Cadden Charges Prosecutors Gave Jury Improper Evidence

By Walter F. Roche Jr.

Attorneys for a former drug company executive are charging that federal prosecutors somehow gave a secret binder to jurors that gave one-sided information and may have led to their client's conviction on racketeering, conspiracy and mail fraud charge.
The charges against the prosecution were included in a massive 64-page memorandum submitted to support a motion to either acquit Barry Cadden on all charges or grant him a new trial.
The 64-page memorandum also accuses federal prosecutors of attempting to mislead the jury by presenting evidence that they knew or should have known was false.
"The government presented misleading and factually incorrect evidence to manipulate the chronology to falsely show Cadden knew of a problem with the methylprednisolone acetate sooner than he did," the memo states.
The memo was filed to back Cadden's motion for acquittal on the 58 counts he was convicted on last month by a 12-person jury sitting in Boston, Mass.
Cadden, who is scheduled for sentencing on June 29, was convicted of racketeering, conspiracy and mail fraud following a 10-week trial. The charges stem from a federal probe of the 2012 fungal meningitis outbreak that sickened 778 patients across the country, killing 77 of them.
The memo charges that despite repeated assurances from U.S. District Judge Richard G. Stearns to the contrary, prosecutors improperly gave jurors a binder full of evidence against their client without providing evidence showing his innocence.
"There is no question the non-admitted binder was, in fact, submitted to the jury," the filing states.
They also charged that prosecutors presented jurors with a summary testing chart that had never been introduced as evidence and excluded rebuttal evidence presented in Cadden's defense.
Repeating arguments presented in the acquittal motion, Cadden's lawyers said prosecutors improperly influenced the jury by presenting "a sea of prejudicial evidence" about the deaths of 25 patients who died after being injected with steroids from the New England Compounding Center, a company headed and part owned by Cadden.
The jury acquitted Cadden on the second degree murder charges. Although a majority voted for conviction on most of those counts, a unanimous vote was needed.
Prosecutors, the memo charges, "presented evidence in the hope -ultimately futile-that it could inflame the jury to hook Cadden on at least one or more of the murder charges,"the filing continues.
"For 10 weeks the government paraded witnesses before the jury to testify about heart wrenching stories of death and suffering," .
Prosecutors, the memo continues, tried to leave jurors with the impression that Cadden delayed disclosure of the discovery that NECC drugs were laden with a deadly fungus.
Citing conflicting testimony about a phone call Cadden made to an Indiana clinic, his lawyers said the government knew from telephone records that the call couldn't have been made on the date a clinic employee testified she took the call.
It was "improper for the government to present evidence it knows is false," the memo states.
Cadden's legal team, headed by Bruce Singal, said prosecutors repeatedly tried to mislead the jury by presenting false and misleading testimony and evidence.
"Barely a day went by in this trial in which the government did not mislead the jury with distorted, incomplete or inaccurate evidence," the brief states.
The memo asserts that there was insufficient evidence to prove the racketeering and mail fraud charges despite the jurors unanimous votes.
As for the conspiracy, the memo charges that the government never proved there was an agreement between Cadden and any of the other defendants to break the law.
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Cadden Seeks Acquittal or New Trial

By Walter F. Roche Jr.

The former head of a drug compounder blamed for a deadly fungal meningitis outbreak is asking for acquittal or a new trial on the racketeering and mail fraud charges on which he was recently convicted.
The motion charges that the government's "futile effort" to charge him with second degree murder, tainted and prejudiced the jury that convicted him.
The case was "tainted by the improper presentation of murders, death and suffering in support of charges that should not have been brought," the three-page motion states.
The 12 member Massachusetts jury convicted Cadden last month on 58 counts of racketeering, conspiracy and mail fraud, among other charges, but acquitted him on 25 counts of second degree murder.
Cadden was president and part owner of the now defunct New England Compounding Center, the Framingham, Mass. firm blamed for the 2012 fungal meningitis outbreak that sickened 778 patients in 20 states. Some 77 of those patients died.
In his motion Cadden said the tainted evidence need not even have been presented because his lawyers conceded from the outset that methylprednisolone acetate from NECC caused the deaths.
That evidence, the motion states, "would not have been admitted in a fraud case."
Charging that the prosecution's evidence was "inaccurate and misleading," the motion charges that it had "the cumulative impact of unfairly and irrevocably tainting the jury in its consideration of the non-murder charges."
The motion asks the presiding federal judge, Richard G. Stearns, to either acquit Cadden of the charges or grant a new trial on the non-murder charges.
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Nearly 400 Apply for Outbreak Grants

By Walter F. Roche Jr.

Nearly 400 applications have been filed with a Massachusetts agency for a grant from a victims' compensation program financed with a $40 million federal allotment earmarked for victims of a deadly fungal meningitis outbreak..
A spokeswoman in the Massachusetts Attorney General's office said the applications are under review and thus far no awards have been made. The state agency is working with the U.S. Attorney's office in Boston to verify the claims.
The $40 million was set aside by the U.S. Justice Department at the request of a Michigan congressman, U.S. Rep. Mike Bishop, whose district was especially hard hit by the 2012 outbreak.
The outbreak, which sickened some 778 patients in 20 states, was caused by fungus laden compounded drugs produced by a now defunct Framingham, Mass. company. Recently Barry J. Cadden, the former president and part owner of the New England Compounding Center was cleared of second degree murders charges but was convicted on 58 counts on charges includingf racketeering and mail fraud.
The spokeswoman said the deadline for filing claims is Dec. 16 of this year. The application form is available at  http://www.mass.gov/ago/public-safety/resources-for-victims/assistance-necc-victims.html
A project manager has been hired to oversee the program and additional staff are being hired, according to the spokeswoman.
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Four Maryland Outbreak Cases Go Forward

By Walter F. Roche Jr.

A federal judge in Massachusetts has given the go-ahead for four court cases brought by Maryland victims or survivors of deceased victims of the 2012 fungal meningitis outbreak to go forward.
In a brief order this week U.S. District Judge Rya Zobel picked the four cases - two filed by living victims and two by survivors of victims- to move forward for trial beginning in October.
The four cases were among eight selected by attorneys for the victims and for the Box Hill Surgery Center, one of a handful of Maryland clinics where victims of the deadly outbreak were injected with fungus laden methylprednisolone acetate.
The field will be further narrowed to two cases before the scheduled Oct. 30 trial date. The cases have been designated as so-called bellwethers, hopefully leading to templates for the settlement of other Maryland cases.
The two cases in which the victims died were filed by the survivors of John C. Millhausen and Brenda Rozek. Some details of Rozek's death became public during the recent criminal trial of Barry J. Cadden, the one time president of the defunct New England Compounding Center, the company blamed for the deadly outbreak.
Cadden was charged with second degree murder in Rozek's death, but the jury acquitted him of that and 24 other second degree murder charges. He was convicted on racketeering, conspiracy and mail fraud charges.
The owner of the surgery center, Ritu Bhambhani, was one of the prosecution witnesses at Cadden's recent trial.
The two other Maryland suits were filed by Belinda Dreisch and Teresa Davis. Both were injected twice, once in July and once in August of 2012, at the Box Hill Surgery Center in Abingdon, Md. They subsequently were sickened and hospitalized.
According to Zobel's order, one of the cases involving living victims will go to trial on the Oct. 30 date, to be followed by one of the death cases.
The owner of the surgery center, Ritu Bhambhani, was one of the prosecution witnesses at Cadden's recent trial.
Under Zobel's order, discovery, including depositions and gathering evidence, will proceed in all four of the designated cases.
Court filings show that some 778 patients across the country were sickened in the outbreak and 77 of them died. According to data compiled by the U.S. Centers for Disease Control and Prevention, 26 Maryland patients were sickened in the outbreak and three died.
The CDC, however, stopped counting a year after the outbreak. The subsequent criminal investigation turned up 12 additional cases across the country in which patients died.
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Salt Lake Compounder Recalls Sterile Drugs

This information has recently been updated and is now available.

Isomeric Pharmacy Solutions Issues Voluntary Nationwide Recall of All Sterile Compounded Products

04/06/2017 03:05 PM EDT

Isomeric Pharmacy Solutions (“Isomeric”) is voluntarily recalling all lots of sterile products compounded and packaged by Isomeric and that remain within expiry to the hospital/user level because of the US Food and Drug Administration’s concerns of a lack of sterility assurance. These concerns were brought to Isomeric’s attention during a recent inspection by the US Food and Drug Administration. To date, Isomeric has not received any reports of adverse events related to this recall.

Cadden Sentencing Reset for June 29

By Walter F. Roche Jr.

The sentencing session for the lead defendant in the criminal case stemming from a deadly fungal meningitis outbreak has been pushed back to late June by U.S. District Judge Richard G. Stearns.
In an order issued this week Stearns set June 29 as the date for sentencing of Barry J. Cadden who was convicted on 58 counts of racketeering, conspiracy and mail fraud. The session had originally been set for June 21.
The jurors acquitted Cadden of 25 counts of second degree murder.
Stearns also issued an order officially canceling a pretrial hearing and an April 10 trial date for seven other defendants in the case. That delay had been expected.
The other lead defendant, Glenn Chin, is scheduled to go on trial Aug. 14. He faces the same charges as Cadden did.
Chin, Cadden and 12 others were indicted in late 2014 following a two year federal probe of the 2012 fungal meningitis outbreak which sickened some 778 patients, killing 77 of them. The outbreak was caused by fungus laden steroids shipped from the New England Compounding Center. Cadden was president and part-owner of the company.
Stearns order also calls for the U.S. Attorney to provide federal probation officials with the names of victims of the outbreak.
Many of the victims are expected to submit so-called victim impact statements. It is not clear whether any surviving victims will be allowed to testify at the June session. During Cadden's nine-week trial Stearns limited the number of victims allowed to testify.
The June 29 session is scheduled for 2:30 p.m. in Stearns' Boston, Mass. courtroom. He could face up to 20 years in prison on each of the mail fraud counts, but federal sentencing guidelines are likely to limit his actual sentence.
Of the 14 people originally indicted in the case, two have had all charges dismissed while two others entered guilty pleas to vastly reduced charges.

Mold, Fungus Cited In PA Hospital Deaths

By Walter F. Roche Jr.

Even as it is facing multiple law suits on the same issue, UPMC, the Pittsburgh, Pa. based health conglomerate, has been cited by state health officials for failure to maintain required controls in the handling of bed and other linens.
In a complaint investigation completed in February, UPMC's Shadyside hospital was cited for failure to maintain temperature and air pressure requirements in areas where clean and soiled linens are stored.
In addition the eight-page report cites the fact that clean linens were being transported past containers filled with soiled linens.
UPMC did not respond to a request for comment.
The report comes as UPMC is facing suits from the survivors of  patients who died after suffering fungal infections linked to bed linens. The UPMC's linen supplier is a co-defendant, Paris Healthcare, in some of those suits.
The inspection on Feb. 16-17 came following a complaint from an unidentified source.
"Based on a tour of the facility and staff interview, it was determined that the facility failed to maintain soiled and clean linens in properly ventilated and temperature controlled areas according to acceptable standards of practice, the report states.
The report notes that clean linen storage areas "are required to be maintained under positive pressure in relation to adjacent areas, have two total air changes an hour and temperature shall be controlled between 72 and 78 degrees fahrenheit."
The report states that an unidentified hospital employee acknowledged that the UPMC facilities did not comply with the required standards.
In a plan of correction filed by UPMC, hospital officials said that the needed permanent changes could not be completed before September. However they promised to implement an interim corrective action plan by June 7.
The interim plan includes steps to ensure that the area where clean linens are stored are under positive pressure. Automatic door closers will also be installed.
"The plans involve a significant change to the physical location of clean and soiled linens to ensure compliance with regulatory requirements," the report states.
In addition UPMC promised to implement an education plan to ensure employees are aware of the regulatory requirements.
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