Hearing on Motion to Exclude BB Testimony
94 linesSAN JOSE, CALIFORNIA NOVEMBER 3, 2021 P R O C E E D I N G S
(COURT CONVENED AT 8:39 A.M.)
(JURY OUT AT 8:39 A.M.)
JUDGE DAVILA: THANK YOU. PLEASE BE SEATED. LET'S GO ON THE RECORD IN THE HOLMES MATTER. ALL COUNSEL ARE PRESENT, MS. HOLMES IS PRESENT. WE'RE OUTSIDE OF THE PRESENCE OF THE JURY. I'M JUST GOING TO TAKE UP ONE MATTER THIS MORNING. I BELIEVE THIS IS IN RELATION TO THE WITNESS BB, I THINK IT IS. MR. BOSTIC, WILL YOU SPEAK TO THAT?
MR. BOSTIC: YES, YOUR HONOR. GOOD MORNING, YOUR HONOR. JOHN BOSTIC FOR THE UNITED STATES.
JUDGE DAVILA: THANK YOU. GOOD MORNING.
MS. TREFZ: GOOD MORNING, YOUR HONOR. KATIE TREFZ FOR MS. HOLMES.
JUDGE DAVILA: THANK YOU. GOOD MORNING. AND THIS IS DOCKETED AT 1116. MS. TREFZ, IT'S YOUR MOTION TO EXCLUDE TESTIMONY OF BB. THE GOVERNMENT'S OPPOSITION IS 1124, DOCUMENT 1124. I'VE READ, I'VE READ THOSE. I HAVE ALSO HAD OCCASION TO REVIEW WHAT IS REFERENCED IN BOTH OF THESE MOTIONS. IT'S DOCUMENT 568, WHICH WAS OUR MOTION IN LIMINE DISCUSSION, AS WELL AS DOCUMENT 711. THOSE ARE BOTH THE DEFENDANT'S MOTION IN LIMINE TO EXCLUDE AND THEIR REPLY, AND THE GOVERNMENT'S 664, WHICH WAS THE OPPOSITION TO THE MOTION IN LIMINE. I THINK THOSE WERE RELEVANT, WILL BE RELEVANT FOR OUR DISCUSSION. I'VE ALSO REVIEWED DOCUMENT 798, WHICH YOU KNOW IS THE COURT'S MIL ORDER. PAGES 78 THROUGH 80 I BELIEVE SPEAK TO AND GIVE US SOME INFORMATION ABOUT THE MOTION HERE. AND OF COURSE, I'VE REVIEWED THE THIRD SUPERSEDING INDICTMENT. AND I THINK PARAGRAPH 16 IS THE ONE THAT IS PERTINENT IF I'M NOT MISTAKEN, AND OTHERS. SO I'VE LOOKED AT THOSE. THOSE HAVE BEEN HELPFUL, AND I'M EAGER TO HEAR FROM YOU. SO, MS. TREFZ, WHAT WOULD YOU LIKE ME TO KNOW? YOU'RE THE MOVING PARTY HERE.
MS. TREFZ: THANK YOU, YOUR HONOR. SO WITHOUT KIND OF RESTATING WHAT I THINK IS OBVIOUS, THE BASIS OF OUR MOTION IS THE FACT THAT THE PATIENT LISTED IN COUNT NINE, BB, WHOSE TEST ITSELF IS NOT LISTED IN COUNT NINE, HAD A TEST, AND THE ONLY TESTS THAT HE HAD FROM THERANOS, AS FAR AS WE CAN TELL, ARE NOT LISTED IN THE INDICTMENT OR THE BILL OF PARTICULARS. AND WE THINK UNDER THE COURT'S ORDERS, AND OF WHICH THE GOVERNMENT HAS HAD AMPLE OPPORTUNITY TO BRIEF AND TO SUPPLEMENT IF NEEDED, THEN IT SHOULD BE -- THEN HIS TESTIMONY ABOUT THE ACCURACY OF HIS TEST RESULT, AND, FRANKLY, HIS TEST RESULT OVERALL SHOULD BE EXCLUDED.
JUDGE DAVILA: AND HIS -- I'M SORRY TO INTERRUPT YOU.
MS. TREFZ: YEAH.
JUDGE DAVILA: BUT HIS TEST IS CBC? IS THAT RIGHT? IS THAT THE NATURE OF IT? SHOULD I BE CONCERNED ABOUT WHAT TEST HE TOOK?
MS. TREFZ: I THINK THAT YOU NEED TO BE CONCERNED ABOUT IT FROM THE PERSPECTIVE OF THE FACT THAT IT'S NOT LISTED IN THE INDICTMENT, AND THE CBC PANEL IS THE -- ARE THE TESTS THAT HE GOT. IT APPEARS THAT THE ISSUE THAT'S BEEN DISCLOSED VIA HIS INTERVIEW MEMOS IS A SPECIFIC TEST ABOUT PLATELETS, WHICH IS LIKE A SUBSIDIARY MEASUREMENT IN THE CBC PANEL, AND --
JUDGE DAVILA: SO AS I UNDERSTAND YOUR MOTION, AND PLEASE CORRECT ME, AND I'M GOING TO ASK MR. BOSTIC ABOUT THIS, IT SEEMS LIKE YOU'RE SAYING THAT HE, BB, CAN'T TESTIFY BECAUSE CBC WAS NOT LISTED IN THE INDICTMENT. THAT WASN'T A PANEL THAT WAS LISTED. AND IN ADDITION, THERE WAS CONVERSATION AT THE MIL MOTION ABOUT THIS IN DOCUMENT 568 AND SOME OTHERS. THE GOVERNMENT INDICATED THAT THEY WOULD NOT PUT THIS ON FOR THE PURPOSE OF SHOWING INACCURACY IN THE TEST RESULTS, BUT IT COULD BE ADMITTED FOR OTHER, OTHER REASONS TO SHOW THE NUMBER OF TESTS. I THINK YOU TALK ABOUT THIS, MR. BOSTIC, IN YOUR PLEADINGS, THE NUMBER OF TESTS AND THE TYPE OF TESTS, BUT NOT FOR THIS WITNESS TO TESTIFY THAT HE TOOK THE TEST. HE CALLED THE COMPANY BECAUSE HE FELT THAT THE TEST WAS INACCURATE. AND THAT'S ONE QUESTION THAT I'M CURIOUS ABOUT. WHAT IS THE RELEVANCE OF BB'S TESTIMONY? IS IT -- DOES IT GO TO INACCURACY OR ACCURACY, AND IF SO, THERE MIGHT BE AN ISSUE WITH THAT. DOES IT GO TO SOME OTHER PURPOSE? IS CBC -- HAS CBC BEEN INTRODUCED INTO THE CASE SUCH THAT THERE IS SOME RELEVANCE AS TO THAT, NOT NECESSARILY AS TO HIM TAKING THAT TEST, BUT FOR SOME OTHER PURPOSE, I SUPPOSE. BUT THAT'S WHAT I SEE YOU SAYING, THAT HE CAN'T TESTIFY ABOUT CBC BECAUSE IT'S NOT IN THE INDICTMENT, IT WASN'T LISTED, AND IT DOESN'T COME IN FOR THAT PURPOSE. SO, MR. BOSTIC, MAYBE YOU HAVE ANOTHER PURPOSE? MS. TREFZ, MAYBE YOU WANT TO FOLLOW UP.
MS. TREFZ: THE ONLY THING THAT I WANTED TO CLARIFY, YOUR HONOR, IS THAT IT'S NOT JUST THAT IT'S NOT LISTED. THE GOVERNMENT ALSO WITHDREW A NOTICE ABOUT EXPERT TESTIMONY RELATED TO CBC, AND THAT'S IMPORTANT BECAUSE I'M SURE YOU'LL RECALL THAT WE WERE IN FRONT OF YOU SEVERAL TIMES ASKING FOR ADDITIONAL EXPERT DISCLOSURES. INITIALLY THERE WAS AN IDENTIFICATION OF CBC AS A POTENTIAL EXPERT ISSUE, AND, IN FACT, THE GOVERNMENT KIND OF SAID IN ITS OPPOSITION TO THE MOTION IN LIMINE, IT MIGHT BE THAT PROFESSIONALS WILL TESTIFY ABOUT THE PREVALENCE OF CBC AS A NORMAL TEST OR AS AN EXPECTED TEST.
JUDGE DAVILA: RIGHT.
MS. TREFZ: AND WHAT HAPPENED HERE WAS THAT IN JUNE THE GOVERNMENT REMOVED CBC, AND THEN AT THE END OF JULY WHEN THEY DID THEIR FINAL AMENDED EXPERT DISCLOSURES, NOT ONLY CBC BUT THE DOCTOR THAT WAS POTENTIALLY GOING TO TESTIFY ABOUT CBC WAS REMOVED FROM THE DISCLOSURE AS WELL. SO WE THINK THAT NOT ONLY IS IT AN ISSUE OF NOTICE, WHICH IS THE PRIMARY BASIS FOR THE MOTION, BUT WITHOUT THAT, THEN TESTIMONY FROM A PATIENT LIKE THIS IS -- WITHOUT KIND OF AN ACCOMPANYING EXPERT TESTIMONY IS HIGHLY MISLEADING AND QUITE PREJUDICIAL. AND NOTABLY, THE ADDITIONAL -- ALL OF THE ADDITIONAL PATIENTS THAT WE'VE HEARD FROM, INCLUDING THE OTHERS LISTED IN THE INDICTMENT OR IDENTIFIED IN THE INDICTMENT, HAVE AN ACCOMPANYING PROVIDER THAT WE UNDERSTAND WILL TESTIFY AND THAT HAS BEEN DISCLOSED. SO IT'S A NOTICE ISSUE, BUT IT'S ALSO KIND OF -- THE ISSUES THAT ARE EMBEDDED IN IT GO DEEPER THAN THAT BECAUSE IT'S NOT SIMPLY A MATTER OF, AS I UNDERSTAND THE GOVERNMENT TO SUGGEST IN ITS OPPOSITION, HE'S IN THE INDICTMENT, LIKE YOU SHOULD HAVE KNOWN. THAT'S NOT REALLY -- YOU KNOW, WE --
JUDGE DAVILA: ISN'T THAT NOTICE, THOUGH? THEY SAY, OKAY, WE RECEIVED -- AFTER WE HAD SOME LITIGATION ON THIS, WE THEN FILED AN INFORMATION AND THEN THE GRAND JURY ISSUED THE THIRD SUPERSEDING INDICTMENT. AND YOU'VE HAD NOTICE ABOUT THAT. AND YOU'VE HAD NOTICE ABOUT BB IN AT LEAST THIS CONTEXT SINCE THE MIL MOTION ALSO. SO AREN'T YOU -- DIDN'T YOU HAVE A FULSOME KNOWLEDGE ABOUT THE POTENTIAL FOR HIM TESTIFYING?
MS. TREFZ: WELL, THE POTENTIAL FOR HIM POTENTIALLY TESTIFYING ABOUT SOMETHING, AND IF THE GOVERNMENT HAD ACTUALLY TAKEN ANY ACTUAL ACTION AS OPPOSED TO EITHER INACTION OR MOVING TO DISCLAIM THIS PARTICULAR TEST, FOR EXAMPLE, IF THE GOVERNMENT HAD AMENDED ITS BILL OF PARTICULARS TO INCLUDE CBC IN OUR -- THEN WE MIGHT BE IN A DIFFERENT SITUATION. FOR EXAMPLE, IN OUR REPLY TO OUR MOTION IN LIMINE, WE SPECIFICALLY IDENTIFIED THIS PATIENT AND THIS ISSUE. THAT WAS SIX MONTHS BEFORE TRIAL EVEN BEGAN IN THIS CASE, BEFORE JURY SELECTION EVEN BEGAN IN THIS CASE, AND YOU WOULD HAVE EXPECTED DURING THAT TIME PERIOD IF THERE WAS SOME KIND OF A MISTAKE OR THE GOVERNMENT REALIZED IT HAD -- IF THERE WAS SOME ERROR OR OVERSIGHT, THEN IT WOULD HAVE SAID, OH, BY THE WAY, YOU'RE WRONG ABOUT THAT ONE, EITHER HERE'S A SUPPLEMENTAL PLEADING BEFORE THE MOTIONS IN LIMINE AND HERE'S A MOTION FOR A BILL OF PARTICULARS THAT HAS ANOTHER TEST, OR YES, WE ACTUALLY DO HAVE AN EXPERT TO TESTIFY ON THIS. IT HAD PLENTY OF OPPORTUNITY TO DO THAT AND, IN FACT, IT DIDN'T AND IT TOOK ACTIONS IN THE OPPOSITE DIRECTION.
JUDGE DAVILA: WELL, WE'LL ASK MR. BOSTIC ABOUT THIS. I NOTICE ON DOCUMENT 664 ON PAGE 2 AT FOOTNOTE 1, I THINK THE GOVERNMENT INDICATES THAT SHOULD YOU WISH TO ADD TO OR AMEND THE BILL OF PARTICULARS PRIOR TO THE TESTIMONY, THE GOVERNMENT WOULD DO THAT, AND I'M NOT CERTAIN THAT THAT HAS OCCURRED. MR. BOSTIC?
MR. BOSTIC: YES, YOUR HONOR. SO AS TO THAT LAST POINT, THE GOVERNMENT HAS NOT AMENDED ITS BILL OF PARTICULARS, AND, FRANKLY, IF WE COULD GO BACK IN TIME AND AMEND THE BILL OF PARTICULARS TO AVOID THIS DISPUTE, OF COURSE WE WOULD DO SO. OUR GOAL IS NOT TO CREATE DISPUTES OR ANY MISUNDERSTANDINGS. BUT THE POINT OF THE BILL OF PARTICULARS, TO BEGIN WITH -- AND THIS HAS BEEN SINCE BEFORE THE COURT EVEN ORDERED THE BILL OF PARTICULARS CREATED IN THIS CASE -- THE PURPOSE OF THE DOCUMENT IS TO MAKE SURE THAT THE DEFENSE HAS NOTICE AS TO THE NATURE OF THE CHARGES. IT'S A SUPPLEMENT TO THE INFORMATION IN THE INDICTMENT. AND DUE TO THE WAY THAT THE EVENTS OCCURRED IN THIS CASE WHERE THE BILL OF PARTICULARS WAS ORDERED, SUBSEQUENTLY THE GOVERNMENT INTERVIEWED THE PATIENT BB, GATHERED INFORMATION ABOUT HIS INACCURATE PLATELET RESULTS. AND JUST TO BE CLEAR, THE RESULTS ARE FROM THE PLATELET OR THE PLT ASSAY, WHICH IS AN -- THE TEST AT ISSUE HERE IS THE PLT, OR PLATELET ASSAY, AND IT'S ONE ASSAY THAT IS GROUPED IN THE CBC PANEL OF TESTS. SO REALLY THE ONLY TEST RESULT WHOSE ACCURACY IS AT ISSUE IN CONNECTION WITH PATIENT BB IS THE PLATELET TEST, OR PLT. THE --
JUDGE DAVILA: IS THAT -- I'M SORRY TO INTERRUPT YOU. IS THAT IN THE BILL OF PARTICULARS, THE PLT?
MR. BOSTIC: THE PLT IS NOT LISTED IN THE BILL OF PARTICULARS, YOUR HONOR. AND I THINK WHEN IT COMES TO NOTICE TO THE DEFENSE, THE CRITICAL POINT IS THAT THE INTERVIEW WITH BB AND THE FACT THAT THE ONLY ASSAY AT ISSUE WITH HIM IS PLT WAS DISCLOSED TO THE DEFENSE IN THE FIRST HALF OF LAST YEAR. IN MAY OF LAST YEAR THE GOVERNMENT FILED AN AMENDING CHARGING DOCUMENT INCLUDING FOR THE FIRST TIME BB AS THE BASIS FOR AN ACTUAL WIRE FRAUD COUNT AS ONE OF THREE PATIENTS THAT CURRENTLY ARE IN THE OPERATIVE INDICTMENT.
JUDGE DAVILA: THIS IS COUNT NINE, I BELIEVE.
MR. BOSTIC: THAT'S CORRECT, YOUR HONOR.
JUDGE DAVILA: AND IT'S A PHONE CALL FROM ARIZONA TO CALIFORNIA FROM BB TO THERANOS, I THINK. IS THAT RIGHT?
MR. BOSTIC: CORRECT, CORRECT. AND THE SOLE TOPIC OF THAT CALL WAS THE ACCURACY -- OR CONCERNS ABOUT THE ACCURACY OF THIS PLT OR PLATELET TEST. SO CERTAINLY AT LEAST SINCE MAY OF 2020 THE DEFENSE HAS BEEN ON NOTICE THAT THIS IS A COUNT IN THE INDICTMENT, THAT THE ONLY TOPIC, THE ONLY ASSAY THAT THIS PATIENT HAS DISCUSSED, THE ONLY ASSAY THAT'S IMPACTED THIS PATIENT WAS THAT PLT, OR PLATELET, ASSAY. THE DEFENSE IS CORRECT THAT EARLIER THIS YEAR THE DEFENSE NOTED IN A REPLY TO ITS MOTION ABOUT THE BILL OF PARTICULARS THAT THAT PLATELET ASSAY WAS NOT LISTED IN THE BILL OF PARTICULARS. I THINK AT THAT TIME, IF MEMORY SERVES, FRANKLY, THERE MAY HAVE BEEN SOME CONFUSION ON THE GOVERNMENT'S SIDE ABOUT WHETHER THE PT ASSAY, WHICH IS LISTED IN THE INDICTMENT AND BILL OF PARTICULARS, WAS THE SAME THING AS THE PLATELET ASSAY. PT ALSO INVOLVES CLOTTING, BLOOD CLOTTING. SO I THINK THAT MIGHT HAVE BEEN PART OF THE CONFUSION HERE. TO THE DEFENSE'S CREDIT, THEY WERE NOT CONFUSED BY THAT.
THEY HAVE, THE RECORD SHOWS, UNDERSTOOD THE DIFFERENCE BETWEEN THOSE TWO ASSAYS. SO THEY'VE HAD THE BENEFIT OF UNDERSTANDING THAT BB WAS IN THE CASE, WAS AN INTEGRAL PART OF THE CASE BY VIRTUE OF BEING CONNECTED TO AN INDICTED COUNT, AND THAT HIS TESTIMONY RELATED SOLELY TO THE ACCURACY OF THAT PLT RESULT. SO IF THE PURPOSE OF THE BILL OF PARTICULARS WERE TO SET UP TRAPS FOR THE GOVERNMENT WHERE THERE ARE VARIATIONS BETWEEN THE PROOF AT TRIAL AND WHAT IS STRICTLY LAID OUT IN THE BILL, THEN THAT WOULD BE ONE THING. BUT BECAUSE, AS THE GOVERNMENT UNDERSTANDS IT, THE PURPOSE OF THE BILL OF PARTICULARS IS TO SIMPLY ENSURE THAT THERE IS NOTICE -- AND AGAIN, IT'S THE SUPPLEMENT TO THE INFORMATION IN THE INDICTMENT AND THE INDICTMENT HERE INCLUDES THE BB COUNT, WHICH RELATES ONLY TO THE PLATELET TEST -- AND THE LIST OF ASSAYS, BY THE WAY, IN PARAGRAPH 16 OF THE INDICTMENT DOES INDICATE THAT THAT LIST IS A LIST OF THE ASSAYS THAT ARE AT ISSUE IN THE CASE AND THE LANGUAGE DOES INCLUDE, "INCLUDING BUT NOT LIMITING TO." SO CERTAINLY WE WOULD SUBMIT THAT AS TO ASSAYS SPECIFICALLY TIED TO INDICTED COUNTS IN THAT SAME DOCUMENT, THE SAME CHARGING DOCUMENT, THE DEFENSE HAS FAIR NOTICE.
JUDGE DAVILA: THANK YOU. WHAT ABOUT, WHAT ABOUT DOCUMENT 798 AND THE COURT'S RULING ON PAGES 78 THROUGH 80? I KNOW YOU'VE READ THAT. AND THE COURT INDICATED THAT THE GOVERNMENT IS PRECLUDED FROM INTRODUCING ANY EVIDENCE OR ARGUMENT REGARDING THE PURPORTED INACCURACY AND UNRELIABILITY OF TESTS NOT IDENTIFIED IN THE GOVERNMENT'S BILL OF PARTICULARS. AND THE ORDER GOES FURTHER TO SAY THAT THE GOVERNMENT MAY STILL INTRODUCE EVIDENCE OR TESTIMONY ABOUT TESTS NOT LISTED IN THE BILL OF PARTICULARS FOR PURPOSES UNRELATED TO THE ACCURACY AND RELIABILITY OF THOSE TESTS. I GUESS THE THRESHOLD QUESTION I SHOULD HAVE ASKED IS, IS BB, IS HIS TESTIMONY RELATED TO ACCURACY AND RELIABILITY?
MR. BOSTIC: IT IS, YOUR HONOR. IT IS.
JUDGE DAVILA: RIGHT.
MR. BOSTIC: I THINK AS TO THE COURT'S ORDER, WE WOULD ASK THAT THE COURT CONSTRUE IT TO INCLUDE INFORMATION DISCLOSED IN THE INDICTMENT AS A WHOLE, WHICH WOULD INCLUDE BB'S COUNT RELATING TO PLATELETS. BECAUSE THE DEFENSE HAS BEEN ON NOTICE OF THAT, WE BELIEVE IT'S APPROPRIATE AND THAT THERE'S NO PREJUDICE ISSUE INVOLVED IN HAVING HIM TESTIFY ON THAT TOPIC.
MS. TREFZ: SO I HEARD A COUPLE OF THINGS THAT I JUST WANT TO RESPOND TO. ONE IS THE IDEA THAT THE GOVERNMENT DIDN'T KNOW WHAT ASSAYS IT WAS CHARGING AND IT THOUGHT THAT PT INR IS THE SAME THING AS PLATELETS IS PRETTY SHOCKING. IT'S THE FIRST THING -- IT'S THE FIRST TIME I'VE HEARD OF THIS PARTICULAR ARGUMENT. AND, I MEAN, I CAN'T BELIEVE THAT THE GOVERNMENT WOULD GO FORWARD WITH AN INDICTMENT AND PROCEED, YOU KNOW, SEVERAL MONTHS BEYOND THAT INTO THE MOTIONS IN LIMINE STAGE AND BE SUDDENLY SURPRISED AT I DON'T KNOW WHAT POINT TO LEARN THAT PLATELETS ARE DIFFERENT THAN PROTHROMBIN. BUT THESE ARE TOTALLY DIFFERENT ASSAYS. THIS IS THE GOVERNMENT'S CASE. IT'S A SCIENTIFIC CASE. THEY SHOULD KNOW WHICH ASSAYS THEY'RE CHARGING WHEN THEY CHARGE IT. THAT'S NUMBER ONE. NUMBER TWO IS TO THE EXTENT THAT MR. BOSTIC ASKS THE COURT TO CONSTRUE THE COURT'S ORDER TO INCLUDE TESTS BEYOND THE 25, THE COURT'S ORDER IS CLEAR. IT SAYS 25.
THE 25 TESTS LISTED IN THE BILL OF PARTICULARS, AND THE TSI ALSO LISTED THE SAME 25 ASSAYS. OF COURSE THE COURT'S ORDER SAYS THAT BECAUSE DURING THE MOTIONS IN LIMINE BRIEFING, THAT'S WHAT WE WERE TALKING ABOUT. IT WAS VERY CLEAR. THAT'S WHY WE FILED THE MOTION IN LIMINE ON THE BILL OF PARTICULARS. WE SPECIFICALLY IDENTIFIED CBC AND THE FACT THAT BB WAS ABOUT A DIFFERENT SET OF ASSAYS, AND THE GOVERNMENT NOT ONLY DIDN'T FILE AN UPDATED BILL OF PARTICULARS AT THE TIME, THERE WERE TWO AND A HALF MONTHS BETWEEN THE TIME OF OUR REPLY AND THE MOTION IN LIMINE HEARINGS IN WHICH THE GOVERNMENT PRESUMABLY COULD HAVE, YOU KNOW, SAID, HEY, YOU GUYS ARE MISTAKEN. SORRY, WE THOUGHT THIS WAS SOMETHING DIFFERENT. BY THE WAY, YOU'RE ON NOTICE OF THIS. AND INSTEAD OF DOING THAT, WHAT THEY DID -- ALL OF THEIR ACTIONS WERE TO TAKE STEPS TO ESSENTIALLY DISCLAIM OR, OR NO ACTION AT ALL WITH RESPECT TO THESE ASSAYS.
MR. BOSTIC: AND, YOUR HONOR, JUST ON THAT DISCLAIMING POINT, I DO WANT TO ADDRESS THAT BECAUSE I'M NOT EXACTLY SURE WHAT EXPERT NOTICE MS. TREFZ IS REFERRING TO, BUT I DON'T BELIEVE IT WAS AN EXPERT NOTICE RELATING TO THE ACCURACY OF CBC OR THE PLATELET TEST. IT'S CERTAINLY NOT AN EXPERT NOTICE RELATING TO THE ACCURACY OF MR. -- EXCUSE ME, OF BB'S TEST RESULT. SO IT'S NOT THE CASE THAT THE GOVERNMENT TOOK ACTION TO STEP AWAY FROM OFFERING EXPERT TESTIMONY ON THE ACCURACY OF THIS TEST. I THINK THERE MAY HAVE BEEN SOME CONTEMPLATED EXPERT TESTIMONY ABOUT THE PREVALENCE OF THIS TEST, BUT THAT'S NOT RELEVANT TO THIS PATIENT'S TESTIMONY. IT'S RELEVANT TO THE CAPABILITIES OF THE DEVICE GENERALLY, FOR EXAMPLE, WHETHER THE MILITARY WOULD HAVE BEEN INTERESTED IN A DEVICE THAT COULD NOT PERFORM A CBC TEST, OR WHETHER INVESTORS KNEW THAT THE THERANOS ANALYZER COULD NOT PERFORM A COMMON TEST SUCH AS CBC. SO THAT'S THE SCOPE OF THE EXPERT TESTIMONY THAT WOULD HAVE BEEN INVOLVED HERE. BY NOT OFFERING THAT OR REMOVING NOTICE OF THAT, IT REALLY SHOULD NOT HAVE CREATED ANY CONFUSION IN THE DEFENSE'S MIND ABOUT WHETHER THE GOVERNMENT INTENDED TO PRESENT TESTIMONY FROM THIS PATIENT ABOUT THE ACCURACY OF THIS PATIENT'S TEST. THERE'S NOTHING ELSE THAT THIS PATIENT WOULD TESTIFY ABOUT. SO, AGAIN, I THINK THE DEFENSE HAS BEEN ON NOTICE, AND IF NOTICE IS THE CENTRAL ISSUE, I THINK THAT SHOULD CARRY THE DAY.
MS. TREFZ: I'M SORRY, YOUR HONOR. I DON'T MEAN TO PROLONG THIS LONGER THAN NECESSARY, BUT JUST AS A QUICK POINT, THAT'S WHY WE INCLUDED IT SPECIFICALLY IN OUR REPLY TO THE MOTIONS IN LIMINE. I THINK IT'S -- WE CAN READ THAT STATEMENT. IT'S PRETTY CLEAR WHAT WE'RE TALKING ABOUT. WE BASED -- WE ESSENTIALLY SAY THIS IS THE PANEL THAT THIS PATIENT RECEIVED, IT'S NOT DISCLOSED, WE NEED TO KNOW WHAT ELSE HE'S GOING TO TESTIFY TO. THAT IS WHY WE MENTIONED IT IN THE REPLY AND WE RECEIVED NO RESPONSE. THEN -- AND JUST THE ADDITIONAL POINT THAT I WAS GOING TO MAKE IS THIS PATIENT CAN'T COME IN AND TESTIFY ABOUT THE INACCURACY OF HIS OWN TEST. HE'S NOT A SCIENTIST. THE GOVERNMENT HAS NOT EVEN INTERVIEWED HIS HEALTH CARE PROVIDER, AND THERE'S NO EXPERT WHO CAN COME IN AND EXPLAIN THE ACCURACY OR ISSUES RELATED TO HIS TEST. I'M NOT --
JUDGE DAVILA: WELL, WHAT I THOUGHT HE WAS -- EXCUSE ME.
MS. TREFZ: YES.
JUDGE DAVILA: WHAT I THOUGHT HE WAS GOING TO TESTIFY TO WAS HE'S KNOWLEDGEABLE ABOUT HIS HEALTH CONDITION AND HE WOULD COMPARE BOTH TESTINGS THAT HE RECEIVED FROM OTHER PROVIDERS AND THE NUMBERS WITH THE TESTING HE RECEIVED FROM YOUR CLIENT'S COMPANY, AND THOSE NUMBERS WERE DISPARATE AND THAT'S WHY HE CONTACTED AND REACHED OUT TO THE COMPANY TO MAKE A COMPLAINT. SO HE'LL SAY THE NUMBERS WERE -- CAUSED HIM SOME CONCERN. THAT'S WITHIN HIS PERSONAL KNOWLEDGE, I WOULD PRESUME.
MS. TREFZ: RIGHT. BUT THE FACT THAT NUMBERS ARE DIFFERENT FROM A TEST ACTUALLY DOESN'T MEAN ANYTHING ABOUT WHETHER THEY'RE CONSISTENT OR INCONSISTENT. NUMBERS ARE DIFFERENT FROM TESTS ALL OF THE TIME. AND IN PARTICULAR ABOUT THE -- WITH RESPECT TO THE PARTICULAR TEST THAT WE UNDERSTAND IS AT ISSUE HERE, THE NUMBERS ARE NOT INCONSISTENT AS A MATTER OF KIND OF CLIA REGULATIONS, SO THAT'S WHY WE NEED A SCIENTIFIC -- WE NEED SCIENTIFIC TESTIMONY TO UNDERSTAND WHETHER THEY'RE INCONSISTENT OR NOT. MY UNDERSTANDING IS THAT WHAT MR. B WAS GOING TO -- OR WOULD POTENTIALLY TESTIFY TO IS THAT HE CALLED BECAUSE HE HAD QUESTIONS ABOUT WHETHER THE -- THERE WAS AN EXPLANATION FOR THE DISCREPANCY IN THE RESULTS, NOT THAT THEY ARE INHERENTLY INCONSISTENT. AND I DON'T THINK AS A LAYPERSON HE CAN TESTIFY THAT THEY ARE INHERENTLY INCONSISTENT. HE DOESN'T HAVE THAT TYPE OF KNOWLEDGE, AND HE DOESN'T HAVE THAT TYPE OF KNOWLEDGE WITH RESPECT TO EITHER THE COMPARATIVE TEST FROM ACCESS LABS OR THE TESTS FROM THERANOS. SO THESE ARE REALLY COMPLEX ISSUES AND THIS IS WHY WE'VE SPENT SO MUCH TIME FOCUSSING ON WHICH ASSAYS, EXPERT TESTIMONY, ACCURACY ISSUES, AND IT'S JUST -- I THINK IT'S PRETTY PREJUDICIAL NOT JUST FROM A NOTICE PERSPECTIVE, BUT FROM THE PERSPECTIVE OF, YOU KNOW, JUST MISLEADING TESTIMONY AND OUR ABILITY TO CONFRONT THE WITNESS ABOUT HIS UNDERSTANDING, YOU KNOW, AND ABOUT THE REALITY OF THE SITUATION. AND IF THE GOVERNMENT DOESN'T HAVE SOMEBODY TO EXPLAIN THAT THESE ARE ACTUALLY DIFFERENT, THEN, FRANKLY, IT WON'T BE ABLE TO PROVE THAT IT'S AN INACCURATE TEST AND IT SHOULDN'T BE ALLOWED TO SUGGEST THAT TO THE JURY IN THIS CIRCUMSTANCE.
JUDGE DAVILA: YOU'RE TALKING ABOUT A FOUNDATIONAL HURDLE THAT THE GOVERNMENT HAS TO OVERCOME SEPARATE AND APART FROM THE WITNESS'S TESTIMONY OR TO SUPPORT IT. BUT LET ME ASK YOU YOUR THOUGHTS ABOUT -- MR. BOSTIC SAID YOU'RE ON NOTICE BECAUSE THE DOCUMENT 469, WHICH IS THE TSI, SUGGESTS ON PAGE 7 AT LINE 1, TESTS INCLUDING BUT NOT LIMITED TO, AND THAT LANGUAGE, CONCURRENT WITH THE CONVERSATION ABOUT THE OTHER, THE PLATELETS AND THE PLT AND THESE OTHERS, SHOULD HAVE PUT YOU ON NOTICE. WHY DOESN'T THAT PUT YOU ON NOTICE?
MS. TREFZ: WELL, IT DOESN'T, YOUR HONOR, BECAUSE WE MOVED TO EXCLUDE TESTS NOT SPECIFICALLY LISTED. WE IDENTIFIED THE TESTS THAT WERE LISTED. EVERYBODY UNDERSTOOD THE TESTS THAT WERE LISTED. IT SOUNDS LIKE THE GOVERNMENT MAY HAVE BEEN CONFUSED AS TO WHAT TESTS IT WAS CHARGING. THAT IS NOT OUR FAULT. MS. HOLMES SHOULD NOT BEAR THE BURDEN OF THE GOVERNMENT'S FAILURE TO UNDERSTAND ITS OWN CASE. AND SO I WOULD SAY WE SHOULDN'T FORGIVE THE GOVERNMENT'S MISUNDERSTANDING, IF THAT'S WHAT IT WAS, BECAUSE WE RAISED THE ISSUE REPEATEDLY. THEY DIDN'T DISAGREE, AND NOW THEY'RE SAYING, OH, WAIT A MINUTE. YOU KNOW, I THINK IT'S PRETTY UNFAIR AND IT'S THE UNITED STATES GOVERNMENT, THIS IS A CRIMINAL CASE, THEY SHOULD BE HELD TO A HIGHER STANDARD THAN THAT.
JUDGE DAVILA: ALL RIGHT. THANK YOU. LET ME ASK, YOU KNOW, THE OTHER QUESTION -- AND I DON'T WANT TO GET AHEAD OF OURSELVES HERE, BUT PARDON ME. JUST LOOKING AT THE 302, WHICH WAS EXHIBIT 1 TO THE ATTACHMENT, THE REDACTED VERSION, PAGE 2 OF 2 IN THE LAST PARAGRAPH THERE, I GUESS FOUNDATIONALLY, WOULD THIS WITNESS BE ABLE TO TESTIFY ABOUT ANYTHING? IT SEEMS LIKE HE DIDN'T HAVE A CONVERSATION WITH THE COMPANY. MAYBE HE DID. BUT THE 302 SEEMS TO BE A BIT OPAQUE ON THAT.
MR. BOSTIC: I'M SORRY. THE COURT IS LOOKING AT 1116-2?
JUDGE DAVILA: PAGE 2 OF 2 IN THE LAST -- IT SAYS, "TRIED TO CALL, DID NOT GET A RESPONSE. IF THEY DID SPEAK, THE ANSWER WAS UNSATISFYING AND HE DID NOT REMEMBER IT."
MR. BOSTIC: SO, YOUR HONOR, THERE ARE INTERNAL THERANOS DOCUMENTS DOCUMENTING THE CALL THAT DID GO THROUGH AND THAT WAS RECEIVED BY A CUSTOMER SERVICE REPRESENTATIVE IN CALIFORNIA.
JUDGE DAVILA: I SEE. OKAY.
MR. BOSTIC: SO THE CALL DID TAKE PLACE AND THAT'S THE BASIS FOR THE WIRE CHARGE.
JUDGE DAVILA: OKAY.
MR. BOSTIC: I'D LIKE TO RESPOND BRIEFLY ON THE EXPERT ISSUE.
JUDGE DAVILA: PLEASE.
MR. BOSTIC: SO I THINK THE NECESSITY OF AN EXPERT IS OBVIOUSLY A DIFFERENT ARGUMENT THAN WHAT WAS RAISED IN THE BRIEFING HERE, AND I'M HAPPY TO ADDRESS IT. BUT I SHOULD POINT OUT THAT ARGUMENT, AS WELL AS THE ARGUMENT ABOUT THE INCLUSION OF THE PLATELET TEST AND BB'S RESULT IN THE BILL OF PARTICULARS, THESE ARE BOTH ISSUES THAT COULD HAVE BEEN RAISED PRETRIAL MONTHS AGO. I'LL JUST NOTE THAT FOR THE RECORD. REGARDING THE EXPERT ISSUE, LET ME BE CLEAR THAT THIS WITNESS IS NOT GOING TO TAKE THE STAND AND RENDER AN OPINION, AN ULTIMATE OPINION ABOUT THE ACCURACY OF THE THERANOS RESULTS. UNLIKE A MEDICAL SERVICE PROVIDER, UNLIKE AN EXPERT, HE IS NOT QUALIFIED TO TAKE THAT ULTIMATE STEP AND SAY, I HAVE CONCLUDED THAT THAT TEST RESULT WAS INACCURATE. HE CAN, THOUGH, TESTIFY ABOUT HIS EXPERIENCE WITH OTHER TEST RESULTS AND, IN FACT, IN THIS CASE THERE'S A CONTEMPORANEOUS RESULT FROM THE SAME DAY FROM A CONVENTIONAL LAB THAT DOES SHOW A DISCREPANCY. THAT DISCREPANCY WAS THE REASON FOR HIS CALL TO THERANOS. I UNDERSTAND THE DEFENSE'S ARGUMENTS, WHICH THEY'RE FREE TO PRESENT TO THE JURY AND EXPLORE ON CROSS, BUT THIS DOESN'T GO TO THE ADMISSIBILITY OF HIS TESTIMONY ABOUT WHAT IS HIS PERSONAL KNOWLEDGE, NAMELY, HIS KNOWLEDGE OF HIS OWN HEALTH, HOW RESULTS FROM THIS PARTICULAR ASSAY RELATE TO HIS SYMPTOMS, AND THEN SEPARATELY, THE DIFFERENCES BETWEEN RESULTS THAT HE GOT FROM A CONVENTIONAL LAB AND THERANOS ON THE SAME ASSAY ON THE SAME DAY. IT'S SIMPLE.
JUDGE DAVILA: AND THEN HE CALLS AND THAT'S THE BASIS OF THE COUNT NINE IS THE PHONE CALL?
MR. BOSTIC: YES, YOUR HONOR. CORRECT.
JUDGE DAVILA: SO HE'LL SAY, I GOT DIFFERENT NUMBERS, AND I CALLED TO EITHER COMPLAIN OR INQUIRE ABOUT THE NUMBERS, AND THAT PHONE CALL THEN IS EVIDENCE OF FRAUD BECAUSE IT SHOWS INACCURACY OR -- THAT'S WHAT I GUESS I'M STRUGGLING WITH.
MR. BOSTIC: SURE. SO THE PHONE CALL ITSELF I DON'T THINK SHOWS THE INACCURACY OF THE TEST. THE PHONE CALL IS AN INTERSTATE WIRE COMMUNICATION IN FURTHERANCE OF THE SCHEME TO DEFRAUD PATIENTS IN THIS CASE BECAUSE THERANOS SET UP ITS CALL CENTER TO RECEIVE CALLS FROM PATIENTS, INCLUDING PATIENTS WHO HAD RECEIVED QUESTIONABLE RESULTS. SO I THINK THAT'S THE -- THAT'S WHY IT FORMS THE APPROPRIATE BASIS FOR THE WIRE FRAUD COUNT. BUT WHEN IT COMES TO THE ACCURACY OF THE TESTS, I THINK THE EVIDENCE IS TWO-FOLD. FIRST, THE PATIENT TESTIFYING ABOUT HOW RESULTS FROM THIS ASSAY HAVE CORRELATED IN HIS LENGTHY EXPERIENCE TO THE PHYSICAL PRESENTATION OF THE SYMPTOMS OF THE CONDITION THAT HE HAS; AND THEN, SECOND, SIMPLY THE CONCRETE OBJECTIVE DIFFERENCES BETWEEN THE THERANOS TESTS AND THE CONVENTIONAL LAB TESTS FOR THE PLATELET ASSAY ON THE SAME DAY.
JUDGE DAVILA: IN HIS PERSONAL EXPERIENCE. THE NUMBERS ARE DIFFERENT BASED ON HIS CONDITION, HIS FEELING, HIS SYMPTOMS, WHATEVER IT IS. HE'LL TESTIFY, WHEN I FEEL THIS WAY, MY NUMBERS ARE USUALLY X.
MR. BOSTIC: CORRECT, YOUR HONOR.
JUDGE DAVILA: WHEN I TOOK THEIR TESTS, THE NUMBERS WERE Y AND I COULDN'T FIGURE THAT OUT AND I CALLED TO COMPLAIN.
MR. BOSTIC: YES, YOUR HONOR. THAT'S THE FIRST PART OF HIS TESTIMONY.
JUDGE DAVILA: RIGHT.
MR. BOSTIC: IT'S SEPARATE AND INDEPENDENT FROM THE SIMPLE FACT THAT HE GOT COMPARISON TESTS ON THE SAME DAY AND THE RESULTS ARE WHAT THEY ARE.
JUDGE DAVILA: OKAY. BUT I'M STILL TROUBLED BY THE MOTION AND WHAT IT REQUIRES THE COURT TO DO IN LIGHT OF THE COURT'S RULING IN 798. THE COURT WAS SPECIFIC IN THAT, INDICATING YOU CAN'T SHOW ANY OTHER -- YOU CAN'T PUT ANY EVIDENCE ON. YOU'RE LISTED -- YOU'RE RESTRICTED TO THOSE 25 ASSAYS OF WHATEVER THEY WERE, AND IF YOU WANT TO USE THEM FOR A DIFFERENT PURPOSE OTHER THAN ACCURACY, RELIABILITY, THEY'RE CERTAINLY ADMISSIBLE. AND I THINK YOU'VE SAID THAT IN YOUR PLEADINGS, THEY COULD COME IN TO SHOW SOMETHING ELSE, THE NUMBER OF TESTS, FOR EXAMPLE, AND I THINK 711 I THINK IS YOUR RESPONSE. I CAN'T REMEMBER THE DOCKET, BUT YOU SUGGESTED THERE ARE MANY OTHER REASONS THAT IT COULD COME IN APART FROM. AND THEN IN YOUR RESPONSE YOU SAID, WE'RE NOT GOING TO INTRODUCE THAT FOR, AS I POINTED OUT IN THAT FOOTNOTE. SO I'M -- I FEEL LIKE A LITTLE BIT IN A CORNER HERE WITH THAT BECAUSE IF I DON'T GRANT THE MOTION, THEN I DO VIOLENCE TO THE COURT'S ORDER IN THE MIL MOTION.
MR. BOSTIC: I UNDERSTAND, YOUR HONOR. I THINK IF THIS WERE A SITUATION WHERE THE GOVERNMENT WERE SEEKING TO TRULY ADD A NEW ASSAY TO THE CASE, IF THE GOVERNMENT WERE SEEKING TO INTRODUCE EVIDENCE ABOUT THE ACCURACY OF AN ASSAY THAT WASN'T ADDRESSED IN THE INDICTMENT AT ALL, THAT WOULD BE A DIFFERENT QUESTION AND A MORE DIFFICULT SITUATION TO NAVIGATE. I THINK HERE, BECAUSE THE OPERATIVE INDICTMENT INCLUDES A LIST OF ASSAYS THAT IS EXPRESSLY NOT EXCLUSIVE, AND BECAUSE THAT SAME DOCUMENT, THAT SAME INDICTMENT ALSO LISTS THREE PATIENT COUNTS, EACH OF WHICH CONCERN THE ACCURACY OF AN ASSAY, AND ONE OF THOSE PATIENT COUNTS IS THE BB COUNT THAT COULD ONLY RELATE TO THE ACCURACY OF THE PLT OR PLATELET TEST, I DON'T THINK IT IS CONTRARY TO AT LEAST THE SPIRIT OF THE COURT'S ORDER. TO THE EXTENT A MODIFICATION OF THAT ORDER IS NECESSARY, OR LEAVE TO AMEND THE BILL OF PARTICULARS AND TO ADD THOSE THREE LETTERS TO IT, WE WOULD ASK FOR THAT IF THE COURT FEELS IT'S NECESSARY.
JUDGE DAVILA: SURE. OKAY.
MS. TREFZ: JUST TO BE CLEAR, IN THE INDICTMENT THERE ARE THREE PATIENT COUNTS. MR. BOSTIC IS RIGHT. THE ASSAYS RELEVANT TO COUNTS ELEVEN AND TWELVE ARE LISTED IN THE 25 ASSAYS. THAT'S WHY WE FILED THE MOTION, ONE OF THE REASONS WHY WE FILED THE MOTION BACK IN NOVEMBER. IT'S ONE OF THE REASONS WHY WE SPECIFICALLY RAISED THE BB COUNT. IT SOUNDS LIKE WHAT IT ISN'T IS AN OVERSIGHT. IT SOUNDS LIKE MR. BOSTIC HAD SAID EARLIER THAT THE GOVERNMENT WAS CONFUSED AS TO ITS ASSAYS. THAT IS BAFFLING TO ME AS AN ARGUMENT, AND THE GOVERNMENT SHOULD NOT BE REWARDED FOR FAILING TO UNDERSTAND ITS INDICTMENT.
JUDGE DAVILA: OKAY. THANK YOU VERY MUCH. WELL, IT'S -- I LOOK AT THIS, AND I'VE BEEN -- AS I SAID, I FOCUSSED ON THE DOCUMENTS THAT I MENTIONED EARLIER, AND I'M PARTICULARLY CONCERNED ABOUT THE COURT'S ORDER IN 798 AND THE RESTRICTIVE NATURE OF THAT. HOWEVER, I DID ALLOW FOR OTHER EVIDENCE TO COME IN, AS INDICATED ON PAGES 78 THROUGH 80, AND THE GOVERNMENT COULD HAVE GIVEN NOTICE, AND/OR USING ANYTHING OUTSIDE OF THOSE 25 ASSAYS FOR A DIFFERENT PURPOSE. THE COURT DIDN'T HAVE ANY PROBLEM WITH THAT. AND LET ME ALSO NOTE -- I THINK I NOTED, MR. BOSTIC, IN YOUR PLEADINGS, YOUR SIDE'S PLEADINGS, YOU SUGGESTED THERE WASN'T A HEARING ON THIS, AND I THINK THAT'S RIGHT. WE DIDN'T DISCUSS THIS AT A FORMAL HEARING. THERE WASN'T ANY ORAL ARGUMENT ON THIS AT THE HEARING. BUT IF MY RECOLLECTION IS CORRECT, I THINK THIS IS ONE OF THOSE THREE OR FOUR MILS THAT THE PARTIES COLLECTIVELY SAID NO ARGUMENT WAS NECESSARY. I THINK THAT'S RIGHT. I THINK THIS FELL IN THAT CATEGORY.
MS. TREFZ: YES, YOUR HONOR.
JUDGE DAVILA: AND THAT'S WHY WE DIDN'T HAVE AN ORAL ARGUMENT ON IT. WE HAD MANY OTHER THINGS TO TALK ABOUT, AND WE DID TALK ABOUT, BUT THIS WAS ONE OF THREE OR FOUR YOU SAID WE'RE FINE WITH, SO I RECOGNIZE THAT. ALL RIGHT. THANK YOU VERY MUCH FOR THIS. LET ME JUST SAY, I'M GOING TO ISSUE A SHORT ORDER ON THIS. I THINK IT'S APPROPRIATE TO GIVE YOU AN ORDER. BUT, MR. BOSTIC, I'M TROUBLED BY THIS, AND THE COURT MAY VERY WELL LIKELY GRANT THIS MOTION JUST BASED ON OUR CONVERSATION HERE, AND THE COURT'S 798, AS WELL AS LOOKING BACK AT 568, 711, 664 AND THE OTHER DOCUMENTS THAT WE HAVE DISCUSSED. THAT IS THE HISTORY OF HOW WE GOT HERE. SO I THINK I AM -- I THINK I OWE FIDELITY TO THE COURT'S 798, PAGES 78 THROUGH 80, IN THAT ANALYSIS HERE. BUT I'LL GET A SHORT ORDER. THIS WITNESS IS SCHEDULED FOR NEXT WEEK, I BELIEVE.
MR. BOSTIC: YOUR HONOR, THIS WITNESS WAS SCHEDULED TO TESTIFY AS EARLY AS TOMORROW.
JUDGE DAVILA: OH, DEAR.
MR. BOSTIC: HE IS IN TOWN, BUT CERTAINLY WE'RE GUIDED BY THE COURT'S ORDER.
JUDGE DAVILA: OKAY.
MR. BOSTIC: I'LL ONLY JUST EMPHASIZE MY POINT, I THINK NOTICE TO THE DEFENSE SHOULD BE THE GUIDING PRINCIPLE HERE, AND THE FACT THAT THERE WAS A MISUNDERSTANDING BEFORE -- I THINK, YOU KNOW, WITH RESPECT TO DEFENSE COUNSEL, I DON'T THINK THE DEFENSE SHOULD BE REWARDED FOR SAVING THIS AS A TRAP TO SPRING ON THE GOVERNMENT THE WEEK THAT THE WITNESS IS PLANNING TO TESTIFY. BUT WITH THAT I'LL SUBMIT.
JUDGE DAVILA: ALL RIGHT. THANK YOU VERY MUCH. THANK YOU.
MS. TREFZ: THANK YOU.
JUDGE DAVILA: WELL, I'LL STEP DOWN AND THEN WE'LL BRING OUR JURY IN. ANYTHING BEFORE WE BRING THE JURY IN? MR. SCHENK, ANYTHING?
MR. SCHENK: NOTHING FURTHER.
JUDGE DAVILA: OKAY. THANK YOU.
COURT CLERK: COURT IS IN RECESS.
(RECESS FROM 9:14 A.M. UNTIL 9:23 A.M.)
(JURY IN AT 9:28 A.M.)
JUDGE DAVILA: THANK YOU. GOOD MORNING. WE ARE BACK ON THE RECORD IN THE HOLMES MATTER. ALL COUNSEL ARE PRESENT. MS. HOLMES IS PRESENT. OUR JURY IS PRESENT. THANK YOU FOR YOUR PATIENCE. GOOD MORNING, LADIES AND GENTLEMEN. BEFORE WE BEGIN OUR SESSION TODAY, LET ME ASK THE JURORS THE QUESTION YOU ALL KNOW. DURING OUR RECESS, DID ANY OF YOU HAVE ANY OCCASION TO HAVE CONTACT WITH OR COME ACROSS ANY INFORMATION ABOUT THIS CASE OUTSIDE OF THE COURT? AND IF SO, PLEASE RAISE YOUR HAND. ONCE AGAIN, I SEE NO HANDS. THANK YOU AGAIN FOR YOUR VIGILANCE IN THAT REGARD. LET ME JUST SAY A COUPLE OF THINGS ABOUT OUR COURTROOM. YESTERDAY IT WAS OPPRESSIVELY HOT IN THE AFTERNOON HERE, AND WE'RE TRYING TO GET THE HVAC SYSTEM ORGANIZED, AND WE'LL WORK ON THAT. IT MAY BE THAT IN THE AFTERNOON, AND I THINK I MENTIONED TO THE LAWYERS THAT IF IT DOES CONTINUE THAT WAY, WE'RE GOING TO TAKE SOME STANDING BREAKS IN THE MIDDLE OF TESTIMONY JUST TO KEEP OUR BLOOD FLOWING.
I KNOW IT'S DIFFICULT TO FOCUS WHEN IT'S WARM, AND WE'LL TRY TO DO WHAT WE CAN ABOUT THAT. TODAY WE GO UNTIL 3:00. PLEASE RECALL WE GO UNTIL 3:00 TODAY, AND HOPEFULLY TOMORROW WE'LL GO UNTIL 4:00 AND WE'LL TAKE SOME BREAKS. AND WHEN WE MET SEVERAL WEEKS AGO, I INDICATED IF ANYBODY NEEDS TO TAKE A BREAK, INCLUDING THE PARTIES HERE, FOR ANY REASON AT ALL, INCLUDING A FATIGUE BREAK, IF SOMEBODY NEEDS, LIKE I JUST NEED TO GET FRESH AIR SUCH THAT WE HAVE IT IN THE COURTHOUSE, PLEASE DON'T BE SHY ABOUT RAISING YOUR HAND AND LETTING MS. KRATZMANN KNOW, LADIES AND GENTLEMEN OF THE JURY. I STRIVE TO MAKE THESE PROCEEDINGS AS COMFORTABLE FOR YOU SO YOU CAN CONTINUE TO FOCUS, AS YOU HAVE BEEN DOING THROUGHOUT THE TRIAL, AND YOU KNOW I'M LOOKING AT YOU, I'M PAYING ATTENTION TO YOU. SO, PLEASE, IF YOU NEED A BREAK FOR ANY REASON, DON'T BE SHY ABOUT LETTING ME KNOW. I WANT TO ACCOMMODATE ANY OF THOSE REQUESTS. ALL RIGHT. THANK YOU. COUNSEL, ANYTHING BEFORE WE BEGIN?
MR. SCHENK: NO, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. THANK YOU. LET'S CALL OUR WITNESS IN. OH, YES. AND TOMORROW WE BEGIN AT 9:30. GOOD MORNING.
DANIEL MOSLEY: GOOD MORNING.
JUDGE DAVILA: AND LET ME REMIND YOU TO ADJUST THE CHAIR AND MICROPHONE AS YOU NEED. YOU CAN REMOVE YOUR MASK IF YOU WISH.
DANIEL MOSLEY: THANK YOU.
JUDGE DAVILA: I'LL ENCOURAGE YOU TO SPEAK DIRECTLY INTO THE MICROPHONE. WHEN YOU ARE COMFORTABLE, WOULD YOU PLEASE STATE YOUR NAME AGAIN.
DANIEL MOSLEY: DANIEL LYNN MOSLEY.
(GOVERNMENT'S WITNESS, DANIEL MOSLEY, WAS PREVIOUSLY SWORN.)
JUDGE DAVILA: THANK YOU.
JUDGE DAVILA: YES, THANK YOU.