LORRAINE MACDONALD & a.
Argued: October 11, 2018
Offices of Joseph S. Hoppock, P.L.L.C., of Keene (Joseph S.
Hoppock on the brief and orally), for the plaintiffs.
Offices of Kelly E. Dowd, PLLC, of Keene (Kelly E. Dowd on
the brief and orally), for the defendant.
defendant, Lisa Jacobs, appeals both a jury verdict in the
Superior Court (Ruoff, J.) for the plaintiffs, Lorraine and
Peter MacDonald, on their defamation claim, and a permanent
injunction issued by the trial court. We affirm.
record supports the following facts. The defendant seasonally
resides in Fitzwilliam. According to the plaintiffs, in 2012
they purchased a vacation home that abuts or is near the
defendant's family's property. Thereafter, the
defendant began letter-writing campaigns in which she falsely
accused the plaintiffs of, among other things, a variety of
illegal activities. In 2016, the plaintiffs sued the
defendant for defamation. Following a trial, the jury found
that the defendant's statements were defamatory and that
they were made with malice, thereby warranting the award of
special damages. In addition, the trial court, finding the
defendant's statements "vast and disturbing,"
issued a permanent injunction prohibiting the defendant from,
inter alia, going within a five-mile radius of the
plaintiffs' home in Fitzwilliam and from entering the
plaintiffs' hometown in Sterling, Massachusetts.
appeal, the defendant contends that the trial court erred by
(1) denying a mistrial when the plaintiffs' counsel made
a "golden rule" argument to the jury, (2) denying
her motion for summary judgment because New Hampshire
requires proof of "actual damages" for defamation,
(3) applying an incorrect standard to the plaintiffs'
claim for enhanced compensatory damages, (4) determining that
the defendant's speech was not of "public
concern," (5) admitting prejudicial other bad act
evidence, and (6) "ordering [her] physical removal . . .
from her family's vacation property" in Fitzwilliam
and "banishing" her from Sterling. We address these
issues in turn.
Golden Rule Argument
defendant first argues that the trial court erred in denying
her motion for a mistrial when the plaintiffs' counsel
made a "golden rule" argument to the jury. During
closing argument the plaintiffs' counsel stated:
You heard about their anxiety, that when a car comes down the
road. Can you imagine that? You know, you're sitting in
this rural area on a lake. It's idyllic. It's, you
know, your perfect summer home. And you're on vacation.
You want to relax. You don't need that kind of nonsense.
defendant objected, and the trial court overruled her
objection. The plaintiffs' counsel then continued,
"You're in this environment where you want to get
away from it all. And you have . . . the neighbor from hell
who wants to drive you away. What is that worth? What -- how
do you value what she has done to these people?"
appeal, the defendant argues that this was a "text-book
golden rule argument." Although the defendant concedes
that "New Hampshire has never ruled that an
impermissible closing argument . . . warrants automatic
mistrial," she asserts that given the lack of a curative
instruction following counsel's objection, "the only
possible legal result can be a declaration of a
mistrial." (Quotation omitted.) Absent an unsustainable
exercise of discretion, we will affirm a trial court's
decision on whether a mistrial or other remedial action was
necessary. State v. Kuchman, 168 N.H. 779, 787
(2016); see State v. Lambert, 147 N.H. 295,
296 (2001) (explaining that to show that the trial
court's decision is not sustainable, "the defendant
must demonstrate that the court's ruling was clearly
untenable or unreasonable to the prejudice of his case"
'golden rule' argument is made when counsel urges
jurors to put themselves in a particular party's place,
or into a particular party's shoes." Walton v.
City of Manchester, 140 N.H. 403, 406 (1995) (citation
omitted); see Caudle v. District of Columbia, 707
F.3d 354, 359 (D.C. Cir. 2013) (noting that it is
impermissible, for example, "to ask jurors how much the
loss of the use of their legs would mean to them," to
tell jurors "do unto others as you would have them do
unto you," or to tell jurors, "in a reverse golden
rule argument, 'I don't want to ask you to place
yourself in the plaintiff's position'"
(citations and brackets omitted)). "Courts generally
condemn these arguments because they encourage the jury to
depart from neutrality and to decide the case on the basis of
personal interest and bias rather than on the evidence."
Walton, 140 N.H. at 406 (quotation omitted).
we need not address the propriety of "golden rule"
arguments because we disagree with the defendant's
contention that the plaintiffs' counsel asked the jurors
to put themselves in the shoes of the plaintiffs or to base
their verdict on something other than the evidence at trial.
Id. Rather, the plaintiffs' counsel asked the
jurors to consider, based on the trial testimony, the effect
that the defendant's actions had on the plaintiffs, and
to take that into account when considering damages. Lorraine
testified that she fears for her life and for the safety of
her family, that she has "become anxious about even
being in [her] yard," that she "physically gets
knots in [her] stomach and [her] heart races" when she
goes home "wondering who is going to be waiting in [her]
driveway," and that she is "not comfortable anymore
being alone at [her] house in Fitzwilliam." In addition,
she testified that she is worried "about where [the
defendant is] taking these letter campaigns next and how
they're going to impact [her] life." Peter testified
that the defamatory remarks made by the defendant have
resulted in him having "an
I'm-always-looking-over-my-shoulder feeling," and a
feeling of "what's-going-to-happen-next." In
addition, he testified that he "always [has] a knot in
[his] stomach," that he does not sleep well at night,
and that when he "hear[s] a car coming down the road in
Fitzwilliam, we jump out of our chairs."
agree with the plaintiffs that the contested argument was not
an "appeal to passion, prejudice or sympathies,"
but was, rather, a "fair comment on the evidence."
(Quotation omitted.) Notably, the trial court correctly
instructed the jury prior to its deliberations that,
"[i]n determining the amount of damages to allow the
Plaintiffs, you may draw such inferences as are justified by
your common experiences and observations of human events,
from the evidence of the nature of the injuries and the
results thereof." Because the closing remarks made by
the plaintiffs' counsel were not "calculated . . .
to encourage the jury to make a decision based on personal
interest and bias rather than reason and the presented
evidence," Walton ...