Texas Beef Group v. Winfrey ( 2000 )

  •                       REVISED, MARCH 28, 2000
                       UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT
                                No. 98-10391
                          TEXAS BEEF GROUP, ET AL,
                            CACTUS GROWERS INC.,
                  PAUL F. ENGLER, CACTUS FEEDERS, INC.,
                          OPRAH WINFREY, ET AL,
          Appeal from the United States District Court for the
                        Northern District of Texas
                              February 9, 2000
    Before JONES, STEWART, and DENNIS, Circuit Judges.
              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.
    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
                Subsequently, BSE has been identified in Irish, Canadian, and other
    European cattle.
    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
                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.
    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,
                Lyman is a former cattle rancher turned vegetarian and an activist
    for the Humane Society.
                Dr. Weber holds a Ph.D. in Animal Science.   Dr. Weber represents the
    National Cattlemen’s Beef Association.
                Dr. Hueston, representing the U.S. Department of Agriculture, is a
    leading expert on “BSE.”
                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.
    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.
                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.
    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,
         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
                         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
                Following removal, this case was consolidated with a pending federal
    claim -- Texas Beef Group v. Winfrey, No. 2-96-CV-208-J.
                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
              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
                 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.
    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
                The appellees do not raise on appeal any arguments concerning the
    constitutionality of the Act.
    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         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, 
    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.
    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
                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
                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
                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).
    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
                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
    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
                  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.