Libel and the Diet of Worms – Opinion

Anton von Werner 1877, Luther at The Diet of Worms. Image courtesy of Wikipedia.


The opinion of Judge Stephen Clark. Steak N Shake, Inc.(E.D. Mo. October 14, 2021), which is an interesting example of how libel suits sometimes yield a verdict in favor of the plaintiff. However, it’s worth questioning whether this was a good business decision considering the costs involved and the potential for lawsuits to increase bad publicity.

Reflexive rather than reflective behavior may be encouraged by social-media platforms. From this fertile ground, the law is often borne out of unintended consequences. Melissa White was working at Steak N Shake when she noticed worms on hamburger meat. She demanded her manager inspect the meat. White attempted to disguise herself as Upton Sinclair by posting on Facebook her claims of Steak N Shake having sold contaminated meat.[:]


White’s #SHARESHARESHARE encouraged social media to take root quickly. White’s post soon received thousands of comments, mostly (perhaps White hoped) condemning and outrage.

Steak N Shake filed suit against White, saying that White had defamed their restaurant and led to sales declines of nearly a quarter-million. A jury returned a verdict for White, which included $70,000 of actual damages and $10,000 as punitive damage. It took four days to reach this conclusion. White is now seeking either a fresh trial or for the Court to 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 asserts that the jury’s verdict was not in accordance with the evidence weight because White’s Facebook posts were substantially true. White claims that “truth” is based on her testimony during trial that fly larvae existed in the beef pat she had taken from Steak N Shake. White cites the testimony of Dr. Jeffery Tomberlin, a forensic entomologist and Dr. Catherine Hutt as her food safety expert. White pointed to Dr. Tomberlin’s testimony that he had examined White’s pat and found fly larvae inside. However, he couldn’t testify as to the date or the manner in which the larvae appeared, leaving White with a substantial gap in his evidence. Dr. Hutt stated that Frank Tardy (White’s Steak N Shake manager) had not done an adequate investigation of White’s meat contamination report. The presence of maggots suggests that other Steak N Shake meats would also have been contaminated.

White suggests Tardy’s evidence was not sufficient for Steak N Shake to win the verdict. Tardy stated that there were no maggots found in the meat, but Tardy also admitted that he didn’t look at White’s pat and that he didn’t “rip apart” the meat while it was still on the grill. White also claims Tardy didn’t stop selling the meat at his store. White claims her Facebook post is substantially true. White claims that she has “demonstrated the existence of maggots” in her patty and therefore cannot be held liable for defamation. Steak N Shake did not provide sufficient evidence to prove that White’s Facebook statement about “worms” was false, she argues.

White asks that the Court overturn the verdict of the jury. She claims the jury should not have believed White’s evidence, and instead ignored Steak N Shake’s evidence. However, this would jeopardize the jury’s right to a trial by jury. A jury may issue a general verdict, which can be supported by multiple theories of liability. The Court is not allowed to speculate about why it reached that decision.

First, both parties fiercely challenged the presence of maggots within the meat. The jury might have concluded that there was no maggot in the patty. White was the only witness that claimed she observed “worms” in her meat pat on January 5, 2018. Tardy stated that sometimes the fattle in meat can be displaced when it’s placed on the grill. Rashad Lambert (police officer) arrived at the scene just as White was leaving the shop and testified that White saw something in her patty. However, he wasn’t certain that it was a “worm”. Tardy stated that there were no maggots found in the meat he checked during his investigation. This was even though he had inspected the frozen, walk-in cooler and grill meats.

White was initially willing to give Tardy her patties, but later he testified to best practices in food-contamination inspection. He didn’t immediately look at any particular patties and instead focused on the cooked meats on the griddle before moving on to the cool meats. White wouldn’t show Tardy her patty and instead took it from him. White refused to allow Steak N Shake staff members to see her patty.

Later that day, St. Louis County Health Department inspected the store and found no contamination. Doctor Tomberlin finally testified that she had no idea of the origin or condition of the patty on the day that White took it out. White admitted that she gave Dr. Tomberlin the exact same patty she took from the store. However, there was no evidence or other source that could corroborate her story, nor the chain of custody. This evidence could have been used to discredit White’s testimony. The jury would reasonably conclude that White’s patty was uncontaminated by maggots when she posted her Facebook post on January 5, 2018.

Zweiten, even if White believed her patty was contaminated with maggots by the jury, it could still have decided in favor Steak Na Shake had the jury found the statements White made in the post not to be substantially true. White made numerous comments about Steak Na Shake in her Facebook post that were not related to the presence of “worms.” White claims that Steak N Shake fired her because she posted a Facebook message. [she]Live worms were found in a steakpatty while it was being cooked. They refused to be sold.[.]Steak N Shake claimed in a Facebook post that it was still selling the same. [sic]”meat” that had not been checked by anyone. Elle continued by saying that she believed “[she]Just got fired for no reason” and she “did not do anything wrong[.]”

White claimed twice that Steak N Shake had fired White. But, evidence from the company proved the opposite. Tardy said that White quit, claiming she had left and would never return. White claimed she didn’t quit, and that Tardy fired them. This allowed the jury to examine each witness and decide whether Tardy’s story was more convincing than White.

White posted on Facebook that White had been “fired for no reason” and claimed she did nothing wrong. However, Steak N Shake provided evidence to show that White refused Tardy her patty and took it with her as she left the shop. Steak N Shake’s employee handbook explains that an employee must be “…”[f]Inability to work fully with A [Steak N Shake]An investigation can lead to disciplinary actions, including the termination of employment. Even if Steak N Shake had dismissed White, the jury might have concluded that it had reasonable grounds to make its decision and so White’s claims were unsubstantial.

White claimed that she was fired because of a Facebook posting. [she]Live worms were found in a steakpatty while it was being cooked. They refused to be sold.[.]The undisputed evidence at trial proved that the meat pat she discovered the “worms in” was meant for her employees. Steak N Shake didn’t tell her to sell the meat patty, or any other contaminated food to customers. A jury might have found this claim to be false. The evidence presented at trial was flatly contrary to her assertion in the post on Facebook that she had “#NOONEEVENCHECKEDIT.”[.]”

Tardy said that he checked the meat in three places: in the cooler, on the grill and in storage. The security video clearly shows Tardy looking at the meat. Steak N Shake then presented the St. Louis County Health Department’s inspection report, in which an inspector was sent to the location that very day. White may have meant to post about the patty she brought home. However, Steak N Shake denied her the chance to inspect the meat when she refused Tardy to give it to her. More importantly, Steak N Shake did not get the opportunity for inspection at the right time, as Tardy has the training and experience to ensure food safety. It was reasonable for the jury to conclude that White’s statement that she had not checked the meat was false.

White claimed in a Facebook post that they were still selling the same “right now” [sic]Get 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. White said that she left the store at 11.40 AM, however, she only posted on Facebook at 12:23 PM, and so had no knowledge of its current status. White claimed that she was sent texts by certain people regarding what was happening in the shop, but did not present those texts as evidence or produce them at discovery. Therefore, it was possible for the jury to conclude that White’s claim that Steak N Shake currently sold the same type of meat was false.

Steak N Shake’s evidence regarding White’s Facebook posts shows that the Court found the jury did not overrule the weight of evidence. Steak N Shake provided sufficient evidence to allow the jury conclusion that White’s Facebook posts were not substantially true. Accordingly, the Court denies White’s Motion for New Trial on this ground….

Steak N Shake [also]The evidence was strong enough to prove that White did not act with malice. She knew Tardy’s statements were inaccurate and she either recklessly ignored them. White said she was upset at Tardy on Jan 5, 2018 and attempted to reach large online audiences with her Facebook post. White begins the post with the hashtag #SHARESHARESHARE and adds tags at the end, “#FOX2 #ELLIOT WAYA,” which refers to a local television news reporter. “WYA” means “where are you at”.

White claimed that Steak N Shake fired White for selling contaminated food to customers. But the Court had already spoken about this post. White refused to remove her post from Facebook for more than two weeks, even though several people posted photos taken from the Health Department report. White posted her Facebook status even though Steak N Shake sent letters to her from outside and in-house attorneys putting her on notice about Steak N Shake. A jury could reasonably have concluded that White knew or should have known that White’s statements were false. The Court finds that Steak N Shake presented sufficient evidence to support an award of $10,000 in punitive damages….