Thread by @MilesGCohen

#ElizabethHolmes trial day 30.

Witness list:

1. Erin Tompkins — A #Theranos patient who purportedly received an inaccurate HIV test.

2. Fortune Magazine's Roger Parloff — who wrote a front page profile of Holmes (linked below.)

3. Gov. could rest?

fortune.com/2014/06/12/the…

Defense attorney John Cline is arguing with Prosecutor John Bostic about which portions of Parloff's interviews with Holmes can be played to the jury on cross examination.

“She needs to take the stand and testify," Bostic said, citing hearsay concerns over portions of Holmes' interview, the defense sought to admit.

Cline argued he could admit for Holmes' state of mind.

"She's not trying to deceive Parloff or the investors," Cline said.

Cline said the portions of the tapes the prosecution wants to play cut #ElizabethHolmes off mid- conversation.

Bostic disagreed, characterizing the offered parts as "asides" and like "a flashback in a movie.”

Davila let some of the offered sound bites in, and precluded others.

"I'll give you the benefit of the doubt...but I do see some limitations," Davila said.

Federal prosecutors announced they will have another "brief" witness between Tompkins and Parloff.

They did not reveal any other details.

Now Ms. Trefz is on to continue her discussion about the patient Erin Tompkins, and whether or not her doctor who ordered her the blood tests will testify.

"We can call [the doctor] if our case begins today," Trefz said.

The doctor Gerald Asin is in court in response to a defense Subpoena for his records.

Asin handed over a manila folder to the courtroom deputy.

The patient Erin Tompkins is back on the stand. Defense attorney Trefz is at the podium for cross.

Trefz pulled up the HIV test results, the patient took this summer, and was shown on direct.

"Was this a test that the government asked you to get?" Trefz asked.

"No... I was looking for another test to bring into evidence," she said.

Agent Adelaida Hernandez gave her some suggestions on testing locations, Tompkins testified.

Trefz is now going over her 2015 #Theranos results. She asked what Dr. Asin told her about these.

HIV 1+2 ab --- results: REACTIVE
HIV 1 Ab : Non-Reactive
HIV2Ab. : Non Reactive
HIV 2 Ab : Non Reactive
HIV 1 RNA: Not Detected

Trefz refreshed Tompkins on a second conversation she had w/ #Theranos (yesterday she testified to being told off by customer service rep upon first contact)

...Mr. (Forey?) walked you through the CDC recommendations for testing on HIV?


The witness didn't recall.

Trefz showed her a document to refresh her recollection. Tompkins didn't understand the language.

"You're not a doctor right?" Trefz asked.

These are Tompkins' 2015 #Theranos test results, as shown to the jury.

Trefz admitted a doc titled and subtitled:

Recommended Laboratory HIV Testing Algorithm for Serum or Plasma Specimens

HIV - 1/2 antigen/antibody combination immunoassay

This is the document Trefz is examining Tompkins with (from the CDC website)

cdc.gov/hiv/pdf/guidel…

Trefz is running through the language.

Tompkins is excused.

The United States calls Dr. Mark Burnes. Prosecutor Jeff Schenk will conduct the Arizona internal medicine doc's direct examination.

The court accepted Burnes as an expert on PSA testing, the indicator that suggests suspicion for possible prostate cancer, Burnes testified.

He had a patient (a missionary) who he sent to get a Theranos PSA test.

"Very significant rise, recheck, maybe lab error," Dr. Burnes hand-wrote on his patients #Theranos test results.

He stamped the page: 5/18/2015

We see an internal email from #Theranos customer service, forwarding a note from Dr. Burnes to the "lab reruns" DL.

"He wants to be assured that the results from 5/18 are correct for his patient so he is requesting a rerun of the PSA," a Theranos employee wrote.

We saw an internal email from Daniel Young in regards to the results:

"It looks like on 5/15 the original sample was rerun confirming the high result

Tina - I see three results from 5/19, two low, and 1 high. Do you know what is going on here."

Young wrote another email:

"Please send report with updated result

Dan - we don’t know why the first sample came back so high. It was actually rerun, and confirmed high orginally. A sample mixup is possible in the doctor suggested, but hard to confirm at this point."

Burnes concern was it was an inaccurate test as opposed to a mixup, Schenk elicited

“I was learning towards [that],” Schenk the doctor said.

There were three total tests, we find out.

"PSA on 1 and 3 were run on Edison. Visit 2 was run in Phoenix," Daniel Young wrote to his team.

The email exchange was forwarded to #ElizabethHolmes

Burnes ultimately asked to talk to #Theranos national lab director to express his concerns, he testified.

He asked for #Theranos to send out the test to a "traditional" lab, for example Lab Corp, he testified.

His patient had a 4th #Theranos PSA test.

The result: .95

"this report contains corrected results," read the subhead of a Theranos report in 3/2016.

"Prostate Specific Antigen: Total as previously reported is voided this result should not be used out of an abundance of caution," it read.

"Test processed at Theranos Laboratories, 7373 Gateway Blvd. Newark, CA," read another portion of the report.

Dr. Burnes testified earlier in his direct he though the tests were being run in Arizona.

"Do you have an opinion on the accuracy of this test?" Schenk asked the doctor about the test ran on 5/14/2015 (26.1).

"I believe that test was invalid...it was not consistent with the pattern we had been seeing," he testified.

Trefz is on to cross the doc.

"Good morning Dr. Burnes."

"I wanted to start with understanding how you were introduced to Theranos, in particular when Theranos first started offering blood testing. Was it fair to say you were excited?" Trefz asked.

"I was very much interested in this way of testing," he said.

"One of the reasons….Theranos charged approx 8x less than other laboratories?" Trefz asked.

"Yes," he replied.

Did you also like the goal of taking less blood?

Yes

Is it fair to say you hoped to see theranos succeed?

Very much so

She asked if he recalled Theranos, "charged the same for insured and uninsured patients."

He didn't recall.

Burnes had a "concierge" practice in 2015 — with around 180 patients.

"Did you send about 1/4 to 1/3 of your patients to Theranos for testing?"

"...about 10% of the labs [per year] at that time I would send out to Theranos," he answered, the others sent to Cleveland Clinic.

Burnes conceded about 1/4 to 1/3 of his patients were sent to Theranos.

For around a year before his patient got his 2015 PSA results, he had sent his patients to Theranos.

"Did you have any other issue with theranos tests up until 2015?" Trefz asked.

"No," he said.

"Are you able to quantify the number of tests that would be?" she asked.

"I dont recall," he said.

You dont have any personal knowledge about what Ms. Holmes may or may not have known about [the patient's] test result?

no.

"Are you aware of research that's shown there are lab errors that occasionally occur at laboratories?" Trefz asked.

She embarked on a line about errors — how typical they are — etc.

Burnes isn't offering much.

"Is it fair to say you don't always recommend a PSA test for every male above 50?"

"No, I do recommend it," he said.

Trefz brings up that ACP released prostate screening guidance in April 2013

Isn't it the case that the first line of that guidance that men between the ages of 50-60 should discuss the limited benefits and the limited harms of the [PSA test with their doctors]?

"I disagree with the recommendation," he said.

Trefz finished her line. Schenk is back on for redirect.

"there is a valid risk that ...if test results are high...you might send patients for a biopsy," Burnes explains, in reference to the guidance Trefz brought up on cross, as Schenk elicited.

Dr. Burnes explains that the rate of rise is the determination in diagnosing prostate cancer, as opposed to the actual resultant number.

He is dismissed.

We will get another "brief" witness after break, presumably not Parloff.

The next witness is the Dr. Burnes patient.

#elizabethholmes

"Merhl Ellsworth"

Ellsworth got a #Theranos blood test from an AZ Walgreens, he testified.

He's a dentist who was getting ready to take an international trip.

"I worked in science my whole life...accuracy with my blood tests [was] important," the dentist testified.

We are looking at Ellsworth's blood testing results from May 14, 2015, which he got in Arizona, Schenk clarified.

He used his credit card.

"Do you remember the method of blood draw?" Schenk asked.

"It was a fingerpick," Ellsworth replied.

Ellsworth was excused. No cross.

At long last, Fortune Mag writer Roger Parloff is on the stand.

Parloff has about 10 hours of tapes which he recorded for his front-page article on Holmes.

He also spoke with her in unrecorded convos and took contemporaneous notes.

“I got three vaccines,” Parloff told the court, warning the parties he had a dry cough due to allergies

Parloff got a tour of Theranos in April 2014

"There were labs, you would buzz through with a badge or a card to get into the lab. And to get from one lab to another lab."

Holmes was present with Parloff the entire tour, he testified. He did not see the commercial lab, he testified. He saw an R&D lab.

He saw blood analyzers that looked like a Dell desktop tower, "maybe two feet high," Parloff testified.

Parloff went to a downtown Palo Alto Walgreens,"it was arranged by them...this was not a surprise," he testified.

"There was sort of a soothing environment. There was a high definition tv with something soothing on it, maybe an aquarium."

The fingerpick was, "very good, very painless," Parloff said.

That was the first in depth explanation we have gotten of any patient experience in Walgreens stores.

Which lab did you visit?

“I agreed not to identify the lab,” Parloff testified.