B S E and the new variant of CM in Britain. New variant CJD has not been diagnosed in the United States.

    On April 16, 1996, The Oprah Winfrey Show broadcast a program entitled "Dangerous Food." That show was taped in Chicago, Illinois on April 11, 1996.

    Dr. Gary Weber of the National Cattleman's Beef Association Dr. WdI Hueston of the United States Department of Agriculture, and Defendant Howard Lyman of the Humane Society of the U.S. were on the Program.

    On April 23, 1996, The Oprah Winfrey Show had a follow-up program on the "Dangerous Food" topic. Dr. Weber but not Mr. Lyman was a guest on the program.

    On May 10, 1996, the U.S- Congressional committee on food safety convened hearings' Washington, D.C. concerning the outbreak of BSE in Great Britain.

    On May 13 and 14, 1996, an intentional conference was held in Riverdale, Maryland sponsored by the FDA and USDA.

    On May 14, 1996, the FDA published at the Riverdale conference an advanced notice of proposed rule-making ("ANPRM") reguarding proposed ban on ruminant feed to ruminants. On July 25, 1996, the Center for Disease Control wrote saying that it urged the FDA ". . . to adopt a ruminant to ruminant feed prohibition." In July of 1996, the USDA recommended to the FDA a ruminant-to-ruminant feed. On January 3, 1997, the FDA proposed a ruminant-to-ruminant feed ban rule The United States Food & Drag Administration an has banned the practice of feeding ruminant protein to ruminants. On June 5, 1997 the FDA published the final rules on a ruminant-to-ruminant feed ban. That ban became effective on August 4, 1997.

    All research, preparation, and production for the April 16, 1996, Oprah Winfrey Show was done from Chicago, Illinois. The Program did not mention Texas or any region of Texas such as West Texas or the Texas Panhandle. The Oprah Winfrey Show was broadcast in Texas.