"Elon Musk falsely accused Vern Unsworth of being guilty of heinous crimes," Unsworth's attorney L. Lin Wood said in a statement at the time. "Musk's influence and wealth cannot convert his lies into truth or protect him from accountability for his wrongdoing in a court of law."
Unsworth, who is a UK citizen, filed the lawsuit in a federal court in California.
A jury will now decide whether Musk was negligent by failing to use reasonable care to determine the truth or falsity of his comments about Unsworth.
Musk had argued that Unsworth's involvement in a high-profile rescue mission made him a public figure, a status that meant Unsworth would also have to prove that Musk acted with "actual malice." But since Judge Wilson tossed out Musk's First Amendment defense that he was engaging with a public figure, Unsworth could succeed with the defamation claim without having to prove actual malice.
Unsworth's defamation suit is focused on the tweets Musk published in July. The case previously also listed the emails with BuzzFeed, but Unsworth's legal team pulled them from the suit and instead petitioned to use them as supporting evidence. The judge ruled on Wednesday the emails can be used as evidence of "establishing Musk's state of mind at the time of the alleged defamation." Unsworth must prove actual malice in order to be awarded punitive damages and Musk's state of mind may be key evidence in proving these damages.
"The crucial issue in the case, for the jury, is going to be to decide whether Musk's use of the term 'pedo guy' in his July 15th tweet was written such that it conveyed to the reader that it was an assertion of fact," Wood told CNN Business.
Musk's lawyer will look to classify the use of "pedo guy" as an insult or opinion, not a statement of fact. In court document filed in September, Musk defended his use of "pedo guy" as a "common insult used in South Africa when I was growing up. It is synonymous with 'creepy old man' and is used to insult a person's appearance and demeanor, not accuse a person of acts of pedophilia."
In that same filing, Musk defended his decision to double down on the claim, sharing how he hired a private investigator to probe Unsworth and blamed the PI for allegedly giving him bad information.