Thursday, December 7, 2017

Prosecutors Oppose Chin Acquittal Motion

By Walter F. Roche Jr.

Citing prior rulings in a parallel case, federal prosecutors are asking a federal judge to reject an acquittal plea from a pharmacist who played a key role at a drug compounding company that shipped thousands of vials of deadly fungus laden steroids.
In a 25-page filing in U.S. District Court in Boston, Mass. prosecutors said Glenn Chin's conviction on racketeering, conspiracy and mail fraud charges should stand and all five of his arguments for acquittal were without merit.
Chin, the government brief notes, was convicted on 77 counts following a five week trial. His sentencing is scheduled for Jan. 30 before U.S. District Judge Richard G. Stearns.
Assistant U.S. Attorneys Amanda Strachan and George Varghese noted that many of the arguments for acquittal  offered by Chin already have been rejected by Stearns in the case of co-defendant Barry J. Cadden. Cadden, who was president and part owner of the now defunct New England Compounding Center, is serving a nine year prison sentence in Pennsylvania.
Cadden and Chin were among 14 persons connected to NECC who were indicted in late 2014 following a two year probe of a deadly 2012 fungal meningitis outbreak that killed 76 patients and sickened 702 others.
"Chin, like Cadden before him, has presented no new arguments, nor cited any new case that calls into question the court's two prior rulings on this issue," the filing states.
Chin's lawyers had argued that the racketeering and conspiracy charges against him were too vague.
Charging that Chin was a manager of a criminal enterprise that sold "grossly substandard drugs" that were prepared in "filthy conditions."
"The evidence at trial showed Chin conspired with Cadden ... to operate NECC as a criminal enterprise. Chin, in his role as the supervising pharmacist of NECC's clean rooms, was part of that conspiracy," the brief states.
Cited was Cadden's role in using outdated drugs, shipping untested drugs and mislabeling drugs that hadn't been tested to make it appear that they had.
They noted evidence that under Chin's direction, drugs that were supposed to be placed in an autoclave for 20 minutes were only treated for 15 minutes.
They also noted the jury rejected Chin's claim that he was just following orders.
In a related development seven civil suits against a Maryland clinic where victims were injected with fungus laden NECC steroids were dismissed as the result of a settlement.'
Suits by outbreak victims against a Crossville, Tenn. clinic also have been settled and papers were filed this week to create a settlement fund for distribution to victims. Terms of the settlement with the Specialty Surgery Center were filed under seal.

Friday, December 1, 2017

Feds Move to Seize Cadden's House, Cash, Diamonds

By Walter F. Roche Jr.

Federal agents have executed preliminary forfeiture orders against more than a half dozen assets owned by the man now serving a nine year prison term for his role in a deadly 2012 fungal meningitis outbreak.
In filings today in U.S. District Court in Boston, Mass. the forfeiture orders were issued for the residence of Barry J. Cadden, along with jewelry, a "luxury clock or timepiece" purchased from an antique dealer and a sail boat purchased by the former drug company owner.
Cadden was convicted in late March on racketeering and mail fraud charges. He is now serving a nine year prison sentence in a federal prison in Pennsylvania.
U.S. District Judge Richard G. Stearns subsequently issued an order authorizing the forfeiture of Cadden's assets of $7.5 million.
In addition to Cadden's Wrentham, Mass. home the forfeiture orders apply to two adjacent properties, jewelry purchased by Cadden on Dec. 23, 2010 and Oct. 21, 2011 from DeScenza Diamonds, $1.4 million in a Lee Munder Wealth Planning account and $95,923 from a Middlesex Savings Bank account.
A total of eight preliminary forfeiture orders were filed. According to the filing, a copy of the seizure order was posted on Cadden's residence.
Cadden was president and part owner of the New England Compounding Center, the company blamed for the fungal meningitis outbreak which killed 76 patients across the country.

Thursday, November 30, 2017

Prosecutors Push for Outbreak Restitution Order

By Walter F. Roche Jr.

Federal prosecutors are asking a judge to reverse a decision which could delay for months a decision on a $74 million restitution order to benefit victims of a deadly 2012 fungal meningitis outbreak.
In a seven-page motion filed today in U.S. District Court in Boston, Mass. Assistant U.S. Attorneys George Varghese and Amanda Strachan asked U.S. District Court Judge Richard G. Stearns to reverse himself and immediately consider the order which could bring financial relief to outbreak victims.
Stearns, in a decision issued Nov. 21, concluded that he could not consider the restitution because of pending appeals in the case of Barry J. Cadden. A decision on those appeals is not expected for months.
Cadden, who was president and part owner of the company blamed for the outbreak, was convicted in March on racketeering and mail fraud charges and is serving a nine-year federal prison sentence. Both his conviction and sentence are on appeal. Prosecutors have asked that Cadden be forced to make restitution of $73.7 million.
"The government submits that this court's jurisdiction is unaffected by Cadden's appeal from his conviction (or the government's appeal of his sentence)," the motion states.
While acknowledging that in many cases an appeal would delay such decision, the prosecutors cited two U.S. Supreme Court rulings to the contrary.
In addition they noted the federal Mandatory Victims Restitution Act of 1996 makes restitution "a mandatory component of sentencing for criminal offenses, including crimes for which Cadden has now been convicted."
They also noted a provision of the restitution statute that mandates restitution where an identifiable victim or victims have suffered a physical injury."
"The notice of appeal following the original judgment does not divest the sentencing court from resolving the restitution issue," the decision states.
Stearns already has issued an order requiring Cadden to forfeit $7.5 million in assets, including his BMW and Wrentham, Mass. home.
The 2012 fungal meningitis outbreak caused by fungus laden steroids sickened some 778 patients killing 76 of them.

Wednesday, November 22, 2017

Chin Seeks Reversal and Acquittal

By Walter F. Roche Jr.

The pharmacist convicted of racketeering and mail fraud in the wake of a deadly fungal meningitis outbreak is asking a judge to throw out the jury verdict and acquit him of the charges.
In a nine-page filing in U.S. District Court in Boston, Mass., Glenn A. Chin said the fact that the jury found him not guilty on second degree murder charges undermines all the remaining racketeering and mail fraud charges.
"Without the second degree murder racketeering charges this case is even farther afield from RICO (racketeering) than where it started," the filing by Stephen J. Weymouth, Chin's attorney, states.
Adding that "constitutional concerns" were heightened by the "jury's acquittal" on 25 second degree murder charges, the motion states that Chin had no way of knowing that the conduct he was engaging in could lead to a racketeering charge.
"The RICO (racketeering) charge is unconstitutionally vague as to Chin on an alleged mail fraud scheme," the motion continues. "Chin was not - and could not have been - aware that the New England Compounding Center's (NECC's) compounding drugs, even if deficient, could amount to racketeering."
The motion states that restrictions have been set on similar charges "to prevent the government from targeting individuals based on personal bias or public pressure.. just as the government did here."
In addition, the motion states that the government presented no evidence, explicit or implicit, that Chin conspired with five of the codefendants.
As to the charge he conspired with co-defendant Barry J. Cadden, NECC's president, the motion states that Chin simply followed Cadden's instructions in order to keep his job.
"Throughout his employment Chin followed the directives and practices taught to him by Cadden. Cadden closely controlled the details of the operation," the brief states.
Finally the motion argues that any charges relating to one lot of drugs produced at NECC in May of 2012 should be tossed because the government never proved the lot was contaminated or that anyone was sickened from it.
The 2014 indictment of Chin and Cadden followed a two year grand jury probe of the 2012 fungal meningitis outbreak which sickened some 778 patients, killing 76 of them. The outbreak was blamed on vials of spinal steroids shipped by NECC while loaded with deadly fungi.
Cadden already is serving a nine-year prison sentence while Chin is scheduled for sentencing on Jan. 30 before U.S. District Judge Richard G. Stearns.

Tuesday, November 21, 2017

Tennessee Outbreak Victim Passes

By Walter F. Roche Jr.

One of the earliest Tennessee victims of the deadly nationwide fungal meningitis outbreak has died just a little over five years after he was sickened by fungus laden steroids injected into his cervical spine.
Dennis O'Brien of Cookeville  died Nov. 16 in a local hospital days after he suffered a massive stroke.
A retired school teacher, O'Brien had turned to the injections seeking relief from chronic pain. He said in an interview that the injections actually did ease his pain. That was until August and September of 2012.
Court records show O'Brien was injected with methylprednisolone acetate from the New England Compounding Center on Aug. 17 and Sept. 14 of 2012. He was one of the more than 100 patients who got the injections at the Saint Thomas Outpatient Neurosurgical Center only to be taken ill. Several patients at the Nashville, Tenn clinic died.
It was on Oct. 2, 2012 when he went to the Saint Thomas emergency room suffering from a severe headache, vomiting and diarrhea. A test of his spinal fluid showed he was suffering from fungal meningitis. He was hospitalized for 10 days.
O'Brien and the other victims were treated with powerful anti-fungal drugs that often have severe side effects including hallucinations and vision problems.
In several interviews over the past five years O'Brien described the pain he continued to suffer from the after effects of the meningitis and the underlying neck problems that drove him to seek the injections in the first place.
In fact he had retired early from teaching due to his neck pain.
In interviews as he tried to spring back from the meningitis, O'Brien said he was forced to use a cane and was unable to do many of the tasks a 64-year-old would regularly perform.
"I'm a third of my former self," he said in one interview.
The outbreak caused by contaminated steroids from NECC eventually killed 76 patients out of the 778 who were sickened. More victims, O'Brien included, have died over the past few years, some of them also suffering strokes. Other victims also have reported ongoing ailments triggered, if not caused, by the meningitis.
In addition to his wife of nearly forty years, Kaye, O'Brien was survived by his mother, Marion O'Brien of Nashville, a daughter, Katie Little of Cookeville, a son Patrick of Rockvale, three sisters and a brother.
His wife said she and the family were grateful he would suffer no more pain.
"Dennis was ready to go on to heaven," she said.

Friday, November 17, 2017

Prosecutors Reassert $73.7 Million Restitution Claim

By Walter F. Roche Jr.

Calling arguments by a former drug company executive absurd and nonsensical, federal prosecutors have reasserted their claim that Barry J. Cadden should pay $73.7 million in restitution to victims of a deadly fungal meningitis outbreak.
In a 13-page filing today in U.S. District Court in Boston, Mass. the U.S. Attorney charged that actions by Cadden were directly responsible for the deaths and injuries to some 352 identifiable victims.
Cadden is now serving a nine-year prison sentence following his March conviction on charges of racketeering, conspiracy and mail fraud. He already has been ordered to forfeit $7.5 million.
The filing by Assistant U.S. Attorneys Amanda Strachan and George Varghese also defends providing restitution to clinics that purchased drugs from the New England Compounding Center, the now defunct company Cadden headed. Their proposal also would bring restitution to insurance companies who paid some of the victims' medical expenses.
"The clinics endured substantial out-of-pocket losses as a result of Cadden's fraudulent schemes," they argued.
Most of the $73.7 million, however would go to patients sickened by NECC drugs. Some 778 patients were sickened and 76 of them died after being injected with fungus laden steroids produced by NECC.
"These patients were directly and proximately harmed by Cadden's criminal conduct," the filing states.
Cadden has argued that he was convicted for misrepresenting the processes utilized at NECC and not the quality of the company's drugs. His lawyers contend restitution should be limited to $5,377.60
"This statement is wrong and nonsensical," the prosecutors stated. "The quality of the drugs is the reason the production process mattered to customers."
Asserting  that Cadden was convicted on 27 separate fraud and racketeering charges, the prosecutors stated that if not for Cadden's "voluminous misrepresentations.. not a single victim would have been harmed."
They also rejected Cadden's claim that because there were so many victims suffering so many different injuries, no restitution could be calculated.

Thursday, November 16, 2017

NECC Defendant Gets U.S. Paid Attorney

By Walter F. Roche Jr.

A federal magistrate judge has approved a request by a defendant in the criminal case stemming from a deadly fungal meningitis outbreak to have the federal government pick up the tab for the lawyer she hired to defend her.
In a four-page order issued today U.S. Magistrate Judge Jennifer Boal agreed that the government should pick up the tab for Sharon Carter's continued defense with her current attorney.
Carter is charged with racketeering conspiracy and conspiracy to defraud the U.S. Food and Drug Administration. She was one of 14 indicted in late 2014 following a two-year probe of the 2012 fungal meningitis outbreak.
Carter was director of operations for the New England Compounding Center, the company that shipped highly contaminated steroid drugs to dozens of health care facilities. The 2012 outbreak sickened 778 patients, killing 76 of them.
Under the decision Carter's current lawyer, Michael J. Pineault, can continue as her counsel even though he is not a member of a panel of lawyers selected to represent indigent defendants.
"The court finds that she (Carter) is financially unable to obtain counsel at this time," Boal wrote, adding that the defendant "has exhausted the personal assets available to fund her defense."
Though she noted that appointing a counsel not on the panel is only allowed in exceptional cases under the Criminal Justice Act, Pineault has been representing her for five years in a complex case.
"The court finds that exceptional circumstances are present in this case," the ruling states.
She added that Pineault's request that a colleague also be appointed to assist him should be resubmitted separately.