Thread by @eringriffith

🩸US v Holmes continues.

Today we'll hear from Erin Tompkins, a patient, as well as Roger Parloff, a journalist.

But first, for every 1 hour of testimony there are roughly 3 hours of lawyer bickering over the scope of the testimony and today is no different!

In the meantime here's a fun throwback

https://twitter.com/eringriffith/status/1461229732557512709

Tompkins is back on the stand being cross-examined by Holmes lawyer Katie Trefz.

She says she attempted to get information about the testing from Theranos but was not provided any.

Trefz names the customer service rep Tompkins called and she doesn't remember.

Trefz pulls up an HIV testing algorithm to show the patient.

She asks the patient to break down the arrows pointing to terms like HIV-1/2 antigen/antibody combination immunoassay...

"You don't know the meaning of these particular steps, correct?"

Theranos test results told this woman she had HIV antibodies.

Defense is trying to argue she didn't understand the test results.

That's it for Tompkins.

The US has called Dr. Mark Burnes.

Mr. Burnes had a patient who got a PSA test - detects prostate cancer - through Theranos.

The doctor is testifying in a clear mask and I have to say it just conveys Bain vibes to me. Also hard to hear.

The test results show a "very significant rise" in PSA levels. The doctor wrote a note on it that it should be rechecked and might be a "lab error."

Another subsequent Theranos test shows levels more in line with expectations... Note from the doctor says "clearly some form of lab error occurred."

We see an internal Theranos email discussing Dr. Burnes's call concerning the inconsistent results.

He suggests that one explanation is that the samples got mixed up and asks Theranos to re-run the samples.

Someone inside Theranos, I think Daniel Young, writes in an email that they re-ran the samples and confirmed the inconsistent levels. Then the patient came in for a THIRD Theranos tests and the PSA level was elevated again.

There's an internal Theranos email summarizing a call smoothing things over with Burnes. Sunny Balwani fwds it to Elizabeth.

Dr. Burnes asks Theranos to run a fourth test on his patient the traditional way with a venous draw and pay for it.

We now see reports voiding the first and third PSA tests.

And we see a 2017 PSA test from LabCorp, which was in the normal range. Burnes testifies that he believes the initial Theranos test was "invalid." Prosecution finishes.

Katie Trefz asks a series of questions about all the various ways lab errors can occur. Burnes says yes he is aware but notes that in his career they've been very rare.

Trefz is using a similar line of questioning she used on Audra Zachman, the nurse practitioner who testified in the beginning of the trial. Essentially trying to say that different assays (tests) should be evaluated on different reference ranges.

Burnes makes her repeat the question 3-4 times and doesn't understand the point, Trefz notes his answer as that yes there may be "slightly different" ranges on different tests and Burnes emphasizes that its slight...

Trefz keeps using the word "harmonization" to describe results of tests between different methods and it is tripping up Dr. Burnes. "Do you understand that harmonization of results is challenging in that its using different methods."

Burnes says "slight variation" can happen on the same test but "they should be pretty close to each other - within 5% to 10% of the value."

Burnes testifies that he recommends male patients over 50 screen for prostate cancer every few years. Trefz says the American College of Physicians recommends men over 50 "discuss the specific harms" of the test with their doctor before screening.

It is a bizarre line of questioning considering Theranos's entire mission was that people should get their blood tested all the time.

Dr. Burnes says he disagrees with that guidance not to test for prostate cancer. Trefz is done.

Jeff Schenk does redirect and asks Dr. Burnes whether one of the "specific harms" of getting a psa test is that the test is inaccurate and the patient takes steps they shouldn't have.

Dr. Burns says psa levels rise over time so, if you're not paying close attention to the patient you could misinterpret a result.

Oops typo above in Dr. Burnes name. He is excused.

Another "short" witness is coming after the break, likely another doctor or patient.

Ok - Mehrl K. Ellsworth, the patient who was given the irregular PSA tests, is now on the stand.

Dr. Ellsworth, a dentist, had to get a PSA test before going on a long mission trip through his church to Asia.

He testifies his first test, which was given on a fingerstick, returned a PSA level of 26.1, which was very high. "I've never exceeded a 2."

Schenk blew through that testimony in less than 10 minutes! Mr. Ellsworth is dismissed.

The US has called Roger Parloff. Here we go.

Parloff was at Fortune from 2004 to 2016. He wrote this article, which Holmes then sent to many investors while soliciting funding, in 2014. fortune.com/2014/06/12/the…

Boies Schiller's head of comms approached Parloff about writing an article about a patent lawsuit Theranos had won, but then told him "the real story was this remarkable company and its remarkable founder and CEO Elizabeth Holmes."

Parloff has been coughing a little and explains that he has a seasonal allergy that happens every November, "I've got three vaccines," and the room laughs in relief.

We see an email from Parloff to Holmes with a long list of things he wants to do when he visits for the profile. He asks for a blood test and Theranos offers to get him a prescription for the test.

He toured Theranos's office and the Newark lab.

He also went to a Walgreens in downtown Palo Alto, arranged by Theranos.

Holmes's description of what Theranos was doing:

“The key advance was that they could do a tremendous number of blood tests with a finger stick instead of venipuncture."

They had miniaturized the whole lab process.

The specifics of how this was done was all a trade secret."

Christian Holmes sent Parloff a presentation with “detailed clinical background” on Theranos's science, which was encrypted and he no longer has access to it.

We also see a powerpoint that Holmes walked him through.

Parloff had never visited a lab before so when he returned from Palo Alto, he arranged to visit a conventional lab for contrast. He agreed not to identify that lab.

Parloff says he provided his recordings of his conversations with Ms. Holmes with the govt in response to a subpoena.

We hear a two minute clip where he asks her whether Theranos can perform all the test that Quest could. She says "We can do all of those tests."

We hear another conversation where Parloff asks how many tests they can do. She says "I think can we say more than 1000."

There were already reports at that time that people were going to Walgreens and getting venous draws.

Parloff pushes her on why they would use a nanotainer for tests it doesn't do on the Theranos machines...

She goes off the record to basically say "that gets into a whole thing about how the devices work, which we don't really want to get into."

Parloff describes at length everything a Quest lab can do. "All of this is stuff you can do?"
Holmes: "Yes."
Parloff: "Ok. It's so incredible."
Holmes: "Its one of those special things when you apply technology and software towards solving problems that humans otherwise did."

Another Holmes word salad, "We talked about some of the potential for revolutionary impact in terms of the access points, and actionable information equally has the potential, we believe, to have a revolutionary impact."

Parloff asks about military work. Holmes gives a long familiar speech about the device's potential to save lives. "That’s something I’m personally very passionate about. I see it as our way to serve in whatever small way we can."

Parloff: "At some point she did say - and I was not supposed to be used in the piece, it was very sensitive -
that it had been used by the military in Afghanistan."

He testifies that he wanted to interview Gen. Mattis and Holmes told him Mattis could not discuss actual deployments in Afghanistan and he should not ask about it.

Oh man. Holmes sent Parloff the falsified Pfizer and Schering Plough validation reports too.

We look at the conclusions of the falsified Pfizer report and Bostic asks Parloff, "Did Ms. Holmes ever tell you that these conclusions were not the conclusions of Pfizer?"
"No."

At this point Parloff has done more diligence than half the Theranos investors.

The short lunch breaks means the 2-block radius around the courthouse is crawling with journalists stuffing whatever food they can grab into their maw while speedwalking 😰

Back from break, another recording where Holmes says "The fact that we have a single device that can perform any test" is a sensitive trade secret.

Parloff asked Holmes multiple times if Theranos was using third party devices for anything. She said no, and he wrote that in his article.

“Those were direct questions and direct answers,” he said.

Holmes praised the article "effusively" after it was published and she linked to it the Theranos website, Parloff testifies.

The next year Holmes told him that in 2015 they had just started using third party devices for esoteric and seldom ordered tests.

In a recording of an interview with Parloff: “I thought all of your tests were sortof... lab developed tests”

Holmes responds by saying they're offering traditional lab tests in order to make sure their offerings are comprehensive and cheap for customers.

A story on Parloff's testimony, Theranos, Holmes and the media: nytimes.com/2021/11/18/tec…

At the end of Parloff's testimony, Bostic about the WSJ story about Theranos. Parloff called Holmes immediately to ask her about how many tests Theranos could do on its own machines.

Bostic: Did she tell you Theranos could never do more than a dozen tests?

"No."

That's the end of direct. John Cline, Holmes's lawyer, is doing the cross.

He starts by asking about Parloff's background again, lingering on his Ivy education and multiple decades of experience as a reporter. Then moves on to how he came to the Theranos story.

Oooh a kerfuffle! Cline is asking about a Parloff meeting with Boies and Parloff says he wants to invoke reporter privilege. Parloff's lawyer pops up from the audience to say something and Davila tells him to have a seat.

Cline has Parloff describe what "off the record" means. He says there are different contexts - sometimes you can never use it. Other times its embargoed and maybe you can use it down the line.

Cline plays three clips from interviews. One where Holmes talks about the hub and spoke model where Holmes says the blood is transported to nearby central labs. Another where she describes their "phase two" model but that's off the record.

Parloff testifies that he read the entire transcript of Theranos's patent trial (again... more than most of Theranos's investors!)

Cline asks whether there were researchers at Fortune who helped Parloff and he invokes reporter privilege.

Cline is running down a list of names that Parloff provided to the govt that he spoke with for the article. Parloff is not eager to confirm those names and invokes reporter privilege. We go on a break so he can consult with his lawyer.

Ok, we go down the list and Parloff confirms he spoke with numerous Theranos board members, the CEO of Walgreens and the top people at Dignity Health, UCSF, Blue Cross Blue Shield, a medical doctor, and Holmes's parents.

Cline: Now this is a question you may not want to answer. Some of the questions you asked Ms. Holmes about their technology came from Theranos’s competitors?

Parloff: I did research and I heard various criticisms and I asked her to address those questions and criticisms.

Not satisfied, Cline needs to know that the questions came from the competitors. As I wrote today, Cline has said defense intends to show that Parloff "was colored by bias” and “a desire to blame any errors he made in his initial article on Ms. Holmes.” nytimes.com/2021/11/18/tec…

Extremely detailed discussion of Parloff's note taking practices. He threw out his handwritten notes after 12 months per Fortune's policy. There is a digital document of notes Parloff had on his conversations with Holmes.

Cline asks whether Parloff's questions to Ms. Holmes about the use of third party machines were "leading."

Parloff says he asked it that way because "I thought it was already obvious but I didn’t want to let something like that slip by."

After the WSJ article came out, Parloff says he went back through his notes to try to figure out what happened.

Then we skip right to the govt subpoena over the Theranos investigation. (No mention of Parloff's correction to his story.)

That's it for today.