Magistrate Bars NECC Insiders' Depositions

By Walter F. Roche Jr.

A federal magistrate judge has ruled that the owners of a defunct Massachusetts drug compounding firm cannot be forced to undergo questioning in a series of civil suits while they are under indictment in a closely related criminal case.
In a 22-page decision handed down today Magistrate Judge Jennifer Boal concluded that five owners and principals of the New England Compounding Center, who are also under criminal indictment, do not have to appear immediately for depositions under subpoenas issued by lawyers for a group of Tennessee health clinics.
"The court is persuaded that the depositions of the insider defendants in the criminal case should not go forward at this time," Boal wrote.
Citing the "significant overlap" between the civil  and criminal cases, Boal concluded that questioning in a depositions "will necessarily implicate their fifth amendment rights."
The decision means Barry Cadden, Carla Conigliaro, Gregory Conigliaro, Douglas Conigliaro and NECC 's chief pharmacist Glenn Chin will not have to appear to answer questions posed by lawyers for the Saint Thomas Outpatient Neurosurgical Center and two other Tennessee clinics.
The Caddens and the Conigliaros are related by marriage and owned NECC.
As Boal noted, clinic attorneys had argued that the depositions were necessary to pursue claims that other parties, and not the clinics, were responsible for a nationwide fungal meningitis outbreak that killed 76 people. Those claims are being made under Tennessee's comparative negligence statute.
Boal's ruling was hailed by attorneys representing victims of the 2012 outbreak.
"The court order respects the constitutional rights of the accused. The order also helps move the civil cases toward trial despite the repeated attempts by some defendants to cause delay and to blame everyone else for their wrongful conduct but themselves," said Nashville attorney Mark Chalos.
Boal, however, declined to bar the depositions of Lisa Conigliaro and Steven Higgins, an employee of an affiliated company. The two have not been indicted. Boal noted that the two would still be able to invoke fifth amendment rights in response to individual questions.
Boal also ruled that officials of the U.S. Food and Drug Administration did not have to testify although the agency will be required to respond to requests for documents from clinic lawyers.
"A protective order precluding the FDA's deposition until  resolution of the criminal case is appropriate," Boal wrote.
Late last year a federal grand jury handed down a 131-count indictment against 14 owners, officers and employees of NECC. A trial has been scheduled for April 2016. 
Finally the magistrate judge ruled that the court appointed bankruptcy trustee for NECC does not have to designate a witness to testify in a deposition as a representative of the now defunct company.
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