Norman Gaudette et al. v. Mainely Media, LLC, et al.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2023 ME 36
Docket: Yor-22-93
Argued: January 12, 2023
Decided: July 6, 2023

Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, and LAWRENCE, JJ.
Majority: STANFILL, C.J., and MEAD, HORTON, CONNORS, and LAWRENCE, JJ.
Concurrence: JABAR, J.

NORMAN GAUDETTE et al.

v.

MAINELY MEDIA, LLC, et al.

MEAD, J.

[¶1] Former Biddeford police officer Norman Gaudette and his wife,

Joanne Gaudette, appeal from a judgment of the Superior Court (York County,

Mulhern, J.) entered upon a jury verdict in favor of Mainely Media, LLC; Ben

Meiklejohn; and Molly Lovell-Keely (collectively, Mainely Media) on the

Gaudettes’ claims of defamation, false light, and loss of consortium. In their

complaint, the Gaudettes alleged that Mainely Media had published false

information indicating that Gaudette1 had sexually abused minors decades

earlier, while he was a police officer. On appeal, the Gaudettes argue that,

during the trial, the court abused its discretion by refusing to strike a detective’s

1 In this opinion, we use “Gaudette” in the singular to refer to Norman Gaudette.
2

testimony that his investigation of Gaudette in 1990 did not exonerate Gaudette

because of “clear and convincing evidence that Mr. Gaudette was more likely

than not a sexual predator.” We conclude that, in the context of the trial, the

court did not abuse its discretion in admitting the detective’s testimony.

Accordingly, we affirm the judgment.2

I. BACKGROUND

[¶2] On June 24, 2015, the Gaudettes filed a complaint in the Superior

Court alleging defamation and five other causes of action, including Gaudette’s

claim of false light and Joanne Gaudette’s claim for loss of consortium, arising

from the 2015 publication of news articles in the Biddeford-Saco-Old Orchard

Beach Courier (the Courier) reporting accusations that Gaudette sexually

abused multiple teenage boys in the late 1970s and in the 1980s while he was

a Biddeford police officer. The complaint alleged that the articles had portrayed

Gaudette “as a sexual predator who has evaded justice.” Gaudette named as

defendants Mainely Media, LLC, the publisher of the articles; Ben Meiklejohn, a

2 Because we affirm the judgment, we do not reach Mainely Media’s argument that the trial court

erred in denying Mainely Media’s motions for judgment as a matter of law. We do note that, although
Mainely Media filed a notice of appeal, it did not have to cross-appeal to preserve its argument that
the judgment in its favor should be affirmed on alternative grounds. See M.R. App. P. 2C(a)(1);
M.R. App. P. 2C Restyling Notes – June 2017.
 3

staff writer for the Courier in 2015; and Molly Lovell-Keely, a managing editor

of the Courier in 2015.

[¶3] Mainely Media filed a special motion to dismiss the suit pursuant to

Maine’s statute providing protection from strategic lawsuits against public

participation, 14 M.R.S. § 556 (2023). The court (O’Neil, J.) denied the motion,

and we affirmed that decision in Gaudette v. Mainely Media, LLC, 2017 ME 87,

160 A.3d 539. Mainely Media then moved for summary judgment. The court

granted the motion in part, leaving for trial Gaudette’s claims of false light and

defamation regarding the reported accusations of two men (L.O. and R.K.) and

Joanne Gaudette’s claim for loss of consortium. The parties proceeded to a jury

trial on these claims.

[¶4] The court (Mulhern, J.) held a thirteen-day trial over the course of

three weeks in March 2022. The parties submitted several joint exhibits,

including the two articles that generated Gaudette’s defamation and false light

claims. Gaudette challenged information in the articles reporting that (1) L.O.

claimed that Gaudette had sexually abused him when he was a teenager,

including by raping him while he was passed out in a camper in Naples and

(2) R.K. claimed that Gaudette had repeatedly had sexual contact with him

beginning when he was fifteen years old, including by touching his genitals
4

while he was working for Gaudette cleaning banks after hours and by climbing

on top of R.K. and putting his hands down R.K.’s pajama pants while R.K. was

sleeping in a camper.

[¶5] The Gaudettes called R.K. as a witness in an effort to undermine his

credibility and offered testimony suggesting that Gaudette had been

“exonerated” or “cleared” because a grand jury had declined to indict him.

When the Gaudettes rested their case after presenting voluminous evidence,

Mainely Media moved for judgment as a matter of law. See M.R. Civ. P. 50(a).

Viewing the evidence in the light most favorable to the Gaudettes, the court

denied the motion.

[¶6] Mainely Media then presented documentary evidence and called

several witnesses, including L.O., a third accuser who had spoken with

Lovell-Keely, and Michael Pulire, the detective at the Maine Attorney General’s

Office who investigated multiple accusations against Gaudette in 1990. At the

end of the direct examination of Pulire, the following exchange occurred:

Q Now, there’s been some testimony that the Attorney
General’s investigation exonerated Norman Gaudette. Did
your investigation into Norman Gaudette exonerate him?

A It did not.

Q Why not?
 5

A There was clear and convincing evidence that Mr. Gaudette
was more likely than not a sexual predator.

The Gaudettes objected and moved to strike Pulire’s final response, citing

Rule 403 of the Maine Rules of Evidence.3 The court noted, “Well, the term

exonerated has been rolled out in front of the jury a number of times. And this

is the investigating detective, and he was asked his opinion on that, and he

responded . . . .” The court overruled the objection.

[¶7] After presenting its evidence, Mainely Media again moved for

judgment as a matter of law. See M.R. Civ. P. 50(a). The court denied the motion.

The parties presented closing arguments, and the court delivered jury

instructions, including an instruction on the use of a special verdict form that

the court provided to the jury.

[¶8] The jury found that the Gaudettes had failed to prove defamation,

false light, or loss of consortium. In the special verdict form, the jury found that

the Gaudettes had not proved, by a preponderance of the evidence, that any of

the challenged statements made by L.O. or R.K. were false and defamatory, or

that the published articles placed Gaudette in a false light that would be

3 Rule 403 of the Maine Rules of Evidence provides, “The court may exclude relevant evidence if
its probative value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.”
6

offensive to a reasonable person.4 The jury thus did not have to make findings

about whether the Gaudettes had proved, by clear and convincing evidence,

that either Meilklejohn or Lovell-Keely published the statements with actual

malice.5 The court entered a judgment for Mainely Media on April 1, 2022. The

Gaudettes timely appealed. See 14 M.R.S. § 1851 (2023); M.R. App. P. 2B(c)(1).

II. DISCUSSION

[¶9] The Gaudettes argue that the court abused its discretion in denying

their motion to strike Pulire’s testimony that his 1990 investigation did not

exonerate Gaudette because “there was clear and convincing evidence that

Mr. Gaudette was more likely than not a sexual predator.” The Gaudettes argue

that the testimony lacked probative value and that allowing the use of

terminology regarding standards of proof and the term “sexual predator” was

highly prejudicial given that it was in the province of the jury—not the

detective—to determine whether Gaudette or his accusers were credible.

4See Morgan v. Kooistra, 2008 ME 26, ¶ 26, 941 A.2d 447 (listing the elements of a defamation
claim); Cole v. Chandler, 2000 ME 104, ¶ 17, 752 A.2d 1189 (listing the elements of a false light claim).
5 See Plante v. Long, 2017 ME 189, ¶ 10, 170 A.3d 243 (holding that a statement about a public
figure concerning a matter of public concern related to his official conduct is “subject to a conditional
privilege . . . that can be overcome only by clear and convincing evidence of [actual malice, i.e.,]
knowledge or disregard of falsity” (quotation marks omitted)).
 7

[¶10] “The court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of . . . unfair prejudice . . . .” M.R. Evid. 403.

A trial court has broad discretion in weighing the probative value of relevant

evidence against the danger of unfair prejudice. See State v. Kimball,

2016 ME 75, ¶ 16, 139 A.3d 914.

[¶11] “For purposes of Rule 403, prejudice means an undue tendency to

move the fact finders to decide the issue on an improper basis.” State v. Hussein,

2019 ME 74, ¶ 14, 208 A.3d 752 (quotation marks omitted). Often, the

improper basis is an emotional one. State v. Marquis, 2017 ME 104, ¶ 29,

162 A.3d 818; see State v. Hassan, 2013 ME 98, ¶ 26, 82 A.3d 86 (“Prejudicial

evidence is inherently inflammatory evidence that is likely to arouse the

passion of the fact-finder.”).

[¶12] The determination of the probative value of evidence depends on

the causes of action sought to be proved. See, e.g., Freeman v.

Funtown/Splashtown, USA, 2003 ME 101, ¶¶ 7-11, 828 A.2d 752; State v.

Michaud, 2017 ME 170, ¶ 10, 168 A.3d 802. Here, the primary claim is for

defamation, which ordinarily requires the plaintiff to prove the following

elements by a preponderance of the evidence: “(a) a false and defamatory

statement concerning another; (b) an unprivileged publication to a third party;
8

(c) fault amounting at least to negligence on the part of the publisher; and

(d) either actionability of the statement irrespective of special harm or the

existence of special harm caused by the publication.” Morgan v. Kooistra,

2008 ME 26, ¶ 26, 941 A.2d 447 (quotation marks omitted); see Hudson v. Guy

Gannett Broad. Co., 521 A.2d 714, 715-16 (Me. 1987). Due to the First

Amendment of the United States Constitution, when a published statement

discusses a public figure’s official conduct regarding a matter of public

concern—a type of discussion that “deserves special favor in a democratic

society”—the statement is “subject to a conditional privilege . . . that can be

overcome only by clear and convincing evidence of [actual malice, i.e.,]

knowledge or disregard of falsity.”6 Plante v. Long, 2017 ME 189, ¶ 10,

170 A.3d 243 (quotation marks omitted); see N.Y. Times Co. v. Sullivan,

376 U.S. 254, 279-80 (1964).

[¶13] Gaudette’s other claim—for false light—requires similar proof:

“One who gives publicity to a matter concerning another that places the other

before the public in a false light is subject to liability to the other for invasion of

6 Although the jury here found that the Gaudettes had not proved the ordinary elements of
defamation by a preponderance of the evidence and therefore never reached the question of whether
either of the individual defendants acted with actual malice, evidence of actual malice was relevant
and probative at the time of trial. See M.R. Evid. 401 (“Evidence is relevant if: (a) It has any tendency
to make a fact more or less probable than it would be without the evidence; and (b) The fact is of
consequence in determining the action.”).
 9

his privacy, if (a) the false light in which the other was placed would be highly

offensive to a reasonable person, and (b) the actor had knowledge of or acted

in reckless disregard as to the falsity of the publicized matter and the false light

in which the other would be placed.” Cole v. Chandler, 2000 ME 104, ¶ 17,

752 A.2d 1189 (quotation marks omitted). Joanne Gaudette’s claim for loss of

consortium is a derivative claim that depended on Gaudette’s success on one or

both of his underlying claims. See Brown v. Crown Equip. Corp., 2008 ME 186,

¶ 23, 960 A.2d 1188. Thus, due to the causes of action at issue, evidence was

relevant and had probative value if it made it more or less probable that the

challenged articles were published with knowledge that they contained false

information or in negligent or reckless disregard of whether they contained

false information. See Morgan, 2008 ME 26, ¶ 26, 941 A.2d 447; Plante,

2017 ME 189, ¶ 10, 170 A.3d 243; Cole, 2000 ME 104, ¶ 17, 752 A.2d 1189;

M.R. Evid. 401, 403.

[¶14] The Gaudettes argue that the court should have stricken Pulire’s

testimony using the term “sexual predator” when describing the results of his

investigation under M.R. Evid. 403. Cf. Needham v. Needham, 2022 ME 7, ¶ 20

n.6, 267 A.3d 1112 (“Allegations of sexual abuse of children are highly
10

inflammatory.”).7 When emotionally charged language is not significantly

probative of any conduct at issue, the danger of unfair prejudice may be too

high for the court to admit it. See, e.g., State v. Thongsavanh, 2004 ME 126, ¶¶ 3,

8-10, 861 A.2d 39 (holding that the trial court abused its discretion in admitting

evidence that the defendant, charged with murder, wore a shirt bearing “the

highly inflammatory phrase ‘Jesus is a cunt’”); State v. Flood, 408 A.2d 1295,

1297-99 (Me. 1979) (disapproving of the admission of a police officer’s

statement to the defendant that her companions were “druggies” in a criminal

trial on charges of assaulting police officers).

[¶15] This is not, however, a situation in which the term “sexual

predator” was only minimally related to the issues being tried; the Gaudettes

used the term in their complaint, alleging that Mainely Media had falsely

depicted Gaudette as a “sexual predator” in the challenged articles. Thus, in

addition to being probative of whether Pulire’s investigation exonerated

Gaudette, the challenged testimony was probative of whether the reporters

acted in negligent or reckless disregard of the falsity of the allegations that

7In Needham v. Needham, we did not apply Rule 403 but identified the inflammatory nature of
hearsay indicating that the Department of Health and Human Services had “substantiated” the father
for sexual abuse of a child and held that the admission of that hearsay was prejudicial. 2022 ME 7,
¶¶ 3-7, 15-20 & n.6, 267 A.3d 1112.
 11

Gaudette had groomed minors for sexual abuse and had committed sexual acts

against them. See Morgan, 2008 ME 26, ¶ 26, 941 A.2d 447; Plante,

2017 ME 189, ¶ 10, 170 A.3d 243; Cole, 2000 ME 104, ¶ 17, 752 A.2d 1189;

M.R. Evid. 401, 403. In the unique circumstances of this case, the court could

properly determine, in its broad discretion, that the probative value of Pulire’s

testimony about the result of his investigation was not substantially

outweighed by the danger of unfair prejudice arising from the use of the

generally inflammatory term “sexual predator.” See M.R. Evid. 403; cf.

Needham, 2022 ME 7, ¶ 20 n.6, 267 A.3d 1112.

[¶16] As to Pulire’s references to “clear and convincing evidence” and

the standard of “more likely than not,” although these phrases could suggest

that Pulire was conveying a formal evidentiary finding reached by the grand

jury or some other entity, we defer to the broad discretion of the trial judge in

deciding to admit the testimony, understanding that Pulire was subject to

cross-examination to clarify the meaning of his testimony. See Kimball,

2016 ME 75, ¶ 16, 139 A.3d 914. Indeed, following the direct examination of

Pulire, the Gaudettes cross-examined Pulire at length about the extent to which

he recalled details of the decades-old investigation.
12

[¶17] Finally, although “[o]ne witness’s opinion of another witness’s

truthfulness is not helpful to the jury when the jury has the opportunity to hear

both witnesses,” State v. Sweeney, 2004 ME 123, ¶ 11, 861 A.2d 43, Pulire’s

testimony explained the results of a full investigation and was not a comment

on the credibility or truthfulness of L.O., R.K., or any of the defendants. Thus,

his testimony that the Attorney General’s investigation did not exonerate

Gaudette, but rather revealed evidence of Gaudette’s misconduct, was highly

probative of issues raised in the case. Specifically, the evidence had significant

probative value in (1) rebutting other testimony suggesting that Gaudette had

been “exonerated” or “cleared,” and (2) supporting the position that Meiklejohn

and Lovell-Keely did not act in negligent or reckless disregard of the truth in

reporting the accusations against Gaudette.

[¶18] We conclude that, given the particular factual questions before the

jury in the context of this lengthy trial on a complaint that included allegations

of defamation and false light, the court did not abuse its broad discretion in

admitting Pulire’s testimony. Accordingly, we affirm the judgment in favor of

Mainely Media.
 13

The entry is:

Judgment affirmed.

___________________________

JABAR, J., concurring.

[¶19] I concur in this opinion, but I write separately because I believe

that the trial court erred by not sustaining Gaudette’s objection and striking

Detective Pulire’s testimony using the term “sexual predator” to describe the

results of his investigation. However, because I believe the error was harmless,

I join in affirming the jury’s decision.

I. RULE 403

[¶20] Rule 403 of the Maine Rules of Evidence provides that the court

may exclude relevant evidence “if its probative value is substantially

outweighed by a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.” M.R. Evid. 403. Rule 403 “does

not protect a party from all prejudice, but only serves as a guard against unfair

prejudice.” State v. Lipham, 2006 ME 137, ¶ 9, 910 A.2d 388. “Prejudice, in this

context, means an undue tendency to move the fact finders to decide the issue

on an improper basis, commonly, although not invariably, an emotional one.”
14

State v. Dean, 589 A.2d 929, 934 (Me. 1991) (quotations marks omitted); see

also State v. Renfro, 2017 ME 49, ¶ 9, 157 A.3d 775. Evidence may be both

relevant and “of minimal value.” Kaechele v. Kenyon Oil Co., 2000 ME 39, ¶ 6,

747 A.2d 167. Because of this tension, “[t]he court’s decision regarding the

admissibility of relevant evidence . . . ‘blends imperceptibly into its discretion

under Rule 403’” and we review this decision for abuse of discretion. Id.

(quoting Field & Murray, Maine Evidence § 401.1 at 98 (6th ed. 2007)). This

decision “involves the weighing of probative value against considerations

militating against admissibility.” Rich v. Fuller, 666 A.2d 71, 73 (Me. 1995).

[¶21] Here, it is necessary to properly contextualize Pulire’s testimony.

Gaudette objected to Pulire’s testimony only on Rule 403 grounds and did not

object on relevancy or foundational grounds, and therefore may have waived

any objection on relevancy and foundational grounds.8 However, because

Gaudette objected to the statement’s admission as to Rule 403, it was still

Pulire’s testimony was an opinion on the truthfulness of the victims’ testimony and should not
8

have been admitted in the first place. See State v. Sweeney, 2004 ME 123, ¶ 11, 861 A.2d 43. The
Court’s opinion acknowledges that “[o]ne witness’s opinion of another witness’s truthfulness is not
helpful to the jury when the jury has the opportunity to hear both witnesses.” Id.; Court’s Opinion
¶ 17. Mainely Media’s closing argument was a clear attempt to present Pulire’s testimony to support
the testimony of the two victims in this case.
 15

necessary to balance the probative value with the prejudice.9 See M.R.

Evid. 403.

[¶22] The Court’s opinion concludes that the trial court did not abuse its

discretion in admitting the challenged testimony because the term “sexual

predator” was related to the issue being tried, raising the probative value of the

testimony so it was not substantially outweighed by unfair prejudice to

Gaudette. Court’s Opinion ¶¶ 15, 18. However, the fact that the testimony is

related to the issues being tried is exactly why the testimony should have been

excluded as unfairly prejudicial.

[¶23] One of the primary issues before the jury was whether statements

about Gaudette’s conduct toward the two victims were false. Questions one and

three of the verdict form asked the jurors whether Gaudette proved that one or

more of the allegations of sexual abuse by witnesses L.O. and R.K. were false

and defamatory. The jury was presented with Gaudette’s claim that he never

sexually assaulted either R.K. or L.O. versus the testimony of the two victims

who claimed that he sexually assaulted them. Mainely Media, in its closing

9 I wish to distinguish the present case from a hypothetical situation where Pulire had directly
told Mainely Media before the publication at issue that he believed his investigation had not
exonerated Gaudette because there was evidence of Gaudette being a sexual predator. The probative
value of that statement in that factual scenario would have outweighed the unfair prejudice of the
phrase “sexual predator” because it would have gone to Mainely Media’s state of mind before the
article published.
16

argument, improperly used Pulire’s testimony regarding his investigation to

vouch for the credibility of the two victims and argue that Gaudette was

“guilty”:

Det. Michael Pulire, never would he have talked to them. That was
amazing and an honor that we actually got to hear from him, the AG
lead detective, who’s been doing it for 30 years.

....

But you all go back to the jury form. If you believe that there
is ambiguity in the evidence or if you believe he’s guilty, as Michael
Pulire stated, then your job is going to be pretty easy.

[¶24] Mainely Media’s closing argument emphasized the testimony of

Pulire as evidence of Gaudette’s guilt. The unfair prejudice of an inflammatory

statement that goes to the heart of this issue by a respected Attorney General’s

office detective of thirty years is far greater than the probative value of Pulire’s

testimony.

[¶25] The phrase “sexual predator” is highly inflammatory and caused

unfair prejudice because it could have moved the jurors on an improper,

emotional basis. See Needham v. Needham, 2022 ME 7, ¶ 20 n.6, 267 A.3d 1112

(“Allegations of sexual abuse of children are highly inflammatory.”); Dean,

589 A.2d at 934. Although the rebuttal of Gaudette’s claim that the

investigation exonerated him offers some probative value, this probative value
 17

is substantially outweighed by the unfair prejudice of the inflammatory

statement. Mainely Media’s own closing argument demonstrates the harm of

the statement; Mainely Media’s attorney told the jury, “[I]f you believe

[Gaudette] is guilty, as Michael Pulire stated, then your job is going to be pretty

easy.” Because the unfair prejudice substantially outweighed the probative

value of Pulire’s testimony that there was “clear and convincing evidence” that

Gaudette was a sexual predator, I believe it was error for the trial court to

overrule Gaudette’s objection and not give a curative instruction telling the jury

to disregard the statement.

II. HARMLESS ERROR

[¶26] We must, however, consider whether the error was harmless in

the context of all of the other evidence offered at the lengthy trial. “No error in

either the admission or the exclusion of evidence . . . is ground for granting a

new trial or for setting aside a verdict or for vacating, modifying or otherwise

disturbing a judgment or order, unless refusal to take such action appears to

the court inconsistent with substantial justice.” M.R. Civ. P. 61. “The court at

every stage of the proceeding must disregard any error or defect in the

proceeding which does not affect the substantial rights of the parties.” Id. “A

preserved error is harmless if it is highly probable that the error did not affect
18

the judgment.” Mulready v. Bd. of Real Estate Appraisers, 2009 ME 135, ¶ 20,

984 A.2d 1285 (quotation marks omitted).

[¶27] Gaudette challenges the admission of one statement in the context

of a lengthy trial, and we must consider that context in determining whether

the error in admitting the reference to Gaudette as a “sexual predator” was

harmless. Pulire made the challenged statement at the end of his testimony to

explain why he did not consider Gaudette to have been “exonerated” by Pulire’s

investigation. Although the Gaudettes contend that the statement carried great

weight because it came at the end of the trial, the Gaudettes cross-examined

Pulire at length immediately after the challenged testimony, and another

witness testified after him. Most significantly, though, during twelve days of

testimony, the jury heard from multiple other witnesses that Gaudette had

abused children by grooming them for abuse and escalating his conduct toward

them over time. We summarize this testimony to illustrate the context in which

the challenged testimony was admitted.

[¶28] R.K. provided detailed testimony about Gaudette offering him a job

at his cleaning company and giving him gifts when he was about fourteen years

old. He testified that, while working together cleaning commercial buildings

after hours, Gaudette engaged in unlawful sexual contact with R.K. He testified
 19

about an occasion when Gaudette brought him to a camper in Naples, where

R.K. drank heavily and awoke to find Gaudette engaging in unlawful sexual

contact with him, at which time he grabbed Gaudette’s gun and aimed it at

Gaudette to stop him. R.K. further testified that Gaudette invited him to

participate in a pornography sting, which R.K. declined to do once he learned

that it would require him to participate in filmed sex acts with Gaudette.

According to R.K.’s testimony, Gaudette tried to normalize the behavior by

reassuring R.K. that their interactions were how people showed love for each

other and by saying that there was nothing wrong with his conduct.

[¶29] L.O. similarly testified that Gaudette offered him a job at his

cleaning company when he was about fifteen years old and bought him gifts and

clothing and helped him financially. He testified to one incident where

Gaudette engaged in unlawful sexual contact with him while in the back room

on a job site and tried to “wrestle” with him; another incident where Gaudette

cornered L.O. in a bathroom at a job site and forcibly engaged in an unlawful

sexual act with him; and that Gaudette brought him camping, where he

furnished alcohol and sexually assaulted L.O. after he passed out, which L.O.

realized because, when he awoke, he was sore and his underwear was soiled,

including with blood. L.O. testified that Gaudette engaged in sexual acts with
20

L.O. on multiple other occasions and gave L.O. fifty dollars after each

occurrence.

[¶30] Another witness testified that he had told Lovell-Keely that at age

sixteen he went to a hotel to get drugs and alcohol and was filmed there

engaging in sexual acts with others, including another boy who was sixteen

years old and Gaudette. He testified that Gaudette threatened to make his and

his family’s lives “a living hell” if he ever mentioned what happened.

[¶31] Meiklejohn testified that R.K. and L.O. told him and Lovell-Keely

directly that Gaudette had groomed and abused them. He further testified that

he received information indicating that Gaudette had made advances toward

Gaudette’s teenage nephew, which his nephew had rejected, and that Gaudette

had invited his nephew to participate in a child pornography sting that would

require him to participate in sex acts. Meiklejohn testified that he also spoke

with individuals who had seen Gaudette bring R.K. camping alone, had seen

Gaudette pick L.O. up to take him to work, and had heard from Gaudette’s

nephew and the nephew’s relatives about Gaudette’s advances on his nephew.

Meiklejohn testified that he received reports of other boys being either abused

by Gaudette or invited to participate in a pornography sting. He testified that

Gaudette, when asked about these things, did not deny the allegations.
 21

[¶32] Lovell-Keely testified that she received a report from L.O., who had

not known R.K., that Gaudette had groomed L.O. for abuse by hiring him to clean

buildings and giving him gifts, then assaulted him while camping and

repeatedly coerced sexual contact thereafter. She learned from sources that

three others had given statements during the investigation of Gaudette in 1990

that he had sexually assaulted them as teenagers and had given money for

oral-genital contact. She also testified that when she approached Gaudette at

his home to get a comment, he denied that he was Norman Gaudette.

[¶33] Biddeford police officers testified that both L.O. and R.K. had

reported Gaudette subjecting them to sexual contact when each of them

camped alone with Gaudette, consistent with the testimony that they provided

at trial and the content of the published articles. Finally, before Pulire made the

challenged statement, he testified that he had spoken to five accusers, including

two of the three who testified at trial, when investigating Gaudette, and that his

report on Gaudette had provided everything that Biddeford’s police chief would

need to discharge him from duty.

[¶34] As this summary of the testimony demonstrates, there was

extensive evidence supporting the jury’s findings, reported in the special

verdict form, that Gaudette had not proved the falsity of the published
22

statements that Gaudette (1) abused L.O. when he was in his teens during a

camping trip, and (2) abused R.K. beginning when he was fifteen years old,

while R.K. was working for him. The same evidence also supports the jury’s

findings that neither article placed Gaudette before the public in a false light.

Given these findings, no loss of consortium claim was viable. See Brown v.

Crown Equip. Corp., 2008 ME 186, ¶ 23, 960 A.2d 1188.

[¶35] Given the extent of the evidence supporting the jury’s findings, and

the paucity of evidence—independent of Gaudette’s and his family members’

testimony—to suggest that the accusations against Gaudette were false, it is

highly probable that the error in refusing to strike Pulire’s single statement,

which Pulire delivered only to explain why he did not consider Gaudette to have

been “exonerated” through Pulire’s investigation, did not affect the verdict.

[¶36] In conclusion, although I believe that the trial court erred when it

did not strike Pulire’s testimony, the error was harmless, and I concur in

affirming the jury’s decision.
 23

Gene R. Libby, Esq. (orally), and Tyler J. Smith, Esq., Libby O’Brien Kingsley &
Champion, LLC, Kennebunk, for appellants Norman Gaudette and Joanne
Gaudette

Jonathan W. Brogan, Esq., and Trevor D. Savage, Esq., Norman, Hanson &
DeTroy, LLC, Portland, and Cynthia Counts, Esq. (orally), FisherBroyles LLP,
Atlanta, Georgia, for appellees Mainely Media, LLC, Ben Meiklejohn, and Molly
Lovell-Keely

York County Superior Court docket number CV-2015-123
FOR CLERK REFERENCE ONLY