Defendants' appeal in Michael Mann defamation case further delays discovery process

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Superior Court of the District of Columbia

Superior Court of the District of Columbia

Defendants Competitive Enterprise Institute and Rand Simberg have appealed Judge Weisberg's denial of their motion to dismiss. One effect of this latest move is to further delay movement to the discovery phase of the lawsuit.

Defendants Competitive Enterprise Institute and Rand Simberg’s Notice of Appeal

Accusing a scientist of conducting his research fraudulently is a factual allegation that can be proven true or false, not mere hyperbolic opinionating. If it is false it is defamatory, and if it is made with actual malice it is actionable. So said DC Superior Court Frederick Weisberg on January 22 in tossing out motions by defendants National Review et al. to dismiss Prof. Michael Mann's defamation complaint -- thus moving the case a step toward discovery proceedings and a jury trial.

But the defendants lost no time in filing an appeal on January 24 with the District of Columbia Court of Appeals. Presumably they and their supporters will argue that this appeal raises a necessary and appropriate freedom of speech issue that must be adjudicated up-front. And of course people will note that defendants would presumably prefer to cut down on their legal costs (while hopefully getting the case dismissed). OK.

On the other hand, it seems that it's the defendants' side of the case that is most reluctant to get on to the discovery phase. This might strike one as odd, since the defendants' support subculture seems to think Prof. Mann's case will be torn to pieces on discovery and that National Review and CEI will be able to demonstrate 'truth' as their defense on the defamation charge. Several commenters on previous posts on this case have taken that position.

CEI has taken what might be called a prosecutorial stance toward climate science and climate scientists for many years, in the service of its radical 'free market' anti-regulatory ideology. Myron Ebell at CEI was quoted in a BBC article in 2005 as saying, in connection with Rep. Joe Barton's congressional inquisition on Mann and his paleoclimatologist colleagues, “We’ve always wanted to get the science on trial” and “we would like to figure out a way to get this into a court of law.” [emphasis added]

So here's your chance.

Excerpt from Sylvia Tognetti at the Post-Normal Times (Rhetorical hyperbole? Or reckless disregard for truth?):

Rather than stand behind their allegations – that Michael Mann has been engaged in fraud and scientific misconduct,  the Competitive Enterprise Institute (CEI) and the National Review (NR) along with two of their journalists. now argue that these were merely “expressions of opinion and rhetorical hyperbole… not assertions of fact”. ...

[U]nless the defendants find other ways to have the case dismissed, it looks like a jury will get to decide whether they were making good faith arguments, or not. In a few previous posts, I reviewed some of the hockey stick allegations to make that case that these so-called climate “skeptics” are not acting in good faith. Rather, that they are engaged in a deceptive parody of science, intended to deceive those least informed, who cannot tell the difference. It starts with the act of calling themselves “skeptics”. ... In those previous posts, I neglected to discuss the role of certain think tanks, such as CEI, who played a lead role in publicizing if not actually fabricating these unsubstantiated claims, and in calling for investigations. However, much of what is known is well chronicled in Michael Mann’s book, and by John Mashey. …

It also looks like Myron Ebell (one of the ringleaders at CEI) will get what he once wished for. According to some of the Mashey Chronicles, back in 2005, when Congressman Joe Barton sent letters to Mann and his co-authors, essentially initiating a witch hunt, Ebell very promptly circulated those letters to an undisclosed email list – possibly before they were even seen by those to whom they were addressed.  Ebell was also quoted in a BBC article saying “We’ve always wanted to get the science on trial” and “we would like to figure out a way to get this into a court of law.”

So one would have expected at least CEI to welcome the opportunity to make their case, and to hear something more from them than the chirping of crickets. However, as Eli has pointed out, the arguments in their Motion to Dismiss, that the statements were “not assertions of fact” is “going to make it tough for them to argue that they were telling the truth about him ... [emphasis added]

Presumably Prof. Mann thought about all this before filing his lawsuit. Thus far he has not given the impression that he is particularly worried about discovery. Are the defendants? Stay tuned. First we'll have to hear from the Court of Appeals on their motion to delay dismiss.

Raw Story's take: We were dead before the ship ever sank

Earlier CSW posts on the case:

DC judge denies defendants' motion to dismiss Michael Mann's defamation complaint (January 23)

Michael Mann defamation lawsuit -- calling on the judge to apply the law of the case doctrine (January 14)

DC Court of Appeals dismisses an appeal by Defendants in Michael Mann defamation lawsuit (December 30, 2013)

DC judge denies another effort to derail Michael Mann's defamation lawsuit (September 13, 2013)

Judge denies National Review's Motion to Reconsider ruling in Michael Mann's defamation case (August 30, 2013)

Michael Mann v. National Review et al. defamation lawsuit - new Plaintiff's briefs (August 19, 2013)

DC Court affirms Michael Mann's right to proceed in defamation lawsuit against National Review and CEI (July 19, 2013)

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6 Responses to Defendants' appeal in Michael Mann defamation case further delays discovery process

  1. Grrretch says:

    The strategy behind the defendants' proceedings was explained to me as follows: I do not KNOW that this is their strategy but it does help explain why their path to get there seems so counterintuitive to the goal they said they seeking.

    The defendants are apparently under the belief that Dr. Mann has filed this suit merely to shut them up and has no intent to proceed to discovery. Or more precisely, the defendants apprently believe that Dr Mann will proceed to discovery but delay and delay and delay the discovery process until such point that defendants are bankrupted and enough rulings have gone the plaintiff's way, that plaintif can then declare victory and drop the suit. Now if this happens and if the defendants did not pursue motions to dismiss under anti-SLAPP procedures, then they've lost the opportunity to then cry "foul" and demand the judge throw out the case thus nullifying any declared vistory by Dr Mann from dropping his suit. In other words, to prevent Dr Mann from doing just that, the defendants may have to follow the dismissal course now so as not to waive their ability to seek it later.

    Again I do not know this to be the defendants stategy but when it was explained to me in this way it seemed to explain why the defendants don't appear to be acting as hypocritical as their actions initially made me think.

  2. kittmc says:

    I think you mean waiving their right to appeal the judge's denial of the motion to dismiss. Call me skeptical too because I believe once it goes to trial that avenue is barred to the defendants. Of course the window might not be shut during discovery. I'm not a lawyer. So if it was a lawyer who told you that I will defer to him. I'm not sure how the DC anti-SLAPP statute is worded but it might make sense to leave open that avenue precisely to prevent a plaintiff from doing just that.

    • Rick - Climate Science Watch says:

      I'm not a lawyer either, but I believe the current state of play is that defendants (CEI) have appealed the denial of their motion to dismiss under the anti-SLAPP act to the appeals court. I believe that issue must be settled before the rest of the case can proceed. If the appeals court rules to dismiss Mann's complaint, presumably that's the end of it. But if, as I suspect is likely, the appeals court upholds Judge Weisberg, than the anti-SLAPP aspect of the case is over with and it moves on to discovery and trial, if it gets that far.

  3. Cheryl says:

    I am a lawyer, though not familiar with the DC statute in question. Is it certain that the motion to dismiss was solely on grounds of that statute? Normally a motion to dismiss is filed under a specific federal rule, and there are well-established standards on which the court rules on such a motion. The description of the Judge Weisberg's ruling sounds like it is under the usual rule...question of fact, for the jury, so it can proceed.
    Again, haven't looked up the DC statute, but I'd be awfully surprised if the motion to dismiss is granted.

  4. John Mashey says:

    1) Note that Mike's book frequently referenced my report that collected a lot of that CEI / Ebell material ... so it is rather plausible that his lawyers know about it. Sooner or later I'll do an update of "Strange Scholarship in the Wegman Report, as a few more facts have come to light, including the almost explanation for how Essex+McKitrick and then McIntyre got hooked into CEI+Ebell & GMI, brought to Washington often, introduced to Inhofe, coached at CEI+GMI meetings, helped with Wall Street Journal, etc. (Essex had invited Fred Singer to speak at U of Western Ontario in early 2001, and the 2nd edition of "Taken by Storm" comments on his and McK's interactions. Late in 2001. Ebell brought McKitrick to speak in Washington,) For years, that had been a missing piece of the puzzle: how did a few not-well-known Canadians get so glued into the machinery?)

    2) As for NR, like CEI, their anti-science PR/lobby efforts go way back, helpful documented for tobacco. See the thinktanks section at end of Familiar Think Tanks Fight For E-cigarettes, including the link to an NR plea to Jesse Helms for help in getting cigarette advertising money back.
    Another contributor to NR is Tom Bethell, whose book "The Politically Incorrect Guide to Science" (i.e., PIG science, with logo) is fascinating in a bizarre way, as well as the the odd connections seen in Weird Anti-Science.

    3) Please, oh please let this case get to discovery. The already-public information offers plenty of ideas on the questions to be asked.

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