NECC Defendants Seek Evidence Limits

By Walter F. Roche Jr.

The two remaining defendants in the criminal case stemming from a deadly 2012 fungal meningitis outbreak says prosecutors should be forced to prove questionable names on prescription drug orders like Mary Lamb and Ginger Rogers really were fake and not the names of actual patients.
In a slew of filings before an upcoming trial, the two former employees of a defunct drug compounding company, said government prosecutors have simply asserted the names were fake without providing any supporting evidence. For instance, the filing states, there are some 16 Mary Lamb's listed in Nebraska phone books and there are four Harry Potter's listed in Indiana, two of the states where drugs were shipped.
The motion regarding fake names came amid a barrage of filings as the April 29 trial date in U.S. District Court in Boston, Mass. is approaching. In other filings lawyers for defendants Michelle Thomas and Kathy Chin sought to bar the use of dozens of government exhibits and to bar any mention of patient harm.
The two licensed pharmacists worked at NECC to check completed prescriptions against the orders actually placed by NECC's customers. The two are charged with a half dozen violations of the federal Food Drug and Cosmetic Act.
"Chin and Thomas had no responsibility for checking prescriptions or patients names," one of the motions states, adding that their job, as "low level" employees, was simply to check to make sure that the right orders were going to the right customers. And, they contend, the two had no responsibility to check patient names.
Chin and Thomas were among 14 indicted in late 2014 following the two year grand jury investigation of the 2012 fungal meningitis outbreak which sickened nearly 800 patients, over 100 of whom are now dead. In three prior trials seven defendants have been found guilty of charges ranging from racketeering to mail fraud and violations of federal drug statutes.
As for the fake names, the motion asks the judge to bar the use of the term "fake names" unless the government proves in advance that the names are in fact not real patients. While some names might appear as questionable "at first blush," they may not be fictitious at all, the motion states. To date, the defendants argued, prosecutors have failed to provide "even a modicum of proof that the names, including Donald Duck and Donald Trump, are false.
"Things are not always as they seem," the motion states, adding that some of the names "may not be fictitious at all."
They asked for a separate hearing on the "fake names" issue.
In the other motions to bar the use of some exhibits or limit testimony, defense lawyers Michael C. Bourbeau and Joan Griffin called on presiding U.S. District Judge Richard G. Stearns to "keep the government focused on the specific counts in the indictment by limiting the evidence that is remote and unfairly prejudicial."
As in the trial of other co-defendants, attorneys for Chin and Thomas are also asking that testimony be barred or limited relating to the deaths of NECC patients because neither of the two are charged with playing any role in those deaths.
Also filed were proposed pre-trial instructions to the jury and final instructions presented just prior to deliberations.
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