When Scientists Sue

Mark Jacobson, who alleges that he is a “renowned scientist,” along with three co-authors, publishes a paper in the Proceedings of the National Academy of Sciences journal. The Jacobson paper posits that a large-scale US transition to renewable energy could, by 2050, eliminate the need for other energy sources. Six months later, a group of other scientists and scholars, led by Christopher Clack, submit a paper to PNAS in which they question some of the assumptions, methodologies and conclusions in the Jacobson article.

Jacobson reviews the draft Clack paper and allegedly identifies numerous false and misleading statements, which he catalogues in a document. The Jacobson critique is submitted to PNAS, and ultimately to the Clack authors. They, in turn, slightly modify their paper, but largely adhere to their original criticisms. The Clack paper is published by PNAS on June 19, 2017. At the same time, the NAS publishes a 1300-word letter from Jacobson in which he responds to the Clack paper.

So the scientists then duel in the court of public opinion, quarrelling about their respective papers, assumptions and positions, and letting the marketplace of ideas sort through all of it, correct? Ha ha. Don’t be silly. You know what happens next. 

Jacobson demands that the National Academy of Sciences retract the Clack paper (after previously demanding it not publish the Clack paper) and, when both of these threats are rejected, Jacobson sues Clack for defamation and sues the National Academy of Sciences for defamation, breach of contract and promissory estoppel, seeking damages in excess of $20 million, punitive damages, attorneys’ fees and a retraction. While Jacobson has many complaints (including that the NAS should not have accepted the Clack paper because it was, in reality, a “letter” under the NAS rules and because many of the “authors” did not contribute substantially to the paper), his core complaints are that the Clack authors made three false and defamatory statements about the Jacobson paper.

First, Jacobson alleges, the Clack authors stated that a table in the Jacobson paper contained “maximum” load values. Jacobson alleges that, in fact, the table contained “average” load values. Jacobson alleges that, prior to publication of the Clack paper, he repeatedly brought this error to the attention of NAS, and by extension to the Clack authors, but that the error was never corrected and was instead contained in the final Clack paper published by NAS.

Second, Jacobson alleges, the Clack authors claimed they had identified a “hydropower assumption” error in the Jacobson paper for which they claimed they had no explanation. Jacobson alleges that there was an explanation: the paper “neglected to clarify” that the Jacobson authors “neglected to include” certain costs in the figure. He alleges the Clack statement was “intentionally misleading” because Jacobson had already spoken with Clack and provided an explanation. Jacobson alleges that Clack, however, did not include his explanation in the Clack paper and, instead, continued to “hope” for an explanation.

Third, Jacobson alleges, the Clack authors included a figure in their paper that reflected US hydroelectric power data, and compared this figure with data in the Jacobson paper, despite the fact that the Jacobson figure included both US and Canadian output. This apples-to-oranges comparison, Jacobson alleged, misled readers into believing that the Jacobson authors assumed an unreasonably high annually-averaged hydropower output. 

Both Clark and NAS filed anti-SLAPP special motions to dismiss. Both argue that the suit is subject to DC anti-SLAPP statute because the Clack paper involved issues of public interest – including climate change, reliance on fossil fuels, the use of nuclear power and the feasibility of large-scale renewable energy projects – that were published in a public forum (the Internet).

The defendants argue that Jacobson is not likely to prevail on the merits. Clack argues that the first allegedly defamatory statement (maximum vs average values) was simply the Clack authors’ interpretation and evaluation of the methodologies and assumptions in the Jacobson paper, and that the Clack authors explained the basis for their opinion in their paper. NAS similarly argues that the Clack authors statement “involved an interpretation of a table in plaintiff’s paper. This is not defamation,” because it did not make Jacobson appear odious, infamous or ridiculous. NAS also notes that, at the same time it published the Clack paper, it published Jacobson’s rebuttal and “therefore provided its readers with both plaintiff’s and the Clack authors’ positions on how the data should be interpreted, which is how scientific disagreements are supposed to be addressed and resolved.”

Clack argues that the second allegedly defamatory statement (the Clack authors’ hope that there was an explanation for an error they identified in the Jacobson paper) was simply a rhetorical question that cannot give rise to a claim for defamation. Clack also argues that he was not required to accept Jacobson’s explanation, and that the Clack authors were not required to suggest arguments in their paper that the Jacobson paper omitted. The NAS argues that this statement is not a statement of fact; that the Clack authors explained why they believed the Jacobson authors’ assumption was unreasonable; and that Jacobson admitted the data was, at a minimum, incomplete.

Both Clack and the NAS also argue that the figure in the Clack article (showing hydroelectric output from the United States) was not false, as required to state a claim for defamation. Finally, both Clack and the NAS argue that Jacobson is a public figure, and that he has not plead facts showing that they acted with actual malice.

My Two Cents: this suit was filed in the same court as another high-profile defamation suit filed by a scientist (Michael Mann). The DC Court of Appeals’ decision in that case, which generally sustained the denial of the anti-SLAPP special motion to dismiss, was widely derided. Now we have this suit, which led one widely-read blog to observe that “DC has apparently become a ‘good’ venue for filing dubious defamation SLAPP suits concerning scientific disputes.”

One more thing. This suit shows why we need a federal anti-SLAPP statute, or why the DC anti-SLAPP statute needs to apply in a federal court diversity case. It appears that Jacobson could have filed his suit in DC federal court (using diversity jurisdiction). Had he done so, that court’s Abbas decision might have prevented the defendants from filing anti-SLAPP special motions to dismiss. The availability of a substantive remedy should not depend on whether the suit is filed in state or federal court.

 

Leslie Machado

About: Leslie Machado

Mr. Machado counsels and advises a diverse range of clients on various areas of law. He is also an experienced litigator, having tried cases to verdict in state and federal courts. View all posts by Leslie Machado
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