The Volokh Conspiracy
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Sanctions Award to Defendants in Mann v. Steyn Defamation Case
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.
But the trial judge then reduced those punitive damages to $5K. The trial judge also ordered Mann to pay defendants $1M in attorney fees ($530K to the National Review and $477K to Simberg) under D.C.'s anti-SLAPP statute, based on defendants' having gotten some of Mann's claims dismissed. Afterwards, Mann and the National Review settled their dispute; Mann agreed to drop his claims, dismissing his appeal of the judgment, in exchange for National Review agreeing to waive the $530K in attorney fees.
Now here's the latest, from Thursday's decision by D.C. Superior Court Judge Alfred Irving in Mann v. National Review, Inc., reaffirming a March 12, 2025 sanctions order:
Dr. Mann throughout this litigation complained that he suffered lost grant funding directly stemming from the defamatory statements of Messrs. Simberg and Steyn, while providing very little in the way of specifics about the dollar amounts of his losses directly attributable to the statements (such as corroborating testimony from percipient witnesses), all while promising to illuminate the Court at trial.
At trial, Dr. Mann elected through his attorneys to present to the jury a blown-up demonstrative, without redaction or explanation, a demonstrative intentionally prepared for its use at trial, which included a budget (loss) amount of $9,713,924.00, when the correct amount, previously corrected during a third round of discovery, was $112,000. Dr. Mann and his attorneys explain that there was no harm in publishing the demonstrative to the jury because Defendants and the Court knew well that the $9.7 million was later corrected during discovery, while ignoring the fact that the trial's factfinders, the jury, were never made privy to the discovery corrections through Dr. Mann's in-court testimony.
To date, Dr. Mann and his attorneys have provided no plausible explanation why they prepared a demonstrative that contained incorrect figures to be used at trial, when they could have very well prepared a demonstrative with the correct figures. This is particularly troubling given that the lost grant funding amounts were central to Dr. Mann's case, and considering that Dr. Mann, indeed, was represented by very skilled and seasoned attorneys. The attorneys' assertions that they knew Defendants would "deal with" making the corrections during re-cross strain credulity and nevertheless fail to explain why the use of an erroneous demonstrative was preferable over a non-erroneous demonstrative.
To be sure, without redactions or corrective testimony, Plaintiff left the jury with misleading evidence, suggesting that he suffered damages in at least the amount of $9,713,924.00. The Court rightfully concluded that Plaintiff and his attorneys acted in bad faith and that their litigation tactics cannot and should not be condoned in this jurisdiction. Because the Court's Order addresses the pertinent and salient arguments that the movants presented in the instant pleading, the Court hereby declines to address further any other assertions set forth in their filing seeking reconsideration.
As to Dr. Mann, in particular, he was indeed ultimately responsible for the conduct of the litigation of his case and it was his responsibility to ensure that the facts of his case were presented truthfully and straightforwardly, so that the jury could reach a fair and reasonable decision based on the facts. Furthermore, he was tasked with knowing the facts of his case, one he filed in 2012.
The Court observed during Dr. Mann's own testimony that he often expanded his answers exceeding the bounds of the questions asked when it suited him. He could have done so, here, when his attorneys explored all aspects of the subject demonstrative except for correcting the incorrect loss amounts contained in the demonstrative. Again, to argue that he made corrections during discovery serves no purpose when he elected not to make the corrections for the factfinders' consideration during trial. To argue further that Dr. Mann and his attorneys knew that Defendants would make the corrections during re-cross examination misses the point and presumes that the Court would have even allowed re-cross examination. Such a trial tactic does not explain why experienced attorneys and a sophisticated client would risk having the Plaintiff's credibility unnecessarily brought into question when the stakes were so high.
The only explanation the Court could glean is that each knew that if the jury saw the $9.7 million figure, and it went unchallenged or inadequately challenged, the jury might have finally been presented with something tangible in deciding compensable damages. While Plaintiff and his attorneys find nothing wrong with such practice, the Court simply cannot condone such bad faith litigation tactics, particularly in a case that had been zealously litigated across several years and a case involving complicated facts. Thus, the Court's ruling must stand. It is the Court's duty to punish and deter bad faith litigation tactics…
The court therefore awarded $16.7K in attorney fees and costs to defendant Rand Simberg, and $11.4K in attorney fees and costs to defendant Mark Steyn.
Andrew Grossman, Mark I. Bailen, the late David B. Rivkin, Mark W. DeLaquil, Renee Knudsen, and Victoria L. Weatherford represent Simberg. My colleague H. Christopher Bartolomucci (of Schaerr Jaffe LLP, where I'm a part-part-part-time academic affiliate) represents Steyn; I have not worked on the case myself, nor discussed these issues with Bartolomucci, nor been asked by anyone to blog about it.
