Openings in Cadden Trial Reveal Unsurprising Strategies

19 Jan 2017
Mark Josephs
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The trial of Barry Cadden, former co-owner and head pharmacist at the New England Compound Center (NECC), began last week, with opening statements occurring on January 9.  In 2012, steroids manufactured and distributed by NECC allegedly led to 64 deaths and another 750 illnesses.  A 2014 indictment charged 14 individuals affiliated with NECC with various crimes relating to the tragedy, the most serious of which were second degree murder charges relating to 25 deaths brought against Cadden and Glenn Chin, the supervisory pharmacist at NECC.

Prosecutors and defense counsel staked out familiar positions in their opening statements.  Assistant U.S. Attorney George Varghese said that the evidence would show that Cadden oversaw operations at NECC and that he cut corners and ignored the welfare of patients because of greed.  Defense counsel Bruce Singal, on the other hand, explained that Cadden did not work in the contaminated areas that the government claimed caused the deaths and illnesses, and that prosecutors were attempting to blame Cadden for the actions of lower-level employees.

These are familiar arguments that have occurred in other health care-related prosecutions of high-level executives.  Prosecutors typically allege that the executives were directly in charge of the illegal activities and acted motivated by greed.  Defense counsel counter with the “rogue employee” defense, blaming low-level employees who acted outside of company standards.  In recent such trials, the defense has been largely successful, such as in the trial of William Facteau and Patrick Fabian.  A jury acquitted Facteau and Fabian of felony charges after they contended, in part, that low-level sales employees acting outside of company guidance were responsible for the off-label marketing at issue in the case.

The ability to blame lower-level company employees acting outside of their directives is one of the primary reasons for the difficulties faced by the government in prosecuting high-ranking executives, in health care and other industries.  The Cadden trial is worth watching to see if the extraordinary circumstances of the 2012 deaths causes a jury to reach different conclusions regarding the culpability of corporate executives.

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