Two former executives of medical device company Acclarent, including one man from Minnesota, were convicted by a federal jury Wednesday on misdemeanor charges of promoting a health care product for an unapproved use. The executives were acquitted of similar felony charges.
Former Acclarent Chief Executive William Facteau, 47, of California and former Vice President of Sales Patrick Fabian, 49, of Lake Elmo, were found guilty in federal court in Boston of 10 misdemeanor counts of violating the U.S. Food, Drug and Cosmetic Act, federal prosecutors said in a statement. The counts each carry a maximum prison sentence of one year.
The jury acquitted the men of wire fraud and conspiracy, finding the two didn't intend to defraud or mislead.
The verdict came after recent setbacks for regulators attempting to curb the promotion of drugs and devices for unapproved uses, known as off-label marketing.
Facteau's attorney, Reid Weingarten, and Fabian's attorney, Frank Libby, said in a statement they would move to overturn the convictions.
Johnson & Johnson's Ethicon unit acquired California-based Acclarent in 2010.
In an indictment unsealed last April, federal prosecutors said that in 2006 or earlier, Facteau and Fabian promoted Acclarent's Relieva Stratus Microflow Spacer device to deliver steroid medications to patients' sinuses, though it was only approved for keeping sinuses open.
Prosecutors said the two hid the off-label marketing, designed to boost revenue, from potential buyers, including Ethicon Inc. They received compensation from the deal worth about $30 million and $4 million, respectively, according to the indictment.
Facteau and Fabian stayed on until 2011 and continued the off-label marketing even after Ethicon executives told them to stop promoting it at all, according to the indictment.
Staff writer Joe Carlson contributed to this story.
