TEXAS CATTLEMEN, OPRAH ARE STILL SHOOTING IT OUT IN COURT

LIZA B. ZIMMERMAN

AMARILLO, Texas -- A group of irritated Texas cattlemen are continuing their battle against the diva of daytime television in this panhandle town in the heart of cattle country.

Oprah Winfrey is being sued for a reported $12 million for comments she made during an April 1996 episode on mad cow disease during which Winfrey declared she would never eat hamburgers again (as reported in SN, Jan. 26, 1998).

The cattlemen claim that by tarnishing the good name of the American beef industry she caused cattle prices to drop.

Average Texas- and Oklahoma-fed cattle prices dropped $3.30 per hundredweight after Oprah's show aired, according to Ernest Davis, a professor and extension economist at Texas A&M University, College Station, Texas.

Davis estimated the loss to cattle feeders in "revenue not generated" during the three-week spike following Winfrey's April 16 broadcast to be $78 million, a figure well over the $12 million that the cattlemen are allegedly suing her for in damages.

Winfrey has been brought to court under a Texas statute, the False Disparagement of Perishable Food Products Act of 1995.

"They are basically putting a veggie libel law to test," said Lisa Williams, director of communications for the Texas Beef Council, Austin, Texas, in what she called an issue of freedom of speech.

Williams, who is not a plaintiff in the case but has been following the trial here, said, "This case isn't about a personality or the cattle industry. It is really about the responsibility that comes with freedom of speech."

"I think that it's fine for a celebrity to say whatever they want, but to tell the public 'If you eat hamburger it's going to be worse than AIDS,' as her program implied, there is going to be some liability," noted Texas A&M's Davis in an interview with SN.

"It is fine for Oprah to say that she will never eat another hamburger," said Davis in a memo, but "this suit is about how the aired program was edited and slanted."

"It basically comes down to 'Did you know that the statements that were made were false?' " explained Texas Beef's Williams.

Under the Texas False Disparagement Act a person is liable to the producer of a perishable food product for damages "if the person disseminates in any manner information relating to a perishable food product to the public; the person knows the information is false; and the information states or implies that the perishable food product is not safe for consumption by the public."

Burt Rutherford, the communications director at the Texas Cattle Feeders Association here, said that all the plaintiffs in the case were TCFA members. Although he said he didn't know exactly how many there were, he estimated that there were probably "six to eight different business entities on the plaintiff side."

Williams said she believed there were six plaintiffs, and cited the Cactus Feeders and Texas Beef Producers here as the two main ones.

The judge has put a gag order on the case and everyone directly involved has stayed mute in the face of the media onslaught taking this small Texas town by storm.

"The first couple of days there was quite a media frenzy. All the major networks were there," said Texas Beef's Williams.

Amarillo seemed delighted to welcome the popular talk show host to the fold. A few lone cattlemen aside, the town has shown that its heart belongs to Oprah in what quickly became ground zero for a three-ring media circus surrounding the trial.

"Hundreds of people have turned out to greet and welcome her," said Williams. "There are even a couple of women who have been standing outside the courthouse to get in everyday.

"Most people are very excited that she is there and it has been good for the economy of Amarillo."

Several retailers with stores in Amarillo did not return phone calls requesting comment on how the case had affected their sales.

Winfrey has set up a press office and moved filming of her show to the Amarillo Little Theater here for the length of the trial.

In recent weeks, Williams added, "things have calmed down at the courthouse."

The obstacles the cattlemen face in proving their case are likely to be similar to those that come into play in a defamation of character lawsuit, said John Bode, a partner at the Washington law firm of Olsson, Frank and Weeda, which specializes in food issues and was active in developing a model for food-disparagement legislation.

"The standard of disparagement for food is as high as the standards we have for public figures," said Bode.

He noted that food disparagement is constituted by "a statement that asserts that a perishable commodity is unsafe when that statement is false and the speaker knew that it was false."

More specifically in the Winfrey case, noted Bode, "The plaintiffs will need to prove that the message of the show was false, that the false message was knowingly presented, that damages resulted and that because of those false statements the cattle prices declined."

Bode added that, despite the fact that "the cattle markets went to pot right after Oprah's show and at the time it was referred to as the Oprah slump, any plaintiff has a real uphill battle in proving these cases."

Bode said that 13 states currently had food-disparagement statutes in effect.

It seems that the cattlemen are facing a formidable challenge in what has turned into a lengthy trial.

"It looks like the trial [which began Jan. 20] is going to last four or five weeks," said Williams. "It is going kind of slow. Each witness is taking about two days."

A Texas cattle industry source, who requested not to be identified, agreed that "some of the witnesses have spent several days on the stand so the trial is progressing slower than anticipated."

He added that the judge had put a maximum cap of 150 hours of court time on the case and "it looks like they are going to use the full 150."

Williams estimated that the plaintiffs may already even have gone over their allotment as the trial progresses.

Winfrey herself was on the stand during the first week of February giving testimony that Texas Beef's Williams categorized as "very standard questions and answers."

"They went back and forth to establish her influence over the American public," said Williams -- and to ascertain "that she has influence over the purchasing power of her audience."

The plaintiffs and their representatives either did not return phone calls or declined to comment on the case. Winfrey's press office here also declined to comment.

Despite her belief that most parties viewed the case as a question of freedom of speech, Texas Beef's Williams said that she hoped that the legal proceedings thus far "haven't hurt the image of beef."

The suit's outcome, she predicted, is likely to "have a long-term effect on the consumption of beef."