IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF TEXASAMARILLO DIVISIONCIVIL ACTION CAUSE NUMBER2:96-CV-208-J[filed: February 26, 1998][11 Supp.2d 858 (N.D., 1998)]TEXAS BEEF GROUP, PERRYTONFEEDERS, INC., MALTESE, CROSSCATTLE COMPANY, BRAVOCATTLE COMPANY, ALPHA 33 CATTLE COMPANY, PAUL F.ENGLER, CACTUS FEEDERS, INC.,CACTUS GROWERS WC., andDRIPPING SPRINGS CATTLECOMPANYPlaintiff's,v.OPRAH WINFREYHARPO PRODUCTIONS, INC., andHOWARD LYMANDefendants 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 HowardLyman alleging causes of action for- (1) False disparagement of perishable food products, in violation of Texas Civil Practice and Remedies Code Section96.002; (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 incattle 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. Itwas 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
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