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Law360 (May 19, 2020, 9:48 PM EDT) -- Prosecutors argued Monday against releasing a pharmacist connected to a deadly meningitis outbreak from prison on coronavirus grounds, telling a Massachusetts federal court he's in no more danger than other prisoners.
Gene Svirskiy, formerly a pharmacist at the defunct New England Compounding Center, whose contaminated steroids sparked a nationwide meningitis outbreak in 2012, has asked a court for compassionate release due to the well-documented spread of the virus inside prisons, a setting where social distancing is inherently difficult. Svirskiy is 10 months through a 30-month sentence.
Svirskiy "fails to meet his burden to demonstrate that he falls into the narrow band of inmates for whom 'extraordinary and compelling reasons' warrant immediate and permanent release," prosecutors said in an opposition to his request.
"He suffers no terminal illness and is not of advanced age. He identifies no health factor that makes him more susceptible to COVID-19 than the general population. Indeed, he identifies himself as in good health. The only personal characteristic Svirskiy claims makes him more susceptible to COVID-19 than the general population is that he is male — a trait he shares with 93% of the federal prison population," prosecutors said.
Before making the request formally to a court, Svirskiy had made the request to the Bureau of Prisons leadership at his prison, FMC Devens, on April 7 and was denied on April 30, according to prosecutors.
Svirskiy worked in an NECC clean room compounding drugs and was not charged with making the steroids that caused the outbreak, which killed 64 people and infected almost 800 others.
But prosecutors said he made drugs under unclean conditions and allowed expired and poorly tested drugs to be shipped to hospitals.
Svirskiy was convicted in late 2018 on 14 counts, including racketeering conspiracy, after being found guilty with four other former NECC employees after a nearly eight-week trial in 2018. A sixth defendant was acquitted.
At Svirskiy's May 2019 sentencing, U.S. District Judge Richard Stearns said that Svirskiy did not deserve as harsh a fate as former NECC owner Barry Cadden or head pharmacist Glenn Chin, sentenced to nine and eight years in prison, respectively. But Svirskiy nonetheless abused his role as a pharmacist and broke laws related to drug safety, the judge said.
A total of 13 former NECC employees either pled guilty or were convicted.
Representatives for the parties were not immediately available for comment Tuesday.
The government is represented by Amanda Strachan and Christopher Looney of the U.S. Attorney's Office for the District of Massachusetts.
Svirskiy is represented by Jeremy Sternberg and Christopher Iaquinto of Holland & Knight LLP.
The case is U.S. v. Cadden et al., case number 1:14-cr-10363, in the U.S. District Court for the District of Massachusetts.
--Editing by Brian Baresch.
For a reprint of this article, please contact reprints@law360.com.
