A new filing in climate scientist Michael Mann's defamation lawsuit against National Review and the Competitive Enterprise Institute would keep in place earlier rulings by the Court denying Defendants' motion to dismiss and move the case forward from there. Meanwhile, lawyers for co-defendant Mark Steyn, whose writing is a subject of the defamation charge, have dropped him as a client.
A motion by Defendants National Review and Competitive Enterprise Institute to dismiss an amended defamation complaint filed by Prof. Mann is pending before Judge Weisberg in DC Superior Court. (See earlier post DC Court of Appeals dismisses an appeal by Defendants in Michael Mann defamation lawsuit.) In July 2013, Judge Combs-Greene, the original judge on the case, considered and denied the Defendants' arguments for dismissing what are Counts I through VI (out of 7) of Mann's amended complaint. Judge Combs-Greene subsequently denied Defendants’ motions to reconsider the July 2013 Orders.
Now, in filing a Plaintiff's Praecipe in Response to Defendants' Joint Request for Status Conference on January 10, Mann's lawyers argue that, contrary to the Defendants' contention, the "law of the case doctrine" applies to the Court's July 2013 Orders denying Defendants’ motions to dismiss the complaint:
Any arguments that Defendants would make to dismiss Counts I through VI are identical to those already rejected by this Court. ... The law of the case doctrine prevents the Court from revisiting identical arguments unless the July 2013 Orders were not “sufficiently final” or were “clearly erroneous.” Neither circumstance is present here. Accordingly, the law of the case bars this Court from reconsidering (for a second time), the denial of Defendants’ motions to dismiss Counts I through VI.
Moreover, contrary to Defendants’ assertions, the Court of Appeals did not “vacate” this Court’s July Orders denying Defendants’ initial motions to dismiss. ... therefore, the July 2013 Orders are still in force and operate as the law of the case.
(Count VII of Mann's Amended Complaint charges that Defendants' statement that Mann was "the Jerry Sandusky of climate science" was defamatory. The Court has not ruled on that count.)
Not speaking as a lawyer here, but it appears that this filing points in a very different direction from the way the Defendants' supporters were talking about the previous court decision, i.e., it would keep in place Judge Combs-Greene's rulings denying the motion to dismiss, and move the case forward from there. Might Judge Weisberg act to expedite this case, toward the much-anticipated discovery phase?
Also within the past week, Judge Weisberg granted law firm Steptoe & Johnson's request to withdraw as counsel for National Review's fellow Defendant Mark Steyn. Steyn's online writing for National Review is part of the defamation charge. One could speculate that Steyn's lawyers were not very happy about this loose-cannon blogging rant by Steyn, posted on December 24: Mumbo-Jumbo for Beginners.
Perhaps Steyn's beyond-snarky criticism of the former judge in the case, and accusing an opposing attorney of fraud, was the last straw for his lawyers. Perhaps Steyn would be happy to be a martyr on this, i.e., taking a free speech absolutist position rather than waging a defense that he didn't commit libel? An approach that his lawyer and more businesslike co-defendants might be unlikely to share.
To backtrack just a bit on how this case got started, from a post at Climate Progress:
The kick-off for the lawsuit was actually a piece written by Rand Simberg at the Competitive Enterprise Institute (CEI), which referred to Mann as “the Jerry Sandusky of climate science” because he “molested and tortured data in the service of politicized science.” The editors eventually removed the offending sentences, but not before Mark Steyn picked them up at National Review’s online blog. Steyn said he wasn’t sure he’d have “extended that metaphor all the way into the locker-room showers with quite the zeal Mr Simberg does, but he has a point.” He then went on to call Mann’s work on the famous “hockey stick” graph “fraudulent.”
So Mann sued Simberg, Steyn, CEI and National Review for defamation. A previous DC Superior Court decision already concluded in July that there was sufficient evidence of “actual malice” for the lawsuit to proceed, and slapped down the defendants’ claim that their statements were protected under the First Amendment.