Trial Of Mann v. Steyn, Part III: More On Damages; Simberg And Steyn's First Witness

Readers seem to be enjoying my posts on the Mann v. Steyn trial, so I’m going to continue with one more today. Meanwhile, the court does not hold trials on Fridays, so the proceeding has recessed for the weekend, to resume Monday morning. It’s likely that the trial will get very interesting next week, as the defendants present the heart of their case and as things wrap up. In the interim, I’ll provide some comments on the events yesterday, which was the 11th day of the trial.

My previous post on Wednesday, January 31, was devoted mostly to the issue of plaintiff Mann’s claimed damages in the case. The post described what I found to be an extremely odd back and forth during Mann’s own testimony, where it emerged that Mann during the discovery process had provided three different, inconsistent and contradictory interrogatory answers on the topic of his main theory of damages, namely that he had lost grant funding due to the defamation. After initially being confronted on cross-examination with an interrogatory answer where he had refused to provide any list of allegedly lost grants and said the whole subject was “irrelevant,” Mann then on re-direct (highly unusual) attempted to use a second interrogatory answer as a basis for quantifying his damages from lost grants; only then to be confronted with a third interrogatory answer, which he had never mentioned under questioning by his own lawyer, where he had changed most of the numbers in the second answer, in the most notable case reducing the claimed loss from over $9 million to only about $100,000.

Well, it turns out that that oddity became the subject of extensive argument before the judge, in parts of the trial that were not broadcast to the public viewers. Yesterday, in connection with Mann resting his case, Steyn filed with the court something called a “Motion for Sanctions for Bad-Faith Trial Misconduct” against Mann, addressing many issues about the claimed damages and Mann’s proof of same. Steyn made a copy of that document available via a link on his website. The document gives much history of the subject of Mann’s damages claim in the case, including events that occurred at parts of the trial that have not been broadcast publicly. The document, only 11 pages long, makes for very entertaining reading if you have the time.

But first, some background. The law of defamation is one of the more complex subjects of American law. It arises under state rather than federal law (with D.C. defamation law arising out of D.C.’s role as a state/local governing entity, rather than out of federal law), and differs substantially from state to state. And then there is an overlay of Supreme Court case law interpreting the First Amendment to the federal Constitution, thus impacting the law in every state.

One of the truly odd quirks of defamation law is that some defamation cases require proof of what are called “special damages,” while others permit juries to make arbitrary awards of “general damages.” “Special damages,” are particular items of monetary harm that can be traced to the defendant’s defamation. These could include, for example, lost wages, or expenses of publicizing true statements to counter the libel, or maybe even the cost of mental health treatment or therapy. Mann’s lost grants, if he could prove that that occurred and resulted from the defamation, would be an example of “special damages.” “General damages,” sometimes also called “presumed damages” in the defamation context, are rather some number that a jury can pluck out of the air to compensate a plaintiff for alleged loss of the inchoate value of reputation. They are analogous to damages in a personal injury case, where a jury can select an arbitrary figure to compensate a plaintiff, for example, for loss of a limb, or even for just general “pain and suffering.” Of the $83 million that E. Jean Carroll just got awarded in her case against Trump, about $18 million was in the category of “general” or “presumed” damages, while the rest were punitive damages. Apparently, the court in the Carroll/Trump case determined that proof of “special” damages was not required. An appeals court may not agree with that.

I strongly suspect, without being sure, that Mann’s case against Steyn is within the category that requires a finding of at least some “special” damages. This is a subject that is difficult to research, and even if you research it you can’t necessarily get a definitive answer. There may well be quirks of D.C. defamation law that bear on this. In any event, it is likely that the court has made some ruling on this subject in the course of the 12 years that the case has been kicking around, because such a ruling would be important to guide the parties in what evidence to present at trial. If there is such a ruling, it may or may not stick on appeal. I have tried to find out if there is such a ruling, but unfortunately, even though I subscribe to the online document access system of the federal courts, the D.C. Superior Court for some reason apparently does not participate in that system. However, from the fact that Mann felt under an obligation to present evidence as to lost grants, I think it is highly likely that he has reason to believe — whether from D.C. case law or a prior ruling from this court or both — that he has an obligation to prove at least some “special” damages.

So here is the introduction to Steyn’s latest brief:

“Stunning.” That is the word this Court used to describe the conduct of Plaintiff Michael E. Mann’s counsel at trial on Monday, January 29, 2024. Trial Tr. (1/31/24 PM) 41. On that day, Plaintiff’s counsel presented to the jury evidence concerning Dr. Mann’s claimed loss of grant funding—evidence counsel knew was not true. Plaintiff’s counsel published to the jury an exhibit and elicited testimony from their client concerning Dr. Mann’s alleged grant loss. But, as Plaintiff’s counsel knew, most of the information on the exhibit was wrong, including information about the dollar amounts of the allegedly lost grants.

Plaintiff’s counsel knew that the evidence they offered to the jury was false because it was based on a 2020 discovery response concerning Dr. Mann’s grant-loss claim that counsel had been obliged to revise very dramatically just last year (2023). At trial on the 29th, Plaintiff’s counsel chose to present the wildly misleading and deceptive 2020 data, which counsel for Defendant Rand Simberg had to correct on cross-examination. The difference between the incorrect 2020 data and the corrected 2023 data was striking. This Court noted that “One entry was for nine million, and then it was significantly reduced to something a little over a hundred thousand.” Trial Tr. (1/31/24 PM) 45. On the tenth day of this jury trial, January 31, 2024, this Court asked the parties to address Plaintiff’s falsification of key damages testimony. . . .

As this Court stated, “clearly, the plaintiff was aware that the jury was being presented with an exhibit that contained incorrect information.” Trial Tr. (1/31/24 PM) 42. “And you wanted the jury to take that back to the jury room and deliberate on those figures.”

The portions of those excerpts that reflect the judge’s remarks had not been broadcast to the members of the public watching the trial online.

In his submission, Steyn argues that the court should impose sanctions on Mann and his counsel for his bad faith submission of false evidence, with potential sanctions ranging up to and including complete dismissal of the claims and award of attorneys’ fees to Steyn:

What Dr. Mann and his counsel did amounts to bad-faith misconduct. . . . Rule 3.3 of the D.C. Rules of Professional Responsibility provides that “(a) A lawyer shall not knowingly ... (4) Offer evidence that the lawyer knows to be false ....” See Tibbs v. United States, 628 A.2d 638, 640 (D.C. 2010) (“In the District of Columbia, as in every other jurisdiction of which we are aware, an attorney has a duty not to present false testimony to a court.”). . . . Dr. Mann is also responsible for the admission of the false evidence. He knew the 2020 information was false but did not say so on the stand when his counsel questioned him. The truth came out only on cross-examination.

I have no idea what Mann’s or his counsel’s response to these matters may be. Experience teaches me that no matter how completely cornered your adversaries may appear to be, they always come up with something that at least sounds plausible. However, in this brief Steyn quotes Mann’s lawyers when confronted by the judge himself on this very issue (again, in a portion of the trial that was not broadcast to the public viewers):

[W]hen the Court confronted counsel with their presentation of false and misleading evidence to the jury, counsel was unrepentant. Instead of owning what they did, lead counsel John Williams doubled down and asserted that they did not present false evidence to the jury. See, e.g., Trial Tr. (1/31/24 PM) 43–44 (“Mr. Williams: No, Your Honor. Please. The numbers on the board were accurate. There had been earlier mistakes that were corrected, and that’s why we gave them the correct numbers.”). Counsel claimed that he was right and the Court was confused. See id. at 45 (Mr. Williams: “So I am sorry that there was confusion on your part, and we will certainly correct it.”) (emphasis added).

Meanwhile, in the part of the trial actually shown to the viewers at home, the main show on Thursday was the testimony of the defense expert witness Abraham Wyner, Professor of Statistics at the Wharton School at the University of Pennsylvania — the same university where Mann teaches.

The key opinions offered by Wyner — that Mann had “manipulated” the data in creating his Hockey Stick graph, and that the graph was “misleading” — had already come out on Wednesday. The direct testimony on Thursday was devoted to going into the details of the basis for those opinions. There was much technical detail in the presentation; however, the gist was that the uncertainties inherent in the data were far greater than what Mann had presented. As a result, Wyner testified, the error range shown on Mann’s Hockey Stick graphs from several papers was much too narrow. And thus, contrary to Mann’s graph, it was not possible to say from the data that time periods hundreds of years ago definitively were cooler than the present.

One of the last questions put to Wyner on direct was whether any statistician on behalf of Mann had offered an opinion contrary to his. Wyner said he was not aware of that. (And indeed, Mann had not offered an expert witness on these statistical issues during his direct case.)

I found the cross of Wyner to be singularly ineffective, although perhaps the jury might find otherwise. The heart of the cross was to confront Wyner with criticisms of his Hockey Stick-related work expressed by other authors in published papers. It emerged that Wyner had published his criticism of Mann’s Hockey Stick papers in a journal article in 2011; and the editor of the journal had decided that this would be a good subject for an entire issue of the journal. So Wyner’s article became the first piece in this issue of the journal, followed by multiple pieces discussing or criticizing Wyner’s article, and followed finally by an article called the “Rejoinder,” where Wyner responded to all the criticisms. One by one, Mann’s lawyer confronted Wyner with the various criticisms from this journal. As to some, Wyner said that the criticism was wrong, and explained why. As to others, he said that the criticism did not go to the heart of his opinion as to why Mann’s work was misleading. And as to still others, Wyner said he did not recall that criticism. In each case, Mann’s lawyer simply read the criticism of Wyner from the article, took whatever Wyner said in response, and moved on to the next item. He never went deeply enough into any issue for an intelligent listener to form any view as to who might be right or wrong on this issue.

Expect more on this trial next week. Meanwhile, I’ll post on something else over this weekend.