DefamationIntroduction:

Within the past few weeks, a major case has been settled, one that entailed allegations by a meat producer that a major television network had made defamatory claims about its products. See, e.g., Daniel Victor, “ABC Settles With Meat Producer in ‘Pink Slime’ Defamation Case,” The New York Times, Jun. 28, 2017.  The case revolved around a claim the network had made in 2012, and the litigation has been lengthy and complex.

Discussion:

On June 5, a jury trial began, and the settlement was somewhat unexpected. See id. To date, the settlement amount is undisclosed. See id. Interestingly, the settlement did not entail the defendant retracting its statement or issuing an apology, and it has said that it sticks by what the language at issue in its 2012 report. See id.

To understand the magnitude of this case, one needs to consider that it wasn’t merely one large network that picked up the purportedly defamatory story. As one analyst explains, “ABC News was among several organizations, including The New York Times, to report on questions about the safety of the product, which was commonly sold in grocery stores and used in schools and fast food restaurants. A public backlash led to a plummet in sales, and the company closed three of its plants and laid off about 700 workers.” Id.

The damages, according to the laws in South Dakota, where the case was being tried, could be over $5 billion. See id. Given the magnitude of this case, it is clear that expert witnesses played an invaluable role in parsing out the issues and in helping the parties reach a settlement. Specifically, experts on defamation, the media, the food industry, and others are among those who would be of great assistance to the attorneys in this case.

Attorneys who represent clients in similar litigation should pay attention to the issues at stake, as well as the possible damages involved. Because of the amount of damages that could have potentially been awarded, the defendant faced a high risk. Attorneys for media outlets should advise them on the potential for a given statement to appear defamatory and the financial and other implications in such a case. As prevention is the best medicine in cases of this type, this involves retaining consulting expert witnesses early in a case to seek guidance as to what types of speech could end up involving a company in legal trouble. Other companies should consider their words carefully and retain experts as well, as it is not just media outlets that can be liable for defamation. If an allegedly defamatory term is uttered in the public domain, it may be actionable.

The second step for attorneys in this field and for corporate attorneys in general is to retain experts in the event that a lawsuit is filed. Prospective plaintiffs will want to take the same steps, consulting experts to see if a statement could legally be classified as defamatory and preparing to use expert testimony to boost these claims. Experts will undoubtedly be instrumental in assessing basic elements of a case, such as fixing damages or establishing causation. Expert witnesses from many different fields should be utilized in cases of this nature.

It is noteworthy that the defendant chose to stick by their original report and not to retract their allegedly defamatory statement or issue an apology. The decision to make such a choice was likely guided by experts in the field, who provide assistance on the terms of settlements, as well as whether to make one. The plaintiff accepted this provision and seemed to feel that it had been compensated for its alleged damages, which was also a decision that was made after consulting with experts on the case.

Conclusion:

As demonstrated by the recently settled litigation, defamation cases can be not only protracted but can also run into very high potential damages figures. Particularly in instances where a media outlet is involved, these damages may be magnified, so any company or person who makes a public statement that could be seen as actionable would be wise to consult and retain expert witnesses in order to receive guidance and assistance in every phase of a case.