The $1.8 million defamation verdict a jury awarded Jesse Ventura last year should not be overturned, his attorney told the 8th U.S. Circuit Court of Appeals on Monday, in answer to an appeal brought by the estate of “American Sniper” author Chris Kyle.

Despite the outcry from media organizations that denounced the verdict, this is not a classic First Amendment case where a media defendant relayed important public information obtained from a third party, Ventura’s attorney David Olsen argued in a brief.

Rather, it’s a case of an author, the late Chris Kyle, who published a first-person account of punching a “celebrity” he later identified as Ventura.

Olsen wrote that it was a lie and that Kyle knowingly fabricated the story.

Kyle’s account went viral within a few days of the book’s publication, and to the top of the New York Times bestseller lists, Olsen said, after Kyle named the former Minnesota governor in media interviews as the man he decked at a California bar.

Kyle claimed Ventura made derogatory remarks about the war in Iraq, President George W. Bush and the Navy SEALs.

In urging that it not be overturned, Olsen wrote, “Appellate courts view the evidence in the light most favorable to a jury’s verdict and will not set it aside unless there is a complete absence of probative facts to support it.

“Based on eyewitness testimony, photographs and other documents, the jury found that Kyle’s firsthand account of the alleged incident was materially false and was published with actual malice,” he wrote.

Of the $1.8 million verdict, the jury awarded Ventura $500,000 for defamation and $1.3 million for “unjust enrichment,” roughly 25 percent of the $6 million in profits that the Kyle estate had reaped by the end of 2013, Olsen says. The estate contends the profits were far lower.

Kyle was killed in 2012, and his widow, Taya Kyle, runs the estate.

In asking that the verdict be voided, the estate maintains that the jury should not have been allowed to award money for unjust enrichment. Olsen responded that the estate’s lawyers never raised that issue before the verdict, and in fact helped draft the unjust enrichment instruction that U.S. District Judge Richard Kyle, who is no relation, gave to the jury.

Since the estate’s attorneys did not make the argument against unjust enrichment until after the jury verdict, Judge Kyle ruled that the estate “waived its arguments, and that, even if it had not, the arguments failed as a matter of law and the unjust enrichment award was supported by substantial evidence,” Olsen wrote.

The Kyle estate, which was required to file a reply brief by May 11, asked on Monday for an extension until May 26. After it files, oral arguments will be scheduled in front of the 8th Circuit panel.

 

Twitter: @randyfurst