BOSTON, Jan 12 (Reuters) - A federal appeals court on Friday reversed a decision that dismissed charges against three pharmacists accused of helping fill fake prescriptions while working at a Massachusetts compounding pharmacy linked to a deadly 2012 fungal meningitis outbreak.
The ruling by the 1st U.S. Circuit Court of Appeals in Boston revived the only charges that former New England Compounding Center pharmacists Kathy Chin and Michelle Thomas faced after being indicted along with 12 other people in 2014.
The three-judge panel also reversed an October 2016 decision that partially dismissed the indictment against pharmacist Alla Stepanets to the extent that she, like Chin and Thomas, was accused of violating the Federal Food, Drug and Cosmetic Act.
Joan Griffin, Chin’s lawyer, said she was disappointed. Lawyers for the other pharmacists did not respond to requests for comment.
Prosecutors say that 778 people nationwide were sickened after being injected with mold-contaminated steroids produced in unsanitary conditions at Framingham, Massachusetts-based NECC. Of those, 76 people died, prosecutors said.
Prosecutors said the trio, who worked in NECC’s packing area checking orders pre-shipment, approved the delivery of drugs based on obviously fake prescriptions made out to patients including Wonder Woman and Flash Gordon.
U.S. District Judge Richard Stearns had found that trio was at most engaged in clerical tasks such as checking the address on a package’s mailing label, “incidental” conduct not covered by the statute’s prohibition on dispensing misbranded drugs.
But U.S. Circuit Judge O. Rogeriee Thompson wrote that Stearns incorrectly assumed the trio acted not as pharmacists at NECC but as shipping clerks, a proposition that prosecutors dispute. Thompson said jurors should hear the factual dispute.
“We agree with the government that the major flaw in the judge’s and the defendants’ analyses is that the indictment says nothing — zippo — about the defendants’ having simply checked addresses or worked as clerks,” Thompson wrote.
The decision came ahead of the Jan. 31 sentencing of Chin’s husband, Glenn Chin, a former NECC supervisory pharmacist who prosecutors said cut corners while overseeing the production of drugs, including the tainted steroids.
A federal jury in October found him guilty of racketeering and mail fraud charges but cleared him of second-degree murder in connection with the deaths of 25 people who were injected with mold-tainted steroids that NECC produced.
Barry Cadden, NECC’s co-founder and former president, was sentenced in June to nine years in prison after being found guilty of racketeering and fraud charges but similarly being cleared of murder. (Reporting by Nate Raymond in Boston; Editing by Susan Thomas)