NECC Owner Wants Verdict Tossed

By Walter F. Roche Jr.

BOSTON- Lawyers for two recently convicted defendants asked a federal judge today to overturn unanimous jury verdicts and toss out the charge that their clients conspired to defraud federal regulators while working at a now shuttered drug compounding company.
In a 90-minute hearing in U.S. District Court the lawyer for Gregory Conigliaro, who was president and part owner of the New England Compounding Company, said federal prosecutors were "grasping at straws" and raising arguments never raised in the eight week jury trial that ended Dec. 13 of last year.
Daniel Rabinowitz said it was a "legal impossibility" for Conigliaro to defraud the U.S. Food and Drug Administration because the agency itself had chosen not to regulate drug compounders like NECC.
Michael Pineault, the attorney for co-defendant Sharon Carter said the FDA "intentionally chose not to assert its authority over companies like NECC."
Conigliaro, Carter and three others connected to NECC were convicted by a jury after an eight week trial. The charges ranging from racketeering to mail fraud and conspiracy followed a two year probe of the deadly 2012 fungal meningitis outbreak which ultimately took the lives of more than 100 patients in more than 20 states.
U.S. District Judge Richard G. Stearns took the appeals under advisement but not before stating that he liked the argument raised by Pineault about the FDA's decision not to exercise its authority over drug compounding firms which were licensed by state pharmacy boards.
Carter was an operations manager at NECC and Assistant U.S. Attorney George Varghese called her "the enforcer" who oversaw the processing of hundreds of prescriptions with phony names.
All the while, Varghese said, Carter had a manual at her work station clearly spelling out the requirement for a valid patient specific prescription.
Varghese said evidence presented at last year's trial showed clearly that Conigliaro misrepresented to state and federal regulators what was actually going on at NECC.
He said evidence showed that Conigliaro, as far back as 2004, was telling the FDA that NECC issued drugs only with valid patient specific prescriptions.
Citing the six and a half days of "careful" deliberations, Varghese said there was "absolutely no reason to overturn the jury's verdict."
"The jury does not have carte blanche," Pineault countered, adding there was no evidence his client ever joined the conspiracy.
Varghese charged that other courts have concluded that the so-called "legal impossibility" defense does not apply to the type of conspiracy charges faced by Conigliaro and Carter.
The arguments followed by just one day the arraignment of two other NECC officials in Livingston County Michigan on second degree murder charges. Barry Cadden, who was NECC's president and part owner, and supervisory pharmacist Glenn Chin were each charged with 11 counts of second degree murder in the deaths of 11 Michigan victims of the 2012 outbreak.
The two are already serving federal prison sentences following their convictions on racketeering and mail fraud charges. The federal jurors, however, did not convict the two on second degree murder charges in the deaths of patients from Tennessee, Michigan and five other states.
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