Expert Report by E. H. Morreim, JD, Ph.D: CrossFit, Inc., V. National Strength and Conditioning Association

Throughout CrossFit’s litigation with the NSCA, the NSCA has consistently defended its decision to coerce and publish fake injury data about CrossFit training by deferring to its purported “rigorous” and “double blind” peer-review process led by William Kraemer. Specifically, the NSCA has claimed—both in public statements and in court filings—that its peer-review process is beyond reproach and facilitates scientific integrity by having objective industry experts review manuscripts and provide comments to the authors (“double blind” is supposed to mean that identities of authors and peer reviewers are hidden from each group).

Before the May 26, 2017, sanctions order finding that the NSCA withheld numerous documents from CrossFit and lied under oath—and also ordering a forensic evaluation to provide CrossFit with a full document production—CrossFit retained E. Haavi Morreim as an expert witness to review the publishing ethics of the NSCA’s behavior during the peer-review process for the Devor Article. Morreim is a professor in the College of Medicine, University of Tennessee. For 20 years, her research and writing have explored medicine’s changing economics, with numerous publications in journals of law, medicine, and ethics.

Morreim issued two reports in the federal action against the NSCA, both of which were drafted before the sanctions order. Her initial report, filed May 8, 2017, and the supplement report, filed Feb. 22, 2018, are provided below.

Morreim will be providing another report once CrossFit receives a complete document production for the neutral forensic evaluator. Morreim has not yet had opportunity to consider all the evidence that led the discovery referee in the NSCA’s recently dismissed state action against CrossFit, Founder Greg Glassman and two CrossFit employees to conclude on Dec. 5, 2017, that:

• “Dr. Kraemer had been participating in an anti-CrossFit crusade, viewing CrossFit as one of its primary competitors in the fitness industry.”
• “Dr. Kraemer, as the (NSCA’s) Editor-in-Chief, purposely manipulated events to produce a false and scientifically invalid report injurious to CrossFit and helpful to NSCA.”
• “CrossFit produced credible evidence that Dr. Kraemer steered the authors of the Devor study to discuss injuries among CrossFit members. Prof. Devor’s first article had no injury data at all. The insertion of injury data came after Dr. Kraemer indicated that such inclusion would make the article publishable.”
• “When made aware of the clear falsity of the Devor study, Dr. Kraemer failed to take reasonable steps to correct the error and to disseminate the correction. Instead he hid behind the peer review process.”

CrossFit looks forward to Morreim’s forthcoming second supplemental expert report that will address the full scope of suspected NSCA misconduct during the peer-review process for the Devor Article.

Despite lacking more recently discovered evidence when she issued the two reports above, Morreim skillfully delineated how the NSCA’s authors and editors failed to follow well-established ethical standards. First, it is not acceptable for scientists to fabricate data, nor to falsify institutional review board approval, informed consent, and subject supervision. Second, journals are supposed to pursue ethical complaints such as CrossFit’s and to refer credible complaints to the relevant university for investigation. The NSCA failed to appropriately respond to CrossFit’s evidence even after developments demonstrated that its concerns about data fraud were “undeniable.” And not only did the NSCA fail to pursue credible, substantiated evidence that its paper fabricated data, but the NSCA’s late attempt to issue a correction (“erratum”) also exacerbated the damage to CrossFit affiliates’ reputations. As Morreim discussed, NSCA staff were well aware that their correction misled readers by falsely suggesting that training in a CrossFit class had injured two of the subjects. Morreim concluded that the NSCA’s repeated scientific misconduct has been “akin to the academic equivalent of Fake News.”