Disputed NECC Exhibits Defended by Prosecutors

By Walter F. Roche Jr.

Boston- Five of the six former employees of a drug compounding firm blamed for a deadly outbreak are asking a federal judge to block prosecutors from presenting some two dozen exhibits which they contend would be prejudicial and irrelevant.
In a nine-page Veteran's Day filing, lawyers for the five charge that most of the exhibits set to be introduced this week relate to the 2012 fungal meningitis outbreak and none of the five are charged with playing any role in the preparation of the spinal steroid that caused the outbreak. The trial is set to resume tomorrow.
The sixth defendant, Gregory Conigliaro, who was vice president and part owner of the New England Compounding Center, did not join in the motion.
"None of these defendants had anything to do with the MPA (methylprednisolone acetate)," the motion states.
The five are charged with racketeering and mail fraud, but the charges relate to the preparation and shipping of other drugs sold by NECC, the motion states.
In a response filed late today federal prosecutors urged rejection of the motion charging that the defendants request was based on "false assumptions and mischaracterizations."
The prosecution intends "to stay within the boundaries defined by the court," the response states, adding that they will "meticulously follow the court's limitations.
The list of exhibits and expected witnesses were presented to the defense attorneys on Friday, as the trial ended its fourth week.
In today's filing the defendants noted that U.S. District Judge Richard G. Stearns has ruled in the past to limit the evidence relating to the outbreak, which took the lives of at least 76 patients among nearly 800 who were sickened.
They noted that Stearns has ruled that jurors can be presented some evidence on the outbreak, but only to provide context about the current case.
Many of the prosecutions exhibits run "well past setting context" and will be cumulative and unnecessary, the motion states.
The five were among 14 indicted in late 2014 following a two year probe of the outbreak. Two of the original defendants were tried separately and are now serving sentences based on their conviction on mail fraud and racketeering charges.
Among the exhibits the defendants seek to block are those due to be presented by two employees of the U.S. Food and Drug Administration, Haydee Romero and Jeffrey Kohn.
The defendant's attorneys noted Romero's testimony in a prior NECC trial was focused on tests on NECC's MPA that showed mold that grew so fast it nearly pushed the cover off the petri dish.
Still other exhibits and anticipated testimony, the motion charges, concern interactions between NECC and the FDA that occurred before any of the five defendants even went to work there.
In their response, prosecutors said some evidence from the outbreak is necessary to show the overall deficiencies in NECC's operations.
"These deficiencies apply to all of the drugs NECC was making," the six-page response states.
The five filing the motion to block the exhibits are Gene Svirskiy, Joseph Evanosky, Sharon Carter, Alla Stepanets and Christopher Leary.
The two remaining defendants, Kathy Chin and Michelle Thomas, are expected to go on trial when the current case is concluded.
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