Volume 275, Number 5302, pp. 920b
(c)1996 by The American Association for the Advancement of Science.

When an appeals board cleared AIDS researcher Mikulas Popovic of scientific fraud in November 1993, leading the government to drop all misconduct charges against his former boss, Robert C. Gallo, one of the most bitter and divisive sagas in science finally seemed to be over.
But not quite: Now comes the epilogue. Last fall, Popovic filed a $5 million lawsuit against the United States and one of its employees, fraud investigator Suzanne Hadley, for pursuing a "baseless" investigation that caused him "severe emotional stress" and resulted in his "de facto forced exile from science for 4 years." On 31 January, the government submitted its formal response to the suit, arguing that it should be dismissed on technical grounds.

The suit could be another grueling test for the Department of Health and Human Services' (HHS's) Office of Research Integrity (ORI), which has seen some of its highest profile cases ignominiously tossed out by the same appeals board that cleared Popovic. The case has also led to speculation that it could be the leading edge of a wave of suits from other scientists who were charged with research misconduct and later exonerated. Lawyers involved with misconduct cases say, however, that such suits are difficult to win, and they doubt that many researchers will want to reopen a painful chapter of their lives. Barbara Mishkin of the Washington, D.C., firm of Hogan & Hartson, who represented Popovic before the appeals board, says the Popovic case "is probably the strongest case to take against the government of any of them that went through ORI."

Popovic, a Czech immigrant who worked in Gallo's lab at the National Institutes of Health (NIH) in the 1980s, was first investigated for scientific misconduct in 1989 after allegations surfaced that Gallo had stolen the HIV virus from a French lab. Early on, the government dropped charges of misappropriation against the two scientists. But ORI concluded that Popovic and Gallo had made false statements in several 1984 AIDS articles in Science. In a scathing decision, however, the appeals board overturned the findings against Popovic, saying it had found no "residue of palpable wrongdoing" (Science, 12 November 1993, p. 981). That embarrassing setback led ORI to abandon its case against Gallo.

Popovic filed his suit with the U.S. District Court in Greenbelt, Maryland, under the Federal Tort Claims Act, which waives the government's "sovereign immunity" in certain cases. The suit contends that ORI's investigators violated Popovic's rights to due process and privacy. It claims he was not initially informed of the charges against him and that HHS and ORI officials leaked his name and details of their case against him to the press. The suit also contends that the Office of Scientific Integrity--ORI's predecessor--accidentally sent Popovic a tape of a discussion indicating that just after interviewing Popovic, Hadley, then acting OSI director, and her staff were already leaning toward finding him guilty. (Hadley declined to comment on the suit.) "The manner in which this was handled was just atrocious," says Washington, D.C., attorney Paul Thaler, whose firm is representing Popovic.

The suit also claims that the government illegally refused to hire Popovic. He had left NIH just before the probe began for a job that didn't pan out. Gallo then offered him his old position, but NIH said he couldn't return until the investigation was completed. After about 4 years of unemployment, Popovic eventually found work as a visiting scientist at the Karolinska Institute in Sweden, and last July he joined Gallo's new Institute of Human Virology at the University of Maryland, Baltimore.

Popovic's suit says his losses include legal fees of $350,000 during the ORI investigation and 4 years of salary; he has asked the government and Hadley for at least $5 million in compensatory damages and legal costs. (Thaler's firm has taken on the case on a contingency basis.) Popovic referred a reporter to his attorneys, saying only that the matter is "very painful," but Gallo says Popovic has indicated that he would spend any award on research. "He was hurt badly and very unjustly. He certainly could use a little help to get started," says Gallo.

In the government's response to the suit last month, the U.S. attorney in Baltimore cited technical reasons why the case should be dismissed. The response says that Popovic waited longer than a 2-year statute of limitations to sue; that several claims amount to libel or slander, for which the government has immunity; and that others, such as NIH's failure to rehire Popovic, do not violate any Maryland law. Thaler says "Nothing in it [the brief] was a surprise to us," and that he is "confident that the claims will survive."

Others aren't so certain. "I think the government may have some strong technical defenses, which is too bad," says Washington, D.C., attorney Joseph Onek, who has represented defendants in several high-profile science fraud cases, including the Gallo case. "Of all the people [investigated by ORI], Dr. Popovic perhaps deserves compensation the most because he was harmed so much," Onek says. Thaler says the average life for a federal civil lawsuit is 12 to 18 months, and 90% are settled out of court. If there is a trial, he expects it would take place next winter.

The glacial pace of such suits is not always the result of legal skirmishing. A year before filing the suit, Popovic's lawyers sent HHS a letter notifying the agency of their intent to sue--a standard step that normally would trigger an agency investigation. Popovic never received a response, however. According to the government's brief, "[I]t was confirmed that the mail room had received this letter ... and subsequently had misplaced it."

Volume 275, Number 5302, pp. 920b
(c)1996 by The American Association for the Advancement of Science.