Stanford prof ordered to pay legal fees after dropping $10 million defamation case against another scientist

A Stanford professor who sued a critic and a scientific journal for $10 million — then dropped the suit — has been ordered to pay the defendants’ legal fees based on a statute “designed to provide for early dismissal of meritless lawsuits filed against people for the exercise of First Amendment rights.”

Mark Jacobson, who studies renewable energy at Stanford, sued in September 2017 in the Superior Court of the District of Columbia for defamation over a 2017 paper in the Proceedings of the National Academy of Sciences (PNAS) that critiqued a 2015 article he had written in the same journal. He sued PNAS and the first author of the paper, Christopher Clack, an executive at a firm that analyzes renewable energy.

At the time, Kenneth White, a lawyer at Southern California firm Brown White & Osborn who frequently blogs at Popehat about legal issues related to free speech, said of the suit:

It’s not incompetently drafted, but it’s clearly vexatious and intended to silence dissent about an alleged scientist’s peer-reviewed article.

In February 2018, following a hearing at which PNAS argued for the case to be dismissed, Jacobson dropped the suit, telling us that he “was expecting them to settle.” The defendants then filed, based on the anti-SLAPP — for “Strategic Lawsuit Against Public Participation” — statute in Washington, DC, for Jacobson to pay their legal fees.

In April of this year, as noted then by Forbes, District of Columbia Superior Court Judge Elizabeth Carroll Wingo, who has been presiding over the case, ruled that Jacobson would have to pay those fees. In that ruling, Wingo wrote that the Court 

finds that the three asserted “egregious errors” are statements reflecting scientific disagreements, which were appropriately explored and challenged in scientific publications; they simply do not attack Dr. Jacobson’s honesty or accuse him of misconduct.

Jacobson appealed that decision, but Wingo upheld it in a June 25 order.

Jacobson could be on the hook for more than $600,000, the total of what the plaintiffs have told the court were their legal costs — $535,900 for PNAS, and $75,000 for Clack.

Paul Thaler of Cohen Seglias, which has been representing Jacobson, noted in comments to Retraction Watch that the judge had not yet ruled on how much Jacobson should pay:

The Court must now determine the level of attorneys’ fees to charge, which ranges from $0 to the amounts requested by the Clack and NAS attorneys (see legal fee requests and replies for arguments in both directions). Once that is done, Prof. Jacobson will decide whether to appeal the questions of whether the publication of false facts with provable “yes/no” answers (such as the false claim that a table has maximum values when it factually has average values) are indeed questions of fact or of scientific disagreement and whether legal fees are allowed in a case of a voluntary dismissal without prejudice.

Despite dropping the suit, and the judge’s ruling, Jacobson continues to insist in comments to Retraction Watch that there were false claims in the Clack et al paper:

This case has always been about three false factual claims, including two of modeling “errors” or “bugs,” claimed by Dr. Clack and published by NAS that damaged the reputations of myself and my coauthors. What has come out is that the Clack attorney has now admitted in a Court document that Dr. Clack now makes no claim of a “bug in the source code” of our model, despite Dr. Clack’s rampant claim throughout his paper that we made “modeling errors.” Dr. Clack has also admitted in writing that our paper includes Canadian hydropower, yet neither he nor NAS has corrected this admitted error in the Clack Paper. Third, all evidence points to the fact that Table 1 of our paper contains average, not maximum values, indicating that Dr. Clack’s claim regarding modeling error on this issues is factually wrong as well. Thus, it is more clear than ever that the three false facts published by the Clack Authors were indeed false facts and not questions of scientific disagreement. I regret that it was impossible to have these errors corrected upon our first request rather than having to go through this drawn-out process to restore the reputations of myself and my coauthors.

Clack told Retraction Watch that Jacobson’s comments were not an accurate reflection of the paper he and his colleagues published. (For Clack’s responses to each of Jacobson’s claims, see this PDF; for our attempts to fact-check Jacobson’s claims by asking for evidence, see this PDF.) Clark said:

We have had to repeatedly defend against this individual who is unhappy that his responses to critique were not well received and many scientists and the public did not consider his responses adequate to explain the errors and implausible assumptions in his original PNAS paper.

Clack also said:

Jacobson sued myself and PNAS for publishing a critique of his work that he didn’t like. He chose not to sue the entire author team, but rather only myself. To get published in PNAS, we had passed peer reviewed, and editorial reviews; one reason it took so long to publish. There was a lot of information in our paper and there were many, many problems (a lot were contained in the [supplemental information]). We had 21 authors who all worked on the paper, checked the working and agreed on its content and conclusions. Jacobson had an opportunity to respond concurrently with the release of our paper. We just noted the content of his (and coauthors’) PNAS paper and showed that there were assumption issues, errors, mistakes and wrong conclusions drawn from them.

Science “should be a platform that all ideas should be critiqued and examined,” Clack told Retraction Watch:

That is why it is a slow methodical process. No one should be above being held accountable for errors or mistakes. Humans are imperfect, and so mistakes will happen, it is the job of science to correct and build from them. If there are critiques people should publish them because in the end it will only slow human progress if they do not. It should be the institutions job to protect those that publish such critiques (which most universities do). 

Clack called on Stanford and other universities to pay attention to what their faculty are doing in the courts:

However, further, it should be an area that Universities (such as Stanford) should look into more. They should scrutinize whether academics are weaponizing legal avenues to hold back contrary science to their own work. Everyone has the right to pursue legal claims, but there should be a process set up as university employees that if they pursue it around academic literature or work, they have to get approval from the governing body at that university. Otherwise, there could be academics or others who use legal threats to halt publication of works that might contradict their own. 

For me personally, I had no institution to defend me, and I am very honored and proud that Dentons (my lawyers) agreed to help me with my defense, because Jacobson’s filings were substantial in word count.

Indeed, on page seven of her June 25 order, Wingo called one of Jacobson’s motions — filed at nearly twice the page limit the court allowed — a “particularly egregious” violation.

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