Tompkins v. Cyr

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-10295
_____________________

NORMAN T. TOMPKINS, M.D.; CAROLYN TOMPKINS,

Plaintiffs - Counter Defendants - Appellees,

versus

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.
_________________________________________________________________

Appeals from the United States District Court for the
Northern District of Texas, Dallas
_________________________________________________________________
January 28,2000
Before JOLLY and SMITH, Circuit Judges, and SARAH S. VANCE,*
District Judge.

E. GRADY JOLLY, Circuit Judge:

*
District Judge of the Eastern District of Louisiana, sitting
by designation.
 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

2
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 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

3
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

4
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 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

5
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

6
 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 Tompkinses’

complaint were included in the jury verdict, however. The jury

ruled against only eleven of them, and the court set aside the

verdict with respect to one of those eleven, Laura Tellier. The

other twenty-seven were absolved in the following ways. The

Tompkinses voluntarily nonsuited three defendants several weeks

7
after bringing the suit. The Tompkinses then dismissed their

claims against sixteen of the defendants on the first day of trial.

After presenting their case-in-chief, the Tompkinses nonsuited six

more defendants. Finally, one defendant successfully moved for

judgment as a matter of law, and the jury exonerated another.

After trial, twenty-three of the defendants not included in

the jury verdict, along with Laura Tellier, sought sanctions

against the Tompkinses. They based their sanctions claims on Rule

11 of the Federal Rules of Civil Procedure and Rule 13 of the Texas

Rules of Civil Procedure. These defendants argued that the

Tompkinses had failed to reasonably investigate the defendants’

involvement before suit was filed, and that the various claims

levied against those defendants were not supported by good faith

legal arguments. The district court disagreed, and denied the

motion for sanctions.

On appeal, several of the defendants liable for the $8.5

million have challenged the judgment, and others appeal the

district court’s denial of sanctions.

II

At the outset, it is important to distinguish between the two

sets of appellants in this case. The first set, hereinafter

referred to as the “losing defendants,” consists of four of the

eleven defendants against whom the district court leveled its $8.5

million judgment: Cyr, Benham, Tomanek, and Mr. Farinholt. They

8
challenge the judgment against them. The remaining six do not

appeal.

The second set, hereinafter referred to as the “winning

defendants,” consists of some of those not found liable at trial

and who sought and were denied sanctions: Marilyn Farinholt; Carla

Michele; Joan 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; and Ann Hollacher. This group focuses

exclusively on the district court’s denial of sanctions against the

plaintiffs.

III

We will begin by addressing the losing defendants’ arguments

contesting the judgment.1 First, these defendants contend that

admission of testimony, transcripts, audio recordings, and letters

concerning anonymous threats is reversible error because it was

highly prejudicial. Second, these defendants charge that there is

1
The Tompkinses argue that we are unable to adjudge the
defendants’ claims because the defendants failed to include the
trial transcript in the record on appeal. We, however, do have the
transcript, and though some of the volumes may be marked
“supplemental,” the Tompkinses do not challenge the defendants’
ability to supplement the record on appeal. Regardless, dismissal
in the absence of a transcript is discretionary. Coats v. Pierre,
890 F.2d 728, 731 (5th Cir. 1989). We will, therefore, adjudge the
defendants’ appeal on the merits.

9
insufficient evidence connecting the defendants’ unlawful conduct

with harm to the plaintiffs. Third, the losing defendants argue

that the verdict is excessive and/or duplicative.

IV

A

The losing defendants first challenge the trial court’s

admission of evidence that they contend was “highly prejudicial.”

Presumably, they are arguing, without explicitly doing so, that

this evidence should have been excluded under Federal Rule of

Evidence 403 because the prejudicial effect substantially

outweighed the probative value.

The defendants make this argument with respect to three types

of evidence. The first type is testimony by Dr. and Mrs. Tompkins

about anonymous telephone calls and letters they received. The

anonymous callers and letters explicitly threatened the Tompkinses’

lives. There was, however, no evidence that the calls and letters

came from any of the defendants.

The second type consisted of actual recordings and transcripts

of the anonymous threatening calls, along with several letters the

Tompkinses had received containing threats. Again, none of this

was attributed to any of the defendants.

The third type is testimony by Dr. and Mrs. Tompkins that they

were aware of the murder of a gynecologist in Florida who was

allegedly killed because he conducted abortions. They further

testified to their fear that this could happen to them.

10
 B

Before evaluating the losing defendants’ argument, we must

determine the proper standard of review. If the party charging

reversible error raised the appropriate objection at trial,

admission of evidence must rise to an abuse of discretion in order

to qualify as “error,” United States v. Duncan, 919 F.2d 981, 985

(5th Cir. 1990), and such error is reversible only if not harmless.

Fed. R. Civ. Proc. 61. On the other hand, when a defendant fails

properly to object to the admission of evidence, we review that

admission solely for plain error. Whitehead v. Food Max of

Mississippi, Inc., 163 F.3d 265, 274 (5th Cir. 1998); Fed. R. Evid.

103(d). There are four prerequisites to a finding that the

district court committed plain error in admitting specified

evidence:

(1) an error;

(2) that is clear and obvious under current law;

(3) that affects the defendant’s substantial rights; and

(4) that would seriously affect the fairness, integrity or
public reputation of judicial proceedings if left
uncorrected.

Rushing v. Kansas City Southern Railway Co., 185 F.3d 496, 506 (5th

Cir. 1999), petition for cert. filed (Dec. 28, 1999)(No. 99-1090).2

2
We have previously determined that the methodology for
analyzing for plain error in the criminal law context applies to
the civil law context as well. Highlands Insurance Co. v. National
Union Fire Insurance Co. of Pittsburgh, 27 F.3d 1027, 1032 (5th
Cir. 1994).

11
The party charging error bears the burden of proof for establishing

these various criteria. United States v. Claverley, 37 F.3d 160,

164 (5th Cir. 1994)(en banc).

C

We now must examine the objections the defendants raised at

trial to determine which standard of review to use.

As already mentioned, one type of evidence was testimony by

Mrs. and Dr. Tompkins about the anonymous threats. Mrs. Tompkins

testified first. During her testimony about the anonymous threats,

defense counsel repeatedly objected solely on hearsay grounds.3

Later, when Dr. Tompkins was on the stand, defense counsel again

lodged a hearsay objection. However, counsel also objected that

the testimony was unduly prejudicial. Thus, the losing defendants

only raised the proper objection to evidence of the anonymous

threats during Dr. Tompkins’s testimony. As we have noted, his

testimony occurred after that of his wife.

The second type of evidence was the actual letters and audio

recordings of these anonymous threats. During trial, counsel for

3
The losing defendants have not repeated this argument before
us with good reason. Federal Rule of Evidence 801(c) clearly
defines what hearsay is: “‘Hearsay’ is a statement, other than one
made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.”
(Emphasis added). Neither the testimony as to the threats, the
recordings, the transcripts, nor the letters constituted hearsay.
The threats here were not, and were not alleged to be, factual
statements, the truth of which was in question. Rather, the
threats were verbal acts. United States v. F/N/U Pate, 543 F.2d
1148, 1149 (5th Cir. 1976).

12
the defendants repeatedly objected that the evidence was hearsay.

Counsel also objected several times that it was duplicative, given

that there was already testimony on the record as to both the calls

and the letters. With respect to this type of evidence, the losing

defendants never raised the objection they now make before us,

i.e., that it was highly prejudicial.

With respect to the third type, testimony about another murder

in Florida, the defendants did object that the evidence was

prejudicial.

For these reasons, we now must determine whether the district

court committed plain error under Rule 403 when it admitted most

of the evidence of anonymous threats. We will then evaluate the

evidence that was properly objected to: Dr. Tompkins’s testimony

about the anonymous threats and Dr. and Mrs. Tompkins’s testimony

about the Florida murder. We must decide whether admission of this

testimony constituted an abuse of discretion, and, if so, whether

it was harmless error.

D

To determine whether admission of the anonymous threats was

plain error under Rule 403, we must evaluate, first, its relevance

and, second, its prejudicial effect. We begin with its relevance.

The district court allowed the admission of this evidence as

“relevant to the plaintiffs’ state of mind” because the Tompkinses

were charging emotional distress and mental anguish. When these

damages are asserted, the victim’s state of mind at the time of the

13
tort is relevant to allegations of harm. Star Houston, Inc. v.

Shevack, 886 S.W.2d 414, 418 (Tex.App. Houston 1994).

The defendants argue, however, that evidence of the anonymous

threats is not relevant because they are not responsible for the

anonymous threats. The Tompkinses made no attempt to attribute the

anonymous letters and calls to the losing defendants. Nor did the

Tompkinses try to show that the threats were caused by the

defendants’ unprotected (i.e., targeted picketing), as opposed to

protected (marching through the streets) conduct.4

Under Texas law, however, tortfeasors take their victims as

they find them, even when the claimed harm is mental anguish or

emotional distress. Coates v. Whittington, 758 S.W.2d 749, 752-53

(Tex. 1988). A victim’s particular susceptibility will not reduce

the damages available. Shevack, 886 S.W.2d at 418.

In this case, the anonymous threats--threats of physical harm

and even death--made the Tompkinses particularly vulnerable to

psychological harm from the losing defendants’ unlawful conduct.

Evidence about the threats, therefore, was relevant to helping the

jury evaluate the degree of impact and the seriousness of the

4
When, as here, some of a defendants’ conduct is lawful
because of First Amendment protection, and some is unlawful because
unprotected, “[o]nly those losses proximately caused by [the]
unlawful conduct may be recovered.” NAACP v. Clairborne Hardware
Co., 458 U.S. 886, 918, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982).
The Supreme Court explained what types of conduct are and are not
protected by the First Amendment in Frisby v. Schultz, 487 U.S.
474, 479-488, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). For example,
marching through a neighborhood is protected, but targeting and
picketing a specific home is not. Id.

14
anguish and the distress that the losing defendants’ unlawful

conduct caused.5

We turn now to the prejudicial effect. At trial, the

Tompkinses presented clearly admissible and unchallenged testimony

about other threats, threatening conduct, and months of unrelenting

harassment directly attributable to the losing defendants. When we

consider all of this evidence that was properly before the jury,

the impact of the anonymous threats is substantially lessened.

Thus, we doubt that the prejudicial effect substantially outweighed

the important probative value that this evidence held. In any

event, the prejudicial effect certainly did not “clearly” outweigh

the probative value. In sum, even if there was arguable error

under Rule 403, that error was not clear for purposes of applying

the plain error rule. The admission of this evidence, therefore,

is not reversible error.6

E

5
This, certainly, is not to say that the jury could impose
liability for anguish or distress resulting from constitutionally-
protected activities, even if the threats made the Tompkinses
particularly susceptible. For example, the losing defendants could
have engaged solely in lawful protesting in the Tompkinses’
neighborhood. The Tompkinses may still have received death threats
and may have been aware that another gynecologist had been shot.
Even if the Tompkinses felt anguish and distress at the protestors’
activities in that context, the protestors would not be liable. A
person’s susceptibility cannot restrict the breadth of another’s
First Amendment protections.
6
Because the admission of the evidence of anonymous threats
does not satisfy the first two criteria of plain error, we need not
address the impact on the defendants’ substantial rights and/or on
the fairness, integrity, or public reputation of the proceedings.

15
 The defendants made the proper Rule 403 objection with respect

to the anonymous threats only once, during Dr. Tompkins’s

testimony. We normally would evaluate the losing defendants’

argument with respect to admission of this evidence first for an

abuse of discretion and then for harmlessness.

In this case, however, we need not evaluate whether admission

was an abuse of discretion because by the time the testimony was

admitted, any error in admitting it would have been harmless given

all the evidence that had preceded it. See Fed. R. Civ. P. 61.

Dr. Tompkins’s testimony occurred after similar testimony by Mrs.

Tompkins and admission of the recordings, transcripts, and letters

themselves. The impact of Dr. Tompkins’s testimony about these

threats, therefore, was minimal and the mere repetition of

testimony already verified could not have affected the defendants’

substantial rights.

F

Finally, the defendants also made the proper objection with

respect to testimony about the Florida murder. We therefore

evaluate the admission for an abuse of discretion. In admitting

that evidence, the judge specifically limited consideration of it

to the Tompkinses’ state of mind.

We do not believe admission of this evidence was an abuse of

discretion. Its probative value is similar to that of the

anonymous death threats discussed above. It allows the jury to

understand the mental frame of mind of the Tompkinses when the

16
defendants were engaging in their unlawful conduct. It enables the

jury to evaluate the emotional impact, for example, of coming home

to find small white crosses in the yard, to understand Mrs.

Tompkins’s fear when one of the protesters asked whether she

expected to be shot, or the stress and anger the Tompkinses felt

when the protestors were spying into the privacy of the Tompkinses’

home and private lives. In sum, it helps explain the Tompkinses’

mental and emotional reactions to the losing defendants’

activities. The prejudicial effect of this evidence against the

defendants is less, however, than of the evidence of the anonymous

threats. The murder had occurred in a different state and had no

connection with the protestors involved here. There is no danger

that the jury would attribute the murder to this group of

defendants. We cannot say, therefore, that admission of the

testimony constituted an abuse of the trial judge’s discretion.

V

In their brief, the losing defendants also assert that there

is no evidence that the defendants’ unprotected activity caused the

Tompkinses’ harm. This point is essentially an appeal of the

district court’s rejection of the defendants’ Motion for Judgment

as a Matter of Law under Federal Rule of Civil Procedure 50(a).

We review this claim de novo and apply the same legal standard

as the trial court. Nero v. Industrial Molding Corp., 167 F.3d

921, 925 (5th Cir. 1999). We therefore examine all the evidence in

17
the light most favorable to the jury verdict to determine if there

were sufficient facts to support that verdict. Id.

At trial, the Tompkinses presented undisputed evidence of

illegal conduct and harm. The defendants concede the evidence of

their unlawful activities, including the targeted picketing,

parking behind and surveilling the house, trespassing, making

apparent verbal threats, and following and chasing the Tompkinses’

car. These defendants do not deny the evidence of harm to the

Tompkinses, such as continuing fear, problems sleeping and eating,

hiring a bodyguard and wearing a bullet-proof vest, and Dr.

Tompkins’s moving his practice to Gainesville.

Because evidence of both tortious conduct and harm are clearly

sufficient, the only question is causation. We think the

Tompkinses established that element at trial as well. Under Texas

law, causation need not be supported by direct evidence.

Circumstantial evidence and reasonable inferences therefrom are a

sufficient basis for a finding of causation. Texas Dept. of

Transportation v. Olson, 980 S.W.2d 890, 893 (Tex. App. Fort Worth

1998)(citing Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 459

(Tex. 1992)). Establishing causation requires facts sufficient for

the fact-finder reasonably to infer that the defendants’ acts were

a substantial factor in bringing about the injury. Purina Mills,

Inc. v. Odell, 948 S.W.2d 927, 936 (Tex. App. Texarkana 1997). At

trial, Dr. and Mrs. Tompkins testified about their reactions of

fear, stress, anxiety, depression, and sadness to several specific

18
instances of the defendants’ unlawful conduct. When there was no

such direct testimony connecting conduct with effect, the facts

were sufficient for the jury to draw an inference of causation.

The defendants’ contention on causation, that the evidence was

“hopelessly muddled,” is inapposite. We generally do not review

evidence to give a grade on the clarity of its presentation; we

review for sufficiency to support the finding. It is the lawyers’

job to present and sort the evidence so that the jury may clearly

understand it and the points that the lawyers wish to make with

regard to it. Here, defense counsel had opportunities on cross-

examination and during closing argument to distinguish between

damages resulting from lawful and unlawful conduct. If counsel

failed to do that here, that does not mean we should overturn the

verdict, so long as the evidence is there to support the verdict.7

VI

Finally, the losing defendants challenge the damage award as

excessive. There are two elements to their argument. First, they

charge that the damages were excessive because they clearly

exceeded the amount warranted by the harm caused. Second, they

charge that the Tompkinses’ recovery was excessive because it was

7
These comments should not be construed, however, as approval
of the jury instructions in this case that set out liability for
unlawful, as opposed to lawful, conduct. Since the losing
defendants did not raise this issue in their briefs, however, they
have waived their chance to appeal on that basis. DSC
Communications Corp. v. Next Level Communications, 107 F.3d 322,
326 n.2 (5th Cir. 1997).

19
duplicative. This argument makes two points. First, the award was

duplicative because it granted damages for both mental anguish and,

emotional distress when these two injuries are the same thing; and,

second, the award was duplicative because the jury awarded damages

under two theories for the same single harm.

A

We first address the losing defendants’ attack on the amount

of the award. Our review of a damage award for emotional distress

and mental anguish is conducted with deference to the fact-finder

because of the intangibility of the harms suffered. Patterson v.

PHP Healthcare, 90 F.3d 927, 937-38 (5th Cir. 1996).

The Tompkinses claimed mental anguish and emotional distress,

and the record leaves no doubt that their claims were genuine.

During this period, the Tompkinses faced frequent picketing of

their respective offices and home and of their neighborhood, were

followed and chased in their car, were challenged by demonstrators

in a restaurant, were confronted in their church by a demonstrator,

had people staked out behind their home surveilling their private

activities, had their property trespassed, had crosses placed in

their yard, received a barrage of phone calls and mail, and also

received several anonymous death threats. All this was happening

soon after the shooting of another gynecologist for conducting

abortions, which was widely reported in the press.

We cannot say that the amount of the damages is demonstrably

out of line with the harm. Because of both the defendants’ conduct

20
and the Tompkinses’ particular susceptibility, the Tompkinses lived

in genuine fear for their lives for an extended period of time.

The evidence supports the conclusion that the protestors turned

their lives into a hellish, torturous experience. The ten-month

episode permanently affected their life-style, their professional

lives, their enjoyment of life, their personalities, their economic

well-being, and their general emotional well-being.

In their briefs before us, the losing defendants seek to limit

damages to those arising from the activities of a single

demonstrator, Mr. Farinholt. But each of the losing defendants is

jointly and severally liable for the actions of the others because

all were found to be co-conspirators in a civil conspiracy. See

Operation Rescue v. Planned Parenthood, 975 S.W.2d 546, 561 (Tex.

1998)(“a conspiracy finding obviates the necessity of demonstrating

the propriety of injunctive relief against each co-conspirator”);

Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922, 925-26 (Tex.

1979)(“Once a conspiracy is proven, each co-conspirator ‘is

responsible for all acts done by any of the conspirators in

furtherance of the unlawful combination.’”). Liability, therefore,

was correctly imposed on the group of losing defendants.

B

(1)

The losing defendants also contend that the damage award was

duplicative in two ways. First, the jury awarded damages both for

emotional distress and for mental anguish, when these are in fact

21
the same thing. Second, the Tompkinses recovered twice for the

same harm under two different theories of recovery, intentional

infliction of emotional distress and invasion of privacy.

As a threshold matter, we must determine the appropriate

standard of review. Both of these elements charged by the losing

defendants are essentially objections to the jury instructions,

particularly as they are reflected on the special verdict form.

But the defendants did not object to these instructions at trial.

Federal Rule of Civil Procedure 51, therefore, limits the

defendants’ ability to appeal on these grounds: “No party may

assign as error the giving or the failure to give an instruction

unless that party objects thereto before the jury retires to

consider its verdict, stating distinctly the matter objected to and

the grounds of the objection.” At the same time, “the failure to

object does not create a jurisdictional bar to appellate review.”

9 James W. Moore, Moore’s Federal Practice § 51.21[2]. We have

previously entertained tardy jury instruction objections under the

plain error standard of review, and we do so here. Nero v.

Industrial Molding Corp., 167 F.3d 921, 931-32 (5th Cir. 1999).

In reviewing jury instructions for plain error, we are

exceedingly deferential to the trial court. We previously have

explained the reason for making such an appeal so difficult:

Few jury charges in cases of complexity will not yield
"error" if pored over, long after the fact in the quiet
of the library--if such an enterprise is to be allowed.
It is not. The reality is that most such "errors" will
be washed away if the trial court is given a fair

22
 opportunity to consider them. In short, so long as the
trial judge gives counsel a fair opportunity to object,
we will listen to unobjected-to rulings only in those
handful of cases that can meet the exacting requirements
of plain error. [United States v.] Olano and Rule [of
Civil Procedure] 51 do not interpose technical barriers
or lay traps. These rules vindicate powerful interests
in orderliness and finality. They also reflect the
central role of the United States District Court. It is
not a way station or entry gate. Rather, trials are the
heart of the system. Trial, not appeal, is the main
event. The rules we enforce today tether these
statements to reality.

Highland Ins. Co. v. National Union Fire Ins. Co., 27 F.3d 1027,

1032 (5th Cir. 1994). To overturn a verdict for plain error in the

instructions, we must find an obviously incorrect statement of law,

id., that “was probably responsible for an incorrect verdict,

leading to substantial injustice.” Automotive Group v. Central

Garage, Inc., 124 F.3d 720, 730 (5th Cir. 1997).

(2)

(a)

We now turn to the defendants’ first charge of duplicative

recovery, that emotional distress and mental anguish are the same

injury. The special verdict form that the court gave the jury

separated mental anguish and emotional distress and allowed the

jury to impose damages for each. For the reasons that follow, we

do not think that the defendants have made a case for plain error.

This part of the instructions on the verdict form is not

obviously incorrect in relation to existing law. Although “mental

anguish” and “emotional distress” are often used interchangeably

under Texas law, there are also cases treating the two as distinct.

23
Compare Daughety v. National Ass’n of Homebuilders of the United

States, 970 S.W.2d 178, 180 (Tex.App. Dallas 1998)(treating the two

as separate); Savage v. Psychiatric Institute of Bedford, 965

S.W.2d 745, 753 (Tex.App. Fort Worth 1998)(same); Insurance Co. of

North America v. Morris, 928 S.W.2d 133, 151 (Tex.App. Houston

1996)(same)(reversed on other grounds); Edinburg Hospital Authority

v. Trevino, 904 S.W.2d 831, 840 (Tex.App. Corpus Christi

1995)(same)(reversed on other grounds); with State Farm Life Ins.

Co. v. Beaston, 907 S.W.2d 430, 435 (Tex. 1995)(treating the two as

distinct); Seminole Pipeline Co., et al. v. Broad Leaf Partners,

Inc., 979 S.W.2d 730, 754 (Tex.App. Houston 1998)(same); Stokes v.

Puckett, 972 S.W.2d 921, 924 (Tex.App. Beaumont 1998)(same);

Stevens v. State Farm Fire and Casualty Co., 929 S.W.2d 665, 674

(Tex.App. Texarkana 1996)(same); Wyatt v. Kroger Co., 891 S.W.2d

749, 751 n.1 (Tex.App. Fort Worth 1994)(same).8 The case law also

defines the two terms differently. Compare Benefit Trust Life Ins.

Co. v. Littles, 869 S.W.2d 453, 469 (Tex.App. San Antonio

1993)(defining “mental anguish”) with Qualicare of East Texas, Inc.

v. Runnels, 863 S.W.2d 220, 222 (Tex.App. Eastland 1993). Thus,

8
The losing defendants cite a number of Texas Supreme Court
cases for the proposition that the two terms are synonymous. These
cases, however, merely mention the availability of mental anguish
damages for the tort of infliction of emotional distress. See,
e.g., City of Tyler v. Likes, 962 S.W.2d 489, 498 n.2 (Tex. 1997);
Motor Express, Inc. v. Rodriguez, 925 S.W.2d 638, 639 (Tex. 1996);
Boyles v. Kerr, 855 S.W.2d 593, 597 (Tex. 1993). For that reason,
we do not deem the case law as settled as the defendants seem to
believe, at least for the purpose of applying the plain error rule
here.

24
even if the jury charge were incorrect, it would not have been

“obviously incorrect.”

(b)

(I)

We do, however, agree with the losing defendants’ second

argument, that the instructions were plainly erroneous in allowing

for multiple recovery for the same injuries. The special verdict

form was an obviously incorrect statement of the law that was

probably responsible for an incorrect verdict leading to

substantial injustice.

(ii)

To determine whether the special verdict form was incorrect,

we begin by examining the verdict form itself. That form set out

the different causes of action in separate sections.9 Within each

section were two questions. The first listed the individual

defendant and asked which ones had committed the tort. The second

question then asked the jury to determine how much money would

compensate the Tompkinses for damages resulting from that

particular tort.

As part of that second question, the form listed four types of

injuries: past mental anguish, future mental anguish, past

9
There were sections for intentional infliction of emotional
distress, tortious interference with contract, invasion of privacy,
civil conspiracy, and RICO violations. The jury, however, only
awarded damages for the invasion of privacy and intentional
infliction of emotional distress claims. It also awarded exemplary
damages.

25
emotional distress, and future emotional distress. After each type

was space for the jury to enter an amount with respect to that

particular injury. This was true for both the intentional

infliction and invasion of privacy sections. But there was

nothing, either in the general instructions or within any of the

individual sections of the verdict form, that explained that the

Tompkinses were not entitled to recover twice for the same

injuries--the emotional distress and mental anguish--even though

each of these same injuries appeared under more than one tort.

Thus, the form provided double recovery for the harm arising

from any conduct that qualified as both an invasion of privacy and

as an intentional infliction of emotional distress. The targeted

picketing, just as an example, might have qualified under either

tort, and the resulting harm would have been calculated twice.

This verdict form and the instructions were obviously

incorrect. Under Texas law, plaintiffs are not entitled to more

than one recovery for the same injury. Stewart Title Guar. Co. v.

Sterling, 822 S.W.2d 1, 7 (Tex. 1991). This principle, called the

“one-satisfaction rule,” applies when defendants commit the same or

differing acts that result in a single injury. Id. In allowing

recovery for mental anguish and emotional distress under two

separate causes of action, the special verdict form was obviously

erroneous.

(iii)

26
 This erroneous verdict form probably led to an incorrect

verdict. The Tompkinses made no attempt at trial to distinguish

between the harm resulting from the invasion of privacy and the

harm caused by the intentional infliction tort. Given the

presentation of the evidence at trial, it is unlikely that the jury

could have separated harm arising from the intentional inflictions

of emotional distress and the invasions of privacy, especially

since the jury would have undertaken to do so without any direction

from the court. For that reason, the verdict was, in all

probability, duplicative. This conclusion accords with Texas law,

which has established that failure to distinguish the mental

anguish and emotional distress attributable to different claims are

presumed to be the same single injuries. See Swink v. Alesi, 999

S.W.2d 107, 111 (Tex.App. Houston 1999)(plaintiff’s failure to

offer evidence of distinct losses due to second claim indicated

there was a single injury); Bradford v. Vento, 997 S.W.2d 713, 735-

36 (Tex.App. Corpus Christi 1999)(holding that recovery for mental

anguish from various torts arising from same general set of

incidents constituted a single injury); Berry Property Management,

Inc. v. Bliskey, 850 S.W.2d 644, 666 (Tex.App. Corpus Christi

1993)(finding that plaintiff’s inability to distinguish harm

resulting from different causes of action indicated that there was

only a single injury).

The Tompkinses respond by pointing out that the jury awarded

different amounts for intentional infliction of emotional distress

27
and for invasion of privacy, suggesting that the harm for each tort

was separate and distinct.10 But the Texas courts reviewing

verdicts like this one have held that awards of differing amounts

for the same type of damages under different causes of action do

not prevent application of the one-satisfaction rule if the

plaintiffs suffered only one injury. Household Credit Services,

Inc. v. Driscol, 989 S.W.2d 72, 80-82 (Tex.App. El Paso 1998);

Bradford, 997 S.W.2d at 735; Bliskey, 850 S.W.2d at 666. As

already discussed, the plaintiffs demonstrated only single injuries

here.

That the jury awarded two different amounts perhaps indicates

that it did not find each and every activity that qualified as an

intentional infliction of emotional distress also qualified as an

invasion of privacy. But there was, in all likelihood, a great

deal of overlap between the two theories of recovery, since most of

the activities qualifying for one would qualify for the other.

(iv)

The incorrect verdict was substantially unjust because of the

amount involved. The jury awarded damages for both intentional

infliction of emotional distress and invasion of privacy. The

amount of damages for the injuries of past and future mental

anguish was $1.5 million for the intentional infliction of

10
As already mentioned, the jury awarded $2,248,000 for the
intentional infliction of emotional distress and $2,800,0000 for
the invasion of privacy.

28
emotional distress and $2 million for the invasion of privacy. The

respective amounts for emotional distress were $750,000 and

$800,000.

The amount that the Tompkinses incorrectly recovered twice was

probably close to the full $2,248,000 for intentional infliction of

emotional distress because the activities falling under that theory

also probably qualified for an invasion of privacy. We find an

incorrect award of approximately $2 million to be substantially

unjust, and conclude that the instructions, in this respect,

constituted plain error, requiring reversal. See Bender, 78 F.3d

at 795 (finding double recovery of $300,700 constitutes a plainly-

erroneous award); Conich v. Wayne County Community College, 874

F.2d 359, 369 (6th Cir. 1989)(finding $375,000 in actual damages

excessive and plainly erroneous).

(v)

Thus, we are presented with the question of how to best remedy

the unjust result of this plainly-erroneous instruction. Texas

courts have a straightforward way of implementing the one-

satisfaction rule with different damage awards for more than one

cause of action based on the same harm. The courts simply treat

these cases as failures by the plaintiff to elect a single theory

of recovery from several alternative theories and use the jury

findings affording the greater recovery. Birchfield v. Texarkana

Mem’l Hosp., 747 S.W.2d 361, 367 (Tex. 1987); Driscol, 989 S.W.2d

at 80-82; Bradford, 997 S.W.2d at 735. We believe that is the best

29
course of action here, and therefore vacate the intentional

infliction award and affirm the invasion of privacy award. Our

decision, however, only affects the losing defendants who have

appealed and does not vacate the damage award against the non-

appealing defendants. See Walker v. U.S. Dept. Of Housing and

Urban Development, 99 F.3d 761, 774 n.18 (5th Cir 1996).11

VII

The winning defendants have appealed the district court’s

denial of their motion for sanctions against the Tompkinses. That

motion sought sanctions under both Texas Rule of Civil Procedure 13

and Federal Rule of Civil Procedure 11. With respect to Rule 13

sanctions, the winning defendants allege the claims filed in state

court against them were frivolous and not investigated properly

before making them defendants in this action. These defendants

also assert that Rule 11 sanctions became available when the

Tompkinses’ counsel signed the pretrial order, thus, making the

same frivolous claims in district court. We will review the

district court’s denial for abuse of discretion. Thornton v.

General Motors Corp., 136 F.3d 450, 455 (5th Cir. 1998); New York

Underwriters Ins. Co. v. State Farm, 856 S.W.2d 194, 205 (Tex. App.

Dallas 1993).

11
This does not affect the jury determination on exemplary
damages. Where the jury has found the defendants engaged in two
different tortious acts, it may award damages beyond actual damages
for each of those two acts. Bliskey, 850 S.W.2d at 665. The
losing defendants have not appealed the exemplary damages as a
separate issue.

30
 A

The district court was correct, in this case removed from

state court, to consider the applicability of sanctions under Texas

Rule of Civil Procedure 13 for the filing made in the Texas court.

Although we have never explicitly addressed this issue, other

federal courts have applied state sanctions rules to pleadings

filed in state court before removal. See, e.g., Griffen v. City of

Oklahoma City, 3 F.3d 336, 341 (10th Cir. 1993); Harrison v. Luse,

706 F.Supp. 1394, 1401 (D.Col. 1991); Schmitz v. Campbell-Mithun,

Inc., 124 F.R.D. 189, 192 (N.D. Ill. 1989). We believe that this

is appropriate. The federal rules do not apply to filings in state

court, even if the case is later removed to federal court.

Griffen, 3 F.3d at 341. If the state pleading rules did not apply,

then nothing would govern the original pleadings in these cases,

and a party who filed in bad faith might escape any penalty. Id.

In addition, there is no concern in these situations that a court

will be forced to choose between two conflicting sets of procedural

rules. Id.

The district court was also correct to deny sanctions for the

filings made in state court, because the winning defendants did not

meet the requirements of Texas Rule of Civil Procedure 13. Before

imposing sanctions under that rule, a court must determine that the

pleading was groundless, and that the pleading was brought either

31
in bad faith or for the purpose of harassment. Tex. R. Civ. P.

13.12

First, the Tompkinses had grounds for their complaint, both

legal and factual. The RICO claim was not legally frivolous in the

light of the cases applying RICO law to protestors. See National

Organization for Women, Inc. v. Scheidler, 510 U.S. 249

(1994)(abortion protestors); Palmetto State Medical Center, Inc. v.

Operation Lifeline, 117 F.3d 142 (4th Cir. 1997)(same). In

addition, the Tompkinses had conducted a factual investigation

before joining the individual defendants. This investigation

included taking depositions, reviewing a press release, hiring a

private investigator, examining photographs and videotapes of the

demonstrations, and checking license plate numbers of cars parked

in the Tompkinses’ neighborhood.

Second, the winning defendants do not appear to have presented

any evidence of bad faith or an intent to harass. On the other

hand, however, there is a presumption that pleadings are filed in

good faith that the movant must overcome. GTE Communications Sys.

12
The relevant portion of the rule reads:

The signatures of attorneys or parties constitute a
certificate by them that . . . to the best of their
knowledge, information, and belief formed after
reasonable inquiry the instrument is not groundless and
brought in bad faith or groundless and brought for the
purpose of harassment. . . . If a pleading, motion or
other paper is signed in violation of this rule, the
court . . . shall impose an appropriate sanction.

32
Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993). The winning

defendants failed to do this.

For these two reasons, we will not reverse the district

court’s denial of Rule 13 sanctions.

B

With respect to the filings in federal court, the winning

defendants also failed to establish two of the prerequisites for

Rule 11 sanctions. First, sanctions may only be imposed if the

offending party has notice and a “reasonable opportunity to

respond.” Fed. R. Civ. P. 11(C). Second, a motion for sanctions

“shall not be filed with or presented to the court unless, within

21 days after service of the motion . . . , the challenged paper,

claim, defense, contention, allegation, or denial is not withdrawn

or appropriately corrected.” Id. In this case, the winning

defendants did not file their Rule 11 motion until after trial had

concluded, thereby denying the Tompkinses a reasonable opportunity

to correct their complaint. Additionally, the winning defendants

served opposing counsel either the day they filed their sanctions

motion or shortly before. Thus, they failed to comply with the

twenty-one-day rule. For both of these reasons, the district

court’s denial of Rule 11 sanctions was appropriate.

VIII

We sum up. None of the evidentiary rulings constitute

reversible error. The evidence here fully supports liability

against the losing defendants for invasion of privacy and

33
intentional infliction of emotional distress. The amount of the

jury award does not qualify as excessive, nor is the award

duplicative in returning damages for both emotional distress and

mental anguish. However, we hold that the award is duplicative in

granting damages for the same single injury under both causes of

action, intentional infliction of emotional distress and invasion

of privacy. Consequently, we REVERSE and VACATE the jury award for

intentional infliction of emotional distress and AFFIRM the award

for invasion of privacy. Finally, we AFFIRM the denial of

sanctions against the Tompkinses under both Federal Rule 11 and

Texas Rule 13. The case is therefore REMANDED for entry of

judgment not inconsistent with this opinion.

AFFIRMED in part, REVERSED and VACATED in part, and
REMANDED for entry of judgment.

34