Final Rulings Issued Before Cadden Trial

By Walter F. Roche Jr.

With jury selection set to begin in just days, a federal judge has ruled on a series of last minute motions in the trial on murder charges of the chief pharmacist for the company blamed for a deadly fungal meningitis outbreak.
U.S. District Judge Richard G. Stearns ruled that prosecutors cannot present evidence on a decade old case in which a patient died after being injected with a drug produced by the New England Compounding Center.
Prosecutors wanted to present details of the death in the upcoming trial of Barry Cadden, the part-owner and chief pharmacist for NECC. Jury selection in his second degree murder case is scheduled to begin Wednesday in Stearns' Boston, Mass. courtroom.
Barred by Stearns ruling are details of the 2004 death of New York resident William Koch who succumbed following an injection of a steroid produced by NECC. Koch's family later sued NECC and the case was settled out of court.
Stearns concluded the Koch case was too old and the details too inconclusive to be presented to jurors considering the 25 counts of second degree murder against Cadden.
The 25 victims were among at least 77 who died in the outbreak caused by fungus ridden methylprednisolone acetate (MPA) shipped by NECC to health providers in some 20 states.
Cited by Stearns in the Koch ruling was "the lack of conclusive evidence that the death at issue was caused by contaminated MPA, the absence of any finding or admission of liability" and the lack of any allegation against Cadden personally
In other rulings Stearns granted an extension till Wednesday for Cadden's lawyer to file proposed jury instructions and agreed that prosecutors will not be allowed to present evidence of Cadden's wealth, though they will be allowed to detail Cadden's ownership interest in NECC.
He also granted Cadden's motion to file some unspecified evidence under seal.
The 2012 fungal meningitis outbreak sickened some 778 patients, including the 77 that died.
Cadden is one of 14 NECC connected individuals named in a 2014 indictment by a federal grand jury following a two year federal investigation of the deadly outbreak. Two of the 14 have entered guilty pleas to reduced charges, while two others had charges dismissed.
Glenn Chin, who was a supervisory pharmacist at NECC, is scheduled to go on trial when Cadden's case is completed. Like Cadden he is facing racketeering and second degree murder charges.
The eight remaining defendants will face trial when Chin's case is completed.
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Victims Awaiting Word on Trial Attendance

By Walter F. Roche Jr.

With time running out victims of the 2012 fungal meningitis outbreak are awaiting word on whether they will be able to attend the upcoming criminal trials of employees and owners of the shuttered drug compounding firm blamed for the deadly outbreak.
The trial of Barry Cadden, the chief pharmacist and part owner of the New England Compounding Center, is set to begin with jury selection on Jan. 4. Opening arguments have been set for Jan. 9.
Cadden is facing multiple charges of second degree murder along with racketeering and other charges.
Co-defendant Glenn Chin, who also faces 25 second degree murder charges, will go on trial as soon as the Cadden trial is completed. Both trials will take place in U.S. District Court in Boston, Mass.
The U.S. Attorney's office has contacted victims or victims' survivors and asked them to fill out a questionnaire indicating whether they want to attend the trial. The victims and survivors are spread out over some 20 states.
The questionnaire states that the trial is estimated to run three to four months and indicates there may be a limit on the number of days victims will be able to attend. Other questions include whether or not the victim will be attending alone or with a relative or support person.
The questionnaire was sent out before U.S. District Judge Richard G. Stearns granted a motion by Cadden to sever his trial from Chin's.
Initially the office had indicated victims had the option of witnessing the trial in person or on closed circuit television in a local federal court house. More recently, however, victims were informed that the closed circuit option would not be available.
In the latest communication victims were told a decision would be made soon on how many could attend and how long they would be able to do so. Travel and accommodations will be paid for by the government.
Another question for victims is whether or not they'll be allowed to attend both the Cadden and Chin trials.
A third trial for the remaining eight defendants is set for early April.
Cadden's trial is likely to be shorter as his attorney has stated he will not dispute the prosecution's claim that drugs shipped from NECC caused the death and illnesses. Chin, meanwhile, has stated that he only recently learned that Cadden plans to blame him, and him alone, for the shipment of fungus loaded steroids.
The 2012 fungal meningitis outbreak sickened some 778 patients. At least 77 of them died.
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Judge Denies Cadden Dismissal Motion

By Walter F. Roche Jr.

U.S. District Judge Richard G. Stearns has denied a last minute dismissal motion on second degree murder charges filed in behalf of Barry Cadden, the former part owner of a drug company blamed for a deadly fungal meningitis outbreak.
In an order issued in U.S. District Court in Boston, Mass. Stearns concluded that the indictment of Cadden "states the essential elements of second degree murder."
Bruce A. Singal, Cadden's attorney, filed the dismissal motion earlier this month. Cadden is scheduled to go on trial Jan. 4 on charges including 25 counts of second degree murder. Singal had argued there was insufficient evidence to prove the murder allegations.
He also had asked Stearns, for a second time, to force the U.S. Attorney to disclose the specific instructions prosecutors gave to the grand jury that issued the indictment in late 2014.
"There is no potential deficiency with the legal instructions to the grand jury that cannot be cured at trial," Stearns added.
The judge, in a separate brief decision, defended a recent decision separating the trials of Cadden and codefendant Glenn Chin, who also faces the second degree murder charges.
Stearns wrote that the severance order will stand, citing the competing defenses raised by the two defendants. He said that a decision on what evidence of the deaths will be allowed at trial could be addressed either at trial or by a motion to limit the death evidence.
Cadden previously agreed to stipulate that the 25 deaths were caused by the injection of those patients with drugs produced at the New England Compounding Center, the entity blamed by health regulators for the outbreak.
He also deferred action on a motion by prosecutors to block from the Cadden trial evidence of a settlement of civil suits brought by outbreak victims. Cadden and other former owners of NECC contributed nearly $50 million to that settlement.
"The court is not certain, in any event, what use defendant would have for the evidence as it might otherwise tend to imply an admission of guilt," Stearns concluded.
Chin's trial is set to begin as soon as Cadden's is completed. Other NECC defendants are scheduled for trial in April.
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Judge Denies Cadden Dismissal Motion

By Walter F. Roche Jr.

U.S. District Judge Richard G. Stearns has denied a last minute dismissal motion on second degree murder charges filed in behalf of Barry Cadden, the former part owner of a drug company blamed for a deadly fungal meningitis outbreak.
In an order issued in U.S. District Court in Boston, Mass. Stearns concluded that the indictment of Cadden "states the essential elements of second degree murder."
Bruce A. Singal, Cadden's attorney, filed the dismissal motion earlier this month. Cadden is scheduled to go on trial Jan. 4 on charges including 25 counts of second degree murder. Singal had argued there was insufficient evidence to prove the murder allegations.
He also had asked Stearns, for a second time, to force the U.S. Attorney to disclose the specific instructions prosecutors gave to the grand jury that issued the indictment in late 2014.
"There is no potential deficiency with the legal instructions to the grand jury that cannot be cured at trial," Stearns added.
The judge, in a separate brief decision, defended a recent decision separating the trials of Cadden and codefendant Glenn Chin, who also faces the second degree murder charges.
Stearns wrote that the severance order will stand, citing the competing defenses raised by the two defendants. He said that a decision on what evidence of the deaths will be allowed at trial could be addressed either at trial or by a motion to limit the death evidence.
Cadden previously agreed to stipulate that the 25 deaths were caused by the injection of those patients with drugs produced at the New England Compounding Center, the entity blamed by health regulators for the outbreak.
He also deferred action on a motion by prosecutors to block from the Cadden trial evidence of a settlement of civil suits brought by outbreak victims. Cadden and other former owners of NECC contributed nearly $50 million to that settlement.
"The court is not certain, in any event, what use defendant would have for the evidence as it might otherwise tend to imply an admission of guilt," Stearns concluded.
Chin's trial is set to begin as soon as Cadden's is completed. Other NECC defendants are scheduled for trial in April.
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Key NECC Defendant Enters Guilty Plea

By Walter F. Roche Jr.

A key figure in the investigation of a deadly fungal meningitis outbreak has entered a guilty plea and has agreed to give critical testimony in upcoming trials against his former colleagues.
The guilty plea to conspiracy to defraud the U.S. Food and Drug Administration was entered by Robert Ronzio, 42, the former national sales manager for the New England Compounding Center, the company that shipped thousands of vials of steroids laden with deadly fungus.
Ronzio, a North Providence, R.I. resident, admitted to working with other sales staffers to create phony lists of patients who supposedly had been issued valid prescriptions for the steroids NECC was shipping to health facilities across the country.
"Specifically Ronzio admitted that NECC sales representatives requested that customers send in a list of patient names with their orders," federal prosecutors said in announcing the plea deal.
The ruse was designed "to make it appear to federal and state regulators that NECC was dispensing drugs pursuant to valid patient-specific prescriptions when in fact it was not."
Evidence produced in related civil cases showed that the patient names submitted by one clinic included "Donald Duck"
Ronzio's plea was entered before U.S. District Judge Richard G. Stearns who set a Sept. 27 date for sentencing. The maximum sentence for the single charge is five years and a fine of $250,000, but prosecutors have agreed to recommend a lighter sentence dependent on Ronzio's continued cooperation.
 Ronzio's scheduled sentencing will be well after nine other defendants, including Barry Cadden and Glenn Chin, will have faced trial. Cadden is scheduled to go on trial Jan. 4 on charges including 25 counts of second degree murder. Chin's trial on the same murder charges will begin as soon as Cadden's ends.
The 2012 outbreak sickened 778 patients killing at least 77 of them.
According to prosecutors Ronzio has admitted that Cadden, the chief pharmacist and part owner of NECC created ratios of patient names to match the number of doses being shipped to specific customers.
"The MAX total number of units per patient must make sense," Cadden told Ronzio, according to prosecutors, adding "I must be able to logically explain to a regulator why we processed X# of units per patient."
"Ronzio admitted the reason for these work-around methods was to maintain NECC's status as a pharmacy and avoid heightened regulatory oversight of the FDA," prosecutors stated, adding that NECC was actually acting as a drug manufacturer.
Ronzio, Cadden and Chin were among 14 named in a 131 count indictment issued by a federal grand jury in late 2014 following a two year federal probe. According to the indictment Ronzio sent an email to sales staffers at an affiliated company, Medical Sales Management, warning them to avoid using certain terms that would trigger federal charges.
In one email, entitled "HUUUUUUGGE IMPORTANCE," Ronzio wrote, "Do not give ratios. It's the wrong thing to say period!!!! I cannot stress this enough to all of you. Its (cq) will be a fatal error for you."
Two of the 14 defendants recently entered guilty pleas to reduced charges. Two others had charges dismissed. Besides Cadden and Chin, the remaining defendants are scheduled for trial in April.
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Judge Approves Payment of Legal Fees

By Walter F. Roche Jr.

A federal judge has approved the payment of legal fees and expenses totaling $6.25 million for a group of lawyers who represented victims of the deadly 2012 fungal meningitis outbreak.
In a two-page order issued Monday U.S. District Judge Rya Zobel approved the compromise payment request that was hammered out during a Dec. 8 session in her Boston, Mass. courtroom. Under that compromise the attorneys will get only 50 per cent of the originally requested amount of $12.5 million.
Zobel had suggested the 50 per cent figure after lawyers for some of the victims raised questions about lawyers getting all of their fees while victims were only getting half of what they eventually expect to collect.
The payments will come from a trust fund estimated to range from $130 million to $157 million that was amassed in the bankruptcy of the New England Compounding Center, the defunct company blamed for the outbreak that took the lives of 77 people.
Zobel's order authorizes the trustee of the fund, Lynne F. Riley, to distribute the lawyers' payments only if "all or virtually" all of the initial payments have been made to qualified victims. Outbreak victims had to submit documentation by a Dec. 15 deadline in order to be assured payment before the end of the calendar year.
The lawyers getting paid from a so-called common benefit fund were credited with doing work that benefited all the victims of the meningitis outbreak.
According to a report from Riley filed Dec. 8, payments had been made to 462 victims. Another 28 had been finally approved for a total of 490. A total of 2,340 claims were filed but 177 of them had been finally rejected. She reported that 1,981 had been fully or partially approved.
The average payment for the 462 who had received checks was $15,828.64. The payments to victims as of that date totaled $7.3 million.
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Judge Sets Dates in NECC Criminal Case

By Walter F. Roche Jr.

Opening arguments in the murder case against Barry Cadden, part owner of a defunct drug company, are tentatively scheduled for Jan. 9 in U.S. District Court in Boston, Mass.
In a recent order U.S. District Judge Richard G. Stearns also set aside three days, Jan. 4-6, for jury selection in the case.
In addition Stearns has ruled that the trial of Cadden's co-defendant, Glenn Chin, will follow immediately after the Cadden case has concluded.
The scheduling order follows Stearns decision last week to grant the two defendants separate trials.
Cadden's lawyer, Bruce A. Singal, requested that the two cases be severed in a sealed motion.
In his decision Stearns cited the conflicting strategies of the two, both facing 25 counts of second degree murder among other charges.
Cadden and Chin are among 14 indicted in late 2014 following a two year investigation of a fungal meningitis outbreak that sickened 778 patients in some 20 states. At least 77 of them died.
Cadden, through his lawyer, has conceded that 25 of those deaths were caused by doses of methylprednisolone acetate shipped from the New England Compounding Center in Framingham, Mass. State and federal officials concluded the vials of the steroid were infested with fungus due to unsanitary conditions at NECC.
Cadden, however, has indicated he intends to blame Chin  and others for the deadly outbreak of fungal meningitis.
Stearns cited the "antagonistic defenses" as a factor leading to his reluctant decision to split the two cases.
Cadden was a party owner of NECC, while Chin was a supervising pharmacist.
Two of the remaining defendants have entered guilty pleas to reduced charges, while two others had charges dismissed.
The remaining defendants are scheduled for trial in April.
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