Russell Berger, Volume I July 17, 2015 Page 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ___________________________________ CROSS-FIT, INC., a Delaware ) corporation, ) ) Plaintiff, ) Case No. ) 14CV1191 -vs) JLS KSC ) NATIONAL STRENGTH AND CONDITIONING ) ASSOCIATION, a Colorado ) corporation, ) ) Defendant. ) ___________________________________) VIDEO DEPOSITION OF RUSSELL BERGER VOLUME I FRIDAY, JULY 17, 2015 8:43 A.M. 550 WEST C STREET, SUITE 1900 SAN DIEGO, CALIFORNIA REPORTED BY: DEBERA ANNE DORAN CSR NO. 7821 U.S. LEGAL SUPPORT (619) 573-4883 611 Russell Berger, Volume I July 17. 2015 Page 230 Page 232 1 that. But I knew that. 1 the researchers would have even be able to gather that 2 I called and left a -- not a voicemail. 2 data. And I explained to ltim tltat had firsthand 3 I left a message with his secretary just saying that I 3 testintony from four of the participants and two others 4 was interested in speaking witlt hint regarding the Devor 4 who were involved with the saying that tltey 5 Istudy. And received a call back the next day from 5 believed that the data was questionable ifnot fully 5 Dr. Kracmer specifically. 5 fabricated. 7 Okay. And had you ever 7 I basically unloaded every cottcern that 3 Dr. Kraemer before?.? 8 had attd every bit of evidence that ltad over the photte 9 A I had not. 9 to him. 10 Okay. I lad you tried to do that after seeing 1? Ile then said. well -- and I'm paraphrasing 11 the IAMP article? 11 here been use all I had was handwritten notes. didn't 12 A Sony? 12 record tltis conversation. 13 Had you tried to do that after seeing the 13 tle said that there wasn't much that he could 14 Cl IAMP article? 14 do. lie said the next step would be to reach out attd try 15 A Are you asking me if chronologically this 15 to contact the author. 15 phone call came aller me seeing the CHAMP article?.? 1?5 I reminded him that I had spoken to the 17 No. no. You said tltat you never tried to 17 authors attd that they were unable attd unwilling to answer 13 contact Dr. Kracmer before or never spoke to ltitn before. 13 Iny questions attd had refused to contact me furtlter. 19 And i was wondering ifyou had tried to do so after you 19 And he said: Well. thatarticle. yott know. the year or two before 20 He said that he was not surprised by the 16 21 the Devor study. 21 percent. He speci?cally said that these types of 22 A Oh. no. don't think so. no. 22 programs -- by that he later elaborated that he meant 23 So this was the very first attetnpt to place 23 high intensity training -- had a higher risk, a higher 24 a call to Dr. Kraemer'.? 24 rate of injury associated with them. He gave no citation 25 (stop)? 25 for that claim. So he said he was unsurprised by the Page 231 Page 233 1 A tltink so. yes. 1 results. And he said that because it had been peer 2 All right. Did you write an email to him as 2 reviewed, he said, that was good enough. And that's 3 a tneatts of tryittg to contact hint to discuss the Devor 3 another direct quote, good enough. He had no concerns 4 article?i' 4 about it as far as he was concerned because it had been 5 A Prior to the phone call?.J 5 peer reviewed. 5 Yes. 5 He said atone point I asked him 7 A No. And I didn't after the phottc call 7 speci?cally -- and this is another quote that I remember 3 because I thought the phone call was sufficient and 8 very clearly don't you feel that you have a 9 covered all of my concerns. and I got an answer from 9 professional responsibility to look into these claims 10 Dr. Kraemer that I figured was final. and was ttol going 1? given how signi?cant the evidence that this is 11 to make any other headway in communicating with ltim. 11 fabricated data is. 12 Okay. What was the discussion with 12 And he said: No, I don't because, if I was 13 Dr. Kraemer about?! 13 to investigate every claim about every study that 14 A It was a fairly discussion that 14 somebody had a problem with, we would never get anything 15 involved my introduction involved a summary of 15 published. 15 the study I had published in The lCrossl-"it Journal. and a 1?5 Now, the discussion with Dr. Kracmcr. would 17 suntntary of my conversation with Dr. Devor which told 17 you characterize it as civil'.? 18 hint also there was a transcript of published in The 18 A Oh. absolutely. 19 CrossFit Journal. I said that these were botlt publicly 11" Okay. There's no sense of any antagonism 20 available I would be happy to send hint copies 20 between yourself and Dr. Kraemer?.? 21 if he needed to see them. 21 MR. IAMA: Objection to the extent that it 22 I explained to him the significant issues 22 calls for speculation. It?s 23 regarding the data in question. the to percent figure 23 TI IE WITNESS: I can't say with any certainty 24 front the participants who did not test 24 how he felt about it. But didn't feel that it was 25 25 explained to him that it was logically incoherent that antagttositic frotn his approach in speaking to me or vice 59 (Pages 230 to 233) U.S. LEGAL SUPPORT (619) 573-4883 612