Denial of Cadden's New Trial Motion Urged

By Walter F. Roche Jr.

Stating that a federal jury "properly considered overwhelming evidence of his guilt," federal prosecutors today asked a judge to deny Barry Cadden's motion for a new trial on racketeering and mail fraud charges.
In a 48-page motion filed in U.S. District Court in Boston, Mass. federal prosecutors charged that all the arguments for a new trial already had been considered and denied either by presiding judge or the jury.
Cadden was convicted on March 22 following a 10-week trial on charges that Cadden's New England Compounding Center operated as a criminal enterprise.
He was cleared of 25 counts of second degree murder, although a majority of the jurors voted for a guilty verdict in all but four of the murder counts. A unanimous verdict was required for a conviction.
Cadden was one of 14 persons associated with NECC to be charged following a two year investigation of a deadly fungal meningitis outbreak that sickened 778 patients and killed 76 of them.
Cadden, in his motion for a new trial or acquittal, had argued that the inclusion of the murder counts prejudiced the jury.
"A majority of the jurors found Cadden guilty of 21 of 25 murders" including eight in Michigan and seven in Tennessee. The jury's verdict confirmed that racketeering acts were properly included," the filing states.
Denying Cadden's claim of "prejudicial spillover," prosecutors Amanda Strachan and George Varghese said that evidence of murders was "largely limited and tactfully presented" with no attempt to evoke emotional appeal.
"The jury properly considered overwhelming evidence of the defendant's guilt as to each of the 57 counts," the filing continues.
The prosecutors defended the inclusion of details of Cadden's actions and inactions in the days leading up to the first public announcement of the deadly outbreak in 2012.
Repeating the details of the timeline they noted that there was a several day delay from Sept. 20, when Cadden first learned of a problem with Tennessee patients becoming ill, and Sept. 26 when he began calling clinics telling them not to use NECC's spinal steroid.
 "Cadden didn't disclose people were getting sick. These were critical moments in an evolving national disaster," the brief states.
Accusing Cadden and his lawyers of sensationalism, the prosecutors charged that allegations of government misconduct in the handling a a binder of evidence was "untethered to any factual or legal foundation."
Stating that Cadden had "intimate knowledge and understanding of NECC's fraudulent compounding operations," they charged that Cadden knowingly and repeatedly violated the industry standards for compounding sterile drugs as set by the U.S. Pharmacopeia.
Recounting the testimony of witnesses from the U.S. Centers for Disease Control and Prevention, the filing states that Cadden had been warned a decade earlier that his testing procedures were flawed and too few samples were being tested.
They also defended the charges against Cadden stemming from the fact that an unlicensed technician was working for nearly two years in one of NECC's sterile drug compounding rooms. Emails, the filing states, showed Cadden had authorized the unlicensed individual to use his (Cadden's ) identification sign on so that there would be no records.
"There is next to nothing in the motion (for a new trial) that has not already been decided by this court and/or jury," the filing states, adding that Cadden actions led "to the largest public health crisis ever caused by a pharmaceutical drug."
Sentencing in Cadden's case is scheduled for June 29 before U.S. District Judge Richard G. Stearns.
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