Trial of Mann v. Steyn: Post-Trial Motions Edition

From THE MANHATTAN CONTRARIAN

Francis Menton

Way back in the ancient year of 2012 — before this blog had even been started — Penn State climate “scientist” Michael Mann brought a lawsuit for defamation against Mark Steyn and Rand Simberg, as well as against two websites (National Review and CEI) that had hosted the blog posts of those two individuals. Mann asserted that his reputation had been damaged by the Steyn and Simberg posts, which had compared Mann to fellow Penn Stater Jerry Sandusky. The point of comparison was that Penn State had investigated and cleared both men around the same time over allegations of misconduct — scientific misconduct in the case of Mann, sexual misconduct in the case of Sandusky.

In the succeeding years, the case went through a truly unbelievable history of procedural twists and turns, including multiple motions to dismiss and appeals. There was even an effort in 2019 to seek Supreme Court review, which the Court denied at that time; but Justice Alito issued a detailed dissent as to why he thought review should have been granted. The case finally reached trial in January 2024, by which time the two corporate entities, National Review and CEI, had been dismissed from the case, leaving only the individuals Steyn and Simberg as defendants. The trial was available for public view over the internet, and I watched substantial parts of it, leading to five blog posts over the period January 27 to February 8, 2024. Links to those five posts are here, here, here, here and here. A February 9 update to the last of those posts reported on the jury verdict that was delivered on the 8th. Readers who are at all familiar with the case will recall that the jury awarded only $1 of compensatory damages against each defendant, but awarded punitive damages of $1000 against Simberg and $1 million against Steyn.

In the immediate aftermath of the verdict, the liberal press was filled with gloating that the jury had ruled in favor of their climate hero Mann. For example, my February 8, 2024 post linked to one such piece at NPR (Excerpt: “Michael Mann, among the world’s most renowned climate scientists, won a defamation case in D.C. Superior Court against two conservative writers.”)

And then the case disappeared almost completely from the news for over a year. What, you may have wondered, was happening? The answer is “post-trial motions.” In between the jury verdict and the entry of what is called the “final judgment,” which is the document that resolves and ends the case, the parties get to make various requests to the judge, either to decide issues that were not before the jury, or to modify or even vacate the jury’s verdict as being contrary to law in some respect. Sometimes, those motions are few and routine, and other times they are numerous and complex.

In just the past few days, the trial judge (Alfred Irving of the D.C. Superior Court) has at last decided most of the motions (although there is at least one substantial issue remaining to be decided, as I will discuss below.). You might ask, is 13+ months normal to decide such post-trial motions? The answer is that such a long time period is quite unusual, but not unheard of; indeed, I have seen some go even longer. Here, I thought it should not have taken nearly so long. However, in Judge Irving’s partial defense, he did put together two very thorough and detailed decisions deciding the motions, one 44 pages long, and the other 46 pages.

With Judge Irving’s decisions in hand, it is now clear that February 8, 2024, the day of the jury verdict, was the high point for Mann’s cause. Since then, the process has been slow, but all the news for Mann has been bad. The bad news actually began a couple of months ago, on January 10, 2025 when Judge Irving decided a long-pending motion of National Review to be awarded attorneys’ fees and costs for the claim against it, which had been dismissed prior to trial. The dismissal as to NR took place all the way back in 2021. D.C. law provides for recovery of attorneys’ fees and costs in certain cases for successful defendants in defamation lawsuits. Irving’s decision was that Mann must pay NR $530,820.21.

Next up, on March 4 Judge Irving issued his 44-page ruling with the all-caps title “OMNIBUS ORDER ON DEFENDANTS’ POST-TRIAL MOTIONS FOR JUDGMENT AS A MATTER OF LAW, REMITTITUR, NEW TRIAL, AND STAY OF EXECUTION OF THE JUDGMENT.” The main result in this Order is that Judge Irving dramatically reduced the punitive damages award as against Steyn by 99.5%, from $1 million to $5000.

As you can see from the title of the Order, there were actually four separate requests in the post-trial motions made by Steyn and Simberg — for “judgment as a matter of law,” for new trial, for stay of execution of judgment, and for “remittitur.” “Remittitur” means that the judge reduces the amount of damages awarded by the jury. That subject is the heart of this Order. If there was to be a major remittitur, then the other requests in the motions would obviously be of much diminished significance.

The motion for remittitur from Steyn was always likely to be granted, although the exact amount of the reduction was not known until Judge Irving ruled. The reason that remittitur was likely is that there is much case law for the propositions that (1) punitive damages cannot be too much out of proportion to actual damages, and (2) punitive damages are entirely discouraged when there are no actual damages at all. Here, the jury had awarded $1 million of punitive damages against Steyn despite finding only a nominal $1 of actual damages.

By far the most important legal precedent in this area is a 1996 case from the U.S. Supreme Court, BMW of North America v. Gore. It is quite unusual for the Supreme Court to stick its nose into civil litigation in state courts under state law; but in the Gore case, the Supreme Court found a basis in the Due Process Clause of the 14th Amendment to the U.S. Constitution to place limits on awards of punitive damages in state court actions. (Note that for these purposes the D.C. Superior Court functions as the equivalent of a state court.). In the Gore case, the Alabama Supreme Court had approved an award of $2 million of punitive damages, although the jury in the case had found only $4,000 of actual damages. In its decision, the U.S. Supreme Court prescribed a variety of factors to determine when punitive damages are excessive under the U.S. Constitution. One of those factors is the “ratio” of the “punitive damages award . . . to the actual harm inflicted on the plaintiff.” The Supreme Court (this is Justice Stevens) stated, “When the ratio is a breathtaking 500 to 1 . . . the award must surely ‘raise a suspicious judicial eyebrow.’” The Court concluded: “{W]e are fully convinced that the grossly excessive award imposed in this case transcends the constitutional limit.” With those bits of guidance, the Supreme Court in Gore did not come up with its own figure for an allowable amount of punitive damages, but rather sent the case back to the Alabama Supreme Court to figure out what to do.

In the case of Steyn, the ratio of punitive to actual damages was not 500:1, but 1 million:1. Thus you can see how the punitive damages award against Steyn was always on thin ice. Judge Irving basically recognized the Gore case as the main precedent that he had to deal with, and went through its various factors in great detail to come up with the $5000 figure as the allowable amount of punitive damages. From Judge Irving’s Order, page 24:

Applying the test the Supreme Court outlined in Gore, . . . this Court finds the jury award of $1 million in punitive damages to be grossly excessive and that a remittitur of the award is appropriate. The Court discusses each of the Gore factors in turn.

And then on March 12, Judge Irving issued his 46-page Order granting a motion for sanctions that had been made by both Steyn and Simberg during the course of the trial. The full text of this Order can be found here.

Judge Irving’s Order contains a lengthy and very detailed description, including dozens of citations and quotes from the trial transcript and exhibits, of the back and forth that led to the motion for sanctions. The facts in question actually took place during the part of the trial that I had watched. You can read Judge Irving’s Order if you wish, but here is my much condensed version from my post of January 31, 2024, which is less than one-tenth as long and cuts to the heart of the matter:

In my prior post, I devoted some space to Mann’s claim for damages, which appears to be based principally on the theory that he had lost various government research grants as a result of the allegedly defamatory blog posts of Steyn and Simberg. Last week Simberg’s lawyer Victoria Weatherford had cross-examined Mann with an interrogatory answer he had given to a question asking him to substantiate his damages by providing a list of all grants he claimed he had lost for this reason. In his answer, signed under oath, Mann had not listed any grants, and instead had objected on the ground that the whole subject was “irrelevant.” My comment was “How Mann can claim damages from lost grants after giving this answer, I have no idea.”

Well, as tends to be the case, the story proved to be much more complicated than it first appeared. On re-direct examination, Mann’s lawyer came back with a supplemental interrogatory answer that Mann had served up in 2020, which did contain a list of allegedly lost grants. That seemed like a pretty good response.

But then Ms. Weatherford got another turn on what’s called “re-cross,” and she pulled out yet another supplemental answer provided by Mann to the same interrogatory. This one was dated in 2023. In 2023 the parties were finally in the run-up to the actual trial. In the 2023 answer, there was a list of allegedly lost grants that was either the same or very similar to the list from the 2020 answer, except that the amounts of money allegedly lost as to each grant had changed in many or even most cases. (It was difficult to determine exactly everything that had changed, because they never put the two lists of grants and amounts up on the screen simultaneously for the viewers at home to compare.). Some of the changed amounts were small, but some were dramatic. In the most notable case, the “lost” grant had at first been claimed to be associated with over $9 million of lost funding; but in the amended answer the number had been changed to only about $100,000. At least as to any numbers that ever appeared on the publicly-shown screen, that $9 million amount looked to be by itself far and away the majority of the claimed lost funding.

In his responses to the questioning on re-cross, Mann justified the final amended answer as just his honest attempt to get things right. At some point he realized, he said, that if that big grant had been won, most of the $9 million would have gone to institutions other than Penn State. OK, but he had signed the previous two answers under oath. Could he really have just been “mistaken” about the $9 million? Certainly the smell of this back-and-forth was that Mann had put a fake inflated $9 million figure into his claim in an effort to intimidate the defendants with a huge number, only to change it on the eve of trial when he realized that defendants probably had the information to prove him lying in front of judge and jury.

If you should read Judge Irving’s Order, what comes through loud and clear is that the conduct of Mann and his lawyers with these damages interrogatory answers had made the judge very, very angry. The aspect of the situation that most angered the judge is that Mann’s lawyers had maneuvered to get the $9 million dollar figure into an exhibit that would go before the jury, when they knew that that figure had been withdrawn as wrong, and had been replaced by a figure a small fraction the size. Then, substantial time and resources of the defendants and the court were needed to correct the record. From Judge Irving’s Order (page 29):

Here, the Court finds, by clear and convincing evidence, that Dr. Mann, through Mr. Fontaine and Mr. Williams [his lawyers], acted in bad faith when they presented erroneous evidence and made false representations to the jury and the Court regarding damages stemming from loss of grant funding. . . . The Court does not reach this decision lightly.

So what is the remedy for this conduct? That is the piece that still remains open. At the end of this Order, Judge Irving says that the remedy will be a monetary award to the defendants of the amounts they were forced to expend to deal with Mann’s misrepresentations and to correct the record. The judge invites them to make a presentation on these matters, after which there will be a round of briefing, and then another decision. It could take additional months. How much will be awarded? My guesstimate would be in the tens of thousands, although perhaps it could even reach as high as $100,000.

So the contours of the “final judgment” in this case are coming into view. Mann will be awarded $1001 against Simberg, and $5001 against Steyn. NR will be awarded $530,000 against Mann, and Simberg and Steyn will be awarded some additional tens of thousands from Mann. Mann will be in a very substantial financial hole, with the defendants having little incentive to compromise with him, and every incentive to go after his bank accounts and his house. Probably, Mann will be able to stave that off for some substantial period of time by means of appeals. Or perhaps Mann’s angel funders, who have paid for this case on his behalf and never had their identities disclosed, will pay off the judgment for him. Publicly, Mann will go forth continuing to claim that he “won” the case by virtue of the jury verdicts.

For me the most disappointing aspect of the whole case has been the total inability of the court system to deal with Mann’s fake science. As described in detail in my post from February 6, 2024, the defendants, particularly Simberg, put on substantial and indeed definitive evidence of the flawed “science” in Mann’s Hockey Stick reconstructions — manipulation of data, incorrect error bands, suppression of adverse verification statistics, and so forth. Mann did not even feel the need to put on any scientific evidence in response. His lawyer completely ignored this entire issue on their rebuttal case, and then did not even mention it in closing argument. And yet, the jury still made an award against the defendants. The whole issue of the fake science went completely over their heads.

The most fitting end to this case will be when whoever in the federal government pays for the University of Pennsylvania “climate science” centers pulls the plug on all the funding. That can’t come soon enough.