SAN FRANCISCO (CN) - A federal judge in San Francisco refused Wednesday to drop anti-abortion activist Albin Rhomberg from Planned Parenthood's lawsuit over videos doctored to make it seem as though the health care provider sells aborted fetal tissue, saying it was too early to decide the case.
But U.S. District Judge William Orrick III said Rhomberg and his fellow activists at the anti-abortion Center for Medical Progress might win once all the evidence is in.
"My fundamental problem...is that plaintiffs haven't had the opportunity yet to review all the documents and take depositions of people," Orrick said in a San Francisco hearing. "[U]ntil discovery is done, I don't know precisely what the defendants did so that I can analyze whether there is in fact a direct relationship or not."
The "direct relationship" to which Orrick referred is the relationship between Rhomberg's and his co-defendants' 2014 infiltration of abortion conferences around the United States and the resulting damage to Planned Parenthood.
Rhomberg, David Daleiden and others connected with the Center for Medical Progress (CMP) in 2014 posed as employees of a fictional fetal-tissue procurement company to gain access to the conferences and secretly filmed themselves attempting to buy fetal tissue from Planned Parenthood staff.
The resulting footage was heavily edited to suggest Planned Parenthood illicitly sells fetal tissue and posted online. Violence at its clinics spiked in response, and GOP lawmakers threatened to pull its funding.
Planned Parenthood sued CMP and its activists on racketeering, conspiracy and invasion of privacy claims in January 2016, contending the fraudulent videos cost it millions of dollars in beefed-up security to address the violence, including a November 2015 incident in which a gunman killed three people at its clinic in Colorado Springs.
Orrick refused to dismiss the lawsuit. But he said in an October 2016 order that Planned Parenthood may not be able to recover for damages caused by the "intervening actions of third parties" like the Colorado Springs gunman, because federal racketeering laws impose liability only if a defendant's conduct directly caused a plaintiff's alleged injuries.
Returning to this decision Wednesday, Catherine Short, Rhomberg's attorney with Life Legal Defense Foundation, expressed doubt over whether Rhomberg's infiltration activities - specifically, the creation and use of fake IDs to get into the conferences - directly caused Planned Parenthood's Racketeer Influenced and Corrupt Organizations Act (RICO) damages.
"With regard to the RICO claim, predicate acts - the production of fake IDs - we just have a hard time understanding what possible facts they could hope to elicit to show a direct connection between the production of fake IDs and any damages to [a Planned Parenthood affiliate] who had no infiltration," she told Orrick.
"Can you give us some idea of what you think might come out of this evidence? What would it be that would turn the production of fake IDs that could support a RICO claim for any of those plaintiffs who did not suffer direct infiltration?" she asked him, referring to Planned Parenthood's local affiliates.
Orrick said he wanted to see what the relationship between the defendants and third parties was like, "and how directly that tethered to actions plaintiffs took to protect" themselves.
"I think your arguments may very well have force at the end of the day," he added.
"If the things you laid out in your briefing turn out to be the only links, then there may be some real problems with the damages plaintiffs asserted and maybe with some of the plaintiffs themselves," he said. "But until I have a complete record, I'm not in a position to make that call."
Orrick's surprise admission Wednesday is the latest in a string of positive developments for Daleiden, who as CMP's chief executive renewed a push last year for access to financial records concerning university-run fetal tissue procurement programs.
