Mikulas Popvic, M.D, DAB No. 1446 (1993)

  Department of Health and Human Services

        Departmental Appeals Board

  RESEARCH INTEGRITY ADJUDICATIONS PANEL

SUBJECT:        Mikulas Popovic, M.D., DATE:  November 3, 1993 Ph.D.
   Docket No. A-93-100 Decision No. 1446

   DECISION

Mikulas Popovic, M.D., Ph.D. requested a hearing on the finding of the
Public Health Service's Office of Research Integrity (ORI) that he had
engaged in scientific misconduct when reporting scientific methods and
data in a 1984 paper.  ORI deemed the alleged misconduct "relatively
minor" and proposed responsive measures which may be similarly
described:  rather than debarment from federal research funding, ORI
proposed to require only a three-year period of "close supervision" of
Dr. Popovic's laboratory work.

In spite of the narrow focus of this proceeding, this case has compelled
us to parse a record reflecting years of investigations, thousands of
pages of documents and lawyers' briefs, a hearing which lasted 12 days,
and the time, attention, and disagreement of dozens of scientists,
investigators, and lawyers -- all focused essentially on the meaning
which we should give a handful of words and notations contained in one
heavily-edited paper written by a scientist with limited English skills
during a volatile period of scientific discovery a decade ago.  The
paper in question, it is undisputed, made a major and lasting
contribution to establishing that a retrovirus was the etiological agent
of AIDS -- even assuming the most ambitious reading of error into the
parts in question here.

One might anticipate that from all this evidence, after all the sound
and fury, there would be at least a residue of palpable wrongdoing.
That is not the case.  On reviewing this lengthy record and all the
evidence and argument related to each of ORI's allegations, and
notwithstanding the vigorous efforts of ORI counsel, we find that ORI
was simply unable to prove by a preponderance of the evidence that Dr.
Popovic is guilty of scientific misconduct -- even under standards first
promulgated years after the paper was published.

As we describe below at length -- in fact, in detail which represents
the first time after all these years that there has been a
comprehensive, independent review of all the evidence, tested in the
fire of full confrontation by Dr. Popovic -- ORI's findings,
individually and collectively, contained fundamental flaws:  for
example, ambiguous language is read one way among other credible
possibilities, and such choices in turn become untested assumptions
underlying other evidence and expert testimony.

How could it happen that such a massive effort produced no substantial
evidence of its premise?  Part of the answer may be that early on,
investigators' attention was on controversies related to
misappropriation of the French LAV virus, the conduct of other
scientists, and a patent dispute -- matters which, it is important to
note, are not in dispute here but which were regarded as extremely
serious.  This dispute is largely vestigial.  Undoubtedly, many factors
may have played a part:  the long and disputatious course of this case,
difficulties involved in reconstructing events that occurred years
earlier, repetitive reviews, layering and bootstrapping of evidence,
complexity of the issues, and human nature.  Whatever the cause, we can
assure both ORI and Dr. Popovic of this:  we have carefully considered
each and every argument and item of evidence in this record --
individually and collectively -- and we have concluded that the record
does not support a finding of scientific misconduct.

Immediately following is a summary of our decision.  After that, we give
an overview of the legal and factual framework before proceeding to our
detailed analysis.

    SUMMARY

The ORI findings of scientific misconduct involve a paper published in
1984 in Science magazine, "Detection, Isolation, and Continuous
Production of Cytopathic Retroviruses (HTLV-III) from Patients with AIDS
and Pre-AIDS."  Dr. Popovic was the first listed author and principal
researcher for the experimental work reported.  This paper and three
companion papers published in the same issue of Science are regarded as
a "tour de force" of science.  The paper in question is regarded as a
seminal work, possibly the most important paper in virology in the 20th
century.  Together the four papers established that a retrovirus was the
cause of acquired immune deficiency syndrome (AIDS).  The Popovic
Science paper reported on a cell system which could continuously produce
this retrovirus.  Dr. Popovic's success in establishing this cell system
permitted more detailed study of the virus as well as development of the
blood test needed to ensure the safety of donated blood supplies.

The Popovic Science paper was subject to intense scrutiny as part of an
investigation lasting three years.  This investigation focused primarily
on allegations made in a 1989 newspaper article that the laboratory
where Dr. Popovic was employed, the Laboratory of Tumor Cell Biology at
the National Institutes of Health (NIH), had misappropriated an isolate
of the AIDS virus from the Pasteur Institute in France.  In a final
report issued December 29, 1992, ORI found that one sentence and seven
data points in the Popovic Science paper had been falsified. 1/
However, ORI stated:

 The confirmed scientific misconduct on the part of Dr. Popovic
 is relatively minor, does not invalidate the findings of his
 breakthrough research, and should not preclude his employment as
 a scientist.

ORI Final Report at 61.  Dr. Popovic appealed the ORI findings.

Under the guidelines for these cases, we held an evidentiary hearing.
ORI had the burden of proving by a preponderance of the evidence both
that Dr. Popovic committed scientific misconduct, and that ORI's
proposed administrative action, close supervision, was appropriate.

Based on the record before us, we conclude that ORI did not prove by a
preponderance of the evidence that Dr. Popovic committed scientific
misconduct.  Specifically, ORI did not prove that the Science paper
contains untrue statements or data, much less that it contains
intentional falsifications.

      A. GENERAL FLAWS IN ORI'S CASE

 We found the following general flaws in the evidence ORI
 presented:

o  Each of the findings of scientific misconduct was based on reading in
a particular way language which, in context, was merely ambiguous.
ORI's reading of that language was developed when the focus of the
investigation was on entirely different issues.  Overall, the testimony
at the hearing did not support ORI's reading.  Testimony by the expert
scientific advisors on whom ORI relied in reaching its ultimate
conclusions merely reflected ORI's reading rather than a critical
examination of the actual language in context.

o  The opinions given at the hearing by ORI's scientific advisors were
based on misunderstandings about what was involved in the research at
issue and what Dr. Popovic and others had said.  While these advisors
were experts with impressive credentials, they were not asked by ORI to
conduct a first-hand investigation.  Their information was largely
derived from the ORI investigators' understandings, which in some
instances ignored or misrepresented evidence in the record.  Moreover,
none of these advisors had direct experience isolating a novel
retrovirus.  Since their opinions were based on a number of erroneous
assumptions, they were largely irrelevant.  Testimony by the one
retrovirologist who testified for ORI who could be considered a
disinterested expert supported Dr. Popovic's case more than ORI's.

o  These advisors drew unreasonable inferences from the non-scientific
evidence in the case.  For example, one scientific advisor inferred that
since the English in other papers by Dr. Popovic was "pretty good," he
was not credible in claiming that he could not understand the nuances of
the language at issue.  This inference is unreasonable.  Unrebutted
evidence shows that some papers by Dr. Popovic had been translated by
others from his native language, that some papers were heavily edited,
and that Dr. Popovic's English skills were in fact limited at the time
he drafted the Science papers (which also was subjected to substantial
editing).

o  ORI and its experts also did not have a clear idea of the proper
legal and scientific standards to apply to Dr. Popovic's conduct.  They
faulted him simply for doing things differently from how they would have
done things.  In evaluating Dr. Popovic's conduct against their own,
they also applied their experience in other disciplines in a way that
failed to take into account the nature of the experiments reported in
the Science paper at issue and the status of AIDS research at the time.

o  ORI gave an importance to the matters at issue here which is not
justified when the paper is examined as a whole.  None of the matters
here has any significance to the validity of the major conclusions of
the paper.  ORI's advisors were clearly frustrated by the difficulties
in addressing the issues raised by the 1989 newspaper article.  This may
have led them to consider out of context the method and data at issue
here.

Next we summarize our determinations in relation to each of ORI's
particular findings.

       B. ORI'S PARTICULAR FINDINGS

ORI'S FIRST FINDING CONCERNS THE FOLLOWING SENTENCE, IN A PARAGRAPH
DESCRIBING INFECTION OF A PARENTAL T-CELL LINE:  "THE CONCENTRATED
FLUIDS WERE FIRST SHOWN TO CONTAIN PARTICLE-ASSOCIATED RT [REVERSE
TRANSCRIPTASE]."   ORI found that this sentence was false because ORI
found that cell cultures from individual patients with AIDS or pre-AIDS
were not shown to be RT positive before the cell cultures were used to
infect the T-cell line.  This finding was based on ORI's reading the
term "concentrated fluids" to mean individual patient samples and the
"first" to be intended to establish a priority in the timing of the RT
tests compared to the infection.

1.      We conclude that ORI's first finding is not supported by a
preponderance of the evidence, for the following reasons:

o  The evidence as a whole shows that the "first shown" sentence does
not necessarily have the meaning ORI ascribed to it.  ORI's reading
ignored Dr. Popovic's and others' consistent explanations of what was
meant by the term "concentrated fluids" in that sentence:  the fluids
that were first pooled and then concentrated for each of the three
infections of the same cell line recorded in Dr. Popovic's notebook.  At
the hearing, ORI presented no evidence to support its assumption that
the fluids were concentrated before pooling -- indeed, some evidence ORI
presented undercuts that assumption because it indicates that it would
have made more sense to pool the fluids before concentrating them.
ORI's reading of the purpose of the word "first" in that sentence is
also not the only reasonable reading, when considered in context.  The
point of the paragraph was to establish that the virus had been
transmitted from patient fluids to the parental T-cell line.

o  While ORI established generally that there would have been some
reason to test for RT activity before pooling patient cultures, ORI did
not establish that Dr. Popovic would have viewed not doing so as
illogical.   Dr. Popovic's explanation of why he pooled fluids from the
patient cultures is reasonable, not directly rebutted, and supported by
other evidence which shows it is a technique that he would likely have
used in a practical sense to isolate a suspected retrovirus.

o  ORI did not establish that Dr. Popovic drafted the "first shown"
sentence, that his attention was drawn to it during the editing process,
or that, even if he noticed it, he would have recognized that it might
have been misinterpreted by others.  The evidence shows that many others
were involved in editing the paper, that the sentence may have resulted
from a purely editorial change, and that Dr. Popovic did not have the
skills in English to recognize subtle distinctions in meaning.

o  ORI did not show that the paragraph in which the sentence appears is
the methodological section of the paper, or that Dr. Popovic would have
had a motive to falsify his methods.  The paragraph in question is not
the only instance in the paper of virus isolation, so it simply does not
have the importance in the context of the overall paper that ORI
ascribed to it.  The main complaint of ORI's witnesses was that the
pooling technique used in infecting the parental cell line was not good
science.  Contrary to what ORI argued, however, the paragraph in
question does not hide the fact that more than one patient sample was
used to infect the parental T-cell line.  We find it highly unlikely
that Dr. Popovic would have revealed that he used a less than ideal
technique and then chosen an ambiguous at best method of misrepresenting
the logic of that technique.

SECOND, ORI FOUND THAT SIX "ND" ENTRIES IN TABLES 1 AND 2 IN THE PAPER
FALSELY REPORTED THE EXPERIMENTAL RESULTS, GIVEN THE DEFINITION "ND, NOT
DONE" (WHICH APPEARS IN FINE PRINT IN THE MIDDLE OF THE LEGEND TO TABLE
1).  ORI interpreted "not done" as meaning "not performed" (in the sense
of not even attempted).  ORI concluded from the laboratory records that
the experiments reported as "ND" had been performed.  .2.     We
conclude that ORI's second finding is not supported by a preponderance
of the evidence, for the following reasons:

o  The evidence shows that both ND and "not done" are subject to
differing interpretations, some of which would accurately represent the
results of the reported experiments.  ORI did not substantiate its view
that "not done" can only mean "not performed."

o  Persuasive testimony by expert retrovirologists corroborates Dr.
Popovic's testimony that his use of "ND" involved a reasonable judgment
of how to report the experimental results.  This expert testimony also
showed that reporting the entries exactly as they appeared in the
laboratory records would not have made any difference in how a
retrovirologist would evaluate the data in the tables.

o  The expert testimony on which ORI relied was based on reading the
technician's notes in a way which is not consistent with her testimony
on what she meant, which fails to consider the nature of the experiments
reported, and which fails to consider other experimental results.  These
other results, of parallel tests, contradict ORI's expert advisors'
reading of the laboratory notes to mean that there was no virus
expression.

ORI'S THIRD FINDING WAS THAT A 10% ENTRY IN TABLE 1 WAS FALSE BECAUSE IT
WAS INCONSISTENT WITH THE TECHNICIAN'S RECORDED READING OF ASSAY RESULTS
ON A SLIDE AND BECAUSE THE 10% DID NOT APPEAR IN ANY LABORATORY RECORDS
THAT WERE AVAILABLE IN 1990 WHEN THE INVESTIGATION BEGAN.

3.      We conclude that ORI's third finding is not supported by a
preponderance of the evidence, for the following reasons:

o  ORI's finding on the 10% entry is also based on a misreading -- in
this instance a misreading of both the technician's notes "very few
cells  positive for rabbit antibody" and a written explanation the
technician gave during the investigation.  The technician's testimony
shows that ORI's expert, in determining that likely 100% of the cells
left on the slide were positive, had misunderstood the technician's
explanation of what she did.  Moreover, the evidence shows that a 100%
value is unlikely, since the reading for the same culture eight days
later was less than that.

o  Persuasive evidence shows that Dr. Popovic also read the slide and
that the 10% is likely the true value.  ORI presented no evidence that
would indicate the 10% is an impossible, or even an unlikely value.

o  The absence of a written note for the 10% is not significant, in
light of all of the circumstances here.  These circumstances include the
fact that a number of years had passed since the experiments were
performed. ORI failed to establish any motive for Dr. Popovic to have
fabricated this one insignificant data point.

4.      We conclude that ORI did not prove by a preponderance of the
evidence that there was any pattern of conduct to falsify methods and
data.

o  Finally, contrary to what ORI and its scientific advisors found, we
do not find here a pattern of conduct of falsifying methods or data to
make the experiments reported in the Science paper look more rigorous
than they in fact were.  ORI established at most two ambiguities (rather
than untruths) in the paper:  the "first shown" in the disputed sentence
and the "not done" in the legend to Table 1.  While we recognize that a
researcher deliberately intending to mislead a reader might cleverly
choose to do so through introduction of subtle ambiguities, we conclude
that ORI did not establish such a scenario is likely here:

 o       ORI did not establish that Dr. Popovic's English skills
 were sufficient so that he would have understood the ways in
 which the words "first shown" and "not done" might have been
 misleading to a reader who interpreted them as ORI did.

 o       ORI did not establish that Dr. Popovic drafted the
 "first shown" language or retained it in the paper after
 recognizing an ambiguity.  Since he honestly disclosed in the
 paper that he used fluids from more than one patient to infect
 the parental T-cell line, we think it unlikely that he then in a
 calculated way tried to enhance the logic of doing so.

 o       ORI's advisors were under the impression that the effect
 of each of the ND entries was to slant the data toward the
 hypothesis of the paper and to mislead the reader about the
 rigorousness of the experiments.  The evidence does not support
 such a conclusion.  None of the data points at issue (one of
 which was recorded as positive in the technician's notebook) had
 any significance to the conclusions of the paper.  Persuasive
 testimony from retrovirologists -- representing the researchers
 who potentially would be the most critical readers of the paper
 -- was that they would not have evaluated the experiment any
 differently if Dr. Popovic had reported these results exactly as
 they appeared in the notebook.  On the other hand, the testimony
 from the non-retrovirologists supports the reasonableness of Dr.
 Popovic's judgment that doing this would have been misleading to
 others.

       LEGAL FRAMEWORK

The Department of Health and Human Services has the discretionary
authority to protect the integrity of research it funds by taking
administrative actions against those who have engaged in scientific
misconduct.  In 1992, the Departmental Appeals Board, in the Office of
the Secretary, was given responsibility for hearing appeals from
findings of scientific misconduct made by ORI.  See 57 Fed. Reg. 53,125
(1992).  Under the applicable guidelines, a Research Integrity
Adjudications Panel is appointed to decide each appeal. 2/

The guidelines provide for a de novo review.  What this means is that
our decision is not a review of what ORI did during its investigation or
whether what ORI found was reasonable based on the evidence ORI
considered.  Rather, we held a 12-day evidentiary hearing during which
both sides had an opportunity to present testimony from witnesses and
documentary exhibits.  This hearing was Dr. Popovic's first opportunity
to confront and cross-examine witnesses against him and to test the
expert opinions on which ORI relied. 3/  Our decision is based solely on
the evidence admitted into the record before us.

The purpose of this proceeding was not to revisit all of the issues
addressed in the ORI Report.  Under the guidelines, the Panel is to
determine whether ORI proved the findings of scientific misconduct which
ORI made, and which were appealed, and to determine the appropriateness
of the proposed administrative action.  This narrowed the case
considerably from what was involved earlier in the investigation.

The guidelines require ORI to prove scientific misconduct by a
preponderance of the evidence.  This means evidence that is more
convincing than the opposing evidence and shows as a whole that
misconduct was more probable than not.

In this decision, we evaluate the evidence presented against the
regulatory definition of scientific misconduct published in 1989, and
find it lacking.  That definition states:

 Misconduct or Misconduct in Science means fabrication,
 falsification, plagiarism or other practices that seriously
 deviate from those that are commonly accepted within the
 scientific community for proposing, conducting or reporting
 research.  It does not include honest error or honest
 differences in interpretations or judgments of data.

42 C.F.R. . 50.102.

There was considerable controversy in this case over whether this
definition is properly applied to intramural research conducted in
1983-84, such as the research at issue here.  However, since ORI failed
to present evidence adequate to show that the 1989 regulatory definition
was met, and since there was no evidence presented to suggest any more
stringent earlier standard, we do not need to resolve this controversy
or to decide exactly what would have been understood in 1983-84 to be
scientific misconduct in intramural research. 4/

ORI argued here that to meet the 1989 definition of scientific
misconduct, ORI did not need to prove that Dr. Popovic had an intent to
deceive.  ORI relied in part on what it said was the legal definition of
"falsification" (but in fact was the legal definition of "false").
Black's Law Dictionary (5th Ed. 1979 at 540, cited by ORI) indicates
that the term "false" may sometimes be used to encompass a thing that is
untrue by mistake or accident, with no intent to deceive.  ORI's
argument begs the question of whether the term "falsification" as used
in the regulatory definition of misconduct encompasses mere mistaken or
accidental untruths.  The regulatory definition itself indicates
otherwise since it specifically excludes "honest error or honest
differences in interpretations or judgments of data."

Moreover, ORI's argument that scientific misconduct encompasses
unintentional conduct is contrary to a statement in the 1990 Guidelines
for the Conduct of Research at NIH.  That statement refers to scientific
misconduct as "fabrication, falsification, plagiarism, or other
practices motivated by intent to deceive."  Exhibit (Ex.) P-20 at 15.
This interpretation is consistent with reading the exclusion of "honest
error or honest differences in opinion" as meaning that the 1989
definition encompasses as falsification only conduct intended to
deceive. 5/

In any event, while we discuss below why we conclude that ORI did not
prove intentional deception here, we also discuss why we conclude that
ORI did not prove by a preponderance of the evidence that the disputed
statements or data were untrue at all.  Thus, even if we agreed with ORI
(which we do not) that unintentional errors in insignificant details in
a paper would constitute scientific misconduct under the 1989
definition, we would not reach a different result here.

      FACTUAL FRAMEWORK

We discuss here the factual framework needed to help the reader
understand the context of this dispute. 6/

   A.  THE STATUS OF AIDS RESEARCH IN THE EARLY 1980'S

In the early part of 1981, information on AIDS was limited.  The initial
cases recognized a severe immunodeficiency in some homosexual men.
Later it was learned that AIDS was occurring in other populations such
as hemophiliacs and intravenous drug users.  Prior to the publication of
the Popovic Science paper, AIDS was recognized as a fatal disease which
was epidemic.  Scientists and clinicians had considerable questions and
concerns about the cause of this disease.  By mid-1983, the scientific
community recognized that AIDS was a transmissible agent and that the
"pathogen was in the blood supply."  Tr. at 1965, 1968-69 (Blattner).
People were developing AIDS as a result of blood transfusions, causing
anxiety in the medical community and in the public at large.
Consequently, there was strong motivation to find the cause of AIDS in
order to attempt to save lives and protect the blood supply.

Working with tissue and blood samples from patients with AIDS at this
time was considered dangerous.  Many laboratories in this country and
elsewhere would not permit clinical specimens from AIDS patients in the
laboratory.  Nonetheless, scientists around the world embarked on a
concentrated, intense search for the causative agent of this disease.

Numerous theories were being circulated, such as that a fungus, a common
virus, or homosexual activities were the cause of AIDS.  NIH announced a
month or two before the Science paper at issue here was published that a
fungus was the cause of AIDS.  In late 1982, Dr. Robert Gallo, chief of
the Laboratory of Tumor Cell Biology (LTCB), NIH, and Dr. Max Essex,
from Harvard, began to theorize about the cause of AIDS and whether it
might be caused by a human retrovirus. 7/  Little by little the LTCB got
into AIDS research.  By mid-1983 the research efforts in the LTCB were
intense and by mid-1984, AIDS dominated that laboratory's research.

Dr. Sodroski testified that prior to the publication of the Science
papers, there was skepticism in the scientific community that a
retrovirus was the cause of AIDS.  Dr. Sodroski indicated that the four
Science papers resulting from the LTCB research reported multiple
isolations, showed the virus established in a stable cell line for
diagnosis, and provided serological data showing that there was a high
percentage of people in the at-risk group or who had AIDS that had
antibodies to this virus.  Dr. Sodroski stated that as a result of the
Science papers, he, as a retrovirologist, became convinced that a
retrovirus was the cause of AIDS.  Dr. Blattner, an epidemiologist
actively involved since the early 1980s in AIDS research, stated that
the Science papers proved unequivocally that the cause of AIDS was a
human retrovirus.  Tr. at 1986.

       B.  DR. POPOVIC AND HIS WORK

Dr. Popovic was trained as a physician in Czechoslovakia and in 1971
received a Ph.D. in cytopathology from the Cancer Research Institute,
Slovak Academy, in Bratislava, Czechoslovakia.  His postdoctoral
training in cell biology was at Wallenberg Laboratory, University of
Uppsala (Sweden).

Dr. Popovic is a cell biologist. 8/  He began his scientific career in
Czechoslovakia under the tutelage of Professor Jan Svoboda, considered
one of the "Fathers of Retrovirology."  Tr. at 1836-37 (Gartner).
Together they worked with the avian sarcoma virus.

Dr. Popovic initially came to the LTCB in 1980 as an American Cancer
Society Fellow and worked initially on HTLV-I, a retrovirus responsible
for human T-cell lymphoma leukemia.  There were few people at that time
who were involved in the study of human retrovirology.  During
1982-1984, Dr. Popovic was a Visiting Associate in the LTCB, and then
from 1984-1989, he was a Visiting Scientist at the LTCB.  Dr. Popovic,
who became a United States citizen in 1984, has published approximately
163 papers during his career as a research scientist and has been listed
as first author on 31 of those papers.

Dr. Popovic, because of his belief that the cause of AIDS might be a
human retrovirus, used the techniques he learned in Czechoslovakia to
isolate and grow a new retrovirus.  The work in the LTCB with the first
human retrovirus isolates, HTLV-I and HTLV-II, in the 1970s and 1980s
provided invaluable background information for the later work with AIDS.
This work provided information on "ways to detect [human retroviruses]
efficiently, ways to grow the right kinds of cells, and . . . to know
that T-lymphocytes were the right kinds of cells to grow."  Tr. at
736-37 (Sodroski).

Since there was no conclusive evidence that a retrovirus was the
causative agent of AIDS, Dr. Popovic's work on AIDS involved a search
for an unknown virus.  Searching for an unknown virus is not like
working with a known virus.  It involves searching for clues much like
detective work or attempting to put pieces of a large puzzle together.
It involves using a variety of laboratory methods to first determine
whether a virus is present and using other methods to isolate that virus
and propagate it.

Dr. Sodroski indicated that in most body fluids from infected
individuals, the amount of starting material that is infectious is very
small.  Thus, a scientist wants to be able to first propagate the virus
by making the virus make more of itself in tissue culture, because it is
easier to detect virus once there are a lot of infected cells making a
lot of viral protein.  However, the major difficulty with the AIDS virus
is that it is cytopathic, meaning it kills the target cells used to
establish a culture, and it will grow in some target cells and not in
others.  To overcome these obstacles and succeed in growing such a virus
requires not only science, but "art" and probably even "luck", or a
"green thumb."  Tr. at 782 (Sodroski); Tr. at 1977 (Blattner).

   C.  WHAT THE SCIENCE PAPER WAS ABOUT

We have attached as Appendix A of this decision the Science paper at
issue.  As explained in the abstract to the paper, the paper reported on
development of a "cell system" for the "reproducible detection of human
T-lymphotropic retroviruses (HTLV family) from patients with the
acquired immunodeficiency syndrome (AIDS) or with signs or symptoms that
frequently precede AIDS (pre-AIDS)."  The cells were described as
"specific clones from a permissive human neoplastic T-cell line," some
of which "permanently grow and continuously produce large amounts of
virus after infection with cytopathic (HTLV-III) variants of these
viruses."  The abstract explained that the significance of the reported
research is that the cell system "opens the way to the routine detection
of HTLV-III and related cytopathic variants of HTLV in patients" and
"provides large amounts of virus for detailed molecular and
immunological analyses."  Ex. H-5 at 497.

The paper focuses on experimental results for those clones of the
permissive cell line which were found to permanently grow and
continuously produce large amounts of virus.  One paragraph of the
three-page paper discusses the preliminary infection of the parental
T-cell line (from which the clones were developed).  Dr. Popovic's
original handwritten draft of the paper did not discuss this infection
at all.  This infection was discussed only because of a later decision
to develop an AIDS test using the variant, later designated HTLV-IIIB,
growing on one of the clones (designated H9) after it was infected by
exposure to concentrated virus from the infected parental T-cell line.
The paper also describes, in somewhat greater detail, the infection of
the cell clones with isolates from individual patients.

The authors of the paper do not purport to have isolated one virus (or
one variant of a virus) as the cause of AIDS.  Instead, the abstract
refers to cytopathic variants of viruses.  The paper itself states:
"These new HTLV isolates are collectively designated HTLV-III, although
it is not yet proved that they are identical."  Ex. H-5 at 498.  The
paper reports a number of different isolates. 9/

Experimental results reported in the tables in the paper are results of
infection of the clones with the virus variant produced by the parental
T-cell line, at 6 and 14 days after infection, and with individual
patient isolates.

Next we turn to our detailed analysis of each of the three major
findings of scientific misconduct.

      DETAILED ANALYSIS

  A.  THE DISPUTED SENTENCE

The key sentence at issue appears in a paragraph describing how the
parental cell line was infected, prior to the cloning and infecting of
the clones.  We reproduce here most of the first four sentences of that
paragraph to preserve the immediate context in which the allegedly false
sentence appears:

 The cell line HT was tested for HTLV before being infected in
 vitro and was negative by all criteria including lack of
 proviral sequences (32).  Continuous production of HTLV-III was
 obtained after repeated exposure of parental HT cells . . . to
 concentrated culture fluids harvested from short-term cultures
 of T cells (grown with TCGF) obtained from patients with AIDS or
 pre-AIDS.  The concentrated fluids were first shown to contain
 particle-associated RT.  When cell proliferation declined,
 usually 10 to 20 days after exposure to the culture fluids, the
 fresh (uninfected) HT cells were added to the cultures.  Culture
 fluids from the infected parental cell line were positive for
 particulate RT activity, . . . .

Ex. H-5 at 498 (emphasis added; reference omitted). 10/

Dr. Popovic's testimony, and his notebooks show, that he: 1) exposed the
parental T-cell line on November 15, 1983 to concentrated culture fluid
harvested from cultures of three patients' primary cells; 2) exposed the
parental cell line on November 22, 1983 to concentrated culture fluid
from the same three patients' cultures; and 3) exposed the parental cell
line on January 2, 1984 to concentrated culture fluid from seven more
patients' cultures.  Ex. H-19 at 33, 34, 44; Ex. H-157 at 29-35; Tr. at
2397-98. 11/

ORI's finding that the underlined sentence is false was based on ORI's
reading of that sentence as meaning that Dr. Popovic tested individual
patient samples from each of the ten patients for RT activity, before
"pooling" those samples to infect the cell line, and showed that all of
them were positive for RT activity.  See, e.g., ORI post-hearing br. at
46-49.  It is undisputed that each of the ten individual patient samples
was not found positive for RT activity before being used to infect the
cell line.  See Tr. at 2302-04.  Dr. Popovic testified, however, that
after he first pooled and then concentrated the fluids he had harvested
from individual patient cultures, he sent part of the pooled
concentrated culture fluid for RT analysis at the same time as he used
another part of the concentrated fluid to infect the cell line; he said
that he had obtained the results (which were positive) from Dr. M.G.
Sarngadharan, after exposing the cell line.  Tr. at 2498.

ORI alleged that there were two falsifications in the sentence: "one
that it was not first shown; and two, that [RT results for individual
patient samples] were not all positive."  Tr. at 235.  ORI presented
evidence which it said showed that many of the ten individual samples
tested negative for RT, that, at most, only one of the ten samples was
tested and shown positive for RT before it was pooled, and that only six
of the ten samples contained any AIDS virus. 12/

We conclude that ORI has not proved by a preponderance of the evidence
its finding that Dr. Popovic falsified the disputed sentence, for the
following reasons:

  ORI's finding depends on a reading of the disputed
  sentence which is not the only reasonable reading.
  ORI's reading that "concentrated fluids" means
  individual patient samples ignores unrebutted testimony
  and other evidence that the fluids from the patient
  samples were first pooled and then concentrated.
  Moreover, in context, the "first" can reasonably be read
  as intended to convey that the RT activity was
  associated with the concentrated patient fluids (and
  therefore a virus had been transmitted from the fluids
  to the cell line).

  ORI's reliance on its experts' opinions on the meaning
  of the sentence is misplaced since, for the most part,
  the experts did not independently determine the meaning
  of the sentence.  Their testimony as a whole supports a
  conclusion that, in context, the statement is merely
  ambiguous.

  We find Dr. Popovic's testimony about what he in fact
  did to be credible since that testimony is consistent
  with the laboratory notebooks, is corroborated by
  others' testimony, and is unrebutted.

  ORI did not show either that Dr. Popovic added the
  sentence in question or that in the editing process he
  was made aware of the addition of the sentence and
  should have known it may have been misinterpreted.

  ORI overrated the significance of the sentence in
  arguing that Dr. Popovic had a motive to falsify it.
  ORI did not establish that the paragraph was the key
  methodological section of the paper, nor that Dr.
  Popovic would have viewed what he in fact did as
  illogical and lied about it to make his experiment
  appear more rigorous.

1.  ORI misread the sentence.

In our view, the greatest weakness in ORI's case is that it is dependent
on reading the disputed sentence a particular way, which is not the only
reasonable reading of the sentence.  Indeed, ORI's view that the
sentence falsely states that each individual patient sample was tested
for RT activity before pooling and shown positive ignores the context in
which the sentence appears.

The context refers to "repeated exposure" (more than one exposure) of
the parental T-cells to "concentrated culture fluids" (more than one
fluid) harvested from short-term cultures obtained from "patients with
AIDS or pre-AIDS" (more than one patient).  ORI reads the plural
"fluids" as referring to fluids from individual patient samples because
it assumes that the fluids were concentrated before they were "pooled."
However, ORI provided no evidence to support that assumption.  The
wording of the sentence is not inconsistent with RT testing of different
fluids obtained after patient cultures were first pooled and then
concentrated and used for different exposures (which is what Dr. Popovic
has consistently stated that he did).  Indeed, if the writer intended to
suggest testing of each individual patient culture either before pooling
or before exposing the cell line, one would expect different wording
(for example, "Each patient culture tested positive for RT activity
before the exposure.").

Similarly, ORI's view that the disputed sentence is false because the
tests for RT activity were performed after the cell line was infected is
contingent on reading of the word "first" as establishing a priority in
the timing of RT testing compared to the timing of infecting the cell
line. 13/  In context, however, the "first" can reasonably be read as
having a different purpose.  Two sentences later the reader learns that
culture fluids from the infected cell line were tested for RT activity
after infection.  Thus, the significance of the "first" in the disputed
sentence can reasonably be seen as establishing a priority in the RT
activity as occurring in the concentrated culture fluids harvested from
the patient cultures before those fluids were used to infect the cell
line.  It is not unambiguously clear that it means that the RT tests
were performed before the cell line was exposed to the concentrated
culture fluids.

ORI did not establish that the timing of the tests for RT activity in
the concentrated culture fluids relative to the timing of the infection
would have any significance critical to the paper's conclusions. 14/  On
the other hand, tests which would indicate that RT activity was present
in the patient fluids and not in the cell line are significant to the
paper's conclusions.  The paper needed to establish that the retrovirus
was transmitted to the cell line from the patient culture fluids and was
not already present in the cell line.  Indeed, the paragraph in question
begins by referring to tests which indicated that the cell line was
negative for HTLV before infection. 15/

That one possible intent of the word "first" was merely to indicate that
RT activity was present in the fluids used to infect the cell line is
supported by a comparison of drafts seven and eight of the Science
paper.  Draft seven contains the following sentence:

 Continuous production of HTLV-III was obtained after repeated
 exposure of parental HT cells . . . to concentrated culture
 fluids positive for particulate reverse transcriptase (RT),
 which was harvested from short term cultured T-cells originated
 from patients with lymphadenopathy and AIDS.

Ex. H-12 at 6.

This sentence does not contain the words "first shown."  The editorial
change which appears on draft eight and which created the disputed
sentence, considered in context, clarifies and emphasizes evidence that
the retrovirus was present in the concentrated culture fluids used to
infect the cell line.  The most likely reason for emphasizing this
evidence is that it supports the overall conclusion that a retrovirus
had been transmitted to the cell line from the patient fluids.

In sum, ORI's reading of the disputed sentence (on which ORI's
allegation depends) fails to consider the sentence in light of the
context, purpose, and wording of the paragraph as a whole.  The disputed
sentence, while ambiguous, can reasonably be read as consistent with
what the evidence shows, in fact, occurred.  Dr. Popovic conceded during
the ORI investigation, after ORI had pointed out that it was reading the
"first" to mean before the pooling and infection, that the sentence (as
interpreted by ORI) could be seen as imprecise because RT positivity of
the fluids was not "shown" until after the pooling and infection.  But
the fact that the sentence could reasonably be read another way is
important, for two reasons.

First, if Dr. Popovic were intentionally trying to mislead the reader
into believing that each of the individual patient samples had tested
positive for RT activity before being pooled, one would have expected
him to do it in a more direct and unambiguous way.  Second, ORI took the
position that, even if Dr. Popovic did not add the "first shown"
sentence, he should be found guilty of scientific misconduct because he
had the responsibility to change the sentence to ensure its accuracy.
The fact that the sentence is ambiguous -- and that the one word "first"
might add imprecision if read a particular way -- supports our
conclusion that failure to change the sentence did not amount to a
falsification.  This is one reason why (particularly in light of Dr.
Popovic's English-speaking abilities at the time) we find credible Dr.
Popovic's testimony that, if he saw this change when editing the galley
proofs of the paper, it did not impress him as false.

2.      The expert testimony does not establish that the sentence is
false.

ORI argued that we should find the disputed sentence to be false because
testimony from its experts supports its view that the disputed sentence
should be interpreted to mean that individual patient samples were
tested and shown RT positive before the pooling.  But, in fact, the
experts' testimony was not dispositively supportive.

ORI did not argue that the expert testimony showed that the plain
wording of the sentence makes it subject to only one reasonable
interpretation.  Nor does the cited testimony support a conclusion that
ORI's is the only reasonable interpretation.

We found the testimony on this sentence by the scientific advisors who
had been involved in ORI's investigation (Drs. Richards, Berns, and
Schaffer) to be either irrelevant or unpersuasive -- in spite of these
experts' impressive credentials, for the following reasons:

  Based on their testimony as a whole, as well as their
  own descriptions of their role in the investigation, we
  find that these advisors did not form their opinions
  independently, after consideration of all of the
  relevant evidence.  See, e.g., Ex. H-73 at 1; Tr. at
  468-70, 481, 512 (Richards); Tr. at 1042, 1062 (Berns);
  Tr. at 1578-80 (Schaffer).  They had reached conclusions
  based on assumptions derived from how ORI investigators
  presented the issues to them and based on partial
  evidence.  They appeared unable to reevaluate those
  conclusions when those assumptions were questioned --
  perhaps due to their involvement in the investigation of
  the origin of HTLV-IIIB, frustration over the
  difficulties of resolving this question, and association
  with the ORI findings.  See, e.g., Tr. at 1639-44;
  1660-65 (Schaffer).

  None of these experts appeared to have carefully
  examined the language and context of the disputed
  sentence, or to have independently tested it against the
  record.  During their direct testimony on the sentence,
  Drs. Richards and Schaffer each conclusorily testified
  that the sentence was false because it "says" or "said"
  that the individual patient samples had been shown to be
  RT positive before they were used to infect the cell
  line.  Tr. at 498-500 (Richards); Tr. at 1491-92
  (Schaffer).  They appeared unaware of possible
  ambiguities.  For example, Dr. Schaffer's explanation of
  her interpretation assumed that each concentrated
  culture fluid was from an individual patient.  Tr. at
  1502-03; 1505-06.  Dr. Berns appeared to be under the
  impression that Dr. Popovic had conceded that the
  sentence falsely stated that all of the individual
  patient samples had been tested before being pooled.
  Tr. at 1045, 1064.  In other words, the opinions these
  experts provided were based on assumptions about what
  the sentence meant, rather than on the wording, context,
  or underlying facts.

  When Dr. Schaffer's attention was focused on the exact
  language in the paper, she acknowledged that it was
  ambiguous.  Tr. at 1660-62.  Dr. Richards admitted that,
  in reading the sentence to say that the RTs were all
  done and were all positive, he did not know when the
  samples became concentrated fluids.  Tr. at 500.

  In some instances, these experts drew unreasonable
  inferences from non-scientific evidence.  For example,
  based on her examination of other papers on which Dr.
  Popovic was an author, Dr. Schaffer discounted his claim
  that he had been hampered in drafting and editing the
  Science paper because English was not his native
  language.  She decided that, since the English in the
  other papers was "pretty good," he was not credible.
  Tr. at 1529-30.  However, she lacked factual information
  critical to evaluating his skills; she admitted at the
  hearing that she did not know whether these other papers
  reflected his personal English skills or instead either
  were written in his native language and translated into
  English or were heavily edited by others.  Tr. at 1599.
  16/

Dr. Martin, another of ORI's expert witnesses, simply cannot be
considered disinterested.  He acknowledged that he had had a dispute
with Dr. Gallo regarding the research involved here, and his testimony
evidenced sympathy to the French researchers' claims that Dr. Gallo had
failed to give them appropriate credit.  Tr. at 1337; 1359-62; 1311-12;
1316; 1328-29.  As discussed below, his testimony showed a frustration
with what he saw as a lack of detail in the paragraph at issue that
derived from what he wanted to know for his particular purposes and what
Dr. Gallo had said to him about the Science paper, rather than
reflecting an impartial analysis based on reading the paper as a whole.
Tr. at 1333-63.  For example, Dr. Martin's interpretation seemed to
assume that patient donor cells had been cocultivated with the T-cells,
rather than that the T-cells had been exposed to cell-free supernatants
(fluids) from the patient cultures, as the paper itself describes.  See
Tr. at 1324.

We found Dr. Sodroski, the only retrovirologist other than Dr. Martin
who testified for ORI, to be not only objective, but highly credible and
persuasive.  When viewed as a whole, however, his testimony supported
Dr. Popovic's case more than ORI's case.  On direct examination, Dr.
Sodroski testified with respect to the term "concentrated fluids" in the
disputed sentence that he believed that the term referred to the
"concentrated culture fluids harvested from short-term cultures of
T-cells grown with TCGF, or T-cell growth factor, which were obtained
from patients with AIDS or pre-AIDS."  Tr. at 74l.  (That is, the
concentrated culture fluids referred to in the preceding sentence.)  He
then testified that the basis for his conclusion was that "the word
`first' suggests that the demonstration of particle-associated RT was
associated with the actual short-term cultures of the T-cells
themselves."  Tr. at 741.  This testimony supports our analysis above
that, in context, the importance of the sentence is that it establishes
an association between RT activity and the patient cultures necessary to
show that the retrovirus was transmitted to the cell line from patient
cultures.

ORI counsel did ask Dr. Sodroski:  "Does that sentence then mean that
before the pooling the patient samples were RT positive?"  Tr. at 744.
He answered:  "Yes."  Tr. at 744.  His responses to subsequent
questions, however, indicated that this opinion was based on several
assumptions and factors.  He assumed the RT testing would have been done
on individual patient samples before pooling because pooling samples
with no virus would dilute the amount of virus, and because he assumed
that RT results for the cultures could have been obtained within 2.5 to
3 hours, so that culture viability would not suffer much from waiting
for the results.  Tr. at 744-45; 749; 759.  We discuss below the
question of the "logic" of pooling prior to RT testing.  With respect to
waiting for RT results, Dr. Sodroski indicated that, if he had to send
for results to another laboratory and wait three days to obtain results,
this would affect his view of whether culture viability would be
affected.  Tr. at 759.  As our analysis discusses, the evidence shows
that Dr. Popovic was sending materials to another laboratory for RT
testing, so that culture viability would suffer from waiting for
results.

Dr. Sodroski also indicated that he read the term "concentrated culture
fluids" to refer to individual patient samples because the word "fluids"
is plural.  Tr. at 772; 775-76.  When informed of the possibility that
supernatants from individual patient cultures were first pooled and then
concentrated, and that there were three such concentrated culture fluids
used for the "repeated exposure" of the cell line, he acknowledged that
the term "concentrated fluids" was ambiguous.  Tr. at 789. 17/

Finally, testimony for Dr. Popovic by Dr. Malkovsky, who had the most
extensive experience of any of the witnesses in isolating and growing
the AIDS virus, also indicated that the sentence was ambiguous,
depending on whether the fluids were first pooled and then concentrated
or were tested for RT before the pooling.  Tr. at 2235-36.  He viewed
the editorial change which created the "first shown" sentence as not
changing the meaning, but as stressing more the fact that the fluids
were positive for RT.  Tr. at 2235.  Contrary to what ORI argued, we do
not find that the mere fact that, like Dr. Popovic, Dr. Malkovsky was
born in Czechoslovakia indicates that he was biased in Dr. Popovic's
favor.

In sum, ORI did not establish through a preponderance of the credible
testimony that ORI's reading is the only reasonable reading of the
disputed sentence.

3.      Dr. Popovic's testimony on what he in fact did is credible.

ORI also suggested that, even if the sentence was intended to mean that
pooled concentrated fluids were shown to contain particle-associated RT,
we should find the sentence false.  ORI argued that there were two
reasons why we should not find credible Dr. Popovic's assertions that he
had sent such fluids to Dr. Sarngadharan's laboratory in Maryland for RT
testing.  First, ORI argued, Dr. Prem Sarin, at the LTCB, was capable of
doing RT tests and had performed such tests for Dr. Popovic on patient
samples.  Second, ORI asserted, there is no documentary evidence that
Dr. Sarngadharan had tested such concentrated fluids and found them
positive.

We find credible Dr. Popovic's testimony that he sent materials to Dr.
Sarngadharan for RT testing, rather than relying on Dr. Sarin to perform
the tests, for the following reasons:

  We found Dr. Popovic credible as a witness based on a
  number of factors, including his demeanor during the
  hearing, the straightforward way in which he testified,
  others' testimony about his basic integrity (which was
  wholly unrebutted), and our review of his past
  statements.

o       ORI's major argument concerning Dr. Popovic's credibility was
that that he allegedly lied in a written submission to ORI in stating
that seven or eight of the pooled cultures were from patients confirmed
to be HIV positive. (HIV is the current designation for AIDS virus
variants.)  ORI relied on an analysis by Roche Diagnostics of aliquots
of the ten pool samples, which found HIV virus in only six of the ten
samples.  What ORI ignored was that one of the four other samples was
identified as being from a patient who "seroconverted between June 1984
and June 1985."  Ex. H-79 at 468.  Thus, since at least seven patients
could reasonably be said to have been confirmed to be HIV positive, Dr.
Popovic's statement was not inaccurate.

  Dr. Popovic's contemporaneous notebooks and those of his
  technician indicate that, during this time period, he
  was regularly sending materials to Dr. Sarngadharan for
  RT testing.  See, e.g., Ex. H-19 at 29, 33, 44. 18/
  They also show specifically that he sent some materials
  to Dr. Sarngadharan for RT testing on the dates of the
  first and third pool infections.  Ex. H-19 at 33, 44.

  Dr. Sarngadharan's testimony before ORI (admitted here
  by agreement of the parties) corroborates Dr. Popovic's
  testimony.  Ex. H-50 at 15-19; see also Ex. H-52 at 17,
  38.

  Dr. Popovic's testimony that he had other evidence of
  the presence of a retrovirus in the samples (such as
  multinucleated cells) which led him to question Dr.
  Sarin's results is consistent with unrebutted testimony
  on the kinds of clues on which a researcher in general,
  and Dr. Popovic in particular, would rely in trying to
  detect and isolate a retrovirus.  Moreover, Dr.
  Sarngadharan was instrumental in developing the RT test
  and an expert on it.  Ex. H-50 at 7-9.

ORI would have us find against Dr. Popovic on the basis that there is a
lack of any primary data showing RT results for the three concentrated
culture fluids.  There are several reasons why we do not make such a
finding here.  First, there is some data in the notebooks which may be
relevant; the problem is simply in interpreting those data.  Codes were
used on materials sent to Dr. Sarngadharan so that his testing would be
blind.  Usually, these codes were just numbers, starting with one,
corresponding to samples sent on a particular date.  Dr. Sarngadharan
would generally call Dr. Popovic with the results.  Ex. H-50 at 15-18.
Dr. Popovic's notes, showing RT results with numbers and various dates,
are difficult to interpret because the code is not always clear.  For
example, RT results from Dr. Sarngadharan corresponding to the date of
the first pool infection, November 15, 1983, include a positive result
for code number 3, which is identified only by a notation which looks
like a "17" (in contrast to several other code numbers which have
identifiers corresponding to individual patient samples mentioned in the
notebook).  Ex. H-19 at 57. 19/  Dr. Popovic has said that this may be
the RT result for the first concentrated culture fluid (which was
harvested from cultures from the same three patients as the second
concentration).  While his notes do not specifically identify "17" as
the pool, neither do they rule this out as a possibility.  It is,
moreover, credible that each of the three pooled and concentrated
culture fluids would have tested positive for RT activity, since it is
undisputed that aliquots from one or more of the patient samples used to
create each of the three concentrated culture fluids contained the AIDS
virus.

Second, the particular circumstances here such as the passage of time
and the manner in which Dr. Popovic and his technician kept notes make
inferences which we might otherwise draw from a lack of primary data
unreasonable here.

Third, it is not clear that Dr. Popovic, rather than Dr. Sarngadharan,
would have had the responsibility, if any, to retain records recording
the results of experiments Dr. Sarngadharan performed.  ORI did not
rebut testimony that the contract between Dr. Sarngadharan's laboratory
and the NIH required him to retain records for only three years.  More
than five years had passed before ORI investigators requested such data,
and Dr. Sarngadharan testified as to circumstances in his laboratory
which made retention of old records difficult.  Ex. H-50 at 34.

Dr. Popovic's testimony that he first pooled and then concentrated the
supernatants (fluids) from the patient cultures is also credible, for
the following reasons:

  The protocol he wrote for these experiments in September
  1983 states:  "If not sufficient volume of culture
  fluids; pool together several samples.  Use both (conc.)
  culture fluids and cells for infection."  Ex. H-19 at
  16-17; see also Ex. H-45 at 15-21 (12/1/90 preliminary
  response).

  Dr. Sodroski, in describing what a retrovirologist
  typically would do, indicated that a researcher would
  usually concentrate the fluids before testing them for
  RT activity since it gives a better result.  Tr. at
  677-78.

  Dr. Sodroski also indicated that concentration would be
  done in two steps.  Tr. at 678.  In light of this, it
  simply would make more sense first to pool the culture
  fluids and then to concentrate them since this would
  require fewer steps of concentration than if each
  individual culture fluid were first concentrated.

  Dr. Sarngadharan explained that the fluids would have
  been first pooled and then concentrated, with part used
  for infection and part sent for RT testing, and that it
  would have been contrary to the purpose of pooling (to
  save scarce patient material) to have first sent parts
  of the individual patient cultures for RT testing.  Ex.
  H-52 at 34-35.

Finally, we find credible Dr. Popovic's testimony that, if there was
some imprecision in the sentence, he was not aware of it at the time.
20/  As we discuss next, ORI did not prove by a preponderance of the
evidence either that Dr. Popovic drafted the sentence or had his
attention directed to it during the editing process.  Even more
important, ORI did not prove by a preponderance of the evidence that Dr.
Popovic had a motive to falsify the sentence.

4.      ORI did not prove either that Dr. Popovic drafted the sentence
or that he became aware of any imprecision in the sentence during the
editing process.

During the course of the investigation, Dr. Popovic provided copies of
eight of the drafts of the Science paper at issue, including his
handwritten draft and later typed or xeroxed versions which show
corrections in other persons' handwriting.  These drafts were referred
to by number at the hearing as though they were consecutive drafts, but
there possibly was at least one intervening draft, which is missing. 21/
We nonetheless use the draft numbers used by the parties.

The unrebutted testimony shows that, after preparing a rough handwritten
draft of the paper and having it typed, Dr. Popovic traveled to a
conference in Utah on or about March 18, 1984 to present a paper.  While
at the conference, he received a phone call from Dr. Gallo asking him to
return.  Meanwhile, Dr. Gallo began editing the draft and it went
through several versions before Dr. Popovic returned to the Laboratory
of Tumor Cell Biology on March 27, 1984.  Dr. Gallo told Dr. Popovic
upon his return that if he was not able to complete editing of the paper
within a very short period of time, it might not be published with the
other three papers.  Over the next few days, several others (including
Dr. Gallo, Dr. Sarngadharan, and Anna Mazzuca, who acted as an editorial
assistant at the LTCB) assisted Dr. Popovic in editing the paper.  The
paper was submitted to Science on the morning of March 30, 1984.

Neither the paragraph nor the specific sentence at issue here appear in
Dr. Popovic's handwritten draft.  Draft seven contains the sentence
quoted above, which appears on draft eight as two sentences (including
the "first shown" sentence).  Since there is no marking on draft seven
indicating such a change, and no one has produced any intervening draft,
it is impossible to determine who made the change.

ORI would have us infer that Dr. Popovic made the change because the
unedited sentence in draft seven was added in response to a direction by
Dr. Gallo in draft five to "give method" and Dr. Popovic was the person
responsible for the method.  See Ex. H-10 at 6.  It is equally
reasonable, however, to infer that the change which created the "first
shown" sentence was made by someone else as an editorial change.  The
clause in draft seven beginning "which was harvested from short-term
cultured T-cells" is a misplaced modifier which could mistakenly be read
as modifying "RT" (the antecedent noun), rather than as modifying
"concentrated culture fluids."  Moreover, this clause had a singular
verb form "was," but clearly was intended to relate back to the plural
noun "fluids."  In our view, this makes it just as likely that the
change in draft eight adding the "first shown" sentence was made by
someone skilled in English, as that it was made by Dr. Popovic.

ORI presented no evidence that the "first shown" sentence was
specifically brought to Dr. Popovic's attention, either before the paper
was submitted to Science or when he read the galley.  Editing of the
galleys was done under unusual circumstances, due to the nature of the
four papers, and Dr. Popovic's participation was limited to reviewing
the galleys at the house of a Science editor on a weekend day.  In a
period of about an hour, he not only reviewed the galleys of his paper,
but also briefly reviewed the galleys of two of the other papers on
which he was an author.  Tr. at 2301; see also Tr. at 1717-19 (Kulstad).

While Dr. Popovic himself admitted that he would have liked more time to
review the galleys, ORI did not establish that Dr. Popovic had any
meaningful control over the editorial process, other than potentially
withdrawing his name from the paper.  One of ORI's own witnesses
acknowledged that this would be "inconceivable," given the nature of the
papers and Dr. Popovic's contribution.  Tr. at 465 (Richards).  We
agree.  The editorial process was clearly adequate; none of the
allegations here calls into question the major conclusions of the paper.
We doubt that any paper could withstand entirely the scrutiny this paper
has received.  ORI sought to establish that the pressures to publish
were created or fabricated by Dr. Gallo and did not justify any failure
to ensure precision in every aspect of the paper.  We found persuasive,
however, Dr. Popovic's testimony that, as a physician, the primary
pressure he felt was that publishing the papers could save lives.

Under the circumstances, including the subtle nature of any imprecision
in the "first shown" sentence and the fact that English is not Dr.
Popovic's native language, we find credible Dr. Popovic's assertion that
he did not recognize any inaccuracy in the sentence. 22/

Thus, even if we viewed the sentence as inaccurate, rather than merely
ambiguous, we would not find that it was falsified by Dr. Popovic.

5.      ORI did not show that Dr. Popovic had a motive to falsify the
sentence.

ORI took the position that Dr. Popovic had a motive to falsify the
sentence because it would make the methodology of the reported
experiment appear more rigorous if the RT tests had been performed on
each of the individual patient samples before they were pooled.  ORI
relied on testimony that it would be more logical to test for RT
activity in patient samples before pooling them because adding samples
with no virus in them to the pool would "dilute" the pool and reduce the
chances of infecting the cell line with the virus.

We reject this analysis for two reasons.  First, ORI's position would
require a finding that Dr. Popovic viewed the "first shown" sentence as
a part of the methodology reported in the paper and viewed RT testing as
an integral part of his methodology.  Second, ORI's position would
require a finding that Dr. Popovic thought that what he did was
illogical, so that he should misrepresent it to make it appear more
logical and therefore more rigorous.  The record does not support such
findings.

In our view, characterizing the paragraph in question as the key
methodology section in the paper takes that paragraph out of context.
As discussed above, the paper's focus was on the development of a cell
system to permanently grow and continuously produce large amounts of
virus in spite of the cytopathic effects of the virus.  The most
important contribution of this paper was identification of the
appropriate target cells, and identification of the most permissive
clones of that cell line.  Dr. Sodroski testified that --

 the key to success I think here was that the fact that the
 cells, the right target cells for the virus could be propagated
 in the culture, allowing the virus to replicate . . . to a level
 that was detectable . . . .

Tr. at 674; see also Tr. at 1982-83, 2002 (Dr. Blattner).  He stated
that the importance of establishing continuous production of the virus
was that it could be used to further characterize the virus, as well as
to provide a reagent for the purpose of establishing diagnostics.  Tr.
at 780-81.

The testimony established that there were certain standard methods for
infecting a cell line with a virus: cell free transmission (or exposure)
and cocultivation.  Cocultivation is mentioned several paragraphs before
the one in question and a reference is given. 23/  Both cell free
transmission and cocultivation are referred to and described in somewhat
greater detail in the legend to Table 2 in the paper.  Thus, the key
contribution to "methodology" in the paper was the identification of the
right target cells to obtain continuous production of the virus, not the
particulars of how to infect a cell line with a virus.

Moreover, contrary to what ORI suggested, there is no apparent reason
why Dr. Popovic would have thought it important to the paper's
conclusions to go into the details of how he pooled viruses together
when infecting the parental T-cell line. 24/  Indeed, the
contemporaneous evidence (the various drafts of the papers) indicates
that he did not originally include this paragraph.  He added it after a
decision had been made that the isolate later called HTLV-IIIB would be
used for the AIDS test.  This decision ultimately gave the infection of
the parental cell line an importance it would not otherwise have had.
With respect to how Dr. Popovic would have likely viewed the paragraph
at the time in light of the conclusions in the paper, however, the
evidence shows that ORI overrated the importance of the paragraph.

An examination of the paper itself reveals that the infection described
in this paragraph is not the only one described in the paper.  When
commenting on this paragraph, Dr. Sodroski noted the examples in the
paper of infection of sub-clones of the HT cell line with primary
patient isolates that were not pooled.  Thus, he said, "there are other
examples in the paper of a successful propagation of an HIV isolate on a
permanent T-cell line . . . that, apart from the paragraph in question,
would support the major claims of the paper."  Tr. at 779-80.  Indeed,
he considered the paper a "tour de force" of science because "not only
do you see multiple examples of virus isolations, you also see that the
virus is established in a stable cell line, which allows for diagnosis."
Tr. at 734.  He stated that this evidence, together with the serological
data in the paper and the accompanying papers, was convincing evidence
that a retrovirus was the etiologic agent of AIDS, rather than an
opportunistic infection, which could have been the interpretation when
you only have sporadic examples of virus isolation, as had been
published by French researchers.  Tr. at 734-36.

As a result of the allegations regarding misappropriation of the French
isolate, the paragraph took on inordinate importance to the
investigators.  The evidence does not show that this paragraph would
have had importance to other retrovirologists generally or to Dr.
Popovic in particular, at the time it was written.  Dr. Sodroski noted
that, in light of the overall evidence supporting the paper's major
conclusions, the paragraph in question would be less important to
"perhaps 99 percent of investigators or more."  Tr. at 781.  ORI relied
on testimony that the methodology might be important to investigators
attempting to isolate viruses from other patients.  Dr. Sodroski
recognized this, but noted that "the paper does give examples of those
types of isolations, and passaging virus onto permanent T-cell lines, in
which pooling does not appear to have been done."  Tr. at 781.  Thus, he
said, "I don't know that the specific details that we're focusing on in
this paragraph really had much practical import, in terms of the actual
advance of science, or the advance of diagnostics in the AIDS field."
Tr. at 781.

Thus, we conclude that, in describing this paragraph as a methodology
section of the paper, ORI overrates its significance and exaggerates Dr.
Popovic's possible motivation for falsifying it.

We further conclude that, even if the paragraph is properly viewed as
intended to set out a methodology so that the experiment described could
be reproduced, ORI did not show that the "first shown" sentence should
be considered as intended to represent part of that methodology and to
misrepresent the "rigorousness" of the methodology.

For its position that RT testing was an integral part of the methodology
presented in the paper, ORI relied on the fact that in a 1990 textbook
chapter describing how to propagate the AIDS virus in a neoplastic
T-cell line, co-authored by Dr. Popovic, the following statement
appears:

 Culture fluids to be concentrated for use as inocula should
 contain at least 100,000 cpm RT activity/ml (before
 concentration).

Ex. H-89 at 18. 25/

When questioned about the textbook and whether it was saying one must
have positive RT activity before using a patient sample to infect a cell
line, Dr. Sodroski said that he would interpret it that "to make the
assay optimal" one would want the specified level of RT activity.  Tr.
at 754.  On cross-examination, he said that the impression the book
chapter gave was that "a certain level of virus in the samples used to
infect the cells would increase the efficiency of success in the
experiment."  Tr. at 765.  He explained that an RT test "doesn't really
tell you what the infectivity of a particular virus preparation is . . .
So I find setting those kinds of thresholds to be relatively arbitrary
anyway, because one can have a very high reverse transcriptase and have
a very low infectivity, . . . virus that's sitting around for a long
period of time can lose its infectivity without necessarily losing
ability to detect reverse transcriptase from the culture."  Tr. 765-66;
see also 782-83 (Sodroski); 2241-42 (Malkovsky). 26/

Dr. Sodroski also acknowledged that it would be fair to say that the
understanding of methods for culturing and propagating HIV has improved
between 1983 and 1990, and that the value in the textbook was perhaps
based on practical experience between 1983 and 1990.  Tr. at 767.  The
issue here is how in 1983-1984 Dr. Popovic viewed the importance of RT
testing before using patient samples to infect a cell line.  ORI's
position that Dr. Popovic considered this paragraph an important part of
the methodology presented in the paper is not supported by the record.
Indeed, since Dr. Popovic did not indicate in the paper that RT was
first shown for the individual patient isolates described there, the
contemporaneous evidence suggests that he did not ascribe particular
importance to testing for RT before infection. 27/

To show that Dr. Popovic had a motive to falsify the statement, however,
ORI relied on testimony that it would be more logical to test for RT
activity prior to pooling patient samples because adding samples with no
virus in them would "dilute" the virus in the pool.  For example, Dr.
Sodroski testified that testing for RT activity before pooling --

 does provide a more rational appearance to the pooling.  It
 would not make sense to pool samples that didn't contain virus,
 or for which there was no evidence of virus.  Adding those to
 the pool would only dilute out the virus preparation.  So it
 would make more sense to have first shown that there was
 evidence of virus in any sample added to a pool.

Tr. at 744-45.  However, when asked whether it would change scientists'
opinion of the rigorousness of the experiment, Dr. Sodroski indicated
that pooling was simply not very rigorous to begin with because it could
never be reproduced in all of its details again because each isolate is
unique at that time.  Tr. 745-46.  Yet, the relevant paragraph in the
paper does not hide the fact that more than one patient sample was used
to infect the parental cell line; the paragraph states that the
"concentrated culture fluids" used for "repeated exposure" were
"harvested from . . . cultures . . . obtained from patients with AIDS or
pre-AIDS."  Ex. H-5 at 499.  We do not find it credible that Dr. Popovic
would honestly reveal in the paper the lack of rigorousness inherent in
using more than one patient culture, yet risk his career by deliberately
falsifying the timing of obtaining RT results.

Dr. Popovic acknowledged that it would have been preferable to have
established RT activity in each of the individual cultures before
pooling them, but provided a reasonable explanation for why he did not,
which is consistent with testimony by others.  First, he said that
pooling would increase the multiplicity of infection.  ORI argued that
we should reject this reasoning, citing testimony by Dr. Sodroski.  Dr.
Sodroski said that it was not credible that Dr. Popovic would pool to
increase the multiciplicity of infection because:  "To me, knowing that
there were a certain number of samples that . . . didn't contain at
least high amounts of HIV, that those samples were added to
virus-positive samples, certainly one would not expect the multiplicity
of infection to increase."  Tr. at 748.  This testimony is based on the
assumption that Dr. Popovic knew he was adding samples that did not
contain high amounts of HIV. 28/  When he conducted these experiments,
however, he did not even know for sure what he was looking for.  He
testified that he had information from clinical physicians and
morphological evidence (such as giant multinucleated cells) that led him
to believe the patient samples contained a retrovirus.  See, e.g., Tr.
at 2303, 2415-19; see also Tr. at 2163 (Read-Connole).  Moreover, he
testified persuasively and without rebuttal that it is well established
in retrovirology that concentration can increase multiciplicity of
infection by twenty to fifty fold.  He gave the example that if, under
standard conditions, the increase would be thirty fold, pooling and
concentrating samples could potentially increase the multiplicity of
infection fifteen fold, even if only half of the samples contained the
virus.  Tr. at 2495-98.

Dr. Popovic also explained that, based on past studies, he knew that
retroviruses were heterogeneous and that some strains might be more apt
to infect a T-cell line than others.  Thus, by increasing the variety of
strains to which he exposed the cell line, he could increase his chances
of success.  Ex. H-153.  Dr. Sodroski testified that, even if some
pooled samples did not contain high amounts of HIV, "you could
potentially add very low levels of minor virus variance to the pool"
which would increase "virus diversity."  Tr. at 748-49.  Dr. Sodroski
also testified that it is now known that some strains of HIV grow better
in T-cell lines than others.  Tr. at 715-17.  Thus, Dr. Sodroski's
testimony supported Dr. Popovic's on the diversity question; ORI
presented no testimony that rebutted Dr. Popovic's on this point.

Finally, unrebutted testimony established that Dr. Popovic would have
used pooling when working under his mentor, Dr. Svoboda (Tr. at
1949-51), and that Dr. Popovic is the type of intuitive scientist who,
while engaged in hunting for a novel retrovirus, would likely try
experiments which others (with hindsight) might view as illogical (see,
e.g., Tr. at 1985-86).  In our opinion, these factors make it unlikely
that Dr. Popovic would have viewed what he did as illogical when he
wrote the paper and would have felt a need to misrepresent his method to
make it appear more "rigorous" to others.

In sum, ORI did not prove by a preponderance of the evidence that the
disputed sentence was intentionally falsified or even that it was
untrue.

      B. ND ENTRIES IN TABLES 1 AND 2

Table 1 of the Science paper reports on the response of cloned T-cell
populations to infection with HTLV-III.  Results for eight different
clones at 6 and 14 days after infection are shown for the following:
total cell number; percent of multinucleated cells; percent of positive
cells as shown by immunofluorescence assay (IFA) 29/ against both rabbit
antiserum to HTLV-III (diluted 1:2000) and patient serum (from patient
E.T.); and reverse transcriptase (RT) activity.  Table 2 of the paper
reports on isolation of HTLV-III from patients with AIDS and pre-AIDS.
Information is given for five patient isolates regarding the patient
diagnosis and origin of the sample.  Virus expression is reported
through RT activity; percent positive cells in IFAs against rabbit
antiserum and serum from patient E.T.; and electron microscopy.  See
Appendix A, the Science paper, for these tables.

At issue here is the use of "ND" in Table 1 for four data points
reporting 6-day IFA results for four different clones against patient
serum E.T., and the use of "ND" in Table 2 for two data points for
patient isolate S.N.:  the IFA against E.T. serum and the electron
microscopy result.  The question of scientific misconduct here centers
around the definition "ND, not done."  Ex. H-5 at 498.  This definition
appears in fine print in the middle of the lengthy legend to Table 1,
but does not appear in the legend to Table 2.

ORI argued that the ND entries are false based on its conclusion that
the phrase "not done" means that an experiment was "not performed" and
that the laboratory notebooks demonstrate that these experiments were,
in fact, performed.  See, e.g., ORI post-hearing br. at 73, 83.  ORI
argued that, instead of recording in the tables the actual results of
the experiments, Dr. Popovic deliberately concealed the actual results
by listing the data entries as "not done."  ORI post-hearing br. at 77,
88.

The parties' presentations on this issue represented a battle of experts
concerning the meaning and use of "ND" and "ND, not done" in scientific
papers -- a battle in which much of ORI's own experts' testimony did not
support its position.  While there may be an immediate, commonsense
reaction that "not done" means that you did not do it (what ever "it"
is), even a commonsense reaction is ambiguous in this context -- what
did you not do, any experiment at all or any quantification of its
results.  After extensive expert testimony, we found that "ND" and "ND,
not done" might mean something different from what a commonsense
reaction might tell one and in fact mean various things when used in
scientific papers (but in general convey that there is no meaningful
data to report).

Dr. Popovic has consistently stated that, at the time he drafted the
tables, and put in the "NDs," he intended to convey the meaning that the
data was inconclusive, unquantifiable, or not determinable.  See, e.g.,
Tr. at 2310-19; 2447-49; 2451-54; and 2471-77; Ex. H-157 at 19-22.  He
said he could not recall putting the definition "ND, not done" in the
legend, but argued that, in any event, it was not inaccurate to state
that the experiments were "not done," given the various possible
meanings of that phrase.  Tr. at 2309; 2352-53.  Dr. Popovic produced
drafts of the paper which show that the definition was not in his
original handwritten draft, but appeared first in draft seven.  Compare
Exs. H-6 and H-12.  Unrebutted testimony shows that a number of other
individuals were involved in editing the drafts by that point.

ORI presented evidence which it said showed that Dr. Popovic most likely
drafted the legend, including the definition, and that, in any event, he
was responsible for it.  We do not need to decide here whether Dr.
Popovic in fact drafted the definition in the legend, in light of our
conclusions on the threshold issue of whether the ND entries were false.

On the basis of the record before us, we conclude that ORI did not show
by a preponderance of the evidence that the ND entries in Table 1 and 2
were inaccurate or misleading, much less that they were intentional
falsification.  We conclude instead that any dispute over the validity
of the ND entries is based on honest differences in interpretation or
judgment of data.

We reach our conclusions about the ND entries for the following reasons:

o       ORI's finding depends on a reading of "not done" as "not
performed," but the weight of the evidence does not support ORI's
contention that it is commonly accepted within the scientific community
that the phrase "not done" means "not performed."

o       Dr. Popovic's testimony was credible that he did not use ND to
mean "not performed," but instead meant to convey that the data was
inconclusive, unquantifiable, or not determinable.  He has consistently
asserted that he used the ND in that sense, and what he did in this
paper was not inconsistent with what he did in other papers, contrary to
what ORI argued.

o       Dr. Popovic satisfactorily explained that the use of ND here
represented a reasonable judgment because it would have been misleading
to the reader to report exactly what appeared in the laboratory
notebooks.  Dr. Popovic's testimony was supported by persuasive expert
testimony.

o       The expert testimony on which ORI relied to interpret the
results in the laboratory notebooks indicates that these experts'
opinions were not based on accurate facts; the testimony indicated that
the ORI experts had failed to take into account the entire parameters of
the experiments performed; failed to consider the subjective nature of
the IFAs or the imprecise nature of an EM and to read the results in
light of the results of parallel experiments showing virus expression;
and, in many instances, misconstrued what certain entries in the
laboratory notebooks meant.

o       ORI did not establish that Dr. Popovic had any motive to
misrepresent or falsify the data, and the expert testimony indicates he
would not have had a motive.  In the opinion of experienced
retrovirologists, the use of the NDs rather than the precise notebook
entries did not add anything to the paper nor affect the overall
conclusions.

1.      ORI's construction of "not done" as meaning "not performed" is
not supported by the record.

ORI's basis for arguing that Dr. Popovic falsified the ND entries on
Tables 1 and 2 of the Science paper is its construction of the
definition, "ND, not done", in the legend to Table 1.  ORI reads "not
done" as unequivocally meaning "not performed" (by which ORI means not
even attempted).  ORI determined that the ND entries were falsifications
because they were represented in the tables as "ND, not done," yet the
experiments were performed.  ORI concurred with previous investigatory
findings rejecting Dr. Popovic's explanation that by "ND" he meant "not
determinable" or "not done properly," although ORI also stated that it
did not believe that "the `ND' entries served to enhance substantially
either the methodological rigor or the robustness of the findings of the
paper."  ORI Final Report at 9-10, 55.

Therefore, ORI's position is dependent on reading "ND, not done" a
particular way.  However, the testimony and evidence shows that ORI's
reading is not the only reasonable reading of this term.

First, Dr. Popovic pointed to dictionary definitions of the term "done"
which indicate that "not performed" is not the only meaning and that one
possible meaning is "not completed."  ORI did not offer any dictionary
definition which would indicate that "not performed" is the only
meaning, or even that it is a preferred meaning, of "not done." 30/  Nor
did ORI specifically find that, if "not done" were used to mean "not
completed", the ND entries would be false.  Thus, at the very least, ORI
had to establish that the commonly accepted usage of "not done" in the
scientific community at the time of the conduct was different from the
ordinary meaning, and, in fact, was the meaning ORI advanced here.  In
addition, to show that Dr. Popovic intentionally falsified the results,
ORI would have to show that Dr. Popovic was aware of that special usage.

For its position that "ND, not done" meant "not performed," ORI relied
on testimony from five witnesses (Dr. Richards, Dr. Hadley, Dr. Martin,
Dr. Watkins, and Dr. Gartner). 31/  For the following reasons, we find
that ORI's reliance on this testimony is misplaced:

o       Dr. Richards was one of a group of scientists who advised NIH
during the investigation.  The advisors did not themselves undertake to
investigate and ascertain whether the statements in issue were false.
Tr. at 513-15.  Dr. Richards testified that the advisors had concluded
that the ND data points appeared to be falsified because ND is defined
in the footnote to the paper as meaning not done, which is a term of art
meaning the experiments were not performed.  Tr. at 438, 514.  We give
little weight to his testimony for two reasons.  First, his opinions
were developed based on selected information given to him by ORI.  See
also Tr. at 421, 467-70; 492; 510; 512-13.  Second, Dr. Richards readily
acknowledged that he did not have a background in cell biology,
virology, or retrovirology.  Tr. at 479-81; 503-04; 506-07.  We find,
therefore, that he could not reliably comment on whether "not done" had
a particular meaning in these disciplines. 32/  We also note that Dr.
Richards stated that there are no generally accepted standard symbols to
use when you might have ambiguous results or a problem with a particular
experiment.  Tr. at 520.

o       Dr. Hadley (a psychologist) led the initial investigation.  She
was not accepted as an expert witness for purposes of this proceeding.
Dr. Hadley's testimony does not establish a community standard.

 She was asked:

   Q:      On the basis of the investigation
   conducted at ORI, what is your understanding of
   the term not done to mean?

 She testified as follows:

  A:      It means the experiment was not done.  It was
  not attempted.  It was not performed.

 Tr. at 936. 33/  This testimony merely states an ultimate
 conclusion and does not provide us with any clear basis for Dr.
 Hadley's "understanding."  In the absence of any such
 information, this testimony has little utility in establishing
 that there was in fact a community standard that "not done" only
 meant "not performed" at the time used in the Science paper.

o       Dr. Martin (who was qualified as an expert retrovirologist)
testified, when first questioned on the NDs, that every time he sees an
ND "it can either mean not done or not detected.  It could be either
one."  Tr. at 1344.  He further stated that it meant "that particular
experimental part of the table, for some reason, it's usually a
technical reason, contamination with mold, for example, the bane of
virologists, or some problem akin to that, just wiped out that
particular experimental result, or the experiment just wasn't -- was
overlooked.  We all make mistakes, and it just wasn't --"  Tr. at 1344.
It was only after he was specifically asked whether he meant it was "not
performed" that he answered, "It was not performed. Correct."  Tr. at
1344.  Since Dr. Martin did not state that "not done" meant "not
performed" until prompted to do so by counsel (and since, as discussed
above, Dr. Martin may not have been disinterested), we give more
credence to his first reaction about the meaning of the NDs in the
tables.  That testimony supports Dr. Popovic's position that ND,
regardless of how it is defined, can be used not only where an
experiment is not even attempted, but also where there are technical
difficulties which prevent it from being properly completed.

o       Dr. Watkins, an ORI investigator, testified that "[t]he
tradition in science, the use of not done means that an experiment was
not done, not that it was done, but not interpretable, or not finished,
or something of that nature."  Tr. at 1414.  Dr. Watkins did not testify
about his basis for reaching this conclusion.  Since he was not
qualified in these proceedings as an expert (in any relevant discipline)
and did not explain the basis for his conclusion, we give little, if
any, weight to his opinion.

o       ORI further relied on testimony of Dr. Gartner, an expert
retrovirologist, as establishing that it was commonly accepted within
the scientific community that "not done" means "not performed."  The
transcript page ORI cited (1845) does not contain any remarks by Dr.
Gartner on this particular subject.  The only reference to "not done" is
in a question to Dr. Gartner asking her to assume that for a particular
patient sample no IFA was done.  In response, Dr. Gartner asks, "What do
you mean by not done?" and counsel answers, "[t]he test was not
performed."  Tr. at 1846.  Dr. Gartner then indicates that to her
"that's a significant difference."  Tr. at 1846.  Obviously if Dr.
Gartner thought that "not done" commonly meant "not performed," she
would not have asked ORI counsel what he meant by "not done" and would
not have stated that there is a significant difference between the two
terms.  Other testimony by Dr. Gartner more directly supported Dr.
Popovic.  She testified that she had used ND to mean "not done, not
determined meaning I couldn't come to a definitive conclusion."  Tr. at
1883.  While she stated that she would feel obliged to explain to the
reader where there was an "ambiguity" or some technical problem, she
also indicated that the journals sometimes treat that type of
explanation as "irrelevant."  Tr. at 1883-84.  Finally, she testified
that the scientific community had different ways of explaining that they
do not have a data point, and that whichever definition of "ND" was used
"[m]ost of us realize that what that means is that there was . . . no
meaningful data generated, at least that's what it means to me. . . ."
Tr. at 1887-88.

Thus, ORI's reliance on these witnesses' testimony is misplaced; either
that testimony, considered as a whole, supports Dr. Popovic more than
ORI, or that testimony is conclusory opinions by individuals who did not
have relevant expertise and who did not clearly articulate any basis for
their conclusions.

Testimony from other expert witnesses presented at the hearing supports
Dr. Popovic's position and establishes that both ND and "not done" have
many meanings other than the narrow meaning relied on by ORI.

o       Dr. Huth, ORI's expert witness in the publication of scientific
papers and the standards in the scientific community with respect to
editing and publication of scientific papers, stated that "there can be
a lot of ambiguity about [ND].  This new style manual that I'm working
on with the Council for Biology Editors . . . has an array of possible
meanings, not determined, not done."  Tr. at 1200.  While he testified
that he felt that an author using ND has the obligation to inform the
reader of the usage of ND, nevertheless his testimony indicates that he
did not ascribe the limited meaning to ND that ORI did -- that an
experiment was not even attempted.  Dr. Huth's testimony indicates that
ND and "not done" were ambiguous.  Tr. 1200-01; 1228-29; 1239-40.

o       Dr. Schachman, an expert in accepted practices for conducting
and reporting biological research, testified that he was familiar with
the use of the abbreviation "ND" and that it usually means "not
determined," which he interprets "as not determinable, so that an
experiment is done, and one doesn't know how to handle the data" because
one could not quantify the sample, "the number didn't make sense, or you
couldn't do the experiment sufficiently precisely to warrant a number."
Tr. at 1274-75.  He also testified that he usually took for granted the
definition of ND.  Tr. at 1275.

o       Ruth Kulstad, an editor of scientific journals for almost 30
years, and the editor of the Science paper here, testified that the
abbreviation ND had no standard meaning and that "it means all sorts of
different things to different people."  Tr. at 1723.  She testified that
she quite often found that abbreviation used without a definition.  She
further stated that she did not think anyone (particularly scientists)
really cared how the term was defined.  Tr. at 1723, 1742-43.

o       Dr. Malkovsky, an expert retrovirologist, testified that his
understanding of the meaning of ND both generally and within the
specific context of Table 1, was that either the experiment could not be
performed for various technical reasons or, if it was performed, it
provided inconclusive data which was impossible to interpret.  Tr. at
2228; see also Tr. at 2249-51.  He stated "[i]t simply means I don't
know, so it conveys sort of zero information."  Tr. at 2228.  He further
explained that, while a scientist may have an obligation to report what
is meant by ND, "ND, not done" has many different interpretations.  Tr.
at 2253.  Dr. Malkovsky also testified that "if you don't get [a]
technically satisfactory result, some people would say not done, some
people would say not determined, some people would basically not comment
on it at all."  Tr. at 2251.

o       Dr. Berns, one of ORI's expert witnesses and scientific
advisors, testified that there was no distinction, in his understanding
between "not done" and "not determined."  Tr. at 1049, 1096.  Moreover,
his testimony showed that he was senior author on a paper which reported
experiments as "ND, not done" in a table while at the same time
describing those experiments in the discussion section of the paper as
though they had been performed.  Tr. at  1101-03; see Ex. D-18.  Thus,
on its face, this paper would support a conclusion that "not done" is
used not only to mean "not performed." 34/

Finally, while ORI submitted several exhibits that suggested the
scientific community may have tried to establish standard abbreviations
or standard meanings for the abbreviations, this evidence does not show
that the scientific community had, during the time period in question,
established a standard meaning for the use of the abbreviation ND or the
term "not done" to mean "not performed."  See Exs. H-102, H-109, H-110.

In sum, ORI did not establish by a preponderance of the evidence that
"not done" meant only "not performed" (not even attempted).  Instead,
the evidence shows that both ND and "not done" had a variety of
meanings.

2.      Dr. Popovic's testimony about what he meant in the paper is
credible.

There are a number of reasons why we find credible Dr. Popovic's
testimony that he did not use the NDs as meaning "not performed" and was
not aware that the definition used in the paper might have suggested
that meaning to some scientists.  As discussed above, we found Dr.
Popovic in general to be credible, based on our observation of him at
the hearing and unrebutted testimony about his integrity.  Moreover, he
provided a persuasive explanation of why he put the NDs, rather than the
exact entries in the laboratory notebooks, and ORI did not establish any
motive for him to falsify the results.  In this section, we discuss two
additional reasons why we found him credible on this issue:  first, he
has been consistent in explaining what he meant by the NDs (even in a
statement made before this investigation began), and second, ORI did not
establish that he had knowingly used ND to mean "not performed" in other
papers.

Our review of the record indicates that Dr. Popovic has consistently
maintained that he meant to convey a different meaning than that the
experiments were not performed.  Ex. H-48 at 43-48; Ex. H-157 at 19-22;
Ex. 49 at 5-7; Tr. at 2308; 2471-75.  In the first written response to
ORI in our record that specifically deals with the subject of the use of
"ND, not done" in the paper, Dr. Popovic asserted that he had explained
from the beginning that, at the time the paper was written, "ND" "was
equal to `not done,' `undeterminable,' or `not detected,'" in his mind
and that he did not "understand that `ND' could have at least three
different meanings when [he] prepared the original manuscript tables
[since he] did not fully appreciate the distinction among `not
detected,' `not determined,' and `not done'."  Ex. H-48 at 43.

Dr. Popovic's explanation is corroborated by other evidence in the
record.  We find particularly persuasive that in a memorandum to Dr.
Gallo, dated March 25, 1986, Dr. Popovic stated that the EM data for
isolate S.N. in the Science paper "were not done properly."  Ex. H-61.
This evidence predates the investigation into this matter and was
prepared outside of the confines of this dispute.  This memorandum
indicates that Dr. Popovic did not intend to suggest that the
experiments were not performed at all.

Also, we reviewed the use of ND by Dr. Popovic in papers (other that the
Science paper in dispute here) on which he was first author that were
submitted into the record. 35/  Ex. P-42, P-43, P-50, P-51.  Dr. Popovic
did not use the term "ND, not done" in any paper in the record for which
he was listed as first author, other than the paper at issue.  He used
the term "ND-not determined" in Exhibit P-50, and "ND-none detected" in
Exhibit P-51; however, this paper was issued after the paper in
question.  Ex. P-51; Tr. at 2346-47 (Popovic).  In the other two papers
on which Dr. Popovic was first author, he used the term "NT-not tested"
to reflect when experiments were not performed. 36/  If Dr. Popovic had
truly intended to mislead the reader into thinking that the experiments
in question here had not been even attempted, we think it more likely
that he would have used "NT-not tested," rather than the more ambiguous
"ND, not done."

ORI determined that Dr. Popovic had used the terms NT and ND
interchangeably to mean "not performed."  ORI post-hearing brief at 80.
This determination was based on an analysis of two of Dr. Popovic's
papers that used ND as "not done."  Ex. H-84 at 94.  One of these papers
was published in the journal Neoplasma in 1970, and one was published in
the International Journal of Cancer in 1969.  We do not find this
analysis persuasive, for several reasons.  First, ORI deduced that the
experiments in the papers were not in fact performed based solely on its
analysis of what the paper said.  Ex. H-84 at 93-94.  ORI did not
apparently have, and did not present to us, any independent evidence of
whether the experiments were in fact performed.  Second, unrebutted
testimony by Dr. Popovic establishes that his articles in Neoplasma were
written in his native language and then translated into English by
language experts, as were many of his early articles that appeared in
other journals.  Tr. at 2287-88.  Also, he does not appear as either the
first or the senior author on the article in the International Journal
of Cancer.  Ex. P-48 at 46.  Absent evidence that the translators or
other authors discussed with him how they were defining ND in these
papers, we cannot reasonably infer that Dr. Popovic intended to use ND
to mean "not tested" in these papers.  Finally, in deciding what Dr.
Popovic's practice would have been in 1984, we find articles published
closer to 1984 to be more relevant than these papers published more than
a dozen years before.

In sum, we found credible Dr. Popovic's testimony to the effect that he
did not mean to convey to the reader the erroneous impression that none
of the experiments reported as ND were even attempted.

3.      The ND entries represented a reasonable judgment by Dr. Popovic
as to how to report the actual experimental results.

Among other data, Table 1 contains the percentage of immunofluorescence
positive cells for eight clones against rabbit and patient antisera at 6
and 14 days after infection.  Dr. Popovic reported as ND the IFA results
for clones H9, H17, H31, and H35 for patient serum E.T. at 6 days after
infection.  Ms. Read-Connole was the technician who prepared and first
read the IFA slides.  Her laboratory notes record her readings of IFA
slides against eight antisera for 17 different cell cultures; most of
them were T cell-clones (either infected or uninfected) or patient
samples.  She recorded results for:  three different dilutions of rabbit
antisera; normal rabbit serum; sera from AIDS patients; serum from Dr.
Popovic (MIKA); and one control positive serum against HTLV-I virus.
See Appendix for Table 1 and for Ms. Read-Connole's laboratory notebook
page 30.  While generally positive results were reported as a
percentage, no percentages were recorded for clones H9, H17, H31, and
H35 at 6 days.  For clone H9, Ms. Read Connole recorded "+"; for clones
H17 and H31, she recorded "-".  The record is unclear whether clone H35
was not tested against the patient antisera or simply not evaluated
(although it is clear that there was a slide prepared for clone H35).
Ex. H-63; Tr. at 2168-69 (Read-Connole); Tr. at 1546 (Schaffer); and Tr.
at 2315-16 (Popovic).

To explain why his assessment of the 6-day results for these four clones
was unquantifiable or not determinable,  Dr. Popovic testified that in
light of the other data reported in Table 1 for these clones, i.e., the
relatively low number of total cells, the presence of multinucleated
cells, the reaction against the rabbit antisera, and the reverse
transcriptase activity, he knew that the clones were positive for virus
production.  Tr. at 2310-16.

For clone H9 he explained that due to the cytopathic effect of the
virus, the cells were damaged and the slide was of "low quality," but he
stated that he knew from other data that the virus infected the clone.
Tr. at 2310-12.  Dr. Popovic gave a similar assessment of the quality of
the preparation for clone H17 and noted that it was recorded as "-"
because it was not possible to determine viral activity from the IFA
assay although all other "parameters clearly indicate that there was a
virus production."  Tr. at 2313.  Dr. Popovic stated that, with respect
to the patient sera IFA, the inability to detect viral activity in clone
H17 was artifactual data which was misleading.  With regard to clone H31
Dr. Popovic testified that --

  The phenomenon was precisely the same as for H9, H17,
  the quality of the slides were low and it wasn't
  possible to quantify.  And for that reason, I put ND.
  However, all other data . . . clearly showed that there
  is a virus production.

Tr. at 2314-15. 37/

For clone H35, Dr. Popovic testified that it had not been "evaluated."
Tr. at 2315.  He stated --

 So, obviously, I put ND because the problem was again the same,
 there were not sufficient cells to make a good, such quality of
 preparation which one could interpret with a confidence and
 could evaluate, could put there a number.

Tr. at 2316.

Dr. Popovic further testified that not detecting the AIDS virus in some
of these assays was not truly a negative result, i.e., signifying "no
presence of the AIDS virus."  Tr. at 2446.  When discussing the IFA
results reported in Ms. Read-Connole's notes [Ex. H-22 at 30], he stated
--

 It says only that that particular slide which was evaluated, the
 person couldn't with confidence tell that it was a fluorescent
 cells, that is what it says.  It does not says that it is
 negative for the virus.

 . . . .

 No.  What it [the minus value] says that with the viral antigens
 which were in the cells, there were no reaction with that
 partic[ular] sera.  Not that it was virus or not virus was
 there.  The data which we obtained were inconclusive, that is
 what it says.

 . . . .

 You should take into consideration other reactivity which we
 paralleled, other data which we paralleled with this experiment.
 If you take in consideration together, obviously, this data are
 inconclusive and one cannot claim that it is negative.  It is,
 immunofluorescence is a subjective matter. . . .

Tr. at 2446-48.

Table 2 reports RT, IFA, and Electron Microscopy (EM) results for
individual patient isolates. 38/  See Appendix A for Table 2.  At issue
are the ND entries for patient S.N. for IFA and EM. 39/

Dr. Popovic testified that there were conflicting IFA results for
patient S.N. since it was negative in one experiment and positive in
another.  Tr. 2317-18; Ex. H-22 at 19, lines 2 and 4.  Moreover, since
other data for this patient isolate were positive for virus activity,
Dr. Popovic regarded it as "misleading" to report as negative the
failure of one assay to detect virus activity.  Tr. at 2317-18.
Similarly, for the electron microscopy results, Dr. Popovic testified
that, in light of the other positive data, as a "very imprecise
technique . . . one can readily miss the presence of virus in the cells.
. . .  Obviously, I have to question the validity of the electron
microscopy observation."  Tr. at 2319.

The expert retrovirologists assessed the results reported as ND together
with other data presented in Tables 1 and 2.  Dr. Gartner testified that
in the context of Table 1, the ND entries would not make any difference
in evaluating the data.  She testified --

 They would mean that there's no data for that, those points.  I
 guess it wouldn't mean very much to me because when I look at a
 paper, the primary thing I'm looking for is whether or not the
 evidence presented supports the conclusions the author is
 drawing.  So I would focus my attention on some of the other
 things.  For example, I would look down at the reverse
 transcriptase activity and at day 14 I see a value of two
 million cpm of RT that is such definitive evidence to have RT
 activity at that level is so unmistakable, I would say this
 person has something.

 . . . .

 It [the RT activity] is under the H9 clone, but the others are
 also very high.  The level of activity there is unmistakable and
 also I'd probably go back and look at, if I look at the NDs, I'd
 say well why did this person get, why is there an ND here and I
 would notice . . . there were too few cells to evaluate would be
 the first thing that would come to my mind, especially since
 they've described here a cytopathic virus.

 So I would look at the total cell number . . . the cell numbers
 in those particular clones [H9, H17, H31, and H35] at day six
 were all very low.

 . . . .

 . . .  So I guess I'd conclude that the reason why a person
 couldn't evaluate this, if that was indeed what ND meant as
 opposed to not doing the test, that it was because there were
 too few cells . . .

 . . . .

 No, it wouldn't make any difference to me [if instead of ND
 those had all been just negative].  Again I would take the whole
 . . . .  Looking at the day 14  . . . that's such definitive
 evidence that to me it's overwhelming that this is real.

Tr. at 1826-28; see Tr. at 1904-05 (Blattner); Tr. at 1955 (Svoboda).

Dr. Gartner testified that since the notebook entries indicated a
quantification in almost all cases for all three dilutions of rabbit
antisera but no quantification for patient sera for these four clones,
this suggested to her that the person doing the assay was not able to
come up with a definitive number for these clones.  Tr. at 1831-32.  She
testified that whether it was appropriate to report results for these
clones as ND is "an individual thing" which "depends on what one's
individual terminology is, the way one keeps track of one's
observations."  Tr. at 1832.  She also testified that the more
meaningful results were against the rabbit antisera because of the
variability in patient antisera with regard to level of antibody to
viral components. 40/  Tr. at 1833-36.  Dr. Gartner discussed in detail
her assessment of the IFA results for clones H9, H17, and H31 as
recorded by Ms. Read-Connole.  Tr. at 1830-36; 1866-70.  Her testimony
overall corroborated Dr. Popovic's explanation.  In addition, Dr.
Gartner testified that she had concluded that the "investigator [could
draw] no meaningful conclusion  . . .  from reading" those slides.  Tr.
at 1905.  Because of the low cell counts for day 6, she thought that
"there was difficulty in interpreting the results."  Tr. at 1904-05.
She affirmed that the data reported in the Table were adequate for her
to evaluate the results of the experiments.  Tr. at 1905.

Dr. Malkovsky testified that he construed the NDs as meaning either that
the experiments could not be performed for technical reasons or if
performed, the results were inconclusive and could not be interpreted.
In his opinion, it did not matter how ND might be defined.  Tr. at 2228.
Dr. Malkovsky testified that he found Table 1 consistent with the
results reported in Ms. Read-Connole's notebook since the IFA results
for the clones in question had not been quantified.  Tr. at 2232-33,
2250.  Moreover, he stated that in light of the other data, he would
expect the 6-day data for clones H9, H17, H31, and H35 to be difficult
to interpret.  Tr. at 2254.

For Table 2, Dr. Gartner testified that the NDs for IFA and EM results
for patient S.N. in Table 2 were not "meaningful."  Tr. at 1813, 1820.
She stated --

 . . . it's not significant.  When I look at this table the point
 I see which distinguishes it from Table 1 is that there was
 isolation of this virus from more that one individual and that
 it was possible to detect that virus from the culture material
 that was used from more than one individual.  So that value to
 me, that's insignificant to me.

Tr. at 1829.

In general, Dr. Gartner compared EM "with respect to novel virus hunt,
as a needle in a haystack."  Tr. at 1820.  She agreed with the analogy
that it was like slicing a loaf of raisin bread and if you happened not
to get a raisin, it did not mean the loaf was not raisin bread.  Tr. at
1820-21.  Dr. Sodroski indicated that alone EM was not a very
"efficient" technique since there may be a relatively low number of
infected cells to search for.  Tr. at 667, 672-73; see also Tr. at
1954-55 (Svoboda).

In assessing all the ND entries for both Tables 1 and 2, what is
striking from Dr. Gartner's testimony is that in the circumstance here,
where one is searching for evidence of a novel retrovirus, each assay or
test only provides a clue which may or may not be useful.  Tr. at
1785-1821 (Gartner).  She emphasized that no one test or assay was
"good" by itself.  Rather, she testified:

 . . . . Everything is done in the context of the whole, the
 total.  You can't evaluate any single piece of data in a vacuum
 when you're working in this kind of system because there are too
 many other potential explanations for that finding.

 But when you have several clues that all point to the same
 direction, then it's believable.  But no, I would not evaluate
 any of these methods independently.

Tr. at 1821.

The failure to detect the presence of the virus from any one test was
not particularly significant.  The retrovirologists emphasized that
these were subjective assays or tests, dependent in large measure on the
investigator's interpretations.  Based on unrebutted testimony from
these retrovirologists as to the nature of IFAs or EMs when an
investigator is looking for evidence of a novel retrovirus, we find that
whether or not the results had been literally transposed from Ms.
Read-Connole's notes (or in the case of the EM reported as negative),
the tables would have conveyed the same critical information concerning
the conclusion as to whether there was persuasive proof of viral
expression.  Thus, we conclude that since other data reported showed
that a culture was positive for virus, it was a reasonable judgment for
Dr. Popovic to report as ND experimental results for tests where virus
activity had not been detected but which in the context of other
available data Dr. Popovic judged to be not quantifiable or artifactual.

4.      The expert testimony which ORI presented did not prove that the
ND entries were inaccurate, misleading, or false.

We discuss in this section why we found that the expert testimony which
ORI presented did not outweigh the testimony by Dr. Popovic and his
witnesses and therefore did not establish that the ND entries were
inaccurate, misleading, or false.  We found the testimony of ORI's
witnesses deficient in the following respects:

o       ORI presented no evidence from a retrovirologist directly
rebutting the testimony from Dr. Popovic and his witnesses about why the
ND entries were a reasonable judgment as to how to report the
experimental results.

o       The testimony of ORI's witnesses was based on the assumption
that "ND, not done" in the tables meant that the experiments had not
been performed (in the sense of not even attempted).  Dr. Schaffer's
testimony was premised on reading the ND entries as equivalent to not
performed.  Tr. at 1542, 1556, 1558-61, 1563-64, and 1636.  Similarly,
Dr. Berns viewed the "ND, not done" here as meaning only not performed.
Tr. at 1048-49, 1054-55, and 1072. 41/  This is also apparent from the
interpretation given by Dr. Berns to Dr. Popovic's written statement in
a 1986 memorandum to Dr. Gallo that the EM for patient S.N. was not done
properly.  Dr. Berns concluded that this statement was inconsistent with
reporting this test as "not done" in the paper, which to him meant that
the test was not performed at all.  Ex. H-61; Tr. at 1054-57.  Dr.
Martin's testimony also suggests that he reviewed the notebook entries
against what was reported in the table, specifically Table 1, only in
terms that "not done" meant only not performed.  Tr. at 1348. 42/

o       ORI's experts failed to take into account the subjective and/or
unreliable nature of the IFAs and EMs.  As we discussed above, there was
relevant testimony from expert retrovirologists that IFA assays are
highly subjective in nature and that EM results were circumstantial
evidence at best.  Tr. at 1791, 1812-16, 1818-20, 1824-25 (Gartner);
2251 (Malkovsky); 667, 672-73 (Sodroski); 1952-55 (Svoboda).  Failure to
consider the nature of these results led ORI's experts to misinterpret
Ms. Read-Connole's notes to mean that virus was not present. 43/  In
contrast, the retrovirologists indicated that if there were other tests
performed at the same time that conclusively showed the presence of
virus, one would conclude that virus was in fact present.

o       ORI's experts failed to consider the other evidence Dr. Popovic
had that there was virus expression.  As we found above, the expert
retrovirologists would have derived from the tables with the ND entries
information adequate to assess the experimental results reported there;
they considered the ND entries to be consistent with what other data in
the table indicated about the slides at the 6-day point in the case of
the IFAs against patient sera E.T., or about virus expression in the
patient S.N. isolate as compared to virus expression in the other
individual patient isolates.  Dr. Schaffer testified, with respect to
the IFA experiments in Table 1, that the results for those clones made a
difference to her because "if the data were done, I would like to know
if it's not determinable . . . ."  Tr. at 1674-75.  This statement,
however, reflects interest in information that the expert
retrovirologists testified they could derive from Table 1 as a whole.

o       ORI's experts misunderstood the entries in Ms. Read-Connole's
notebook. 44/  Tr. at 1048, 1057, and 1072-74 (Berns); Tr. at 1347-48
(Martin); Tr. at 1540-42, 1563, 1611, and 1615-16 (Schaffer).  While Dr.
Schaffer was skeptical of Dr. Popovic's reading of the laboratory
results for IFAs as conflicting for patient S.N., Dr. Schaffer's
testimony indicates that she did not really understand the entries.  Tr.
at 1601-02; 1616-18.  Dr. Berns indicated that he had no information
from Ms. Read-Connole about what she meant by her notations of "+" and
"-" and no entry for the clones H9, H17, H31 and H35, respectively.  Tr.
at 1067, 1111; see also Tr. at 1675 (Schaffer).  He stated that negative
to him meant "she didn't see anything lighting up."  Tr. at 1111.  This
is inconsistent with what Ms. Read-Connole's testimony shows about what
one would see on IFA slides with a cytopathic virus.  Tr. at 2156-57;
see also Tr. at 1813-15 (Gartner).

Moreover, ORI did not show that Dr. Popovic was obligated to report the
results exactly as they appear on the notebook pages.  ORI's experts
gave conflicting testimony about how a scientist in Dr. Popovic's
position should report the results of these experiments in a scientific
paper.  The experts had differing opinions about:  1)  whether or not
these tests should be repeated (Tr. at 1351-54 (Martin); and 1561,
1678-79 (Schaffer); 1051 (Berns)); 2) whether the "+" or "-" entries
could be intermingled with the percentage figures (Tr. at 1109-10
(Berns); 1542-46 (Schaffer)); 3) whether the "+" and "-" entries should
have been quantified (Tr. 1543, 1673-77 (Schaffer)); and 4) whether
there needed to be a footnote explanation of why the slides could not be
read and therefore results could not be determined (Tr. at 506
(Richards)).  We conclude therefore that these witnesses were testifying
to their own personal standards, rather than to standards for reporting
data commonly accepted in the scientific community at the time the
Science paper was published.

5.      ORI did not establish that Dr. Popovic had any motive to falsify
when he used ND in Tables 1 and 2.

ORI contended that Dr. Popovic intentionally concealed the actual
results of the experiments in Tables 1 and 2 by listing certain data
points as ND.  ORI post-hearing br. at 77-78.  ORI, however, concluded
that the "misreporting . . . did not affect the conclusions of the
experiment."  ORI Final Report at 55-56.  The heart of ORI's argument
here is that "ND, not done" can only mean that the experiments were not
performed and, therefore, to report experiments as not being performed
when they were actually performed is an intentional act of deception.
Moreover, ORI reasoned that we can infer intent to deceive because the
overall effect of using the NDs is to make the paper look better
scientifically.  ORI post-hearing br. at 78.

We conclude, for the following reasons, that ORI did not prove by a
preponderance of the evidence that Dr. Popovic had any motive to falsify
when he used ND in these tables:

o  As we discussed above, there is no basis for us to conclude that "not
done" means only "not performed."  We found that Dr. Popovic used ND in
these tables for the data points at issue to convey that the data was
inconclusive, unquantifiable, or not determinable.  Moreover, Dr.
Popovic's use of the term ND to mean not determinable here certainly
conveyed to the reader that the results of these experiments were not
clearly positive and that they were at best inconclusive.  Furthermore,
Dr. Popovic satisfactorily explained that the use of ND here represented
a reasonable judgment on his part because to report the results exactly
as recorded in Ms. Read-Connole's notebooks would have been misleading
to the reader.

o  We find it significant that there was ample testimony from expert
retrovirologists stating that the NDs in the tables conveyed to them
zero information.  Dr. Malkovsky testified that the 6-day data was not
important for interpretation of Table 1; and the NDs here conveyed zero
information.  Tr. at 2228.  While he found this data useful to show the
dynamics of the infection, he did not find this data "biologically . . .
important" and stated that he would probably omit the 6-day data,
showing only the "optimum" data at 14 days.  Tr. at 2229.  Dr. Malkovsky
also testified that IFAs were the least reliable biological method and
that the 6-day data was "not really adding anything to [Table 1]."  Tr.
at 2251.  Moreover, he indicated that a reader would infer from the face
of Table 1 that there might be a difficulty in determining the results
of an IFA at day 6 because the paper indicates for the clones in
question that the yield of cells at this time was incredibly low, which
would indicate massive infection and a lot of damaged cells.  Tr. at
2254; see also Tr. at 1826-28 and 1904-05 (Gartner).  Dr. Gartner
testified that the ND entries for the IFA and EM results are not
meaningful or significant to her in evaluating the data reported in
Table 2.  Tr. at 1828-29.

o  ORI did not present expert testimony to rebut Dr. Malkovsky's and Dr.
Gartner's evaluation of the ND entries in the overall context of the
data presented in these tables.  Since these entries have no effect on
the experts' assessment of either the 6-day data or the data as a whole,
we find that ORI did not show that these entries made the paper look
better scientifically.

o  We do not think it likely that the definition "ND, not done,"
appearing as it does in extremely fine print in the middle of a long
legend, could be significantly misleading to the reader.  Finally, the
fact that this definition did not appear until draft seven, late in the
drafting process, undercuts the notion that this was a calculated
attempt to mislead.

In sum, ORI did not prove by a preponderance of the evidence that the ND
entries were intentionally falsified, or even untrue.

 C. THE 10% ENTRY FOR THE 6-DAY IFA RESULT FOR CLONE H35

Table 1 of the Science paper reports on the response of cloned T-cell
populations to infection with HTLV-III.  Results for eight different
clones at 6 and 14 days after infection are shown for the following:
total cell number; percent of multinucleated cells; percent of positive
cells as shown by immunofluorescence assay (IFA) against both rabbit
antiserum to HTLV III (diluted 1:2000) and patient serum (from patient
E.T.); and reverse transcriptase activity.  The entry in Table 1 for the
IFA results against rabbit antiserum for clone H35 at 6 days is 10%.
Ms. Read-Connole's laboratory notes dated February 29, 1984 contain the
following entry for 6 days after infection for clone H35:

 very few cells    positive for rabbit antibody

See Appendix B.  This notation is written across columns for IFA assays
with dilutions of the rabbit antiserum of 1:500, 1:1000, and 1:2000.

Dr. Popovic testified that he reread the slides prepared for the IFA
assay, after Ms. Read-Connole had read them, and quantified the results
for the 1:2000 dilution for clone H35 at 10%.  Tr. at 2320-23; see also
Exs. H-48 at 49; H-157 at 20-21.

ORI determined that the 10% reported on Table 1 for clone H35 was "best
characterized as falsification in reporting research."  ORI found that
the contemporaneous laboratory notes indicated that "substantially more
than 10% were positive."  ORI Report at 55-56.  ORI argued that --

 Because there is no numerical or other laboratory data to
 support the "10%" entry in Table 1 in the face of directly
 contradictory data and Dr. Popovic's explanations are not
 credible, the "10%" entry is false and misrepresents the results
 of the laboratory data in Ms. Read-Connole's notebook.

ORI post-hearing br. at 89.

We conclude that ORI did not establish by a preponderance of the
evidence that the 10% entry was intentionally falsified or even untrue,
for the following reasons:

o       Dr. Popovic's testimony that he reread the slide was credible
and is corroborated by other evidence in the record.

o       Contrary to what ORI suggested, the record shows that, given the
imprecise and subjective nature of the IFA assay, it was appropriate for
Dr. Popovic to reread and quantify this data point, notwithstanding Ms.
Read-Connole's notes.

o       Dr. Popovic's testimony that he was able to place a value of 10%
on the results is credible since ORI presented no affirmative evidence
that its true value was different and since his testimony is
corroborated by other evidence in the record.

o       ORI did not show that Dr. Popovic had a motive to falsify this
one insignificant data point.

o       ORI's reliance on its expert testimony is misplaced since that
testimony relied on readings of Ms. Read-Connole's laboratory notes
which are inconsistent with her own explanation of the notes and which
are not the only reasonable reading of those notes.

o       Under the particular circumstances here, we find no basis to
draw a negative inference from the absence of laboratory notes
substantiating the 10%.

o       ORI's other arguments are not persuasive.

1.      Dr. Popovic's testimony that he reread the slide was credible.

As discussed above, we found Dr. Popovic generally to be credible, and
his testimony on rereading the slide is corroborated.  Ms. Read-Connole
testified that the IFA slides reported in Table 1 were from the "very
first antibody to HIV and this reacted very, very nicely and it was
quite spectacular and I thought [Dr. Popovic] should see it."  Tr. at
2159.  She also testified that it was her general practice to write
notes to Dr. Popovic in her notebook concerning such results and to
leave the slides in a refrigerator.  Tr. at 2158-59; see Ex. H-22 at
29-31.  For these IFAs, her notes singled out certain slides as a
"[g]ood positive" and directed Dr. Popovic's attention to these slides.
Ex. H-22 at 31; Tr. at 2158 (Read-Connole).

ORI would have us discount Ms. Read-Connole's testimony on the basis
that, having collaborated with Dr. Popovic, it was in her interest to
support his position.  Since her testimony is consistent with her
contemporaneous notes, however, which indicate that she clearly expected
Dr. Popovic to look at the slides, we do not see any reason to discount
her testimony here solely on the basis of any interest she might have in
seeing Dr. Popovic exonerated.  Moreover, the testimony of other
scientists who appeared for ORI indicated that a senior scientist like
Dr. Popovic would reread the slides after a technician had read them.
See, e.g., Tr. at 318-19 (Goldberger); Tr. at 476 (Richards); Tr. at
1075 (Berns).  Here, where the slides in question were IFAs from the
first tests against the putative AIDS virus and overall produced data
which the retrovirologists who testified before us considered
overwhelming evidence of the etiological agent of AIDS, we find it
almost inconceivable that Dr. Popovic would not have read the slides, as
he testified that he did.

Thus, we find credible Dr. Popovic's testimony that he reread the
slides.

2.      ORI did not show that it was inappropriate for Dr. Popovic to
have reread the slides.

ORI said that it was inappropriate for Dr. Popovic to reread slides and
assign a value where Ms. Read-Connole had not been able to do so.
However, several of ORI's own witnesses testified that they would
consider it appropriate generally for a senior scientist to reread a
slide read by a technician, such as Ms. Read-Connole.  See, e.g., Tr. at
318-19 (Goldberger); Tr. at 474-76 (Richards); Tr. at 1075 (Berns);
accord, Tr. at 1816 (Gartner). 45/

Dr. Richards indicated that he would consider reevaluating the slide
appropriate, but that he personally would feel uncomfortable doing so
unless he had discussed the change with the technician or the technician
agreed.  Tr. at 476, 508.  While Ms. Read-Connole testified that Dr.
Popovic had not discussed the 10% value with her at the time, she
testified at the hearing that she believed that the 10% value for clone
H35 at 6 days was correct.  Tr. at 2170-72.  More important, she also
stated that she had seen Table 1 in Dr. Popovic's handwritten draft and
that in preparing the table Dr. Popovic would have been working from her
notes as well as his own notes.  Tr. at 2211-12.  ORI presented no
evidence that she objected to the 10% at the time.

Dr. Schaffer also raised questions about Dr. Popovic rereading the
slide, based on her opinion that Ms. Read-Connole was an expert at
reading IFAs and that, if she could not assign a value, neither could
Dr. Popovic.  Tr. at 1601-13.  In effect, Dr. Schaffer inferred from the
fact that Ms. Read-Connole did not assign a value that the slide was
unreadable. 46/  This is not a reasonable inference for several reasons.
First, while Ms. Read-Connole was clearly quite skilled at evaluating
IFAs, her testimony indicates that she was very conservative in
assigning values when reading IFA slides.  Ms. Read-Connole testified
that --

 I think I'm probably one of the best people around to read them
 because I'm very cautious about my readings.  I don't like to
 say oh, gee, that's positive without having some other basis for
 believing that the value might be correct or if something is
 indeed not clearcut, I don't want to put it down that it is.

 . . . .

 A certain percentage when I'm not sure as you can see by my
 pluses in the notebooks.

 . . . .

 No [she could not make a reading for clone H35], because as I
 explained earlier there was a lot of debris in that first rabbit
 antisera that we had and due to the cytopathic effect of the
 virus infecting the cells in the early stages or a short time
 period after the cells were infected, there was enough debris
 that I could not definitely determine the number of cells that
 were indeed positive to get a positive reading.  But I was
 noting that there were positive cells.

Tr. at 2187-89.

Second, the unrebutted testimony indicates that reading an IFA slide
when detecting a retrovirus involves judgment.  In discussing Dr.
Popovic's quantification in light of Ms. Read-Connole's notebook entry,
Dr. Gartner testified that --

 . . . . But no I wouldn't have any problem with that because
 again, especially with some of the work I've done with
 cytopathic retroviruses like HIV, you don't have the luxury of
 the optimal situation.  You have to go with what you can see and
 so, no, I wouldn't have any problem with it.

 It's a very subjective assay . . . .

Tr. at 1816.  Dr. Gartner's description of what would make a slide
difficult to read but still possible to evaluate when working with a
cytopathic retrovirus is consistent with what both Dr. Popovic and Ms.
Read-Connole said about this clone H35 slide.  Ms. Read-Connole
described the problem with reading such slides as distinguishing among
the various greens to pick out the true fluorescing cells.  Tr. at
2157-58.  There was no scientific evidence presented by ORI to rebut
this.  Since Dr. Schaffer's testimony failed to address this, it is
possible that she did not consider the judgment involved in reading IFA
assays of a retrovirus with cytopathic effects, because her work was
primarily with a different type of virus (herpes simplex).  Tr. at 1464
(Schaffer); Tr. at 1801 (Gartner).

Third, we found persuasive Dr. Popovic's testimony that he felt
comfortable assigning a value, where Ms. Read-Connole had not, because
there were three wells in the slide with different dilutions of rabbit
antiserum which gave him confidence in the 10% value he assigned.  Dr.
Popovic testified that --

 I would like also just to remind that it says positive for
 rabbit antibody, also those rabbit antibody was tested on three
 wells.  So one could evaluate 1 to 500, 1 to 1,000 dilutions
 wells, also 1 to 2,000 dilution wells, while in the case of
 human, using human sera in that wells, it was only one well [per
 human sera].

 So what gave me confidence that . . . the 10 percent is correct,
 because I went through evaluation of and quantified each of
 these wells and determine that 10 percent is for the data point
 1 to 2,000.

 . . . .

 usually there were no big discrepancy, but in this case I sit
 down and I evaluated myself since it was possible to come to
 some quantitative value in this particular case with rabbit
 antibodies, that's what I did.

Tr. at 2321-23; see also Tr. at 2440, 2442.

ORI asserted that Dr. Popovic's testimony on rereading the slide is not
credible since the other datapoints in the table correspond to Ms.
Read-Connole's notebook entries.  This argument is not persuasive since
only the data points Ms. Read-Connole in fact quantified in her notes
are repeated in the tables exactly as recorded in the notebook.  Since
she did not actually quantify an IFA reading for clone H35 at 6 days,
the use in the table of a result quantified by Dr. Popovic would not be
inconsistent with what Dr. Popovic otherwise did in constructing the
table.  Moreover, his testimony provides a rational basis for why he
would assign a value for rabbit antibody, where there were three
different wells, but would treat other non-quantified results as not
determinable. 47/

It is important to note here that this is not a circumstance where
recorded experimental data was altered and the altered data reported as
the true value.  There was no quantification initially recorded by Ms.
Read- Connole and the quantification is consistent with what Ms.
Read-Connole and Dr. Popovic say about the slide.

Thus, we conclude that ORI did not prove that it was inappropriate for
Dr. Popovic to reread the slide and assign a value, notwithstanding the
fact that his technician had not done so.

3.      Dr. Popovic's testimony that the 10% value was based on a
reasonable judgment at the time is credible.

ORI did not show by a preponderance of the evidence that the 10% is
false or inaccurate.  ORI relied solely on Ms. Read-Connole's notebook
and its witnesses' interpretation of her prior statements for its
assertion that the 10% was false.  ORI presented no other evidence
either that an accurate reading of the slide would have given a
different value or that the 10% was a scientifically impossible or
unlikely result.  Dr. Popovic, on the other hand, presented evidence
that the 10% is not an impossible or unlikely result, given results of
other experiments performed at or around the same time.

While we would agree with ORI that an IFA quantification could not
properly be derived from other available data, ORI's suggestion that Dr.
Popovic's testimony indicates he fabricated the 10% based on other data
misconstrues Dr. Popovic's point when discussing other data.  As Dr.
Popovic asserted, other data that is available is consistent with an
actual quantification at 10% and therefore tends to support his
assertion that he read the slide and appropriately assigned the 10%
value.  The 10% value is consistent with the other data for clone H35.
Dr. Popovic testified that clone H35 was clearly positive at 6 days in
light of the presence of giant multinucleated cells and the relatively
high RT value.  Tr. at 2323.  Also, he testified that, since the 14-day
data was "very clear cut and conclusive," there could not have been very
low or virus negative cell population at the 6-day point.  Tr. at
2323-24.  Moreover, Ms. Read-Connole testified that the 10% value was in
the range of the values obtained with other clones in later experiments.
Tr. at 2173-78; Ex. H-24 at April 30, 1984 et seq.  While we do not
think that values for other clones are particularly persuasive, no
evidence was presented by ORI which even suggests that 10% was an
inaccurate, impossible, or unlikely value for clone H35.

4.      ORI did not establish that Dr. Popovic had a motive to falsify
the 10%.

Another reason why we find credible Dr. Popovic's testimony that the 10%
was based on his rereading of the slide is that ORI did not establish
any motive for Dr. Popovic to fabricate this data point.  While ORI
discounted Dr. Popovic's claim that the 6-day data had little
significance, this is just what the evidence here shows.  There is
persuasive evidence that the 6-day data could have been omitted from the
Science paper altogether.  Tr. at 2228-30, 2251-55 (Malkovsky).  The
data presented for 14 days was "overwhelming" evidence of viral activity
in the clones.  Tr. at 1828 (Gartner); Tr. at 2228-29 (Malkovsky).

Dr. Popovic said that the 6-day data was reported to show the
progression of infection of the clones.  Tr. at 2472.  ORI argued that
this gave the 10% importance and that Dr. Popovic had a motive to
falsify the 10% because it made the paper seem more rigorous than if Dr.
Popovic had reported the result as indeterminable (as Dr. Schaffer and
Dr. Berns said it ought to have been reported based on their
interpretation of Ms. Read-Connole's notes).  Dr. Malkovsky testified,
however, that this data was useful to show the dynamics of the
infection, but unnecessary overall, and that it made no difference in
interpreting the data reported on Table 1 whether there was a value
reported for clone H35 at 6 days or whether it was reported as
indeterminable.  Tr. at 2229-30.  Dr. Malkovsky also pointed out that
the data for any one clone was not really important for the meaning of
the table since there were eight clones reported.  Tr. at 2230.  Indeed,
unrebutted testimony establishes not only that the 6-day data was not
necessary to the conclusions of the paper, but that 6-day data other
than the data for the rabbit antiserum indicated the presence of virus.
Tr. at 2253-54 (Malkovsky); Tr. at 2171-72 (Read-Connole).

Thus, we conclude that ORI did not prove that Dr. Popovic had any motive
to falsify this data point.

5.      ORI relied on incorrect readings of Ms. Read-Connole's
laboratory notes.

In asserting that the 10% entry was false and misrepresented the
laboratory data, ORI erroneously concluded that Ms. Read-Connole's
notation was "directly contradictory data."  ORI post-hearing br. at 89.
This conclusion was based on testimony, primarily by Dr. Schaffer, which
was in turn based on her interpretation of Ms. Read-Connole's notebook
in light of statements made by Ms. Read-Connole in a letter sent to an
ORI investigator in 1992.

As mentioned above, Ms. Read-Connole's notebook entry for clone H35 at 6
days was --

 very few cells    positive for rabbit antibody

In her letter, Ms. Read-Connole explained that her notation was "two
separate statements."  One that the slide had "very few cells" was "a
comment on the number of cells on the slide."  She explained that this
was consistent with the other information available for that slide --
the "percentage of multi-nucleated giant cells" and the "cell count" on
day six.  Ms. Read-Connole also evaluated the slide explaining that "the
cells that were on the slide were positive with the rabbit poly-clonal
antisera" but that she "could not make an adequate estimation of the
number of positive cells."  Ex. H-63, Letter from Read-Connole to Healy
dated May 13, 1992.

Dr. Schaffer testified that --

 . . .  So what this means is that if you wash off a whole pile
 of cells you got to guess that a lot of them that you washed off
 were positive and some negatives or whatever, but every one of
 the cells, or all of the cells that were left, were positive, so
 what this indicates is if you were looking at this slide you
 would say there were not many cells but all the cells that were
 there were positive.

 100 percent of the cells? [question]

 That was the implication that certainly the great majority of
 the cells that were on the slide were positive.

Tr. at 1552-53.

Dr. Schaffer testified that the 10% quantification "has got to be a
figment of his [Dr. Popovic's] imagination" and that her guess was that
the actual value was "closer to 100."  Tr. at 1553.  Dr. Schaffer read
Ms. Read-Connole's notes, as clarified by Ms. Read-Connole's 1992 letter
(Exhibit H-63), as meaning that "whatever cells remained were all
positive."  Tr. at 1553.

Dr. Schaffer relied for her opinion on her own interpretation of Ms.
Read-Connole's statements, without actually speaking with Ms.
Read-Connole.  We see no reasonable basis in the record for interpreting
Ms. Read- Connole's statement as Dr. Schaffer does.  Indeed, such a
reading would be contrary to other recorded data about clone H35.  Ms.
Read-Connole's letter merely indicates that she could not definitely
quantify a positive reading, but that there were positive cells.  At the
hearing, Ms. Read-Connole testified that while she could not "definitely
determine the number of cells that were indeed positive," she was
"noting that there were positive cells."  Tr. at 2189.  Her testimony
shows that she did not intend to suggest in her 1992 letter that all of
the remaining cells were positive.  Tr. at 2168-69; 2189.

ORI would have us disregard Ms. Read-Connole's testimony at the hearing
on the basis that she is biased in Dr. Popovic's favor since she
collaborated with him.  We see no reason why we should rely on Dr.
Schaffer's interpretation instead.  Dr. Schaffer's interpretation of
statements made by Ms. Read-Connole in 1992 is inconsistent with the
full text of the 1992 letter. Moreover, we find Ms. Read-Connole's
testimony reliable, for several reasons.  First, it is consistent with
what her letter actually said.  Second, her testimony is consistent with
what the expert retrovirogists said about the condition of the 6-day
slides.  Third, and most important, it is not inconsistent with her
contemporaneous notes.

The notes themselves are the best evidence of what Ms. Read-Connole's
observation was in 1984 and those notes are ambiguous as shown by ORI's
expert testimony.  While Dr. Schaffer read them as meaning all of the
cells were positive, Dr. Berns testified that --

 [t]he way I read it when I saw it originally was that there were
 very few cells positive, which essentially means a negative
 result to me.  . . . .

 That's where I would have thought not determinable would have
 been an appropriate notation.

Tr. at 1050-51.  Dr. Richards testified that the notebook is
"ambivalent.  It can be read either way."  Tr. at 505.

Thus, we conclude that the 10% value is not contradictory to Ms.
Read-Connole's notes.

6.      No negative inference from lack of primary data is appropriate
under the particular circumstances here.

The 10% value is not reflected in the notebooks produced during the
investigation.  Dr. Popovic indicated that he would have noted his
reading of the slide and that such notes would have been discarded once
the Science paper had been published.  Tr. at 2457-59; Ex. H-157 at 21.

ORI asserted that we should draw a negative inference here due to the
lack of primary data to support the 10% value.  ORI post-hearing br. at
90; ORI post-hearing reply at 31.  No such negative inference is
properly drawn, however.  This case is clearly distinguishable from the
decision in Proposed Debarment of Dr. C. David Bridges, DAB No. 1232
(1991), where the Hearing Officer concluded that it was reasonable to
draw a negative inference from the lack of adequate primary data for an
entire set of reported experiments since there was other persuasive
evidence of plagiarism and since the research was under a grant
requiring data retention.  Here, there is a great deal of primary data
available for review.  To draw a negative inference and find misconduct
because primary data is not available for one insignificant data point
is unwarranted.

Other factors for why we consider such an inference unreasonable under
the particular circumstances here are: (1) Dr. Popovic credibly
testified that his prior practice as head of laboratories where he
worked had been to rely on technicians for notetaking; (2) Dr. Popovic
and Ms. Read-Connole both testified that they exchanged and maintained
notes on looseleaf paper so it is unlikely that all notes would survive;
(3) Dr. Popovic was working with an infectious virus under controlled
circumstances requiring that IFA slides be read in the dark so that
notetaking was difficult; and (4) Dr. Popovic's laboratory and office
were moved several times during this time period.  ORI did not assert
that there were definitive standards applicable here which required
maintenance of all experimental data.

We also find it significant here that the 10% entry appears in the first
handwritten draft of the Science paper, since this draft was prepared
shortly after these slides were first read by Ms. Read-Connole.  She
read the slides on February 29 and March 1 of 1984.  The handwritten
draft was prepared several weeks later.  Ms. Read-Connole testified that
she saw this table, and ORI presented no evidence that would indicate
that she disagreed with the 10% at the time.

Thus, we decline to draw a negative inference from the lack of primary
data here.

7.      ORI's other arguments are not persuasive.

In support of its findings that the 10% entry was falsified, ORI relied
on the "inconsistency of Dr. Popovic's numerous and changing
explanations."  ORI post-hearing reply at 37.  ORI discussed Dr.
Popovic's explanations made in written submissions earlier in the
investigatory process that 10% was the equivalent of "very few cells"
and that he had perhaps averaged his and Ms. Read-Connole's reading to
develop the 10%.  Ex. H-84 at 96; Ex. H-157 at 21.

At the hearing, Dr. Popovic explained that he had attempted to explain
the basis for the 10% before he had fully recalled the meaning of Ms.
Read-Connole's notes.  Tr. at 2456-58, 2524-26.  We do not find Dr.
Popovic's explanations to be numerous or changing, or to call his
credibility into question under the circumstances here.  It is
reasonable that for one insignificant data point of the paper it would
be difficult to remember the precise circumstances after seven years.
We note here that Ms. Read-Connole did not clarify the meaning of her
notation until May of 1992.  Ex. H-63.  We find credible Dr. Popovic's
statement that at first he did not remember what happened with clone
H35, but that later he recalled that there had been difficulty in
quantifying low IFA values with the first rabbit antisera and that he
had quantified the 1:2000 dilution at 10%.  The original investigation
here focused on allegations considered to be far more serious, so it is
understandable if Dr. Popovic did not focus his powers of recall on this
issue until it became clear that it might become a basis for an action
against him.

In sum, we conclude that ORI did not prove by a preponderance of the
evidence that Dr. Popovic intentionally falsified the 10% value for
clone H35, or that it was even untrue.

  D. ORI'S OTHER ARGUMENTS

1.      ORI's other arguments were not properly raised here.

During the course of the hearing and in post-hearing briefs, ORI
attempted to raise other issues concerning the accuracy of the Science
paper.  We found introduction of these issues to be inappropriate and
untimely.  In effect, ORI was attempting to reopen allegations of
misconduct on which it had not made findings of misconduct in the final
report which served as the basis for this proceeding.  While ORI
attempted to characterize these matters as merely going to Dr. Popovic's
credibility, ORI had not even identified these matters as part of the
pattern of conduct it said (in the Offer of Proof submitted several
weeks prior to the hearing) it would show to prove Dr. Popovic's intent.
Thus, Dr. Popovic did not have fair notice that these issues would be
addressed, and we ruled that they were outside the scope of this
hearing.  We nonetheless discuss these issues briefly here since ORI
continued to press them and since they were raised in a public forum.
48/

2.      ORI did not show that the paper lacked necessary detail.

ORI contended that the methodology in the paper was not detailed enough
to be reproducible and that this lack of detail was intended to obscure
the "pooling."  First, we fail to see how the paper can be said to
obscure the fact that Dr. Popovic pooled samples when the paragraph in
question reveals that the infection of the parental cell line was done
with fluids harvested from "patients with AIDS or pre-AIDS."  Ex. H-5 at
498.  This clearly reveals that it was not an isolate from a single
patient which grew on the parental cell line.

The criticism that the paragraph lacked essential detail on methodology
is based in part on ORI's erroneous view that pooling should be
considered an essential part of the methodology.  As discussed above,
however, the paper also gives instances of infection with single patient
isolates and these infections are discussed in somewhat greater detail
in the legend to Table 2.  The question of reproducibility was raised
primarily in testimony by Dr. Martin.  For reasons discussed above, we
found him not to be disinterested generally.  His specific testimony on
this point was not persuasive since he admitted that he had not tried to
reproduce the experiment, and that he was "overlaying this by what I
know in 1993, in terms of how these systems worked."  Tr. at 1334.
Moreover, he limited his discussion of the methodology of the paper to
the one paragraph on the infection of the parental cell line (apparently
because, in response to an inquiry from him, Dr. Gallo had drawn
attention solely to that paragraph).  Tr. at 1322-23, 1361.  Dr. Martin
seemed unaware that further details and references on infecting a cell
line through cell-free transmission and cocultivation were given
elsewhere in the paper.  Also, he acknowledged that, while he was a
stickler for details, lack of detail is often a problem in scientific
papers.  Tr. at 1345-46, 1360, 1363.  Many of the witnesses who
testified here -- including ORI witnesses -- said that Science magazine
in particular has space limitations that mean that Science papers are
more apt to lack detail and be ambiguous than some other journals.  See,
e.g., Tr. at 792 (Sodroski); Tr. at 1642 (Schaffer).

ORI presented no evidence that any scientist who had tried to reproduce
the experiment had failed, and the weight of the evidence in the record
is that the methodology in the paper was sufficient.  See, e.g., Tr. at
803 (Sodroski); Tr. at 2236 (Malkovsky).

Dr. Sodroski's testimony on reproducibility supported Dr. Popovic's
position.  Dr. Sodroski testified that one could never exactly reproduce
this type of experiment since it is a "unique event . . . because the
viruses that are present in that patient that particular time may not be
the same viruses present in that patient in . . . two or three days" but
that does not mean that attempting to establish a permanent cell line as
was done here is "intrinsically unreproducible."  Tr. at 777-79.  He
viewed the methodology of the paper as adequate and said that, if he had
a problem, he would have telephoned Dr. Popovic.  Tr. at 797; see also
Tr. at 1642 (Schaffer).  Dr. Martin admitted that he had never contacted
Dr. Popovic to inquire about the methods.  Tr. at 1360-61.

In sum, ORI did not prove by a preponderance of the evidence that the
paper lacked sufficient methodological detail or obscured the pooling
technique.

3.      ORI did not prove that the pool did not in fact exist.

ORI also tried to suggest belatedly that the pool did not in fact exist
(even though the ORI report discussed the pool as though it did exist).
The existence of the pool is established in Dr. Popovic's notebook,
however, which not only records the three infections with multiple
culture fluids but also refers to pooling in the protocol for the series
of experiments and to "pool" or "pooled" as a culture in the laboratory
after the infection.  Ex. H-19 at 16-17, 33, 34, 40, 44, 58.  Although
ORI implied through questioning at the hearing that maybe the notebooks
were not authentic, ORI produced absolutely no evidence that would call
the authenticity into question.  Yet, ORI has had possession of the
notebooks for years and the opportunity to subject them to forensic
tests to date them.  Moreover, the notebooks have various indicia of
authenticity, including the interspersing of notes from Dr. Popovic and
his technician Ms. Read-Connole and information obtained from others.

We also note that Dr. Popovic's descriptions of how he infected the
parental cell line have been consistent, even when these descriptions
were given before the investigation.  See, e.g., Ex. H-42 (1985
memorandum to Dr. Gallo).  Ms. Read-Connole testified that Dr. Popovic
had informed her of the pool's existence in early 1984.  Tr. at 2201
(Read-Connole). 49/

ORI even went so far as to argue at the hearing, however, that the Roche
analysis established "conclusively" that there was no pool -- a position
which would reopen the allegation of misappropriation of the French
isolate.  This was not only extremely prejudicial to Dr. Popovic but a
misstatement of the results of the Roche analysis.  The Roche analysis
did not conclude that there was misappropriation of the French isolate;
the Roche analysis concluded that the most likely explanation for the
striking similarity between the strain called HTLV-IIIB (as grown on
clone H9) and one of the French isolates (different from the one they
said they were providing to the LTCB) was contamination, both in the
French laboratory and at the LTCB, by a variant that was particularly
virulent.  ORI would apparently have us infer that Dr. Popovic
intentionally contaminated the HT cell line with the French isolate and
therefore would have us disregard his testimony on the pool.

Even if this were properly an issue before us, we would not draw such an
inference based on what ORI presented to us, for the following reasons:

  The experts on whom ORI relied for its report did not
  draw such an inference.

  Dr. Popovic did not have a fair opportunity to present
  evidence on whether such an inference is reasonable.

  The published article describing the Roche analysis
  contains qualifications and assumptions that have not
  been adequately addressed in this proceeding.  See Ex.
  H-79.

  The relevant expert testimony ORI did present calls into
  question the reasonableness of such an inference.  Dr.
  Schaffer testified that the problem with pooling was
  that what could come out of a pool might be a
  recombinant different from any virus that went into the
  pool.  Tr. at 1626.  Dr. Sodroski's testimony implies
  that some samples may not be amenable to PCR analysis.
  Tr. at 800.  He also testified that one can initiate an
  infection with only one infectious particle if the right
  target cells are used, and that the viruses present in a
  sample taken at one time might not be the same as the
  viruses in a sample from the same patient taken two or
  three days later.  Tr. at 777-79, 782-83.  Together with
  the acknowledged fact that one of the patients whose
  sample did not yield any HIV virus in the Roche analysis
  seroconverted between June 1984 and June 1985, this
  testimony renders suspect any conclusions based on PCR
  analysis of aliquots of patient samples which were not
  the exact ones used in the pool even if they are from
  the same patients.

  Evidence regarding circumstances in the LTCB and
  contaminations elsewhere makes accidental contamination
  at least as likely a possibility as deliberate
  contamination.  See, e.g., Ex. H-79; Tr. at 1089
  (Berns).

  ORI did not establish any motive for Dr. Popovic to
  deliberately substitute the French isolate for the
  results of his pooling experiment, and we see no
  apparent reason why he would have done so, given the
  number of other isolates which he successfully grew on
  T-cell lines.

.4.     ORI did not prove that the paper inaccurately referred to
patients with AIDS or pre-AIDS.

Finally, ORI suggested that the paper inaccurately referred to the
concentrated culture fluids as being from "patients with AIDS or
pre-AIDS"; ORI argued that some of the individual patient samples were
from patients who were identified in the LTCB's log of patient samples
solely as "hemophiliacs" or "homosexuals" and who therefore should not
be considered as "pre-AIDS."  This argument is based primarily on Dr.
Martin's testimony that a patient has "pre-AIDS" only if the patient has
certain clinical symptoms and does not include "at risk" groups.  See
Tr. at 1327.  In our view, this testimony attempts to impose a more
current definition of pre-AIDS than the definition in the paper itself.
The abstract of the paper defines pre-AIDS as "signs or symptoms that
frequently precede AIDS . . . ."  Ex. H-5 at 497.  Dr. Sodroski and
others testified that, at the time the paper was written, the term
"pre-AIDS" could reasonably have included persons because of their
status, rather than specific clinical symptoms.  Tr. at 620-22
(Sodroski); 846-47 (Hadley).  Moreover, although the sample log on which
ORI relied contains only cursory descriptions of the patients, the
notebooks as a whole indicate that samples from a variety of patients
were being provided to the LTCB either because of their diagnosis as
having AIDS, their clinical symptoms, or their relationship with a
patient who had AIDS.  Thus, we do not find use of the term "pre-AIDS"
to be inaccurate.

In sum, even if we considered these issues to be properly raised here,
what evidence ORI did present and rely on for its arguments would not
make a difference in our decision.

         CONCLUSION

For the reasons explained above, we conclude that ORI did not prove by a
preponderance of the evidence that Dr. Popovic engaged in scientific
misconduct by intentionally falsifying certain methods or data reported
in the .Popovic Science paper, or even prove that the methods and data
at issue were untrue.  Consequently, we conclude that ORI's findings are
not supported and the proposed administrative actions are not justified.

         Judith
         A.
         Ballard

         Norval
         D.
         (John)
         Settle

         Cecilia
         Sparks
         Ford
         Presiding
         Panel
         Member.

         APPENDIX A

        Exhibit H-5

Popovic, M., Sarngadharan, M.G., Read, E. and Gallo, R.C., "Detection,
Isolation, and Continuous Production of Cytopathic Retroviruses
(HTLV-III) from Patients with AIDS and Pre-AIDS,"  Science Vol. 224:
497-500 (4 May 1984).*

*  Reprinted with permission of Science.

         APPENDIX B

Pages 29, 30, and 31 from laboratory notebook #3 of Elizabeth
Read-Connole reproduced from Exhibit H-22..

         APPENDIX C

Background information concerning the witnesses appearingfor ORI and Dr.
Popovic..                       Appendix C

ORI's Witness

Ken Berns

   Professor and chairman of microbiology, and
   professor of pediatrics, at Cornell Medical
   College.  Previously professor and chairman of
   immunology and medical microbiology, and
   professor of pediatrics, at the University of
   Florida College of Medicine in Gainesville.
   M.D. and Ph.D. degrees from Johns Hopkins
   University.  Peer reviewer on the virology study
   section of the Division of Research Grants for
   four years; on American Cancer Society virology,
   microbiology panel for four years; on National
   Science Foundation genetic biology panel for
   four years.

 Accepted as an expert in the field of virology and with
 expertise in proposing, conducting and reporting research.  (Tr.
 at 1041.)  CV at Ex. H-94.

Robert Goldberger

   Adjunct professor at N.Y.U. Rusk Institute for
   Rehabilitation Medicine and conducting
   self-employed research (for last two years);
   past Provost at Columbia University for eight or
   nine years.  Director of intramural research at
   NIH 1978-1981; twenty years at the NIH as
   scientist or science administrator, including
   acting as chief of the laboratory of
   biochemistry at the National Cancer Institute
   for 6 years, supervising about 100 scientists;
   and at the Arthritis Institute.  Educated at
   Harvard University (undergraduate major in
   biochemistry), New York University (medical
   school); Mount Sinai Hospital (internship;
   postdoctoral fellowship in biochemistry).

 Recognized as an expert in the standards of conduct that apply
 to NIH scientists during the time period he was employed there.
 (Tr. at 292.)  CV at Ex. H-33.

Suzanne Hadley

   Ph.D. in Experimental Social and Clinical
   Psychology, U.Mass.; M.A. in Experimental
   Psychology, Hollins College; B.S., Middle
   Tennessee State University.  Performed research
   as graduate student, one year post-doctoral
   fellowship at NIMH, subsequently employed at
   NIMH as Research Psychologist starting in 1978,
   then as science administrator from 1983 through
   1989.  Starting in 1987, Misconduct Policy
   officer.

 Not accepted as an expert witness.  (Tr. at 539.)  CV at Ex.
 H-1.

Edward Huth

   Part-time editor for electronic journal of the
   American Association for the Advancement of
   Science, entitled On-Line Journal of Current
   Clinical Trials.  Undergraduate degree from
   Wesleyan; M.D., internship and residency in
   internal medicine at University of Pennsylvania.
   Eight years of research in kidney function and
   metabolic diseases; five years at Women's
   Medical College; part-time editing for Annals of
   Internal Medicine of the American College of
   Physicians, becoming full-time in 1965; chief
   editor 1971 until retirement in 1990.
   Associated with National Library of Medicine and
   NIH.  Chaired committee that produced style
   manual for Cancer Biology editors; founding
   member of International Committee of Medical
   Journal Editors (intended to develop consensus
   for scientific paper format), including
   involvement in drafting statement of authorship
   criteria; author of background paper on
   scientific authorship for Institute of Medicine.

 Accepted as an expert in the publication of scientific papers
 and upon the knowledge of the standards in the scientific
 community with respect to the editing and publication of
 scientific papers including the years 1983 and 1984.  (Tr. at
 1182-83.)  CV at Ex. H-99.

Malcolm Martin

   Chief of laboratory of molecular microbiology at
   NIAID.  M.D., 1962, from Yale.  Following two
   years of clinical training at University of
   Rochester, joined NIH staff.  Investigated
   cancer-causing viruses at NIH 1968-1978.
   Changed focus to retrovirology starting 1975.
   Involved with AIDS research starting 1983;
   consulted with World Health Organization during
   past year as virus expert.  Evaluates
   microbiological employees for genetics board of
   Howard Hughes Medical Institute; member of board
   for Lucille Markey Foundation, which sponsors
   biomedical research.  Presented NIAID research
   to Ninth International Congress of AIDS.

 Accepted as an expert in virology and retrovirology, and in the
 standards for publication of papers that were followed at the
 NIH during his employment there.  (Tr. at 1317, 1319.)  CV at
 Ex. H-95.

William Raub

   Currently science advisor to the Administrator
   of the Environmental Protection Agency.
   November 1991 to November 1992, special
   assistant for health affairs in the Office of
   Science and Technology Policy as part of the
   Executive Office of the President.  1986 to
   1991, Deputy Director, NIH; 1989 to 1991 Acting
   Director NIH. 1984 to 1986, NIH Deputy Director
   for Intramural Research; 1979 to 1984, Associate
   Director for Extramural Research and Training.
   From 1979 through 1986, performed basically same
   function (supervising grant policy including
   oversight of peer review system).

 Accepted as an expert in the field of accepted standards of
 conduct in the scientific community, with testimony to be
 weighted according to circumstances of job experience (i.e.,
 focus on health science administration rather than primary
 research direction).  (Tr. at 338; see 332 for Dr. Popovic's
 objection.)  CV at Ex. H-146.

Frederick Richards

   Emeritus Professor and Senior Research Scientist
   at Yale University.  1948, B.S. in Chemistry,
   MIT; 1952, Ph.D. in Biochemistry, Harvard.
   After post-doctoral study 1952-1955, joined Yale
   faculty.  1956 through 1971, Director, Jane
   Coffin Childs Memorial Fund for Medical
   Research.  Member and past president:
   Biophysical Society and American Society for
   Biochemistry and Molecular Biology; member
   American Philosophical Society, American Academy
   of Arts and Sciences, National Academy of
   Sciences.  Published about 150 scientific
   papers; has reviewed papers as editor of various
   scientific journals.

 Accepted as an expert in the general scientific methods commonly
 accepted in the scientific community.  (Tr. at 410.)  CV at Ex.
 H-64.

Priscilla Schaffer

   Chief of division of molecular genetics and
   chief of the laboratory of tumor virus genetics
   at the Dana Farber Cancer Institute of Harvard
   Medical School; herpes simplex virus geneticist
   and molecular biologist.  Full professor at
   Harvard Medical School since 1981.  Graduate
   studies in virology at Cornell 1964-1969;
   post-doctorate fellowship in molecular virology
   at Baylor 1969-1971.  Published more than 100
   papers in scientific journals, two on relation
   between herpes simplex virus and AIDS.  Peer
   reviewer of about 5 articles per month; member
   of editorial board of Virology and Journal of
   Virology.

 Accepted as an expert in the field of virology as well as the
 general standards in the scientific community in 1983 and 1984.
 (Tr. at 1475.)  CV at Ex. H-88.

Joseph Sodroski

   1981 to present, researcher at Dana Farber
   Cancer Institute; 1990 to present, associate
   professor of pathology, Harvard Medical School.
   Undergraduate degree from Allentown College of
   St. Francis de Sales; M.D. in 1980 from
   Jefferson Medical College, Philadelphia;
   internship in internal medicine at New England
   Deaconess Hospital, followed by post-doctoral
   fellowship at Dana Farber Cancer Institute.
   Published more than 90 publications mostly on
   retrovirology or cancer-causing viruses;
   contributions to 17 books and monographs;
   reviews approximately 10 papers per month.

 Accepted as an expert in the general field of retrovirology.
 (Tr. at 610.)  CV at Ex. H-98.

Clyde Watkins

   Acting director of Division of Research
   Investigations at Office of Research Integrity.
   Previously deputy director of the Office of
   Scientific Integrity, for 14 months; before
   that, a senior scientist at OSI.  Also faculty
   member at Hershey Medical Center for several
   years and from 1982 to 1987 on the faculty of
   the Medical College of Georgia.  Bachelor's in
   biology and Ph.D. in physiology from
   Pennsylvania State University College of
   Medicine.

 Not offered or accepted as an expert.  CV not referenced in
 transcript.

Thomas White

   Vice President of Research and Development for
   Roche Molecular Systems, previously Senior
   Director of Research and Development.  Performed
   laboratory analysis under contract with OSI.

 Accepted as an expert in molecular evolution (not
 retrovirology).  (Tr. at 549.)  CV at Ex. H-76.

Patricia Woolf

   Currently lectures at Princeton Molecular
   Biology Department on responsible conduct of
   research in molecular biology; serves on
   corporate boards; and performs independent
   scholarly research on subject of fraud in
   science or misconduct in research.  Ph.D. from
   Johns Hopkins; B.S. in chemistry from Purdue
   University.  Past member of Council of Biology
   Editors; member of International Committee of
   Medical Journal Editors.  Past board member of
   Hustings Center for studies of ethics in
   research and past member of National Academy of
   Sciences panel on responsible conduct of
   research; member of award panel for Committee of
   Scientific Freedom and Responsibility of the
   American Association for the Advancement of
   Science.

 Qualified with expertise in the field of standards and behavior
 in scientific communication.  (Tr. at 1124.)  CV at Ex. H-116.

Dr. Popovic's Witness

William Blattner

   B.A. and M.D. from Washington University in St.
   Louis.  Diplomate of the American Board of
   Internal Medicine with subspecialty
   certification in clinical oncology.  Internship
   and residency at Strong Memorial Hospital,
   University of Rochester; senior assistant
   resident at Cornell New York Hospital and
   Memorial-Sloan Kettering Cancer Institute; two
   year fellowship in epidemiology, National Cancer
   Institute; two years clinical oncology training.
   Section head of National Cancer Institute
   epidemiology program from 1981; chief of viral
   epidemiology since 1987.  Co-Editor in Chief of
   Journal of Acquired Immunodeficiency Syndromes.

 Accepted as an expert in the field of viral epidemiology.  (Tr.
 at 1963.)  CV at Ex. P-57.

Robert Gallo

   Chief of Laboratory of Tumor Cell Biology and
   head of Section of Cellular Control Mechanisms,
   National Cancer Institute, National Institutes
   of Health.  M.D. from Thomas Jefferson
   University Medical School; clinical clerkship in
   metabolism at Yale University; internship and
   residency in medicine at University of Chicago;
   NIH from 1965, as clinical associate, senior
   investigator, section chief and branch chief.

 Not offered or accepted as an expert.  CV not referenced in
 transcript.

Suzanne Gartner

   Retrovirologist at Henry M. Jackson Foundation,
   a private foundation administered through the
   Uniform Services University.  Ph.D. in cancer
   biology from Stanford University School of
   Medicine in 1984.  1971-1974, research
   technician in human leprosy and murine leukemia
   retroviruses at Stanford Research Institute.
   1975-1984, research technician and graduate
   student at Stanford Medical School, researching
   novel human retroviruses in Hodgkins and
   non-Hodgkins lymphomas.  1984-1989, HIV research
   in Robert Gallo's laboratory.  Published 38
   scientific papers.

 Accepted as an expert in retrovirology and in the tests used for
 identification of HIV infections.  (Tr. at 1784.)  CV at Ex.
 P-58.

Ruth Kulstad

   Managing editor of Clinical Chemistry, journal
   of the American Association of Clinical
   Chemistry.  Editor of scientific journals since
   early 1960s; founding editor of New Biologist;
   Senior Editor of Science starting in 1981.
   Honors degree in zoology from King's College,
   University of Durham in England.

 Accepted as an expert in the publication of scientific papers.
 (Tr. at 1706.)  CV at Ex. P-59.

Miraslov Malkovsky

   Associate Professor in Department of Medical
   Microbiology and Immunology at the medical
   school of the University of Wisconsin in Madison
   since 1989.  M.D., Ph.D., Member of the Royal
   College of Pathologists.  Previously, senior
   scientist and head of Virology for British
   research company, one year; eight years at
   Medical Research Council in England; faculty
   member at Charles University, Prague.

 Accepted as an expert in immunology and microbiology and
 retrovirology.  (Tr. at 2226.)  CV at Ex. P-60 and P-60A.

Mikulas Popovic

   M.D. in 1965 (Czechoslovakia); Ph.D. from
   National Cancer Institute, Slovak Academy of
   Sciences in Bratislava, 1971; International
   Cancer Fellowship from Swedish Cancer Society,
   1973; post-doctoral training in Cell Biology,
   University of Uppsala.  Later Senior Scientist
   and Chief of Laboratory of Viral Oncogenesis at
   Cancer Research Institute, Bratislava; 1978,
   International Cancer Fellowship under World
   Health Organization.  Guest worker in Dr.
   Gallo's laboratory, 1980-1989.  1989-1990, New
   Primate Research Institute at New Mexico State
   University.

 Not offered or accepted as an expert.  CV at Ex. P-1.

Elizabeth Read-Connole

   B.A., Mary Baldwin College, 1974; M.S. in
   microbiology, University of Maryland, 1992.
   1978-1980, temporary position in NIAID;
   1908-1982, Division of Cancer Treatment,
   National Cancer Institute; 1982 to present,
   biologist in Laboratory of Tumor Cell Biology,
   National Cancer Institute.  Assisted Popovic
   starting September or October of 1983;
   officially assigned in February 1984.

 Not offered or accepted as an expert.  CV not referenced in
 transcript.

Howard Schachman

   Professor Emeritus at University of California,
   Berkeley, Department of Molecular and Cell
   Biology; Chairman of Public Affairs Committee
   for American Society for Biochemistry and
   Molecular Biology.  Bachelor's, master's, Ph.D.
   and two honorary degrees in biochemistry and
   chemistry.  Published several hundred papers,
   wrote a book, served on editorial boards of
   Biochemistry, Journal of Biological Chemistry,
   Analytical Biochemistry, Annual Reviews of
   Biochemistry, Journal of Virology; founding
   editor, Biochemical and Biophysical Research
   Communications.  Member of National Academy of
   Sciences (NAS) since 1968; past president of
   American Society for Biochemistry and Molecular
   Biology, and of Federation of American Societies
   for Experimental Biology (FASEB).  Participated
   in drafting scientific fraud procedures of
   Association of American Universities; served on
   scientific responsibility panel of NAS.

 Accepted as an expert in the field of accepted practices for
 conducting and reporting biological research.  (Tr. at 1265.)
 CV at Ex. P-62.

Jan Svoboda

   Currently employed at Institute of Electrogenics
   in Prague; on immunologic panel of World Health
   Organization; member of Czech Academy of
   Sciences.  Undergraduate degree for studies in
   natural sciences from Charles University,
   Prague, 1957; Ph.D. from Institute of
   Experimental Biogenetics for work in DNA and RSV
   transformation of mammalian cells; 1966,
   doctorate in science for work in oncogenic
   effects of tumor viruses in heterogenous
   species.  Has supervised graduate students.
   Founding editor of Somatic Cell Genetics,
   General Virology.

 Accepted as an expert in the field of retrovirology.  (Tr. at
 1945.)  CV at Ex. P-63 and P-63A.

1.   In this decision, we use the acronym ORI to refer not only to the
current Office of Research Integrity, but also to other investigative
offices which worked on this matter and which the Office of Research
Integrity replaced, including the Office of Scientific Integrity.

2.   Although the guidelines permit appointment of a scientist to the
panel, neither party requested that a scientist be appointed to the
panel in this case.

3.   See Appendix C for a brief description of each witnesses'
background, the area of expertise (if any) in which they were qualified
at the hearing, and the party for whom they testified.

4.   Early in these proceedings, Dr. Popovic filed a motion to dismiss
raising substantial questions concerning the fairness of applying the
1989 definition, which established requirements for extramural research,
to intramural research conducted in 1983-84.  We ruled that ORI had to
prove both that any reasonable researcher in Dr. Popovic's position
would have considered Dr. Popovic's conduct to be scientific misconduct
at the time and that the 1989 definition was met.  ORI presented
extensive testimony at the hearing in an effort to prove what would have
constituted scientific misconduct in 1983-84.  Most of this evidence was
conclusory and merely went to undisputed general propositions, such as
that intentional falsification of scientific data and methods has never
been acceptable.

5.   Dr. Richards, one of ORI's scientific advisors, testified that
"honest error" is not a basis for sanction -- "honest meaning that at
the time the manuscript was submitted, it was thought to be correct."
Panel Hearing Transcript (Tr.) at 467; see also Tr. at 1127 (Woolf); Tr.
at 1064 (Berns); Tr. at 1247 (Huth).

6.   The factual framework here is derived from stipulations entered
into by the parties and from testimony of Drs. Blattner (Tr. at 1964-64,
1967-69, 1977, 1986), Gartner (Tr. at 1797-98, 1806-07, 1817-18,
1836-39, 1890), Popovic (Tr. at 2258, 2260-63), Sodroski (Tr. at 615-16,
646-50, 684-85, 687, 700-01, 733-37, 782), Svoboda (Tr. at 1943-44,
1947-51), and Gallo (Tr. at 2018-21, 2087, 2090-91).  Much of this
testimony was addressed in proposed findings of fact supported by
citations to the record submitted by Dr. Popovic to which ORI did not
directly respond with any citations to the record contrary to our
factual statements here.  Therefore, we do not consider these factual
matters in dispute.

7.   A retrovirus is a virus whose genetic information is encoded in
ribonucleic acid (RNA).  A retrovirus reproduces by creating a
deoxyribonucleic acid (DNA) copy of its RNA.  HIV, the name by which the
AIDS virus is now known, is a retrovirus.  See Glossary of scientific
terms agreed to by the parties at 3 and 5.

8.   The study of retrovirology is a subspeciality of virology; the
process by which a retrovirus replicates is different from the usual
process of virus replication.  Moreover, within the field of virology
and the subspeciality of retrovirology, there is a further
specialization among those working in these areas:  some scientists are
cell biologists who study the virus in the context of the total living
cell and attempt to detect, isolate, and propagate individual viruses or
retroviruses; others are molecular biologists who concentrate on the
subcomponents of viruses such as DNA, RNA, and nucleic acid.

9.   ORI seemed to ignore this point, as though the paper (together with
the papers published at the same time) were claiming that AIDS was
caused by HTLV-IIIB (a variant designation which is not even mentioned
in the paper).  The HTLV-IIIB variant, as grown on clone H9, became the
basis for the AIDS blood test, and is the variant which has a striking
molecular similarity with a contaminant of the LAV variant French
researchers had reported on and allegedly sent to the LTCB.  Unrebutted
testimony here establishes that Dr. Popovic had advocated using an
individual patient isolate, and that the decision to use the HTLV-IIIB
variant was made by others on the basis that its growth was more
advanced.

10.   Reverse transcriptase (RT) is an enzyme protein found in
retroviruses.  Glossary at 5.  Retroviruses use reverse transcription to
convert their genetic material (RNA) into DNA in the process of
producing more virus.  Tr. at 642-43 (Sodroski); see also Tr. at 1799
(Gartner).  The LTCB had developed an assay to detect RT.  A positive RT
is a good indication that a retrovirus is present, but a negative RT
does not mean that a retrovirus is not present; virus expression might
simply be below the level of detection.  Tr. at 1800-07 (Gartner).

11.   ORI's report accepted this scenario as true.  At the hearing,
however, ORI raised allegations for the first time concerning whether
the pool existed and whether the notebooks were authentic.  We agree
with Dr. Popovic that ORI's timing and manner of raising these
allegations were unfair since it did not allow adequate opportunity for
Dr. Popovic to prepare a response.  We have nonetheless discussed these
allegations below since the record as developed -- including testimony
by ORI's own witnesses -- calls these allegations into question and
since they might otherwise unfairly harm Dr. Popovic's reputation,
having been raised in a public forum.

12.   The evidence on the RT tests was from the notebooks of Dr. Prem
Sarin at the LTCB.  The evidence on whether the samples contained AIDS
virus was from polymerase chain reaction (PCR) analysis on aliquots of
patient samples provided by ORI to Roche Diagnostics as part of the ORI
investigation.

13.   While the word "first" may suggest a priority in time, this is not
its only meaning.  One part of the definition of the word "first" is
"before any or some other person or thing (as in time, space, rank, or
importance):  as the first thing to be mentioned . . . . "  Webster's
Third New International Dictionary at 856.

14.   As discussed below, ORI relied on testimony that it would be
"logical" to test for RT activity before pooling samples and using them
to infect the pool (because positive RT would indicate presence of the
virus).  Dr. Popovic presented persuasive evidence, however, that given
his training and practices, he would not have viewed what he in fact did
as illogical, even if it was not optimal.  In any event, even if it
would have been more logical to test for RT first, ORI presented no
evidence that reporting that the tests were performed on part of each of
the three concentrated culture fluids after another part of each was
used to infect the cell line would have undercut the conclusions of the
article.

15.   One of ORI's experts, Dr. Martin, testified that "the first
sentence basically says that by the criteria and tests that were
available . . . the recipient cell was clean, that is to say it didn't
contain any other virus."  Tr. at 1324.  He explained that this was
important "because if the recipient cell contains . . . a virus, then
what would be . . . isolated at the end of the procedure, would be this
so-called contaminant virus and not the real cause of the . . .
disease."  Tr. at 1325.

16.   Dr. Popovic testified that some of these papers were written in
his native language and translated and that some were written in English
and heavily edited by others.  Tr. at 2287-89.  Others who knew him in
the relevant time period testified about his difficulties with the
language, and our observation of him over the two and a half weeks of
hearing confirmed that he has continuing difficulties with syntax and
the nuances of the English language, even though his basic English is
good.

17.   Dr. Sodroski testified that it is "not uncommon that there are
ambiguities in methodologies recorded in journals like Science that are
very pressed for space," so he did not think the ambiguity in the term
"concentrated culture fluids" was particularly troublesome.  Tr. at
792-93.

18.   The notebooks use the name "Sarang" rather than "Sarngadharan",
but both parties agreed that these names referred to the same person.
While the original protocol for the experiments, dated September 10,
1983, called for RT testing before infection, Dr. Popovic testified that
he started sending tests to Dr. Sarngadharan in October or November
1983, and the notebooks support this claim, as does Dr. Sarngadharan's
testimony during the investigation.  Tr. at 2495; Ex. H-19; Ex. H-50 at
15-19.

19.   Dr. Schaffer was apparently under the erroneous assumption that
this was an undated entry.  Tr. at 1501.

20.   In addition to the other factors we discuss below, Dr. Popovic's
credibility on this point is also enhanced by testimony by Dr.
Sarngadharan, who was involved in editing this paper.  He testified that
"first shown" meant that the concentrated culture fluids were shown
positive before the infection.  He interpreted this, however, as
consistent with what actually occurred since, even if the result is
found later than the infection, "what you find out is on a result of a
sample before going on to the cell . . . ."  Thus, he said, "That
positive first only means that the sample was positive prior to going on
to these cells."  Ex. H-52 at 33-38.

21.   Alternatively, some changes could have been made directly by
whoever typed the drafts.

22.   ORI argued that we should find Dr. Popovic responsible for any
inaccuracy in the disputed sentence because it was repeated in a patent
application filed around the time the paper was published and because
Dr. Popovic, by signing the application, had certified that it was not
false.  Unrebutted testimony, however, shows that Dr. Popovic did not
actually review the application before signing it but relied on others,
including lawyers for NIH, to accurately reflect the paper in the
application.  Tr. at 2325-27; 2487-90.  Since ORI did not prove that Dr.
Popovic was aware of the inaccuracy in the paper, or that he reviewed
the patent application, the fact that he certified the application does
not help ORI's case here.  Moreover, ORI's implication that he had a
motive to falsify the application is unwarranted, since at that time
researchers could not share in the patent proceeds.

23.   Even Dr. Martin, who faulted the paper for lack of detail,
testified that, when the paper came out, use of the process of
cocultivation in isolating viruses had "long been appreciated."  Tr. at
1324.

24.   Dr. Svoboda testified that pooling (the aspect of the experiments
on which ORI focused) "is not a real technique.  It's a procedure used
in cases when you don't have enough virus."  Tr. at 1949-50.

25.   In its post-hearing brief, ORI misquotes this as stating that one
"must show a finite amount of reverse transcriptase activity (100,000
cpm) before concentration."  ORI post-hearing br. at 71.  This appears
to be a particularly egregious example of ORI substituting its
paraphrase for an exact quotation.  ORI's substitution of the word
"must" for the word "should" changes the meaning.

26.   ORI also relied on Dr. Martin's testimony describing RT testing as
a "go, no go test".  Tr. at 1330, 1337-38.  The first time he used this
description, however, Dr. Martin simply said "I imagine" that's "sort of
a go, no-go kind of test."  Tr. at 1330.  Dr. Malkovsky testified that
his laboratory sometimes performed RT testing before pooling and
sometimes did not.  Tr. at 2240.  We give more weight to what is in fact
done in laboratories, than to what someone "imagines" would be done.

27.   See, e.g., Ex. H-5 at 499 (legend to Table 2, referring to
experiments exposing cells of H9 clones to "concentrated culture fluids
positive for particulate RT activity").

28.   Dr. Malkovsky testified that his laboratory had pooled samples,
sometimes without testing for RT first.  He said that if the
concentration of virus in some of the fluids were high, diluting them
with non-virus containing fluids would not make any difference in the
final effect.  He also said that "it is very difficult by any other
methods [with] the exception of co-culture, to decide that the virus is
not present" and that measuring RT activity was sometimes impossible,
even when a retrovirus is present.  Tr. at 2239-42; see also Tr. at
2244, 2248.

29.   Immunofluorescence Assays (IFAs) can detect the presence of a
specific viral protein in cell cultures or primary patient cells by
using fluorescent dye molecules that link directly or indirectly to
antibodies to that viral protein.  Tr. at 1807-18 (Gartner).  Ms.
Read-Connole indicated that she performed IFA assays using eight-well
slides, placing a concentration of cells in each well and then adding
the antibody and fluorescence after certain preparatory steps.  IFA
slides are read under a fluorescent microscope to determine what
proportion, if any, of the cells counted react.  IFA slides have a
positive reaction when the cells light up, or fluoresce, bright yellow
green.  Tr. at 2155-58 (Read Connole); Tr. at 1830 (Gartner).

30.     We find some merit to Dr. Popovic's claim that, as a non-native
English speaker, he would not be as familiar as a native with subtle
nuances of the language and might be more apt to rely on dictionary
definitions.

31.     Several of ORI's record citations in support of its proposition
are to unrelated testimony which does not even mention the issue
presented.  See ORI post-hearing br. at 74, citing Tr. at 610, 937, and
1845.

32.     Some of his conclusions were apparently based on discussions
with his colleagues, but those colleagues were not even identified, and
we have no way of evaluating their qualifications and credibility.
Moreover, Dr. Richards seemed to hold Dr. Popovic to his own standard of
explaining in footnotes why there is no data entry for a table.  See,
e.g., Tr. at 520.  Yet, it was undisputed that Science is a journal with
strict space limitations, and the legend here is already very detailed
and lengthy.

33.     ORI cited to Dr. Hadley's testimony on page 937 of the
transcript.  That page, however, does not actually refer to statements
about the meaning of the term "not done."

34.     When it was brought to his attention that experiments were
reported as "not done" in the table but the body of the paper described
the experiments as having been performed, Dr. Berns called this a
mistake which he would characterize as an "honest error."  Tr. at 1102.
Dr. Berns' testimony did not establish, however, that usage of the term
in the paper was a mistake, since he admitted he simply could not recall
whether or not the experiment was in fact performed.  Tr. at 1102.  ORI
tried to distinguish his paper from the one at issue here by saying that
the reader would not be misled since the contradiction was apparent on
the face of the paper.  ORI post-hearing reply at 65.  We note, however,
that the legend to Table 1 in the Science paper describes the
preparation of the IFA slides in such a way as to suggest that they were
prepared for each of the clones at both 6 and 14 days.  Thus, we do not
see how the NDs in Table 1 are any more misleading than the NDs in Dr.
Berns' paper.  In fact, Dr. Richards testified, when asked about the
legend to Table 1, that "in this kind of a table, where you have a whole
series of cells, it is almost inconceivable that the protocol would be
set up to omit certain of the samples, that doesn't make any sense,
because that isn't the way those things are done."  Tr. at 515-16.

35.     We reviewed only those papers on which Dr. Popovic was first
author because ORI did not establish that, for any of the papers where
Dr. Popovic was not the first author, he would have actually performed
the experiments where ND was used or that he was responsible for
drafting the legend.

36.     Dr. Popovic had initially pointed out that there were several
papers in which he had used the term "ND, not done" as meaning either
not determinable or that the experiment was not finished because the
results were inconclusive, yet ORI here did not specifically rebut those
statements here.  Ex. H-48 at 46-47.

37.     Unreported 6-day data for other patient serum showed a positive
reaction for clones H9 and H31, and was recorded as a minus for H17.
Dr. Popovic testified that in his opinion the two patient sera were
"equivalent," which further indicated that the 6-day IFAs for these
clones were "uninterpretable."  Tr. at 2315.

38.     Electron Microscopy is the use of a high powered microscope to
look for evidence of virus expression in cultured material or tissue.
Thin slices of the biological material are examined using an electron
microscope to look for the presence of virus particles, particularly the
budding of the virus particle, and other morphological evidence.  Tr.
1818-21 (Gartner).

39.     Data were inadvertently reversed for two isolates so that the ND
which Dr. Popovic intended to report for patient S.N. is in the wrong
horizontal column in Table 2.  There is no dispute that the ND was
actually intended for the EM results for patient S.N. and that result is
what ORI found was falsified.

40.     ORI asserted that Dr. Popovic "ignores the fact that the rabbit
serum used in the IFA experiments may contain impurities, thereby
producing an anomalous result."  ORI post-hearing br. at 77.  ORI
provided no record citations for this proposition.  Moreover, in
response to ORI's questions about the rabbit antisera, Dr. Gartner's
testimony was that presumably the experiment would have been done in a
way so that the rabbit antiserum would give a better result than the
patient serum.  Tr. at 1833-36; 1867-79; 1897-1901.  ORI presented no
evidence here that the inoculation of the rabbit was not done using
standard procedures, nor any evidence that Dr. Popovic knew there was
any question about impurities in the rabbit serum (which the record
indicates was prepared at another laboratory) which would cause
anomalous results.  There is no reason to conclude that any difficulty
quantifying low positive results with this rabbit antisera meant that
other results were anomalous.

41.     Dr. Berns considered Respondent's explanation to the ORI
scientific advisors that ND in his mind meant not determinable as
opposed to not performed, but said the problem they had with that "was
that it was clearly labeled with a result. . . ."  Tr. at 1048.  His
reasoning was that, if one considered indeterminable the ND entries
corresponding to results reported as "-" in the notebook, one would be
invalidating the results for the controls, which were also reported as
"-".  Tr. at 1048.  We did not find this reasoning persuasive, for
several reasons.  First, ORI presented no evidence that reading the
slides for the controls would have presented the same difficulties as
reading the slides for the clones, where cell death was a problem.
Second, there were no conflicting data for the controls, as there were
for the other results Ms. Read-Connole recorded as "-".  Third, this
testimony did not take into account evidence that Dr. Popovic reread the
slides, and that Ms. Read-Connole was cautious in quantifying IFA
results.

42.     In questioning its witnesses, ORI presumed that the ND entries
meant only that no test had been performed (i.e., attempted) and
therefore, that any indication from the notebook entries that a test was
performed meant the use of ND in these tables was a falsification.  In
our opinion, this slant misfocused these experts' testimony.

43.     To the extent that ORI's experts misread "-" in Ms.
Read-Connole's notebook as meaning only that no virus was present, this
supports Dr. Popovic's view that to report the "-" which appeared in the
notebook would have been misleading to individuals not experienced in
evaluating these tests for a cytopathic retrovirus.

44.     In contrast, Dr. Gartner, an expert retrovirologist, understood
from Ms. Read-Connole's notes what the controls were; Dr. Gartner's
testimony was consistent with Dr. Popovic's concerning the meaning of
the results recorded for the clones in question.

45.     ORI relied on Dr. Gartner's testimony that "a scientist
`wouldn't make a change in someone else's data'."  ORI's post-hearing
br. at 90, citing Tr. at 1881.  ORI takes this statement out of context.
Dr. Gartner testified that, if she independently changed a technician's
reading of a slide, she would not make that change in the technician's
notebook but would record it "in my own notebook."  Tr. at 1881.

46.     We note, however, that (in contrast to her later testimony that
the slide was unreadable), Dr. Schaffer initially expressed the opinion
that the notes indicated that the slide was probably not "easily
interpretable."  Tr. at 1546.

47.     Ms. Read-Connole was unwilling to quantify IFA tests where the
results were not clearcut.  The "+" she used "designates a weak positive
reaction (i.e., [less than] 10%)."  Ex. H-32C at 3.  Dr. Popovic stated
that the "+" for clone H9 against the E.T. antisera had been based on
only one unequivocally positive cell.  Ex. H-157 at 20.  Therefore, it
is not inconsistent with the recorded notes for the IFA results that Dr.
Popovic could quantify the IFA results for clone H35 against the rabbit
antisera.  One would conclude from Ms. Read-Connole's precision and
skill at reading IFA that if it were merely a weak positive, she would
have noted that.  Rather, she stated that the slide was positive but did
not quantify it.  In context, Dr. Popovic's quantification is consistent
with the other IFA results recorded by Ms. Read-Connole.

48.     We have considered all of the evidence and arguments presented
by the parties.  If we do not specifically mention a particular argument
or piece of evidence that means we consider it either covered generally
in our detailed analysis or irrelevant to the issues we need to decide
here.

49.     ORI presented some evidence that pooling would not be a good
technique because you might add inhibitors or viruses other than the one
you are trying to isolate.  Tr. at 480 (Richards); Tr. at 1506-07
(Schaffer).  The mere fact that there might be some problems with the
technique, however, does not mean that it was a technique Dr. Popovic
would not have used, under the circumstances here.  Dr. Sodroski
testified that, while pooling was not optimal, "it appears that it may
have been used here in a practical sense, to try to get some viruses
that could grow on a cell line."  Tr. at 746.  This is consistent with
the September 1983 protocol in Dr. Popovic's laboratory notebook, which
says "If not sufficient volume of culture fluids; pool together several
samples."  Ex. H-19 at