Life Legal attorneys filed their opening brief with the Ninth Circuit today [Feb. 26], asking the appellate court to reverse a $2.4 million judgment against the Center for Medical Progress (CMP) and the pro-lifers who filmed Planned Parenthood executives discussing the harvesting and selling of aborted baby body parts. The judgment was entered in favor of Planned Parenthood Federation of America (PPFA) and several other PP affiliates following a jury trial in 2019 that found all the defendants jointly liable on claims for fraud, trespass, racketeering, and unlawful recording.

Life Legal’s brief, filed on behalf of former CMP board member Albin Rhomberg, argues that the trial judge, District Court Judge William Orrick, erred throughout the lawsuit and trial, including admitting prejudicial evidence and mistakenly instructing the jury on matters of law, leading to a manifestly unjust verdict.

The bulk of the damages awarded to PPFA took the form of consultant fees. After learning of the infiltration, PPFA spent hundreds of thousands of dollars on consultants to tell them how to prevent a similar incident in the future. But, as Life Legal’s brief argues, such costs are not damages that CMP or the other defendants should have to pay, any more than a homeowner could make a trespasser pay for installing a fence around his property.

Other damages were costs for personal security for Planned Parenthood doctors seen in the CMP videos. Over and over again, under questioning by Life Legal attorneys, Planned Parenthood’s witnesses testified that they had purchased security upgrades in response to the publication of the videos and the ensuing public outcry.

Judge Orrick, however, argued for Planned Parenthood that the abortion businesses should be awarded damages, asserting that the alleged damages were incurred as a result of the undercover infiltration itself, rather than the subsequent publication of videos obtained during infiltration. Orrick also refused to instruct the jury that the law does not allow for the collection of damages incurred as a result of First Amendment activity.

Judge Orrick also allowed witnesses, including a so-called “expert on anti-abortion harassment and terrorism,” to testify at length about the alleged history of violence against abortionists and about how various Planned Parenthood staff members were afraid for their lives, although this was unrelated to any issue in the lawsuit, and the defendants had nothing to do with any alleged violence. The highly prejudicial testimony bolstered Planned Parenthood’s argument that security upgrades were necessary after the release of the videos – and undoubtedly inclined the jury to award not only the costs of those upgrades, but also $870,000 in punitive damages against the pro-life defendants.

After trial, Judge Orrick awarded Planned Parenthood an additional $13.7 million in attorney fees and costs. If the Ninth Circuit reverses the jury’s verdict, that fee award too will fall.

“This should be an easy case for the Ninth Circuit,” said Catherine Short, Life Legal’s Vice-President of Legal Affairs. “The trial judge let in so much prejudicial testimony that the defendants were denied a fair trial. But more importantly, the undisputed evidence showed that Planned Parenthood had no damages. It had no case, and this matter should never even have reached a jury.”

The above comes from a Feb. 26 email from the Life Legal Defense Foundation.