U.S. First Circuit - The FindLaw 1st Circuit Court of Appeals News and Information Blog

Fake Prescriptions Case Goes Back to Trial Court

Judge O. Rogeriee Thompson is different, and it has nothing to do with the spelling of her name.

It has to do with her words and how she crafts an opinion. Any judge who can introduce a standard of review with a "quick heads up," knows how to catch a reader's attention.

At least that's how Thompson explained the decision of the U.S. First Circuit Court of Appeals in United States of America v. Stepanets. As it turned out, the defendants needed the warning.

Misbranded Drugs

Pharmacists Alla Stepanets, Kathy Chin, and MichelleThomas were indicted on charges of dispensing drugs in violation of the Federal Food, Drug, and Cosmetic Act. The law prohibits, among other acts, dispensing misbranded drugs without "a written prescription of a practitioner licensed by law to administer such drug."

The defendants were caught in an investigation that took down two dozen people on a 131-count indictment for activities at the New England Compounding Center. In a separate case, the head pharmacist was sentenced to nine years in prison in connection with a nationwide fungal meningitis outbreak.

In the misbranded prescriptions case, the defendants allegedly "dispensed" drugs based on prescriptions for fake patients. However, a trial judge dismissed the indictments because the defendants only checked packages before they went out.

He said "a reasonable pharmacist" would not know "that by matching orders to packages prior to their being shipped she was criminally liable for participating in the filling of a prescription that she had never approved." The First Circuit reversed and remanded.

Wonder Woman et Al.

After giving a "quick heads up," the appeals court explained how the judge erred. But Rogeriee couldn't pass on the opportunity to footnote the origins of the fictitious patients, including Wonder Woman, Fat Albert, Flash Gordon, Tony Tiger. and others.

"For anyone not up on pop culture: Wonder Woman is a madeup superhero of comic book, television, and movie fame," she wrote with citations to references for each character.

As for the trial judge, the appeals court said he applied the wrong standard in dismissing the indictment. The indictment gave the defendants enough information to prepare a defense.

"The law requires no more," the appellate panel said.

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