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.
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in 2013 in the Journal of Strength and Conditioning Research (JSCR), the official research publication of the NSCA, and was retracted last year.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 recentlyordered 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.
What Caught Our Attention: We’ve written about the controversy surrounding a commonly used tool to measure whether patients are sticking to their drug regimen, known as the Morisky Medication Adherence Scale (MMAS-8). It can cost thousands of dollars — and using it without payment/permission earns researchers a call from a collector, who has used legal threats to compel multiple teams to withdraw their papers (a phenomenon we wrote about in Science). The creator of the tool argues it’s copyrighted, and demanding fees ensures researchers use it properly, which avoids putting patients at risk. We’ve found a notice (paywalled, tsk-tsk) that reveals another group of authors used the tool without permission and, according to the notice, “incorrectly.”
A Canadian doctor with nine retractions due to misconduct has lost a court case seeking payment for an expert medical exam he performed in August 2014. The exam took place several months after his university found he had allowed a breach of research integrity in his lab and a month before news of the investigation and his departure from the school made national news in Canada.
On Dec. 5, Cory Toth, a former professor at the University of Calgary (U of C), appeared in an Edmonton, Alberta courtroom as the plaintiff in a lawsuit filed in Provincial Civil Court. The story was first reported by the Edmonton Journal.
A former professor at the University of Washington, Brodie is currently involved in his third lawsuit challenging afinding of scientific misconduct and a seven-year funding ban handed down in 2010 by the U.S. Department of Health and Human Services’ Office of Research Integrity. He says that in the time since his case was heard by an administrative law judge at the ORI level, new evidence has come to light that shows he “did not have a ‘full and fair opportunity to litigate’ the issues.” His lawsuit sought a court order to have the ORI revisit its decision.
Last year, a U.S. District Court judge dismissed the case, saying it revisited old issues that had already been litigated, but Brodie appealed that decision. Now, his quest may have come to an end: On Nov. 27, the U.S. Court of Appeals for the D.C. Circuit dismissed the appeal. If he wants to continue the case, Brodie’s only remaining option is to appeal the decision to the U.S. Supreme Court.
Last year, a professor brought a suit against his former university after it forced him to retire. Now, he’s adding defamation to his list of allegations.
In a lawsuit filed July 14, 2016, Ishwarlal “Kenny” Jialal, a cardiovascular researcher who worked at the University of California, Davis Medical Center from 2002 to 2016, alleges the school breached the separation agreement that led to his ouster. The university forced him to retire following a misconduct inquiry in which he was cleared of wrongdoing, and later stripped him of emeritus status. Before a trial date could be set, Jialal decided he wanted to add to the list of allegations; in an amended complaint filed Oct. 23, 2017, he says individuals at UC Davis badmouthed him to a potential employer and cost him a job.
Jialal is seeking unspecified monetary damages, an order that would rescind the separation agreement that led to his departure, injunctive relief, and attorney’s’ fees and other costs related to the suit.