Renewed Early Release Request Denied.

By Walter F. Roche Jr.

A federal judge has once again denied a request by a convicted pharmacist to get an early release from prison where he is serving a 30 month sentence for his role in a deadly 2012 fungal meningitis outbreak.
In a two-page ruling issued Wednesday U.S. District Judge Richard G. Stearns turned down the plea of Gene Svirskiy to serve the remainder of his sentence on home confinement.
Svirskiy had sought the release citing the ongoing pandemic and his prior medical diagnoses.
Svirkiy was one of 14 indicted in late 2014 folloing a two year probe of the fungal meningitis outbreak which ultimately took the lives of more than 100 patients.
In rejecting the request Stearns cited his decision in a prior request in which he said he did not have the legal right to let Svirskiy serve the remainder of his term under house arrest.
Stearns also cited the decision of the warden at FMC Devens, the prison where Svirskiy is incarcerated, who also has turned down Svirskiy's early release request.
Svirskiy was sentenced to the 30 month sentence following his conviction on charges of racketeering, mail fraud and violations of the food drug and cosmetic act.
Contact: wfrochejr999@gmail.com

NECC Defendant Renews Early Release Plea

By Walter F. Roche Jr.

A former pharmacist convicted following a probe of a deadly fungal meningitis outbreak is seeking yet again an early release citing, yet again, newly discovered medical evidence.
In a 15-page filing with another 15-pages of highly redacted attachments Gene Svirskiy filed a petition for compassionate release in U.S. District Court in Boston.
Citing "newly discovered" medical records, the petition states that Svirskiy is at high risk of suffering a severe form of Covid-19.
"The personal health risks to Svirskiy are real," the filing states.
As noted in his petition, Svirskiy's prior pleas for early release were denied by U.S. District Court Judge Richard G. Stearns and the warden at the federal prison in Massachusetts where he has been serving a 30 month sentence. He has served 18 months thus far.
Svirskiy was convicted of racketeering, conspiracy and violations of the Food Drug and Cosmetic Act. He was one of 14 indicted in late 2014 following a two year probe of the deadly fungal menngitis outbreak.
He was employed as a pharmacist at the now defunct New England Compounding Center the company blamed for the outbreak.
In the latest petition filed by Svirskiy's lawyer, Christopher Iaquinto, he acknowledged that an outbreak of Covid-19 at FMC-Devens has abated, but charged that the federal Bureau of Prisons "is not conducting thorough and consistent testing.
As a result, the petition states, the number of Coronavirus cases in the federal system is likely understated.
Contending that Svirskiy has been a model prisoner, the petition concludes,"Svirskiy presents no threat to anyone's safety."
Contact: wfrochejr999@gmail.com

Chin To Face Jury on Murder Charges

By Walter F. Roche Jr.

A Michigan judge ruled today that Glenn Chin, a former Massachusetts pharmacist, must face a jury on charges of second degree murder in the deaths of 11 Livingston County patients.
Circuit Court Judge Michael Hatty issued the ruling following a 30 minute session in which Chin's attorney, James Buttrey, argued that state prosecutors had failed to prove that any action by Chin caused the 11 deaths.
Hatty denied a motion that would have effectively dismissed the charges.
"There isn't any evidence that Glenn Chin caused the contamination," Buttrey said.
Assistant Attorney General Gregory Townsend, however, said the evidence in the case was overwhelming.
"It was all about greed," said Townsend, adding that actions by Chin and co-defendant Barry Cadden made it likely that patients would suffer death or bodily harm.
Hatty already has ruled that Cadden will have to face a jury trial on the same second degree murder charges.
The two were charged following an investigation of the 2012 fungal meningitis outbreak caused by steroids riddled with deadly fungus and shipped to healthcare providers in Michigan and some 20 other state.
Cadden was president and part owner of the New England Compounding Center, the company that produced the deadly drugs. Chin was a supervising pharmacist at NECC and oversaw the clean room where the deadly drugs were comppounded.
Following Hatty's ruling Buttrey asked for a delay in formally issuing the ruling so that he could file an interlocutory appeal. Hatty agreed to delay the formal ruling until the first business day after Jan. 1.
"We don't believe Chin meant to causs death," Townsend argued prior to the ruling. "He just flat out didn't care."
Townsend recounted the testimony of NECC employees who worked under Chin's supervision. When one worker confronted Chin with the possible consequences of NECC's practices, Townsend recounted, Chin replied, "That's why we have lawyers."
Buttrey, however, cited multiple possible causes of the contamination that were beyond Chin's control.
Chin witnessed the proceedings from the Livingston County jail where both he and Cadden have been confined.
The two already have been found guilty of racketeering, conspiracy and violations of the Food Drug and Cosmetic Act but two federal juries declined to convict them of second degree murder as part of a racketeering charge.
Buttrey argued that it wasn't Chin but other NECC employees who placed the steroids in vials prior to their shipment to health providers.
"There isn't any evidence he caused the contamination," Buttrey said.
Hatty, however, concluded that it would be up to a jury to decide whether Chin was guilty of the charges.
"It is certainly a question of fact that a jury must decide," Hatty said.
Contact: wfrochejr999@gmail.com

Cadden Must Face Jury on Murder Charges

By Walter F. Roche Jr.

A Michigan judge ruled today that the president and part owner of the company that caused a deadly fungal meningitis outbreak must face a jury on second degree murder charges for the deaths of 11 victims of that outbreak.
Circuit Court Judge Michael Hatty issued the ruling from his Howell, Michigan court room following a 45 minute hearing.
The decision means Barry J. Cadden will have to face a jury on 11 counts of second degree murder in the deaths of Livingston County patients who died following the injection of steroids contaminated with a deadly fungus.
Hatty said he concluded that the state Attorney General's office had "met its burden" of providing sufficient evidence to believe that Cadden was responsible for the deaths.
Cadden was president and part owner of the New England Compounding Center, the now defunct drug company that shipped out thousands of contaminated vials of methylprednisolone acetate.
The second degree murder charges were brought by the Michigan Attorney General. Hatty's ruling came following a hearing in which Cadden's attorney, Gerald Gleeson, argued that prosecutors had failed to prove Cadden knew what was going on in the clean room where the contaminated drugs were produced.
"He was never in the clean room," Gleeson said.
Gleeson said it was co-defendant Glenn Chin, who oversaw the clean room. Chin, who was also charged with second degree murder, will face Hatty on those charges in a week. Cadden, who observed the hearing from the Livingston County Jail, showed no reaction as Hatty delivered his decision.
Assistant Attorney General Denise Hart argued that Cadden was "100 per cent involved in what went on at NECC. She said it was Cadden who decided to send out drugs without testing.
"He knew what was going on," she said, citing emails produced during prior hearings.
Contact: wfrochejr999@gmail.com

NECC Defendant Cites Newly Discovered Evidence

By Walter F. Roche Jr.

A former pharmacist convicted of racketeering in the wake of a deadly fungal meningitis outbreak is asking once again for release from prison citing the current pandemic and a previously undisclosed medical condition.
In a 15-page petition filed today in U.S. District Court in Boston, Mass., the lawyer for Gene Svirskiy is asking the court to allow him to complete his 30 month sentence under home confinement.
The petition and attached exhibits show Svirskiy plans to return to work as a compounding pharmacist, the same role he played at the New England Compounding Center, the company blamed for the deadly 2012 outbreak.
In the petition Svirskiy states that he recently uncovered medical records showing that he has a medical condition that makes him susceptible to a severe form of Covid-19. Records relating to that condition were filed under seal with the approval of U.S. District Court Judge Richard G. Stearns.
The petition also cites Svirsky's history of smoking and a diagnosis of asthma.
"The personl health risks to Svirskiy are real," the petition states, citing guidelines from the U.S. Centers for Disease Control and Prevention.
Svirskiy was one of 14 people connected to NECC who were indicted in late 2014 after a two year probe of the fungal meningitis outbreak which took the lives of dozens of patients and sickened hundreds of others.
He was convicted of racketeering, racketeering conspiracy, mail fraud and violations of the Food Drug and Cosmetic Act.
A prior petition for early release was denied by Stearns who said he did not have the legal authority to grant the request.
In the new petition Svirskiy argues that Stearns does have that power and the new evidence shows "extraordinary and compelling reasons" why he should be released.
Stating that Svirskiy has now exhausted all possible administrative remedies, including appeals to the warden at the prison in Central Masachusetts where he is confined, the petition calls on Stearns to grant his request.
The petition acknowledges, however, that the Covid-19 outbreak at his prison has eased, although eight staffers have tested positive for the virus.
Contact: wfrochejr999@gmail.com

Svirskiy To Renew Prison Release Request

By Walter F. Roche Jr.

A convicted defendant in the criminal probe of a deadly fungal meningitis outbreak is renewing his efforts to get an early release from his 30 month jail sentence.
In a three-page motion filed today in U.S. District Court in Boston, Gene Svirskiy, 39, asked the court to allow him to file part of his upcoming early release request under seal because it contains "private medical information."
The motion, filed in Svirskiy's behalf by his attorney Christopher Iaquinto, states that he intends to file a motion for modification of his sentence and compassionate release.
Svirskiy, who has made several prior attempts at early release, is not scheduled for release until Aug. 26 of next year.
A former pharmacist who worked at the defunct New England Compounding Center, Svirskiy was convicted of racketeering, conspiracy, mail fraud and violations of the Food Drug and Cosmetic Act. He was one of 14 indicted following a two year probe of the deadly outbreak.
Svirskiy has been serving his sentence at the Federal Medical Center Devens in central Massachusetts.
In earlier petitions Svirskiy asked that he be alllowed to serve the remainder of his sentence under home confinement. He cited the fact that other inmates at the Devens facility were suffering from Covid-19.
Federal prosecutors opposed the motion and noted that there were no Covid-19 cases in the section of the prison where Svirskiy is confined.
The new motion states that "Sealing is necessary to protect Svirskiy's confidential, private medical information that he has not disclosed publicly through proceedings in this court or elsewhere."
"Medical information is universally presumed to be private not public," the motion states.
U.S. District Court Judge Richard G. Stearns, who also presided over Svirskiy's trial, turned down the request stating that he did not have the legal authority to grant the request.
Contact:wfrochejr999@gmail.com

Cadden, Chin Hearing Reset To Dec. 17

By Walter F. Roche Jr.

A hearing on key motions filed by attorneys for two former pharmacists charged with second-degree murder has been rescheduled to Dec. 17.
Lawyers for Glenn Chin and Barry Cadden have asked Circuit Court Judge Michael P. Hatty to overturn the decision of a Michigan district court judge who ruled that there was probable cause to believe the two defendants were guilty of 11 counts of second degree murder.
A hearing on the motions had been scheduled for tomorrow, but will instead be held at 8:30 a.m. on Dec. 17.in Livingston Circuit Court.
Cadden and Chin have been charged with second degree murder in the deaths of 11 Livingston County residents who died in the 2012 fungal meningitis outbreak.
Cadden was president and part owner of the New England Compounding Center, the company blamed for the outbreak. Chin was a supervising pharmacist at NECC.
The company shipped thousands of vials of contaminated medications to Michigan and some 20 other states.
Contact: wfrochejr999@gmail.com

Michigan AG Says Cadden, Chin must Face Jury

By Walter F. Roche Jr.

The Michigan Attorney General says two former Massachusetts pharmacists must face a jury to decide whether they are guilty of second-degree murder in the deaths of 11 patients who died after being injected with a highly contaminated drug.
In one 27-page brief filed today in Livingston Circuit Court, the state prosecutor urged Judge Michael A. Hatty to deny motions filed by lawyers for Barry J. Cadden and Glenn Chin that would effectively clear the two of second-degree murder.
Filed by Assistant Attorney Generals Gregory Townsend and Denise Hart, the brief states that Cadden and Chin's actions and inactions caused "great bodily harm and more importantly caused death."
Cadden and Chin's lawyers have asked Hatty to rule that District Court Judge Shauna Murphy was wrong when she ruled that there was probable cause to believe that crimes had been committed and Chin and Cadden had committed those crimes.
Cadden, the brief states, "put production over safety and health at every juncture," as he sought to gain as much profit as he possibly could.
Cadden was part owner and president of the New England Compounding Center(NECC), the company blamed for the 2012 fungal meningitis outbreak that took the lives of 11 Michigan patients, along with dozens of others from more than 20 states.
As the brief notes Chin was a supervising pharmacist at NECC working under Cadden's supervision.
Citing testimony of 16 witnesses and 80 exhibits, the brief states that after reasonable cause has been found, it is up to a jury to finally decide whether the two are guilty of second degree murder.
The brief cites testimony from former NECC employees and experts from the U.S. Centers for Disease Control and Prevention about the "outrageously" unsafe and unsanitary conditions at NECC's Framingham, Mass. facility.
Also cited was testimony showing specific instances when NECC, at Cadden's direction, shipped out products before they could be tested. Even when products were tested, NECC submitted far fewer samples than were required.
Other testimony showed how NECC failed to follow national standards for the production of sterile drugs.
"He (Cadden) knowingly created a very high risk of death or great bodily injury," the filing states, adding that prosecutors do not contend that either defendant intended to kill the victims.
Though Chin worked under Cadden's supervision, the brief states that "Chin still had a duty to take the lawful and moral avenue" and not send out unsterile and untested medications. Contact: wfrochejr999@gmail.com

Chin Moves to Toss Murder Charges

By Walter F. Roche Jr.

The former pharmacist charged with 11 counts of second-degree murder says those charges must be thrown out because prosecutors have failed to prove that any act of the defendant led to the deaths.
In a three-page motion and a seven-page brief, James Buttrey, the lawyer for Glenn Chin, said prosecutors still don't know how the drugs that killed 11 Michigan residents became contaminated with deadly fungus.
"The prosecution has identified no act of Glenn Chin that caused these deaths," the motion states.
Glenn Chin and co-defendant Barry Cadden were charged with the deaths of 11 patients who died after being injected in 2012 with fungus laden methylprednisolone acetate (MPA) at the Michigan Pain Specialists.
The MPA was produced at a Massachusetts drug compounding firm where Chin was a supervising pharmacist and Cadden was president and part owner.
Though Chin did compound the bulk MPA, the motion states that tests showed the drugs were sterile when they left Chin's hands.
"The stock of the MPA that Mr. Chin prepared always tested sterile going back years and years," the motion states.
Chin is asking Livingston County Circuit Judge Michael Hatty to effectively throw out the charges and reverse the decision of District Court Judge Shauna Murphy, who found there was probable cause to conclude Chin and Cadden were guilty as charged.
The case is being prosecuted by the Michigan Attorney General Dana Nessel's office.
The Chin motion states that there were multiple possible sources of the contamination after the bulk drugs left his hands. Noting that the MPA was later placed in individual vials by other NECC employees, the motion states that prosecutors produced "zero evidence...tending to show that Glenn Chin caused these deaths."
"The evidence proved that the MPA must have become contaminated after it left Glenn Chin's hands," according to the filing.
Contending that there is no precedent for murder charges to be brought in what is in effect a wrongful death/product liability case, the Chin motion concludes that dismissal of the charges is "mandated."
Contact: wfrochejr999@gmail.com

Judge Denies Defense Motions in Outbreak Case

By Walter F. Roche Jr

A Michigan judge today denied a motion to dismiss second degree murder charges against a former pharmacist and also rejected a move to have the case transferred to another county.
Judge Michael P. Hatty issued the rulings following arguments by the Michigan Attorney General and attorneys representing the defendant, Barry J. Cadden. Cadden and Glenn Chin face 11 second degree murder charges stemming from their roles in the deadly 2012 fungal meningitis outbreak.
Cadden's lawyer had argued that it would be impossible for his client to get a fair trial in Livingston County because many of the outbreak victims or their survivors reside there.
Cadden's lawyers also argued that since a federal jury declined to convict Cadden of second degree murder charges as part of a racketeering charge, Cadden would face double jeopardy.
Hatty, after hearing arguments from both sides, turned down both motions. He cited prior rulings that concluded the state, as a separate sovereignty, could bring charges despite parallel federal action.
In denying the motion to move the case to another Michigan county, he noted that the defense could raise the same issue at a later date.
But Hatty said he was confident that he could appoint an impartial jury.
Cadden's lawyer argued that Livingston County was the epicenter of the 2012 outbreak and potential jurors would have direct connections to the case.
Contact: wfrochejr999@gmail.com

Cadden, Chin Hearing Thursday

By Walter F. Roche Jr.

A key hearing in the case of a former pharmacists charged with second degree murder is scheduled for Thursday in a Michigan court room.
The 8:30 a.m. hearing will be held before Livingston County Circuit Court Judge Michael P. Hatty.
Barry J. Cadden has been charged with 11 counts of second degree murder for his role in the 2012 fungal meningitis outbreak which took a particularly heavy toll in Livingston County.
Lawyers for Cadden will be arguing for a change in venue, contending that it will be impossible to find a panel of jurors who were not personally impacted by the outbreak.
Cadden was the president and part owner of the New England Compounding Center.
NECC shipped thousands of vials of contaminated methylprednisolone to health facilities across the country.
Cadden already has been convicted of racketeering, conspiracy and mail fraud charges in federal court, but a jury declined to convict him of racketeering second degree murder.
The change of venue is only one of several motions filed in behalf of Cadden and co-defendant Glenn Chin. Other motions raise issues of double jeopardy and a challenge to the decision of a district court judge sending the case to the circuit court.
Here is the livestream link for the Thursday hearing:
https://www.youtube.com/channel/UC3oBtCVpxXoTZplfTP1zWmg
Contact: wfrochejr999@gmail.com.

FDA Issues Compounding Guidance

By Walter F. Roche Jr.

Unsealed or loose ceiling tiles in production areas, using outdated disinfecting agents and visible microbial contamination: those were just some of the things seen by federal inspectors examining drug compounders across the country.
In a 12-page final guidance issued late last week, officials of the U.S. Food and Drug Administration, acknowledged that the agency does not inspect the vast majority of drug compounding operations.
The guidance, which is nearly identical to a proposed version issued two years ago, is yet another example of government efforts to avoid a repeat of the 2012 fungal meningitis outbreak which sickened hundreds and killed more than 100.
The outbreak was traced to a Massachusetts drug compounding company that had successfully evaded federal regulation as it shipped out thousands of vials of a spinal steroid laced with deadly fungus.
Compounding is preparation of a custom formulation of a medication to fit the unique need of a patient which cannot be met with commercially available products. The 12-page FDA document is intended to serve as a guide to drug compounders on what standards the FDA expects them to meet to avoid unsanitary condition.
The guidance acknowledges that the adverse events from contaminated compounded drugs are very likely under reported and a large number of drug compounders are subject only to state regulation.
"The agency is often not aware of these pharmacies, their conditions and practices and potential problems with the quality and safety of their products," the guidance states.
The guidance urges state regulators to "take appropriate action" when unsanitary conditions are identified. It also asks those state regulators to inform the FDA of their findings.
The guidance does urge drug compounders to take immediate action when unsanitary conditions are discovered. Dr. Michael Carome of Public Citizen, which has pushed repeatedly for tighter regulation of compounders, said the guidance should help drug compounders in meeting expected standards.
"The numerous detailed examples of insanitary conditions provided in the guidance should assist compounding facilities in preventing, identifying and remediating insanitary conditions," Carome said.
While he said Public Citizen generally supports the guidance, it does not support a footnote in which the agency gives what appears to be a blanket exemption to drugs compounded in a doctor's office.
The footnote states that the "FDA generally does not intend to take action ...against a physician who is compounding a drug product, repackaging an FDA-approved drug product, or who is mixing, diluting, or repackaging an FDA-licensed biological product, provided that such production by the physician occurs in the physician’s office for in-office administration, to his patients."
Carome said Public Citizen had urged the FDA to drop the footnote during the extended comment period.
Contact: wfrochejr999@gmail.com

Chin Case to Investigative Unit

The Massachusetts Board of Pharmacy today voted to send the case of a convicted pharmacist to the agency's prosecution unit to determine whether disciplinary action is warranted.
The vote comes after attempts to reach a settlement agreement with Kathy S. Chin failed.
The board had proposed an agreement under which Chin would retain her pharmacist license but with restrictions.
Chin was convicted in federal court in 2019 on four felony counts of violating the Food Drug and Cosmetic Act. She was one of 14 persons connected to the New England Compounding Center who were indicted in 2014 following a two year probe of a deadly fungal meningitis outbreak.
According to state records Chin has a currently valid pharmacist license. She was sentenced to two years probation following conviction on the federal charges.

K. Chin Before Mass. Pharmacy Board

By Walter F. Roche Jr.

The Massachusetts Pharmacy Board is scheduled to vote Friday on a motion to refer the case of a convicted pharmacist to board prosecutors for possible disciplinary action.
The subject of the motion is Kathy S. Chin who was convicted in 2019 of four felony counts of violating the Food Drug and Cosmetic Act for her role at a now defunct compounding pharmacy. She was sentenced to two years of probation.
Chin was one of 14 people connected to the New England Compounding Center, the company blamed for the deadly 2012 fungal meningitis outbreak who were indicted following a two year federal probe.
Following her conviction state pharmacy board officials attempted to reach a settlement with Chin that would allow her to retain her license but with a series of restrictions.
According to board officials Chin never responded to the offer leading to the motion to refer her case to the prosecution unit for further adjudication.
Chin's conviction came after federal prosecutors presented evidence that she approved for shipment drugs prescribed for obviously fake named patients including Filet O Fish and Flash Gordon.
Under the proposed settlement Chin would have been barred from working as a compounding pharmacist and would have to work under the supervision of another pharmacist.
In addition her license would be on probationary status for three years.
Chin's husband Glenn already is serving an eight-year federal prison sentence following his conviction on racketeering, conspiracy and mail fraud charges. Glenn Chin has also been charged with 11 counts of second degree murder by the Michigan Attorney General and is awaiting trial.
Contact: wfrochejr999@gmail.com

Cadden, Chin Hearing Will Be On Line

An upcoming hearing for the two former pharmacists facing second degree murder charges can be viewed on-line or in person at the Livingston County courthouse in Howell, Mich.
Victims of the 2012 fungal meningitis outbreak were advised today that the Nov. 12 hearing on pre-trial motions would be accessible although there may be limits on those actually attending the 8:30 a.m. session before Judge Michael P. Hatty.
Chin and Cadden have been charged with 11 counts of second degree murder for their roles in the outbreak.
The hearing will be on a motion to move tha case to another county due to the large number of victims in Livingston County.
Cadden's lawyer has also filed a motion to have the charges dismissed due to double jeopardy. The two faced related charges in a federal criminal case in Boston, Mass. Two separate juries declined to convict them on second degree murder charges as predicate acts in a racketeering conspiracy. They were convicted on other charges.
Cadden was president and part owner of the New England Compounding Center, the company blamed for the outbreak. The company shipped thousands of vials of contaminated methylprednisolone acetate to health facilties across the country. Chin was a supervising pharmacist at NECC.
Here is the livestream link for the hearing:
https://www.youtube.com/channel/UC3oBtCVpxXoTZplfTP1zWmg
The case is being prosecuted by the Michigan Attorney General's office.

Deadly Outbreak was No Accident: AG

By Walter F. Roche Jr.

Calling the 2012 fungal menngitis outbreak a "pharmaceutical accident is ludicrous," an assistant Michigan Attorney General has charged in court papers.
The statement was contained in a recent filing in Livingston Circuit Court in which Assistant Michigan Attorney General Gregory Townsend was responding to motions filed in Barry J. Cadden's behalf seeking a change in venue for the upcoming trial. Cadden is also seeking to have second degree murder charges dismissed claiming they amount to double jeopardy.
Cadden and Glenn Chin have been charged with 11 counts of second degree murder for their roles in the deadly outbreak.
Cadden was president and part owner of the New England Compounding Center, the company blamed for the outbreak which ultimately took the lives of more than 100 patients. Chin supervised the NECC clean room where the contaminated drugs were produced.
Gerald Gleeson, Cadden's lawyer, has charged that it would be impossible for his client to get a fair trial in Livingston County because of the number of outbreak victims and their survivors who live there.
"A substantial portion of prospective jurors are likely to personally know a patient who actually received a contaminated Methylprednisolone injection," the motion states.
Gleeson's motion also cites multiple news stories in which victims from the area were quoted.
Calling the case "uniquely notorious," the motion states that there was "no precedent in Michigan for bringing murder charges for harms arising from a pharmaceutical accident."
Responding to the motion, Townsend argued that a request for a change in venue to another Michigan County was premature and should only be considered after a jury has been selected.
Gleeson's motion to have second degree murder charges dismissed cited the fact that a federal jury in Massachuetts had declined to find the second degree murder charges to be part of a racketeering operation.
The motion states that both the Michigan and U.S. Constitutions bar someone from being charged twice for the same offense.
Townsend, in reply, noted that Cadden wasn't specifically charged with second degree murder in the federal case. The patient deaths were so-called predicate acts under the racketeering charges.
Both Cadden and Chin were convicted of racketeering and conspiracy charges in the federal case. Cadden was given a nine-year sentence while Chin was given an eight year sentence.
Contact: wfrochejr999@gmail.com

Prosecutor Seeks Convictions in Compounding Case

By Walter F. Roche Jr.

A federal prosecutor told an appeals court panel today that not only was it possible for officials of a drug company to defraud the U.S. Food and Drug Administration in fact they succeeded.
"The conspiracy was successful,"U.S. Justice Department attorney Ross Goldman argued in a nearly one hour hearing in federal court in Boston, Mass.
Goldman was asking a three judge panel to reverse the decision of U.S. District Court Judge Richard G. Stearns who overturned unanimous guilty jury verdicts and dismissed the conspiracy charges against Gregory Conigliaro and Sharon Carter.
Conigliaro was vice president and part owner of the now defunct New England Compounding Center, the company blamed for a deadly 2012 fungal meningitis outbreak. Carter was NECC's director of operations.
Daniel Rabinowitz, Conigliaro's lawyer, stated that it was a legal impossibility for his client to defraud the FDA because the agency had effectively abdicated its authority over drug compounding firms like NECC.
Citing trial testimony Rabinowitz said the FDA had gone years and years without taking action against drug compounders.
He noted that when Colorado regulators raised questiona about NECC shipping drugs without patient specific prescriptions, the FDA deferred the matter to Massachusetts regulators.
Michael Pinneault, representing Carter,said internal uncertainty within the FDA about the legal authority over drug compounders led agency officials to stand down.
"The FDA was well aware of what was going on," Pinneault stated, adding that there was no evidence Carter had any interaction with federal regulators.
She had involvement "in every aspect" of the operation, Goldman reponded. He noted two top FDA officials testified that the agency had the authority over NECC all along.
Judge Kermit Lipez, questioned Pinneault about an FDA guidance on the agency's authority over drug compounder which he said seemed "very clear."
Carter and Conigliaro were among 14 persons connected to NECC who were indicted in 2014 following a two year investigation of the 2012 fungal meningitis outbreak, which ultimately took the lives of more than 100 patients.
NECC shipped thousands of vials of fungus riddled steroids to health providers across the country.
Contact: wfrochejr999@gmail.com

Cadden, Chin Michigan Hearing Set

By Walter F. Roche Jr.

A Michigan judge has scheduled a Nov. 12 hearing on two key motions filed by the attorneys for two former pharmacists facing 11 second degree murder charges.
The 8:30 a.m. hearing will give lawyers for Barry J. Cadden and Glenn Chin the opportunity to argue that their clients cannot get a fair trial in Livingston County because all of the victims lived in the county.
The second degree murder victims were among dozens of area residents injected with contaminated spinal steroids shipped from the Massachusetts drug compounding where Chin and Cadden worked.
The November hearing will also bring arguments from Cadden's lawyer charging that five of the charges must be dismissed because a jury in Massachusetts already has heard those charges and voted to reject them. The second degree murder charges were made by federal prosecutors as part of a racketeering conspiracy allegation.
The double jeopardy argument has been forwarded by attorney Gerald J. Gleeson.
The motion arguments will be heard by Livingston County Judge Michael P. Hatty. The hearing is expected to be held virtually, because the court house has been closed to the public due to the Covid-19 pandemic.
The double jeopardy and change of venue motions are just two of a half dozen pre-trial motions Hatty must rule on.
Contact: wfrochejr999@gmail.com

Conigliaro Appeal Set This Week

By Walter F. Roche Jr.

A three judge federal panel will hear arguments Tuesday on an appeal filed by federal prosecutors seeking to overturn a judge's dismissal order on a charge against a former drug company executive.
Federal prosecutors in Boston are arguing that the guilty charge on a conspiracy count against Gregory Conigliaro should be restored. A jury had returned a unanimous guilty verdict but U.S. District Judge Richard G. Stearns reversed the conviction on June 7 of last year.
The First Circuit Court of Appeals also will hear arguments from the attorney for Sharon Carter, who like Conigliaro worked at the New England Compounding Center, the company blamed for the deadly 2012 fungal meningitis outbreak. She held the title of director of operations.
Conigliaro was a vice president and part owner of NECC while Carter was employed as a pharmacist technician.
Due to the pandemic the court session set to begin at 9:30 a.m. will be held virtually since the courthouse is not open to the public.
Hearing the appeal will be Judges Sandra Lynch, Kermit Lipez and David J. Barron.
Conigliaro's lawyer, Daniel Rabinowitz, has argued that Conigliaro couldn't have conspired to defraud the U.S. Food and Drug Administration because agency officials were not even sure they had jurisdiction over NECC.
Carter's lawyer, Michael Pineault has made a similar argument.
Federal prosecutors have argued that the jury verdict should be upheld and that Conigliaro and Carter were motivated by greed.br /> Of the 14 NECC defendants indicted in late 2014, three are currently serving federal prison terms. One was acquitted of all charges.
Contact: wfrochejr999@gmail.com

Michigan Judge Sets Schedule for Cadden/Chin

By Walter F. Roche Jr.

A Livingston County judge has set a schedule for a series of pre-trial motions in the trial of two former pharmacists charged with 11 counts of second degree murder.
The seven motions, which include an anticipated request to move the long awaited trial to another county, will be spread out well into 2021 with the final session scheduled for May 13 of next year.
Six of the motions are expected to come from the lawyers for defendants Barry Cadden and Glenn Chin and one from the Michigan Attorney General's office which is prosecuting the case.
The schedule issued by Livingston Circuit Court Judge Michael P. Hatty follows an initial pre-trial conference last month. Hatty also has scheduled three additional status conferences on Dec. 4 of this year and March 19 and June 11 of next year.
The charges against Cadden and Chin come from state and federal investigations of the 2012 fungal meningitis outbreak caused by contaminated drugs shipped from the the New England Compounding Center, where Cadden and Chin worked.
Under Hatty's schedule the motion to change the location of the trial will be heard on Oct. 15. At the same session Hatty also will consider a motion to dismiss some or all of the charges because of double jeopardy. Both Cadden and Chin were charged with second degree murder in federal court and they were cleared of those charges as part of a racketeering charge.
The Michigan case, however, includes six additional second degree murder charges that were not included in the federal charges.
Defense attorneys are expected to argue that their clients cannot get a fair trial in Livingston County because all the victims lived in that county.
Other hearings set by Hatty's order include a motion to overturn District Court Judge Shauna Murphy's July order binding the case against Cadden and Chin over to circuit court for trial. That hearing is set for Nov. 19.
A Dec. 17 hearing is set for a motion to suppress evidence seized by Michigan investigators on a search warrant.
Another motion to exclude expert testimony by prosecution witnesses is set for April 15 of next year while a motion to exclude testimony by another unnamed witness is set for May 13 of next year.
The lone prosecution motion, a motion for joinder of the charges against both defendants, to assure they are tried together, is set for Feb. 18 of next year.
Contact:wfrochejr999@gmail.com

Outbreak Judge Gets National Award

By Walter F. Roche Jr.

The federal judge who presided over a massive case involving the claims of victims of a deadly 2012 fungal meningitis has won a national award for judges.
Awarded the Edward J. Devitt Distinguished Service to Justice Award was senior U.S. District Judge Rya Zobel.
The 88-year-old jurist was cited for her work both on the bench and on judiciary panels dealing with such issues as the adoption of data processing systems.
In nominating her for the annual award, judges on the federal court in Boston cited her "exceptional and distinguished career."
Zobel made several key rulings in the fungal meningitis litigation which resulted in some $140 million being distributed to over 2,000 victims or their survivors.
The last distributions to victims are scheduled for March.
The $140 million came from the former owners of the New England Compounding Center and related firms.
According to the nomination Zobel and her brother escaped from armed East German soldiers to escape from East Germany after their parents had been sent to Nazi prison camps. Eventually they secured passage to the United States.

Hospital Failed to Screen for Covid-`19

By Walter F. Roche Jr.

A suburban Philadelphia hospital failed to follow state and federal requirements in screening some 91 visitors to the 371-bed facility for coronavirus, according to a report by state Health Department officials.
The report dated Aug. 11 but only made public this week, states that Saint Mary Medical Center "failed to ensure all visitors were actively checked for temperatures and docmented in a log."
A review of hospital records for the first 10 days of August showed that for 91 of 172 visitors there was no documented evidence that these visitors had their temperatures taken."
The facility was not in compliance with state and federal Covid-19 guidelines, the report states.
In a plan of correction filed by the hospital, Saint Mary officials said they implemented an education program for employees on proper screening and maintaining the required log.
The hospital was cited in a separate report for failing to get proper informed consent from another patient. State surveyors were told hospital employees were unable to get a patient signature due to the Covid-19 pandemic.
"The facility failed to follow their policy for obtaining consents during the Covid-19 pandemic," the report states.
In yet another finding state surveyors cited the hospital for giving improper discharge instructions to a patient.
The patient was instructed not to remove nasal packing until the next day when a visit with an eye, ear and throat specialist was scheduled. The patient, however, had no nasal packing.
Hospital officials did not respond to a request for comment.
Contact: wfrochejr999@gmail.com

Oral Arguments Set in Conigliaro, Carter Appeals

By Walter F. Roche Jr.

An October date has been set for oral arguments in the government appeal of a ruling that cleared the part owner of a drug compounding firm of charges stemming from a deadly outbreak that ultimately took the lives of more than 100 patients.
A three judge panel will hear the appeal of the dismissal of a single conspiracy charge against Gregory Conigliaro at 9:30 a.m. on Oct. 27 in federal court in Boston. The hearing will be virtual as the courthouse has been closed to the public.
Arguments will be heard at the same time on a similar charge against former pharmacist Sharon Carter.
Conigliaro was part owner of the New England Compounding Center, the company that shipped thousands of contaminated vials of a spinal steroid to health providers across the country.
The charges against Conigliaro and Carter were dismissed in a June 7, 2019 decision by U.S. District Judge Richard G. Stearns. His ruling overturned unanimous guilty verdicts returned by a jury against both defendants.
In his ruling Stearns adopted the argument put forth by Conigliaro's lawyer; that it was a legal impossibility for Conigliaro to defraud the U.S. Food and Drug Administration because the agency itself was unsure of its legal authority over drug compounding firms like NECC.
In a 60-page filing Conigliaro's lawyer, Daniel Rabinowitz, has argued that it would be "unconscionable and unjust" to overturn Stearns' ruling. A similar argument was offered by Carter's lawyer, Michael Pineault.
In a 100-page filing federal prosecutors charged that Conigliaro and Carter were motivated by greed and their actions had "disastrous public health consequences."
The appeals court already has heard arguments on the case against Gene Svirskiy, another former NECC pharmacist, who is appealing his conviction on racketeering and mail fraud charges.
Svirskiy is already serving a 30 month sentence in federal prison.
The appeals court heard arguments on his case and two other ex-NECC pharmacists, Christopher Leary and Alla Stepanets on July 30. Decisions have yet to be issued on those three cases.
Contact:wfrochejr999@gmail.com

Schedule Discussed in Cadden/Chin Trial

By Walter F. Roche Jr.

Lawyers and prosecutors met today with a circuit court judge to discuss setting a schedule in the trial of two former pharmacists charged with 11 counts of second degree murder.
Judge Michael Hatty set a tentative schedule for some 60 pending motions filed by James Buttrey, the attorney for Glenn Chin, and Gerald Gleeson for Barry J. Cadden. Also at the session was Assistant Attorney General Gregory Townsend, who is prosecuting the case.
Under the tentative schedule hearings will stretch over 240 days and an actual trial could come late next year. Another status conference will be held in three months. Among the motions filed are motions to dismiss the charges altogeher or to limit the testimony that will be allowed during the actual trial.
Chin and Cadden have been charged in the deaths of 11 patients who died after being injected with contaminated drugs produced at the New England Compounding Center, the defunct company blamed for the deadly 2012 fungal meningitis outbreak.
The session was held in Hatty's chambers and was not available for viewing on the internet as had been anticipated.
Hatty is expected to issue a formal order officially setting the hearing schedule.
The two defendants were bound over for trial last month by District Court Judge Shauna Murphy following extended hearings.
The murder charges were filed by former Michigan Attorney General Bill Schuette.
Contact: wfrochejr999@gmail.com

Cadden, Chin Hearing on Internet

Here are the directions to view the Tuesday hearing in Howell, Mich. on the second degree murder charges against former pharmacists Barry Cadden and Glenn Chin. The hearing is scheduled to begin at 10 a.m. The session is called a "status conference." There will not be any witnesses. Go to www.livgov.com. Once in there, go to the little spy glass on the right hand side and type in Covid-19 emergency and hit “go”, it will bring up Covid-19 Emergency Court Information. Once in there, scroll all the way to the bottom of that page where you will find links to every courtroom. Click on Hon. Michael Hatty.

Cadden, Chin Michigan Hearing Set

By Walter F. Roche Jr.

A hearing is scheduled for next week in the pending criminal case against two former pharmacists charged in the deaths of 11 Michigan victims of the 2012 fungal meningitis outbreak.
Livingston County Circuit Judge Michael Hatty has scheduled a status conference at 10 a.m. on Tuesday (Sept. 15) in the cases against Barry Cadden and Glenn Chin.
The cases were sent to Circuit Court by District Court Judge Shauna Murphy on Aug. 18 who found that there was probable cause to believe the two were responsible for the 11 deaths.
Next week's conference could result in the setting of a schedule for pre-trial motions and ultimately a jury trial. Due to the Covid-19 pandemic the session will not be open to the public. Officials said they don't yet know whether the session will be accessible on-line.
Cadden was president and part owner of the New England Compounding Center, the company that shipped thousands of vials of conntaminated steroids to health care providers across the country. Chin was a supervising pharmacist in the NECC clean room where the fungus riddled methyilprednisolone acetate was produced.
The two were convicted in U.S. District Court in Boston with racketeering, conspiracy and mail fraud but were cleared of second degree murder charges.
Cadden has begun serving a nine-year federal prison sentence while Chin was sentenced to eight-years.
The two are currently being held at the Livingston County Jail.
Contact: wfrochejr999@gmail.com

Deadline Nears For Svirskiy Letters

By Walter F. Roche Jr.

Victims of the 2012 fungal meningitis outbreak have till Wednesday to contact federal prison officials if they have any objections to one of the outbreak defendants getting an early release from confinement.
The victims were notified by the federal Bureau of Prisons that Gene Svirskiy is seeking an early "compassionate" release from the federal prison in Ayer, Mass., where he is serving a 2.5 year sentence.
Svirskiy, a former employee of the New England Compounding Center, was convicted of racketeering, conspiracy and mail fraud. He was one of 14 persons affiliated with NECC who were indicted in late 2014 following a two year probe of the outbreak.
According to U.S. Justice Department officials over 100 patients have died following their injection with contaminated drugs produced by NECC. Over 700 patients were sickened by NECC drugs.
Svirskiy has made several attempts to gain an early prison release, citing an outbreak of Covid-19 at the prison where he is being confined. A request filed in U.S. District Court in Boston was turned down by U.S. District Judge Richard G. Stearns.
Svirskiy's currently scheduled release date is Aug. 26, 2021. If he is granted an early release he would serve the remainder of his sentence under home confinement.
According to the notice sent to victims Svirskiy subsequently petitioned the federal Bureau of Prisons to grant him a release. Victims opposing or supporting the early release should send letters to:
Federal Bureau of Prisons
BOP - FMC Devens
42 Patton Road
Devens, MA 01432
RE: GENE SVIRSKIY #96516-038

Ronzio Hearing Set for April 2021

By Walter F. Roche Jr.

A federal judge has set an April 6, 2021 date for the sentencing of a key prosecution witness in the trials of some 13 defendants who were indicted in the wake of a deadly fungal meningitis outbreak.
U.S. District Judge Richard G. Stearns set the date just a day after the lawyer for Robert Ronzio joined with federal prosecutors in requesting an indefinite delay in the sentencing. Stearns order setting the 2021 date came only after an earlier erroneous order was withdrawn.
Earlier Wednesday an order was docketed setting an April 2020 date for sentencing. Ronzio was head of sales for the New England Compounding Center, the company that shipped thousands of contaminated vials of methylprednisolone acetate to health providers across the country.
He was one of 14 indicted following a two year criminal probe of the deadly outbreak.
Federal prosecutors say more than 100 patients died after being injected with fungus infested NECC drugs. Over 700 other patients were sickened.
In a plea deal with federal prosecutors Ronzio entered a guilty plea to a single count of conspiring to defraud the federal government.
Ronzio's lawyer and federal prosecutors sought the sentencing delay because two closely related cases are on appeal to the First Circuit Court of Appeals and are not scheduled for oral arguments till the coming Fall. They asked for the sentencing to be delayed until after the appeals court rules.
In the case before the appeals panel, federal prosecutors are appealing a decision by Stearns to acquit co-defendants Gregory Conigliaro and Sharon Carter of the same charge that Ronzio admitted to.
Contact:wfrochejr999@gmail.com

Another Ronzio Sentencing Delay Requested

By Walter F. Roche Jr.

The sentencing of a key government witness in the criminal case stemming from a deadly fungal meningitis outbreak is likely to be delayed yet again under a joint motion filed by federal prosecutors and the witness's lawyer.
In a three-page motion filed today in U.S. District Court in Boston, the lawyer for Robert Ronzio and Assistant U.S. Attorney Amanda Strachan asked that the sentencing now scheduled for Nov. 3 be postponed indefinitely.
Ronzio's sentencing already has been postponed a half dozen times. He pleaded guilty to a single count of conspiring to defraud the federal government. He provided key prosecution testimony in multiple trials of defendants who were associated with the New England Compounding Center.
Ronzio was head of sales at NECC, the company blamed for the outbreak.
In the latest postponement motion federal prosecutors and Peter Hortsman, Ronzio's lawyer, asked that the sentencing be postponed until a pending appeal is resolved. In that appeal the prosecutors are asking the First Circuit Court of Appeals to overturn the acquittal of two of Ronzio's alleged co-conspirators, Gregory Conigiliaro and Sharon Carter.
U.S. District Judge Richard G. Stearns acquitted the two last year thus reversing guilty verdicts returned by a jury in late 2018.
Conigliaro was a vice president and part owner of NECC while Carter was director of operations. They were among 14 indicted in 2014 following a two year investigation of the deadly outbreak caused by contaminated NECC drugs.
Contact: wfrochejr999@gmail.com , who testified in multiple trials as a government witness,

Svirskiy Renews Release Request

By Walter F. Roche Jr.

A former pharmacist at a now defunct Massachusetts drug compounding firm has renewed his plea for a "compassionate release" from a federal prison where several cases of Covid-19 have been reported.
According to the federal Bureau of Prisons Gene Svirskiy, 39, has again asked to be released from the federal prison at Fort Devens, Mass. where he is serving a 2.5 year term following his conviction on racketeering, conspiracy and mail fraud charges.
Svirskiy has remained at the prison despite several prior pleas for release filed with the Bureau of Prisons and in U.S. District Court.
In his prior petitions, Svirskiy has asked that he be released to serve the remainder of his sentence under home confinement.
Svirskiy worked at the New England Compounding Center, the company blamed for the deadly 2012 fungal meningitis outbreak. He was one of 14 with ties to NECC indicted in 2014 following a two year probe of the outbreak.
In his petitions Svirskiy has cited the number of Covid-19 cases at Fort Devens. Federal prosecutors countered by pointing out that Svirskiy was not in the main prison where the cases were reported, but at an adjoining prison camp which had no Covid-19 cases.
According to the BOP web site there are currently no active Covid-19 cases at Fort Devens among inmates. There are two active cases among employees at the facility.
At one point BOP officials informed victims that Svirskiy's release was imminent, but that decision was eventually reversed.
In the notice to victims of the outbreak, the warden at Fort Devens said those wishing to comment on Svirskiy's latest petition face a Sept. 2 deadline. His scheduled release date is Aug. 26, 2021.
Contact: wfrochejr999@gmail.com

Outbreak Victims Pleased with Ruling

By Walter F. Roche Jr.
Victims of the 2012 fungal meningitis outbreak say they are pleased at the decision of a Michigan district court judge to put two former pharmacists on trial for 11 counts of second degree murder.
"I am very pleased with this outcome," said Peggy Nuerenberg, whose mother, Mary Plettl died in the outbreak.
Livingston County District Court Judge Shauna Murphy ruled Wednesday that there was sufficient evidence presented in the preliminary examination to send the case against Glenn Chin and Barry Cadden to circuit court for trial. The two are charged with 11 counts of second degree murder in the deaths of 11 Livingston County residents.
Cadden was president and part owner of the New England Compounding Center, the company that shipped thousands of vials of contaminated methylprednisolone acetate to Michigan and dozens of other states.
Chin, who worked directly under Cadden, was the supervising pharmacist in the clean room where the fungus laden steroid were produced.
Though Nuerenberg said she is looking forward to the trial, she said she was concerned that it might take place in a closed courtroom due to the pandemic. Wednesday's session before Murphy was closed to the public although it was livestreamed on You-tube.
"I am concerned about how this trial will proceed. I don't want any part of it to take place virtually," Nuerenberg added.
Donna Borton, whose husband was strickened after being injected with an NECC steroid, said she was looking forward to the trial.
"Now, not only the 11 victims named in the charges, but all victims get a second chance at seeing justice prevail. This was a long time coming," Borton said.
The Bortons and Nuerenberg were among those who attended preliminary examination hearings in Murphy's courtroom. That was before the Covid-19 pandemic which closed Michigan court sessions to the public.
The case is being prosecuted by Michigan Attorney General Dana Nessel.
“Putting profits ahead of concern for patient safety can have disastrous and tragic results,” Nessel said in a statement issued today. “We look forward to the next step in the pursuit of justice for these victims and their families.”
Cadden and Chin already have been convicted on federal racketeering, mail fraud and conspiracy charges and had already been sentenced to nine year and eight year sentences respectively, when the second degree murder charges were filed by former Michigan District Attorney Bill Schuette.
Contact: wfrochejr999@gmail.com

Cadden/Chin Bound Over on 2nd Degree Murder Charges

By Walter F. Roche Jr.
A Michigan judge today ordered two former Massachusetts pharmacists to face trial on 11 counts of second degree murder concluding that the evidence showed they were responsible for producing contaminated drugs that caused the deaths.
Judge Shauna Murphy concluded that the eleven died as a result of the deadly 2012 fungal meningitis outbreak caused by drugs produced by the New England Compounding Center where Barry Cadden and Glenn Chin, the two defendants, worked.
Murphy found probable cause to believe the two were responsible for the deaths of the 11 victims who died after being injected with methylprednisolone acetate contaminated with a deadly fungus.
Citing the testimony and evidence produced during a series of hearings in her court, Murphy concluded that the two defendants, by virtue of their positions, were well aware of the legal consequences of shipping contaminated drugs.
They "knowingly sealed the fate of the 11 victims," Murphy said,noting that all 11 suffered painful deaths.
Victim by victim, she detailed how they were injected with the contaminated drugs, became sickened and died. She cited autopsy results in each of the cases and the conclusion that contaminated steroids caused their painful deaths.
She noted that Cadden as president and part owner of NECC was directly in charge of the clean room where Chin was the supervisor and the one who actually compounded the drugs.
Cadden and Chin, both dressed in orange jump suits, were present for the hearing which was closed to the public because of Covid-19 pandemic. They are being held at the Livingston County Jail.
Lawyers for the two defendants made brief presentations with Gerald Gleeson appearing for Cadden and James Buttrey for Chin. Assitant Attorney Gregory Townsend acted as prosecutor. The hour long session was livestreamed on You Tube.
Gleeson argued that the Michigan charges amounted to double jeopardy because both Chin and Cadden were cleared of second degree murder charges in federal court in Boston.
There was no evidence that Cadden was involved in producing the tainted drugs, he said, adding that the prosecution failed to show his client acted with malice.
Buttrey, ackowledged the "enormity of the devastation" caused by the outbreak but argued that the evidence did not support the charges.
"Does Glenn Chin bear moral responsibility? The answer is yes" Buttrey said, adding that there was zero evidence that Chin was criminally liable.
Townsend, in rebuttal, said there was overwhelming evidence" of Cadden and Chin's culpability.
Murphy, who read from her lengthy decision, cited the fact that both Chin and Cadden were licensed pharmacists and were required to follow national standards for drug compounding set by the U.S. Pharmacopeia. The evidence, she said, "clearly showed" Chin did not comply with the standard.
Both Cadden and Chin were convicted in federal court in Boston on racketeering, conspiracy and mail fraud charges. Cadden was given a nine year sentence while Chin was given an eight year sentence. Two separate juries declined to convict them on second degree rackteering murder charges.
Though Gleeson argued that his client was facing double jeopardy with the Michigan charges, Murphy pointedly disagreed stating the the federal case involved second degree murder as a contributing or predicate act to racketeering. In addition she cited a ruling giving the state sovereignty to bring its own charges in such cases.
Under her order the cases will be sent to Livingston Circuit Court for trial.
The 11 victims are Donna Kruzich, Paula Brent, Lyn Laperriere, Sally Roe, Mary Plettl, Gayle Gibson, Patricia Malafouris, Emma Todd, Jennie Barth, Ruth Madouse and Karina Baxter.
Contact: wfrochejr999@gmail.com

Cadden/Chin Hearing Today in Howell, MI

To view todays's session which begins at 1:30 p.m.,go to www.livgov.com. Once in there, go to the little spy glass on the right hand side and type in Covid-19 emergency and hit “go”, it will bring up Covid-19 Emergency Court Information. Once in there, scroll all the way to the bottom of that page where you will find links to every courtroom. Click on Hon. Shauna Murphy. Contact: wfrochejr999@gmail.com

Study: Outbreak Victims Suffer Long Term Effects

By Walter F. Roche Jr.
A federally financed study of victims of a 2012 fungal meningitis outbreak has found that even months after the outbreak those victims who survived are facing long term after effects with some unable to perform basic daily activities.
The study, which was underwritten by the U.S. Centers for Disease Control and Prevention, followed some 440 victims of the outbreak which was caused by fungus laden steroids produced by a now defunct Massachusetts drug compounding firm.
The study followed the diagnosis and treatment of victims from several states including 24 from New Jersey 18 from Indiana, 11 from Tennessee and 10 from Michigan.
The study was published in the Open Forum Infectious Diseases.
At 12 months 68 percent of the study patients with a spinal or paraspinal infection had "persistent or worsening pain," the report states.
Of the 440 in the study group 123 has both a spinal/para spinal infection and meningitis. Ten had died and 72 per cent said pain persisted.
In addition to the effects of the original infection, the study found that the majority of patients treated with antifungal drugs, amphotericin and vorinconazole, suffered adverse effects including hallucinations, blurry vision and general fuzziness in the head.
Of those in the study group 51 per cent or 223 had spinal infections while 82 patients had suffered fungal meningitis or a stroke. A total of 123 patients had suffered both a spinal infection and meningitis.
Persistent pain and disability were seen at 12 months for most patients with spinal/para spinal infections, the study found.
Women comprised 58 per cent of the study group and the median age was 65. Six months after the outbreak 10 patients in the study group were suffering cognitive disfunctions.
"A surprising number of patients complained of feelings of fogginess and slowness in carrying out their day to day activities," the study states.
Some needed assistance to walk or had slurred speech up to 12 months after the outbreak and at the one year mark 64 patients continued to have unchanged or worsening pain.
A total of 117 patients had arachnoiditis, an inflammation of a membrane in the spinal column.
"Many patients with arachnoiditis had both epidural and intradural infection as well as involvement of para spinal infections," the report states.
"Arachnoiditis proved to be exceptionally difficult to treat," the report states.
The study found seven patients suffered relapses and four of the seven had initially contracted fungal meningitis.
The overall mortality rate was 8 per cent, but those suffering fungal meningitis were 8 times more likely to die than those with a spinal/para spinal infection.
But the study found that many of those with a spinal/para spinal infection "had persistent pain and inability to perform activities of daily living for at least 12 months."
Contact: wfrochejr999@gmail.com

Cadden, Chin Face Key Session

By Walter F. Roche Jr.
State prosecutors and lawyers for two former pharmacists will face off in a nearly empty courtroom next week as they make a final attempt to sway a Michigan judge on how to deal with 11 second degree murder charges.
Judge Shauna Murphy has indicated she may rule immediately on whether Barry Cadden and Glenn Chin should be bound over for trial on 11 counts of second degree murder.
Cadden and Chin have been charged with causing the death of 11 Michigan residents who were sickened after being injected with contaminated steroids shipped from the Massachusetts company where Cadden and Chin worked.
Due to the current pandemic the public will be unable to attend the hearing, but they can watch the proceedings on facebook. No more than 10 persons can be in the courtroom at the same time.
Peggy Nuerenberg, whose mother Mary Plettl died in the 2012 outbreak, said she was not disapointed about being unable to witness the Aug. 19 session. She did attend some of the previous pre-trial sessions.
She said that as things turned out Cadden and Chin ended up spending more time in the Livingston County Jail than in federal prisons in Pennsylvania.
"For me I find a great deal of satisfaction in this since the county jail is a much more barren and uncomfortable place than the federal prison," Nuerenberg wrote in an email. She said she is quite confident the two will be bound over for trial.
Cadden and Chin, who are being held in the Livingston County Jail in Howell, will be in attendance along with their lawyers; James D. Buttrey for Chin and Gerald J. Gleeson for Cadden. Prosecuting the case is Assistant Attorney General Gregory Townsend.
Cadden and Chin already have been convicted on federal racketeering and conspiracy and fraud chargse but two separate juries declined to convict them on second degree murder charges. Cadden is serving a nine year federal sentence while Chin is serving an eight year term. If convicted on the Michgan charges the two are likely to spend the rest of their lives in jail.
In recent filings in the case, Cadden and Chin's lawyers have argued that the charges should be dismissed because prosecutors have failed to show how the 11 victims died. They also contend that prosecutors failed to show that their clients acted with malice.
The prosecution has argued that the evidence presented ths far established that there was probable cause to believe the two committed second degree murder.
The 11 victims are Donna Kruzich, Paula Brent, Lyn Laperriere, Sally Roe, Mary Pettl, Gayle Gibson, Patricia Malafouris, Emma Todd, Jennie Barth, Ruth Madouse and Karina Baxter.
To view the Aug. 19 session which begins at 1:30 p.m.,go to www.livgov.com. Once in there, go to the little spy glass on the right hand side and type in Covid-19 emergency and hit “go”, it will bring up Covid-19 Emergency Court Information. Once in there, scroll all the way to the bottom of that page where you will find links to every courtroom. Click on Hon. Shauna Murphy. Contact: wfrochejr999@gmail.com

Judge Approves Chin Lawyer Shift

By Walter F. Roche Jr.
A federal judge has given swift approval to a request by a former pharmacist to have a different lawyer represent him in upcoming hearings where his eight year prison sentence could be increased.
U.S. District Judge Richard G. Stearns approved the request from Glenn Chin today.
Chin, who was convicted of rackeering, conspiracy and mail fraud charges had written to Stearns asking that James L. Sultan represent him in the upcoming proceedings rather than Stephen Weymouth, who represented Chin during his 2017 trial.
The upcoming hearings were ordered by a three judge panel from the First Circuit Court of Appeals which found that errors by Stearns during the trial necessitated a remand to determine if Chin and co-defendant Barry J. Cadden should have additional penalties imposed.
Cadden and Chin were connected to the New England Compounding Center, the company blamed for a deadly 2012 outbreak of fungal meningitis.
Cadden, who was president and part owner of NECC, is serving a nine year sentence following his conviction on similar charges.
Conact: wfrochejr999@gmail.com

Chin Seeks Lawyer Switch

By Walter F. Roche Jr.
One of the primary defendants in the criminal probe of a deadly fungal meningitis outbreak has written to the federal judge who presided over his trial asking him to appoint a different lawyer to represent him in upcoming hearings.
Glenn Chin, who was a supervising pharmacist at the New England Compounding Center, wrote to U.S. District Court Judge Richard G. Stearns asking him to appoint James Sultan, a Massachusetts lawyer, to represent him during hearings to determine whether further penalties should be imposed.
In the one-page letter Chin noted that normally the same lawyer who represented him during the original trial would also serve as his attorney during a so-called remand. Chin's lawyer in the original trial was Stephen Weymouth.
But Chin wrote that Sultan, who has been handling his appeal, was more familiar with the remand issues and would be better suited to represent him. He added that he had consulted with Sultan and the lawyer had agreed to take on the remand matters.
The remand to determine if further penalties should be imposed on Chin and co-defendant Barry Cadden, was ordered by a three judge appeals court panel.
Chin was convicted on chaarges of racketeering, conspiracy and mail fraud. Stearns sentenced him to eight years in prison.
The appeals court found that Stearns erred when he failed to consider that the patients who were sickened by NECC's fungus laden drugs were vulnerable victims. They sent the case back to Stearns with instuctions to reconsider the penalties based on their findings.
As a result Chin could face a longer sentence and an additional forfeiture order. Chin wrote the letter from the Livingston County Prison in Howell, Mich. where he and Cadden are awaiting trial on second degree murder charges brought by the state Attorney General. The two are charged in the deaths of 11 patients who died after being treated with contaminated drugs produced by NECC. Cadden was president and part owner of NECC. Chin was the supervising pharmacist in the clean room where the contaminated drugs were produced.
Contact: wfrochejr999@gmail.com

NECC Appeals Argued in Boston

"< By Walter F. Roche Jr." "Members of a three judge federal appeals court panel today raised repeated questions about the convictions of three former pharmacists who were convicted in the wake of the deadly 2012 fungal meningitis outbreak." "The questions arose in the appeals filed in behalf of the three former pharmacists who were employed by the now defunct New England Compounding Center, the company blamed for the outbreak which ultimately took the lives of more than 100 patients." "The three former pharmacists, Gene Svirskiy, Christopher Leary and Alla Stepanets were convicted on charges ranging from racketeering to mail fraud and violations of the Food Drug and Cosmetic Act." "Picking up on arguments raised by Leary's lawyer, Paul Kelly, the panel grilled U.S. Department of Justice Attorney Ross Brandon Goldman, about what evidence was presented in the U.S.District Court case that showed Leary even knew about the marketing materials that were used by NECC's sales force." ""There was no evidence he (Leary) was aware of the marketing materials," Kelly aserted."" "Goldman responded stating that Leary was a licensed pharmacist and would have known that NECC boasted of its compliance with requirements of a national standard for compounding pharmacies." "He noted that evidence showed that Leary allowed NECC drugs to be shipped well before any sterility test results could be completed. While the tests took 14 days, the drugs were shipped two days after they were processed, he said. "The three were among 14 people connected to NECC who were indicted in 2014 following a two year federal probe of NECC and the outbreak. Svirskiy, who is serving a 2.5 year federal prison sentence was convicted on charges of racketeering, conspiracy and mail fraud. Leary was convicted on charges of mail fraud and introducing misbranded or adulterated drugs into interstate commerce. He was sentenced to eight months of home detention. Stepanets was charged with distributing misbranded drugs into interstate commerce and was sentenced to a year of probation. None of the three were charged with producing the drugs that actually caused the 2012 outbreak. The three judge panel questioned Goldman about the Stepanet charges and noted that her lawyer had argued that there was no evidence that she ever saw the phony patient names that were used on NECC's order forms. Judge O. Rogeriee Thompson asked Goldman what evidence there was to show Stepanets knew about the phony names. Goldman cited trial testimony by an official of the Massachusetts Board of Pharmacy who told jurors that as a licensed pharmacist Stepanets would be required to verify the existence of a valid patient specific prescription and not a prescription made out for Wonder Woman, as shown during the trial. "They are not valid prescriptions," Goldman said. Contact:wfrochejr999@gmail.com

NECC RXs Appeal Their Convictions

By Walter F. Roche Jr.

Three former pharmacists for a defunct drug compounding firm are appealing their convictions on racketeering, conspiracy, mail fraud and related charges and will bring their cases later this week before a three judge federal appeals court panel in Boston.
All three were employed by the New England Compounding Center, the company blamed for a 2012 fungal meningitis outbreak that ultimately took the lives of over 100 unsuspecting patients. But Gene Svirskiy, Christopher Leary and Alla Stepanets were not charged with producing the drugs causing the outbreak but their role in producing other drugs that were adulterated, misbranded or prescribed for fictitious patients.
Alla Stepanets is appealing her conviction on multiple charges of introducing misbranded drugs into interstate commerce.
There was no evidence, her lawyer John Cunha argued in a recent brief, that she ever even saw the prescriptions made out for obviously fictitious patients like Filet O Fish. It wasn't her job to check patient names but to check that the correct drugs were being shipped.
"There was insufficient evidence to convict Ms. Stepanets," the brief concludes.
Svirskiy, who was convicted on racketeering, conspiracy and mail fraud charges, is serving a 30 month sentence in federal prison. His lawyer, Jeremy Sternberg, noted in a brief, that the charges against Svirskiy "had nothing to do" with the fungal meningitis outbreak.
And, he wrote, that Svirskiy never even met NECC's clients and therefore, could not have misrepresented to those health care providers the quality of NECC's products.
Svirskiy recently tried to get an early release from prison due to the Covid-19 pandemic, but his effort was rebuffed. He is scheduled to be released from federal prison on Aug. 26 of next year. Paul Kelly, Leary's lawyer, wrote that his client, like the other NECC employees "took cleaning very seriously."
Leary was convicted on charges of mail fraud and introducing misbranded or adulterated drugs into interstate commerce. He was sentenced to eight months of home detention.
Arguing that there was insufficient evidence to convict his client on mail fraud charges, Kelly wrote that Leary had no financial interest in NECC and had no knowledge of what NECC sales representatives were telling the company's client.
The hearing is set to be heard Thursday in the First Circuit Court of Appeals in Boston.
Contact: wfrochejr999@gmail.com

Third Payment to Victims in March

By Walter F. Roche Jr.

Victims of the 2012 fungal meningitis outbreak can expect checks totaling a little over $11 million in March of 2021, according to attorneys involved in distributing the remaining funds.
The $11 million is currently being held in escrow and still could face a challenge from the IRS.
The money represents a portion of the tax refunds gained by the former owners of the New England Compounding Center, the defunct company blamed for the deadly outbreak.
Paul Moore, the Boston attorney who oversaw the bankruptcy, said that in addition to the $11 million in escrow, another $425,000 has been released from escrow and has been forwarded to Lynne Riley, who is in charge of the distributions.
The tax refund money going to victims was part of a settlement reached in the bankruptcy.
Riley said the distributions will begin once the deadline for the IRS to challenge the refunds has passed. That will occur in March of 2021.
The $11 million is in addition to the nearly $100 million already distributed in two waves of payments to some 2,027 victims.
Still other payments totaling $48.8 million have gone to victims who were injected with tainted methylprednisolone acetate at three clinics, Inspira Health, Insight Imaging and the High Point Surgery Center.
Contact: wfrochejr999@gmail.com

Chin Offered Settlement on RX License

By Walter F. Roche Jr.

A former pharmacist at a drug compounding firm blamed for a deadly outbreak has been offered a settlement under which she can retain her license but with a series of restrictions.
The settlement offer, which was approved by the Massachusetts Board of Pharmacy on Friday, has yet to be acted on by Kathy S. Chin.
Chin was convicted on four felony counts of violating the Food Drug and Cosmetic Act and sentenced to two years probation. She was one of 14 people connected to the now defunct New England Compounding Center who were indicted in 2014 after a two year probe of the 2012 fungal meningitis outbreak.
Chin, whose husband Glenn is already serving an eight year sentence for his role at NECC, was charged with approving the shipment of drugs for obviously fictitious patients, like Filet O Fish and Flash Gordon.
Under the proposed settlement Chin would be barred from doing any drug compounding and would have to work under the supervision of another pharmacist. That supervisor would be required to file quarterly reports on her performance.
In addition she would not be allowed to act as a pharmacist in charge and would be in probationary status for three years. She would first have to pass a multi-state pharmacy exam.
Glenn Chin, who was a supervisory pharmacist at NECC, was convicted on racketeering, conspiracy and mail fraud charges.
According to federal prosecutors over 100 patients injected with NECC drugs ultimately died. The drugs were contaminated with a deadly fungus.

Cadden, Chin Guilty Verdicts Upheld

By Walter F. Roche Jr.

A federal appeals court in Boston, Mass. today upheld the 2017 conviction of the former head of a drug compounding company blamed for a deadly outbreak and left open the possibility that his nine year prison sentence could be increased and a $7.5 million forfeiture order increased.
In the 87-page decision the three judge panel rejected a series of arguments raised by lawyers for Barry J. Cadden, challenging various aspects of his conviction on racketeering, conspiracy and mail fraud charges. He is currently serving a nine year federal prison sentence and is awaiting trial in Michigan on second degree murder charges.
Examining the multiple challenges to Cadden's conviction the appeals panel concluded that a reasonable jury could have reached the same guilty conclusions.
Also upheld was the conviction of Glenn Chin, who was a supervising pharmacist at the same drug compounding firm.
While the court commended U.S. District Court Judge Richard G. Stearns for his handling of this "extremely complex case," the appeals court cited several errors by the judge who presided over Cadden's 2017 trial.
In one finding the court concluded that Stearns committed an error of law when he ruled that the victims of Cadden's crimes were limited to the health providers who purchased tainted drugs from the New England Compounding Center, the company blamed for the deadly 2012 fungal meningitis outbreak which ultimately took the lives of more than 100 patients.
"The district court determined that the patients were necessarily not victims at all," Barron wrote.
As a result the court never even considered whether they met the definition of vulnerable.
"The victims of that conduct could plausibly be the patients," the ruling states.
Under the decision the issue of vulnerability will be sent back to Stearns.
Also remanded to the district court were challenges to Stearns' sentence including whether Cadden should have had his sentence enhanced because his actions put patients in the risk of death.
While upholding all the convictions, the appeals court cited two actions by federal prosecutors during the trial that drew charges of prosecutorial misconduct from Cadden's lawyer, Bruce Singal.
"The most troubling allegation," the court said involved the testimony of a witness from a Michigan pain clinic, Wendy Huffman.
She testified that Cadden called her on Sept. 21, 2012 to tell her that fungus tainted drugs had been shipped by NECC. Other trial testimony showed that Cadden didn't call other clinics till several days later.
Ultimately records showed there were no calls from NECC to the Michigan clinic on Sept.21/
"The Hoffman testimony was potentially damning," the appeals court found adding that it shared concerns expressed by Stearns about the prosecution's conduct in presenting her testimony.
But the panel concluded that the jury ultimately was not swayed by Huffman's testimony.
The appeals court also cited allegations that the prosecution had a binder delivered to the jury room without the knowledge of Stearn's lawyers or the judge.
"It is troubling that this binder made its way into the jury for deliberation unbeknownst to Cadden or the district court," Barron wrote, adding that prosecutors at first claimed not to know where the binder was.
The panel concluded, however, that the contents of the binder was not prejudicial and summarized other evidence in the jury's hands.
On the sentencing issue the panel sent the issue back to Stearns to reconsider whether the nine year sentence should be enhanced because of the vulnerability of the victims and the fact that Cadden's actions put victims at the risk of death.
As for the forfeiture order the appeals court found that Stearns erred in not considering the millions of dollars Cadden's wife earned as part owner of NECC.
"At least some of her earnings can be traced to fraudulent sales," Barron wrote noting that her earnings went into a joint account with her husband.
In the Chin decision the appeals court also remanded the sentencing and forfeiture orders to Stearns for reconsideration on similar issues raised in the Cadden case. Chin too, could face a longer prison sentence and additional financial penalties.
Contact:wfrochejr999@gmail.com

Svirskiy Still in Federal Custody

By Walter F. Roche Jr.

In an apparent reversal federal officials have decided that a defendant in the criminal case stemming from a deadly 2012 outbreak cannot serve the remainder of his sentence under home confinement and he remains in a federal prison in Massachusetts.
Officials of the federal Bureau of Prisons said today that Gene Svirskiy, 39, will remain at the federal prison at Fort Devens to serve the remainder of his sentence.
Victims of the outbreak had been notified last month that Svirskiy, who was convicted of racketeering, conspiracy, mail fraud and violations of the Food Drug and Cosmetic Act, would be released on July 1 and after a brief stop at a halfway house, would be under house arrest at his Ashland, Mass. home to serve the remaining months of his 2.5 year sentence.
"Gene Svirskiy has a projected release date of Aug. 26, 2021 and is in the custody of the Federal Bureau of Prisons at the Federal Medical Center Devens," BOP spokesman Emery Nelson wrote in an email response to questions.
Svirskiy's attorney did not respond to a request for comment
Svirskiy was one of 14 people connected to the now defunct New England Compounding Center who were indicted following a two-year probe of the deadly 2012 fungal meningitis outbreak. Svirskiy, who was working as a licensed pharmacist was not charged with making the contaminated drugs that caused the outbreak but for other violations of federal law.
Lawyers for Svirskiy had asked U.S. District Judge Richard G. Stearns to allow Svirskiy to serve out his sentence under home confinement because of a coronavirus outbreak at the prisons. Federal prosecutors opposed the motion, noting that Svirskiy was in a separate section of the prison than the one where the infected prisoners were held.
Stearns denied the motion concluding that under federal law he could not grant the request.
Nonetheless victims of the outbreak were subsequently notified by email that Svirskiy would be released and allowed to complete his sentence under house arrest.
Victims contacted today said they had not been informed of the reversal.
Contact: wfrochejr999@gmail.com

Covid 19 Surfaces at Michigan Jail

By Walter F. Roche Jr.

Two inmates at the same jail where two major figures from the 2012 fungal meningitis outbreak are being confined have been diagnosed with the coronavirus, but jail officials say no other inmates were exposed to the virus.
Officials at the Livingston County Jail said that the two infected inmates had recently been tranferred from another jail and they had not been released into the general population when the infections were detected. They are currently under quarantine.
Among the other inmates at the jail are Barry Cadden and Glenn Chin, who are awaiting trial on second degree murder charges.
Cadden and Chin are already serving federal prison sentences following their conviction on racketeering and mail fraud charges. Cadden was president and part owner of the New England Compounding Center, the company blamed for the deadly 2012 fungal meningitis outbreak.
Chin was a supervising pharmacist in the clean room where fungus laden steroids were produced.
Another former NECC pharmacist, Gene Svirskiy, is scheduled to be released from federal prison later this week and will serve the remainder of his sentence under home confinement.
Svirskiy was serving his 30 month sentence at the federal prison in Ayer, Mass. where there has been a covid-19 outbreak.
U.S. Bureau of Prisons official approved Svirskiy's release citing an order from U.S. Attorney General William Barr. Previously U.S. District Judge Richard G. Stearns denied a request from Svirskiy that he be allowed to serve the remainder of his sentence under home confinement. His sentence is due to end in August of next year.
Contact: wfrochejr999@gmail.com

Outbreak Victims to Get Third Check

By Walter F. Roche Jr.

The trustee of a fund for victims of the 2012 fungal meningitis outbreak says that a third and final distribution is expected next year and $11.5 million already is in hand.
Details on the fund were included in an annual report filed today in U.S. District Court in Boston, Mass by Lynne Riley, the trustee. According to her report that final distribution is expected in March of 2021.
"Assuming all funds become available to the tort trustee, these are additional funds that will be included in the third and final distribution in 2021," the report states.
Riley is overseeing the distribution of funds set aside for victims of the fungal meningitis outbreak. The funds were amassed from the bankruptcy of the New England Compounding Center, the company that produced the fungus tainted spinal steroids that sickened hundreds of unsuspecting patients.
As of May 31, Riley reported, a total of 2,353 claims were filed by victims of the outbreak and 2,027 of those claims were fully or partially approved. Those payments totaled $97,659,209.
According to Riley 283 claims were fully denied.
Prior to the distribution to victims, claims from the Medicare and Medicaid programs and private insurers were processed for 1,976 victims, Riley reported, adding that 1,970 victims have now received two payments.
The trustee also reported that separate claims were also paid from settlements with individual health
providers- Inspira Health, Insight Imaging and High Point Surgery Center.
Nineteen claims totaling $2.6 million were paid from Highpoint while 47 claims totaling $12.1 million were paid from Inspira. A total of $34.1 million was paid for 177 claims against Insight.

Cadden/Chin Hearing Postponed

By Walter F. Roche Jr.

A final pre-trial hearing in the second degree murder case against two former Massachusetts pharmacists has been postponed till Aug. 19 due to coronavirus concerns.
Victims of the 2012 fungal meningitis outbreak were informed this morning that the hearing had been postponed.
Barry Cadden and Glenn Chin have been charged with second degree murder in the deaths of 11 Michigan victims of the outbreak. Cadden was a founder and part owner of the New England Compounding Center, the company that produced fungus riddled steroids that caused the outbreak. Chin was a supervising pharmacist in the clean room where the tainted drugs were produced.
The hearing, now rescheduled for Aug. 19 at 1:30 p.m., is the final session before District Court Judge Shauna Murphy rules on whether the case against the two will go before a jury.
Contact: wfrochejr999@gmail.com

Instructions to View Michigan Hearing

Here are the directions to view the Wednesday hearing in Howell, Mich. on the second degree murder charges against former pharmacists Barry Cadden and Glenn Chin. The hearing is scheduled to begin at 8:30 a.m.

Go to www.livgov.com. Once in there, go to the little spy glass on the right hand side and type in Covid-19 emergency and hit “go”, it will bring up Covid-19 Emergency Court Information. Once in there, scroll all the way to the bottom of that page where you will find links to every courtroom. Click on Hon. Shauna Murphy.

Svirskiy Gets Home Confinement

By Walter F. Roche Jr.

Just days after a federal judge ruled he should remain in jail, federal prison officials have decided that a defendant in the criminal case stemming from a deadly 2012 fungal meningitis outbreak can serve the remainder of his sentence under home confinement.
In a notice issued today, the federal Bureau of Prisons concluded that Gene Svirskiy can serve the remainder of his sentence at his Ashland, Mass. home. He has been serving his 30 month sentence at the federal prison in Ayer, Mass.
Late last month U.S. District Judge Richard G. Stearns had turned down a request from Svirskiy that he be allowed to serve the remainder of his sentence at home due to an outbreak of Covoid-19 at the Ayer facility.
Victims of the 2012 outbreak were notified of the decision to release Svirskiy in an email from the U.S. Justice Department.
According to the notice Svirskiy will be transferred on July 1 first to a halfway house and then to home confinement. He has some 20 more months to complete his sentence
The notice to victims states that under a directive from the U.S. Attorney General the Bureau of Prisons is required to place inmates who are at minimal risk of recidivating in home confinement.
Svirskiy, who worked as a pharmacist at the New England Compounding Center, was convicted on charges of racketeering, conspiracy, mail fraud and violations of the Food Drug and Cosmetic Act, for his role at the company blamed for the outbreak.
Contact: wfrochejr999@gmail.com

Ronzio Sentencing Delayed Again

By Walter F. Roche Jr.

The sentencing for the prosecution's star witness in the criminal case stemming from the deadly 2012 fungal meningitis outbreak has been delayed yet again and won't take place until nearly six years after the original indictments.
U.S. District Judge Richard G. Stearns, sitting in Boston, Mass., today set a Nov. 3 sentencing date for Robert Ronzio, the former sales director for the New England Compounding Center, the company blamed for the outbreak.
Ronzio, who entered a guilty plea to a single count of conspiring to defraud the U.S. Food and Drug Administration, appeared in multiple trials of his former NECC co-workers. Those included the trials of Barry J. Cadden, NECC's former president and part owner, and Glenn Chin, a former NECC supervising pharmacist.
Chin and Cadden were among 14 persons connected to NECC and its sales arm who were indicted in December of 2014 following a two year probe of the outbreak.
Chin and Cadden are now serving federal prison sentences following their conviction on racketeering, conspiracy and mail fraud charges. Cadden got a nine year sentence, while Chin was given an eight year sentence.
Ronzio's sentencing had been set for July 27. Prior to that an April 22 sentencing date had been set.
At the prior trials Ronzio testified at length about NECC's operations and how they led to the production of contaminated steroids that ultimately killed dozens of unsuspecting patients.
Cadden and Chin, meanwhile, are facing second degree murder charges in Michigan, where many of the outbreak victims resided. A pre-trial hearing is set for June 24 at 8:30 a.m. before Livingston County District Court Judge Shauna Murphy.
She is set to rule whether state prosecutors have presented sufficient evidence for the murder charges to be presented to a jury.
Contact: wfrochejr999@gmail.com

Cadden/Chin Seek Case Dismissal

By Walter F. Roche Jr.

Lawyers for the two former pharmacists facing second degree murder charges are asking a Livingston County district court judge to dismiss the charges because state prosecutors have failed to show how 11 patients died following their injection with fungus laden steroids.
In separate briefs filed in Michigan the lawyers for Barry Cadden and Glenn Chin say that the state Attorney General's office also failed to show that the two acted with malice in their roles in the 2012 fungal meningitis outbreak.
Assistant State Attorney General Gregory J. Townsend, meanwhile has argued that the two should be bound over for trial on the murder charges because probable cause has been shown that the two "committed these 11 counts of second degree murder."
District Court Judge Shauna Murphy has set a June 24 date for a final pre-trial hearing on the case.
Cadden was president and part owner of the New England Compounding Center, the company blamed for the outbreak. Chin was a supervising pharmacist in the clean room where the contaminated steroids were compounded.
In his final 37-page brief Townsend cited "compelling evidence" against the two "establishing the independent basis for conspiracy."
Stating that the charges were properly brought in Michigan, Townsend wrote that "the defendants knowingly created a very high risk of death or such harm would be a likely result of their actions."
Noting that the prosecution presented 16 witnesses and 80 exhibits, the brief also disputes the claim by Cadden's attorney that the charges should be dismissed because a federal jury already has declined to convict his client on second degree murder charges.
"The state should not now be allowed a do-over when all of the relevant evidence has already been presented and found wanting by a jury," wrote Gerald J. Gleeson, Cadden's attorney.
Charging that the attorney general "cherry picked" testimony to present "an exaggerated and inaccurate characterization of NECC's operations,"Gleeson also argued that it was Chin and not Cadden who prepared the tainted drugs.
Chin's lawyer, James D. Buttrey, however, argued that the drugs became contaminated after Chin had done the compounding and he noted that prosecutors failed to produce any evidence on just how the methylprednisolone acetate became contaminated.
Gleeson also raised that issue stating "The state has still failed to put up any evidence as to precisely how the contamination occurred."
In his brief Townsend stated that the both Cadden and Chin were responsible for allowing the unsanitary practices to exist in the preparation of drugs.
"Both defendants were well aware that these practices were both illegal and created a very high risk of death, Townsend's brief states.
"Production, profits and greed were more important than ensuring the health and safety of the public," the prosecution's brief states.
Townsend also disputed Gleeson's double jeopardy claim citing a recent U.S. Supreme Court ruling which held that a state government can pursue state charges even if the federal government prosecuted based on the same events.
Contact: wfrochejr999@gmail.com

Cadden/Chin Michigan Hearing Set

By Walter F. Roche Jr.

The final pretrial hearing in the second degree case against two former Massachusetts pharmacists has been set for June 24 in the Livingston District courtroom of Judge Shauna Murphy.
The session, set to begin at 8:30 a.m., will not be open to the public but interested parties can observe the session on YouTube.
The two have been charged with second degree murder in the deaths of 11 patients who were injected with contaminated steroids in the 2012 fungal meningitis outbreak. Following the hearing Murphy will rule on whether prosecution presented enough evidence for the two to be brought for trial.
Barry Cadden and Glen Chin were connected to the New England Compounding Center, the company blamed for the deadly outbreak. Cadden was president and part owner of NECC, while Chin was a supervising pharmacist in the clean room where the deadly methylprednisolone acetate was compounded.
The two already have been convicted on federal charges, but two separate juries declined to convict them on second degree murder charges.
Here are directions on viewing the session on YouTube:
Go to www.livgov.com. Once in there, go to the little spy glass on the right hand side and type in Covid-19 emergency and hit “go”, it will bring up Covid-19 Emergency Court Information. Once in there, scroll all the way to the bottom of that page where you will find links to every courtroom. Click on Hon. Shauna N. Murphy’s link and that should connect you directly to her courtroom.

Svirskiy Release Flatly Denied

By Walter F. Roche Jr.

A federal judge has denied the request of a former druggist convicted of racketeering to be released from a federal prison over fears of infection with the coronavirus.
In a four-page order issued this week, U.S. District Judge Richard G. Stearns concluded that the law does not give him the authority to order the release of Gene Svirskiy, who was employed at the Massachusetts drug compounding firm blamed for the 2012 fungal meningitis outbreak, which ultimately killed over 100 patient.
Svirskiy, who is serving a 30 month sentence at the federal prison in Fort Devens, Mass., had cited a growing number of infected patients at the facility.
Federal prosecutors, however, countered noting that the infections were in the main prison at Fort Devens, not the adjacent prison camp where Svirskiy is located. There were no Covid-19 cases at the prison camp, according to prosecutors.
Stearns issued the ruling without granting a hearing as his lawyer had requested.
"I see no reason for a hearing on this matter," Stearns wrote.
Noting that Svirskiy was young and in good health, Stearns said he clearly did not fit into the category of elderly or ailing prisoners eligible for early release. He noted that under the law requests like Svirskiy's can be granted only "for extraordinary and compelling reasons."
He said Svirskiy is scheduled for on Aug. 26, 2021 and is likely to be eligible for a sentence reduction for good behavior. He said he had no reason to disagree with the assertion that Svirskiy was a model prisoner as his lawyer contended.
Svirkiy was convicted on racketeering, mail fraud and violations of the Food Drug and Cosmetic Act for his actions at the now defunct New England Compounding Center.
Stearns noted that Svirskiy was not implicated "in the safety lapses that led to the contamination of three deadly batches of drugs."
Svirsky had asked that he be released from prison and allowed to serve the remainder of his sentence under home confinement.
Contact: wfrochejr999@gmail.com