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Jenna Greene

Dec 17, 2018

Good morning! I’m Lit Daily editor Jenna Greene and today is December 17. Reach me at or on Twitter @jgreenejenna.

In Meningitis Pharmacy Case, 11 Guilty and One Acquittal—How McDermott Lawyers Won Their Case

“Representing an innocent person,” said McDermott Will & Emery partner Mark Pearlstein, (pictured above) “is the most pressure of all for a defense attorney.”

And pharmacist Joseph Matthew “Matt” Evanosky was “absolutely innocent,” Pearlstein said, wrongly caught up when the feds indicted 14 people in connection with the New England Compounding Center. In 2012, more than 100 people died and about 700 were sickened in a nationwide fungal meningitis outbreak linked to contaminated drugs from the pharmacy.

After a seven-week trial, a federal jury in Boston last week acquitted Evanosky while finding his five co-defendants guilty on a range of charges including racketeering, mail fraud and conspiring to defraud the U.S. Food and Drug Administration. (None of the defendants in this trial were accused of making the specific drugs that harmed people.)

To date, 11 people connected to the pharmacy have been convicted or pleaded guilty. Evanosky is the lone acquittal.

The jury’s not guilty verdict was “a reminder of why I decided to become a lawyer in the first place, and why I became a defense attorney,” said Pearlstein, who previously headed McDermott’s Boston office and Boston trial practice, and is a member of the firm’s management committee.

According to the FDA, the pharmacy failed to properly sterilize equipment, used expired ingredients in compounding medications and “routinely ignored mold and bacteria found inside the clean rooms” to maximize production and profits. As a result, hundreds of patients with who received injections of NECC’s methylprednisolone acetate, which is used to treat pain and inflammation, developed life-threatening fungal meningitis.

A Criminal Justice Act panel member, Pearlstein was appointed by the court to represent Evanosky three years ago. Partner Dana M. McSherry and associate Jennifer Aronoff (who relocated from Chicago for the trial) rounded out the team. The firm opted not to seek reimbursement under the CJA for any attorney fees, handling the matter on a pro bono basis.

Pearlstein knew up front it would be a significant time commitment. “It was clear there was going to be a trial. There was never a plea possibility,” he said. “But I love trying cases.” Plus the trial provided an opportunity for Aronoff to get in-court experience, cross-examining several witnesses on the stand.

With six co-defendants, the proceedings were cumbersome, but Pearlstein said the defense counsel “got to know and trust one another… We were very focused on trying to coordinate our positions while still vigorously representing our individual clients.”

The other defendants were represented by lawyers from firms including Greenberg Traurig; Holland & Knight; Jackson Lewis; Clements & Pineault and Cunha & Holcomb.

So how did Pearlstein win acquittal for Evanosky?

“One feature that was important is that unlike the other pharmacists in the case, his job responsibilities were a little more limited,” Pearlstein said.

Evanosky handled each step in the process of making drugs for intrathecal pumps—medication delivered via an implanted pump to treat pain.

“Essentially he was working on his own,” Pearlstein said, and the government never raised any issues related to the pumps.

Nor was he particularly well paid—he was hired in the spring of 2011 when he was about 39 years old, and made $68,000 that year. In 2012, he earned $84,000 until the pharmacy was shut down. He got no bonus or profit sharing, and was not paid extra for churning out more drugs.

By contrast, the New England Compounding Center owners made millions in profits.

“Why would a person who had otherwise led a blameless life suddenly become a criminal to benefit owners he hardly knew?” Pearlstein said.

The jury was convinced, finding Evanosky not guilty of all charges—racketeering, mail fraud and introduction of adulterated drugs into interstate commerce with intent to defraud.

“At the end of the day, what I’ll remember always is walking into the hallway after the verdict, and [Evanosky’s] wife came up to me and hugged me and thanked me for saving their lives,” Pearlstein said. “A moment like that, there’s no price you can put on it.”


What I’m Reading

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In Upholding $100M Tax Shelter Fraud Verdict, KY High Court Sends a Message
When Kentucky's court of last resort reinstated a $100 million verdict against Chicago-based Grant Thornton, the world's sixth-largest accounting firm, it was more as a deterrent against future misconduct than out of sympathy for the wealthy plaintiffs.

Gibson Dunn Fee Petition Highlights DOJ's Switched Position in SCOTUS
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He's Baaack: Alex Kozinski Returns to the 9th Circuit (as a Lawyer)
Kozinski appeared on a Ninth Circuit brief alongside lawyers from Toberoff & Associates on behalf of the son of Pulitzer Prize-winning author Paul Zindel, who claims the filmmakers behind the Academy Award-winning film "The Shape of Water" ripped off multiple copyrighted elements from his father.

Weinstein Accusers Want to Block Emails Unearthed in Del. Bankruptcy Action
Attorneys in a class action suit against Harvey Weinstein say the former Hollywood mogul is improperly looking to mine the discovery process in Delaware federal court for information to discredit sexual assault claims against him in Manhattan federal court.

In Exploding E-Cigarettes Suits, LG Raises Jurisdictional Defense
A plaintiffs firm suing over injuries caused by exploding e-cigarettes has asked a California judge to coordinate the cases in order to decide a jurisdictional challenge raised by LG, the alleged manufacturer of the lithium ion batteries at issue.

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