Two NECC Appeals Denied

By Walter F. Roche Jr.

A federal judge Thursday turned down the appeals of two pharmacists charged with violating a federal law when they routinely approved prescriptions made out for obviously fictitious patients including Filet O Fish.
In a 10-page ruling issued in U.S. District Court in Boston, U.S. District Judge Richard G. Stearns said he had no choice but to reject the primary argument raised for defendants Kathy S. Chin and Michelle L. Thomas, because the 1st Circuit Court of Appeals already ruled against the same argument raised by the same defendants.
"Because a 1st Circuit decision on a point of law is controlling in this circuit, I am bound to obey it," Stearns wrote, adding that he still felt prosecutors should be required to show the defendants deliberately abused their positions as licensed pharmacists.
The two defendants were among 14 affiliated with the New England Compounding Center indicted following a two year probe of the deadly 2012 fungal meningitis outbreak.
Chin was convicted for four violations of the Food Drug and Cosmetic Act while Thomas was convicted for two. Both were also charged by jurors with committing the acts with the intent to defraud or deceive.
Lawyers for Chin and Thomas had argued that their clients were not acting as pharmacists but merely as clerks checking to see that the right medication was going to the right address.
In reversing their earlier acquittal by Stearns for the same two defendants, the 1st Circuit ruled that under Massachusetts and federal law Chin and Thomas were in fact acting as pharmacists and were bound to ensure that the drugs they dispensed were going to real patients.
Stearns added that it was still possible that the appeals court would choose to revisit the issue on further appeal.
Nonetheless, Stearns added, "I believe that the government should be held to a higher standard of proof under the felony branch of the crime."
Stearns was particularly sympathetic to Thomas stating that her case falls into the "no good deed goes unpunished" category. He noted testimony that Thomas had twice raised questions about the obviously fake names with her superiors including Barry Cadden, the president and part owner of NECC. She was told not to worry about it.
But Stearns agreed with federal prosecutors that "the patently fictitious names should have been an obvious red flag..to the illegal and fraudulent conduct taking place at NECC."
Stearns was much less sympathetic to the Chin and Thomas argument that they had been unduly prejudiced when they were tried separately from other NECC defendants who were charged with far greater crimes.
Noting that their trial was separated at their own requests, Stearns wrote, "Their late blooming complaint of having gotten what they wished for does not sit well."
The judge also denied the defendants motion for a new trial.
He added that in his own view, "The government did not guild the lilly in this case but stayed admirably within the Goldilock's standard."
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