Two NECC Defendants Get Separate Trial

By Walter F. Roche Jr.

Two of the remaining defendants in the criminal case stemming from a deadly 2012 fungal meningitis outbreak will get a separate trial, under a ruling issued today by U.S. District Judge Richard G. Stearns.
Citing the high risk of prejudicial spillover, Stearns said Kathy Chin and Michelle Thomas will be tried on the first available date following the scheduled October trial of the six other defendants.
The order granting a separate trial was one of more than 30 orders issued by Stearns today in U.S. District Court in Boston, Mass. on pre-trial motions filed by lawyers for the remaining defendants.
The eight were among 14 indicted by a federal grand jury in late 2014 following a two year probe of the fungal meningitis outbreak. Some 778 patients were sickened and at least 76 died after being injected with fungus laden steroids. All of the remaining defendants were employees of the New England Compounding Center, the company that produced the drugs and caused the outbreak.
In his ruling today Stearns wrote that he had attempted "to devise a practical means of preventing spillover of hearsay evidence," but concluded that Chin and Thomas had to be split off from the other defendants.
Chin and Thomas, according to court filings, were assigned to look through orders about to be shipped out. Stearns had previously dismissed charges against the two, but his decision was overturned on appeal.
"Even assuming the risk of prejudice could be contained, which is doubtful, the court would be in the awkward position of reminding jurors that items of evidence are not to be considered against Chin and Thomas," the ruling states.
He added that doing that, aside from being disruptive, would also "exacerbate matters by calling excessive attention to these two defendants."
The decision means there will in the end be four trials stemming from the 2014 indictment. Co-defendants Barry Cadden already were convicted in separate trials. Glenn Chin is the spouse of Kathy Chin. Opening arguments for the six defendants is scheduled for Oct. 15.
Stearns said the Chin and Thomas trial will be scheduled when the October trial is completed.
In the ruling granting a separate trial Stearns said Kathy Chin and Thomas were "in the larger picture on the outer rim of the remote in terms of potential culpability."
In a series of other rulings Stearns granted some of the defendants motions to limit prosecutors but denied most.
Among those denied was a motion to require prosecutors to present some of their evidence ahead of time in a so-called proffer hearing.
"If ever there was a case where no benefit could be derived from such a hearing, it is this one," Stearns wrote. "There is nothing to be said that hasn't already been said and known to the defendants"
He also chided defense lawyers for a motion in which they asked the judge to bar prosecutors from using certain language that was used in the Cadden and Chin trials.
Stating that at best the motion was "a shot across the bow or at worst an attempt to portray the government's lawyers to the court in as unflattering light as possible," Stearns wrote that he expected "all counsel to conduct themselves according to the rules of the court and ordinary standards of civil discourse."
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