By Walter F. Roche Jr.
BOSTON, Mass.-Jurors deliberating the racketeering and murder charges against a former drug company president raised a question today that could negatively impact up to 40 of the 96 counts pending against the defendant.
The question was one of several raised by the 12 member jury as they completed the second full day considering the racketeering and second degree murder charges against Barry J. Cadden who served as president and pharmacist in charge for the now defunct New England Compounding Center.
Cadden was charged following a two year investigation of the 2012 fungal meningitis outbreak caused by fungus laden steroids shipped fron NECC's Framingham, Mass. headquarters.
The jurors sent a written question to U.S. District Judge Richard G. Stearns asking whether they could find Cadden guilty of violations of the federal Food Drug and Cosmetic Act, if they did not find that he did so willfully, meaning he intended to defraud and mislead.
The question arose from the instructions jurors were given and a check list they must complete on each of the charges.
Stearns said that because of the instructions and the check list the jurors could not find Cadden guilty of the violations unless they also concluded that he did so willfully.
If there is no intent to defraud or mislead, Stearns said, then you must find Mr. Cadden innocent.
"That's not the way the instructions read," said Assistant U.S. Attorney George Varghese.
of Stearns' conclusion.
Varghese noted that the check list given to jurors has separate columns for a finding of guilt and a finding of intent and the law still provides for violations to be charged without specific intent..
"It's too late to change the instructions," Stearns replied.
Bruce Singal, Cadden's attorney, quickly signaled his agreement with Stearns.
Stearns said the jurors would be told that they must find Cadden willfully violated the law to also find him guilty of violating the act.
The counts in question charge Cadden with a variety of violations of the Food, Drug and Cosmetic Act, including mislabeling drugs and shipping drugs across state lines that he knew were prepared under insanitary conditions. The list includes vials of methylprednisolone acetate shipped by NECC to clinics in Tennessee, Michigan and Indiana.
Earlier in the days the jurors asked for additional information on exhibits that were presented during the nearly three month trial, including information on the test results on drugs produced by NECC.
Singal objected to the jurors being presented a separate binder containing test results, because that binder had never been formally introduced as evidence.
Stearns assured him three times that the disputed binder was not in the jury room.
At the very end of the session jurors sent another request for a list of certificates of analysis on NECC drugs that were introduced during the trial.
Assistant U.S. Attorney Amanda Strachan said she would provide a list informing the jurors of the exhibit numbers for the certificates.
The jurors will reconvene tomorrow at 8 a.m.