Today’s Trial Log — As Ms. Holmes Detailed Abuse At Sunny’s Hands, While On The Stand.

I post it here for the record — all seven pages from this day.

Much of what she testified to came from reliance on her own handwritten notes… ones apparently never shown to the the government until a few months ago (and thus at least… possibly created long after the fact, as a prop for the trial). Not until it was clear there would be felony indictments.

We do know that she first saw the psychologist who diagnosed and labeled her mental condition (for the defense) in court, only in the last year leading up to trial. And they met exclusively at the law firm’s offices. For a total of fewer than 40 hours.

So — it would not be unfair to wonder whether it was all “manufactured” — or at least, enhanced — in order to try to avoid a long prison stint.

One MORE Motion To Admit Evidence That Holmes Likely Will Win…

She’s had only a few of these — ones that were objected to by the government, actually see admission into evidence. But this one will likely prevail. It is from 2015, and it shows Sunny pretty proactively seeking answers for why errant results on PSA levels were repeatedly seen in one test patient (albeit only after the patient’s treating doctor complained, and demanded a refund).

But it does go to show that, in at least a handful of cases, the Sunny-Elizabeth duopoly did aggressively seek the answers. What it does not do, is even begin to hint at any remediation / repair plan (for the device, as required by FDA regs) — nor does it in any manner explain why it took the two of them over a year to even obliquely suggest to the FDA that they were seeing off-target results.

That admission came only after non-voluntary site visits by regulators.

Of course, the relevant FDA rules required immediate submission of full, searchable data-sets on this score — and it is not disputed that Theranos only ever provided a “locked, no keys” core dump… over a year too late.

And throughout, the pair was touting the device and raising hundreds of millions of dollars from various investors.

So — in the end, this “win“… isn’t likely to amount to much.

Onward, grinning — to baking and icing some holiday cookies today, with the next-gen babies.

Team Holmes Overnight Renews Its Motion To Introduce Mostly-Glowing Customer App Texts… Yawn.

Earlier in the trial, the able Judge Davila had ruled that these little squibs were inadmissable — at least, for the purported substantive truth of what they contain/assert — since, as the government correctly pointed out, none of them address in a non-hearsay way, the technical aspects of whether… Edison worked, at all. Thus, they are simply not relevant on that front.

Last night, Team Holmes renewed their attempt to get them in, in some fashion — this time arguing that while they may not be truthful as to Edison’s actual capabilities, they do show what Ms. Holmes was “being told” — as to how positive a small handful of the Walgreens test-customers were — about their experiences. Thus (they say), one might infer that Holmes believed “all was well” — and thus that would negate her specific intent to defraud investors and the FDA / CMS.

Uh-huh. Well… Condor thinks this is a clear hint that Team Holmes well-knows her chances of avoiding a prison stay are… fading away, with the government set to wrap up, by mid-next week certainly.

Afterall, the various executives of Walgreens, from the time in question (ones who were actually steering the financing / scientific tech relationships with Holmes, Sunny and Theranos), have already sworn to the jury that they personally told Holmes on numerous occassions, how poorly the partnership was going, and how unreliable the Edison was, and wrote memos about all the trashy “results” they were seeing from it in actual weekly reports (ones that should have been — by law and by applicable rule — immediately forwarded to CMS / FDA by Theranos, but weren’t… for over a year).

So, it would seem that Judge Davila ought to let the customer texts come in (to further limit Holmes’ grounds for any future appeal after a conviction), and allow the government to remind the jury — on cross and summation — what “the decision-making people in the room” at Wags were actually concerned about, and conveyed to Holmes. The texts just. won’t. matter. That seems clear now.

Now you know — onward grinning — with wet but sporatic snow-squalls still falling here…. indeed.

A Deliciously-Devastating Quote, On Elizabeth Holmes, Via The Verge.

This may be “piling on” — but it strikes me as… accurate, as we await news from her various official court dockets. From The Verge, now:

…Here’s the thing about prostate-specific antigen: you do not expect to find it in blood test results for most women, because most women don’t have prostates. So when Theranos’ former lab director, Kingshuk Das, found that Theranos’ devices kept reporting that women had detectable PSA levels, he assumed that meant there was something wrong with the devices.

Theranos CEO Elizabeth Holmes had an “alternative explanation,” he said. It was that these women had a rare kind of breast cancer. That explanation “seemed implausible,” he testified today in US v. Elizabeth Holmes. Das was one of a parade of experts we’ve heard from in this trial, who it seems were hired primarily to be ignored.

The central question of the trial, as framed by Holmes’ defense, was whether Holmes knew she was misleading people or whether she was simply a naif who somehow accidentally showed investors documents with Pfizer and Schering-Plough logos on them, despite being written by Theranos staff. The question of state of mind is crucial: did she have the intent to deceive?….

Out — grinning.

Full January 2016 CMS Report / Deficiencies Letter To Be Admitted?

We think that is where this will land.

And that government- issued report — chock-full of evidence that Ms. Holmes (it will be shown) was well acquainted with — due to numerous meetings, in which she pressured her lab director to say the errors were not “device related”, but sample collection errors… or something else. That will pretty much seal the deal, against Ms. Holmes. She was still telling everyone who would listen that it was working very well, and that Pfizer and Schering-Plough were already endorsing her machine’s tech. Those were all clearly lies, in early 2016 — and she knew it.

Do read all 11 pages, but here’s a bit:

…Dr. Das told Defendant that Theranos was required by CLIA regulations to void all of the test results produced by Theranos’s blood analyzer due to accuracy and reliability concerns — but Defendant “push[ed] back” and told Dr. Das this was “not a device issue[.]” See ECF Nos. 727-2, 846-2. Dr. Das is expected to testify that he had regular meetings with Defendant to inform her of the issues with Theranos’s blood analyzer, but the “conversations did not go well.” ECF No. 727-2. Ultimately, Dr. Das prevailed; Theranos in March 2016 voided all patient test results on its proprietary analyzer from 2014 and 2015 (within the charged period) and, later that year in October 2016, Defendant Holmes shuttered Theranos’s Newark lab altogether. ECF Nos. 588 at 16, 588-6, 673 at 5. Thus, the evidence the government seeks to admit is directly connected to the [indictment]….

Onward, grinning… she should have long ago accepted a plea deal for a shorter sentence, and flipped on Sunny. Ouch.

A Holmes-Related Correction, Here… B.B. Platelet Testimony, Excluded.

The Able USDC Judge Davila in San Jose just ruled that the testimony of one B.B. may be excluded, by Team Holmes. That was the inaccurate “platelets” test, we mentioned earlier.

Obviously, what the FBI copied down there, and heard, from B.B. is not being assailed, as to whether it is/was genuinely relayed.

So Condor would offer that it does in fact tend to show Ms. Holmes’ device wasn’t working reliably, and she well-knew it.

But this particular bit — on inaccurate platelet results — will not be heard by this jury.

I wanted to clear that up, given this ruling:

“…[A 2020 prior] order required the Government to provide Holmes with a Bill of Particulars that “includes the particular tests that the Government claims Theranos was not capable of consistently producing.” Dkt. No. 330 at 16. Pursuant to the Court’s February 2020 Order, the Government provided Holmes with a Bill of Particulars that identified twenty-five assays: bicarbonate, calcium, chloride, cholesterol, HDL, LDL, gonorrhea, glucose, HbA1c, hCG, HIV, LDH, potassium, PSA, PT/INR, sodium, testosterone, TSH, vitamin D (25- OH), and the assays conducted on Theranos’ TSPU version 3.5, including estradiol, prolactin, SHBG, thyroxine (T4/free T4), triiodothyronine, and vitamin B-12….

The Court’s motion in limine order likewise indicated to Holmes that she need only focus on preparing a defense regarding the accuracy and reliability of identified blood tests. It would be unfair for this Court to change course on the eve of B.B.’s testimony, especially because the function of a Bill of Particulars is to avoid surprise at trial and assist in the preparation of a criminal defendant’s defense….”

We will cross post this plus a few other clean ups, to the Shkreli site, in a moment. And we will update our earlier item, accordingly.

Onward, with a wry smile — a special 42^nd day, tomorrow….

Trial Summary Log, From November 2, 2021… Ex-Schering Plough Witness.

Without any additional ado, here is that court generated trial log from yesterday, the 2^nd.

[The ex-Schering Plough executive apparently testified that Ms. Holmes falsely claimed to her that Pfizer had endorsed the tech, years after Pfizer had firmly disavowed the Edison idea.]

And…Parloff’s hearing (on which exhibits will become admissions) will be next Monday morning, before 9 AM PST.

Onward.

Still Arguing, Over What Mr. Parloff May Be Asked… At Holmes’ Trial This Week.

Here is the latest, from Team Holmes, without additional comment or background.

Enjoy these five pages, and a bit (in “equal time” land):

“…The parties are in substantial agreement about the permissible scope of Roger Parloff’s direct testimony. He may authenticate his recordings of interviews with Ms. Holmes. He may authenticate his June 2014 Fortune article. For interviews that were not recorded, he may recount otherwise admissible statements Ms. Holmes made to him. He may not comment on her knowledge or intent, and he may not opine on her truthfulness. Nor may the government introduce his January 2016 article in which he claimed that Theranos misled him, absent door-opening by Ms. Holmes.

But areas of significant disagreement remain. The government seeks to have Parloff offer “context” for Ms. Holmes’ statements. To the extent that means only that Parloff will testify that he interviewed Ms. Holmes in the course of preparing an article, that he spoke with her on particular days or by particular means (face-to-face, by telephone, etc.), and so forth, we have no objection.

But the government uses “context” far more broadly, to include Parloff’s “purpose in asking certain questions,” “how questions and answers fit into the overall series of conversations between him and Defendant,” “what he understood from Defendant’s answers,” and “[h]ow Defendant’s statements influenced and supported the content of the [June 2014] article….”

Now you know. Onward… grinning.