The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Evidence of Plaintiff's Suicide Excluded in Lawsuit Alleging Threats of Prosecution Aimed at Censoring His Posts About High School Girls' Bathrooms
"Plaintiff has not alleged that Defendants' conduct caused a mental condition in which Mr. McBreairty could not control his suicidal impulses."
From Monday's decision in McBreairty v. Brewer School Dep't by Judge John Woodcock (D. Me.):
In anticipation of trial, defendants filed a motion in limine seeking to prohibit plaintiff from introducing evidence related to Shawn McBreairty's suicide. Because the general rule holds suicide as an independent intervening factor, severing causation, and that none of the exceptions applies, the court grants the motion….
Brewer School Department's decision to allow students to use the restroom corresponding to their gender identity, rather than their biological circumstances stirred up controversy among students and members of the public. Shawn McBreairty wrote about the controversy. 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 …. In the Article, Mr. McBreairty expressed his opinions about the underlying facts and his concerns about what was happening at Brewer High School….
On February 13, 2024, Attorney Melissa Hewey, counsel for the Brewer School Department, sent Mr. McBreairty an email …:
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….
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.
On February 14, 2024, counsel for the School Department sent Mr. McBreairty a second email with the subject line "Brewer Follow-up." 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.
Mr. McBreairty died by suicide on June 3, 2024….
Plaintiff argues that Attorney Hewey "threatened Shawn McBreairty" and tried "to censor his writing" as "part of a pattern and practice" which "caused Mr. McBreairty to suffer such severe and debilitating emotional distress that he took his own life." …
[A]s a matter of law, suicide is an independent, intervening cause, and none of the limited exceptions to this rule applies in this case. The general rule is that suicide is an intervening force that severs the chain of causation. The rationale underlying this rule … is that "so many elements may enter into a suicide that it is impossible to say that it was the natural and probable consequence of [defendant's action]," and reaching such a conclusion would require the court "to eliminate all those elements of feeling, temperament, disposition, emotional disorders, background and lack of self-control, which might of themselves have been sufficient to bring about the tragic result …."
Thus, Plaintiff cannot use Mr. McBreairty's suicide or any prior suicidal ideation as evidence for emotional distress damages for the period between February 13, 2024 and June 3, 2024. Plaintiff seeks damages "for the emotional distress … so severe that it resulted in suicide" and considers suicide "evidence of the severity of the emotional distress.".'s Opp'n at 4 (emphasis in original). But, although cleverly framed, the Court views this argument as indistinguishable from the argument that Defendants' conduct caused Mr. McBreairty's suicide. Moreover, this argument would fail under a Rule 403 analysis, since the probative value of this evidence is substantially outweighed by its prejudicial impact, planting the seed in the jurors' minds that Defendants caused Mr. McBreairty's tragic suicide.
There are two exceptions to this general rule, but neither applies here. Under the special relationship exception, a defendant can be civilly liable for suicide where the defendant and the deceased had a special relationship requiring the defendant take care to prevent harm or suicide. The special relationship exception applies most often in custodial or supervisory relationships such as between jailor and inmate or a medical provider and institutionalized patient. There is no allegation of a special relationship between Defendants and Mr. McBreairty.
Under the second exception, a defendant may be liable if the wrongful act creates in the deceased a delirium or frenzy that causes the victim to commit suicide. Plaintiff has not alleged that Defendants' conduct caused a mental condition in which Mr. McBreairty could not control his suicidal impulses.
Given that neither exception applies, Mr. McBreairty's suicide broke the "chain of causation" because it was "neither anticipated nor reasonably foreseeable" as a matter of law….
Further, the facts here do not justify letting the jury speculate about why Mr. McBreairty committed suicide. "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." Fed. R. Evid. 403.
As to unfair prejudice, Defendants argue that "plaintiff should not be allowed to inflame the jury and gain from unfair prejudice by blaming his suicide on the school." Attorney Hewey sent two emails to Mr. McBreairty on February 13 and February 14, 2024, and Mr. McBreairty did not commit suicide until June 3, 2024, over three months later. The "controlling factor in determining whether there may be a recovery for a failure to prevent a suicide is whether the defendants reasonably should have anticipated that the deceased would attempt to harm himself."
Here, without pure speculation, there is no evidence that would allow a jury to conclude that Attorney Hewey's two February emails led to Mr. McBreairty's June suicide. See Jamison v. Storer Broadcasting Co. (E.D. Mich. 1981) (concluding that in an action against the deceased former employer alleging racial discrimination and wrongful death based on suicide of white male television sportscaster after he was discharged and replaced by Black male, causation was lacking as a matter of law where experiences contributing to decision to end life were multiple and could be tied to discharge only by speculation)….
[I]t is not "the shock value of the suicide evidence itself, but rather the strong likelihood that its introduction would appeal to jurors' sympathies and suggest that they should consider it in their damages calculation which … is improper because the plaintiff cannot recover for McBreairty's suicide as a matter of law." Evidence of Mr. McBreairty's suicide would also confuse the issues and mislead the jury. According to Plaintiff, she "does not seek an emotional judgment from the jury, but Defendants cannot hide the fact that their actions caused Mr. McBreairty so much distress that he committed suicide." Defendants aptly point out that Plaintiff tries to "disavow[ ] any claim for traditional wrongful death damages" while simultaneously asking "the jury to decide whether the defendants are culpable for McBreairty's death." However, as discussed, suicide is an independent and intervening cause and for which Defendants are not civilly liable.
Plaintiff also argues "[i]t is not unusual for someone placed in the crosshairs of a government threatening them with criminal sanctions … [to] take their own life rather than face the unlimited resources of a state." However, allowing the jury to evaluate that claim would also confuse and mislead the jury. Accordingly, the Court agrees with Defendants that "even if there is some limited probative value to referencing McBreairty's suicide, that probative value is far outweighed by the evidence's potential to confuse the issues, mislead the jury, and unfairly prejudice the defendants." …
Christopher C. Taintor, Russell Pierce, Jonathan W. Brogan, and Cecilia Shields-Auble (Norman, Hanson & Detroy, LLC) and Jeana M. McCormick, Kasia S. Park, and Melissa A. Hewey (Drummond Woodsum & Macmahon) represent defendants.
