Did insurance remark prejudice Ventura ‘Sniper’ award?

Former Minnesota Gov. Jesse Ventura talks to reporters at the Warren E. Burger Federal Building and United States Courthouse after a defamation hearing, Tuesday, Oct. 20, 2015, in St. Paul, Minn. An attorney for the estate of slain "American Sniper" author Chris Kyle has asked a federal appeals court to overturn a $1.8 million defamation judgment for Ventura. Ventura accused Kyle of making up a story in his book about punching Ventura at a bar in 2006 after Ventura supposedly made offensive remarks about Navy SEALs. (Elizabeth Flores /Star Tribune via AP)

For all of the attention that First Amendment issues have received in the case, it may be a comment about insurance that endangers the $1.8 million jury award to former Gov. Jesse Ventura in his defamation suit against “American Sniper” author Chris Kyle.

The chief judge on the 8th Circuit Court of Appeals suggested at a hearing in St. Paul Tuesday that he’s uncomfortable with a comment to the jury at last year’s trial that an insurance company — not Kyle’s widow, Taya — would cover the damage award.

In his book, Kyle, a Navy SEAL who was killed before Ventura’s suit went to trial, says he punched out Ventura, who was not named in the book but whom Kyle identified in interviews promoting it, who he said was making offensive comments about the SEALs.

During rigorous questioning of Ventura’s attorney, David Olsen, Court of Appeals Chief Judge William Riley said he was troubled by Olsen’s comment about the book publisher’s insurance covering the cost of the award. He allowed that Olsen may have made it in the heat of the moment, but that it “crossed the line.”

Such a comment could be considered prejudicial because the jury may have been reluctant to find in Ventura’s favor if it came at the personal expense of a widow whose husband was a Navy SEAL. That much is proven by tweets like this after the verdict.

Olsen, however, said he did not make the comment in the heat of the moment, citing cases in which mentioning insurance coverage is allowed by a court, a point that Judge Riley appeared to dismiss.

In earlier questioning of Kyle’s attorney, Judge Riley hinted that Attorney John Borger should have objected to Olsen’s comment and moved for a mistrial at the time it was made.

Ventura has insisted from the beginning that the bar fight never happened and today’s hearing also debated to what extent that matters in the award.

“A 200-pound trained killer punched Gov. Ventura in the face and yet there was no mark, there’s no photographs, nothing in the police report nor a hospital report,” Olsen told the three-judge panel.

That doesn’t prove, however, that Ventura didn’t make the comments Kyle wrote about in his book.

And that sparked a debate over whether Ventura’s legal team had to prove the information was false based on the “preponderance” of the evidence or under a more difficult “clear and convincing” standard. On that point, the judges provided a much tamer grilling of Kyle’s attorney, Lee Levine.

Levine repeatedly referred to a Supreme Court case last year in which justices vacated a defamation suit against Air Wisconsin, filed by a pilot. In that ruling, the court said even if some of the details are false, a party cannot be sued if statements are substantially true.

At trial Laura deShazo, testified she saw Ventura punched in the bar. And her sister testified she heard Ventura making disparaging statements about SEALs.

After the hearing, Ventura provided his own evidence the fight never happened. “I’ve spent a million dollars of my own money,” he said. “Why would I do that if it actually happened?”

“We’ll see if Superman was right; that there’s truth, justice, and the American way,” Ventura said. “Can they fabricate something that didn’t happen? I certainly hope not.”

He said the First Amendment “doesn’t give you the right to profit from wrongdoing.”

“I’ve lost my television show and I’ve had no employment for two years,” he said when asked about the damage to his reputation.

Ventura said sales of Kyle’s book soared once he made his bar-fight claim during a promotional interview. Ventura said he was the “booster rocket that made sales take off.”

“You’re talking about a multi-millionaire wife here, and she’s not going to pay a cent anyway,” Ventura said. “The insurance company’s got it from top to bottom.”

“If it does hold up,” he added.

If it doesn’t, Ventura promises his own appeal.

“I have to,” he said. “It’s my name.”