Taya Kyle Motion for New Trial

8/11/2019 Taya Kyle Motion for New Trial

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UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

________________________________

Jesse Ventura, a/k/a James G. Janos,

Plaintiff,

vs.

Taya Kyle, as Executor of the Estate ofChris Kyle,

Defendant.

________________________________

Civil No. 12-cv-0472 RHK/JJK

MEMORANDUM IN

SUPPORT OF DEFENDANTS

MOTION FOR JUDGMENT

AS A MATTER OF LAW OR A

NEW TRIAL

INTRODUCTION

Applicable law and the evidence at trial support invalidating the jurys $500,000

award to Jesse Ventura on his defamation claim and the Courts $1,345,477.25 award on

Venturas unjust-enrichment claim.

The unjust-enrichment awardviolates Minnesota law and the First Amendment

because (1) Minnesota law prohibits equitable claims where adequate legal remedies

exist; (2) the First Amendment limits damages in defamation cases to harm the plaintiff

actually sustains; (3) Ventura failed to show the amount (if any) by which the Estate was

enriched; and (4) by depleting the Estates assets, the award createsrather than

remediesinequity.

The defamation award was legally and factually inappropriate. Ventura did not

meet his First Amendment burden of showing by clear-and-convincing evidence boththat

Chris Kyles allegedly defamatory statements were materially false andthat Kyle made

CASE 0:12-cv-00472-RHK-JJK Document 406 Filed 09/04/14 Page 1 of 41


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those statements with knowledge that they were false or with subjective awareness of

probable falsity.

Both awardswere tainted by the admission of prejudicial testimony and argument

regarding insurance and by erroneous instructions that failed to impose the proper burden

of proof, misdirected the jurys attention to non-defamatory details, and failed to dispel

obvious juror confusion about the meaning of serious doubts about the truth.

The Court has a constitutional obligation to independently review the jurys

defamation verdict to ensure that it complies with First Amendment principles and a legal

obligation to closely examine its own verdict on the unjust-enrichment claim to ensure

that both verdicts comply with the law and were not the product of errors at trial. Neither

the defamation nor the unjust-enrichment verdict can withstand such scrutiny. The Court

should enter judgment as a matter of law (JMOL) in Kyles favor on Venturas

defamation and unjust-enrichment claims under Rule 50 or, at the very least, order a new

trial under Rule 59.

DISCUSSION

I. Kyle Is Entitled to JMOL on Venturas Defamation and Unjust-Enrichment

Claims

JMOL is appropriate when a party has been fully heard on an issue during a jury

trial and the court finds that a reasonable jury would not have a legally sufficient

evidentiary basis to find for the party on that issue. Fed. R. Civ. P. 50(a)(1). [I]n

entertaining a motion for judgment as a matter of law, the court should review allof the



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evidence in the record, not just the evidence supporting the nonmoving party.Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (emphasis added).

In judging the sufficiency of the evidence with respect to a particular claim or

element of a claim, the Court must apply the substantive evidentiary standard of proof

that governs that claim or element.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986); Troknya v. Cleveland Chiropractic Clinic, 280 F.3d 1200, 1208-09 (8th Cir.

2002) (reversing jurys punitive-damages award because evidence did not satisfy clear-

and-convincing-evidence standard).

A. The Court Should Enter JMOL in Kyles Favor on Venturas Unjust-

Enrichment Claim.

1. A plaintiff may not pursue an unjust-enrichment claim if there

are legal remedies available that would redress his alleged

injury.

Unjust enrichment is an equitable remedy, and a party may not have equitable

relief where there is an adequate remedy at law available. ServiceMaster of St. Cloud v.

GAB Bus. Servs., Inc., 544 N.W.2d 302, 305 (Minn. 1996). Thus, the Eighth Circuit does

not allow unjust-enrichment claims when an adequate legal remedy exists. See, e.g.,

Loftness Specialized Farm Equip., Inc. v. Twiestmeyer, 742 F.3d 845, 854 (8th Cir.

2014); United States v. Bame, 721 F.3d 1025, 1030 (8th Cir. 2013) (collecting cases from

this District); Kelley v. College of St. Benedict, 901 F. Supp. 2d 1123, 1133 (D. Minn.

2012) (Kyle, J.).

A plaintiffs failure toprevailon a legal claim does not make the legal claim

unavailable. Loftness, 742 F.3d at 854-55 (citing Cady v. Bush, 166 N.W.2d 358, 362



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(Minn. 1969)). [I]t is the existenceof an adequate legal remedy that precludes unjust

enrichment recovery; a successfullegal remedy is not required.Bame, 721 F.3d at 1031

(emphasis added).

Throughout this case, Ventura identified only two types of wrongful conduct by

Chris Kyle that could support an unjust-enrichment claim: 1) making false and

defamatory statements about Ventura, and 2) exploiting Venturas name. But adequate

legal remediesspecifically, defamation and misappropriation claimsexisted to redress

each alleged wrong. Thus, as a matter of law, Ventura was not entitled to pursue an

unjust-enrichment claim, and the Court must enter judgment in Kyles favor on the claim.

a. Defamation cannot support Venturas unjust-enrichment

claim.

Defamatory conduct cannot support Venturas unjust-enrichment claim, for two

reasons.

First, Ventura obviously had a legal remedya defamation claimavailable to

redress any injury to his reputation. The jury actually awarded him damages on that

claim. Ventura cannot also recover for unjust enrichment based on the same conduct.

ServiceMaster, 544 N.W.2d at 305.

Second, the First Amendment mandates that damages for false and defamatory

speech must be limited to damages sustainedby the plaintiff. In Gertz v. Robert Welch,

Inc., the Supreme Court held that the legitimate state interest in compensating people for

harm inflicted by defamationextends no further than compensation for actual injury

and that States have no substantial interest in securing for plaintiffs gratuitous awards



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of money damages far in excess of any actual injury.418 U.S. 323, 341, 348-49 (1974);

see also United States v. Alvarez, 132 S. Ct. 2537, 2545 (2012) (Congress cannot punish

false speech just because it is false, without regard to damage caused). Unjust-enrichment

awards, by contrast, are based on defendants gain, not onplaintiffs loss. The jury here

awarded Ventura $500,000 for harm to his reputation. Any award above that amount

under the heading of unjust enrichment violates the First Amendment under Gertzand

Alvarez.

This Courts prior conclusion that the First Amendment protected Kyles speech

onlyif that speech was truthful or published without actual malice violated the

Supreme Courts contrary holding inAlvarez, 132 S. Ct. at 2545, and the Eighth Circuits

recent decision in 281 Care Comm. v. Arneson, which confirmed that knowingly false

speech does notfall outside the protections of the First Amendment. --- F.3d ---, 2014

WL 4290372, *6, n.9 (8th Cir., Sept. 2, 2014) (emphasis added). The First Amendment

doesapply even to knowingly false speech, and it prohibits punishing that speech through

the tort of defamation beyond what is necessary to compensate the plaintiff for actual

harm.1Because an unjust-enrichment award goes beyond compensating actual harm to

the plaintiffindeed, has nothing to dowith harm to the plaintiffit cannot be

constitutionally applied to false speech. (See alsoDkts. 25, 48, 234, 349.)

b. Misappropriation cannot serve as the predicate for

Venturas unjust-enrichment claim.

1 The First Amendment does allow punitive damages in some circumstances, butthey were not available to Ventura for other reasons under Minnesota law.



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The only other potential basis for Venturas unjust-enrichment claim is that Kyle

was unjustly enriched by using Venturas name during interviews. But that cannot

support an unjust-enrichment claim either, because: 1) the legal remedy of a

misappropriation claim was available to Ventura and he pursued that claim to verdict; 2)

the jury rejected the misappropriation claim on the merits, so it cannot be the unjust act

on which an unjust-enrichment claim is based; and 3) both the First Amendment and

applicable state law prohibit misappropriation claims in these circumstances.

First, the legal claim of misappropriation remedies improper use of ones name.

The availability of that legal remedy foreclosed as a matter of law an unjust-enrichment

claim. ServiceMaster, 544 N.W.2d at 305.2Venturas failure to prevail on his

misappropriation claim does not make it unavailable: the existenceof legal remedies

bars unjust-enrichment claims. Seep.3-4 above.

Second, the jury rejectedVenturas misappropriation claim, thus precluding

Ventura from using alleged misappropriation as the unjust conduct on which his unjust-

enrichment claim was based. See, e.g.,Ruffin-Steinback v. dePasse, 267 F.3d 457, 462-63

(6th Cir. 2001) (failure of misappropriation claim dooms unjust-enrichment claim based

on misappropriation).

Third, the First Amendment prohibits unjust enrichment (and misappropriation)

claims in these circumstances for the reasons discussed in the prior subsection of this

briefi.e., misappropriation and unjust enrichment involve disgorgement of the

2 Defendant has argued, and still maintains, that misappropriation claims are notavailable in the circumstances of this case, due to free-expression principles. SeeDkts.25, 48, 234 (at 39 n.151), 349 (at 5 n.1).



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defendants benefits, and therefore go beyond compensating plaintiff for actual harm,

which the First Amendment prohibits when applied to speech. Gertz, 418 U.S. at 341,

348-49;Alvarez, 132 S. Ct. at 2545.

2. The evidence did not support the Courts unjust-enrichment

verdict.

Even if the law permitted Ventura to pursue an unjust-enrichment claim, his claim

failed at trial when Ventura conceded that he had no evidence to support an essential

element of the claim.

The theory of unjust enrichment is based on what the [defendant] allegedly

enriched has received, not on what the opposing party has lost. Georgopolis v. George,

54 N.W.2d 137, 142 (Minn. 1952) (emphasis added). Ventura had to establish both: (1)

that Chris Kyle was enrichedand(2) the amount of that enrichment.Rainbow Play Sys.

v. Groundscape Techs., LLC, 364 F. Supp. 2d 1026, 1041 (D. Minn. 2005) (granting

summary judgment because plaintiff failed to bear its burden of showing the extent of

[defendants] enrichment) (emphasis added).

First, Ventura introduced no evidence that Kyle was enriched because ofhis use of

Venturas name in the book. He relied solely on speculation that use of his name must

have increased sales of the book, but there was no evidence of that fact. Indeed, Ventura

admitted at trial that people did not buy the book solely because of the 1-page story

about him and that they bought the book to read the other things that Kyle had to say in

the 377-page book. (T-983.)3And he admitted that people did not need to buy the book to

3 All citations to T-___ are to the trial transcript.



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read the story about him because it was available for free on the Internet. (T-985.) And

other evidence at trial showed that the book was bound for success even before it was

releasedlong before Chris Kyle first identified Ventura on The Opie & Anthony Show

andthat it succeeded for reasons unrelated to Ventura. (T-1729-30, 1780, 1786-87, 1792-

93, 1805, 1831-32, 1873, 1876-78.) Thus, Ventura failed to prove that Kyle realized any

enrichment as a result of using Venturas name.

Second, even if there were evidence of thefactof enrichment, Ventura failed to

bear [his] burden of showing the extent of[Kyles] enrichment.Rainbow, 364 F.

Supp.2d at 1041 (emphasis added). Having admitted that not allof the sales of the book

were attributable to his name (T-983), it was incumbent on Ventura to prove how manyof

the sales and how muchof the book revenue was attributable to Kyles use of his name

(i.e., the amount by which sales were higher with the Scruff Face portion than they

would have been without it). This is because the plaintiff must introduce evidence

substantiating the amount by which the defendants were allegedly unjustly enriched.

Shum v. Intel Corp., 630 F. Supp. 2d 1063, 1080 (N.D. Cal. 2009) (emphasis added);

Cantor v. Perelman, 414 F.3d 430, 437 (3d Cir. 2005) (plaintiff must present expert

testimony establishing the extent of any unjust enrichment). But Ventura admitted at

trial that he could not do so:

Q. You cant tell us sitting here today whether Chris Kyle made anymoney at all from using your name in his book, can you?

A. Yes, I can.

Q. How much?



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A. How much?I cant tell you how much.

(T-982 (emphasis added).) The best that he could do on this point was testify: I think

Im entitled to damages. I have been damaged. (T-986.) That is say-so, not evidence.

Instead, Ventura invited the Court to award him moneyand the Court did so

without a principled basis for such an award. This case is much likeAllied Erecting &

Dismantling Co. v. Genesis Equip & Mfg., Inc., 2010 WL 4818367, at *4 (N.D. Ohio

Nov. 19, 2010), where the court granted JMOL to the defendant after trial because

plaintiffs introduced no evidence which would give the jury a principled way to find that

[defendant] received a benefit , much less a manner in which to calculate any such

benefit.

Not only is there no evidence to support the $1,345,477.25 figure that the Court

awarded, that figure cannot be derived from anyfigure that eitherparty presented at trial.

It would be bad enough if the Court had simply taken a round percentage (such as 50% or

25%) of some figure that one of the parties put into evidence at trial, as the percentage

itself would have been based upon guesswork. But the Court did not even do that. The

Court observed that its award of damages is approximately 25% of what Ventura

claimed (without evidentiary basis) the book revenues were. That is simply an

observation, not a justification. There is no basis in the evidence to believe that

approximately 25% of the sales were driven by use of Venturas name.

Although damages do not have to be proven with mathematical certainty, Tate v.

Scanlan Intl, Inc., 403 N.W.2d 666, 673 (Minn. App. 1987), the Minnesota Supreme

Court has always insisted that reasonable certainty isrequired,Lester Bldg. Sys. v.



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Louisiana-Pacific Corp., 761 N.W.2d 877, 882 (Minn. 2009). No court has ever held that

noevidentiary basis is needed for the amount of damages awarded.

Venturas counsel argued in closing that the Estate received $6 million in

royalties. That figure was entirely speculative and had no basis in evidence. The figure

was premised on counsels assumption that every single oneof the approximately 1.5

million copies of AMERICAN SNIPERin circulation sold for the list price of $26.99 and

that the Estate received 15% of that amount with respect to each and every book. (T-

2038.)4Ventura introduced no evidenceat trial to support those assumptions. In fact, the

books sold at various prices, the Estate received only 15% of the hardcoverprice (and

only after the first 10,000 copies sold),5the Estate received only a 5-10% royalty on other

book formats (e.g., paperback or electronic), and the Estate split all royalty amounts with

4 Ventura did not have to engage in speculative argument about the Estates receiptof book royalties. He had received sufficient information to establish the amount ofroyalties actually received by the Kyles. Royalty statements that HarperCollins providedto the Kyles and their agent WME for the years 2012 and 2013, which were generatedapproximately 14 weeks after the end of each six-month sales period, had been timelydisclosed to Plaintiff. (SeeDX 215, 220, 226, 227 (attached as Ouellette Decl., Exs. 6, 7,8, 12).) Given that 14-week interval, sales figures for the period ending June 30, 2014,simply were not available during the July 2014 trial, and Plaintiffs counsels commentthat we havent been provided with any figures for 2014 were unwarranted. (T-139.)

5 The Court stated Kyle was entitled to 15% of the revenue (after the first$10,000)which would equal over $6 million in royalties.(Id. at 4 (citing PX 82,attached as Ouellette Decl., Ex. 1), which is Kyles contract with HarperCollins.) Thecontract between HarperCollins and Kyle actually provided that (a) Kyle is only entitledto 15% of the hardcover price after the first 10,000 copies, not $10,000 dollars(as theOrder states), sold; and (b) Kyle is entitled to a lesser percentage of royalties (between5% and 10%) depending on the format of the book sold. (Id.)



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coauthors and literary agents. (SeePX 82-86 (attached as Ouellette Decl., Exs. 1-5).)6

Thus, the Court should not have used $6 million as the denominator when deciding to

award Ventura approximately 25% of the Estates profits (see Dkt. 391 at 4), not only

because there was no evidentiary basis to do so but also because it was simply wrong.

Because Ventura had no evidence of the fact orthe extent of enrichment that Kyle

realized by using Venturas name, his unjust-enrichment claim failed for lack of proof,

and Kyle is entitled to JMOL under Rule 50.

3. Equity would not be served by awarding any amount to Ventura

for unjust enrichment.

When evaluating an unjust-enrichment claim, the Court must consider what equity

and good conscience require.ServiceMaster, 544 N.W.2d at 306. Whatever the verdict on

the truth or falsity of the Scruff Face story, it cannot be denied that AMERICAN SNIPER

would not exist but for the sacrifices made by the Kyle family. AMERICAN SNIPER is not a

book about Ventura; it contains a fleeting reference to a pseudonym that represented him.

Both Chris and Taya Kyle made countless sacrifices for their family and their country,

and they earned every penny they received from telling their story. Equity would not be

served by any unjust-enrichment award.

And the Courts unjust-enrichment award far exceeds the amount by which the

Estate was actually enriched by allsales of the booki.e., even if every salehad been

attributable to Ventura, which Ventura himself disavowed, the award is still excessive.

The net royalty payments to the Kyles (PX 137, 193, 353, 354 (attached as Ouellette

6 All citations in this memorandum to PX are to plaintiffs trial exhibits and to

DX are to defendants trial exhibits.



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Decl., Exs. 14-17)) in 2012 and 2013 (after payments to co-authors and literary agent)

were:

End of six-month period Amount

June 30, 2012 $1,076,719.46December 30, 2012 $ 341,292.06

June 30, 2013 $ 715,370.21

December 30, 2013 $ 120,388.33

TOTAL $2,253,771.06.7

After accounting for federal taxes paid,8and Taya Kyles individual community-property

entitlement to about half of the remaining royalties,9the Estates book-related assets

amount to roughly half of the $1,345,477.25 unjust-enrichment judgment.

The Kyles have donated nearly $100,000 to military families and causes, including

$52,000 to the families of Marc Lee and Ryan Job. (T-134-39, 157.) Ventura has shown

no such charitable inclinations. He has publicly stated since trial that he has no intention

7 See also DX 215, 218, 220, 223, 226-229 (attached as Ouellette Decl., Exs. 6-13).8 Federal taxes were $825,000 in tax years 2012-13 (DX 222, 225, 239 (Ouellette Decl.,Exs. 18-20)), primarily on income from the book. The Court excluded evidence of taxespaid, thereby precluding Kyle from offering this evidence at trial. But amounts that adefendant paid in taxes do not benefit the defendant, so such payments should beconsidered as part of the broad equitable assessment of this claim, for reasons that Kylediscussed in earlier pleadings on this issue. (Dkt. 305.)9 Community property owned at the death of a spouse becomes property equally owned

by the wife and the deceased husbands estate as tenants in common. Pritchard v.Tuttles Estate, 534 S.W.2d 946, 949-50 (Tex. App. 1976). Texas law creates arebuttable presumption that all property possessed by a husband and wife when theirmarriage is dissolved is their community property, and imposes a burden upon oneasserting otherwise to prove the contrary by satisfactory evidence. Tarver v. Tarver, 394S.W.2d 780, 783 (Tex. 1965). Taya Kyle, as an individual, was not a defendant in thisaction, and Venturas judgment cannot extend to her individual share of the communityproperty.



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of donating any of the Courts award to any charitable organization.10

Of the $13,654,329

he grossed in 2002-12, he contributed only $31,702 in cash to charities.11He can choose

to spend his own money however he wants, but it would not be fair or just for him to

strip away the Kyles hard-earned book proceeds when the Kyles have displayed

disproportionately greater generosity.

Ventura has publicly claimed that no one needs to fret about the welfare of Chris

Kyles widow and children because insurance will cover the verdict. (Ouellete Decl., Ex.

33.) In fact, the insurer has denied indemnity coverage for the $1.345 million unjust-

enrichment award. And the Estates own assets have been inadequate to provide security

for a supersedeas bond.

By depleting the Estates assets, the current unjust-enrichment award creates a

gross inequity. This Court should eliminate or reduce its award.

B. The Court should Grant JMOL in Kyles Favor on Venturas

Defamation Claim.

1. Ventura failed to prove falsity.

Ventura had to prove that Kyles statements were materially false.Masson v. New

Yorker Magazine, Inc., 501 U.S. 496, 517 (1991);McKee v. Laurion, 825 N.W.2d 725,

729 (Minn. 2013). Kyle asked the Court to instruct the jury that as a public figure,

Ventura had to prove falsity by clear-and-convincing evidence, rather than by a mere

10 See Ouellette Decl., Ex. 33.

11 SeeDX 166-176 (Ouellette Decl., Ex. 21-31) (2002-12 tax returns; Ventura did

not provide tax returns for 2013), summarized in the demonstrative chart (OuelletteDecl., Ex. 32) shown during defendants closing argument.



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preponderance of the evidence. (Dkt. 358, Nos. 6 & 22; Dkt. 297, Nos. 6, 20, 22.) The

Court declined to do so and instead instructed the jury that Ventura had to prove falsity

by a mere preponderance. (Dkt. 362, Nos. 7, 8B.) That was error.

Applying the correct legal standard of clear-and-convincing evidence, Ventura

failed to prove falsity. In fact, Ventura failed to prove falsity under even the lower

preponderance standard. Because Ventura could not establish an essential element of his

defamation claim under either standard, Kyle is entitled to JMOL.

a. Ventura should have been required to prove material

falsity by clear-and-convincing evidence, and he failed todo so.

The Minnesota Supreme Court has not addressed whether the common law

requires a public figure to prove falsity by clear-and-convincing evidence or a mere

preponderance. The U.S. Supreme Court, after noting a split in authority, ducked the

issue of whether the First Amendment requires it.Harte-Hanks Commcns, Inc. v.

Connaughton, 491 U.S. 657, 661 n.2 (1989). The Eighth Circuit has not decided the

issue.

But most jurisdictions addressing the issue hold that public figures must prove

falsity by clear-and-convincing evidence. See, e.g., DiBella v. Hopkins, 403 F.3d 102,

110-15 (2d Cir. 2005) (collecting cases);Brokers Choice of Am., Inc. v. NBC Universal,

Inc., 757 F.3d 1125, 1128 (10th Cir. 2014); see alsoR. Sack, SACK ON DEFAMATION:

LIBEL,SLANDER,AND RELATED PROBLEMS3:4 at 3-14 to -15 & n. 52 (4th ed. 2010 &

Supp. 2013).



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The majority rule is the better rule because, as the Second Circuit recognized: To

instruct a jury that a plaintiff must prove falsity by a preponderance of evidence, but must

also prove actual malice, which to a large extent subsumes the issue of falsity, by a

different and more demanding standard is to invite confusion and error.DiBella, 403

F.3d at 114 (citation omitted). The danger is that a jury that finds, by a preponderance,

that the defendant falsely reported something that he witnessed is then very likely to

automatically find that the defendant did so with malice. Thus, even though the standard

of proof for the latter is higher, the lower standard of proof will effectively govern both

questions.12

In other words, by applying a different burden to the falsity question than the fault

question, the Court effectively permitted the jury to parlay a preponderance of evidence

of falsity into evidence of reckless disregard, thus vitiating the clear-and-convincing-

evidence requirement for fault. That violates the Constitution and state defamation law.

As for the evidence presented at trial, it does not come close to establishing

material falsity by clear-and-convincing evidence, a standard that requires that the facts

the plaintiff asserts be highly probable,In re Miera, 426 N.W.2d 850, 853 (Minn.

1988), and that the evidence be unequivocal and uncontradicted . Kavanaugh v. The

Golden Rule, 33 N.W.2d 697, 700 (Minn. 1948). The clear-and-convincing-evidence

12 The Court itself used such reasoning in denying Kyles second motion for

summary judgment, concluding that if Kyle falsely claimed to have punched Ventura, thejury could find that he did so maliciously because the punch was an unambiguous fact.(Dkt. 269 at 11.)



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standard usually would require more than one mans word against another.In re

McDonough, 296 N.W.2d 648, 694 (Minn. 1980).

The basic facts Ventura asserted at trial were that he did not make any offensive

statements at McPs in October 2006 and that there was no punch. But the truth of the

punch statements is immaterial for two reasons: 1) Ventura admitted at trial that those

statements did not defame him (T-928), and 2) Kyles statements that he punched

Ventura were not as a matter of law defamatory to Ventura. See, e.g., Sack at 2:4.1;

Mead v. True Citizen, Inc., 417 S.E.2d 16, 17 (Ga. App. 1992) (statement that plaintiff

was sexually assaulted was not defamatory as a matter of law); Sarwer v. Conde Nast

Publns, 237 A.D.2d 191, 191 (N.Y. App. Div. 1997). Saying I punched X does not

defame X because it does not cause others to think less of him (although it may defame

the speaker).13

With the punch statements set aside because they cannot defame Ventura, all

that was left for the jury were Kyles statements that Ventura said he hates America,

the SEALs were killing men and women and children and murdering, and the SEALs

deserve to lose a few. (Dkt. 362 No. 8.) Venturas only witnesses besides himself were

three friends who disqualified themselves for a variety of reasons:

13 Although the punch statement could not serve as a basis for liability, there is no

doubt that the jury considered the truth or falsity of that statement in assessing Kylescredibility, and thus a failure to apply the clear-and-convincing-evidence standard to thisstatement likely prejudiced Kyle, as did the exclusion of testimony from Kyles expert,Rob Meekins, who would have testified to the reliability of the photos that Ventura reliedon to show that he did not have a black eye the day after the evening at McPs.



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Bill DeWitt, a long-time friend of Venturas, testified that he had at least fivedrinks while at McPs, has trouble hearing, and would not have been able tohear what Ventura said unless I was right next to him. (T-544, 550.) DeWittalso testified that he was away from Ventura multiple times during the eveningand that his interactions with Ventura were limited to a few quick

conversations. (T-544-49.) DeWitt did not see Ventura leave, and he did notknow when Ventura did so. (T-556-7.)

Charlene DeWitt testified that for most of the evening, Ventura mingled aboutand that she could only speculate where he was. (T-618.) She testified thatshe spent most of the evening with her back to the parking lot (where Kyleswitnesses placed the short confrontation). (T-616-17.) She too did not knowwhen Ventura left. (T-621, 625.)

Rob Leonard is also a long-time friend of Venturas. (T-667.) He spent only a

brief amount of time talking to Ventura at McPs. (T-672-73.) He concededthat he could have missed a confrontation between Kyle and Ventura and thatit would have been very possible for Mr. Ventura to have had a conversationwith somebody that [he] wouldnt have overheard. (T-673, 676.)

The Estate, meanwhile, introduced testimony from nearly a dozen witnesses who

corroborated all or parts of what Kyle said about the McPs incident; none of them

contradicted anything that he said. Specifically, no fewer than eight witnesses (not

including Kyle) testified that they heard Ventura make offensive statements at McPs

along the lines Kyle described. Rosemary deShazo, for example, a physician with no

connection to the Kyle familyand who had only had one or two drinks that night, testified

that when she told Ventura that she was at McPs to mourn Michael Monsoor, Ventura

said: He probably deserved it. They die all the time. (T-1163, 1168, 1170.) And

Jeremiah Dinnell, who had only three to four drinks that night because he wanted to be

smart and responsible and respectful to the [Monsoor] family, testified that he had

[no] doubt that he heard Ventura say the SEALs deserve to lose a few. (T-1468,

1534; see also T-279; 1123, 1222; 1224, 1296-97; 1579-80, 1678; 1679.)



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Venturas history of making outrageous statements enhanced the credibility of

these witness accounts. Although he testified that he would never say the SEALs

deserve to lose a few, he has said publicly that the SEALs are elite killer squads that

are forced to be part of illegal gangland operations. (T-908.) And he hassaid publicly

that we live in the fascist states of America, that the United States is like communist

East Berlin, that he will no longer salute the flag or stand for the National Anthem, and

that he has no patriotism. (T-917-18, 920.) And he hasstated publicly that the Bush

Administration knew about and even had a hand in the 9/11 terrorist attacks. (T-921-22.)

What Kyle reported Ventura said at McPs in 2006 is not that different from Venturas

prior anti-American, anti-military statements, making Kyles account inherently

plausible.

This was not a case of one mans word against another.McDonough, 296

N.W.2d at 694. This case pitted Ventura against the word of Kyle and eight other

witnesses. Thus, Venturas evidence that he never made offensive remarks was not

highly probable, unequivocal, or uncontradicted, as the law requires.Miera, 426

N.W.2d at 853; Kavanaugh, 33 N.W.2d at 700. Instead, given the testimony of Rosemary

deShazo (who had no dog in the fight because she had no connection to either party),

Dinnell, and others, it was the epitome of improbable. But even if Kyles witnesses

were ignored, it would have been Venturas word against Kyles, and that is not enough

for Ventura to carry his burden underMcDonough.Id.

b. Ventura also failed to prove falsity by a preponderance of

the evidence.



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The discussion immediately above demonstrates that Venturas evidence of falsity

did not even satisfy the lower preponderance standard of proof. The Estate had no

obligation to prove that Kyles account of the incident at McPs was true, Ventura had to

prove the account was false, and he could not rely on minor inaccuracies to do so.

McKee, 825 N.W.2d at 730. Thus, for example, the statements that tables flew, that

Ventura bowed up, or that Ventura had a black eye cannot be a basis for liabilityeven

though Ventura spent an inordinate amount of time focusing on these points at trial.

The gist of Kyles account was that Ventura (1) mouthed off at a bar and (2) got

punchedand only the first of these is actionable. Where the question of truth or falsity

is a close one, a court should err on the side of nonactionability.Liberty Lobby, Inc. v.

Dow Jones & Co., 838 F.2d 1287, 1292 (D.C. Cir. 1988), cited with approval in Hunter

v. Hartman, 545 N.W.2d 699, 705 (Minn. App. 1996). This isnt a close one: The

testimony at trial overwhelming established that Ventura made offensive, anti-military

statements at Monsoors wake, including the statement that the SEALs deserve to lose a

few. Because Ventura failed to prove falsity even under the lower preponderance

standard, Kyle is entitled to JMOL on the defamation claim.

2. Ventura failed to prove actual malice by clear-and-convincing

evidence

As a public figure, Ventura was required to prove actual malice by clear-and-

convincing evidence. Stepnes v. Ritschel, 663 F.3d 952, 963 (8th Cir. 2011). He failed to

do so.



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The Courts review of a jury verdict on this element is more searching than in the

usual case. See, e.g., Levan v. Capital Cities/ABC, Inc., 190 F.3d 1230, 1239 (11th Cir.

1999) (reversing defamation verdict because insufficient evidence of actual malice). That

is because defamation cases involve the line between speech unconditionally

guaranteed and speech which may legitimately be regulated.N.Y. Times Co. v. Sullivan,

376 U.S. 254, 285 (1964). The Court must make an independent examination of the

whole record so as to assure [itself] that the judgment does not constitute a forbidden

intrusion on the field of free expression.Id.(citation omitted.)

Venturas evidence that that Kyle published the statements with knowledge or

reckless disregard of falsity is limited to the following:

The book went through several revisions before it was published (T-2029);

Venturas name was removed from the manuscript only after Kyle was warnedof a libel suit by a friend (T-2030); and

Ventura denies that the events Kyle described happened.

None of these establish actual malice by clear-and-convincing evidence. The first two are

quickly addressed: Revisions are part of the book-writing and editing process. As James

DeFelice testified, you make changes all the time, but no substantive changes were

made to the Scruff Face chapter of AMERICAN SNIPER, and most of the changes were

made by DeFelice for stylistic reasons, not by or at the request of Kyle. (T-1727-28,

1776.) And the warning that Kyle received actually cuts against a finding of actual

malice, because it shows that he maintained his belief in the truth of his account even

after being warned of the risk of a libel suit. As he explained in his testimony, he



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remained (perhaps naively) unconcerned even after Ventura filed suit because you

[c]ant defeat the truth. (T-220.) Further, the suggestion by Venturas attorney that the

warning is what spurred Kyle to remove Venturas name is pure invention. Kyle testified

that he had been telling Jim [DeFelice], my wife, and Scott [McEwen] this whole time I

did not want to use the name. They kept fighting me on it. (T-357.) So he figured if he

told them about the warning he had received, it would get their attention, and they

would back off. (Id.) They finally backed down after I threw that in there, he testified.

(T-359.)

Venturas only other evidence of actual malice is his own, self-serving denials

of Kyles account, and the testimony of three witnesses (who all acknowledge they could

have missed the confrontation). This is not sufficient, as clear-and-convincing evidence

requires more than one mans word against another, especially where mistake cannot

be ruled out.McDonough, 296 N.W.2d at 694. And here, Ventura faces not just one

mans word but that of 11 other eyewitnesses.

The Court previously suggested that merely by proving the story false, Ventura

could establish actual malice. Its order denying Kyles second motion for summary

judgment, the Court concluded that [i]f Ventura proves [the punch] statement was false

it follows that Kyle fabricated it. (Dkt. 269 at 11.) As a preliminary matter, this logic

only shows why (as discussed earlier) it was error for the Court to decline to require

clear-and-convincing evidence of falsity. Moreover, as Kyle also explained earlier, the

punch statement is not defamatory as a matter of law, and therefore cannot be the basis

for liability. Instead, the only defamatory statements at issue are Kyles statements that



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Ventura said offensive things at the wake (Dkt. 362, No. 8), and these are utterly

ambiguous. By all accounts, McPs was a crowded, noisy, emotional place on October

12, 2006. This Court previously observed, it is possible Kyle could have misinterpreted

Venturas comments to him and innocently published a false account of them. (Dkt. 269

at 11.)

As the Supreme Court held inBose Corp. v. Consumers Union, 466 U.S. 485, 512-

13 (1984), a plaintiff cannot simply rely on the theory that because the defendant

witnessed the event and described the event inaccurately, the defendant must have lied.

Just because a defendant is not believed, the Court held, is not a basis for finding actual

malice. Likewise, numerous courts have held that merely because the defendants

account of an event conflicts with the plaintiffs does not necessarily mean that either

person actually believes his own account is false or probably false; it may simply mean

that one of them is mistaken. See, e.g., Long v. Arcell, 618 F.2d 1145, 1148 (5th Cir.

1980);Mahoney v. Adirondack Publg Co., 517 N.E.2d 1365, 1369 (N.Y. 1987); Peeler v.

Spartan Radiocasting Inc., 478 S.E.2d 282, 285 (S.C. 1996).

In short, there was not clear-and-convincing evidence that Kyle knew he was

publishing falsehoods. Venturas denial that he made the defamatory remarks is not

enough to support the verdict given the ambiguous nature of the events and Kyles 11

corroborating witnesses.Bose, 466 U.S. at 512-13. Kyle is therefore entitled to JMOL.



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II. Kyle is Entitled to a New Trial on Venturas Unjust-Enrichment and

Defamation Claims

A. The Court Gave Erroneous Instructions to the Jury, Including

Erroneous Answers to the Jurys Questions.

An erroneous jury instruction warrants a new trial when the error misled the jury

or had a probable effect on the jurys verdict. Slidell, Inc. v. Millennium Inorganic

Chems., Inc., 460 F.3d 1047, 1054 (8th Cir. 2006). The Court improperly instructed the

jury in several respects, any one of which suffices to require a new trial.

1. The Court incorrectly instructed the jury that Ventura had to

prove falsity by a preponderance of the evidence, rather than byclear-and-convincing evidence.

As Kyle explained at p.14-18 above, a defamation plaintiff must prove falsity by

clear-and-convincing evidence, rather than a mere preponderance. Kyle also explained

why Venturas defamation claim fails under the proper clear-and-convincing-evidence

standard, thus entitling Kyle to JMOL. Kyle incorporates those arguments here. But if the

Court does not accept Kyles argument that JMOL is required on this ground, at the very

least the Court erred in instructing the jury that the preponderance standard governed

Venturas proof of falsity, and that error requires a new trial with a proper instruction on

the burden of proof.

The error was not harmless. Erroneous instructions on the crucial issue of burden

of proof call for reversal and a new trial with proper instructions. Wheeling Pittsburgh

Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d 706, 711-14 (8th Cir. 2001)

(reversing verdict when trial courts erroneously instructed jury regarding burden of



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proof); see also Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993) (incorrect instruction

on burden of proof is a structural error that is not subject to harmless-error analysis).

2. The Court incorrectly changed its Instruction No. 8 that the jury

must focus on Venturas offensive statements after Kylescounsel had relied on that instruction in closing argument.

The Court originally instructed the jury in Instruction No. 8 that the defamatory

statements at issue were Kyles statements that Mr. Ventura said he hates America, the

SEALs were killing men and women and children and murdering, and the SEALs

deserve to lose a few. (Dkt. 362, No. 8.) The instruction did not mention Kyles

statement about punching Ventura, which was appropriate because, as a matter of law,

that statement was not defamatory (seep.16 above). Ventura did not object to that aspect

of the instruction. (T-1958-59.)

Relying on the Courts instruction, Kyles counsel argued to the jury that the only

potentially defamatory statements were the three that the Court specified in its instruction

and that Kyles statements about the punch are not defamatory and are not anything you

need to worry about. They are already out of this case. (T-1985-86.)

Only a few hours after beginning their deliberations, the jurors asked whether

Instruction No. 8 required them to analyze the entire sub-chapter that related to Ventura,

or the three statements that the Court specified in the instruction. (Dkt. 369.) The Court

proposed to instruct the jury that it should analyze the entire subchapter, rather than the

three statements that it had originally instructed the jury to analyze. Kyles counsel

objected to the Courts proposed answer to the jury, pointing out that it changed the

Courts original Instruction No. 8 and that he had relied in closing argument on the



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original instruction and would have made a different argument had the Court instructed

the jury that everything Kyle said was open to challenge as defamatory. (T-2068-78.)

Kyle proposed that the Court tell the jurors that the relevant statements were the three

identified in Instruction No. 8 and that the jury could consider Kyles other statements as

the context in which those three statements were made. (T-2078-79.) The Court rejected

Kyles proposal, overruled his objection to the Courts proposed answer, and told the

jurors to analyze all of Kyles statements. (Dkt. 370.)

The Courts answer to the jurys question was erroneous and prejudicial.First, the

Courts answer to the jury changed Instruction No. 8 after Kyles counsel had relied on

the language of the original instruction in closing argument. Modifying a jury instruction

after counsel has relied on the instruction in closing argument to the jury is prejudicial.

United States v. Descent, 292 F.3d 703, 707 (11th Cir. 2002); United States v. Wander,

601 F.2d 1251, 1262 (3d Cir. 1979); Wright v. United States, 339 F.2d 578, 580 (9th Cir.

1964). Kyles counsel would have argued differently had he known that the Court was

going to change Instruction No. 8 as it did in response to the jurys question. Worse, the

Courts answer to the jury wrongly implied that Kyles counsel had misled themin his

closing when he told them that the punch statements were out of this case. (T-1986.)

Second, the Courts answer to the jurys questionand its corresponding change to

Instruction No.8was substantively incorrect. Instruction No. 8 correctly focused the

jurys analysis on the three offensive statements that Kyle said Ventura made because

those were the only statements in the subchapter that were potentially defamatory. As



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discussed at p.16 above, Kyles statements about punching Ventura as a matter of law

were not defamatory.

Proper identification of the potentially defamatory statements was crucial in this

case. The Court initially got it right in Instruction No. 8, but got it wrong in answering the

jurys question. The Courts error was inherently prejudicial, and Kyle is entitled to a

new trial.

3. The Court incorrectly declined to instruct the jury that each of

Kyles statements had to satisfy all three elements of defamation.

Where, as here, some of the component parts of a defendants story are not

actionable, the jury must analyze each actionable statement separately to determine

whether each statement satisfies all three elements of a defamation claimi.e., that each

statement was defamatory, materially false, and made with actual malice. Cf. Moore v.

Hoff, 821 N.W.2d 591, 599 (Minn. App. 2012) (holding that when constitutionally

protected speech is intertwined with tortious speech or conduct, the court must

adequately disclose the evidentiary basis for concluding that there was independent

tortious activity (quotingNAACP v. Claiborne Hardware Co., 458 U.S. 886, 933-34

(1982))). Kyle proposed an instruction that would have told the jury just that. (Dkt. 297,

No. 20; Dkt. 358, No. 20.) But the Court declined the instruction, and that was error.

By improperly instructing the jury to analyze the story as opposed to analyzing

each potentially actionable statement (Dkt. 362, No. 8; Dkt. 370), the Court paved the

way for Ventura to mix and match his way to a defamation verdict by enabling the jury

conclude as follows:



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Statement Defamatory? Materially false? Actual malice?

Kyle punchedVentura

No Yes Yes

Ventura madeoffensive

statements,including that theSEALS deserveto lose a few

Yes No No

The Courts instruction allowed the jury to conclude that the story as a whole contained

statements that collectivelysatisfied all three elements of a defamation claim, even

though none of the individual statements did. That is contrary to the law.

This error was not harmless. The First Amendment requires rigorous scrutiny of

defamation verdicts to ensure that they are above reproach. (Seep.20 above.) The fact

that the jury was divided makes it even more likely that erroneous instructions affected

the jurys verdict.

4. The Court incorrectly declined to instruct the jury that evidence

of lack of retraction or investigation of a statement does notestablish actual malice.

A defendants failure to retract allegedly defamatory statements is not adequate

evidence of actual malice. Sullivan, 376 U.S. at 286. Subsequent decisions have

repeatedly held that the failure to retract is not evidence of actual malice. See, e.g.,

Connelly v. Nw. Publns, Inc., 448 N.W.2d 901, 905 (Minn. App. 1989);McFarlane v.

Sheridan Square Press, 91 F.3d 1501, 1515 (D.C. Cir. 1996). This is in part because

constitutional element of actual malice requires that the defendant had actual knowledge

that his statements were false or entertained serious doubts about their truthfulness at the

time of publication.Bose, 466 U.S. at 512; Secord v. Cockburn, 747 F. Supp. 779, 792



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(D.D.C. 1990). The defendants decision not to retract obviously comes afterpublication,

and is therefore irrelevant to his mental state at the timeof publication. Moreover, failure

to retract or investigate could just as easily be construed as evidence that the defendant

truly believed his statements and therefore did not act with actual malice. See, e.g.,

Connelly, 448 N.W.2d at 905;MMAR Grp., Inc. v. Dow Jones & Co., Inc., 987 F. Supp.

535, 548 (S.D. Tex. 1997).

At trial, Venturas counsel began to question witnesses about the Kyles or

HarperCollinss failure to retract or request removal of the Scruff Face subchapter. (T-

141, 144, 1002-03, 1843-45, 1850-51, 1877-81.) Kyle objected that such evidence was

irrelevant and prejudicial, and therefore inadmissible under Rules 402 and 403. Kyle also

asked the Court to give a curative instruction that would tell the jury as a matter of law

that refusal to retract is not evidence of actual malice. (Dkt. 354.) The Court rejected

Kyles proposed curative instruction and allowed Ventura to continue introducing the

irrelevant evidence (a subject that Kyle addresses further at p.37-38 below). (T-1967-68.)

[W]hen a proposed instruction addresses an issue that is crucial to a fair

presentation of the case to the jury, the trial court has the obligation to give an

appropriate instruction on that issue, [although] not necessarily in the wording of the

proposed instruction. Walker v. AT&T Techs., 995 F.2d 846, 849 (8th Cir. 1993). The

Courts failure to instruct the jury on the legal effect (or lack thereof) of evidence of lack

of retraction was incorrect and prejudicial and warrants a new trial under Rule 59.



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5. The Court incorrectly declined to give the jury further

instruction on the meaning of serious doubts in response to the

jurys question about that term.

When a jury makes explicit its difficulties a trial judge should clear them away

with concrete accuracy. Bollenbach v. United States, 326 U.S. 607, 612-13 (1946). The

Court failed to do that on July 24, when the jury asked a question showing that it was

having difficulty with the Courts instruction that Ventura had to prove that Kyle had

serious doubts about the storys truth. (Dkt. 362, No. 8C.) The jury asked what

serious doubt meant. (Dkt. 373.) Kyle asked the Court to answer the jurys question,

and provided Supreme Court cases that have explained the meaning of the term serious

doubt. (T-2093-96.) The Court declined to answer the jurys question and instead told

the jurors: There is no legal definition of serious doubt. You will have to rely on your

common sense in interpreting and applying the standard set forth in Instruction 8C.

(Dkt. 374.)

The Courts response to the jurys question was error. There isa legal definition of

serious doubt, and Kyle provided it to the Court when the jury asked its question. The

Supreme Court has explained more than once that serious doubt[] in this context means

a high degree of awareness of probable falsity.Harte-Hanks, 491 U.S. at 667; Gertz,

418 U.S. at 334 n.6; St. Amant v. Thompson, 390 U.S. 727, 731 (1968).

The Courts refusal to explain the meaning of serious doubt prejudiced Kyle.

The jurys question strongly suggested that it had ruled out the first two possibilities in

item 3 of Instruction 8Ci.e., that it had concluded that Kyle did notkno[w] the story

was false or believ[e] the story was false and that it was wrestling with whether he



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published with serious doubts about falsity (otherwise, why would the jury have

bothered to ask the question?). The Courts refusal to assist the jury with an instruction

that they were struggling with, when there was a readily available and legally correct

answer, forced the jury to guess at the meaning of the crucial phrase, rather than basing

its decision on what the law required.

B. The Court Made Erroneous Evidentiary Rulings that Prejudiced Kyle.

1. The Court improperly admitted evidence that insurance covered

Venturas claims and paid Kyles attorneys fees.

Even before trial started, Kyle suspected that Ventura was going to try to tell the

jury that there was insurance coverage for Venturas claims, with the obvious goal of

having the jury believe that any award of damages would come not from Kyle, but from a

faceless insurance company. The existence and extent of insurance coverage was

obviously irrelevant under Fed. R. Evid. 411. Kyle raised the issue at the July 3, 2014,

pretrial conference, and Venturas counsel pledged not to make any mention of the

existence of insurance unless the door is first opened. (7/3/14 T-16.)

But Venturas counsel went back on that promise during trial, when he asked the

Court to let him inquire into insurance evidence through cross-examination of two

representatives of the publisher, HarperCollins, even though neither witness had opened

the door to the subject. Counsel obviously wanted to tell the jury about insurance for the

improper reason that it might cause them to loosen the purse strings in making an award.

And the Court allowed counsel to do just that, accepting Venturas argument that

evidence of insurance was relevant to show the witnesses bias. (T-1702-03.) That



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ruling was flatly incorrect and caused obvious prejudice to Kyle. Only a new trial where

prejudicial insurance information is properly excluded can cure the error.

Rule 411 states:

Evidence that a person was or was not insured against liability is notadmissible to prove whether the person acted negligently or otherwisewrongfully. But the court may admit this evidence for another purpose,such as proving a witnesss bias or prejudice or proving agency, ownership,or control.

The baseline principle of Rule 411, of course, is that evidence that a person was or was

not insured is notadmissible. The reasoning behind this rule with regard to testimony or

argument concerning the defendants insurance or indemnity protection is that it will

result in an unduly generous award of damages by the jury. Griffin v. Hilke, 804 F.2d

1052, 1057 (8th Cir. 1986); see alsoFed. R. Evid. 411, Advisory Committee Notes, 1972

Proposed Rules (knowledge of the presence or absence of liability insurance would

induce juries to decide cases on improper grounds).

The Eighth Circuit has emphasized that the injection of the insurance or

indemnity [evidence] leading to the conclusion that the damages sued for have been or

will be taken care of by an insurance or indemnity company is utterly repugnant to a fair

trial or to the securing of the rendition of a just verdict.Halladay v. Verschoor, 381

F.2d 100, 112 (8th Cir. 1967) (emphasis added). [I]nterjection of the fact that the

defendant is protected by insurance or other indemnity may be prejudicial error requiring

reversal. Griffin, 804 F.2d at1057; see also Eichel v. N.Y. Cent. R. Co., 375 U.S. 253,

255 (1963) (It has long been recognized that evidence showing that the defendant is

insured creates a substantial likelihood of misuse.).



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The baseline rule of inadmissibility is subject to certain exceptions, including an

exception for circumstances when evidence of insurance prov[es] a witnesss bias. Fed.

R. Evid. 411. Courts have found that insurance information may be admissible to show

bias when the witness is employed by the insurer that covers the plaintiffs claim.That is

because the witnesss employer (the insurer) has a financial stake in the outcome of the

case, which might give the employee incentive to skew her testimony in her employers

(the insurers) favor. See, e.g., Charter v. Chleborad, 551 F.2d 246 (8th Cir. 1977). But

this is permissible only when the witness has a substantial connection with the insurer.

Seee.g.,Bonser v. Shainhotlz, 3 P.3d 422, 425-26 (Colo. 2000) (collecting cases).

That was not at all the situation here. HarperCollinss witnesses were not

employed by the insurer and had no substantial connections with the insurer. Instead,

they were employees of an insured(i.e., the publisher, which was not a defendant in this

case in any event), notthe insurer. And while their employmentby HarperCollins might

raise an argument that they were motivated to favor HarperCollins in their testimony, any

bias in that regard had nothing to do with insurance coverage; it was the normal bias

that an employee would have in favor of his employer. Thus, the HarperCollins witnesses

had absolutely noincentive to skew their testimony because of insurance coverage.

If the rationale were correct that merely having insurance coverage inevitably

leads to bias, then the existence of insurance would be presumptively admissible in every

case where a party has insurance coverage, thereby swallowing the general rule excluding

such evidence. The defendants insurance coverage would be admissible in every routine

slip-and-fall or car-crash case in which the defendant testified, on the ground that the



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presence of insurance coverage would bias the defendants testimony. Rule 411 would

be a dead letter if that were the case.

Even if the insurance evidence had any relevance to show bias, that relevance was

far outweighed by the prejudicial effect of the evidence, so the evidence should have

been excluded under Rule 403. Fed. R. Evid. 411, Advisory Committee Notes, 2011

Amendments (if [evidence of insurance is] offered for a purpose not barred by the Rule,

its admissibility remains governed by the general principles of Rules 402, 403, 801,

etc.). The prejudicial effect of evidence of insurance is too obvious to require citation,

but seeEichel, 375 U.S. at 255; Griffin, 804 F.2d at 1057; andHalladay, 381 F.2d at 112,

for a few examples. And that prejudice far outweighed any legitimate value of such

evidence.

Admitting evidence of insurance is sometimes viewed as harmless error if the

evidence came in accidentally or offhandedly. But neither of those things is present here.

Venturas counsel specifically asked the Court for permission to introduce the evidence,

and intentionally highlighted it in closing, so its admission was not accidental.

Making matters worse is the fact that the two witnesses whom Ventura questioned

about insurance both testified that they had no knowledge of insurance coverage. (T-

1812, 1880.) Thus, even if the presence of coverage could conceivably have produced

bias in the first place (it could not have, as discussed above), once the witnesses testified

that they had no knowledge of it, all further inquiry should have ceased and the matter

should never have been raised again, including in closing argument. But after one witness

testified to have no knowledge of insurance, Venturas counsel continued to elicit



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information about the coverage of attorneys fees, which had no conceivable relevance

and which the witness also knew nothing about. (T-1811-12.) Then, in closing,

Venturas counsel labeled the HarperCollins witnesses as biased and again improperly

focused the jurys attention on insurance issue, parlaying their lack of knowledgeof

insurance into an argument that Chris Kyle is an additional insured for defamation under

the publishers insurance policy. (T-2032-33.)

The Courts admission of insurance evidence was utterly repugnant to a fair trial

or to the securing of the rendition of a just verdict.Halladay, 381 F.2d at 112. The Court

should grant Kyle a new trial under Rule 59.

2. The Court improperly excluded expert reputation testimony

from Professor David Schultz.

The plaintiff in a defamation lawsuit is alleging that his reputation was injured.

Thus, it should go without saying that the defendant is allowed to introduce evidence

regarding the plaintiffs reputationand especially evidence of the effect of the allegedly

defamatory statements on the plaintiffs reputation. For example, inLongbehn v.

Schoenrock, 2010 WL 3000283, at *5-6 (Minn. App. Aug. 3, 2010), the court held that

evidence of the plaintiffs bad reputation was highly probative in a defamation case and

that the defendant could introduce evidence of the plaintiffs reputation. The court further

held that testimony concerning reputation has a proper foundation as long as the witness

is familiar with the common repute of such plaintiff in the local community.Id.

Ventura agreed with that basic proposition in this very case, acknowledging in a pleading



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that evidence of what the public is saying is relevant to prove damage to reputation.

(Dkt. 314 at 2.)

Kyle retained David Schultz to opine on those very topicsspecifically, Venturas

reputation before and after Kyles book came out. Schultz, a professor of American

politics with a Ph.D. and J.D., has extensively studied Venturas career as a politician and

personality, and has written a book about Ventura. (Dkt. 211-3 at 1-2.) Schultz opined

that there was no evidence that Kyles statement shifted the aggregate public opinion in

a way that has damaged Jesse Venturas reputation or prospects as a political candidate,

political commentator, author, speaker, television host and personality. (Dkt. 211-3 at 1-

2.) He further explained that Kyles statements seemed to have confirmed pre-existing

views of Ventura. (Id. at 9.)

Ventura failed to make a timely motion underDaubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 587-88 (1993), to exclude Schultzs testimony (see

Dkt. 179 at 2 (deadline for such motions)), which should have been reason enough for the

Court to allow it and made it error for the Court to exclude it. Instead, Ventura made a

motion in limine to exclude the testimony. And the Court granted the motion to the

extent it seeks to exclude David Schultz from testifying as to his opinions and

conclusions as an expert witness under Federal Rule of Evidence 702. (Dkt. 331 at 1.)

That suggested that the Court would allow Schultz to testify to his lay opinion about

Venturas reputation under Rule 701, but the Court closed off that avenue at trial, ruling

that Schultz could offer noopinion and would be restricted to essentially reading Internet



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comments and postings to the jury. (T-1706; 1928-29.) The Courts rulings were

incorrect and prejudicial to Kyle.

It is reversible error for a court to exclude an expert witness who satisfies

Dauberts requirements. Childrens Broad. Corp. v. Walt Disney Co., 357 F.3d 860, 864

(8th Cir. 2004). The Court rejected Schultzs expert testimony on the ground that he just

look[ed] at [some] stuff and [said] heres what I think, and that there was nothing to

indicate that the content analysis of random online comments, [wa]s reliable. (Dkt. 333

at 8-10.) Those statements seriously understate and deprecate what Schultz actually did.

In reaching his opinion on Venturas reputation, Schultz combined his years-long study

of Venturas career with a content analysis on thousands of public comments contained in

(1) the websites Ventura himself identified through discovery, and (2) additional websites

located through independent searches. (Dkt. 211-3 at 2.) He also looked at two scientific

surveys conducted by Public Policy Polling before and after Kyles book, which showed

that Venturas unfavorable rating actually went downafter the book came out. (Id. at

4.) As Schultz explained in his expert report and at his deposition, content analysis is a

very well established methodology for trying to understand trends in the media. (Dkt.

211-2 at 23:5-8; see alsoDkt. 308-2 at 122; Dkt. 211-3 (citing treatises discussing

content analysis)). Ventura offered no authority that content analysis is not an acceptable

methodology in circumstances like these.

Thus, the Court improperly invade[d] the province of the jury, whose job it is to

decide issues of credibility and to determine the weight that should be accorded

evidence. United States v. Vesey, 338 F.3d 913, 917 (8th Cir. 2003). The Court should



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have given Ventura the traditional and appropriate remedy of [v]igorous cross-

examination, presentation of contrary evidence, and careful instruction on the burden of

proof, not exclusion of the evidence.Daubert, 509 U.S. at 595. The weight to be given

Schultzs expert opinion was for the jury.

At the very least, the Court should have allowed Schultz to offer his lay opinion

about Venturas reputation. Rule 701 allows a lay witness to give his opinion if it is based

on his perception and is helpful either in understanding his testimony or in determining

factual issues. Evidence of Venturas reputation was obviously relevant, and the Court

and Ventura both acknowledged that Schultz had knowledge of Venturas reputation in

the local community. (T-1707.) Thus, the Court erred by disallowing anyopinion

testimony from Schultzwhether expert or layregarding his opinions of Venturas

reputation in the community and the effect (if any) that Kyles statements had on

Venturas reputation. This error can only be corrected by a new trial where Schultz is

allowed to testify.

3. The Court improperly admitted evidence that Chris Kyle

refused to retract his statements and that HarperCollins failed to

investigate the statements.

As Kyle explained at p.27-28 above, evidence of a defendants failure to retract

an allegedly false and defamatory statement is not evidence of actual malice.

Nonetheless, the Court allowed Venturas counsel, over Kyles objections, to question

witnesses about the Kyles or HarperCollinss failure to retract or request removal of the

Scruff Face subchapter. (T-141, 144, 1002-03, 1850-51.) This evidence was irrelevant

and prejudicial, and the Court should not have excluded it under Rules 402 and 403.



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In addition, Venturas counsel asked more than a dozen questions of

HarperCollins employees about whether the company had a lot of lawyers on staff,

employed fact checkers, was Ventura was asking for a retraction and an apology, or

ever fact-checked the manuscript. (T-1843-1845; 1850-51, 1877-81.) All of this evidence

was irrelevant because it focused on whatHarperCollinsdid to investigate the accuracy

of Kyles statements. Any action or inaction by HarperCollins is irrelevant because actual

malice rests on the defendantsstate of mind at the time of publication, not the actions of

a third party such as HarperCollins. The Court allowed Ventura to suggest that

HarperCollinss failure to validate Kyles statements somehow showed that Kyleacted

with actual malice in publishing them. That is flatly incorrect. And the more than 25

questions Venturas counsel was permitted to ask on these topics were significant and

warrant a new trial.

C. The Courts Submitted an Improper Special Verdict Form to the Jury.

Kyle proposed a special verdict form that asked the jury to determine defamatory

meaning, falsity, and constitutional malice separately as to each of Kyles statements.

(Dkt. 297.) The Court rejected Kyles form and instead simply asked the jury to state

generally whether Jesse Ventura prove[d] his claim of defamation against Chris Kyle.

In libel cases, when jurors can easily misunderstand more law in a minute than

the judge can explain in an hour, the special verdict form may be a particularly useful

check against jury misconstruction or misapplication of a standard as uncommon as

malice. Tavoulareas v. Piro, 817 F.2d 762, 808 (D.C. Cir. 1987) (Ginsburg, J.,

concurring). Thus, special verdict forms are routinely used in defamation actions. See,



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e.g.,Harte-Hanks 491 U.S. 657;Newton v. Natl Broad. Co., 930 F.2d 662, 667 (9th Cir.

1990). A special verdict question on each particular statement here would not only have

helped the jury, it also would have helped this Court and any reviewing court in

independently reviewing to the jurys verdict, as courts are required to do in defamation

cases. Sullivan, 376 U.S. at 285.

As Kyle discussed at p.23-30 above, the jury instructions on defamation proved to

be confusing to the jury, resulting in a number of questions. (Dkts. 369, 371, 375-78,

380.) Without a special verdict form that broke out each of the statements at issue, it is

unclear whether the jurys verdict was legally proper. If the Court had used Kyles

proposed form, it would have been clear which statements (if any) the jury concluded met

all of the elements of a defamation claim and therefore supported a verdict. Instead, we

are left wondering whether the jury employed more of a mix-and-match approach, as

discussed above at p.26-27. The Courts review of a defamation verdict should be based

on what the jury didfind, not on speculation about what the jury mayhave found.Harte-

Hanks, 491 U.S. at 690. And because of the erroneous special verdict form, we cannot

know the former for certain.

D. The verdict is against the clear weight of the evidence

A new trial is warranted where the verdict is against the clear weight of the

evidence, clearly excessive, or the result of passion or prejudice.Jones v. Natl Am.

Univ., 608 F.3d 1039, 1048 (8th Cir. 2010) (citation omitted). In determining whether a

verdict is against the weight of the evidence, the trial court can rely on its own reading of

the evidenceit can weigh the evidence, disbelieve witnesses, and grant a new trial



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even where there is substantial evidence to sustain the verdict. White v. Pence, 961

F.2d 776, 780 (8th Cir. 1992) (citations omitted). While a trial court may not completely

reweigh the evidence and set aside a jury verdict simply because the court would have

reached a different conclusion, the trial court need not (as it must on a motion for JMOL)

take all inferences in favor of the prevailing party.Id.

Kyle explained in Section I above why the evidence as a matter of law did not

support the unjust-enrichment or defamation verdicts, even taking the evidence in the

light most favorable to Ventura. Even if the Court rejects those arguments as a basis for

granting JMOL, they show that the Court should grant a new trial on the ground that the

verdict is against the greater weight of the evidence, as the standard governing such a

motion is less stringent than the standard governing a motion for JMOL.



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Dated: September 4, 2014 FAEGRE BAKER DANIELS LLP

By: /s/ Leita WalkerJohn P. Borger, #9878Leita Walker, #387095

Charles F. Webber #215247Amy M. Gernon #303239Holly A. Miller #3955372200 Wells Fargo Center90 South Seventh StreetMinneapolis, MN 55402Telephone: (612) 766-7000Fax: (612) [email protected]@FaegreBD.com

[email protected]@[email protected]

Attorneys for Defendant Taya Kyle,Executor of the Estate of Chris Kyle



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UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Jesse Ventura, a/k/a James G. Janos, an

individual,

Plaintiff,

vs.

Taya Kyle, as Executor of the Estate of

Chris Kyle,

Defendant.

Civil No. 12-cv-0472 RHK/JJK

LR. 7.1(c) WORD COUNT

CERTIFICATE OF COMPLIANCE

I, Leita Walker, certify that the Memorandum in Support of Defendants Motion

for Judgment as a Matter of Law or a New Trial filed on September 4, 2014 complies

with Local Rules 7.1(f) and 7.1(h).

I further certify that, in preparation of this memorandum, I used Microsoft Word

2007 and that this word processing program has been applied specifically to include all

text, including headings, footnotes, and quotations in the following word count.

I further certify that the above referenced memorandum contains 10,936 words.

CASE 0:12-cv-00472-RHK-JJK Document 406-1 Filed 09/04/14 Page 1 of 2


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Dated: September 4, 2014 FAEGRE BAKER DANIELS LLP

By: /s/ Leita Walker

John P. Borger, #9878Leita Walker, #387095

Charles F. Webber #215247

Holly A. Miller #395537

Amy M. Gernon #303239

2200 Wells Fargo Center

90 South Seventh Street

Minneapolis, MN 55402

Telephone: (612) 766-7000

Fax: (612) 766-1600

[email protected]@FaegreBD.com

[email protected]

[email protected]

[email protected]

Attorneys for Defendant Taya Kyle,

Executor of the Estate of Chris Kyle

US.54817971.01

CASE 0:12-cv-00472-RHK-JJK Document 406-1 Filed 09/04/14 Page 2 of 2
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

Taya Kyle Motion for New Trial

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Transcript of Taya Kyle Motion for New Trial