SAN FRANCISCO (CN) – A federal jury found an anti-abortion cohort led by David Daleiden caused substantial harm to Planned Parenthood by infiltrating abortion industry conferences to secretly tape abortion doctors and staff – and awarded punitive damages of $870,000.
David Daleiden, an anti-abortion activist charged with invasion of privacy for filming attendees at National Abortion Federation conferences in California.
Daleiden, who heads the Center for Medical Progress, and his co-defendant Sandra Merritt, posed as human tissue procurers for a fake company called BioMax as part of a hidden-camera investigation into the organization.
The pair attended abortion industry conferences from 2013 to 2015 – posing as exhibitors named Robert Sarkis and Susan Tennenbaum – where they secretly recorded conversations they later posted online. Daleiden also made recordings at Planned Parenthood-affiliated clinics in Texas and Colorado.
Daleiden's attorneys contended he and Merritt were investigating "violent felonies" based on a belief that infants were being born alive at Planned Parenthood clinics and that Planned Parenthood was illegally profiting from the sale of fetal tissue for medical research. They have also framed Daleiden's tactics as citizen journalism.
The jury of nine men and one woman deliberated for a little less than three days. They found Daleiden and his group, which also includes abortion opponents Albin Rhomberg and Troy Newman, conspired to commit fraud, breach of contract and trespass and to violate federal and state recording laws in Maryland, California and Florida.
U.S. District Judge William Orrick III ruled prior to the six-week trial that started in October that the jury may only consider information Daleiden had prior to launching his video project in 2012, and not anything he learned from the recordings.
At least three congressional committees and law enforcement officials in thirteen states launched investigations into Planned Parenthood after Daleiden and his group released the first video on July 14, 2015. Planned Parenthood was cleared of wrongdoing by the states and so far nothing has come of the federal investigation.
Planned Parenthood lawyers denounced Daleiden's and Merritt's beliefs about crimes being committed by abortion doctors as a preposterous pretext to disguise their true mission to destroy Planned Parenthood, thus establishing the requisite malice, oppression, and fraud for the jury to award punitive damages.
The organization's lawyers claim the release of the videos, roughly one per week, were part of a sophisticated scheme to smear the organization and strip it of federal funding.
"The defendants' plan here was not to find crimes, and it was not about journalism. It was about using any means, including illegal means, to destroy Planned Parenthood," Planned Parenthood attorney Rhonda Trotter told the jury.
In a statement following the verdict Trotter said, "The jury has spoken loud and clear. Those who violate the law in an effort to limit access to reproductive rights and health care will be held accountable. It has been our firm's great honor to represent Planned Parenthood in this important matter, and to help protect the rights, safety and security of Planned Parenthood and its dedicated doctors and staff in the face of an egregious and unlawful attack."
Planned Parenthood was also represented by Jeremy Kamras and Sharon Mayo of Arnold & Porter, and Amy Bomse of Rogers Joseph O'Donnell.
The jury also awarded Planned Parenthood and several affiliates roughly $478,000 in compensation for security costs and changes to their vetting procedures. They found the defendants had also conspired to violate the federal Racketeer Influenced and Corrupt Organizations Act, which triples the compensatory damages.
Taking this into consideration, Planned Parenthood is looking at a $2.275 million verdict, which Daleiden's lawyer Peter Breen said he will challenge on First Amendment grounds, noting that the compensatory damages stem from the publication of the videos.
"We believe the compensatory damages should go to zero on appeal," he said, adding that he found it ludicrous the jury found the defendants had participated in a racketeering conspiracy.
Daleiden's lawyers characterized the trial as unfair from the outset, taking issue with everything from the verdict form and jury instructions, to Orrick's pretrial rulings precluding certain defense experts from testifying about Daleiden's motives. Orrick has noted throughout the case that it is not about whether abortion is good or bad, or about whether Planned Parenthood profited from fetal tissue, but about whether Planned Parenthood was damaged by the fraud, trespass and breached agreements.
Orrick also instructed the jury not to consider the First Amendment as a defense.
"The First Amendment is not a defense to the claims in this case for the jury to consider," Orrick wrote ahead of trial. "Defendants' argument that they were citizen journalists was admissible as context for the defendants' case, not as a legal defense."
"When you have a case that was not able to be presented to the jury, you can't have a verdict that will reflect the truth," Breen said. "Our expectations for this jury were not high."
Daleiden and Merritt also face criminal charges of eavesdropping and invasion of privacy, and are scheduled to appear in state criminal court on Dec. 6 when San Francisco Superior Court Judge Christopher Hite will determine if the case should go to trial.
Breen said the civil verdict has no bearing on the criminal case, as defense witnesses who were not allowed in the civil case have already offered preliminary testimony on Daleiden's behalf. "We expect a different result in criminal court," Breen said.
Merritt's attorney Horatio Mihet also vowed to appeal the civil verdict. "We will continue to fight," he said. "We are disappointed with the outcome today but are confident this is not the last word."
In another blow for Daleiden and his organization Friday, a Ninth Circuit panel refused to disturb a federal judge's order blocking any further publication of recordings by the group.
The panel found that given the criminal proceedings Daleiden faces in California, congressional investigations that uncovered no wrongdoing and plaintiff National Abortion Federation's report of violence and disruptions stemming from the videos, the injunction is justified.
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