Ventura v. Kyle

• Citation: 825 F.3d 876
• Decision Date: 13 June 2016
• Docket Number: No. 14–3876,14–3876
• Parties: Jesse Ventura, also known as James G. Janos, Plaintiff–Appellee v. Taya Kyle, as Executor of the Estate of Chris Kyle, Defendant–Appellant. 33 Media Companies and Organizations; The First Amendment Scholars; Thomas More Law Center, Amici on Behalf of Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

825 F.3d 876

Jesse Ventura, also known as James G. Janos, Plaintiff–Appellee

v. Taya Kyle, as Executor of the Estate of Chris Kyle, Defendant–Appellant.33 Media Companies and Organizations; The First Amendment Scholars; Thomas More Law Center, Amici on Behalf of Appellant.

No. 14–3876

United States Court of Appeals, Eighth Circuit.

Submitted: October 20, 2015

Filed: June 13, 2016

Rehearing and Rehearing En Banc Denied Aug. 2, 2016.

Lee Levine, Washington, DC, argued, John Philip Borger, Charles F. Webber, Mary A. Walker, of Minneapolis, MN, on brief, for appellant.

David Bradley Olsen, argued, David Bradley Olsen, Court J. Anderson, John Norbert Bisanz, Jr., Benjamin J. Hamborg, Minneapolis, MN, on brief, for appelle.

Floyd Abrams, New York, NY, Leonard M. Niehoff, Erin Elizabeth Mersino, Richard Thompson, Ann Arbor, MI, Paul Mathew Mersino, Detroit, MI, Susan Buckley, Merriam Mikhail, New York, NY, amicus on behalf of appellant.

Before RILEY, Chief Judge, SMITH and SHEPHERD, Circuit Judges.

RILEY

, Chief Judge.

Before his death, Chris Kyle was a sniper for a United States Navy Sea, Air and Land (SEAL) team.¹ He authored the book American Sniper: The Autobiography of the Most Lethal Sniper in U.S. Military History (American Sniper ). In the book, Kyle described punching a “celebrity” referred to as “Scruff Face” who was making offensive remarks about the SEALs at a gathering following the funeral of a SEAL killed in combat. In interviews about the book, Kyle revealed “Scruff Face” was James Janos, better known as Jesse Ventura. Ventura, who was at the bar but denied a fight occurred, sued Kyle in this diversity action² under Minnesota law for defamation, misappropriation, and unjust enrichment, alleging Kyle fabricated the incident. The jury found in favor of Ventura on the defamation claim, awarding $500,000 in damages, and found in Kyle's favor on the misappropriation claim. Serving in its advisory role as to the equitable unjust-enrichment claim, the jury recommended an award of approximately $1.35 million, which the district court adopted. Kyle appeals the district court's denial of his motion for judgment as a matter of law or a new trial. Having jurisdiction pursuant to 28 U.S.C. § 1291

, we reverse and remand, in part.

I. BACKGROUND

The alleged altercation underlying this action occurred at McP's, a bar in Coronado, California, where Kyle and some friends were gathered in October 2006 after the funeral of a fellow SEAL. According to Kyle,

Scruff started running his mouth about the war and everything and anything he could connect to it. President Bush was an asshole. We were only over there [Iraq] because Bush wanted to show up his father. We were doing the wrong thing, killing men and women and children and murdering....

Scruff said he hates America.

Kyle approached Scruff and asked him to “cool it.” “You deserve to lose a few,” Scruff replied. Kyle was “calm,” but Scruff swung at him. Kyle “laid him out. Tables flew. Stuff happened. Scruff Face ended up on the floor. [Kyle] left.”

On January 4, 2012, the day after his book was released, Kyle was interviewed on a radio program and the television program “The O'Reilly Factor” to promote the book. During the radio interview, one of the hosts said there was a caller on the line who was saying Kyle was “in a bar fight with Jesse [Ventura],” a political commentator who formerly served as the Governor of Minnesota and in the Navy special forces. When asked if this was true, Kyle confirmed it was. During the television interview later that day, host Bill O'Reilly asked Kyle, “[Y]ou say you knocked Jesse Ventura to the floor with a punch. Now, you don't mention his name, but everybody knows who that is.... [T]hat happened?” Kyle again confirmed he “knocked him down.” In the interviews, Kyle described the events similarly to the way he did in the book, adding that after he punched Ventura, “I took off running, because the cops were already outside.... [C]ops were watching, they saw the whole thing happen.”

Kyle's editor described the publicity resulting from Kyle's radio interview as “priceless” in an email, and Kyle's publicist agreed the publicity response was “HOT, hot, hot!” The book was by all accounts a success. In 2014, Kyle's editor testified 1.5 million copies had been sold.

After the interviews, Ventura sued Kyle for defamation, misappropriation, and unjust enrichment on the grounds that Kyle fabricated the entire interaction with Ventura. Kyle moved for summary judgment on Ventura's claims of misappropriation and unjust enrichment, emphasizing he had “provided the Court with case after case, all rejecting these types of ... claims in the context of expressive works.” The district court denied the motion.

At the close of discovery, Kyle moved for summary judgment on all claims. The district court concluded Kyle was not entitled to summary judgment on Ventura's defamation claim because “Ventura has proffered sufficient evidence upon which a jury could conclude that Kyle's statements [in the book] were materially false.” The district court noted there were conflicting eyewitness accounts of the alleged incident, and photos of Ventura from the following day showed no visible injuries. The district court also rejected Kyle's rehearsed motion as to the misappropriation and unjust-enrichment claims.

The case was tried in summer 2014, almost eight years after the alleged altercation. Ventura testified he had a normal evening without any verbal or physical altercation. Three people who were with him that evening also testified they witnessed no altercation. However, these people were not in Ventura's immediate vicinity for the entire evening, and one testified he was hard of hearing.

Ventura also introduced evidence Kyle told different versions of the story. For example, in the book, Kyle alleged Ventura took the first swing, but he did not mention that in his interviews. Kyle mentioned in the interviews, but not the book, that the police saw the whole incident. Ventura produced a letter from the Coronado police department stating there was no police record mentioning Ventura's or Kyle's name. Ventura introduced photos of himself at a graduation event the day after the alleged incident that show no obvious injuries, despite Kyle having written “rumor has it he showed up at the BUD/S graduation with a black eye.”

The jury watched part of Kyle's video-recorded deposition recounting his version of the evening's events. Kyle also presented several witnesses who were at the bar that evening, who testified they either heard Ventura make the alleged comments, witnessed some type of physical altercation, or both. All of Kyle's witnesses were current or former SEALs or friends or family of SEALs.

At least seven witnesses testified they overheard some of Ventura's remarks, and offered generally similar accounts of what Ventura said. At least seven witnesses testified they saw Kyle (or an unidentified man, for those who did not know Kyle) punch Ventura; saw Ventura on the ground or getting up off the ground; or heard a “commotion” or “yelling.” Witness estimates of the timing and location of the incident were not consistent.

When questioned on cross-examination, Ventura agreed he had previously made controversial comments such as, “More and more we're seeing an Army run by Christianist extremists and an accompanying cadre of what can only be described as neo-Nazis.”

Two witnesses from HarperCollins, American Sniper 's publisher, also testified at trial. Sharyn Rosenblum, HarperCollins's publicist for Kyle's book, testified about the general process of preparing the book for publication and said she did not know who “Scruff Face” was when she read the manuscript of the book, and did not ask. She testified she did not see the “Scruff Face” subchapter as relevant to her publicity campaign for the book but she wanted to focus on “the themes of the war, military service, love of country, [and] the patriotism to serve one's country.” She was “surprise[d]” when Ventura's name came up in Kyle's interview. When asked whether “the Ventura story ha[d] any impact on the success of the book,” Rosenblum replied it was “a very insignificant part” and did not impact the book's success. Kyle's editor, Peter Hubbard, testified the “Scruff Face” story was not relevant to his decision to enter into a book contract with Kyle. Hubbard indicated he never suggested incorporating that subchapter into HarperCollins's marketing campaign for the book. He characterized the “mention of Jesse Ventura” as having a “negligible” effect on the success of the book.

Ventura's counsel sought to impeach the HarperCollins witnesses by questioning them about Kyle's and HarperCollins's insurance coverage to show HarperCollins had “a direct financial interest in the outcome of th[e] litigation” and the witnesses were biased in favor of Kyle. See Fed. R. Evid. 411

(permitting questioning about insurance coverage to show a witness's bias). Kyle's counsel objected to this testimony prior to its introduction, but the district court allowed it. See Fed. R. Evid. 403 (providing that otherwise admissible evidence may be excluded “if its probative value is substantially outweighed by a danger of ... unfair prejudice”).

Ventura's counsel asked Rosenblum, “[A]re you aware that the legal fees for the estate's attorneys ... are being paid by the insurance company for HarperCollins?” and “Are you aware that HarperCollins has a direct financial interest in the outcome of this litigation because they are providing the insurance?” Rosenblum denied knowledge of HarperCollins's insurance policy. Ventura's counsel asked Hubbard if he knew about any insurance provisions in Kyle's contract with HarperCollins. He said he did not. Kyle's counsel moved for a mistrial after both inquiries. The district court denied both motions.

Then, during closing arguments, Ventura's counsel opined:

Sharyn Rosenblum testified that she did not know her company's insurer is on

...