Oprah, Lyman vindicated by US Court of Appeals
Pituitaries taken from dead Irish children without parental consent
BSE not dropping in Ireland
nvCJD death toll: 14,000 minimum
Washington gets tough on scrapie
France Under Fire Over Mad Cow Precautions
Mystery disease kills eight Belgian cows
US beef producers still using illegal hormone DES
Illegal hormones used on Olympic hopefuls
Emerging infectious diseases of wildlife
Reuters Online Service Sat, Feb 5, 2000 By Adrian CroftFrance, which defied a European Union decision to lift a ban on British beef, came under fire on Saturday in an EU report which found fault with its controls on cattle feed imposed in the wake of the mad cow disease scare. The just-published report of an EU veterinary mission to France in June 1999 said traces of meat and bone meal continued to be found in cattle feed in France even though use of animal proteins in cattle feed was banned in July 1996.
Scientific tests as far back as 1987 found that meat and bone meal from cattle was the likely cause of transmission of mad cow disease or BSE. The EU report, published on the Commission's web site, also found that, while the incidence of mad cow disease in France appeared to be moderate, a study of the data showed that underreporting of suspected cases could not be ruled out.
The findings could embarrass the French government, which has defied its European partners to maintain a British beef ban on the grounds that safety measures were still not foolproof. The EU's executive Commission took France to the European Court of Justice last month over its refusal to lift the ban even though EU states agreed in August to end the embargo imposed in 1996. France has reported 82 cases of BSE since it began tracking the disease.
Beate Gminder, spokeswoman for EU Consumer Protection Commissioner David Byrne, said cattle feed sometimes became accidentally contaminated with feed intended for pigs or poultry which can still contain animal protein, but this had to be controlled by member states.
"We had discussions with French authorities. They have said they are going to correct it," she told Reuters. She said Byrne would this spring propose an EU-wide system for testing cattle at risk of BSE.
The EU veterinary report recommended that clear instructions be given to the French feed industry on how to avoid cross-contamination of feeds and sampling of cattle feed to check compliance should be stepped up. It said 4.2 percent of samples of cattle feed analyzed in the first five months of 1999 contained traces of meat and bone meal while 1.4 percent contained more than a trace.
It said authorities did not provide systematic training to the feed industry on how to avoid cross-contamination of animal feeds and an EU law requiring other feeds to be labeled "Not for ruminants" was not complied with in two French feed plants visited by the inspectors.
On surveillance of BSE, the report said training given to veterinary inspectors in slaughterhouses and to farmers on spotting signs of mad cow disease was not satisfactory. "Notification of suspect BSE cases by farmers occurs with a certain hesitation and a considerable delay in some cases," it said.
There was no immediate reaction to the report from French authorities. France said in late January it would set up a screening program in the next few weeks to check that cattle ready for slaughter were not infected with mad cow disease. It is the second time France has been criticised over feed controls recently. Last October, the European Commission warned Paris to improve controls in rendering plants after its inspectors found some had passed on sewage sludge to animal feed makers.
Reuters Online Service Sat, Feb 5, 2000France, which has maintained a ban on British beef, failed itself to ensure that animal feedstuffs no longer contained substances banned in the wake of Europe's madcow disease scare, a newspaper said on Saturday. French daily Le Figaro cited a report by European Commission experts who said they found continued traces of banned animal proteins in feedstuffs during checks as recently as last June.
The revelations in a front-page story headlined "New Madcow Scandal" could prove highly embarrassing for a government which has defied its European partners to maintain a British beef ban on the grounds that safety measures were still not foolproof. The newspaper said Commission veterinary experts had found elements of banned protein and bone matter in feed destined for cattle herds, despite a prohibition across the European Union since July 1996 for grazing herds.
The experts carried out tests in France last May and June, shortly before the decision by European Union partners to lift the ban on beef from Britain, where the scare over bovine spongiform encepalopathy (BSE), or madcow disease, began. British beef had been banned and measures taken across the 15-nation bloc since mid-1996 to prevent feedstuffs considered as risky getting into the food chain.
The newspaper said the Commission report also faulted France for failing to ensure that animal feed containing the proscribed protein and bone matter was specifically labeled as "not for grazing herds." The Commission also found fault with herd surveillance, such as delays by breeders in reporting cases of infected cattle, the newspaper said.
Sun, 6 Feb 2000 By Europe Correspondent Justin WebbVeterinary experts working for the European Commission have accused the French authorities of not doing enough to halt the spread of BSE or "mad cow disease". he vets found traces of banned substances in feed-stuffs and they criticised farmers for delays in reporting suspected BSE cases.
A Commission spokesman stressed that all systems have failings and there was no suggestion from the commission that French beef was unsafe. But the French authorities will find these criticisms embarrassing in the light of their refusal to allow imports of British beef, which is subject to much more stringent controls.
European Commission vets issue regular reports on how countries are dealing with the BSE crisis. This one suggests that there are significant failings in the French approach. In particular, it says notification of suspected new cases of BSE by French farmers occurs only after a certain hesitation and, in some cases, after a considerable delay.
If the vets are right, there must be at least a risk that some BSE cases are being slaughtered for human consumption. There is also a risk of under-reporting of BSE, the report says, because the French definitions of those animals that should be considered at risk are too lax.
In particular, the veterinary experts complain that fallen stock [downers] is not considered as suspect and is destroyed without the authorities being notified. They are also critical of the French controls on feed-stuffs. They suggest that some banned material is still being fed to cattle, in contravention of EU rules.
2/8/2000 APFrench Agriculture Minister Jean Glavany said Tuesday that there is no chance France will lift its ban on imports of British beef in the near future.
The minister also said there was no question of banning French beef, despite a recent EU Commission report by a team of veterinarians claiming some French cattle are still being fed animal-based feeds, a key means of transmitting mad cow disease. France outlawed feeds containing animal proteins in 1996.
"Banning French beef consumption is out of the question," Glavany said in an interview with French Roman Catholic daily La Croix. It's all the more irrelevant because our actions are aimed at making French beef the safest in Europe.
Glavany acknowledged that risks involving mad cow disease have not been completely wiped out, despite rigorous efforts. "There are still unknowns, and we're trying to limit them to the maximum," he said. "To cut risks, we outlawed animal flour." The ban on British beef stems from the same logic. Therefore there's no question of lifting the embargo in the short term.
Glavany also questioned the fairness of the European Union report. "I'm not against France being checked. But if it was a routine check, as has been said, I'd like to compare it with checks in other countries," Glavany said, "adding that some other European countries have not banned animal-based feeds."
Glavanys comments follow signs that Germany the only other country in the EU still to maintain the ban on British beef - is about to end its embargo.
In August, the European Union declared that beef from Britain was again safe for import after the international scare over mad cow disease, but France angered its cross-channel neighbor by continuing its ban. The executive arm of the European Union has started a legal case against France at the European Court of Justice. There were 31 cases of mad cow disease in France last year, compared with more than 2,000 in the United Kingdom.
Comment (webmaster): France evidently imported about 20 tons of rendered bovine "flour" (or greaves) from the UK, in the year 1989 alone.
Fri, Feb 11, 2000 Reuters World Report)France on Friday reported its fifth case of mad cow disease this year amid concerns its cattle may still be at risk of acquiring the deadly brain-wasting disorder. The Farm Ministry said in a statement the new case involved a dairy cow born in 1994 in the Loire region of central France. It and the 41 other cows in the herd were destroyed. France has reported at least 82 cases of mad cow disease (BSE) since health authorities began tracking it. Last year, the country reported 31 cases.
The ministry said the diseased animal was most likely infected by consuming feed not intended for cattle. France plans to set up a screening programme soon to check that cattle ready for slaughter are not infected with BSE. French officials were on the defensive earlier this week after the EU Commission said a veterinary mission in June 1999 found traces of meat and bone meal in cattle feed in France despite a ban on such use of animal proteins to prevent the transmission of BSE.
French Farm Minister Jean Glavany blamed the report's findings on cheating in the farm industry, and said he could not fully exclude the possibility that French cattle were still eating feed made with banned substances.
The EU report was published a month after the European Commission took France to court over its refusal to lift a ban on British beef amid fears it may still pose a risk to humans from mad cow disease. BSE has been linked to a form of the human Creutzfeld-Jakob Disease that has so far killed at least 63 people.
Friday February 11 2000 Michael Smith Financial TimesThe European Commission is next week expected to launch legal proceedings against Germany over the country's delay in ending a ban on British beef. Commissioners are likely to order the dispatch of a letter of intent, the first stage in legal action procedures, at their weekly meeting in Strasbourg on Tuesday.
The move raises the possibility that the European Union's executive will soon be engaged in high profile legal battles with two of the EU's three largest countries over British beef, although it hopes to avoid that. The Commission has already filed suit against France in the European Court of Justice over Pariss refusal to end the ban lifted by the other 12 EU countries last August.
David Byrne, EU consumer protection commissioner, is seeking the support of his Commission colleagues for the start of legal proceedings against Germany in spite of assurances from Berlin that it is doing all it can to lift the ban. Although they have the right to reject his recommendation or delay a decision, this was last night thought to be unlikely.
This month the German government approved the ending of an embargo imposed by the EU on all British beef exports in March 1996 when scientists identified a potential link between BSE, or mad cow disease, and a fatal disease affecting people. However, the decision to end the ban can only be implemented if approved by the Bundesrat, the upper house of parliament where Germany's states are represented.
Andrea Fischer, German health minister, t{[ld Mr Byrne this week she was confident the Bundesrat would vote on March 17 to end the ban. However, at least five state governments want to keep the ban, and some of the other 11 could join them. ...
Beate Gminder, Mr Byrnes spokesman, said the threat of legal action against Germany had always been on the table but could neither confirm or deny plans for a launch next week.
Thu, Jan 20, 2000 New Scientist and Reuters World ReportResearchers have revised their estimates for the final death toll from the human equivalent of mad cow disease in Britain to thousands rather than millions. The new figures are based on a model of the likely course of new variant Creutzfeldt-Jakob (vCJD) which takes into account previous deaths, the course of the mad cow epidemic and the amount of infected material in the food chain. "The final death toll is likely to be on the scale of thousands rather than millions," New Scientist magazine said on Wednesday.
The model, developed by researchers at the Wellcome Trust Centre for the Epidemiology of Infectious Disease in Oxford, southern England, uses the number of deaths from 1999 to predict fatalities in 2000 and the maximum numbers of deaths throughout the course of the outbreak. The final figures for 1999 are not available yet. Statistics to date show that nine people died last year from vCJD, which scientists say is caused by eating meat from cows infected with bovine spongiform encephalopathy (BSE), or mad cow disease.
"If 15 people or fewer died from vCJD in 1999, the model predicts that any epidemic will reach a maximum of half a million cases in total. If there is no increase and a similar number died in 2000, then it predicts that any epidemic will peak at a total of 14,000 cases or fewer," the magazine added.
Mad cow disease and vCJD occur when a brain protein called a prion changes and folds in an unusual way. So far all of the people who have died from vCJD have had two copies of a particular variant for the prion protein. In their model the scientists included the fact that about 40 percent of the population of Britain have the particular variant which may make them more susceptible to the disease.
Opinion (webmaster): Christl Donnelly and coworkers evidently have a new paper in Proceedings of the Royal Society B (vol 267, p 23). The New Scientist article must be based on this and the Reuters report in turn on the New Scientist story. The underlying data is meagre. Britain has not disclosed the results of its tonsil survey, begun 18 months ago.
BSE may well be endemic in some countries already. Every schoolchild in the UK (and elsewhere) has already been immunized with vaccine made in serum from infected bovines, in addition to whatever they ate. On the other hand, in a year or two, detection will be very much improved.
However, if nvCJD passes horizontally from person to person as easily as CWD passes from deer to deer, is the packet of already-infected people to be kept in quarantine, say on some large island with a convenient location and good airports?
We recently passed the first anniversary of the decisive detection of nvCJD detection in tonsils. In fact, it has been about 18 months since that research was completed. By great good fortune, Britain retained tens of thousands of tonsil samples back for decades.
Because it is so fast and affordable to determine the extent of the epidemic experimentally (1000 per week?), there is little purpose in modelling it or extrapolating from the meagre releases on deaths (a strongly lagging indicator).
We can be completely confident that if there had been good news from this on-going survey (78,000 tonsils to date?), we would have heard by now. But now the story is that they must have a cure to announce at the same time the bad news is given out (in ten years time?). Now why didn't they do this with AIDS? The reality is that people in the UK seriously inclined to depression or panic have survived 15 years of very scary headlines already.
So the issues really are: how bad is it? What is the time frame for cases already in the pipeline -- can they safely keep the cover-up going another 5 years? Will the extent ever be made public? Will more be spent on finding cures or would this tip off the public? The news may be quite awful but beef exports still rule. The newly appointed "food standards" chief will not represent a move away from MAFF [Nature, 30 Jan 00, pg 235].
Globalization of nvCJD, though it seems cold-hearted, is actually helpful to Britain because it would draw in countries with far greater biomedical research capabilities. So it is the best of both worlds, reaping the benefits of exports while forcing other countries to foot the bill for therapy research.
Lancet 1999 Jan 16;353(9148):183-9 Hill AF, Butterworth RJ, ... Ironside JW, Lantos PL, Collinge JPrions replicate in lymphoreticular tissues before neuroinvasion, suggesting that lymphoreticular biopsy samples may allow early diagnosis by detection of PrPSc. Lymphoreticular tissues (68 tonsils, 64 spleens, and 40 lymph nodes) were obtained at necropsy from patients affected by prion disease and from neurological and normal controls. Tonsil biopsy sampling was done on 20 patients with suspected prion disease. Tissues were analysed by western blot to detect and type PrPSc, by PrP immunohistochemistry, or both.
All lymphoreticular tissues obtained at necropsy from patients with neuropathologically confirmed variant CJD, but not from patients with other prion diseases or controls, were positive for PrPSc. In addition, PrPSc typing revealed a consistent pattern (designated type 4t) different from that seen in variant CJD brain (type 4) or in brain from other CJD subtypes (types 1-3). Tonsil biopsy tissue was positive in all eight patients with an adequate biopsy sample and whose subsequent course has confirmed, or is highly consistent with, a diagnosis of variant CJD and negative in all patients subsequently confirmed to have other diagnoses.
We found that if, in the appropriate clinical context, a tonsil biopsy sample was positive for PrPSc, variant CJD could be diagnosed, which obviates the need for a brain biopsy sample to be taken. Our results also show that variant CJD has a different pathogenesis to sporadic CJD.
MONTHLY CREUTZFELDT-JAKOB DISEASE FIGURES Monday 7th February 2000
The Department of Health is today issuing the latest monthly table,
giving the numbers of deaths of definite and probable cases of
Creutzfeldt-Jakob disease in the UK to 31 December 1999. Total number of definite and probable
cases of nvCJD = 52 (which includes one case who died January 2000)
Year Referrals Deaths of definite and probable cases in the UK
sporadic latrogenic familial gss vCJD Total
1985 - 26 1 1 0 - 28
1986 - 26 0 0 0 - 26
1987 - 23 0 0 1 - 24
1988 - 22 1 1 0 - 24
1989 - 28 2 2 0 - 32
1990 53 28 5 0 0 - 33
1991 75 32 1 3 0 - 36
1992 96 43 2 5 1 - 51
1993 78 38 4 2 2 - 46
1994 116 51 1 4 3 - 59
1995 87 35 4 2 3 3 47
1996 134 40 4 2 4 10 60
1997 161 59 6 4 1 10 80
1998 152 61 3 3 1 17 85
1999 159 48 4 0 0 11 63
Mon, Jan 24, 2000 Reuters World Report By Will HardieBelgium said on Monday it was investigating the deaths of at least eight cows at two dairy farms from a mysterious illness and had shut one of the farms and would slaughter its entire herd.
Agriculture Minister Jaak Gabriels said veterinary experts were baffled by the illness, which was first detected on December 2 when several cows at a farm in Meetjesland, east Flanders, developed bloody diarrhoea.
He said tests had ruled out sugar beet pulp used in animal feed, which he earlier said was a suspected cause of the illness. "We've got to look at other lines of inquiry now. We hope we will turn something up in the hours and days to come," Gabriels told a news conference.
The discovery of the diseased animals came less than a year after the outbreak of Belgium's dioxin-in-food crisis raised fears about food safety. The dioxin crisis was traced to animal feed made with animal fats contaminated with motor oil.
Gabriels insisted that Belgium had acted speedily on the latest health scare. "We learned a lot from the dioxin crisis. The farm immediately warned the authorities....We informed the (European Union) straight away. Public health was never threatened. Now we've just got to find the cause."
Gabriels said that tests for poisons, pesticides, bacteria and parasites had all drawn a blank. The diseased cows were found at dairy farms in Meetjesland and Zwalm, but Gabriels said the government has only shut down the Zwalm farm. "There's no progress at the moment," he said. "We've shut down the farm and we're still looking for the cause." "The other farm is clear now, so there isn't a problem," he said.
Gabriels provided no further detail on why the Meetjesland farm was found to be safe. He said other cows at the two farms had also been sick, but provided no numbers. The Agriculture Ministry said several cows at the Meetjesland farm were found on December 2 with bloody diarrhoea. Others later showed signs of paralysis and lung disorders. The first of the diseased cows died on December 5. Gabriels said the Agriculture and Health ministries had formed a joint crisis committee and insisted food safety mechanisms had worked.
Last year's dioxin crisis, which broke in late May, seriously dented Belgium's economy, stripping grocery shelves bare and prompting countries around the world to ban Belgian food imports for fear of the cancer-causing chemical. The Belgian government came under fire for not acting fast enough to control the crisis, helping to topple the country's ruling coalition party, the Christian Democrats, from power for the first time in more than 40 years in the June elections.
7 Feb 00 News accounts are very garbled. Below is fulltext from the Court's web page:
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10391
TEXAS BEEF GROUP; ET AL,
Plaintiffs,
CACTUS GROWERS INC.,
Plaintiff-Appellant,
v.
OPRAH WINFREY; HARPO PRODUCTIONS INCORPORATED; HOWARD LYMAN;
KING WORLD PRODUCTIONS, INCORPORATED,
Defendants-Appellees.
------------------------------------------------------
PAUL F. ENGLER; CACTUS FEEDERS, INC.,
Plaintiffs-Appellants,
v.
OPRAH WINFREY, ET AL,
Defendants,
OPRAH WINFREY; HARPO PRODUCTIONS INCORPORATION; HOWARD LYMAN;
KING WORLD PRODUCTIONS, INCORPORATED,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Texas
February 9, 2000
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:
At issue in this case is whether The Oprah Winfrey Show and one of its
guests knowingly and falsely depicted American beef as unsafe in the wake
of the British panic over "Mad Cow Disease." The district court doubted
that fed cattle are protected by Texas's equivalent of a "Veggie Libel
Law," See Tex. Civ. Prac. & Rem. § 96.01 et seq. The court alternately held
that no knowingly false statements were made by the appellees. We affirm on
the latter ground only and affirm the court's other rulings.
I. INTRODUCTION
In early 1996, a new variant of Creutzfeldt-Jakob Disease ("CJD") was
diagnosed in Britain. CJD, a form of Transmissible Spongiform
Encephalopathy, is a fatal disease that affects the human brain. On March
20, 1996, the British Ministry of Health announced that scientists had
linked the consumption of beef infected with Bovine Spongiform
Encephalopathy ("BSE") with this new CJD variant. BSE, or "Mad Cow
Disease," had been detected in British cattle as early as 1986.(1) Also a
form of Transmissible Spongiform Encephalopathy, BSE triggers a deadly,
degenerative brain condition in cattle. BSE is most likely to arise when
cattle are fed contaminated ruminant-derived protein supplements, which are
made from rendered cattle and sheep.
The postulated link between the consumption of beef and CJD caused panic in
Britain. News media in the United States ran numerous stories on the
subject. Articles appeared in, inter alia, the New York Times, The Wall
Street Journal, and Newsweek. Dateline, a popular, "prime time" television
news program, broadcast a report on the subject. See Texas Beef Group v.
Winfrey, 11 F. Supp. 2d 858, 861 (N.D. Tex. 1998). Another report, and the
subject of this suit, was aired on the "Dangerous Food" broadcast of the
Oprah Winfrey Show.
Asserting that the beef market suffered substantial losses following the
broadcast, several Texas cattle ranchers sued Oprah Winfrey, the producers
and distributors of the Oprah Winfrey Show, and Howard Lyman, a guest on
the show, in Texas state court. The cattlemen alleged violations of the
Texas False Disparagement of Perishable Food Products Act, Tex. Civ. Prac.
& Rem. §§ 96.001-.004 ("the Act"), and damages arising from the common-law
torts of business disparagement, defamation, negligence, and negligence per
se. The cattlemen's suit was removed to federal court. At the close of the
cattlemen's case-in-chief, the district court culled the majority of the
pending claims, saving only the business disparagement cause of action.
This claim was rejected by the jury, and the cattlemen have appealed.
Although we differ with the district court's reasoning on certain issues,
we affirm.
II. FACTUAL BACKGROUND
A. The "Dangerous Food" Show
As the British public panicked over the human victims in their country and
over the announcement of a possible link between BSE and new-variant CJD,
employees of the Oprah Winfrey Show(2) laid the groundwork for an episode
covering the hidden dangers in food. Alice McGee, a senior supervising
producer for the Oprah Winfrey Show, and James Kelley, an editor, held a
brainstorming session and decided that "dangerous food" would be a good
topic for a show. The two approached Diane Hudson, the Oprah Winfrey Show's
executive producer, regarding the topic, and she approved, so long as BSE
was not the only issue discussed. Kelley began preparing for the show and
assigned members of his production team to research the "Mad Cow Disease"
topic. Three weeks before the taping of the "Dangerous Food" show, Andrea
Wishom, a researcher for the Oprah Winfrey Show, conducted research and
interviewed individuals who were knowledgeable about CJD and "Mad Cow
Disease." During her research, Wishom discovered that the Center for
Disease Control, the U.S. Department of Agriculture, and several professors
and researchers felt that "Mad Cow Disease" could not occur in the United
States. In telephone conversations, however, Wishom learned that Lyman
believed "Mad Cow Disease" could produce an epidemic in this country worse
than AIDS. Wishom spoke with each potential guest on the telephone,
discussed her research with Kelley and summarized research for Winfrey's
use during preparation and taping of the show.
On April 11, 1996, the "Dangerous Food" episode of the Oprah Winfrey Show
was taped in Chicago, Illinois. Guests on the show included Lyman,(3) Dr.
Gary Weber,(4) Dr. Will Hueston,(5) Linda Marler, Dr. James Miller,(6) and
Beryl Rimmer. During the taping, Winfrey discussed several topics with her
guests, including the discovery of new-variant CJD in Britain, the gruesome
symptoms of the disease, the impact of the disease on the families of those
stricken, the threat of the disease in the United States, and the steps
being taken by cattlemen and the U.S. Department of Agriculture to prevent
an outbreak of BSE in this country. Over the course of the taping, Lyman
made several statements regarding the threat of BSE in the United States
that Drs. Weber and Hueston found misleading. The experts responded to
these statements with facts designed to show the cautious response that the
United States had taken to the threat of BSE. They explained the extensive
animal testing and oversight used to discover and prevent the spread of BSE
in United States cattle. They noted that these procedures had been in place
for nearly a decade and that no case of BSE had ever been reported in the
United States. They also pointed out that cattlemen voluntarily banned on
ruminant-to-ruminant feeding while the Department of Agriculture considered
a mandatory ban on the practice.
After the taping, Kelley edited extensively to pare down the "Mad Cow
Disease" segment for broadcast.(7) From approximately eight minutes of Dr.
Hueston's statements recorded during the taping, only 37 seconds remained
in the broadcast. As instructed by Winfrey and McGee, Kelley cut out "the
redundancies" in Dr. Weber's and Dr. Hueston's interviews. These
"redundancies" included portions of the following: (1) Dr. Weber's
references to the voluntary ban on ruminant-to-ruminant feeding, (2) Dr.
Weber's explanation of what ruminant-to-ruminant feeding entailed, (3) Dr.
Weber's distinctions between Britain's approach to BSE and the United
States's more careful approach, (4) Dr. Weber's response to an audience
member's question concerning the examination of cattle before slaughter,
and (5) most of Dr. Hueston's comments, including a description of the
safeguards against slaughter-house processing of sick cattle. Also edited
out was Lyman's admission that American beef is safe. None of Dr. Miller's
statements appeared in the show as broadcast. The edited show was broadcast
on April 16, 1996.
B. The Oprah Crash
Following the April 16, 1996, broadcast of the "Dangerous Food" program,
the fed cattle market in the Texas Panhandle dropped drastically. In the
week before the show aired, finished cattle sold for approximately $61.90
per hundred weight. After the show, the price of finished cattle dropped as
low as the mid-50's; the volume of sales also went down. The cattlemen
assert that the depression continued for approximately eleven weeks.
The depression in cattle prices reverberated in national fed cattle markets
as well. W. Winfred Moore, II, a commodities trader on the floor of the
Chicago Mercantile Exchange, reported the impact that the "Dangerous Food"
show had on the live cattle futures market. He recalled the stir the show
created in the trading pit, both before and after broadcast. Moore
explained that the fear inspired by the show caused futures prices to
decline by $1.50 per hundred weight -- the limit-down for the market. The
market reached the limit-down within an hour of the Oprah Winfrey Show's
9:00 a.m. broadcast, and the Mercantile Exchange closed the live cattle
market for the day.
Cash fed cattle markets suffered a similar fate. Dr. Wayne D. Purcell, an
expert in agricultural economics and livestock marketing, concluded that "a
significant and rather dramatic shock impacted the cash fed cattle market
during [the week of] April 16, 1996." Dr. Purcell went on to testify that
the aftereffect of this shock was felt in the cash market through July 1996
and perhaps into the fall of 1996.
C. "Mad Cow Disease" Revisited
News of the "Oprah Crash" spread quickly, and several cattlemen complained
to the Oprah Winfrey Show. Sensitive to their accusations of unfairness,
Winfrey invited Dr. Weber and a cattle rancher, but not Lyman, to a show
aired one week later to refute the "Dangerous Food" broadcast. Dr. Weber
reexplained the voluntary ban, and anticipated permit ban, on
ruminant-to-ruminant feeding. He explained the purpose of
ruminant-to-ruminant feeding and the limited extent of its practice. He
reiterated that no BSE had ever been found in this country. Dr. Weber
concluded by reassuring viewers that cattlemen were doing "everything it
takes to protect the health of . . . cattle and . . . consumers." Thanking
Winfrey for airing the new show, the president of the National Cattlemen's
Beef Association wrote,
On behalf of more than a million U.S. cattle producers, I want to thank you
for allowing us to present the truth about feeding animal-based protein
supplements and the British cattle disease BSE . . . . It was a service to
consumers and a great relief to many of my fellow cattlemen.
III. PROCEDURAL HISTORY
On May 28, 1996, Paul F. Engler and Cactus Feeders, Inc., filed suit
against Winfrey, Harpo Productions, Lyman, and Cannan Communications, Inc.
("Cannan"), in Texas state court. Three days later, on May 31, Engler and
Cactus Feeders filed a motion to nonsuit Cannan. On June 5, the plaintiffs
filed their first amended petition, renaming Cannan as a defendant. On June
6, however, the trial court granted the plaintiffs' May 31 motion to
nonsuit Cannan.
As Cannan had been the only non-diverse defendant, the remaining defendants
filed a notice of removal on June 21. From June 6 until the filing of the
removal notice, the plaintiffs did not move to rejoin Cannan as a defendant
in state court. In federal district court, the removing defendants argued
that the June 6 nonsuit operated to dismiss Cannan as a defendant from the
June 5 first amended complaint and, regardless, that Cannan had been
fraudulently joined in the state action to defeat diversity. On motion to
remand, the plaintiffs maintained that their May 31 motion to nonsuit
applied only to their original complaint and that Cannan had not been
fraudulently joined. The district court found that the plaintiffs' motion
to nonsuit was effective only after it had been signed in Texas state court
and, thus, that the nonsuit was effective as to the first amended
complaint. Although the state court nonsuit was voluntary and without
prejudice, the plaintiffs did not attempt to rejoin Cannan in any amended
pleading filed in federal court.
The case moved to trial before a jury.(8) At the close of the plaintiffs'
case-in-chief, the defendants moved for judgment as a matter of law on all
of the pending claims. The district court granted the motion only with
respect to the plaintiffs' claim under the False Disparagement of
Perishable Food Products Act. See Texas Beef Group, 11 F. Supp. 2d at
862-63. The district court rested its decision on several bases. First, the
district court questioned the applicability of the statute to live "fed
cattle." See id. at 863. Second, the court disputed whether the plaintiffs'
cattle "perished" or "decayed beyond marketability" as required for
statutory protection. See id. Alternatively, the district court ruled that
the case was not cognizable under the Act because insufficient proof had
been offered tending to show the defendants had knowingly disseminated
false information. See id.(9)
The district court submitted only the plaintiffs' business disparagement
claim to the jury. The jury was charged as follows:
To recover on a claim of business disparagement, a plaintiff must prove the
following:
(1) That the Defendant published a false, disparaging statement;
(2) That the statement was "of and concerning" a Plaintiff's specific property;
(3) That the statement was made with knowledge of the falsity of the
disparaging statement or with reckless disregard concerning its falsity, or
with spite, ill will, and evil motive, or intending to interfere in the
economic interests of the Plaintiff in an unprivileged fashion; and
(4) That the disparaging statement played a substantial and direct part in
inducing specific damage to the business interests of the Plaintiff in
question.
* * * *
For the statement to be "of and concerning" a Plaintiff's specific business
property, the disparaging words must refer to an ascertained or
ascertainable business, and it must be the Plaintiff's. The law does not
allow the jury to connect the allegedly disparaging statements to a
Plaintiff on innuendo or presumption alone. While it is not necessary that
the publication have mentioned a Plaintiff by name, the facts and
circumstances must be such [that] they point to the Plaintiff as the person
concerning whom the alleged disparaging statements are made. Every listener
does not have to understand the alleged disparaging statements to refer to
the individual Plaintiff as long as there are some who reasonably do.
The question submitted to the jury asked,
Did a below-named Defendant publish a false, disparaging statement that was
of and concerning the cattle of a below-named Plaintiff as those terms have
been defined for you?
The plaintiffs objected to "insertion of the 'of and concerning'
requirement" in the jury charge. The district court overruled the
objection, and the jury returned an answer of "no" to the proffered
question. From the district court's adverse rulings and judgment, the
cattlemen timely appealed to this court.
IV. ANALYSIS
A. Jurisdiction
The cattlemen first urge that the district court had no diversity
jurisdiction to entertain their suit. This court reviews de novo a district
court's denial of a motion to remand. See Herron v. Continental Airlines,
Inc., 73 F.3d 57, 58 (5th Cir. 1996). A party seeking to remove a suit from
state court must prove subject matter jurisdiction in the district court.
See Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). When
removal is based on diversity of citizenship, diversity must exist at the
time of removal. 14B. C. Wright, A. Miller & E. Cooper, Federal Practice &
Procedure § 3723, at 574-75 (1998 ed.) (hereafter Wright, Miller and
Cooper). Even though removal may have been improper due to a lack of
diversity jurisdiction at the time of removal, if the defect is later cured
before it is noticed, the federal court has subject matter jurisdiction to
enter judgment. See Wright, Miller & Cooper, Id. at 588-89; Caterpillar
Inc. v. Lewis, 519 U.S. 61, 75-77, 117 S. Ct. 467, 476-77 (1996). Such a
finding is appropriate -- given considerations of finality, efficiency, and
economy -- when diversity existed at the beginning of trial and at the
rendering of judgment. See id.
Caterpillar is dispositive here. The cattlemen maintain that their motion
to nonsuit Cannan, filed before the first amended state court complaint but
granted after the first amended complaint was filed, dismissed Cannan only
>from the original complaint and, thus, that Cannan was a non-diverse party
to the amended suit upon removal. Their argument turns on the
interpretation of Texas procedural law whose application in this case is
far from clear.(10) But even if the district court erred in holding that
Cannan was not a party defendant at the time of removal, its error falls
precisely under the Caterpillar holding. In Caterpillar, the district court
erroneously denied a motion to remand and the case proceeded in federal
court. See 519 U.S. at 70, 117 S. Ct. at 473. Prior to trial, the
intervening plaintiff and the non-diverse defendant settled -- and
diversity was finally established. See id. at 66-67, 117 S. Ct. at 471-72.
The unanimous Supreme Court held that "overwhelming" considerations of
finality, efficiency, and judicial economy militated against a remand to
state court when the original jurisdictional defect had not "lingered
through judgment." See id. at 75-77, 117 S. Ct. 476-77.
The cattlemen's effort to distinguish Caterpillar is unpersuasive. Though
the cattlemen accurately observe that the non-diverse defendant in
Caterpillar was voluntarily withdrawn from the action, they could have
amended their complaint in federal court to rejoin Cannan, and they could
even have moved again to remand. See Hensgens v. Deere & Co., 833 F.2d
1179, 1182 (5th Cir. 1987). The district court's ruling on the motion to
remand did not foreclose such an amendment. When they were given the
opportunity to amend at the district court, the cattlemen made no effort to
rejoin Cannan, assuring the district court instead that "[s]tate court is
not the Plaintiffs' preferred forum." Cannan is absent from the litigation
because of the cattlemen's choice. And, as in Caterpillar, the case went to
trial and resulted in a judgment founded on complete diversity. The
ultimate scope of Caterpillar may be unclear. See, e.g., Lexecon v. Milberg
Weiss Bershad Haynes & Lerach, ___ U.S. ___ 118 S.Ct. 956, 965-66; 14B.
Wright, Miller & Cooper, § 3723, at 588 (describing the "somewhat more
contentious and as yet undefined doctrine" of Caterpillar). Nevertheless,
the instant case falls comfortably within its exact rationale.
B. False Disparagement of Perishable Food Products Act
In 1995, the Texas legislature passed the Act, following closely on the
heels of the Alar apple scare. See generally Auvil v. CBS "60 Minutes", 800
F. Supp. 928 (E.D. Wash. 1992), aff'd, 67 F.3d 816 (9th Cir. 1995).
Under the Act, a person may be held liable for damages sustained by the
producer of a perishable food product if that person knowingly disseminates
false information to the public stating or implying that the producer's
product is not safe for public consumption. See Tex. Civ. Prac. & Rem. §
96.002. A "perishable food product" is defined by the Act as "a food
product of agriculture or aquaculture that is sold or distributed in a form
that will perish or decay beyond marketability within a limited period of
time." Tex. Civ. Prac. & Rem. § 96.001. When considering the falsity of the
disseminated information, the trier of fact is instructed to determine
"whether the information was based on reasonable and reliable scientific
inquiry, facts, or data." Tex. Civ. Prac. & Rem. § 96.003. This litigation
represents one of the first applications of the Act. At trial, the parties
disputed whether appellants' live cattle are a "perishable food product"
protected under the Act and whether, in any event, the appellees knowingly
disseminated false information about live cattle. Although the district
court found that, on the facts before it, the fed cattle did not "decay
beyond marketability" and thus did not fall within the statute's coverage,
we do not reach that issue here. The court alternatively held that the
appellees did not knowingly disseminate false information about beef. We
turn to that issue.(11)
When a district court grants a motion for judgment as a matter of law at
the close of evidence, this court reviews the decision de novo, applying
the same legal standard as the district court. See Price v. Marathon Cheese
Corp., 119 F.3d 330, 333 (5th Cir. 1997). In our review, all evidence is
considered in the light most favorable to the nonmovant. See id. If, after
drawing all inferences in the nonmovant's favor, "there is no legally
sufficient evidentiary basis for a reasonable jury" to find for the
nonmovant, judgment as a matter of law is appropriate. See id. (quoting
Fed. R. Civ. P. 50(a)).
The critical issue here is whether the appellees knowingly disseminated
false information tending to show that American beef is not fit for public
consumption. Tex. Civ. Prac. & Rem. § 96.002(a). The requirement knowledge
that the information is false is the highest standard available in the law.
It is unnecessary to import First Amendment free speech protections in
further embroidery of this already-stringent standard, except to note that
the expression of opinions as well as facts is constitutionally protected
so long as a factual basis underlies the opinion. Peter Scalamandre & Sons,
Inc. v. Kaufman, 113 F.3d 556, 562 (5th Cir. 1997); see also Milkovich v.
Lorain Journal Co., 497 U.S. 1, 17-23, 110 S.Ct. 2695, 2705-08 (1990)
(discussing protections afforded "opinions" under First Amendment). There
is little doubt that Howard Lyman and the Winfrey show employees
melodramatized the "Mad Cow Disease" scare and discussion of the question
"Can it happen here?" Perhaps most important, from the audience's
viewpoint, was not the give-and-take between the glib Lyman and the dry
Drs. Weber and Hueston, but Ms. Winfrey's exclamation that she was "stopped
cold from eating another burger." When Ms. Winfrey speaks, America listens.
But her statement is neither actionable nor claimed to be so. Instead, two
false statements by Lyman and misleading editing are relied upon to carry
the cattlemen's difficult burden. Like the district court, we hold they
have not sustained their burden of articulating a genuine issue of material
fact concerning liability under the Act.
Branding Lyman an extremist, the cattlemen cite two of his inflammatory
statements during the April 16 Oprah Winfrey Show. First, the cattlemen
challenge as patently false Lyman's assertion that "Mad Cow Disease" could
make AIDS look like the common cold. Second, they maintain that Lyman
falsely accused the United States of treating BSE as a public relations
issue, as Great Britain did, and failing to take any "substantial" measures
to prevent a BSE outbreak in this country. At the time of the show's
broadcast, the factual basis for Lyman's opinions -- the continued
existence of ruminant-to-ruminant feeding in the United States -- was
truthful. The feeding practice continued to a limited extent, despite a
voluntary ban; Dr. Weber admitted as much. Based on this fact, Lyman held
the belief that "Mad Cow Disease" could exist or be discovered in this
country and could endanger the lives of those eating American beef. His
statement comparing Mad Cow Disease to AIDS was hyperbolic, and Winfrey
highlighted the statement as "extreme" during the show's broadcast. As this
court noted in Scalamandre, "exaggeration does not equal defamation." See
113 F.3d at 562. Lyman's statements comparing the United States'
cattlemen's and government's reaction to BSE to that in Great Britain and
bewailing the failure to take any "substantial steps" to prevent a BSE
outbreak in this country were a sincerely held opinion supported by the
factual premise that only a mandatory ban on ruminant-to-ruminant feeding
would disperse with the danger. The FDA imposed such a ban, with the
approval of the cattle industry, only months after the Oprah Winfrey Show.
See id.
Lyman's opinions, though strongly stated, were based on truthful,
established fact, and are not actionable under the First Amendment. See id.
at 564 ("Defamation law should not be used as a threat of force individuals
to muzzle their truthful, reasonable opinions and beliefs."). Neither of
Lyman's statements contained a provably false factual connotation, see
Milkovich, 497 U.S. at 20, 110 S. Ct. at 2706, and both were based on
factually accurate premises. Most telling is Dr. Hueston's public comment
about Howard Lyman, edited out of the final version of the show, which
acknowledged that Lyman's ability to display his opinions is what makes
America great and "keeps us the best." On the evidence presented, no
reasonable juror could have held that Lyman's views were knowingly false.
See Omnitech Int'l, Inc. v. Clorox Co., 11 F.3d 1316, 1323 (5th Cir. 1994).
Likewise, Winfrey and Harpo Productions may not be held liable for the
editing of the "Dangerous Food" show. This court rejected a similar claim
in Scalamandre. See 113 F.3d at 563. ("It is common knowledge television
shows . . . shoot more footage than necessary and edit the tape they
collect down to a brief piece.") This broadcast of the Oprah Winfrey Show
was no different from the news report in Scalamandre. While the editor of
the "Dangerous Food" show was instructed to cut out the redundancies in the
unedited interviews, he was also required to cut the piece to fit into a
smaller time frame for the ultimate broadcast. Although the show's producer
undeniably spliced questions and answers, the editing did not misrepresent
Dr. Weber's responses. Moreover, through Lyman himself, the show introduced
viewers to the voluntary ban on ruminant-to-ruminant feeding. The editing
omitted factual explanations, such as the precise differences between
cattle feeding and inspection practices in the United States and Great
Britain. On the broadcast, however, Drs. Weber and Hueston disputed Lyman's
arguments, described the steps the United States had taken to prevent the
influx of BSE, and presented cogent arguments concerning the relative
safety of United States beef.
The cattlemen's evidence regarding the editing of the "Dangerous Food"
broadcast falls far short of satisfying the Act's standard for liability.
Stripped to its essentials, the cattlemen's complaint is that the
"Dangerous Food" show did not present the Mad Cow issue in the light most
favorable to United States beef. This argument cannot prevail. Compare
Scalamandre Scalamandre, 113 F.3d at 563-64. So long as the factual
underpinnings remained accurate, as they did here, the editing did not give
rise to an inference that knowingly false information was being
disseminated.
C. Business Disparagement
The cattlemen finally challenge the district court's business disparagement
instruction. Their complaint involves two alleged errors stemming from the
"of and concerning" requirement in the instructions. First, the cattlemen
argue that the instruction unnecessarily required the jury to find that the
appellees made a "false, disparaging statement" regarding their specific
cattle. Second, the cattlemen urge that the instructions improperly
demanded a finding that the "false, disparaging statement" was "of and
concerning the cattle" of the plaintiffs -- as opposed to "of and
concerning beef." At trial, however, the cattlemen's objection to this
instruction was insufficiently specific to preserve the alleged errors.
Under Fed. R. Civ. P. 51, a party must object to a proposed jury
instruction, "stating distinctly the matter objected to and the grounds of
the objection." See also Wood v. Diamond M Drilling Co., 691 F.2d 1165,
1169 (5th Cir. 1982). If a party fails to object with specificity to a
proposed instruction, the right to challenge the instruction on appeal is
waived. See Nero v. Industrial Molding Corp., 167 F.3d 921, 932 (5th Cir.
1999). Regardless of this waiver, the court may review the instruction for
plain error. In the civil context, a jury instruction is plainly erroneous
when (1) an error occurred, (2) the error was clear or obvious, (3)
substantial rights were affected, and (4) "not correcting the error would
seriously affect the fairness, integrity, or public reputation of judicial
proceedings." Id. By failing to object with specificity and offer a
proposed instruction on the business disparagement issue, the cattlemen
failed to preserve the alleged error in the charge. The cattlemen's vague
objection to the business disparagement instruction was insufficient to
preserve their objection. See Fed. R. Civ. P. 51. Further, the cattlemen
wholly failed to submit a specific alternate instruction on the issue to
the district court. Again, this failure waives any error in the charge. See
Eiland v. Westinghouse Elec. Corp., 58 F.3d 176, 182 (5th Cir. 1995).
Our review of the record also does not permit a finding of plain error.
Failing to correct the charge would not "seriously affect the fairness,
integrity, or public reputation of judicial proceedings." See Nero, 167
F.3d at 932. The "of and concerning" requirement in defamation law, and its
parameters, raise questions too important and uncertain of answer to be
posed first in any depth in this court; appellants should have taken their
best shot at this issue in the trial court.
V. CONCLUSION
The cattlemen's procedural maneuvering enabled removal by the appellees and
avoided a Texas state court trial. Though we assume that the district court
improperly denied the cattlemen's motion to remand, jurisdiction was
properly vested in the district court by the time of trial and judgment.
Because a finding that the district court lacked jurisdiction would result
in an inefficient loss of judicial economy, Caterpillar allows a finding of
jurisdiction regardless of the assumed lack of diversity at the time of
removal. The cattlemen's failure to rejoin Cannan as a non-diverse party
prior to trial prevented this loss of efficiency and vested the district
court with diversity jurisdiction.
The cattlemen's complaints regarding the "Dangerous Food" broadcast of the
Oprah Winfrey Show presented one of the first opportunities to interpret a
food disparagement statute. The insufficiency of the cattlemen's evidence,
however, renders unnecessary a complete inquiry into the Act's scope.
Finally, this court can find no plain error in the district court's
instructions regarding the business disparagement claim.
AFFIRMED.
EDITH H. JONES, Circuit Judge, concurring:
While I acknowledge that our court's opinion may assume without deciding
the applicability of the False Disparagement of Perishable Food Products
Act, I have become convinced that the district court's interpretation of
the Act was wrong. Plaintiffs suing under the Act should not have to prove,
as a threshold to coverage, that their particular products may decay
"beyond marketability" within a limited period of time. The purpose of the
statute's definition is to distinguish perishable from processed food
products, not to eliminate protection for some of the farmers and ranchers
for whom the statute was intended. The statute contains several high
hurdles to liability; this is not one of them.
Under the Act, a person may be held liable for damages sustained by the
producer of a perishable food product if that person knowingly disseminates
false information to the public stating or implying that the producer's
product is not safe for public consumption. See Tex. Civ. Prac. & Rem. §
96.002. This litigation represents one of the first applications of the
Act. At trial, the parties disputed whether appellants' live cattle are a
"perishable food product" protected under the Act. The court held that they
are not.
To support the position that their live cattle constituted a "perishable
food product," the cattlemen introduced evidence that cattle fattened in a
feed lot must be sold when they reach their marketable weight.(12) After
the marketable weight is reached, the cattle begin to put on extra fat.
This extra fat devalues the cattle, reduces their selling price, and costs
the rancher in excess feed. Although a "maintenance feed" can be used to
maintain cattle weights, this feed reduces marbling in the beef, toughens
the beef, and, again, decreases the cattle's value. Cattle remain at their
marketable weight for only a brief period of time. Indeed, the district
court found, and the appellees apparently concede, that cattle begin to
diminish in value once they have passed their marketable weight. See 11 F.
Supp. 2d at 863.
While recognizing this diminution in value, the district court found that
live cattle do not decay "beyond marketability" because they may still be
sold for uses other than USDA prime beef -- e.g., hamburger or dog food.
This interpretation, however, would seem to vitiate the applicability of
the statute to food products that were undoubtedly intended to fall within
the protective reach of the Act. For example, bananas are undoubtedly a
food product that will decay over time. Yet, bananas with brown spots have
uses beyond consumption as fresh bananas -- e.g., when processed in banana
bread and certain non-food uses. The Act, properly construed, does reach
fed cattle.
The appellees' interpretation that the Act was not intended to cover live
cattle is inconsistent with the statute's language and legislative history.
A perishable food product is "a food product of agriculture or aquaculture
that is sold or distributed in a form that will perish or decay beyond
marketability within a limited period of time." Tex. Civ. Prac. & Rem. §
96.001. First, the statute places no limit on the term "agriculture," which
the dictionary defines as "the science or art of cultivating the soil,
harvesting crops, and raising livestock." Webster's Third New International
Dict. (1981). Raising cattle, an agrarian occupation, is within the
language of the statute; fed cattle are "beef on the hoof," hence, a food
product. Moreover, beef is "a food product of agriculture" and is
"distributed in a form" that is perishable. The district court's denial of
coverage to live fed cattle overlooks this aspect of the statutory
definition. Reinforcing coverage of fed cattle is the fact that the statute
covers aquaculture, presumably including the cultivation of oysters,
shrimp, or catfish. An act designed to protect production of aquatic
animals for food, a relatively new Texas industry, could not have meant to
exclude cattle-raising, which is intimately bound with Texas's history and
current economy. The legislative history supports the cattlemen's position
that live cattle are covered by the Act. See House Comm. on Agric. and
Livestock, Bill Analysis, Tex. H.B. 722, 74th Leg. (1996) (statute would
"help ensure that any claim about the safety of a perishable . . . meat . .
. is based upon facts"); see also id. (noting necessity for protecting
products given "the short amount of time to harvest and market perishable
agricultural . . . food products" (emphasis added)).
Even if the cattlemen had to show that their cattle would "decay beyond
marketability," I believe, contrary to the district court, they did do so.
The evidence adduced at trial demonstrates that live cattle appear to decay
steadily in value from their optimum date of sale (perish beyond
marketability) just as an apple hanging from a tree might rot. That the
decay occurs pre-slaughter does not detract from the protections of the
statute. An apple will rot on the tree as easily as it will rot in the
grocer's produce section.
The district court's interpretation overlooks that the Act was passed to
prohibit the dissemination of false information claiming a food product "is
not safe for public consumption." Tex. Civ. Prac. & Rem. § 96.002 (emphasis
added). Under the district court's interpretation, it might be argued that
a food product would never decay beyond marketability so long as some
market, even a non-food or non-human market, existed for the product. Such
an interpretation, however, would directly contradict the legislature's
intention as it would imperil claims even of Texas grapefruit or onion
growers, if their product had any residual "marketability" following a
trumped-up product scare.
The district court's reasoning mandates that whether an agricultural or
aquaculture product falls within the Act is a significant threshold factual
issue in each case. In other words, under the district court's
interpretation, a producer or distributor would be required to prove -- to
establish liability -- that his product decayed beyond marketability in a
limited period of time. The appellees seize upon this requirement, citing
the "mere" 11% decrease in market price for fed cattle following the
"Dangerous Food" program and the lack of evidence establishing that these
cattlemen's products went unsold at market. Their evidence persuaded the
district court that the cattlemen should be barred from recovery under the
Act.
This interpretation of the statute is irreconcilable with the legislature's
purpose. Food disparagement acts, or "Veggie Libel Laws," are designed to
prevent false information from flooding and then destroying the market for
a perishable food product. See Timur Kuran & Cass R. Sunstein, Availability
Cascades and Risk Regulation, 51 Stan. L. Rev. 683, 749-51 (1999).(13) Once
a product falls within the definition of a "perishable food product," that
product is protected. The definition of perishable foods distinguishes the
direct products of agriculture and aquaculture, broadly speaking, from
highly processed foods. The legislature clearly intended to differentiate
between agribusinesses that produce "fresh" food products from, say, the
makers of biscuit mixes or lasagne as the objects of statutory protection.
Defining the products of agriculture should be easy in most instances and
should put publishers as well as producers on notice of its scope. The
district court's requirement of a fact-intensive inquiry into the scope of
coverage disadvantages all parties.
The Act, as I interpret it, shields the market for the perishable
agricultural or aquaculture food product, not an individual producer's
product. While a producer's recovery may be limited or its damages
nonexistent, the product itself is protected from false statements. Thus,
the potential inability of the cattlemen to prove that their cattle decayed
beyond marketability is a question of damages for the trier of fact. On the
other hand, the scope of the Act and whether cattle constitute a
"perishable food product" remain questions of law that the court must
determine pursuant to the rules of statutory construction. In its inquiry,
a court must determine if a product could decay beyond marketability, as
opposed to whether that product did decay. The former is a question of law
concerning the scope of the statute, the latter a question of fact
concerning damages.
I respectfully differ with the excellent district court judge on this matter.
1. 1 Subsequently, BSE has been identified in Irish, Canadian, and other
European cattle.
2. 2 The Oprah Winfrey Show is a talk show hosted by Oprah Winfrey,
produced by Harpo Productions, Inc. ("Harpo Productions"), and distributed
by King World Productions, Inc. ("King World"). Winfrey is the sole
shareholder and Chief Executive Officer of Harpo Productions. The appellees
are not pursuing an appeal of the summary judgment in favor of King World.
3. 3 Lyman is a former cattle rancher turned vegetarian and an activist for
the Humane Society.
4. 4 Dr. Weber holds a Ph.D. in Animal Science. Dr. Weber represents the
National Cattlemen's Beef Association.
5. 5 Dr. Hueston, representing the U.S. Department of Agriculture, is a
leading expert on "BSE."
6. 6 Dr. Miller is a physician with experience treating individuals
afflicted with CJD. He was the treating physician for Linda Marler's
mother-in-law. Marler was also a guest on the "Dangerous Food" show.
7. 7 The "Mad Cow Disease" segment formed only a part of the day's show.
Other segments, not challenged here, involved the dangers from meat
(including hamburger) infected with E. coli bacteria; food handling tips; a
tour of a Chicago restaurant; and discussions about the hazards of eating
oysters, drinking diet herbal tea, and public water supplies.
8. 8 Following removal, this case was consolidated with a pending federal
claim -- Texas Beef Group v. Winfrey, No. 2-96-CV-208-J.
9. 9 The district court also dismissed the plaintiffs' claims of common law
defamation, statutory libel, negligence, and negligence per se. See Texas
Beef Group, 11 F. Supp. 2d at 862-65. The appellants do not appeal from
these dismissals.
10. 10 Texas case law on this issue is confusing. While the signing of a
motion to nonsuit is indeed viewed by Texas courts as a ministerial act,
the signing does have important implications for appellate timetables. See
Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496-97 (Tex. 1995); Harris
County Appraisal Dist. v. Wittig, 881 S.W.2d 193, 194 (Tex. App.-Houston
[1st Dist.] 1994, orig. proceeding); Avmanco, Inc. v. City of Grand
Prairie, 835 S.W.2d 160, 163 (Tex. App.-Fort Worth 1992, appeal dism'd as
moot). Wittig reminds that no Texas court has found that a motion to
nonsuit is effective immediately upon filing, see 881 S.W.2d at 195, but
the Texas Supreme Court's opinion in Greenberg v. Brookshire, 640 S.W.2d
870, 871-72 (Tex. 1982), gave immediate effect to a motion for nonsuit
filed under circumstances quite similar to this case. Though subsequent
cases such as Farmer, Wittig, and Avmanco have clarified its holding,
Greenberg remains relatively unblemished by the march of Texas law. In
fact, in their initial notice of removal, the appellees cited Greenberg for
this very proposition -- their amended notice of removal deleted the
citation. Given our reliance upon Caterpillar, however, it is unnecessary
to speculate on this issue any further.
11. 11 The appellees do not raise on appeal any arguments concerning the
constitutionality of the Act.
12. 12 Cattle are placed in feedlots for an average of 120-150 days. During
this time, their weight increases to the optimal range of 1,100 to 1,150
pounds. Once at this "finish weight," the cattle must go to market within
the next few days or weeks lest their price decline. By comparison, apples
-- clearly intended to constitute a perishable food product under the Act
-- may be stored between six and 11 months before they decay beyond
marketability. See Agricultural Research Service, U.S. Dep't of Agric.,
Agricultural Handbook No. 66, "The Commercial Storage of Fruits,
Vegetables, and Florist and Nursery Stocks" 31 (1986).
13. 13 As defined by Timur and Sunstein, an availability cascade is a
"self-reinforcing process of collective belief formation by which an
expressed perception triggers a chain reaction that gives the perception
increasing plausibility through its rising availability in public discourse." See
Availability Cascades and Risk Regulation, 51 Stan. L. Rev. at 683. The
authors explicitly define the behavioral bases for food product
disparagement laws, see
id. at 705-36, and discuss the impact of the media's dissemination of
false, or valid, information and the effect of this circulation on the
public. See id. at 734-36.
Fri, Feb 11, 2000 Reuters Online ServiceU.S.-Swedish drug maker Pharmacia & Upjohn defended its actions on Friday in harvesting human pituitary glands from hospitals in Ireland during the 1970s and 1980s.
"During the period from 1974 until 1985, Pharmacia & Upjohn (then called Kabi-Vitrum) received human pituitary glands from hospitals in Ireland which were used for the production of human growth hormone," the company said in a statement released in Ireland. "This was the only method worldwide of producing human growth hormone for the treatment of children with growth hormone deficiency, which at that time was an area of significant unmet medical need," it added.
Irish Health Minister Micheal Martin announced plans for an inquiry this week after revelations that a Dublin children's hospital supplied tissues taken from dead children without seeking parental consent. Our Lady's Hospital for Sick Children produced documents showing that in the early 1980s pituitary glands from 70 dead children were handed over for use in developing the growth promoter. The pituitary is a small piece of glandular tissue located at the base of the skull. Called the "master" gland, it produces six major hormones.
Pharmacia & Upjohn said the practice of taking human pituitary glands was discontinued in 1985 when a synthetic growth hormone was developed. It welcomed the inquiry and said it would assist it any way possible.
Opinion (webmaster): It seems a bit odd for another pituitary source story to just be emerging 15 years after the program ended. The BSE epidemic began in 1980 or earlier; no public announcement was made until late 1986 or so. The pituitary is an affected tissue in nvCJD. It is not clear whether growth hormone from these pituitaries would have been mixed and marketed worldwide or used just in Ireland or Europe.
It is also not clear whether nvCJD would even be considered as a diagnosis the minute it was learned the individual had been a growth hormone recipient, certainly not for 1985-1996 cases. Even today, these cases are probably not studied further -- perhaps they should be. It is also possible that nvCJD would manifest itself differently in humans if acquired through injection.
In France, pituitary treatment continued to 1988 despite full knowledge of the risks. 51 of the 968 children treated by 13 hGH lots produced between January 1984 and March 1985 had developed Creutzfeldt-Jakob disease (CJD) by the end of 1996. In the US, limited availability of GH allowed treatment for only part of the year with caps on final heights, but by 1984 treatment was year round and the height caps largely unenforced. In its last year, government GH was used in 2450 patients in the United States and commercial pituitary GH in 600-800, plus 300 patients in Canada.
The reverse chronology according to Medline:
Sun M.
Gene-spliced hormone for growth approved.
Science. 1985 Nov 1;230(4725):523. No abstract available.
Brown P, et al.
Potential epidemic of Creutzfeldt-Jakob disease from human growth hormone therapy.
N Engl J Med. 1985 Sep 19;313(12):728-31. No abstract available.
Gibbs CJ Jr, et al. ]
Clinical and pathological features and laboratory confirmation of Creutzfeldt-Jakob disease in a recipient of pituitary-derived human growth hormone.
N Engl J Med. 1985 Sep 19;313(12):734-8. No abstract available.
Lazarus L.
Suspension of the Australian human pituitary hormone programme.
Med J Aust. 1985 Jul 22;143(2):57-9. No abstract available.
[No authors listed]
Degenerative neurologic disease in patients formerly treated with human growth hormone. Report of the Committee on Growth Hormone Use of the Lawson Wilkins Pediatric Endocrine Society, May 1985.
J Pediatr. 1985 Jul;107(1):10-2.
[No authors listed]
Fatal degenerative neurologic disease in patients who received pituitary-derived human growth hormone.
MMWR Morb Mortal Wkly Rep. 1985 Jun 21;34(24):359-60, 365-6. No abstract available.
Norman C.
Virus scare halts hormone research.
Science. 1985 Jun 7;228(4704):1176-7. No abstract available.
Beardsley T.
FDA ban on pituitary product.
Nature. 1985 May 30-Jun 5;315(6018):358-9. No abstract available.
Beck E, et al.
Neuropathological studies in primates suffering from experimental kuru or Creutzfeldt-Jakob disease.
Adv Neurol. 1975;10:341-6. No abstract available.
Tue 1 Feb 2000 The Irish Times 1 Feb 2000Disappointing BSE figures for January were issued yesterday [31 Jan 2000], showing there were 14 cases of the disease, 1 more than in January 1999. The figures come after the highest annual total on record in the Republic last year, when 95 cases were recorded in the national herd.
But while the January figures were high, the age profile of the cattle was moving in the right direction. None of the animals which developed BSE was younger than 5 years. This would appear to indicate controls to prevent new outbreaks of the disease have been successful, and the Department of Agriculture is predicting a falloff in cases in the coming year.
Two of the cows were aged 8; 3 were 7; 5 were 6-year-olds; and the remaining 4 were aged 5 years, according to a Department spokesman. Three of the infected animals came from farms in Cork, 2 were found on Monaghan farms, two in Wexford and two in Galway, and there was 1 case each in Cos Kilkenny, Limerick, Louth, Meath and Leitrim.
The Department said 10 of the animals came from dairy herds, with the rest from beef-producing suckler herds. The January cases bring the total number of cases of the disease, first identified here in 1989, to 461 over the 10-year period.
Under the Government's slaughter-all policy, every animal on a farm where the disease is identified is slaughtered despite there being no evidence the disease can be spread from animal to animal. Contamination of animal feedstuff has been identified as the cause of the disease, which has devastated the British dairy herd. It is believed the Irish cases were caused by contaminated feed being imported and fed to cows here.
Wed, Feb 2, 2000 AP US & World Center for Science in the Public Interest"Is U.S. beef is tainted with the hormone DES?
This week the Center for Science in the Public Interest (CSPI) urged the United States Department of Agriculture (USDA) to determine whether beef consumed in the United States is contaminated with a known human carcinogen, diethylstilbestrol (DES).
CSPI recently learned from the Swiss government that beef from two U.S. exporters ‹ the National Beef Packing Company of Liberal, Kansas and the Bruss Company of Chicago, Illinois ‹ was banned in Switzerland because samples contained residues of DES or another hormone melengestrol. The use of DES is prohibited in food-producing animals in both Switzerland and the United States. Melengestrol is permitted in the U.S. but banned in Switzerland.
In a letter sent January 31, 2000, to Agriculture Secretary Dan Glickman, CSPI urged the USDA to determine how DES got into beef exported to Switzerland and asked that the results of the investigation be turned over to the Department of Justice for possible criminal prosecution. CSPI also asked that testing resume for all other illegal drugs that might be administered to livestock, and that USDA implement a łtrace back˛ system that could identify the farm or feedlot where an animal was raised. Today, the Wall Street Journal reported that the USDA is conducting an investigation to trace the contaminated beef sold to the Swiss from exporter to slaughterhouse to cattle feeder.
łThe discovery by the Swiss government of an illegal cancer-causing hormone in two of 26 samples of U.S. beef is distressing,˛ said Michael F. Jacobson, executive director of CSPI. łSimilar contamination could be present in beef consumed by Americans. U.S. consumers need immediate assurance that the beef they consume does not contain that drug.˛
As early as 1954, DES was used by U.S. farmers as a growth promoter in cattle and sheep. In 1979 the Food and Drug Administration (FDA) revoked approval for the use of DES in food-producing animals because it was found to cause cervical cancer in female children of women who consumed it. At that time, the FDA was unable to determine any safe level of DES for human consumption.
On July 13, 1999, the Swiss Offices of Veterinary Medicine and of Public Health jointly announced that they had informed the U.S. government that DES had been detected in two samples of imported U.S. beef. The USDA's Food Safety and Inspection Service (FSIS) has not tested beef for DES since 1991. But because of the ongoing controversy over hormone use in U.S. cattle and because of the Swiss discovery of DES in U.S. beef, the U.S. Agriculture Secretary recently informed European Union (EU) officials that the FSIS plans to begin testing for DES in the spring of 2000.
łThe USDA recently established a Śtrace backą system for testing beef exported to the EU. Americans deserve the same protection," said Jacobson. "USDA should develop a trace back system for all meat.˛
łThe food industry likes to claim that our food supply is the safest in the world,˛ stated Bruce Silverglade, CSPI's director of legal affairs. łThe use of an illegal cancer-causing drug and USDA's failure to uncover it demonstrates why that mantra is nonsense. It's sad that we have had to rely on health officials from another country to discover the problem.˛
The Food and Drug Administration and the Agriculture Department's Food Safety and Inspection Service have been conducting a joint investigation of the matter, but have turned up no evidence that the shipment was anything but an aberration, said Carol Blake, a spokeswoman for the USDA agency.
The Agriculture Department stopped testing beef for DES in 1991 after failing to find the compound for several years, but had already planned before the Swiss discovery to resume testing for it, Blake said. The department will start the testing as equipment is upgraded and employees are trained.
The Wall Street Journal reported today that the Swiss barred two U.S. exporters after the discovery: Farmland National Beef Packing Co. and Bruss Co., a subsidiary of IBP Inc. IBP and Farmland are two of the nation's biggest beef processors. One tainted sample was traced back to Chicago-based Bruss and then to a Farmland National Beef plant in Liberal, Kan., said Sherlyn Manson, a spokeswoman for Farmland. "We agree with USDA that it would be an aberration," she said.
"We would find it highly unusual if anybody in the cattle business was using DES. It's been off the market for 20 years."
Fri, 4 Feb 2000 New York Times By ELIZABETH OLSONThe discovery by Swiss health inspectors last July that imported American beef was contaminated with DES, an illegal hormone, has prompted an effort by the United States government to trace its source. DES, or diethylstibestrol, was used as a growth stimulant, primarily among cattle and sheep growers in the United States, until 1979 when the Food and Drug Administration ordered it off the market as a suspected carcinogen.
Studies indicated that cancer and other abnormalities could result in the female children of women who had consumed DES while pregnant. After failing to discover any DES for several years, the Agriculture Department stopped testing beef for the substance in 1991. Swiss authorities said DES had been found during routine testing of two samples of imported beef, which were supposed to be free of hormones. The United States Department of Agriculture and the Food and Drug Administration are trying to track the source of the contaminated beef.
"If sufficient evidence is found, it is potentially a criminal matter that would be turned over to the Justice Department," said Beth Gaston, a spokeswoman for the Agriculture Department's Food Safety and Inspection Service.
The Swiss veterinary service takes regular samples of American beef imported into the country, mainly for use by restaurants specializing in steaks. Dr. Roland Charriere, of the Swiss federal health department in the capital of Bern, said contaminated products were rarely found. The United States exported about 1,129 tons of beef to Switzerland in 1998, the latest year statistics were available, which is one-third of all Swiss beef imports. The finding comes at a time when European consumers are sensitive to tainted foods as a result of several scares involving Coca-Cola products last year and reports of dioxin-contaminated chicken in Belgium.
Beef, in particular, has drawn increased scrutiny because of the British outbreak of what is known as mad cow disease, which is caused by contaminants mixed into feed for cattle. There are fears that mad cow disease, or bovine spongiform encephalopathy, could be linked to a similar brain-wasting disease in humans.
After England, Switzerland has the second-highest incidence of the disease in Europe. In addition, the European Union has been at odds with the United States over whether to allow the import of hormone-treated beef. The United States has imposed sanctions on European goods in retaliation for European barriers to beef products.
Switzerland is not in the European Union but it bans a number of substances in meat that are legal in the United States, including melengestrol acetate, which was also found in the beef samples in July. According to Swiss officials, 26 samples were tested and 5 were contaminated with melengestrol acetate, in addition to the 2 tainted with DES.
A public interest group, the Center for Science in the Public Interest, wrote the Secretary of Agriculture, Dan Glickman, on Jan. 31 that the "discovery by the Swiss government was troubling both because of the potential health risks to consumers overseas and because similar contamination may be present in beef consumed by Americans." As a result of the discovery, Switzerland has barred two companies from further imports. They were identified as the Farmland National Beef Packing Company, a unit of Farmland Industries, and the Bruss Company, a subsidiary of IBP Inc. Farmland, based in Liberal, Kan., and Bruss, based in Chicago, are among the biggest United States beef processors.
Dr. Charriere said the beef containing DES had been consumed before it could be taken off the market. "It was already eaten by the time the analysis came back," he said.
2/3/2000 Philip Brasher AP Farm WriterA criminal investigation is under way into the shipment of American beef last year that contained an illegal growth hormone, but there is no evidence that there has been any other use of the banned substance, federal officials said Wednesday.
The Swiss government notified the United States last July that the banned carcinogen, diethylstilbestrol, or DES, had been found in two samples of U.S. beef that was supposed to be free of hormones. The Food and Drug Administration and the Agriculture Departments Food Safety and Inspection Service have been conducting a joint investigation of the matter, said Beth Gaston, a spokeswoman for the USDA agency.
The hormone was banned in 1979, and the Agriculture Department stopped testing most beef for it in 1991 after failing to find the compound for several years. However, meat being shipped to the European Union, which bans the importation of hormone-treated beef, is tested for the chemical and it has not shown up, said Gaston. Switzerland is not a member of the EU. "We do not believe it's being used," she said.
USDA, however, had already planned before the Swiss discovery to resume testing for DES this year as part of a plan to make sure it isn't being used, she said. The testing is expected to begin this spring. The Wall Street Journal reported Wednesday that the Swiss barred two U.S. exporters after the discovery: Farmland National Beef Packing Co. and Bruss Co., a subsidiary of IBP Inc. IBP and Farmland are two of the nations biggest beef processors.
One tainted sample was traced back to Chicago-based Bruss and then to a Farmland National Beef plant in Liberal, Kan., said Sherlyn Manson, a spokeswoman for Farmland. "We agree with USDA that it would be an aberration," she said. "We would find it highly unusual if anybody in the cattle business was using DES. It's been off the market for 20 years."
Critics said the Swiss discovery raised questions about the adequacy of the USDA testing program. "Obviously they don't have any evidence (of DES) because they're not looking for it," said Ben Cohen, senior staff attorney for the Center for Science in the Public Interest, a public advocacy group.
Thu, 3 Feb 2000 Wall Street Journal by Bruce IngersollThis story states that the Swiss notified the US about the DES problem in the summer of 1999 in the context of banning the two companies and two contaminated samples. The USDA thus decided to delay DSE testing resumption for 9 months, until spring of 2000. Apparently, the Swiss and USDA/FDA kept this secret for 7 months, so that the "investigation" could proceed, in effect approving consumption of any other contaminated product. Of course there was no investigation proceding.
"Cattle and sheep producers relied heavily on DES as a growth stimulant until 1979, when the FDA banned its use in food-producing animals, but not pets. Evidnece at the time showed that DES could cause cancer in female children of pregnant women who consumed it. The FDA also concluded there was no way of determining what levels of exposure to DES might be safe."
"The DES discovery raises serious questions about the Agriculture Department's testing program for illegal-drug residues in meat and the FDA's ability to prevent the illicit use of banned compounds. It is also likely to further inflame US-EU displute over hormone-free beef exports...."
"Dan Glickman sought to play down the health and diplomatic implications of the DES-tainted beef. 'We have no evidence [absence of evidence isn't evidence of absence!] that this is anything but an aberration. DES isn't widely available and there are legal alternatives that are effective."'
Feb 09, 2000 AP OnlineSeven U.S. Department of Agriculture produce inspectors pleaded guilty Wednesday to accepting bribes from wholesalers in exchange for lowering grades for fruits and vegetables, thereby cheating farmers. The inspectors will face as much as two years, nine months in prison and fines as high as $60,000, U.S. District Judge Lewis A. Kaplan said.
The inspectors, appearing relaxed in business suits, each read from brief statements admitting that they had accepting bribes ranging from $50 to $350 to falsely grade produce lower. When farmers make deals with companies that distribute fruits and vegetables to merchants, the farmers promise that the produce will be of a certain quality. If an inspector grades the produce lower than had been agreed upon, the farmers are paid less.
Even slight variations in the grade of produce can affect the overall contract price by several thousand dollars, depending on the size and value of the shipment, prosecutors said. The seven inspectors, who all pleaded guilty to a single count of bribery, were based at the Hunts Point Terminal Market in the Bronx. An eighth inspector pleaded guilty in December.
Prosecutors said the Hunts Point produce inspectors had routinely accepted cash from owners and employees of wholesale produce firms since at least 1980. Charges against Hunts Point wholesalers are still pending in federal court. Two wholesalers have pleaded guilty to bribery and are awaiting sentencing
Opinion (webmaster): Evidently nothing is more attractive than a potent growth hormone that no one tested for after it became outlawed. Especially in premium-priced, export-grade organic beef.
The USDA, in announcing a few years back that it would no longer test for diethylstilbestrol, evidently triggered a massive revival of its use -- the article implies USDA knew this but took no action. DES is a dreadful estrogen analogue that was given to pregnant women in the 1940's. It caused uterine cancer later in both them and later in their daughters.
The idea floated below by USDA, that this was an 'isolated incident' is ludicrous: the compound is difficult to make in the industrial quantities implied; the companies named are very large beef processors.
How hard would it be for the federal government to find the lab manufacturing the DES? Not very, but notice from the article they show no interest whatsoever in going after DES at the source. Their volume shipment records over the years might be most alarming and where else could it be going?
The Swiss also reported 5 of 28 samples contaminated with melengestrol acetate, the companies are not named. This would seem to make 5 additional aberrations. That steroid hormone is illegal in Europe but not in the US. It is a potent compound with 151 medline entries.
The agency mission statement puts beef promotion ahead of human health. So when there is a conflict, better to do a little spot-testing after the DES beef in the pipeline has been consumed and the companies given 6 months of warning, then issue reassurances.
If it wasn't for importing countries like France and Switzerland doing testing, we would know little about BSE or DES occurence.
The New York Times thinks DES is only "suspected carcinogen". That is sick. The very first page of 7,019 Medline abstracts shows:
Diethylstilbestrol and adenocarcinoma of the vagina. Am J Obstet Gynecol. 1999 Dec;181(6):1576-8 Adenocarcinoma of the vagina. Association of maternal stilbestrol therapy with tumor appearance in young women. Am J Obstet Gynecol. 1999 Dec;181(6):1574-5 Behavior of Estrogen-Associated Female Genital Tract Cancer and Its Relation to Neoplasia Following Intrauterine Exposure to Diethylstilbestrol Gynecol Oncol. 2000 Feb;76(2):147-156. Endocrine treatment in prostate cancer. Semin Surg Oncol. 2000 Jan-Feb;18(1):52-74.
February 6, 2000 New York Times By ALAN MAIMONDoping and Birth Defects. In 1972, a committee from the swimming federation in the East German town of Halberstadt went to the local primary school looking for children who wanted to take part in a swimming program. Six-year-old Martina Fehrecke loved to play in the water, so she raised her hand.
Today, as she recounts her experiences with the East German national swimming program, Ms. Fehrecke Gottschalt says she wishes she had sat still that day in school.
As things turned out, she grew up too fast and still carries the bitter reminders of being one of the victims of a systematic East German doping program that claimed dozens of casualties through the unknowing wholesale use of anabolic steroids. Scores of swimmers, most of whom never saw Olympic competition, have major medical problems. Some, like Ms. Gottschalt, have children with birth defects.
Lothar Kipke, head doctor of the East German Swimming Federation, who oversaw the drug program from 1975 to 1985, was convicted last month on charges of doping and causing bodily harm to 58 swimmers in the latest of a series of highly publicized court cases. And in May, two other former high-ranking East German sports officials will go on trial for their roles in doping in the country's overall sports system.
The verdict in Dr. Kipke's case did not result in compensation for swimmers who gave birth to handicapped children, but Dr. Werner Franke, a German molecular biologist whose research on the subject was the impetus for the first criminal inquiry into doping two years ago, believes there is a link.
"It is clear that the taking of male hormones led to gynecological changes," Dr. Franke said. "One of the changes could have been a shrinking of the uterus, which would have affected the fetus. The fact that many of the birth defects are in first-born children is significant. The longer these women were away from the steroids, the longer their bodies had a chance to start producing female hormones again."
In a 1998 trial, in which four East German coaches and two doctors were accused of seriously injuring female athletes, 19 testified that their bodies took signs of masculinity, deeper voices or facial and body hair.
According to secret files recovered from the Stasi, East Germany's secret police, some women were ordered to abort fetuses that might have been deformed by the drugs. Petra Kind-Schneider, a gold-medal swimmer in the 1980 Olympics, now has liver and heart problems. Rica Reinisch, another gold-medal swimmer, has said publicly that she was given steroids at age 12 without knowing what they were and now suffers from ovarian cysts.
There are other problems as well for these swimmers, who are now in their 30's, said Giselher Spitzer, a sports psychologist at the University of Potsdam.
"The psychological implications of being doped are immense," the psychologist said. "These women live with the fact that their successes were a result of having cheated. Their identities are still very much connected with swimming, and they now fear that they are not able to accomplish anything on their own...
Gottschalt's case is typical. By age 10, she had so impressed local coaches that she was invited to attend a boarding school for promising young swimmers in Magdeburg, the state capital. "I was a little kid off to the big city," she said recently from her living room in Halberstadt. "They gave me a brand-new bathing suit. It was all so exciting."
The fun stopped the moment Ms. Gottschalt stepped off the train in Magdeburg. Her new school made swimming her life, requiring nine hours of training a day. By evening, she was exhausted and in tears, she said, because of constant verbal abuse by coaches. Even a nose broken in practice one day could not elicit sympathy or a short break.
She excelled, nonetheless, improving her performances until she was at the top of her age group. The new routine had its benefits, like being served bananas -- a rarity at the time in East Germany -- in the school cafeteria. But she also had to take 40 pills a day, including little blue ones taken under strict supervision. Along with the pills came orders to keep that fact secret from her parents.
"Other girls got them, too," Ms. Gottschalt said. "The doctors told us they were vitamins and we believed them. When you're 12 years old, you don't ask any questions."
But the pressure to be the best began to take its toll. One afternoon, she confessed to the school director that she was having doubts about continuing with the program. The director calmly explained that giving up swimming could have negative consequences for her parents, both of whom worked at her former school in Halberstadt.
Her parents were summoned to the school for an emergency meeting the next day. She never found out what threats were made, she said; she only knows that her father said she would have to continue swimming.
The opening of the files of the Stasi included a report from 1975 by Hans Schuster, head of the Research Institute for Fitness in Sport in Leipzig. Mr. Schuster wrote that anabolic steroids were prescribed in both combination and pure form and that they led to a "considerable improvement in performance." He added that the drugs resulted in "liver damage and changes in physical appearance" when taken by girls and young women.
Science 2000 Jan 21;287(5452):443-449Opinion (webmaster): This overview places CWD in context. Affected deer have reached 15% of the population in the core Colorado area. CWD is playing out very similarly to brucellosis and tuberculosis -- livestock introduce the disease on public land but the wildlife gets slaughtered. Overall there is a very serious threat to biodiversity in the global context from all these disease combined:
Emerging infectious diseases (EIDs) of free-living wild animals can be classified into three major groups on the basis of key epizootiological criteria: (i) EIDs associated with "spill-over" from domestic animals to wildlife populations living in proximity; (ii) EIDs related directly to human intervention, via host or parasite translocations; and (iii) EIDs with no overt human or domestic animal involvement. These phenomena have two major biological implications: first, many wildlife species are reservoirs of pathogens that threaten domestic animal and human health; second, wildlife EIDs pose a substantial threat to the conservation of global biodiversity.
ProMED Tue, 18 Jan 2000 Byline: Barbara HagenbaughResponding to an increased threat to humans from bioterrorism and animal disease, President Clinton will seek $340 million to boost research on the diseases, administration officials said Tuesday. Some $40 million of the White House's planned request for fiscal 2001 would pay for building a more sophisticated research facility on Plum Island, New York, to study diseases in large animals that can easily infect humans and for which there are no vaccines.
The rest would be spent to upgrade the U.S. Agriculture Department's 30-year-old research facility in Ames, Iowa. Currently, some research in Ames, including studies of anthrax and mad cow disease, is done in rented space in strip malls, officials said.
The proposal will appear in Clinton's budget request for fiscal 2001 that begins on 1 Oct 2000. The extra funds for animal disease research would be spent over a seven-year period, officials said. Clinton is expected to unveil the 2001 budget formally on Feb. 7. Agriculture Department officials said they needed to upgrade their facilities to protect the $100 billion U.S. livestock industry as well as to maintain a safe food supply.
"We're working against time," Craig Reed, administrator of the USDA's Animal Plant Health Inspection Service, told congressional staffers.
USDA officials said they currently could not study a number of diseases, including the Nipah virus, which killed more than 100 people in Malaysia and devastated the country's $400 million pork industry last year. Some 1 million pigs were killed to stop the spread of the virus.
To study Nipah and other diseases that can infect humans, the USDA needs a so-called level-four lab, where scientists wear outfits resembling space suits that connect to overhead tubes with oxygen like those seen in the 1995 movie "Outbreak." There are no level-four labs in the United States that can do research involving large animals.
Nipah and other diseases pose an increasing threat to U.S. producers and the food supply because of growing international trade, and concentration in U.S. agribusiness -- trends that can speed the spread of diseases, officials said.
There is also growing evidence that foreign enemies are capable of using germs to attack the U.S. food supply, according to some experts. With most U.S. farm animals now raised in huge numbers, any disease could spread rapidly and easily. That could cause not only huge losses in human life but also severe economic losses in the U.S. farm economy.
Reed estimated an outbreak of hog cholera in Nebraska would cost $2 billion in the first month alone. Hog cholera is a highly contagious animal disease that does not infect people.
Deadly animal diseases, including foot-and-mouth disease and African swine fever, are studied on Plum Island, run by the USDA at a cost of $14.5 million a year. About 180 workers, including 30 scientists, take government ferries to work on the island each day. But work on the 840-acre island, a mile off Long Island, has been controversial. New York and Connecticut residents have kept a wary eye on Plum Island for the 45 years it has been the site of animal testing.
Residents became even more nervous after the West Nile Virus, a disease usually found in Africa, killed seven people in the New York City area and sickened 50 others last year. The virus spread from birds to mosquitoes to humans. The Agriculture Department has sought to calm fears by holding public hearings and tours for local government officials.
AP Online Thu, Jan 20, 2000 By RANDOLPH E. SCHMIDCrowded living conditions, moving to new places and eating unusual foods can spread disease -- among wild animals, too. A new study warns that when it comes to the globalization of the planet, animals face a lot of the same hazards as people, including so-called emerging infectious diseases.
"We call it pathogen pollution," said Peter Daszak of the University of Georgia, lead author of a paper appearing in today's edition of the journal Science. These diseases can cause local extinctions among wild animals and in some cases could even lead to total extinction of a species, he said. And diseases of wildlife not only threaten the future of the animals, but also may form a reservoir of germs that could harm people and domestic animals, his team warns. Indeed, this type of transmission may have been a factor in the emergence of the virus that causes AIDS as well as the newer Marburg and Ebola viruses, the paper notes.
The international transport of livestock and current agricultural practice have helped spread rinderpest in Africa and mad cow disease in Europe, for example. And even the seemingly most innocent act can pose problems. "Recent analysis suggests that 15,000 tons of peanuts are fed annually to United Kingdom garden birds. This form of provisioning has led to the emergence of infection by salmonella and E coli in Britain ... because of the high density and diversity of birds at feeding stations," the scientists reported. Similar reports have occurred in the United States.
Bringing animals together in zoos and wild animal parks in an effort to conserve them may also cause problems, the study notes. For example, researchers have determined that a type of herpes virus that is harmless to African elephants can be fatal to their Asian cousins.
And zoo animals in the United Kingdom have been exposed to food contaminated with the agent that causes mad cow disease. They reported that that exposure to the agent, called BSE, has been found in 58 zoo animals of 17 species. [Make that 84 zoo animals in 21 species -- webmaster]
The study also found that "measles contracted from humans threatens wild mountain gorillas habituated to tourists and polio virus has killed chimpanzees in Gombe National Park in Tanzania."
PA News Fri, Feb 11, 2000 By Rachael CroftsThe Government today agreed to an official six-month extension to the BSE Inquiry after the chairman, Lord Phillips said he could not deliver his report by the end of March.
In his announcement, Lord Phillips explained that he needed more "thinking time" to collect and assess his thoughts on the evidence before producing his findings. He stressed that extra staff and money would not speed up the inquiry. "We want to produce a clear and readable account of the BSE story that sets out our key findings, conclusions and recommendations," he said. "Our report has to distil evidence which we have received over the last two years. It must deal fairly with individuals whose reputations are at stake. "It must explain clearly a complex series of events and state what is to be learned from them. "Many have devoted enormous time and energy to providing us with evidence and submissions. If our report is to do justice to them, it cannot be produced in a rush."
The committee has heard evidence from more than 300 witnesses and published over 1,000 statements spanning 10 years of Government. It is now involved in analysing that evidence in the light of detailed written submissions from many of those closely involved in the story.
Lord Phillips added: "The rigorous appraisal of complex and detailed evidence that is necessary for sound and fair conclusions is a heavy task and one that is taking us longer than we had anticipated. "I have advised the Government that it is likely to take an extra six months to complete our work and this has been accepted." The extra time is not expected to take the estimated final cost for the inquiry above its current budget of 16 million.
Comment (webmaster): This is quite reasonable, even though it might in part reflect a response to published threats from MAFF attorneys. It might be a good idea to post a draft conclusion to the web and see what comments it draws. On the whole, the scope and depth of the Inquiry was excellent.
Business Wire Thu, Feb 3, 2000 [Note: scrapie sheep were eradicated 10 Dec 00, story moot] Washington State Department of Agriculture Dr. Robert Mead, 360/902-1878 Linda Waring, 360/902-1815