Jury quirk in U.S. meningitis outbreak case could bring stiffer sentence

FILE PHOTO: Barry Cadden, the former president of New England Compounding Center, exits the federal courthouse in Boston, Massachusetts, U.S., March 22, 2017. REUTERS/Nate Raymond/File Photo

By Nate Raymond

BOSTON (Reuters) – Prosecutors on Monday said a quirk in the trial verdict of a Massachusetts pharmacist cleared of murder for selling fungus-ridden steroids that killed 64 people in 2012 meant that a judge could still consider the murder allegations at his sentencing.

A federal jury in March found Barry Cadden, the co-founder and ex-president of New England Compounding Center, guilty on racketeering and fraud counts but cleared him of the most serious charges, second-degree murder, for his role in a meningitis outbreak that sickened 753 people in 20 states, killing 64.

But when the 12 jurors filled out their verdict slip, rather than just checking findings of “guilty” or “not guilty,” they filled in numbers that prosecutors now say reflected vote counts showing a majority found Cadden guilty on 21 of 25 murder counts.

The U.S. Attorney’s office in Massachusetts argued in a motion filed on Monday that the verdict form showed jurors believed Cadden was guilty of murder and want the judge to consider that fact in determining his sentence on June 26.

Former prosecutors said they had never seen a verdict slip quite like it.

“While they failed to reach unanimity on these racketeering acts, the jury’s verdict confirmed that the murder racketeering acts were proven by a preponderance of the evidence in this case, and can be properly considered at sentencing,” prosecutors wrote in the filing.

Their argument might work since judges at sentencing can consider conduct proven by a standard lower than what jurors are instructed to follow to convict someone, said David Schumacher, former deputy chief of the health care fraud unit of the U.S. Attorney’s office.

“They have a very good argument,” he said. “They actually have documentary evidence prosecutors never have in criminal cases.”

A conviction on any of the 25 acts of second-degree murder Cadden faced under a racketeering law could have exposed him to life in prison. He could still face decades behind bars.

A lawyer for Cadden did not respond to a request for comment. In court papers, his lawyers have disputed that the jury did not clearly acquit him and said prosecution claims to the contrary were “wishful thinking.”

Cadden, 50, was one of only two out of 14 people indicted in 2014 connected to the scandal at the Framingham, Massachusetts-based New England Compounding Center to face murder charges. The other murder defendant, former supervisory pharmacist Glenn Chin, is scheduled go on trial on Sept. 19. He has pleaded not guilty.

Prosecutors said that in 2012, the compounding pharmacy sent out 17,600 vials of steroids labeled sterile that were contaminated with mold to 23 states and that Cadden ignored the rules and put profits before patients. Cadden denied wrongdoing.

(Adds missing word “care” to 7th paragraph.)

(Reporting by Nate Raymond; editing by Scott Malone and Tom Brown)

Exclusive: Vomitoxin makes nasty appearance for U.S. farm sector

FILE PHOTO -- Cobs of corn are held at a corn field in in La Paloma city, Canindeyu, about 348km (216 miles) northeast of Asuncion August 7, 2012. Corn export is second only to soybean export in Paraguay. REUTERS/Jorge Adorno/File Photo

By P.J. Huffstutter and Michael Hirtzer

CHICAGO (Reuters) – A fungus that causes “vomitoxin” has been found in some U.S. corn harvested last year, forcing poultry and pork farmers to test their grain, and giving headaches to grain growers already wrestling with massive supplies and low prices.

The plant toxin sickens livestock and can also make humans and pets fall ill.

The appearance of vomitoxin and other toxins produced by fungi is affecting ethanol markets and prompting grain processors to seek alternative sources of feed supplies.

Researchers at the U.S. Department of Agriculture first isolated the toxin in 1973 after an unusually wet winter in the Midwest. The compound was given what researchers described as the “trivial name” vomitoxin because pigs were refusing to eat the infected corn or vomiting after consuming it. The U.S. Corn Belt had earlier outbreaks of infection from the toxin in 1966 and 1928.

A vessel carrying a shipment of corn from Paraguay is due next month at a North Carolina port used by Smithfield Foods Inc [SFII.UL], the world’s largest pork producer.

The spread of vomitoxin is concentrated in Indiana, Wisconsin, Ohio, and parts of Iowa and Michigan, and its full impact is not yet known, according to state officials and data gathered by food testing firm Neogen Corp.

In Indiana, 40 of 92 counties had at least one load of corn harvested last fall that has tested positive for vomitoxin, according to the Office of Indiana State Chemist’s county survey. In 2015 and 2014, no more than four counties saw grain affected by the fungus.

And in a “considerable” share of corn crops tested in Michigan, Wisconsin and Indiana since last fall’s harvest, the vomitoxin levels have tested high enough to be considered too toxic for humans, pets, hogs, chickens and dairy cattle, according to public and private data compiled by Neogen. The company did not state what percent of each state’s corn crop was tested.

Smithfield would not confirm it had ordered the corn from Paraguay, but two independent grain trading sources said Smithfield was the likely buyer. A company source said corn Smithfield has brought in from Indiana and Ohio, to feed pigs in North Carolina, has been “horrible quality” due to the presence of mycotoxins.


The U.S. Food and Drug Administration allows vomitoxin levels of up to 1 part per million (ppm) in human and pet foods and recommends levels under 5 ppm in grain for hogs, 10 ppm for chickens and dairy cattle. Beef cattle can withstand toxin levels up to 30 ppm.

Alltech Inc, a Kentucky-based feed supplement company, said 73 percent of feed samples it has tested this year have vomitoxin. The company analyzed samples sent by farmers whose animals have fallen ill.

“We know there is lots of bad corn out there, because corn byproducts keep getting worse,” said Max Hawkins, a nutritionist with Alltech.

Neogen, which sells grain testing supplies, reported a 29 percent jump in global sales for toxin tests – with strong demand for vomitoxin tests – in their fiscal third quarter, ending Feb. 28.

“We’re polling our customers and continually talking to them about the levels they’re seeing. Those levels are not going down,” said Pat Frasco, director of sales for Neogen’s milling, grain and pet food business.

The problem, stemming from heavy rain before and during the 2016 harvest, prompted farmers to store wet grain, said farmers, ethanol makers and grain inspectors.

The issue was compounded by farmers and grain elevators storing corn on the ground and other improvised spaces, sometimes covering the grain piles with plastic tarps. Grain buyers say they will have a clearer picture of the problem later this spring, as more farm-stored grain is moved to market.

Iowa State University grain quality expert Charles Hurburgh said the sheer size of the harvest in 2016 – the largest in U.S. history – complicates the job of managing toxins in grain, especially in the core Midwest.

“Mycotoxins are very hard to handle in high volume,” he said. “You can’t test every truckload, or if you do, you are only going to unload 20 trucks in a day.” By comparison, corn processors in Iowa unload 400 or more trucks a day.


Ethanol makers already are feeling the impact. Turning corn into ethanol creates a byproduct called distillers dried grains (DDGs), which is sold as animal feed. With fuel prices low, the DDGs can boost profitability.

But the refining process triples the concentration of mycotoxins, making the feed byproduct less attractive. DDG prices in Indiana fell to $92.50 per ton in February, the lowest since 2009, and now are selling for $97.50 per ton, according to USDA.

Many ethanol plants are testing nearly every load of corn they receive for the presence of vomitoxin, said Indiana grain inspector Doug Titus, whose company has labs at The Andersons Inc, a grain handler, and energy company Valero Energy sites.

The Andersons in a February call with analysts said vomitoxin has hurt results at three of its refineries in the eastern U.S. “That will be with us for some time,” Andersons’ chief executive Pat Bowe said.

Missouri grain farmer Doug Roth, who put grain into storage after last year’s wet harvest, has seen a few loads of corn rejected by clients who make pet food after the grain tested positive for low levels of fumonisin, a type of mycotoxin.

Roth said he paid to reroute the grain to livestock producers in Arkansas, who planned to blend it with unaffected grain in order to mitigate the effect of the toxins.

“As long as this doesn’t become a widespread problem, we’re all fine,” said Roth, who said toxins have shown up in less than 1 percent of the grain loads he has sold.

U.S. farmers with clean corn are reaping a price bump. A Cardinal Ethanol plant in Union City, Indiana, is offering grain sellers a 10-cent per bushel premium for corn with less than one-part-per-million (ppm) or less of vomitoxin in it, according to the company’s website.

(Additional reporting by Karl Plume and Julie Ingwersen in Chicago; Editing by Matthew Lewis)