Some Meningitis Claims Dismissed

By Walter F. Roche Jr.

Some but not all of the claims filed against a Maryland clinic by survivors of a woman who died in the 2012 fungal meningitis outbreak have been dismissed by a federal judge in Boston, Mass.
In a five-page ruling issued this week, U.S. District Judge Rya Zobel wrote that the remaining charges, including some negligence claims and violations of Maryland's consumer protection statutes will have to be decided by a jury.
The suit, one of the few remaining to be resolved, was filed by survivors of Brenda Lee Rozek who died on Sept. 16, 2012, 16 days after she was injected with  a fungus laden spinal steroid at the Box Hill Surgery Center in Abingdon, Md.
Rozek's death was one of the 25 cited in the indictment of owners and employees of the now defunct New England Compounding Center, the Massachusetts company that sold the contaminated drugs to the Maryland clinic. Though federal prosecutors charged that Rozek's death and 24 others amounted to second degree murder, two separate juries have rejected that claim.
In her ruling Zobel dismissed claims in the Rozek suit that the clinic and Dr. Ritu Bhambani violated provisions of the Massachusetts consumer protection statutes. She noted that all the major events in the case took place in Maryland.
She also dismissed claims for punitive damages noting that the plaintiffs had conceded they had no evidence that Bhambani had acted with malice.
"Because plaintiffs stipulated that there is no evidence of actual malice in this case, they may not recover punitive damages," the ruling states.
She said issues such as whether the clinic should have exercised due diligence in checking on the company selling the drugs. She said other issues such as a claim for medical expenses would be decided at a later date.
Several hundred victims of the 2012 outbreak have filed suits against the medical providers who injected them with tainted steroids. Dozens of those cases have been resolved. Some 76 patients died in the outbreak while more than 750 were sickened.
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Judge Recommends Chin's Placement at Mass. Prison

By Walter F. Roche Jr.

The judge who presided over the trial of Glenn Chin has recommended that the former pharmacist serve his recently imposed eight year sentence at a federal prison just a short drive from his Massachusetts home.
U.S. District Judge Richard G. Stearns today recommended Chin serve his sentence at the federal prison at Fort Devens, Mass. Chin lives in Canton, Mass. about an hour's drive from the prison.
Chin's lawyer had asked Stearns on Wednesday to make the recommendation following the judge's decision to impose the eight year sentence. The recommendation goes to the federal Bureau of Prisons, the agency Chin has been ordered to report to on March 14.
Chin was convicted last year on charges stemming from the probe of a 2012 fungal meningitis outbreak caused by fungus laden drugs prepared in a clean room Chin supervised. He was convicted last year on charges of racketeering, conspiracy, mail fraud and violations of the Food Drug and Cosmetic Act.
Co-defendant Barry Cadden had also asked for placement at Fort Devens, but he is serving his nine year sentence in western Pennsylvania.
Cadden was president and part owner of the New England Compounding Center, the company that sold the drugs that caused the outbreak. Nearly 800 patients were sickened and 76 of them died during the outbreak. Chin was a supervising pharmacist at the now defunct NECC.

Chin Gets 8 Year Sentence in NECC Case

By Walter F. Roche Jr.

Boston, Mass. --Stating that the law did not allow him to set a stiffer sentence based on the testimony of victims, a federal judge has given a former pharmacist an eight-year prison sentence for his role in a deadly fungal meningitis outbreak.
U.S. District Judge Richard G. Stearns imposed the sentence today on 49-year-old Glenn A. Chin, who was a supervising pharmacist at the now defunct New England Compounding Center, the company that shipped fungus laden steroids to dozens of health facilities across the country in 2012.
The resulting outbreak sickened at least 793 patients, killing 76 of them.
Stearns rejected the recommendation of prosecutors who had asked that Chin get a 35-year prison sentence. Chin's sentence is one year less than the one Stearns imposed on Chin's boss at NECC, Barry J. Cadden. Cadden has already begun serving that nine year sentence at a federal prison in Pennsylvania.
Stearns, who cited the dereliction of government regulators in failing to act against NECC, said that despite the testimony of victims and survivors of victims, he could only consider the health care providers who bought NECC's products as victims.
"The enhancements do not apply," Stearns said. ""It's not that a judge couldn't do it. I've never done it before and I'm not going to do it in this case."
Prior to his ruling victims and survivors, including Colette Rybinski of Tennessee testified about the suffering and deaths that resulted when patients were injected with steroids laden with deadly fungi.
Rybinski described the suffering of her late husband Tom, who was the first victim of the outbreak to be identified following his injection with contaminated methylprednisolone acetate at a Nashville clinic.
She asked Stearns to impose "the maximum sentence possible" to keep the tragedy "from ever happening again."
Just prior to the sentencing Chin told the judge he was "truly sorry" and, repeatedly broke down in tears, saying he has been praying every day for the living victims to fully recover and "stay healthy."
Stearns later said he was convinced Chin was "truly remorseful."
Chin was convicted in October on racketeering, conspiracy, mail fraud charges and violations of the Food Drug and Cosmetic Act. The jury failed to convict him on 25 counts of second degree murder. Cadden was cleared on those same murder charges, but convicted on parallel racketeering and mail fraud charges.
In the hearing today before imposing the sentence Assistant U.S. Attorney Amanda Strachan said the 35-year sentence was necessary to send a message to drug compounders across the country. She said lobbyists for the industry were lobbying for easements in regulation "despite the outbreak."
Chin, she said, in his role as a supervising pharmacist, ordered his subordinates to hide evidence of violations even as federal regulators poured into the Framingham, Mass. facility following the outbreak.
She said he ordered workers to put trash cans over cracks in the floor of the so-called clean room where sterile drugs were being prepared and lied to investigators from the U.S. Food and Drug Administration "when people were dying. That's how we know his intent."
She said Chin also never disclosed to federal investigators that he had $636,000 in a retirement account. Instead, she said, he used the money to buy a new sport utility vehicle for $47,500.
Chin's attorney Stephen Weymouth urged Stearns to follow the same logic he had used in setting Cadden's sentence last year.
Acknowledging that his client did "not step up and he did not quit," Weymouth said Chin's ethnic background made it impossible for him to stand up to Cadden and question unsanitary conditions at NECC.
"I don't expect anyone to feel sorry for Glenn Chin." Weymouth concluded. "There is no way of explaining away what happened."
Weymouth had recommended that Stearns impose a 37 month prison sentence.
He also cited his client's longtime involvement in a youth sports group and his record as a "a good pharmacist" before joining NECC.
A key element in setting the sentence was the economic loss that could be attributed to the criminal activities of Chin and Cadden. While prosecutors said the loss should total $132.6 million, Stearns ruled that the loss be limited to $1.4 million, the value of the drugs that he said prosecutors actually proved were sent out fraudulently.
Although Assistant U.S. Attorney George Varghese told Stearns he would appeal the sentencing decision, U.S. Attorney Andrew Lelling and other federal officials issued a statement praising the overall outcome.
Lelling said that "again and again  he (Chin) acted with complete disregard for the health and safety of patients."
Prosecutors had argued all of NECC's drugs from its inception were produced and shipped as part of a fraudulent enterprise. The $132.6 valuation could have brought Chin a life sentence.
Other victims to testify included Will Mazure, a Michigan resident, who said he still suffers the after effects of the disease and the painful antifungal medications. He said a prior spinal fusion had to be dismantled.
"It was horrible," Mazure said as he described his still ongoing symptoms including memory impairment.
"I can't stay focused," he told the judge.
After the court session he told reporters that as a result of the judge's decision no one is going to be held responsible for the deaths.
Mary Beth Krakowski described how her aunt, Alice Machowiak, was forced to use a walker in the days leading to her death. She said her aunt would wait until after dark to retrieve her mail so that neighbors wouldn't see her.
She said Chin had a chance to be the hero and blow the whistle on Cadden and NECC.
"He could have been the unsung hero," she said.
Kathy and Dan Maccoux described how their "vibrant and athletic" daughter Tracy, one of the youngest victims, had her life completely derailed after being stricken with  meningitis following her injections with drugs prepared by Chin.
"All of our lives became a living hell," Kathy Maccoux said.

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Chin Seeks 37 Month Sentence in NECC Case

By Watlter F. Roche Jr.

Glenn Chin, the 49-year-old former pharmacist convicted of racketeering and mail fraud for his role in the 2012 fungal meningitis outbreak is asking the judge presiding over his case to limit his sentence to 37 months.
In a 25-page filing today Chin's lawyer argued that the only victims of the outbreak were the physicians and health care providers who purchased drugs from Chin's company not the nearly 800 patients who were sickened or the 76 who died after injection with drugs Chin prepared.
"While the patients have endured terrible suffering they do not meet the definition of vulnerable victims," the sentencing memorandum states.
The recommendation is in sharp contrast to the one submitted late last week by federal prosecutors who asked U.S. District Judge Richard G. Stearns to send Chin to jail for 35 years.
The recommendations come before a hearing scheduled for Wednesday in U.S. District Court in Boston, Mass.
Chin argued that several so-called enhancements sought by prosecutors to lengthen his sentence, such as the large number of victims and the fact that Chin, a supervising pharmacist at NECC held a position of trust, did not apply to the facts of his case.
Citing the statements of federal prosecutors themselves, Chin stated that co-defendant Barry J. Cadden ran NECC, making all decisions and personally directing all of Chin's activities.
Chin's motion also disputes the of value losses federal prosecutors claim resulted from his criminal activity. Some of those drugs were not defective even though they were prepared by an unlicensed technician, the filing notes.
And literally for years, the filing states, NECC shipped drugs without any complaints or problems.
"Mr. Chin should not be sentenced based on drugs that were not proven deficient at trial," the brief states.
Noting that Chin was a salaried employee who did not share in profits as Cadden did, the motions concludes that imposing the 35 year sentence would result "in an utter travesty of justice."
Cadden already is serving a nine year prison sentence based on his conviction on similar charges. Proecutors had sought a 35 year sentence in his case also.
Both Cadden and Chin were cleared of second degree murder charges in the deaths of 25 patients.
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Chin Seeks Delay on Restitution, Forfeiture

By Walter F. Roche Jr.

The attorney for a pharmacist convicted on racketeering and mail fraud charges is asking a federal judge to delay a scheduled hearing on his client's restitution and forfeiture liability.
Stephen Weymouth, the lawyer for Glenn Chin, submitted the request today to U.S. District Court Judge Richard G. Stearns.
A Wednesday hearing is scheduled for Chin's sentencing. The restitution and forfeiture issues were scheduled to occur at the same hearing in U.S. District Court in Boston, Mass.Federal prosecutors have asked for a $611,744 restitution order against Chin.
Chin was one of 14 indicted in 2014 following a two year probe of a deadly fungal meningitis outbreak.
Late last week federal prosecutors asked Stearns to impose a 35-year prison sentence on the Canton, Mass. resident.
Weymouth said in his delay request that he needed further time to review victim impact statements.
Nearly 800 patients were sickened in the outbreak caused by fungus ridden steroids shipped from the now defunct New England Compounding Center, where Chinn was employed as a supervisor.
Co-defendant Barry J. Cadden, the one time president of NECC, already is serving a nine-year prison sentence following his conviction on related charges. Stearns already has imposed a $7.5 million forfeiture order against Cadden.
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Goverment Seeks 35 Year Chin Sentence

By Walter F. Roche Jr.

Stating that the pain he caused has "no foreseeable end," federal prosecutors are asking a federal judge to impose a 35-year prison sentence on a pharmacist who played a key role in a deadly fungal meningitis outbreak.
In a 51-page filing in U.S. District Court in Boston, Mass., the prosecutors said actions by Glenn A. Chin caused "widespread harm and unimaginable suffering."
The filing comes just days before Chin's sentencing following his conviction last year on charges of racketeering, conspiracy, mail fraud and violations of the Food Drug and Cosmetic Act.
Included in the filing were details of the suffering some of the victims have endured.
If Chin were to get the 35 year sentence it would be nearly four times the sentence U.S. District Judge Richard G. Stearns imposed on codefendant Barry J. Cadden. Cadden who was convicted on similar charges, already has begun serving the nine year sentence Stearns imposed. Prosecutors had also asked for Cadden to serve a 35-year sentence.
In fact a substantial portion of the government's sentencing memorandum criticizes Stearns decision in the Cadden case. Stearn will also decide Chin's sentence on Wednesday.
Chin and Cadden were  among the 14 indicted in December 2014 following a federal probe of the 2012 fungal meningitis outbreak, which took the lives of some 76 patients. The outbreak was caused by contaminated drugs shipped by the New England Compounding Center, the now defunct Framingham, Mass. firm where Cadden and Chin worked.
Cadden was president and part owner of NECC and Chin ran the clean room where the contaminated drugs were produced.
In a footnote in the filing, the prosecutors disclosed for the first time that NECC's drugs sickened some 793 patients, some 35 more than previously reported.
"The court was wrong in concluding that the patients receiving injections of NECC's contaminated drugs are not victims of the rackteering and mail fraud," the filing states, adding that the patients were "clearly victims."
"They trusted that the drugs would relieve and not cause pain," the filing by Assistant U.S. Attorneys Amanda Strachan and George Varghese states.
The prosecutors also argued that Stearns' decision in the Cadden case grossly understated the loss caused by Cadden and Chin. Citing decisions in other cases, they said the loss caused by Cadden and Chin should include all the money paid to NECC from 2006 to 2012, or $132.8 million not just $1.4 million.
"No one would have bought any of NECC's drugs had they known the truth about NECC's operations. NECC's drugs were worthless," the filing states. "NECC's entire manufacturing operation was a fraud."
The filing recounts the trial testimony last Fall in which former NECC's employees described insanitary conditions at NECC, the lack of testing of its drugs, the use of outdated and expired ingredients and the shipping of drugs before tests could even be completed.
Citing the the "seriousness of Chin's crimes," the prosecutors said, "a lengthy period of incarceration is warranted here."
"The suffering that resulted when 14 strains of fungi swimming in Chin's methylprednisolone acetate made their way into patients is immeasurable," the memo states.
The prosecutors specifically cited the impact statements submitted by victims from Michigan, Tennessee and Indiana. Joan Peay, a Nashville, Tenn. victim, said she still suffers from the after effects of two bouts of fungal meningitis and the debilitating anti-fungal treatments.
"The worst is the damage to comprehension," Peay wrote. "It doesn't sound like much but it has been terrible."
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Final NECC Trial Re-Scheduled

By Walter F. Roche Jr.

Just a day after setting a March date for the final trial stemming from a deadly meningitis outbreak, a federal judge has issued an order putting the trial of nine defendants off for seven months.
Citing an irresolvable conflict, U.S. District Judge Richard G. Stearns revoked his Wednesday order setting a March trial date and issued a new one setting Oct. 2 trial date for the nine remaining defendants stemming from a two-year probe of the 2012 fungal meningitis outbreak.
In the brief order Stearns said he had learned his Wednesday order created a conflict for at least one attorney involved in the case and that other defense lawyers needed additional trial preparation time.
Noting that federal prosecutors were unwilling to split off any of the cases, Stearns said that one attorney was already scheduled for a lengthy trial and two others had other conflicts.
Stearns said he was also sensitive to the fact that two of the defendants, Kathy Chin and Michelle Thomas, had just been brought back into the case by an appeals court ruling. His ruling dismissing charges against the two was overruled after 14 months.
He said attorneys for the two now needed further time to review transcripts, review evidence  and prepare a defense.
The seven others facing trial include Gene Svirsky, Christopher Leary, Joseph Evanosky, Scott Connolly, Sharon Carter, Alla Stepanets and Gregory Conigliaro.
All were connected to the New England Compounding Center, the company blamed for the 2012 outbreak which took the lives of at least 76 patients across the country.
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