Van Liew v. Eliopoulos / Hands on Technology Transfer, Inc. ( 2017 )

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16-P-567 Appeals Court
ROLAND VAN LIEW vs. PHILIP ELIOPOULOS; HANDS ON TECHNOLOGY
TRANSFER, INC., third-party defendant.
No. 16-P-567.
Middlesex. January 5, 2017. - August 25, 2017.
Present: Green, Meade, & Blake, JJ.
Libel and Slander. Constitutional Law, Libel and slander.
Damages, Libel, Emotional distress, Remittitur. State
Ethics Commission. Conflict of Interest. Emotional
Distress. Practice, Civil, Judicial discretion,
Instructions to jury.
Civil action commenced in the Superior Court Department on
January 3, 2011.
The case was tried before Kenneth V. Desmond, Jr., J., and
a motion for a new trial or in the alternative for remittitur
was heard by him.
Brian C. Newberry for Roland Van Liew & another.
David H. Rich for the defendant.
BLAKE, J. In 2010, a bitter feud erupted between
Chelmsford residents Roland Van Liew and Philip Eliopoulos. Van
Liew commenced the dispute by accusing Eliopoulos, a local
2
selectman, of shady political dealings in his work as a real
estate attorney. After Eliopoulos responded publicly to the
allegations, Van Liew filed in Superior Court this defamation
action against him. Eliopoulos counterclaimed, alleging
defamation on the part of Van Liew, and impleaded Van Liew's
company, Hands on Technology Transfer, Inc. (collectively, Van
Liew). A jury subsequently found Van Liew liable for making
twenty-nine defamatory statements, and awarded $2.9 million in
damages. They found no wrongdoing on the part of Eliopoulos.
The judge denied Van Liew's posttrial motions on the
counterclaim verdict,1 and he now appeals,2 challenging the proof
of defamation on the twenty-nine statements. He also claims
that the judge committed evidentiary errors and that the
excessive damages awarded require remittitur. We affirm.
Background. 1. Real estate development in Chelmsford. In
the summer of 2008, Chelmsford real estate broker and developer
Michael Eliopoulos, Philip's3 father, approached Eastern Bank
about a historic home situated on a parcel of land it owned in
1
Van Liew filed a panoply of posttrial motions, including,
e.g., a motion for judgment notwithstanding the verdict, a
motion to alter or amend the judgment, and a motion for a new
trial or for remittitur.
2
Van Liew does not appeal from the adverse jury verdict on
his defamation claims against Eliopoulos.
3
We henceforth refer to members of the Eliopoulos family by
their first names to avoid confusion.
3
Chelmsford center. Michael then negotiated the sale of an
undeveloped portion of the property with Thomas Dunn, an
employee of Eastern Bank. The purchase price was $480,000.
Philip and his law firm reviewed draft agreements and served as
real estate counsel. The sale closed on June 17, 2009, after
which the 2.41-acre property became known as 9 North Street (the
property).4 During the real estate negotiations, until April of
2009, when his term expired, Philip was a member of the board of
selectmen (board) of Chelmsford. He attended his final meeting
on March 23, 2009.
In 2007, prior to Michael's offer to purchase the property,
the Chelmsford fire department and department of public works
facility study committee (the committee) was considering options
for a new fire station headquarters. One option was rebuilding
and expanding the Chelmsford center fire station, which was
located on Chelmsford-owned land adjacent to the property. On
August 7, 2007, the committee voted to narrow their primary and
alternative site selections to two choices, neither of which was
the center fire station or the property. Accordingly, Philip
and the other members of the board understood that, as of
September of 2007, the committee no longer was interested in the
4
The original five-acre commercial property contained a
bank branch building and abutted the Chelmsford fire department
headquarters known as the Chelmsford center fire station.
4
possible purchase of the property. Ultimately, the committee
identified a location on Wilson Street for a new fire department
headquarters.5
Beginning in April, 2009, after the expiration of his board
term, Philip assisted Michael in his development of the
property. The plan called for the rehabilitation of the
historic house, and the construction of a new four-unit, family-
owned office building. During the nine-month permitting
process, Philip represented Michael's newly formed corporation,
Epsilon Group, LLC (Epsilon). After a series of public hearings
and changes to the plan, a number of local boards and committees
approved the project, including the historic district
commission, the conservation commission, and the planning board
of Chelmsford. On August 23, 2010, the board determined that
5
For the sake of completeness, we note that the October,
2008, committee minutes show that the committee had not
officially eliminated the possibility of using the property for
the new fire station headquarters. Paul Cohen, the Chelmsford
town manager, approached Dunn in February, 2009, to see if he
was interested in subdividing and selling the Eastern Bank
property for this purpose. At that point, Michael and Eastern
Bank already had executed an offer to purchase the property.
Cohen mentioned the matter to the members of the board at a
March 16, 2009, work session after Philip had left. Philip knew
nothing about Chelmsford's continued interest in the property
until the March 23, 2009, board meeting, when a committee member
suggested that, regardless of the fire station location,
Chelmsford should purchase the land behind the center fire
station to enhance the value of that Chelmsford-owned asset. At
that same meeting, the committee recommended the Wilson Street
site for the future fire station headquarters.
5
the project did not violate a historic preservation restriction
(restriction) that encumbered the property. Scrutiny of the
project was careful and deliberate due to the prominence of the
Eliopoulos family in Chelmsford, as well as the vocal opposition
to the project.
2. Feud begins. Van Liew, a successful local business
owner, was one of the vocal opponents of the project.
Commencing in early 2010, Van Liew, through several
organizations controlled by him,6 widely published statements
criticizing Philip for engaging in self-dealing and conflicts of
interest at the expense of Chelmsford. He flooded Chelmsford
residents with his messaging, accusing Philip and other
Chelmsford officials of violating State and local ethics laws
and of violating the restriction. The publications conjured up
unsavory images of shady "back room" dealing at Chelmsford town
hall, influence peddling, and fixed governmental proceedings.
Van Liew's statements were published and repeated across a
variety of media outlets: mass electronic mail messages (e-
mails), letters, a digital video disc (DVD) sent to thousands of
Chelmsford residents, Web site postings, a glossy newsletter
entitled "Why Perjury Matters," lawn signs, bumper stickers,
6
Organizations funded and controlled by Van Liew included
the Slow Growth Initiative, the Better Not Bigger Coalition, and
Cheating Chelmsford.
6
letters to newspapers, automated telephone calls, and video
recordings of conferences and meetings. Van Liew spent between
$1 and $2 million to spread his messaging. In early August,
2010, Philip attempted to defend himself in an open letter sent
to every Chelmsford resident, at his own expense.7
3. No wrongdoing found by State agencies. In late 2009,
Philip voluntarily subjected himself to an investigation by the
State Ethics Commission (commission). Notwithstanding the
multiple complaints lodged against him by Van Liew and his
associates, the commission did not pursue enforcement
proceedings against Philip, and closed the case on December 1,
2011. A similar investigation of the Chelmsford town manager,
Paul Cohen, reached the same result. Likewise, the Board of Bar
Overseers (BBO) took no action in response to Van Liew's
complaints to that agency. The office of the Attorney General
also declined to investigate Philip. No finding ever was made
that the permitting process or the project was illegal or
violated the restriction.
4. Present action. On January 3, 2011, Van Liew filed the
present action, with Philip's counterclaim following shortly
7
After the August, 2010, board vote on the restriction
issue, Van Liew also organized a campaign to recall the
selectmen who had voted in favor of the project. In the summer
of 2011, the recall effort failed, as did final attempts to
block the development through various court actions.
7
thereafter. Over the course of seventeen days in February and
March, 2015, the case was tried to a jury. At the close of the
case, the jury were given a special verdict form, which properly
defined the requirements of defamation involving a public
official and, as to the counterclaim, asked whether Philip had
proven all of the required elements of his claims on each of
thirty-nine statements.8 The jury awarded $2.9 million in
damages to Philip on twenty-nine of those statements. Van Liew
moved for judgment notwithstanding the verdict and a new trial
on the counterclaim verdict and a remittitur on the damages
award,9 claiming that the judge had hampered his ability to
present his case and improperly admitted prejudicial evidence,
the proof of defamation was legally insufficient, and the
damages awarded were excessive. The judge denied all of the
posttrial motions, and Van Liew now raises the same claims on
appeal. Further facts, including the defamatory statements at
issue, will be set forth infra.
8
The verdict form was consistent with a pretrial order
limiting the scope of Philip's counterclaim. As extensive as
this body of libel was, it represented only the tip of the
iceberg. Forty-nine different publications containing ninety-
five additional defamatory statements were collected in one
exhibit and admitted (with a proper limiting instruction) to
show Van Liew's state of mind.
9
See footnote 1, supra.
8
Discussion. 1. Evidentiary claims. Due to concerns over
the length of the trial, the judge imposed a preliminary time
limit on Van Liew's case-in-chief, which the judge extended
several times.10 Van Liew nevertheless challenges the time
limits placed on his case-in-chief. There was no abuse of
discretion, considering Van Liew's severe underestimation of the
time required to examine his witnesses, and juror concern over
the length of the trial.11 See Clark v. Clark, 47 Mass. App. Ct.
737, 746 (1999) ("A judge, as the guiding spirit and controlling
mind of the trial, should be able to set reasonable limits on
the length of a trial. This includes the right to set
reasonable limits on the length of the direct and cross-
examination of witnesses").
Van Liew also maintains that the following evidence should
have been excluded as unduly prejudicial: (1) evidence related
to his arrest and prosecution for attempting to poison his
neighbor's dog; (2) evidence related to commission enforcement
10
The length of Van Liew's direct testimony fell within the
range of the estimate given by his attorney.
11
Notwithstanding Van Liew's estimate that his case-in-
chief would take six or seven days, the testimony of his first
witness, i.e., Philip, extended more than eight days. Van
Liew's attorney also informed the judge that he planned to call
"approximately" six more witnesses after Van Liew testified.
Van Liew was not precluded from calling any witnesses. In
addition, two jurors sent notes to the judge expressing concerns
about the length of the trial.
9
proceedings against one of his attorneys, Richard McClure; and
(3) references to his anti-Vatican and population control
opinions.
As to the dog incident, the evidence provided a cause of
Van Liew's claimed emotional distress other than Philip's
statements.12 Van Liew also opened the door to impeachment by
testifying that he was perceived as a "good neighbor." See
Mass. G. Evid. § 608 (2017). The evidence about McClure
likewise was not substantially more prejudicial than probative.
See Mass. G. Evid. § 403 (2017). Even after the commission
closed the case on Philip, Van Liew continued to publish
statements about Philip's ethical violations based in part on
McClure's legal advice. The commission investigation of McClure
was probative of Van Liew's recklessness in continuing to rely
on McClure's opinion, even after learning of the commission
charges against him.13 See Murphy v. Boston Herald, Inc., 449
Mass. 42, 49 (2007), citing St. Amant v. Thompson, 390 U.S. 727,
12
Chelmsford residents learned of the incident through mass
mailing and published report.
13
The commission found reasonable cause to believe that
McClure had repeatedly violated G. L. c. 268A, § 17(c), the
State ethics statute regarding conflicts of interest, and
authorized the initiation of an adjudicatory proceeding against
him. The nature of the violations stemmed from McClure's
representation of individuals in multiple actions against the
town of Chelmsford while simultaneously serving as a member of
the planning board of Chelmsford, thus creating conflicts of
interest.
10
730-732 (1968) (discussing reckless reliance on third-party
opinion in defamation case). In each instance, the judge also
gave limiting instructions on the proper use of the evidence to
the jury, who were presumed to have followed these instructions.
See Gath v. M/A-Com, Inc., 440 Mass. 482, 493 (2003).
Finally, Van Liew did not preserve his objection to the
introduction of evidence about his opinions on the Vatican and
population control.14 Van Liew's motion in limine to exclude all
such evidence initially was allowed. The bases for the motion
were relevancy and that any probative value was outweighed by
the danger of unfair prejudice. Thereafter, Philip sought to
introduce the document contending that Van Liew opened the door
to the admission of the evidence. Van Liew's counsel objected
on the basis of "foundation, relevance, hearsay," which the
judge overruled. Counsel's objection on the basis of prejudice
the following day was untimely. See Matsuyama v. Birnbaum, 452
14
Van Liew sought to exclude from evidence a narrative and
a time line circulated in Chelmsford by a group opposing the
recall of individuals on the board. The fourteen-page document
contains a reference to a 1992 article written by Van Liew for
the Center for Research on Population Security in which he
criticized the "Vatican power politics [that] threaten the
reproductive rights of non-adherents." The jury were not
provided with a copy of the article.
11
Mass. 1, 35 (2008). Even if the issue had been preserved, we
agree that Van Liew also opened the door to this evidence.15
2. Proof of defamation. a. Elements and standard of
review. To prove defamation, a plaintiff must establish that
"the defendant was at fault for the publication of a false
statement . . . regarding the plaintiff, capable of damaging the
plaintiff's reputation in the community, which either caused
economic loss or is actionable without proof of economic loss."
White v. Blue Cross & Blue Shield of Mass., Inc., 442 Mass. 64,
66 (2004), citing Ravnikar v. Bogojavlensky, 438 Mass. 627, 629-
630 (2003). See Edwards v. Commonwealth, 477 Mass. 254, 262-263
(2017). If a challenged statement is plainly an opinion or
subjective view, rather than a statement of fact, it is not
actionable as a matter of law. Scholz v. Delp, 473 Mass. 242,
251 (2015). "In determining whether an assertion is a statement
of fact or opinion, 'the test to be applied . . . requires that
the court examine the statement in its totality in the context
in which it was uttered or published. The court must consider
all the words used, not merely a particular phrase or sentence.
15
Van Liew's attorneys tried unsuccessfully to tie Philip
to the creation of an anti-recall document containing Van Liew's
controversial opinions. See note 14, supra. Van Liew testified
that the document was defamatory and negatively affected his
reputation. The jury learned about the subject matter of the
article only after Van Liew unexpectedly denied that his article
and his views were controversial.
12
In addition, the court must give weight to cautionary terms used
by the person publishing the statement. Finally, the court must
consider all of the circumstances surrounding the statement,
including the medium by which the statement is disseminated and
the audience to which it is published.'" Downey v. Chutehall
Constr. Co., 86 Mass. App. Ct. 660, 663-664 (2014), quoting from
Cole v. Westinghouse Bdcst. Co., 386 Mass. 303, 309, cert.
denied, 459 U.S. 1037 (1982).16
Because it is undisputed that Philip was a public official
at the time the statements were made,17 in addition to proving
the common-law elements of defamation, Federal constitutional
law also requires that he prove, by clear and convincing
evidence, that Van Liew published the statements with actual
malice. See New York Times Co. v. Sullivan, 376 U.S. 254, 279-
16
We summarily reject Van Liew's argument that he did not
publish the statements at issue. There is ample evidence from
which the jury could have found that he created and funded the
organizations that dispersed his statements, and that he
personally signed twenty of them. To the extent that Van Liew
maintains that many of the statements were vetted by Spencer
Kimball, his so-called "expert" on the First Amendment to the
United States Constitution, the verdict makes clear that the
jury did not credit Kimball's limited substantive testimony.
See Murphy, 449 Mass. at 55 (jury's credibility assessments
entitled to deference on appeal).
17
Philip served on the board from 1997 to 2009.
Thereafter, he served as a representative town meeting member.
See Lane v. MPG Newspapers, 438 Mass. 476, 482-483 (2003).
Philip also has served as a member of Chelmsford's master
planning committee and the community preservation board.
13
280 (1964); King v. Globe Newspaper Co., 400 Mass. 705, 719
(1987), cert. denied, 485 U.S. 962 (1988).
In Murphy, 449 Mass. at 48, the Supreme Judicial Court set
out the constitutional principles involved in a defamation case
implicating a public official:
"The First Amendment to the United States Constitution
sets clear limits on the application of defamation law
with respect to any factual statement published in the
news media about a public official or public figure,
. . . even when that statement is shown to be false
and defamatory. In [New York Times Co., 376 U.S. at
279-280], the United States Supreme Court held that,
in such cases, the First Amendment requires that the
plaintiff must prove, by clear and convincing
evidence, that the defendant published the false and
defamatory material with '"actual malice" --that is,
with knowledge that it was false or with reckless
disregard of whether it was false or not.'"
A finding of "reckless disregard" requires proof that the
publisher acted with a "high degree of awareness of [its]
probable falsity" or, in other words, "entertained serious
doubts as to the truth of his publication." Murphy, supra at
43, 48 (citation omitted). An inference of actual malice may be
drawn from circumstantial evidence. Id. at 57-58.
An appellate court, when faced with a defamation case, must
independently review the record as to each defamatory statement
to make certain that it supports the jury's finding of actual
malice. Id. at 49, citing Bose Corp. v. Consumers Union of
U.S., Inc., 466 U.S. 485, 514 & n.31 (1984). In doing so, the
court must defer to the jury's assessments of credibility and
14
demeanor. Id. at 50. "The constitutionally required
independent examination therefore takes place when, after
compiling all of the facts implicitly established by the jury's
verdict, the court considers whether that body of facts, clearly
and convincingly, supports a determination of actual malice."
Ibid.
b. Analysis of statements at issue. Having set forth the
proper legal framework, we turn now to the twenty-nine
statements the jury found to be defamatory. Without reproducing
each statement, many of which are repetitive, we have grouped
the statements by thematic category, providing typical examples.
Within those categories, we assess first whether the statements
are defamatory (reserving for later discussion economic harm to
Philip's reputation) and, second, whether the record supports a
finding of actual malice.
i. Ethics related to purchase of the property. More than
one-half of the twenty-nine statements implicate Philip's
personal integrity and the legality of his behavior with respect
to the purchase of the property. Five statements say that he
lied, either to public officials or to investigators, e.g., "Not
a single selectman has acknowledged the fact that . . . Phil
Eliopoulos has also lied to them, at multiple meetings and
public hearings." Thirteen statements maintain that Philip's
acts, or the related acts of other officials, constituted
15
illegal State ethics violations, e.g., "It's not an 'opinion'
that Phil Eliopoulos represented his father's LLC in violation
of Massachusetts ethics laws, it's a documented fact." Finally,
three statements contain variations of Van Liew's contention
that Philip and Chelmsford officials then covered up those
violations. For example, "Nor did [town manager Cohen] report
Phil Eliopoulos' obvious ethics violations to the State Ethics
Commission as required under the Chelmsford bylaws."
While many of these statements contain some amount of
opinion, they are false and defamatory where they refer to lies,
back room deals, conflicts of interest, illegal behavior, and
cover-ups as fact.18,19 No evidence was ever uncovered supporting
Van Liew's allegations of back room dealings, illegality, or
graft. The commission investigations of Philip and Cohen, which
encompassed Philip's interactions with Chelmsford during the
18
For example, the statement that Philip "used his position
and influence" to deter Chelmsford from buying a parcel of land
was one of fact, and not opinion, particularly where the issue
was never before the board when Philip was a member, and the
statement was made in a video recording containing a number of
false statements about the "illegal" project and back room
deals.
19
The statements also concerned Philip, even where they
referred to the bad acts of others as well. In particular,
contrary to Van Liew's suggestion, the statement referring to
"multiple public officials" unlawfully abetting Philip's
unethical conduct and conflicts of interest "concerned" Philip
and thus was defamatory to him as well as to others. See
HipSaver, Inc. v. Kiel, 464 Mass. 517, 528 (2013).
16
negotiation and the purchase of the property, both resulted in
no action taken. In short, Philip was never charged or found to
have committed an ethics violation. Where there was no
violation, neither could there have been a cover-up or a failure
to report.
The jury also had reason to find actual malice. At the
time the statements were made, Van Liew knew that the commission
had reviewed Philip's representation of Michael and Epsilon, and
that the commission had issued a letter stating that it is
"satisfied that this matter does not require any further action
on [its] part." Van Liew also admitted that he had no knowledge
of what Philip told investigators. In contrast, Philip
described for the jury both the first and the second commission
investigations, and listed the documents he had provided to the
commission. Van Liew also knew from Dunn's deposition that the
sale was not a result of some back room deal. Rather, Eastern
Bank was simply not willing to subdivide the parcel of land in
which Chelmsford was interested, and had decided to sell to the
safer purchaser whose offer was not contingent on town meeting
and resident approval. Van Liew also was unable to explain how
he had "connected the dots" on the graft allegations. Finally,
Van Liew knew that a Land Court judge had reached the same
conclusion as the commission, i.e., that there had been no
17
wrongdoing.20 On the basis of this substantial body of evidence,
the jury could have concluded that Van Liew issued the
statements recklessly, with a high degree of awareness of their
probable falsity.
On appeal, Van Liew argues that he consulted the ethics
statute before making the statements. The claim does not
preclude a finding of actual malice, especially where he knew
that the governing body charged with enforcing the ethics
statute, i.e., the commission, had not taken any action against
Philip. The jury had the statutory provisions before them, and
could have concluded there were no violations. In a similar
vein, the jury also could have found that Van Liew's continuing
reliance on the opinion of Spencer Kimball (Van Liew's "First
Amendment expert") after late 2011, when the commission closed
the investigation, was not reasonable.
ii. Voting record. Van Liew stated many times that while
Philip was a member of the board, he voted in March of 2009
against Chelmsford purchasing the property. The following is a
typical example: "Eliopoulos was simultaneously serving as the
20
The Land Court judge denied the property abutters' motion
for a preliminary injunction, which was known to Van Liew. In
his decision, the judge opined that "the decisions of the
[planning board of Chelmsford] granting these [site and special
permit] approvals do not appear to have been unlawful,
arbitrary, or capricious" and allowed them to stand.
18
Chairman of the [board] and voted against [Chelmsford]
purchasing [the property]."
The evidence establishes that the statements were patently
false. Neither Philip nor the board voted against Chelmsford
purchasing the property on March 23, 2009, or at any other time.
The jury had copies of the board meeting minutes and a video
recording of the board meeting in question to verify that Philip
did not vote in the manner attributed to him. Because the false
statements suggest that Philip used his position as a member of
the board to advance his family's interests at the expense of
Chelmsford, the jury also were warranted in concluding that they
were defamatory. See King, 400 Mass. at 717-718.21
A finding of actual malice was equally supported. In his
testimony, Van Liew admitted that he had possession of the board
minutes and had watched the video recording many times before
making and repeating the false statement about the board vote.22
21
The statement, "Also, it's a very good bet that Phil
Eliopoulos didn't provide [the commission] documents showing he
voted against [Chelmsford] purchasing the land" is defamatory,
rather than pure opinion as Van Liew suggests, because it
implies the existence of undisclosed defamatory facts. See
King, supra at 713. Likewise, casting the same false and
defamatory statement of fact as a rhetorical question does not
provide a safe harbor from liability.
22
In one statement, Van Liew even said that the vote "is
not 'opinion' or 'conjecture,' it's recorded in meeting minutes
and on video," despite his knowledge to the contrary.
19
The jury accordingly could have found that he knew the
statements were false when he made them.
iii. Investigation. Van Liew twice stated that Philip was
under investigation, e.g., "Cohen, Eliopoulos Under
Investigation. . . . [T]he Attorney General's office is now
focusing on the town of Chelmsford and in particular the former
selectman Phil Eliopoulos."
The evidence presented supports a finding of both
defamation and actual malice. As to the former, after the above
statement circulated, both Philip and Cohen learned from the
office of the Attorney General that there was no investigation,
let alone a focus on Philip. The actual malice standard is met
because Van Liew knew the statement was false. He stated, in
another publication, that the office of the Attorney General
would not accept his complaint about Philip because it had no
jurisdiction. Van Liew also received a letter from the office
of the Attorney General stating, as he said, that the ethics
issues "belonged with the [commission]."23,24
23
To the extent that Van Liew argues that he had no actual
malice because he had the statement taken down from a Web site
after learning of his mistake, Kimball testified that Van Liew
asked him to take the statement down not for any inaccuracy, but
because it was taking them "off-message."
24
The other statement that Philip was under investigation,
i.e., "[M]ajor state ethics charges against Eliopoulos still
stand," is also defamatory, and a finding of actual malice
supported because, as discussed, Van Liew knew when he made the
20
iv. Statements attributed to Dunn. In a mailing to
Chelmsford residents, Van Liew stated: "It turns out that the
situation is worse than anyone imagined. Eastern Bank personnel
have now indicated that Cohen in 2009 was offered the land for
[Chelmsford] at no cost -– that's right, for free."
At trial, Dunn, who was responsible for the sale of the
property, confirmed this was a false statement. He denied that
he had ever made such an offer, and testified that he had not
discussed tax consequences of a possible land donation with
Chelmsford officials.25 As for actual malice, Craig Chemaly, the
director at the time of Van Liew's Slow Growth Initiative,
testified that Dunn told Chemaly about the free offer and that
he relayed this information to Van Liew. The jury were free,
however, to discredit this version of events, which formed Van
Liew's professed good faith basis for making the false
statement.26 In any event, even if Van Liew did not learn that
there was no "free" offer until after he had already made the
statement, he repeated the false statement on many subsequent
statement that no ethics charges were ever brought by any
administrative, municipal, or governmental body.
25
Dunn's earlier January, 2011, deposition testimony is
consistent with his trial testimony.
26
Van Liew also admitted that he never telephoned Dunn to
ask questions about the free offer before publishing this
statement.
21
occasions, i.e., after Dunn denied making the free land offer
during his deposition.27
v. Permitting process and the restriction. In a mailing
to Chelmsford residents, Van Liew stated: "The permitting
process was fraudulent, as Phil Eliopoulos unlawfully
represented Epsilon Group, LLC before town boards. Epsilon's
building clearly violates MULTIPLE provisions of the
preservation restrictions." In an e-mail and Web site posting,
Van Liew made similar statements.
Again, the statements are false and defamatory. When Van
Liew published these statements, several Chelmsford boards and
commissions had already approved the project. Those involved in
the actual permitting process also testified unanimously to the
absence of facts tending to show that Philip had committed any
illegal, corrupt, or unethical acts. In particular, a former
member of the planning board of Chelmsford testified that, from
a zoning perspective, the permitting process was followed to a
"T." Likewise, two different law firms asked to render legal
opinions concluded that the restriction did not bar all future
27
Another statement, claiming that Dunn's deposition "shows
that Phil Eliopoulos and Paul Cohen have both lied about what
they did, what they knew" fares no better, where Dunn's
deposition contradicts the statement, Dunn's testimony was
substantially consistent with Philip's and Cohen's, and Van Liew
had Dunn's deposition testimony at the time he made the
statement.
22
development, an interpretation confirmed by the Land Court
judge.28 Moreover, two lawsuits challenging the project's
compliance with the restriction and the legality of the process
ended unfavorably to the challengers. A third lawsuit
challenging the project was dismissed. Van Liew admitted that
no court ever found that the project violated the restriction.
Finally, as for the allegation that Philip "unlawfully"
represented Epsilon, it had been expressly brought before the
commission, which did not pursue charges.29 On the basis of this
evidence, the jury could have concluded that the project did not
violate the preservation restriction, and the permitting process
was neither fraudulent nor unlawful. See Downey, 86 Mass. App.
Ct. at 664 ("[I]n contrast to statements of opinion, statements
28
In a second decision, dated July 28, 2011, the same Land
Court judge who earlier had denied relief to the abutters,
dismissed an action filed by Van Liew's attorney, McClure, for
failure to state a claim. In dicta, the judge found that the
allegations about violations of the restriction were without
merit, the board committed no error in its vote concerning the
restriction, and the planning board of Chelmsford lacked the
authority to deny the approval of the site plan "so as to
prevent the project from going forward altogether." Incredibly,
Van Liew testified that these Land Court decisions supported his
statements about the fraudulent process and the violations of
the restriction.
29
To the extent that Van Liew argues that the statement
does not concern Philip, he was inferentially included as part
of the so-called "Eliopoulos consortium." Moreover, after
Michael became ill with cancer, Philip stood in for him part
time during the construction process.
23
that present or imply the existence of facts that can be proven
true or false are actionable").
As for actual malice, at the time he published these
statements, Van Liew had read the legal opinions, the two
commission decisions, and the judicial decisions. The public
hearings held during the permitting process also were available
for viewing. While Van Liew testified that he relied on the
opinion of John Carson, a former member of the board, the jury
well could have disregarded Carson's opinion as incorrect or
irrelevant, and Van Liew's reliance as misguided, based on the
evidence.30 In sum, given the state of the evidence and Van
Liew's knowledge at the time, the actual malice standard was
met.
vi. Nonactionable opinion. Of the twenty-nine statements
the jury found defamatory, upon a generous review, we conclude
that three arguably do not pass evidentiary muster, as they
express nonactionable opinion.31 These three opinion statements
30
Van Liew neither appeared at any of the public hearings,
nor submitted questions, evidence demonstrating reckless
disregard for the truth of his statements. Van Liew also
declined Philip's many offers to debate him publicly on these
issues to "resolve the truth of these matters," opting instead
to issue the defamatory publications.
31
The three statements are:
"In Chelmsford, proponents of the recall have provided
evidence that former selectman Phil Eliopoulos used his
position and influence to keep town officials in the dark
24
are similar in content and theme to the remaining twenty-six
defamatory statements. They do not add measurably to
Eliopoulos's injury and, as detailed infra, the damages are
supported by the evidence. Indeed, the twenty-six defamatory
statements were published hundreds of times in multiple
platforms over a five-year period. Van Liew's defamation
campaign was unrelenting and the conclusion that three of the
statements were not actionable does not alter the result.32
3. Damages. The special verdict form directed the jury to
consider three categories of damages if they found that Philip
suffered harm as a result of the defamatory statements. The
while assisting his family to purchase land behind the
Center Fire Station that was of interest to the town both
as recreational space and to provide an area for low cost
improvements to the fire station. After resigning as a
selectman at the end of his term, he subsequently
represented his family's development corporation before
town boards . . . , an apparent violation of state ethics
laws."
"It's clear even from the evidence already in our
possession that Mr. Cohen and Mr. Eliopoulos acted
improperly, the sale of '[the property]' to the Eliopoulos
family can be voided."
"The research by me and others into ethics violations
by Phil Eliopoulos and Paul Cohen has proven disturbingly
fruitful and has made it clear that Chelmsford town
officials simply don't care to uphold the law . . . .
We're not asking for the moon. We want the lying by Cohen
and Eliopoulos and other officials to stop. We want the
law upheld."
32
The jury considered thirty nine statements in total and
found ten were not defamatory.
25
jury awarded reputational damages of $2.5 million, emotional
distress damages of $250,000, and compensatory damages of
$150,000. On appeal, Van Liew challenges only the reputational
and emotional distress damages awarded, arguing that they are
not grounded in evidence, but instead are "the product of an
inflamed and punitive jury."
"A plaintiff in a successful defamation case is entitled
. . . to fair compensation for actual damages, including
emotional distress and harm to reputation (and any special
damages that have been pleaded and proved)." Murphy, 449 Mass.
at 67, quoting from Ayash v. Dana-Farber Cancer Inst., 443 Mass.
367, 404-405, cert. denied sub nom. Globe Newspaper Co. v.
Ayash, 546 U.S. 927 (2005). "Punitive damages are prohibited,
. . . even on proof of actual malice." Stone v. Essex County
Newspapers, Inc., 367 Mass. 849, 861 (1975). Generally, "a
reviewing court should not disturb a jury's award of damages
unless it is clearly excessive" relative to the plaintiff's
evidence of damages, also keeping in mind "that appellate judges
have a special duty in reviewing verdicts in defamation cases,
'[b]ecause of constitutional considerations, and the potential
difficulties in assessing fair compensation.'" Ayash, supra at
404, quoting from Stone, supra. We conclude that in light of
the ample evidence of substantial harm suffered by Philip, even
factoring in the three nonactionable statements, the jury's
26
award was neither punitive, disproportionate to the injuries
proven, nor excessive.
First, the damages awarded were not punitive, as the judge
properly instructed the jury, consistent with the case law and
the Superior Court model jury instructions, that punitive
damages are not permitted in a defamation action. See, e.g.,
Massachusetts Superior Court Civil Practice Jury Instructions
6.4.1 (3d ed. 2014). The jury are presumed to have followed
these instructions. See Reckis v. Johnson & Johnson, 471 Mass.
272, 304 n.49 (2015), citing O'Connor v. Raymark Indus., 401
Mass. 586, 590 (1988). We next turn to the specific awards
challenged.
a. Reputational damages. The principal question for the
jury was the value of Philip's destroyed reputation. The
evidence established that he is a lifelong resident of
Chelmsford and, before Van Liew's actions, had a stellar
reputation as a hard-working, well-respected, and honest public
servant. Apart from his time as a member of the board, for
several years he also served as a representative town meeting
member for his precinct. Philip testified that his reputation
and his good family name have always been important to him.33
33
Philip explained that when he held up a sign during his
first campaign for the board, voters came up to him and said, "I
don't know who you are, but I know who your father is; I know
27
The jury could have found, based on the evidence and
testimony presented, that the defamation had a devastating and
continuing impact on that stellar personal and professional
reputation. Matthew Hanson, a member of the board and a real
estate broker, testified that potential real estate buyers and
sellers do not want to work with Philip because "a lot of folks
think that he is a -- a corrupt, unethical person, because it's
been said hundreds . . . of times, over the past few years, in
mailings and e-mails to their homes."34 Hanson had a good sense
of Chelmsford residents' opinion of Philip, as Van Liew's
mailings were the topic of hundreds of conversations Hanson had
with his constituents over the years. He testified that, as of
the date of trial, they were still discussing with him how they
were upset with Philip about the property.
Dennis Ready, another real estate broker and a member of a
committee opposing Van Liew's recall campaign, see note 7,
supra, testified that as part of his committee work he made
hundreds of telephone calls to Chelmsford residents. During
those calls, he learned that residents were angry at Philip and
who your uncle is; I know your reputation. And you've got my
support."
34
Philip counted 125 "lies and misinformation" about him in
Van Liew's mailings. The jury had before it one such mailing,
the glossy magazine-like publication entitled "Why Perjury
Matters," mailed to every Chelmsford household, which
republished many earlier defamatory statements.
28
viewed him as an "unethical" individual who had used a
"loophole" to steal land from Chelmsford. Ready testified that
his real estate clients would not take his recommendation to use
Philip as their attorney and that other brokers in his office
had similar experiences.
Philip also testified that local realtors had tried to
refer their clients to his firm, but were unsuccessful due to
his negative reputation in the community. As he put it, "Who's
going to want to do business with an attorney who they're
reading is being 'investigated' by the Attorney General?"
Philip also testified that he received anonymous hate mail
stating that the writer would never do business with Philip's
law firm.
The effect of Van Liew's defamation was pervasive and long-
reaching. Some of the statements were republished by regional
newspapers such as the Lowell Sun, which has thousands of print
and online readers. Pasquale Russo, a financial planner,
testified that when certain residents of a Chelmsford
condominium complex learned of Philip's involvement in a
retirement seminar planned for May, 2014, they refused to allow
the event to be held on the premises. Neither did the
statements stop after Van Liew filed the within lawsuit. Philip
testified that Van Liew had sent out a mailing about the
"illegal 9 North Road project" as recently as a couple of weeks
29
before the trial. Philip also testified that he had recently
searched his name on the Internet, the results of which included
several of Van Liew's defamatory statements.
b. Emotional distress damages. The jury heard evidence
about Philip's "[p]retty awful" feelings, embarrassment, and
humiliation at the lies published about him, as well as evidence
about his feelings of helplessness caused by his financial
inability to defend himself from Van Liew's continuing attacks.
Philip testified that he has woken up in the middle of the
night, thinking about the defamation. He spends time
anticipating the next mailing and dreads going to the mailbox
each day, wondering what new lies from Van Liew await. The
defamation campaign also curtailed his social life, as Philip
described that he has stopped going to community events and
Chelmsford celebrations and eating out in restaurants because he
"knew" that he would be the topic of others' conversations. In
addition, the jury heard evidence that Philip was personally
hurt watching his family go through this ordeal, and watching
his parents' pain and sadness at what was being said about him.
Compare Murphy, 449 Mass. at 67 (jury could consider pain
experienced by father watching his daughter suffer from
defamation directed against him).
Based on this wealth of evidence, the damages awards were
neither excessive nor disproportionate. The jury well could
30
have found that the defamation turned Philip into a pariah in
his own community, a status for him that has no end in sight.
See, e.g., Ayash, 443 Mass. at 371, 406-408 (affirming $2.1
million defamation award, including emotional distress awards of
$1,440,000 against newspaper and $360,000 against reporter);
Borne v. Haverhill Golf & Country Club, Inc., 58 Mass. App. Ct.
306, 319-321 (2003) (concluding $424,000 emotional distress
award not excessive).
Judgment affirmed.
Orders on posttrial motions
affirmed.