PINES CHURCH v. HERMON SCHOOL DEPARTMENT

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

THE PINES CHURCH & )

MATT GIOIA, )

)

Plaintiffs )

)

v. ) No. 1:23-cv-00214-LEW

)

HERMON SCHOOL DEPARTMENT, )

)

Defendant )

ORDER ON THE PARTIES’ MOTIONS IN LIMINE

Plaintiffs The Pines Church and its Pastor Matt Gioia sue Defendant Hermon School

Department (“HSD”) for the school’s alleged discrimination in refusing to lease its

facilities to the church on a 6 or 12 month basis. Both parties filed for summary judgment

and both motions were denied. Before the Court now are the parties’ motions in limine

(ECF Nos. 76 and 78) seeking to exclude certain evidence at trial. For the following

reasons, Defendant’s motion is DENIED. Plaintiffs’ motion is DENIED IN PART and

otherwise RESERVED for trial, as outlined below.

BACKGROUND

About three years ago Gioia contacted HSD to discuss The Pines Church leasing

facilities from the school. The Pines Church was holding services at Spotlight Cinema in

Orono, but its membership was growing and the Church requested a 12 month lease of

HSD’s larger facilities. After multiple meetings, a seven-member School Committee voted

to offer the Church a month-to-month lease. They did not move to vote on a 12 month

lease, and a motion to vote on a 6 month lease received no second.

Plaintiffs thus sued, bringing a 42 U.S.C. § 1983 action asserting HSD violated their

First Amendment free speech and free exercise rights, and the establishment clause.

Plaintiffs also bring a state claim alleging HSD violated Maine public accommodation law.

Following discovery, both parties moved for summary judgment, and both motions were

denied. Following failed settlement talks, the case was set as ready for trial in January of

this year. In January, both parties filed their respective motions in limine to exclude certain

evidence. On the same day, Plaintiffs filed a motion to continue trial and reopen discovery

(ECF No. 79). The continuance was granted and discovery reopened. Discovery has since

closed. After another continuance, the trial is now scheduled to be held in October and the

Motions in Limine are back on the table.

DISCUSSION

A. HSD’S MOTION IN LIMINE

1. Economic Damages

Defendant’s Motion in Limine (ECF No. 76) seeks to exclude certain evidence

related to the Church’s alleged economic damages from being denied a 12-month lease.

Plaintiffs are poised to offer evidence of attendance, offerings, and tithings, either as raw

data or testimony from Gioia. Defendants seek exclusion of any and all evidence of

attendance, offerings, and tithings on the grounds it “does not allow a fact-finder to

calculate economic damages with any reasonable certainty” and is therefore entirely

irrelevant to this case. Def.’s Mot. at 4. Plaintiffs respond that evidence of how many

people attend Church and how much money is usually donated is directly relevant to the

issue of damages.

“Evidence is relevant if: (a) it has a 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.” Fed. R. Ev. 401. Any evidence that moves the needle, even slightly, on an issue

of consequence is relevant. If Plaintiffs establish HSD’s liability for depriving them of

their constitutional rights, they will be entitled to damages for their injuries suffered as a

consequence of that deprivation. Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 460

(1975). Evidence of the Church’s attendance and income prior to being denied a 12-month

lease has enough bearing on the issue of damages to be relevant under Rule 401. Defendant

is of course correct to note that Plaintiff’s “estimate of damages ‘must not be uncertain or

speculative but must be grounded on facts in evidence.’” Barrette Outdoor Living, Inc. v.

Integrity Composites, LLC, 666 F. Supp. 3d 18, 33 (D. Me. 2023) (quoting King v. King,

507 A.2d 1057, 1059 (Me. 1986)). But that is a rule on recovery, not a rule of evidence.

“Each specific item of evidence offered need not ‘be sufficient to prove the case standing

by itself’ before it is admissible.” United States v. Burnett, 579 F.3d 129, 132 (1st Cir.

2009) (quoting United States v. Vigneau, 187 F.3d 82, 87 (1st Cir. 1999)).

Evidence on attendance, tithings, and offerings is relevant, but relevant evidence

may still be excluded under certain circumstances. Under Rule 403 of the rules of

evidence, evidence may be excluded “if its probative value is substantially outweighed by

a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” Fed. R. Ev. 403. Defendants

argue this is the case here, and evidence on the Church’s attendance and income may form

an impermissible basis for a jury to determine HSD discriminated against the Church.

The rules of evidence protect “against unfair prejudice, not against all prejudice.”

United States v. Whitney, 524 F.3d 134, 141 (1st Cir. 2008) (original emphasis). Evidence

is generally unfairly prejudicial where “it has an undue tendency to prompt a decision by

the factfinder on an improper basis.” United States v. Benedetti, 433 F.3d 111, 118 (1st

Cir. 2005). Evidence offered to show the Church’s profits does not seem like it will confuse

the fact-finder here. It is not uncommon to instruct the jury to keep liability determinations

separate from damage valuations without error. See, e.g., La Plante v. Am. Honda Motor

Co., 27 F.2d 731, 738 (1st Cir. 1994) (“The liability issues in this case are . . . distinct and

separable from the damages issue . . . .”). With proper jury instruction, I do not think

evidence of attendance, tithings, and offerings will confuse the jury into concluding HSD

infringed on Plaintiffs’ First Amendment rights. Such evidence will not be excluded.

Defendants also argue for the exclusion of any testimony Plaintiff Gioia may offer

as to the Church’s lost profits. Gioia is poised to testify on the Church’s projected

attendance and profits under a longer term lease from HSD. Gioia has not been disclosed

as an expert, and Defendant argues he is unqualified to give lay opinion testimony

extrapolating damages from data on the Church’s attendance, offerings, and tithes.

As a lay witness, Gioia’s opinion testimony must be “(a) rationally based on [his]

perception, (b) helpful to clearly understanding [his] testimony or to determining a fact in

issue; and (c) not based on scientific, technical, or other specialized knowledge within the

scope of [expert testimony].” Fed. R. Evid. 701. Under the rule, courts allow “lay

witnesses to express opinions about a business ‘based on the witness’s own perceptions

and “knowledge and participation in the day-to-day affairs of the business.”’” United

States v. Munoz-Franco, 487 F.3d 25, 35-36 (1st Cir. 2007) (quoting United States v.

Polishan, 336 F.3d 234, 242 (3d Cir. 2003) (cleaned up)). This includes testimony on a

business’s future profits. See Fed. R. Evid. 701 (advisory committee notes) (“[M]ost courts

have permitted the owner or officer of a business to testify to the value or projected profits

of the business, without the necessity of qualifying the witness as an accountant, appraiser,

or similar expert.”).

Gioia’s testimony as to the Church’s projected profits seems largely allowable under

Rule 701. As its Pastor, Gioia may testify to (relevant and admissible) facts regarding the

Church’s profits based on his personal perceptions. Gioia may even testify about

“‘inferences that he could draw from his perception’ of [the Church’s] records or ‘facts or

data perceived’ by him” as Pastor. Nat’l Starch & Chem. Trading Co. v. M/V/ Star

Inventana, No. 05-91, 2006 WL 1876996, at *3 (D. Me. July 5, 2006) (quoting Teen-Ed,

Inc. v. Kimball Int’l, Inc., 620 F.2d 399, 403-04 (3d Cir. 1980). Gioia may therefore testify

about lost profits, provided, of course, they are limited to his personal knowledge and

rationally based on his personal perceptions. Fed. R. Evid. 701.

One caveat. In their Response (ECF No. 85), Plaintiffs highlight Gioia’s experience

as Director of Relations with Messenger International, a Christian organization, overseeing

20,000 churches nationwide. Plaintiffs note that this experience has given Gioia

“specialized insight into the key factors that contribute to a church’s physical and financial

growth, as well as the impact of each factor.” Pls.’ Response at 2. This sort of multivariate

calculus crosses the rubicon into expert witness territory. See United States v. Vega, 813

F.3d 386, 395 (1st Cir. 2016) (holding witness “opinions not based on the product of

applying familiar reasoning processes to their job experience” were not “lay expertise

under Rule 701”).1 Consequently, testimony of this kind, if Plaintiffs offer it, will not be

allowed at trial.

2. Pain and Suffering

Defendant next argues that because entities, like the Church, cannot recover pain

and suffering damages in a § 1983 action, any testimony regarding such damages should

be excluded. See Hershell Gill Consulting Eng’r, Inc. v. Miami-Dade Cnty., 333 F.Supp.

2d 1305, 1341 (S.D. Fla. 2004). Plaintiffs do not rebut this proposition. Instead they only

add that Plaintiff Gioia is an individual, and therefore entitled to pain and suffering

damages. See Memphis Cmty. Sch. Dist. v. Stachura 477 U.S. 299, 307 (1986). But

Defendant has not argued that evidence of Gioia’s pain and suffering should be excluded,

nor have Plaintiffs indicated they intend to introduce evidence of the Church’s pain and

suffering. It seems then that the parties are in agreement: evidence of the Church’s “pain

1 In Plaintiffs’ Response (ECF No. 85), they noted that “[i]f discovery is reopened and new information is

uncovered that the Plaintiff believes warrants expert testimony at trial, the Plaintiff requests the opportunity

to address this matter at that time.” But the deadline for expert disclosures has long passed. The initial

Scheduling Order (ECF No. 13) required disclosure by October 12, 2023. Absent amendment of that

deadline, it controls. Exactly one year after the expert disclosure deadline, Plaintiffs filed a Motion to

Amend the scheduling order (ECF No. 53). That motion was granted and “the pretrial conference and

related deadlines [were] continued [to] be rescheduled when the matter [was] scheduled for trial.” ECF

No. 54. Later, Plaintiffs filed a Motion to Reopen Discovery (ECF No. 79). I granted that motion, but

construed it as a request to amend the scheduling order and allowed for the completion of limited,

supplemental discovery. See ECF No. 86. The original expert disclosure deadline has not changed. To

modify the scheduling order, Plaintiffs must show good cause. Fed. R. Civ. P. 16(b)(4). New discovery,

related to undisclosed emails in the Defendant’s possession, does not create good cause for Plaintiffs’

failure to disclose their own expert witness on the issue of damages. Gioia may testify as to the Church’s

lost profits based on his own rational perceptions. He may not offer more complex expert testimony with

and suffering” may not be admitted as those damages are not recoverable, but evidence of

the same damages are admissible with respect to Gioia.

3. MHRA Damages

One count of Plaintiffs’ Amended Complaint alleges that Defendant violated Maine

public accommodation laws under the Maine Human Rights Act (“MHRA”). 5 M.R.S. §§

4591-92. The MHRA limits recovery of attorneys’ fees and civil penal damages. Such

fees “may not be awarded to a plaintiff in a civil action . . . unless the plaintiff alleges and

establishes that, prior to the filing of the civil action, the plaintiff first filed a complaint

with the [Maine Human Rights Commission].” 5 M.R.S. § 4622(1). Plaintiffs have not

filed the requisite complaint. Defendant argues that Plaintiffs are now barred from

recovering attorneys’ fees or civil penal damages and, therefore, any evidence of those

damages should be excluded as irrelevant.

Plaintiffs, however, point to an exception within the MHRA. The filing requirement

“does not apply to or limit any remedies for civil actions filed under subchapter V if one

or more additional causes of action are alleged in the same civil action that do not require

exhaustion of administrative remedies.” Id. Subchapter V of the MHRA pertains to public

accommodations and includes 5 M.R.S. § 4591, which Plaintiffs invoke in their Amended

Complaint (ECF No. 10). Accordingly, because Plaintiffs also bring a § 1983 action, which

does not require administrative exhaustion, Plaintiffs are entitled to attorneys’ fees and

civil penalties should they prevail on their MHRA claim. Likewise, evidence of those

damages is relevant.

B. PLAINTIFFS’ MOTION IN LIMINE

On the Plaintiffs’ part, they seek to exclude several sets of evidence or testimony on

the basis that the evidence is of little probative value and unfairly prejudicial to the Church.

The first set of evidence is Plaintiffs’ religious beliefs and community opinions on those

beliefs. Defendant has stated it has no intention of introducing any such evidence.

Plaintiffs’ Motion in Limine is therefore moot with respect to those pieces of evidence.

Another group of evidence that Plaintiffs want excluded is any evidence on the

availability and cost of alternative rentals, Plaintiffs’ financial information and ability to

pay for any alternatives, and Plaintiffs’ subsequent property purchases for a long-term

location. Plaintiffs do not argue that this evidence is irrelevant to the issue of damages.

Instead, Plaintiffs urge that such evidence will confuse the issue and cause the jury to

determine liability based solely on its decision as to damages. This is essentially the same

argument Defendant made in its Motion in Limine. I reject it for the same reason: a jury

with proper instruction can be relied upon to separate damages issues from liability issues.

I do not foreclose entertaining an objection to such evidence on Rule 401 grounds but

reserve any such ruling for trial.

Plaintiffs also argue to exclude any evidence that they operated in other locations

without a lease. Plaintiffs argue that this evidence is irrelevant to the issue of

discrimination or alternatively unfairly prejudicial because it will confuse the issue of

liability. Defendant responds that this evidence is relevant both to liability and damages.

Liability because HSD could have offered a month-to-month lease to Plaintiffs thinking it

would meet Plaintiffs needs if Plaintiffs had operated without a lease in the past. Damages

because Plaintiffs could have mitigated their losses by accepting the month-to-month lease

and the evidence shows a shorter term lease (or no lease) was something Plaintiffs may

have been willing to do elsewhere.

As far as relevance goes, this evidence may theoretically clear the relatively low bar

of Rule 401 if supported by Defendant’s knowledge of The Pines Church’s operations at

the time of the relevant events. I will reserve ruling until such predicate knowledge is made

manifest at trial. As to unfair prejudice, the evidence at issue is potentially relevant to a

central dispute between the parties: whether HSD’s offer of a month-to-month lease was

hollow or a sincere conciliatory offer to The Pines Church.

Plaintiffs lastly seek exclusion of any evidence that HSD has never leased its school

facilities. Plaintiffs argue HSD’s past practices are irrelevant as they are not a defense to

their discrimination claim and, in any event, such evidence would be unfairly prejudicial

by distracting the jury away from the central issue. The evidence is certainly relevant. As

Defendant put it, “it goes to whether Plaintiffs can prove they were similarly situated but

nevertheless treated differently.” Def.’s Response (ECF No. 84) at 2-3. This is the core

of any discrimination claim. I do not find this evidence worthy of exclusion as unfairly

prejudicial under Rule 403.

CONCLUSION

For the foregoing reasons, the Defendant’s Motion in Limine is DENIED (ECF No.

76). Plaintiffs’ Motion in Limine is DENIED IN PART and otherwise RESERVED for

trial (ECF No. 78).

SO ORDERED.

Dated this 24th day of September, 2025.

/S/ Lance E. Walker

Lance E. Walker

Chief U.S. District Judge