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Human memory is fallible. That’s why defense attorneys like to age their cases – and why prosecutors were so frustrated with the multiple delays in Elizabeth Holmes’ trial for her role at the failed blood testing company Theranos. With enough time, people forget things. This can open the door to reasonable doubt.
Several times on Friday, his fourth day of testimony, former director of the Theranos lab, Adam Rosendorff, was asked about details in meetings and could not remember. But Elizabeth Holmes defense attorney Lance Wade was able to produce a meeting report, a Powerpoint presentation, and old emails that made Rosendorff less reliable.
But not much less reliable.
Making Rosendorff look unreliable is important to Holmes’ defense. Rosendorff gave crucial testimony about being sidelined, not trusting certain Theranos tests, and Holmes’ firsthand knowledge of issues in Theranos clinical labs. The defense strategy is to blame Theranos’ lab directors for the clinic’s problems – blaming Holmes. Rosendorff tied her directly to the issues and showed he couldn’t be responsible for decisions he wasn’t aware of.
So the defense’s job was to try to blunt this testimony. Take, for example, pregnancy tests, hCG. You may recall that Rosendorff ordered – in an all-caps email, no less – that all testing be performed on an FDA-approved device. But that was not done, the prosecution showed.
Today we saw emails telling Rosendorff that Edison was going to be used for the pregnancy hormone test, something Rosendorff testified he was not aware of. Looks like he forgot.
Also in direct testimony, Christian Holmes, Elizabeth’s brother, wrote to her responding to numerous patient complaints – on an email thread in which Rosendorff was not included. The inference I drew from examination-in-chief was that the complaints were due to the fact that the tests were not accurate. But emails presented to court today suggested the complaints were at least in part because the reagents were out of stock. So it looks less bad for Holmes.
On the other hand, Rosendorff was also not included in these emails and testified that he was unaware of the backorders issue.
All of this underscores Rosendorff’s complaint that he was left out of certain decisions. Wade made a direct attempt to undermine him, however. The court received a June 2014 email from Balwani that said Rosendoff was “EXTREMELY frustrated that as a lab director he was not kept in the loop.” The email obviously concerned ongoing research and development experiments in his lab and appeared to be a rebuke to Vice President Daniel Young, who responded that he updated Rosendorff later.
The defense gamble to make Rosendorff look bad – by suggesting Theranos was quick to address his issues – didn’t quite hold up. Now we have a contemporary email about Rosendorff’s frustration at being kicked out, something he complained about during his direct interview. And while it appears to have been fixed in this specific case, that doesn’t mean it has been fixed elsewhere.
Wade had better luck on other matters. A key issue has been proficiency testing, a legal requirement for the lab to ensure that test results are accurate. During the direct review, Rosendorff said management’s refusal to perform these tests was one of the main reasons he resigned. Earlier this week, Wade demonstrated that proficiency testing had been performed on machines approved by the FDA. All that was missing was the Edisons.
Rosendorff had previously said that although he had made a plan for the proficiency testing, it had not been implemented. This plan was developed in December 2013. The minutes of a meeting showed that management had discussed it in March 2014.
Again, that didn’t exactly cut Rosendorff down – the fact that it took management three months to discuss this confirms their tale that they are dragging their feet.
What seems more questionable is an April 2014 Powerpoint deck that Rosendorff approved. The deck was created – at Balwani’s request – by an employee supervised by Rosendorff.
The slides that were shown to us weren’t particularly technical, but they did point out that Theranos had no benchmark group for comparison. For this reason, normal proficiency testing was not appropriate – and some of the agents in the standard proficiency test samples were also not suitable for use on Theranos devices. The alternative that Theranos had developed was superior for this reason, according to the slides.
“Did you have any reason to question the accuracy of this slide set when you received it? Wade asked.
There was a long silence.
“I think the slide set reflected what I had written” in the documents, Rosendorff said.
Perhaps Wade’s least successful moment was trying to suggest Rosendorff was bad at his job because he wasn’t responding to doctor’s calls quickly enough. We saw an email exchange from October 2014, shortly before Rosendorff left Theranos, where a customer service rep urged him to call a doctor he had promised to do a week before.
In another email, also from October 2014, Rosendorff suggests that Christian Holmes take care of the call. Wade pointed out, accurately, that this is what Rosendorff said shouldn’t happen. But the email also arrived about a month before Rosendorff left. Rosendorff testified that he didn’t have a good explanation for the doctor – or at least one that he felt comfortable with – and with one foot out, yes, I can see why he let Christian go. take care of it. Wade pointed out that this had happened a few times during this time.
I’m not sure if Wade has ever quit a job out of frustration, but I certainly did, and I guess at least some jurors have, too. Have I been carefully engaged in my work over the past few weeks before quitting smoking? Surely not. I had given up on trying to change things that I thought were wrong, and I had also given up caring about my job. The alternative was misery.
There was less feud than at the start of the week, although at one point Wade asked Rosendorff what time he emailed Holmes and got a specific answer. “Do I have an independent memory of when I sent this email seven years ago?” Rosendorff asked. “No I do not.” There was also a meeting on Holmes’ calendar that Rosendorff couldn’t remember.
The aging of the case gave Wade time for Rosendorff to forget. It also means that a key witness, George Shultz, is now dead. Even so, memories of unpleasant experiences are much stronger than memories of pleasurable experiences. This is how human memory works. Rosendorff’s memory may have faded over time, but I guess the bright spots have to do with the things that upset him the most.
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