Heard: January 5, 2017.
action commenced in the Superior Court Department on January
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.
C. Newberry for Roland Van Liew & another.
H. Rich for the defendant.
Present: Green, Meade, & Blake, JJ.
2010, a bitter feud erupted between Chelmsford residents
Roland Van Liew and Philip Eliopoulos. Van Liew commenced the
dispute by accusing Eliopoulos, a local 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,  and he now appeals,  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
Real estate development in Chelmsford.
summer of 2008, Chelmsford real estate broker and developer
Michael Eliopoulos, Philip's father, approached
Eastern Bank about a historic home situated on a parcel of
land it owned in 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). 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
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 possible purchase of the
property. Ultimately, the committee identified a location on
Wilson Street for a new fire department
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 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.
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,
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, 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.
No wrongdoing found by State agencies.
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.
January 3, 2011, Van Liew filed the present action, with
Philip's counterclaim following shortly 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. 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,  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
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. 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. 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
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 proceedings against one of his attorneys, Richard
McClure; and (3) references to his anti-Vatican and
population control opinions.
the dog incident, the evidence provided a cause of Van
Liew's claimed emotional distress other than Philip's
statements. 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. See
Murphy v. Boston Herald, Inc., 449
Mass. 42, 49 (2007), citing St. Amant v.
Thompson, 390 U.S. 727, 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).
Van Liew did not preserve his objection to the introduction
of evidence about his opinions on the Vatican and population
control. 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 Mass. 1, 35 (2008). Even
if the issue had been preserved, we agree that Van Liew also
opened the door to this evidence.
Proof of defamation.
Elements and standard of review.
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. Bogoj
avlensky, 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. 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).
it is undisputed that Philip was a public official at the
time the statements were made,  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, 279-280 (1964);
King v. Globe Newspaper Co., 400
Mass. 705, 719 (1987), cert, denied, 485 U.S. 962 (1988).
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
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.
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 ofU.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 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 ...