Tuesday, March 14, 2017
Jury to Finally Get Cadden Case
By Walter F. Roche Jr.
BOSTON, Mass.- After more than two months of testimony jurors Thursday will get the chance to decide the fate of Barry Cadden, the 50-year-old former drug company president, who prosecutors have charged in the deaths of 25 patients.
Lawyers for Cadden and prosecutors have been given 90 minutes each to present final arguments. The judge will give final instructions and deliberations will begin.
U.S. District Judge Richard G. Stearns told lawyers for both sides that the jury decision on some of the most serious charges won't necessarily be the last word.
He said he would let the jury take "the first pass" at charges that Cadden and others at the New England Compounding Center conspired to defraud the U.S. Food and Drug Administration. He said, based on the testimony, he was not certain what the FDA was defrauded of.
If the jury were to find Cadden guilty of that charge, Stearns, as his "first pass" comment indicates, could overrule them.
He also indicated there maybe issues with the second degree murder charges Cadden is facing. He said in some jurisdictions, recklessness alone is not sufficient to convict on a charge of second degree murder. He also mentioned a federal appeals court decision on that issue but did not elaborate.
Cadden's lawyers have consistently argued that the murder charges are an overreach.
The opening arguments came more than two months ago with prosecutors showing the jury pictures of the victims, the 25 who died after being injected with fungus tainted methylprednisolone acetate shipped from NECC to more than 20 states.
Despite the lengthy trial, the testimony has left many questions about the deadly outbreak unanswered. The jury was never told that the outbreak actually killed three times more victims or that a total of 778 patients were sickened.
And unbeknownst to the jurors many of those victims or their survivors were sitting in the courtroom as the trial proceeded. The U.S. Attorneys office invited victims to spend up to a week each to watch the trial at government expense.
They came from Michigan, Indiana, Pennsylvania, Tennessee and Virginia.
Among the unanswered questions is the case of Alice Machowiak, an 88-year old victim from South Bend, Ind. According to the records and testimony Machowiak was injected at the South Bend Clinic on Sept. 6, 2012 and Oct. 1, 2012. She died on Dec. 12, 2012.
Machowiak's second injection came four days after witnesses have testified Cadden had contacted all the clinics to warn them there might be a problem with NECC's methylprednisolone acetate.
In fact an employee of the Indiana clinic testified that she got a call from Cadden on Sept. 21 and immediately quarantined all of NECC's methylprednisolone acetate. Cadden's lawyers have denied he made a call on Sept. 21, but they have acknowledged that on Sept. 26 Cadden made a series of calls to clinics telling them there were problems with the steroid.
Another victim, Donald McDavid, according to court records, was injected at a Crossville, Tenn. clinic on Sept. 26, the same day Cadden was up all night making those calls. McDavid, according to the indictment, also was injected on Aug. 29, 2012. He died on Nov. 4.
Michigan: Karina Baxter (9/23/12), Paula Brent (11/17/12), Gayle Gipson (10/26/12), Donna Kruzich (10/8/12), Lynn Lapierre 10/17/12), Mary Pletti (8/23/12), Sally Roe (10/18/12), Emma Todd
Tennessee: Marie Hester (11/1/12), Eddie Lovelace (9/17/12), Donald McDavid (11/4/12), Diana Reed (10/3/12) , Thomas Rybinski (9/29/12), Carol Wetton (4/16/13), Earline Williams (10/15/12)
Indiana: Pauline Burema (10/10/12), Kathy Dillon (11/5/12), Alice Machowiak (12/10/12)
Maryland: Bahman Kashi (1/28/13), Brenda Rozek (9/16/12), Edna Young (12/31/12)
Virginia: Kathy Sinclair (1/19/13), Douglas Wingate (9/18/12)
Florida: Godwin Mitchell (3/18/13)
North Carolina: Elwina Shaw (10/19/12)