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Ex-pharmacy employees convicted after 2012 meningitis outbreak lose appeals

3 minute read

A sign for pharmaceutical compounding company New England Compounding Center, in Framingham, Massachusetts October 8, 2012. REUTERS/Jessica Rinaldi

  • Prosecutors said Kathy Chin and Michelle Thomas created phony prescriptions for names like "Filet O'Fish" and "Jimmy Stewart"
  • A 1st Circuit panel refused to overturn their convictions on misbranding charges

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BOSTON (Reuters) - Two former employees of the Massachusetts compounding pharmacy behind 2012's deadly fungal meningitis outbreak have lost appeals of their convictions for filling fake prescriptions made out to patients such as "Tony Tiger" and "Flash Gordon."

The 1st U.S. Circuit Court of Appeals in Boston on Wednesday ruled a reasonable jury could conclude former New England Compounding Center pharmacists Kathy Chin and Michelle Thomas dispensed misbranded drugs with an intent to defraud or mislead.

Lawyers for Chin and Thomas argued that while they were licensed pharmacists, they were not legally dispensing drugs at the now-defunct NECC, where they worked in the shipping department checking drug orders destined for hospitals.

But U.S. Circuit Judge David Barron, writing for the 3-0 court, said neither Chin nor Thomas in pressing that argument disputed that the federal Food, Drug and Cosmetic Act required NECC to ensure legitimate prescriptions triggered the drug shipments.

He also said no reasonable juror could conclude that Chin and Thomas were merely shipping clerks, given that they were licensed pharmacists and filled out paperwork that only a pharmacist was allowed to sign.

Joan Griffin, Chin's lawyer, and Michael Bourbeau, Thomas' lawyer at Bourbeau & Bonilla, did not respond to requests for comment on Thursday.

Chin and Thomas were among 14 people associated with NECC who were indicted after mold-tainted steroids it produced sparked a fungal meningitis outbreak that sickened 793 people nationally, including more than 100 who died.

The defendants included Barry Cadden, NECC's ex-president and co-founder, and Glenn Chin, its former supervisory pharmacist and Kathy Chin's husband, who were convicted of racketeering and fraud and are serving prison sentences of 14-1/2 and 10-1/2 years, respectively.

Unlike Cadden and Glenn Chin, Kathy Chin and Thomas were not charged with playing a direct role in the outbreak. But prosecutors said the two helped NECC maintain an elaborate facade that allowed it to ship drugs without necessary, valid prescriptions.

State-regulated compounding pharmacies like NECC are supposed to produce customized drugs pursuant to patient-specific prescriptions to address individual needs.

Prosecutors said that NECC, to get around the prescription requirement and ship drugs in bulk, processed orders from hospital customers nationally based on prescriptions that had fake patient names.

Prosecutors said Chin and Thomas approved orders for shipment for patients like "L.L. Bean," "Filet O'Fish" and "Jimmy Stewart."

A federal jury in 2019 found Chin guilty on four counts and Thomas guilty on two counts of misbranding. U.S. District Judge Richard Stearns sentenced Chin to two years of probation and Thomas to one year of probation.

The case is U.S. v. Chin, 1st U.S. Circuit Court of Appeals, No. 20-1050.

For U.S.: Assistant U.S. Attorney Randall Kromm

For Kathy Chin: Joan Griffin

For Thomas: Michael Bourbeau of Bourbeau & Bonilla

Nate Raymond reports on the federal judiciary and litigation. He can be reached at nate.raymond@thomsonreuters.com.

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