BOSTON (CN) – A drug-company owner convicted in a 2012 nationwide meningitis outbreak pushed the First Circuit for a reversal Tuesday by accusing prosecutors of having prejudiced the jury with “gruesome, grisly and emotional” testimony about victim suffering.
The testimony had “no probative value,” said Bruce Singal, an attorney with Barrett & Singal, noting that his client Barry Cadden had already stipulated that some 751 patients were sickened by mold-tainted steroid injections produced by his New England Compounding Center.
Considered the worst public health crisis in recent U.S. history, the outbreak caused 64 deaths — many of whose details were relayed in excruciating detail at the trials of Cadden and pharmacist Glenn Chin.
In his appellate brief for Cadden, Singal described the government as having relayed “devastating descriptions with visuals of how the fungus ate away at [victims’] brains and other parts of their bodies.”
Even the trial judge noted how testimony from next of kin made an emotional impact on the jury, Singal said.
Indeed, the brief emphasizes, when pharmacists and other defendants not charged with murder went on trial, the judge opted to exclude testimony from CDC doctor Benjamin Park, saying the evidence was "so heinous or shocking as to invite an emotional reaction from the jury.”
Citing the jury’s rejection of the second-degree murder charges against Cadden, Singal said the government brought the counts solely as a basis to introduce graphic and inflammatory evidence that would prejudice the jurors on the less serious counts of fraud and mislabeling.
The argument seemed to curry favor with U.S. Circuit Judge David Barron, an Obama appointee. “I’m not following why the testimony was relevant, given that there was no dispute” that the drugs caused the disease, Barron said.
Justice Department lawyer David Lieberman shot back that the government is not under any obligation to accept the defendant’s stipulation.
“We can go ahead and prove it ourselves,” Lieberman said.
“OK,” replied Barron, “but what is the story you can tell us as to why this is useful?”
U.S. Judge Kermit Lipez, a Clinton appointee, made a similar point.
“You can reject the stipulation, but then you run the risk of being overturned for unfair prejudice,” he said.
Lieberman replied that there was no reason to think the jury was unfairly prejudiced given that it also acquitted Cadden on some of the mislabeling counts.