Judge Rules Out Further Victims' Testimony

 By Walter F. Roche Jr.

In a major setback to prosecutors, the judge presiding over the second degree murder trial of Barry J. Cadden has ruled that no further victims of the 2012 fungal meningitis outbreak will be allowed to testify.
In a five-page ruling U.S. District Judge Richard G. Stearns sitting in Boston, Mass. granted a motion by Cadden's attorneys to block further further testimony by victims or their survivors.
Stating that while prosecutors have thus far been "delicate" in the presentation of victims' evidence, Stearns wrote that "the emotional impact on the jurors has been visible to the court" particularly when the testimony "has turned inevitably (and understandably) to a description of the suffering of the victim prior to death."
The ruling may also block plans by prosecutors to present autopsy testimony on the 25 victims named in the second degree murder charges against Cadden.
In a second decision, Stearns ruled that Cadden's lawyers can present as evidence emails from Cadden prior to 2012 that show the former drug company president did have concerns about the quality and safety of drugs being produced by the New England Compounding Center. Previously he had ruled that any emails prior to 2012, the year of the outbreak, could not be presented to the jury.
Both decisions come in Cadden's trial on racketeering and second degree murder charges. He is the first to go to trial in a 2014 grand jury indictment stemming from a federal probe of the outbreak that took the lives of 76 patients across the country. Cadden's company, NECC, has been blamed for the outbreak caused by fungus laden steroids.
In the decision on victim witnesses, Stearns noted that testimony on three victims already has taken place, including the Friday testimony of a Maryland physician whose father was an outbreak victim.
"Family witness victim description testimony has now reached (the Rule 403) tipping point," Stearns wrote. "No further testimony in this vein will therefore be permitted."
Citing a U.S. Supreme Court ruling by then Chief Justice William Rehnquist, Stearns said that  "evidence that is unduly prejudicial renders the trial fundamentally unfair."
He added that court rules provide that evidence "even though relevant may be excluded if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues or misleading the jury."
Noting that prosecutors had argued that victim witness laws in five states, including Tennessee, Michigan and Indiana, allowed such testimony, Stearns concluded that only the law in Maryland was "mildly on point."
"In sum the government has not offered convincing support for an all inclusive introduction of victim description evidence."
Stearns did leave the door open for prosecutors to propose exceptions "in cases in which the government can demonstrate that the witness is competent to testify to an issue pertinent to the defendant's legal guilt."
In a footnote Stearns indicated that his ruling also would apply to testimony from medical examiners on the autopsies performed on victims. The government list of possible witnesses includes medical examiners from Tennessee and Maryland.
"This has particular relevance in light of the government's intention to offer autopsy evidence in each of the victims' cases, much of which in the court's experience is certain to be gruesome," Stearns wrote referring to unduly prejudicial evidence.
In the second ruling, Stearns ruled that while prosecutors can use several emails Cadden sent or received, Cadden's lawyers will be allowed to present emails prior to 2012 in which Cadden expressed concern that NECC meet state and federal guidelines on sterility.
He also granted Cadden's motion to exclude some emails, including one with "joking banter" about the use of cocaine at a company party.
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