Created: 10/20/2015 2:21 PM
By: By STEVE KARNOWSKI
ST. PAUL, Minn. (AP) — An appeals court indicated Tuesday that it might agree to order a new trial in Jesse Ventura's defamation lawsuit over the book "American Sniper" because jurors were told the publisher's insurer would be "on the hook" for the $1.8 million they awarded him.
An attorney for author Chris Kyle's estate said in oral arguments to a three-judge panel of the 8th U.S. Circuit Court of Appeals that the comments were so prejudicial that the judges should order a new trial at the least. Lawyer Lee Levine also asked the panel to throw out the entire judgment on First Amendment and other legal grounds.
Jurors awarded the former Minnesota governor $500,000 for defamation and $1.3 million for unjust enrichment last year in a trial over a passage in Kyle's book that Ventura claimed was a complete fabrication. Kyle, the deadliest sniper in U.S. military history, described punching out a man, later identified as Ventura, whom he said made offensive remarks about Navy SEALs and said the SEALs "deserve to lose a few" in Iraq. The book was also made into a hit movie.
Ventura, a former Underwater Demolition Teams/SEAL member, testified that he never made the comments and the altercation never happened. He said the book ruined his reputation in the SEAL community.
During closing arguments, Ventura's attorney, David Bradley Olsen, told jurors the "insurer is on the hook if you find that Jesse Ventura was defamed." That followed questions he put to two HarperCollins employees about whether Kyle was covered by the publisher's policy.
Courts are reluctant to permit such testimony out of concerns that it could taint a jury's decision. Appeals Judge William Jay Riley challenged Olsen on Tuesday to cite precedents that would have allowed those statements. Olsen could not point to other cases with the exact same circumstances, but Riley gave him time for more research.
"In my experience this was over the line," Riley said.
Afterward, Ventura told reporters he has spent $1 million pursuing vindication so far, and he's ready for a retrial if that's what it takes.
"I've suffered a great deal from this lie," Ventura said.
Kyle, who was killed in 2013 on a shooting range, gave sworn testimony before his death that his story was true.
The two other key issues were whether the judgment is allowed under the First Amendment, and whether there's a legal foundation for the $1.3 million unjust enrichment portion.
Under the landmark Times v. Sullivan case in 1964, a plaintiff in a defamation case who's a public figure must prove a defendant acted with "actual malice" — meaning that defendant knew the statement in question was false or made it with reckless disregard for whether it was false.
The Kyle estate argued that the jury got faulty instructions. Levine said the jury should have been required to find there was "clear and convincing evidence" that Kyle's story was "materially false," rather than the less demanding "greater weight of the evidence" standard the court used.
Olsen said courts have never held public figure defamation plaintiffs to that higher standard, but Riley asked, "Why shouldn't we make it the law?"
Levine also argued that no court had previously awarded damages for unjust enrichment for allegedly defamatory speech. The $1.3 million amounted to about a fourth of the book's profits up to then. That award was also unconstitutional under the First Amendment, he said.
Olsen said the estate forfeited its right to raise those arguments on appeal by failing to raise timely objections at trial.
Ventura said he stands by his statement that if he loses he'll probably move to Mexico, where he now spends his winters.
"I don't think I'd want to live in a country where you can profit from wrongdoing and the courts allow that," he said.
(Copyright 2015 by The Associated Press. All Rights Reserved.)