Thread by @doratki

Hello! I'm in San Jose for day 11 of US v Elizabeth Holmes and day 4 of ex-Theranos lab director Adam Rosendorff's cross-examination. Judge Davila is on the bench, and Holmes' counsel Lance Wade is asking the judge to let him probe Rosendorff on his post-Theranos work.

Wade says Rosendorff is incompetent and was fired from one post-Theranos lab director job after 50k quality control tests failed. Another employer, uBiome was investigated for fraud, he says. Wade: "If he’s incompetent and didn’t do his job that’s exculpatory of Ms. Holmes."

Wade also argues that Rosendorff also lied on his resume and faces career pressure to go along with the government to avoid prosecution in other cases. Judge Davila notes that "this sounds like character evidence."

Prosecutor John Bostic argues that defense counsel's claims regarding his other employers are "trials in their own right" and the uBiome investigation involved charges over fraudulent healthcare billing, which Rosendorff said under oath had nothing to do with him.

Bostic adds that defense attorney's bias argument is "too attenuated," and there's no evidence Rosendorff's testimony in this case would shield him from charges in other investigations against his former post-Theranos employers. "The nexus just hasn’t been established," he says.

Judge Davila isn't ruling yet, but he tells defense counsel: "I do have some issues about going into everything you talk about this morning. I do think that’s a little bit too broad."

Judge Davila asks Wade how much time he has left with this witness. Wade says he thinks he'll pass Rosendorff in the afternoon, and prosecutors estimate 90 minutes for redirect. "I anticipate the redirect to be much, much shorter than the cross," Bostic says.

Judge Davila says his clerk received a "very difficult and somewhat troubling" call from "Dr. Kral" that she had been contacted by a journalist about an unredacted exhibit that included her patient's info. The exhibit had already been removed from the docket, the judge says.

The judge says he doesn't know who the journo was (wasn't me) but he wants the attys to do better. "We can't do this. This is a trial that involves a lot of exhibits, many exhibits that involve proprietary health info.. It's inappropriate for their privacy to be invaded by this."

Judge Davila says today he's also going to question jurors individually in his chambers about their juror questionnaires, b/c a media coalition (including me and Law360) have asked the judge to unseal their questionnaires.

Holmes' attys wants to be present during the judge's questioning, but Judge Davila says that'd be intimating and the goal of the q's is to assess jurors' comfort level with the info in their questionnaires being unsealed. There will also be a court reporter transcribing the q's.

Prosecutors defer to the judge on the issue but defense counsel insists that it's important for attys to be present during juror q's and it's not intimidating. Judge: "A couple of blue suits sitting next to them in judge’s chambers. What could be intimidating about that?"

The jury is back in the courtroom, and Rosendorff is on the bench. Wade starts day four of Rosendorff's cross pointing to Rosendorff's email to Holmes and Balwani in Feb 2014 that asked them to discontinue Theranos' HDL tests after their QC passed, but there was a "CTN problem."

Wade presses Rosendorff on the HDL tests and tries to get him to concede that the QC tests had actually failed and there wasn't a CTN problem. Rosendorff won't concede the point, so now we're going through a bunch of emails b/w Rosendorff and Balwani about HDL.

Wade points to Daniel Young's Feb 18 email in which he writes that the QC data on HDL tests "should have raised an alarm flag several weeks ago.” Rosendorff disagrees: "No, because if the QC pasts then it should be cleared for patients."

Wade says if Theranos had applied "Westguard rules," the QC data would've failed. Rosendorff says repeatedly that Theranos never adopted Westguard rules into its policy. Wade points out that as lab director he was responsible for Theranos' lab policy. The rules from wiki:

Rosendorff acknowledges that Young and Balwani "jumped on the problem" of the HDL tests, but won't concede the point about catching QC data failures and Westguard rules. Moving on.

Holmes' attorney Lance Wade asks ex-Theranos lab director Adam Rosendorff about Theranos' "soft launch" in late 2013.

Wade: It was a soft launch.
Rosendorff: Those are patients.
Wade: That was a soft launch for friends and family.
Rosendorff: Those are patients.

Rosendorff is having trouble with the binder. "Can somebody come help me with the binder? It's just opened up and the pages are... Can somebody help with that?" Wade does a big ol' eyeroll and takes the binder from him.

Wade points to a May 2014 email Balwani wrote saying "We need to keep this project, the code, calibration and everything we learned here as a Theranos trade secret." Balwani added that except Rosendorff, no one in the lab "needs to know our secret sauce."

Wade points to Rosendorff's testimony on direct that Theranos had more complaints than his prior job U. Pittsburg hospital, which had a high volume lab. Rosendorff agrees all labs have issues - "the higher the volume the more issues you would expect, but Theranos was low volume."

Trial is taking a break for 45 minutes. We're going until 3 p.m. this afternoon. Brb...

We're back! Holmes' counsel points out that ex-Theranos lab director Adam Rosendorff was looking for a job in mid-2013 shortly after he was hired and had a "foot out the door" until he left in 2014. He replies "I can’t answer yes or no to that" & he was dedicated to his job.

Rosendorff says he looked for jobs "on occasion" while at Theranos from 2013 to 2014. Defense counsel points out he was considering filing a qui tam whistleblower suit against Theranos, and would've gotten 15-20% of the gov't recovery. He agrees, but said he didn't know the %.

Rosendorff notes he never ended up filing the whistleblower suit against Theranos and he hired lawyers to advise him about it. "I paid those lawyers out of my own pocket," he points out.

Defense counsel tries to get Rosendorff to concede there's no email from Balwani or Holmes that says the co wouldn't fund AAP for Theranos' proficiency testing. Rosendorff says he was told 'no,' and "it wasn’t my place to be directing the company to be allocating resources."

(Holmes attorney Lance Wade's questioning and tone are much more aggressive than he was this morning and late last week. He's jumping from topic to topic too, so it makes me think he may be trying to wrap this exam up in a crescendo.)

Wade points to Rosendorff's resume. Rosendorff tells Wade: "I don't know if you every try to apply to a job, but it generally doesn’t serve you to indicate that you worked for a company that's accused [of fraudulent practices.]" Wade moves to strike, but the judge overrules.

Wade shows Rosendorff his Nov 12, 2014 job offer from Invitae, which was about to go public. Invitae offered Rosendorff $260k and 75k shares. Rosendorff says he made ~$15k more at Invitae than Theranos and only a few $1ks from Invitae stock. He accepted the offer the same day.

On Nov. 13, Rosendorff wrote Sunny Balwani resigning and said "I appreciate the opportunity to work with this company, and to have interacted with so many talented and dedicated individuals." Balwani replied the same day saying "Thanks for your commitment."

Two days later, Rosendorff sent a company-wide email out of concern after being told Theranos would do Ebola tests. Elizabeth Holmes replied to him the same day saying many folks didn't think the was true.

Rosendorff then sent Holmes and Balwani an email: "I feel really uncomfortable with what is happening right now in this company. Is there any way you can get Spencer back on the CLIA license and take me off?"

Wade said Rosendorff escalated these issues and sent the emails, b/c he wanted to get out of his 60 day commitment to work at Theranos, so he could start earlier at Invitae. Resendorff replies "No," the Ebola tests were "the final straw" and he didn't believe it to be a rumor.

Wade brings up a Nov 14, 2014 email in which Rosendorff "passed" on speaking to a dr about Theranos tests, and says Rosendorff was trying to leave and start at Invitae. Rosendorff: "No, I wanted to be off the license b/c I was uncomfortable with the legal responsibility."

Wade points out Balwani told Rosendorff he could stay if he wanted, but Rosendoff recalls saying "no, it wasn’t worth the risk to my reputation." Wade says Rosendorff 'stole' 150 Theranos emails including 'extensive' patient info. Rosendorff emailed info but says he deleted it.

Rosendorff says "Sunny very aggressively ordered me" to sit with Theranos' HR head and delete his emails, b/c he was concerned of IP theft, but Rosendorff says he refused and deleted them later. Wade accuses Rosendorff of "lying again and again" about deleting emails.

Wade wraps Rosendorff's exam except for his questions about Rosendorff's post-Theranos employment at uBiome and PerkinElmer Inc. "That's essentially all I have left," Wade tells the judge.

The judge excused the jury for the attorneys to discuss the issue. Prosecutor John Bostic says given the "breadth and style" of Wade's cross of Rosendorff, "probing these topics is really asking for extraneous issues to be litigated, which this trial is not set up to do."

Judge Davila tells Wade he wants to challenge Rosendorff's competency, and "We’ve had four days of that. You’ve done that. You’ve accomplished that.
It does seem to be character evidence. I do think that’s more prejudicial than probative."

The judge says he won't allow Wade to ask Rosendorff about uBiome, but he can "lightly probe" Rosendorff on potential bias in light of CMS investigation of PerkinElmer, where he is currently a lab director.

Judge Davila says the fact that the same two CMS investigators who investigated Theranos also investigated PerkinElmer is relevant. "Maybe it’s just a pure coincidence, but because of what it is, I'm going to allow you go into that," the judge tells Holmes' counsel.

Judge Davila warns Wade not to be "cumulative" in his questioning and repeat himself, adding "we had four days and you were very thorough." He notes Wade should also not get into the specific details of the PerkinElmer CMS probe, b/c it's not relevant.

Court's taking a 10 minute break. Standby...

We're back. Rosendorff is on the stand, and Wade asks him about his current work as a lab director at PerkinElmer in Valencia, Calif. Rosendorff says CMS investigators came into PerkinElmer "earlier this year" and "most of the proceedings were document review."

Wade gets Rosendorff to concede that the outcome of CMS' investigation of PerkinElmer could result in his lab director license being suspended for two years. With that, Wade wraps Rosendorff's 4-day cross-examination. (hallelujah)

On redirect, Rosendorff says he wanted the "story to come out" about Theranos and he had to deal with media attention and "very unpleasant" situations in light of speaking out about his time at Theranos.

Rosendorff says while he was at Theranos there were "analytic and pre-analytic" errors with the blood tests and initially he was "enthusiastic" about the co and gave Theranos "the benefit of the doubt," but he came to believe "many of the tests were inaccurate."

Rosendorff says Elizabeth Holmes "wanted to rapidly expand the use of the Edisons," but he says his impression of her came from his meetings with Daniel Young and others. "It wasn’t anything in particular Holmes said to me or a specific email I can point to," he says.

Rosendorff: "There was tremendous pressure...It came from the top. It permeated R&D. It was creating conflicts with me. At certain points I thought I might be fired if I took a strong position on it." He adds he thought Sunny would fire him, but consult with Holmes.

Prosecutor John Bostic brings up Theranos' lab info system, and Rosendorff agrees that the database wouldn't include info on whether patient tests were inaccurate. (This is the database that WilmerHale attys helped lose the decryption key to.) law360.com/articles/14099…

Trial is taking another short break. The judge says trial may go to 4 p.m. for the government to finish redirect. We won't get another witness on the stand today.

We're back. Bostic asks Rosendorff about validation reports in an apparent effort to downplay the importance of his signature on Theranos' many assay validation reports.

Gov't: Are they the end of the question as to assay accuracy?

Rosendorff: No.

Rosendorff says Elizabeth Holmes was familiar with Theranos' validation reports and "it was generally something she kept tabs on."

Bostic: Why did you continue to sign validation reports ...after seeing accuracy issues?

Rosendorff: I was assessing the performance of the assay for individual anolytes based on the data in the validation report.

Rosendorff says there's no "rigorous, scientific" way of assessing the assays without the data in the validation report, but "I started to lose faith that the validation [report data] actually reflected what had been in R&D."

Bostic is going through various emails focusing on Theranos' pregnancy tests, which tested for the hormone hCG. Rosendorff says there were QC problems with hCG and supply chain problems for the reagent. (Maybe it's just me, but none of this testimony/evidence seems new to me.)

Rosendorff has to go to the bathroom (second time within the past hour) and Bostic has about "30 seconds left" before trial wraps for the day. Really drawing this trial day out.

Rosendorff says in June 2014 he had "some uncertainty" about what method was being done on hCG tests, and he doubted whether his Theranos colleagues were going to follow his direction. Aaaand we've wrapped trial today. The jury recessed for the day.

Ex-Theranos lab director Adam Rosendorff said hearing a rumor the startup was doing Ebola tests was the "final straw" that led him to demand he be removed as the co's lab chief. Here's my recap of the 4th day of his cross: law360.com/articles/14282…