Further Notes On Mann v. Steyn: The Plaintiff Rests

January 31, 2024 Francis Menton @ Manhattan Contrarian

The Mann v. Steyn trial in the Superior Court of the District of Columbia is now in the middle of its third week. For more background on the case, see my post from a few days ago here. I have been watching some substantial chunks of the trial on the court’s livestream, although unfortunately several other matters have prevented me from watching the entirety. Today at the lunch break, the plaintiff Michael Mann concluded the presentation of his case. The technical term is that the plaintiff “rested.” So I thought a short update would be timely.

Because I haven’t seen the whole thing, I’ll just cover some aspects that I find interesting.

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.

To someone like me with some experience in the trial game, this whole episode was exceedingly strange. If you are a plaintiff with the burden to prove your damages, and the defendant asks you in an interrogatory essentially “tell me what your damages are,” you want to produce an answer that corresponds very closely to what you are going to put on at trial. If you are initially unsure of how you will prove damages, perhaps you can delay answering until fairly close to trial, when your damages likely come more clearly into focus. But in any case, you want to give the defense nothing to use to cross-examine the plaintiff. Therefore you definitely don’t want to answer with something you are going to have to change dramatically, let alone in a way adverse to your claim. And if you do have to change something, then when you get to trial you had better cover that with the witness on direct, including an explanation of the reasons for any change, to avoid having the witness get crucified on cross. Clearly that was not the approach taken here by Mann. The only explanation for Mann’s approach that makes sense to me is that he expected he could use the large inflated claim to force a settlement, and the case would thus never go to trial, so he would never be put to his proof. Once again, his audacity astonishes.

In other matters related to damages, here are some more things that came out on the cross of Mann:

• When a grant is received, the grant moneys would go to the university, not to Mann personally.
• Mann’s salary went up in 2013 (the year after the allegedly defamatory blog posts in 2012), and remained above the 2012 level in every subsequent year that Mann remained at Penn State.
• Mann had no direct knowledge of any specific reasons why any particular grant was denied. He did not know who had reviewed any grants and recommended denial — those people act anonymously. He did not know whether any grant reviewer had read the blog posts.
• Both Ms. Weatherford in her cross, and Steyn in cross that he conducted himself, confronted Mann with numerous instances of others who had published material that Mann had publicly denounced as defamatory. The point was that it is not possible to isolate any damages to Mann’s reputation attributable to Steyn or Simberg amidst a sea of equally harsh criticism from others. Making that point gave the defense the opportunity to show the jury several materials, including a humorous video, extremely critical of Mann.

One other point of note on the cross of Mann: Ms. Weatherford confronted Mann with an email requesting deletion of emails relating to the temperature reconstructions, which email Mann had forwarded to another scientist. The background is that the “ClimateGate” matter had just broken, involving a large release of emails from the University of East Anglia in England. A group of scientists at UEA were collaborators with Mann on his temperature reconstructions (and on his efforts to suppress dissent in climate science). The head of the relevant UEA group was one Phil Jones. Upon the release of the ClimateGate emails, Jones had emailed Mann asking that Mann delete his emails on the subject, and also asked Mann to forward the request to others of their collaborators, including one Eugene Wahl. Ms. Weatherford confronted Mann with the email from Jones, and with his own email forwarding the Jones email to Wahl. Mann acknowledged that he had received the email from Jones, and forwarded the email to Wahl, but attempted to justify what he had done by saying that he was not himself asking Wahl to delete emails (he had forwarded Jones’s email without comment), but only forwarding the request to Wahl because he thought Wahl should know what Jones was requesting. Mann also asserted that although Jones had requested him to do so, he had not deleted any of his own emails.

Meanwhile, here’s what was missing from the Mann cross: there was very little to no cross of Mann on the issues of his Hockey Stick chart, or of the “science.” I did miss some of the cross on Monday morning, so there may have been some of this; but I did not miss much, so whatever there was on this subject must have been brief. I do not criticize the defense for this. It is rarely fruitful to try to cross-examine a technical witness on the subjects of his technical expertise. He can respond with a stream of technical verbiage that may be completely fake, but the jury can’t tell. Best to stick to matters going mostly to credibility, which is what the defense did here.

After Mann’s own testimony, his lawyers called Rand Simberg as an adverse witness for the plaintiff. Recall that Simberg is Steyn’s co-defendant, and the author of one of the blog posts challenged in the suit, this one published at CEI. (The Steyn blog post challenged in the suit was actually a response to and comment on the Simberg post at CEI.)

I think the main idea of Mann’s lawyers in calling Simberg was to try to establish the “actual malice” element that is required when a defamation claim is brought against a “public figure” like Mann. They asked Simberg, for example, about the Penn State and NSF investigations of Mann’s work, trying to get Simberg to acknowledge that Mann had been “exonerated.” This gave Ms. Weatherford the opportunity on her cross to ask Mr. Simberg about how those investigations had treated Mann’s forwarding to Wahl of the Jones email requesting deletion of documents. Simberg responded that the investigations (I don’t recall if it was one or both) had praised Mann for not deleting his own emails, but had failed to address his forwarding the email to Wahl — Wahl having then proceeded to delete his own emails. Simberg expressed scorn at the investigations for not criticizing Mann for this conduct.

At the end of the day today, the defendants called their first witness, a guy named Abraham Wyner. Wyner is a professor of statistics at the Wharton School — interestingly a part of the University of Pennsylvania, where Mann himself currently teaches. Wyner and a co-author had published a pair of statistical papers on temperature reconstructions back around 2011, which papers apparently addressed Mann’s work.

In the short amount of his testimony so far, Wyner has mostly covered his own background, and the question of what a statistician brings to climate science, and particularly to temperature reconstructions. However, just as the day was ending, Wyner was asked for the main opinions he had formed as to Mann’s temperature reconstructions. Wyner responded that in his opinion Mann’s techniques for using data were “manipulative” and that his result was “misleading.”

That’s where it ended. We will await Professor Wyner’s explanations tomorrow.