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Libel and the Diet of Worms

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Luther at the Diet of Worms, by Anton von Werner, 1877; thanks to Wikipedia for the image.


From Judge Stephen Clark’s opinion in Steak N Shake, Inc. v. White (E.D. Mo. Oct. 14, 2021), an interesting illustration that libel lawsuits sometimes do indeed yield a verdict for the plaintiff (though query whether this was a sound business decision, given the litigation costs and the tendency of a lawsuit to further amplify the initial bad publicity):

Social-media platforms may foster the reflexive, rather than reflective, behavior that provides fertile ground from which the law of unintended consequences often springs forth. On the job at Steak N Shake, Melissa White thought she found worms in hamburger meat, and insisted her manager inspect the meat. And when she didn’t find her manager’s inspection up to her own standards, White, perhaps cloaking herself as a modern-day Upton Sinclair, rushed to post her accusations of Steak N Shake’s purported sale of contaminated meat sales on Facebook[:]


Encouraged by White’s #SHARESHARESHARE, the velocity of social media soon took hold, and White’s post received thousands of comments, largely (as perhaps White hoped) expressing disgust and outrage.

Steak N Shake then sued, claiming White defamed the restaurant and cost it lost sales of over a quarter-million dollars. After a four-day trial, the jury rendered a verdict against White for $70,000 in actual damages and $10,000 in punitive damages. White now seeks either a new trial or to have the Court reduce the verdict. The Court finds that while White aimed at—and reached—the stomachs of the social-media community, she did not reach the minds or the hearts of the jury, and she has provided no basis for a second run….

White argues that the jury’s verdict was against the weight of the evidence because the statements in her Facebook post were substantially true. White asserts “truth” on the basis that she presented evidence during the trial that fly larvae were in the beef patty that she took from Steak N Shake. White points to the testimony of her two expert witnesses: forensic entomologist Dr. Jeffery Tomberlin and food-safety expert Dr. Catherine Hutt. Dr. Tomberlin testified that he examined White’s patty and identified fly larvae (maggots) inside of it, though he could not testify to when or how the larvae first appeared in the meat, leaving a significant gap in White’s evidence. Dr. Hutt testified that Frank Tardy, White’s manager at Steak N Shake, had failed to perform an adequate investigation into White’s report of meat contamination and that the presence of maggots indicates that the other meat at the Steak N Shake store would have also been contaminated by maggots.

White suggests that Tardy’s testimony was insufficient for the jury to find in Steak N Shake’s favor. Tardy testified that he found no maggots in the meat after conducting his investigation, yet Tardy admitted that he did not look at White’s patty and did not “tear apart” the meat that was already sitting at the grill. Further, White claims that Tardy did not stop the sale of the meat while he was at the store. Therefore, White claims that the statements in her Facebook post were substantially true. White argues that because she “demonstrated” the presence of maggots in the patty, she cannot be liable for defamation. She argues that Steak N Shake presented insufficient evidence to show that her statement in the Facebook post about the “worms” was untrue.

White essentially asks the Court to cast aside the jury’s verdict because the jury should have believed her evidence and disregarded the evidence Steak N Shake presented, but doing so would gut the right to trial by jury. When a jury issues a general verdict which could be supported by more than one theory of liability, the Court may not speculate as to why the jury reached its decision.

First, the parties hotly contested the presence of maggots in the meat, so the jury could have determined the patty did not contain maggots. White was the only witness who testified that she saw “worms” moving in her meat patty on January 5, 2018, and Tardy explained that sometimes fatty gristle can move about in the meat when the patty is placed on the grill. Police officer Rashad Lambert, who arrived on the scene as White was exiting the store, testified that he saw something moving in White’s patty when she showed it to him, but he was not entirely sure that it was a “worm.” Tardy testified that he found no maggots in any of the meat he examined during his investigation, even after he inspected meat from the grill, the walk-in cooler, and the freezer.

Although White initially offered to show Tardy her patty, he followed what he testified to was best practices for food-contamination inspection and did not look at that particular patty immediately, instead concentrating on the meat that was being cooked on the griddle and then on the raw meat in the cooler. When he later asked for White’s patty, White refused to show it to him and took it from the store. White then refused to let anyone from Steak N Shake see her patty.

The St. Louis County Health Department conducted an inspection of the store later that day, and according to the inspection reports, the inspection found no contaminated meat at the store. Finally, Dr. Tomberlin testified that he had no knowledge of where the patty came from or whether it contained maggots on the date that White removed the patty from the store. Although White testified that she showed Dr. Tomberlin the same patty that she had taken from the store, no other source corroborated her account, or the chain of custody. Based on this evidence, the jury could have discredited White’s testimony and reasonably concluded that White’s patty was not contaminated with maggots on January 5, 2018, when she published her Facebook post.

Second, even if the jury believed that White’s patty contained maggots, the jury nevertheless could have rendered a verdict in favor of Steak N Shake if it found that the other statements White made in the Facebook post were not substantially true. White’s Facebook post contained numerous statements about Steak N Shake unrelated to the existence of “worms” in her patty. The Facebook post states that White was “fired” from Steak N Shake “because [she] found live worms while cooking a steakpatty moving inside of it and refused to sell that meat[.]”The Facebook post further claimed that Steak N Shake was “still selling same [sic] meat” and that no one had even checked the meat in question. She went on to say that “[she] just got fired for nothing” and that she “did nothing wrong[.]”

White’s Facebook post claimed, twice, that Steak N Shake had fired her, but the company provided evidence to the contrary. Tardy testified that White had quit by saying she was leaving and never coming back. White denied quitting, asserting that Tardy had fired her. Here, the jury was entitled to evaluate each of the witnesses’ credibility and believe Tardy’s account over White’s.

While White’s Facebook post also claimed that White was “fired for nothing” and that she “did nothing wrong,” Steak N Shake presented evidence that White refused to turn over her patty to Tardy when he asked for it and then took it with her when she left the store. Steak N Shake’s employee handbook states that an employee’s “[f]ailure to cooperate fully and completely with a [Steak N Shake] investigation is grounds for disciplinary action up to and including termination of employment.” The jury could have concluded that, even if Steak N Shake had fired White, it had legitimate grounds for its decision, so her claims to the contrary were not substantially true.

White’s Facebook post claimed she was fired “because [she] found live worms while cooking a steakpatty moving inside of it and refused to sell that meat[.]” But the undisputed testimony at trial demonstrated that the meat patty that she found the “worms” in was intended for her own employee meal. Steak N Shake did not instruct her to sell the patty or any other contaminated meat to store customers, so a jury could have found that this statement was also untrue. And the evidence at trial flatly contradicted her claim in the Facebook post that “#NOONEEVENCHECKEDIT[.]”

Tardy testified that he inspected the meat at the grill, in the cooler, and in the freezer, and the security footage clearly shows Tardy examining the meat. And Steak N Shake presented an inspection report from the St. Louis County Health Department, which had sent an inspector to examine the meat at the store on the very same day. Even if White’s post was only referring to the patty that she had taken home with her, she deprived Steak N Shake the opportunity to inspect it when she refused to turn it over to Tardy; as importantly, she deprived Steak N Shake the opportunity to inspect it at what Tardy’s training and experience in food safety told him was the appropriate point in time to do so. The jury reasonably could have found that her statement that no one had checked the meat was not substantially true.

Finally, White’s Facebook post claimed that “right now #RIGHTNOW they are still selling same [sic] meat[.]”But the evidence at trial demonstrated that she had already taken the allegedly-contaminated patty out of the store with her and that the meat remaining at the store had been checked by Tardy. While White left the store at 11:40 a.m., she did not post on Facebook until 12:23 p.m., so she had no personal knowledge about the store’s status. White claimed at trial that she received texts from certain individuals about what was going on in the store, but she did not produce those texts in discovery or present them in evidence. Thus, the jury reasonably could have found that her statement that Steak N Shake was currently selling the “same meat” was not substantially true.

Based on the evidence offered by Steak N Shake regarding White’s statements in her Facebook post, the Court finds that the jury’s verdict did not go against the weight of the evidence. Steak N Shake presented sufficient evidence for the jury to conclude that White’s statements in her Facebook post were not substantially true. Accordingly, the Court denies White’s Motion for New Trial on this ground….

Steak N Shake [also] presented sufficient evidence that White acted with malice because she knew her statements were false, or that she acted with reckless disregard for their falsity. White admitted she was angry at Tardy when she left the store on January 5, 2018, and she attempted to reach a broad online audience with her Facebook post. The post starts with the hashtag “#SHARESHARESHARE” and has additional tags at the end: “#FOX2 #ELLIOT WYA,” a reference to a local TV news reporter, with “WYA” meaning “where you at.”

As the Court already discussed, White’s Facebook post alleges that Steak N Shake fired her for not selling contaminated meat to customers, while the evidence at trial indicated that this account was false. White also refused to take down her Facebook post for over two weeks, even when several commenters posted images from the Health Department report. White left her Facebook post up even after Steak N Shake’s in-house and outside attorneys sent her letters putting her on notice of Steak N Shake’s position. The jury reasonably could have inferred that White knew her statements were false or that she acted with reckless disregard for their falsity. The Court finds that Steak N Shake presented sufficient evidence to support an award of $10,000 in punitive damages….

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