REVISED, MARCH 28, 2000

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 INCORPORATED, 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,

(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

1 Subsequently, BSE has been identified in Irish, Canadian, and other European cattle.

2 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 Show2 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

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 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,

3 Lyman is a former cattle rancher turned vegetarian and an activist for the Humane Society. 4 Dr. Weber holds a Ph.D. in Animal Science. Dr. Weber represents the National Cattlemen’s Beef Association. 5 Dr. Hueston, representing the U.S. Department of Agriculture, is a leading expert on “BSE.” 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.

4 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.

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.

5 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

6 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.”

7 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

8 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,

. The district court rested

its decision on several bases. First, the district court

questioned the applicability of the statute to live “fed cattle.”

See

. Second, the court disputed whether the plaintiffs’

cattle “perished” or “decayed beyond marketability” as required for

statutory protection. See

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:

8 Following removal, this case was consolidated with a pending federal claim -- Texas Beef Group v. Winfrey, No. 2-96-CV-208-J. 9 The district court also dismissed the plaintiffs’ claims of common law defamation, statutory libel, negligence, and negligence per se. See Texas Beef Group,

. The appellants do not appeal from these dismissals.

9 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

10 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.,

(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.,

(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,

,

(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

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

11 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

,

. Prior to

trial, the intervening plaintiff and the non-diverse defendant

settled -- and diversity was finally established. See

at 66-

67,

. 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

,

-77.

The cattlemen’s effort to distinguish Caterpillar is

unpersuasive. Though the cattlemen accurately observe that the

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.,

(Tex. 1995); Harris County Appraisal Dist. v. Wittig,

(Tex. App.-Houston [1st Dist.] 1994, orig. proceeding); Avmanco, Inc. v. City of Grand Prairie,

(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

, but the Texas Supreme Court’s opinion in Greenberg v. Brookshire,

(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.

12 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.,

(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. ___

; 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”,

(E.D. Wash. 1992), aff’d,

(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

13 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.,

(5th

Cir. 1997). In our review, all evidence is considered in the light

11 The appellees do not raise on appeal any arguments concerning the constitutionality of the Act.

14 most favorable to the nonmovant. See

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

(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 of 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,

(5th Cir. 1997); see also Milkovich v. Lorain Journal Co.,

,

(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

15 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

. 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

16 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

Lyman’s opinions, though strongly stated, were based on

truthful, established fact, and are not actionable under the First

Amendment. See

(“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,

,

, 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.,

(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

.

(“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

17 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,

. 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

18 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.,

(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.,

(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.”

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

19 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.,

(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,

. 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.

20 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.

ENDRECORD

21 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

.

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

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).

23 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)

24 (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.

25 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,

, 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

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.

26 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.

27 28 29