said, affected the grant adversely, causing lost time on the
project, as well as a loss of money to the Institute. He also
testified that Dr. Jindal had included Mr. Cooper's name on a
1978 published paper despite his objection, and that part of the
publication was in error.
It is notable that Mr. Cooper, as a member of the Peer Review
Committee, voted for Dr. Jindal's promotion to grade 27 in 1981,
despite these two incidents.
Additionally, Dr. Jindal disputes these claims. He states that
he suggested, and Mr. Cooper agreed, that it would be best to
have an outside firm synthesize the compound for human
consumption in view of the criticism Dr. Kline was receiving for
having, as part of an experiment, administered to his private
patients a laboratory-produced synthesized compound which did not
have F.D.A. approval. He maintains he was always able to produce
the phenelzine compound. With respect to the 1978 paper, Dr.
Jindal testified that Mr. Cooper asked to be named as an author,
although Mr. Cooper had had little to do with it or the
experiments related therein.
Mr. Cooper also alleged failures in Dr. Jindal's performance
subsequent to 1981. He criticized Dr. Jindal's failure to obtain
from Dr. Midha of Vancouver the precursors needed for research of
fluphenazine. Dr. Jindal responds that Dr. Midha was a friend of
Mr. Cooper's, that he asked Mr. Cooper to introduce him to Dr.
Midha for this purpose and was refused.
Mr. Cooper also indicated that several draft grant applications
by Dr. Jindal had been sloppily prepared and demonstrated a lack
of knowledge of basic grant requirements, and that Dr. Jindal's
final grant applications had received low grades from proposed
funders. This testimony stands in contradiction to Mr. Cooper's
annual ratings of Dr. Jindal's performance as "highly effective."
The implicit conclusions of Dr. Cancro and Mr. Cooper that Dr.
Jindal would not have been promoted even if he had been
considered for promotion are countered by documentary evidence
and testimony by Dr. Jindal. The testimony of all of these
witnesses must be discounted in light of the interest each of
them has in the outcome of this lawsuit: Dr. Jindal seeks an
increase in pay; Dr. Cancro seeks to defend his downgrade of Dr.
Jindal's role at the Institute; and Mr. Cooper seeks to show his
failure to consider Dr. Jindal for promotion was not wrong.
While Mr. Cooper and Dr. Lajtha, the only members of the Peer
Review Committee to testify, gave adverse testimony with respect
to Dr. Jindal's performance, it does not follow necessarily that
Dr. Jindal was not promotable to grade 31. Defendants did not
show that, at the time they testified, these witnesses were
familiar with all the information they would have considered in
making a promotion decision as members of the Peer Review
Committee. In fact, the Court sustained plaintiff's objection to
a question to Dr. Lajtha — asking his opinion as to the merit of
promoting Dr. Jindal to grade 31 — on the ground that a proper
foundation had not been laid for the question. (Tr. 400-02). The
Court suggested to defense counsel the manner in which a proper
foundation could be laid for the question to again be put to Dr.
Lajtha, but defense counsel failed to do so. Nor did defendants
present much evidence from the remaining members of the Peer
Mr. Cooper testified that he could not conclude on the basis of
Dr. Jindal's publication rate alone that he was not fit for
promotion. (Tr. 785). He further testified that he had no strong
feelings, either in 1987 or at the time of his testimony, as to
whether Dr. Jindal was fit for promotion to grade 31 (Tr. 788),
and indicated that, had Dr. Jindal asked to be nominated for peer
review, he "would have suggested to him that he needed more
publications, or I may have put it forward and told him that it
may go through or it may not, but I didn't feel very strongly
either way." (Tr. 694).
Accordingly, it is the finding of the Court that, upon the
proof presented at trial, the defendants have not shown by a
preponderance of the evidence that Dr. Jindal did not possess the
qualifications to pass a fair,
honest and non-discriminatory peer review for promotion to grade
The Court therefore orders that judgment be entered for
plaintiff and that defendants promote Dr. Jindal to grade 31
effective May 1987, and that he receive back pay to that date.
Plaintiff shall submit a proposed judgment on 5 days notice to
defendants within ten days of the date of entry of this decision,
and plaintiff has permission to file an application for
attorneys' fees and expenses under 42 U.S.C. § 1988 within 30
days of the date of entry of this decision.