Indicted Pharmacists Retain State Licenses

By Walter F. Roche Jr.

Boston- Four pharmacists on trial for racketeering and mail fraud still have their state licenses due to a request from federal prosecutors.
Some details of why the four still have the pharmacist licenses were disclosed today in testimony from a state official in the ongoing trial of six defendants including the four pharmacists.
Samuel Penta, an official of the Massachusetts Pharmacy Board, said the U.S. Attorney's office had requested that the board put their investigations of the four on hold. He was asked by Assistant U.S. Attorney George Varghese if there were any restriction on their licenses but defense attorneys immediately objected and U.S. District Judge Richard G. Stearns barred Penta from answering.
The disclosure came in the trial of six people who were among 14 indicted following a two year probe of the 2012 fungal meningitis outbreak.
Records displayed by attorneys for the pharmacists showed that while a complaint investigation was opened in 2013, charges were dismissed with the notation "discipline not warranted."
However, court documents show the pharmacists are barred from doing any compounding as a condition of their release following their indictment.
Prior to the day's testimony Stearns told both sides that he hoped the trial could be finished by the end of the first full week in December.
"I really am concerned about the jury," Stearns stated."I have no stake in the outcome...just that there be an outcome."
The judge also questioned the need for prosecutors to bring in nearly a dozen government microbiologists to testify in the case. Defense attorneys told Stearns they would be willing to stipulate to the testimony which is expected to detail the results of af laboratory tests on specimens seized from the New England Compounding Center, the defunct firm blamed for the outbreak which sickened nearly 800 patients in 22 states.
Opening arguments in the current trial, the third stemming from the 2012 outbreak indictments, were on Oct. 15. Stearns,in an order before testimony began set time limits on both prosecutors and defense attorneys.
Under cross examination today, Penta stuck by his prior testimony that he was surprised by the volume of drugs being produced by NECC when he visited the Framingham, Mass. facility on Sept. 26, 2012.
Dan Rabinovitz, the attorney for Gregory Conigliaro, who was NECC's vice president and part owner, cited a 2011 inspection of a new clean room which stated that the company was producing 100 drugs a day and was selling its products in 48 states. He also that prior to the outbreak the state agency had issued several "Certificates of Good Standing" on NECC.
Penta said he assumed that 100 orders a day meant NECC was filling 100 individual prescriptions per day and not individual bulk orders for dozens of drug doses apiece.
Rabinovitz also cited pharmacy board approval of so-called shared services agreements under which one pharmacy could refer customers to another pharmacy to pick up prescriptions.
Penta said that provision only applied to pharmacies under common ownership, like different CVS outlets.
He said it would not apply to NECC's practice of providing bulk drugs to health facilities with patient specific prescriptions.
Paul Kelly, attorney for defendant Christopher Leary, questioned Penta about a provision of state law that places the responsibility for the operation of a pharmacy on the "manager of record" and not any licensed pharmacist working in the same store. At NECC that The manager-of-record at NECC was Barry J. Cadden, who was already been convicted of racketeering and mail fraud and is serving a nine-year federal prison sentence.
In a related matter Stearns set a March 25, 2019 trial date for co-defendants Kathy Chin and Michelle Thomas, both former NECC employees. The two were granted separate trials after Stearns concluded that it would be unfair to try them along with other defendants facing more serious charges. The two are charged with dispensing misbranded drugs.