EXHIBIT A I HE Search NOVEMBER 21, 2017 Shop Wall Shop Wall 7 Shop Art Art Furniture Mirrors Mirrors {3 ?23 0 NEWS FEATURES ARTS OPINION SPORTS COLUMNS MULTIMEDIA HOME OPINION OP-ED: SEEKING POWER OF VALUES OVER POWER OF MONEY ARCHIVES BLOGS OPINION Op-Ed: Seeking power of values over power of money BY CAMILO A. CABALLERO - NOVEMBER 6, 2017 In an election?eve address on Nov. 3, 1980, presidential candidate Ronald Reagan restated an exceptionally durable ideal that encapsulates the concept of American mptionaiism; believe that Americans in 1980 are every bit as committed to that vision of a shining ?city on a hill,? as were those long ago [Pilgrim] settlers." Whether you agreed with Reagan?s ideas and policies, his reference to the concept of a ?shining city on a hill? one founded on high moral and ethical principles and devoted to the rights of the individual is a core American belief. This is a concept that has been embraced here in the United States by many individuals and organizations. 9 COMMENTS DISABLED TAGS TUFTS UNIVERSITY One of these organizations is very close to home to all of us: Tufts University, which I regard as a shining school ?upon a hill.? Its vision is ?to be an innovative university of creative scholars across a broad range of schools who have a profound impact on one another and the world.? Tufts is a place of high ideals, of research, of a commitment to truth that serves not mammon, but morality, through strengthening a sense of the central importance of values in individuals and in society and the institutions that govern our respective relations. It is a place that seeks to solidify the power of values over the power of money. Given this durable concept of a shining city on a hill that is a beacon of morality for Americans and the world, and given that Tufts subscribes to this vision, then it is our responsibility as students of Tufts, as faculty or staff or trustees, to do everything in our power to preserve, strengthen and expand this noble vision. However, there sits on the B_o_a__rd of_Adv'sors_of the Fletcher School of Law and Diplomacy at Tufts a man ELLE. mews LAW AND ANTHONY SCARAMUCCI RONALD REAGAN AMERICAN CITY ON A HILL ADVISORS OF I SCHOOL OF LAW AND DIPLOMACY I HOLOCAUST DENIERS whose career and ideals are diametrically opposed to those ideas and who sullies the vision of the University. This is Anthony Scaramucci, a man who began his infamously short career as the White House communications director by uttering profanity-laced comments on national news outlets, the man who sold his soul in contradiction to his own purported beliefs for a seat in that White House and a man who makes his Twitter accessible to friends interested in giving comfort to Holocaust deniers . A man who is irresponsible, inconsistent, an unethical opportunist and who exuded the highest degree of disreputability should not be on the Fletcher Board. The Board of Advisors plays a critical role in building the spirit of our school and also, in more practical terms, board members define and oversee our school?s operations. Scaramucci has, in his career and actions, demonstrated nothing that would align his values with those of the Fletcher School. His presence on the board instead places the credibility of Fletcher at risk. I EXCEPTIONALISM So why should Scaramucci be on the board? Nothing in his past provides a valid reason, unless a decision has been made to enshrine the power of money over the power of values. If his credentials lie in the billions of dollars he made on Wall Street, then we have, as a school, abandoned our principles and vision. If Scaramucci can have a seat on our board, then Martin Shkreli, ?the most hated man in America,? is worthy of an invitation to sit as well. We are at a critical moment in our history as a nation, a point outlined this past week by two former US Presidents, George W. Bush and Barack Obama. Both former presidents warned in separate speeches of the dangers to democracy of a drift toward extreme nationalism, bigotry and exclusion and away from the ideas of exceptionalism that have made the United States a nation of aspirations and achievement. Their concerns and warnings have been echoed by our own Fletcher School Dean, retired Admiral James Stavridis. In an April 13, 2017 Iinjegp?d, Admiral Stavridis warned that our country has ?arrived today at a point when our credibility feels unusually low, which will create real drag on our ability to build coalitions, convince allies and partners to come along on our missions, and convince the neutral nations of the world that we are in the right.? Admiral Stavidris, along with Bush and Obama, have identified the core issue facing this country, but our dean also could be speaking directly to the core reason Scaramucci is such a terrible representative for the board. If Scaramucci exacerbated this critical issue of mistrust for the entire country during his brief White House stint, he certainly will do it to an even greater effect for Fletcher. At a pivotal moment in American history when the most sacred tenets of American culture are being challenged, what is perhaps most crucial is that those who claim to seek a greater purpose stand clearly for what they so proudly and profoundly preach. It has taken much toil and sacrifice to create a vision however imperfect of the United States as a shining city on a hill, one whose focus is on values and their transformative power. Similarly, toil and sacrifice have built Tufts into a shining example of all that is good and right about higher education. Obviously there is no reason to mistrust Fletcher as an institution, but having a man such as Scaramucci on the Board of Advisors can be a reason to start. Now is not the time to diminish what has been created. Now is not the time to empower those like Scaramucci with the authority to diminish the values of this great university and the Fletcher School. More than 240 Fletcher students, faculty and alumni signed a student-led petition, requesting the removal of Scaramucci from the board. ?His ?advice? is not worthy of our institution, and his presence on the board could be a disincentive for new students looking to attend Fletcher and alums looking to donate to the school,? wrote Carter Banker, a student at Fletcher and the originator of the petition to remove Scaramucci. We need to stand with these petitioners. Let?s make our concerns and voices heard. Let?s not let Scaramucci?s continued presence on the Board of Advisors dull the brilliant shine of our school upon the hill. Our students, our alumni and our supporters need to know at Tufts, the power of values is above the power of money. Comments are closed EXHIBIT THE Search TUFTS DAILY NOVEMBER 20, 2017 NEW ART QPINIQN MULTIMEQIQ HOME OP-ED: TUFTSIFLETCHER AND FACULTY ARE SMARTER QPINIQN Op-Ed: Tufts/Fletcher administration fell into Scaramucci?s trap: Students and faculty are smarter BY NOVEMBER 13. 2017 The recent petition calling into question the rationale and propriety of Anthony Scaramucci?s appointment to The Fletcher School of Law and Diplomacy Wm; has generated public interest. What the petition has not generated is a clear sense of duty and responsiveness from the administration, which 9 COMMENTS . . . DISABLED seems torn between Inactlon In the hope the concerns raised will just go away and action that demonstrates either a blind spot as to the proper process to be followed or an effort to de?ect and misdirect attention. Theadministration?s response brings to mind Albert .Einstein's assessment of the costly price of indifference: ?The world is a dangerous place, not because of those who do evil, but because of those who look on and do nothing.? Thus we have an offer from the dean?s office an event on Nov. 16 that is billed as a primer on ?the Board, its role, membership, and policies.? What this has to do with the issue at hand is anyone?s guess it is tangential to the concerns that have been raised. In addition, the administration has announced its intentions to invite Scaramucci to campus to discuss his ?experiences in the private and public sectors, and lessons learned.? This invitation by Tufts and the Fletcher School, as the ?rst statement/response they have put out since the WW and the Boston Globe article . is a way to give Scaramucci a platform to legitimize his unethical behavior. TAGS LJNIVEBSI ItlE LAW AND ONLINE NS THE GLOBE SCARAMUCCI BOARD OF W5 OF THE FLE I CHEB QF MENU CARTER BANKER These two events are the administration?s response to the petition. They are the textbook definition of Einstein?s assessment of doing nothing. They demonstrate a lack of understanding of their responsibilities. So it is time to remind the administration and the board of their roles and responsibilities vis-a-vis students, faculty and staff. The petition represents the efforts of a student to raise concerns about an individual?s appointment to the board. The petition raises a valid question to the administration and the board: is Scaramucci, as a member of the Fletcher School?s Board of Advisors, a person that best represents the values and migiiojlfor which our school stands: ?To be an innovative university of creative scholars across a broad range of schools who have a profound impact on one another and the world.? It has been delivered to the administration and board. The next step is for the administration and the board to respond to this petition. In responding, they must ask themselves if Scaramucci?s behavior is indeed what they want representing our school. If the answer is then they should exercise their authority to remove him, and to send a message to students, faculty, staff and alumni that reaffirms the school?s mission and goals. If the answer is ?yes," then they should explain to students, faculty, staff and alumni why they condone his behavior and the justi?cation for his continued service. Further clouding the issue and the proper process to be followed are the actions of Scaramucci. He used the Boston Globe article to reach out to students on Twitter as bait to get what he wanted, which was a platform for legitimacy. He followed some students who would retweet the Boston Globe story in order to spark conversations, and through Twitter he ?nally asked the organizer of the petition to invite him to campus to speak. So let us remind Scaramucci of process. Students have raised a concern about his serving on the board and being able to uphold the school?s ideals and represent it. These concerns, properly, are not addressed to him but must be addressed to the administration and the board. It is the responsibility of the board to either take up or to ignore these concerns. If they do take them up, then Scaramucci?s dialogue will need to be with the actors with the authority to decide his fate and that is not students. There is nothing wrong with inviting individuals and groups to speak on campus, and the administration or any student organization can certainly invite Scaramucci or anyone they please. The invitation to speak is not the issue. The issue is Scaramucci?s seat on the board and what will be the administration's response to the petition. An invitation to speak to the campus has nothing to do with this response and is a separate item. But as we know now, Scaramucci has shown his intentions while in the White House as well as in his public statements that he cares about gaining attention and nothing more, and we should not let this distract us from what the administration wishes to avoid having to take up and answer. As students, faculty, alumni and staff at Tufts and Fletcher, the only way to stay true to our values and beliefs, the only way to counter the unethical narrative, the only way to preserve the Tufts and Fletcher reputation, is to send out a uni?ed message to our administration, that we never asked for a meeting with Scaramucci, we will not be seduced by this clumsy attempt at misdirection and we will not attend this discussion. Through the petition, we have expressed that we believe Scaramucci stands in the way of what we came to Tufts and Fletcher to accomplish, and what donors and future students want to accomplish. Now we are waiting to hear what the administration and the board believe. ,Let?s not get distracted. Let?s help the administration see its duty and responsibility. What is important now is to continue to share?amjiigl the petition, a movement our classmate Carter Banker so courageously started. Comments are closed EXHIBIT Van Liew v. Eliopoulos, 92 Mass.App.Ct. 114 (2017) guess 898 actual malice; 92 Mass.App.Ct. 114 Appeals Court of Massachusetts, business owner?s statements regarding alleged fraud in Middlesex.. the property?s permitting process were defamatory and made with actual malice; and Roland VAN LIEW ?1 damages awarded were not punitive, disproportionate Philip Hands on Technology . to the injuries proven, or excessive. Transfer, Inc., Third-party Defendant. N0. 16?lP-567. Af?rmed. Argued January 5, 2017 I Decided August 25, 2017 West Headnotes (3 9) Synopsis ll] Trial Background: Local business owner brought a defamation against a local selectman who was also a real estate attorney arising from selectman?s public response to the business owner?s widely published statements criticizing selectman for allegedly engaging in self?dealing and con?icts of interest in connection with the development of historic property. Selectman counterclaimed for defamation. The Superior Court Department, Kenneth V. Desmond, Jr., J., entered judgment upon jury verdict awarding selectman $2.9 million in damages. Business owner appealed. Holdings: The Appeals Court, Blake, J., held that: evidence regarding an attempt by business owner to poison a neighbor?s dog and his attorney?s investigation for con?icts of interest were not unduly prejudicial; business owner?s statements regarding the ethics related to purchase of disputed property were defamatory and made with actual malice; business owner?s statements regarding selectman?s alleged self-dealing while voting as a member of board of Selectmen were defamatory and made with actual malice; business owner?s statements that selectman was under investigation by Attorney General?s Of?ce were defamatory and made with actual malice; business owner?s statements that an employee of the prior owner of the property previously offered to give the propeity to town for free was defamatory and made with Ill limitations Time limit on plaintiff?s case-in-chief was not an abuse of discretion in a defamation action, where the examination of the plaintiff?s ?rst witness took more than eight days instead of the six or seven estimated for his entire case and two jurors sent notes to the judge expressing concerns about the length of the trial. Cases that cite this headnote Evidence .-nTendency to mislead or confuse Evidence that plaintiff attempted to poison his neighbor?s dog, which information town residents learned from a mass mailing and published report from defendant, who was a local selectman, in response to plaintiff?s wide publication of allegedly defamatory statements about defendant, was not substantially more prejudicial than probative in defamation action; evidence provided a cause of plaintiff?s claimed emotional distress other than defendant?s statements, and plaintiff opened the door to the evidence by testifying that he was perceived as a ?good neighbor.? Mass. Guide to Evid. 403, 608. 2017 Thomson Reuters. No claim to original US. Government Works. ?1 Van Liew v. Eliopoulos, 92 Mass.App.Ct. 114 (2017) 84 898 l3] Cases that cite this headnote Evidence Gi=Tendency to mislead or confuse Evidence related to the commission enforcement proceedings that were occurring against one of plaintiff?s attorneys for con?icts of interest was not substantially more prejudicial than probative in defamation action in which defendant counterclaimed for defamation; the evidence of the investigation was probative of plaintiffs recklessness in continuing to rely on the investigated attorney?s advice in continuing to publish statements about defendant after learning of the investigation. Mass. Guide to Evid. 403. Cases that cite this headnote Appeal and Error QaNecessity of timely objection Appeal and Error =2--Objections to evidence and witnesses Plaintiff did not preserve for appeal his objection to the introduction of evidence about his opinions on the Vatican and population control as unduly prejudicial in defamation action, where at trial plaintiffs counsel objected to the evidence on the basis of foundation, relevance, and hearsay, and did not object on the basis ofprejudice until the following day. Cases that cite this headnote Evidence '81 ~i?4Evidence Admissible by Reason of Admission of Similar Evidence ofAdverse Party Plaintiff opened the door to admission of evidence of his opinions on the Vatican and population_control in_ a defamation action in which the defendant, a local selectman, counterclaimed for defamation, where plaintiff attempted to tie the defendant to the creation of an anti-recall document containing plaintiffs controversial opinions, plaintiff testi?ed that this document was defamatory and negatively affected his reputation, and the jury learned about the subject matter document only after plaintiff unexpectedly denied that his article and views were controversial. Cases that cite this headnote Libel and Slander ~r=Nature and elements of defamation in general 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. Cases that cite this headnote Libel and Slander .s-nActionable Words in General If a challenged statement is plainly an opinion or subjective view, rather than a statement of fact, it is not actionable as defamation as a matter of law. Cases that cite this headnote Libel and Slander @Construction oflanguage used In defamation actions, the test to be applied in determining whether an assertion is a statement of fact or Opinion, requires that the court examine the statement in its totality in the 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 Van Liew v. Eliopoulos, 92 Mass.App.Ct. 114 (2017) 84 898 [10} In] context in which it was uttered or published. Cases that cite this headnote Libel and Slander -&=Construction of language used To determine whether an allegedly defamatory statement is a statement of fact or opinion, the court must consider all the words used, not merely a particular phrase or sentence. Cases that cite this headnote us] Libel and Slander ?I=Construction of language used To determine whether an allegedly defamatory statement is a statement of fact or opinion, the court must give weight to cautionary terms used by the person publishing the statement. Cases that cite this headnote 14l Libel and Slander of language used To determine whether an allegedly defamatory statement is a statement of fact or opinion, 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. Cases that cite this headnote Libel and Slander Local business owner published allegedly defamatory statements about local selectman in a variety of media outlets including mass e-mails, letters, and Web site postings, for the purposes of defamation, despite having had the statements vetted by a First Amendment ?expert,? where business owner created and funded the organizations that dispersed the statements, personally signed 20 of them, and the First Amendment ?expert? was not credible. U.S. Const. Amend. 1. Cases that cite this headnote Libel and Slander wCharacter and conduct of public of?cers and employees Local selectman, a public of?cial, was required to prove actual malice in addition to common-law elements of defamation to prevail on his defamation claims against a local business owner. Cases that cite this headnote Libel and Slander wrCriticism and comment on public matters and publication of news To establish malice in a defamation action in which the plaintiff is a public of?cial, a ?nding of ?reckless disregard? requires proof that the publisher acted with a high degree of awareness of its probable falsity or, in other words, enteitained serious doubts as to the truth of his publication. Cases that cite this headnote Libel and Slander malice, or good faith In defamation actions where plaintiff is a public of?cial, an inference of actual malice may be 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 Van Liew v. Eliopoulos, 92 Mass.App.Ct. 114 (2017) s4 898 [16] [17] drawn from circumstantial evidence. Cases that cite this headnote Appeal and Error (FReview of Speci?c Questions and Particular Decisions An appellate court, when faced with a defamation case, must independently review the record as to each defamatory statement about a public of?cial to make certain that it supports the jury?s ?nding of actual malice. Cases that cite this headnote Appeal and Error {le?rovince of jury When an appellate court independently reviews each defamatory statement about a public of?cial to make certain that it supports the jury?s ?nding of actual malice, the court must defer to the jury?s assessments of credibility and demeanor. Cases that cite this headnote Appeal and Error and torts in general In a defamation action involving published statements about a public of?cial, the appellate court?s constitutionally required independent examination of each statement to determine if it supports the jury?s ?nding of actual malice takes place when, after compiling all of the facts implicitly established by the ju1y?s verdict, the appellate court considers whether that body of facts, clearly and convincingly, supports a determination of actual malice. Cases that cite this headnote WEETLAW 2017 Thomson Reuters. No claim to original US. Government Works. ll9l [20] Libel and Slander of?cers and employees Local business owner?s statements, published in a variety of media outlets including mass e-mails, letters, and Web site postings, regarding local selectman?s alleged con?icts of interest and ethics related to the purchase of historic property for development were defamatory, where ?ve of the statements put ferth as fact that the selectman lied to either public of?cials or investigators, 13 of the statements maintained that the selectman?s acts or the acts of other of?cials constituted state ethics violations, and the many of the statements referred to back room deals, con?icts of interest, and cover-ups as fact. Cases that cite this headnote Libel and Slander vaCriticism and comment on public matters and publication of news Local business owner?s defamatory statements, published in a variety of media outlets including mass e-mails, letters, and Web site postings, regarding local selectman?s con?icts of interest and ethics in the purchase of historic property for development were made with actual malice, even if business owner consulted an ethics statute before making statements, where resident knew that Ethics Commission reviewed selectman?s actions as real estate counsel for sale of property and determined no further investigation was warranted, business owner knew that the sale of property was not the result of some ?back room deal,? and business owner knew a land court judge also reached same conclusion as Commission that selectman?s actions did not warrant further investigation. Cases that cite this headnote Van Liew v. Eliopoulos, 92 Mass.App.Ct. 114 (2017) 84 898 Ill] [22] l23l Libel and Slander ??aExecutive of?cers and employees Local business owner?s statements, published in a variety of media outlets including mass e?mails, letters, and Web site postings, regarding a local selectman allegedly using his position on board of selectmen to engage in self-dealing to enable a real estate transaction with voting were defamatory, where neither the selectman nor board voted against city purchasing the property, which selectman?s father later purchased for development. Cases that cite this headnote Libel and Slander ?FCriticism and comment on public matters and publication of news Local business owner?s defamatory statements, published in a variety of media outlets including mass e-mails, letters, and Web site postings, regarding a local selectman allegedly using his position on the board of selectmen to engage in self-dealing to enable a real estate transaction with voting were made with actual malice, where business owner possessed board minutes of meeting in question showing that neither selectman nor the rest of board voted in the alleged manner, and business owner had a video recording of the meeting and had watched it many times. Cases that cite this headnote Libel and Slander -;=Executive of?cers and employees Local business owner?s statement, published in a Web site posting, that local selectman was under investigation by the Attorney General?s Of?ce for his conduct in a real estate transaction was defamatory, where there was no investigation. cite this headnote 25] 26 Libel and Slander %~Criticism and comment on public matters and publication of news Local business owner?s defamatory statement, published in a Web site posting, that local selectman was under investigation by the Attorney General?s Of?ce was made with actual malice, where Attorney General?s Of?ce would not accept business owner?s complaint about the selectman because it did not have jurisdiction, business owner received a letter from Attorney General?s Of?ce stating that ethics issues were a matter for the Ethics Commission, and business owner asked to have the statement removed from his website not because of any inaccuracy but because it was taking the website ?off-message.? Cases that cite this headnote Libel and Slander of?cers and employees Libel and Slander ~3=-Criticism and comment on public matters and publication of news Local business owner?s published statement that a local selectman was under investigation for ?major state ethics charges? was defamatory and made with actual malice, where business owner knew when he made the statement that no ethics charges were brought by any administrative, municipal, or governmental body. Cases that cite this headnote Libel and Slander c.--aExecutive of?cers and employees Local business owner?s statement, in a mass mailing to town residents, that a bank employee had offered previously to give the real estate that 2017 Thomson Reuters. No claim to original US. Government Works. 5 Van Liew v. Eliopoulos, 92 Mass.App.Ct. 114 (2017) greases? [27] 23l was sold to the local selectman?s father to the city for free was defamatory, where the employee never made such a statement, and never discussed the tax consequences of a possible land donation with city of?cials. Cases that cite this headnote Libel and Slander +=Criticism and comment on public matters and publication of news Local business owner?s defamatory statement, in a mass mailing to town residents, that an employee of a disputed property?s prior owner previously offered to give the property to the city for free before it was sold to local a selectman?s father was made with actual malice, even if business owner did not learn that there was no ?free? offer until after he had already made the statement, where he repeated the false statement on many subsequent occasions after the employee denied making the free land offer during his deposition, and business owner never telephoned the employee to ask questions about the free offer before publishing the statement. Cases that cite this headnote Libel and Slander veExecutive of?cers and employees Local business owner?sstatements, in a mass mailing to town residents, that the permitting process surrounding the development of historic property was fraudulent as a result of the involvement of a local selectman were defamatory, where several city boards and commissions had approved the project, those involved in the permitting process unanimously testi?ed to the absence of any fraud, two different law ?rms and a land court judge rendered opinions that the city?s restriction did not bar the development, and two lawsuits challenging the project?s compliance with the restriction and legality of the process were resolved unfavorably to the challengers while a [29] FM [31] third lawsuit was dismissed. Cases that cite this headnote Libel and Slander 6==Criticism and comment on public matters and publication of news Local business owner?s defamatory statements, in a mass mailing to town residents, that the permitting process surrounding the development of historic property was ?'audulent as a result of the involvement of a local selectman were made with actual malice, where the business owner had read the legal opinions, judicial decisions, and commission decisions af?rming the legality of the project and integrity of the permitting process before publishing his statements and the business owner neither appeared at any of the public hearings nor submitted questions regarding the project. Cases that cite this headnote Libel and Slander e?-Executive of?cers and employees Local business owner?s allegedly defamatory statement, published in a variety of media outlets including mass e-mails, letters, and Web site postings, that a local selectman used his position and in?uence to keep town of?cials in the dark while assisting his family to purchase land and that he apparently violated state ethics laws in representing his family?s development corporation was nonactionable opinion. Cases that cite this headnote Libel and Slander w-Executive of?cers and employees Local business owner?s allegedly defamatory statement, published in a variety of media 2017 Thomson Reuters. No claim to original US. Government Works. 6 Van Liew v. Eliopoulos, 92 Mass.App.Ct. 114 (2017) El?fiis'JEQE [32] outlets including mass e-mails, letters, and Web site postings, that it was clear that a local selectman acted improperly and that the sale of land to his family could be voided was nonactionable opinion. cases that cite this headnote Libel and Slander ?uExecutive officers and employees Local business owner?s allegedly defamatory statement, published in a variety of media outlets including mass e-mails, letters, and Web site postings, that he wanted the lying by a local selectman to stop and that research into ethics violations had proven disturbingly fruitful was nonactionable opinion. [36] Cases that cite this headnote Libel and Slander uJ?uElements of Compensation 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. Cases that cite this headnote Libel and Slander 'awExemplary Libel and Slander e==~0n ground of malice or recklessness Punitive damages are prohibited in defamation actions, even on proof of actual malice. '38] Cases that cite this headnote Appeal and Error eaPaIticular Cases and Items Generally, a reviewing court should not disturb a jury?s award of damages in a defamation action unless it is clearly excessive relative to the plaintiff?s evidence of damages. Cases that cite this headnote Appeal and Error wParticular Cases and Items Appellate judges have a special duty in reviewing verdicts in defamation cases to ensure fairness and constitutional protections. Cases that cite this headnote Libel and Slander wrSlander Damages of $2.9 million were not punitive for the defamation of a local selectman by a local business owner who published a minimum of 26 defamatory statements hundreds of times on multiple platforms, including mass e-mails, letters, and Web site postings, over a five-year period about the selectman?s alleged shady political dealings in his work as a real estate attorney; the judge properly instructed the jury, and the jury was presumed to have followed the instructions. Cases that cite this headnote Libel and Slander Slander Reputational damages of $2.5 million were not excessive for the defamation of a local selectman by a local business owner who 2017 Thomson Reuters. No claim to original US. Government Works. 7 Van Liew v. Eliopoulos, 92 Mass.App.Ct. 114 (2017) 898 published a minimum of 26 defamatory statements hundreds of times on multiple platforms, including mass e-mails, letters, and Web site postings, over a five-year period about the selectman?s alleged shady political dealings in his work as a real estate attorney, where selectman was a lifelong resident of the city with a stellar reputation and respected family name, the defamatory statements led to the selectman suffering a loss of business, and the defamation was pervasive and long reaching. Cases that cite this headnote I391 Libel and Slander arm-Slander Emotional distress damages of $250,000 were not excessive for the defamation of a local selectman by a local business owner who published a minimum of 26 defamatory statements hundreds of times on multiple platforms, including mass e-mails, letters, and Web site postings, over a five-year period about the selectman?s alleged shady political dealings in his work as a real estate attorney, where selectman presented evidence of the embarrassment and humiliation the selectman sustained, the harm the defamation caused in his social life, and the injury he sustained from watching his family ostracized as a result of the defamation. Cases that cite this headnote Libel and Slander. Constitutional Law, Libel and slander. Damages, Libel, Emotional distress, Remittitur. Ethics Commission. Conflict of Interest. Emotional Distress. Practice. Civil, Judicial discretion, Instructions tojury. CIVIL ACTION commenced in the Superior Court Department on January 3, 201 l. 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. Attorpeys and Law Firms Brian C. Newberry, Boston, for Roland Van Liew another. David H. Rich, Boston, for the defendant. Present: Green, Meade, Blake, JJ. Opinion 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 selectman, of shady political dealings in his work as a real estate attorney. After Eliopoulos responded publicly to the allegations, Van Liew ?led 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 Chelmslin?d. In the summer of 2008, Chelmsford real estate broker and developer Michael Eliopoulos, Philip?s-i 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 ?rm reviewed draft agreements and served as real estate counsel. The sale closed on June 17, 2009, after which the 2.4I-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 selectrnen (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 the station, which was located on 2017 Thomson Reuters. No claim to original US. Government Works. 8 van Liew 92 114 (2017) 84 893 -- 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 ?re 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 identi?ed a location on Wilson Street for a new ?re department headquarters.5 Beginning in April, 2009, after the expiration of his board term, Philip assisted Michael in his development of the propeity. The plan called for the rehabilitation of the historic house, and the construction of a new four-unit, family-owned of?ce 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. 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 of?cials 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, in?uence peddling, and ?xed 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.7 3. Ne wrongdoing found by Slate agencies. In late 2009, Philip voluntarily subjected himselfto 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 of?ce of the Attorney General also declined to investigate Philip. No ?nding 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 ?led 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 ajury. At the close of the case, the jury were given a special verdict form, which properly de?ned the requirements of defamation involving a public of?cial 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 insuf?cient, 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 irjfga. ?llJiscussion. l. fividenlinrv 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.? 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, 716 144 (1999) judge, as the guiding spirit and controlling mind of the trial, should be able to set reasonable limits on the length ofa 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) WESTLAW 2017 Thomson Reuters. No claim to original US. Government Works. 9 Van Liew v. Eliopoulos, 92 Mass.App.Ct. 114 (2017) 84 NiE??d 89'8? .. .. . 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. I3lAs to the dog incident, the evidence provided a cause of Van Liew?s claimed emotional distress other than Philip?s statements.l2 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. lnc., 449 Mass. 42, 49, 865 746 (2007), citing SI. Al'nanl v. 390 U.S. 727, 730-732, 88 1323, 20 L.Ed.2d 262 (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 v. 440 Mass. 482, 493, 802 521 (2003). '41 ISlFinally, Van Liew did not preserve his objection to the introduction of evidence about his opinions on the Vatican and population control.H 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 Maryann; v. 452 Mass. 1, 35, 890 819 (2008). Even if the issue had been preserved, we agree that Van Liew also opened the door to this evidence.'5 ll2'2. Proof of defamation. a. Elements and standard of revie_w. To prove defamation, a plaintiff must establish that ?the defendant was at fault for the publication ofa 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. BE Cress Blue Shield of Mass? Inc., 442 Mass. 64, 66, 809 1034 (2004), citing Ravnikar v. Boatiiavienskv, 438 Mass. 627, 629-630, 782 508 (2003). See _Edwartls v. Colnlnomveahh, 477 Mass. 254, 262-263, 76 248 (2017). Ifa challenged statement is plainly an opinion or subjective view, rather than a statement of fact, it is not actionable as a matter oflaw. Scholz v. D_elp, 473 Mass; 242, 251, 41 38 (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.? Downev v. Chutchall Constr. (30., 86 Mass. App. Ct. 660, 663-664, 19 470 (2014), quoting from Cole v. Westinghouse Co, 386 Mass. 303, 309, 435 1021, cert. denied, 459 U.S. 1037, 103 449, 74 L.Ed.2d 603 (1982).? ?31Because it is undisputed that Philip was a public of?cial 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 Q. v. Sullivan, 376 U.S. 254, 279-280, 84 710, 11 L.Ed.2d 686 (1964); King v. Globe Newspaper Ctr, 400 Mass. 705, 719, 512 241 (1987), cert. denied, 485 U.S. 962, 108 1227, 99 L.Ed.2d 427 (1988). ?5'ln Murphy, 449 Mass. at 48, 865 746, 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 of?cial or public figure, even when that statement is shown to be false and defamatory. In 'l'iineigi., 376 U.S. at 279?280, 84 7l0], 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.? 2017 Thomson Reuters. No claim to original U.S. Government Works. 10 its. Van Liew v. Eliopoulos, 92 Mass.App.Ct. 114 (2017) 84 898 A ?nding 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, at 43, 48, 865 746 (citation omitted). An inference of actual malice may be drawn from circumstantial evidence. M. at 57-58, 865 746. ?71 ?slAn appellate court, when faced with a defamation case, must independently review the record as to each defamatory statement to make certain that it supports thejury?s ?nding of actual malice. m. at 49, 865 746, citing Bose Corp. v. Consumers Union of US. Inc., 466 US. 485, 514 n.3l, 104 1949, 80 L.Ed.2d 502 (1984). In doing so, the court must defer to the jury?s assessments of credibility and demeanor. E- at 50, 865 746. ?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.? b. Altair'sis or? 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 ?nding of actual malice. Ethics related to purchase el'lhe property. More than one-half of the twenty-nine statements implicate Philip?s Wiity and the legality of Iristmwith respect to the purchase of the property. Five statements say that he lied either to public ?'?cials or to irrvesti" rs, ?Net a single selectniart 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 at er officials, constituted illegal State ics violations, ?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 contention that Philip and C. I .For example, ?Nor did [town manager Cohen] 1ep01t 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 4 opinion, they are false and defamatory where they refer to deals, con?icts illegal J?harinxt?l?jw_ act. 1* No evidence was ever uncovered supporting Van Liew? allegations of back room dealings, illegality, or graft. The commission investigations of Philip and Cohen, which encompassed Philip?s interactions with Chelmsford during negotiation and [Ir in no :1 taken. In short, Philip was never charged 0 nd to have committed an ethics violation Where ther was no violation, neither could there have been a cover-u or a failure to report. 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 ?satis?ed 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 ?rst 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, that there had been no wrongdoing?? 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, 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. Vt?ltll't? recent Van Liew stated many times that while Philip was a member of the board, he voted in March of wesraaw 2017 Thomson Reuters. No claim to original US. Government Works. 11 Van Liew v. Eliopoulos, 92 Mass.App.Ct. 114 (2017) 84 HEB-3898 .- 2009 against Chelmsford purchasing the property. The following is a typical example: ?Eliopoulos was simultaneously serving as the Chairman of the [board] and voted against [Chelmsford] purchasing [the property].? lz?lThe 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 K_ing, 400 Mass. at 717-718, 512 241.2 ?nding 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 The jury accordingly could have found that he knew the statements were false when he made them. Luvestigaliurr. Van Liew twice stated that Philip was under investigation, ?Cohen, Eliopoulos Under [T]he Attorney General?s of?ce is now focusing on the town of Chelmsford and in particular the former selectman Phil Eliopoulos.? evidence presented supports a ?nding of both defamation and actual malice. As to the former, after the above statement circulated, both Philip and Cohen learned from the of?ce 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 of?ce of the Attorney General would not accept his complaint about Philip because it had no jurisdiction. Van Liew also received a letter from the of?ce of the Attorney General stating, as he said, that the ethics issues ?belonged with the iv. Statements lti 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 costithat?s right, for free.? l27'At trial, Dunn, who was responsible for the sale of the property, con?rmed this was a false statement. He denied that he had ever made such an offer, and testi?ed that he had not discussed tax consequences ofa possible land donation with Chelmsford of?cials.25 As for actual malice, Craig Chemaly, the director at the time of Van Liew?s Slow Growth Initiative, testi?ed 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 occasions, after Dunn denied making the free land offer during his deposition.27 v. 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. Epsilbn?s building clearly violates MULTIPLE provisions of the preservation restrictions.? In an e-mail and Web site posting, Van Liew made similar statements. lzslAgain, 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 testi?ed 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 testi?ed that, from a zoning perspective, the permitting process was followed to a Likewise, two different law ?rms asked to render legal opinions concluded that the restriction did not bar all future development, an interpretation con?rmed 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.? On the basis ofthis 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, I9 470 contrast to statements of opinion, statements that present or imply the existence of facts that can be proven true or false are actionable?). '29'As for actual malice, at the time he published these 2017 Thomson Reuters. No claim to original US. Government Works. 12 Van Liew v. Eliopoulos, 92 Mass.App.Ct. 114 (2017) 84 8'98 7" 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 testi?ed 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?? In sum, given the state of the evidence and Van Liew?s knowledge at the time, the actual malice standard was met. I32lvi. Nonaclionnble 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.?I These three opinion statements 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 m, the damages are supported by the evidence. Indeed, the twenty?six defamatory statements were published hundreds of times in multiple platforms over a ?ve-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. [Egg 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 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 punitivejury.? '33] [35] 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, 865 746, quoting from Avash v. Dana-lather Cancer lnsl., 443 Mass. 367, 404-405, 822 667, cert. denied sub nom. Globe v. Ayash, 546 U.S. 927, 126 397, 163 L.Ed.2d 275 (2005). ?Punitive damages are prohibited, even on proof of actual malice.? Stone v. Essex (.?antv Newspapers, Inc., 367 Mass. 849, 86], 330 16] (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 2017 Thomson Reuters. No claim to original U.S. Government Works. 13 of constitutional considerations, and the potential dif?culties in assessing fair compensation.? Ayash, ?pr_a at 404, 822 667, quoting from Stow, M. 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 award was neither punitive, disproportionate to the injuries proven, nor excessive. irst, 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, 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 at Johnson, 471 Mass. 272, 304 n.49, 28 445 (2015), citing O?Connor v. Raymark 401 Mass. 586, 590, 518 510 (1988). We next turn to the speci?c awards challenged. I38la. Reputationi?g?inaues. 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 testi?ed that his reputation and his good family name have always been important to him.J3 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, testi?ed 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 testi?ed 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, m, testi?ed that as part of his committee work he made hundreds of telephone calls to Chelmsford residents. During those calls, he learned that residents Van Liew v. Eliopoulos, 92 Mass.App.Ct. 114 (2017) 84 89? were angry at Philip and viewed him as an ?unethical? individual who had used a ?loophole? to steal land from Chelmsford. Ready testi?ed that his real estate clients would not take his recommendation to use Philip as their attorney and that other brokers in his of?ce had similar experiences. Philip also testi?ed that local realtors had tried to refer their clients to his ?rm, 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 testi?ed that he received anonymous hate mail stating that the writer would never do business with Philip?s law ?rm. 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 ?nancial planner, testi?ed 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 ?led the within lawsuit. Philip testi?ed that Van Liew had sent out a mailing about the ?illegal 9 North Road project? as recently as a couple of weeks before the trial. Philip also testi?ed that he had recently searched his name on the Internet, the results of which included several of Van Liew?s defamatory statements. I39lb. 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 ?nancial inability to defend himself from Van Liew?s continuing attacks. Philip Footnotes testi?ed 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, 865 746 (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 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, Ayash, 443 Mass. at 371, 406-408, 822 667 (af?rming $2.1 million defamation award, including emotional distress awards of $1,440,000 against newspaper and $360,000 against reporter); Borne v. llaverliill Goli' 8t. Country Club, lnc., 58 Mass. App. Ct. 306, 319-321, 791 903 (2003) (concluding $424,000 emotional distress award not excessive). affirmed. Orders on nosttrial motions affirmed. All Citations 92 Mass.App.Ct. 114, 84 898 1 Van Liew filed a panoply of posttrial motions, including, 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 ?rst names to avoid confusion. 4 The original five?acre commercial property contained a bank branch building and abutted the Chelmsford ?re department headquarters known as the Chelmsford center fire station. 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 WEQYLAW 2017 Thomson Reuters. No claim to original US. Government Works. 14 Van Liew v. Eliopoulos, 92 Mass.App.Ct. 114 (2017) 84 3'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. Organizations funded and controlled by Van Liew included the Slow Growth Initiative, the Better Not Bigger Coalition, and Cheating Chelmsford. 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. ln the summer of 2011, the recall effort failed, as did ?nal attempts to block the development through various court actions. 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-?ve additional defamatory statements were collected in one exhibit and admitted (with a proper limiting instruction) to show Van Liew's state of mind. See footnote 1, supra. The length of Van Liew's direct testimony fell within the range of the estimate given by his attorney. Notwithstanding Van Liew's estimate that his case-in-chief would take six or seven days, the testimony of his ?rst witness, Philip, extended more than eight days. Van Liew?s attorney also informed thejudge that he planned to call "approximately" six more witnesses 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. Chelmsford residents learned of the incident through mass mailing and published report. The commission found reasonable cause to believe that McClure had repeatedly violated 268A, 17(9), the State ethics statute regarding con?icts 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 con?icts of interest. 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 ofthe article. 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. 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, 865 746 (jury's credibility assessments entitled to deference on appeal). 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, 781 800 (2003). Philip also has served as a member of Chelmsford's master planning committee and the community preservation board. 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 2017 Thomson Reuters. No claim to original US. Government Works. 15 Van Liew v. Eliopoulos, 92 Mass.App.Ct. 114 (2017project and back room deals. 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 of?cials? unlawfully abetting Philip?s unethical conduct and con?icts of interest ?concerned" Philip and thus was defamatory to him as well as to others. See HipSaver m. v. E, 464 Mass. 517, 528, 984 755 (2013). The Land Courtjudge 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. The statement, ?Also, it's a very good bet that Phil Eli0poulos 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 supra at 713, 512 241. Likewise, casting the same false and defamatory statement of fact as a rhetorical question does not provide a safe harbor from liability. 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. 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 testi?ed that Van Liew asked him to take the statement down not for any inaccuracy, but because it was taking them ?off-message.? The other statement that Philip was under investigation, "[Mlajor state ethics charges against Eliopoulos still stand," is also defamatory, and a ?nding of actual malice supported because, as discussed, Van Liew knew when he made the statement that no ethics charges were ever brought by any administrative, municipal, or governmental body. Dunn?s earlier January, 2011, deposition testimony is consistent with his trial testimony. Van Liew also admitted that he never telephoned Dunn to ask questions about the free offer before publishing this statement. 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. In a second decision, dated July 28, 2011, the same Land Court judge who earlier had denied relief to the abutters, dismissed an action ?led by Van Liew?s attorney, McClure, for failure to state a claim. In dicta, the judge found that the allegations about violations ofthe 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 fonNard altogether." Incredibly, Van Liew testified that these Land Court decisions supported his statements about the fraudulent process and the violations ofthe restriction. 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. 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. 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 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 ?re station. After resigning as a selectman at the end of his term, he subsequently represented his family?s WEEK AW 2017 Thomson Reuters. No claim to original US. Government Works. 16 Van Liew v. Eliopoulos, 92 Mass.App.Ct. 114 (2017) amissa?sa" 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 We're not asking for the moon. We want the lying by Cohen and Eli0poulos 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. 33 Philip explained that when he held up a sign during his ?rst campaign for the board, voters came up to him and said. don?t know who you are, but I know who your father is; I know 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. End of Document 2017 Thomson Reuters. 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