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In NECC case, U.S. attorney declares victory, but defense sees verdicts as more proof of overcharging.

Byline: Kris Olson

When a federal jury on Dec. 13 returned guilty verdicts against four former employees and a former owner of the New England Compounding Center, the tally stood at prosecutors having gotten convictions on federal criminal charges against 11 of 12 former NECC owners, executives and employees tried thus far.

That's certainly the barometer the U.S. Attorney's Office would prefer you use.

But lawyers involved in the most recent trial suggest that the math isn't quite that simple.

Indeed, given the inability to make the most serious changes stick, when the book is closed on the NECC trials, the predominant storyline may be one of the government overcharging, says Boston's John H. Cunha Jr., who with partner Helen Holcomb represented Alla Stepanets, 38, of Framingham, one of NECC's verification pharmacists.

The jury acquitted Stepanets of the three felony counts she faced but convicted her of six counts of introducing misbranded drugs into interstate commerce, which Cunha notes are "strict liability" offenses.

Stepanets faces a sentence of no more than one year in prison at her March 26 sentencing, though Cunha says the guidelines point to zero to six months, and that he and Holcomb will be requesting a short probationary term.

Cunha bristles at one line in U.S. Attorney Andrew E. Lelling's press release addressing the verdicts.

"Over the course of years, the defendants callously disregarded patient health by cutting corners and prioritizing profits over safety," Lelling is quoted as saying.

That's "nonsense" and "just dishonest," Cunha says, noting that other than one owner who was not involved in NECC's operations, the other five co-defendants recently tried were hourly employees with no real stake in the business's bottom line.

Mark W. Pearlstein, a partner at McDermott, Will & Emery, represented the one NECC defendant to be exonerated completely, Joseph "Matt" Evanosky, 46, of Westford, a pharmacist who worked in a "clean room" for the last 18 months of NECC's existence.

Evanosky had been charged with racketeering, racketeering conspiracy, mail fraud, and violations of the Food, Drug and Cosmetics Act.

As with the other defendants, the general idea was that Evanosky had participated in a scheme to defraud NECC's customers about the quality and sterility of a compound that caused a 2012 fungal infection that killed more than 100 patients and made several hundred sick, according to the U.S. Attorney's Office.

The trial of Evanosky and his five co-defendants began in early October.

When the jury rendered its verdicts on the seventh day of deliberations, they came as a relief for Pearlstein.

"The most pressure a defense lawyer can face is representing an innocent person," he says.

He adds: "I will say our hearts do bleed for the other defendants. We feel the same way about them."

Evanosky has a young family and has been living under the "shadow" of the indictments for the past four years, Pearlstein says.

"Tonight [Dec. 13] is the first time he will be able to sit down and have dinner and not contemplate a future with serious criminal charges hanging over him," Pearlstein says.

The jury delivered widely varying verdicts to the six defendants, and it is hard to know exactly what it was thinking. During deliberations, jurors asked the judge no questions, Pearlstein notes.

With respect to Evanosky, the jury heard that his primary function related to a narcotics pump about which there were no allegations of problems, Pearlstein says. Instead, the government's theory was that Evanosky had a "collateral duty" to check the work of other pharmacy technicians.

Pearlstein represented Evanosky with Boston colleague Dana M. McSherry and Jennifer Aronoff, who relocated from the firm's Chicago office for the duration of the trial.

Pearlstein says he had never before tried a case with so many co-defendants, but the attorneys made it work.

"We got along well and were able to allocate responsibilities and witnesses in a way that made sense for everyone's clients," he says.

Other participating attorneys were Jeremy M. Sternberg of Holland & Knight in Boston, who represented former NECC clean room pharmacist Gene Svirskiy. Svirskiy, 37, of Ashland, faces up to 20 years in prison at his March 11 sentencing after being convicted of racketeering, racketeering conspiracy, 10 counts of mail fraud, and two counts of introduction of adulterated drugs into interstate commerce with intent to defraud or mislead.

Paul V. Kelly and Sarah W. Walsh, of Jackson Lewis in Boston, represented Christopher Leary, 34, of Shrewsbury, another NECC clean room pharmacist. Leary also faces up to 20 years in prison at his March 14 sentencing after being convicted of three counts of mail fraud, one count of introduction of adulterated drugs into interstate commerce with intent to defraud or mislead, and two counts of introduction of misbranded drugs into interstate commerce.

Boston's Michael J. Pineault of Clements & Pineault represented NECC's former director of operations Sharon Carter, 54, of Hopkinton. She was convicted of conspiracy to defraud the government and faces up to five years in prison at her March 21 sentencing.

Daniel M. Rabinovitz of Boston firm Murphy & King represented former NECC owner Greg Conigliaro, 53, of Southborough. Like Carter, he was convicted of conspiracy to defraud the government and faces up to five years in prison at his March 28 sentencing.

The remaining NECC defendants to be tried are former pharmacists Michelle Thomas and Kathy Chin, wife of supervisory pharmacist Glenn Chin, who was sentenced to an eight-year prison term earlier this year.

Thomas and Kathy Chin initially had their charges dismissed by U.S. District Court Judge Richard G. Stearns, only to have them reinstated by the 1st U.S. Circuit Court of Appeals.

Though he's not holding his breath, Cunha believes the charges against Kathy Chin and Thomas should be dismissed.

"It's the overcharging, the wide swath [of defendants] it's just not justified," he says.

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Title Annotation:New England Compounding Center
Author:Olson, Kris
Publication:Massachusetts Lawyers Weekly
Date:Dec 20, 2018
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