Judge denies Bangstad motion for new trial, reduced damages

A judge has denied a motion by Kirk Bangstad for a new trial and for reduced damages in a case in which a jury found that Bangstad defamed River News and Lakeland Times publisher Gregg Walker, and did so with express malice.

Last October, a jury of nine women and four men found Bangstad and Minocqua Brewing Company (MBC) guilty of multiple counts of defamation of Walker, awarding Walker the largest defamation award in state history — $750,000, including $430,000 in punitive damages.

Bangstad went before Judge Leon Stenz arguing an array of reasons for his motions, asserting, among other things, that the verdict was contrary to the clear preponderance of the evidence, that the damages were excessive, and that he was entitled to a new trial due to unfair prejudice.

In a separate motion, Bangstad wanted the judge to change the jury verdict on the grounds that there was insufficient evidence to sustain the jury’s findings and that some of his statements were mere opinions.

Circuit court judge Leon Stenz denied all the motions.

In his motion for a new trial, Bangstad argued that the awarded damages were excessive and contrary to the clear preponderance of the evidence, though, in his rejection of the motion, Stenz observed that the objection was not based on any “specific perversity, prejudice or court error.”

“Rather, they believe that there was no clear evidence of the harm to the plaintiff’s reputation,” Stenz wrote in his decision, noting that the jury was properly instructed regarding the damages and that they could compensate Walker for the humiliation, mental anguish, and damage to his reputation.

“The credible evidence supported a basis for the jury to award,” Stenz found.

Nor was the size of the award sensational or outrageous, the judge determined.

“The amount of damages awarded may arguably be more than the parties expected but it does not shock the conscious of the court,” Stenz wrote. “Applying the appropriate standard of review, the court does not believe the compensatory damages awarded by the jury are excessive.”

Bangstad had also argued that the punitive damages awarded by the jury were excessive because there was a lack of evidence regarding express malice, but Stenz did not support the former Minocqua resident there, either.

“Express malice exists when a defamatory statement is made or published concerning a person from motives of ill will, bad intent, envy, spite, hatred, revenge, or other bad motives against the person defamed,” he wrote.

Bangstad had alleged that there was evidence of his good faith in making the statements, but the judge determined that was not the case.

“There was sufficient evidence for the jury to conclude that the defamatory statements of the defendant were made with express malice,” he wrote. “The statements were not made in good faith based upon ambiguous information. It was clear the defendant created the ‘stories’ in a manner to do the most extreme damage and hurt and embarrass the plaintiff.”

The jury heard the evidence presented and determined the credibility of the witnesses, Stenz concluded, and so an award of punitive damages was not excessive.

Unfair prejudice

Bangstad argued that he was entitled to a new trial because of what the judge characterized as “colloquy with a juror, cumulative testimony and comments by the plaintiff’s attorney to establish that he was unfairly prejudiced.”

But Stenz wrote that there was no competent evidence that extraneous prejudicial information was improperly brought to the attention of one or more jurors. In the case, a juror had expressed concerns to the court, but not in any way that was prejudicial to Bangstad, Stenz wrote.

“The juror’s demeanor and response to the questions from the court did not indicate any attempt to be anything but honest,” Stenz wrote. “She was willing to be the alternate juror so that she wouldn’t be the focus of any retaliation by the defendant as a result of any verdict.”

Stenz said the juror had discussed her concerns with her husband. 

“There was no indication she talked about the case or the evidence she heard,” he wrote. “She did not seek her husband’s opinion on what the verdict should or could be. She did not discuss the case with the other jurors other than to offer to be the alternative due to her concerns.”

Courts routinely protect the anonymity of jurors by using numbers instead of names, Stenz wrote. 

“There are restrictions on news media so they are not identified or photographed,” he wrote. “It may not be uncommon that in certain cases the evidence may convince jurors that their privacy is important. The colloquy with the juror did not indicate that she failed to follow the court’s instructions or tainted the jury verdict in any way.”

Bangstad could not point to any prejudice other than the potential that the juror was not honest with the court, Stenz wrote.

“There was no evidence that the juror was biased or prejudiced against the defendant,” he wrote. “To the contrary, she reiterated her commitment to be fair and impartial.”

Bangstad also complained about so-called cumulative testimony, complaining that Walker called too many witnesses to testify to a single issue.

“The court disagrees,” Stenz wrote. “The witnesses were called to establish a critical element of the plaintiffs claim. The witness’s testimony on that issue was not overly lengthy.”

What’s more, Stenz wrote, the testimony presented by Walker was relevant. 

“It was not overly prejudicial nor a waste of time,” he wrote. “The nature of the testimony may have been similar but if you need to establish that one’s reputation is harmed, you must establish that the reputation in the community is affected as opposed to just one person’s opinion about the reputation. The testimony presented by the plaintiff regarding the harm he suffered was not cumulative and caused no prejudice to the defendant.”

Stenz also dismissed claims that Walker’s attorney made a comment in court that was prejudicial to Bangstad, writing that the brief comment, over the course of a five-day trial, did not create prejudice.

Finally, Stenz found once more that Walker was not a public figure for all purposes, as Bangstad claimed he was and which would make a finding of defamation more difficult because express malice must be found.

In a separate motion, Stenz denied Bangstad’s plea for the judge to change the jury verdict. Bangstad argued that there was no credible evidence to support the jury’s findings. Bangstad also argued that his characterization of Walker as a “misogynist” and “crook” were mere opinions. 

Again, Stenz rejected the arguments.

“The term ‘misogynist’ is fairly specific,” Stenz wrote. “In today’s ‘Me Too’ cultural environment, calling someone a misogynist can negatively impact their reputation. The term ‘crook’ is somewhat imprecise but certainly includes a connotation of a criminal. Accusing someone of criminal activity, even in the form of opinion, are not constitutionally protected.”

All in all, Stenz concluded, there was evidence presented at trial from which the jury could conclude that the plaintiff suffered humiliation, anguish, and reputational harm from Bangstad’s Facebook posts.

“It is not the Court’s function to second guess the jury’s decision,” he concluded. “Nor is the court to substitute what it thinks the answers should be for what the jury thought. The court must simply be satisfied that, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the plaintiff, there is credible evidence to sustain the jury’s answers. The court finds that there is substantial credible evidence to support the jury’s verdict and denies the defendant’s motion to change any of the jury’s answers.”­