Retraction Watch

Tracking retractions as a window into the scientific process

CrossFit can sue over error in paper it claims cost the brand millions

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court-caseA California court ruled that fitness empire CrossFit can proceed to trial with its lawsuit against a competitor, alleging it published falsified data that hurt the company’s reputation, according to recently released court documents.

The case pits the popular for-profit CrossFit brand against the non-profit National Strength and Conditioning Association (NSCA), which published the 2013 study in question.

CrossFit claims it lost upwards of $8 million afer researchers concluded that 16 percent of CrossFit participants in a small study left the exercise program because of injury. However, in a 2015 erratum, the authors – led by Steven T. Devor, director of the Exercise Science Laboratory at The Ohio State University — noted that follow up showed only 2 participants out of the 11 drop-outs mentioned their health as a reason.

The study appeared in the Journal of Strength & Conditioning Research, published by CrossFit competitor NSCA, which also promotes fitness programs.  CrossFit claims the results in the paper cost it revenues from people paying for seminars at CrossFit, Inc. affiliate gyms.

“CrossFit is now eager to go to trial. More eager than ever,” a CrossFit spokesperson told Retraction Watch:

This ruling sets the stage for future rulings in CrossFit’s favor: that the NSCA coerced researchers to concoct bogus data to deceive consumers and damage CrossFit. Seems like a slam dunk based on this ruling.

Legal experts, however, expressed more caution about CrossFit’s chances at trial.

Although allowing the case to proceed “is a significant victory for CrossFit,” it does not mean the company will win any of its claims, Callan Stein, associate with Boston law firm Donoghue Barrett & Singal who has worked on research misconduct cases, told Retraction Watch.

In legalese, CrossFit made a couple of victories, according to Stein. First, the judge agreed that the journal article contained false statements. That means in court, CrossFit will not have to prove that the article contains false statements.

Secondly, the judge claimed that the journal article could be considered as commercial speech – important, since the article may not be protected by the 1st Amendment freedom of speech since it potentially gave an unfair competitive edge to the NSCA. Stein explained:

Right now, there is enough evidence on both sides that we need a jury or a fact finder (judge) to decide whether or not this was or was not commercial speech and whether you are or are not entitled to the protection of the first amendment based on that finding.

In most false data cases, journals simply issue a retraction. However, when millions of dollars and reputations are at stake, the outcome can be different – and, like in this case, end up litigated in court.

The paper “Crossfit-based high intensity power training improves maximal aerobic fitness and body composition” contained two sentences that raised questions for CrossFit:

Out of the original 54 participants, a total of 43 (23 males, 20 females) fully completed the training program and returned for follow up testing. Of the 11 subjects who dropped out of the training program, two cited time concerns with the remaining nine subjects (16% of total recruited subjects) citing overuse or injury for failing to complete the program and finish follow up testing.

The “overuse or injury” was shown to be false. The court decision also shed light on why the sentences got into the 2013 paper – cited 15 times, according to Clarivate Analytics’ Web of Science, formerly part of Thomson Reuters — in the first place.

The judge concluded that the journal pressured the authors into including disparaging data in the original study.

Janis Lynn Sammartino, district judge for the United States District Court for the Southern District of California wrote in her decision:

Looking at the communication from the JSCR editorial staff to the Devor Study authors, a reasonable fact finder could conclude that the NSCA pressured the authors to include data disparaging CrossFit’s exercise regimen, and the editor-in-chief’s admonition—“[r]emember the paper can still be rejected if the reviewers are not impressed with the sophistication of the revisions made”—could be construed as a veiled threat that the JSCR would not be interested in publishing the Devor Study if it did not include information showing “the fact many people do get injured doing these types of workouts,” whether or not that “fact” was true in this qualitative study.

An NSCA spokesperson told us:

On CrossFit’s motion, the judge decided one issue in CrossFit’s favor: that the injury data reported in the Devor Study was not correct. The judge’s ruling was based partially on the NSCA’s erratum, which stated that the injury data should not be considered as part of the article. Some media outlets have misinterpreted this ruling, based on what NSCA believes are mischaracterizations by CrossFit of the ruling. The judge did not rule that the injury data was intentionally fabricated by the authors or that the NSCA knowingly published false data. Rather, the judge’s decision left such issues to be decided at trial. Whether the injury data is false is only one of several elements that CrossFit must prove to win its case at trial.

This case raises important issues, such as noting that publishers of academic or scientific journals are “not immune from suit if they issue articles with statements they know to be false,” Richard Goldstein, Boston attorney with Meyer, Connolly, Simons & Keuthen LLP, told Retraction Watch:

Where the publisher has some sort of commercial interest and the false statement relate to a competitive commercial product, the publisher could be liable if the false statement damages the subject of the ‘false’ article.

However, any legal precedent made by this case would be very narrow, legal experts agreed. Said Goldstein:

This case is not typical of the kind of debate we see over the ‘falsity’ of findings in an academic journal because of the heavy commercial overtones in the dispute between CrossFit and NSCA…I also suspect it is rare an article will discuss the efficacy of a commercial product that competes with the product or association that sponsors the journal.

And most people affected by false statements in research won’t have the time and resources to take their complaints to court, noted Paul S. Thaler, partner at Cohen Seglias Pallas Greenhall & Furman PC, a law firm in Washington DC:

…seeking a retraction is the more likely avenue that the victim scientist would choose – it is far less expensive, and takes considerably less time, than litigation.  But sometimes, if the amount of perceived damage is great enough, litigation is a viable option.

In the meantime, the NSCA is seeking to appeal the latest decision:

…the NSCA has filed a request to permit an immediate appeal on one important legal issue in the judge’s rulings (rather than waiting for a jury trial). The NSCA will vigorously defend itself and remains confident it will prevail.

We have contacted Devor, and will update if he responds.

This isn’t the first time the CrossFit name has been involved with courtroom academic disputes. Earlier this year, judges dismissed two lawsuits filed by a CrossFit gym under the False Claims Act, claiming the Ohio State researchers used false results to procure millions in federal grants.

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Written by trevorlstokes

October 11th, 2016 at 9:35 am

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