Thursday, June 22, 2017
Judge Denies Cadden Acquittal Motion
By Walter F. Roche Jr.
A federal judge today rejected an acquittal motion filed by a former drug company president convicted by a jury in March on 57 counts of racketeering, conspiracy and mail fraud.
In a 20-page decision issued in Boston, Mass. U.S. District Judge Richard G. Stearns also rejected Barry J. Cadden's request for a new trial.
While upholding the jury verdict, Stearns did fault federal prosecutors for being "less than forthright" about a binder of government exhibits that was in fact delivered to the jury room.
Rejected by Stearns, however, were claims of prosecutorial misconduct and insufficient evidence to back the 57 counts on which Cadden was convicted.
Stearns had high praise for the jurors who sat through 10 weeks of testimony before delivering their verdict on March 22. Stearns called the jury "one of the hardest working and most conscientious juries I have had the privilege to work with.
As he noted the jury acquitted Cadden on 25 counts of second degree murder.
Cadden, one of 14 indicted in late 2014 by a federal grand jury, is scheduled to appear before Stearns on Monday for sentencing.
The charges stem from a deadly 2012 fungal meningitis outbreak caused by drugs shipped from the company Cadden headed, the New England Compounding Center. NECC has been blamed for the outbreak triggered by fungus laden steroids shipped to health facilities in 20 states. Some 778 patients were sickened and 77 of them died.
In his decision Stearns rejected claims by Cadden that he did not know of insanitary conditions in the clean rooms where the deadly steroids were prepared.
"Cadden was a licensed pharmacist with years of practitioner's experience," Stearn wrote, concluding that there was "considerable evidence" Cadden knew of serious problems.
He also concluded there was ample evidence of a conspiracy between Cadden and others at NECC.
"The record is replete with evidence among the alleged conspirators discussing the improper use of labels, the shipping of untested drugs and drugs with expired ingredients as well as unremediated insanitary conditions," the ruling states.
Stearns did fault prosecutors for presenting testimony from a clinic employee that gave the impression that Cadden knew of problems with the steroids five days before a recall was initiated.
He said the government's persistence in defending that testimony was "perplexing at best and at worse inconsistent with the obligation of the government to serve the higher interests of justice."
But, Stearns continued, the jury ultimately rejected the second degree murder charges.
"As no prejudice resulted, there is nothing for the court to rectify," he wrote.
The ruling also faults Assistant U.S. Attorney George Varghese for failing to disclose that a binder containing government exhibits had been sent to the jury during its deliberations.
Stearns acknowledged that he mistakenly assured Cadden's lawyer, Bruce Singal, that the binder was not in the jury room.
"There is plenty of fault to share for the mistake," Stearns wrote, citing "the government for not being more forthright."
Nonetheless he concluded that the mistake "was not so prejudicial as to merit the harsh result of overturning even a portion of the verdict."
In fact, he wrote, that had the government offered the binder as a formal exhibit he would have admitted it.