Nearly ten years after the 2012 fungal meningitis outbreak sickened more than 750 people and killed 64 people nationally, the two men charged with the second-degree murder of 11 Michiganders are asking the Michigan Supreme Court to intervene in their case.
It’s a last ditch effort by Barry Cadden and Glenn Chin's legal teams to keep them from going to trial in this state, as the lower courts have ruled that they should.
A massive public health crisis from tainted steroids
Barry Cadden was the owner of the now-defunct New England Compounding Center in Framingham, Massachusetts, and Glenn Chin was the supervising pharmacist. Both men have already been convicted in federal court in Boston on dozens of charges, including “racketeering, racketeering conspiracy, mail fraud and introduction of misbranded drugs into interstate commerce with the intent to defraud and mislead.”
Cadden was sentenced to 14 and a half years, and Chin for 8, although he is awaiting resentencing after a court vacated his initial sentence.
In 2012, the fungal meningitis outbreak, called the “largest public health crisis ever caused by a pharmaceutical product” by federal prosecutors, started when the NECC shipped out batches of a contaminated steroid called methylprednisolone acetate, or MPA.
Compounding centers are like pharmacies, in that they prepare, package, and fill prescriptions. But they’re not supposed to be operating on a mass level: they’re only supposed to fill patient-specific prescriptions, and they’re supposed to follow rigorous sterilizing and cleaning procedures in their lab. That’s especially crucial when you’re working with methylprednisolone, which is injected directly into a patient’s spinal area to treat back pain.
But prosecutors said Cadden and Chin intentionally cut corners and forged records in an effort to keep production levels as high as possible, in a scheme that involved creating fake patient names, knowingly using expired drugs, not fully sterilizing their product, and then falsifying cleaning logs and mislabeling drugs to cover it up.
The contaminated steroids were shipped to hospitals and pain clinics in 20 states. According to the CDC, 64 people died as a result of receiving the drugs, including 19 in Michigan, 11 of whom were treated at a Brighton clinic.
“During the fungal meningitis outbreak, the CDC identified 18 different types of fungi from MPA vials and patient samples," federal prosecutors said. "In the words of one public health official, NECC was a ‘fungal zoo.’”
A second-degree murder case that could go to the state Supreme Court
There are two different cases in which Cadden and Chin faced charges. The first was on the federal level, where they were convicted on charges of racketeering, racketeering conspiracy, mail fraud, and other charges. But both were cleared of second-degree murder.
Then, in 2018, the Michigan attorney general’s office charged both Cadden and Chin with second-degree murder in the 11 Michigan deaths. After a preliminary examination, a Livingston County court judge ruled there was enough evidence for both men to go to trial. The defense attorneys appealed, arguing that the judge had erred in binding the defendants over for trial. But in April, the Michigan Court of Appeals issued a one-sentence ruling denying to take up the case.
Then last month, both Cadden and Chin filed appeals to the state Supreme Court, still arguing that there’s not enough evidence here for second-degree murder charges, and that lower court erred in sending them to trial.
Cadden’s attorneys are pointing the finger at Chin, who was the supervising pharmacist, while arguing that this should be a case about negligence, not murder.
In their brief to the Michigan Supreme Court, his attorneys argue the outbreak was caused by drugs that Cadden:
“...undisputedly did not compound, package, or ship, and which were produced in a lab were Mr. Cadden was rarely, if ever, personally present. …[T]he prosecution failed to present any evidence as to how the MPA actually became contaminated in the first place, let alone what act by Mr. Cadden supposedly caused that contamination.”
Cadden’s attorneys also argue that despite his role as an executive at NECC, the state prosecutors can’t point to a “specific, affirmative act” on Cadden’s part that makes him responsible for murder:
“...But Michigan law requires more to sustain a second-degree murder charge. At a minimum, it requires the State to identify a specific, affirmative act by Mr. Cadden that caused the deaths of the 11 individuals named in the Information. The State failed to do that here, and it cannot bury that failure under a mountain of irrelevant testimony. Nor can the State simply rewrite this Court’s second-degree murder precedents because the victims have experienced a uniquely devastating tragedy.”
The Michigan Attorney General’s office filed their own response to Cadden’s request last week. They argue the lower courts ruled correctly, and that there’s sufficient evidence to hold both men responsible for the deaths. But, the prosecution argues, the argument here isn’t whether or not Cadden and Chin are guilty of second-degre murder: it’s whether the lower court erred in ruling there’s enough evidence for the case to go to trial.
A preliminary examination is just about demonstrating “probable cause to believe that a crime was committed and probable cause to believe that the Defendant committed it,” a far lower legal bar than what’s required in a full trial, the prosecution argued in its filing to the state Supreme Court.
“...Cadden acted by ordering Chin to unsafely manufacture products in the cleanroom. He knew about specific dangerous practices, and it is reasonable to infer from the evidence that he knew about and ordered others. Regardless, he did nothing to correct Chin. The direct result of these practices was a contaminated and unsafe cleanroom environment where drugs were produced. Contaminated drugs from this cleanroom were then injected into patients in Michigan, causing death. Cadden acted, caused the unsafe and unsanitary condition, and death resulted. The district court was well within its discretion to arrive at this conclusion and bind Cadden over to stand trial.”
Reached for comment, Cadden’s attorney Gerald Glesson II and Chin's attorney James Buttrey said last week their clients are currently in custody at the Livingston County jail, where they've been for a year and a half.
“If the MSC decides to hear the case, there would be an order, but I imagine since the case has just been briefed, I would guess that you wouldn’t see any action until fall,” said Michigan Supreme Court spokesperson John Nevin in an email last week.
