Appeal sought in defamation case

OLYMPIA – An attorney for five Vietnamese Americans has filed a motion for a new trial seeking to overturn a verdict ordering his clients to pay another Vietnamese American $310,000 for defaming him.

A Thurston County jury found April 17 that a public notice and articles in the Vietnamese American media that were published by the defendants starting in 2003 defamed Duc Tan of Olympia and the Vietnamese Community of Thurston County.

The defendants’ public notice and articles alleged that Tan and VCTC were communist sympathizers. During the trial, the jury found that the evidence the defendants used to back up their statements was false, or omitted key facts to create a false impression.

Attorney Nigel Malden alleges in his motion that some exhibits and testimony presented to the jury should not have been admissible under the rules of evidence.

Malden said in a telephone interview Wednesday, “We must always respect the work of judge and jury, but we have the right to request a new trial if we think that errors committed in the heat of battle tainted the process.”

As grounds for a retrial, Malden made the following arguments in his motion:

 • That the court should have asked the plaintiffs to specify which statements in the defendants’ materials were defamatory.

 • That the jury should not have been allowed to see an exhibit showing that an apron worn by a VCTC cook at Lakefair in 2003 could be purchased on the Internet. The apron showed Santa Claus and yellow stars against a red background – an image that the defendants alleged was meant to evoke the communist Vietnamese flag,

 • That the jury should not have been allowed to hear evidence that Duc Tan received a death threat as a result of the defendants’ published materials. Malden said the death threat was a hoax.

 • That one of Malden’s proposed jury instructions should not have been excluded by the court.

 • That the $310,000 jury award was “so outrageous and extravagant as to shock the conscience.”

Malden’s motion states, “the idea that calling a public figure a ‘Communist’ a ‘Fascist,’ a ‘Socialist,’ a ‘Democratic,’ or a ‘Republican,’ is actionable defamation in the United States of America is patently absurd and one of the reasons why the trial court should have granted the defendants’ motion for directed verdict at the close of plaintiffs’ case.”

Malden’s motion also reiterates that the evidence at trial linked Duc Tan “to communist propaganda and ideology.”

“In a defamation case, remember that truth is always an absolute defense,” Malden said. “We’re saying that the defendants were making political statements that they had every right to make. Some of it was political opinion, but in the end, it’s substantially true. The plaintiff has to prove that everything said was false, and he can’t meet that burden.”

One of Duc Tan’s daughters, Thanh Tan, has said that the accusations against her father were particularly painful because he despises communism. She has said he was a former lieutenant in the South Vietnamese Army and fled communism to come to the United States.

Greg Rhodes, the attorney who represented Duc Tan and VCTC at the trial, said Wednesday, “We believe that none of the grounds cited are grounds that would properly justify a new trial.” He added that he will address Malden’s arguments when he files a response to the motion.

Malden’s motion for a new trial is tentatively scheduled to be heard in Thurston County Superior Court on May 29.

Malden said he plans to file a formal appeal of the jury’s verdict with the Washington State Court of Appeals if his motion for a new trial fails. He said his clients also will not pay the $310,000 judgment “until all appeals are exhausted.”

Jeremy Pawloski is a reporter for The Olympian. He can be reached at 360-754-5465 or jpawloski@theolympian.com.