Key Defendant Files 11th Hour Dismissal Motion

By Walter F. Roche Jr.

Acting at the 11th hour, a key defendant in the criminal case stemming from a deadly fungal meningitis outbreak, is asking a judge, once again, to dismiss 25 counts of second degree murder.
Acknowledging that the deadline for such motions has long since passed, the lawyer for Barry Cadden is charging that the murder counts in the 2014 indictment are fatally defective because they fail to show that Cadden caused any of the 25 deaths.
In a two-page motion and a 13-page memorandum, attorney Bruce A. Singal also is repeating an already rejected request to force prosecutors to disclose the instructions given to the grand jury that indicted Cadden and 13 others in late 2014.
Cadden and co-defendant Glenn Chin are scheduled to go on trial Jan. 5 on the second degree murder charges. Cadden was a part owner and Chin a supervising pharmacist at the New England Compounding Center, the firm that shipped thousands of vials of fungus riddled steroids to health facilities across the country.
In the motion filed today, Cadden contends that it is Chin who should be held liable, not him.
"For each of the three lots (of drugs) at issue, it is Chin rather than Cadden who is alleged to have performed unlawful  acts," the motion states.
In addition the indictment, the motion states, does not properly allege the core elements of a second degree murder case."
 The motion contends that the facts cited in the indictment about long term problems at the New England Compounding Center, refute the contention that Cadden was "reasonably certain" that the three deadly lot of methylprednisolone acetate would kill anyone. Despite the long term poor conditions there had been no prior deaths, Singal argued.
The motion comes as U.S. District Judge Richard Stearns is considering a motion to separate the trials of Cadden and Chin. He previously denied a motion to dismiss the murder charges. He also denied a motion to force prosecutors to provide copies of their grand jury instructions.
Two other defendants have entered guilty pleas to reduced charges. Two others have had charges dismissed. The remaining defendants are scheduled to go on trial in April.
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Revised NECC Lawyers' Fee Motion Filed

By Walter F. Roche Jr.

A revised motion that would authorize payment of some $6.25 million in lawyers' fees and expenses by the end of the calendar year was filed today in the federal court case stemming from the deadly 2012 fungal meningitis outbreak.
Under the motion the payment of the fees and expenses would be contingent on the payment of partial claims to all or virtually all of the outbreak victims who provide needed information by a Dec. 15 deadline.
The payment of only half of the $12.5 million in fees and expenses had been suggested as a compromise by U.S. District Judge Rya Zobel during a hearing last week in her Boston, Mass. courtroom.
The fees and expenses would go to law firms who did work benefiting all of the victims of the outbreak whose claims can be verified.
According to a report filed last week payments have been approved for 462 of more than 2,000 victims. The payments represent about 50 percent of what victims can expect to receive from a fund totaling between $130 and $157 million.
 The 2012 outbreak caused by fungus laden drugs shipped from a now defunct Framingham, Mass. drug compounding firm sickened some 778 patients, killing at least 77 of them.
The legal fees and victims' payments are coming from a fund amassed in the bankruptcy of NECC.
In a parallel criminal case, two NECC officials are scheduled to go on trial in early January on second degree murder and related charges. Other NECC owners and employees are scheduled for an April trial.
Contact: wfrochejr999@gmail.com

Judge Mulls Motion to Sever NECC Criminal Cases

By Walter F. Roche Jr.

The two key defendants in the criminal case stemming from a deadly fungal meningitis outbreak could be tried separately under a sealed motion now being considered by a federal judge.
Records in U.S. District Court in Boston, Mass. show a motion was filed to have Barry Cadden and Glenn Chin tried separately. Cadden and Chin are facing 25 counts of second degree murder under an indictment issued nearly two years ago.
The two are scheduled to be tried together in early January before U.S. District Judge Richard G. Stearns.
Though the two had agreed to a joint trial, papers filed recently by Chin's lawyer, charge that Chin had only recently learned that Cadden planned to blame him and him alone for the deaths.
Earlier this week Cadden's lawyers filed a motion to sever the two cases, but the motion was filed under seal.
After a hearing today, Stearns took the matter under advisement.
Chin and Cadden were among 14 people connected to the New England Compounding Center to be indicted following a two year probe of the deadly 2012 fungal meningitis outbreak. Two defendants already have entered guilty pleas to vastly reduced charges. Two others had charges dismissed.
The remaining defendants are scheduled to go on trial in April.
The outbreak sickened 778 patients who were injected with fungus laden methylprednisolone acetate, shipped in thousands of vials from NECC's Framingham, Mass. facility to health providers across the country.
Contact: wfrochejr999@gmail.com

Checks Mailed to 462 Outbreak Victims

 Average payment corrected


By Walter F. Roche Jr.

The trustee of a national fund to pay victims of the deadly 2012 fungal meningitis outbreak has issued checks to 462 of 2,340 who filed claims, according to a report filed today in U.S. District Court in Boston, Mass.
The total value of the issued checks, according to Lynne Riley, the trustee, is $7.3 million. An additional 28 victims have been cleared for payment and checks are being issued to them, pushing the total number of checks to 490.
According to the data provided the average payment thus far was  $15,828.64. The payments represent about half of what each victim can expect to receive when all of the funds are disbursed.
In a hearing today before U.S. District Judge Rya Zobel, Thomas Sobol, the lead attorney for plaintiffs, said 177 claims have been finally denied, while 1,981 have been either fully or partially approved. A small number of claims are still under appeal,
He said further information is needed for some of the remaining claims and if victims respond by Dec. 15, they can expect checks by the end of the year,
The victims' fund has been estimated to total $130 million to $157 million. It was amassed during the bankruptcy of the New England Compounding Center, the company blamed for the 2012 fungal meningitis outbreak which sickened 778 patients, killing 77 of them.
Nashville, Tenn. attorney Mark Chalos reported that all victims with claims against the Saint Thomas Outpatient Neurosurgical Center have agreed to accept a negotiated settlement. He said an administrator has been hired and payments are expected to go out early next year.
The amount of that settlement has not been made public but is believed to be in excess of $20 million.
Zobel also got updates on the status of claims from victims in New Jersey, Maryland and Minnesota.
Sobol also presented a defense of the payment of $12.5 million in legal fees and expenses to lawyers who performed work in the case benefiting all of the victims. His motion called for those fees to be paid by the end of the year.
But George Nolan, a Nashville, Tenn. lawyer, cited long delays and complicated filing requirements that were delaying payments to many victims including clients of his firm. He said the fact that lawyers would be getting full payments while victims continued to wait was causing "a great deal of controversy" among many victims.
Zobel then proposed a compromise under which lawyers would get half of their fees by the end of the year, with the other half to be distributed sometime next year.
Sobol agreed to draw up a motion to implement her suggestion.

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Fungal Infections

http://www.medicaldaily.com/deadly-fungal-infections-what-they-do-and-how-your-body-fights-them-405729

Prosecutors Detail NECC Murder Charge Evidence

By Walter F. Roche Jr.

Two former officials of the New England Compounding Center showed a "wanton and willful disregard for human life" that directly caused the death of 25 victims, federal prosecutors charged in U.S. District Court in Boston, Mass.
In an eight-page filing today, Assistant U.S. Attorney William D. Weinreb wrote that the conditions inside NECC's Framingham, Mass. facility were so bad that one public health official called it "a fungal zoo."
Bacteria and multiple forms of fungus were still found by federal inspectors in so-called clean rooms even after an "extraordinary" two-day clean up attempt by NECC staffers and a private contracting firm.
Four types of fungus were found in 150 patients injected with NECC drugs, the prosecutors charged, adding that drugs that were supposed to be sterile were produced with unsterile and expired components.
The filing comes as the two former NECC officials, Barry Cadden and Glen Chin, are just a month away from trial on 25 counts of second degree murder, racketeering and conspiracy. Weinreb urged U.S. District Judge Richard G. Stearns to reject a motion by the two defendants to hold a court hearing to force prosecutors to provide additional evidence to justify the 25 murder counts.
The two were indicted following a federal grand jury probe of the deadly 2012 fungal meningitis outbreak caused by fungus ridden drugs from NECC. Cadden was a part owner and chief pharmacist for NECC and Chin was a supervising pharmacist.
Earlier this week Stearns flatly rejected a request from Chin to delay his trial to early Spring.
Calling the motion for a hearing"a last ditch attempt to avoid judgment by their peers," the prosecution argued that no hearing was necessary and the charges should now go to a jury.
The evidence, the prosecutor stated, "will show that the defendants actions fell so far below the required standards of pharmacy care in producing these drugs that it was unconscionable that the defendants identified these drugs as sterile and dispensed them for use on patients."
In addition to the spinal steroid (methylprednisolone acetate) blamed for the deadly outbreak, prosecutors said federal investigators found 23 other species of fungus in other drugs produced by NECC including betamethasone, triamcinolone and cardioplegia
"This was not an unfortunate unexplainable tragedy, an accident or a mere coincidence as the defendants have stated in their various court filings in this case; this was second degree murder," the filing states.
Cited was a comment made by an NECC supervisor to a worker who had raised questions about the safety of the drugs being produced.
"You don't understand," the supervisor said. "You don't have money. When you have money, you always want more."
The actions by Cadden and Chin were "deliberate and intentional and prioritized profit over patient safety," the filing concludes.
Contact: wfrochejr999@gmail.com

Motion To Delay NECC Criminal Trial Swiftly Denied

By Walter F. Roche Jr.

Without a hearing or even waiting for federal prosecutors to respond, the judge presiding over the criminal trials stemming from a deadly fungal meningitis outbreak has denied a motion by a key defendant to delay his trial on murder charges for three months.
In a brief order issued today U.S. District Judge Richard G. Stearns denied the delay request filed by Glenn Chin, the former pharmacist who is facing 25 counts of second degree murder.
Chin, in a motion filed late last week, had cited the need to review reams of new documents provided by prosecutors and a repository of related documents from a civil case while his trial date was barely a month away.
Chin, through his lawyer, Stephen Weymouth, had also argued that his codefendant, Barry Cadden, had gained access to the civil suit documents years earlier, giving him an unfair advantage.
Stearns, however, noted that Cadden, who is also facing second degree murder charges, had no obligation to share evidence with a codefendant.
Chin and Cadden are two of 14 persons connected to the New England Compounding Pharmacy, the defunct Framingham, Mass. drug firm blamed for the 2012 nationwide fungal meningitis outbreak which sickened 778 patients across the country. At least 77 of those patients died.
Chin had also charged that he had only recently learned that Cadden, relying on evidence from the civil case, intended to place all the blame for the outbreak on him.
Stearns ruled that regardless of whether the evidence might reflect badly on Chin, Cadden was under no obligation to make Chin aware of it.
Unlike prosecutors, Stearns wrote, "Cadden has no corresponding duty to disclose materials on which he intends to rely in his own defense, even if these may to some extent reflect adversely on Chin."
In any case, Stearns concluded, "it is highly unlikely that the document repository in the parallel civil litigation includes anything that has not already been produced in the millions of documents turned over by the government."
Stearns decision means Cadden and Chin will go on trial as previously scheduled early next year.
In addition to the second degree murder charges the two are facing charges of racketeering, conspiracy and mail fraud.
Cadden was a part owner and chief pharmacist for NECC, while Chin was a supervising pharmacist.
Two of the original 14 NECC defendants have pleaded guilty to reduced charges and avoided any jail time. Two others, including Chin's wife, have had all charges dismissed, but the U.S. Attorney has appealed that decision to the First Circuit Court of appeals.
The remaining defendants are scheduled for trial in April.
Contact: wfrochejr999@gmail.com