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At least one incident of document destruction occurred during the pendency of the Subcommittee investigation, at the NIH Office of Scientific Integrity (OSI). This incident led to an investigation by the NIH Division of Management Survey and Review (DMSR).
Documents in the possession of key participants in the HHS defense of Gallo et al. were claimed to be destroyed or lost. Former NCI Associate Director Dr. Peter Fischinger, for example, claimed that hurricane Agnes flooded his home, with the consequent loss of all relevant documents in his possession.
Dr. Lowell Harmison, formerly the Science Advisor to the HHS Assistant Secretary of Health, upon his retirement from HHS in late 1987 removed several boxes of documents from his office over a weekend with the assistance of the then-Deputy Assistant Secretary for Health. When HHS learned of Dr. Harmison's surreptitious document removal, it belatedly changed the locks on the door of his office and conducted a perfunctory "investigation" (an HHS attorney telephoned Harmison to ask him for an explanation). Harmison claimed that he disposed of most of the documents he removed from his office in the trash, and he asserted all his "official" correspondence should be available through the HHS Executive Secretariat. No such correspondence was ever produced for the Subcommittee. In fact, in stark contrast to Harmison's top-level, central role in the HHS defense of Gallo et al., only two documents bearing his signature were provided to the Subcommittee.
A substantial number of highly significant documents were either withheld or heavily redacted before they were provided to OSI by Dr. Gallo and his colleagues. As a consequence, OSI was seriously misled concerning such significant matters as what experiments were performed with the IP virus, how the putative LTCB prototype HIV was "isolated," and what Dr. Gallo knew about these experiments.
o Several critical sets of data never were produced to the Subcommittee, including primary data from LTCB experiments comparing the IP and LTCB prototype isolates. Dr. Gallo initially told Subcommittee staff that his attorney possessed copies of some of these data, but when he was asked to produce the copies, Dr. Gallo claimed he had been misunderstood, and that his attorney possessed only documents associated with a lawsuit Dr. Gallo had filed against a French newspaper. The missing data were never produced.
A particularly egregious instance of document withholding at NIH came to light in late 1993, when Subcommittee staff learned from an outside source about the existence of a large cache of documents at the NIH FOIA office. These documents, never produced to OSI, the HHS Office of Inspector General, or the Subcommittee, included a set of documents (the "Myers documents") showing that in 1987, within days of the signing of the French/American settlement, leading American scientists had concluded that Dr. Gallo's claims for the origins of his "IIIb" virus amounted to a "double fraud."
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HHS attorneys manifested particularly severe memory deficits. During his October 8, 1992 interview by Subcommittee staff, HHS attorney Richard Riseberg emitted a remarkable number of "I don't know," "I don't recall," and "I can't help you there" responses concerning a number of critical events at which he personally was present. Riseberg claimed he was merely "asked to go along" to these events. HHS Attorney Darrel Grinstead, in his September 22 and September 30, 1992 interviews, took a similar tack, although on some critical issues, besides repeating, "I don't recall," Grinstead added this:
"I wouldn't tell you even if I did recall. That was between client and attorney."
NCI and NIH Directors Drs. Vincent DeVita and James Wyngaarden each denied any significant responsibility for the defense of Gallo et al. Yet each said the other was importantly involved. Dr. DeVita told Subcommittee staff that Dr. Wyngaarden took on an especially prominent role in matters relating to AIDS and that Wyngaarden "liked to deal with international stuff." Consequently, according to DeVita, Wyngaarden took on responsibility for discussions with IP officials and officials of the French Government, including discussions about possible monetary settlements, creation of an "official" scientific chronology, and other significant matters. Dr. Wyngaarden, by contrast, pointed to numerous instances in which DeVita and NCI by-passed the office of the NIH Director, dealing directly with HHS authorities, Congressional leaders, and even the White House.
Both Drs. Wyngaarden and DeVita, as well as every other key player at HHS, pointed to Lowell Harmison as the man in charge of the U.S. defense of Gallo et al., particularly during the critical early months of the French/American dispute. Attorney Richard Riseberg described Harmison as the "linchpin" of the HHS defense, who "understood the implications of the scientific information." Dr. Wyngaarden described Harmison as "on top of this," and the "chief individual" in the HHS defense. Dr. DeVita described Harmison as "running the show," and attorney Darrel Grinstead described Harmison as his "most regular client."
Despite these characterizations, Dr. Harmison claimed little or no recollection of most major elements of the French/American dispute, particularly his own role. Dr. Harmison claimed he was unable even to describe his job, as in this exchange during a hearing in Executive Session:
Q: Do you remember what your job was?
A: I think I was involved in the policy and the science of it.
Q: You were involved in the policy. And how were you involved in the policy?
A: I think the records that you have collected should express that.
Q: I am asking you. You are here to help us. Please tell us.
A: I have said, there were discussions with people as a normal part of the process of meetings --
Q: Who presided at these discussions?
A: I may have presided. It may have been the AIDS Executive Task Force.
Q: You may have? Do you remember whether you presided? Do you remember if somebody else presided? Do you remember if nobody presided? Do you not remember if anybody presided?
A: I don't remember.
Q: Do you remember there were discussions?
A: I think this is a very circular point. I have explained my policies and how I did things (7/21/93 hearing transcript; pp. 121 - 122).
Dr. Harmison also evinced a curious perspective concerning what was relevant vis-a-vis the French/American dispute. In response to a question about the key issue of the dates on which the IP and LTCB scientists created and began to work with their HIV antibody blood tests, Dr. Harmison said,
"I don't recall with respect to that date. That is to me not relevant. I don't recall, if I knew ... I said I can't recall. To me it is irrelevant because I can't recall it" (op. cit., p. 175).
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