202 F.3d 770 (5th Cir. 2000), 98-10295, Tompkins v Cyr

Docket Nº:98-10295
Citation:202 F.3d 770
Party Name:NORMAN T. TOMPKINS, M.D.; CAROLYN TOMPKINS, Plaintiffs-Counter-Defendants-Appellees, v. THOMAS CYR, ET AL., Defendants, LOUIS FARINHOLT, Defendant-Appellant THOMAS CYR; PHILLIP BENHAM; OLDRICH TOMANEK; MARILYN FARINHOLT; CARLA MICHELE; JOAN BLINN; RICHARD BLINN; DAVID CASE; DEBRA CASE; LAURA TELLIER; CAROL A. HOGAN; JOHN WESLEY THOMPSON; L. V. SPUR
Case Date:January 28, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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202 F.3d 770 (5th Cir. 2000)

NORMAN T. TOMPKINS, M.D.; CAROLYN TOMPKINS, Plaintiffs-Counter-Defendants-Appellees,

v.

THOMAS CYR, ET AL., Defendants,

LOUIS FARINHOLT, Defendant-Appellant

THOMAS CYR; PHILLIP BENHAM; OLDRICH TOMANEK; MARILYN FARINHOLT; CARLA MICHELE; JOAN BLINN; RICHARD BLINN; DAVID CASE; DEBRA CASE; LAURA TELLIER; CAROL A. HOGAN; JOHN WESLEY THOMPSON; L. V. SPURLOCK; BRENDA SPURLOCK; CYNTHIA V. BROWN; GREGORY J. HAWLEY; NICHOLAS J. WURTH; REGINALD HARRIS; RON A. ZAJAC; DALE A RASCHE; ILENE E. COVENTRY; MARCO A. MEDINA; JAMES M. FENNELL, JR.; PHYLLIS A. HALL; DAVID HALL; JONATHAN E. HODGES; ANN HOLLACHER, Defendants - Counter Claimants - Appellants.

No. 98-10295

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

January 28, 2000

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Appeals from the United States District Court for the Northern District of Texas, Dallas

Before JOLLY and SMITH, Circuit Judges, and SARAH S. VANCE,[*] District Judge.

E. GRADY JOLLY, Circuit Judge:

This appeal presents a chronicle of abortion protestors whose means of protesting the medical practice of a doctor, who performed abortions, exceeded the means permitted by law. The jury returned a verdict of approximately $8 million. We review the trial and verdict in this appeal.

I

A

Doctor Norman T. Tompkins used to specialize in obstetrics and gynecology. As part of his practice, he would periodically perform abortions. That made him a target of a Dallas anti-abortion group called the Dallas Pro-Life Action League ("Dallas PLAN"). In October 1992, the Dallas PLAN began a campaign to persuade Dr. Tompkins and nineteen other doctors to stop performing abortions.

The Dallas PLAN's efforts started quietly. Thomas Cyr, President of the Dallas PLAN, scheduled a meeting with Dr. Tompkins at Dr. Tompkins's office. At the meeting, Cyr demanded that Dr. Tompkins sign a statement "swear[ing] . . . never to participate directly or indirectly in abortion." Cyr then threatened to "make [Dr. Tompkins'] practice go away" if he did not sign the statement, as the Dallas PLAN had done with another local physician who finally submitted after relentless, targeted protests by the Dallas PLAN. But Dr. Tompkins was not intimidated, and when he refused to sign the statement, the meeting ended.

As Cyr had warned, the picketing at Dr. Tompkins's home and office, and his wife's place of employment, began soon thereafter and continued unabated for ten months. At first, the demonstrations were large, with about ninety people and lasting a couple of hours. Over time, the protestors dwindled to a handful. But they continued to demonstrate on Saturday mornings and Sunday afternoons for at least

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two hours, and weekdays as Dr. Tompkins and his wife, Carolyn Tompkins, left for and returned from work. Sporadic protests also took place at Dr. Tompkins's office and at his church.

During the picketing, the demonstrators would chant, sing, and pray. They carried signs with photos of bloody and dismembered fetuses and calling Dr. Tompkins an "abortionist," a "murderer," and a "tool of Satan." One of the leaders, Phillip Benham, sometimes used a bullhorn to preach to the crowd.

The picketers would also invade the Tompkinses' private property. Oldrich Tomanek was seen placing posters on the Tompkinses' house and gate, and Benham once sat on their front porch. One day, the Tompkinses returned home to find dozens of small white crosses planted in their yard. On Thanksgiving Day, the Tompkinses' dinner was interrupted by Tomanek shaking their front gate and shouting.

The campaign against the Tompkinses involved other tactics to increase pressure besides picketing. The demonstrators held at least eight separate marches through Dr. Tompkins's neighborhood, handing out anti-abortion literature and posting pictures of Dr. Tompkins with a caption that read "Not Wanted." At the Dallas PLAN's instigation, moreover, hundreds of postcards and letters were mailed to Dr. Tompkins, urging him to "stop the killing." Dr. Tompkins also received numerous phone calls at all hours of the day and night exhorting him to end his abortion practice. Cyr and Tomanek called so incessantly that Dr. Tompkins and his wife began to recognize specifically their voices.

The campaign also involved surveillance. Cyr, Tomanek, and Louis Farinholt would often park in a cul-de-sac behind the Tompkinses' house and spy on the Tompkinses inside their house using binoculars and cameras. Tomanek even sent the Tompkinses postcards warning them that he had been watching them. When the Tompkinses would leave home, members of the Dallas PLAN would follow them. Sometimes the demonstrators left pamphlets and fliers on the windshield of Dr. Tompkins's car when it was parked. Once, Cyr, Tomanek, and Mr. Farinholt followed Dr. Tompkins into a restaurant and confronted him about his abortion practice, forcing him to leave the restaurant. Another time, Cyr and Tomanek tailed the Tompkinses on the way to a party, which led to a high speed chase and Dr. Tompkins calling the police.

During the campaign, two sets of incidents particularly frightened the Tompkinses. The first set included two confrontations Mrs. Tompkins had with Tomanek. In November 1992, Tomanek approached Mrs. Tompkins as she opened her garage door to take out the garbage. Towering over her, he exclaimed, "Mrs. Tompkins, Mrs. Tompkins, you've got to stop your husband from killing babies. He's killing babies, and I've got to talk to you." On another occasion, as Mrs. Tompkins was getting her mail, Tomanek ran up to her, shouting: "Stop the killing now. Aren't you afraid, Mrs. Tompkins, I'm going to shoot you now?" This set of incidents also included an instance when Tomanek allegedly called Dr. Tompkins's office and left a message that he was going to "get [him]."

The second set of incidents was different, both in its nature and its source: it was more graphic and threatening, but was anonymous. While the Dallas PLAN campaign was underway, Dr. Tompkins and his wife received several anonymous letters that were, in contrast to the PLAN letters, strongly threatening in nature. In addition, a few anonymous telephone callers made explicit and graphic death threats. It was also during this time that the press reported that a gynecologist in Florida had been shot by a member of an anti-abortion group.

The events that occurred during the Dallas PLAN's campaign against the Tompkinses virtually destroyed the Tompkinses' privacy and sense of security. The

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Tompkinses hired bodyguards to escort them twenty-four hours a day. Dr. Tompkins began wearing a bullet-proof vest when he was in public, and he equipped his car with a bomb-detection device. The Tompkinses told their adult children not to visit them. Mrs. Tompkins stopped going to see her daughter, who lived nearby, so that the protestors would not learn her daughter's address. Their daughter's wedding was held outside Dallas, with no announcement in the Dallas newspapers, in order to avoid attracting attention. There seems to be little doubt that the harassment, some mild, some serious, was constant.

Dr. Tompkins's medical practice suffered. He previously had seen twelve-to-fifteen patients per day, but afterwards he saw only two or three. His baby deliveries dropped from five or six per week to one or two. As a result, Dr. Tompkins could not pay rent for his Presbyterian Hospital office. In April 1994, Dr. Tompkins closed his medical practice of some twenty-six years and moved to Gainesville, Texas, more than one hour from Dallas.

In Gainesville, Dr. Tompkins began emergency room work to meet his financial obligations, involving longer, erratic hours. Unlike his Dallas practice, Dr. Tompkins's Gainesville practice consisted mostly of Medicare and Medicaid patients, so it was less lucrative. For that reason, Mrs. Tompkins did not accompany her husband to Gainesville, but remained in Dallas at her job.

The events during this period also disrupted the Tompkinses' mental well-being. Dr. Tompkins, once considered affable and outgoing, became moody, withdrawn, anxious, and easily-angered. He began to have trouble eating and sleeping, feared for his life, and had a recurring nightmare about being shot and having his daughter discover his body. Mrs. Tompkins also had trouble eating and sleeping, and frightened easily. She became depressed and overly-emotional.

B

Ultimately, the Tompkinses took legal action against thirty-eight of the protestors. They sued in state court for intentional infliction of emotional distress, tortious interference with a residential sales contract and with Dr. Tompkins's business, invasion of privacy, civil conspiracy, and various other torts. The state court issued a preliminary injunction limiting the frequency, duration, and nature of the picketing near the Tompkinses' home and church. When the Tompkinses amended their complaint to include a RICO claim, the defendants removed the case to federal court.

After a one-week trial, the jury returned a verdict on October 25, 1995. The Tompkinses prevailed on their claims for intentional infliction of emotional distress, invasion of privacy, and civil conspiracy. The jury awarded $2,248,000 for the intentional infliction of emotional distress and $2,800,000 for the invasion of privacy. The jury also assessed $3,450,000 in exemplary damages against the protestors. The Tompkinses did not prevail on their tortious interference claim, and the jury was unable to reach a unanimous verdict on the civil RICO claim.

Not all the thirty-eight defendants named in the...

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