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Judge Blocks Further Testimony by Victims of the 2012 Fungal Meningitis Outbreak

"The emotional impact on the jurors has been visible to the court," judge writes in his ruling.

Published: February 7, 2017

BOSTON, Mass. — In a major setback to prosecutors, the judge presiding over the second-degree murder trial of Barry J. Cadden has ruled that no further victims of the 2012 fungal meningitis outbreak will be allowed to testify.

In a 5-page ruling, U.S. District Judge Richard G. Stearns granted a motion by Mr. Cadden's attorneys to block further testimony by victims or their survivors. Stating that while prosecutors have thus far been "delicate" in the presentation of victims' evidence, Judge Stearns wrote that "the emotional impact on the jurors has been visible to the court" particularly when the testimony "has turned inevitably (and understandably) to a description of the suffering of the victim prior to death."

But, the judge continued, "family witness victim description testimony has now reached (the Rule 403) tipping point."

The ruling may also block plans by prosecutors to present autopsy testimony on the 25 victims named in the second-degree murder charges against Mr. Cadden.

In a second decision, Judge Stearns ruled that Mr. Cadden's lawyers can present as evidence emails from Mr. Cadden prior to 2012 that show the former drug company president did have concerns about the quality and safety of drugs being produced by the New England Compounding Center. Previously he had ruled that any emails prior to 2012, the year of the outbreak, could not be presented to the jury.

Both decisions come in Mr. Cadden's trial on racketeering and second degree murder charges. He is the first to go to trial in a 2014 grand jury indictment stemming from a federal probe of the outbreak that took the lives of 76 patients across the country. Mr. Cadden's company, NECC, has been blamed for the outbreak caused by fungus-laden steroids.

Walter F. Roche, Jr.

Mr. Roche, a former reporter for the Baltimore Sun and Nashville Tennessean, is covering the NECC trial in Boston for Outpatient Surgery.

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