The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Punitive Damages Award in Mann v. Steyn Reduced from $1M to $5K,
largely because the compensatory damages were just $1.
Readers of the blog likely recall this lawsuit, brought by climate scientist Michael Mann against columnist Mark Steyn, blogger Rand Simberg, the National Review, and the Competitive Enterprise Institute (see our various posts on the subject). The National Review and CEI had been granted summary judgment in 2021, but in January 2024, the jury found Steyn and Simberg liable for defamation, to the tune of $1 compensatory damages + $1M punitives against Steyn, and $1 compensatory + $1K punitives against Simberg.
For a very quick summary of the facts, from Justice Alito's 2019 dissent from denial of certiorari:
Penn State professor Michael Mann is internationally known for his academic work and advocacy on the contentious subject of climate change. As part of this work, Mann and two colleagues produced what has been dubbed the "hockey stick" graph, which depicts a slight dip in temperatures between the years 1050 and 1900, followed by a sharp rise in temperature over the last century. Because thermometer readings for most of this period are not available, Mann attempted to ascertain temperatures for the earlier years based on other data such as growth rings of ancient trees and corals, ice cores from glaciers, and cave sediment cores. The hockey stick graph has been prominently cited as proof that human activity has led to global warming. Particularly after emails from the University of East Anglia's Climate Research Unit were made public, the quality of Mann's work was called into question in some quarters.
Columnists Rand Simberg and Mark Steyn criticized Mann, the hockey stick graph, and an investigation conducted by Penn State into allegations of wrongdoing by Mann. Simberg's and Steyn's comments, which appeared in blogs hosted by the Competitive Enterprise Institute and National Review Online, employed pungent language, accusing Mann of, among other things, "misconduct," "wrongdoing," and the "manipulation" and "tortur[e]" of data.
For more details, including more on the "pungent language" (such as Simberg's "[c]omparing 'Climategate' with the then-front-page news of the Penn State sexual abuse scandal involving Jerry Sandusky"), see Competitive Enterprise Institute v. Mann (D.C. 2016).
Today's long decision (over 14,000 words) by D.C. Superior Ct. Judge Alfred Irving in Mann v. National Review, Inc. declined to disturb the jury's findings that defendants had libeled plaintiff—including that their statements were recklessly or knowingly false—but sharply reduced the punitive damages awards (as our own Jonathan Adler predicted shortly after the verdict):
"The Due Process Clauses of the Fifth and Fourteenth Amendments prohibit a State [and the District of Columbia] from imposing a 'grossly excessive' civil punishment upon a tortfeasor." …
"The federal excessiveness inquiry appropriately begins with an identification of the state interests that a punitive award is designed to serve." Here, such interest is marginal at best. While "[t]he states have long protected the important reputational interests of its citizens in following the strict liability common law of defamation[,]"neither Dr. Mann nor Mr. Steyn are citizens of the District of Columbia and the defamatory speech at issue here did not take place in the District of Columbia, but rather in the online ether, without any special connection or direction to the District of Columbia. This matter is only before this Court by occasion of co-Defendants National Review, Inc. and Competitive Enterprise Institute, neither of whom participated at trial as summary judgment was previously granted to them. Thus, the usual interests of punishment and deterrence are less pertinent here as the District of Columbia is only involved by default as the forum for Dr. Mann's suit. However, the District of Columbia does have a general interest in upholding jury verdicts of its residents, particularly a jury determination that resulted after three-and-one-half weeks of trial.
[i.] Reprehensibility of Mr. Steyn's Conduct
Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct." In State Farm, the Supreme Court enumerated five "aggravating factors" when considering the reprehensibility of a defendant's conduct:
[1] the harm caused was physical as opposed to economic; [2] the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; [3] the target of the conduct had financial vulnerability; [4] the conduct involved repeated actions or was an isolated incident; and [5] the harm was the result of intentional malice, trickery, or deceit, or mere accident.
The Supreme Court has explained that in determining the blameworthiness of a defendant's actions, a court should consider that "nonviolent crimes are less serious than crimes marked by violence or the threat of violence," and that "'trickery and deceit' are more reprehensible than negligence."
Here, Dr. Mann did not experience a physical injury as Mr. Steyn's conduct occurred entirely online. In addition, Dr. Mann produced no evidence of a financial vulnerability and Dr. Mann's suit involved one instance of Mr. Steyn's attack through Mr. Steyn's posting of his Football and Hockey article—all which weigh against a finding of reprehensibility. However, the jury heard testimony of Dr. Mann's emotional harm and reputational injury caused by
Mr. Steyn's defamatory statements. The Court of Appeals noted in CEI that with evidence of the "noxious comparisons" of Dr. Mann to Jerry Sandusky, "a jury could find[] [such comparisons] would demean Dr. Mann's scientific reputation and lower his standing in the community by making him appear similarly 'odious, infamous, or ridiculous.'"
The jury thus clearly determined that said injury was a result of Mr. Steyn's acting with intentional malice in his publishing the defamatory article, which weighs in favor of Mr. Steyn's conduct being deemed reprehensible.
[ii.] Disparity Between the Harm Suffered and the Punitive Damages Awarded
This BMW v. Gore factor embodies the long-held principle that an award of punitive damages bears a "reasonable relationship" to the compensatory award, endorsing the approach that there must be a "reasonable relationship between the punitive damages award and the harm likely to result from the defendant's conduct as well as the harm that actually has occurred." While the Supreme Court has repeatedly rejected the use of a bright-line ratio, it has also indicated that a "breathtaking" award, such as the 500-to-one ratio in Gore, must surely "raise a suspicious judicial eyebrow." In rejecting the "mathematical bright line between the constitutionally acceptable and … unacceptable" awards for the ratio guidepost, the Supreme Court has explained that "a general concern of reasonableness … properly enters into the constitutional calculus." Indeed, higher ratios may be justified where the "injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine." …
Several courts have adopted the principle that, "when a jury only awards nominal damages or a small amount of compensatory damages, a punitive damages award may exceed the normal single digit ratio because a smaller amount 'would utterly fail to serve the traditional purposes underlying an award of punitive damages, which are to punish and deter.'" To ensure that awards are not constitutionally excessive, these courts compare punitive damage awards to those awarded "in [similar cases] to find limits and proportions," and "assess[] whether a lesser amount would 'serve as a meaningful deterrent.'" …
[H]ere, the Gore ratio analysis cannot be the end of the inquiry. Damages in defamation cases are inherently difficult to quantify and, as in Howard University, the jury has handed down a nominal damages award. For any punitive damages award to effectuate the twin purposes of punishment and deterrence, the punitive award to Dr. Mann must exceed the single digit ratio, a relief which the Supreme Court and the Court of Appeals have not foreclosed.
However, the million-to-one ratio of the instant award necessarily raises a judicial eyebrow, as the punitive and compensatory awards vary by a staggering six digits, not to mention that the evidence at trial was mixed as to the true extent of injury Dr. Mann suffered. Accordingly, the Court turns to the final Gore factor and looks to the grant of punitive awards for similar misconduct to guide its remittitur of the punitive damages award, here.
[iii.] Looking to Punitive Damage Awards in Similar Cases
This Gore factor directs a comparison of "the punitive damages award and the civil or criminal penalties that could be imposed for comparable misconduct." The District of Columbia has never had occasion to consider a statutory civil penalty for defamation and has not had occasion to consider a statutory criminal penalty since 1982. As such, the Court, however, finds instructive caselaw addressing similar misconduct….
However, the few defamation cases in the District of Columbia that discuss the reasonableness of punitive damages are not helpful in determining the size of a punitive damages award because those cases were remanded to the trial courts for further proceedings. Turning to defamation cases in other jurisdictions, the Court finds that the largest punitive damages award involving nominal or small compensatory damages appears to be around $100,000.
However, Gore instructs that an inquiry be made into "awards of similar misconduct," so analysis beyond the mere dollar amounts awarded is required. The instant matter bears most similarity to Celle v. Filipino Reporter Enterprises (2d Cir. 2000) {(awarding $5,000 in punitive damages on each of two counts, $1 in nominal damages)}, in which punitive damages were awarded for the defendant's publishing two defamatory articles in a newspaper that "impugn[ed] plaintiff's trustworthiness," insinuated plaintiff was "spreading false information," and "portray[ed] [plaintiff] to be a cheat." In determining that Mr. Steyn defamed Dr. Mann, the jury could easily have reasoned that Mr. Steyn's article impugned Dr. Mann's character through its "noxious comparisons" to a known sex offender and implied that Dr. Mann's "manipulation of data was seriously deviant for a scientist.
Unlike several of the previously cited cases, in the instant case, Dr. Mann presented no persuasive evidence suggesting that he suffered injury to his business as a result of Mr. Steyn's article. Dr. Mann presented no persuasive evidence that Mr. Steyn's conduct was motivated by an intent to harm Dr. Mann's employment….
An award of punitive damages here remains appropriate given the reprehensibility of Mr. Steyn's conduct. However, given the dollar amount of the punitive award and the lack of support of similar awards in this jurisdiction or elsewhere, a remittitur is appropriate. Upon review of awards for similar misconduct, particularly Celle, and Mr. Steyn's proposed alternative punitive damages award and his indicated acquiescence to such award, this Court finds remitting the award of punitive damages to the amount of $5,000 to be appropriate.
Note: After reading the opinion, I learned that Chris Bartolomucci of Schaerr | Jaffe—a firm at which I'm a part-part-part-time academic affiliate—represents Steyn. I have not worked on this case, nor was I asked by anyone to blog about it.
Thanks to Media Law Resource Center (MLRC) MediaLawDaily for the pointer.
