In an lawsuit unsealed yesterday, the owner of a CrossFit gym is suing Ohio State University (OSU) under the False Claims Act, claiming that researchers faked data in a university-based study involving his gym — and that OSU used the study to win $273 million in Federal grants.
The suit, originally filed in February in the U.S. District Court of Southern Ohio by Mitch Potterf, owner of a Columbus, Ohio CrossFit, alleges that a 2013 paper by OSU’s Steven Devor and colleagues falsely reported that nine subjects had dropped out of the study because of “overuse or injury.” The study, we should note, concluded that CrossFit is a useful form of exercise. It has been cited twice, according to Thomson Scientific’s Web of Knowledge.
As John Thomas, an attorney who handles False Claims Act cases, explained in a Retraction Watch guest post in March:
The False Claims Act (FCA), popularly known as the Lincoln Law, is one alternative approach for a whistleblower to consider. The FCA allows a private citizen whistleblower, or “relator,” to file a lawsuit – known as a “qui tam” action — on behalf of the Federal government to recover funds that were paid as a result of fraud. The penalties for violators are formidable: the government is entitled to treble damages and civil penalties of $5,500 to $11,000 per false claim. By law, the relator may be entitled to as much as 30% of the government’s recovery.
As first reported by Law360 yesterday, the complaint was unsealed earlier this week because the government declined to intervene. That move makes the likelihood of success quite low, if past experience is any indicator. False Claims Act cases also typically include more detailed claims than this one.
The original complaint also tries to link the success of every one of OSU’s Federal grants in 2012 and 2013 to these allegedly fraudulent findings. That’s where the $273 million figure comes from. But that also seems like a stretch.
Reached by Retraction Watch, both OSU and Potterf declined to comment, citing the ongoing litigation.
Potterf’s lawsuit is one of at least three filed over the OSU study. In July of last year, we reported on one in which CrossFit is suing the National Strength and Conditioning Association (NSCA), which publishes the Journal of Strength and Conditioning Research, where the OSU study appeared. CrossFit — which considers the NSCA a competitor — wants compensation for alleged damages, and also for the journal to retract the paper. Potterf and his gym are also requesting the same from the authors of the OSU study and the NSCA in another lawsuit.
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