In Ventura v. Kyle, 825 F.3d 876 (8th Cir. 2016), former governor and former professional wrestler Mr. Jesse Ventura filed a suit for libel against an author, one Kyle, a Navy SEAL who wrote a book called "American Sniper."
Mr. Ventura also sued the author's publisher, HarperCollins, also for libel. By the time of trial, Mr. Kyle was dead and his widow was substituted as a party defendant in his place as executor of the author's estate.
At trial, Ventura's lawyers attempted to establish bias on the part of two witnesses who were employees of HarperCollins. The attempt went like this. Over objection and in the face of a motion for mistrial (which the District Court overruled and denied, respectively), on cross-examination Mr. Ventura's lawyer asked the witnesses whether they knew about insurance coverage carried by HarperCollins, and if they knew that the author's defense lawyers were being paid under the publisher's insurance policy for libel and defamation. "The district court permitted this cross-examination, by which Ventura's counsel ostensibly sought to show the HarperCollins witnesses were biased in favor of Kyle because HarperCollins and Kyle were covered by the same insurance policy." Both witnesses said "no," they did not know. Ventura v. Kyle, 825 F.3d 876, 882 (8th Cir. 2016).
Ventura's lawyer then mentioned HarperCollins "insurance" for libel and defamation during closing argument.
The author's estate and the publisher appealed the cross-examination and the closing. The Eighth Circuit reversed, holding that the mention of insurance during questioning and during closing argument was not supported by evidence recognized by the law in the record. There was insufficient evidence of bias to support the questioning in the first place, for one thing, the Eighth Circuit ruled:
As a matter of basic evidentiary foundation, Ventura never established by direct evidence or reasonable inference that Rosenblum and Hubbard (the witnesses in question, employees of the publisher) even knew about any insurance coverage or possible insurance payment. Rosenblum and Hubbard had no personal knowledge on the topic and were not qualified to testify on the subject. See Fed. R. Evid. 602 (parenthetical omitted).
Ventura's counsel argued in closing, “It's hard to believe that [Rosenblum and Hubbard] didn't know about the insurance policy because it's right in Kyle's publishing contract.” The one-line mention of insurance contained in the lengthy small-print contract merely acknowledges HarperCollins “may carry” insurance. (Emphasis added). The publishing contract does not establish HarperCollins actually purchased insurance, much less that Rosenblum and Hubbard knew about it.
It is difficult to envision how Rosenblum and Hubbard could have been biased or even influenced by an insurance policy of which they were unaware.
Ventura v. Kyle, 825 F.3d 876, 883-84 (8th Cir. 2016) (material in parentheses added except for emphasis by the Court; otherwise, material in brackets by the Court).
The Eighth Circuit was undoubtedly right on the narrow merits of the appeal in this particular case, that "witness bias" could not be a legally recognized foundation or predicate to inject insurance into a trial where the existence of insurance was simply not proven. In this view, bias was a pretext for injecting insurance into the trial.
But there is a larger issue embedded in this narrow ruling. Insurance coverage cannot be proven by bias even if bias is proven. Even more broadly stated, you cannot prove that someone has insurance coverage because they "may carry insurance" or a person who knows nothing about insurance testifies about it. In this view, bias cannot be used as a pretext for establishing insurance coverage.
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