By Walter F. Roche Jr.
BOSTON, Mass.- A federal jury today convicted a former drug company executive on charges of racketeering and multiple counts of mail fraud but acquitted him of the most serious charges, 25 counts of second degree murder.
The jury, which began deliberations late last week, found Barry J. Cadden, 50, guilty of shipping out drugs that were untested, allowing an unlicensed pharmacy technician to prepare drugs and shipping misbranded drugs in interstate commerce with false patient names.
In addition to the murder charges they found him not guilty of conspiracy to defraud the United States and for shipping expired drugs.
Overall he was convicted on 58 of the 96 counts in the original indictment.
Acting U.S. Attorney William Weinreb said Cadden could face up to 20 years on each of 52 charges of mail fraud. U.S. District Judge Richard G. Stearns set June 21 for sentencing. A conviction on the murder charges could have brought a life sentence
Weinreb said Cadden was responsible for "the largest public health crisis in U.S. history caused by a pharmaceutical."
Though Cadden was only charged for 25 deaths, his company, the now shuttered New England Compounding Center, was blamed for 77 deaths among some 778 patients who were sickened.
Bruce Singal, Cadden's lawyer, said avoiding conviction on the murder charges "was our main priority."
He said it was unjust for the murder charges to have been brought in the first place, adding that the jury had vindicated his client by rejecting those charges. He said he plans to file an appeal of the convictions.
Living victims of the outbreak had mixed reactions to the verdict, many expressing gratitude to prosecutors but disappointment with the not guilty verdict on the murder counts.
The family of Donald McDavid, who died following his injection with an NECC steroid at a Crossville, Tenn. clinic issued a statement commending federal prosecutors for their work on the case. Cadden had been charged in McDavid's death.
"We live with Don's loss every day. We take some comfort in knowing Mr. Cadden will be held accountable for his actions..No matter how long Mr. Cadden spends in prison, it will never bring Don back," the family said.
Jona Angst, a Michigan victim, said she was disappointed in the verdict.
"The victims wanted the murder charges," she said. "We deserve our justice. The dead deserve justice."
Mark Chalos, a Nashville attorney who represents victims, said that while victims could take some solace in the conviction, "Mr. Cadden's scheme would not have succeeded without the greed and recklessness of the corporations that bought his products on the cheap and injected them into patients."
The verdict came after what Stearns called the longest trial in the history of the 29-year-old courthouse. Opening arguments were delivered on Jan. 19 and testimony from more than 60 witnesses stretched over some two and a half months
Cadden was one of 14 persons affiliated with NECC indicted by a federal grand jury in late 2014 following a more than two year investigation.
Prosecutors charged Cadden with playing Russian Roulette with the lives of unsuspecting patients and cited multiple records showing a history of problems in maintaining the safety and sterility of NECC's products.
Cadden's lawyers insisted he had no reason to believe, based on more than a decade of operation, that the 17,000 vials of methylprednisolone shipped out by NECC between May and September of 2012 were anything but safe and sterile.
Cadden, who had entered not guilty pleas to all 96 counts against him, did not testify in his own defense and his lawyers rested their case after only two days of testimony from a handful of witnesses.
The case against Cadden included extensive internal NECC documents, including Cadden's own emails and the videotapes of his sales training sessions. Prosecution witnesses included several former employees of NECC and an affiliated sales company including a former sales manager, Rob Ronzio, who testified under the terms of a plea deal.
Under that agreement Ronzio pleaded guilty to a single count of conspiracy to defraud the federal government.
As the trial dragged on from mid-January through February and in to March, Stearns made repeated attempts to move the trial along, at one point telling one of Cadden's lawyers, "You seem to have run out of things to say."
Before that he ruled that prosecutors could not present further testimony from outbreak victims or their survivors because of its prejudicial impact.
In addition to Ronzio and Cadden, two others named in the 2012 indictment entered guilty pleas to vastly reduced charges, two had all charges dismissed. The remainder are expected to go on trial shortly. The next case, according to court filings will be the charges against Glenn Chin, NECC's supervising pharmacist, who also faces multiple second degree murder charges.
Weinreb would not comment when asked what effect the Cadden verdict might have on the case against Chin. He said the trial was slated to begin next month.
Stearns already has issued orders seeking to set limits on the length of the Chin trial.
The 2012 outbreak first became public in early October of 2012, but trial testimony showed that the alarm had already been sounded days earlier after NECC clients began complaining about patients becoming ill and evidence of contamination in vials of NECC's products.
It became public shortly after a physician at the Vanderbilt University Medical Center reported to the Tennessee Health Department that a patient, who had recently had a spinal injection, was suffering from a very rare form of meningitis, one caused by a fungus called aspergillus fumagatus.
During the trial federal prosecutors attempted to show that Cadden delayed in sounding the alarm. Ronzio testified that Cadden "knew right away it was us."
Cadden's attorneys countered with a tape recording of a call Cadden made to a clinic with a warning that the drugs were being recalled.
"We consider this an emergency," he said in a voice mail left at the clinic.
Prosecutors played videotaped training sessions Cadden held with sales staffers in which he bragged about staving off state and federal regulators.
"They don't want to deal with us. They don't know what they are looking at," Cadden said, adding that he "educated" the state investigators.
"When complaints come in from other states, the board says, 'Just go away.'" Cadden told the sales traineed
Among the former NECC amployees to testify was Joseph Connolly, whose brother Scott was among those indicted. He testified that despite the promises made to customers NECC did not do the proper testing on its products. He said his brother had given up his registration as a pharmacy technician following a state investigation and shouldn't have been working in one of NECC's clean rooms.
According to other testimony Scott Connolly used Cadden's sign in and initials to authenticate his work at NECC.
Cadden was found guilty on the charges relating to Scott Connolly.
Annette Robinson, who was in charge of quality control for NECC, testified that when she brought sterility concerns, including presence of mold in and around the clean rooms, to Cadden's attention, nothing happened.