Delays in Elizabeth Holmes’ Theranos fraud trial are paying off for defense
Human memory is weak. That’s why defense attorneys like to age their cases—and why prosecutors were disappointed by the many delays in trying Elizabeth Holmes for her role in the failed blood testing company Theranos. People forget things when they get enough time. This can open the door to reasonable doubt.
Several times on Friday, the fourth day of his testimony, former Theranos Lab director Adam Rosendorff was asked about details in meetings and did not remember. But Lance Wade, Elizabeth Holmes’ defense attorney, was able to produce minutes from a meeting, a PowerPoint presentation, and old emails that made Rosendorff less credible.
But no less reliable.
Roseendorff’s unbelievable appearance is crucial to Holmes’ defence. Rosendorff gave important testimony about being sidelined, about not trusting some Theranos tests, and about Holmes’ direct knowledge of problems in Theranos’ diagnostic laboratories. The rescue strategy is to blame Theranos’ lab directors for the problems in the clinic – shifting the blame away from Holmes. Rosendorff connected him directly to the problems, and showed that he could not be responsible for decisions he was not aware of.
Then the defense’s job was to try to blunt that testimony. Take, for example, hCG, a test for pregnancy. You might recall that Rosendorff ordered — in an all-caps email, no less — that all tests be run on an FDA-approved device. But this was not done, the prosecution showed.
Today we saw emails telling Rosendorff that Edison was being used for pregnancy hormone tests, something Rosendorff testified that he didn’t know. Looks like he forgot.
Also in direct testimony, Elizabeth’s brother, Christian Holmes, wrote to her that he was filing too many patient complaints – on a thread of emails that did not involve Rosendorff. The conclusion I drew from the physical examination was that the complaints were because the tests were not accurate. But emails shown in court today suggested the complaints were at least partly because the reagents were on backorder. So it seems less bad for Holmes.
Rosendorff, on the other hand, was not even included in those emails, and testified that he was not aware of the backorder problem.
All of this underscores Rosendorff’s complaint that he was sidelined on certain decisions. However, Wade made a direct attempt to undermine it. The court was shown a June 2014 email from Balwani that said Rosendoff was “extremely disappointed that as a laboratory director he was not being kept in the loop.” The email was apparently about ongoing research and development experiments in his lab, and appeared to be a rebuke to Vice President Daniel Young, who replied that he had later updated Rosendorff.
The defense’s gamble to make Rosendorff look bad – by suggesting that Theranos quickly responded to its problems – didn’t quite stick. Now we have an occasional email about Rosendorff’s frustration at being out of the loop, which she complained about in her direct examination. And although it seems to have been fixed in this specific example, that doesn’t mean it was fixed elsewhere.
Wade had good luck on other subjects. A major issue has been proficiency testing, a legal requirement for a laboratory to ensure that test results are accurate. On direct examination, Rosendorff testified that management’s reluctance to conduct these tests was a major reason for his quitting. Earlier this week, Wade showed that the proficiency test Was Performed on FDA-approved machines. Only Edison was lacking.
Rosendorff previously testified that although he would come up with a plan for a proficiency test, it was not implemented. That plan was drawn up in December 2013. Minutes of a meeting revealed that the Management had discussed this in March 2014.
Again, this didn’t exactly deter Rosendorff — the fact that it took management three months to discuss it supports his account of dragging his feet.
What seems more suspicious is the powerpoint deck from April 2014 that Rosendorff approved. The deck was built – at Balvani’s request – supervised by Rosendorff, an employee.
The slides we were shown weren’t particularly technical, but they emphasized that Theranos didn’t have any peer groups to compare. Because of that, the general proficiency test was not suitable—and some of the agents in the standard proficiency test samples were not even suitable for use on Theranos devices. The slides state that the alternative that Theranos had developed was superior for this reason.
“Did you have reason to question the accuracy of this slide deck at the time you received it?” Wade asked.
There was a long silence.
“I think the slide deck reflects what I wrote” in the documents, Rosendorff said.
Perhaps Wade’s least successful moment was attempting to suggest that Rosendorff was bad at his job because he wasn’t returning physician calls fast enough. Shortly before Rosendorf left Theranos, we saw an email exchange from October 2014, where a customer service representative asked her to call a doctor, which she promised to do a week earlier.
In another email, also from October 2014, Rosendorff suggested that Christian Holmes should handle the call. Wade accurately pointed out, that Rosendorff testified that this should not happen. But the email also happened about a month before Rosendorff left. Rosendorff testified that he didn’t have a good explanation to give to the doctor – or at least one he felt comfortable with – and a foot out the door, yes, I can see that he told Christian to handle it. Why did you give Wade reported that this happened several times during that period.
I don’t know if Wade ever quit in desperation, but I certainly have, and I think at least some of the jurors have. Was I meticulous in my work for the last few weeks before leaving my job? No way. I gave up trying to change the things I thought was wrong, and stopped caring about my work. The choice was sad.
There was less fighting than at the beginning of the week, although at one point Wade asked Rosendorff what time he had sent Holmes an email and received a scathing reply. “Do I have a free memory of when I sent this email seven years ago?” Rosendorff asked. “No I’m not.” There was also a meeting on Holmes’ calendar that Rosendorff did not remember.
The aging case gave Wade time to forget Rosendorff. It also means that a key witness, George Schultz, is now dead. Nevertheless, memories of unpleasant experiences are much stronger than pleasant memories. That’s exactly how human memory works. Rosendorff’s memory has dimmed over time, but I think the obvious spots are related to the things that bother her the most.
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