Elizabeth Holmes defense hits back during cross-examination of lab director

The former laboratory director of Theranos has become a central part of the first interrogations of the criminal trial of Elizabeth Holmes. Late last week, the defense continued its cross-examination of one of the prosecution’s key witnesses, attempting to portray Dr Adam Rosendorff as unreliable.

Three facts could harm Rosendorff in the eyes of the jury. Whether these facts diminish his earlier testimony largely depends on Holmes’ defense team. Given the overwhelming facts presented by Rosendorff during the prosecution questioning, this will be a difficult task. But discrediting key witnesses is something all defenses should attempt.

Three lines of questioning

First, Rosendorff admitted, when questioned by Holmes’ attorney Lance Wade, that he endorsed the company’s controversial pseudo-policy on outliers. While Theranos did not have an official policy on how to eliminate outliers – despite extensive advice on how to do so – the company developed a framework called the “six-tip policy.” Each sample produced six results, and from that two were discarded and the remaining four were averaged. Policy says it was okay to eliminate two, but that didn’t help lab techs identify the best candidates for omission. So it’s kind of a policy, but it’s a policy that doesn’t cover everything it should have.

Second, Rosendorff appears to have played a larger role in the development and implementation of laboratory protocols than his previous testimony suggested. On the one hand, he had signed an “alternative assessment procedure” for Theranos proprietary Edison devices, which are essentially a set of proficiency tests different from those used to validate other diagnostic equipment. And he admitted that lab tech Erika Cheung didn’t use Rosendorff’s alternative procedure when she raised concerns about Edison devices failing quality control.

Rosendorff also worked with Ramesh “Sunny” Balwani, President and COO of Theranos, to edit a set of slides intended to educate lab technicians on the company’s unique proficiency testing procedure. “Theranos tests don’t have peer groups,” one slide said.

Third, Rosendorff appears to have had top management’s ear for most of his time with the company. About a month before he left, Rosendorff was invited to a meeting with Balwani and other leaders to voice his concerns about Theranos’ testing procedures. Rosendorff admitted under Wade’s questioning that there had been no restriction on what he could say at this meeting.

Out of the loop

Together, these three questions could undermine Rosendorff’s previous testimony. But other parts of Friday’s testimony seemed to reinforce his earlier statements.

On the one hand, Balwani emailed a vice president at Theranos in June 2014, several months before Rosendorff left. The email read: “Adam came to my office EXTREMELY frustrated that as a lab manager he was not being kept up to date.” Additionally, the jury heard of pregnancy test backlogs, which Rosendorff said he was unaware of. These more or less confirm what Rosendorff told the prosecution, namely that he was excluded from the circuit.

Another tactic from Wade may not have landed as he intended. In a series of new emails, we learned that Rosendorff was slow to respond to complaints. On two separate occasions, the lab director took more than a week to follow up with a doctor about questionable test results.

Now the jury could interpret this in several ways. Jurors might view Rosendorff as unreliable, which is probably what Wade wants. But they might also take a more sympathetic point of view – after all, Rosendorff seems to have handled more complaints than a normal lab. On top of that, he was constantly training with the leaders on how to run the lab. Given these fires, it’s easy to see why he might have pushed “response to customer complaints” further down the list.

Taking a week to process a complaint may not be normal practice in clinical labs, but Theranos clearly wasn’t running a typical lab.

Listing Image by Jane Tyska / Digital First Media / The Mercury News