Laboratory-Comparison Testimony Evidence Hearing
106 lines(JURY OUT AT 11:07 A.M.)
JUDGE DAVILA: ALL RIGHT. PLEASE BE SEATED. THE RECORD SHOULD REFLECT OUR JURY HAS LEFT FOR THE BREAK, AND DR. ROSENDORFF HAS LEFT THE COURTROOM. MR. WADE?
MR. WADE: YOUR HONOR, COUNSEL JUST, WITH A SERIES OF QUESTIONS, ELICITED A COMPARISON OF THE THERANOS LAB AND ISSUES WITHIN THE THERANOS LAB TO EVERY OTHER LAB IN WHICH DR. ROSENDORFF WORKED OVER THE PERIOD OF 13 YEARS AND COMPARED THE SIGNIFICANCE OF THOSE ISSUES. THAT HAS OPENED THE DOOR TO THE CROSS-EXAMINATION THAT THE GOVERNMENT TRIED TO PRECLUDE YESTERDAY, THAT THEY HAVE PUT THAT AT ISSUE. HE HAS TESTIFIED BEFORE THIS COURT, OR BEFORE THIS JURY, AND NOW IT'S ONLY FAIR TO GO INTO THE PROBLEMS THAT EXISTED WITHIN THOSE LABS SO THE JURY UNDERSTANDS THE FULL PICTURE. WITHOUT IT, IT'S A VERY MISLEADING CHARACTERIZATION BASED ON QUESTIONS THAT THE GOVERNMENT JUST ASKED.
MR. BOSTIC: I DISAGREE, YOUR HONOR. THAT WAS IN RESPONSE TO QUESTIONS ON CROSS ABOUT WHETHER LABS MAKE MISTAKES, AND I THINK THE SIMPLE QUESTION OF WHETHER DR. ROSENDORFF CATEGORIZES THE ISSUES AT THERANOS AS JUST SIMPLE RUN OF THE MILL LABORATORY MISTAKES IS IN DIRECT RESPONSE TO THAT LINE OF QUESTIONING ON CROSS. I DON'T THINK HE SAID ANYTHING THAT OPENS THE DOOR TO THE WIDE RANGE OF EVIDENCE THAT MR. WADE IS REFERENCING.
MR. WADE: YOUR HONOR, THE TRANSCRIPT SPEAKS FOR ITSELF. HE -- HE OPENED UP 13 YEARS OF HIS LAB EXPERIENCE, ALL OF HIS OTHER EXPERIENCES, AND ASKED HIM TO COMPARE THOSE ERRORS TO THE ERRORS OF ALL THOSE OTHER COMPANIES AND HE SAID THERANOS IS WORSE. AND SO I THINK IT'S ONLY FAIR TO ALLOW THE DEFENSE TO GO INTO THAT. OTHERWISE IT'S AN INCREDIBLY MISLEADING PICTURE TO THE JURY. THE JURY CAN ASSESS WHETHER THEY'RE BETTER OR WORSE. WE DON'T HAVE TO RELY ON DR. ROSENDORFF'S CHARACTERIZATION. WE NOW SHOULD HAVE THE ABILITY TO PROBE THAT.
JUDGE DAVILA: WELL, THAT WOULD THEN -- IF WE ASK THE JURY TO MAKE THAT DETERMINATION, THAT WOULD BE A SEPARATE MINI TRIAL THAT YOU'VE TALKED TO ME ABOUT THAT CAUSED ME TO HAVE CONCERN ABOUT OTHER ISSUES. NOW, I -- I UNDERSTAND THE NATURE OF THE QUESTION AND THE FACT THAT, YOU KNOW, I THINK I'VE SAID FREQUENTLY, AND YOU PROBABLY KNOW, THERE'S A DIFFERENCE BETWEEN TURNING THE KNOB AND OPENING THE DOOR. HAS THIS DOOR BEEN OPENED THEN AS TO THIS? I DON'T SEE IT OPEN SUCH THAT YOU CAN GET INTO ALL OF THE OTHER ISSUES THAT WERE IN THE OTHER THREE LABS. I THINK THAT'S WHAT WE'RE TALKING ABOUT. IS THAT RIGHT?
JUDGE DAVILA: RIGHT.
JUDGE DAVILA: RIGHT. THE ONES WE TALKED ABOUT YESTERDAY.
JUDGE DAVILA: FIRST OF ALL, THE MIDDLE LAB REGARDING THE CRIMINAL INVESTIGATION, I DON'T THINK THIS LINE OF QUESTIONING TOUCHES ON THAT AT ALL AND I WOULD NOT ALLOW YOU TO PROBE INTO THAT. I THINK THAT STILL IS PRECLUDED BASED ON THE COURT'S RULING YESTERDAY. ON THE OTHER ISSUES ABOUT WHETHER OR NOT HE'S SEEN DIFFERENCES IN THE OTHER LABS, I MAY ALLOW YOU TO PROBE A LITTLE BIT, BUT WE'RE NOT GOING TO GET INTO THE DOCUMENTS, ANY OF THAT COLLATERAL TYPE EXTRINSIC MATERIAL. I STILL THINK THAT'S INAPPROPRIATE TO DO. I MAY PERMIT YOU TO ASK SOME QUESTIONS, TO FOLLOW UP ABOUT, WELL, YOU SAID, HE TALKED ABOUT THE OTHER PLACES HE'S WORKED AT WERE NOT AS BAD AS THIS, AND YOU CAN ASK HIM A LITTLE BIT ABOUT THAT. BUT WE'RE NOT GOING TO GET INTO A MINI TRIAL ON ALL THE OTHER SUBJECTS AND THAT. YOU CAN TALK TO HIM IN GENERAL. I THINK THIS WAS A GENERAL PROBE ABOUT A -- AND I UNDERSTAND YOUR CONCERN ABOUT THE IMPACT IT MIGHT HAVE ON THE JURY. YOU CAN CERTAINLY PROBE WHETHER OR NOT THERE WERE ISSUES OF OTHER TRIALS. YOU'VE ELICITED FROM HIM YESTERDAY THAT AT ONE OF THE LABS HE WAS AT, THEY HAD AN INVESTIGATION. SO, AGAIN, AS WE TALKED YESTERDAY PRIOR TO YOUR EXAMINATION ON THE TOPIC, I'LL ALLOW SOME LIMITED, VERY LIMITED PROBING OF THIS. I THINK YOUR QUESTIONING MAY ACTUALLY ENHANCE THE DAMAGE THAT YOU'RE SEEKING TO AVOID BY RAISING SOME OTHER QUESTIONS, BUT YOU KNOW, IT'S YOUR CASE. BUT I WILL PERMIT SOME QUESTIONING ON THAT, BUT GENERALLY. WE'RE NOT GOING TO GET INTO THE CMS REPORTS AND ALL OF THAT. I DON'T THINK THAT'S NECESSARY.
MR. WADE: YOUR HONOR, I'LL CONFER WITH MY COLLEAGUES DURING THE BREAK ON THIS ISSUE. I WOULD JUST ASK IF -- ALTERNATIVELY, IF WE COME BACK AND ASK THAT THAT EVIDENCE BE STRICKEN AND THAT THE GOVERNMENT BE ADMONISHED. I MEAN, THE COURT GAVE CLEAR DIRECTION ON THIS ISSUE YESTERDAY. YOU SAID YOU DIDN'T WANT MINI TRIALS. WE TALKED ABOUT THE POSSIBILITY OF OPENING THIS DOOR, WHICH IS NOW WIDE OPEN AS THE GOVERNMENT -- AS THE GOVERNMENT WELL KNEW WHEN IT WAS ASKING THOSE QUESTIONS ABOUT THE BREADTH OF HIS EXPERIENCE.
JUDGE DAVILA: SO --
MR. WADE: I WAS VERY -- I WAS VERY CAREFUL, AS THE COURT OBSERVED I'M SURE YESTERDAY, OF TRYING TO DRAW THE LINE IN THE DIRECTION OF THE COURT, AND NOW WE HAVE COUNSEL, AT THE END OF THE CROSS-EXAMINATION, OR AT THE END OF THE REDIRECT EXAMINATION JUST BLOWING IT WIDE OPEN.
MR. BOSTIC: YOUR HONOR, IF I CAN RESPOND TO THAT?
JUDGE DAVILA: WELL, WHAT YOU DID YESTERDAY WAS YOU GOT HIS RESPONSE THAT HE HAS CONCERNS ABOUT HIS LICENSE BEING SUSPENDED FOR TWO YEARS, AND YOU CHOSE TO STOP YOUR EXAMINATION THEN. YOU COULD HAVE GONE AND ASKED OTHER QUESTIONS, BUT YOU STOPPED THERE, AND THAT'S WHERE IT IS. I -- I WANT -- I'LL, OF COURSE, ALLOW YOU TO SPEAK, MR. BOSTIC. BUT I'D ALSO LIKE YOU TO COMMENT ON WHETHER OR NOT THE COURT SHOULD JUST STRIKE THE LAST QUESTION AND ANSWER, THAT IS, WERE -- THE COMPARING THE LABS IN HIS CAREER. MAYBE WE STRIKE THAT AND THAT TAKES CARE OF THE ISSUE.
MR. BOSTIC: SO, YOUR HONOR, FIRST, AS TO THE NEXUS BETWEEN THAT QUESTIONING AND WHAT HAD COME BEFORE IN DR. ROSENDORFF'S TESTIMONY, DURING HIS DIRECT, HE HAD SPOKEN ABOUT HIS PREVIOUS EXPERIENCE. DURING CROSS-EXAMINATION, I RECALL QUESTIONS SPECIFICALLY ASKING DR. ROSENDORFF TO COMPARE HIS EXPERIENCE AT THERANOS, AND SPECIFICALLY THE FREQUENCY OF COMPLAINTS TO THE FREQUENCY OF COMPLAINTS THAT HE SAW AT UNIVERSITY OF PITTSBURGH. SO THAT'S THE SAME KIND OF GENERAL QUESTION THAT DEFENSE COUNSEL ASKED, ASKING DR. ROSENDORFF TO COMPARE THE SEVERITY AND FREQUENCY OF ISSUES BETWEEN THOSE TWO LABS. HE ANSWERED THAT QUESTION. I ASKED HIM SOME QUESTIONS ABOUT THAT ON REDIRECT, AGAIN, IN RESPONSE TO THAT LINE OF QUESTIONING. AS TO THE COURT'S PROPOSAL AS TO WHETHER STRIKING THAT ANSWER WOULD BE PREFERABLE TO OPENING THE DOOR TO THE INADMISSIBLE LINES OF QUESTIONING THAT THE DEFENSE RAISED YESTERDAY, I THINK YES, THAT WOULD BE A CLEANER APPROACH AND WOULD SOLVE ANY PREJUDICE THAT THE DEFENSE IS WORRIED ABOUT.
MR. WADE: WELL, LET ME CONFER AS TO WHETHER WE CAN UNRING THE BELL, BECAUSE THE JURY HAS ALREADY HEARD IT. IT WAS ONE OF THE LAST QUESTIONS THAT THEY HEARD AND THE ANSWERS THEY HEARD BEFORE THE BREAK. WITH RESPECT TO THE CROSS-EXAMINATION, IT WAS ACTUALLY THE GOVERNMENT WHO EXAMINED DR. ROSENDORFF ON DIRECT COMPARING HIS EXPERIENCE AT THERANOS TO HIS PAST EXPERIENCE AT THE UNIVERSITY OF PITTSBURGH AND ELICITED TESTIMONY THAT WAS DIRECTLY AT ODDS WITH HIS PRIOR SWORN TESTIMONY, AND I IMPEACHED THE WITNESS ON THAT. I DID NOT GO INTO FUTURE EMPLOYMENT. WE GOT DIRECTION FROM THE COURT ON THAT AND I HONORED THAT DIRECTION. SO --
JUDGE DAVILA: RIGHT. WELL, I THINK THAT THE -- YOU'VE ASKED ME TO STRIKE, MR. WADE, THROUGHOUT THE COURSE OF THIS WITNESS'S TESTIMONY, CERTAIN TESTIMONY AND I'VE GRANTED THAT REQUEST AND I'VE ADMONISHED THE JURY THEY'RE NOT TO CONSIDER THAT EVIDENCE THAT'S STRICKEN. THEY'LL BE INFORMED OF THAT, INSTRUCTED OF THAT IN THE FINAL INSTRUCTIONS, AND I THINK THE JURY WILL FOLLOW THE COURT'S INSTRUCTION. SO LET ME JUST SAY, THAT'S MY INTENTION IS I'M GOING TO -- WHEN THEY COME OUT, I'LL HAVE THAT LAST QUESTION AT MY FINGERTIPS FROM THE COURT REPORTER AND I WILL -- THAT ANSWER, QUESTION AND ANSWER, AND I'LL HAVE THAT STRICKEN. THEY'RE NOT TO CONSIDER IT. AND I THINK THAT TAKES CARE OF THE ISSUE, AND THEN IT'S DONE.
MR. WADE: I WOULD MAYBE JUST ADD, IF THE COURT COULD SAY THAT WAS NOT AN APPROPRIATE QUESTION AND AN APPROPRIATE ANSWER FOR THIS TRIAL. BECAUSE --
JUDGE DAVILA: WELL --
MR. WADE: -- IF IT'S JUST STRICKEN, YOU'RE RIGHT, THERE'S ALL SORTS OF STUFF THAT'S BEEN STRICKEN AND I'M NOT SURE THAT'S AN ADEQUATE REMEDY BECAUSE HE'S NOW COMPARED THIS TO ALL THESE OTHER LABS WHERE THERE ARE ALL THESE OTHER ISSUES.
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
MR. WADE: YOUR HONOR, WHAT I PARTICULARLY DON'T WANT YOU TO DO IS READ THE TESTIMONY AGAIN BECAUSE -- AND THAT'S WHY I'D LIKE TO CONFER WITH MY COLLEAGUES AND MAYBE WE CAN ADDRESS THIS FOR TWO MINUTES BEFORE WE PULL THE JURY BACK. I MEAN, THAT EXACERBATES THE PROBLEM. LIKE I SAID, IT WAS ONE OF THE LAST QUESTIONS. IT WAS NOT -- AND YOU CAN'T UNRING THAT BELL. SO IT MAY BE THAT --
JUDGE DAVILA: WELL, I CAN. I CAN TELL THEM NOT TO CONSIDER IT AND IT'S THE APPROPRIATE THING TO DO. AND THEN THEY'LL HAVE TO JUST -- THEY'LL FORGET ABOUT IT AT THAT POINT, OR AT LEAST THEY WON'T LET IT INTO THEIR DELIBERATIONS, AND IF THE GOVERNMENT TRIES TO ARGUE THAT, I'LL SHUT THE GOVERNMENT DOWN IN THEIR FINAL ARGUMENT IF THEY TRY TO RAISE THIS POINT. THIS WAS THE WORST LAB HE'S EVER WORKED IN, THEY WON'T BE PERMITTED TO ARGUE THAT. SO I THINK WE CAN -- I THINK WE CAN RESOLVE IT. I UNDERSTAND YOUR CONCERN. I DO. IT WAS AT THE END OF HIS INFORMATION, AND IT WAS A LENGTHY EXAMINATION. THIS WITNESS HAS ENDURED NOW FIVE DAYS OF EXAMINATION, WHICH IS TO SAY, THE JURY HAS ENDURED FIVE DAYS OF QUESTION AND ANSWER FROM THIS PARTICULAR WITNESS. SO I THINK WE ALL RECOGNIZE THAT.
MR. WADE: I THINK WE ALL HAVE, YOUR HONOR. MIGHT WE COME BACK JUST TWO MINUTES BEFORE WE CALL THE JURY BACK --
JUDGE DAVILA: SURE, OF COURSE.
JUDGE DAVILA: SURE.
MR. BOSTIC: AND YOUR HONOR, FINAL POINT, TO MR. WADE'S POINT ABOUT REREADING THE TESTIMONY, I THINK THAT CAN BE ADDRESSED BY THE COURT DESCRIBING THE QUESTION ONLY AND NOT READING THE ANSWER ITSELF. THE GOVERNMENT WOULD HAVE NO OBJECTION TO THAT, OF COURSE.
JUDGE DAVILA: OKAY. THANK YOU.
JUDGE DAVILA: YES, YES.
COURT CLERK: COURT IS IN RECESS. (THE LUNCH RECESS WAS TAKEN FROM 11:18 A.M. UNTIL 11:56 A.M.) AFTERNOON SESSION
(JURY OUT AT 11:56 A.M.)
JUDGE DAVILA: ALL RIGHT. WE'RE BACK ON THE RECORD IN THE HOLMES MATTER. WE ARE OUTSIDE THE PRESENCE OF THE JURY. ALL COUNSEL ARE PRESENT AND MS. HOLMES IS PRESENT.
MR. WADE: YOUR HONOR, THANK YOU. JUST FOLLOWING UP ON THE MATTER THAT WE WERE DISCUSSING BEFORE THE BREAK, WE LOOKED BACK AT OUR NOTES RELATING TO THE QUESTION AND ANSWER AND THE IMPACT OF THAT QUESTION AND ANSWER AND WE BELIEVE IT'S NECESSARY TO EXPLORE THOSE OTHER PROFESSIONAL EXPERIENCES.
JUDGE DAVILA: OF COURSE. OF COURSE YOU DO, YES. MR. BOSTIC?
MR. BOSTIC: SO, YOUR HONOR, I UNDERSTAND THAT THE COURT'S INTENTION WAS TO STRIKE -- I WASN'T SURE -- IT WASN'T CLEAR HOW MUCH WE WERE TALKING ABOUT STRIKING. MY UNDERSTANDING IS THAT THE CONTROVERSY IS OVER A QUESTION ABOUT ISSUES ENCOUNTERED AT DR. ROSENDORFF'S OTHER LABS AND WHETHER THE ISSUES AT THERANOS WERE WHAT HE CONSIDERED TO BE TYPICAL LABORATORY ISSUES. IN THE CONTEXT OF PREVIOUS QUESTIONS, I DON'T BELIEVE THAT THAT HAS A PREJUDICIAL EFFECT. TO THE EXTENT IT DOES, I THINK THAT STRIKING THAT SINGLE QUESTION AND ANSWER IS THE REMEDY. I DON'T THINK THAT GOING INTO THE INADMISSIBLE LINES OF QUESTIONING THAT WE DISCUSSED YESTERDAY IS THE SOLUTION HERE. BUT WE'RE GUIDED BY THE COURT.
JUDGE DAVILA: YOU FLIPPED YOUR LECTERNS HERE, HAVEN'T YOU?
MR. WADE: I WAS KIND OF OCCUPYING THE SPACE HERE, SO WE THOUGHT WE'D CHANGE PACE. YOUR HONOR, FOR THE REASONS THAT I STATED PREVIOUSLY, WE THINK THE BELL HAS BEEN RUNG. THE GOVERNMENT OPENED THE DOOR. I THINK AN INSTRUCTION WOULDN'T BE SUFFICIENT TO, TO CURE THAT AND WE'LL NEED TO EXPLORE WITH HIM THE OTHER ISSUES THAT HE ENCOUNTERED AT HIS LAB AND LET THE JURY DECIDE THE COMPARISON BETWEEN THOSE, BECAUSE RIGHT NOW --
JUDGE DAVILA: WELL, LET'S TALK ABOUT THE DANGER OF THAT THOUGH, MR. WADE. I THINK THERE IS SOME PRESENT DANGER IN DOING THAT. WHAT WE WOULD BE DOING THEN IS TO ENGAGE IN THOSE MINI TRIALS THAT YOU HAVE SUGGESTED I AVOID IN OUR MIL HEARING AND OTHERS, AND IF WE -- IF WE PUT THE COMPARATORS, THAT IS, THE OTHER LABORATORIES AND THIS WITNESS'S EXPERIENCE IN THEM TO THE JURY AND ASK THEM TO WEIGH THAT AS THEY DELIBERATE THE FACTS OF THIS CASE, I DO BELIEVE THAT PUTS YOUR CLIENT AT GREAT RISK, BECAUSE WHAT IF THEY DECIDE, YOU KNOW, HE WAS RIGHT, THERANOS WAS THE WORST PLACE HE WORKED AT? THESE OTHER PLACES DIDN'T HAVE THE SAME TYPE OF VIOLATIONS OR THIS AND THAT. THEY DIDN'T RISE TO THAT SEVERITY CERTAINLY THAT BRINGS A FEDERAL PROSECUTION. MY CONCERN IS THAT THEY MIGHT THEN INAPPROPRIATELY USE THAT TO JUDGE YOUR CLIENT AND THE CONDUCT OF THE ALLEGATIONS IN THIS CASE.
IN ESSENCE, WE WOULD BE ASKING THE JURY TO SAY, OKAY, IN DECIDING THE CREDIBILITY OF THIS WITNESS AND WHETHER OR NOT YOU SHOULD BELIEVE THIS OR NOT, WE'RE GOING TO SHARE WITH YOU HIS EXPERIENCES AND YOU CAN CONSIDER THOSE. AND I THINK THERE'S GREAT PERIL FOR MS. HOLMES IF THEY DECIDE, YOU KNOW, I THINK THAT WITNESS WAS RIGHT, ALL THE EXPERIENCE HE HAD, LOOK AT THIS, LOOK AT THE CONDUCT HERE, IT DOES NOT AT ALL COME CLOSE TO THIS. AND I HAVE -- YOU KNOW, I HAVE GREAT RESPECT FOR THE PROCESS HERE AND I DON'T THINK IT'S, IT'S FAIR TO PUT A JURY, TO HAVE THEM MAKE THAT DECISION ON A COLLATERAL, EXTRINSIC MATTER THAT RELATES TO THE WITNESS'S TESTIMONY AND THAT MIGHT IN SOME WAY AFFECT THEIR DELIBERATIVE PROCESS. NOW, I UNDERSTAND, WE CAN INSTRUCT THEM, YOU'RE NOT TO DO THAT. BUT, AGAIN, THEN WE START RINGING MULTIPLE BELLS, DON'T WE? I HOPE YOU APPRECIATE MY COMMENTS HERE AND MY CONCERN. MY THOUGHT IS THAT PERHAPS THE MOST EFFICIENT WAY TO RESOLVE THIS IS TO TELL THEM THAT THERE WAS THIS QUESTION, AND I WON'T -- AT YOUR SUGGESTION, I WON'T REPEAT IT TO RING THE BELL YET AGAIN -- BUT I THINK THE CONTEXT OF THAT QUESTION WAS, WAS TO ELICIT, THIS WAS THE WORST PLACE HE WORKED AT, OR THERE WERE MORE VIOLATIONS THAN ANY OTHER, AND I DON'T THINK THAT NEEDS -- THAT'S NOT NECESSARY FOR THEM, THE JURY, TO MAKE THEIR DECISION.
MR. WADE: IT WAS DESIGNED TO ELICIT HIS COMPARISON, WHICH IS 702 INFORMATION. IT'S AN ISSUE THAT THE GOVERNMENT -- I MEAN, THE COURT COULDN'T HAVE BEEN CLEARER YESTERDAY ON THESE MATTERS AND THE GOVERNMENT ELICITED THAT TESTIMONY SPECIFICALLY ON ITS DIRECT EXAMINATION. SO WHILE I UNDERSTAND THE RISKS, WE THINK -- WE HAVE TO BALANCE RISKS IN THIS CASE IN TERMS OF THE RISKS OF THAT ANSWER AND CREDITING THAT TESTIMONY VERSUS OUR ABILITY TO TEST THAT ANSWER AND TO LET THE JURY DECIDE WHETHER THEY -- WHICH EVIDENCE THEY WANT TO BELIEVE.
JUDGE DAVILA: WELL, WHY DON'T WE JUST DISCARD THAT EVIDENCE FROM THEIR, FROM THEIR KNOWLEDGE BY STRIKING IT SUCH THAT THEY DON'T HAVE TO GO THROUGH THAT THOUGHT PROCESS AT ALL AND, THEREFORE, WE CAN AVOID ANY DANGER THAT MIGHT COME FROM IT? I UNDERSTAND YOUR NEED NOW TO RISE AND RESPOND TO IT. I RESPECT THAT. I DO. BUT AS I SAID, I HAVE GREAT CONCERNS THAT IT COULD -- AND YOU'VE WARNED ME SEVERAL TIMES OVER THE PAST MONTHS ABOUT MINI TRIALS -- AND I SEE THIS AS A MINI TRIAL THAT DOESN'T BENEFIT EITHER SIDE AND IT PERHAPS PRESENTS GREATER PERIL TO THE DEFENSE HERE. MR. BOSTIC?
MR. BOSTIC: NOT MUCH TO ADD, YOUR HONOR. THE GOVERNMENT'S INTENT IN ASKING THAT QUESTION WAS TO PROVIDE A RESPONSE TO PREVIOUS ANSWERS ABOUT LABS IN GENERAL, THE FACT THAT MISTAKES HAPPEN AT LABS. THE PARTIES DISAGREE AS TO THE EFFECT OF THAT QUESTION. OF COURSE IT'S THE COURT'S VIEW THAT CONTROLS. TO THE EXTENT THE EFFECT OF THAT QUESTION CARRIES SOME DANGER OF SOME PREJUDICE TO THE DEFENSE, THE GOVERNMENT AGREES WITH THE COURT THAT STRIKING THE QUESTION IS THE ANSWER. WE'RE TALKING ABOUT ONE QUESTION AND ANSWER IN A VERY LENGTHY WITNESS EXAMINATION, WHICH IS NOT YET OVER. WE'RE ABOUT TO ENTER RECROSS. IT WON'T BE THE LAST THING THE WITNESS SAYS ON THE STAND. THIS WON'T BE THE LAST THING THE JURY HEARS. THERE ARE WEEKS LEFT IN THE TRIAL, AS THE COURT POINTED OUT. SO THIS IS NOT A SITUATION WHERE ANYTHING MORE THAN STRIKING THAT ANSWER IS REQUIRED.
MR. WADE: YOUR HONOR, OUR POSITION IS CLEAR ON THIS. I UNDERSTAND MR. BOSTIC'S POSITION. BUT HE ASKED THE QUESTION AND THE ANSWER WAS GIVEN AND WE'VE MADE OUR JUDGMENT. OUR POSITION WOULD BE WE SHOULD EXPLORE IT. IF THE COURT IS UNWILLING TO ALLOW US THE LATITUDE TO DO THAT, I COULD GIVE A SPECIFIC PROFFER AS TO EXACTLY WHAT WE WOULD -- THE WAY WE WOULD EXPLORE IT EITHER NOW ORALLY OR IN WRITING AND THE COURT COULD CONSIDER IT. IF THE COURT'S NOT GOING TO CONSIDER THAT, WE WOULD ALSO HAVE A PROPOSED INSTRUCTION THAT WE WOULD HAND UP. WE DO NOT THINK THIS IS A CIRCUMSTANCE IN WHICH SIMPLY STRIKING THIS QUESTION, GIVEN THE SIGNIFICANCE OF IT RIGHT BEFORE THE BREAK, ONE OF THE LAST QUESTIONS, I BELIEVE IT MAY HAVE BEEN KIND OF SET UP AS A SERIES OF QUESTIONS, WE DON'T THINK THAT'S SUFFICIENT.
JUDGE DAVILA: ALL RIGHT. WELL, THANK YOU. WELL, I -- I APPRECIATE YOUR CONCERN. YOU'VE TALKED ABOUT YOUR BELIEF IN THE IMPACT OF THAT QUESTION ON THE JURY, THE TIMING, THE STRATEGIC NATURE OF THE WAY IT WAS PRESENTED, ET CETERA. AND TRIALS ARE STRATEGIC. I KNOW BOTH SIDES PREPARE AND DO THE BEST YOU CAN. THE QUESTION WAS -- LET ME SAY THIS: IT'S UNFORTUNATE THAT THE QUESTION WAS ASKED. I'LL CONCEDE THAT. I DO THINK THAT IT DID CRACK PERHAPS THE DOOR, IT DID RAISE THE ISSUE. THAT'S WHY WE'RE DISCUSSING IT HERE. I DO THINK THAT THE REMEDY, THOUGH, THE APPROPRIATE REMEDY HERE IS NOT TO ENGAGE IN A SERIES OF MINI TRIALS TO TEST WHETHER OR NOT THERANOS WAS THE PLACE THAT HAD GREATER PROBLEMS THAN ANY OTHER. AS I TOLD YOU BEFORE, I WOULD ALLOW YOU SOME LATITUDE IN TALKING ABOUT THAT SUBJECT WITHOUT GETTING INTO THE EXTRINSIC EVIDENCE, THOUGH, AND I -- I EXPECT THAT YOU WILL DELICATELY ADVANCE THOSE QUESTIONS. BUT I DO THINK THE APPROPRIATE REMEDY HERE, UNDER 403 AND UNDER THE COURT'S INHERENT DISCRETION TO RUN THE TRIAL, IS THAT TO ALLOW MINI TRIALS TO ENGAGE ON THIS PARTICULAR ISSUE WOULD BE WASTEFUL OF TIME, IT WOULD CONFUSE THE JURY ON COLLATERAL ISSUES THAT REALLY AREN'T, AREN'T GERMANE TO THE TRIAL IN THIS CASE. I WILL, THOUGH -- I DO RECOGNIZE THE IMPORT OF THE QUESTION AND WHAT IT CAUSES AND MAY CAUSE THE JURY TO SPECULATE ON, SO I WILL STRIKE THAT LAST QUESTION. YOU HAVE SOMETHING YOU'D LIKE ME TO LOOK AT?
MR. WADE: I WOULD. IF I COULD HAND IT UP, YOUR HONOR (HANDING)? AND I'LL GIVE A COPY TO THE COURT REPORTER, TOO, SO IT CAN BE MADE PART OF THE RECORD.
JUDGE DAVILA: THANK YOU.
MR. WADE: WOULD THE COURT PREFER THAT I READ THIS SO IT'S PART OF THE RECORD, OR CAN WE JUST APPEND IT AS PART OF THE RECORD?
JUDGE DAVILA: LET ME ASK FIRST FOR MR. BOSTIC'S COMMENTS ON THIS. YOU HAVE THIS, MR. BOSTIC?
MR. BOSTIC: I DO, YOUR HONOR. I THINK THAT TO ACCOMPLISH THE PURPOSE, I'M NOT SURE IT'S NECESSARY TO CHARACTERIZE THE QUESTION. I THINK THE COURT COMMENTED EARLIER ON ITS INCLINATION TO MAKE A JUDGMENT LIKE THAT IN FRONT OF THE JURY. I DON'T KNOW IF THE COURT'S THINKING HAS CHANGED, BUT MY THINKING IS ALIGNED WITH WHAT I UNDERSTAND THE COURT'S POSITION TO BE. SO I'M NOT SURE CHARACTERIZING THE QUESTION IS NECESSARY. I THINK OTHERWISE I'M NOT SURE FOR THE NEED TO DEVIATE FROM THE COURT'S STANDARD INSTRUCTION WHEN IT COMES TO STRIKING ANSWERS FROM THE RECORD. BUT OTHERWISE I HAVE NO SUBSTANTIVE OBJECTIONS TO THIS LANGUAGE.
MR. WADE: YOUR HONOR, AS WE'VE MADE CLEAR IN SEEKING TO EXPLORE THIS IN CROSS-EXAMINATION, WE THINK THIS IS DIFFERENT IN KIND FROM THE OTHER ANSWERS AND REQUIRES MORE OF A REMEDY. THAT'S WHY WE'VE PROPOSED THIS INSTRUCTION. OUR PREFERENCE WOULD BE TO EXPLORE IT IN CROSS-EXAMINATION, BUT SHORT OF THAT, UNDERSTANDING THE COURT'S RULING UNDER THE RULES OF EVIDENCE, WE WOULD ASK THAT THIS INSTRUCTION BE GIVEN TO CURE THIS, THIS ISSUE.
JUDGE DAVILA: ALL RIGHT. THANK YOU.
JUDGE DAVILA: I BEG YOUR PARDON. YOU'D LIKE ME TO -- YOU WOULD LIKE ME TO ADVISE THE JURY OF THIS NOW WHEN THEY COME IN?
JUDGE DAVILA: YOU SAID INSTRUCTION. YOU MEANT NOW AS OPPOSED TO A FINAL INSTRUCTION?
JUDGE DAVILA: RIGHT. ALL RIGHT. THANK YOU. WELL, I LOOK AT THIS, I AM GOING TO STRIKE THE, THE MIDDLE SENTENCE IN THE THIRD LINE. I DON'T THINK THAT'S NECESSARY. BUT I WILL READ TO THE JURY, WHEN THEY RETURN, THE FOLLOWING: "AT THE END OF HIS REDIRECT EXAMINATION, DR. ROSENDORFF WAS ASKED TO COMPARE THERANOS WITH OTHER LABS WHERE HE HAS WORKED. YOU MUST ENTIRELY DISREGARD BOTH THE QUESTION AND DR. ROSENDORFF'S ANSWER. IT WOULD BE IMPROPER FOR YOU TO GIVE ANY WEIGHT WHATSOEVER EITHER TO THE QUESTION OR TO THE ANSWER." THAT'S WHAT I'LL READ TO THEM WHEN THEY COME OUT.
MR. WADE: AND JUST FOR THE RECORD, YOU'LL SKIP OVER THE SENTENCE "THAT WAS AN INAPPROPRIATE QUESTION" THAT WE HAD REQUESTED?
JUDGE DAVILA: THE ONE THAT YOU JUST READ INTO THE RECORD, THAT YOU WANTED TO READ INTO THE RECORD?
JUDGE DAVILA: YES. THANK YOU FOR DOING THAT. I WAS GOING TO SUGGEST THAT WHAT I DELETED WAS WHAT MR. WADE JUST READ --
JUDGE DAVILA: -- FROM THE PROPOSED INSTRUCTION. OKAY. ANYTHING ELSE? OH, LET ME -- BUT, MR. WADE, I DID SAY THAT I WOULD ALLOW YOU TO PROBE SOMEWHAT. HAVING READ THIS INSTRUCTION, THOUGH, THEY'RE NOT TO CONSIDER THAT, YOU SEE, SO THIS PRESENTS THEN ANOTHER DOOR THAT YOU'RE FACING, DOESN'T IT?
JUDGE DAVILA: RIGHT.
JUDGE DAVILA: WELL, I -- I FIRST SAID, WHEN WE WERE TALKING ABOUT POSSIBLE REMEDIES, I SAID I MIGHT LET YOU PROBE INTO THIS. BUT IF I'M GOING TO READ THIS INSTRUCTION NOW, I THINK IT BEST TO KEEP THE WHITE BOARD COMPLETELY CLEAN SO THEY'RE NOT REMINDED ABOUT ANYTHING. IF I ALLOW YOU TO, AS I SAID I WAS GOING TO DO, ALLOW YOU TO PROBE A LITTLE BIT ON THE AREA OF WHETHER OR NOT THIS WAS THE WORST PLACE, OR WHATEVER IT WAS HE SAID ABOUT THAT, THAT TANGENTIALLY KEEPS THAT -- THIS -- THAT QUESTION IN THEIR MINDS, AND I'M ASKING THEM TO STRIKE IT. SO WHAT I'M SUGGESTING NOW IS MAYBE WE SHOULD MOVE ON AND YOU DON'T NEED TO ASK ANY QUESTIONS ABOUT IT BECAUSE THAT QUESTION ISN'T IN THEIR MIND.
MR. WADE: I APOLOGIZE IF I WAS CONFUSED, YOUR HONOR. I UNDERSTOOD THAT YOU WERE NOT GOING TO ALLOW US TO PROBE THAT. THAT'S WHAT I UNDERSTOOD TO BE THE COURT'S RULING.
JUDGE DAVILA: RIGHT.
MR. WADE: WHAT MY REFERENCE WOULD BE WOULD BE TO PROBE WITH RESPECT TO THE TWO, TWO PLACES OF EMPLOYMENT WHERE THERE WERE SIGNIFICANT ISSUES WITHIN THE LAB, ONE BEING INVITAE AND THE VOIDING OF THE 50,000 TESTS, THERE BEING A NUMBER OF ERRONEOUS TESTS AND HIS SEPARATION FROM THE COMPANY AS A RESULT OF THAT; AND THE OTHER BEING THE SIGNIFICANT ISSUES, INCLUDING THE TESTING ACCURACY AND LAB PRACTICES DEFICIENCIES AT PERKIN ELMER. THAT WOULD HAVE BEEN WHAT I WOULD HAVE INTENDED TO PROBE, AND I HAD UNDERSTOOD THAT THE COURT DOESN'T, DOESN'T WANT ME TO GO INTO THAT. AM I --
JUDGE DAVILA: THAT'S RIGHT. AND I'M SORRY, WE'RE TALKING KIND OF -- WE'RE SHIPS PASSING.
JUDGE DAVILA: BUT WHAT I'M GOING TO DO, BECAUSE THIS ISSUE HAS BEEN RAISED AND IN LIGHT OF YESTERDAY'S RULING WHERE I SAID YOU CAN'T GET INTO ANY OF THAT, TODAY THIS ISSUE CAME UP FROM MR. BOSTIC'S QUESTION AND THE ANSWER. THE REMEDY TODAY IS TO STRIKE THAT QUESTION AND THAT ANSWER, AND I THINK THAT TAKES CARE OF IT SUCH THAT YOU DON'T NEED TO GO INTO ANY OF THE OTHER THINGS THAT I TALKED ABOUT.
JUDGE DAVILA: I WILL NOT LET YOU GO INTO THOSE.
JUDGE DAVILA: AS WE PREVIOUSLY DISCUSSED.
JUDGE DAVILA: THAT'S NOT TO SAY THAT YOU CAN'T -- YOU'RE GOING TO DO WHATEVER YOU'RE GOING TO DO ON RECROSS BASED ON WHAT THE REDIRECT WAS.
JUDGE DAVILA: OKAY. ANY QUESTION ABOUT THAT?
MR. BOSTIC: NOT FROM THE GOVERNMENT, YOUR HONOR. THANK YOU.
JUDGE DAVILA: OKAY. ALL RIGHT. THANK YOU. SHOULD WE ASK THE DOCTOR TO COME IN AND ASK OUR JURY TO COME IN NOW?
MR. BOSTIC: YES, YOUR HONOR.
JUDGE DAVILA: ARE WE READY?
MR. BOSTIC: YES.
JUDGE DAVILA: OKAY.
(PAUSE IN PROCEEDINGS.)
JUDGE DAVILA: OKAY. FOLKS, I JUST WANT TO REMIND EVERYONE THAT WE DON'T -- THOSE IN THE GALLERY, WE'RE NOT HAVING BEVERAGES, AND SO IF YOU BROUGHT A BEVERAGE IN, YOU NEED TO PLEASE REMOVE THE BEVERAGE, COFFEE DRINKS OR THOSE KINDS OF THINGS.
(PAUSE IN PROCEEDINGS.)
JUDGE DAVILA: CAN I ASK COUNSEL, IS IT STILL SUGGESTED THAT -- WE'RE GOING TO GO UNTIL 3:00 TODAY. IS IT SUGGESTED STILL THAT WE BREAK AT THE 1:30 TIMEFRAME? IS THAT A GOOD TIMEFRAME?
(DISCUSSION OFF THE RECORD AMONGST DEFENSE COUNSEL.)
JUDGE DAVILA: OKAY.
(JURY IN AT 12:14 P.M.)
JUDGE DAVILA: ALL RIGHT. THANK YOU. PLEASE BE SEATED. WE'RE BACK ON THE RECORD. OUR JURY AND ALTERNATES ARE PRESENT. ALL COUNSEL AND MS. HOLMES ARE PRESENT. DR. ROSENDORFF IS ON THE STAND AGAIN. AND YOU HAVE SOME -- YOU'D LIKE TO ASK SOME QUESTIONS ON RECROSS?
JUDGE DAVILA: YES. BUT FIRST, LADIES AND GENTLEMEN, BEFORE WE BEGIN MR. WADE'S QUESTIONING, I DO WANT TO INSTRUCT YOU ON SOMETHING, SO PLEASE DO LISTEN. AT THE END OF HIS REDIRECT EXAMINATION, DR. ROSENDORFF WAS ASKED TO COMPARE THERANOS WITH OTHER LABS WHERE HE HAS WORKED. YOU MUST ENTIRELY DISREGARD BOTH THE QUESTION, THAT QUESTION, AND DR. ROSENDORFF'S ANSWER. IT WOULD BE IMPROPER FOR YOU TO GIVE ANY WEIGHT WHATSOEVER EITHER TO THE QUESTION OR TO THE ANSWER. JUST TO BE CLEAR, I AM STRIKING THOSE, THE QUESTION AND THE ANSWER FROM THE RECORD AND YOU ARE NOT, NOT TO CONSIDER EITHER OF THOSE THINGS IN YOUR DELIBERATIONS. THEY ARE STRICKEN. THANK YOU.
JUDGE DAVILA: YES.