“It has been said that though God cannot alter the past, historians can; it is perhaps because they can be useful to Him in this respect that He tolerates their existence.”
Samuel Butler, Erewhon Revisited, ch. 14
It has been a while since I have written about the scientist defamation case of brought by climate scientist and advocate, Michael E. Mann, against National Review magazine, the Competitive Enterprise Institute, and Mark Steyn.[1] Back in 2014, I commented upon the oddity of a scientist’s claim of defamation against lay people for criticizing a scientist’s work.[2] Mann took umbrage to statements, critical of his work that generated a “hockey-stick” model of global temperature rises. Defendants apparently accused Mann 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[.]”[3] Mann naturally claims that the defendants’ statements are false and defamatory; the defendants contend that their statements are true.
In the hurly burly of work and life, I lost touch with the proceedings in Mann, but recently I became aware of interesting gatekeeping rulings, issued in 2021.[4] I was particularly intrigued by the activity of Naomi Oreskes, qua historian, who sought to offer an expert witness opinion in the Mann case. On July 26, 2021, Judge Alfred S. Irving, Jr., dashed Oreskes’ hopes of testifying as an historian, and told her not to bother coming to Washington for trial.[5]
Naomi Oreskes is a “professor of the History of Science, in Harvard University. She teaches and writes about the history of science. When not riding political hobby horses, Oreskes has written about the Idiocracy’s rejection of science,[6] but she has also shown herself to be untutored in the basics of scientific and statistical method.[7]
She is an advocate who, along with her posse, frequently weighs in against oil companies in litigation.[8] Oreskes has also written extensively to demonize industry’s motives and to advance her conspiracy theories in which manufacturing industry (but not lawsuit industry) is responsible for suppressing the truth of positions that Oreskes believes fervently.[9] She has decried the political discrediting of science, while participating in a political strategy to discredit her scientific opponents.[10] The line between trust and credulity can sometimes be hard to locate.
The defendants had moved in limine to exclude Oreskes’ proferred historian testimony,[11] under the District of Columbia’s standard for admitting and excluding expert witness opinion testimony.[12] Oreskes’ opinion, at issue in the Mann case, was on
- the general basis for finding scientific research to be reliable, and
- that “think-tanks” (including the defendant CEI) “ignore, misrepresent, or reject” principled scientific thought on environmental issues.
On the general issue of reliability, Oreskes proferred an opinion that scientific research is made reliable by
“the collective vetting and critical interrogation of claims through scientific workshop, meetings, conferences, and above all, publication in peer-reviewed journals, formal scientific assessments and reports of government scientific agencies and laboratories.”
Even on superficial review, this description appears woefully inadequate and incomplete. For Oreskes, scientific reliability seems to be all about meetings, publications, and governmental reviews, with no room for actual data gathered in attempts to refute hypotheses, or room for interrogating the data and their quality. Nonetheless, on this general issue of reliability, the Court found her opinion to acceptable but redundant to scientific witnesses who had first-hand knowledge of Mann’s work (as opposed to an historian). On the first part of her proferred opinion, Judge Irving expressed his skepticism that Oreskes’ opinion would be helpful to the jury; Oreskes’ testimony might give the jury a framework that could be used to assess whether Mann’s work was fraudulent or not. Judge Irving held, however, that Oreskes’ testimony ran afoul of the law in failing to “to use a scientific technique which applies reliable methodologies.”[13]
On the second proferred opinion, the ad hominem attack on the bona fides of CEI and similar “think-tanks,” Judge Irving found Oreskes, in her report, failed to provide any explanation of her methodology.[14]
As was the case with several of Plaintiff’s proffered experts, Dr. Oreskes’ report was devoid of any discussion of her methodologies. Mann’s lawyers sought to remedy the omission by adverting to Oreskes’ description, in her deposition testimony, of her “content analysis” methodology, as applied to the public statements of the CEI:
“So we read the documents. And as I said before, we applied a well-established method in social science, which is broadly accepted as being, you know, a reputable method of analyzing something, content analysis, in order to show that there was this fairly substantial disparity between what the company scientists were saying in their private reports and publishing in peer-reviewed scientific literature which was essentially consistent with what other scientists were saying versus what the company was saying in public in advertisements that were aimed at the general public.
* * * * *
In the case of ExxonMobil, we had the opportunity to do this analysis because the company itself had made public these documents. And they claimed in public that if you read these documents, you would see that everything was fine and that ExxonMobil had done nothing wrong.
We applied a well-established method in social science, which is broadly accepted as being, you know, a reputable method of analyzing something, content analysis, in order to show that there was this fairly substantial disparity between what the company scientists were saying in their private reports and publishing in peer-reviewed scientific literature which was essentially consistent with what other scientists were saying versus what the company was saying in public in advertisements that were aimed at the general public.”[15]
Alas, it turned out that this jargon-laden description of method was irrelevant because Oreskes admitted that she had not performed a “content analysis” in the Mann case.[16] When pressed to explain the methodology actually used in the Mann case, she candidly explained:
“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.”[17]
The court found this explanation more than a little problematic. “Reading and thinking about documents” are not the sort of methodologies that are beyond the ken of the jury. Oreskes’ best effort to explain what she had done left “the Court is unable to distinguish why Dr. Oreskes is more capable than the average juror, who can also read and think about documents.”[18]
The court’s inability to fathom what Oreskes might offer was not due to any judicial disability. Oreskes’ “reading and thinking” had never been peer-reviewed, had no known success rate, and could not be replicated by other experts in her field. The court saw that Oreskes’ opinion had not come from scientific method, and that her opinion would be aptly characterized “as a historical narrative or research compilation than scientific testimony.”[19] Oreskes’ opinion could not be justified as expert experiential opinion because it was not based upon her personal experience; rather, her opinion was based upon her review of documents and reports of others.
Oreskes’ “expert” witness report regaled the court with her take on CEI’s previous actions and statements. Oreskes offered the opinion that CEI has a history of opposing “progressive” policies and that it regularly advocates against “valid and widely accepted scientific research.” Judge Irving recognized that these opinions were nothing more than Oreskes’ subjective historical summary of CEI’s actions, no doubt with a heavy dose of Oreskes’ personal animus against the CEI. As Judge Learned Hand declared almost 100 years ago, “[a]rgument is argument whether in the box or at the bar, and its proper place is the last.”[20]
As for methodology, the court found none. The court agreed with the CEI that “Dr. Oreskes made no effort to compile or catalogue CEI’s publications according to an objectively defined set of metrics.” Oreskes was thus excluded from the litigation in July 2021.[21]
The plaintiff and Naomi Oreskes were not content to leave matters as they were decided in Judge Irving’s order. Mann moved for reconsideration of Oreskes’ exclusion, with a more limited proffer of testimony that would address the “importance of scientific expertise and the significance of the scientific method and peer review process in scientific debate.”[22]
In this requested do-over, Mann submitted a supplemental declaration from Oreskes, in which she elaborated upon her methodology of “contextual exposition.” Mann further argued that Oreskes should be “permitted to testify regarding scientific principles to permit the jury to understand those principles and to apply them to facts without running afoul of the general rules relating to opinion testimony.”
To this end, Oreskes would give the jury a “contextual exposition…of the character and nature of scientific research.” Mann contended that this foundational opinion testimony was “crucial to enable the jury to reach its conclusions concerning the truth or falsehood of Defendants’ objectively verifiable statements of fact about Dr. Mann and his scientific research which produced the Hockey Stick Graph.”
Essentially, Mann was seeking to have Oreskes’ testimony admitted as a “teaching expert witness,” who would not provide her own personal opinion, but who would give the jury the relevant scientific principles that they may apply to the facts of the case as they find. Judge Irving accepted this more limited proffer, and modified his earlier ruling to permit Oreskes to give the so-called “contextual information” that renders scientific research reliable, such as the peer review process.[23] As noted above, this aspect of the Oreskes’ proffered testimony appears incomplete, with emphasis on “social control,” at the expense of valid inference and data quality and integrity.
Judge Irving’s reconsideration gave Oreskes a very limited remit to testify at trial. His Honor emphasized, however, that most of what she had originally proposed for her testimony was “unreliable and irrelevant.” Oreskes will not be allowed to give her opinion over the history of “the debate over anthropogenic climate change,” or hold forth with opinions about the history and character of CEI’s “agenda.” Judge Irving reiterated his finding that Oreskes’ opinions on these matters “are not demonstrably the product of any scientific principle or method, and are largely irrelevant.”[24]
Furthermore, Oreskes will not be allowed to discuss Mann’s work, or whether or not his methodology is valid, or whether there is evidence or not of data manipulation or fraudulent behavior. As Judge Irving summarized the matter:
“Dr. Oreskes’ opinion in that regard would be entirely speculative given that she has not demonstrated any particular expertise or experience regarding Dr. Mann’s research. Neither her original expert report nor her supplemental declaration indicates any intimate knowledge of Dr. Mann’s work. Further, Dr. Oreskes’ expert report identifies her as an expert in the history of science and in geology, not as an expert in climate reconstruction. Dr. Oreskes has not demonstrated any specialized knowledge or experience concerning the substantive or factual aspects of the MBH research.”
Judge Irving also excised Oreskes’ claim, made in her belated supplemental declaration, that there is a consensus about the cause of climate change, or that there is a political and ideological basis for CEI’s opposition to the consensus. After all, Mann’s work could have been fraudulent, even if other, sound scientific work came to the same conclusion, and even if that conclusion were widely shared.[25]
The choice of Naomi Oreskes to serve as an expert witness was dubious on several fronts. First, as a partisan in the climate science debates, Oreskes hardly brought objectivity to the courtroom to support plaintiff Michael Mann. While attacking CEI for political and ideological bias, Oreskes’ helped showcase her own biases, which have long been on display.[26] Mann would be more effectively served by presenting an expert on scientific method who was not such an extreme advocate. Second, as shown by her misidentification of the burden of proof with the coefficient of confidence, Oreskes previously had shown a lack of understanding of scientific and statistical method.[27] Mann might have considered that his case would be better supported by someone who had not made such glaring mistakes, in front of a national audience.
As for whether the historian aspect of Oreskes’ testimony could ever have succeeded, I am more doubtful. Historians who “read and think” often have little to offer beyond what lawyers can accomplish using documents presented to the trier of fact for interpretation.[28]
Presenting historian “expert” witnesses is a commonplace in occupational exposure litigations, involving silicosis or claimed asbestos-related diseases.[29] The use of such expert witnesses leads to serious abuses, by which argument and advocacy are surreptitiously presented as history.[30] Judge Irving’s exclusion of Naomi Oreskes is a valuable precedent for bench and bar.
Trial is set for June 12, 2023.
[1] Michael E. Mann v. National Review, CA 008263 B (filed in 2012, in the Washington, DC Superior Court, Civil Division).
[2] See “Climategate on Appeal” (Aug. 17, 2014).
[3] 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).
[4] There is a useful compendium of rulings available through the CEI website.
[5] See District of Columbia Superior Court Order on Expert Witnesses (July 26, 2021) [Order]. T.C. Kelly, “Expert Testimony Excluded in Michael Mann Defamation Lawsuit,” Expert Pages (Aug. 11, 2021).
[6] Naomi Oreskes, Why Trust Science? (2019).
[7] See “Playing Dumb on Statistical Significance” (Jan. 4, 2015); “ The Rhetoric of Playing Dumb on Statistical Significance – Further Comments on Oreskes” (Jan. 20, 2015); “Significance Levels Made Whipping Boy on Climate Change Evidence; Is 0.05 too Strict?” Error Statistics (Jan. 4, 2015).
[8] See, e.g., Brief of Amici Curiae Robert Brulle, Center for Climate Integrity, Justin Farrell, Benjamin Franta, Stephan Lewandowsky, Naomi Oreskes, and Geoffrey Supran in Support of Appellees and Affirmance, County of San Mateo v. Chevron Corp., Nos. 18-15499, 18-15502, 18-15503, 18-16376 at 2 (9th Cir. 2019); Brief of Amici Curiae Robert Brulle, Center for Climate Integrity, Justin Farrell, Benjamin Franta, Stephan Lewandowsky, Naomi Oreskes, Geoffrey Supran and the Union of Concerned Scientists, City of Oakland v. B.P. PLC, No. No. 18-16663 (9th Cir. Mar. 20, 2019); Brief of Amici Curiae Robert Brulle, Center for Climate Integrity, Justin Farrell, Benjamin Franta, Stephan Lewandowsky, Naomi Oreskes, Geoffrey Supran and the Union of Concerned Scientists, Mayor and City Council of Baltimore v BP PLC, No. 19-1644 (4th Cir. Sept. 3, 2019).
[9] Naomi Oreskes & Erik M. Conway, Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming (2010); Naomi Oreskes & Erik M. Conway, “Defeating the merchants of doubt,” 465 Nature 686 (2010). See also Geoffrey Supran & Naomi Oreskes, “Assessing ExxonMobil’s climate change communications (1977–2014),” 12 Envt’l Research Letters (Aug. 2017). Remarkably, Oreskes declared no conflicts of interest in this publication.
[10] Zoë Corbyn, “Naomi Oreskes: ‘Discrediting science is a political strategy’,” The Guardian (Nov. 2019).
[11] See Defendants Competitive Enterprise Institute and Rand Simberg’s Motion in Limine to Exclude the Expert Testimony of Dr. Naomi Oreskes (“MIL Oreskes”), filed on March 3, 2021.
[12] The standard is substantially the same as that articulated in Federal Rule of Evidence 702; see Motorola Inc. v. Murray, 147 A.3d 751 (D.C. Ct. App. 2016) (applying standard to case involving claims of brain cancer from the use of mobile telephones).
[13] Order at 23-24.
[14] Judge Irving noted that failure to explain methodology was a fatal flaw, citing Sacchetti v. Gallaudet Univ., 344 F. Supp. 3d 233, 250-51 (D.D.C. 2018).
[15] Plaintiff’s Opposition, Oreskes Deposition v.2 at 55:12-56:5.
[16] Id. at 33:5-15.
[17] Id. at 34:13-15.
[18] Order at 24-25 (citing 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).
[19] Id. The court acknowledged that expert witness opinion could be “experiential,” but such a case, the witness must explain “how that experience leads to the conclusions reached, why that experience is a sufficient basis for the opinion and how that experience is reliably applied to the facts.” Id. (citing Arias v. DynCorp., 928 F. Supp. 2d 10, 15-16 (D.D.C 2013).
[20] Nichols v. Universal Pictures Corp., 45 F.2d 119, 123 (2d Cir. 1930).
[21] Order at 25.
[22] Court Order on Expert Witnesses, in Michael E. Mann v. National Review, CA 008263 B, Washington, D.C, Superior Court, Civil Division (Jan. 22, 2022)
[Order II at 20].
[23] Order II at 22.
[24] Order II at 22-23.
[25] Order II at 23-24.
[26] See, e.g., Naomi Oreskes & Erik M. Conway, The Big Myth: How American Business Taught Us to Loathe Government and Love the Free Market (2023).
[27] Oreskes, in the past, has shown a stunning disregard for the meaning of scientific and statistical concepts.[27]
[28] See, e.g., Quester v. B.F. Goodrich Co., Cuyahoga Cty., Ohio, C.P. Case No. 03-509539 (Jan. 12, 2008) (excluding historian Gerald Markowitz’s testimony as impermissible attempt to introduce expert witness opinion on defendants’ intent and motive) (Sweeney, J.).
[29] Nathan A. Schachtman, “On Deadly Dust and Histrionic Historians: Preliminary Thoughts on History and Historians as Expert Witnesses,” 2 Mealey’s Silica Litigation Report Silica 1, 2 (November 2003); Nathan Schachtman & John Ulizio, “Courting Clio: Historians and Their Testimony in Products Liability Action,” in: Brian Dolan & Paul Blanc, eds., At Work in the World: Proceedings of the Fourth International Conference on the History of Occupational and Environmental Health, Perspectives in Medical Humanities, University of California Medical Humanities Consortium, University of California Press (2012); Scott Kozak, “Use and Abuse of ‘Historical Experts’ in Toxic Tort Cases,” in Toxic & Hazardous Substances Litigation (March 2015).
[30] See How Testifying Historians Are Like Lawn-Mowing Dogs” (May 15, 2010); “Courting Clio: Historians and Their Testimony in Products Liability Litigation” (May 24, 2010); A Walk on the Wild Side (July 16, 2010); Counter Narratives for Hire (Dec. 13, 2010); “Narratives & Historians for Hire” (Dec. 15, 2010); “Courting Clio: Historians Under Oath – Part 1” (Dec. 17, 2011); “Courting Clio: Historians Under Oath – Part 2” (Dec. 17, 2011); “What Happens When Historians Have Bad Memories” (Mar. 15, 2014); “Too Many Narratives – Historians in the Dock” (July 14, 2014); Historians Noir (Nov. 18, 2014); “Lawyers as Historians” (Feb. 2, 2016); “Succès de scandale – With Thanks to Rosner & Markowitz” (Mar. 26, 2017); “More Rosner-Markowitz Faux History of Workplace Safety” (July 9, 2020).
