Another front has opened up in the legal battle between the CrossFit exercise brand and a competitor, spurred by a now-retracted paper about the risk of injury from the workout program. Soon, a judge will decide whether CrossFit is entitled to learn the names of the study’s peer reviewers.
CrossFit has tried and failed to identify them before. If they’re successful now, it could help establish a new way to legally breach reviewer confidentiality; two outside lawyers we consulted said they’d never before seen a court order a journal to reveal an article’s peer reviewers.
On Jan. 18, Judge Joel Wohlfeil of the Superior Court of the State of California in San Diego is scheduled to hold a hearing on whether or not the National Strength and Conditioning Association (NSCA) should be compelled to unmask the reviewers for “Crossfit-based high-intensity power training improves maximal aerobic fitness and body composition.”
The article was published in 2013 in the Journal of Strength and Conditioning Research (JSCR), the official research publication of the NSCA, and was retracted last year. It’s referred to as the “Devor article” in the court documents, after last author Steven Devor, a former professor at The Ohio State University (OSU).
A “discovery referee” assigned to the defamation case recently ordered NSCA to provide CrossFit with the reviewers’ names, but NSCA is challenging those rulings, saying that they have the same right to protect their sources as journalists do.
David Korzenik, an attorney at New York firm Miller Korzenik Sommers who has defended journal publishers in First Amendment cases, but who is not involved in this case, told us:
It’s an interesting battle.
He added that the privilege of confidentiality afforded to journalists under California law is “a good one.”
The hearing is part of a defamation case filed in May 2016 by the NSCA against CrossFit and several employees of the fitness company. According to the complaint, NSCA alleges that two CrossFit employees — Russell Greene and Russell Berger — defamed NSCA in multiple blog posts and other comments made over several years. As an example, NSCA provided the following quote, from a June 1, 2015 blog post:
In 2013 the NSCA knowingly published fabricated injury data about CrossFit. That didn’t work, either. CrossFit uncovered the fraud.
But CrossFit is fighting back. In a court document, CrossFit’s lawyers allege that there was:
A process used by the NSCA to coerce and inject false injury data about CrossFit training into the so-called Devor article.
CrossFit says it seeks more information about:
whether any of the peer reviewers had pre-existing biases against CrossFit, the peer reviewers’ pre-existing relationships with the NSCA, and whether the peer reviewers were subject to influence by the NSCA.
We asked Russell Greene if he personally stood by the allegedly defamatory comments. He told us:
Yes, 100 percent.
In a Federal lawsuit filed May 2014, CrossFit accused NSCA of unfair business practices, as competitors in the market for fitness instruction. CrossFit tried to identify the peer reviewers in that case, too, but was denied.
Korzenik and another lawyer (also not involved in the case) reviewed documents related to the upcoming hearing for Retraction Watch. They told us they were not aware of previous cases where journals or publishers were ordered to unmask a scientific article’s peer-reviewers; however, Joshua Koltun, a San Francisco-based attorney who has defended the anonymity of bloggers at trial, told us that doesn’t mean it hasn’t happened. And broadly speaking, there’s no reason it couldn’t happen, he said:
Whenever courts are asked to strip people of their anonymity — where there’s some societal benefit, in general, to giving anonymity — courts have to balance a number of factors, including whether the party seeking to learn that person’s identity has shown that the identity is really relevant to their case and, moreover, that it goes to the heart of the case.
In this defamation case, CrossFit argues:
The peer-review process, as a whole, is central to this litigation…nearly all of the Alleged Defamatory Statements in this case center on the false-injury data.
The so-called Devor article was retracted May 30, 2017. The stated reason for the retraction was that the authors, Devor and Michael Smith, now at California State University, Chico, had not received proper approval for the study from their institutional review board. Devor resigned from Ohio State the next day.
The paper has been central to multiple lawsuits, not only between CrossFit and the NSCA, which publishes JSCR, but also between Ohio State and Mitchell Potterf, the owner of the Columbus, Ohio CrossFit affiliate where the study took place. In 2016, OSU settled a defamation suit filed by Potterf for approximately $145,000; a False Claims Act suit filed by Potterf against OSU was dismissed, as was a similar suit Potterf filed against NSCA.
Unmasking the reviewers
As part of the federal lawsuit filed by CrossFit against NSCA in 2014, a judge denied CrossFit’s request to reveal the Devor article’s peer reviewers, for the time being. But the judge didn’t rule out the possibility entirely.
In an order issued July 15, 2015, Judge Karen Crawford wrote that the NSCA:
Objected that these document requests “unreasonably [interfere] with the peer review process” and would unnecessarily have “a chilling effect upon the publication of defendant’s academic journal”…
Crawford also noted that NSCA used as precedent a ruling from a 1988 patent case titled Solarex Corporation v. Arco Solar, Inc. In that case, Arco Solar wanted the court to compel a third party, the American Physical Society, to disclose the identity of a researcher who assisted a journal editor in determining whether a paper was suitable to be published. The court in that case denied Arco Solar’s request.
In Crawford’s order denying CrossFit access to the information it sought, she wrote:
The Court agrees with [NSCA’s] argument that [CrossFit] has not adequately justified the need for an order compelling [NSCA] to disclose the identities of the peer reviewers for the Devor Study.
However, she added:
The Court acknowledges that the circumstances at issue here are somewhat distinguishable from those in Solarex… in that defendant is a party to the action rather than a third-party publisher with no interest in the outcome of the litigation…it is possible that plaintiff may, at some time in the future, be able to present evidence and additional argument that would tip the balance in favor of disclosure of the identities of the peer reviewers.
In the defamation case brought by NSCA, CrossFit believes that time has come. In a brief on the issue, CrossFit attorney Wynter Deagle, of Troutman Sanders, wrote that the peer reviewers are central to the case, because CrossFit believes that JSCR Editor-in-Chief William Kraemer :
Hand-selected a senior editor…and directed her to find peer reviewers who would focus on injuries.
Last month, Kraemer announced he was stepping down as JSCR editor after 30 years (however, the link to his resignation letter no longer seems to work). [Update UTC 18:15 1/17/2017: JSCR has fixed the link to Kraemer’s letter.]
In response, NSCA argued that the identities were not important to CrossFit’s case and that:
CrossFit has already discovered any and all information related to the peer review process.
Discovery, or lack thereof
To assist with the legal process of discovery, in which both sides can obtain evidence from each other, the San Diego Superior Court appointed a discovery referee, retired judge William McCurrine.
Last month, McCurrine issued two orders for NSCA to produce the peer reviewers identities. NSCA has filed objections to those orders, which resulted in the hearing scheduled for Jan. 18. NSCA attorney Kenneth Kawabata, of Manning & Kass, Elrod Ramirez Trester, did not respond to our request for comment.
Deagle, and her colleague Justin Nahama, told Retraction Watch they could not comment on this issue until after the hearing.
Based on the documents submitted by both sides, Koltun told us it’s difficult to tell which one has the stronger argument:
NSCA is in a weaker position having placed this at issue [by bringing the lawsuit]. But to their credit, they’ve focused on the question whether the identity, per se, is what’s relevant, as opposed to the peer review process.
[Update 01/22/2018: Please see our story on how the judge ruled at the hearing.]
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