Category: Legal Threats

CrossFit asks court to unmask peer reviewers of retracted study

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in 2013 in the Journal of Strength and Conditioning Research (JSCR), the official research publication of the NSCA, and was retracted last year.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.

Continue reading CrossFit asks court to unmask peer reviewers of retracted study

Ever been asked to remove a reference for libel concerns? These authors have

Last month, Nature Ecology & Evolution published a series of responses to a previous article recommending essential reading for all ecologists. In one response, the authors argue that the list is highly biased in favor of white male authors, and raises the problem of bullying and harassment in academia. But the letter is missing one key reference from its original submission: To a recent news story in Science reporting “disturbing” sexual harassment allegations against a prominent field researcher.

Why is the reference missing?

Because the editor at Nature Ecology & Evolution asked the authors to take it out, citing concerns about libel.

Here’s the note the authors received on their original submission:

Continue reading Ever been asked to remove a reference for libel concerns? These authors have

Caught Our Notice: Using this research tool? You’d better ask first

Via Wikimedia

Title: Patient Education After CABG: Are We Teaching the Wrong Information?

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.”

Continue reading Caught Our Notice: Using this research tool? You’d better ask first

Author wins judgment against Elsevier in lawsuit over retraction

The author of a 2009 commentary exploring “sexually specific infanticide” in bears has won a judgment against Elsevier for using “untruthful and unverified” language in a 2011 retraction notice.

The last author, Miguel Delibes, who filed the suit in 2014, explained that the judge ruled he should accept the journal’s decision to retract his paper, but “confirmed that my honorability had been damaged” by the false accusation in the original retraction notice. According to a new note on the paper from the publisher, the court required the journal to publish part of its ruling to correct the record. Continue reading Author wins judgment against Elsevier in lawsuit over retraction

Doctor with 9 retractions loses lawsuit over work as expert witness

Cory Toth

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.

Court documents, which we’ve made available here, show that in April 2016 Toth sued Western Medical Assessments (WMA) — the company that hired him to perform the exam, which was used in another case — and Michele Reeves — the lawyer who hired WMA. Toth alleged that he never received payment for his work and sought Can$2,000 (US$1,552) plus interest. In his claim, he said that despite the U of C finding: Continue reading Doctor with 9 retractions loses lawsuit over work as expert witness

US court denies virus researcher’s latest appeal challenging 7-year funding ban

Scott Brodie has almost run out of options.

A former professor at the University of Washington, Brodie is currently involved in his third lawsuit challenging a finding 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.

In the court order, the panel of three judges wrote:

Continue reading US court denies virus researcher’s latest appeal challenging 7-year funding ban

Professor sues UC Davis over forced retirement following misconduct inquiry

Ishwarlal “Kenny” Jialal

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.

A spokesperson for UC Davis told us: Continue reading Professor sues UC Davis over forced retirement following misconduct inquiry

Brazil research foundation sues scientist over $103k scholarship

The São Paulo Research Foundation (FAPESP), a state-level agency in Brazil that funds scientific research, is suing Paty Karoll Picardi, a protégé of Brazilian diabetes researcher Mario Saad.

According to a São Paulo Court of Justice website, the reason stated is for “recebimento of bolsa de estudos,“ which translates to “receipt of scholarship.” FAPESP is suing for 334,116 Brazilian Reals ($102,927).

Now, Picardi is counter-suing, according to a case document released Nov. 17 — although we’re not sure for what, and why.  Continue reading Brazil research foundation sues scientist over $103k scholarship

US court issues injunction against OMICS to stop “deceptive practices”

A US government agency has won an initial court ruling against OMICS, which the government says will help stop the academic publisher’s deceptive business practices.

Today, the Federal Trade Commission (FTC) announced that it won a preliminary injunction in September in its lawsuit against Srinubabu Gedela, CEO of OMICS Group and other companies.

The lawsuit, filed in August 2016, accused the defendants — which include Gedela and OMICS Group, iMedPub, and Conference Series — of deceptive business practices related to journal publishing and scientific conferences. The FTC alleged the defendants used the names of prominent researchers to draw conference attendees, even though the researchers had not agreed to participate; misled readers about whether articles had been peer reviewed; failed to provide authors with transparent information about publishing fees prior to submission; and presented misleading “impact factors” for journals.

On Sept. 29, Judge Gloria Navarro of the US District Court for the District of Nevada, wrote that evidence submitted by the FTC “is sufficient to support a preliminary conclusion that Defendants made misrepresentations regarding their journal publishing” and conferences, and: Continue reading US court issues injunction against OMICS to stop “deceptive practices”

Lawyers call libel suit against journal and critic “lawless” but “well written”

Mark Jacobson

A $10 million defamation suit filed by a Stanford University professor against a critic and a journal may be an assault on free speech, according to one lawyer, but at least it’s “well written.”

Kenneth White, a lawyer at Southern California firm Brown White & Osborn who frequently blogs about legal issues related to free speech at Popehat, told us:

It’s not incompetently drafted, but it’s clearly vexatious and intended to silence dissent about an alleged scientist’s peer-reviewed article.

Scientists have publicly bemoaned the suit’s existence, as reported by several outlets, including Mashable and Nature. Mark Jacobson, an engineering professor at Stanford, has alleged that he was defamed in a June article published in the Proceedings of the National Academy of Sciences (PNAS), which was critical of a 2015 paper co-authored by Jacobson in the same journal. In a complaint filed Sept. 29 in the Superior Court of the District of Columbia, Jacobson accused the journal’s publisher, the National Academy of Sciences, and the paper’s first author, Christopher Clack, an executive at a renewable energy analysis firm, of libel.

White told us that there are several pitfalls that could trip up the lawsuit, including a DC law that allows defendants an early opportunity to ask the court to dismiss cases muzzling free speech and recover attorneys’ fees. But another attorney said the complaint should at least clear the lowest hurdle in the way of getting to trial. Continue reading Lawyers call libel suit against journal and critic “lawless” but “well written”