Judge Limits Outbreak Testimony in Cadden Trial

By Walter F. Roche Jr.

Federal prosecutors will not be allowed to present evidence of specific fungal meningitis outbreak deaths unless that evidence relates to one of the 25 victims for which a former drug company executive is facing racketeering and second degree murder charges.
The exclusion was one of several approved today by U.S. District Judge Richard G. Stearns in a decision issued on the eve of jury selection in the case set to begin in Boston, Mass.
Stearns concluded that while prosecutors can refer to "multiple deaths" in the 2012 outbreak, use of the specific case counts compiled by the U.S. Centers for Disease Control and Prevention will be barred.
Stearns also ruled on more than a dozen other requests by lawyers for Barry Cadden, the defendant, to limit or bar testimony by government witnesses.
Cadden is facing 25 counts of second degree murder and could be sentenced for life if convicted on those and other charges. Cadden was chief pharmacist and part owner of the New England Compounding Center, the Framingham, Mass. firm blamed for the deadly outbreak of fungal meningitis.
Stearns wrote that prosecutors could in their opening statement "refer to the larger picture of the bacterial(sic) meningitis outbreak," but not the "precise unverified raw number estimates provided by the CDC."
The CDC has reported that the outbreak sickened 753 patients across the country, killing 64 of them. In fact filings in a related case show that federal investigators uncovered additional illnesses and deaths pushing the illness total to 778 and the deaths to 77.
Stearns also ruled that experts from the U.S. Food and Drug Administration will be allowed to give testimony on whether NECC violated industry sanitation standards but not on whether any violations amounted to a criminal act.
Testimony from other FDA officials not designated as expert witnesses also will be limited to "their percipient observations".
As to the existence of a mattress recycling operation in close proximity to NECC, Stearns ruled that the recycling operation could be mentioned along with its impact on NECC's operations, "but not alleged violations of federal or state environmental laws and regulations concerning the plant itself."
Stearns did grant a motion by prosecutors to bar evidence of a civil settlement in a suit brought against NECC, insurance companies, Cadden and other owners and related parties.
Stearns previously ruled that prosecutors could not present evidence of a New York law suit charging that an NECC drug caused a patient's death. The case was settled out of court. He also limited the testimony on Cadden's wealth, but not his ownership interest in NECC.
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