Panel Discussion: Is it ethical behavior to sue a researcher or research journal?
Is suing a researcher of research journal ethical behavior?
Moderated by Brent Brookbush DPT, PT, MS, PES, CES, CSCS, ACSM H/FS
This discussion started on my personal Facebook page - https://www.facebook.com/brent.brookbush on July 12th, 2014
Rick Daigle My opinion is simple- I don't think we should concern ourselves with other people's issues. It's a slippery slope and I chose to stay out of it.
July 12 at 12:13pm · Like · 2
Ken O'Neill Mark Rippetoe expressed it best: CrossFit is Scientology with barbells!
Frankly, I'm so bored with the CrossFit antics that I find it easiest to ignore. Bit time fad, blew Beach Bodies out of the water.
Important thing is that's it's changed the nature of gyms from miles of crap cardio machines and myriad machines ignoring transverse plane of motion, back to barbells etc. If only dumbbells and one arm lifting through planes. But that's how I learned to train 55 years ago from old timer physical culturists and what I'm passing on now as an elder of the community. Only thing is if you train throughout life, you're not peers with elders!
July 12 at 12:15pm · Like · 2
Christy Pylypczuk Giroux I'm torn. I don't believe in CrossFits methodology of training or "certifying" coaches, it has gotten training and fitness to be words in everyday conversation. I can't tell you how many people ask if I CrossFit just because I have muscle on my body. That being said, if a study is done finding facts, people have a right to publish information for the public. B
July 12 at 12:19pm · Like
Brent Brookbush Hey Rick Daigle,
The question is not exclusively about CrossFit versus the NSCA, it is the ethics of this behavior. What if CrossFit wins the suit, or maybe loses but costs the NSCA an exorbitant amount of money to defend… will anyone ever answer this research question?
To me this seems like a power-play on the part of CrossFit (because they know that the rate of injury is high, and the nature of injuries are serious), but they want to show the world they will sue if anyone tries to prove it.
This conversation could easily include "tenure" as part of the discussion… Should researchers and journals be protected from large corporations with far more money?
July 12 at 12:21pm · Like · 2
Rick Daigle Simply because you brought specifics into this discussion it is best to not have a stance on this topic. I also strongly suggest people be very careful in their comments if they want to respond.
July 12 at 12:23pm · Like
Julie Allyson Depends… did they actively encourage participants and users of CrossFit to do the wrong thing? Are the injured professional athletes? Sounds like your average Joe might be more apt to injuring himself when doing things similar to what's described here: Injury rates with CrossFit training are similar to that reported in the literature for sports such as Olympic weight-lifting, power-lifting and gymnastics and lower than competitive contact sports such as rugby union and rugby league. CrossFit should probably have a better disclaimer on those who attempt to incorporate it into their usual routine.
July 12 at 12:24pm · Like · 1
Leon Chaitow I am unaware of the specifics of the dispute so will settle for generalities. Is the journal in which the original paper was published a peer-reviewed, medline-indexed publication? If it is, and if the article was published in good faith after diligent peer review then the journal is blameless. The editor and reviewers might want to consider their positions but all an editor can do is rely on honesty from reviewers, since this is not always present from authors…! As to subsequent use/misuse of the publicity around the alleged misinformation, this is well within the area of litigation I would have thought ?
July 12 at 12:25pm · Edited · Like · 1
Brent Brookbush Ken O'Neill as I was mentioning to Rick Daigle, I am less concerned with what CrossFit does in their boxes, but the fact that they have the ability to sue a research journal and alter the course of published information… this is a serious issue that we need to explore.
July 12 at 12:28pm · Like · 3
Kathy Benson Zetterberg This should be an interesting case to watch unfold. Personally I have always stated .. There are 3 professions that reep the benefits of CrossFit 1. Emergency room physicians 2. Orthopedic surgeons 3. Myself as a corrective exercise professional trying to put clients from CrossFit back into complete neuromuscular efficiency .
July 12 at 12:28pm · Like · 1
Nick Chertock What about funeral parlors?
July 12 at 12:31pm · Edited · Like
Brent Brookbush Kathy Benson Zetterberg, Julie Allyson and Ken O'Neill you kats are missing the point.
I AM NOT CONCERNED ABOUT WHAT YOU THINK OF CROSSFIT WORKOUTS!
Is it ethical behavior to sue a researcher, because you do not like the outcome of the study? Should researchers be protected?
July 12 at 12:33pm · Like · 2
Ryan Gibson They attack anyone who gives them any negative feedback. Definitely compensating for lack of "elite fitness" lol
July 12 at 12:33pm · Like · 1
Kathy Benson Zetterberg Brent Brookbush agreed…I am very concerned with the lawsuit and the potential outcome that could trickle down to anybody in the personal training industry!!!
July 12 at 12:36pm · Like · 2
Scotty Butcher Phd In short, no, but I don't think the suit is based on 'liking' or 'not liking' the outcome. There are allegations of data falsification, which is another story altogether, though.
July 12 at 12:37pm · Like · 2
Julie Allyson Of course not… I'm pointing out that they are doubly in the wrong. There's no way they can get damages from this. If it was a problem, they could have had another independent research company do the same study to see if they got the same results -or- if the courts rule that this research company was doing it for the sole purpose of being defamatory. It sounds like an independent study, if it's wrong, again… the burden of proof is with CrossFit having another independent research company involved… in which case they'd get slapped with a cease and desist for distributing false research. So, technically no… they aren't wrong to sue. But again, burden of proof is on them… they can get slapped with a counter-suit…
July 12 at 12:43pm · Like
Ken O'Neill It's highly ethical to bring litigation against researchers who cook the books. Let's start with Big Pharma.
July 12 at 12:45pm · Like · 1
Brent Brookbush That is a good point Scotty Butcher Phd,
There seems to be some concern that some of the data was not used appropriately in the study… so what is the penalty? A lawsuit?
July 12 at 12:46pm · Like
Brent Brookbush Hey Ken O'Neill,
This is a slippery slope and Big Pharma is a good example… what research journal would ever publish something against a pharmaceutical company with 1000's of times the resources?
July 12 at 12:47pm · Edited · Like
Brent Brookbush Great points Julie Allyson,
If the information is falsified than there should be repercussions, but a lawsuit is extreme and always puts the advantage on the side with the most money.
July 12 at 12:51pm · Like
Ken O'Neill Brent Brookbush: most exposes of Big Pharma come from inside whistle blowers or physicians who've seen through the veil of illusion. First NEJM female editor, Marcia Angell (Science on Trial) tapped what's become an artesian well of reporting.
Rupert Sheldraka and Bruce Lipton discuss Prozac. For FDA approval, the manufacturer patenting Prozac reported 80% placebo efficacy. Under the Freedom of Information Act, a researcher in Britian got hold of the bigger body of data, demonstrating a 100% placebo efficacy. Worthless pharmaceutical making huge profits while numbing down human spirits.
July 12 at 12:53pm · Like
Julie Allyson Brent Brookbush that pretty much defines the current state of our judicial system… even murderers can walk away if they have unlimited amounts of money at their disposal.
July 12 at 12:55pm · Like
Brent Brookbush Hey Ken O'Neill,
But that's my point, that was not independent research, but people inside pharma (who probably had their lives ruined). Maybe if their was some level of protection for researchers, we would see more 3rd party independent research.
July 12 at 12:58pm · Like
Julie Allyson Personally speaking… I follow "when there is smoke, there is a fire" method… if a company like this is freaking out about research that proves their product (methodology, whatever) is flawed or can harm people… then that in and of itself is cause for concern. It's highly unlikely that the person in charge of the research company woke up one day like, "hmm… who can I screw over today with my research? MUAHAHAHA!"
July 12 at 12:58pm · Like
Brent Brookbush So what do we do Julie Allyson… what would you change if you could… reasonably speaking.
July 12 at 12:59pm · Like
Melanie Clark Mogavero Not unless the researchers falsified or manipulated the data and the plaintiff can prove damages due to the tainted results.
July 12 at 1:00pm · Like
Brent Brookbush Hey Melanie Clark Mogavero,
The problem is that some of that is up to interpretation.
July 12 at 1:02pm · Like
Julie Allyson Change the laws? Certain entities are immune from lawsuits… one being the manufacturers of generic pills (I learned this from something that happened with my mother). They are immune from class-action lawsuits… (not sure how far it extends) You mentioned that they aren't, in fact, an independent research company… but for the sake of argument, maybe independent research companies should be immune from lawsuits?
July 12 at 1:07pm · Like
Julie Allyson … prove the integrity of the work and that it's for the greater/common good. … *
July 12 at 1:08pm · Like
Brent Brookbush Interesting idea Julie Allyson. Many companies and businesses are immune to various types of suits…. for example, baseball and anti-trust exemptions. Maybe research journals who undergo a stringent review of their peer review process should be immune to lawsuits from corporate entities.
July 12 at 1:15pm · Edited · Like
Julie Allyson Exactly. I'm not really knowledgeable on the topic… mostly anecdotal suggestions and experiences. I'm just a writer and a critical thinker who dropped out of film school. chyeah!
July 12 at 1:17pm · Like
Rick Richey I don't like the idea of being immune to lawsuits if there is a true injustice. Was the study done well? Above reproach? Peer reviewed and found faulty? It's is possible for a researcher to be found libel if found to be false. However, if the libel suit does not stand up against a quality research article that was published, then CF should have to pay for the researchers legal fees.
July 12 at 1:22pm · Like
Julie Allyson Then they would have government oversight. I would think.
July 12 at 1:24pm · Like
Brent Brookbush I guess the question is Rick Richey, is what are the repercussions… will future researchers even attempt to produce quality research if they know they maybe sued… a horrible experience win or lose.
July 12 at 1:24pm · Like
Julie Allyson There has to be some level of protection for these guys. How many companies could run amok, unchecked…. peddling snake oil? We already have the FDA but they are pretty backlogged. Imagine a world where ephedra was still on the market and the side-effects were kept on the "down low."
July 12 at 1:28pm · Like
Rick Richey It will certainly have an effect on research, and how research is reviewed. If NSCA published a poorly done report it will tighten the screws on the review process and the willingness to misrepresent data. Universities may stop funding "controversial" topics, which they shy away from often anyway ($ game). However, I think this should open the door to more CF research, which people won't do now!
July 12 at 1:30pm · Like · 1
Barbara Fralinger Ok Brent - who wants to sue you?
July 12 at 1:31pm · Like · 2
Brent Brookbush LOL Barbara Fralinger
July 12 at 1:32pm · Like
Barbara Fralinger Oh wait - they would have to sue both of us!! Who did you make mad now??
July 12 at 1:33pm · Like
Barbara Fralinger Both my brother and sister are busy and can't represent us.
July 12 at 1:33pm · Unlike · 1
Brent Brookbush Are they suing us for being so ridiculously effective at teaching Functional Anatomy at Rowan U?
July 12 at 1:35pm · Like · 2
Barbara Fralinger You tell me - I just figured you ticked someone off again and now they want to sue us out of spite.
July 12 at 1:41pm · Like
Howard Fidler No its not unless libel has occurred. If this goes forward it will open up flood gates
July 12 at 1:56pm · Like
Deanna Lewis Prior to becoming a Physical Therapist, I was a researcher and a statistician. If we thought a study was biased or disagreed, we would work towards doing our own study or in minimum send an editorial letter with our refutes. That's how you advance a field--if advancing a field is your interest. To me, effecting a law suit seems to be a, quite frankly, lame response--the response of a bully. I think it comes down to whether if not the researchers performed ethical research and clearly stated their intentions, biases, and limitations. If this was done, I think they should be protected. If not, I feel they should be held to appropriate scrutiny. I do not feel that a law suit should be the first response.
July 12 at 1:58pm · Unlike · 3
Brent Brookbush Hey Kenneth E. Hoover,
The comment was from a friend looking out for me (his comment was code for "take out the specific names in this lawsuit", and I did)… so take that for what it's worth. I agree with you that we need to take a stand, but how is the question? Do we make research journals exempt from lawsuit, do we create a coalition of journals so they can defend one another, do we boycott or otherwise condemn those suing and open ourselves up to liable.
And what responsibilities do the researchers have… if you have ever done research you know that things are not as black and white as we would like… it is hard to create a controlled environment and statistics is a strange science. What if they mess-up… not "cook the books mess-up" but make a call on a %50/50 situation. For example, do you keep the high and low values that from your perspective are out-liers but negate your results, or do you get rid of them which gives your study statistical significance?
July 12 at 2:03pm · Like · 1
Deanna Lewis Brent Brookbush, not many know of the inherent problems with significance testing. It's worth a google.
July 12 at 2:09pm · Like · 2
Kenneth E. Hoover Thanks for the context Brent Brookbush. Makes all the difference in the world. I don't believe making research or researchers "immune" is likely or necessarily the right solution, but I'd vote for it. The criteria for how suits are filed or disqualified might have promise? Not my expertise for sure, but it is an important challenge to deal with.
July 12 at 2:12pm · Like · 1
Brent Brookbush Definitely Deanna Lewis,
I think research is uber-important, but every time I hear the term evidence-based practice (as opposed to "evidence-refined practice) I think "Really?" so we are supposed to trust these statistics more than all other methods of determining what makes for a successful outcome. Research is a powerful tool, but it is not the foundation, materials, house, and the furniture inside.
July 12 at 2:14pm · Like · 2
Ryan Crandall .
July 12 at 2:20pm · Like
Brent Brookbush Thanks for some details regarding the Peer-review process Leon Chaitow, it is a complicated issue, and I hope in this recent case that the process will be ample defense for publication and show no fault on the part of the publisher. Establishing a research journal is hard enough, making enough money to continue publishing is a mountain of a challenge, I doubt paying for lawsuits is in the budget of any well intended journal.
July 12 at 2:48pm · Like
Shauna Pearce When a researcher carefully follow the rules and guidelines set in place to guide the research and they can show and prove every step they took to come to their conclusion they should be protected from a law suit. Can any one imagine consumer reports being sued? We as consumers need to know the truth about products and services. When the facts, results, and conclusions of research show a negative result, then that product, or industry, that "what ever" needs to address the deficiency whether we are talking about faulty car parts, children's toys, bad sheet rock, or faulty heart pace makers. dangerous is dangerous harmful is harmful no matter the subject being discussed.
July 12 at 3:20pm · Unlike · 1
Andrew Kirby Who is being sued exactly?
July 12 at 3:33pm · Like
Tony Susnjara The particular case in question seems to be a form of bullying. There is something called legal abuse where one party with more financial and therefore legal power uses the legal system to control, dominate and threaten someone with less financial and legal power. Not sure what the solution is. Anyone can sue anyone and the point is that the courts are supposed to decide if the case is valid or not.
July 12 at 7:12pm · Unlike · 2
Donna Clinton If you have legal questions, let me know specifically. I've worked for lawyers for many years and my son is an attorney. Maybe I can find out a few ways you can protect yourself, even lawyers have carefully word things on their websites
July 12 at 8:22pm · Unlike · 1
Donna Clinton There may be a simple clause you may need to use
July 12 at 8:23pm · Like
Brent Brookbush Hey Donna Clinton,
I am not being sued, and spurred this discussion is the recent lawsuit that CrossFit, Inc filed against the National Strength and Conditioning Journal.
I would love any info you have regarding what rights researchers may have, what protections journals have, etc… to me suing researchers, published in peer-reviewed journals, seems unethical, but… there have been some great points made to both sides in this discussion.
July 12 at 9:02pm · Like · 1
Donna Clinton Will find out info for you. Courts will throw out frivolous lawsuits. But always good to know how to avoid.
July 12 at 9:16pm · Like · 1
Shauna Pearce brent the only thing that is coming to mind is that a few years ago didn't skechers make a shoe and then claim it would tone your legs and instead people started spraining their ankles? My point is, if a company states "X" about their product and yet consumers can prove repeated harm from the product is that not proof enough? does that not back up research that states Product X is flawed in some way?
July 13 at 3:03am · Like
Tony Susnjara Shauna, it would be great if it were so simple but the problem is not who is right here, the problem is that someone with a deep pocket can destroy someone with a shallow one if the first person decided to initiate expensive litigation against the second because the authentic research proved to be disadvantagous to the first.
July 13 at 3:07am · Edited · Like · 1
Gary Miller I think CrossFit should not be allowed to sue. I think if allowed to sue this will cause others to try and do the same (sue) when something is said that is not liked. I think we all know that certain styles of training are unsafe and injuries seem to be more frequent with CrossFit methods. And let's not forget FREEDOM OF SPEECH! Its a fine line but I think NSCA study is more than likely right on with their research.
July 13 at 9:53am · Edited · Unlike · 1
Brent Brookbush Great points Shauna Pearce, Tony Susnjara and Gary Miller. The rate of injury should deter use of the product, but it does not… in fact, there seems to be a certain amount of pride in injury, recovery, and getting back to what injured them… like a purple heart, and getting back into the war.
Their does seem to be question about a certain set of data, that may in fact be an error on the part of the researchers. The question becomes what punishment is deserved, and does the journal have any responsibility for missing it?
Of course my biggest concern is that this will alter the direction of future research. Nobody will ever do research on the rate on injury concerning a particular brand of fitness ever again, and the consumer will pay the price.
The question posed in this debate is a murky ethics question… Should researchers be a protected group? I am not sure I have the answer…
I would venture to guess that a legal precedent could be set that ensured that legislation was a last resort and damages were limited to reduce any motivation for suing with the intention of compensation for damages and/or financial reward.
Strangely, this question and the recently discussed lawsuit has shed some light on research itself… that is… it is far from perfect. As we head toward "evidence-based practice," we may want to think about how much whether research "refines" our practice, or "defines" our practice.
July 13 at 10:39am · Like · 2
Tony Susnjara Here is the issue as I see it Brent. Someone really could falsify research and use it to advantage one commercial cause at the expense of another. That is why we cannot prevent people or organisations from suing researchers. So what can be done? Ideally, if this goes to court, the researcher can show proper due diligence and that will be the end of it and it will also be the precedent that protects researchers in the future. Researchers and institutions could use similar tactics as corporations, namely, they set up a series of entities, trusts, corporations that act as barriers to being sued personally, this happens in business all of the time.
As for the validity of CrossFit, injury rates etc. I think that comes down to informed consent. Like you, I am in the health, fitness, wellness industry and like you, I go to great lengths to minimise the risk of injury and maximise the benefits to people who use my methods. However if we take one small step sideways from fitness to sport, it's a different universe. In most codes of football, the objective is to deliberately cause harm. And why is MMA the fastest growing sport on the planet? I often wonder if contact sports are a way of channelling the darker side of human nature in a more constructive way than street violence or worse still - war. Haven't gone into extreme sports yet but that is another category.
So if CrossFit has higher injury rates than other approaches then so be it, as long as people are given the opportunity to make informed consent then it becomes their personal choice. We don't ban kids from skate parks and we don't keep people of snowfields even though more deaths occur there than we are aware of.
Finally, as a product developer in the fitness industry, it's interesting to see the impact CrossFit has had on the industry. Several of the largest manufacturers of machine resistance equipment have told me that their sales of secularised, isolation strength training equipment is way down and that gyms are investing a lot more in small accessories like med balls, kettle bells, power bags and tools like that. The good news is that when these products are applied in commercial gyms, the intensity is reduced to safer levels.
July 13 at 7:08pm · Unlike · 1
Sylvester Stemley Lee Webber take a look see
July 14 at 12:15pm · Like
Jason Erickson The whole suit is a pile of crap. If they don't like the study, they are only bringing much more attention to it.
Having read some discussion about how the study was conducted, I'm not particularly impressed. Perhaps the peer-review process missed some problems, or maybe those concerns didn't come to light until after the study was published. In any case, even (much more) prestigious journals such as Nature, JAMA, and others have occasionally published studies that were acknowledged as controversial and in some cases quite flawed. Those journals pursued a number of options, such as publishing rebuttal papers and third party papers studying the same question(s) to see whether they obtained similar/different results.
The whole notion of suing a journal over a published paper is bullshit. Instead of rebutting the paper via the same channel and presenting a solid case for why the first paper was flawed, suing is a purely punative tactic that will NOT rebut the original paper. At best, it's a scare tactic that, if successful, may pave the way for many, many more similar cases involving all academic/professional journals. I imagine legal teams salivating in anticipation of suing journals and any other publications that dare publish anything that contradicts what they want the public to hear.
July 14 at 2:19pm · Unlike · 4
Brent Brookbush My thoughts precisely Jason Erickson,
Punish academically for poor methodology… suing is an unnecessary slippery slope. Thanks for chiming in.
July 14 at 2:26pm · Like
Donna Clinton Legal information for research writings (New York State Law)
This is some information/advice given to me by a New York State attorney.
As to New York law, truth is an absolute defense to any Defamation cause of action. (New York Law is actually better than California wherein the matter of Cross Fit, Inc v. NSCJ is pending. The defamation laws in California are much more liberal and have a lower threshold than in New York). In New York, if a researcher uses a company name and can substantiate the claim being made in the article, then that constitutes an absolute truth. Once truth is established by the defendant (in New York), then the action commenced is considered frivolous and the Court will discontinue the action.
There are two other causes of action that can be made which are known as Intentional Interferences. The first cause of action that can be made is that if a writing refers to a company and that company suffers a loss with a prospective business relationship; and (2) if the company suffers a loss with existing business relationship(s) due to the writing.
Seek advice with your Professional Liability Insurance Agent who you have your malpractice insurance. There may be an off shoot to existing insurance that covers academic/scholary writing. Then the insurance company would pay the defense costs. If this is not covered in your exisiting insurance, then have it added.
Remember to always have insurance and that insurance can be written for any kind of loss.
A further piece of advice is to contact professors/doctors where you received your degree(s) to see what type of insurance they have, if at all. They may be able to shed some light on this as well.
July 14 at 8:10pm · Like · 1
Brent Brookbush Thank you Donna Clinton,
Great piece of info.
July 14 at 8:19pm · Like · 1
Melinda Reiner This is out of my realm…no legal experience. But, I'm finding the commentary very interesting. A lot of implications/precedence to be set by this case.
July 14 at 8:41pm · Like
Donna Clinton Just as an aside. Attorneys consider California the ridiculous state because the things that state allows are ridiculous. I would not put any validity in any outcome this case or any other case. No lawyer that I have ever known does. Plenty of articles written in New York call out Cross Fit Inc. Notice that they waited to bring suit to a Company with California based offices. This is how they get false fame and California (and several other states) will drag it out at length
July 14 at 9:15pm · Unlike · 1
Rob Fluegel I think Jason nailed it with his response. Suing shouldn't be used in these cases where someone doesn't agree with what is published. There is a process one must go through in publishing research in a peer reviewed journal. Responses to research are usually first handled with "invited commentary" and/or maybe a letter to the editor. And as Jason said, if an organization disagrees with the study, they certainly can do a follow-up study to refute the claims. Of course that would have to also be published in a peer reviewed journal and not the "WOD Blog".
Funny that Jason mentioned that Nature acknowledged that they had published some flawed studies before. I got a FB ad today to like a page for Wagner College and this was the link that it brought you to:
http://wagner.edu/…/wagner-professor-helps-uncover-a…/
Wagner professor helps uncover a major scientific fraud | Alumni & Friends
wagner.edu
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