Human memory is susceptible to error. This is why defense lawyers love to age their cases. Prosecutors were frustrated by the delays in trying Elizabeth Holmes for her role in the failed blood-testing company Theranos. People forget things if they have enough time. This can lead to reasonable doubt.
On Friday, Adam Rosendorff, the former Theranos laboratory director, was asked several times about details from meetings. He didn't recall them. Lance Wade, the defense attorney for Elizabeth Holmes was able to produce minutes of a meeting, a Powerpoint presentation and old emails which made Rosendorff appear less reliable.
Holmes defense must make Rosendorff seem unreliable.
However, it is still reliable.
Holmes defense is crucial in making Rosendorff appear unreliable. Rosendorff's testimony was crucial about his sideline, about not trusting certain Theranos tests and Holmes direct knowledge about the problems at Theranos clinical laboratories. The defense strategy is to shift the blame from Holmes to Theranos lab directors. Rosendorff directly linked her to the problems and demonstrated that he could not be held responsible for decisions he didn't know about.
The defense's task was then to counteract that testimony. For example, take the hCG tests for pregnancy. Rosendorff, you may recall, had requested in an email all caps that all tests be run using an FDA-approved device. The prosecution proved that this was not the case.
We saw emails today that informed Rosendorff Edison was going be used to test the pregnancy hormones. Rosendorff said he did not know about this. It looks like he forgot.
It's almost as if he has forgotten
Direct testimony also revealed that Elizabeth's brother Christian Holmes wrote to Elizabeth complaining about patient care via a thread of email that Rosendorff was not included in. Direct examination revealed that I concluded that the complaints were due to inaccurate tests. Emails today showed that at least part of the complaints was due to backordered reagents. Holmes's situation looks less dire now.
Rosendorff, on the other hand, was not included in those emails and stated that he didn't know about the backorder issue.
Rosendorff's complaint about being left out of certain decisions is all the more evident. However, Wade attempted to undermine it. Balwani sent a June 2014 email to the court stating that Rosendoff was EXTREMELY frustrated at not being kept in the loop as a lab director. It was clearly a rebuke for Vice President Daniel Young who responded that he had updated Rosendorff later.
Rosendoff was EXTREMELY upset that he, as a laboratory director, is not being kept informed.
The defense tried to make Rosendorff look bad, suggesting that Theranos had quickly addressed his problems. This didn't work. Now we have an email from Rosendorff about his frustration at being left out, which is exactly what it was that he had complained about during his direct examination. It seems that it has been resolved in this particular instance. However, it doesn't necessarily mean it was solved elsewhere.
Wade did better on other subjects. Proficiency testing is a key issue. This is a legal requirement that the lab must follow to ensure accurate test results. Rosendorff stated that the refusal of management to conduct these tests was a key reason he quit. Wade earlier this week demonstrated that proficiency tests were performed on FDA-approved machines. Only the Edisons were missing.
Rosendorff previously stated that he had a plan for proficiency tests but it was not implemented. This plan was created in December 2013. It was discussed in management at a meeting that took place in December 2013.
Rosendorff was not able to stop this, but the fact that it took over three months for management discussions about it supports his claim of them being slow.
Rosendorff's April 2014 Powerpoint deck seems more suspicious. Rosendorff's employee created the deck at Balwanis' request.
Did you question the accuracy or reliability of the slide deck when you received it?
Although the slides were not particularly technical, they highlighted that Theranos did not have a peer group to compare. Normal proficiency testing was not appropriate. Some agents from standard proficiency testing specimens were also not suitable for Theranos devices. The slides stated that the alternative Theranos had created was superior for this purpose.
Wade asked, "Did you have any reason to doubt the accuracy of the slide deck?"
There was silence for a while.
Rosendorff stated that I believe the slide deck accurately reflected my writings in the documents.
Wade's most unsuccessful moment was when he tried to suggest that Rosendorff wasn't doing a good job at his job, claiming that he didn't return calls quickly enough. We witnessed an email exchange between Wade and Rosendorff in October 2014. It was shortly before Rosendorff quit Theranos. A customer service representative encouraged him to call a doctor he had promised to see a week earlier.
Do I have an independent record of the date and time I sent this email seven years ago?
Rosendorff also suggested that Christian Holmes handle the call in another email from October 2014. Wade correctly pointed out that this is exactly what Rosendorff said shouldn't happen. The email was sent about a month after Rosendorff's departure. Rosendorff stated that he didn't have an explanation or a reason to give to the doctor. With one foot out of the door, yes, I can understand why he let Christian handle it. Wade noted that this happened several times in that time.
Although I don't know if Wade ever quit his job out of frustration, I do know that I have and that at least some jurors. Did I stay focused on my work for the last few weeks before quitting? Hell no. I was done trying to make things right and I was also giving up caring about my job. There was no alternative to misery.
Although there was less bickering this week than usual, Wade did ask Rosendorff when he had sent Holmes an email and received a sharp response. Rosendorff asked if he had any independent memory of the date and time I sent that email seven years ago. Rosendorff said that I don't. Rosendorff also didn't recall a Holmes calendar meeting.
Wade was able to forget the case by aging, which allowed Rosendorff to have more time. This also means George Shultz is no longer a key witness. However, unpleasant memories are stronger than pleasant memories. This is how our memory works. Although Rosendorff's memory has deteriorated over time, I believe the clear spots are due to the things that most upset him.
