Wednesday, June 28, 2017

Nashville Outbreak Victims Getting Checks


By Walter F. Roche Jr.

Checks have been issued to 90 of 114 victims of the 2012 fungal meningitis outbreak who were injected with fungus tainted spinal steroids at a Nashville, Tenn. clinic, according to a report filed today in U.S. District Court in Boston, Mass.
The filings by attorneys for outbreak victims detail expenses that have been incurred in processing the claims and issuing the checks. The exact details of the settlement with the Saint Thomas Outpatient Neurosurgical Center and related parties have not been made public, but it is estimated at more than $20 million.
According to the report by Nashville attorney Benjamin Gastel, a global settlement of the case was reached in September of last year.
The initial payments to victims or their survivors are estimated to equal about 90 percent of the total each claimant is expected to eventually collect. The payments are separate from checks to victims from a national settlement reached in the bankruptcy of the New England Compounding Center.
NECC sold the tainted methylprednisolone to the Nashville clinic and dozens of other health facilities across the country. NECC's then president, Barry J. Cadden, was sentenced to a nine year prison sentence on Monday for his role in the outbreak.
The filing in the Saint Thomas action seeks the approval of U.S. District Judge Rya W. Zobel for payments totaling just under $100,000.
A payment of $60,000 is being requested for a Louisiana firm, Perry Dampf Dispute Solutions, which was hired as the administrator of the claims. The second request is for $39,375 to Epiq Systems, Inc., the firm hired to process and issue the individual checks. Epiq played a similar role in the national settlement.
Contact: wfrochejr999@gmail.com


Cadden Seeks Prison Close to Home



By Walter F. Roche Jr.




Barry Cadden, the former drug company president recently sentenced to a nine year prison term, is asking the judge who sentenced him to recommend he serve his sentence close to his Wrentham, Mass. home.
In a motion filed this week, Cadden's lawyers asked U.S. District Judge Richard G. Stearns  to recommend he be sent to the federal prison at Fort Devens, Mass., located in central Massachusetts.
Federal prosecutors, Cadden's lawyers acknowledged, oppose the request.
The Fort Devens facility is about 50 miles from Cadden's Wrentham home.
Cadden was given the nine year sentence on Monday following a lengthy hearing. He was convicted in late March on racketeering, conspiracy and mail fraud charges.
Cadden has been ordered to begin serving his sentence on Aug. 7. Under Stearns existing order it will be up to the federal Bureau of Prisons to determine where he will serve his sentence.
Stearns is also considering a motion by the U.S. Attorney to order Cadden to forfeit some $132.8 million.
During the Monday hearing Assistant U.S. Attorney Amanda Strachan stated that if the forfeiture order is granted, an effort would be made to distribute that money to the victims of the outbreak caused by contaminated drugs produced by Cadden's company, the New England Compounding Center.
Cadden's lawyers, however, have challenged the request charging that the forfeiture must be limited to the amount of money Cadden himself received as a result of the criminal acts he was convicted of.
"The government has not met its burden of proving the amount of proceeds Mr. Cadden obtained for the racketeering acts for which he was convicted," Cadden's filing states.
The $132.8 million figure claimed by prosecutors is the total amount NECC collected in revenue from 2006 to 2012.
Cadden, however, contends the forfeiture order should be limited to a little over $32,000, an amount based on the drugs specifically cited in the indictment.
The charges against Cadden stem from a two year federal probe of the 2012 fungal meningitis outbreak caused by contaminated drugs shipped by Cadden's company to health facilities across the country.
While Cadden was convicted on 57 counts, the jury acquitted him on 25 counts of second degree murder.
Contact: wfrochejr999@gmail.com

Monday, June 26, 2017

Cadden Gets Nine Year Sentence

By Walter F. Roche Jr.

Boston, Mass. A 50-year-old pharmacist who once headed a thriving Framingham drug compounding firm was sentenced today to a nine year prison sentence following his conviction on racketeering and mail fraud charges.
The sentence was imposed today by U.S. District Judge Richard G. Stearns following a lengthy hearing in which victims of a deadly outbreak  caused by Cadden's company pleaded for the maximum possible sentence.
Stearns, however, rejected the call for a 35 year sentence from federal prosecutors and the plea for a three year sentence made by Cadden's lawyer.
Stearns said he would have imposed a more severe sentence had he been convinced that Cadden knew that the drugs being shipped by the New England Compounding Center were potentially lethal.
Stearns  also was critical of regulators who failed to act against Cadden's company sooner. Only the U.S. Centers for Disease Control and Prevention recognized the magnitude of the outbreak, he said
Cadden, a Wrentham resident, was one of 14 people indicted on Dec. 16, 2014 following a two year federal investigation of the 2012 fungal meningitis outbreak which sickened some 758 patients in 23 states killing 76 of them. Tennessee, Michigan, Virginia and Indiana were the hardest hit.
Cadden was found guilty on March 22 of this year following a 10-week marathon trial. He was convicted on 57 counts of racketeering, conspiracy and mail fraud, but cleared of 25 counts of second degree murder.
Cadden was president, part owner and chief pharmacist for the New England Compounding Center, the company blamed for a deadly 2012 fungal meningitis outbreak.
Prior to imposing the sentence, Stearns heard from more than 20 victims of the 2012 outbreak, including Patricia Martin of Nashville, Tenn., whose mother Mary Neal Martin died in the outbreak.
Describing her mother's death as "horrible," Martin said her mother was an active person cutting her own lawn and washing her own car until late September of 2012 when she was injected with a steroid from Cadden's company.
Stating that her mother put her trust in the medical establishment, Martin said, "Don't let my mother's death be in vain."
In a tearful presentation just before sentencing, Cadden, said it broke his heart to read and hear the statements of victims who suffered because of drugs shipped by his company.
With his voice breaking with emotion, Cadden said he was especially sorry for the toll the tragedy brought on his wife and sons.
In their sentencing memorandum in which they called for a 35-year prison sentence, prosecutors charged that Cadden displayed an "unconscionable disregard for the lives of the patients using his drugs."
And they cited a series of so-called aggravating circumstances that justified a harsher than normal sentence. Those included the fact that there were multiple vulnerable victims, that Cadden was an authority figure and his actions and inactions created a "substantial risk of death or bodily injury."
Cadden's legal team acknowledged that their client was not guiltless but insisted that he had no reason to believe the drugs being shipped by his company were not sterile. They asked Stearns to impose a sentence of three years or less.
Cadden's lawyers also cited what they described as comparable cases of other drug compounders who were charged criminally but never served any jail time. A Tennessee druggist, David Newbaker, was given a probationary sentence after being cited for many of the same violations as NECC.
In a Texas case, the druggist was charged with a misdemeanor, Cadden's lawyer Bruce Singal noted in a 60-page sentencing memo.
Singal wrote that none of the crimes his client was convicted of "comes anywhere close to warranting a life sentence."
Two other of Cadden's co-defendants, Douglas and Lisa Conigliaro, pleaded guilty to vastly reduced charges. Two others were acquitted of all charges. Glenn Chin, 48, of Canton is scheduled to go on trial in September and he, like Cadden has been charged with second degree murder.
Robert Ronzio, NECC's director of sales already has pleaded guilty to a conspiracy charge and awaits sentencing. He testified extensively during Cadden's trial delivering key testimony for prosecutors.
Following the sentencing victims expressed varying reactions. Martin said she was satisfied with the decision and appreciated the judge's explanation.
Other victims, however, said they were upset that their testimony appeared to have no impact.







Friday, June 23, 2017

Cadden Seeks Three Year Sentence



By Walter F. Roche Jr.


Federal prosecutors are asking a judge to issue a 35 year prison sentence to the former head of a drug compounding firm, while the defendant is asking for only a three year sentence following his conviction on racketeering and mail fraud charges.
The widely divergent recommendations for Barry J. Cadden were filed this week in advance of a scheduled Monday sentencing session before U.S. District Judge Richard G. Stearns.
Stearns, meanwhile,  denied Cadden's motion for acquittal In a 20-page order issued Thursday, Stearns concluded that prosecutors presented ample evidence for the 12 member jury to reach its conclusion, convicting him on 57 counts. They acquitted the 50-year-old on 25 counts of second degree murder.
Cadden was the president and part owner of the New England Compounding Center, the company blamed for the 2012 fungal meningitis outbreak. The company shipped out thousands of vials of a steroid that were loaded with a deadly fungus. As prosecutors noted, at least 76 patients died while over 700 were sickened in  the worst ever outbreak to be caused by a pharmaceutical product.
Prosecutors, in their 50-page sentencing memorandum, said Cadden was responsible for "an unprecedented public health crisis" and displayed "an unconscionable disregard for the lives of the patients using his drugs."
Stating that Cadden deserves a "severe punishment for his crimes," prosecutors repeatedly cited evidence from his 10-week trial showing Cadden knew that NECC was not properly testing the products it was shipping all over the country.
In seeking a lengthy prison sentence, they charged  there were multiple vulnerable victims and Cadden's crimes "involved a substantial risk of death or bodily injury." They also cited his role as the leader of what jurors concluded was a criminal enterprise
Cadden's attorneys, however, argued that their client had "every reason to believe" that the products NECC produced were sterile.
They acknowledged, however, that Cadden was not blameless.
"He did things and particularly failed to do things that in hindsight he truly regrets," Cadden's lawyers wrote in a 60-page sentencing memorandum.
His lawyers stressed that the jury cleared him of the second degree murder charges.
"As the jury found, Mr. Cadden is not a murderer," the memo states.
In a lengthy history of NECC, Cadden's lawyers disclosed that he collected $8.2 million in profits from NECC during the six years preceding the 2012 shutdown of the Framingham, Mass. facility.
In addition he collected $53 million from a sister company called Ameridose. It too was shuttered in the aftermath of the outbreak.
According to the memorandum it was a brother-in-law of Cadden's, Douglas Conigliaro, who came up with the idea of starting a drug compounding business. Prior to that Cadden had been following in his father's footsteps, working in a local pharmacy.
Prosecutors noted that despite the acquittal on the second degree murder charges, the voting tally sheets showed that a majority of the panel voted to convict Cadden on 21 of the 25 second degree murder counts.
Citing the statements of investigators from the U.S. Centers for Disease Control and Prevention and the U.S. Food and Drug Administration, prosecutors wrote that Cadden had been warned years earlier that NECC was not following proper procedures.

Thursday, June 22, 2017

Judge Denies Cadden Acquittal Motion


By Walter F. Roche Jr.

A federal judge today rejected an acquittal motion filed by a former drug company president convicted by a jury in March on 57 counts of racketeering, conspiracy and mail fraud.
In a 20-page decision issued in Boston, Mass. U.S. District Judge Richard G. Stearns also rejected Barry J. Cadden's request for a new trial.
While upholding the jury verdict, Stearns did fault federal prosecutors for being "less than forthright" about a binder of government exhibits that was in fact delivered to the jury room.
Rejected by Stearns, however, were claims of prosecutorial misconduct and insufficient evidence to back the 57 counts on which Cadden was convicted.
Stearns had high praise for the jurors who sat through 10 weeks of testimony before delivering their verdict on March 22. Stearns called the jury "one of the hardest working and most conscientious juries I have had the privilege to work with.
As he noted the jury acquitted Cadden on 25 counts of second degree murder.
Cadden, one of 14 indicted in late 2014 by a federal grand jury, is scheduled to appear before Stearns on Monday for sentencing.
The charges stem from a deadly 2012 fungal meningitis outbreak caused by drugs shipped from the company Cadden headed, the New England Compounding Center. NECC has been blamed for the outbreak triggered by fungus laden steroids shipped to health facilities in 20 states. Some 778 patients were sickened and 77 of them died.
In his decision Stearns rejected claims by Cadden that he did not know of insanitary conditions in the clean rooms where the deadly steroids were prepared.
"Cadden was a licensed pharmacist with years of practitioner's experience," Stearn wrote, concluding that there was "considerable evidence" Cadden knew of serious problems.
He also concluded there was ample evidence of a conspiracy between Cadden and others at NECC.
"The record is replete with evidence among the alleged conspirators discussing the improper use of labels, the shipping of untested drugs and drugs with expired ingredients as well as unremediated insanitary conditions," the ruling states.
Stearns did fault prosecutors for  presenting testimony from a clinic employee that gave the impression that Cadden knew of problems with the steroids five days before a recall was initiated.
He said the government's persistence in defending that testimony was "perplexing at best and at worse inconsistent with the obligation of the government to serve the higher interests of justice."
But, Stearns continued, the jury ultimately rejected the second degree murder charges.
"As no prejudice resulted, there is nothing for the court to rectify," he wrote.
The ruling also faults Assistant U.S. Attorney George Varghese for failing to disclose that a binder containing government exhibits had been sent to the jury during its deliberations.
Stearns acknowledged that he mistakenly assured Cadden's lawyer, Bruce Singal, that the binder was not in the jury room.
"There is plenty of fault to share for the mistake," Stearns wrote, citing "the government for not being more forthright."
Nonetheless he concluded that the mistake "was not so prejudicial as to merit the harsh result of overturning even a portion of the verdict."
In fact, he wrote, that had the government offered the binder as a formal exhibit he would have admitted it.

Judge Won't Disclose Jurors' Addresses


By Walter F. Roche Jr.

A media motion to mandate the disclosure of jurors' home addresses in the case of a former drug company executives has been denied.
U.S. District Judge Richard G. Stearns today denied a motion by a Boston radio station to release the home addresses of the jurors who witnessed the 10-week trial of Barry J. Cadden earlier this year.
Radio station WBUR had sought the addresses in a motion filed earlier this week. Stearns already had agreed to release the jurors' names and home towns.
In the brief opinion Stearns said the public radio station's notion that it had a right to home addresses was "misplaced."
"In the turbulent times in which we now live, I would no more consider the public disclosure of a juror's home address than I would my own," Stearns wrote.
Under his previous order Stearns said he would release the jurors' names and hometowns after Cadden's sentencing, which is set for Monday.
Cadden, who was president and part owner of the New England Compounding Center, was convicted on charges of racketeering, conspiracy and mail fraud. He was acquitted on charges of second degree murder.
The now defunct NECC was blamed for a nationwide fungal meningitis outbreak that sickened some 778 patients including 77 who died.
Contact: wfrochejr999@gmail.com


Tuesday, June 20, 2017

Cadden Disputes Losses From Tainted Drugs


By Walter F. Roche Jr.

Convicted former drug executive Barry J. Cadden says his upcoming sentence should be based on losses of only $189,848 not the "wildly inflated" $132.8 million claimed by federal prosecutors.
In a 25-page filing coming less than a week before his scheduled sentencing, Cadden's lawyers argued that he should be held liable for only those drugs which prosecutors clearly proved were deficient.
The dollar value of losses could prove critical when U.S. District Judge Richard G. Stearns determines Cadden's sentence following his conviction in late March on 57 felony counts including racketeering and mail fraud. The hearing is set for Monday in Stearn's Boston, Mass. courtroom.
"The actual loss is confined to a narrow time period and several narrow categories of drugs, not the government's sweeping allegation," the Cadden brief states.
Federal prosecutors have argued that the sentence should be based on the assumption that every cent of income collected by Cadden's New England Compounding Center between 2006 and 2012 was a loss for its customers.
Cadden was indicted following a two year probe of a deadly fungal meningitis outbreak caused by fungus laden steroids shipped by NECC to health facilities in more than 20 states. Following a 10-week trial earlier this year Cadden was acquitted on 25 counts of second degree murder but found guilty on the racketeering and mail fraud charges.
In their filing Cadden's lawyers argued that the so-called losses should be limited to two shipments of methylprednisolone acetate shipped in 2012. They said the government failed to prove that a third lot shipped in May of 2012 was deficient.
Contending that the vast majority of drugs shipped by NECC "were of proper quality, untainted by any contamination or any other defect," the brief charges that the government's loss claims were "vastly overstated."
And, the brief adds, the losses should be limited to three years and not the seven claimed by prosecutors.
In addition, the memo argues, loss calculations should not include drugs shipped with false patient names since there was no evidence those drugs were deficient or caused any harm. Nor should it include drugs compounded by a codefendant, Scott Connolly.
Connolly had surrendered his registration as a drug technician, but Cadden's lawyers argued, there was no evidence drugs he processed were deficient.
"Connelly was a peripheral part of the NECC team," the brief states.
Cadden's lawyers also argued that  their client was not involved in the day-to-day operations of the clean rooms where critical sterile drugs were compounded. Instead, they said, that task was performed by another co-defendant, Glenn Chin. Chin is scheduled for trial in September while Connolly and other defendants will go on trial following the Chin case.
As for a cancer treatment drug called methotrexate, Cadden's lawyers said that there was no evidence the drug caused any harm to pediatric patients despite the fact that it was made with outdated ingredients.
"NECC produce hundreds of thousands of vials of drugs from 2006 to 2012 that safely and successfully treated patients," the brief concludes.
Contact: wfrochejr999@gmail.com.

Monday, June 19, 2017

NECC Defendants Retain Vast Real Estate


By Walter F. Roche Jr.

In early April of this year one of the defendants in the criminal case stemming from a deadly fungal meningitis outbreak and his wife sold an interest in a Cape Cod property for $791,250. It did not leave them homeless.
The home at 65 Bone Hill Road in Barnstable, Mass. was just one of three properties owned by Gregory Conigliaro, part owner of the now defunct New England Compounding Center. Cynthia  Conigliaro, Gregory's spouse, still owns another Cape Cod property assessed at just shy of $2 million.
The couple also own a home in Southboro Mass. assessed at nearly $4 million.
The Conigliaros and other NECC owners, records show, have been able to retain millions of dollars worth of real estate even after agreeing to provide some $47 million to settle the NECC bankruptcy case. Though liens had been recorded against many of the properties, they were later lifted following the bankruptcy settlement.
In addition to the $47 million NECC's former owners have agreed to provide victims with a portion of any tax refunds they receive. An exact amount has not yet been determined.
The criminal cases against NECC's former owners stem from the federal probe of the 2012 fungal meningitis outbreak which sickened some 778 patients across the country. Seventy seven of them died.
Gregory Conigliaro is scheduled to go on trial later this year on a charge of conspiracy to defraud the federal government.
His brother, Douglas Conigliaro,  who has already entered a guilty plea to vastly reduced charges, has retained his properties in Boston and Dedham, Mass. and Florida.
A condo at 128 Beacon St. in Boston is assessed at just under $5.8 million. A home in suburban Dedham is assessed for $1.8 million. They also own a lakefront property in Winter Park, Fla. assessed at $1 million.
Douglas Conigliaro was given two years probation and fined $55,000 while his wife Carla was fined $4,500 and given one year probation. Carla, NECC's majority owner, and Douglas pleaded guilty to making multiple withdrawals from back accounts under $10,000 to avoid reporting requirements set by federal law.
Barry J. Cadden, NECC's president and one time part owner, is the owner of properties on Manchester Drive in Wrentham, Mass, assessed at nearly $1.8 million.
Cadden was convicted in March on 57 counts with charges including racketeering, conspiracy and mail fraud. He was acquitted on 25 counts of second degree murder. Cadden is scheduled for sentencing on Monday.

Saturday, June 17, 2017

Cadden Jurors' Names to be Released


By Walter F. Roche Jr.

The names of the jurors who decided the fate of Barry J. Cadden during a 10-week trial ending March 22 will be made public following his June 26 sentencing.
U.S. District Judge Richard G. Stearns decided Friday to release the names. His decision comes after a Boston, Mass. radio station filed a motion to force release of the names, which normally are made public shortly after a trial is completed.
Stearns had offered no reason for withholding the names, but in his Friday order he contended the usual routine in his court was to only release the names of jurors when a case was completed.
In his order Stearns said that in consideration of the "extended periods of time" between trials and "in view of the public's long term interest in maintaining an open judicial process," he would release the names following Cadden's sentencing.
Cadden, the former head of the New England Compounding Center was convicted on 57 felony counts on charges stemming from the investigation of a deadly fungal meningitis outbreak caused by contaminated drugs shipped from the company headquarters in Framingham, Mass.
Stearns issued his decision in a two-page order issued Friday. The motion seeking to intervene and move to order the release of the jurors' names was filed by WBUR.
Reporters have been anxious to question jurors because of a document called the jurors' voters slip made public just after the jury was dismissed. The document indicated that a majority of jurors had voted to convict Cadden on some but not all of the second degree murder charges.
Under the judge's standard instructions, the jurors were told a unanimous vote was required on each The tally sheet showed eight jurors voted for a guilty finding on second degree murder in cases from Michigan and Tennessee, while four voted not guilty.
In the Indiana cases the vote was 9-3 in favor of a guilty finding. The vote for a guilty finding was 7-5 on the Maryland cases.
In the Virginia cases the vote was 3 for guilty and 9 not guilty. In the Florida and North Carolina cases the vote was 12-0 for a not guilty verdict.
As explained in the 50-page jury instructions the jury had to consider the specific state laws in deciding their votes on the second degree murder charges. Virginia, Florida and North Carolina statutes had stricter standards for reaching a guilty finding.
Prosecutor have cited the tall sheets as evidence the jury carefully considered all of the charges and that the majority found that a second degree murder charges was proven in four of seven states.
Contact: wfrochejr999@gmail.com

Thursday, June 15, 2017

VA Facility Hid Sterile Compounding Violations


By Walter F. Roche Jr.

A pharmacy manager at a Veterans Administration hospital in Louisiana failed to tell his superiors and colleagues that state inspectors had found multiple violations in the compounding of sterile drugs and that he had surrendered a state license to avoid possible administrative action.
A report issued today by the VA's Inspector General also found that there were continuing serious violations of sterility standards at the Overton Brooks VA Medical Center in Shreveport.
As a result of the findings,sterile drug compounding for patients at the 103 bed facility have been outsourced to other VA and private pharmacies.
The IG found a lack of proper cleaning with cleaning logs for some days left blank. They also found "very limited" sampling of surfaces in sterile compounding areas, no viable air sampling and lack of compliance with the national standards set by a national agency, the U.S. Pharmacopeia.
Still other deficiencies include a lack of training of personnel and deficient documentation of competencies.
The IG did state that a review of patient records turned up no evidence that they were harmed by the deficient practices.
The report noted that many of the same deficiencies had been cited by the Louisiana Pharmacy Board in late 2016.  The report, however, did not make its way to the pharmacy manager's superiors.
"Despite the critical nature of the board's findings, pharmacy managers did not report the October and January inspection reports showing deficiencies to either facility or VA leaders," the report states.
Other critical findings from the IG included a critical air filter that hadn't been changed since 2012,  a technician not following sterile protocol and rust and/or debris observed on benches and equipment in sterile areas.
Contact: wfrochejr999@gmail.com




Prosecutors Push for Long Cadden Sentence


By Walter F. Roche Jr.

Federal prosecutors argued today that every cent paid to a drug compounding firm over a six year period should be considered as fraudulent conduct in the upcoming sentencing of the company's former president.
In an eight-page filing and oral arguments, the prosecutors said Barry J. Cadden's upcoming sentencing should be based on the loss of $132.8 million, the gross revenue of the New England Compounding Center from 2006 to 2012.
Cadden, the president and part owner of NECC  was convicted in late March on 57 counts of racketeering, conspiracy and mail fraud. His sentencing is scheduled for June 26. He was acquitted on 25 counts of second degree murder.
Today Cadden's attorneys argued that their client should either be acquitted of those charges or given a new trial due, at least in part, to the conduct and tactics of prosecutors in the 10-week trial.
They argued that prosecutors from the U.S. Attorneys office improperly presented evidence to jurors during closing arguments.
U.S. District Judge Richard G. Stearns took the motions under advisement following the 11 a.m. hearing.
Cadden was one of 14 people indicted by a federal grand jury following a two year probe of a deadly fungal meningitis outbreak caused by fungus laden drugs shipped by NECC to health providers across the country.
In their filing Assistant U.S. Attorneys Amanda Strachan and George Varghese also indicated that their sentencing recommendation will include a so-called upward departure in the length of prison time based on aggravating circumstances.
Those circumstances include the fact that there were 10 or more victims and that Cadden acted with the conscious or reckless risk of death or serious bodily injury."
They also cited the fact that there were "a large number of vulnerable victims" and that Cadden was an organizer or leader of a criminal enterprise and that he "abused a position of trust."
To bolster the argument that all NECC's sales should be considered fraudulent, they cited assurances Cadden made to customers about the quality of NECC's products.
Had customers known the truth, the filing states, they never would have purchased any NECC products.
"Where the product is worthless, the loss should be calculated using the entire price paid," the memorandum states, adding that Cadden sold "grossly substandard drugs."
Contact: wfrochejr999@gmail.com

Tuesday, June 13, 2017

Payments Flowing for Tennessee Outbreak Victims


By Walter F. Roche Jr.

Although the details remain secret, payments are beginning to flow for outbreak victims who were injected with contaminated steroids at a Nashville, Tenn. clinic.
The payments are coming from a fund estimated at more than $20 million assembled to settle a little over 100 separate lawsuits. The payments are going to victims and their survivors who were treated in 2012 at the Saint Thomas Outpatient Neurosurgical Center.
The clinic was one of dozens where patients contracted fungal meningitis and other illnesses after being injected with methylprednisolone acetate laden with fungus. Thousand of tainted vials of the steroid were shipped to health providers by the now defunct New England Compounding Center in Framingham, Mass.
Though attorneys involved in the settlement declined to comment, several sources confirmed that payments from the fund are now being processed and some checks have been issued.
The fact that a settlement had been reached became public during a session in U.S. District Court in Boston, Mass. earlier this year. Hundreds of suits stemming from the outbreak were consolidated before U.S. District Judge Rya Zobel.
Tennessee victims can expect to get two payments from the settlement fund. The first payment is supposed to equal about 90 percent of what each qualified victim will ultimately collect. A second payment is expected later this year.
The initial checks are generally being sent to lawyers representing victims rather than directly to victims themselves.
The Tennessee victims, like those treated at other clinics, are also getting settlement payments from another trust fund established under the NECC bankruptcy. A court appointed trustee recently reported to Zobel that some 1,852 checks had been issued to victims. (That figure, however, included some payments from clinic settlements other than the Nashville one.)
Payments from both the NECC national fund and the Tennessee settlement fund are based on a point system designed to reflect the severity of the illness suffered.
Tennessee was one of the hardest hit states in the 2012 outbreak. In addition to the Nashville clinic, victims were injected at health facilities in Crossville and Oak Ridge. Suits against those two facilities have not been settled but a mediation session is scheduled for later this month.
Data collected by the U.S. Centers for Disease Control and Prevention show 153 Tennessee patients were sickened in the outbreak and 16 died.
Contact: wfrochejr999@gmail.com





Monday, June 12, 2017

Prosecutors Seek $132.8 Million From Cadden


By Walter F. Roche Jr.

Federal prosecutors are asking a judge to issue a $132.8 million forfeiture order against the former head of a drug compounding firm convicted in late March on 57 felony counts including racketeering and mail fraud.
In a motion filed today in U.S. District Court in Boston, Mass. the U.S. Attorney asked U.S. District Judge Richard G. Stearns to issue an order enabling prosecutors to seize Cadden's multimillion dollar home in Wrentham, Mass.,  another property in Kingston, R.I., a sailboat and a BMW.
Citing the March 22 jury verdict, the 13-page filing by Assistant U.S. Attorneys Amanda Strachan and George Varghese contends that the law requires forfeiture in cases of conviction on racketeering charges.
"The government is entitled to the gross proceeds of the (criminal) enterprise," the motion states.
The filing cites the trial testimony of a forensic expert who estimated that Cadden and his New England Compounding Center, generated $132.8 million in profits through illicit activities.
The forfeiture order request is the latest development in the aftermath of a 2012 fungal meningitis outbreak that sickened 778 patients across the country. Seventy-seven of them died.
Cadden, whose 51 day trial began in January, was one of 14 indicted in late 2014 following a two year federal probe of the deadly outbreak.
In the forfeiture filing, prosecutors acknowledged that while the precise current location of the funds is not known, the order would enable them to get exact details. They noted that Cadden had declined a request to provide the government with needed information.
In yet another development today, lawyers for WBUR, a Boston radio station, filed a motion to intervene in Cadden's case to get Stearns to release a copy of the jurors' list for Cadden's trial.
The motion charges that Stearns has refused to release the list despite at least two formal media requests.
"Without explanation the court has declined to release the juror list," the filing states.
Citing other cases, the radio station contends that the juror's lists must be made public after a verdict is entered.
The filing noted that Stearns has still refused to release the list even though the verdict was delivered over three months ago.
According to the filing, the only way a jurors' list can be kept secret is when a judge makes  "particularized findings reasonably justifying non-disclosure."
Contact: wfrochejr999@gmail.com

Sunday, June 11, 2017

Judge Denies Delay in Cadden Sentencing


By Walter F. Roche Jr.

A federal judge has denied a request by a former drug company executive to delay for two weeks his sentencing on racketeering and mail fraud charges.
In a brief order issued late last week U.S. District Judge Richard G. Stearns sitting in Boston, Mass. denied the delay motion filed in behalf of Barry J. Cadden, the former president and part owner of the now defunct New England Compounding Center.
Under Stearns ruling the sentencing on 57 counts of racketeering, conspiracy and mail fraud will take place on June 26 at 2 p.m.
Cadden had sought a two week delay citing the need for additional time to respond to a pre-sentencing report.
Citing the lengthy 47-page presentence report, Cadden wrote, "the stakes are high in this case as the case is complex, adding that "the draconian position the government will take at sentencing is unwarranted."
In denying the proposed delay to July 10, Stearns wrote that Cadden had provided "no compelling reason" for such a delay and said the parties had been provided ample time to prepare for what should be "a reasonably straightforward hearing."
"Given the full and complete record established during the trial (and during pretrial proceedings), there is no need for any further factual development of the issue," Stearns ruled.
Stearns said the only issue that might potentially have a substantial impact on the sentencing would be the  calculation of the amount of loss to customers resulting from the racketeering charges. As a result Stearns said he would allow Cadden's lawyers to present arguments on the loss issue during an already scheduled June 15 hearing on Cadden's pending motion for acquittal or a new trial.
Cadden was convicted in late March following a 10-week trial. While he was convicted of racketeering and mail fraud, the jury acquitted him on 25 counts of second degree murder.
A Wrentham, Mass. resident Cadden was one of 14 people connected to NECC indicted by a federal grand jury following the probe of a deadly fungal meningitis outbreak caused by fungus laden steroids shipped by NECC.
Some 778 patients were sickened in the outbreak and 77 of them died.
Contact: wfrochejr999@gmail.com

Wednesday, June 7, 2017

Cadden Acquittal Hearing Set for June 15





A federal judge has set June 15 for a hearing on a motion filed by a former drug compounding executive seeking acquittal on the 57 felony counts a jury convicted him on in late March.
Cadden, who headed the New England Compounding Center, has asked U.S. District Judge Richard G. Stearns to either acquit him of the charges of grant him a new trial.
Stearns also set a July 11 date for oral arguments on a motion by codefendant Gregory Conigliaro for acquittal on a related charge.
Conigliaro was a part owner of NECC as was Cadden.
The now defunct company has been blamed for a deadly fungal meningitis outbreak that sickened 778 patients. killing 77 of them.
Cadden was convicted on charges of racketeering, conspiracy and mail fraud. The jury acquitted him on 25 counts of second degree murder.
In another development, Cadden has asked that Stearns unseal a series of sidebar conferences that were held during his 10-week trial. Stearns gave prosecutors till June 26 to respond to Cadden's motion.
Contact: wfrochejr999@gmail.com

Monday, June 5, 2017

Cadden Sentencing Changed Again




The sentencing session for a former drug compounding company executive convicted on 57 felony counts has been rescheduled for a second time.
U.S. District Judge Richard G. Stearns issued an order Friday setting the sentencing of Barry J. Cadden for 2 p.m. on June 26.
Cadden was convicted in late March on racketeering, conspiracy and  mail fraud charges following a ten week trial in Stearns' Boston, Mass. courtroom.
The 12-member jury acquitted Cadden on 25 counts of second degree murder.
The Wrentham, Mass. resident was one of 14 indicted in late 2014 following the federal probe of the 2012 fungal meningitis outbreak that took the lives of 77 patients across the country.
Glenn Chin, who faces the same 25 second degree murder counts, is scheduled to go on trial on Sept. 19. The other remaining defendants are slated for trial when the Chin case is concluded.
Cadden was president and part owner of the New England Compounding Center, the company that caused the deadly outbreak.
The Cadden sentencing was originally scheduled for June 21, but it was changed to June 29.
Contact: wfrochejr999@gmail.com

Saturday, June 3, 2017

Prosecutors Oppose FDA Civil Testimony on NECC


By Walter F. Roche Jr.

Warning that there is "too much at stake," federal prosecutors are asking a federal judge to block Tennessee health clinics from questioning investigators from the U.S. Food and Drug Administration who probed the company blamed for a deadly outbreak.
In a seven-page filing this week, the U.S. Attorney in Boston, Mass. warned that the requested depositions could jeopardize ongoing criminal trials of the remaining defendants charged in the aftermath of  the 2012 fungal meningitis outbreak.
In fact, according to the filing, FDA investigators "are still investigating issues related to this case that could affect other defendants."
The filing was in response to "a request for clarification," filed by the attorneys for two Tennessee health clinics being sued for their roles in the outbreak. The clinics contend that to prepare their defense they need the testimony of the FDA and others including Barry Cadden, the part owner of the New England Compounding Center, who has already been convicted on 57 felony counts.
Cadden already has filed a motion against the clinic's move to depose him as has Robert Ronzio, a former NECC sales executive who has pleaded guilty on a related charge and delivered key prosecution testimony during Cadden's 10 week trial.
In their filing federal prosecutors asked U.S. District Senior Judge Rya Zobel to also bar the Tennessee clinics from deposing John Connolly, another key prosecution witness in the Cadden trial, and John Notorianni, who worked for Medical Sales Management, NECC's sales arm.
As the government filing notes, Cadden has asked for acquittal or a new trial and faces sentencing on June 26.
Codefendant Glenn Chin is scheduled to go on trial on Sept. 19 and the remaining defendants will be tried when the Chin case is completed.
The government filing also notes that a mediation session is scheduled in the cases against the Tennessee clinics in Oak Ridge and Crossville that could resolve the matter.
"The government again asserts that these depositions should not proceed until resolution of all of the trials in the criminal case," the filing states, adding that at least eight more defendants are awaiting trial.
The 2012 outbreak was caused by fungus laden steroids shipped by NECC to health providers in some 20 states.
Contact: wfrochejr999@gmail.com


Friday, June 2, 2017

3rd Distribution Possible for Outbreak Victims


By Walter F. Roche Jr.

Although most victims of a deadly 2012 fungal meningitis outbreak are still awaiting a first check, a court filing this week indicates  a third check may be forthcoming eventually.
In an 11-page report filed this week in U.S. District Court in Boston, Mass., lawyers for victims said a third payment could result if the former owners of a defunct drug compounding firm succeed in getting tax refunds.
The refunds would go to the former owners of the New England Compounding Center, the Framingham, Mass. company blamed for the outbreak. NECC shipped fungus laden steroids to health providers across the country.  The outbreak sickened 778 patients. Seventy-seven of them have died.
NECC's owners have agreed as part of a bankruptcy settlement to transfer any tax refunds to a trust fund set up to benefit victims and their survivors.
"There remains a possibility under the bankruptcy plan that the principles of NECC will receive tax refunds related to their payment into the NECC bankruptcy plan," the report from attorney Kristen Johnson states, adding that those refunds would then be passed along to victims in a third distribution.
Johnson also reported that victims should be receiving a second check sometime this summer.
Johnson, who serves on a committee representing plaintiffs in the ongoing litigation, also reported that a request for some $6 million in attorney fees will be submitted for court approval. That represents the second half of some $12 million in so-called common benefit fees for attorneys who handled key aspects of the litigation. The first payment was made late last year.
She said the second payment would not be issued until more than half of the victims have received a second check.
In a separate report filed this week, the trustee of the victims' fund reported that thus far more than 2,000 checks have been issued to victims totaling $81.9 million
The filings come in a once massive case before U.S. District Senior Judge Rya Zobel. Claims by victims from across the country were merged in her court.
According to Johnson's report, however, dozens of those suits have been resolved, while others have been sent back to state courts. Most of the suits were filed against the clinics or other health care providers who injected patients with fungus laden steroids from NECC.
According to her report, claims by victims against clinics in Michigan and Virginia have been settled or dismissed.
Claims against one New Jersey clinic have been sent back to state courts for resolution, while claims against a second New Jersey clinic have been settled.
Zobel may still have to preside over cases against clinics in Maryland and Tennessee. However, suits against a Nashville Tenn. facility have been settled.
Johnson reported that within 30 days attorneys in the Nashville cases will be submitting a request for fees that will also come out of the settlement. The amount of that settlement has not been made public.
"The Plaintiffs Steering Committee hopes this will not be a contested motion," the report states.
Contact: wfrochejr999@gmail.com





Thursday, June 1, 2017

Cadden Moves to Bar Deposition in TN Cases


By Walter F. Roche Jr.

A former drug company executive facing sentencing on racketeering and mail fraud charges is asking a federal judge to shield him from being deposed under oath in related civil cases.
In a motion filed today in U.S. District Court in Boston, Mass. Cadden's lawyers asked U.S. District Court Judge Rya Zobel to deny a motion filed by Tennessee clinics seeking to depose Cadden and others in pending civil litigation.
Citing Cadden's pending motion for a new trial in the criminal case along with expected appeals, the filing states that "although the criminal trial has concluded, the criminal charges against him are far from resolved."
As the filing by attorney Callan Stein notes, Cadden is scheduled for a sentencing hearing before U.S. District Judge Richard G. Stearns on June 29.
"Mr. Cadden has not yet been sentenced, thus, judgment has not yet even entered on the charges against him," the filing states.
The move to depose Cadden comes in a series of pending suits against Tennessee clinics where some victims of the outbreak were injected with contaminated NECC steroids. The clinics are also seeking to depose officials of the U.S. Food and Drug Administration and a former sales executive at Cadden's company who has entered a guilty plea to a related charge.
The Cadden filing also argues that if Cadden's motion for a new trial or acquittal is granted in whole or in part, the result could be a new trial on some of the pending counts.
The former head of the New England Compounding Center was convicted on 57 counts of racketeering, conspiracy and mail fraud in late March.
The jury cleared Cadden on 25 counts of second degree murder.
The filing states that Cadden has yet to exercise his rights to appeal to a higher court. In addition while his trial has ended "the criminal charges arising out of this case are not close to being resolved."
Cadden's lawyers asked that an existing order barring Cadden's deposition in the civil litigation remain in effect.
Cadden was one of 14 indicted following a two year investigation of the 2012 fungal meningitis outbreak.  The outbreak, state and federal regulators concluded, was caused by thousands of vials of contaminated steroids shipped by NECC to health facilities across the country.
Trials for other defendants are set to begin in September.

Wednesday, May 31, 2017

Checks Mailed for 1,852 Outbreak Victims


By Walter F. Roche Jr

Only four new claims from a fungal meningitis outbreak have been partially or fully approved over the past two months, according to a report filed today in U.S. District Court in Boston, Mass.
The report from Lynne F. Riley, the court appointed overseer of outbreak settlement funds, shows claims for 2.022 victims of the 2012 outbreak have been fully or partially approved. That's an increase of four from a prior report from Riley filed in late March.
The new report shows that $81.9 million in benefit checks have been issued, compared to $77.7 million cited in the March report.
Riley is overseeing the distribution of funds secured during the bankruptcy of the New England Compounding Center, the company that shipped fungus riddled steroids to health facilities across the country. Some 778 patients were sickened in the outbreak, while 76 died, most from fungal meningitis.
According to Riley's report, the checks issued thus far represent about half of what most victims can expect to finally receive from a national settlement fund.
The checks have generally been issued to attorneys representing the victims or their survivors and not directly to the actual victims.
Of the 1,852 checks issued, Riley said 209 were from separate funds established to settle claims against clinics where victims were injected with the contaminated methylprednisolone acetate purchased from NECC.
Riley reported that a total of 2,353 claims were filed and 289 have been "fully denied."
She said 14 claims that have been fully or partially denied could still be appealed.
Riley said the exact amount of second payments to victims from the national settlement fund will be calculated after all the first payments have been made and all appeals resolved.
"The tort trustee estimates that second payments will be issued this summer," the report concludes.
The report was filed with U.S. District Judge Rya Zobel, who has been presiding over hundreds of individual suits filed in federal courts across the country.
A formal status conference before Zobel had been scheduled for this week but was canceled at the request of attorneys representing plaintiffs in the case. The next status conference is scheduled for July 20.
Contact: wfrochejr999@gmail.com

Tuesday, May 30, 2017

Outbreak Victims' Survivors to Share $437,752


By Walter F. Roche Jr.

The two daughters of a Virginia victim of the 2012 fungal meningitis outbreak will share some $437,752 under a proposed settlement agreement filed in U.S. District Court in Boston, Mass.
According to the proposal before U.S. District Court Judge Rya W. Zobel, the settlement in the case totals some $979,345 with payments coming from the Virginia clinic where the victim was injected with fungus laden steroid and from the bankruptcy of the company that produced the tainted drugs, the New England Compounding Center.
The filing states that $836,432 will be paid by the Insight Health and other Virginia defendants, while $142,913 will be paid from a trust fund set up under the NECC bankruptcy.
From that total 40 per cent or $391,738 will go to the victim's law firm, Crandall and Katt, and $23,059 will cover costs associated with the litigation.
An additional $126,794 will go to repay the state Medicaid program and a health care provider for the victim.
The two daughters agreed to split the $437,752 remaining on a 50-50 basis. Any additional settlement payments will be split the same way, the agreement states.
Insight Health filed a motion in support of the agreement which is now subject to Zobel's approval.
Contact: wfrochejr999@gmail.com

Friday, May 26, 2017

Cadden Renews Acquittal Request


By Walter F. Roche Jr.

Citing a recent appeals court ruling and repeating charges that prosecutors engaged in widespread misconduct, Barry Cadden, the prime defendant in the probe of a deadly fungal meningitis outbreak, has renewed his motion for acquittal on all remaining charges.
In a 34-page filing today, Cadden's lawyers said a ruling in a recent circuit court of appeals mandates that he be acquitted on several charges. In addition the motion charges that prosecutors presented evidence they knew or should have known was "distorted or misleading."
Cadden was convicted in late March following a 10-week trial on racketeering, conspiracy and mail fraud charges. The 12-member jury acquitted Cadden on 25 counts of second degree murder.
In the latest filing Cadden is asking U.S. District Judge Richard G. Stearns to clear him of those 57 remaining counts.
Cadden was one of 14 persons connected to the New England Compounding Center to be charged following a two-year grand jury probe of a deadly fungal meningitis outbreak that sickened 758 patients across the country. Seventy-six of those patients died.
The brief filed today cites a ruling issued by the 1st Circuit Court of Appeals earlier this month setting a new standard in fraud cases like Cadden's.
The ruling "should sound the death knell" for Cadden's mail fraud convictions," the brief states, adding that prosecutors failed to present sufficient evidence that Cadden obtained money by means of alleged fraud.
"The record is barren of such evidence," the filing states, referring specifically to drugs shipped to a Las Vegas hospital and other health facilities.
Noting that only one witness from the Nevada hospital presented limited testimony, the brief states, "It is far too slender a reed on which to base a finding that there were any misrepresentations." 
On other counts, the brief states that the government presented no "decision-making witnesses" to show that there were any misrepresentations.
Cadden's lawyers also state that prosecutors misstated the jury's verdict for acquittal on the second degree murder counts.  Prosecutors had noted that voting sheets filled out by jurors showed that a majority supported the second degree murder charges in the majority of cases. A unanimous vote was required for a conviction.
"Cadden walked out of the courtroom having been duly acquitted on 25 of 25 injudiciously brought murder charges," the brief states. Noting that Cadden had conceded that drugs from NECC caused the 25 deaths, the brief states that the government nonetheless presented "extraneous and irrelevant and repetitive testimony about the causes and means of death."
Charging that the death testimony was intended to inflame the jury, the brief says the government chose to "go after the emotional jugular."
Contending that prosecutors engaged in an "overarching pattern of misconduct," the filing states that they "surreptitiously" provided jurors with a binder of test results including only government evidence and omitting rebuttal evidence presented during the trial.
"Jurors likely believed this binder contained all the evidence," the filing continues, adding, "the government was not truthful about the binder."
Charging that the government misled the court and Cadden about whether the binder was provided to jurors, the filing concludes, "This is textbook misconduct."
The filing also repeats charges that a slide show presented to jurors during closing arguments "grossly overstated the scope of the outbreak."
Contact: wfrochejr999@gmail.com



NECC June Hearing Canceled




A June 1 federal court hearing on the status of payments to victims of the 2012 fungal meningitis outbreak has been canceled.
U.S. District Judge Rya Zobel issued a brief order granting a motion to cancel the scheduled session due to scheduling and other issues. The next hearing will now be held on July 20 in Zobel's Boston, Mass. courtroom.
The cancellation was requested by a committee representing victims of the deadly outbreak. There was no opposition to the request.
Despite the cancellation reports are expected to be filed on the progress of payments being made to victims from a trust fund established under the bankruptcy of the New England Compounding Center, the now defunct company blamed for the outbreak.

Thursday, May 25, 2017

Attorneys Seek to Cancel Meningitis Court Session


By Walter F. Roche Jr.

The lead attorneys for victims of a deadly 2012 fungal meningitis outbreak are moving to cancel a hearing scheduled for next week on the status of suits and resolved claims in hundreds of separate suits merged before a federal judge in Boston, Mass.
In a four-page filing today, Kristen A. Johnson asked U.S. District Judge Rya Zobel to cancel the scheduled June 1 session.
Johnson stated that several pending issues won't be resolved before that date,  They include whether suits against a Maryland pain clinic will be sent to Maryland courts or remain in federal court and whether some Tennessee clinic cases will go back to their home state.
In addition she said a mediation session that could lead to a resolution of some Tennessee cases has yet to take place.
"Further scheduling conflicts have arisen that make it difficult for an attorney from Hagens Sobol and Shapiro LLC to participate in person," Johnson, a partner in that firm, wrote.
If the motion is approved the next status conference will not take place until July 20.
According to the motion despite the anticipated cancellation, reports will be filed on or before June 1 by the  Plaintiffs' Steering Committee.
She wrote that the PSC report "will address what the court needs to do now (and later) to wind down the multi-district litigation."
She added that the trustee would be reporting on the status of the first round of payments to outbreak victims and the "anticipated timing for the second round payments."
The motion states that no objections to the proposed cancellation were filed by interested parties.
Contact: wfrochejr999@gmail.com

Friday, May 19, 2017

TN Clinics Seek Cadden, Ronzio, FDA Testimony


By Walter F. Roche Jr.

Charging that the testimony is critical to their defense, Tennessee clinics being sued in the fungal meningitis outbreak are asking a judge to either clarify or amend a prior order delaying depositions of defendants and witnesses in a parallel criminal case.
In a 17-page motion filed this week, the attorney for the clinics said that there was no longer any justification for delaying the depositions of Barry Cadden, Rob Ronzio and two others, along with officials of the U.S. Food and Drug Administration.
Citing the recent completion of the criminal trial of Cadden, the motion states that the time has now come for the depositions to proceed.
"The justification for staying these depositions are largely if not completely wiped out at this juncture," the filing by Chris Tardio states.
The motion was filed in behalf of Tennessee clinics in Crossville and Oak Ridge where patients were injected with fungus laden steroids shipped by NECC to health care providers in some 20 states. The 2012 outbreak sickened 778 patients and killed 76 of them.
Noting that Cadden was convicted by a jury on March 22 and Ronzio already has entered a guilty plea, the filing argues that key testimony is needed for the clinics to assert their claim that NECC was responsible for the deadly 2012 fungal meningitis outbreak.
In addition, the motion states that depositions from FDA agents are needed to show that the government agency acted recklessly by not taking action against NECC.
Stating that the FDA's involvement with NECC "spanned 10 eventful years," the motion adds, "There is no dispute that the FDA exercised some regulatory oversight of NECC."
As for Cadden and Ronzio, the clinic's lawyer acknowledged both are likely to invoke their constitutional right against self incrimination. Nonetheless the jurors in the civil case will be able to draw their own conclusions from their refusals to answer questions, the filing states.
In addition to Ronzio and Cadden, the clinics are asking U.S. District Judge Rya Zobel to allow the depositions of a former NECC employee, Joe Connolly and a salesman for NECC's sales arm, John Notarianni.
 Connolly was a key prosecution witness in Cadden's trial, detailing how NECC's operations disregarded concerns about safety and sterility and falsified records to make it appears drugs had been properly tested when they weren't.
Though Notarianni did not testify at the Cadden trial, the motion states that the former salesman has agreed to testify "substantively" about the assurances the NECC sales force gave to customers about the company's quality assurance.
Stating that "circumstances have changed," the motion concludes that delaying the depositions is no longer justified.
Though Cadden's trial ended with a conviction on 57 counts of racketeering and conspiracy, others charged in the two year outbreak investigation have yet to go on trial. Codefendant Glenn Chin's trial is scheduled for Sept. Others are scheduled for next year
,Contact: wfrochejr999@gmail.com

Tuesday, May 16, 2017

Denial of Cadden's New Trial Motion Urged


By Walter F. Roche Jr.

Stating that a federal jury "properly considered overwhelming evidence of his guilt," federal prosecutors today asked a judge to deny Barry Cadden's motion for a new trial on racketeering and mail fraud charges.
In a 48-page motion filed in U.S. District Court in Boston, Mass. federal prosecutors charged that all the arguments for a new trial already had been considered and denied either by presiding judge or the jury.
Cadden was convicted on March 22 following a 10-week trial on charges that Cadden's New England Compounding Center operated as a criminal enterprise.
He was cleared of 25 counts of second degree murder, although a majority of the jurors voted for a guilty verdict in all but four of the murder counts. A unanimous verdict was required for a conviction.
Cadden was one of 14 persons associated with NECC to be charged following a two year investigation of a deadly fungal meningitis outbreak that sickened 778 patients and killed 76 of them.
Cadden, in his motion for a new trial or acquittal, had argued that the inclusion of the murder counts prejudiced the jury.
"A majority of the jurors found Cadden guilty of 21 of 25 murders" including eight in Michigan and seven in Tennessee. The jury's verdict confirmed that racketeering acts were properly included," the filing states.
Denying Cadden's claim of "prejudicial spillover," prosecutors Amanda Strachan and George Varghese said that evidence of murders was "largely limited and tactfully presented" with no attempt to evoke emotional appeal.
"The jury properly considered overwhelming evidence of the defendant's guilt as to each of the 57 counts," the filing continues.
The prosecutors defended the inclusion of details of Cadden's actions and inactions in the days leading up to the first public announcement of the deadly outbreak in 2012.
Repeating the details of the timeline they noted that there was a several day delay from Sept. 20, when Cadden first learned of a problem with Tennessee patients becoming ill, and Sept. 26 when he began calling clinics telling them not to use NECC's spinal steroid.
 "Cadden didn't disclose people were getting sick. These were critical moments in an evolving national disaster," the brief states.
Accusing Cadden and his lawyers of sensationalism, the prosecutors charged that allegations of government misconduct in the handling a a binder of evidence was "untethered to any factual or legal foundation."
Stating that Cadden had "intimate knowledge and understanding of NECC's fraudulent compounding operations," they charged that Cadden knowingly and repeatedly violated the industry standards for compounding sterile drugs as set by the U.S. Pharmacopeia.
Recounting the testimony of witnesses from the U.S. Centers for Disease Control and Prevention, the filing states that Cadden had been warned a decade earlier that his testing procedures were flawed and too few samples were being tested.
They also defended the charges against Cadden stemming from the fact that an unlicensed technician was working for nearly two years in one of NECC's sterile drug compounding rooms. Emails, the filing states, showed Cadden had authorized the unlicensed individual to use his (Cadden's ) identification sign on so that there would be no records.
"There is next to nothing in the motion (for a new trial) that has not already been decided by this court and/or jury," the filing states, adding that Cadden actions led "to the largest public health crisis ever caused by a pharmaceutical drug."
Sentencing in Cadden's case is scheduled for June 29 before U.S. District Judge Richard G. Stearns.
Contact: wfrochejr999@gmail.com



Wednesday, May 10, 2017

Judge Orders Prosecutors to Produce Binder


By Walter F. Roche Jr.

A federal judge has ordered prosecutors to turn over a binder full of exhibits that has become a point of heated dispute in the aftermath of the criminal trial of a one time drug company executive.
In a two-page order dated Tuesday, U.S. District Judge Richard G. Stearns sitting in Boston, Mass. ordered federal prosecutors to turn over to him a binder full of exhibits and a PowerPoint presentation used in the recent trial of Barry J. Cadden.
Though Stearns had previously stated that he was certain the binder had not been provided to the jury during its deliberations, he said in his latest ruling that it was quite possible that the binder did find its way into the jury room.
"If there is any possibility (and now it appears that there is a real one)  that the binder was submitted to the jury, there is no reason that it should not be included in the trial record," Stearns wrote
The 12-member jury found Cadden guilty of 57 counts of racketeering and mail fraud but cleared him of 25 counts of second degree murder.
The dispute about the binder arose following the jury verdict when Cadden's lawyers filed a motion seeking either acquittal or a new trial. His lawyers also demanded that the binder be made part of the record for appeal purposes.
Stearns noted that federal prosecutors in responding to Cadden's motion on the binder disclosed that the binder was provided to the courtroom clerk "during the customary post-trial exhibit review, but that Cadden's counsel did not object to its inclusion in the jury materials."
In ordering prosecutors to turn over the binder, Stearns wrote, "there is no reason to keep secret something that was used (effectively in the court's judgment) in open court. Transparency is the best antidote for unwonted suspicion."
Cadden's lawyers have argued that the binder contained materials favorable to the prosecution case and did not include rebuttal material.
Stearns order requires prosecutors to turn over the binder by Friday. They also must file a copy of a PowerPoint presentation that was used by federal prosecutors in closing arguments.
Contact: wfrochejr999@gmail.com

IG Finds Some Flaws in VA Compounding


By Walter F. Roche Jr.

A review of drug compounding practices at Veterans Administration facilities showed that more than a quarter of those reviewed could not provide evidence that shelving and storage areas in sterile drug preparations area were cleaned at least once a month, the required standard.
In a 20-page report issued today,  the VA's Inspector General concluded that while there was generally high compliance with sterility and other standards at VA health facilities, there were about a half dozen areas needing improvement.
The report comes as national attention has been focused on the dangers of sterile drug compounding stemming from the recent criminal trial of the president and part owner of a now defunct Massachusetts drug compounding company.
A federal jury in Boston, Mass. recently convicted Barry J. Cadden on 57 counts of racketeering and mail fraud following a 10-week trial. Cadden headed the New England Compounding Center, the company blamed for the deadly 2012 fungal meningitis outbreak which took the lives of 76 patients across the country.
As VA officials pointed out in response to the audit, none of the deaths resulted from treatment at VA facilities, although several veterans were among the victims.
In the report, which covered 28 VA facilities where sterile drug compounding takes place, the IG found that in 26 percent there was no documented evidence that shelving and storage areas were cleaned at least once a month, as required under the national standard, the U.S. Pharmacopeia. At 11 percent of the facilities, the IG found that there was no documentation of daily cleaning of floors in so-called clean rooms where sterile drugs are compounded.
The report states that competency assessments for those compounding sterile drugs failed to include gloved fingertip sampling in 18 percent of some 267 employees reviewed. Written tests were not included for 20 percent of the employees and 15 percent of the assessments did not include"visual observation or hands on skills assessment of aseptic techniques."
The IG also found that at 24 facilities where high risk chemotherapy drugs were prepared, special protective gloves needed in such procedures were not available.
The IG noted that at some facilities the reporting requirements for so-called "near misses," cases in which patients could be at risk, were unclear. He recommended that guidance be provided by VA administrators to ensure that all near misses are being reported.
In its response, the VA agreed with the findings and submitted a timetable for achieving compliance.
Contact: wfrochejr999@gmail.com

Tuesday, May 9, 2017

Status Report Requested on Outbreak Grants

By Walter F. Roche Jr,

A dozen members of Congress have called on the Massachusetts Attorney General for a status report on the processing of requests for grants from a $40 million fund earmarked for victims of the 2012 fungal meningitis outbreak.
The letter to Massachusetts Attorney General Maura Healey comes seven months after U.S. Rep. Mike Bishop, a Michigan Republican, was able to secure up to $40 million from a national victims fund for victims of the deadly outbreak.
A spokeswoman for Healey recently reported that some 400 applications had been submitted by victims, but no awards have yet been made. The deadline for submitting a claim is Dec. 16.
In the letter, the congress members asked Healey to respond to the request by May 17.
 "The victims - our constituents- continue to suffer as a result of the injections they received almost five years ago," the letter states. "This suffering need not be compounded by financial distress, but for far too many, their bills continue to go unpaid."
In addition to Bishop and several other Michigan members, those signing the letter include congress 
members from Indiana, Tennessee and  Minnesota.
Stating that "time is of the essence," the letter asks that Healey treat the request as a priority.
Interviews with victims show many have been hesitant to file a request because of language in the application indicating that any awards will eventually have to be paid back.
Aides to Bishop however, have stated that it is highly unlikely any grants will have to be paid back.
The 2012 outbreak was caused by fungus laden steroids injected into the spines and joints of victims. A total of 778 patients became ill, many with debilitating fungal meningitis. Seventy-six of those victims died.
The drugs were shipped from the now defunct New England Compounding Center, located in Framingham, Mass.
Recently a federal jury convicted one of the founders of NECC on 57 felony counts including racketeering and mail fraud. Barry J. Cadden is scheduled for sentencing on June 29.
Bishop's Michigan district was one of the hardest hit with some 200 patients sickened and 15 died as a result..
"We have a duty to continue fighting for the victims of this tragedy," Bishop said in announcing the letter.

Monday, May 8, 2017

Prosecutors Charge Acquittal Motion Patently False



By Walter F. Roche Jr.


Federal prosecutors are charging that the acquittal motion filed in behalf of a former drug company executive is based on "patently false and dishonest" allegations.
In a 48-page motion filed Monday in U.S. District Court in Boston, Mass., the U.S. Attorney asked the court to deny the motion for acquittal or a new trial for Barry J. Cadden, the president of a now defunct drug compounding firm.
Noting that a 12-member jury found Cadden guilty of 57 felony counts, including racketeering and mail fraud, the motion recounts detailed trial testimony in which witnesses describe the unsanitary conditions at the New England Compounding Center, the Framingham, Mass., the firm that Cadden headed.
Cadden, whose trial ended over a month ago, was one of 14 person indicted in late 2014 following a federal probe of the 2012 fungal meningitis outbreak which sickened some 778 patients killing 76 of them. State and federal regulators determined that the outbreak was caused by fungus laden drugs shipped by NECC.
While the jury found Cadden guilty of racketeering and mail fraud, they acquitted him of 25 counts of second degree murder.
In their motion federal prosecutors noted that while the second degree charges were not affirmed by all of the jurors, a majority did vote to convict him on 21 of the 25 murder counts.
Charging that trial testimony showed NECC manufactured drugs under "filthy conditions," the motion argues that the limited testimony on the second degree murder counts did not prejudice the jury, as Cadden had argued.
Stating that there was "no prejudicial spillover," prosecutors asserted that charges of prosecutorial misconduct were "patently false and dishonest."
In a separate motion prosecutors disputed Cadden's claim that prosecutors improperly presented jurors with a binder of drug tests and other evidence. They noted that the presiding judge, U.S. District Judge Richard G. Stearns, concluded that the binder was never given to jurors during their deliberations.
Assistant U.S. Attorneys George Varghese and Amanda Strachan said the binder was only used as a "pedagogical devise," during closing arguments. They also noted that Cadden's lawyers did not raise any objections when the binder was described to jurors.
The motion against acquittal cites detailed testimony during the trial about the fact that NECC routinely shipped drugs before they had been tested for sterility even though the company repeatedly assured customers that the drugs were quarantined until tests were completed.
Citing "a staggering amount of evidence" presented to jurors, the motion states that it was reasonable for the jurors to conclude that "Cadden operated NECC as a fraudulent enterprise on a massive- deadly scale."
Cadden is scheduled for sentencing on June 29.

Tuesday, May 2, 2017

Prosecutors Win Extension for Dismissal Motion Reply

A federal judge in Boston, Mass. has granted a motion filed by federal prosecutors for an extension of the deadline for filing a response to a dismissal motion filed by defendants in the criminal case stemming from a 2012 fungal meningitis outbreak.
U.S. District Judge Richard G. Stearns approved the motion extending the filing deadline to May 12. The original deadline passed on Friday.y
The motion filed in behalf of Gregory Conigliaro seeks the dismissal of a charge of conspiring to defraud the U.S. Food and Drug Administration.
Conigliaro's motion was joined by two other defendants. Conigliaro's lawyers cited comments by Stearns himself during the recent trial of Barry J. Cadden. Stearns said during the final moments of Cadden's trial that he could not see what the FDA was deprived of.
Cadden was convicted on mail fraud and racketeering charges but cleared of second degree murder charges. Cadden faces sentencing on June 29.


Tuesday, April 25, 2017

Citing "Pure Legal Impossibility," NECC Defendants Seek Dismissal


By Walter F. Roche Jr.

Citing a comment by the presiding judge himself, three of the remaining defendants in the fungal meningitis probe, are asking for dismissal of a key conspiracy charge.
In motions filed this week in U.S. District Court in Boston, Mass., the group, headed by a part-owner of a defunct drug compounding company, is asking for dismissal of a charge that they conspired to defraud the U.S. Food and Drug Administration by evading regulation by that agency.
Gregory Conigliaro, who was a vice president of the New England Compounding Center, filed an 11-page memorandum contending that it was impossible for his firm to defraud the FDA because FDA officials didn't even believe at the time that they had clear jurisdiction over drug compounders.
Conigliaro is one of seven defendants charged with the conspiracy and a trial is expected in late Fall. In fact the conspiracy count is the only one Conigliaro has been charged with. Joining him in the motion to dismiss were defendants Alla Stepanets and Sharon Carter, former NECC employees.
Conigliaro's motion cites comments made by presiding U.S. District Judge Richard G. Stearns during the recent trial of NECC's president, Barry Cadden. Cadden was convicted on racketeering charges but cleared of 25 counts of second degree murder.
As the 10-week trial inched toward conclusion Stearns said it was hard to see just what it was that the FDA was defrauded of.
His comment followed the introduction by Cadden's lawyers of testimony by then FDA Commissioner Margaret Hamburg who told a congressional committee in 2012 that her agency did not believe it had clear legal authority to regulate compounders like NECC. She testified as the deadly fungal meningitis outbreak was still unfolding.
Conigliaro's motion also cites testimony by Janet Woodcock, then director of the Center for Drug Evaluation and Research, who expressed similar views.
The two regulators told congress that the FDA's authority over drug compounders was limited, unclear and contested.
Citing their comments, the motion states, "Thus it was impossible for the FDA to be defrauded in the manner the government has alleged."
Filed for Conigliaro by his attorney, Dan Rabinowitz, the memo adds, "Pure legal impossibility exists when actions which the defendant performs or sets in  motion, even if fully carried out, would not constitute a crime."
In addition to the lack of legal authority, the motion contends that there was no clear legal distinction at the time between drug compounders and drug manufacturers.
Prosecutors have charged that NECC, while licensed as a compounding pharmacy, was acting as a drug manufacturer and drug manufacturers were subject to direct FDA regulation.
The motion concludes by charging that the conspiracy to defraud charge "is entirely predicated on the faulty premise that the law drew a clear distinction between a compounding pharmacy and a manufacturer."
Contact: wfrochejr999@gmail.com





Monday, April 24, 2017

FDA, Mass. Board Can be Found at Fault for Outbreak


By Walter F. Roche Jr.

A federal judge has ruled that the U.S. Food and Drug Administration and a state pharmacy board can be found at fault for the 2012 fungal meningitis outbreak that took the lives of some 77 patients who had been injected with fungus contaminated drugs.
In a nine-page ruling issued today U.S. District Judge Rya Zobel concluded that lawyers for a Tennessee pain clinic had presented sufficient evidence in her Boston, Mass. courtroom for the claims that the two agencies acted recklessly to go forward.
Zobel denied a motion filed by attorneys for some 20 Tennessee victims of the outbreak to dismiss claims by the Specialty Surgery Center in Crossville, Tenn. that the government agencies could be found at fault for failure to take action against the New England Compounding Center, the maker of the deadly spinal steroids.
Citing a "special duty" provision of Tennessee's comparative fault law, Zobel concluded that the clinic's lawyers presented "sufficient assertions to state an affirmative defense of comparative fault" against the FDA and the Massachusetts Board of Pharmacy.
Under Tennessee law, Zobel's ruling could clear the way for any damages awarded against the surgery center to be reduced by the percentage of fault found by a jury against the FDA and the Massachusetts board. However, the two agencies, who are not parties to the suit, could not be forced to pay anything to victims.
Chris Tardio, one of the clinic lawyers, said the ruling means "we may present the jury with a full picture of how the meningitis outbreak occurred, including how it could have been prevented by those responsible for monitoring NECC's activities."
Noting that the ruling is only a preliminary one,  a victims' attorney expressed confidence in the ultimate outcome, adding "We are confident that once we present this to the court on a full factual record that the court will find that the governmental agencies were not reckless."
Zobel did dismiss parallel comparative fault claims against the Tennessee Health Department and the Tennessee Board of Pharmacy.
Zobel cited the claims by the surgery center lawyers that the FDA received numerous complaints that NECC was violating the FDA's guidance on drug compounding but "nevertheless failed to take any subsequent action to address the serious nature of the complaints which proximately caused the alleged injuries."
She noted that as early as 2002 the FDA was made aware of problems at NECC and four years later issued a warning letter but then failed to act.
"Defendants allege the FDA acted recklessly because it knew NECC had sterility and potency issues but failed to take any substantive action," the ruling states.
As for the Massachusetts board, Zobel cited evidence presented by the clinic's lawyers showing the the board "was aware of NECC's failure to comply with applicable state and federal law and manufacturing guidelines, failed to inform other state pharmacy boards of  of the threat to public health caused by NECC's non-public track record of regulatory noncompliance with state and federal law."
In a footnote Zobel noted the November 2012 congressional testimony of then Massachusetts Health Commissioner Lauren Smith that the state pharmacy board's failure to take decisive action against NECC in response to the 2006 complaints "has contributed to these tragic events."
Contact: wfrochejr999@gmail.com

Thursday, April 20, 2017

Final Victims' Payments Due By Summer


By Walter F. Roche Jr.

The second and final payments to victims of the 2012 fungal meningitis outbreak should come this summer and the underlying court case should be nearing final resolution by August.
That's what a federal judge was told yesterday by attorneys involved in the civil litigation stemming from the deadly 2012 fungal meningitis outbreak.
The checks due this summer will come from a fund established under the bankruptcy of the New England Compounding Center, the now defunct firm blamed for the outbreak.
U.S. District Judge Rya Zobel called the report "very encouraging" and asked Kristen Johnson, one of the lawyers for victims, to provide a written version of the verbal report.
"There's not that much left come August," Johnson said of the underlying case. "We're just about done with this MDL (litigation)."
She noted that there will be an additional fee allotment to attorneys who performed work done for the benefit of all of the victims. The second payment is expected to total about the same as the first, $6 million.
Ben Gastel, one of the attorneys for Tennessee victims of the outbreak, told Zobel checks from a settlement with the owners of a Nashville clinic, the Saint Thomas Outpatient Neurosurgical Center, should be going out next month. The exact terms of that settlement have never been made public, but it is believed to be in excess of $20 million.
Gastel said victims will be getting an initial check that is estimated at about 90 percent of what each victim will ultimately receive. He said a small reserve will be held back to cover any final expenses.
Meanwhile mediation is expected in cases brought against the Select Surgery Center in Crossville, Tenn. The same mediator used in the Nashville cases is handling those cases.
Zobel also got reports on efforts to settle or bring to trial cases against a Maryland clinic.
Zobel said she would contact a judge in Maryland who is handling the cases brought against the Box Hill Clinic in state courts to coordinate a schedule for the cases remaining in her court.
"I will not try to run him over,"Zobel said, but she made clear that she intends to keep the cases now before her in federal court.
She also agreed to rescind an order she issued April 7, setting four Box Hill cases for trial.
"I acknowledge I was wrong," she said, adding that she jumped the gun.

Tuesday, April 18, 2017

Notice to Blog Commenters

If your comments contain libelous and/or slanderous comments, they will not be published. While you are certainly entitled to your opinions, posting libelous/slanderous comments on a public blog can result in a lawsuit against me and you. And they will find out who you are.

Sunday, April 16, 2017

Seven NECC Defendants Seek November Trial


By Walter F. Roche Jr.

Seven remaining defendants in the federal criminal case stemming from the federal probe of a defunct Massachusetts drug compounding company are requesting a November date for their trial on fraud and conspiracy charges.
In a motion filed late last week, lawyers for the defendants who just had an April trial date canceled, said a November date would allow enough time for the completion of the scheduled trial of another codefendant, Glenn Chin, who has an August trial date.,
The Friday motion follows the recent completion of the trial of Barry Cadden, the former president and part owner of the New England Compounding Center, the Framingham, Mass. firm blamed for a deadly 2012 fungal meningitis outbreak.
Cadden was convicted of racketeering, conspiracy and mail fraud charges after a 10-week trial. The jury acquitted him on second degree murder charges.
Chin faces the same charges as did Cadden.
The motion filed by the seven remaining defendants opposes an open ended trial delay proposed by federal prosecutors. They proposed a delay until an appeals court rules on a prosecution motion to overturn a ruling by U.S. District Judge Richard G. Stearns dismissing several counts in the original 2014 NECC indictment.
The motion states a November date "would permit an interval period between the two cases and also provide a specific trial date that will assist with the scheduling complexities inherent in a multi-week multi-defendant trial.
The motion was filed in behalf of Gregory Conigliaro, Gene Svirsky, Christopher Leary, Joseph Evanosky, Scott Connolly, Sharon Carter and Alla Stepanets.
Contact: wfrochejr999@gmail.com

Thursday, April 13, 2017

Cadden Demands Jury Records Be Handed Over


By Walter F. Roche Jr.

The former drug company executive convicted on racketeering charges is asking a federal judge to order prosecutors to turn over copies of materials given to the jurors who found him guilty last month.
In an eight-page motion filed in U.S. District Court in Boston, Mass. lawyers for Barry J. Cadden charged that a binder full of test results on drugs produced by Cadden's company was improperly provided to the jury while it was deliberating.
The motion charges that the assistant U.S. Attorneys who prosecuted the case refused a request to provide a copy of the binder and a PowerPoint presentation that was provided to jurors just before they began their deliberations.
The motion follows Cadden's request to U.S. District Judge Richard G. Stearns to have the jury's guilty verdicts reversed or that he be granted a new trial.
Cadden was convicted on 58 counts of racketeering, conspiracy and mail fraud. The 12-member jury acquitted him on 25 counts of second degree murder.
Cadden was one of 14 people indicted following a lengthy federal probe of the 2012 fungal meningitis outbreak caused by drugs shipped from the New England Compounding Center. Cadden was president and part owner of NECC.
In the motion to compel, preserve and/or complete the trial record,"Cadden's attorneys said they were certain the binder had been given to jurors because it was among the materials returned after the jury finally adjourned.
"The government submitted a non-admitted binder to the jury," the motion states, adding that "it was only after the verdict that Cadden learned, as the government well knew, that the jury had the binder when it deliberated."
"Even now the government refuses to provide Cadden with a copy of that binder," the filing continues.
As the motion notes during the trial Stearns repeatedly assured Cadden's lawyers that the binder did not go the jurors,  even stating that he went into the jury room to make sure it wasn't there.
"The government had a duty to correct the court's misunderstanding, but instead allowed the error to continue," the motion adds.
Cadden's lawyers charged that through the use of the binder, prosecutors made a "surreptitious and successful" effort to provide jurors with a copy of a mycology report from the New York State Health Department  that was "highly prejudicial."
According to the motion the PowerPoint presentation included a compilation of test results that had never been provided to defense lawyers.
"The PowerPoint must be provided to clarify the record," the motion states, adding that the binder is also needed for Cadden to pursue his effort to have the charges overturned.
Contact: wfrochejr999@gmail.com

Tuesday, April 11, 2017

Cadden Charges Prosecutors Gave Jury Improper Evidence


By Walter F. Roche Jr.

Attorneys for a former drug company executive are charging that federal prosecutors somehow gave a secret binder to jurors that gave one-sided information and may have led to their client's conviction on racketeering, conspiracy and mail fraud charge.
The charges against the prosecution were included in a massive 64-page memorandum submitted to support a motion to either acquit Barry Cadden on all charges or grant him a new trial.
The 64-page memorandum also accuses federal prosecutors of attempting to mislead the jury by presenting evidence that they knew or should have known was false.
"The government presented misleading and factually incorrect evidence to manipulate the chronology to falsely show Cadden knew of a problem with the methylprednisolone acetate sooner than he did," the memo states.
The memo was filed to back Cadden's motion for acquittal on the 58 counts he was convicted on last month by a 12-person jury sitting in Boston, Mass.
Cadden, who is scheduled for sentencing on June 29, was convicted of racketeering, conspiracy and mail fraud following a 10-week trial. The charges stem from a federal probe of the 2012 fungal meningitis outbreak that sickened 778 patients across the country, killing 77 of them.
The memo charges that despite repeated assurances from U.S. District Judge Richard G. Stearns to the contrary, prosecutors improperly gave jurors a binder full of evidence against their client without providing evidence showing his innocence.
"There is no question the non-admitted binder was, in fact, submitted to the jury," the filing states.
They also charged that prosecutors presented jurors with a summary testing chart that had never been introduced as evidence and excluded rebuttal evidence presented in Cadden's defense.
Repeating arguments presented in the acquittal motion, Cadden's lawyers said prosecutors improperly influenced the jury by presenting "a sea of prejudicial evidence" about the deaths of 25 patients who died after being injected with steroids from the New England Compounding Center, a company headed and part owned by Cadden.
The jury acquitted Cadden on the second degree murder charges. Although a majority voted for conviction on most of those counts, a unanimous vote was needed.
Prosecutors, the memo charges, "presented evidence in the hope -ultimately futile-that it could inflame the jury to hook Cadden on at least one or more of the murder charges,"the filing continues.
"For 10 weeks the government paraded witnesses before the jury to testify about heart wrenching stories of death and suffering," .
Prosecutors, the memo continues, tried to leave jurors with the impression that Cadden delayed disclosure of the discovery that NECC drugs were laden with a deadly fungus.
Citing conflicting testimony about a phone call Cadden made to an Indiana clinic, his lawyers said the government knew from telephone records that the call couldn't have been made on the date a clinic employee testified she took the call.
It was "improper for the government to present evidence it knows is false," the memo states.
Cadden's legal team, headed by Bruce Singal, said prosecutors repeatedly tried to mislead the jury by presenting false and misleading testimony and evidence.
"Barely a day went by in this trial in which the government did not mislead the jury with distorted, incomplete or inaccurate evidence," the brief states.
The memo asserts that there was insufficient evidence to prove the racketeering and mail fraud charges despite the jurors unanimous votes.
As for the conspiracy, the memo charges that the government never proved there was an agreement between Cadden and any of the other defendants to break the law.
Contact: wfrochejr999@gmail,com

Cadden Seeks Acquittal or New Trial


By Walter F. Roche Jr.

The former head of a drug compounder blamed for a deadly fungal meningitis outbreak is asking for acquittal or a new trial on the racketeering and mail fraud charges on which he was recently convicted.
The motion charges that the government's "futile effort" to charge him with second degree murder, tainted and prejudiced the jury that convicted him.
The case was "tainted by the improper presentation of murders, death and suffering in support of charges that should not have been brought," the three-page motion states.
The 12 member Massachusetts jury convicted Cadden last month on 58 counts of racketeering, conspiracy and mail fraud, among other charges, but acquitted him on 25 counts of second degree murder.
Cadden was president and part owner of the now defunct New England Compounding Center, the Framingham, Mass. firm blamed for the 2012 fungal meningitis outbreak that sickened 778 patients in 20 states. Some 77 of those patients died.
In his motion Cadden said the tainted evidence need not even have been presented because his lawyers conceded from the outset that methylprednisolone acetate from NECC caused the deaths.
That evidence, the motion states, "would not have been admitted in a fraud case."
Charging that the prosecution's evidence was "inaccurate and misleading," the motion charges that it had "the cumulative impact of unfairly and irrevocably tainting the jury in its consideration of the non-murder charges."
The motion asks the presiding federal judge, Richard G. Stearns, to either acquit Cadden of the charges or grant a new trial on the non-murder charges.
Contact: wfrochejr999@gmail.com

Monday, April 10, 2017

Nearly 400 Apply for Outbreak Grants

By Walter F. Roche Jr.

Nearly 400 applications have been filed with a Massachusetts agency for a grant from a victims' compensation program financed with a $40 million federal allotment earmarked for victims of a deadly fungal meningitis outbreak..
A spokeswoman in the Massachusetts Attorney General's office said the applications are under review and thus far no awards have been made. The state agency is working with the U.S. Attorney's office in Boston to verify the claims.
The $40 million was set aside by the U.S. Justice Department at the request of a Michigan congressman, U.S. Rep. Mike Bishop, whose district was especially hard hit by the 2012 outbreak.
The outbreak, which sickened some 778 patients in 20 states, was caused by fungus laden compounded drugs produced by a now defunct Framingham, Mass. company. Recently Barry J. Cadden, the former president and part owner of the New England Compounding Center was cleared of second degree murders charges but was convicted on 58 counts on charges includingf racketeering and mail fraud.
The spokeswoman said the deadline for filing claims is Dec. 16 of this year. The application form is available at  http://www.mass.gov/ago/public-safety/resources-for-victims/assistance-necc-victims.html
A project manager has been hired to oversee the program and additional staff are being hired, according to the spokeswoman.
Contact: wfrochejr999@gmail.com




Friday, April 7, 2017

Four Maryland Outbreak Cases Go Forward


By Walter F. Roche Jr.

A federal judge in Massachusetts has given the go-ahead for four court cases brought by Maryland victims or survivors of deceased victims of the 2012 fungal meningitis outbreak to go forward.
In a brief order this week U.S. District Judge Rya Zobel picked the four cases - two filed by living victims and two by survivors of victims- to move forward for trial beginning in October.
The four cases were among eight selected by attorneys for the victims and for the Box Hill Surgery Center, one of a handful of Maryland clinics where victims of the deadly outbreak were injected with fungus laden methylprednisolone acetate.
The field will be further narrowed to two cases before the scheduled Oct. 30 trial date. The cases have been designated as so-called bellwethers, hopefully leading to templates for the settlement of other Maryland cases.
The two cases in which the victims died were filed by the survivors of John C. Millhausen and Brenda Rozek. Some details of Rozek's death became public during the recent criminal trial of Barry J. Cadden, the one time president of the defunct New England Compounding Center, the company blamed for the deadly outbreak.
Cadden was charged with second degree murder in Rozek's death, but the jury acquitted him of that and 24 other second degree murder charges. He was convicted on racketeering, conspiracy and mail fraud charges.
The owner of the surgery center, Ritu Bhambhani, was one of the prosecution witnesses at Cadden's recent trial.
The two other Maryland suits were filed by Belinda Dreisch and Teresa Davis. Both were injected twice, once in July and once in August of 2012, at the Box Hill Surgery Center in Abingdon, Md. They subsequently were sickened and hospitalized.
According to Zobel's order, one of the cases involving living victims will go to trial on the Oct. 30 date, to be followed by one of the death cases.
The owner of the surgery center, Ritu Bhambhani, was one of the prosecution witnesses at Cadden's recent trial.
Under Zobel's order, discovery, including depositions and gathering evidence, will proceed in all four of the designated cases.
Court filings show that some 778 patients across the country were sickened in the outbreak and 77 of them died. According to data compiled by the U.S. Centers for Disease Control and Prevention, 26 Maryland patients were sickened in the outbreak and three died.
The CDC, however, stopped counting a year after the outbreak. The subsequent criminal investigation turned up 12 additional cases across the country in which patients died.
Contact: wfrochejr999@gmail.com