Court Hears Cadden, Chin Appeals

By Walter F. Roche Jr.

BOSTON-A federal appeals court judge said today he doesn't understand how patients sickened in a deadly fungal meningitis outbreak are not considered victims, even vulnerable victims.
U.S. Appeals Court Judge Kermit Lipez made that statement during a more than two hour hearing on appeals stemming from the conviction of two key defendants, Barry J. Cadden and Glenn Chin, in the federal probe of the 2012 outbreak.
"There's something counter-intuitive in that argument,"Lipez said following s statement by Cadden's attorney that the patients sickened in the 2012 outbreak do not meet the definition of victims.
How are they not vulnerable victims? Lipez added.
Lipez was one of three judges hearing the appeals and counter-appeals filed following Chin and Cadden's conviction on racketeering conspiracy and mail fraud charges. Both are now serving sentences at separate federal prisons in Pennsylvania. Cadden was sentenced to a nine year term while Chin was given an eight year sentence.
While prosecutors are seeking to impose additional penalties against the two former officials of the New England Compounding Center, attorneys for Cadden and Chin are seeking to have some of the charges and penalties reduced or eliminated. Cadden was president and part owner of NECC and Chin was a supervising pharmacist.
One point at issue is the U.S. Justice Department's claim that some $80 million in restitution should be ordered for patients sickened in the outbreak. A district court judge rejected that claim.
While some of the comments by the three judges appeared to support the position of prosecutors, others did not.
Lipez, for instance, cited the argument by Bruce Singal, Cadden's lawyer, that most of the products produced by NECC did not cause any harm and were, in fact, effective.
"All these years and nothing went wrong," Lipez responded. "How can you say all these drugs were valueless?" he asked in response to government arguments that all NECC sales between 2010 and 2012 should be used to determine the penalties imposed.
Joined by Appeals Court Judges David J. Barron and Norman Stahl, Lipez questioned whether NECC's promise of compliance with industry standards was in fact made to all of its customers.
And, he noted that the strict standards required for so-called sterile drugs, like methylprednisolone acetate did not apply to creams and ointments that accounted for many of the drugs the now defunct Framingham Mass. company produced and sold.
Assistant U.S. Attorney David Lieberman argued that Cadden knew or should have known that sending out sterile drugs that were not properly prepared could create a serious and highly likely risk of death or serious injury.
Singal, however, argued that the trial testimony by victims and their survivors was highly prejudicial. He noted that defense attorneys had from the outset conceded that NECC steroids were responsible for the outbreak which ultimately sickened some 800 victims, killing more than 100 of them.
He also stressed that second degree murder charges brought by prosecutors were rejected by the jurors.
Chin's lawyer, Jamie Sultan, argued that the penalties imposed by U.S. District Judge Richard G. Stearns were fair and reasonable and increased penalties sought by government attorneys should be rejected.
The eight year sentence imposed by Stearns was "totally appropriate," he said.
Barron said he was a little puzzled about what the prosecutors wanted for an increased sentence.
"How can they now argue for more?" he asked.