Cadden-Chin Michigan Case on Hold

By Walter F. Roche Jr.

With appeals to the Michigan Supreme Court pending a Livingston Circuit Court Judge has agreed to delay moving ahead towards a trial in the cases of two former pharmacists charged with second degree murder.
Judge Michael Hatty agreed to the delay today in the cases of Glenn Chin and Barry Cadden following a brief session in the county courthouse.
The two were charged with 11 counts of second degree murder for their roles in the deadly 2012 fungal meningitis outbreak. The 11 victims died after being injected with fungus infested steroids produced at the Massachusetts company where both worked.
Hatty agreed to the delay following the disclosure that attorneys for the two defendants are appealing a decision of his to the state Supreme Court.
The appeals are questioning Hatty's decision that there was sufficient evidence to send the case to trial. A ruling by Judge Shauna Murphy made the initial finding that there was sufficient evidence to bind the two over to face the murder charges.
Hatty did set a date for another status conference on Sept. 24 at 10 a.m.
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Michigan Prosecutor Off the Cadden/Chin Case?

By Walter F. Roche Jr.

A hearing is scheduled for this week in the murder cases against two pharmacists, but apparently the chief prosecutor will not be there.
According to a spokeswoman for Michigan Attorney General Dana Nessel, Assistant Attorney General Gregory Townsend has been suspended from his docket, pending an investigation into allegations that he failed to disclose plea deals cut with three jailhouse snitches in the trial of a man charged with felony murder in the deaths of five children.
Asked if Townsend will be at the status conference scheduled for Friday in the cases against Barry J. Cadden and Glen Chin, Attorney General spokeswoman Kelly Rossman-McKinney said that another assistant attorney general, Denise Hart, remains assigned to the case. She said she did not know if any other attorneys have been assigned to the case.
Another spokeswoman for Nessel, Lynsey Mukomel, said the agency will conduct a comprehensive audit of Townsend's work. The allegations against Townsend stem from a case more than two decades ago when an Oakland County man was charged with arson and felony murder in the death of five children.
Townsend was the lead prosecutor for the Oakland County District Attorney on the case and apparently did not disclose that jailhouse snitches, who were primary witnesses against the defendant, had been given deals promising reduced charges, no charges or reduced sentences. Juwan Deering, the defendant, has been in jail for 14 years following his conviction on those charges.
The hearing Friday is a status conference before Circuit Court Judge Michael Hatty. The 11 murder charges against Chin and Cadden stem from their roles in the 2012 fungal meningitis outbreak caused by drugs shipped to Michigan by the New England Compounding Center.
Cadeen was president and part owner of NECC, while Chin was a supervising pharmacist at the now defunct Massachusetts company.
The case landed back in Hatty's court after the Michigan Court of Appeals turned down appeals filed by lawyers for Cadden and Chin. They had challenged the decision to bind the case over for trial.
A further appeal to the Michigan Supreme Court is expected and that could trigger at least a temporary halt to proceedings before Hatty.
In prior hearings in the Cadden and Chin case several former NECC employees testified for the prosecution. No charges were brought against those employees and there was no disclosure of any plea deals with those individuals from the state Attorney General's office.
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11-year Prison Sentence in Drug Compounding Fraud

By Walter F. Roche Jr.

A Georgia man has been sentenced to an 11-year federal jail term following his conviction on charges stemming from a scheme to defraud the federal government through the purchase of unnecessary compounded drugs.
Eric Santos was given that sentence late last week in U.S. District Court in Miami, Fl. follwoing his guilty plea on charges of conspiracy to commit ehealthcare fraud.
According to prosecutors Santos paid physicians to write prescriptions callling for specially medicated creams. He then steered those prescritions to a Florida drug compounding firm, Patient Care America.
According to court records Santos then received kickbacks totaling $7 million from Patient Care America.
The drugs were billed to Tricare, the federal program which provides healthcare to members of the military and their dependents. Prosecutors say the special medications were not medically necessary.
In addition to the prison sentence Santos was ordered to pay $11.8 million in restitution and to forfeit $7.6 million.
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Chin Pleads for Original Sentence

By Walter F. Roche Jr.

Charging that he has been subjected to racist taunts while confined to a Michigan jail, a convicted pharmacist is asking a federal judge not to increase the eight year prison sentence he is serving for conviction on racketeering, conspiracy and mail fraud charges.
In a 29-page filing today in U.S. District Court in Boston, Mass., lawyers for Glenn A. Chin, 53, said the 17.5 year sentence proposed by federal prosecutors was not justified despite an appeals court ruling opening the door to a lengthier sentence.
The motion filed by Chin's lawyer James Sultan charged that Chin's role in the deadly 2012 fungal meningitis outbreak did not justify more than doubling his original sentence.
The sentencing of Chin and co-defendant Barry J. Cadden will be the subject of a July 7 hearing before U.S. District Court Judge Richard G. Stearns, whose sentencing ruling was questioned by the 1st Circuit Court of Appeals.
Chin's motion also challenges the appeals court ruling that called on Stearns to consider thousands of victims of the fungal meningitis as vulnerable victims, which would could make them eligible for $82 million in restitution.
"The patients were not unusally vulnerable," the brief states, adding that the prosecution failed to prove that any act by Chin caused the drugs to become contaminated with deadly fungi.
"The patients were not victims of Chin's conduct," the filing states.
Noting that Chin was transferred to Michign in December of 2019 from a federal prison in Pennsylvania where he was serving his eight year federal sentence," the filing states that Chin "has languished ever since."
Arguing that conditions in the Michigan jail are "far worse," the filing states Chin has "been subjected to racist taunts and threats" because of his Chinese heritage. Nonetheless, the filing continues, "Chin has consistently followed the rules and has had no disciplinary infractions."
To back up that claim, an attachment to the filing includes a statement from a Livingston County Sheriff's office employee, Roy Asquith, stating that Chin had been involved in no incidents during his 506 days at the county jail and was "a very compliant inmate."
The filing disputes the prosecution claim that Chin was a major figure in what went on at the New England Compounding Center. Instead, Sultan wrote that Chin was a salaried employee who merely followed orders issued by Cadden.
"Cadden not only knew what was going on, he directed it," the filing states.
Concluding that Chin was destitute and will never be able to pay restitution, the filing concludes by stating that ordering millions of dollars in restitution would be a waste of time and "a long winding road to nowhere." Contact: wfrochejr999@gmail.com

Michigan Prisoners Offered Covid-19 Vaccine

By Walter F. Roche Jr.

All prisoners at the Livingston County Jail have been offered a Covid-19 vaccine, but only 50 have taken up the offer, according to an official of the county sheriff's department.
The jail has a maximum capacity of 411 inmates and among the current prisoners are Barry J. Cadden, 54, and Glenn A. Chin, 53, who are awaiting trial on second degree murder charges.
Under Sheriff Jeff Warder said in an email response to questions that only two inmates at the facility have tested positive for Covid-19 and those prisoners had been transferred from a federal facility.
When those transfers occurred Cadden and Chin were already in the Livingston County facility.
We confirmed they did not contract the virus while being lodged at our facility," Warder said, adding that the two inmates were never exposed to the general population.
He did not imediately respond when asked if Cadden and Chin were among those vaccinated. Chin and Cadden have been charged with 11 counts of second degree murder for their roles in the 2012 fungal meningitis outbreak.
They already have been convicted of racketeering, conspiracy and mail fraud in federal court. Cadden, who was president and part owner of the New England Compounding Center, the company blamed for the outbreak.
Chin was a supervising pharmacist at NECC and oversaw activities in the clean room, where fungus riddled steroids were prepared.
Two separate federal juries declined to convict the two of racketeering second degree murder.
Both Chin and Cadden are expected to appeal a recent ruling from the Michigan Court of Appeals, which turned down a motion that would have effectively eliminated the murder charges.
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NECC Defendant Nearing Release

By Walter F. Roche Jr.

The 30-month federal prison sentence of a pharmacist is nearing an end and records filed in U.S. District Court in Boston, Mass.indicate he plans to go to work at a pharmacy run by a member of the state board regulating pharmacies in Massachsetts.
Gene Svirskiy, 40, is due to be released from the federal prison facility in Devens, Mass on Aug. 26.
An early release assessment form filed in Svirskiy's criminal case states that upon his release Svirskiy is slated to go to work at the Birds Hill Compounding Pharmacy in the Boston suburbs. Andrew Stein is listed as the contact person.
Stein is also a current member and former chairman of the Massachusetts Board of Pharmacy, which regulates pharmacists and pharmacies in the state.
Svirskiy's lawyer did not respond to questions about his client's future employment plans. Stein did not respond either.
Svirskiy was given the 30-month sentence following his conviction on racketeering, conspiracy and mail fraud charges. He was one of 13 people connected to the New England Compounding Center to be convicted following a series of trials. The company was the source of contaminated steroids that ultimmately killed over 100 patients.
Though he worked in one of NECC's clean rooms, Svirskiy never handled the fungus laden steroids blamed for the outbreak.
Svirskiy never lost his pharmacist license but under a 2019 agreement with the state board he agreed to a series of restrictions including a 30 month suspension of his license beginning on July 10, 2019. He also is barred from engaging in any sterile compounding unless he has the express approval of the board.
When the suspension expires Svirskiy's license will be in probationary status until Jan. 10, 2025.
That means he could act as a pharmacist early next year provided he first passes a competence examination (Multistate Pharmacy Jurisprudence Examination).
Svirskiy's relationship with Stein became public when he faced sentencing in May 2019. Stein wrote a letter to U.S. District Judge Richard G. Stearns urging leniency and stated that he would hire Svirskiy "on the spot" to work in his pharmacies.
Earlier this year Svirskiy petitioned prison officials and Stearns asking for an early release due to the presence of Covid-19 within the Devens prison facility, but his multiple requests were denied.
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Judge Tosses Drug Company Compounding Suit

By Walter F. Roche Jr.

A federal judge has dismissed a suit filed by a Woburn, Mass. pharmaceutical firm which had charged a competitor with violating a federal law by illegally copying one of its drug products.
In a five-page ruling Senior Judge Rya Zobel ruled that it was up to the U.S. Food and Drug Administration, not the courts, to determine if Edge Pharma LLC illegally copied Firvang, an antibiotic drug produced by Azurity Pharmaceutical.
In a footnote to her decision Zobel suggested Azurity could file an administrative complaint with the FDA and, if the agency concurred with the allegation, Azurity would then have standing to seek court intervention.
At issue in the suit are provisions of a 2013 federal law passed following the deadly 2012 fungal meningitis outbreak caused by a now defunct Massachusetts drug compounding firm.
Edge, under the provisions of that statute, was designated by the FDA as a drug outsourcer, authorized to compound large volumes of specified drugs without patient specific prescriptions.
But the Azurity suit charged that Edge was in violation of another provision of federal law barring compounders from mass producing a drug that is essentially a copy of another FDA approved drug, Firvang.
Zobel, who presided over a massive civil case stemming from the outbreak, concluded that it was not up to her to resolve matters relating to such "thorny questions."
"It would be inappropriate for the court to resolve plaintiff's Lanham Act claim," Zobel wrote, adding that Congress has expressly delegated that authority to the FDA.
She added that to resolve the issue the court itself might ultimately have to rely on the FDA.
"The FDA itself has not determined that defendant is violating the requirements the plaintiff is identifying in its complaint," Zobel added. She did note, however, that the FDA had identified "compliance issues" in an inspection of Edge's Colchester, VT. facilities.
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