Going Further: Winning Exoneration for an Innocent Man

THE CHALLENGE:

In 2012, a nationwide fungal meningitis outbreak resulted in the deaths of more than 60 people and sickened more than 750 others, according to the CDC. An investigation linked the outbreak to contaminated injectable steroids compounded at the New England Compounding Center in Massachusetts.

In the aftermath, former NECC staff pharmacist Matt Evanosky—who had no involvement in compounding or distributing the tainted medications—got caught in the web of accusations. He was indicted along with 13 others and charged with several federal crimes, facing steep fines and up to eight years in prison if convicted.

OUR OBJECTIVE:

Our involvement in the case began in 2015, when a U.S. District judge appointed a McDermott team to represent Matt. A litigation team including Mark Pearlstein, Dana McSherry and Jen Aronoff, with trial assistance from lead paralegal Alyse Mauro, took on the case pro bono and immediately got to work on Matt’s behalf to clear him of all charges.

THE OUTCOME:

The facts worked in Matt’s favor: At the NECC, where he was employed for just 18 months, he operated independently of other pharmacists and had limited responsibilities, no contact with customers and nothing to do with sales and marketing. Until the outbreak, he was unaware of any issues with the products compounded by the NECC.

Over a period of several years, Matt’s McDermott team took a series of critical steps in securing a positive outcome for him at trial.

First, a joint defense team succeeded in severing Matt’s trial from the trial of the NECC’s owner/head pharmacist and supervisory pharmacist, who had responsibility for compounding the contaminated products. They were accused of racketeering, racketeering conspiracy, mail fraud, federal Food, Drug and Cosmetic Act violations and 27 counts of second-degree murder racketeering acts in the patient deaths resulting from production of the tainted drugs. After being cleared of second-degree murder racketeering acts but convicted on other charges, they are currently serving time in prison.

Several defendants pleaded guilty to certain charges, and Matt ultimately faced trial alongside five others, all represented by different firms. Because the charges against the defendants at this trial did not involve allegations of patient harm, Matt’s McDermott team moved to exclude evidence of patient harm and death from the trial as irrelevant and unduly prejudicial. The court granted the motion.

During the seven-week trial, Mark’s unwavering focus on the evidence of Matt’s innocence—along with his ability to remain unfazed by the prosecution’s attempt to bait him into arguing tangential issues—helped him communicate successfully with the jury. Following a week of deliberations, that jury found Matt not guilty on all counts.

Matt was the only one of all 14 defendants originally indicted in the case to be fully acquitted by a jury.

GO FURTHER:

Matt’s four-year journey to exoneration was not an easy one. Between his indictment in 2014 and acquittal in 2018, with his future uncertain and the possibility of jail time a constant threat, he got married and had two children. Throughout the proceedings, his McDermott defense team worked diligently for his acquittal, knowing his future and his young family depended on them.

“Representing an innocent person,” Mark told Law.com’s The Litigation Daily in an interview following Matt’s trial, “is the most pressure of all for a defense attorney.”

Taking on the case pro bono, the team knew it involved a significant commitment of time and Firm resources. In addition to a lengthy research and preparation process demanding a great deal of attention from the partners handling the case, an associate and paralegal on Matt’s McDermott team moved from Chicago to Boston for the duration of the two-month trial.

With six codefendants represented by different defense counsel, the preparation for and logistics of the trial were often complicated. Matt’s defense team at McDermott spearheaded coordination with the other lawyers, authoring all of the major briefs in the case for the joint defense group and taking the lead on cross-examining the government’s expert witness—all while building the strongest possible individual case for Matt.

“Until the last ‘not guilty’ was read [for Matt], I don’t think I was breathing,” Mark recounted. “I remember going into the hallway afterward, and Matt’s wife gave me a hug and said, ‘Thank you for saving our family.’ There’s no more satisfying feeling as a lawyer than to know your efforts have contributed to your client being exonerated.”

To learn more about the outcome of the case, United States v. Cadden, et al. (14-cr-10363), click here.

Read the article in Law.com’s The Litigation Daily about the case, featuring an interview with McDermott partner Mark Pearlstein.