Shane Weber — Direct/Cross/Redirect
907 linesDIRECT EXAMINATION BY MR. LEACH:
MR. LEACH: MR. WEBER, IF YOU ARE VACCINATED, WITH THE COURT'S PERMISSION AND IF YOU ARE COMFORTABLE, YOU CAN TESTIFY WITHOUT A MASK. THANK YOU. WAS THERE A TIME WHEN YOU WORKED FOR A COMPANY CALLED PFIZER?
SHANE WEBER: YES.
MR. LEACH: WHAT IS THE BUSINESS OF PFIZER?
SHANE WEBER: PFIZER IS A GLOBAL WORLDWIDE PHARMACEUTICAL COMPANY.
MR. LEACH: WHEN DID YOU WORK FOR PFIZER?
SHANE WEBER: I WORKED FOR PFIZER FROM 2008 THROUGH 2014.
MR. LEACH: AT A HIGH LEVEL, CAN YOU BRIEFLY DESCRIBE YOUR EDUCATIONAL AND PROFESSIONAL BACKGROUND BEFORE YOU JOINED PFIZER IN 2008.
SHANE WEBER: MY EDUCATIONAL BACKGROUND, I HAVE A BACHELOR'S OF ART IN BIOCHEMISTRY AND MOLECULAR BIOLOGY FROM NORTHWESTERN UNIVERSITY. THEN I HAVE A PH.D. IN BIOPHYSICS FROM OREGON STATE UNIVERSITY FROM THE DEPARTMENT OF BIOCHEMISTRY AND BIOPHYSICS THERE. THEN ACADEMICALLY I DID A -- I WAS A POST-DOCTORAL FELLOW AT THE UNIVERSITY OF ROCHESTER UPSTATE NEW YORK IN RADIATION BIOLOGY AND BIOPHYSICS. FOLLOWING THESE EDUCATIONAL EXPERIENCES, I FIRST WENT TO EASTMAN KODAK IN ROCHESTER, NEW YORK AS A SCIENTIST IN A PROTEIN ENGINEERING LAB. FOLLOWING THAT, I WAS AT A SMALL, MEDIUM SIZED TECHNOLOGY COMPANY IN CONNECTICUT CALLED PACKARD INSTRUMENTS WHERE I WAS A SENIOR ASSAY ANALYST IN BUSINESS DEVELOPMENT. FOLLOWING THAT, I WENT TO MILLENNIUM PHARMACEUTICALS -- ACTUALLY, IN BETWEEN THERE WAS A SIX MONTH TIME WHERE I WAS AT A SMALL STARTUP CALLED AGLIX IN NEW HAVEN, CONNECTICUT. THEN I WENT TO -- THERE I WAS THE SENIOR PROGRAM MANAGER AT GENOMICS. FOLLOWING THAT, I WENT TO MILLENNIUM PHARMACEUTICALS IN CAMBRIDGE, MASSACHUSETTS WHERE I WAS A SENIOR SCIENTIST II IN THE TRACE GENOMIC MICROARRAY PROFILING FACILITY. IN BETWEEN THERE, I -- AFTER MILLENNIUM, I WENT BACK TO NEW JERSEY WHERE I WAS A DIRECTOR OF DIAGNOSTICS AND ASSAYS IN ORTHOCLINICAL DIAGNOSTICS AT JOHNSON & JOHNSON. AND FOLLOWING THEM, I CAME TO PFIZER AS A DIRECTOR OF DIAGNOSTICS IN MOLECULAR MEDICINE.
MR. LEACH: THANK YOU. I HEARD YOU SAY THAT YOU HAVE A PH.D. IN BIOPHYSICS FROM OREGON STATE.
SHANE WEBER: I DO.
MR. LEACH: OKAY. WOULD YOU PREFER THAT I ADDRESS YOU AS MR. WEBER OR DR. WEBER?
SHANE WEBER: MR. WEBER WOULD BE FINE.
MR. LEACH: OKAY. AND YOU'VE WORKED FOR A NUMBER OF PHARMACEUTICAL AND BIOTECHNOLOGY COMPANIES?
SHANE WEBER: I HAVE.
MR. LEACH: AND YOU JOINED PFIZER IN 2008 AND LEFT IN 2014?
SHANE WEBER: YES.
MR. LEACH: WHAT ARE YOU DOING TODAY?
SHANE WEBER: TODAY I'M RETIRED.
MR. LEACH: I WANT TO FOCUS MY QUESTIONS, MR. WEBER, STARTING IN THE 2008 TIME PERIOD WHEN YOU WERE FIRST HIRED BY PFIZER. WHAT WERE YOU HIRED TO DO?
SHANE WEBER: I WAS HIRED AS A DIRECTOR OF DIAGNOSTICS TO ENABLE DIAGNOSTICS TO MOVE PFIZER'S CLINICAL PROGRAMS FORWARD.
MR. LEACH: AND WHEN YOU SAY "DIRECTOR OF DIAGNOSTICS," WHAT, WHAT ARE DIAGNOSTICS?
SHANE WEBER: WELL, DIAGNOSTICS -- I DON'T DEFINE THEM. THE FEDERAL FOOD AND DRUG ADMINISTRATION DEFINES DIAGNOSTICS. DIAGNOSTICS ARE THOSE REAGENTS, INSTRUMENTS, AND SYSTEMS INTENDED FOR THE DIAGNOSIS OF DISEASE OR OTHER CONDITIONS, INCLUDING HEALTH, FOR THE PURPOSE OF TREATING, MITIGATING, CURING, OR PREVENTING DISEASE. DIAGNOSTICS, SUCH PRODUCTS ARE INTENDED FOR THE COLLECTION, EXAMINATION, AND EVALUATION OF SAMPLES FROM HUMANS, AND SUCH PRODUCTS ARE CONSIDERED TO BE REGULATED AS DEVICES UNDER SECTION 201(H) OF THE FEDERAL FOOD DRUG AND COSMETIC ACT, AND THEY ALSO MAY BE REGULATED AS BIOLOGICS UNDER THE PUBLIC SERVICE HEALTH ACT, AND THEY'RE BROADLY REGULATED AS SAFE FOR INTENDED USE UNDER 21 CFR 860.7.
MR. LEACH: THANK YOU. AND AS DIRECTOR OF DIAGNOSTICS AT PFIZER IN 2008, DID YOU BECOME FAMILIAR WITH A COMPANY CALLED THERANOS?
SHANE WEBER: I DID.
MR. LEACH: IN YOUR ROLE AS DIRECTOR OF DIAGNOSTICS AT PFIZER, WERE YOU ASKED TO REVIEW THERANOS'S TECHNOLOGY AND ITS POTENTIAL USE BY PFIZER?
SHANE WEBER: I WAS.
MR. LEACH: YOU SHOULD HAVE A BINDER UP THERE AT THE WITNESS STAND, A WHITE BINDER, AND I'D LIKE TO DRAW YOUR ATTENTION, PLEASE, TO WHAT HAS BEEN MARKED AS TRIAL EXHIBIT 143. YOUR HONOR, I MOVE EXHIBIT 143 INTO EVIDENCE. I UNDERSTAND THERE'S A STIPULATION.
MR. CLINE: NO OBJECTION.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 143 WAS RECEIVED IN EVIDENCE.)
BY MR. LEACH:
MR. LEACH: DO YOU HAVE THAT IN FRONT OF YOU, SIR?
SHANE WEBER: I DO.
MR. LEACH: OKAY. AND IF I COULD ASK MS. HOLLIMAN TO PLEASE ZOOM IN ON THE TOP HALF OF THIS EMAIL. MR. WEBER, DOES THIS APPEAR TO BE AN EMAIL FROM ELIZABETH HOLMES TO TWO INDIVIDUALS NAMED AIDEN POWER AND CRAIG LIPSET?
SHANE WEBER: IT DOES APPEAR TO BE SO.
MR. LEACH: WHO IS AIDEN POWER?
SHANE WEBER: AIDEN POWER IS THE VICE PRESIDENT IN CHARGE OF MOLECULAR MEDICINE, WHICH IS A WORLDWIDE UNIT OF PFIZER.
MR. LEACH: OKAY. WERE YOU PART OF THE MOLECULAR MEDICINE GROUP?
SHANE WEBER: I WAS.
MR. LEACH: OKAY. AND THERE'S ANOTHER NAME, CRAIG LIPSET. WHO IS CRAIG LIPSET?
SHANE WEBER: CRAIG LIPSET WAS THE DIRECTOR OF CLINICAL INNOVATION AND MOLECULAR MEDICINE.
MR. LEACH: WAS HE SOMEBODY THAT YOU WORKED WITH?
SHANE WEBER: YES, I WORKED WITH HIM.
MR. LEACH: OKAY. HOW DID YOU GET THE ASSIGNMENT TO REVIEW THERANOS'S TECHNOLOGY IN THIS LATE 2008 TIME PERIOD?
SHANE WEBER: AS I REMEMBER IT, THERE WAS AN EMAIL FROM CRAIG LIPSET TO ME ASKING ME TO LOOK AT THE DIAGNOSTIC CAPABILITY OF THERANOS.
MR. LEACH: OKAY. I WANT TO FOCUS ON -- AND THE DATE OF THIS IS OCTOBER 11TH, 2008. DO YOU SEE THAT?
SHANE WEBER: I DO.
MR. LEACH: AND IS THIS CONSISTENT WITH THE TIME PERIOD WHEN YOU WERE ASKED TO REVIEW THERANOS'S TECHNOLOGY?
SHANE WEBER: YES, I WAS ASKED AFTER THIS DATE.
MR. LEACH: OKAY. I KNOW YOU'RE NOT ON THIS EMAIL, BUT I'D LIKE TO DRAW YOUR ATTENTION TO THE THIRD PARAGRAPH. DO YOU SEE WHERE MS. HOLMES WROTE, "I AM VERY PLEASED TO PRESENT YOU WITH THE FINAL DATA - SEE THE ATTACHED STUDY REPORT." DO YOU SEE THAT? WE'RE IN THE THIRD PARAGRAPH, AND IT'S HIGHLIGHTED ON THE SCREEN AS WELL.
SHANE WEBER: YES, I SEE THIS NOW. "I AM VERY PLEASED," YES, I SEE THIS THIRD PARAGRAPH.
MR. LEACH: OKAY. AND SHE'S DRAWING ATTENTION TO AN ATTACHED STUDY REPORT. CAN I PLEASE ASK YOU TO LOOK AT PAGE 3 OF THIS DOCUMENT.
SHANE WEBER: YES.
MR. LEACH: DOES THIS APPEAR TO BE THE ATTACHED STUDY REPORT THAT MS. HOLMES REFERRED TO IN THE EMAIL?
SHANE WEBER: IT WOULD SEEM TO BE SO.
MR. LEACH: OKAY. AND DO YOU SEE THE LOGO AT THE TOP WITH THERANOS REDEFINING HEALTH CARE?
SHANE WEBER: YES.
MR. LEACH: AND DO YOU SEE THE LABEL CONFIDENTIAL IN THE RIGHT CORNER ON THE TOP PAGE?
SHANE WEBER: I DO.
MR. LEACH: OKAY. THE TITLE OF THIS IS THERANOS ANGIOGENESIS STUDY REPORT. DO YOU SEE THAT?
SHANE WEBER: I DO.
MR. LEACH: IN THIS LATE 2008 TIME PERIOD, WERE YOU MADE AWARE OF WORK BY PFIZER AND THERANOS RELATING TO AN ANGIOGENESIS PROGRAM?
SHANE WEBER: YES.
MR. LEACH: OKAY. DO YOU SEE WHERE IT SAYS "PREPARED FOR DR. AIDAN POWER, PFIZER, INC.?
SHANE WEBER: I DO.
MR. LEACH: AND DO YOU SEE THAT THERE'S, BENEATH THAT, A DOCUMENT OUTLINE?
SHANE WEBER: I DO.
MR. LEACH: OKAY. AND I'D LIKE TO FOCUS ON THE BULLET WITH CONCLUSIONS. DO YOU SEE THAT? IT'S THE LAST BULLET UNDERNEATH DOCUMENT OUTLINE. AND MS. HOLLIMAN IS ZOOMING OUT ON THE SCREEN AND HIGHLIGHTING THAT FOR US. DO YOU SEE THAT?
SHANE WEBER: I SEE THAT.
MR. LEACH: OKAY. COULD YOU NOW PLEASE TURN TO PAGE 26.
SHANE WEBER: OKAY, I SEE THIS.
MR. LEACH: OKAY. DO YOU SEE THE THERANOS LOGO AT THE TOP WHERE IT SAYS THERANOS REDEFINING HEALTH CARE?
SHANE WEBER: I DO.
MR. LEACH: AND DO YOU SEE THE HEADING CONFIDENTIAL TO THE RIGHT?
SHANE WEBER: I DO.
MR. LEACH: AND DO YOU SEE THAT THERE ARE A NUMBER OF CONCLUSIONS LISTED? AND IF WE COULD ZOOM OUT, MS. HOLLIMAN, SO WE CAN SEE THERE ARE A NUMBER OF CONCLUSIONS LISTED HERE. DO YOU SEE THAT?
SHANE WEBER: YES, I DO.
MR. LEACH: LET ME DRAW YOUR ATTENTION TO NUMBER 1. DO YOU SEE WHERE IT SAYS, "THE THERANOS SYSTEM PERFORMED WITH SUPERIOR PERFORMANCE TO REFERENCE ASSAYS WHILE RUNNING IN A COMPLEX AMBULATORY ENVIRONMENT." DO YOU SEE THAT?
SHANE WEBER: I DO.
MR. LEACH: AND DO YOU SEE NUMBER 5 UNDER TECHNICAL WHERE IT SAYS, "INTER-SYSTEM ACCURACY IS EXCELLENT AND WAS DEMONSTRATED ON A PLATFORM WITH SUPERIOR PERFORMANCE SPECIFICATIONS TO REFERENCE METHODS"?
SHANE WEBER: I DO.
MR. LEACH: AND DO YOU SEE ANOTHER CONCLUSION, NUMBER 7, "GOOD CORRELATIONS WERE SEEN TO VARIOUS COMMERCIALLY AVAILABLE GOLD-STANDARDS"?
SHANE WEBER: I DO.
MR. LEACH: OKAY. AND THIS IS IN A REPORT SENT BY MS. HOLMES TO DR. POWER AND CRAIG LIPSET IN THE OCTOBER TIME PERIOD; IS THAT FAIR?
SHANE WEBER: YES, AS I UNDERSTAND IT.
MR. LEACH: OKAY. LET ME NEXT DRAW YOUR ATTENTION, PLEASE, TO WHAT WE HAVE MARKED AS EXHIBIT 159, WHICH I'LL MOVE INTO EVIDENCE, YOUR HONOR. I UNDERSTAND THERE'S A STIPULATION.
MR. CLINE: NO OBJECTION.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 159 WAS RECEIVED IN EVIDENCE.)
BY MR. LEACH:
MR. LEACH: MR. WEBER, I'D LIKE TO START ON PAGES -- ON PAGE 4 OF THIS DOCUMENT. DO YOU SEE AN EMAIL FROM MS. HOLMES TO CRAIG LIPSET ON OR ABOUT NOVEMBER 6TH, 2008?
SHANE WEBER: I DO.
MR. LEACH: OKAY. AND NOW IF WE COULD SHOW BOTH THE BOTTOM PORTION OF PAGE 3 AND THE TOP PORTION OF PAGE 5, MS. HOLLIMAN. DO YOU SEE AT THE BOTTOM OF PAGE 3, MR. WEBER, THERE'S AN EMAIL FROM CRAIG LIPSET TO MS. HOLMES, YOU, AND GARY FRENZEL?
SHANE WEBER: I DO.
MR. LEACH: OKAY. AND IS THIS CONSISTENT WITH THE TIME PERIOD WHERE YOU WERE ASKED TO REVIEW AND EVALUATE THERANOS'S TECHNOLOGY?
SHANE WEBER: IT IS.
MR. LEACH: OKAY. AND NOW FOCUSSING ON THE EMAIL AT THE TOP OF PAGE 4 -- I THINK WE HAVE PAGE 4 -- OR 3 AND 5 UP, MS. HOLLIMAN. IF WE CAN GET PAGE 4. WONDERFUL. IT APPEARS THAT MR. LIPSET WROTE, "GARY - PLEASE COORDINATE WITH SHANE WEBER, WHO LEADS OUR DIAGNOSTICS GROUP HERE IN NEW YORK. WHEN A TIME IS SET, PLEASE LET ME KNOW AS I WOULD LIKE TO JOIN IF MY CALENDAR PERMITS." DO YOU SEE THIS LANGUAGE?
SHANE WEBER: I DO.
MR. LEACH: AND IS THIS MR. LIPSET ESSENTIALLY GIVING DIRECTION TO THE FOLKS AT THERANOS TO DIRECT INFORMATION TO YOU FOR YOUR REVIEW?
SHANE WEBER: YES.
MR. LEACH: LET ME DRAW YOUR ATTENTION, PLEASE, TO PAGE 1 OF EXHIBIT 159. MS. HOLLIMAN, IF WE CAN ZOOM IN ON THE BOTTOM EMAIL FROM MR. WEBER. IS THIS AN EMAIL FROM YOU TO GARY FRENZEL FOLLOWING UP ON CRAIG LIPSET'S REQUEST?
SHANE WEBER: IT IS.
MR. LEACH: AND I DRAW YOUR ATTENTION TO THE THIRD PARAGRAPH, THE THIRD AND FOURTH PARAGRAPHS. YOU WRITE, "I AM INTERESTED MORE BROADLY AS TO WHAT THE INSTRUMENT IS AND PLANNED TO BE AND NOT JUST IN UNDERSTANDING THE PERFORMANCE AND UTILITY OF THE THERANOS SYSTEM IN THE ONCOLOGY STUDY." WHAT DID YOU MEAN BY THE "ONCOLOGY STUDY"?
SHANE WEBER: I'M REFERRING TO THE STUDY AS I REMEMBERED IT AND UNDERSTOOD THAT WHAT'S IN THE DOCUMENT THAT WAS SUBMITTED IN THE FINAL REPORT TO AIDEN POWER AND THE STUDY THAT WAS UNDERNEATH THAT.
MR. LEACH: THE DOCUMENT THAT WE LOOKED AT EARLIER IN YOUR TESTIMONY?
SHANE WEBER: YES.
MR. LEACH: OKAY. AND YOU WROTE, "I AM RESPONSIBLE FOR PLATFORMS FOR WHICH PFIZER HAS A DIAGNOSTIC INTEREST AND FOR WHICH THERE IS A CLINICAL VALIDATION." WHAT DID YOU MEAN BY THAT?
SHANE WEBER: WHAT I MEANT BY THIS STATEMENT IS THAT WITH OUR CLINICAL TRIALS IN ALL DISEASE AREAS, INCLUDING ONCOLOGY, WE WERE LOOKING FOR DIAGNOSTIC CAPABILITIES THAT WOULD OPEN THE DOOR FOR MORE EFFECTIVE INTAKE OF PATIENTS. BUT THOSE ASSAYS NEED TO BE, YOU KNOW, FDA REGULATED AND APPROVABLE AT A LEVEL THAT WE CAN INCLUDE THEM IN OUR CLINICAL TRIALS.
MR. LEACH: YOU THEN WRITE IN THE FIFTH PARAGRAPH, "AS WE AGREED IN OUR DISCUSSION, I WAS TO PROVIDE COPIES OF THE DOCUMENTS THAT I AM WORKING OFF OF SO WE ARE ON THE SAME PAGE AND SOME QUESTIONS OF INTEREST TO START OUR CONVERSATION ON THURSDAY." WHAT WERE YOU GETTING AT THERE?
SHANE WEBER: WHAT I WAS GETTING AT WAS THAT IN MY NORMAL PRACTICE WHEN I DO AN INTERACTION WITH A COMPANY, I TRY TO MAKE SURE THAT WE'RE BOTH WORKING WITH THE SAME DECK OF CARDS SO THAT IT DOESN'T CAUSE CONFUSION OR THAT I DON'T MISS SOMETHING.
MR. LEACH: AND THEN YOU WROTE, "FOR ME, THE GOAL IS TO UNDERSTAND THE THERANOS SYSTEM. "LET'S USE MY TELECONF CODES TO SAVE SOME THERANOS SOME COSTS." WERE YOU SETTING UP A CONFERENCE CALL WITH FOLKS AT THERANOS SO YOU CAN GIVE THEM AN OPPORTUNITY TO DISCUSS THEIR TECHNOLOGY WITH YOU?
SHANE WEBER: YES.
MR. LEACH: AND DOWN AT THE BOTTOM THERE IS SOME LANGUAGE, "I HAVE THE THERANOS SUMMARY TO AIDEN POWER, THE INTRODUCTION TO THERANOS SYSTEMS, THE INFORMED CONSENT AND THE IRB SUBMISSION. I HAVE READ THEM. I ATTACH THESE SO WE ARE ALL WORKING OFF THE SAME VERSIONS OF THE DOCUMENTS." DO YOU SEE THAT LANGUAGE?
SHANE WEBER: I DO.
MR. LEACH: AND DID YOU ATTACH THOSE DOCUMENTS TO THE EMAIL THAT YOU SENT TO MR. FRENZEL?
SHANE WEBER: I DID. THESE ARE THE DOCUMENTS, AS I REMEMBER IT, CRAIG LIPSET FORWARDED TO ME FROM THE INTERACTION THAT HE AND AIDEN POWER WERE HAVING.
MR. LEACH: AND IF WE CAN CONTINUE TO THE NEXT PAGE, PAGE 2. AND IF WE CAN ZOOM IN ON THE TOP RIGHT UP TO "PLEASE," MS. HOLLIMAN. RIGHT THERE. MR. WEBER, YOU WROTE, "I HAVE ALSO READ U.S. PATENT," AND THEN THERE'S A NUMBER. DO YOU SEE THAT UP AT THE TOP?
SHANE WEBER: I DO.
MR. LEACH: WAS THAT A PATENT RELATING TO THERANOS?
SHANE WEBER: AS I REMEMBER IT, IT WOULD BE.
MR. LEACH: OKAY. WHY DID YOU REVIEW THAT?
SHANE WEBER: THE REASON I WOULD REVIEW -- IN MY NORMAL PRACTICE I REVIEW BOTH U.S. ISSUED PATENTS, WHICH IS A B LEVEL PATENT, AS WELL AS A LEVEL PATENTS, AS WELL AS EUROPEAN OR WORLD TREATY PATENTS. PARTICULARLY I REVIEWED U.S. PATENTS BECAUSE THE U.S. PATENT OFFICE DOES AN INDEPENDENT REVIEW OF THE TECHNOLOGY, AND IN WHAT IS CALLED THE WRAPPER, THE DOCUMENTS ASSOCIATED WITH THE PATENT, THE U.S. PATENT OFFICE PRESENTS WHAT THEY CONSIDER PRIOR ART.
MR. LEACH: AND YOU MENTIONED SOMETHING ABOUT AN A PATENT AND A B PATENT. WHAT IS THE DISTINCTION THERE?
SHANE WEBER: THE DISTINCTION IS THAT A B PATENT ARE ISSUED PATENTS. A PATENTS ARE PATENTS THAT ARE IN THE PROCESS OF BEING REVIEWED. SO THIS IS A B2, A FINAL ISSUED U.S. PATENT.
MR. LEACH: AND WAS THIS PART OF YOUR EFFORT TO UNDERSTAND THERANOS'S TECHNOLOGY SO YOU COULD MAKE A RECOMMENDATION TO PFIZER?
SHANE WEBER: IT IS.
MR. LEACH: OKAY. YOU ALSO WROTE, "WOULD YOU PLEASE SEND, PROVIDE, OR ANSWER." AND I DON'T WISH TO DISPLAY THEM, BUT ARE THERE A NUMBER OF QUESTIONS LISTED BELOW THAT THAT YOU WERE SEEKING ANSWERS FROM THERANOS ON?
SHANE WEBER: YES.
MR. LEACH: OKAY. AND WHY WERE YOU -- AT A HIGH LEVEL, WHY WERE YOU ASKING THESE TYPES OF QUESTIONS?
SHANE WEBER: IN MY NORMAL PROCESS OF INTERACTION AND DUE DILIGENCE WITH COMPANIES, I HAVE A VERBAL DISCUSSION AND THEN FOLLOW WITH A SET OF MORE DETAILED WRITTEN QUESTIONS. THIS ALLOWS ME TO UNDERSTAND THE DETAILS, AND IT'S A --
MR. LEACH: LET ME NEXT DRAW YOUR ATTENTION, PLEASE, TO EXHIBIT 162, WHICH I'LL OFFER INTO EVIDENCE PURSUANT TO STIPULATION.
MR. CLINE: NO OBJECTION.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 162 WAS RECEIVED IN EVIDENCE.)
MR. LEACH: AND I'M SORRY, MS. HOLLIMAN. I MEANT TO GO -- I NEED TO GO BACK TO EXHIBIT 159 BRIEFLY.
MR. LEACH: MR. WEBER, I WANT TO DRAW YOUR ATTENTION TO PAGE 5 OF EXHIBIT 159. AND IF WE COULD PLEASE ZOOM IN ON THE TOP HALF OF THIS DOCUMENT, MS. HOLLIMAN. DOWN A LITTLE. THAT'S FINE FOR NOW. THANK YOU. MR. WEBER, IS THIS A DOCUMENT THAT YOU ATTACHED TO YOUR EMAIL TO MR. FRENZEL TO MAKE SURE THAT YOU WERE WORKING OFF OF ALL OF THE SAME DOCUMENTS?
SHANE WEBER: THE DOCUMENT THAT I ATTACHED TO THE EMAIL OF GARY FRENZEL WOULD BE THE ONE THAT I RECEIVED FROM AIDEN POWER VIA CRAIG LIPSET. IF THIS IS THE DOCUMENT THAT CAME DIRECTLY FROM CRAIG LIPSET, THEN IT WOULD BE.
MR. LEACH: OKAY. AND DO YOU SEE THE HEADING THERANOS REDEFINING HEALTH CARE AT THE TOP?
SHANE WEBER: I DO.
MR. LEACH: AND DO YOU SEE THE LABEL CONFIDENTIAL ON THE RIGHT?
SHANE WEBER: I DO.
MR. LEACH: AND THE TITLE OF THIS DOCUMENT IS THERANOS ANGIOGENESIS STUDY: REPORT PREPARED FOR DR. AIDAN POWER. PFIZER. DO YOU SEE THAT?
SHANE WEBER: I DO.
MR. LEACH: I WANT TO DRAW YOUR ATTENTION TO THE FOURTH PARAGRAPH THAT IS DOWN ON THE BOTTOM ON THE SCREEN. DO YOU SEE "FOR THIS ANGIOGENESIS PROGRAM, THERANOS WAS ASKED TO DEVELOP MULTIPLEXED POINT-OF-CARE ASSAYS IN VEGF AND PLGF FOR USE IN MONITORING PATIENT PHARMACODYNAMIC RESPONSE TO ANTI-ANGIOGENESIS THERAPIES." DO YOU SEE THAT?
SHANE WEBER: I DO.
MR. LEACH: AND WHAT DID YOU UNDERSTAND THAT TO MEAN?
SHANE WEBER: I UNDERSTOOD THAT TO MEAN, AT THE TIME THAT I REMEMBER IT, THAT IN THIS STUDY THERANOS WAS ASKED TO DO THESE THINGS AND TO MEASURE SOME SAMPLES.
MR. LEACH: AND VEGF AND PLGF, WHAT ARE THOSE?
SHANE WEBER: WELL, THESE ARE WELL-KNOWN ANALYTIC MOLECULES IN ANGIOGENESIS, WHICH IS, YOU KNOW, CAPILLARY DEVELOPMENT. AND THE VEGF IS THE VACULAR EPIDERMAL GROWTH FACTOR -- THIS IS THE LIGIN FOR THE VEGF RECEPTOR. SO AS I REMEMBER IT, THAT'S THE VASCULAR EPIDERMAL GROWTH FACTOR.
MR. LEACH: AND WAS THERANOS TASKED WITH DEVELOPING ASSAYS TO MEASURE VEGF AND PLGF AS YOU UNDERSTOOD IT?
SHANE WEBER: AS I UNDERSTOOD IT, YES.
MR. LEACH: AND THERE'S ALSO A REFERENCE HERE TO VEGFR2. DO YOU SEE THAT?
SHANE WEBER: I DO.
MR. LEACH: AND IS THAT ANOTHER SUBSTANCE THAT THERANOS WAS ASKED TO MEASURE?
SHANE WEBER: IT WAS. THAT'S THE RECEPTOR FOR VEGFR -- VEGF RECEPTOR 2.
MR. LEACH: IF I COULD ASK YOU TO MOVE FORWARD TO PAGE 12, AND IF WE COULD. DO YOU SEE DOWN HERE AT THE BOTTOM THERE ARE A NUMBER OF CONCLUSIONS LISTED?
SHANE WEBER: YES, I SEE NINE CONCLUSIONS LISTED.
MR. LEACH: OKAY. AND THE FIRST ONE IS, "THE THERANOS SYSTEM PERFORMED WITH EQUIVALENT OR SUPERIOR PERFORMANCE TO REFERENCE ASSAYS WHILE RUNNING IN AN EXTREMELY RUGGED AMBULATORY ENVIRONMENT." DO YOU SEE THAT?
SHANE WEBER: I DO.
MR. LEACH: AND IF WE CAN CONTINUE TO PAGE 13. DO THE CONCLUSIONS CONTINUE ON THIS PAGE?
SHANE WEBER: THEY DO.
MR. LEACH: OKAY. AND DO YOU SEE THE FOURTH CONCLUSION, "INTER-SYSTEM ACCURACY IS EXCELLENT"?
SHANE WEBER: I DO.
MR. LEACH: AND THE FIFTH CONCLUSION, "VEGFR2 ASSAY ACCURACY IS QUITE GOOD FOR TNONC VENOUS SAMPLES." DO YOU SEE THAT?
SHANE WEBER: I DO.
MR. LEACH: NOW, IF WE COULD PLEASE GO TO EXHIBIT 162. IF WE CAN ZOOM IN, MS. HOLLIMAN, ON THE BOTTOM EMAIL. MR. WEBER, DOES THIS APPEAR TO BE AN EMAIL FROM GARY FRENZEL TO YOU ON NOVEMBER 11TH, 2008?
SHANE WEBER: IT DOES.
MR. LEACH: OKAY. AND MR. FRENZEL WROTE, "HI SHANE, IT SEEMS THAT YOU DID NOT HAVE THE FINAL REPORT. I HAVE ATTACHED IT AND THE NDA TO THIS EMAIL." DO YOU UNDERSTAND NDA IS AN ACRONYM FOR NONDISCLOSURE AGREEMENT?
SHANE WEBER: I DO.
MR. LEACH: "ELIZABETH IS WORKING ON SOME OTHER DOCUMENTS AND WE WILL BE GETTING THEM TO YOU SOON. LOOKING FORWARD TO THE MEETING ON THURSDAY." DO YOU SEE THAT?
SHANE WEBER: I DO.
MR. LEACH: AND IS THAT A REFERENCE TO A MEETING THAT YOU HAD ARRANGED WITH MS. HOLMES AND OTHERS AT THERANOS TO DISCUSS THERANOS'S TECHNOLOGY?
SHANE WEBER: YES, AS I REMEMBER IT.
MR. LEACH: OKAY. PLEASE LOOK AT PAGE 3 OF THIS DOCUMENT. IF YOU CAN GO ALL OF THE WAY DOWN PAST THE CONCLUSIONS, MS. HOLLIMAN, THAT WOULD BE GREAT. SITTING HERE TODAY, DO YOU HAVE A MEMORY OF RECEIVING THIS EMAIL FROM MR. FRENZEL?
SHANE WEBER: AS I REMEMBER IT -- I'M NOT REMEMBERING RECEIVING THIS EMAIL, BUT IN MY NORMAL COURSE, IT'S CLEAR THAT I RECEIVED IT.
MR. LEACH: OKAY. AND IN THE -- IN YOUR NORMAL COURSE, WOULD IT BE YOUR PRACTICE TO REVIEW WHATEVER MATERIALS A COMPANY SENT YOU WHOSE TECHNOLOGY YOU WERE ASKED TO REVIEW?
SHANE WEBER: IN MY NORMAL COURSE, YES, I WOULD TRY TO REVIEW THOSE. THIS -- I DON'T REMEMBER THIS PARTICULAR SET OF DOCUMENTS.
MR. LEACH: OKAY. DO YOU SEE AT THE BOTTOM OF THIS REPORT THERE IS A BULLET FOR CONCLUSIONS?
SHANE WEBER: I DO.
MR. LEACH: OKAY. AND IF I COULD DRAW YOUR ATTENTION TO PAGE 26 OF THE EXHIBIT. AND IF WE CAN ZOOM IN ON THE ENTIRETY OF THE CONCLUSIONS, MS. HOLLIMAN. IF WE CAN DISPLAY THE ENTIRETY OF THE TEXT. MR. WEBER, DO YOU SEE THIS ITERATION OF THE REPORT HAS 13 CONCLUSIONS IN IT?
SHANE WEBER: I DO.
MR. LEACH: SO IT'S SLIGHTLY DIFFERENT FROM THE ONE THAT YOU ATTACHED TO THE EMAIL THAT WE SAW TO GARY FRENZEL EARLIER?
SHANE WEBER: THE ATTACHMENT THAT I PUT INTO THE EMAIL TO GARY FRENZEL, AS I REMEMBER IT, DOES NOT HAVE THESE ECONOMIC CONCLUSIONS IN THE REPORT THAT I RECEIVED FROM CRAIG LIPSET AND AIDEN POWER.
MR. LEACH: OKAY. BUT THE 13 CONCLUSIONS WERE IN THE INITIAL DOCUMENT THAT WE SAW THAT MS. HOLMES SENT TO AIDAN POWER AND CRAIG LIPSET, THE VERY FIRST ONE THAT WE LOOKED AT?
SHANE WEBER: CAN WE CONFIRM THAT AGAIN? WHAT PAGE?
MR. LEACH: SURE. IF I COULD DRAW YOUR ATTENTION TO 143, PAGE 26.
SHANE WEBER: YES, THEY ARE.
MR. LEACH: OKAY. AFTER RECEIVING -- YOU'VE MADE REFERENCE TO A MEETING OR A CONVERSATION THAT YOU HAD WITH MS. HOLMES AND THE FOLKS FROM THERANOS ABOUT THERANOS'S TECHNOLOGY. DID THAT HAPPEN?
SHANE WEBER: WE HAD A ONE HOUR TELECONFERENCE AT SOME DATE.
MR. LEACH: OKAY. AS BEST YOU CAN TODAY, DESCRIBE THE SUBSTANCE OF WHAT HAPPENED.
SHANE WEBER: IN THAT CONVERSATION THERE WERE -- MS. HOLMES, THE CEO OF THERANOS, INTRODUCED HERSELF, AND THEN THERE WERE FIVE OR SIX OTHER PEOPLE, DIRECTORS, WHO INTRODUCED THEMSELVES VERY BRIEFLY. I WAS NOT ABLE TO CATCH THE TITLES AND THE NAMES. THERE WERE SIX QUESTIONS IN BROAD SCOPE THAT I HAD ASKED NUMEROUS QUESTIONS AND ANGLES FROM, AND WE HAD THIS DISCUSSION. BUT IT WAS ENTIRELY VOCALIZED BY MS. HOLMES. AS I REMEMBER IT, NONE OF THE OTHER PEOPLE SPOKE.
MR. LEACH: AND WHEN YOU SAY "VOCALIZED BY MS. HOLMES," ARE YOU SAYING THAT MS. HOLMES DID MOST OF THE TALKING ON THERANOS'S BEHALF ON THIS CALL?
SHANE WEBER: YES.
MR. LEACH: AND WHAT WAS YOUR PURPOSE IN SPEAKING TO MS. HOLMES AND MEMBERS OF HER TEAM ON THIS CALL?
SHANE WEBER: MY PURPOSE WAS TO GET A HOLISTIC UNDERSTANDING OF NOT JUST WHERE THIS STUDY HAD DONE, BUT WHERE THERANOS'S ROADMAP WAS GOING SO I COULD DETERMINE IF THERE WERE WAYS THAT -- IF THERE WERE THERANOS TECHNOLOGIES THAT WOULD MATCH CLINICAL PROGRAM NEEDS THAT WE ACTUALLY HAD ONGOING IN DEVELOPMENT AND IN CLINICAL TRIALS.
MR. LEACH: AND WHEN YOU SAY "NOT JUST THIS STUDY," ARE YOU REFERRING TO THE ANGIOGENESIS STUDY REPORT THAT YOU HAD RECEIVED?
SHANE WEBER: YES, I'M REFERRING TO THAT STUDY.
MR. LEACH: OKAY. AND IN ADVANCE OF THIS PHONE CALL, DID YOU ALSO SEND THERANOS WRITTEN DUE DILIGENCE QUESTIONS?
SHANE WEBER: AS I REMEMBER IT, MY WRITTEN DUE DILIGENCE QUESTIONS WOULD HAVE FOLLOWED VERBAL CONVERSATIONS. THAT'S MY NORMAL STANDARD PRACTICE.
MR. LEACH: OKAY. WELL, AFTER THIS PHONE CALL WITH MS. HOLMES, WHAT DID YOU DO?
SHANE WEBER: I SENT A LIST OF QUESTIONS TO GARY FRENZEL FOR THEM TO RESPOND TO AT THEIR DISCRETION.
MR. LEACH: OKAY. AND WHAT HAPPENED AFTER THAT?
SHANE WEBER: AT SOME POINT, MAYBE A WEEK OR SO OR TWO WEEKS LATER -- YOU KNOW, IT'S A LONG TIME AGO -- I RECEIVED A LIST OF -- THAT SET OF QUESTIONS WITH A SET OF ANSWERS TO THOSE QUESTIONS.
MR. LEACH: AND WITH ALL OF THE WRITTEN MATERIALS THAT YOU HAD RECEIVED, THE PHONE CALL WITH MS. HOLMES AND HER TEAM AND THE WRITTEN RESPONSES TO QUESTIONS, DID YOU PREPARE A REPORT WITH RECOMMENDATIONS FOR PFIZER BASED ON YOUR ANALYSIS OF THERANOS'S TECHNOLOGY?
SHANE WEBER: I DID.
MR. LEACH: LET ME DRAW YOUR ATTENTION, PLEASE, TO WHAT HAS BEEN MARKED AS EXHIBIT 167. DO YOU RECOGNIZE THIS DOCUMENT?
SHANE WEBER: I DO.
MR. LEACH: WHAT IS THIS?
SHANE WEBER: THIS IS MY FINAL SUMMARY REPORT AND RECOMMENDATIONS TO PFIZER ON THE USE OF THE THERANOS TECHNOLOGY.
MR. LEACH: DO YOU SEE THE DATE OF DECEMBER 31ST, OR 12-31-08 AT THE TOP?
SHANE WEBER: I DO.
MR. LEACH: DID YOU PREPARE THIS DOCUMENT IN THE ORDINARY COURSE OF PFIZER'S BUSINESS?
SHANE WEBER: I DID.
MR. LEACH: DID YOU PREPARE THIS AT OR AROUND THE TIME OF YOUR DIAGNOSTICS REVIEW?
SHANE WEBER: I DID, FOLLOWED UP BY A COUPLE OF WEEKS SO I COULD FULLY INTEGRATE ALL OF THE INFORMATION THAT I WAS OBTAINING NOT ONLY FROM PFIZER, BUT FROM VARIOUS POINTS IN THE OUTSIDE WORLD AND MY CONTACTS INTERNAL.
MR. LEACH: AND DID YOU PREPARE REPORTS LIKE THIS IN THE ORDINARY COURSE OF YOUR BUSINESS?
SHANE WEBER: YES, THIS IS MY STANDARD PRACTICE.
MR. LEACH: OKAY. SO THIS ISN'T A ONE-OFF EXAMPLE?
SHANE WEBER: NO.
MR. LEACH: OKAY. AND DID PFIZER KEEP YOUR REPORT IN THE ORDINARY COURSE OF ITS BUSINESS?
SHANE WEBER: IT WOULD HAVE.
MR. LEACH: OKAY. YOUR HONOR, I OFFER PAGE 1 OF EXHIBIT 167 WITH -- AND I ASK LEAVE TO REDACT EVERYTHING AFTER THE WORDS "DEMONSTRATED CAPABILITY" IN THE MIDDLE OF THE PAGE IN THAT LAST -- IN THAT PARAGRAPH CONSISTENT WITH OUR -- THE COURT'S RULINGS.
JUDGE DAVILA: ALL RIGHT. MR. CLINE.
MR. CLINE: WITH THAT REDACTION, NO OBJECTION TO PAGE 1.
JUDGE DAVILA: ALL RIGHT. THANK YOU. THAT WILL BE REDACTED AND THE PAGE WILL BE ADMITTED AND IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 167, REDACTED PAGE 1, WAS RECEIVED IN EVIDENCE.)
BY MR. LEACH:
MR. LEACH: MR. WEBER -- AND, MS. HOLLIMAN, IF WE COULD PLEASE ZOOM IN ON THE TOP PORTION, EVERYTHING FROM THE TOP DOWN TO RECOMMENDATIONS. NO, THE ENTIRETY OF THAT PARAGRAPH. WONDERFUL. THANK YOU. MR. WEBER, DO YOU SEE THE HEADING "DIAGNOSTICS REVIEW OF THERANOS'S TECHNOLOGY AND FINAL RECOMMENDATIONS, SHANE WEBER" AT THE TOP?
SHANE WEBER: I DO.
MR. LEACH: AND IS THAT A REFERENCE TO A REVIEW THAT YOU'D BEEN CONDUCTING OF THERANOS'S TECHNOLOGY?
SHANE WEBER: IT IS.
MR. LEACH: OKAY. IN THE FIRST PARAGRAPH, IN THE THIRD LINE TOWARDS THE END, YOU WROTE -- WELL, FIRST, THE VERY FIRST SENTENCE SAYS, "THERANOS SYSTEMS (THERANOS) PURPORTS TO HAVE A PATIENT HOME USE IMMUNOASSAY IN VITRO DIAGNOSTIC DEVICE PLATFORM." DO YOU SEE THAT?
SHANE WEBER: I DO.
MR. LEACH: AND IS THAT CONSISTENT WITH THE THERANOS PRODUCT?
SHANE WEBER: IT IS.
MR. LEACH: AND YOU WROTE, "THE PURPOSE OF THIS REVIEW WAS TO CLOSE THE LOOP ON ALL PREVIOUS EFFORTS FOR THERANOS TO LOOK FOR BUSINESS OPPORTUNITIES WITH PFIZER, AND TO MAKE FINAL RECOMMENDATIONS REGARDING POTENTIAL FUTURE ATTEMPTS FOR THERANOS TO ENGAGE DIFFERENT PARTS OF PFIZER IN THEIR PLATFORM." DO YOU SEE THAT?
SHANE WEBER: I DO.
MR. LEACH: IS THAT CONSISTENT WITH WHAT YOU UNDERSTOOD YOUR ASSIGNMENT TO BE?
SHANE WEBER: IT WAS.
MR. LEACH: OKAY. LET ME NEXT DRAW YOUR ATTENTION TO THE PARAGRAPH, RECOMMENDATIONS. DO YOU SEE THAT?
SHANE WEBER: I DO.
MR. LEACH: YOU WROTE, "THERANOS DOES NOT AT THIS TIME HAVE ANY DIAGNOSTIC OR CLINICAL INTEREST TO PFIZER." DO YOU SEE THAT?
SHANE WEBER: I DO.
MR. LEACH: WAS THAT YOUR RECOMMENDATION?
SHANE WEBER: IT WAS.
MR. LEACH: AND WHY WAS THAT YOUR RECOMMENDATION?
SHANE WEBER: SO THERE WAS NO DIAGNOSTIC OR CLINICAL INTEREST TO PFIZER BECAUSE OUR INTERESTS WERE FOR MOLECULAR NUCLEIC ACID TESTS, PARTICULARLY IN ONCOLOGY, AND THEY'RE FOR DIAGNOSTICS THAT ARE READY TO USE IN A CLINICAL TRIAL AND SO THEY NEEDED TO BE EITHER FDA APPROVED OR LABORATORY -- APPROVED LABORATORY DEVELOPED TESTS UNDER THE CLIA LABORATORY PROCESS. AND THE THERANOS PLATFORM WAS AN IMMUNOASSAY PLATFORM, SO IT'S NOT NUCLEIC ACID. AND IT ALSO WAS FOR HOME USE, AND WE NEEDED DIAGNOSTICS THAT COULD BE USED AT PHYSICIAN'S CLINICAL INTAKE POINTS FOR CLINICAL TRIALS.
MR. LEACH: YOU ALSO MADE REFERENCE TO DEVICES OR DIAGNOSTICS THAT ARE READY FOR USE. WAS IT YOUR JUDGMENT THAT THERANOS DIDN'T MEET THAT STANDARD?
SHANE WEBER: IT WAS.
MR. LEACH: OKAY. YOU NEXT WROTE, "IT IS RECOMMENDED THAT NO FURTHER FINANCIAL INVESTMENT OR CLINICAL SAMPLE RESOURCES BE EXTENDED TO THERANOS." WAS THAT YOUR RECOMMENDATION?
SHANE WEBER: IT WAS.
MR. LEACH: AND WHY WAS IT YOUR RECOMMENDATION?
SHANE WEBER: WELL, THAT RECOMMENDATION REALLY FOLLOWS FROM THE FIRST, THAT IF THERE'S NO MATCH BETWEEN THE USE OF THERANOS TECHNOLOGY AND PFIZER'S CLINICAL PROGRAMS, THERE WAS NO NEED FOR FURTHER FINANCIAL INVESTMENT OR RELEASE OF CLINICAL SAMPLES FROM OTHER PFIZER TRIALS.
MR. LEACH: IN PARAGRAPH NUMBER 3 YOU WROTE, "GOING FORWARD, THERANOS SHOULD BE MONITORED BY MOLECULAR MEDICINE'S DIAGNOSTIC GROUP." IS THAT YOUR GROUP?
SHANE WEBER: IT IS, OR IT WAS.
MR. LEACH: YOU THEN WROTE, "A ONCE EVERY SIX MONTH PHONE CALL (OR AS MAY BE REQUESTED BY THERANOS UPON A SIGNIFICANT IMPROVEMENT ON THEIR PLATFORM) VIA SPECIFIED POINT OF CONTACTS ON BOTH SIDES IS SUFFICIENT TO MONITOR AND DETERMINE IF THERANOS HAS ANY DEMONSTRATED CAPABILITY." DO YOU SEE THAT LANGUAGE?
SHANE WEBER: I DO.
MR. LEACH: AND WAS THAT YOUR RECOMMENDATION?
SHANE WEBER: IT WAS.
MR. LEACH: AND WHY WAS THAT YOUR RECOMMENDATION?
SHANE WEBER: THE WORLD CHANGES. ONE NEVER KNOWS WHAT THE FUTURE MIGHT BRING, AND SO A WAIT AND WATCH APPROACH SEEMED TO BE PRUDENT.
MR. LEACH: NOW IF WE CAN ZOOM OUT, MS. HOLLIMAN, AND FOCUS ON THE LAST PARAGRAPH DOWN AT THE BOTTOM OR THE -- EVERYTHING DOWN IN THE FIRST PARAGRAPH. THAT'S FINE. THANK YOU, MS. HOLLIMAN. MR. WEBER, DO YOU SEE WHERE YOU WROTE, "REVIEW AND COMMENTS ON" - I THINK YOU MEANT "THERANOS PROVIDED INFORMATION."
SHANE WEBER: I DO.
MR. LEACH: AND YOU WROTE, "THE TECHNICAL ASSESSMENT REVIEW PROCESS CONSISTED OF EXAMINING THERANOS CONFIDENTIAL SUMMARY REPORTS, READING THEIR PUBLIC PATENT PUBLICATIONS, HEARING THEIR STORY IN A ONE HOUR TELECONFERENCE WITH QUESTIONS AND ANSWERS, READING THEIR ANSWERS TO A WRITTEN SET OF TECHNICAL DUE DILIGENCE QUESTIONS SUBMITTED TO THEM, SURVEYING THE WEB FOR PUBLIC INFORMATION," AND THEN IT CONTINUES. DO YOU SEE THAT?
SHANE WEBER: I DO.
MR. LEACH: AND IS THIS A FAIR SUMMARY OF THE WORK THAT YOU DID AND CONSIDERED?
SHANE WEBER: YES, IT IS.
MR. LEACH: YOUR HONOR, WITH THE COURT'S PERMISSION, I WOULD LIKE TO DISPLAY AS A DEMONSTRATIVE PAGE 2 OF EXHIBIT 167.
JUDGE DAVILA: YES. ANY FURTHER COMMENT OTHER THAN WHAT YOU'VE MADE PREVIOUSLY, MR. CLINE?
MR. CLINE: NO FURTHER COMMENT.
JUDGE DAVILA: ALL RIGHT. THANK YOU. I'LL NOTE YOUR COMMENTS. IT MAY BE DISPLAYED, THANK YOU, AS A DEMONSTRATIVE.
MR. LEACH: AND IF WE CAN PLEASE ZOOM IN, MS. HOLLIMAN, ON THE TOP PORTION DOWN TO THE BOLDED LANGUAGE. PERFECT. THANK YOU.
MR. LEACH: MR. WEBER, YOU WROTE AT THE TOP UP HERE, "THE INTRODUCTION TO THERANOS SYSTEMS SLIDE DECK DOES NOT CONTAIN SUFFICIENT INFORMATION ON THEIR PLATFORM TO DEMONSTRATE IN VITRO DIAGNOSTIC ASSAY OR PLATFORM CAPABILITY." DO YOU SEE THAT LANGUAGE?
SHANE WEBER: I DO.
MR. LEACH: AND THE "INTRODUCTION TO THERANOS SYSTEMS SLIDE DECK," IS THAT A REFERENCE TO A POWERPOINT THAT WAS PROVIDED TO YOU?
SHANE WEBER: AS I REMEMBER IT, THIS IS REFERRING TO THE POWERPOINT THAT AIDAN POWER AND CRAIG LIPSET SENT TO ME.
MR. LEACH: OKAY. AND WHY DID YOU BELIEVE THE THERANOS SYSTEMS SLIDE DECK DID NOT CONTAIN SUFFICIENT INFORMATION ON THEIR PLATFORM TO DEMONSTRATE IN VITRO DIAGNOSTIC ASSAY OR PLATFORM CAPABILITY?
SHANE WEBER: I BELIEVED THIS BASED UPON MY EXTENSIVE EXPERIENCE DOING ASSAY DEVELOPMENT, ASSAY QUALIFICATION, RECEIVER OPERATOR CURVE ANALYSIS, THAT THERE WAS NOT SUFFICIENT INFORMATION IN THIS REPORT TO CONVINCE ME THAT THEY WERE -- THAT THE THERANOS SYSTEM WAS READY TO BE TAKEN FORWARD FOR CLINICAL USE THROUGH AN FDA OR CLIA LABORATORY PROCESS.
MR. LEACH: YOU THEN WROTE, "THERANOS HAS PROVIDED A POORLY PREPARED SUMMARY DOCUMENT OF THEIR PLATFORM FOR HOME PATIENT USE WITH ANTI-ANGIOGENIC THERAPIES." DO YOU SEE THAT LANGUAGE?
SHANE WEBER: I DO.
MR. LEACH: AND WHAT WERE YOU REFERRING TO AS THE SUMMARY DOCUMENT?
SHANE WEBER: AS I REMEMBER IT, I'M REFERRING TO THE SUMMARY DOCUMENT ON THE STUDY THAT WAS SENT TO ME VIA CRAIG LIPSET AND AIDAN POWER.
MR. LEACH: THERE'S THEN A NUMBER OF, OF NUMBERED ITEMS FURTHER BELOW. FIRST OF ALL, BEFORE I GET TO THOSE, YOU WROTE, "A SMALL NUMBER OF PATIENTS RECEIVING SUTENT" -- IS SUTENT A PFIZER DRUG?
SHANE WEBER: IT IS A PFIZER DRUG.
MR. LEACH: AND WAS THAT THE SUBJECT OF THE ANGIOGENESIS PROGRAM IN THE STUDY REPORT?
SHANE WEBER: IT IS AS I REMEMBER IT.
MR. LEACH: YOU WROTE ONE, "THERANOS SYSTEMS IN THE SLIDE DECK STATES 'HUGE VARIATION BETWEEN SUBJECTS, BOTH IN THE ABSOLUTE LEVELS AND CHANGES OVER TIME VARY GREATLY.' NO DISCUSSION OR RIGOROUS GRAPHICAL MULTI-PARAMETER QUANTITATIVE ANALYSIS OF THE PATIENT COHORT WAS DONE TO ELUCIDATE AND PROVIDE CLARITY OF CORRELATION TO CLINICAL RESPONSE." WHAT WERE YOU GETTING AT THERE?
SHANE WEBER: I WAS GETTING AT SEVERAL THINGS THERE. WHAT I WAS GETTING AT WAS THE ANALYSIS DIDN'T GET AT WHY WAS THIS HUGE VARIATION. THERE WASN'T A MULTI PARAMETER APPROACH, WHICH IS OFTEN REQUIRED FOR ONCOLOGY STUDIES IN ORDER TO UNDERSTAND WHAT WAS GOING ON, AND THERE WASN'T A CORRELATION, AN ANALYSIS OF CLEAR CORRELATION TO THE CLINICAL RESPONSE.
MR. LEACH: YOU THEN WROTE, "THERANOS UNCONVINCINGLY ARGUES --"
MR. CLINE: YOUR HONOR, I APOLOGIZE TO MR. LEACH. YOUR HONOR, APOLOGIES. YOUR HONOR, THIS IS THE 702 ISSUE THAT I THOUGHT WE WERE NOT GOING TO BE DISCUSSING.
JUDGE DAVILA: YES. MR. LEACH, YOU DON'T INTEND TO GO ANY FURTHER INTO DEFINITIONS OF THIS? AND MAYBE YOU SHOULD CLEAR UP WITH THE WITNESS ACCESSIBLE INFORMATION SUCH THAT IT NEED NOT TOUCH ON ANY EXPERTISE.
MR. LEACH: THANK YOU, YOUR HONOR. THAT WAS NOT MY INTENTION.
MR. LEACH: IS THIS A COMMENT, MR. WEBER, ON THE SLIDE DECK THAT WAS PROVIDED TO YOU?
SHANE WEBER: IT WAS.
MR. LEACH: OKAY. AND WITHOUT RELIANCE ON YOUR EXPERTISE, IS THE THRUST OF YOUR COMMENT HERE THAT IT WASN'T PERSUASIVE TO YOU?
SHANE WEBER: IT WAS.
MR. LEACH: OKAY. THE NEXT BULLET SAYS, "THERANOS UNCONVINCINGLY ARGUES THE CASE FOR HAVING ACCOMPLISHED TASKS OF INTEREST TO PFIZER." DO YOU SEE THAT LANGUAGE?
SHANE WEBER: I DO.
MR. LEACH: AND WHAT IS THAT A REFERENCE TO?
SHANE WEBER: IT'S A REFERENCE TO THAT I WAS NOT ABLE TO SEE A CLEAR SET OF GOALS THAT WERE ACCOMPLISHED BY THE STUDY.
MR. LEACH: YOU THEN WROTE, "THE NINE CONCLUSIONS IN THEIR SUMMARY DOCUMENT ARE NOT BELIEVABLE BASED ON THE INFORMATION PROVIDED." DO YOU SEE THAT?
SHANE WEBER: I DO.
MR. LEACH: AND THE SUMMARY DOCUMENT, IS THAT A REFERENCE TO THE STUDY REPORT THAT YOU ATTACHED TO -- IN AN EMAIL TO MR. FRENZEL? I GUESS WHAT DID YOU MEAN BY "STUDY REPORT" OR "SUMMARY DOCUMENT"?
SHANE WEBER: THE SUMMARY DOCUMENT, AS I REMEMBER IT, IS ONE OF THE FOUR DOCUMENTS THAT CRAIG LIPSET HAD FORWARDED TO ME TO ANALYZE. SO THAT'S THE -- I'M REFERRING TO, AS I REMEMBER IT, THE SUMMARY DOCUMENT.
MR. LEACH: OKAY.
SHANE WEBER: THE THERANOS SUMMARY DOCUMENT.
MR. LEACH: YOU THEN WROTE, "THERANOS HAS PROVIDED NON-INFORMATIVE, TANGENTIAL, DEFLECTIVE OR EVASIVE ANSWERS TO A WRITTEN SET OF TECHNICAL DUE DILIGENCE QUESTIONS." DO YOU SEE THAT?
SHANE WEBER: I DO.
MR. LEACH: AND WAS THAT YOUR CONCLUSION AT THE TIME?
SHANE WEBER: IT WAS.
MR. LEACH: AND WHAT DO YOU MEAN BY THE "DUE DILIGENCE QUESTIONS"? IS THAT A REFERENCE TO WRITTEN QUESTIONS THAT YOU HAD SUBMITTED TO THERANOS?
SHANE WEBER: IT'S -- I'M REFERRING TO THE LIST OF QUESTIONS, TECHNICAL DUE DILIGENCE QUESTIONS I SUBMITTED TO THERANOS VIA GARY FRENZEL.
MR. LEACH: IF WE CAN ZOOM OUT, MS. HOLLIMAN, AND LOOK AT THE SECOND PART OF THIS. MR. WEBER, DO YOU SEE THE HEADING "THERAPEUTIC AREA MOLECULAR MEDICINE LEAD INTEREST IN THERANOS OR A THERANOS-LIKE HOME PATIENT IMMUNOASSAY IN VITRO DIAGNOSTIC PLATFORM"?
SHANE WEBER: I DO.
MR. LEACH: AND WHAT IS SUMMARIZED HERE IN THIS PORTION OF YOUR REPORT?
SHANE WEBER: WHAT IS SUMMARIZED HERE IS THAT I REACHED OUT TO THE CLINICAL LEADS WHO ARE RESPONSIBLE FOR ONCOLOGY STUDIES, AND SO I'M RELYING ON THEM TO STATE THAT THERE IS NO CLINICAL DEVELOPMENT INTEREST IN USING SUCH TYPE ASSAYS.
MR. LEACH: AND THE FEEDBACK THAT YOU GOT FROM YOUR COLLEAGUES WAS WHAT?
SHANE WEBER: THERE WAS NO INTEREST.
MR. LEACH: PLEASE LOOK AT PAGE 3, WHICH WE'LL DISPLAY AS A DEMONSTRATIVE. DO YOU SEE ON PAGE 3 THE HEADING "DUE DILIGENCE QUESTIONS VERBALLY ASKED TO THERANOS IN NOVEMBER 13TH TELECONFERENCE"?
SHANE WEBER: I DO.
MR. LEACH: AND THERE ARE SIX QUESTIONS LISTED HERE. DO YOU SEE THAT?
SHANE WEBER: I SEE THIS.
MR. LEACH: ARE THOSE QUESTIONS THAT YOU WENT OVER WITH MS. HOLMES AND HER TEAM IN A CONFERENCE CALL?
SHANE WEBER: THEY ARE.
MR. LEACH: YOU WROTE, "THERANOS VERBALLY PROVIDED OBLIQUE, DEFLECTIVE, OR EVASIVE NON-INFORMATIVE ANSWERS TO THESE TECHNICAL DUE DILIGENCE QUESTIONS BELOW." WAS THAT YOUR JUDGMENT AT THE TIME?
SHANE WEBER: IT WAS.
MR. LEACH: WHY WAS THAT?
SHANE WEBER: THESE SIX QUESTIONS, I SPENT 50 MINUTES IN THE CALL ASKING, PROBING, TRYING TO FIND UNDERSTANDING OF THE ROAD MAP OF WHERE THESE QUESTIONS WOULD LEAD AND WHAT WAS POSSIBLE FROM THERANOS.
MR. LEACH: OKAY. ONE OF THE QUESTIONS WAS, "WHAT IS THE APPROXIMATE ANTICIPATED COST OF THE DEVICE IF 100 WERE DESIRED FOR A CLINICAL STUDY ENROLLMENT?" DO YOU SEE THAT?
SHANE WEBER: I SEE THAT QUESTION.
MR. LEACH: AND WHY WERE YOU INTERESTED IN THAT?
SHANE WEBER: WHY I WAS INTERESTED IS IF WE COULD POTENTIALLY SEE IF WE COULD FIND A MATCH, A WORLDWIDE CLINICAL TRIAL MIGHT ANTICIPATE NEEDING 100 OF SUCH DEVICES, SO I WANTED TO KIND OF GET JUST A DIRECTIONAL SCOPE OF WHAT THE COST WOULD BE.
MR. LEACH: AFTER PREPARING THIS -- WELL, FIRST, IS WHAT WE'RE LOOKING AT IN EXHIBIT 167 YOUR FINAL REPORT, MR. WEBER?
SHANE WEBER: THIS IS MY FINAL REPORT.
MR. LEACH: OKAY. AND WHAT DID YOU DO WITH IT?
SHANE WEBER: I FORWARDED IT TO MY DIRECT LINE MANAGER, HAKAN SAKUL, WHO WAS THE GLOBAL HEAD OF DIAGNOSTICS FOR PFIZER; TO CRAIG LIPSET, THE DIRECTOR OF CLINICAL INNOVATION, MY COLLEAGUE THERE IN NEW YORK CITY; AND TO AIDAN POWER, THE HEAD OF MOLECULAR MEDICINE.
MR. LEACH: DID YOUR SUPERVISORS AGREE WITH YOUR RECOMMENDATION?
SHANE WEBER: THEY DID.
MR. LEACH: OKAY. DID YOU EVER HEAR --
JUDGE DAVILA: I'M SORRY, SIR. I BEG YOUR PARDON. COULD YOU PLEASE SPELL YOUR DIRECT MANAGER'S NAME AGAIN, PLEASE.
SHANE WEBER: OH, YES. MY DIRECT MANAGER IS HAKAN SAKUL. IT'S H-A-K-A-N, SAKUL, S-A-K-U-L.
JUDGE DAVILA: THANK YOU VERY MUCH. PARDON ME, MR. LEACH.
BY MR. LEACH:
MR. LEACH: AND YOUR UNDERSTANDING WAS THAT YOUR SUPERVISORS AGREED WITH YOUR RECOMMENDATION?
SHANE WEBER: IT WAS.
MR. LEACH: AND DID YOU EVER HEAR -- DID YOU EVER CHANGE YOUR RECOMMENDATION AT ANY POINT?
SHANE WEBER: NO, I DID NOT.
MR. LEACH: OKAY. LET ME NEXT DRAW YOUR ATTENTION, PLEASE, TO WHAT WE HAVE -- BEFORE I MOVE ON TO THE NEXT EXHIBIT, EXHIBIT 167 IS AN INTERNAL PFIZER DOCUMENT, MR. WEBER?
SHANE WEBER: IT IS.
MR. LEACH: AND DID YOU EVER SHARE THAT WITH THERANOS?
SHANE WEBER: NO, I DID NOT.
MR. LEACH: LET ME PLEASE DRAW YOUR ATTENTION TO WHAT HAS BEEN MARKED AS EXHIBIT 174. AND I OFFER 174 INTO EVIDENCE PURSUANT TO STIPULATION.
MR. CLINE: NO OBJECTION. MAY I CHECK WITH MR. LEACH FOR ONE SECOND?
JUDGE DAVILA: SURE. OF COURSE.
(DISCUSSION OFF THE RECORD.)
MR. CLINE: NO OBJECTION.
JUDGE DAVILA: 174 IS ADMITTED. IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 174 WAS RECEIVED IN EVIDENCE.)
BY MR. LEACH:
MR. LEACH: MR. WEBER, IS THIS AN EMAIL THAT YOU SENT TO AIDAN POWER WITH A CC TO CRAIG LIPSET AND HAKAN SAKUL ON OR ABOUT JANUARY 30TH, 2009?
SHANE WEBER: IT IS.
MR. LEACH: AND THIS IS AFTER YOU SUBMITTED YOUR REPORT RELATING TO THERANOS TO YOUR SUPERIORS?
SHANE WEBER: IT WAS.
MR. LEACH: OKAY. AND IS THIS A PHONE CALL THAT YOU HAD WITH MS. HOLMES FOLLOWING YOUR REVIEW?
SHANE WEBER: IT WAS, YES.
MR. LEACH: YOU WROTE, "TODAY I SPOKE WITH ELIZABETH HOLMES, CEO, THERANOS AND EXPLAINED TO HER THAT PFIZER DID NOT HAVE AT THIS TIME A FORESEEABLE USE OF THE THERANOS IMMUNOASSAY DEVICE FOR AT PATIENT SELF USE AT HOME BUT SHE AND I AGREED TO STAY IN TOUCH EVERY SIX MONTHS." DO YOU SEE THAT?
SHANE WEBER: I DO.
MR. LEACH: AND THAT HAPPENED DURING THE PHONE CALL?
SHANE WEBER: YES.
MR. LEACH: OKAY. YOU SEEM TO PAUSE. WHY DO YOU PAUSE?
SHANE WEBER: IT WAS A LONG TIME AGO, 13 YEARS. BUT AS I REMEMBER IT, I WOULD HAVE BROACHED AND TRIED TO MAKE AN ARRANGEMENT TO STAY IN TOUCH ON A REGULAR BASIS JUST TO KEEP IN TOUCH.
MR. LEACH: CONSISTENT WITH THE FINAL RECOMMENDATION IN YOUR REPORT?
SHANE WEBER: YES, CONSISTENT WITH MY FINAL REPORT RECOMMENDATION.
MR. LEACH: AND YOU WROTE, "I WAS POLITE, CLEAR, CRISP AND PATIENTLY FIRM AS SHE PUSHED BACK." WHAT DID YOU MEAN BY THAT?
SHANE WEBER: WELL, WHAT I MEANT WAS I, AS A MESSENGER, AM DELIVERING A PIECE OF INFORMATION AND A POINT OF VIEW THAT WAS NOT DESIRED, AND SO I HAD TO BE CLEAR THAT THIS IS REALLY PFIZER'S INTENT.
MR. LEACH: YOU THEN WROTE, "SHE ASKED FOR OTHER NAMES AT PFIZER TO APPROACH AND I POLITELY DEFLECTED." WHY DID YOU POLITELY DEFLECT?
SHANE WEBER: WELL, I POLITELY DEFLECTED BECAUSE IN TERMS OF BUSINESS INEFFICIENCIES, WE HAD MADE OUR DETERMINATION OF WHAT PFIZER'S CLINICAL PATH NEEDS ARE AND THAT THERANOS'S IMMUNOASSAY SYSTEM WAS NOT GOING TO FIT A MODULE IN THERE, AND SO I DID NOT WANT MULTIPLE OTHER POINTS OF THE COMPANY BEING CONTACTED AND BEING DISTRACTED FROM THEIR CLINICAL TRIAL DUTIES.
MR. LEACH: IN THE NEXT PARAGRAPH YOU WROTE, "I DID RECEIVE HER CONFIRMATION THAT THERANOS HAS BEEN PAID IN FULL FOR THE PREVIOUS ALLIANCE CONTRACT." WHAT DID YOU MEAN BY "THE PREVIOUS ALLIANCE CONTRACT"?
SHANE WEBER: WHAT I MEANT, AS I REMEMBER IT, THAT WAS THE CONTRACT UNDER WHICH THE STUDY THAT HAD BEEN DESCRIBED AND SUBMITTED TO AIDAN POWER WAS FUNDED BY.
MR. LEACH: YOU THEN WROTE, "I HAD CONFIRMED THIS BEFORE HAND AND THAT IT CAME OUT OF STRATEGIC ALLIANCE BUDGET AND NOT MM BUDGET." IS MM A REFERENCE TO MOLECULAR MEDICINE?
SHANE WEBER: IT IS.
MR. LEACH: AND THAT'S YOUR GROUP?
SHANE WEBER: IT IS.
MR. LEACH: AND WHAT DID YOU MEAN BY THIS SENTENCE?
SHANE WEBER: I AM INFORMING MY VICE PRESIDENT OF MOLECULAR MEDICINE THAT HE DID NOT HAVE TO WORRY THAT THERE WAS GOING TO BE OTHER FURTHER CHARGES COME OUT OF -- SURPRISE CHARGES GOING INTO THIS COMING NEW YEAR AND THAT EVERYTHING HAD BEEN PAID FOR UNDER THE CONTRACT AND PFIZER HAD MET ITS CONTRACTUAL OBLIGATIONS OF PAYING FOR THE WORK.
MR. LEACH: IN THE NEXT PARAGRAPH YOU WROTE, "AS STEVE FELSTEAD'S CLINICAL R&D VISION BECOMES MORE OPERATIONALLY CLEAR, I CAN REVISIT THERANOS IF THERE ARE NEW NEEDS WHICH ARISE THAT THERANOS CAN SOLVE IF THEIR DEVICE IS PLAUSIBLY ABLE TO DO SO." DO YOU SEE THAT LANGUAGE?
SHANE WEBER: I DO.
MR. LEACH: AND WHAT DID YOU MEAN BY THAT?
SHANE WEBER: WHAT I MEANT BY THAT IS THAT MOLECULAR MEDICINE COMING INTO THIS YEAR OF 2009 HAD BEEN REORGANIZED INTO A NEW CLINICAL R&D WORLDWIDE ORGANIZATION, AND STEVE FELSTEAD WAS THE GLOBAL HEAD OF THAT OUT OF THE SANDWICH UNITED KINGDOM SITE, AND THAT WAS SOMEWHAT NEW TO US, THERE WAS GOING TO BE NEW POTENTIAL PROGRAMS, AND PERHAPS THERE MIGHT BE SOMETHING IN A CLINICAL PROGRAM EFFORT THAT COULD USE AN IMMUNOASSAY AT HOME.
MR. LEACH: TO YOUR KNOWLEDGE, DID THAT EVER MATERIALIZE?
SHANE WEBER: NO, IT DID NOT.
MR. LEACH: SO WE'RE IN JANUARY OF 2009. DO YOU SEE THAT AT THE TOP OF THE EMAIL, MR. WEBER?
SHANE WEBER: I DO.
MR. LEACH: I'D LIKE TO DISPLAY FOR YOU AND DRAW YOUR ATTENTION TO WHAT IS IN EVIDENCE AS EXHIBIT 291. IF WE CAN ZOOM IN ON THE TOP EMAIL, MS. HOLLIMAN. YOU ARE NOT ON THIS EMAIL, CORRECT, MR. WEBER?
SHANE WEBER: I AM NOT ON THIS EMAIL.
MR. LEACH: AND BEFORE MEETING WITH THE GOVERNMENT, HAD YOU EVER SEEN THIS EMAIL?
SHANE WEBER: NO, I HAD NEVER SEEN THIS EMAIL BEFORE MEETING WITH THE FEDERAL GOVERNMENT.
MR. LEACH: DO YOU SEE THAT THIS APPEARS TO BE AN EMAIL FROM ELIZABETH HOLMES TO INDIVIDUALS AT WALGREENS?
SHANE WEBER: YES, I DO SEE THAT.
MR. LEACH: AND DO YOU SEE THAT ONE OF THE ATTACHMENTS IS "PFIZER THERANOS SYSTEM VALIDATION FINAL REPORT.PDF."
SHANE WEBER: I SEE THAT.
MR. LEACH: DO YOU SEE THAT? AND DO YOU SEE WHERE MS. HOLMES WROTE, "DEAR JAY, ALEX. "AS PER OUR DISCUSSION, PLEASE FIND THREE INDEPENDENT DUE DILIGENCE REPORTS ON THERANOS SYSTEMS ATTACHED TO THIS EMAIL. THESE REPORTS ARE FROM GLAXOSMITHKLINE, PFIZER, AND SCHERING-PLOUGH, AFTER THEIR OWN TECHNICAL VALIDATION AND EXPERIENCE WITH THERANOS SYSTEMS IN THE FIELD." DO YOU SEE THAT LANGUAGE?
SHANE WEBER: I DO SEE THAT.
MR. LEACH: LET ME DRAW YOUR ATTENTION TO PAGE 8 OF THIS DOCUMENT. IF WE CAN ZOOM IN ON THE TOP HALF ALL OF THE WAY DOWN TO THE CONCLUSIONS, MS. HOLLIMAN. DO YOU SEE THE PFIZER LOGO UP IN THE LEFT-HAND CORNER; MR. WEBER?
SHANE WEBER: I DO.
MR. LEACH: DO YOU SEE THE THERANOS REDEFINING HEALTH CARE ON THE RIGHT?
SHANE WEBER: I DO.
MR. LEACH: AND DO YOU SEE WHERE IT SAYS THERANOS ANGIOGENESIS STUDY REPORT?
SHANE WEBER: I DO.
MR. LEACH: AND THEN THERE'S THE WORD PFIZER, INC. BENEATH THAT?
SHANE WEBER: I DO.
MR. LEACH: AND I'D LIKE TO NOW COMPARE THIS TO PAGE 3 OF EXHIBIT 143. IF WE'RE ABLE TO SPLIT THE SCREEN, MS. HOLLIMAN? ARE YOU ABLE TO SEE THAT ON THE SCREEN, MR. WEBER?
SHANE WEBER: YES, I DO SEE THE TWO PAGES.
MR. LEACH: OKAY. PRIOR TO YOUR MEETINGS WITH THE GOVERNMENT, HAD YOU EVER SEEN A VERSION OF THE THERANOS ANGIOGENESIS STUDY REPORT WITH THE PFIZER LOGO ON IT?
SHANE WEBER: NO, I HAVE NOT SEEN THAT BEFORE EXCEPT FOR IN THE INTERACTION WITH THE FEDERAL GOVERNMENT. I HAVE NOT SEEN THIS BEFORE EXCEPT WITH THE INTERACTION WITH THE FEDERAL GOVERNMENT.
MR. LEACH: OKAY. DID YOU APPROVE USE OF THE PFIZER LOGO ON THE DOCUMENT PROVIDED TO WALGREENS?
SHANE WEBER: I DID NOT.
MR. LEACH: TO YOUR KNOWLEDGE, DID ANYONE FROM PFIZER APPROVE USE OF THE PFIZER LOGO ON THE DOCUMENT PROVIDED TO WALGREENS IN EXHIBIT 29 -- EXHIBIT 291?
SHANE WEBER: I'M NOT AWARE OF ANY PFIZER APPROVAL FOR THE USE OF THE PFIZER TRADEMARKED LOGO ON THIS DOCUMENT.
MR. LEACH: OKAY. DOES IT DISAPPOINT YOU TO SEE THE PFIZER LOGO APPLIED TO THIS?
MR. CLINE: EXCUSE ME, YOUR HONOR. OBJECTION TO WHAT HE'S TALKING ABOUT.
JUDGE DAVILA: SUSTAINED. SUSTAINED.
BY MR. LEACH:
MR. LEACH: DID YOU APPROVE USING THE PFIZER LOGO ON ANY VERSION OF THE THERANOS ANGIOGENESIS STUDY REPORT?
SHANE WEBER: I DID NOT.
MR. LEACH: TO YOUR KNOWLEDGE, DID ANYBODY FROM PFIZER?
SHANE WEBER: NOT THAT I'M AWARE OF.
MR. LEACH: WOULD YOU HAVE APPROVED USING THE PFIZER LOGO ON THE THERANOS ANGIOGENESIS STUDY REPORT?
SHANE WEBER: I WOULD NOT BE ABLE TO APPROVE THE USE OF A PFIZER LOGO ON AN EXTERNAL DOCUMENT OF ANOTHER COMPANY. THAT IS THE PURVIEW OF PFIZER LEGAL AND TRADEMARK.
MR. LEACH: WOULD IT BE FAIR TO SAY, IN 2010 OR AFTER, THAT PFIZER ENDORSED THERANOS'S TECHNOLOGY?
SHANE WEBER: NO.
MR. LEACH: WOULD IT BE FAIR TO SAY, IN 2010 OR AFTER, THAT PFIZER COMPREHENSIVELY VALIDATED THERANOS'S TECHNOLOGY?
SHANE WEBER: NO.
MR. LEACH: CAN WE PLEASE GO TO PAGE 33 OF EXHIBIT 271, OR 291, MS. HOLLIMAN. AND IF WE CAN ZOOM IN ALL OF THE WAY DOWN TO CONCLUSION NUMBER 10. MR. WEBER, I'M DISPLAYING PAGE 33 OF EXHIBIT 291. AND DO YOU HAVE THAT IN FRONT OF YOU?
SHANE WEBER: I DO.
MR. LEACH: OKAY. AND DO YOU SEE THE PFIZER LOGO UP AT THE TOP OF THE PAGE?
SHANE WEBER: I DO.
MR. LEACH: AND DO YOU SEE THE THERANOS LOGO TO THE RIGHT?
SHANE WEBER: I DO.
MR. LEACH: AND DO YOU SEE A NUMBER OF CONCLUSIONS THAT ARE LISTED IN THIS DOCUMENT?
SHANE WEBER: I DO.
MR. LEACH: OKAY. DID YOU APPROVE USE OF THE PFIZER LOGO ON THIS PAGE OF THE DOCUMENT PROVIDED TO WALGREENS?
SHANE WEBER: NO, I DID NOT.
MR. LEACH: TO YOUR KNOWLEDGE, DID ANYONE FROM PFIZER DO THAT?
SHANE WEBER: NOT THAT I'M AWARE OF.
MR. LEACH: OKAY. THIS SAYS -- THE FIRST CONCLUSION, "THE THERANOS SYSTEM PERFORMED WITH SUPERIOR PERFORMANCE TO REFERENCE ASSAYS WHILE RUNNING IN A COMPLEX AMBULATORY ENVIRONMENT." DO YOU SEE THAT?
SHANE WEBER: I DO.
MR. LEACH: AND DO YOU AGREE WITH THAT?
SHANE WEBER: NO, I DO NOT.
MR. LEACH: TO YOUR KNOWLEDGE, DID ANYONE FROM PFIZER AGREE WITH THAT?
SHANE WEBER: NOT THAT I'M AWARE OF THAT.
MR. CLINE: EXCUSE ME, YOUR HONOR. I APOLOGIZE FOR INTERRUPTING, MR. WEBER. I THINK -- ASSUMING WE'RE GOING TO GO THROUGH THE WHOLE LIST HERE, THIS IS 702 TERRITORY AND I OBJECT ON THAT BASIS.
JUDGE DAVILA: IS THE QUESTION GOING TO BE SIMILAR TO THE ONE THAT YOU JUST ASKED, WHETHER OR NOT HE APPROVED IT OR WHETHER --
MR. LEACH: OR WHETHER OR NOT IT WAS HIS CONCLUSION, HIS THOUGHTS AT THE TIME.
JUDGE DAVILA: RIGHT. RIGHT. NO, HE CAN TESTIFY ABOUT THAT. THE OBJECTION IS OVERRULED ON 702 GROUNDS.
BY MR. LEACH:
MR. LEACH: DID YOU AGREE WITH THAT AT THE TIME, MR. WEBER, CONCLUSION NUMBER 1?
SHANE WEBER: NO, I DID NOT AGREE WITH THIS CONCLUSION.
MR. LEACH: OKAY. TO YOUR KNOWLEDGE, DID ANYONE FROM PFIZER -- DID ANYONE FROM PFIZER TELL YOU THAT THEY AGREED WITH THAT CONCLUSION?
SHANE WEBER: NO ONE FROM PFIZER TOLD ME THAT THEY AGREED WITH THIS CONCLUSION AS I REMEMBER IT.
MR. LEACH: OKAY. DID YOU EVER TELL ANYONE FROM THERANOS THAT THIS WAS PFIZER'S CONCLUSION AFTER REVIEWING THERANOS'S TECHNOLOGY?
SHANE WEBER: NO, I DID NOT.
MR. LEACH: LET ME DRAW YOUR ATTENTION TO NUMBER 5. DO YOU SEE WHERE IT SAYS, "INTER-SYSTEM ACCURACY IS EXCELLENT AND WAS DEMONSTRATED ON A PLATFORM WITH SUPERIOR PERFORMANCE SPECIFICATIONS TO REFERENCE METHODS." DO YOU SEE THAT?
SHANE WEBER: I DO.
MR. LEACH: AND WAS THAT YOUR CONCLUSION?
SHANE WEBER: NO, IT WAS NOT.
MR. LEACH: TO YOUR KNOWLEDGE, WAS THAT THE CONCLUSION OF ANYBODY AT PFIZER?
SHANE WEBER: NOT THAT I'M AWARE OF. I'M NOT AWARE OF ANYONE AT PFIZER THAT AGREED WITH THIS CONCLUSION, OR WOULD.
MR. LEACH: DID YOU EVER TELL SOMEBODY AT THERANOS THAT THIS WAS PFIZER'S CONCLUSION?
SHANE WEBER: NO, I DID NOT.
MR. LEACH: ARE ANY OF THE CONCLUSIONS LISTED ON PAGE 29 CONCLUSIONS THAT YOU HAD REACHED AFTER YOUR REVIEW OF THERANOS'S TECHNOLOGY?
SHANE WEBER: NO, THEY ARE NOT.
MR. LEACH: TO YOUR KNOWLEDGE, AFTER 2010 DID PFIZER DO ANY WORK, REVENUE GENERATING WORK WITH THERANOS?
SHANE WEBER: I'M NOT AWARE OF ANY REVENUE GENERATING WORK BY THERANOS WITH PFIZER AT THAT TIME.
MR. LEACH: TO YOUR KNOWLEDGE, AFTER THIS ANGIOGENESIS PROGRAM, DID THERANOS -- OR PFIZER PAY ANY MONEY TO THERANOS?
SHANE WEBER: I'M NOT AWARE OF ANY MONIES BEING PAID TO THERANOS OTHER THAN FOR THAT ANGIOGENESIS STUDY.
MR. LEACH: THE ANGIOGENESIS STUDY THAT YOU WERE REVIEWING IN LATE 2008 AND THE EARLY PART OF 2009?
SHANE WEBER: YES.
MR. LEACH: TO YOUR KNOWLEDGE, DID PFIZER AND THERANOS HAVE ANY MEANINGFUL BUSINESS DEALINGS AFTER 2008?
SHANE WEBER: TO MY AWARENESS AND -- THERE WAS NO FURTHER INTERACTION IN ANY MEANINGFUL WAY BETWEEN THERANOS AND PFIZER.
MR. LEACH: DO YOU AGREE WITH THE STATEMENT THAT PFIZER VALIDATED THERANOS'S TECHNOLOGY?
SHANE WEBER: NO, I DO NOT.
MR. LEACH: AND IS IT RIGHT THAT YOU CAME TO THE OPPOSITE CONCLUSION?
SHANE WEBER: I DID.
MR. LEACH: MAY I HAVE A MOMENT, YOUR HONOR?
JUDGE DAVILA: YES.
(DISCUSSION AMONGST GOVERNMENT COUNSEL OFF THE RECORD.)
MR. LEACH: I HAVE NO FURTHER QUESTIONS, YOUR HONOR. THANK YOU. THANK YOU, MR. WEBER.
JUDGE DAVILA: MR. CLINE, YOU'LL HAVE CROSS-EXAMINATION?
MR. CLINE: I WILL.
JUDGE DAVILA: LET'S, LET'S -- BEFORE WE TAKE THAT, PLEASE, I THINK WE'LL TAKE OUR MORNING BREAK NOW, LADIES AND GENTLEMEN, FOR ABOUT 30 MINUTES. BEFORE WE DO THAT, MR. LEACH, THERE IS AN EXHIBIT THAT I THINK WE NEED TO DEAL WITH. I THINK IT'S 5387D, DAVID, AND I BELIEVE THAT THAT WAS GOING TO BE OFFERED.
MR. LEACH: YES, YOUR HONOR. THE GOVERNMENT MARKED DURING THE TESTIMONY OF JUSTICE OFFEN EXHIBIT 5387A. IT ADMITTED A NUMBER OF TEXT MESSAGES FROM 5387B. IN THE COURSE OF VARIOUS WITNESS TESTIMONY, WE HAVE ALSO INTRODUCED 5387C. WE ARE NOW OFFERING 5387D, WHICH INCLUDES ALL OF A, ALL OF B, AND ALL OF C, AND SOME ADDITIONAL MESSAGES THAT THE DEFENSE HAS OFFERED. AT THIS TIME WE OFFER 5387D.
JUDGE DAVILA: MS. TREFZ.
MS. TREFZ: WE HAVE NO OBJECTION AT THIS POINT, YOUR HONOR. IT'S SUBJECT TO POTENTIAL OBJECTIONS TO PARTICULAR USES IF IT COMES UP.
JUDGE DAVILA: ALL RIGHT. THANK YOU. THIS IS ADMITTED THEN. 5387D, DAVID, IS ADMITTED. THANK YOU FOR THE CLARIFICATION OF THAT. THAT IS ADMITTED. THAT EXHIBIT IS ADMITTED.
(GOVERNMENT'S EXHIBIT 5387D WAS RECEIVED IN EVIDENCE.)
MR. LEACH: THANK YOU, YOUR HONOR.
JUDGE DAVILA: SUBJECT TO ANY FURTHER COMMENT FROM THE DEFENSE. ALL RIGHT. LADIES AND GENTLEMEN, LET'S TAKE OUR BREAK. SO 30 MINUTES, PLEASE, 30 MINUTES. SIR, YOU CAN STAND DOWN AND WE'LL SEE YOU BACK IN HALF AN HOUR.
SHANE WEBER: THANK YOU.
(JURY OUT AT 11:11 A.M.)
JUDGE DAVILA: ALL RIGHT. THANK YOU. PLEASE BE SEATED. THE RECORD SHOULD REFLECT THAT OUR JURY HAS LEFT. THE WITNESS, MR. WEBER, HAS LEFT THE COURTROOM. I JUST WANT TO CHECK WITH COUNSEL, ANYTHING BEFORE WE BREAK, COUNSEL?
MR. LEACH: NO, YOUR HONOR.
MR. CLINE: NO, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. THANK YOU.
COURT CLERK: COURT IS IN RECESS.
(LUNCH RECESS TAKEN AT 11:11 A.M.) AFTERNOON SESSION
(JURY IN AT 11:51 A.M.)
JUDGE DAVILA: ALL RIGHT. THANK YOU. PLEASE BE SEATED. WE'RE BACK ON THE RECORD. ALL PARTIES PREVIOUSLY PRESENT ARE PRESENT ONCE AGAIN. OUR JURY IS PRESENT, AND WE'LL JUST SUMMON THE WITNESS. MR. CLINE, YOU'LL HAVE CROSS-EXAMINATION. THANK YOU. MR. CLINE, YOU HAVE QUESTIONS?
MR. CLINE: I DO.
CROSS-EXAMINATION BY MR. CLINE:
MR. CLINE: MR. WEBER, YOU CAN TAKE OFF YOUR MASK IF YOU WOULD LIKE.
SHANE WEBER: THANK YOU.
MR. CLINE: MY NAME IS JOHN CLINE AND I'M A LAWYER FOR MS. HOLMES. YOUR HONOR, MAY I APPROACH?
JUDGE DAVILA: YES.
BY MR. CLINE:
MR. CLINE: MR. WEBER, I'M GOING TO HAND YOU A BINDER, AND I MAY REFER YOU TO ITEMS IN THAT BINDER FROM TIME TO TIME (HANDING).
SHANE WEBER: THANK YOU.
MR. CLINE: MR. WEBER, IS IT FAIR TO SAY THAT YOUR INVOLVEMENT IN THERANOS WHILE YOU WERE AT PFIZER SPANNED ABOUT THREE MONTHS?
SHANE WEBER: MY EXAMINATION OF THE DOCUMENTS AND ASSESSMENT SPANNED THREE, FOUR MONTHS.
MR. CLINE: YOU WERE INTRODUCED TO THERANOS BY MR. LIPSET IN EARLY NOVEMBER 2008; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND YOU HAD YOUR PHONE CALL WITH MS. HOLMES WHERE YOU CONVEYED THE MESSAGE FROM PFIZER AT THE END OF JANUARY 2009; RIGHT?
SHANE WEBER: YES, AS I REMEMBER IT.
MR. CLINE: ALL RIGHT. SO THAT'S NOVEMBER, DECEMBER, AND JANUARY; RIGHT?
SHANE WEBER: THREE MONTHS.
MR. CLINE: WE CAN AGREE THAT THAT'S THREE MONTHS?
SHANE WEBER: OKAY.
MR. CLINE: AND DURING THAT THREE MONTH PERIOD, YOU WERE THE DIRECTOR OF THE DIAGNOSTICS GROUP WITHIN THE MOLECULAR MEDICINE GROUP AT PFIZER; RIGHT?
SHANE WEBER: I WAS THE DIRECTOR OF DIAGNOSTICS IN MOLECULAR MEDICINE.
MR. CLINE: ALL RIGHT. AND I THINK YOU TESTIFIED ON DIRECT THAT MOLECULAR MEDICINE WAS A WORLDWIDE UNIT OF PFIZER. DID I GET THAT RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND WAS MOLECULAR MEDICINE PART, ITSELF PART OF SOME LARGER BUSINESS UNIT AT PFIZER?
SHANE WEBER: YES.
MR. CLINE: AND WHAT WAS IT PART OF?
SHANE WEBER: IT WAS PART OF, IN '08, PART OF THE RESEARCH UNIT WORLDWIDE, AND THEN IN JANUARY, AS I REMEMBER, WE MOVED DIRECTLY INTO CLINICAL DEVELOPMENT OPERATIONS.
MR. CLINE: ALL RIGHT. BUT IN ANY EVENT, THROUGHOUT THIS PERIOD MOLECULAR MEDICINE WAS PART OF SOME LARGER BUSINESS UNIT; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND WITHIN MOLECULAR MEDICINE, YOU'VE TESTIFIED THAT YOU WERE PART OF THE DIAGNOSTIC GROUP; RIGHT?
SHANE WEBER: YES.
MR. CLINE: WERE THERE OTHER GROUPS WITHIN MOLECULAR MEDICINE AS WELL?
SHANE WEBER: THERE WERE.
MR. CLINE: HOW MANY ROUGHLY WERE THERE?
SHANE WEBER: MAYBE EIGHT.
MR. CLINE: ALL RIGHT. SO DIAGNOSTIC WAS ONE OF ROUGHLY EIGHT GROUPS WITHIN MOLECULAR MEDICINE, WHICH WAS PART OF A LARGER BUSINESS UNIT?
SHANE WEBER: YES.
MR. CLINE: NOW, IT WAS MR. LIPSET WHO ASKED YOU TO GET INVOLVED WITH THE THERANOS REVIEW; IS THAT RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND MR. LIPSET AT THE TIME -- WE'RE TALKING NOVEMBER OF 2008 NOW -- HE WAS ANOTHER DIRECTOR WITHIN MOLECULAR MEDICINE; RIGHT?
SHANE WEBER: YES.
MR. CLINE: SO HE WAS YOUR -- BASICALLY ON THE SAME LEVEL AS YOU IN THE CORPORATE HIERARCHY?
SHANE WEBER: NO. HE WAS ONE STEP HIGHER.
MR. CLINE: OH. SO HE WAS -- WAS HE YOUR BOSS OR WAS HE JUST HIGHER IN THE CORPORATE LADDER?
SHANE WEBER: HE WAS NOT MY BOSS. HE WAS A PEER AT NEW YORK CITY. HE WAS ONE OF THE COMMAND LEADERSHIP TEAM FOR MOLECULAR MEDICINE UNDERNEATH AIDAN POWER, THE VICE PRESIDENT.
MR. CLINE: ALL RIGHT. BUT HE WAS ONE LEVEL UP FROM YOU IN THE CORPORATE STRUCTURE?
SHANE WEBER: YES.
MR. CLINE: AND BOTH YOU AND MR. LIPSET REPORTED TO DR. AIDAN POWER; IS THAT RIGHT?
SHANE WEBER: CRAIG LIPSET REPORTED DIRECTLY TO AIDAN POWER. I REPORTED TO HAKAN SAKUL, WHO IS A PEER OF CRAIG LIPSET, AND THEN HAKAN REPORTED TO CRAIG LIPSET.
MR. CLINE: ALL RIGHT. AND DR. POWER WAS THE VICE PRESIDENT IN CHARGE OF MOLECULAR MEDICINE; RIGHT?
SHANE WEBER: YES.
MR. CLINE: NOW, WHEN MR. LIPSET PUT YOU IN TOUCH WITH THERANOS -- AND THIS WAS, AGAIN, EARLY NOVEMBER OF 2008; RIGHT?
SHANE WEBER: CORRECT.
MR. CLINE: WAS THAT YOUR FIRST CONTACT WITH THERANOS?
SHANE WEBER: YES.
MR. CLINE: IN FACT, AT THAT POINT IN NOVEMBER OF 2008, HAD YOU HEARD OF THERANOS BEFORE?
SHANE WEBER: I CAN'T REMEMBER. IT WAS A LONG TIME AGO. THERANOS WAS ONE OF MANY COMPANIES ON, YOU KNOW, THE BIOTECH WORLD.
MR. CLINE: OKAY. SO THE SHORT ANSWER IS YOU DON'T RECALL WHETHER YOU EVER HEARD OF THERANOS BEFORE AT THAT POINT?
SHANE WEBER: YES, I DO NOT REMEMBER WHETHER I HAD HEARD OF THERANOS BEFORE THEN.
MR. CLINE: NOW, AS OF NOVEMBER 2008, YOU HAD BEEN AT PFIZER JUST A FEW MONTHS; RIGHT?
SHANE WEBER: I HAD BEEN THERE SINCE MAY AS I REMEMBER IT, SO ABOUT MAYBE FIVE MONTHS, FOUR MONTHS.
MR. CLINE: ALL RIGHT. YOU WERE HIRED AT PFIZER IN MAY OF 2008; RIGHT?
SHANE WEBER: YES, AS I REMEMBER IT.
MR. CLINE: NOW, AFTER MR. LIPSET INTRODUCED YOU TO THERANOS, HE PROVIDED YOU SOME MATERIALS; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND MR. FRENZEL, GARY FRENZEL AT THERANOS, PROVIDED YOU SOME MATERIALS; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND WE WENT THROUGH THOSE MATERIALS ON YOUR DIRECT EXAMINATION; RIGHT? AT LEAST SOME OF THEM?
SHANE WEBER: YES.
MR. CLINE: AND YOU LEARNED FROM REVIEWING THOSE MATERIALS THAT THERANOS HAD BEEN WORKING WITH PFIZER AT THAT POINT FOR A COUPLE OF YEARS; RIGHT?
SHANE WEBER: THAT'S MY UNDERSTANDING.
MR. CLINE: AND, OF COURSE, YOU HADN'T BEEN AT PFIZER DURING THAT TIME, SO YOU HAD NO INVOLVEMENT WITH ANY OF THAT WORK; RIGHT?
SHANE WEBER: I HAD RECEIVED ALL OF THE DOCUMENTATION AND THE STUDIES, SO I HAD THE BODY OF KNOWLEDGE THAT I WOULD NEED FOR AN ASSESSMENT.
MR. CLINE: YEAH, THAT WASN'T QUITE MY QUESTION.
SHANE WEBER: OKAY.
MR. CLINE: YOU WEREN'T AT THERANOS DURING THE PERIOD THAT THIS WORK WAS GOING ON, AND SO YOU WERE NOT INVOLVED IN IT PERSONALLY; RIGHT?
SHANE WEBER: NO, I WAS NOT PERSONALLY INVOLVED IN IT.
MR. CLINE: THIS WAS AN ONCOLOGY STUDY THAT THERANOS HAD WORKED WITH PFIZER ON; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND OVER THE YEARS THAT THERANOS HAD BEEN WORKING WITH PFIZER BEFORE YOUR REVIEW, THERANOS HAD WORKED WITH A NUMBER OF PFIZER SCIENTISTS; CORRECT?
SHANE WEBER: CORRECT.
MR. CLINE: NOW, AFTER YOU GOT INVOLVED, YOU HAD A, WHICH I THINK YOU DESCRIBED ON DIRECT, A ROUGHLY ONE HOUR PHONE CALL WITH MS. HOLMES AND OTHERS AT THERANOS; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND THAT WAS NOVEMBER 13TH, 2008; RIGHT?
SHANE WEBER: AS I REMEMBER IT FROM THE DOCUMENTS.
MR. CLINE: YES. AND THAT'S -- YOU'RE FREE TO REFRESH YOUR RECOLLECTION FROM THE DOCUMENT. SO THAT WAS ABOUT A WEEK AFTER YOU GOT INVOLVED; RIGHT?
SHANE WEBER: YES -- WELL, YEAH.
MR. CLINE: AND THEN YOU EMAILED SOME QUESTIONS TO THERANOS; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND THAT WAS NOVEMBER 17TH, 2008; RIGHT?
SHANE WEBER: AS I REMEMBER IT.
MR. CLINE: ALL RIGHT. SO NOW YOU'RE ROUGHLY TWO WEEKS INTO YOUR INVOLVEMENT; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND YOU SENT THOSE QUESTIONS TO MR. FRENZEL AT THERANOS; RIGHT?
SHANE WEBER: I DID.
MR. CLINE: AND HE RESPONDED IN LATE NOVEMBER. DO YOU RECALL THAT?
SHANE WEBER: I DO.
MR. CLINE: NOW, YOU REVIEWED THERANOS'S PUBLICLY FILED PATENT, PATENTS; CORRECT?
SHANE WEBER: YES.
MR. CLINE: DID YOU REVIEW BOTH APPLICATIONS AND FINAL PATENTS OR JUST THE APPROVED PATENTS?
SHANE WEBER: I REVIEWED ALL PUBLICLY AVAILABLE APPLICATIONS AND APPROVED PATENTS.
MR. CLINE: YOU DID NOT, I TAKE IT, VISIT THE THERANOS HEADQUARTERS OR UNIT IN CALIFORNIA; RIGHT?
SHANE WEBER: NO, I DID NOT.
MR. CLINE: AND YOU DID NOT PHYSICALLY EXAMINE THE THERANOS DEVICE; RIGHT?
SHANE WEBER: NO, I DID NOT.
MR. CLINE: PART OF YOUR PURPOSE IN CONDUCTING THIS REVIEW WAS TO DETERMINE WHETHER PFIZER HAD ANY CURRENT BUSINESS USE FOR THERANOS TECHNOLOGY; RIGHT?
SHANE WEBER: I DID, OR I DO, YES, YES.
MR. CLINE: THAT WAS PART OF YOUR PURPOSE; RIGHT? AND IN THE COURSE OF MAKING THAT DETERMINATION, YOU TALKED WITH SOME OF YOUR COLLEAGUES IN MOLECULAR MEDICINE; RIGHT?
SHANE WEBER: I DID.
MR. CLINE: YOU TALKED WITH A COUPLE OF THERAPEUTIC AREA MOLECULAR MEDICINE LEADS; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND THAT'S -- ARE THEY COMMONLY REFERRED TO AS TAMML'S?
SHANE WEBER: WE CALLED THEM TAMML'S.
MR. CLINE: ALL RIGHT. ONE WAS DR. ANDY WILLIAMS IN CALIFORNIA?
SHANE WEBER: YES.
MR. CLINE: AND ONE WAS DR. MICHAEL ROBBINS IN NEW YORK; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND THEY TOLD YOU THAT THEY HAD NO CURRENT OR FORESEEABLE INTEREST IN A PATIENT IN HOME IN VITRO IMMUNOASSAY DIAGNOSTIC IN ANY CLINICAL TRIAL; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND YOU UNDERSTOOD THAT THAT'S WHAT THERANOS WAS OFFERING, AN IMMUNOASSAY DEVICE FOR PATIENT IN HOME USE; CORRECT?
SHANE WEBER: THAT'S WHAT I LARGELY UNDERSTOOD FROM THE DOCUMENTATION PROVIDED, BUT I ALSO HAD PROBED FURTHER FUTURE PATHS IN MY VERBAL DISCUSSION WITH THEM.
MR. CLINE: RIGHT. AND THAT'S THE UNDERSTANDING THAT YOU CAME TO; CORRECT?
SHANE WEBER: I COULD NOT MAKE A DETERMINATION OF WHAT THEIR FUTURE PATHS WERE, BUT I DID -- WAS ABLE TO DETERMINE THAT THEY HAD AN IMMUNOASSAY PLATFORM THAT THEY WERE OFFERING FOR IN HOME USE AT THAT TIME.
MR. CLINE: ALL RIGHT. AND, IN FACT, ON THE VERY FIRST PAGE OF YOUR OVERVIEW IN YOUR REPORT YOU SAY THERANOS PURPORTS TO HAVE A PATIENT IN HOME USE IMMUNOASSAY IN VITRO DIAGNOSTIC DEVICE PLATFORM; RIGHT?
SHANE WEBER: I DO.
MR. CLINE: AND YOU WERE ASSESSING WHETHER PFIZER HAD ANY CURRENT BUSINESS USE FOR SUCH A PLATFORM; CORRECT?
SHANE WEBER: CORRECT.
MR. CLINE: YOU ALSO -- GOING BACK TO YOUR DISCUSSION WITH YOUR COLLEAGUES IN MOLECULAR MEDICINE, YOU ALSO TALKED WITH PEOPLE IN YOUR OWN DIAGNOSTIC GROUP; CORRECT?
SHANE WEBER: UM, UM, I CAN'T REMEMBER, BUT --
MR. CLINE: ALL RIGHT. TAKE A LOOK IN EITHER BINDER AT EXHIBIT 167, PAGE 2. WE'RE NOT GOING TO PUT THAT UP. WE DON'T NEED TO PUT THAT UP. I JUST WANT TO REFRESH YOUR RECOLLECTION DOWN TOWARD THE BOTTOM OF PAGE 2.
SHANE WEBER: 167, PAGE 2.
MR. CLINE: DO YOU SEE THERE'S A REFERENCE THERE TO DIAGNOSTIC GROUP MOLECULAR MEDICINE INTEREST IN THERANOS?
SHANE WEBER: YES.
MR. CLINE: AND DOES THAT REFRESH YOUR RECOLLECTION THAT YOU TALKED TO COLLEAGUES IN THE DIAGNOSTIC GROUP ABOUT WHETHER THEY HAD ANY CURRENT INTEREST IN THERANOS TECHNOLOGY?
SHANE WEBER: YES.
MR. CLINE: ALL RIGHT. AND THEY TOLD YOU THAT THEIR -- AND YOU'RE WELCOME TO FOLLOW ALONG WITH ME HERE -- THAT THEIR DIAGNOSTIC ONCOLOGY ASSAY NEEDS WERE CURRENTLY FOR MOLECULAR NUCLEIC ACID TESTS RUN IN PHYSICIAN CARE SITES AS POINT OF CARE DECISIONS FOR PATIENT ENROLLMENT IN CLINICAL STUDIES; RIGHT?
SHANE WEBER: YES.
MR. CLINE: SO TO PUT THAT IN COMPREHENSIBLE ENGLISH, THEY WERE LOOKING FOR A DEVICE THAT WOULD PERFORM A DIFFERENT KIND OF TEST AND WOULD DO SO IN A POINT OF CARE, SO IN A DOCTOR'S OFFICE, FOR EXAMPLE, AND NOT IN HOME; RIGHT?
SHANE WEBER: YES, IN A DOCTOR'S OFFICE FOR PATIENT ENROLLMENT, OR IT WOULD BE AT A MEDICAL CENTER.
MR. CLINE: ALL RIGHT. AND SOMETHING THAT DID A DIFFERENT KIND OF TEST, NOT IMMUNOASSAY; RIGHT?
SHANE WEBER: YES, AN ENTIRELY DIFFERENT PLATFORM TECHNOLOGY.
MR. CLINE: SO BASED ON THE INFORMATION THAT YOU GATHERED, YOU PREPARED THE REPORT THAT WE TALKED ABOUT; RIGHT? YES?
SHANE WEBER: YES.
MR. CLINE: DATED DECEMBER 31ST, 2008; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND IN THE HEADING TO THAT REPORT, YOU SAY THAT IT'S YOUR FINAL REPORT; RIGHT?
SHANE WEBER: IT IS.
MR. CLINE: AND AS FAR AS YOU'RE CONCERNED, THAT IS YOUR FINAL REPORT?
SHANE WEBER: IT WAS MY FINAL REPORT.
MR. CLINE: AND YOU ALSO PUT DOWN AT THE BOTTOM, SUBJECT TO ONGOING MANAGEMENT REVIEW; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND THAT'S SOMETHING THAT YOU COMMONLY PUT; RIGHT?
SHANE WEBER: THAT I WOULD COMMONLY PUT ON THE APPROPRIATE DOCUMENTS.
MR. CLINE: YES. AND YOU WOULD PUT THAT THERE BECAUSE IT'S TRUE, RIGHT, IT'S SUBJECT TO ONGOING MANAGEMENT REVIEW; RIGHT?
SHANE WEBER: IT'S A SUBJECT FOR COMMUNICATION GOING FORWARD SO IT WAS A LIVING DOCUMENT, SO AS A FINAL REPORT PEOPLE COULD BE AWARE OF THAT DOCUMENT.
MR. CLINE: YES.
SHANE WEBER: IT COULD BE COMMUNICATED TO OTHER VICE PRESIDENTS IN THE COMPANY.
MR. CLINE: UNDERSTOOD. NOW, YOU SENT THIS REPORT TO YOUR BOSS'S BOSS, DR. POWER; RIGHT?
SHANE WEBER: (NODS HEAD UP AND DOWN.)
MR. CLINE: YES?
SHANE WEBER: YES.
MR. CLINE: I'M SORRY. I NEED YOU TO GIVE A VERBAL ANSWER. I KNOW WHAT YOU MEAN WHEN YOU NOD BUT IT DOESN'T SHOW UP ON THE RECORD.
SHANE WEBER: I SEE. THANK YOU.
MR. CLINE: AND YOU ALSO SENT IT TO MR. LIPSET?
SHANE WEBER: YES.
MR. CLINE: AND YOU SENT IT TO YOUR BOSS, DR. SAKUL; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND YOU DID NOT SEND THIS REPORT TO THERANOS; RIGHT?
SHANE WEBER: I DID NOT.
MR. CLINE: YOU DID NOT SEND THIS REPORT TO ELIZABETH HOLMES; RIGHT?
SHANE WEBER: I DID NOT.
MR. CLINE: YOU DID NOT SEND THIS REPORT TO MR. LIPSET; RIGHT?
SHANE WEBER: I DID SEND THE REPORT TO MR. LIPSET.
MR. CLINE: I'M SORRY, I GOT THE NAME WRONG. MR. FRENZEL?
SHANE WEBER: OH.
MR. CLINE: MR. FRENZEL WAS AT THERANOS; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND YOU DID NOT SEND THIS REPORT TO HIM?
SHANE WEBER: I DID NOT.
MR. CLINE: AND YOU DID SEND IT TO MR. LIPSET, WHO WAS AT PFIZER; CORRECT?
SHANE WEBER: YES, TO DR. LIPSET, YES, I SEND IT. I DID NOT SEND IT TO DOCTOR -- OR TO GARY FRENZEL.
MR. CLINE: ALL RIGHT. I THINK I UNDERSTOOD YOU TO SAY IN YOUR DIRECT EXAMINATION THAT -- IS IT DR. LIPSET?
SHANE WEBER: IT IS.
MR. CLINE: ALL RIGHT. I'M SORRY. I'VE BEEN CALLING HIM MR. LIPSET. DR. LIPSET, DR. SAKUL, AND DR. POWER AGREED WITH YOUR ASSESSMENT. WAS THAT YOUR TESTIMONY ON DIRECT?
SHANE WEBER: YES.
MR. CLINE: ALL RIGHT. YOU'VE MET WITH THE GOVERNMENT MORE THAN ONCE; RIGHT?
SHANE WEBER: YES.
MR. CLINE: BEFORE YOUR TESTIMONY HERE?
SHANE WEBER: YES.
MR. CLINE: AND THE FIRST SUCH MEETING WAS IN FEBRUARY 2020 IN PERSON; RIGHT?
SHANE WEBER: YES.
MR. CLINE: DO YOU REMEMBER RIGHT BACK BEFORE THE PANDEMIC MADE IT IMPOSSIBLE TO HAVE IN-PERSON MEETINGS?
SHANE WEBER: YES, YES, I REMEMBER THAT NOW.
MR. CLINE: AND YOU MET IN NEW YORK CITY; RIGHT?
SHANE WEBER: YES.
MR. CLINE: IN THE OFFICES OF PFIZER'S LAWYERS; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND PRESENT THERE WERE MR. LEACH, THE PROSECUTOR WHO WAS ASKING YOU QUESTIONS THIS MORNING; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND MR. BOSTIC WAS THERE. DO YOU REMEMBER?
SHANE WEBER: I DON'T REMEMBER THE NAMES.
MR. CLINE: THIS GENTLEMAN SITTING HERE AT THE COUNSEL TABLE (INDICATING)?
SHANE WEBER: I BELIEVE SO.
MR. CLINE: ALL RIGHT. AND AT LEAST ONE FEDERAL AGENT WAS THERE; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND PFIZER'S LAWYERS WERE THERE; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND, AND YOU UNDERSTOOD, OF COURSE, THAT IT WAS IMPORTANT FOR YOU TO GIVE TRUTHFUL, COMPLETE ANSWERS TO THE QUESTIONS THAT YOU WERE ASKED; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND IN THE COURSE OF THAT MEETING, YOU TOLD THE ASSEMBLED MULTITUDE THAT YOUR FINAL ASSESSMENT WAS MET WITH SILENCE FROM LIPSET, SAKUL, AND POWER, WHICH WAS NOT UNUSUAL. DO YOU REMEMBER TELLING THEM THAT?
SHANE WEBER: NO, I DO NOT.
MR. CLINE: ALL RIGHT. LET ME SEE IF I CAN HELP REFRESH YOUR RECOLLECTION. MAY I APPROACH?
JUDGE DAVILA: YES.
BY MR. CLINE:
MR. CLINE: I'M GOING TO HAND YOU A MEMORANDUM OF THAT INTERVIEW, AND I'M GOING TO POINT YOU TO A PARTICULAR PORTION OF IT, BUT YOU'RE WELCOME TO READ AS MUCH AS YOU WANT. OKAY?
JUDGE DAVILA: DOES THE GOVERNMENT HAVE THIS?
MR. CLINE: IT'S THEIR -- IT'S THEIR MEMO.
JUDGE DAVILA: MAYBE YOU CAN JUST REFERENCE WHAT YOU'RE SHOWING THE WITNESS.
MR. CLINE: YES. IT'S THE FEBRUARY 26TH, 2020 INTERVIEW MEMORANDUM, PAGE 4.
MR. LEACH: I DON'T HAVE A COPY, YOUR HONOR.
MR. CLINE: I'LL GIVE HIM A COPY.
MR. LEACH: IS HE REFRESHING HIM WITH THIS?
JUDGE DAVILA: YES.
BY MR. CLINE:
MR. CLINE: JUST READ THAT TO YOURSELF, MR. WEBER (HANDING).
SHANE WEBER: OKAY. I'VE READ THIS COUPLE OF LINES HERE.
MR. CLINE: ALL RIGHT. HAVE YOU HAD A CHANCE TO READ AS MUCH AS YOU NEED TO READ TO UNDERSTAND THE CONTEXT?
SHANE WEBER: I THINK SO.
MR. CLINE: ALL RIGHT. DOES THAT REFRESH YOUR RECOLLECTION THAT WHAT YOU TOLD THE FEDERAL AGENT AND THE PROSECUTORS AND THE PFIZER LAWYERS ON FEBRUARY 26TH, 2020 WAS THAT YOUR FINAL ASSESSMENT WAS MET WITH SILENCE FROM LIPSET, SAKUL, AND POWER?
SHANE WEBER: WELL, I DON'T THINK THIS IS REALLY DESCRIBING THE FULL SITUATION. YOU KNOW, I SPOKE WITH THEM --
MR. CLINE: EXCUSE ME, MR. WEBER. I'M SORRY TO INTERRUPT. MY QUESTION IS, DOES THIS REFRESH YOUR RECOLLECTION THAT ON FEBRUARY 26TH, 2020, YOU TOLD THE AGENT, THE PROSECUTOR, AND OTHERS, THAT YOUR FINAL ASSESSMENT WAS MET WITH SILENCE FROM LIPSET, SAKUL, AND POWER, WHICH WAS NOT UNUSUAL?
SHANE WEBER: UM, AS I SEE THIS NOW, APPARENTLY I REMEMBER THIS.
MR. CLINE: WELL, DO YOU OR DON'T YOU?
SHANE WEBER: YOU KNOW, IT'S A WRITTEN SET OF WORDS. I MUST HAVE SAID IT IF IT'S RECORDED DOWN.
MR. CLINE: ALL RIGHT. GOOD ENOUGH. NOW, YOU SPOKE TO MS. HOLMES ABOUT A MONTH AFTER YOUR -- YOU SENT YOUR REPORT TO THE PEOPLE AT PFIZER; RIGHT?
SHANE WEBER: YES.
MR. CLINE: JANUARY 30TH, 2009. DOES THAT SOUND RIGHT?
SHANE WEBER: IT SOUNDS RIGHT.
MR. CLINE: ALL RIGHT. CAN WE PUT UP EXHIBIT 174, WHICH I THINK IS IN EVIDENCE. DO YOU RECALL THIS, MR. WEBER, AS AN EMAIL THAT YOU WROTE?
SHANE WEBER: I'M TO BE LOOKING AT 174.
MR. CLINE: 174. IT'S IN BOTH BINDERS, SO EITHER ONE IS FINE.
SHANE WEBER: OH, THIS IS SOMETHING FROM THE ATTORNEY LEACH'S OFFICE. I'M NOT --
MR. CLINE: I'M SORRY, GO TO THE NEXT PAGE. THERE YOU GO.
SHANE WEBER: OH, OKAY. YES, I SEE THIS DOCUMENT AND REMEMBER IT.
MR. CLINE: ALL RIGHT. NOW, THIS IS AN EMAIL THAT YOU WROTE ON JANUARY 30TH, 2009; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND YOU WROTE IT TO YOUR BOSS, DR. SAKUL; RIGHT? YES?
SHANE WEBER: YES.
MR. CLINE: YOUR BOSS'S BOSS, DR. POWER; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND TO MR. -- OR DR. LIPSET?
SHANE WEBER: YES.
MR. CLINE: AND I ASSUME THAT YOU INTENDED THIS EMAIL TO BE AN ACCURATE AND COMPLETE ACCOUNT OF YOUR CONVERSATION WITH MS. HOLMES THAT DAY; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND WHAT YOU TOLD MS. HOLMES -- AND AGAIN, MS. HOLMES DIDN'T HAVE THIS REPORT THAT YOU SPENT SO MUCH TIME ON DIRECT TALKING ABOUT, RIGHT? YOU DIDN'T SEND THAT TO HER?
SHANE WEBER: NO, I DIDN'T SEND THAT TO HER.
MR. CLINE: SO LET'S LOOK AT -- CAN WE PULL THAT BACK UP, 174. MY SCREEN -- OH, THERE IT IS. OKAY. CAN WE BLOW UP THE FIRST PARAGRAPH?
MS. TREFZ: YOUR HONOR, I'M NOT SURE IF IT'S --
JUDGE DAVILA: APPARENTLY IT'S NOT ON THE MONITORS. DID IT COME UP ON THE JURY MONITORS?
JUROR: IT'S COMING.
COURT CLERK: YES?
JUDGE DAVILA: IT LOOKS LIKE IT'S ON. OKAY.
MR. CLINE: WE HAVE IT.
MR. CLINE: SO WHAT YOU WRITE TO YOUR BOSS, YOUR BOSS'S BOSS, AND TO DR. LIPSET IS, "TODAY I SPOKE WITH ELIZABETH HOLMES, CEO, THERANOS AND EXPLAINED TO HER THAT PFIZER DID NOT HAVE AT THIS TIME A FORESEEABLE USE FOR THE THERANOS IMMUNOASSAY DEVICE FOR AT PATIENT SELF USE AT HOME BUT SHE AND I AGREED TO STAY IN TOUCH EVERY SIX MONTHS." RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND THAT EMAIL WRITTEN SHORTLY AFTER YOUR CONVERSATION WITH MS. HOLMES TO YOUR BOSS AND YOUR BOSS'S BOSS WAS ACCURATE; RIGHT?
SHANE WEBER: ACCURATE? WELL, I GUESS YES.
MR. CLINE: I MEAN, YOU WEREN'T TRYING TO MISLEAD THEM, WERE YOU?
SHANE WEBER: NO.
MR. CLINE: NO. YOU WERE TRYING TO TELL THEM WHAT YOU HAD TOLD MS. HOLMES; RIGHT?
SHANE WEBER: YES, TRYING TO CLOSE THAT LOOP.
MR. CLINE: AND WHAT YOU TOLD MS. HOLMES THERE WAS CONSISTENT WITH WHAT YOU HAD HEARD WHEN YOU TALKED TO YOUR COLLEAGUES IN THE MOLECULAR MEDICINE SECTION; RIGHT?
SHANE WEBER: YES.
MR. CLINE: THE TAMML AND THE PEOPLE IN YOUR GROUP; RIGHT?
SHANE WEBER: YES, THE TAMML'S WERE THE ONCOLOGY REPRESENTATIVES WHO WERE IN TOUCH WITH ALL ONCOLOGY CLINICAL TRIALS, YES.
MR. CLINE: YES. AND THEN YOU TALKED TO YOUR OWN PEOPLE IN YOUR OWN DIAGNOSTIC GROUP; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND THEY TOLD YOU THAT THEY WERE LOOKING FOR A DEVICE THAT RAN A DIFFERENT KIND OF TEST AND THAT WAS MEANT FOR POINT OF CAR, THAT IS, DOCTOR'S OFFICE TYPE USE; RIGHT?
SHANE WEBER: IT WAS MEANT FOR NOT NECESSARILY POINT OF CARE, BUT FOR INTAKE OF PATIENTS INTO CLINICAL STUDIES. SO IT WASN'T GOING TO BE -- WE WERE LOOKING FOR DEVICES THAT WERE NOT GOING TO BE USED IN THE HOME, THEY WERE USED IN A REGULATED MEDICAL SITUATION.
MR. CLINE: ALL RIGHT. AND AGAIN, YOUR UNDERSTANDING AT THE TIME WAS THAT THERANOS -- WHAT THERANOS HAD IN MIND WAS A DEVICE THAT WOULD BE USED IN THE HOME TO RUN IMMUNOASSAYS; RIGHT?
SHANE WEBER: THAT WAS MY UNDERSTANDING. I HAD ASKED IN MY DUE DILIGENCE QUESTIONS ABOUT SINGLE INPUT --
MR. CLINE: I'M NOT QUESTIONING ANY OF THAT. THAT WAS JUST YOUR UNDERSTANDING AT THE TIME; RIGHT?
SHANE WEBER: YES.
MR. CLINE: NOW, YOU CONFIRMED IN THAT CONVERSATION WITH MS. HOLMES, AND I THINK YOU REFLECTED IN YOUR EMAIL, THAT PFIZER HAD PAID THERANOS IN FULL; CORRECT?
SHANE WEBER: THAT WAS MY UNDERSTANDING OF WHAT I HAD ACCOMPLISHED BY CHECKING ON THE FINANCES.
MR. CLINE: SO THE ANSWER IS YES?
SHANE WEBER: YES.
MR. CLINE: AND THE TOTAL AMOUNT WAS $900,000; RIGHT?
SHANE WEBER: I DID NOT KNOW WHAT THE AMOUNT OF MONEY WAS INVOLVED.
MR. CLINE: NOW, THIS JANUARY 30TH, 2009 CALL THAT IS MEMORIALIZED IN EXHIBIT 174 HERE, THAT WAS YOUR LAST CONTACT WITH MS. HOLMES; RIGHT?
SHANE WEBER: AS I REMEMBER IT, YES.
MR. CLINE: AND YOU DIDN'T SEE HER OR SPEAK WITH HER AGAIN UNTIL YOU WALKED INTO THIS COURTROOM; RIGHT?
SHANE WEBER: YES.
MR. CLINE: NOW, TAKE A LOOK AT EXHIBIT 10561 IN THE BLACK NOTEBOOK. ARE YOU THERE?
SHANE WEBER: YES.
MR. CLINE: YOUR HONOR, I BELIEVE THIS IS ADMITTED BY AGREEMENT, EXHIBIT 10561.
MR. LEACH: THAT'S CORRECT, YOUR HONOR.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(DEFENDANT'S EXHIBIT 10561 WAS RECEIVED IN EVIDENCE.)
MR. CLINE: ALL RIGHT. SO WE CAN PULL THAT UP.
MR. CLINE: THIS IS AN EMAIL, MR. WEBER, AN EMAIL EXCHANGE BETWEEN YOU AND MR. FRENZEL OF THERANOS; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND IF YOU START AT THE BOTTOM, MR. FRENZEL WRITES TO YOU, "HELLO SHANE. "WE ARE IN THE PROCESS OF RELEASING OUR FERTILITY PANELS AND RECALLED OUR DISCUSSION ON PREECLAMPSIA." AM I PRONOUNCING THAT RIGHT?
SHANE WEBER: YOU ARE.
MR. CLINE: "ARE YOU STILL INTERESTED IN PURSUING THIS? IF YOU HAVE ANY FURTHER THOUGHTS AND WOULD LIKE TO DISCUSS, PLEASE LET ME KNOW. "GARY." RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND YOU WRITE BACK TO HIM; RIGHT?
SHANE WEBER: UH-HUH.
MR. CLINE: AND WOULD YOU READ YOUR EMAIL THERE AT THE TOP OF 10561 THAT YOU WROTE TO MR. FRENZEL?
SHANE WEBER: "HI GARY. "THANKS FOR CONTACTING ME. "PFIZER HAS NO INTEREST IN PREECLAMPSIA. "BEST OF LUCK, YOU ARE ON TO SOMETHING GOOD. "HAVE A NICE WEEKEND."
MR. CLINE: AND THAT WAS YOUR VERY LAST CONTACT WITH THERANOS; RIGHT?
SHANE WEBER: I THINK SO. I DON'T REMEMBER ANY FURTHER CONTACTS. THIS WAS 12 YEARS AGO. YES.
MR. CLINE: AND I UNDERSTAND YOUR MEMORY IS FALLIBLE, BUT TO THE BEST OF YOUR RECOLLECTION, THIS IS YOUR LAST CONTACT WITH THERANOS; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND AS FAR AS YOU KNOW -- BY THE WAY, YOU LEFT PFIZER IN 2014; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND I THINK YOU TOLD THE GOVERNMENT THAT YOU WERE DOWNSIZED; IS THAT THE TERM YOU USED?
SHANE WEBER: IT CERTAINLY COULD HAVE BEEN A TERM I USED, YES.
MR. CLINE: AND PFIZER WAS GOING THROUGH A LOT OF CHANGES DURING THE PERIOD THAT YOU WERE THERE; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND IN THE COURSE OF THOSE CHANGES, SOME NEW PEOPLE CAME ON AND SOME PEOPLE WHO WERE THERE WERE LET GO; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND IS THAT WHAT HAPPENED WITH YOU?
SHANE WEBER: YES.
MR. CLINE: ALL RIGHT. BETWEEN FEBRUARY 2009 AND YOUR DEPARTURE IN 2014, YOU WERE NOT INVOLVED IN ANY CONTACTS BETWEEN PFIZER AND THERANOS TO THE BEST OF YOUR RECOLLECTION; RIGHT?
SHANE WEBER: YES.
MR. CLINE: AND AS FAR AS YOU KNEW, PFIZER AND THERANOS HAD FULLY SEPARATED AFTER YOUR JANUARY 30TH, 2009 CONVERSATION WITH MS. HOLMES; RIGHT?
SHANE WEBER: YES.
MR. CLINE: YOU'RE NOT AWARE OF ANY CONTACTS BETWEEN YOUR COLLEAGUE, DR. LIPSET, AND THERANOS AFTER JANUARY 30TH, 2009; CORRECT?
SHANE WEBER: YES.
MR. CLINE: THAT'S CORRECT, YOU'RE NOT AWARE OF ANY?
SHANE WEBER: I'M NOT AWARE OF ANY FURTHER CONTACTS.
MR. CLINE: YOU'RE NOT AWARE OF ANY FURTHER CONTACTS BETWEEN YOUR BOSS, DR. SAKUL, AND THERANOS AFTER JANUARY 30TH, 2009; CORRECT?
SHANE WEBER: I MEAN, I VAGUELY REMEMBER MAYBE 2011 IN A GROUP TELECONFERENCE THAT HAKAN HAD MENTIONED THE NAME THERANOS, I DON'T REMEMBER WHAT, AND I SAID I HAD WRITTEN A REPORT.
MR. CLINE: OTHER THAN THAT, YOU DON'T RECALL ANY -- YOU'RE NOT AWARE OF ANY CONTACT BETWEEN DR. SAKUL AND THERANOS AFTER JANUARY 30TH, 2009; RIGHT?
SHANE WEBER: YES, I'M NOT AWARE.
MR. CLINE: AND OTHER THAN THAT VAGUE RECOLLECTION FROM 2011, YOU'RE NOT AWARE OF ANY CONTACTS ANYONE ELSE AT PFIZER HAD WITH THERANOS AFTER JANUARY 30TH, 2009; RIGHT?
SHANE WEBER: CORRECT.
MR. CLINE: THANK YOU, YOUR HONOR. THAT'S ALL OF MY QUESTIONS.
JUDGE DAVILA: REDIRECT?
MR. LEACH: THANK YOU, YOUR HONOR.
REDIRECT EXAMINATION BY MR. LEACH:
MR. LEACH: BRIEFLY. GOOD AFTERNOON, MR. WEBER. IF WE COULD PLEASE DISPLAY EXHIBIT 174. AND IF WE CAN ZOOM IN, PLEASE, ON THE TOP HALF, MS. HOLLIMAN. THANK YOU. MR. WEBER, YOU WERE ASKED -- EXCUSE ME, I'LL REMOVE MY MASK. YOU WERE ASKED A NUMBER OF QUESTIONS ABOUT STATEMENTS YOU MADE IN AN INTERVIEW WITH THE GOVERNMENT BACK IN 2020 BEFORE THE PANDEMIC. DO YOU RECALL THAT LINE OF QUESTIONING?
SHANE WEBER: I DO.
MR. LEACH: OKAY. I'VE PLACED ON THE SCREEN AN EMAIL THAT YOU SENT TO CRAIG LIPSET, HAKAN SAKUL, AND DR. POWER. DO YOU SEE THAT?
SHANE WEBER: I DO.
MR. LEACH: OKAY. AT THE TIME THAT YOU SENT THIS EMAIL, WERE YOU SATISFIED THAT THEY HAD SUFFICIENT CONTEXT FOR WHAT YOU WERE WRITING ABOUT IN TERMS OF A THERANOS WRAP UP?
SHANE WEBER: I DO.
MR. LEACH: AND SITTING HERE TODAY, DO YOU RECALL DISCUSSIONS WITH THEM ABOUT THE SUBSTANCE OF YOUR REPORT?
SHANE WEBER: I DO.
MR. LEACH: OKAY. WHEN YOU TOLD THE GOVERNMENT IT WAS INITIALLY MET WITH SILENCE, WHAT DID YOU MEAN BY THAT?
SHANE WEBER: THAT THIS WAS A MATTER THAT THEY HAD SEEN MY REPORT AND BRIEFLY HAD ASKED, DO YOU THINK THAT THERE'S ANYTHING ELSE TO BE DONE? I SAID NO, AND THEY WERE SILENT AND MOVED ON. THESE ARE VERY BUSY PEOPLE.
MR. LEACH: OKAY. BUT YOU WERE SATISFIED THAT THEY AGREED WITH YOUR CONCLUSIONS?
SHANE WEBER: YES.
MR. LEACH: MR. CLINE ALSO ASKED YOU ABOUT EXHIBIT 10561, AND THERE WAS A STATEMENT BY YOU IN FEBRUARY OF 2009 TO THE EFFECT OF YOU WERE ON TO SOMETHING GOOD. DO YOU RECALL THAT TESTIMONY?
SHANE WEBER: I DO.
MR. LEACH: OKAY. DID YOU MEAN BY THAT THAT PFIZER HAD COMPREHENSIVELY VALIDATED THERANOS'S TECHNOLOGY?
SHANE WEBER: NO.
MR. LEACH: DID THAT REFLECT YOUR AGREEMENT TO THE 13 CONCLUSIONS THAT WE SAW LISTED IN THE THERANOS ANGIOGENESIS STUDY REPORT?
SHANE WEBER: NO.
MR. LEACH: OKAY. YOU WERE ALSO ASKED A NUMBER OF QUESTIONS ABOUT INTERACTIONS OTHERS MAY HAVE HAD WITH THERANOS POST 2009. DO YOU RECALL THOSE QUESTIONS?
SHANE WEBER: I DO.
MR. LEACH: OKAY. MAY I HAVE ONE MOMENT, YOUR HONOR?
JUDGE DAVILA: YES.
(DISCUSSION AMONGST GOVERNMENT COUNSEL OFF THE RECORD.)
MR. LEACH: COULD WE PLEASE DISPLAY, MS. HOLLIMAN, EXHIBIT 7753, WHICH IS IN EVIDENCE. AND IF WE COULD GO TO THE ATTACHMENT, ATTACHMENT 2.
MR. LEACH: MR. WEBER, DO YOU SEE AN EXCEL SPREADSHEET ON YOUR SCREEN?
SHANE WEBER: I DO.
MR. LEACH: AND DO YOU SEE IN ROW 12 THERE'S A LINE FOR PFIZER?
SHANE WEBER: I DO.
MR. LEACH: AND DO YOU SEE THERE'S A $500,000 AMOUNT IN COLUMN B IN THE YEAR 2007?
SHANE WEBER: I DO.
MR. LEACH: DO YOU SEE THERE'S A $400,000 ENTRY IN THE YEAR 2008?
SHANE WEBER: I DO.
MR. LEACH: OKAY. DO THOSE TWO ADD UP TO 900,000?
SHANE WEBER: THEY DO.
MR. LEACH: OKAY. AND I THINK YOU TESTIFIED ON CROSS-EXAMINATION THAT YOU DON'T RECALL THE AMOUNT OF THE CONTRACT FOR THE ONCOLOGY OR THE ANGIOGENESIS PROGRAM; IS THAT RIGHT?
SHANE WEBER: NO.
MR. LEACH: OKAY. IF WE COULD MOVE FROM THE RIGHT, MS. HOLLIMAN, FROM 2008 ALL OF THE WAY UNTIL 2015. MR. WEBER, DO YOU SEE ANY OTHER ENTRIES OTHER THAN THE TWO AMOUNTS THAT ADDS UP TO 900,000 IN THE GRAND TOTAL?
SHANE WEBER: I DO NOT.
MR. LEACH: AND THAT'S ALL OF THE WAY UP THROUGH 2014?
SHANE WEBER: ACCORDING TO THIS EXCEL FILE, YES.
MR. LEACH: OKAY. THANK YOU, YOUR HONOR. I HAVE NO FURTHER QUESTIONS.
MR. CLINE: NO FURTHER QUESTIONS.
JUDGE DAVILA: MAY THIS WITNESS BE EXCUSED?
MR. LEACH: HE MAY. THANK YOU, YOUR HONOR.
MR. CLINE: YES, YOUR HONOR.
JUDGE DAVILA: YOU'RE EXCUSED, SIR. THANK YOU. YOU CAN JUST LEAVE THOSE BINDERS THERE. THANK YOU. FOLKS, IF YOU WOULD LIKE TO STAND AND STRETCH WHILE WE DO THE TRANSITION, FEEL FREE TO. THE GOVERNMENT HAS ANOTHER WITNESS, I TAKE IT.
MR. SCHENK: YES, YOUR HONOR. THE UNITED STATES CALLED BRYAN TOLBERT.
JUDGE DAVILA: SIR, IF YOU COULD STAND THERE FOR JUST A MOMENT RIGHT THERE AND FACE OUR COURTROOM DEPUTY. SHE HAS A QUESTION FOR YOU.
(GOVERNMENT'S WITNESS, JOHN BRYAN TOLBERT, WAS SWORN.)
SHANE WEBER: YES.
JUDGE DAVILA: PLEASE HAVE A SEAT HERE, SIR, AND MAKE YOURSELF COMFORTABLE. FEEL FREE TO ADJUST THE CHAIR AND MICROPHONE AS YOU NEED. I'LL ENCOURAGE YOU TO SPEAK DIRECTLY INTO THE MICROPHONE. WHEN YOU ARE COMFORTABLE, WOULD YOU PLEASE STATE YOUR NAME AND THEN SPELL IT, PLEASE.
SHANE WEBER: CAN I TAKE MY MASK OFF?
JUDGE DAVILA: YOU KNOW, MR. SCHENK IS GOING TO ASK YOU A QUESTION ABOUT THAT IN JUST A MOMENT.
SHANE WEBER: OKAY. JOHN BRYAN TOLBERT. T-O-L-B-E-R-T.
JUDGE DAVILA: THANK YOU. MR. SCHENK.
MR. SCHENK: THANK YOU, YOUR HONOR.