Liberty Counsel has filed the opening brief to the Ninth Circuit Court of Appeals in the multimillion-dollar civil lawsuit against Sandra Merritt for her undercover investigation of Planned Parenthood’s trafficking of human baby body parts.
Throughout the six-week trial that began on October 2, 2019, the court severely restricted the evidence, and at the end, gave instructions to the jury on how they should rule on critical issues. The jury decided in favor of the abortion giant on each count, including RICO (Racketeer Influenced and Corrupt Organizations), and awarded more than $2 million in damages. The court subsequently awarded Planned Parenthood nearly $14 million in attorney’s fees and costs, for a total judgment of over $16 million.
In conjunction with three other groups of defendants, Sandra Merritt now brings to the Ninth Circuit Court of Appeals numerous errors of the trial court, including: (1) the award to Planned Parenthood of millions of dollars in “damages” involving publication of Planned Parenthood’s own words, without any proof that the undercover videos were false or deceptive, in violation of the First Amendment; (2) the use of RICO to punish constitutionally protected undercover journalism intended to expose unethical and criminal wrongdoing; (3) the award to Planned Parenthood of “damages” involving legally recorded conversations without allowing the jury to hear those conversations, and without requiring Planned Parenthood to prove that the conversations recorded in public places were “confidential;” and (4) the failure of the district court judge to recuse himself from this case, despite the appearance of impropriety resulting from his connections to Planned Parenthood.
The case was heard by San Francisco’s U.S. District Court Judge William Orrick III, who is the founder of the Good Samaritan Family Resource Center that houses the Planned Parenthood of Northern California facility in its complex. In 2017, the defense requested that Orrick recuse himself from the case and he refused.
Merritt and colleague David Daleiden, the founder of Center for Medical Progress (CMP), produced videos in 2015 exposing Planned Parenthood’s illegal trade in aborted baby body parts after a 30-month undercover operation. The videos showed Planned Parenthood executives haggling over prices of aborted baby body parts and discussing how they change abortion procedures to obtain more intact organs. In this trial, it was the jury’s job to assess whether the conversations recorded in the videos are “private” or “confidential” under applicable state law. However, at Planned Parenthood’s request, Judge Orrick refused to allow the defense to show the jury the exact videotaped conservations that reveal the conversations were done in public places and how Planned Parenthood provided baby body parts for sale. Judge Orrick blocked the jury from watching the recorded conversations on the undercover videos and told them they could not view this as a First Amendment case, where freedom of speech and the press could be considered as a defense.
Judge Orrick finally allowed Liberty Counsel, after being denied for four weeks, to show the video of the ABC News 20/20 Report: Parts for Sale in court. Published in 2000, the video features Chris Wallace revealing that a “hidden camera investigation has found a thriving industry, in which aborted fetuses women donate to help medical research are being marketed for hundreds – even thousands of dollars.” The documentary reveals the so-called consent is filled with “legal mumbo jumbo” that the women sign without knowing their babies will be sold for research.
Admissions on the witness stand included the founder/president Linda Tracy and procurement manager Perrin Larton of Advanced Bioscience Resources, Inc. (ABR), a U.S. wholesaler of aborted baby body parts since 1989. ABR’s yearly revenues are about $1.1 to $1.5 million, all from harvesting and purchasing livers, lungs, and brains in abortion facilities and re-selling the body parts to taxpayer-funded research laboratories at enormous mark-up prices. Tracy stated under oath in her deposition for this trial that the conversation she had with Daleiden was not private or confidential. However, during the trial, she claimed it was. Tracy also tried to say that she didn’t discuss “pricing” of fetal tissue at National Abortion Federation’s (NAF) conference. Yet in her videotaped deposition played in court, Tracy indicated her conversations at NAF included pricing of baby body parts. She further testified in her deposition that at NAF she discussed ABR’s “Regulated Tissue Acquisition” harvesting, for which researchers pay $6,000 per procurement. Larton also testified that she does not recant any of the statements she made to Daleiden about babies falling out intact for organ harvesting, and that ABR could receive intact fetuses as frequently as every couple months.
Dr. Theresa Deisher, an expert in adult stem cell research who obtained her Ph.D. in Molecular and Cellular Physiology from Stanford University School of Medicine, testified about the perfusion technique using the Langendorff method that is meant to be used on animal hearts. Deisher said she must go to great lengths as a cardiovascular researcher to make sure that the mice she studies do not suffer needless pain. In fact she noted, she would face ethical charges and go to jail if she cut beating hearts out of mice without anesthesia. Deisher also testified how horrified she was upon reading various studies involving baby human hearts procured from StemExpress, which the evidence at the hearing showed were sourced from Planned Parenthood. She consulted with Daleiden before he and Merritt filmed the undercover videos and told them that the research methods discussed in these studies would have required fetal hearts. She knew those studies had to be conducted while the hearts were still beating when cut out, without anesthesia, from the aborted babies.
Before Deisher first took the stand, Deputy Attorney General Johnette Jauron tried to intimidate her from testifying by threatening to indict her as a “co-conspirator” because of the scientific advice she had provided Daleiden. Though Jauron had no legal basis for her action, Judge Christopher Hite told defense counsel that Deisher might need to consult a lawyer regarding her testimony, since the attorney general had raised the possibility of a prosecution against her. Deisher declined and proceeded with her powerful testimony.
Planned Parenthood called Dr. Thomas Moran to the stand, and he said he was very “anxious” when he learned that he was filmed in the undercover investigation because he feared he would be publicly outed as an abortion provider. Moran also testified under oath that he had never posted anything online about his abortion work, that he kept a low profile, and that he does not “draw attention” to his abortion work. On the basis of his “anxiety” of being outed, Planned Parenthood asked the jury to award it “damages.”
However, during cross examination by Liberty Counsel’s Chief Litigation Counsel Horatio Mihet, Moran’s manufactured story unraveled. Mihet confronted him with a public, online petition that Moran had signed, with his name as an abortion provider, pledging to be a “loud and clear advocate” for unlimited abortion rights. Mihet asked him if this was consistent with his low profile and not drawing attention. Moran’s first reaction was “Um, a teeny bit of embarrassment.” Mihet also pointed out that Moran is credited as a contributor to the online Early Abortion Training Workbook by the University of Southern California San Francisco’s Bixby Center. Moran said he was “proud” of his contribution and would not remove his name from the public document. When Mihet asked that the defendants “did nothing to out you as an abortion provider, correct?” He replied, “They outed several of my colleagues,” but not him.
Then Mihet confronted Moran that his earlier sworn testimony about keeping a low profile, avoiding attention, and never publishing anything about his abortion work, was untrue. “The one thing you were anxious our defendants would do… you voluntarily did yourself in open court,” said Mihet.
Moran’s response was: “Counselor, you got me.” Moran’s lie was revealed to the jury during cross-examination.
Another witness, Albin Rhomberg, told the court that pro-life sidewalk counselors first discovered that the abortion industry was trafficking baby body parts in the early 2000s, before the CMP’s undercover investigation began. Rhomberg said that the staff at the abortion facility would arrive in the morning followed later by the abortionists. Then in midmorning, a new group of people arrived carrying containers, sometimes with ice and other tools and equipment. A few hours later, a FedEx truck arrived at a regular time and departed with “special refrigerated gel-pack containers.”
Rhomberg explained, “There were these rumors that they were collecting the bodies [of aborted babies] for sale or for distribution in some way. In some cases, the people noticed that the parts went out before the mother went out. She would come—[at] times, come staggering out later, typically throwing up in the bushes and being helped out of the place, after the baby parts had already gone into the FedEx truck.”
After talking with the FedEx drivers and conducting online research, Rhomberg discovered that Advanced Bioscience Resources was purchasing the baby parts, and they were likely being resold to those conducting a study on baldness.
“They were scalping the babies and taking their scalps and grafting them on to immune-suppressed mice, and then using various pharmaceuticals on these humanized mice to test the effect upon preventing or, I suppose you might say, treating baldness,” said Rhomberg.
During the trial, Rhomberg was also questioned about an email he sent Daleiden the day after CMP released its first video on July 14, 2015, in which he calls the video “the Nucatola NUKE” and writes it had been viewed over 700,000 times. Rhomberg estimated that the original YouTube video has been viewed three million times. The video, which Judge Orrick has banned as evidence in the courtroom, shows Dr. Deborah Nucatola infamously discussing how she would “crush above” and “crush below” the baby’s thorax to obtain intact organs, and admitting she changes the position of the baby to breech to obtain an intact head.
Dr. Mary Gatter, former “medical director” of Planned Parenthood Los Angeles (PPLA), and Jon Dunn, CEO of Planned Parenthood Orange & San Bernardino Counties, were former business partners of the DaVinci companies that were shut down for illegally selling fetal organs and tissues from Planned Parenthood. Dr. Gatter described PPLA’s fetal tissue program with Novogenix Laboratories, acknowledging PPLA was “used to getting a set fee for each specimen” harvested. On cross examination, Gatter admitted that PPLA never complied with PPFA’s (Planned Parenthood Federation of America) national guidelines that affiliates engage an independent auditor to make sure fetal tissue payments were merely reimbursements and not illegal profit or valuable consideration. Gatter admitted that the undercover videos of her negotiating prices that Planned Parenthood would charge for baby body parts took place at a cocktail reception at an outdoor hotel pool, another reception in a hotel mezzanine, and at a restaurant, among other places of public accommodation. Gatter also admitted cocktail lounges, restaurants, and elevators are all public places, as recognized by PPFA-issued conference security guidelines.
Despite the judge banning the evidence in court, one of the videos shows Gatter stating “I want a Lamborghini” as she negotiates prices for human livers, thymus, brains, hearts, lungs and other baby body parts during her conversation with Sandra Merritt at a public restaurant in Pasadena. She also stated that a “less crunchy technique” is used in the abortion process to get better human organs.
Liberty Counsel’s Founder and Chairman Mat Staver said, “Sandra Merritt is being targeted for exposing Planned Parenthood’s illegal practice of harvesting and selling baby body parts. She was denied a fair trial and has been waiting a long time to be vindicated. The record of errors now before the Court of Appeals demands that the unjust result be set aside. Sandra did nothing wrong. She only revealed the truth.”
Used with the permission of Liberty Counsel.
Liberty Counsel is an international nonprofit, litigation, education, and policy organization dedicated to advancing religious freedom, the sanctity of life, and the family since 1989, by providing pro bono assistance and representation on these and related topics.