Mimesis Law
16 December 2017

Barry Cadden: A Powerful Story of Greed

January 11, 2017 (Fault Lines) — There’s something quite compelling about the idea of bringing a corrupt corporate bigwig to justice. Whether they’re trying to stick it to a CEO in the coal business who they thought disregarded safety rules or getting a life sentence for a CEO in the peanut business whose salmonella-laced product caused several deaths, the allure of bringing a case against someone powerful surely isn’t lost on prosecutors. Punishing greed makes for a great story.

That seems to be exactly the narrative prosecutors are pushing in the case against Barry Cadden:

A long-awaited federal trial opened Monday in Boston for Barry Cadden, a Massachusetts pharmacist facing murder and racketeering charges in the deaths of 25 patients injected with steroids from his lab.

Cadden, who earned tens of millions as co-founder and head pharmacist at New England Compounding Center (NECC) in Framingham, could receive a maximum life-in-prison sentence for his alleged role in a nationwide fungal meningitis outbreak in 2012. According to the U.S. Centers for Diseases Control and Prevention, 751 patients in 20 states came down with meningitis infections after being injected with NECC steroids, and 64 of them died.

The media loves the idea of going after greed almost as much; if that wasn’t the case, they wouldn’t have mentioned Cadden’s salary prominently in the second paragraph in the article. Regardless, this story almost doesn’t really need the greed angle.

The body count is huge, and given that those patients all apparently received injections of NECC steroids, the defense isn’t going to have it easy. If this were a civil case, and there surely are those as well arising from the same circumstances, there would be litigation regarding causation. There’d be litigation about duty and other legal requirements that might prove successful for a well-funded defense. In criminal case, the simple facts that 751 people got meningitis after taking NECC steroids, and 64 died, puts the defense at a distinct disadvantage.

Still, prosecutors went with the greed angle:

Prosecutor George Varghese, in his opening statement, portrayed Cadden as a callous fraud who brushed off environmental warnings, ignored expiration dates, fabricated false patient names and knowingly imperiled thousands of lives by shipping drugs from a flagrantly unsanitary lab.

“It’s a story of greed,” Varghese said. “But mostly, it’s a story of fraud.”

You can’t blame them, really. Hopefully the defense precluded mention of Cadden’s salary, a piece of information sure to enrage the jury, but there’s plenty of evidence essential to the charge that also happens to portray Cadden as an uncaring rich businessman more concerned about money than human life. Ignoring warnings and expiration dates, just like maintaining an unsanitary lab, are central to the case against Cadden, whose mental state is at issue.

Sure, it’s hard to tell just how ignoring environment warnings led to those deaths. The same is true of fabricating patient names. But they may show Cadden didn’t care about following the rules. They may help to show just how greedy he was, and how that led him to break the rules in every area. While every piece of information that makes Cadden look bad may not go to causation, all of those things fit perfectly in a story of greed.

The greed angle works even better when there are sympathetic victims:

Jurors saw photos of two men – Douglas Wingate of Roanoke, Va. and Godwin Mitchell of Ocala, Fla. – who’d both received injections for back pain Sept. 6, 2012. Both suffered headaches, followed by strokes and died. The cause, Varghese alleged, was a hard-to-diagnose fungus that had been injected, reached the brain stem, ate through blood vessels and triggered deadly strokes.

“They both had injections in their backs of a drug made by this man,” Varghese said, pointing in Cadden’s direction. “This man is Barry Cadden.”

It was probably a really dramatic moment. The photos were probably powerful and upsetting. Trial is about more than emotion, though. The defense latched onto that:

Defense lawyer Bruce Singal countered that “there’s no evidence” to hold Cadden responsible for any of the deaths. Singal pushed back against the government’s portrayal of NECC’s facilities as a place where unheeded sanitation standards gave rise to mold, bacteria, flies in the air and oil seeping up from the ground through the floor.

Singal said the contamination-free “clean room” had a long track record for safety as evidenced in more than 850,000 uncontaminated vials. He showed jurors video clips of clean room employees in protective suits sterilizing syringes first thing in the morning.

What happened in the tragic meningitis outbreak, he said, was an “isolated, aberrational” event that was by no means typical for NECC.

It’s funny how the prosecution and defense seem to be describing two completely different facilities, but that’s often how trial works. Most of the facility might be fine. The mold could’ve just been what developed in the injections and caused the deaths. It’s unlikely any large facility harbors no bacteria whatsoever, and the issues with flies and oil could’ve been isolated instances or certain locations where those things are more understandable. Listing them in isolation makes things seem awful, which is exactly what the prosecution wants.

Similarly, unless the place really was squalid throughout, it probably looked cleaner than some of the jurors’ apartments. It might’ve been dirty for what it was, but at least parts of it almost certainly looked sanitary, if not sterile. They were able to produce lots of uncontaminated vials, so they presumably had equipment capable of doing what they were supposed to do. If pictures of the facility make it look like Delta Tau Chi the morning after a kegger, things aren’t going to go well for Cadden. If it still looks like a professional lab, even if a few spots here and there are a little gross, Cadden will at least have a fighting chance.

If true, Cadden’s biggest problem, much like all of the other CEOs who have found themselves in the same position and lost, would be the fact the terrible conditions were part of a scheme:

Prosecutors say Cadden co-conspired in a scheme that involved misleading regulators, failing to test drugs for sterility and ignoring warnings that flagged mold and bacteria growing in clean rooms.

If you really want to piss off prosecutors, try to avoid detection as part of your crime. If you want to make it even worse, do it successfully for a while. If prosecutors thought Cadden was a dope who was in over his head and oblivious to the dangers he was creating, things would be very different. It’s as big a deal as it is because they’re convinced not only that he failed to run his company as he should have, but that is was intentional and he tried to continue it and even hide it, thwarting regulators’ efforts.

The defense that Cadden is just a bumbling idiot would probably be a pretty simple one, but it doesn’t seem to fit the facts. Instead, Cadden appears left with this:

Bloom says defense lawyers will try to raise doubts about whether the deaths can be traced, not only to tainted drugs from NECC, but also to Cadden’s personal decision-making.

“This is not an easy case for the government to prove,” Bloom said. “You’ve got a medical lab that’s making these drugs. You have to show that the particular drug caused the death, which is not so easy.”

That’s exactly why cases like Cadden’s are unusual. Absent an internal memo to Cadden saying people will die if he ships certain drugs containing a certain mold, which was in fact the mold that killed those people, prosecutors are forced to make their case using correlation along and a lot of expert testimony. The defense probably has its own experts. It’s likely to be a boring trial.

The worst part of this for Cadden is the death toll and the fact all of the affected people happened to take his drug. For many jurors, that, along with the fact he was the guy in charge, would be enough to seal his fate. The defense may be able to hold the prosecution to its burden of proving the drug was indeed the cause of the infection, but the jury’s only alternative would be to accept that an incredible coincidence occurred. Give them literally anything and they’ll probably see the connection between the injections and the deaths.

It would also take a lot for a jury to accept that Cadden also didn’t know what was happening, but that’s where the greedy-CEO-narrative comes in handy again. In fact, it’s an important nail in Cadden’s coffin.

Cadden’s wealth and power, things that might have once prevented a case like this from ever getting filed, instead serve to convince the jury of his mens rea. Greed as a theme is powerful for that reason. His lawyers may still have a lot to work with, but at the end of the day, prosecutors have a compelling story filled with tragedy as well as a target whose business and financial successes both establish liability and provide reason to dislike him. That’s a hard thing to beat.

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