Jury selection begins May 31 in Siouxland for ‘trial of century’
The region where the borders of Minnesota, Iowa, South Dakota and Nebraska meet is called “Siouxland.” It has been ever since 20th Century novelist Frederick Manfred, who wrote the acclaimed “Lord Grizzly” and 21 other works of fiction, came up with the area moniker.
Were he still alive, Manfred would enjoy seeing Elk Point, SD, with less than 2,000 residents, become the stage for Siouxland’s “trial of the century,” with BPI v. ABC News scheduled to go before a South Dakota jury in the Union County Courthouse on June 5.
If there is not one of those last minute settlements that lawyers are so good at, Elk Point is going to come in for attention it’s rarely received. Nestled between the Missouri and Big Sioux rivers, Elk Point was nicely looped about 50 years ago by Interstate 29. Other than that, not much has changed.
It’s a place with the very sort of history Manfred liked — the Hudson’s Bay Co. set up a trading post there for fur traders as early as 1755. It came to be known as Elk Point because elk were abundant in the rolling prairie between the rivers, not unlike the area less than 200 miles further up the Missouri River near Fort Kiowa where mountain man Hugh Glass went after being malled by a grizzly bear.
If it does come off, the case of Beef Products Inc. and ABC News will be the biggest trial ever to occur in South Dakota’s Union County Court House. At least nine weeks is being set aside for the trial with as many as 50 lawyers expected to be involved.
To say that extraordinary preparations are underway may be an understatement. Consider these actions:
- ABC has purchased “at least one entire house” in Elk Point to convert into office space to be used during trial.
- BPI has rented space on Main Street in Elk Point, and brought in modular offices.
- An entire new courtroom has been built into the basement of the existing Union County Court House. Previously, the Union County Courthouse had only one courtroom with a maximum occupancy of 70.
The 1st Judicial District looked at other options for the new courtroom, including various public schools and event venue spaces before opting to rebuilt the existing community room space that was in the court house basement. It could have taken the trial to the University of South Dakota School Law, which is about 20 miles from Elk Point but over the Union County line.
Earlier in the year, Union County Commissioners put $100,00 aside for the courtroom project and now keeping the trial is starting to look like an economic development project.
The new space will allow each side to have 16 attorneys in the court room at a time, and it can accommodate a total of 132 people. It has carpet for acoustics and custom-made furniture for the clerk, judge, court reporter and witness stand.
BPI and ABC are contributing some electronic equipment including monitors for jurors and a big screen for the wall.
Jury selection is scheduled to begin May 31. A 12-member jury with four alternates will be selected.
BPI, which is based in Dakota Dunes, SD, adjacent to Sioux City, IA, sued ABC News in 2012 for disparaging statements about its lean finely textured beef (LFTB) product that the network repeatedly referred to as “pink slime.”
The Disney-owned network tried unsuccessfully to get the litigation either dismissed or removed to the federal court system. It did succeed in narrowing the list of defendants to ABC and on-air reporter Jim Avila. ABC News Anchor Diane Sawyer and others were dismissed from the proceedings.
The trial judge is Cheryle Gering, who has ruled on pre-trial motions and seen her rulings upheld by the South Dakota Supreme Court. She has allowed the case to go to a jury under common law pertaining to disparagement claims, including those under the Agricultural Foods Products Disparagement Act.
Against what is certain to be a vigorous defense on First Amendment and Free Press grounds by ABC, legal observers in South Dakota say BPI is making a case around proving it was the target of a disinformation campaign including at least five parts. Included are:
- Intent to make “pink slime” a synonym for BPI’s “lean finely textured beef” project;
- Deception to cause consumers to believe LFTB is neither meat nor beef, but a filler to increase volume of ground beef;
- Causing consumers to think LFTB is unsafe for human consumption;
- Causing consumers to think LFTB lacks nutritional value; and
- Confusing consumers into perceiving that BPI was involved in improper conduct to obtain USDA approvals.
At trial, BPI promises to be more specific about the damage amounts it is seeking. In its original filing it listed $400 million. Any amount awarded can, under the Disparagement Act, be tripled. That’s why most reports say BPI is seeking $1.2 billion in damages.
Before “pink slime” became a dominant news event in 2011, BPI operated plants in multiple states and delivered LFTB to top fast food chains and the National School Lunch program. Public reaction caused it to lose numerous contracts and customers, led to plants closures, and layoffs of several hundred workers.
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