MCBREAIRTY

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 DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE

EVIDENCE OF COMPENSATORY DAMAGES UNDER FED. R. CIV. P.

37(c)(1)

In anticipation of trial, defendants filed a motion in limine seeking to prohibit

plaintiff from introducing evidence of compensatory damages at trial for failure to

comply with the disclosure mandates of Federal Rule of Civil Procedure 26(a). The

court has already struck six out of thirteen of the plaintiff’s proposed witnesses due

to plaintiff’s failure to provide the initial disclosures under Rule 26(a). Now

defendants request exclusion of all evidence of compensatory damages, which, if

granted, would effectively resolve the case in their favor. Despite plaintiff’s failure

to make adequate initial disclosures, the court denies the motion to exclude because

the exclusion of six out of thirteen witnesses is sufficient to sanction the plaintiff’s

failure to comply with the initial disclosures under Rule 26(a), because caselaw has a

higher standard for exclusion that results in dismissal, and because the defendants

had actual or implicit knowledge of the potential evidence.

I. PROCEDURAL BACKGROUND

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

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. As relevant to this motion in limine, the complaint states Mr.

McBreairty “is entitled to damages as a result of its actions, including, but not limited

to, lost income, emotional distress and incurring legal fees.” Id. ¶¶ 86, 95. Mr.

McBreairty’s complaint requests relief including “Actual Damages in an amount to

be determined at trial,” “Nominal Damages,” and “further relief the Court deems

appropriate.” Id. at 16.

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.).

On June 3, 2024, Shawn McBreairty died by suicide, Suggestion of Death as to

Pl. Shawn McBreairty at 1 (ECF No. 52). That same day, Mr. McBreairty’s counsel

filed a motion requesting issuance of a scheduling order, Pl.’s Mot. for Issuance of

Sched. Order (ECF No. 47), and the Court issued a scheduling order on June 4, 2024,

which set the deadline for objecting to the scheduling order as June 24, 2024, the

deadline for initial disclosures as July 1, 2024, and the deadline to complete discovery

as October 21, 2024. Sched. Order with Incorporated Rule 26(f) Order (ECF No. 49)

(Sched. Order). There was no objection to the scheduling order.

On August 15, 2024, Patricia McBreairty filed a motion to substitute herself,

as personal representative of the Estate of Shawn McBreairty, in place of Shawn

McBreairty as plaintiff in this case. Mot. to Substitute Party at 1 (ECF No. 57). On

September 6, 2024, Ms. McBreairty (hereinafter, Plaintiff) was formally substituted

as plaintiff, and she has continued to litigate this case on behalf of the estate of her

late husband. Order Granting Mot. to Substitute Party (ECF No. 58).

Initially, Plaintiff pursued injunctive relief. See Order on Recommended

Decision at 4 (ECF No. 106) (“Instead of pursuing discovery, [Plaintiff] pursued

preliminary injunctive relief and filed notice of her intent to seek summary judgment,

all without a mention of a need for discovery or evidence other than the exhibits

attached to the pleadings”). It was only in January 2025 that Plaintiff filed a motion

to continue the scheduling order, Mot. for Continuance of Procedural Order and Reset

Sched. Order (ECF No. 76), which the Court denied. Order on Mot. to Continue

Procedural Order and Reset the Sched. Order (ECF No. 86).

In February 2025, the parties filed cross motions for summary judgment. See

Def. Michelle MacDonald’s Mot. for Summ. J. (ECF No. 87); Pl.’s Mot. for Partial

Summ. J. (ECF No. 90); Mot. for Summ. J. of Defs.’ Brewer Sch. Dept., Gregg Palmer,

and Brent Slowikowski (ECF No. 92). Plaintiff also filed a motion for leave to conduct

Rule 56(d) discovery. Mot. for Leave to Conduct Disc. to Respond to Brewer’s Summ.

J. Mot. (ECF No. 103).

On May 6, 2025, this Court granted partial summary judgment in favor of

Plaintiff on Mr. McBreairty’s originally filed complaint, count three, 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.), granted Michelle MacDonald’s motion for summary judgment,

and denied Plaintiff’s motion for Rule 56(d) discovery. Order on Mot. for Summ. J.

and Mot. for Rule 56(d) Disc. (ECF No. 118) (MacDonald Summ. J. Order).

Specifically, the Court declared that certain Brewer School Department Policies did

not apply to Shawn McBreairty or to his article and did not “oblige, compel, or justify

the conduct by the Brewer School Department and its legal counsel that gave rise to

this civil action.” Id. The Court also denied Plaintiff’s motion for leave to conduct

Rule 56(d) discovery noting that Plaintiff “neglected to conduct discovery during the

scheduled discovery period.” Id. at 27.

On May 21, 2025, Plaintiff filed a final pretrial memorandum and served her

initial disclosures. Pl.’s Pretrial Mem. (ECF No. 128). In that motion, she stated she

was seeking “nominal damages” as well as “actual damages, including compensation

for Mr. McBreairty’s severe, debilitating, and fatal emotional distress, as well as

punitive damages and attorneys’ fees.” Id. at 2. Plaintiff also itemized a more

extensive list of witnesses than previously identified. Id. at 3-4. On September 24,

2025, the Court granted in part and denied in part that motion, excluding some

witnesses. Order on Mot. for Order Regarding Trial Evid. (ECF No. 150) (Trial Evid.

Order).

This case is currently scheduled for trial in February 2026 on the remaining

two counts. Trial List (ECF No. 189). Before the Court now is Defendants’ motion in

limine, Defs.’ Mot. in Lim. to Exclude Evid. of Compensatory Damages Under Fed. R.

Civ. P. 37(c)(1) (ECF No. 171) (Defs.’ Mot.). On November 26, 2025, Plaintiff

submitted her response, Opp’n to Defs.’ Mot. in Lim. to Exclude Evid. of Compensatory

Damages (ECF No. 181) (Pl.’s Opp’n), and on December 3, 2025, Defendants’ replied.

Defs.’ Reply to Pl.’s Opp’n to Defs.’ Mot. in Lim. to Exclude Evid. of Compensatory

Damages (ECF No. 184) (Defs.’ Reply). On December 9, 2025, the Court held oral

argument. Min. Entry (ECF No. 186).

II. THE FACTUAL RECORD2

A. The Underlying Facts

Brewer School Department permits students to use the restroom

corresponding to their gender identity, rather than their biological circumstances.

Pl.’s Statement of Material Facts (ECF No. 91) ¶ 1 (PSMF), Sch. Defs.’ Opp’n

Statement of Material Facts (ECF No. 102) ¶ 1 (DRPSMF). HW and CG are students

2 The parties have not addressed what record the Court should rely on in resolving the motion

in limine. To provide context, the Court has elected to use the undisputed facts submitted by the

parties in support of their motions for summary judgment.

at Brewer High School. PSMF ¶ 2; DRPSMF ¶ 2. HW and CG objected to the

restroom policy and started a petition to oppose it. PSMF ¶¶ 3-4; DRPSMF ¶¶ 3-4.

Defendants admit that they said things to HW and CG that made them understand

that they would not only be disciplined if they persisted with the petition but that

they would also be either prosecuted for a “hate crime” or sued by the School

Department, perhaps both. PSMF ¶¶ 6, 10; DRPSMF ¶¶ 1, 10. HW and CG

immediately ceased promoting the petition. PSMF ¶ 7; DRPSMF ¶ 7.

Shawn McBreairty wrote about the controversy. PSMF ¶ 11; DRPSMF ¶ 11;

Statement of Material Facts of Defs. Brewer Sch. Dept., Gregg Palmer, and Brent

Slowikowski in Support of Mot. for Summ. J. (EC No. 93) ¶ 1 (DSMF); Pl.’s Opposing

Statement of Material Fact (ECF. No. 105) ¶ 1 (PRDSMF). After reviewing evidence,

speaking to witnesses, and doing research, on February 12, 2024, Mr. McBreairty

published “Girl’s Bathrooms are Not ‘Safe Spaces’ When Males are Present” on the

website [your]NEWS (hereafter “the Article”). Compl., Attach. 3, Ex. 3 Article

(McBreairty Article); PSMF ¶ 13; DRPSMF ¶ 13. In the Article, Mr. McBreairty

expressed his opinions about the underlying facts and concerns related to what was

happening at Brewer High School. PSMF ¶ 14; DRPSMF ¶ 14.

Much of the content of Mr. McBreairty’s Article was critical of the Brewer

School Department’s handling of the restroom access controversy related to student

petition activity. Mr. McBreairty reported how Brewer High School teacher Michelle

MacDonald reacted negatively to the petition and claimed that Ms. MacDonald also

threatened the students circulating the petition. PSMF ¶¶ 16-17; DRPSMF ¶¶ 16-

17. He wrote about how Principal Brent Slowikowski precluded students from

circulating the petition. PSMF ¶ 17; DRPSMF ¶ 17.

Mr. McBreairty wrote much of the Article as a kind of exposé-style piece

focused on the high school senior who was using the girls’ restrooms. Among other

things, Mr. McBreairty revealed to his audience the first and last name of the student

(whom, the Court refers to as HD), shared HD’s Instagram username, and wrote that

“[h]e goes by the pronouns they/them on Instagram.” McBreairty Article at 2. Mr.

McBreairty said:

He’s been allowed by the administration to continue to enter female

spaces for the last three months. Even after students’ concerns were

reported. He once stated he was “too emo for this school,” but now he is

literally playing dress up, because the school policy allows it to continue

and no one has the balls to stop it.

Id. Mr. McBreairty continued:

There have been various social media posts that “...he is alleged to have

touched some female student(s).” Additional, yet unconfirmed reports

state he is accused online of a “sexual assault” of a fellow student “in

late 2021.” There was another post stating “...in [S]eptember of 2022

[I] was taken advantage of by [HD].”

Id. (punctuation and omissions in original). Mr. McBreairty wrote that “[s]ources

state these are ‘different people’ making these serious claims. Is the school aware of

these claims? Some say they are.” Id.3

Mr. McBreairty included in the Article a picture of four fully clothed students

inside the girls’ restroom who were standing around a paper towel dispenser with the

3 According to Superintendent Palmer, Mr. McBreairty’s statement that HD had a documented

history of sexual assault at Brewer High School is false. Mem. of Law in Opp’n to Mot. for TRO of

Defs. Brewer Sch. Dept., Gregg Palmer, and Brent Slowikowski (ECF No. 16), Attach. 1, Decl. of Gregg

Palmer at ¶ 6 (Palmer Decl.).

caption: “Brewer, ME High School girls’ bathroom photo of male [HD] (green hair and

brown dress) provided by an anonymous source.” Id. at 3. Mr. McBreairty also

included a selfie picture of HD from Instagram with the caption, “[HD], a boy who is

allowed to hang out in the girls room.” Id.

Mr. McBreairty criticized the School Department’s institution of a policy that

would permit HD to access the girls’ restroom, as well as its effort to quash a student-

led, in-school petitioning effort opposed to the policy. Id. at 3-6. Mr. McBreairty

criticized school personnel involved in that effort, specifically Michelle MacDonald, a

teacher in the Brewer High School, Department Superintendent Gregg Palmer, and

Brewer High School Principal Brent Slowikowski. Id.; PSMF ¶¶ 16-17; DRPSMF ¶¶

16-17. Mr. McBreairty also criticized the law firm Drummond Woodsum for its role

in counseling school clients to adopt such policies. PSMF ¶ 21; DRPSMF ¶ 21.

Finally, in comments related to Ms. MacDonald, Mr. McBreairty took aim at Ms.

MacDonald’s minor child, who attended another area high school, calling out the child

as transgender and making fun of the child’s athletic performance. McBreairty

Article at 3.

The Brewer School Department decided to try to get Mr. McBreairty to take

down the portions of the Article that it believed qualified as defamatory or invaded

the privacy rights of students. PSMF ¶¶ 27-29; DRPSMF ¶¶ 27-29. The School

Department requested that its counsel send Mr. McBreairty an email. PSMF ¶ 27;

DRPSMF ¶ 27.

On February 13, 2024, counsel for the Brewer School Department sent Mr.

McBreairty an email. Compl. Attach. 5, Ex. 5 E-Mail from Melissa Hewey Feb. 13,

2024 (First Hewey Email); DSMF ¶ 8; PRDSMF ¶ 8. That email stated:

Dear Mr. McBreairty,

I am writing on behalf of our client the Brewer School Department to

demand that you remove certain content from your February 12, 2024

online post entitled “Girl’s Bathrooms Are Not ‘Safe Spaces’ When Males

are Present.” If you are represented by counsel in this matter, please

let me know and I will be glad to direct my correspondence to them.

Although we acknowledge that much of that post contains your opinions

on matters of public concern and recognize your right to express them,

there are certain portions that are not protected because they are either

false or an impermissible invasion of the privacy of minors and have the

effect of bullying and hazing a student and a teacher at the Brewer High

School in violation of Board Policies ACAD, ACAF and JICK and Maine

law. In particular:

First, there is a picture of Brewer High School students in the restroom.

As we understand it, this picture was taken without their consent,

presumably in violation of 17-A M.R.S. Section 511.

Second, there are the following two statements concerning a Brewer

High School student that identifies the student specifically:

[HD], aka “****” is a senior at Brewer High School. He goes

by the pronouns they/them on Instagram and his profile

name is “****.” He’s been allowed by the administration to

continue to enter female spaces for the last three months.

Even after students’ concerns were reported. He once

stated he was “too emo for this school,” but now he is

literally playing dress up, because the school policy allows

it to continue and no one has the balls to stop it.

There have been various social media posts that “... he is

alleged to have touched some female student(s).”

Additional, yet unconfirmed reports state he is accused

online of a “sexual assault” of a fellow student “in late

2021.” There was another post stating “... in September

(sic) of 2022 i (sic) was taken advantage of by [HD].”

Sources state these are “different people” making these

serious claims. Is the school aware of these claims? Some

say they are.

Third, there is a statement concerning the minor child of one of our

teachers:

MacDonald has a transgender child who attends a different

school (Hampden Academy. She’s a girl who pretends to be

a boy on the male track team, usually coming in dead last).

All of the above are invasions of privacy of the students you have

referred to and are causing the Brewer High School student and the

Brewer High School staff member who is the parent of the other student

you refer to severe distress within the meaning of Maine statute, 20-A

M.R.S. Sections 6553 and 6554.

Please remove the referenced material by noon on February 14, 2024

and confirm to me that you have done so or we will be forced to take

further action against you.

M

First Hewey Email at 2 (emphasis in original); DSMF ¶ 9; PRDSMF ¶ 9.

Mr. McBreairty reluctantly and fearfully removed the entire Article from the

website [your]NEWS and published a copy of counsel’s email dated February 13,

2024, on his Twitter/X account. Compl., Attach. 6, Ex. 6 E-mail from Melissa Hewey

February 14, 2025 (Second Hewey Email); PSMF ¶ 32, 38; DRPSMF ¶ 32, 38; DSMF

¶ 11; PRDSMF ¶ 11. On February 14, 2024, counsel for the School Department sent

Mr. McBreairty a second email with the subject line “Brewer Follow-up.” Second

Hewey Email at 2; DSMF ¶ 12; PRDSMF ¶ 12.

The full text of the February 14, 2024 email reads:

Dear Mr. McBreairty,

As an initial matter, I want to thank you for complying with our request

to remove the image and certain content from your post in response to

the email I sent you yesterday. I understand that instead, you posted a

screenshot of the email I sent you. What you may not have been aware

of is that my email quoted verbatim the inappropriate content so by

posting the email on X, you have effectively re-posted the inappropriate

content.

Please redact the information regarding the BHS student from your

second picture and the information regarding the staff member’s child

on the third page.

Thank you for your prompt attention to this demand.

Second Hewey Email at 2; DSMF ¶ 13; PRDSMF ¶ 13.

Mr. McBreairty died by suicide on June 3, 2024. DSMF ¶ 16; PRDSMF ¶ 16.

HD and the other students pictured in the Article no longer attend Brewer High

School. DSMF ¶ 17; PRDSMF ¶ 17. Brewer High School has concluded that it has

no obligation to protect former students and therefore it does not intend to try to

prevent anyone from posting previously objected to content. DSMF ¶ 18.

On May 7, 2025 Attorney Melissa Hewey filed a motion to withdraw as counsel

for Defendants, Mot. to Withdraw (ECF No. 121), and the Court granted the motion.

Order Granting Mot. by Att’y Melissa A. Hewey to Withdraw as Att’y (ECF No. 122).

B. The Motion for TRO and Preliminary Injunction, the Scheduling

Order, and Plaintiff’s Late Rule 26 Disclosure

Mr. McBreairty filed his complaint on February 22, 2024. Compl. With the

complaint, Mr. McBreairty filed a motion for temporary restraining order (TRO).

Emer. Mot. for a TRO and for a Prelim. Inj. or, in the Alternative, an Inj. Pending

Appeal (ECF No. 4). From February 22, 2024 through June 7, 2024, the focus of the

litigation was on the motion for TRO and preliminary injunction. On March 1, 2024,

Defendants opposed the motion for TRO, Mem. of Def. Michelle McDonald in Opp’n

to Pl.’s Mot. for TRO (ECF No. 15), Mem. of Law in Opp’n to Mot. for TRO of Defs.

Brewer Sch. Dep’t, Gregg Palmer, and Brent Sloikowski (ECF No. 16), and on March

6, 2024, Mr. McBreairty filed a reply. Pl.’s Reply in Support of Emer. Mot. for a TRO

and for a Prelim. Inj. (ECF No. 23). On March 7, 2024, Chief Judge Walker ordered

the parties to provide supplementary briefing, Order (ECF No. 24), and on March 12,

2024, the parties complied with his order. Pl.’s Br. Addressing the Photograph in Pl.’s

Article – and – the First Am. Protection (ECF No. 25); Mem. of Law Discussing

Whether Pl.’s Use of the Photograph Seemingly Taken by Another Person in Violation

of 17-A M.R.S. Section 511 is Entitled to First Am. Protection (ECF No. 26); Br. of Def.

Michelle MacDonald Regarding First Am. Protection for Publication of Photograph of

Minor Taken in Violation of 17-A M.R.S. § 511 (ECF No. 27). On March 28, 2024,

Chief Judge Walker issued an order, denying the motion for TRO and reserving ruling

on the motion for preliminary injunction. Order on Pl.’s Mot. for a TRO and Prelim.

Inj. (ECF No. 30).

On March 29, 2024, Mr. McBreairty appealed Chief Judge Walker’s March 28,

2024 order to the Court of Appeals for the First Circuit, Notice of Appeal (ECF No.

32), and he filed an emergency motion for injunction pending appeal. Pl.’s Emer. Mot.

for Inj. Pending Appeal (ECF No. 33). After briefing, Chief Judge Walker denied the

emergency motion on April 10, 2024. Order on Emer. Mot. for Inj. Relief Pending

Appeal (ECF No. 41). On May 16, 2024, the First Circuit rejected the appeal. J. (ECF

No. 43). The Court of Appeals issued its mandate, returning jurisdiction to the

district court on June 7, 2024. Mandate (ECF No. 50).

While the motion for TRO and preliminary injunction were being litigated, the

case was effectively held in abeyance. In fact, Defendants did not file an answer to

the complaint until May 20, 2024, Answer and Affirmative Defenses of Defs. Brewer

Sch. Dep’t, Gregg Palmer, and Brent Slowikowski (ECF No. 46), and Ms. MacDonald

did not file her answer until June 20, 2024. Def. Michelle MacDonald’s Answer to

Pl.’s Compl. (ECF No. 51).

Meanwhile, between May 16, 2024, the date of the Court of Appeals’ decision,

and June 7, 2024, the date of its mandate, Mr. McBreairty moved for the issuance of

a scheduling order. Pl.’s Mot. for Issuance of Scheduling Order (ECF No. 47). On

June 4, 2024, the Magistrate Judge issued a scheduling order. Sched. Order at 1-3.

The scheduling order set June 17, 2024 as the deadline for conference of the parties

pursuant to Federal Rule of Civil Procedure 26(f), July 1, 2024 as the deadline for

initial disclosure pursuant to Federal Rule of Civil Procedure 26(a)(1), August 19,

2024 as the deadline for amendment of the pleadings and joinder of parties, August

19, 2024 as the deadline for Plaintiff to designate experts, September 23, 2024 as the

deadline for Defendants to designate experts, October 21, 2024 as the deadline to

complete discovery, October 28, 2024 as the deadline to file a notice of intent to file

summary judgment, November 12, 2024 as the deadline for filing all dispositive and

Daubert4 motions, and set January 8, 2025 as the expected trial date. Id. at 2-3.

Tragically, Mr. McBreairty died on June 3, 2024, the day before the scheduling

order issued. On July 2, 2024, Ms. McBreairty filed a suggestion of death, Suggestion

4 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

of Death as to Pl. Shawn McBreairty, and on July 2, 2024, Chief Judge Walker issued

an order confirming that under Federal Rule of Civil Procedure 25(a)(1), that a motion

for substitution must be filed within ninety days, making the motion for substitution

due by September 30, 2024. Order (ECF No. 53). Ms. McBreairty filed a motion for

substitution on August 15, 2024, which was granted on September 6, 2024. Mot. to

Substitute Party; Order Granting Mot. to Substitute Party.

Ms. McBreairty then refiled a motion for preliminary injunction on September

30, 2024. Updated Mot. for a Prelim. Inj. or, in the Alternative, an Inj. Pending Appeal

(ECF No. 59). The parties briefed and argued the motion for preliminary injunction,

and on January 10, 2025, Chief Judge Walker issued an order denying the motion for

preliminary injunction. Order on Mot. for Prelim. Inj. (ECF No. 74).

As noted above, the parties then engaged in an extended dispositive motion

practice that resulted on May 6, 2025 with two orders from Chief Judge Walker.

Order on Cross Mots. for Summ. J. at 1-31; MacDonald Summ. J. Order at 1-9. In

his orders, Chief Judge Walker denied Ms. McBreairty’s requests that she be allowed

to conduct discovery under Federal Rule of Civil Procedure 56(d). Order on Cross

Mots. for Summ. J. at 31; MacDonald Summ. J. Order at 9.

Following resolution of the motions for summary judgment, the case became

vulnerable for trial, and on May 7, 2025, the Clerk’s Office set the case for the July

2025 trial list. Trial List (ECF No. 119). On May 21, 2025, the parties filed pretrial

memoranda. Pretrial Mem. of Defs. Brewer Sch. Dep’t and Gregg Palmer (ECF No.

127) (Defs.’ Pretrial Mem.); Pl.’s Pretrial Mem. On July 31, 2025, Ms. McBreairty

served her Rule 26 disclosures on defense counsel, and Defendants’ counsel confirmed

that they would object to the Rule 26 disclosure as untimely under the rules and the

scheduling order. See Mot. for Order Regarding Trial Evid. (Mot. for Order), Attach.

1, Emails between counsel (ECF No. 138).

C. Plaintiff’s Motion for Order Regarding Trial Evidence and the

Order on Motion Regarding Trial Evidence

On July 31, 2025, Plaintiff moved for an order regarding trial evidence, raising

her failure to make timely initial disclosures and requesting an order clarifying that

the timing of initial disclosures will not bar her presentation of identified witnesses

and exhibits. Mot. for Order at 1-6. On August 21, 2025, Defendants objected. Opp’n

to Pl.’s Mot. for Order Regarding Trial Evid. (ECF No. 146). On August 25, 2025,

Plaintiff replied. Reply in Support of Mot. for Order Regarding Trial Evid. (ECF No.

148). On September 24, 2025, Chief Judge Walker issued an order in response to Ms.

McBreairty’s motion. Trial Evid. Order.

In his September 24, 2025 order, Chief Judge Walker carefully reviewed the

travel of the case and came to an eminently practical resolution. Judge Walker

analyzed the witnesses listed in Plaintiff’s pretrial memorandum and concluded that

“as to the core of the case the Defendants have never actually been at and will not

prospectively face any disadvantage or prejudice.” Id. at 5. By contrast, Judge

Walker excluded the “newly proposed witnesses whose importance to the trial in

questionable or not at all apparent.” Id. At the same time, regarding exhibits, Judge

Walker entered his order without prejudice because the order was based on his

understanding of the case in that the parties had long identified and had long been

aware of the “relevant exhibits.” Id. at 6. Thus, to that extent, Judge Walker entered

the order “without prejudice to the Defendants ability to raise any such concern in

the context of a motion in limine.” Id.

III. THE PARTIES’ POSITIONS

A. Defendants’ Motion to Exclude Evidence of Compensatory

Damages

Defendants argue that Plaintiff failed to disclose “any intent to seek

compensatory damages until seven months after the close of discovery” and therefore

that she should be prohibited from using the undisclosed information at trial. Defs.’

Mot. at 10. Defendants acknowledge that “barring the plaintiff from presenting

evidence of compensatory damages may carry the force of dismissal by defeating

justiciability” because even if she could maintain Article III standing, she may walk

away from the case if she only stands to recover nominal damages. Id. at 6-7.

Nonetheless, Defendants argue such a harsh result is warranted under the balance

of factors articulated in controlling caselaw. Id. at 6-10. Defendants argue that

Plaintiff has a history of failure to comply with discovery. Id. at 7-8. In their view,

Plaintiff’s failure to disclose leaves defendants to prepare for “a trial by ambush on

the issue of whether their conduct proximately caused McBreairty’s alleged emotional

distress . . . and, ultimately, his suicide.” Id. at 9. Finally, Defendants argue

“plaintiff’s inability to meet basic discovery requirements . . . has expended a

significant amount of the defendants’ and this Court’s time and will continue to do so

absent preclusion.” Id. at 10.

B. Plaintiff’s Opposition to Defendants’ Motion to Exclude

Evidence of Compensatory Damages

In her response, Plaintiff admits that although she did not make a formal

disclosure as to the computation of compensatory damages, Defendants were aware

Plaintiff sought damages for emotional distress because it was identified in Plaintiff’s

complaint. Pl.’s Opp’n. at 2-3. Applying the controlling caselaw, Plaintiff argues none

of those factors warrants exclusion. “As to history, emotional distress damages as a

category was known from the Complaint.” Id. at 3. “As to need for

evidence . . . exclusion may have the force of dismissal.” Id. at 3-4. “As to

justification, neither plaintiff could have served timely disclosures. And, even though

the Court determined that the scheduling order was operative, that does not

undermine Plaintiff’s good faith belief that it was not.” Id. at 4. Finally, Plaintiff

argues there is no prejudice to Defendants who “have known of the emotional

distress.” Id.

C. Defendants’ Reply to Plaintiff’s Opposition

In their reply, Defendants suggest “the plaintiff should be precluded from

introducing evidence of compensatory damages at trial because the late disclosed

emotional distress damages she now seeks to recover differ so materially from what

was initially alleged in the complaint that they cannot reasonably have ‘long been a

basic component of this litigation.’” Defs.’ Reply at 2 (citing Trial Evid. Order).

IV. LEGAL STANDARD

Federal Rule of Civil Procedure 26 contains two required disclosure provisions

relevant here. The first is Rule 26(a)(1)(A)(i), requiring the “name and, if known the

address and telephone number of each individual likely to have discoverable

information—along with the subjects of that information-that the disclosing party

may use to support its claims . . ., unless the use would solely be for impeachment.”

FED. R. CIV. P. 26(a)(1)(A)(i).

The second required disclosure provision is Rule 26(a)(1)(A)(iii), which

mandates that a plaintiff include in her initial disclosures “a computation of each

category of damages claimed” and to “make available for inspection and

copying . . . the documents or other evidentiary material, unless privileged or

protected from disclosure, on which each computation is based, including materials

bearing on the nature and extent of injuries suffered.” FED. R. CIV. P. 26(a)(1)(A)(iii).

Rule 26 also specifies timing, instructing that generally the “initial disclosures” must

be made “at or within 14 days after the parties’ Rule 26(f) conference” unless a

“stipulation or court order” provides otherwise or “a party objects during the

conference that initial disclosures are not appropriate in this action.” Id. at (a)(1)(C).

Typically, there are adverse consequences when a party ignores the required

discovery provisions of Rule 26. “If a party fails to provide information . . . as required

by Rule 26(a) . . . the party is not allowed to use that information . . . to supply

evidence on a motion, at a hearing, or at a trial, unless the failure was substantially

justified or is harmless.” FED. R. CIV. P. 37(c)(1). “The baseline rule is that the

required sanction in the ordinary case is mandatory preclusion.” Harriman v.

Hancock Cty., 627 F.3d 22, 29 (1st Cir. 2010) (cleaned up).

At the same time, “district courts have broad discretion in meting out Rule

37(c) sanctions for Rule 26 violations” that “range from limited exclusion to dismissal

of the case.” Laplace-Bayard v. Batlle, 295 F.3d 157, 162 (1st Cir. 2002) (citing Ortiz–

Lopez v. Sociedad Espanola de Auxilio Mutuo Y Beneficiencia de Puerto Rico, 248 F.3d

29, 34 (1st Cir.2001)). To determine if preclusion was warranted, the First Circuit

considers several factors:

(1) the history of the litigation; (2) the sanctioned party’s need for the

precluded evidence; (3) the sanctioned party’s justification (or lack of

one) for its late disclosure; (4) the opponent-party’s ability to overcome

the late disclosure’s adverse effects—e.g., the surprise and prejudice

associated with the late disclosure; and (5) the late disclosure’s impact

on the district court’s docket.

Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72, 78 (1st Cir. 2009). These same

factors guide district courts. See Doe v. Austin, No. 2:22-CV-00368-NT, 2024 U.S.

Dist. LEXIS 199423, *6 (D. Me. Nov. 1, 2024). “Preclusion, however, ‘is not a strictly

mechanical exercise’” and “in its discretion, the district court may choose a less severe

sanction.” Esposito, 590 F.3d at 77-78 (1st Cir. 2009) (citing Santiago–Diaz v.

Laboratorio Clinico Y De Referencia Del Este, 456 F.3d 272, 276 (1st Cir.2006)).

Further, where sanctioning the party who failed to comply with discovery

deadlines “carrie[s] the force of a dismissal, the justification for it must be

comparatively more robust.” Id. at 79; see also Joyce v. Postmaster Gen., U.S. Postal

Serv., 846 F. Supp. 2d 268, 278 (D. Me. 2012) (“[W]here the document may affect

whether summary judgment is granted, its exclusion is tested against a higher

standard”). “The burden is on the party that has failed to comply with discovery

deadlines to establish that his failure is harmless or substantially justified.” U.S.

Bank Nat’l Ass’n v. James, Civil No. 09-84-P-JHR, 2010 U.S. Dist. LEXIS 34043, at

*6 (D. Me. Apr. 5, 2010) (citing Griffith v. Eastern Me. Med. Ctr., 599 F. Supp. 2d 59,

65 n.4 (D. Me. 2009)).

V. DISCUSSION5

A. Chief Judge Walker’s September 24, 2025 Order

The Court first addresses Plaintiff’s contention that Chief Judge Walker

already decided this issue on September 24, 2025 when he granted in part and denied

in part Plaintiff’s motion for order regarding trial evidence. See Trial Evid. Order at

1-6. Essentially, Judge Walker pored over the record and concluded that Defendants

certainly knew about some witnesses and their centrality to the case from the

allegations in the complaint and its extensive motion practice. If Defendants knew

or should have known that a witness, such as Attorney Hewey, would be called at

trial, Judge Walker made the practical decision that the failure of Plaintiff to make

a timely Rule 26(a) disclosure early in the case did not actually affect Defendants’

knowledge and ability to prepare for trial.

Thus, in his September 24, 2025 order, Chief Judge Walker included some

witnesses and excluded others because of Plaintiff’s failure to make timely initial

disclosures. Id. at 3-6. Reviewing the list of thirteen witnesses in Plaintiff’s pretrial

memorandum, Judge Walker excluded six witnesses as a sanction for Plaintiff’s

failure to make timely initial disclosures.6 Id. at 3, 5-6.

5 In this order, the Court is not addressing the admissibility of Mr. McBreairty’s suicide at trial.

See Defs.’ Mot. This issue is the subject of a separate motion in limine and separate order. See Defs.’

Mot. in Lim. to Exclude Evid. Related to Suicide and Statements of Emotional Distress and Causation

(ECF No. 173). This order only addresses the admissibility of compensatory damages other than

suicide.

6 Plaintiff’s Final Pretrial Memorandum dated May 21, 2025 listed thirteen witnesses: (1)

Patricia McBreairty, (2) Philp Wells, (3) Hannah Wells, (4) Connor Girard, (5) Hunter Dawson, (6)

parent of Hunter Dawson, (7) Corporate Representative Nico Ventures, (8) Corporate Representative

Maine Policy Institute, (9) Melissa Hewey, (10) Gregg Palmer, (11) Brent Slowikowski, (12) Michelle

MacDonald, and (13) Haily Keezer. Pl.’s Pretrial Mem. at 3-4. Chief Judge Walker’s September 24,

Judge Walker also raised the possibility of a motion in limine, but it is unclear

whether he was discussing only exhibits or witnesses as well. Id. at 6 (“My

understanding of the case is that the relevant exhibits have long been identified and

known to the parties, but my understanding may well fail to appreciate the existence

of some new evidentiary disclosure that is unjustified for being unanticipated and

prejudicial. I therefore enter this Order without prejudice to Defendants’ ability to

raise any such concern in the context of a motion in limine”) (emphasis supplied).

But it is clear from Chief Judge Walker’s order that he had already imposed a

significant sanction on Plaintiff for her failure to comply on a timely basis with Rule

26(a). Defendants are now seeking the exclusion of any evidence of compensatory

damage, a more dramatic remedy than the one Chief Walker imposed.

B. Chief Judge Walker’s Analytic Path

In any event, assuming his invitation to file a motion in limine included

witnesses as well as exhibits, the Court applies Chief Judge Walker’s analytic path

to Defendants’ current motion, asking whether Defendants had actual knowledge of

Plaintiff’s claim, even if a formal disclosure was not made. Here, the Court has little

difficulty concluding that Defendants knew or should have known that Ms.

McBreairty was going to testify about her late husband’s emotional response to

Defendants’ actions in this case. The complaint alleges that after receiving the first

Hewey letter, Mr. McBreairty “suffered injuries that are non-pecuniary in nature, but

2025 order excluded (1) Connor Girard, (2) Hunter Dawson, (3) Hunter Dawson’s mother, (4) Corporate

Representative of Nico Ventures, (5) Corporate Representative of the Maine Policy Institute, and (6)

Haily Keezer. Trial Evid. Order at 5-6.

are even more important than his pecuniary losses.” Compl. ¶ 69. Mr. McBreairty

alleged that he “suffered pecuniary and nonpecuniary damages as a result of

Defendants’ unconstitutional actions and is entitled to damages as a result of its

actions, including, but not limited to, lost income, emotional distress, and incurring

legal fees.” Id. ¶¶ 86, 95 (emphasis supplied). Finally, Mr. McBreairty claimed

“Actual Damages in an amount to be determined at trial.” Id. at 16.

In addition, during the motion for summary judgment process, Ms. McBreairty

alleged in her responsive statement of material fact that her late husband had

“suffered emotional distress on account of Defendants’ unconstitutional actions.”

PSAMF ¶ 39.

Once Mr. McBreairty passed away, it would be a very short step for defense

counsel to appreciate that Ms. McBreaity was going to testify to what her husband

could not, namely about his emotional reactions to Defendants’ positions.

Thus, applying Chief Judge Walker’s analysis, the Court concludes that

Defendants were on notice from the date of the filing of the complaint that Mr.

McBreairty was going to claim emotional damages from their actions, and, after he

died, that Ms. McBreairty would be the logical, essential witness in his place.

C. Other Factors, Including Esposito

The Court has considered other factors. First, the period of Mr. McBreairty’s

emotional damages is extremely confined, namely between February 13, 2024, the

date Attorney Hewey forwarded her first threatening email, and June 3, 2024, the

date of his death. Thus, only that three month and twenty-one-day period is relevant

in this order to Plaintiff’s claim for compensatory damages on behalf of her late

husband.

The first Esposito factor—the litigation history—cuts both ways. On the one

hand, Defendants are correct, Plaintiff failed to meet the initial disclosure deadlines.

The Court’s June 4, 2024 scheduling order set July 1, 2024 as the deadline for initial

disclosures and October 21, 2024 as the deadline to complete discovery. Sched. Order

at 2. While Plaintiff was substituted as plaintiff in September of 2024, Order

Granting Mot. to Substitute Party, she chose to pursue injunctive relief at the expense

of moving discovery along. Order on Recommended Decision at 4 (ECF No. 106)

(“Instead of pursuing discovery, [Plaintiff] pursued preliminary injunctive relief and

filed notice of her intent to seek summary judgment, all without a mention of a need

for discovery or evidence other than the exhibits attached to the pleadings”). Plaintiff

did not have to wait until January of 2025 to move to reset the scheduling order, Mot.

for Continuance of Procedural Order and Reset Sched. Order, nor did she have to wait

until May of 2025 to serve initial disclosures. See Pl.’s Pretrial Mem.

On the other hand, Mr. McBreairty’s death certainly complicated this case.

Mr. McBreairty died on June 3, 2024 and the scheduling order issued on June 4, 2024,

imposing a July 1, 2024 deadline for initial disclosures. But Mr. McBreairty was

tragically dead as of July 1, 2024, and Ms. McBreairty had not yet been substituted.

Thus, as of the deadline for initial disclosure, technically, there was no plaintiff, Mr.

McBreairty having died, and Ms. McBreairty having not yet been substituted for him.

It is true that once Ms. McBreairty was formally substituted on September 6, 2024,

she did not then do anything to comply with Rule 26(a), either by providing the initial

disclosure or by moving for a new deadline. But Mr. McBreairty’s death complicated

compliance with the initial disclosure in the scheduling order.

Although Defendants seem to criticize Ms. McBreairty for being too slow to

move to substitute herself as personal representative of her late husband, the Court

disagrees. The filing in Probate Court for status as a personal representative of an

estate takes some time, and there is no evidence in this record that Ms. McBreairty

did not act expeditiously in getting appointed the personal representative of his estate

and filing the motion for substitution. In fact, Federal Rule of Civil Procedure 25(a)

recognizes that there will be a delay between death and motion to substitute and fixes

ninety days to file an appropriate motion. FED. R. CIV. P. 25(a). Indeed, as the

advisory committee note clarifies, the ninety-day period runs not from the date of

death but “after service of a statement noting the death,” a change intended to

mitigate the “hardships and inequities” of the former rule. Id. advisory committee’s

note to 1963 amendment. Here, Ms. McBreairty filed the motion for substitution five

weeks after filing the suggestion of death, well within the ninety days allowed under

Rule 25(a).

According to Defendants, Plaintiff did not “disclose any intent to seek

compensatory damages until seven months after the close of discovery” when, on May

21, 2025, Plaintiff filed a final pretrial memorandum and served her initial

disclosures. Defs.’ Mot. at 10; see also Pl.’s Pretrial Mem. at 2 (“Plaintiff seeks at least

nominal damages, but seeks and is entitled to actual damages, including

compensation for Mr. McBreairty’s . . . emotional distress”). Although Defendants

are technically correct that Plaintiff did not make time Rule 26(a) disclosures, the

Court cannot agree that Plaintiff never disclosed this information, since it has been

clear since the filing of the complaint that this lawsuit seeks damages compensating

Shawn McBreairty for emotional distress.

Moving to the other Esposito factors, the second factor—Plaintiff’s “need for

the . . . evidence,” Esposito, 590 F.3d at 78—strongly favors allowing evidence of

compensatory damages. Both parties agree, barring evidence of compensatory

damages would be tantamount to dismissal. See Defs.’ Mot. at 6-7 (“barring the

plaintiff from presenting evidence of compensatory damages may carry the force of

dismissal by defeating justiciability” or because “plaintiff may have little interest in

prosecuting this case for only nominal damages”); Pl.’s Opp’n at 2. Because preclusion

would carry the force of dismissal, the Court uses a higher standard for each exclusion

factor. Esposito, 590 F.3d at 79.

The remaining Esposito factors—Plaintiff’s justification for her late disclosure,

prejudice to Defendants, and burden on this Court’s docket—do not outweigh the

importance of the compensatory damages evidence to Plaintiff. To be sure, Plaintiff’s

justification for delay is weak. She says she did not believe the scheduling order was

operative after her husband’s death, and although she acknowledges “the Court

determined that the scheduling order was operative” she insists “that does not

undermine Plaintiff’s good faith belief that it was not.” Pl.’s Opp’n at 4. Plaintiff

could have moved to clarify or amend the scheduling order deadlines between

September 6, 2024, the date of her substitution, and October 21, 2024, the discovery

deadline. Hindsight has demonstrated that attending to discovery, even while

pursuing injunctive relief, would have been the more prudent course of action.

Here, Plaintiff’s failure to make timely initial disclosures, although not

commendable, “is not enough to overcome the strong presumption in favor of deciding

cases on the merits.” Corinth Pellets, LLC v. Andritz, Inc., No. 1:20-cv-00082-NT,

2022 U.S. Dist. LEXIS 230150, at *9 (D. Me. Dec. 22, 2022). Chief Judge Walker

already sanctioned Plaintiff significantly for her Rule 26(a) failure, striking six out of

thirteen of her witnesses. Thus, the Court determines that the sanctions imposed by

Chief Judge Walker are sufficient to punish Plaintiff’s initial disclosure failure, and

greater sanctions, which would be tantamount to dismissal, are not justified.

VI. CONCLUSION

The Court DENIES Defendants Motion in Limine to Exclude Evidence of

Compensatory Damages Under Fed. R. Civ. P. 37(c)(1) (ECF No. 171).

SO ORDERED.

/s/ John A. Woodcock, Jr.

JOHN A. WOODCOCK, JR.

UNITED STATES DISTRICT JUDGE

Dated this 22nd day of December, 2025