A court is reportedly telling a journal to unmask a retracted paper’s peer reviewers, part of a defamation lawsuit involving the journal’s publisher and the CrossFit exercise brand.
According to an attorney representing CrossFit, yesterday Judge Joel Wohlfeil of the San Diego Superior Court decided that the National Strength and Conditioning Association (NSCA) must turn over to CrossFit the names of peer reviewers of “Crossfit-based high-intensity power training improves maximal aerobic fitness and body composition,” by Jan. 26. The names will be revealed under a protective order, the lawyer said, meaning CrossFit and the other defendants will see them but cannot disclose them to others.
The paper, which was retracted last year, originally appeared in 2013 in the Journal of Strength and Conditioning Research, which is published by the NSCA. The article has been central to multiple lawsuits, between NSCA and CrossFit and other parties as well.
The ruling, finalized after a hearing yesterday, may establish a new legal approach to breaching reviewer confidentiality.
In the suit, NSCA alleges that CrossFit employees defamed it in blog posts and other comments made over several years. The comments relate to CrossFit’s stance that NSCA corrupted the peer review process for the retracted JSCR article by inserting bogus injury statistics. CrossFit has also tried to unmask the reviewers in another lawsuit with the NSCA, but was unsuccessful.
In this case, CrossFit asked for the peer reviewers’ names as part of discovery, the process used by both sides in a lawsuit to gather relevant information; however, NSCA refused, saying it has the same right to protect sources as journalists do. CrossFit said those identities are important to understanding the peer review process, which in turn is central to their defense in the case.
Following yesterday’s hearing, CrossFit founder Greg Glassman, who is a defendant in the case, told Retraction Watch:
it’s absurd for the NSCA to ask for protection from probing that fraud on the basis of protecting academic independence.
In December 2017, the issue came before William McCurine, Jr., a retired judge appointed to the case as a discovery referee. McCurine ruled in favor of CrossFit and ordered NSCA to turn over the names. NSCA filed a challenge to that decision, which led to the hearing before Wohlfeil, the trial judge.
Prior to yesterday’s hearing, Wohlfeil issued a tentative ruling, in which he overruled NSCA’s objections to disclosing the names:
The Court is persuaded by the reasonableness of Referee McCurine’s analysis as well as Defendant’s opposing arguments.
Joshua Koltun, a San Francisco-based attorney who is not involved in this case, told Retraction Watch that the tentative ruling was just that, and not the final decision:
the point of the tentative ruling is to let the attorneys know how the judge is leaning based on the papers he read and gives the attorneys a chance to change his mind. By showing how he’s leaning it enables the attorneys to focus on what issues they think he’s gotten wrong.
Now, following Thursday’s hearing in which attorneys on both sides argued their case, the matter has been resolved — reportedly, in favor of CrossFit. Retraction Watch reached out to CrossFit attorney Justin Nahama of Troutman Sanders, who told us:
the Court adopted its tentative ruling.
The NSCA and their attorneys did not immediately respond to our request for comment. [Update UTC 20:30 01/19/2018: NSCA declined to comment, citing ongoing litigation.]
Russell Greene, a CrossFit employee and a defendant in the suit, told us:
This decision is good for science. CrossFit’s legal efforts are helping establish a precedent that will help incentivize legitimate science, and punish scientific misconduct.
But Koltun told us the ruling wouldn’t necessarily set a legal precedent for requests to unmask reviewers in other cases. Courts must consider both peer reviewer confidentiality as well as the needs of the case, he said:
It is a balancing test and the test hasn’t changed.
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Excellent. Scientific fraud legitimized in journals by undisclosed peers of the authors saying fraud is not fraud – is an issue in science and medicine that is long overdue for investigation.
There’s a reason for why there’s a blind review of academic journals. The integrity of the review could be compromised if the authors knew who the reviewers were (possible bribery and intimidation or retribution for failed submissions). There is a complex system that keeps all of the research ethical. If you think “fraud” has been published, you are free to publish a letter or paper disproving the claims of the “fraud”.
Social Scientist: your concerns seem institutional and consciously ignore some salient facts of this specific case:
(1) The “integrity of the review” has already been conclusively established as “compromised” in this and the companion federal litigation. I say again: two different judges in two different jurisdictions have now concluded that the peer review process produced non-existent, fraudulent injury data;
(2) The “complex system” of peer review has no legal precedent or evidentiary basis granting it immunity from the legal process. That is to say, there is no “peer review” privilege that exempts peer reviewers from post-hoc unmasking, like, for example, the marital privilege or the priest-penitent privilege.
Please re-read the piece and other surrounding circumstances/rulings and then explain how the NSCA should be able to hide from legal process by claiming a novel, non-existent privilege. Science that hides from the public isn’t science at all.
Bias admission: I am not a disinterested party.
Dale wrote: “(2) The “complex system” of peer review has no legal precedent or evidentiary basis granting it immunity from the legal process. That is to say, there is no “peer review” privilege that exempts peer reviewers from post-hoc unmasking, like, for example, the marital privilege or the priest-penitent privilege”.
My question for anyone who is following this case: For the benefit of the scientific enterprise, shouldn’t peer review anonymity have some legal protections?
The peer review system is not perfect. No scholar could truly deny this, but the system does work and needs more funding for the research ethics watchdog of federally-funded research. Policing ethics in science is a hard thing to do and most of the time, it works. But as you know, humans are prone to error and oversight. The only thing we can do is to work on improving the mechanisms of oversight and peer review.
There is an explicit contract between reviewer and journal that the review process, which does not generate any data, is confidential. The last thing science needs is a bunch of lawyers sniffing around everywhere. This could be the death of science publishing in the USA.
This decision sets a really bad precedent. I think I will have to stop reviewing for any journal based in the US. And as a consequence, stop sending manuscripts to those journals as well.
This is very American litigation. Here, Crossfit pulls all strings, and also wants to target the mostly friendly scientists who gave their time to review. They are then trumpled upon. It shows disrespect. Let the company and the editors use arguments, rather than go for the messengers.
Why does the identity of the reviewers matter. How could they have known that there was falsified data in the manuscript they were reviewing? The issue here is the fraudulent data, therefore the authors are to blame, not the reviewers.