Appeal Of Oprah Lawsuit Set
In June Before Fifth Circuit

By David Bowser

AMARILLO — Oprah Winfrey and Paul Engler are headed back to court — at least their lawyers are.

The U.S. 5th Circuit Court of Appeals in New Orleans tentatively set oral arguments in the beef defamation suit against television talk show hostess Winfrey for the first week of June.

Lawyers for each side will be allowed 20 to 30 minutes to argue their case and answer the three-judge panel's questions.

The case stems from Winfrey's April 16, 1996, television show on dangerous foods, in which Winfrey and guest Howard Lyman talked about the possibility of "mad cow disease" — bovine spongiform encephalopathy or BSE — striking America. BSE had been found in British cattle and some human deaths had reportedly been linked to the consumption of meat from infected animals. No cases of BSE have been reported in the U.S.

Lyman, a vegetarian activist, contended that BSE was inevitable in the U.S. because cattlemen fed "road kill" to their livestock. Winfrey, for her part, vowed never to eat another hamburger. Subsequent evidence and testimony revealed that Winfrey used off-camera commercial breaks to whip her malleable studio mob into an anti-meat frenzy.

Consequences of the sensational broadcast were almost immediate, breaking the cattle futures market and driving down the price of live cattle. Cattlemen lost tens of millions of dollars before the market recovered.

Paul Engler, president of Amarillo-based Cactus Feeders, and several other cattlemen sued Winfrey, Lyman and Winfrey's television production company for putting beef in a false and derogatory light. The suit was brought primarily under the Texas False Disparagement of Perishable Food Products Act, or the "veggie libel law," as it has been derisively tagged.

The judge, however, ruled that live cattle did not enjoy protection under the law, forcing the plaintiffs to resort to a more difficult statute. When the jury subsequently found for Winfrey, Engler and the cattlemen appealed the case to the 5th U.S. Circuit. Depending upon the outcome of the appeal, the next step would be to the Supreme Court.

Engler's lawyer, Kevin Isern, says he will argue before the appeals court that U.S. District Judge Mary Lou Robinson in Amarillo lacked jurisdiction in the case, that Judge Robinson was wrong when she threw out the "veggie libel" law, and that she incorrectly instructed the jury on the "of and concerning" question in the suit's libel portion.

The cattlemen claim the lawsuit should have been heard in state court, not federal court, because it was brought under a state law. Having disallowed the original basis for the suit, moreover, the judge instructed the jury that under the remaining business law, they would have to find that Winfrey and Lyman specifically attacked the people bringing the lawsuit.

Isern, representing the appealing party, will go first. He will be followed by Winfrey's and Lyman's attorneys.

Barry Peterson, the Amarillo lawyer representing Lyman, says most of the time in court will probably be spent answering questions from the judges and responding to the issues raised by the plaintiffs.

Peterson says in most libel and slander theories of recovery, alleged slanderous comments would have to be about the person bringing the lawsuit, the "of and concerning" factor. Lyman and Winfrey talked about beef, not the cattlemen bringing the suit, he says.

"They didn't know the plaintiffs," Peterson argues.

When Judge Robinson dismissed the food disparagement law as grounds for the suit, the legal action depended upon business defamation law.

Chip Babcock, Winfrey's attorney, says he expects to use most of his time rebutting Isern.

"The central fact is that the jury found in answer to the first question that the broadcast was true, so none of the rest of it really matters," Babcock says.

Babcock says he doesn't think the jurisdiction point that the suit should be in state court rather than federal court will be persuasive to the court. Babcock says he thought Robinson was correct in dismissing the food disparagement law as part of the grounds for the suit. But even if she hadn't, he says the jury would have had to find statements false, and they didn't.

A jury on Feb. 26, 1998, found that Winfrey and her guest, Lyman, were not responsible for the losses suffered by Engler and others following Winfrey's television show in 1996, in which derogatory comments were made about beef.

Engler also filed a second lawsuit April 16, 1998, in 69th State District Court in Moore County.