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
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