Pharmacy exec seeks new trial over role in deadly U.S. meningitis outbreak

[June 16, 2017] By Scott Malone

BOSTON (Reuters) - Lawyers for a Massachusetts pharmacy executive convicted of fraud for his role in a 2012 U.S. meningitis outbreak that killed 64 people asked a judge to order a new trial, charging that prosecutors misbehaved in providing evidence to the jury.

Barry Cadden, co-founder of the now-defunct New England Compounding Center, was cleared of second-degree murder charges but was found guilty in March of racketeering and fraud for his role in shipping injectible steroids tainted with fungus linked to the deadly outbreak that also sickened 753 people in 20 states.

Cadden's attorneys argued that prosecutors overreached in the number and severity of criminal charges that they filed against him. The attorneys said the prosectutors misled the jury by providing them a binder filled with laboratory tests showing that vials of steroids shipped by NECC were tainted but not providing comparable reports submitted by defense attorneys showing the vials were sterile.

"There is huge prejudice in the fact that the government compiled this in this way in this case," said Michelle Peirce during Thursday's hearing in Boston federal court. "There are two different test results for much of this but the jury could have assumed that this is all there was."

Prosecutors said the binder was intended to make it easier for jurors to sift through the thousands of pieces of evidence in the case.

"Every single document in that binder was an admitted exhibit," said Assistant U.S. Attorney George Varghese. "The binder issue, your honor, is a red herring for two reasons. One, there is nothing legally wrong with it and, two, there is no evidence that the jury looked at it."

One issue looming ahead of Cadden's sentencing later this month is that the jury handled its paperwork in a quirky way: Rather than just checking "guilty" or "not guilty" for the second-degree murder counts, they filled in numbers that prosecutors say showed that a majority had thought Cadden was guilty on 21 of the 25 murder counts.

A total of 14 people tied to the now-defunct Framingham, Massachusetts-based pharmacy were criminally charged, but only two face murder charges. The other is Glenn Chin, the company's pharmacist, who is due to face trial in September. He has pleaded not guilty.

Prosecutors said that Cadden ignored the rules and put profits before patients in 2012, when the compounding pharmacy sent out 17,600 vials of steroids contaminated with mold that were mistakenly labeled sterile. The vials went to 23 states.

(Reporting by Scott Malone; Editing by David Gregorio)

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