Prosecutors Oppose NECC RX Appeals

By Walter F. Roche Jr.

Charging that the defendants are raising arguments already rejected by judge and jury, federal prosecutors say the guilty verdicts against two pharmacists should stand and motions for a new trial must be rejected.
In a 22-page filing late Friday, Assistant U.S. Attorneys George Varghese and Amanda Strachan said the arguments raised by attorneys for Kathy Chin and Michele Thomas are flawed and without merit.
The two, former employees of the New England Compounding Center, were convicted after a four-day trial of multiple violations of the Food Drug and Cosmetic Act.
They were among 14 persons indicted in 2014 after a two year probe of a deadly fungal meningitis. Chin and Thomas, however, were not charged for producing the steroid that caused the outbreak but other drugs that were shipped to health providers in Georgia and Nebraska.
As the filing notes, evidence produced during the April trial showed the two filled prescriptions made out for obviously fake patients, including Filet O Fish and Chester Cheeto.
The jury found the names to be "patently fictitious," the prosecutors stated, adding that testimony from an official of the Mass. Board of Pharmacy showed state law required a patient specific prescription for every drug dispensed by a licensed pharmacist. And, they noted, both defendants were Massachusetts licensed pharmacists.
Rejecting arguments that some states allow pharmacists to dispense drugs in bulk for so-called office use, the brief asserts that no state authorizes pharmacists to issue drugs for fake patients.
"Chin and Thomas, acting as licensed pharmacists" performed the final verification before the drugs were packaged and shipped to customers, the prosecutors argued, adding that there was "ample evidence for the jury to conclude Chin and Thomas willingly dispensed drugs pursuant to fraudulent prescriptions."
The prosecutors noted that the jurors verdicts reached on May 2 were unanimous and the panel concluded the two violated federal law "with the intent to defraud or deceive.
Dismissing arguments that it was NECC part owner Barry Cadden who actually approved each of the fraudulent prescriptions, the prosecutors wrote, "Simply put these drugs could not have been dispensed without them (Chin and Thomas)."
(Cadden was found guilty of racketeering, conspiracy and is now serving a nine year prison sentence.)
In fact, the filing concludes, Chin and Thomas "played indispensable roles supporting and facilitating the fraudulent scheme.
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