Legal Newsline

Thursday, January 23, 2020

Court rules climate change scientist's defamation suit can proceed

By Mia Sims | Jan 19, 2017

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WASHINGTON (Legal Newsline) – Dr. Michael Mann’s defamation claims against Rand Simberg and Mark Steyn are now going forward in the District of Columbia Superior Court.

The claims arose after Simberg and Steyn wrote their oppositions to Dr. Mann’s “hockey stick” graph that depicted a dramatic increase in global temperatures during the 20th century. In December, the D.C. Court of Appeals ruled that Mann can continue with his defamation claims.

Simberg’s accusations, written on July 13, 2012, compared Mann’s research to Jerry Sandusky’s child-abuse scandal at Penn State University. An excerpt read, “Mann could be said to be the Jerry Sandusky of climate science, except for instead of molesting children, he has molested and tortured data in service of politicized science that could have dire consequences for the nation and planet.”

Steyn wrote an article in the National Review titled “Football and Hockey,” which, according to the court, further supported Simberg’s claims, saying that it, “continued the theme of personal attack and innuendo against Dr. Mann commenced in Mr. Simberg’s article.”

After failing to obtain a retraction and apology, on Oct. 22, 2012, Mann sued Simberg, Steyn, National Review and others for defamation and intentional infliction of emotional distress.

Court documents state, “Dr. Mann’s complaint claimed that the articles which criticized Dr. Mann’s conclusions about global warming and accused him of deception and academic and scientific misconduct contained false statements that injured his reputation and standing in the scientific and academic communities of which he is a part.”

Simberg and Steyn issued a motion to dismiss but the trial court denied, concluding that Dr. Mann’s claims were “likely to succeed on the merits.”

“I think the court’s point is that it’s one thing to take issue with Dr. Mann’s conclusions but questioning his professionalism or claiming that he manipulated data is not constitutionally protected activity,” Connor Mullin, counsel at Akin Gump, told Legal Newsline.

According to Mullin, when an opinion implies the existence of facts, it can constitute defamation.

“A common misconception is that opinions are immune to a defamation suit,” Mullin said. 

“The opinions showed that courts are going to play a critical role in our post-fact world. In court, it really comes down to admissible evidence. The court painstakingly set forth four separate investigations by various independent bodies that concluded that Dr. Mann did not manipulate data.”

These cases generally, more often than not, settle before trial, but this type of ruling is usually an inflection point in the case, and the Court of Appeals certainly concluded that Mann was “likely to succeed,” according to Mullin. And in many ways, he’s already achieved many of the goals of reputational recovery.

The accusations likely arose from a 2009 scandal in which thousands of emails from the Climate Research Unit, some between Mann and CRU climate scientists, were somehow obtained and anonymously published on the internet.

According to court documents, “In a controversy dubbed 'Climategate,' some of these emails were cited as proof that climate scientists, including Dr. Mann, falsified or manipulated their data, in collusion with government officials, to produce the hockey stick result. The emails led to public questioning of the validity of the research leading to the hockey stick graph and to calls for evaluation of the soundness of its statistical analysis and the conduct of the scientists involved in the research, including, specifically, Dr. Mann.”

Shortly after, the claims were investigated by several scientific and environmental entities, colleges and committees. It was stated in court documents that none of the investigations found any evidence of fraud, falsification, manipulation, or misconduct on the part of Mann. The reports of this were published in 2010 and 2011, shortly before the articles published by Simberg and Steyn.

The failure to retract the articles prompted Mann to continue with the suit. The trial court’s decision concluded that “Dr. Mann has supplied sufficient evidence for a reasonable jury to find, by a preponderance of the evidence, that statements in the articles written by Mr. Simberg and Mr. Steyn were false, defamatory, and published by appellants to third parties, and, by clear and convincing evidence, that appellants did so with actual malice.”

“I think that a retraction wasn’t done because withdrawing or correcting a story after publication can be embarrassing professionally,” Mullin said. “It’s not uncommon for journalists to resist having to issue a retraction and obviously the authors have strong views about global warming.”

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