SAN FRANCISCO (CN) – A federal judge in California is looking to keep a tight rein on proceedings as Planned Parenthood’s civil lawsuit against the Center for Medical Progress and its founder David Daleiden heads to trial.
U.S. District Judge William Orrick will likely exclude evidence related to abortion foes Daleiden and Sandra Merritt’s motives when they infiltrated abortion industry conferences in 2014 and 2015 and covertly videotaped conversations with abortion doctors and Planned Parenthood staff.
Planned Parenthood sued the center, as well as activists Daleiden, Merritt and Albin Rhomberg in January 2016, claiming the videos released on YouTube as part of the center’s “Human Capital Project” damaged Planned Parenthood’s reputation and made the organization spend millions to beef up security after a spike in threats of violence against clinics across the U.S.
The videos have also been tied to a 2015 shooting at a Colorado Springs Planned Parenthood that killed three people and wounded nine others, but Orrick said he would exclude that evidence from the trial.
Daleiden and Merritt created the fake tissue procurement company BioMax in 2013, and went undercover at the National Abortion Federation’s annual meeting in San Francisco in 2014.
The pair also recorded meetings with Planned Parenthood doctors at various restaurants in Los Angeles and at Planned Parenthood’s annual conferences throughout 2015 while they posed as exhibitors representing BioMax.
Whether those recorded conversations were intended to be confidential is at the heart of the civil case, as well as the criminal case involving charges of invasion of privacy and eavesdropping filed in 2017.
At a pre-trial conference in the civil case Monday, the center’s attorney Charles LiMandri said evidence that four Planned Parenthood affiliates tried to profit from the sale of aborted fetal tissue is crucial to his clients’ defense. Planned Parenthood has argued that the affiliates only sought to recover the cost of facilitating fetal tissue donation and that “reimbursements accounted for a small fraction of one percent of each of the four affiliates’ revenues.”
LiMandri said he had intended to present evidence of live births at abortion clinics, where profit motives drove abortion providers to try to recover the most viable – and valuable – tissue and organs to sell for medical research.
“If Planned Parenthood was violating the law with regard to the four affiliates, that shows there was a profit motive for why babies would be born alive,” he said, adding that “whether fetal issue is being sold for a profit” was the primary focus of the center’s Human Capital Project.
But Orrick said he will likely exclude that evidence as irrelevant.
“There’s no evidence I’ve seen so far that babies were born alive at Planned Parenthood facilities,” he said.
“The motive of the project is not as important – or is not important at all – except for what was actually done. And whether the strategy that was taken, whether it was for a great reason or not, is not relevant. It is really more – were the defendants allowed to do the things they actually did,” he added.
LiMandri persisted, arguing that experts would be able to infer that this was the case as biomedical research facilities received fetal hearts from Planned Parenthood affiliates.
"I’m not sure experts can draw inferences, and there’s not actual evidence of a baby being born alive during an abortion procedure,” Orrick said.
But the judge said he would not stop LiMandri from putting on a defense.
“I can promise you that if there is evidence that Planned Parenthood puts in that is relevant to this trial and you have evidence that is relevant to this trial to rebut it, you’ll be able to do that,” he said, adding that he would allow limited testimony on the merits of research using fetal tissue.
“It’s going to be very limited and will depend what the testimony is from Mr. Daleiden concerning the purposes of the project,” Orrick said.
Daleiden and Merritt will also be allowed to testify on abortion techniques and procedures but only about their assumptions and general knowledge at the time of the recordings.
Orrick is also inclined to allow Central for Medical Progress to present evidence that Daleiden and Merritt were acting as undercover journalists for the Human Capital Project.
“Defendants are allowed to characterize their conduct as a journalistic enterprise, and the plaintiffs are allowed to attack that. That dispute is an important backdrop to this case,” he said.
Lawyers for both sides were tight-lipped outside the courtroom, with Planned Parenthood attorney Amy Bomse saying only that she thought the hearing “went well.” LiMandri spoke briefly about Orrick’s tentative decision on the journalism defense, saying, “We can say it’s journalism. They can say it’s not. A jury will have to decide.”
Attorney Paul Jonna with LiMandri’s firm said he believed Orrick’s evidentiary ruling would be fair.
“He’s not going to preclude us from putting on a defense,” Jonna said.
Orrick set a trial date for Oct. 2. He will oversee jury selection himself on that day, and plans for closing arguments to begin Oct. 3.
“I am very hopeful jury selection will happen within a day,” he said.
The trial is expected to last through Nov. 8, at least, though Orrick reserved an additional week after that if needed.
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