MCBREAIRTY v. BREWER SCHOOL DEPARTMENT et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
PATRICIA MCBREAIRTY, as 	)
Personal Representative of the Estate 	)
Of Shawn McBreairty, 	)
)
Plaintiff, 	)
)
v. 	) 	No. 1:24-cv-00053-JAW
)
BREWER SCHOOL DEPARTMENT, et al. 	)
)
Defendants. 	)
ORDER ON PLAINTIFF’S MOTION IN LIMINE TO EXCLUDE
EVIDENCE AND TESTIMONY RELATED TO RESPONSE TO ARTICLE
In anticipation of trial, the plaintiff filed a motion in limine seeking to prohibit
the defendants from introducing evidence and testimony related reactions of non-
parties to the controversial article at the center of this case. The court considers the
reactions of non-parties relevant but does not have sufficient information on the
record before the court to determine admissibility. 	Because the court declines to
make an advisory ruling, the motion is dismissed.
I. 	PROCEDURAL BACKGROUND
A. 	Abridged Procedural History
On February 22, 2024, Shawn McBreairty filed a verified complaint against
Defendants Brewer School Department and Brewer Superintendent Gregg Palmer
(collectively, Defendants) alleging that by threating litigation in response to an article
he authored and posted concerning a transgender student’s access to the girl’s
bathroom at Brewer High School, Defendants violated his First Amendment Rights.
Verified Comp. 42 U.S.C. § 1983 Compl. for Declaratory, Inj. Relief, and Damages at
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1, ¶¶ 46-78 (ECF No. 1) (Compl.).1 Shawn McBreairty’s complaint sets fourth three
causes of action; two remain: (1) retaliation against the exercise of First Amendment
rights made applicable to the States under the Fourteenth Amendment, in violation
of the United States Constitution, actionable under 42 U.S.C. § 1983; and (2) a
parallel claim based on the Maine State Constitution, actionable under 5 M.R.S.
§ 4682. Id. ¶¶ 79-101.
On June 3, 2024, Shawn McBreairty died by suicide, Suggestion of Death as to
Pl. Shawn McBreairty at 1 (ECF No. 52). On September 6, 2024, Ms. McBreairty, as
personal representative of Mr. McBreairty’s Estate, (hereinafter, Plaintiff) was
formally substituted as plaintiff. Order Granting Mot. to Substitute Party (ECF No.
58). 	On May 21, 2025, Plaintiff filed a final pretrial memorandum and served her
initial disclosures. Pl.’s Pretrial Mem. (ECF No. 128).
This case is currently scheduled for trial in March 2026 on the remaining two
counts. 	Trial List (ECF No. 202). 	Before the Court now is the Plaintiff’s motion in
limine, seeking to exclude evidence and testimony concerning the reactions of non-
parties to the article at the center of this case. Pl.’s Mot. in Lim. to Exclude Evid. and
Test. Related to Response to Article (ECF No. 213) (Pl.’s Mot.). On February 23, 2026,
the Defendants submitted their response. Defs.’ Resp. in Opp’n to Pl.’s Mot. in Lim.
1 	The complaint additionally named Brewer High School Principal Brent Slowikowski and
Brewer High School English Teacher Michelle MacDonald as defendants. Mr. Slowikowski has been
dismissed by order of this Court. See Order on Cross Mots. for Summ. J. and Mot. for Rule 56(d) Disc.
at 31 (ECF No. 117) (Order on Cross Mots. for Summ. J.). The Court also granted Ms. MacDonald’s
motion for summary judgment. Order on Mot. for Summ. J. and Mot. for Rule 56(d) Disc. at 8-9 (ECF
No. 118) (Order on Mot. for Summ. J.).
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[ECF No. 213] “to Exclude Evid. and Testimony Related to Response to Article” (ECF
No. 224) (Defs.’ Opp’n).
B. 	Defendant Palmer’s Declaration
The Plaintiff’s motion in limine quotes from several portions of Defendant
Palmer’s declaration, submitted in opposition to an earlier filed motion for a
temporary restraining order in this case. 	Mem. of Law in Opp’n to Mot. for TRO of
Def.’s Brewer School Dept., Gregg Palmer, and Brent Slowikowski (ECF No. 16),
Attach. 1, Decl. of Greg Palmer (Palmer Decl.). 	The Plaintiff quoted the following
paragraphs:
8. After Mr. McBreairty’s post appeared online and was the subject of
discussion at the High School, HD stopped coming to school.
9. I also heard complaints from the students and families of the other
students depicted in the photograph Mr. McBreairty posted of students
in the girls’ bathroom at the High School. They were upset about the
violation of their children’s privacy rights.
10. I also heard from Michelle MacDonald, one of our teachers at the
High 	School 	that 	she 	was 	feeling 	bullied 	by 	the 	statements 	Mr.
McBreairty made about her child in the post.
11. As a result of the disruption and emotional distress that the post was
causing to students and a staff member, we decided that we had to try
to get Mr. McBreairty to take the portions of the post down that were
defamatory or invaded the privacy of our students and, therefore, our
counsel sent him an email, a copy of which is attached to the complaint
in this matter as Exhibit 5.
. . . .
17. HD remained out of school through February 16, 2024, when
February vacation started.
18. Over February vacation, HD’s parent wrote me an email stating that
when HD returned to school, they intend to use a single stall bathroom.
The parent explained the decision as follows:
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This is what we feel is best for our family, for their
academics and for the school. Reading that article only
strengthens the decision. I have many strong feelings
about how this group has gone about things and how they
have villainized and victimized children. They are not
looking out for the greater good. However, I can not allow
my childs [sic] and my family’s matters to be laid out for
public debate and scrutiny.
Palmer Decl. at 2-3; Pl.’s Mot. at 1-2.
II. 	THE PARTIES’ POSITIONS
A. 	The Plaintiff’s Motion to Exclude Evidence and Testimony
Related to Article
The Plaintiff seeks to exclude evidence and testimony related to the reactions
non-party students, staff, families, and others had to the article Mr. McBreairty
authored. Pl.’s Mot. at 2. The Plaintiff reasons that such evidence and testimony is
irrelevant and unduly prejudicial because “the Court already determined that
Defendants violated Mr. McBreairty’s rights, and any attempt by Defendants to
justify this violation serves no purpose but to prejudice the jury against Plaintiff.” Id.
at 2-3. Additionally, the Plaintiff argues that “any evidence of the alleged opinion or
reaction of non-parties is inadmissible hearsay per Fed. R. Evid. 802.” Id. at 3.
B. 	The Defendants’ Opposition to Plaintiff’s Motion to Exclude
Evidence and Testimony Related to Article
The Defendants respond that testimony from Defendant Palmer and former
defendant Slowikowski are “admissible and relevant to the liability issues set for
trial, including the issues of liability of Gregg Palmer in his individual, personal
capacity under section 1983, and the associated issue of his qualified immunity.”
Def.’s Opp’n at 1. However, the Defendants argue that the Court’s ruling on summary
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judgment did not reach judgment of liability against Defendant Palmer on Counts I
and II and thus it “cannot be used to impose strict liability on Palmer or deny him
the right to testify to his side of the story.” Id. at 5.
III. 	LEGAL STANDARD
A. 	Relevance
“[E]vidence 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.” F ED. R. EVID. 401. Courts should generally admit relevant
evidence unless directed otherwise by the United States Constitution, a federal
statute, the Federal Rules of Evidence, or other rules prescribed by the Supreme
Court. F ED. R. EVID. 402. However, “[t]he 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.” F ED. R. EVID. 403.
B. 	Inadmissible Hearsay
Federal Rule of Evidence 802 prohibits the admission of hearsay. “Hearsay is
an out-of-court statement offered ‘in evidence to prove the truth of the matter
asserted in the statement.’” United States v. Fígaro-Benjamín, 394 F. Supp. 3d 191,
195 (D.P.R. 2019) (quoting F ED. R. EVID. 801(c)). “[A]n out-of-court statement is not
hearsay if it is relevant regardless of its truth (say, to show state of mind).” Ira Green,
Inc. v. Military Sales & Serv. Co., 775 F.3d 12, 19 (1st Cir. 2014); United States v.
Bailey, 270 F.3d 83, 87 (1st Cir. 2001) (“Out of court statements offered not for their
truth but ‘offered only for context’ do not constitute hearsay”) (quoting United States
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v. Catano, 65 F.3d 219, 224 (1st Cir. 1995)); United States v. Murphy, 193 F.3d 1, 5
n.2 (1st Cir.1999) (“[A]n out-of-court statement might be offered to show that the
declarant had certain information, or entertained a specific belief . . . or it might be
offered to show the effect of the words spoken on the listener (e.g. to supply a motive
for the listener’s action)”).
IV. 	DISCUSSION
A. 	Relevance
The Court considers the evidence and testimony concerning reactions of the
non-party students, staff, and others related to Mr. McBreairty’s article relevant to
the case at hand. 	At this point, the Court intends to instruct the jury that to prove
her claim, Ms. McBreairty must prove that “Shawn McBreairty’s protected activity
was a substantial or motivating factor in the Defendants’ conduct.” This instruction
was proposed by the Plaintiff. 	See Pl.’s Proposed Jury Instructions at 6-7 (ECF No.
226). Thus, under the Plaintiff’s own formulation, Mr. Palmer’s motivation is an issue
to 	be 	considered 	by 	the 	jury. 	Thus, 	Mr. 	Palmer’s 	proposed testimony 	about
complaints from students and others goes directly to his motivation. 	Although
specifics rulings on admissibility will be determined at trial, in accordance with the
Plaintiff’s own proposed instructions, the Court generally considers community
members’ reaction to Mr. McBreairty’s article related to determining liability.
The summary judgment motions and order do not preordain the relevance of
issues not resolved on summary judgment. 	While the Plaintiff takes the Court to
have “already determined that Defendants violated Mr. McBreairty’s rights,” Pl.’s
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Mot. at 3, they are mistaken. 	As the Defendants explain, “[w]hen the Court denied
the Defendants’ motion for summary judgment it did so taking the facts in the light
most favorable to McBreairty as the nonmoving party” but it “did not enter summary
judgment against the Defendants on Counts I and II, which it had the power to do
under Fed. R. Civ. P. 56(f)(1).” 	Defs.’ Opp’n at 2 (emphasis omitted). 	“As the First
Circuit [] stated, ‘the denial of a motion for a summary judgment because of
unresolved issues of fact does not settle or even tentatively decide anything about the
merits of the claim.’” 	Rhoades v. Camden Nat. Corp., 575 F. Supp. 2d 260, 264 (D.
Me. 2008) (quoting Rigby v. Damant, 486 F.3d 692, 692 (1st Cir. 2007) (per curiam)
(internal quotation marks omitted)). 	Thus, the information the Plaintiff seeks to
exclude may well still be relevant if properly elicited at trial. 	Khan v. Sedgwick
Claims Mgmt. Servs., Inc., No. 22-cv-11893-ADB, 2025 U.S. Dist. LEXIS 225399, at
*5 (D. Mass. Nov. 17, 2025) (“[T]he Court’s summary judgment decision alone will not
preclude 	Plaintiff 	from 	introducing 	otherwise 	admissible 	evidence 	subject 	to
appropriate objections at trial”).
The Plaintiff also expresses concern that such evidence could “prejudice the
jury against Plaintiff.” Pl.’s Mot. at 3. However, it is not mere prejudice but rather
unfair prejudice that excludes otherwise relevant evidence and testimony. 	F ED. R.
EVID. 403. 	“Unfair prejudice ‘speaks to the capacity of some concededly relevant
evidence to lure the factfinder into declaring guilt on a ground different from proof
specific to the offense charged.’” United States v. DiRosa, 761 F.3d 144, 153 (1st Cir.
2014) (quoting Old Chief v. United States, 519 U.S. 172, 180 (1997)).
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Based on the record before the Court, and notwithstanding that transgender
issues in schools are controversial, the Court does not conclude pretrial that the
probative value of evidence and testimony relating to the reactions of third parties to
Mr. McBreairty’s article is substantial outweighed by its prejudicial effect. 	F ED. R.
EVID. 403.
B. 	Hearsay
The Plaintiff argues that any evidence or testimony about the reactions of non-
parties would be inadmissible hearsay given that those individuals are not expected
to testify. 	Pl.’s Mot. at 3-4. 	However, as the Defendants explain, “complaints by
parents are offered to show the effect of the statement on the listener, [Defendant]
Palmer, not to show that the contents of the complaints necessarily had to be true.”
Defs.’ Opp’n at 5-6. 	Though the Court agrees that that out of court statements not
offered for the truth of the matter asserted may be admissible for the effect on the
listener, the Court declines to make a pretrial ruling and instead opts to make a
determination about the purpose of offering and particular statement when it is
raised at trial. Murphy, 193 F.3d at 5 n.2.
C. 	Residual Hearsay
The Defendants have not made a sufficient showing regarding the residual
hearsay exception. The residual exception of Rule 807 reads:
(a) In General. Under the following conditions, a hearsay statement is
not excluded by the rule against hearsay even if the statement is not
admissible under a hearsay exception in Rule 803 or 804:
(1) 	the 	statement 	is 	supported 	by 	sufficient 	guarantees 	of
trustworthiness—after considering the totality of circumstances
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under which it was made and evidence, if any, corroborating the
statement; and
(2) it is more probative on the point for which it is offered than any
other evidence that the proponent can obtain through reasonable
efforts.
(b) Notice. The statement is admissible only if the proponent gives an
adverse party reasonable notice of the intent to offer the statement—
including its substance and the declarant’s name—so that the party has
a fair opportunity to meet it. The notice must be provided in writing
before the trial or hearing—or in any form during the trial or hearing if
the court, for good cause, excuses a lack of earlier notice.
F ED. R. EVID. 807.
The Defendants argue that if the Court determines “portions of Palmer’s or
Slowikowski’s testimony to be hearsay, they may still be admissible under the
residual hearsay exception.” Defs.’ Opp’n at 6. The Plaintiff states that none of the
statements from Defendant Palmer’s declaration meet any exception to the hearsay
prohibition, including the residual exception.
The Defendants have not indicated the specific statements they seek to admit
under the residual exception. In addition to a stated reluctance to issue speculative
and advisory rulings, the Court has not been provided with any information that
defendants have complied with the notice provisions of Rule 807(b). The First Circuit
observed that the admissibility of evidence under Rule 807 involves “considerations
which are very trial-specific, such as the relative probative value of the hearsay
statement and whether admitting the statement will best serve the ‘interests of
justice.’” 	United States v. Doe, 860 F.2d 488, 491 (1st Cir. 1988) (addressing former
Rule 803(24), which was combined with Rule 804(b)(5) in 1997 and transferred to
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Rule 807). The Court declines to predict the admissibility at trial under Rule 807 of
unknown statements.
To the extent the parties seek a pretrial ruling on the admissibility of
Defendant Palmer’s statements excerpted in the Plaintiff motion, Pl.’s Mot. at 1-2,
the Court dismisses the motion as requiring a speculative and advisory ruling.
Additionally, 	those 	statements 	may 	be 	admitted 	in 	evidence 	through 	another
exception, but the Court cannot yet know how the trial will unfold.
V. 	CONCLUSION
The Court DISMISSES without prejudice Plaintiff’s Motion in Limine to
Exclude Evidence and Testimony Related to Response to Article (ECF No. 213).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 20th day of March, 2026
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