In what appears to be a first, a U.S. court is forcing a journal publisher to breach its confidentiality policy and identify an article's anonymous peer reviewers.
The novel order, issued last month by a state judge in California, has alarmed some publishers, who fear it could deter scientists from agreeing to review draft manuscripts. Legal experts say the case, involving two warring fitness enterprises, isn't likely to unleash widespread unmasking. But some scientists are watching closely.
The dispute revolves around a 2013 paper, since retracted, that appeared in The Journal of Strength and Conditioning Research. In the study, researchers at The Ohio State University in Columbus evaluated physical and physiological changes in several dozen volunteers who participated for 10 weeks in a training regimen developed by CrossFit Inc. of Washington, D.C. Among other results, they reported that 16% of participants dropped out because of injury.
In public and in court, CrossFit has alleged that the injury statistic is false. CrossFit also claims that the journal's publisher, the National Strength and Conditioning Association (NSCA) of Colorado Springs, Colorado—which is a competitor in the fitness business—intentionally skewed the study to damage CrossFit. NSCA in turn has countersued, accusing CrossFit executives of defamation. Amid the legal crossfire, the journal first corrected the paper to reduce the number of injuries associated with CrossFit, then retracted it last year, citing changes to a study protocol that were not first approved by a university review board.
CrossFit suspects the paper's reviewers and editors worked to play up injuries associated with its regimen, and it has asked both federal and state judges to force the publisher to unmask the reviewers. In 2014, a federal judge refused that request. But last month, Judge Joel Wohlfeil of the San Diego Superior Court in California, who is overseeing NSCA's defamation suit against CrossFit, ordered the association to provide the names.
That order is an outlier, attorneys familiar with such disputes say. They note that over the past 3 decades at least three other parties have unsuccessfully asked courts to unmask reviewers, going up against publishers including the American Physical Society, Elsevier, and the Massachusetts Medical Society, which publishes The New England Journal of Medicine (NEJM).
Academic publishers can't claim special protections for information provided in confidence, unlike journalists who can protect confidential sources under state shield laws. But judges have generally agreed with journals that unmasking reviewers would do more harm than good. In one notable 2007 case, pharma giant Pfizer subpoenaed NEJM for information about peer reviewers as part of a class action lawsuit related to the marketing of its painkillers Bextra and Celebrex. In an affidavit submitted on behalf of NEJM, Donald Kennedy, former president of Stanford University in Palo Alto, California, who was then the editor-in-chief of Science, stated that were Pfizer to win, "I have no doubt whatever that … scientists would think twice about the next reviewing assignment, and that many would decide not to help." The judge quashed Pfizer's request.
Despite such high-profile decisions, journals are constantly defending reviewer confidentiality, says Paul Shaw, an attorney at Verrill Dana in Boston who has represented NEJM for 17 years. Over that time, Shaw estimates he has fielded 30 to 35 subpoenas asking for information about a peer-reviewed article—usually one related to drugs or medical devices at the center of class action lawsuits. "Invariably," he says, "one of the requests will be for the identity of and memoranda done by the peer reviewers." Usually, Shaw responds by sending a standard objection letter that puts the matter to rest.
So why did the CrossFit case take a different turn? One reason is that this time the publisher is the plaintiff, not the defendant, says Joshua Koltun, an attorney based in San Francisco, California, who has reviewed the case. Another is that the identity, conduct, and motivations of the reviewers could be key to CrossFit's defense. NSCA, he notes, "is saying: ‘I'm going to sue [CrossFit] for saying I committed fraud, but I'm not going to let you see info that might prove [CrossFit's claim].’ You can't have your cake and eat it, too."
Shaw, for one, believes the case is so unusual that it won't have broad ripple effects. "I don't think it has any precedential value whatsoever," he says. "For lack of a better legal descriptor, the facts seem very messy."
This story is the product of a collaboration between Science and Retraction Watch.