Climate Change

Judge Strikes All of Michael Mann's Expert Witnesses from Libel Suit

A week after granting summary judgment for another defendant (CEI), the judge rejects all but one of the proffered experts.

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Climatologist Michael Mann suffered another setback yesterday in the defamation lawsuit over critical blog posts published by the Competitive Enterprise Institute and National Review. Last week, the D.C. court granted summary judgment for CEI, leaving writers Rand Simberg and Mark Steyn as the only defendants left. (National Review had previously been dismissed from the case.)

In a 55-page order, Judge Irving excluded all but one of the expert witnesses offered by each side in the case. Judge Irving struck all seven of the expert witnesses offered by plaintiff Mann and one of the two expert witnesses offered on behalf of the defendants. Only one expert witness offered by the defendants, Dr. Abraham Wyner, an expert on statistical methods, was not excluded by the order.

Here is how Judge Irving set the stage:

Importantly, this is a defamation action arising out of two blog posts written individually by Defendants Steyn and Simberg. The litigation does not intend to answer any questions about the existence of climate change or global warming. The subject statements concerned and criticized Dr. Mann ("Plaintiff") personally for his work in producing a model of rising global temperatures, which model is known publicly as the Hockey Stick graph. The statements accused Plaintiff, inter alia, of "molest[ing] and tortur[ing] data in the service of politicized science[,]" "engaging in data manipulation[,]" and creating the "fraudulent climate-change 'hockey-stick' graph[.]" Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1262-64 (D.C. 2016), as amended (Dec. 13, 2018), cert denied 140 S. Ct. 344 (2019). Plaintiff claims that the statements are defamatory and false. Defendants, on the other hand, contend the statements are not defamatory and are, indeed, true. Defendants seek to offer the testimony of two experts in the field of climate science and statistics, to lend to the credence and the legitimacy of the allegedly defamatory statements. For his part, Plaintiff proffers seven experts to support his claim that the statements are defamatory. The question for the Court is whether it may, as gatekeeper, admit into evidence the witnesses' opinion testimony and, if so, whether the subject matter of the testimony should be limited in any fashion.

Applying Rule 702 of the Federal Rules of Evidence, and the Daubert standard for scientific evidence, Judge Irving concluded that most of the proffered expert testimony was inadmissable because the experts failed to identify the methodology they used in reaching their conclusions about the contested statements. As Judge Irving explained:

none of Plaintiff's proffered experts explain the methodologies that they used to formulate the opinions contained in their reports. This error, in and of itself, is fatal because the Court is rendered unable to determine whether the Parties' experts used reliable methodologies. . . .   [A]s gatekeeper, the Court cannot allow an expert to testify concerning documents and articles that they have reviewed, unless the expert can establish that they have used some technique or methodology that systematically gathers, organizes and catalogs the documents such that another expert with similar training could follow the same procedure and arrive at the same result. . . .

The methodologies of the expert must be grounded in the scientific method, such that another person with similar expertise could replicate them. See Daubert 509 U.S. at 591. Reviewing a selection of documents, summarizing them, and giving an opinion about their conclusions is not a proper methodology grounded in the scientific method, but, unfortunately, it is precisely the methodology used by most of the proffered experts, here. For that reason, the Court is constrained to grant all of the subject motions and exclude all of the proffered expert testimony, with the exception of Dr. Wyner's expert testimony.

So, for example, here is a portion of Judge Irving's discussion of why he found the proffered testimony of Dr. Naomi Oreskes wanting:

When asked about the methodologies that she used in this case, Dr. Oreskes responded: "If you want me to tell you what my method is, it's reading and thinking. We read. We read documents. And we think about them."

That is the problem, here. Reading and thinking about documents are not the types of "reliable methodologies" typical of an expert witness, which leaves the Court unable to distinguish why Dr. Oreskes is more capable than the average juror, who can also read and think about documents. See Parsi v. Daioleslam, 852 F. Supp. 2d 82, 89 (D.D.C. 2012) (rejecting an expert opinion based solely on the experts "reading and viewing" and finding that reading, alone, does not constitute an acceptable methodology). Dr. Oreskes "reading and thinking" have not been peer-reviewed, have no known success rate, and cannot be replicated by other experts in her field. . . . Dr. Oreskes opinion is not derived from the scientific method and is more aptly described as a historical narrative or research compilation than scientific testimony. See Daubert, 509 U.S. at 590; Meister, 267 F. 3d at 1127 (finding that to identify scientific testimony, "forces the court to focus on principles and methodology, not on the conclusions they generate, and thus demands a grounding in the methods and procedures of science, rather than subjective belief or unsupported speculation.") (internal citations omitted.)

On the other hand, Judge Irving found Dr. Wyner's proffered testimony on statistical methods to meet the applicable standards.

In sharp contrast with the reports of the other experts that the Parties have proffered, Dr. Wyner's report offers substantial analysis and explanation of the scientific principles and methods he employed in forming his opinion. Dr. Wyner, a trained and recognized statistician, explains there are "aspects of Dr. Mann's work that can reasonably be construed as manipulative, if not in intent than in effect, as the word is used in common parlance." Wyner Rep. ¶ 9. Plaintiff argues that Dr. Wyner's opinion is "little different than the Curry opinion expressed in her report." MIL Curry Mem. 9. A comparison of the two reports controverts this theory. Dr. Curry seeks to offer a review of criticisms of the Hockey Stick and excerpts of the polemic surrounding the graph, all to support her expert opinion that it would be reasonable to call it fraudulent. Dr. Wyner, in contrast, offers detailed analysis of the statistical methods used to construct the Hockey Stick graph, and why the methods may be reliable and, thus, tending to support a basis for Defendants' statements.

For example, Dr. Wyner states that "constructed random sequences, simulated like playing cards drawn from a deck, are no less skillful for reconstructing temperatures than naturally occurring proxies." Wyner Rep. ¶ 33. He explains in detail how he applied "crossvalidation," which is "an effective method of exploring and countering overfitting and measuring model reliability accurately." Wyner Rep. ¶ 38 n.13. Plaintiff does not, and likely cannot, assail the principles and methods that Dr. Wyner applies. His opinion is plainly beyond the ken of the average juror, and his testimony regarding the reliability of the Hockey Stick graph will be useful in aiding the jury's determination of actual malice and falsity.

The court's order does not necessarily mean that all other expert testimony will be excluded. Judge Irving noted his "expectation that the Parties will likely attempt to elaborate on the methodologies that their experts used in subsequent pleadings," but for now, the order stands as another blow against Dr. Mann's case, nine years after the suit was first filed.

Finally, as I noted in my last post on this litigation:

DISCLOSURE: As I've noted in prior posts on this case, I am a contributing editor at National Review Online, which means I have a fancier byline when I submit articles to the publication and occasionally contribute to The Corner and Bench Memos. It is not a salaried position. I also worked at the Competitive Enterprise Institute from 1991 to 2000 — many years before the events at issue in this litigation. If either of these facts makes you suspect bias on my part, so be it.

Note that while I was once something of a climate skeptic (much like Jerry Taylor), my views have changed. Today I have profound disagreements with CEI on the subject of climate change, having argued in defense of the scientific "consensus" on climate change and in favor of a carbon taxamong other measures to address the climate threat. My interest in this litigation arises from this implications for robust debate on matters of public concern, as I explained in this post.

NEXT: People Who Feel More Productive When Working At Home Are Not The Best Judges Of Their Own Productivity

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  1. One can hope that good sense will prevail and than Mann’s vindictive law suits will be turned into a strong countersuit.

    1. Are vindictive lawsuits actually illegal?

      1. Not per se. There are causes of action for frivolous suits or abuse of process or the like. But whether something is vindictive really doesn’t matter if the person has a probability, however slight, of prevailing.

        1. Is this lawsuit something that could be considered abuse of process? I mean, is there a credible case that could be made? My assumption is maybe….but only if Mann is instructed by the judge to show the data and then refuses to produce the data to the judge.

          1. Doubtful, because he is seeking a damages remedy for defamation: something the Court can provide. Abuse of process is when you are instituting a proceeding for the purpose of obtaining something the court would ordinarily not be able to provide you. For example, if you are a landlord and you file for an anti-stalking protection order against a somewhat problematic tenant to get them to leave your building instead of going through the normal eviction process, that would be abuse of process.

            1. Ah….that makes sense. Thanks for the explanation. Love learning about this stuff.

    2. Attorneys fees after all these years would be more devastating, a countersuit would be pretty risky, and expose Steyn and Simberg to their own liability.

      Word is that Mann’s suit is being bankrolled by the David Suzuki foundation, which has about 17 million in assets, attorneys fees could take a big chunk of that, assuming they could be on the hook for attorneys fees, and not Mann himself.

      But the really interesting thing here is that it was Steyn’s statistical expert that was approved, which almost certainly means that Mann will be forced to release his underlying data, which he has refused to do all these many years, even though it’s required by the peer journals he published his hockey stick papers in. They just let it slide, but I don’t think the judge is going to.

      If Mann drops the suit now rather than release his data, which he did in another lawsuit in Canada, I don’t think the judge is going to be amused.

      1. Mann’s experts don’t seem relevant to me.

        The point is simply that there is a legitimate reason to believe that Mann manipulated his data.

        Mann’s experts would have to prove the negative.

        Mann’s lawsuit is a classic example of the process being the punishment.

        1. Mann has to show that Steyns claim is false. He can do that by showing that his data is accurate. That’s not proving a negative.

          1. It wasn’t, IIRC, the data which was claimed to be fraudulent. It was the methodology.

          2. But his “hockey stick” graph was NOT accurate.

            Which is why he’s eventually going to lose

        2. Bubba Jones comment – “The point is simply that there is a legitimate reason to believe that Mann manipulated his data.”

          That is a good point – but it also explains the reason Judith Curry got struck.

          She was going to testify that there is substantial doubt in the scientific literature and in the public domain showing that casts doubt on Mann’s work. But she got struck because she could not testify , nor was a expert, on Simberg’s or Steyn’s state of mind as to what either of them believed.

          1. This is good. Dr Curry would have been needed if the rest of Mann’s crew had been allowed in and it became a “monkey trial” on catastrophic global warming. With them excluded, the judge is focusing on the actual merits of the statistical claims, and she’s not necessary to the case.

            To be frank, I’m ecstatic. I didn’t think we’d get a judge with actual understanding of scientific and mathematical matters. I was worried about the courts being blinded by technobabble like so much of our culture on environmental subjects. By focusing on the actual matter, this gives Steyn a strong chance of winning.

      2. An injunction forcing Mann to admit that he was wrong would be priceless…

      3. Kazinski comment – “But the really interesting thing here is that it was Steyn’s statistical expert that was approved, which almost certainly means that Mann will be forced to release his underlying data, which he has refused to do all these many years, even though it’s required by the peer journals he published his hockey stick papers in. ”

        There seems to be confusion and misrepresentations from both sides on what data has been released. Most of Mann’s data has been released along with the methodology, though it did take some time for that to happen.

        What has not been released is the r2 stats which show the HS results are not robust ( not robust is a polite term)

  2. BRAVO to a judge with the courage to say that “just because we say so” isn’t good enough — to actually hold Mann to the “science” that he purports to profess…

    As an aside, Michael Mann is yet another product of UMass Amherst….

  3. In Mann’s case apparently not. It is not so surpizing that a charlatan can dress up his vindictiveness in acceptable clothing. That has been his fraudulent stock-in-trade for many years.

  4. I read documents and I think about them, so that makes me an expert, lol. I am going to start using that line.

    1. I actually had to read that line twice, because when I first read it, my initial thought was, “No way anyone could possibly be that idiotic in front of a judge. There is just no way. I must have read that wrong. Lemme go back and reread it.” Then I re-read it. And laughed.

      1. Doesn’t the judge know who she is?

        1. Clearly not. 🙂

      2. The climate science community has not been held to any standards for decades now. They have routinely kicked out anyone who disagrees or even criticizes their work. This often leads to laughable conclusions (I read one paper that said a mass extinction would be caused by a pH change of 0.01 in the ocean). The IPCC is barely more than a rubber stamp.

        The fact is that much of climate science is poorly constructed models built on top of models built on estimates of data.

        To compare, a judge’s closest experience would be with medical experts in malpractice suits, or water lawsuits with actual test results and checklists to determine if something is considered “wetland”. When you are used to test methods, lab reports, and explicit graphs, wild extrapolations are just not convincing.

        Climate Science as a whole is thinking they will get deference, but find that they are going into a dissertation defense. They are getting blindsided.

      3. This is not idiocy by the expert; it is incompetence by the lawyer proffering her to the court. What she apparently said was a bit inarticulate, but not stupid. The problem is that it doesn’t match the role of an expert in litigation. Mann’s lawyer should’ve done a much better job educating her about that role and prepping her to testify about it. “Trust me; I know a lot about the subject and here’s what I think” is not the way expert testimony works under the 702/Daubert regime. Experts cannot just state their conclusions. Based on the opinion, it was not just Oreskes whose testimony had this fatal flaw; it was all of Mann’s experts. The common link there is Mann’s lawyer.

        And for all the gloating in the comments by people who don’t like Mann: these errors may be fixable. The experts may ultimately be able to testify; Mann’s lawyer just needs to do a better job explaining why they should be permitted to do so. (To the extent they can’t testify, it’s not because the court is finding that what they’re saying is incorrect; it’s because the court is finding that what they’re saying is unhelpful to the jury. Some of it is unhelpful because it is being proffered to address the issue of whether climate change is real, which is not the subject of the case.)

  5. “Dr. Oreskes “reading and thinking” have not been peer-reviewed, have no known success rate, and cannot be replicated by other experts in her field.”

    That in a legal opinion disallowing her as an expert witness is going to follow her around a long time. She has also been very active in the Exxon Knew lawsuits, not only proposing the lawsuits, but receiving undisclosed retainers from the attorneys, and testifying before judges that take their Daubert responsibilities less seriously.

    1. Cheers to the Judge for understanding peer review better than Mann’s reviewers.

    2. I’m not sure what she could be an expert in, anyway.

      Her undergrad degree was in “History of Science”.
      Her PhD was in “Economic Geology”.
      Her professional work has been split between teaching geology and writing about environmentalism. She also writes questionable books and papers about environmentalism.

      So, this probably won’t hurt her at all.

    3. That in a legal opinion disallowing her as an expert witness is going to follow her around a long time. She has also been very active in the Exxon Knew lawsuits, not only proposing the lawsuits, but receiving undisclosed retainers from the attorneys, and testifying before judges that take their Daubert responsibilities less seriously.

      Except that this judge went out of his way to explain why her Exxon-related methodology is reliable in a way that her methodology here is not.

  6. I had a side business doing 3D heat and fluid flow modeling. As soon as Mann used the term “massage the data”, I knew he was full of it. Data is data. If you alter it, it is no longer data. If he was using temperature as a data point the only “alteration” that I could se being valid would be the conversion to one measurement unit standard.

    Long before this became an issue, I worked at a small airport. One of the duties was to make weather observations four times a day. These were entered into a ledger book. When the airport got an automated weather observation system, these books were discarded. They went back to 1925. The instruments were in the same location that they had been the entire time. The thermometer was the original, made in 1923. If I knew then what I know now, I would have kept those books and entered them into a spreadsheet and plot the temperature graph to see what it showed.

    1. As soon as I saw that he was from UMass, I kinda knew….

  7. Science-disdaining, superstitious, expertise-hating, half-educated, virus- and global warning-flouting, disaffected right-wingers are among my favorite culture war casualties.

    And voracious consumers of conspiracy theories and the Volokh Conspiracy.

    1. No Arthur, clingers read. Clingers read documents and think about them. That makes Clingers experts. 🙂

    2. Do you have macros for these inanities? If not, you should program some. Would save you a lot of typing.

    3. Sadly Artie, knowing he’s losing another one, resorts to the same tired bigoted hateful posting.

  8. One thing we know for sure: This decision was definitely not made by any expert in the law.

    1. Why do you say that? His job under Daubert is to weed out junk science. Sounds like that is what he did.

      1. And how did he do it? By reading documents and thinking anout them. That is, in precisely the manner he ruled was non-expert.

        1. Almost as if the job of a judge and the job of an expert witness testifying in court are two different things.

  9. Almost all climate data is a sham and pure junk so this is not surprising. The only thing that is surprising is that liberals continue to believe the whole charade all while deriding conservatives for daring to think things like the election might have been rigged.

    1. Well the first one has been studied by many many experts for decades by people with relevant background and most of the prominent attackers have little to no background in climate science or any science for that matter.

      The second one was an obvious lie made up by a known liar and sore loser (he accused Ted Cruz of rigging the Iowa caucuses too). This was refuted by people who actually have experience in running elections. The lead proponents of the lie aren’t experts in elections but a few lawyers with delusions of grandeur and a pillow salesman. Seriously.

      So there is a perfectly reasonable explanation why the first is credited and the second derided.

      To drive this analogy home: there is a reason people believe doctors when they say they are going to need chemotherapy and deride people who believe emails about Nigerian princes with frozen assets.

      1. hahhahaaa…..”experts” yeah…..some people that apparently know how to “read and think….”

        The problem with heaping lies upon lies is eventually even the people who knew it was a giant lie start believing it and forget that the whole thing was a scam to try to push the liberal agenda. And that is the reality of the global warming crowd.

        As far as credibility, I would trust the CEO of a business that was built from the ground up selling something every American will use in their lifetime rather than that of an “academic” who spent their entire professional career sucking at the big university-governmental teete.

        1. So you think a professional salesman whose professional career depends on people believing the things he’s selling are better than the same or similar products is more credible than someone who has dedicated their entire life to studying something?

          If that’s actually the case (I doubt you are that ridiculous when the stakes are more personal to you) I truly am worried that you are going to die at a young age from something treatable while using essential oils instead of listening to your doctor…

          1. Believe it or not, people waste their lives “studying” things all the time. The university down the road is full of people like that. And, no, trying to say I spent a lot of time doing something stupid does not make you qualified or smart.

            1. I’m going to assume you agree with me that expertise matters when you think the stakes are personal. Everything else is “wasteful.” Which is pretty fucking arrogant dude.

              1. The fundamental problem is that you don’t have a really good idea about what expertise actually is.

                Perhaps you should take a clue from Judge Irving ?

                1. I know enough to know what I don’t know and know enough to know how expert knowledge is produced and why that will consistently give me better results than my own guesses about the state of the world.

                  1. No, the problem is you really don’t know what you don’t know and that starts with nature of expertise. People in your in your demon haunted world would still “be getting better results” by chucking your daughters into cenotes because those Mayan priests are experts. See, they can predict the next eclipse !

                    You listen to the priesthood, understand nothing and claim that others should be following your lead. Experts are experts only because they provide shortcuts to solutions and for no other reason. If they can’t explain the path they took, they simply are not experts.

                    1. Would you ask your mechanic to perform surgery on you? Why or why not?

                    2. Would you ask your mechanic to perform surgery on you? Why or why not?

                      Again you are being silly and you have no understanding of what makes an expert. What point are you trying to make ? A mechanic is less likely to have access to the set of objective facts like physiology and surgery techniques. You know … those things a surgeon would tell me if I actually asked ?

                      The thing that makes a surgeon an expert is the fact that he “can” answer those questions. I am also not having surgery done by anyone who can’t answer a single question about the procedure and simply states: “I am an expert”

                    3. See the thing is, true experts can explain the path they took. You’re just rejecting some of them for ideological reasons!

                    4. See the thing is, true experts can explain the path they took. You’re just rejecting some of them for ideological reasons!

                      Says the guy who really, really wants to believe. The problem is that the argument path needs to reference something objective and reasoned. If your argument boils down to “Well Chak says so” and I am an expert, you are going to be labeled an idiot not an expert. “I read books and think” is nothing short of intellectually pathetic.

              2. There is a whole subclass of people that parade as “experts” to give legitimacy to their political preferences and agendas. These are the snake oil salesmen of our times.

                There is a big difference from someone who has dedicated themselves to the study of actual knowledge that will help their fellow man, and those who have manufactured credentials through an assembly line system designed to make “expert” useful idiots. This distinction is wholly lost on you though, that is if you are even capable of making it.

                1. No I think the distinction is something in your imagination to justify your own ignorance and arrogance. Socrates was taking about this over two thousand years ago.

      2. Lawtalking guy –
        Curious if you actually read the court order, including the references in the court order to the experts depositions.

        Its pretty clear from the the Judges references to the depositions, that most of the experts were not really experts. Holden & Orseka’s are two prime examples of non experts that got struck.

  10. That really has been Mann’s problem, with his Hockey Stick – it very much appears to have been the result of bad statistical techniques. I choose to believe that it was primarily because tree ring counters, like Mann, didn’t have a good enough of a statistical background to see the source of their errors. And wouldn’t hire a good statistician, out of either pride or arrogance. Inadvertent, not advertent. And it was expert statisticians looking at Mann’s results who first cast serious doubt on his work. (Interestingly, the study claiming that 97% of “climate scientists” agreed with the CAGW theory excluded statisticians, as well as physicists and astrophysicists (who would be tempted to notice that the primary drivers to Earth’s global temperature are external, such as solar radiation, earth tilt, distance from sun, etc, and the alleged CO2 effects are in the noise).

    1. Interesting statistic. 100% of people whose job it is to sell a heap of lies, make a living on doing so, and are a sizable portion of the machine which pushes a political agenda believe 100% what they sell isn’t a stinking pile of garbage. Who would have thunk?

      1. So you agree that Trump is a liar?

        1. All politicians are liars.

          I believe that Trump, more than any other president since 1989, ran for President on what he actually was going to try to do

          Certainly he’s far more honest than any Democrat President since Carter

      2. I don’t know. I suspect people like Tucker Carlson do know they’re peddling BS. (Wasn’t that his defense in some lawsuit – that everyone should know he’s a liar, like Sydney Powell’s?)

        Which makes them even more loathesome than if they believed what they are selling.

        1. Which “lie” are you talking about? Besides, opinion is a defense in a defamation suit, and that means that if he had reason to believe what you call a “lie”, then it probably isn’t defamation (which is the basis for the lawsuit).

        2. “Wasn’t that his defense in some lawsuit – that everyone should know he’s a liar…”

          No, that was fake news published on NPR.

          Fox News’ lawyers correctly argued that when Carlson said that Karen McDougal’s demand for hush money was “a classic case of extortion” nobody thought he was making legal commentary about the crime of extortion, but was referring to extortion more generally.

    2. It’s worse than that. Woke “scientists,” along with NASA, NOAA, educators, and others have gone so far as to assert and teach that the green house gas warming effect is responsible for the fact that the earth’s atmosphere is warm, which is utter nonsense.

      1. I don’t think that’s really disputed. So, kind of a straw man there.

    3. I believe the “97% of ‘climate scientists’ agreed with the CAGW theory” narrative never let it be known that the number only included those that responded to the questionnaire. And, the number who responded was very small compared to the number of questionnaires that was sent out. So basically, it was 97% of those that RESPONDED.

      1. And, as I noted, it only counted approved Climate Scientists” and not statisticians, physicists, and astrophysicists. But if your training was in tree ring counting, your opinion was counted.

      2. It’s worse than that, their definition of consensus was so broad it includes scientists than pretty much echo my views: there has been a modest amount of warming and at least part of it is due to human activity, but it has been more beneficial than harmful, and is very unlikely to turn into a serious problem.

        Their definition of consensus includes any scientists of whatever discipline that thinks there has been any warming and at least some of it is due to human activity. The whole thing is ridiculous, defining a consensus that means nothing, then using that ‘consensus’ to inaccurately brand anyone except the far extreme as outside of it.

      3. CindyF you are just touching the surface of the errors in the various 97% consensous studies.

    4. Mann’s statistical skills should be evident by the fact that he at one point calculated the variance of a single data point.

      Of course, while that’s worse than most, my experience during the years I did provide statistical support to academics was that they were very ignorant about the topic, and very upset that their data would frequently not give them the answer(s) they wanted.
      “Well, what if we…” was one of the most common questions, and it never ended in anything good.

      “Science” in modern times has a serious problem, and much of it can be traced back to poor understanding or use of statistical methods.

  11. Speaking of science-flouting losers, here is a mask mandate conservatives can embrace.

    Is it time to invoke the mercy rule and declare America’s culture war over? Conservative ideas, citizens, and communities are just not competitive in modern America.

    1. No Arthur….Clingers are busily reading documents and still thinking about them. No time for Mercy. 🙂

  12. Now why would you say that? It seems to me the Judge followed the legal standard to a T:
    “Judge must find it more likely than not that the expert’s methods are reliable and reliably applied to the facts at hand….
    Scientific knowledge = scientific method/methodology: A conclusion will qualify as scientific knowledge if the proponent can demonstrate that it is the product of sound “scientific methodology” derived from the scientific method.”

    And the Judge left it open that the experts could address the judges concerns by demonstrating that their testimony was grounded in the scientific method and repeatable.

    However it is pretty certain that Oreskes will not qualify because she isn’t a scientist, and a scientific historian really has nothing to offer on the specific issues of this case.

    I’ll also note that the judge has repeatedly said that global warming is not on trial here, the issue is not whether the planet is warming, or the rate of warming. The issue is whether Steyn and Simberg had a basis to say that Mann “tortured” the data to manufacture his hockey stick graph.

    1. It sounds to me like both sides were hoping to “win the case through the experts”. And post-Daubert, a lot of judges are far more resistant to that.

      1. Not to mention that most hired experts are pure bunkum.

        Old joke:

        What’s the difference between an expert witness and a whore?

        . . . . . .

        Perjury.

        1. Ouch! But that is hilarious. I had not heard that one before. 🙂

    2. In as much as it’s been demonstrated that you get a ‘hockey stick’ if you put randomly generated data into Mann’s formulas, that issue should have been resolved years ago.

  13. I don’t really understand what Mann’s endgame is here. 9 years, a f*k ton of legal fees, and nothing to show for it.

    1. He’s a grifter, making money off the lies and media interest while this drags on.

      If he eventually loses, he’ll grift off the martyr act.

    2. His end game is that eventually he dies of old age, the case is dismissed as moot instead of his losing, and history records that he was vindicated. While he spent his life spending tons of other people’s money to do it.

      At this point he’d have to hurry up on the dying part to accomplish it, but given how long this has dragged out, it wasn’t an unrealistic plan.

  14. I sympathize with polemicist Steyn for this dragging on so long, but have now forgotten earlier defense choices. Did they pass on rhetoric to focus on statistical analysis? Seems slightly less legally risky to argue that fraud was used in a broader sense.

    1. Sure, it’s risky, if Mann was innocent. Steyn was in a “bring it” mood, wants to hang Mann’s head on his mantle, over the fireplace.

  15. Wow. An ‘expert’ with a PhD from Stanford University Graduate Special Program in Geological Research and History of Science.

  16. Not a lawyer, so please help me out on this expert witness stuff. I was under the impression that expert witnesses could come from various fields, not just scientific fields. If the case turns on the question whether someone’s printing bill was reasonable, can’t a lawyer bring an expert and experienced printer in to testify? Or is that all over with? And if experts other than scientists are permitted in court, then why were criteria for dismissing Mann’s experts reliant only on science standards? Or was there more to it than that, and I just missed it?

    To put the problem in a more general way, I suggest that among the ranks of historians of science you can find figures better qualified than any judge in the nation to evaluate scientific processes and scientific evidence. If a scholar wins renown over decades by studying and publishing about historical uses of scientific methods, is that person’s opinion to be dismissed in court because it isn’t, “reproducible?”

    1. Daubert is the standard required in federal courts, although judges follow it unevenly. Lesser standards are used in some state courts.

      From Law.Cornell.edu

      “Under the Daubert standard, the factors that may be considered in determining whether the methodology is valid are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4)the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community.”

      “In Kumho Tire Co. v. Carmichael 526 U.S. 137 (1999), the Supreme Court further clarified that the Daubert factors may apply to non-scientific testimony, meaning “the testimony of engineers and other experts who are not scientists.”

      Oreskes may know science history,but does she even have a way of assessing her error rate, is her research reproducible? Science history wouldn’t be much different than 5 distinguished civil war historians writing about the causes of the civil war, it would be very educational, but their conclusions would not be reproducible because their opinions are their own, and how would you assess their error rate? In the end it would be inconclusive, and not fit for a court trying to determine facts.

      1. Science history wouldn’t be much different than 5 distinguished civil war historians writing about the causes of the civil war, it would be very educational, but their conclusions would not be reproducible because their opinions are their own, and how would you assess their error rate? In the end it would be inconclusive, and not fit for a court trying to determine facts.

        Kazinski, thank you for that. I am still a bit in the dark. To repeat my question, would it be correct that an expert printer could not testify in a case contesting a printing contract? Daubert is read to forbid that? How about a medical expert in a malpractice case, testifying to the standard of care? I thought that happened all the time.

        The bit at the top, which you wrote, struck me as especially useful to sharpen the point. Although it often seems unknown to the legal profession, there is such a thing as historiography—a set of standards which, however loosely, guide professional practices among historians. There are principles of historiography—standards, for instance for reasoning and for competent evidence— which almost all practicing professional historians would agree with, and which many non-historians, including lawyers, flout without giving them a thought. For instance, if your causes of the Civil War example came to court, and one of the supposed experts attempted to cite as evidence an occurrence from 1867, his opponent would remind the court that historians insist that time not run backward, and that in historical analysis, causes must precede effects, or be contemporaneous with them—because historical actors knew no more about their future than we do about ours. Lest you suppose that such thinking is too obvious to warrant legal notice, I invite you to re-read Heller with an eye to picking out such examples. Scalia pretty clearly knew nothing of historiography, or maybe just held it in contempt. Eugene Volokh has written extensively on founding era First Amendment interpretations, while supporting his arguments with post-founding era examples stretching deep into the 19th century. Such readings may seem quite plausible, but they are never a source of historical insight.

        Indeed, among non-historians it is common to suppose that secondary sources which post-date an event—but which are located much closer in time to it than present historical work—enjoy a presumption of superior insight. You see that (generally mistaken) presumption often, in various contexts. One especially common context figures in originalist arguments, when legal arguments try to assess original contemporary understanding of words by consulting near-time-adjacent dictionaries. It is a dubious practice, at best. As a rule, historians now have more complete sources to make those assessments than were available to any lexicographer then, or even closely post-then. No founding-era lexicographer had access to even a notable fraction of the contemporaneous documents which historians can now consult in various archives.

        Mistaken historical reasoning and dubious historical evidence are commonplace in courtrooms. It would be a genuine shame on the legal system if it forbade the use of expert historical witnesses to point out the mistakes. Likewise with other professional fields, such as medicine, as I noted above. Maybe the judge in the OP case could use some pointers.

        1. If the witness is expected to testify about history, it’s fine to hire a historian as a historical expert.

          This is a case evaluating if scientific data was falsely stated. You need an expert in the scientific field, not a historian.

          1. m4019597, I thought it was (among other things) a question of whether data was fraudulently stated. In science, mistakenly interpreted data are an everyday occurrence, not routinely equated to fraud. What do you suppose a historian of science does, by the way?

            1. What do you suppose a historian of science does, by the way?

              In this case, lobby for neo-religious progressive/environmental causes ?

              As far as I can tell a historian of science is more like a food critic, art critic or fashion writer and simply offers subjective opinion on objective things. Her opinion on the scientific method has about the same substance as a GQ writer telling you how to dress in the morning. Important to a certain clique, but little else.

              1. “as far as you can tell.”

                Which isn’t very far because, 1) you’re not in the archives reading the primary sources, 2) you didn’t do any original research on the topic or master the historiography of the topic.

                1. You, like Lathrop, seem mighty confused on the boundary between the subjective and the objective.

                  1. Um isn’t dismissing someone’s expertise without doing any original research yourself the most subjective thing imaginable?

                    I mean if there is such a thing as objectivity wouldn’t the objective person be the one who looked at the relevant historical materials (the historian) and the subjective one be the person making clams based on their gut instincts (you)?

                    1. You remain confused.

                      The objective are those things based in reality that we agree upon. If some dimwitted young prog can arrive at the same observation as a crusty old libertarian and this observation is shared by others, we call it objective. The physicist in me would note that the corollary is what we call objective is what can be measured.

                      The subjective is the set of things that exist only in your own personal world. The essence of narcissism is the failure to be able discern the difference.

            2. “In science, mistakenly interpreted data are an everyday occurrence, not routinely equated to fraud.”

              Yep.

              But when you take a data source, pick the parts of it you like, and throw out the parts you don’t like, without notice, explanation, or justification, then you’re out of the realm of “mistake” and into the realm of “fraud”.

              And that’s what Mann did

        2. To answer your direct question, no an expert printer could not testify in a case contesting a printing contract. No matter how expert the printer is with the technical specifications of the machines, process, inks, etc, that person has no special expertise in reading, understanding or interpreting the contract. Your expert print could, however, likely testify about failure modes in a product liability case or product features in a patent infringement case.

          Likewise, a medical expert can testify to the standards of medical care. In all those cases, there is a clear, objective set of standards against which the expert’s testimony can be measured. “Believe me because I’m a self-proclaimed expert” is not enough.

          In the specific example of history, it’s entirely irrelevant to this case. No matter what interpretation of “the history of science” you apply, none of it proves or disproves any theory of this particular lawsuit. History might be relevant to some cases – and historical experts certainly could and probably should testify in those cases. Bringing in a historical expert to this case would have been about as relevant as asking your expert printer to testify. But even if a historical expert were appropriate to the case, that expert better have a better description of his/her qualifications than “I read stuff and think about it.”

          1. To answer your direct question, no an expert printer could not testify in a case contesting a printing contract. No matter how expert the printer is with the technical specifications of the machines, process, inks, etc, that person has no special expertise in reading, understanding or interpreting the contract.

            Rossami, how do you know? What if printing contracts have since generations contained somewhat subjective determinations which affect the bill, and those determinations are supposed to be made according to customary practice? An example would be the distinction between an author’s alteration (chargeable) and a printer’s error (not chargeable.) Don’t let the clean sound of the terms confuse you, there can be a world of subjective judgment about whether an error which wasted a 5-figure paper budget got into the final work because of an unclear specification by the author, or by a faulty printer’s interpretation of a valid-but-confusing specification by the author. Who decides, and on what basis? No room for expertise in such a case?

            I mentioned printing because of a real case like that which I covered as a journalist.

            1. Who decides, and on what basis? No room for expertise in such a case?

              Despite your attempt to make it sound esoteric, that’s not at all. It seems unlikely that expertise would be useful in such a case. But (as I noted) the question isn’t whether someone is an expert, but what his testimony is, and what it is based on. An expert who says, “In my opinion based on having worked as a printer for decades, this was a mistake by the author rather than by the printer,” would not be permitted to testify. That’s just a conclusory statement. The fact that it was issued by an expert is irrelevant.

          2. No matter what interpretation of “the history of science” you apply, none of it proves or disproves any theory of this particular lawsuit.

            What if the interpretation of the history of science I apply includes specific study of what history can tell us about what constitutes fraud in science, and what does not, with particular attention to what kinds of data interpretation errors are judged innocent, and what kinds are judged fraudulent?

            Alternatively, what if the interpretation of the history of science comes from an erudite academic who made it his career’s focus to discern from the historical record what the, “scientific method,” has actually been in practice, as opposed to what it is professed to be?

            Do you understand that one theory of this particular lawsuit is that it was libel to publish that Mann committed scientific fraud. What repeatable method do you suppose can be brought to bear to provide a factual and unambiguous answer to whether that happened? Assuming data interpretation which a statistical expert calls faulty, does it follow that every such instance implies fraud?

            1. What if the interpretation of the history of science I apply includes specific study of what history can tell us about what constitutes fraud in science, and what does not, with particular attention to what kinds of data interpretation errors are judged innocent, and what kinds are judged fraudulent?

              Not relevant.

              Mann can’t prevail by saying, “Yes, this analysis was wrong but actually my mistakes were inadvertent rather than deliberate.” He has to show that his analysis was correct. And a historian of science cannot tell whether Mann’s specific mistakes were inadvertent rather than deliberate anyway.

        3. For instance, if your causes of the Civil War example came to court, and one of the supposed experts attempted to cite as evidence an occurrence from 1867, his opponent would remind the court that historians insist that time not run backward, and that in historical analysis, causes must precede effects, or be contemporaneous with them—because historical actors knew no more about their future than we do about ours. Lest you suppose that such thinking is too obvious to warrant legal notice, I invite you to re-read Heller with an eye to picking out such examples.

          You’re confused. An event in 1867 cannot cause an event in 1861; that is true (but also not something a historian’s expertise would be helpful to a jury in understanding). But if you think that what people were saying in 1867 cannot shed light on what people were thinking in 1861, then you’re just discrediting yourself — not lawyers — on the study of history. Particularly if the issue is the use of language.

          No founding-era lexicographer had access to even a notable fraction of the contemporaneous documents which historians can now consult in various archives.

          Perhaps. On the other hand, no historian now has access to even a notable fraction of the contemporaneous oral communications which founding era lexicographers were exposed to.

        4. Kazinski, thank you for that. I am still a bit in the dark. To repeat my question, would it be correct that an expert printer could not testify in a case contesting a printing contract? Daubert is read to forbid that?

          No, Daubert does not forbid that. But your question is too vague, which illustrates your lack of understanding of Daubert. Daubert does not simply ask whether a specific person can testify; it governs what testimony can be admitted. It’s not enough to have qualifications that make one an expert; one must be employing one’s expertise in a rigorous manner in a way that explains things to laypeople that laypeople couldn’t understand on their own. What is your proposed expert testimony going to be about? If the testimony is “Yup; bill looks reasonable,” no, he can’t testify. If the testimony is going to be “This line item on the bill is appropriate because [something technical that it takes specialized subject area knowledge to understand about why the printer had to do X to complete the job]” then he can testify. If the testimony is going to be about whether $X is a reasonable price for a particular service, then an expert may be able to testify — but not an expert printer saying, “Trust me, I’ve been in this business for years, and I assure you it’s reasonable.” Rather, you would need, say, someone who did a statistically-valid survey of the industry and could tell the jury that $X is market level.

          I would suggest that rather than just lashing out based on your supposed understandings of law and history, that you read the opinion linked to in the post. It is non-technical, and explains why the various experts were excluded.

          1. You are saying Mann has to prove his analysis was correct in order to escape being libeled as fraudulent? Any mistake Mann makes turns him into a scientific fraud?

            1. No, I’m not saying that, and I don’t see how anything in the comment you just responded to says anything like that.

              However, since you ask: to prevail Mann has to show not merely that the relevant statements were false, but also that the defendants knew they were false or acted with reckless disregard for whether they were false.

      2. To clarify Lathrop’s question

        The issue in the case was whether Steyn Simberg defamed Mann by claiming his data was tortured. (manipulated the data, statistically played with the data, etc)

        therefore, the judge struck all the experts in climate science and limited the experts allowed under daubert to those experts that had actual expertise is statistics.

    2. “If a scholar wins renown over decades”

      That just tells us that academics like him. it doesn’t tell us that he actually has anything useful to say.

      In your hypothetical, an experienced printer could be an expert witness, and provide data about similar jobs, and what was charged from them.

  17. So what’s Judge Irving’s take on blood spatter analysis, bite mark anaylsis, and hair analysis? Correct me if I’m wrong, but I’m guessing the analysis begins and ends with ‘previously admitted therefore good science’.

  18. Perhaps here the bright line of epistemic trespass is drawn.

    “ The methodologies of the expert must be grounded in the scientific method, such that another person with similar expertise could replicate them. See Daubert 509 U.S. at 591. Reviewing a selection of documents, summarizing them, and giving an opinion about their conclusions is not a proper methodology grounded in the scientific method, but, unfortunately, it is precisely the methodology used by most of the proffered experts, here.”

    The conspiracy of ignorance masquerades as common sense.

  19. “That is the problem, here. Reading and thinking about documents are not the types of “reliable methodologies” typical of an expert witness” I think if that’s actually the case, the large majority of experts are out. Most of them talk about how their expert opinions are based mostly on things like “reviewing the literature”.

  20. The Court must exclude such testimony. A review of Dr. Holdren’s deposition testimony
    reveals that he likely has not read all of the reports and investigations in their entirety, and, at the
    very least, that he has not read them for several years. See Holdren Dep. 75:1-5. Because
    Dr. Holdren’s expert opinion concerning the investigation reports is based primarily on his
    having read a publicly editable Wikipedia page, and not the reports, themselves, the Court finds
    that any testimony that he would offer would not be based on adequate facts. Further,
    regurgitation of secondary sources of information is not a reliable methodology.

    OUCH!

  21. Only one expert witness offered by the defendants, Dr. Abraham Wyner, an expert on statistical methods, was not excluded by the order.

    Mann is toast. Because he most definitely did abuse the data in order to make his hockey stick, and any honest statistical expert (or even just one who doesn’t want to get shredded while on the stand) is going to testify to that.

    Which is why Mann didn’t try to offer a statistical expert: he couldn’t find one who’d take his side

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