The defense strategy of highlighting the many independent decisions made by former Theranos lab director Adam Rosendorff continued on a fourth day of cross-examination in the criminal trial against Elizabeth Holmes, founder and CEO of the now defunct blood testing company.
Holmes is accused of making false and misleading statements to investors, doctors and patients about Theranos blood testing technology. If found guilty, she faces up to 20 years in prison and a $ 3 million fine.
As the director of the lab, Rosendorff was responsible for validating blood tests before they could be used on patients, doing tests if results appeared to be false, responding to physician / patient complaints and ensuring generally that the laboratory complied with federal law.
Earlier in the trial, prosecutors asked Rosendorff about a Theranos HDL (“good cholesterol”) test that consistently reported lower than normal levels on patients tested with the finger prick method on Theranos Edison machines.
Rosendorff previously said he tried unsuccessfully to convince Holmes and his alleged co-conspirator and Theranos COO, Sunny Balwani, to stop using the test, but only got one “Pushback” when he tried to solve the problem.
Pursuing a now common defense theme – which the government only showed Rosendorff and the jury selected documents that don’t tell the whole story – defense attorney Lance Wade got Rosendorff to admit that Balwani and others ‘jumped on’ the HDL issue right away and the low readings ultimately turned out to be an issue with the Siemens Advia machines that Theranos was also using, and not with the tests or the Theranos machines themselves- same.
The day contained several similar breakdowns of lengthy emails, with the defense trying to show that certain Theranos tests worked, that Holmes, Balwani and others were quick to fix issues, and Rosendorff often exercised his own judgment in deciding how to fix many. problems, sometimes without Holmes or Balwani being involved.
Not that these exchanges went well. With Wade and the witness growing irritable, on one document, they could only agree that “September comes after August”.
Rosendorff seemed increasingly impatient with the number of filing cabinets he was asked to open to review documents, especially when one of the massive six he had on the witness stand completely collapsed.
Rosendorff pursued what has now become a model of adding unsolicited comments to his answers, to the point that whatever he believes at the time, he now thinks that the decisions and analysis employed to maintain the tests Theranos in the market were not “good solutions”. “
Wade has repeatedly requested that these comments be removed from the record.
U.S. District Judge Edward Davila responded to one such request by waving his hands in a sort of rolling motion, suggesting that the witness and attorney should just move on.
Wade overheard Rosendorff on several occasions directly contradicting his sworn testimony in previous proceedings. In his responses to prosecutors, Rosendorff had said doctors’ complaints about problematic Theranos test results were “much more frequent” than those he had received as a laboratory director at the University of Pittsburgh.
Directing Rosendorff to one of the two large yellow filing cabinets containing his testimony in a civil case, Wade made Rosendorff admit that he had already testified that complaints about Theranos “were no more common than what has been said. usually seen in … some high volume labs “and, more specifically, that” I don’t think I had more abnormal tests that I had to review at Theranos than at others places I’ve been like the University of Pittsburgh. “
The back and forth continued as Rosendorff resisted labeling his salary at his first post-Theranos job as “more money” despite emails showing him he was receiving $ 260,000 instead of the $ 240,000 he was receiving. ‘he was paid to Theranos.
The defense had hoped to deepen Rosendorff’s employment after Theranos, including his dismissal by uBiome, a company that has since been charged with health fraud, but not for its laboratory testing methods.
Wade argued that the evidence would show Rosendorff was not a competent lab director, a point that could span the blame for the Theranos’ ultimate failure and dilute attention to Holmes.
Judge Davila ruled that exploring issues with Rosendorff’s employers would lead to “mini-trials” and pointed out that Wade had spent four days thoroughly challenging Rosendorff’s jurisdiction.
He allowed Wade to question Rosendorff about his current employer, PerkinElmer, who was found to be in violation of Centers for Medicare & Medicaid Services (CMS) regulations by the same inspectors who audited Theranos.
The judge noted that Rosendorff might have “a personal interest or a bias” in trying to avoid professional consequences or personal liability that could “have focused or shaped” his testimony in this case.
Wade then obtained testimony from Rosendorff that he understood that the CMS investigation into PerkinElmer could result in a suspension of his laboratory license for two years.