Judge to lawyers in BPI case: Act like whiskey drinkers

Jonathan Ellis | Argus Leader

Show Caption Hide Caption Trial involving BPI and ABC news begins A closer look at the case involving Dakota Dunes-based BPI and ABC News.

ELK POINT – Late in the morning Friday, Judge Cheryle Gering looked out at the squad of lawyers seated in her makeshift courtroom and asked them to act more like whiskey drinkers than wine drinkers.

Gering, presiding over the nearly $2 billion defamation lawsuit brought by Dakota Dunes-based Beef Products Inc. against ABC, had just admonished lawyers for filing a blizzard of motions in the case.

“I am not going to read through what I did last night,” she warned. “It’s not going to happen.”

From the windowless basement room in the Union County Courthouse that was converted into a courtroom, Gering told the story of how, as a junior associate, she had made a check list of every question she wanted to ask in her first deposition. Following the deposition, a partner told her she acted like a litigator and not a trial lawyer.

Litigators are fussy, file-every-motion and make-every-objection types. Trial lawyers roll with the punches. She warned the more than dozen lawyers representing both sides that she didn’t want written motions each day and that she expected to make rulings after oral arguments.

“You need to be trial lawyers. A litigator drinks wine and takes depositions. A trial lawyer drinks whiskey and tries cases.”

Friday marked the final day before opening statements on Monday. A 16-member jury that was picked Thursday was not present, given the day off while Gering handled housekeeping duties ahead of a trial that could last two months.

BPI filed suit against ABC and correspondent Jim Avila in September 2012 following a series of reports that questioned the safety, quality and wholesomeness of its signature product, Lean Finely Textured Beef. BPI claims the reports were false, but public outcry forced the company to close three of four processing plants and eliminate 750 employees, about half its workforce. The company claims damages of $1.9 billion.

One of the issues Gering ruled on Friday was whether those damages could be trebled. A law passed by state lawmakers in 1994 makes it illegal to disparage agriculture food products if the person making the statements knows them to be false and states or implies that a food product is not safe for consumption by the public. Known as the South Dakota Agricultural Food Product Disparagement Act, the law allows producers to collect triple damages. In BPI’s case, that would amount to $5.7 billion.

Lawyers for ABC argued the trebling portion of the law was unconstitutional. Kevin Baine, a lawyer for the broadcasting giant, said South Dakota is one of 13 states with agriculture disparagement laws, but only one other, Ohio, has a similar provision for damages.

“This kind of damage provision is extraordinary,” Baine said.

Gering noted that provisions doubling and tripling damages are present in other laws. An example, she said, is a law that allows tree owners to collect triple damages for wrongly cut trees. She said she had cases where entire groves of trees had been wrongly cut down, leading to major damages under the trebling provision.

But Baine argued the trebling provision in the agriculture disparagement act was unconstitutional because it established a mandatory damage not for conduct but for speech protected by the First Amendment.

“Speech can’t fell a tree,” he said.

Steffen Johnson, a lawyer for BPI, said the trebling provision was consistent with U.S. Supreme Court rulings on reasonable damage awards. He noted that trebling provisions existed for fraud and deceitful lawyers, which both require speech.

Gering ruled that lawmakers had the constitutional authority to establish the trebling provision.

“The Legislature has the right to come in and determine what remedies or penalties, depending how you look at it, are available,” she said.