Erin Tompkins — Direct/Cross
279 linesDIRECT EXAMINATION BY MR. BOSTIC:
MR. BOSTIC: GOOD AFTERNOON, MS. TOMPKINS.
ERIN TOMPKINS: GOOD AFTERNOON, SIR.
MR. BOSTIC: MS. TOMPKINS, IF YOU ARE FULLY VACCINATED AND COMFORTABLE TO DO SO, I UNDERSTAND THE COURT WILL ALLOW YOU TO TESTIFY WITHOUT A MASK.
ERIN TOMPKINS: THANK YOU.
MR. BOSTIC: THANK YOU. I'LL DO THE SAME. LET ME START BY ASKING, WAS THERE A TIME WHEN YOU RECEIVED BLOOD TEST SERVICES FROM A COMPANY CALLED THERANOS?
ERIN TOMPKINS: YES.
MR. BOSTIC: AND I WANT TO ASK YOU SOME QUESTIONS ABOUT THAT, BUT FIRST LET ME ASK ABOUT YOUR BACKGROUND. WHERE DO YOU CURRENTLY LIVE?
ERIN TOMPKINS: MY PERMANENT ADDRESS IS IN ARIZONA. I'M CURRENTLY STAYING IN NEW MEXICO.
MR. BOSTIC: WHERE WERE YOU LIVING IN 2015?
ERIN TOMPKINS: CENTRAL PHOENIX.
MR. BOSTIC: WERE YOU EMPLOYED AT THAT TIME?
ERIN TOMPKINS: YES.
MR. BOSTIC: WHAT WAS YOUR JOB AT THAT TIME IN PHOENIX IN 2015?
ERIN TOMPKINS: I HAD THREE ESSENTIALLY. I WAS MUSIC DIRECTOR OF A SMALL METHODIST CONGREGATION; I SPENT ONE SEMESTER AS A PERFORMING ARTIST IN THE CHILDREN'S PROGRAM AT ARIZONA OPERA; AND I ALSO TAUGHT PRIVATE VOICE LESSONS.
MR. BOSTIC: DID THERE COME A TIME WHEN YOU HEARD ABOUT A COMPANY CALLED THERANOS FOR THE FIRST TIME?
ERIN TOMPKINS: I BELIEVE THE FIRST TIME WAS -- I THINK THE FIRST TIME WAS WHEN I SAW THE ARTICLE IN "FORBES" MAGAZINE IN APPROXIMATELY 2013, IF THAT SOUNDS ABOUT RIGHT, AND THEN GREW MORE INTERESTED WHEN I WAS SEEING SOMETHING ON SOCIAL MEDIA PROMOTING IT.
MR. BOSTIC: IN ADDITION TO SEEING THAT ARTICLE IN -- YOU BELIEVE IT WAS "FORBES" MAGAZINE?
ERIN TOMPKINS: UH-HUH.
MR. BOSTIC: DID YOU LOOK AT SOME OF THE CONTENT OF THAT ARTICLE AND LEARN ABOUT SOME OF THE BASIC FACTS AROUND THE COMPANY?
ERIN TOMPKINS: I KIND OF SKIMMED IT. BASICALLY I REMEMBER HAVING A BRIEF CONVERSATION WITH MY FATHER ABOUT IT.
MR. BOSTIC: OVER THE FOLLOWING MONTHS, DID YOU LEARN MORE FACTS ABOUT THE COMPANY?
ERIN TOMPKINS: WELL, WHAT I GLEANED FROM WHAT I READ ON FACEBOOK, WHICH WAS PRIMARILY A RECOMMENDATION FROM A FRIEND OF MINE WHO RUNS A DAY RESOURCE CENTER, THAT -- ONE OF HER BIGGEST PRIORITIES WAS FINDING AFFORDABLE HEALTH CARE OPTIONS FOR PEOPLE WHO ARE WITHOUT COVERAGE AND/OR WHO ARE HOMELESS AND NEED TO GET SOME BLOOD WORK DONE AND THINGS LIKE THAT, AND SHE WAS A BIG, BIG SUPPORTER OF THERANOS, AND SO I THOUGHT I WOULD LOOK INTO IT.
MR. BOSTIC: FOCUSSING ON THE TIME PERIOD BEFORE YOU ACTUALLY WENT TO THERANOS, WHAT DID YOU UNDERSTAND ABOUT THE SERVICE THAT THE COMPANY OFFERED, ANYTHING THAT MADE IT DIFFERENT?
ERIN TOMPKINS: WHAT DID I UNDERSTAND? MY PERCEPTION WAS THAT THE NATURE OF A BLOOD DRAW REQUIRED NOT EVEN AN ENTIRE VIAL, JUST A TINY LITTLE CAPSULE'S WORTH OF BLOOD, IT COULD BE LIKE A PIN PRICK, AND THAT ANALYSIS WOULD THEN GIVE THE SAME AMOUNT OF INFORMATION AS IF YOU HAD AN ENTIRE VIAL OF BLOOD DRAWN. THAT WAS THE IMPRESSION I HAD OF WHAT MADE THE TECHNOLOGY SO ADVANCED AND DIFFERENT FROM EVERYTHING ELSE THAT WE HAD BEEN EXPERIENCING IN PREVIOUS YEARS. DOES THAT MAKE SENSE?
MR. BOSTIC: AND WAS THAT ABILITY TO OBTAIN BLOOD TEST RESULTS FROM A TINY SAMPLE FROM A FINGERSTICK APPEALING TO YOU AS A POTENTIAL CUSTOMER?
ERIN TOMPKINS: OH, SURE.
MR. BOSTIC: AT SOME POINT IN MID 2015, DID YOU MAKE THE DECISION TO GET SOME BLOOD TEST WORK DONE?
ERIN TOMPKINS: YES.
MR. BOSTIC: AND DID YOU ORDER THAT BLOOD TEST WORK YOURSELF OR THROUGH YOUR PHYSICIAN?
ERIN TOMPKINS: THROUGH MY PHYSICIAN, YES.
MR. BOSTIC: AND WHAT IS YOUR PHYSICIAN'S NAME, OR WHAT WAS YOUR PHYSICIAN'S NAME AT THAT TIME?
ERIN TOMPKINS: DR. GERALD ASIN.
MR. BOSTIC: AND IS THAT LAST NAME A-S-I-N?
ERIN TOMPKINS: YES.
MR. BOSTIC: HOW DID YOU DECIDE WHICH LAB TO GO TO FOR YOUR BLOOD TEST IN MID 2015?
ERIN TOMPKINS: I REQUESTED THERANOS BECAUSE I WAS INTERESTED IN THAT PROCESS.
MR. BOSTIC: WERE YOU INSURED AT THE TIME?
ERIN TOMPKINS: NO. THIS WAS AN OUT-OF-POCKET VISIT AND THE COST OF THAT BLOOD WORK WAS PART OF THE -- THAT WAS PART OF THE DECISION MAKING.
MR. BOSTIC: I SEE. YOU UNDERSTOOD THERANOS'S PRICES TO BE LOWER THAN COMPETING LABS?
ERIN TOMPKINS: UH-HUH.
JUDGE DAVILA: IS THAT YES? WAS THAT YES?
ERIN TOMPKINS: YES.
MR. BOSTIC: SORRY.
MR. BOSTIC: WE JUST NEED AN AUDIBLE YES FOR THE RECORD.
ERIN TOMPKINS: YES, I UNDERSTOOD THEM TO BE LOWER PRICING THAN OTHER OPTIONS.
MR. BOSTIC: WHEN YOU DECIDED TO GO TO THERANOS FOR BLOOD TESTING, WERE YOU COUNTING ON THE LAB'S ABILITY TO RETURN ACCURATE RESULTS FOR YOUR BLOOD TESTS?
ERIN TOMPKINS: ABSOLUTELY.
MR. BOSTIC: YOU MENTIONED THAT COST WAS A FACTOR IN CHOOSING WHERE TO GO. BETWEEN COST AND ACCURACY, WHICH OF THOSE WAS MORE IMPORTANT TO YOU AT THE TIME THAT YOU WERE GETTING BLOOD TESTING DONE?
ERIN TOMPKINS: WELL, I THINK ACCURACY IS THE MOST IMPORTANT ANY TIME YOU'RE HAVING A MEDICAL PROCEDURE, BUT COST WAS A VERY, VERY CLOSE SECOND FOR ME AT THE TIME.
MR. BOSTIC: AS A PATIENT, IN YOUR VIEW, IS THERE ANY BENEFIT TO YOU IN BLOOD TEST RESULTS THAT ARE NOT ACCURATE OR RELIABLE?
ERIN TOMPKINS: I CAN'T IMAGINE ONE, NO.
MR. BOSTIC: AFTER CHOOSING THERANOS AS THE LAB, DO YOU REMEMBER WHERE YOU WENT TO HAVE YOUR BLOOD DRAWN?
ERIN TOMPKINS: I BELIEVE IT WAS INSIDE OF A WALGREENS.
MR. BOSTIC: AND YOU MENTIONED THAT YOU WERE NOT INSURED. AT THE TIME, DO YOU RECALL HOW YOU PAID FOR YOUR THERANOS BLOOD TEST?
ERIN TOMPKINS: EITHER CASH OR CARD, BANK CARD PROBABLY.
MR. BOSTIC: YOUR PERSONAL FUNDS?
ERIN TOMPKINS: YES.
MR. BOSTIC: YOUR HONOR, I WOULD MOVE TO ADMIT EXHIBIT 5483, WHICH I'M HANDING UP A COPY TO THE COURT NOW.
(HANDING.) THESE ARE RELEVANT PAGES TO AN EXHIBIT WHICH I BELIEVE THE DEFENSE HAS STIPULATED.
MS. TREFZ: NO OBJECTION.
MR. BOSTIC: MAY I APPROACH, YOUR HONOR?
JUDGE DAVILA: YES.
BY MR. BOSTIC:
MR. BOSTIC: (HANDING.)
ERIN TOMPKINS: THANK YOU. EXCUSE ME.
JUDGE DAVILA: ARE THERE ANY REDACTIONS THAT NEED TO BE CONDUCTED ON THIS FORM?
MR. BOSTIC: YOUR HONOR, THE EXHIBIT THAT WE'RE MOVING INTO EVIDENCE MATCHES WHAT THE COURT HAS. IT'S ALREADY BEEN REDACTED, AND I UNDERSTAND THAT THE WITNESS IS COMFORTABLE WITH THE LEVEL OF REDACTIONS ON THIS DOCUMENT.
JUDGE DAVILA: ALL RIGHT. THANK YOU. THERE'S PHONE NUMBERS THERE.
MR. BOSTIC: IS THAT IN THE UPPER RIGHT, YOUR HONOR?
JUDGE DAVILA: YES.
MR. BOSTIC: THOSE ARE OFFICE PHONE NUMBERS THAT I UNDERSTAND ARE PUBLIC.
JUDGE DAVILA: ALL RIGHT. THANK YOU. IT'S ADMITTED, AND IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 5483 WAS RECEIVED IN EVIDENCE.)
MR. BOSTIC: MS. HOLLIMAN, LET'S BRING UP EXHIBIT 5483.
MR. BOSTIC: MS. TOMPKINS, DO YOU SEE IN FRONT OF YOU EXHIBIT 5483?
ERIN TOMPKINS: YES.
MR. BOSTIC: AND ARE THESE YOUR TEST RESULTS, OR AN EXCERPT OF YOUR TEST RESULTS FROM THERANOS IN 2015?
ERIN TOMPKINS: THEY APPEAR TO BE, YES.
MR. BOSTIC: AND DO YOU SEE YOUR NAME AT THE TOP, TOMPKINS, COMMA, ERIN?
ERIN TOMPKINS: YES, I DO.
MR. BOSTIC: AND IS THAT YOUR PHYSICIAN'S NAME TO THE RIGHT OF THAT, GERALD ASIN?
ERIN TOMPKINS: YES, IT IS.
MR. BOSTIC: UNDERNEATH THAT IN A BLACK BAR THAT MAKES IT ESPECIALLY DIFFICULT TO READ, THERE'S A LINE THAT SAYS VISIT. DO YOU SEE THAT?
ERIN TOMPKINS: YES, JUST BARELY.
MR. BOSTIC: AND DO YOU SEE AN ADDRESS THERE, THERANOS SERVICE CENTER ON NORTH 16TH STREET IN PHOENIX, ARIZONA?
ERIN TOMPKINS: YES.
MR. BOSTIC: AND THE VISIT DATE LOOKS LIKE MAY 8TH, 2015. IS THAT CONSISTENT WITH YOUR MEMORY?
ERIN TOMPKINS: THAT LOOKS LIKE THAT'S WHAT IS ON THERE, BUT IT'S VERY HARD FOR ME TO READ. BUT I KNOW THAT IT WAS IN THE FIRST WEEKISH OF MAY, YEAH. THAT'S PRETTY CONSISTENT.
MR. BOSTIC: AND AT THE TOP OF THIS PAGE, DO YOU SEE AT THE VERY TOP THERE'S A LINE THAT READS THERANOS FACT SERVER? DO YOU SEE THAT AT THE TOP OF THE PAGE?
ERIN TOMPKINS: YES. NOT AT THE TOP OF THE IMAGE ON THE SCREEN, BUT AT THE TOP OF THE PAGE THAT I'M HOLDING. THERE IT IS.
MR. BOSTIC: MS. HOLLIMAN, LET'S SEE IF WE CAN ZOOM OUT AND SEE IF WE CAN CAPTURE THE INFORMATION AT THE TOP OF THE PAGE. DO YOU SEE IT INDICATES THERE THERANOS FAX SERVER, AND DO YOU SEE A TIME STAMP INDICATING THAT IT WAS SENT MAY 11TH, 2015?
ERIN TOMPKINS: UH-HUH, I DO.
MR. BOSTIC: AND FINALLY, JUST LOOKING AT YOUR PHYSICIAN'S CONTACT INFORMATION, DO YOU SEE THAT HIS FAX NUMBER BEGINS WITH A 480 AREA CODE?
ERIN TOMPKINS: YES.
MR. BOSTIC: AND DO YOU HAVE AN UNDERSTANDING OF WHAT AREA THAT AREA CODE REFERS TO?
ERIN TOMPKINS: YES. THAT'S IN SCOTTSDALE, AND THE PHONE NUMBER, THE OFFICE PHONE NUMBER HERE IS CORRECT. I DON'T HAVE THE FAX MEMORIZED BUT, YEAH.
MR. BOSTIC: UNDERSTOOD. WAS YOUR DOCTOR'S OFFICE AT THAT TIME IN SCOTTSDALE, ARIZONA?
ERIN TOMPKINS: YES, THAT'S STONECREEK MEDICAL ASSOCIATES.
MR. BOSTIC: LOOKING AT THE TOP RIGHT CORNER OF THE PAGE, THERE'S INFORMATION FOR THERANOS. DO YOU SEE THAT?
ERIN TOMPKINS: UH-HUH.
MR. BOSTIC: AND THERE'S A FAX NUMBER WITH A 650 AREA CODE. DO YOU SEE THAT?
ERIN TOMPKINS: UH-HUH.
MR. BOSTIC: DO YOU UNDERSTAND --
JUDGE DAVILA: I'M SORRY. IS THAT YES?
ERIN TOMPKINS: YES.
MR. BOSTIC: THANK YOU, YOUR HONOR.
MR. BOSTIC: DO YOU UNDERSTAND THE 650 AREA CODE TO CORRESPOND TO PART OF THE BAY AREA IN CALIFORNIA?
ERIN TOMPKINS: YES.
MR. BOSTIC: AND LET'S LOOK AT THE RESULTS THEMSELVES. DO YOU SEE ABOUT A THIRD OF THE WAY DOWN THE PAGE THERE'S A SECTION LABELLED SUMMARY OF ABNORMAL RESULTS?
ERIN TOMPKINS: A THIRD OF THE WAY DOWN, YES, THE FIRST LIST.
MR. BOSTIC: YES, EXACTLY. AND WE'VE REDACTED THE NONRELEVANT PORTIONS HERE, BUT DO YOU SEE A LINE FOR A TEST FOR HIV 1 PLUS 2 ANTIBODIES?
ERIN TOMPKINS: YES.
MR. BOSTIC: AND DO YOU SEE THE RESULT THERE IS LISTED THERE AS REACTIVE?
ERIN TOMPKINS: YES.
MR. BOSTIC: AND IT'S FLAGGED AS REACTIVE. DO YOU SEE THAT?
ERIN TOMPKINS: I DO, YES.
MR. BOSTIC: DO YOU REMEMBER RECEIVING THESE RESULTS IN MAY 2015?
ERIN TOMPKINS: I DO.
MR. BOSTIC: LET'S LOOK AT THE NEXT PAGE, WHICH IS PAGE 2 OF EXHIBIT 5483. AND LET'S ZOOM IN ON THE BOX IN THE MIDDLE OF THE PAGE LABELLED HIV 1, 2 ANTIBODY SCREEN. MS. TOMPKINS, DO YOU SEE A BREAKDOWN OF SOME ADDITIONAL HIV RELATED RESULTS FROM YOUR THERANOS TEST?
ERIN TOMPKINS: YES.
MR. BOSTIC: AND YOU'LL SEE AGAIN THAT THE HIV 1 PLUS 2 ANTIBODY TEST IS MARKED AS REACTIVE. DO YOU SEE THAT?
ERIN TOMPKINS: YES.
MR. BOSTIC: AND THAT THE OTHERS FOR HIV 1 ANTIBODY, HIV 2 ANTIBODY, AND HIV 1 RNA ARE MARKED AS NON-REACTIVE OR NOT DETECTED. DO YOU SEE THAT?
ERIN TOMPKINS: YES.
MR. BOSTIC: PRIOR TO 2015, WERE YOU EVER AT ANY TIME DIAGNOSED WITH HIV OR AIDS?
MR. BOSTIC: AT ANY TIME SINCE 2015 HAVE YOU BEEN DIAGNOSED WITH HIV OR AIDS?
MR. BOSTIC: TO YOUR KNOWLEDGE, HAVE YOU EVER HAD ANY SYMPTOMS OF HIV OR AIDS?
MR. BOSTIC: HAVE YOU EVER RECEIVED TREATMENT FOR HIV OR AIDS?
MR. BOSTIC: I'D LIKE TO DRAW YOUR ATTENTION TO SOME LANGUAGE ON PAGE 3 OF THE EXHIBIT.
ERIN TOMPKINS: PAGE 3?
MR. BOSTIC: PAGE 3 OF THE EXHIBIT, AT THE BOTTOM OF THE PAGE THERE'S A SECTION MARKED LAB NOTES. DO YOU SEE THAT?
ERIN TOMPKINS: YES.
MR. BOSTIC: AND IT READS THERE, "HIV ANTIBODIES WERE NOT CONFIRMED AND HIV-1 RNA WAS NOT DETECTED. NO LABORATORY EVIDENCE OF HIV-1 INFECTION. FOLLOW-UP TESTING FOR HIV-2 SHOULD BE PERFORMED IF CLINICALLY INDICATED." DO YOU SEE THAT?
ERIN TOMPKINS: YES.
MR. BOSTIC: BASED ON YOUR MEDICAL HISTORY, ARE YOU AWARE OF ANY REASON WHY HIV ANTIBODIES WOULD BE PRESENT IN YOUR BLOOD?
MR. BOSTIC: FOLLOWING YOUR RECEIPT OF THESE RESULTS, DID YOU TAKE ANY STEPS TO CONFIRM THESE RESULTS OR GET A SECOND OPINION?
ERIN TOMPKINS: FOLLOWING MY -- I'M SORRY, CAN YOU SAY THAT AGAIN, PLEASE.
MR. BOSTIC: AFTER YOU GOT THESE RESULTS, DID YOU TAKE ANY STEPS TO TRY TO VERIFY WHAT WAS REALLY HAPPENING?
ERIN TOMPKINS: YES. I MADE A DIRECT CALL TO THE NUMBER FOR THERANOS AND ASKED IF I COULD SPEAK WITH SOMEONE WORKING IN A LAB WHO COULD EXPLAIN TO ME HOW THIS IS POSSIBLE.
MR. BOSTIC: AND HOW SOON AFTER RECEIVING THESE RESULTS DID YOU CALL THE COMPANY?
ERIN TOMPKINS: FROM THE DAY -- IT WAS EITHER ON THE DAY THAT I RECEIVED THEM OR THE FOLLOWING DAY.
MR. BOSTIC: SO I UNDERSTAND WE'RE TALKING ABOUT MAY 2015?
ERIN TOMPKINS: UH-HUH.
MR. BOSTIC: WHAT, IF ANYTHING, DO YOU REMEMBER ABOUT THAT CONVERSATION WITH SOMEONE AT THE COMPANY?
ERIN TOMPKINS: I REMEMBER ASKING IF I COULD BE TRANSFERRED TO SOMEONE WHO WORKS WITH THE LAB EQUIPMENT WHO MIGHT BE ABLE TO HAVE A MORE IN-DEPTH CONVERSATION WITH ME ABOUT HOW THIS IS POSSIBLE. SHE SAID SHE WAS A CUSTOMER SERVICE REPRESENTATIVE AND SHE COULDN'T TRANSFER ME, AND THAT WAS ABOUT IT. I DON'T RECALL IF I ATTEMPTED TO CALL THEM BACK AGAIN, BUT I WAS QUITE EMOTIONAL AT THE TIME.
MR. BOSTIC: AT ANY TIME TO YOUR KNOWLEDGE DID YOU SPEAK TO A SCIENTIST OR A MEDICAL PROFESSIONAL --
MR. BOSTIC: -- ASSOCIATED WITH THERANOS?
MR. BOSTIC: TO YOUR KNOWLEDGE, DID YOU GET A CALL BACK FROM THE COMPANY TO PROVIDE MORE INFORMATION ABOUT YOUR TEST RESULTS?
ERIN TOMPKINS: NOT THAT I RECALL, NO.
MR. BOSTIC: AT SOME POINT AFTER THESE TEST RESULTS, DID YOU GET ADDITIONAL EXAMINATION OR ANOTHER TEST TO TRY TO CONFIRM WHETHER THESE RESULTS WERE ACCURATE OR NOT?
ERIN TOMPKINS: YES. IT TOOK ME A LITTLE LONGER THAN I LIKED, BUT WITHIN THE NEXT THREE MONTHS I WAS ABLE TO GO INTO THE WOMEN'S CLINIC AND GET SOME SCREENING DONE. THAT CAME BACK NEGATIVE. THEY SAID EVERYTHING WAS FINE. THEN I WENT, LIKE, I DON'T KNOW, THREE YEARS LATER AND HAD IT DONE AGAIN.
MR. BOSTIC: AND DID YOU HAVE ANOTHER TEST DONE IN AUGUST OF THIS YEAR, WHICH INCLUDED AN HIV SCREEN?
ERIN TOMPKINS: YES, THAT IS THE MOST RECENT ONE.
MR. BOSTIC: MAY I APPROACH, YOUR HONOR?
JUDGE DAVILA: YES.
BY MR. BOSTIC:
MR. BOSTIC: (HANDING.) MS. TOMPKINS, I'VE PUT IN FRONT OF YOU WHAT IS MARKED 5484. DO YOU HAVE THAT?
ERIN TOMPKINS: YES.
MR. BOSTIC: AND IS THIS A REPORT WITH YOUR HIV TEST RESULTS FROM AUGUST OF THIS YEAR?
ERIN TOMPKINS: YES.
MR. BOSTIC: YOUR HONOR, I WOULD MOVE TO ADMIT EXHIBIT 5484 AT THIS TIME, AND I WILL BE REDACTING THE DATE OF BIRTH AT THE TOP OF THE PAGE.
MS. TREFZ: NO OBJECTION.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED WITH THE REDACTION.
(GOVERNMENT'S EXHIBIT 5484 WAS RECEIVED IN EVIDENCE.)
BY MR. BOSTIC:
MR. BOSTIC: MS. TOMPKINS, ARE YOU SEEING YOUR AUGUST HIV RESULTS IN FRONT OF YOU?
JUDGE DAVILA: EXCUSE ME. THE MONITORS ARE NOT WORKING. I DON'T SEE --
COURT CLERK: LET ME DO A QUICK RESET, YOUR HONOR.
JUDGE DAVILA: PARDON ME, MR. BOSTIC.
MR. BOSTIC: OF COURSE, YOUR HONOR.
(PAUSE IN PROCEEDINGS.)
JUDGE DAVILA: ALL RIGHT. IT LOOKS LIKE IT'S JUST ONE OF OUR MONITORS ON THE EAST SIDE. DOES THE JURY HAVE A VIEW OF THIS?
JUROR: (NODS HEAD UP AND DOWN.)
JUDGE DAVILA: ALL RIGHT. THANK YOU. WE'LL PROCEED. THERE IS ONE MONITOR UP IN THE PUBLIC AREA, AND THAT'S WHAT WE'LL HAVE TO USE FOR NOW. SO YOU CAN CONTINUE, MR. BOSTIC.
MS. TREFZ: I'M SORRY.
JUDGE DAVILA: MS. TREFZ IS GOING TO SIT AT A TABLE HERE THAT HAS THE MONITOR THAT DISPLAYS THE EXHIBIT. YOU HAVE THE EXHIBIT THOUGH?
MS. TREFZ: I DO, BUT I WILL SIT HERE.
JUDGE DAVILA: THAT'S FINE. MR. BOSTIC.
MR. BOSTIC: THANK YOU, YOUR HONOR.
MR. BOSTIC: MS. TOMPKINS, ON THE FORM IN FRONT OF YOU, FIRST AT THE TOP IT IS LABELLED CONTRA COSTA HEALTH SERVICES. IS THAT THE LAB THAT YOU WENT TO FOR YOUR AUGUST 2021 HIV TEST?
ERIN TOMPKINS: YES.
MR. BOSTIC: AND, MS. HOLLIMAN, LET'S ZOOM IN ON THE RESULTS WHERE THE BOX IS CHECKED NEXT TO NEGATIVE. AND, MS. TOMPKINS, DO YOU SEE THAT YOUR RESULT FOR THIS TEST CAME BACK NEGATIVE AND IT READS, "EVIDENCE OF HIV ANTIGEN OR ANTIBODY WERE NOT DETECTED." DO YOU SEE THAT?
ERIN TOMPKINS: I DO, YES.
MR. BOSTIC: MAY I HAVE A MOMENT, YOUR HONOR?
JUDGE DAVILA: YES.
(DISCUSSION AMONGST GOVERNMENT COUNSEL OFF THE RECORD.)
MR. BOSTIC: NO FURTHER QUESTIONS. THANK YOU, MS. TOMPKINS.
JUDGE DAVILA: MS. TREFZ?
MS. TREFZ: I DO. I'M ALSO MINDFUL OF THE TIME. I THINK IT WILL TAKE MORE THAN THREE MINUTES. I'M HAPPY TO START.
JUDGE DAVILA: WELL, WHY DON'T YOU START? WHY DON'T YOU INTRODUCE YOURSELF AND LET'S GET STARTED.
MS. TREFZ: OKAY. I'M HAPPY TO DO THAT.
CROSS-EXAMINATION BY MS. TREFZ:
MS. TREFZ: GOOD AFTERNOON, MS. TOMPKINS.
ERIN TOMPKINS: GOOD AFTERNOON.
MS. TREFZ: MY NAME IS KATIE TREFZ, AND I REPRESENT MS. HOLMES. I'M JUST GOING TO ASK YOU A FEW QUESTIONS. BECAUSE OF THE TIME, I APOLOGIZE, BUT IT PROBABLY WILL TAKE UNTIL TOMORROW, BUT IT WON'T BE SUPER LONG.
ERIN TOMPKINS: OKAY.
MS. TREFZ: DO YOU RECALL HOW MUCH YOUR HIV TEST COST FROM THERANOS?
ERIN TOMPKINS: OFF THE TOP OF MY HEAD? NO. I REMEMBER IT BEING OF LOWER COST AND I REMEMBER RECEIVING A REFUND CHECK IN THE MAIL APPROXIMATELY TWO YEARS LATER MAYBE, SOMETHING LIKE THAT.
MS. TREFZ: OKAY. I THINK YOU MENTIONED ON DIRECT THAT COST WAS AN IMPORTANT DRIVER FOR YOU IN GOING TO THERANOS; IS THAT CORRECT?
ERIN TOMPKINS: UH-HUH, ONE OF THEM.
MS. TREFZ: YOU DISCUSSED THE RESULTS THAT YOU GOT WITH YOUR DOCTOR; CORRECT?
ERIN TOMPKINS: UH-HUH.
JUDGE DAVILA: YES?
ERIN TOMPKINS: YES. BAD HABIT. I APOLOGIZE.
BY MS. TREFZ:
MS. TREFZ: I FEEL YOU. LOOKING -- WHEN YOU DISCUSSED YOUR TEST RESULT WITH YOUR DOCTOR, WHAT DID HE TELL YOU ABOUT WHAT IT MEANT?
ERIN TOMPKINS: HE SAID HE --
MR. BOSTIC: OBJECTION. THIS IS HEARSAY. ALSO TO THE EXTENT THAT IT CALLS FOR DOCTOR-PATIENT CONFIDENTIALITY.
JUDGE DAVILA: THERE MIGHT BE SOME PRIVILEGE ISSUES INVOLVED IN THAT, AND WE'LL HAVE TO SEE WHETHER OR NOT MS. TOMPKINS WISHES TO DISCLOSE THAT. AND WE'LL DO THAT TOMORROW, LADIES AND GENTLEMEN. MS. TOMPKINS, WE'RE ENDING TODAY AT 3:30. I WANTED TO GET MS. TREFZ STARTED TO CAPTURE AS EVIDENCE AS WE COULD. SO I'LL HAVE TO ASK YOU TO RETURN TOMORROW AT 9:00 A.M., PLEASE, OR BE READY FOR TESTIMONY AT 9:00 A.M. LADIES AND GENTLEMEN, WE'LL TAKE A RECESS NOW, EVENING RECESS. PLEASE AGAIN REMEMBER THE ADMONISHMENT. DO NOT LISTEN TO, READ, OR COME UPON ANY INFORMATION, DISCUSSION, OR OTHERWISE ON SOCIAL MEDIA. DO NOT DO ANY INVESTIGATION. AND TOMORROW I WILL -- ABOUT THIS CASE, AND TOMORROW I'LL ASK YOU WHETHER OR NOT ANY OF THOSE THINGS HAVE OCCURRED. HAVE A GOOD EVENING. THANK YOU. WE'LL SEE YOU TOMORROW. AND YOU CAN -- MS. TOMPKINS, YOU CAN STAND DOWN, AND WE'LL SEE YOU BACK TOMORROW AT 9:00 O'CLOCK.
ERIN TOMPKINS: OKAY. THANK YOU, SIR.
JUDGE DAVILA: YOU'RE WELCOME.
(JURY OUT AT 3:31 P.M.)
MS. TREFZ: THOSE ARE THE EXHIBITS THAT YOU'RE SUPPOSED TO LEAVE.
JUDGE DAVILA: JUST LEAVE THOSE EXHIBITS UP THERE, MS. TOMPKINS. THANK YOU.
ERIN TOMPKINS: NO. I APOLOGIZE.
JUDGE DAVILA: AND PLEASE BE SEATED, LADIES AND GENTLEMEN. THANK YOU. OH, AND, MS. TOMPKINS, YOU CAN -- THE RECORD SHOULD REFLECT THAT THE JURY HAS LEFT FOR THE RECESS AND THE WITNESS HAS LEFT THE COURTROOM. ALL COUNSEL AND MS. HOLMES ARE PRESENT. ANYTHING BEFORE WE BREAK, COUNSEL?
MR. SCHENK: NO, YOUR HONOR.
MR. DOWNEY: I UNDERSTAND THAT YOUR HONOR IS GOING TO TAKE THE PARLOFF MATTERS UP TOMORROW MORNING, AND MR. CLINE WILL BE HERE AND AVAILABLE TO DO THAT.
JUDGE DAVILA: THAT'S FINE. THAT'S FINE.
MS. TREFZ: YOUR HONOR, I WOULD JUST LIKE, ON THIS LAST OBJECTION, I WOULD LIKE -- WE CAN TALK ABOUT IT TOMORROW MORNING, I'M HAPPY TO, OR WE CAN TALK ABOUT IT NOW, BUT I WOULD LIKE TO KNOW THE BOUNDARIES OF WHAT WE'RE ALLOWED TO ASK ABOUT IN PARTICULAR, BECAUSE WE WERE -- IT HAS BEEN DISCLOSED TO US WHAT THE DOCTOR TOLD THE PATIENT AND WE BELIEVE IT'S HIGHLY RELEVANT. SO I'M HAPPY TO DISCUSS THAT NOW OR LATER. I DEFER TO THE COURT.
JUDGE DAVILA: WHY DON'T YOU WALK UP HERE, AND WE'LL TALK ABOUT IT NOW. I'D LIKE TO TAKE ADVANTAGE OF AS MUCH TIME AS WE HAVE SO WE DON'T RUN INTO ANY OTHER UNTOWARD DELAYS IN THE CASE.
MS. TREFZ: SO WITH RESPECT TO THIS PARTICULAR ISSUE, THERE IS AN ISSUE THAT GOES TO WHETHER THE TEST ACTUALLY WAS ACCURATE OR NOT.
JUDGE DAVILA: WHICH TEST?
MS. TREFZ: THE HIV TEST THAT WE'RE TALKING ABOUT.
JUDGE DAVILA: YOUR CLIENT'S TEST OR THE SUBSEQUENT TEST?
MS. TREFZ: THE TEST --
JUDGE DAVILA: FROM YOUR CLIENT'S COMPANY?
MS. TREFZ: FROM THERANOS, YES.
JUDGE DAVILA: YES.
MS. TREFZ: IN PARTICULAR, HIV IS A REFLEX TEST PURSUANT TO A CBC ALGORITHM, AND WE BELIEVE THIS WAS COMMUNICATED TO THE PATIENT, AND WE ALSO BELIEVE THAT IT WAS COMMUNICATED TO THE PATIENT THAT THERE WAS NO INDICATION -- THERE WAS NO BELIEF THAT SHE WAS HIV POSITIVE AS A RESULT OF THIS PARTICULAR TEST.
JUDGE DAVILA: FROM THIS --
MS. TREFZ: I'M SORRY.
JUDGE DAVILA: THIS INFORMATION COMES FROM HER DOCTOR TO HER?
MS. TREFZ: FROM HER DOCTOR TO HER. BUT IT'S BEEN DISCLOSED TO US AS PART OF DISCOVERY, AND WE THINK IT'S HIGHLY RELEVANT TO THE MATTERS HERE, IN PART BECAUSE WE BELIEVE THAT THE CONFIDENTIALITY HAS ALREADY BEEN BROKEN AND THAT IT'S BEEN DISCLOSED TO US. AND WE THINK IT'S IMPORTANT THAT THE JURY UNDERSTAND THAT THE PATIENT WAS TOLD AT THE TIME THAT THIS WAS NOT A POSITIVE TEST RESULT.
JUDGE DAVILA: TOLD AT THE TIME?
MS. TREFZ: SHE RECEIVED THE RESULT AROUND MAY OF 2015, THAT SHE WAS TOLD AT THE TIME BY HER DOCTOR THAT IT WAS NOT AN INDICATION OF A POSITIVE TEST RESULT.
JUDGE DAVILA: OKAY. SO SHE TOOK THE TEST, SHE GOT THE RESULTS, SHE CALLED HER DOCTOR, AND THEN HER DOCTOR THEN TELLS HER THIS INFORMATION?
MS. TREFZ: THAT IS WHAT WE WOULD LIKE TO ELICIT. WE BELIEVE THAT THAT IS THE CASE BASED ON THE -- OUR UNDERSTANDING OF THE DISCOVERY THAT HAS BEEN PRODUCED TO US IN THIS CASE, AND SO I DON'T BELIEVE THE OBJECTION IS WELL TAKEN.
JUDGE DAVILA: OKAY. ALL RIGHT. MR. BOSTIC?
MR. BOSTIC: YOUR HONOR, A FEW POINTS. FIRST, WHEN IT COMES TO THE OBJECTION TO THE DOCTOR-PATIENT CONFIDENTIALITY, TO THE EXTENT THAT CONFIDENTIALITY HAS BEEN WAIVED AS TO THE SPECIFIC STATEMENT THAT MS. TREFZ IS REFERENCING, I THINK THE OBJECTION WAS STILL NECESSARY BECAUSE THE QUESTION WAS MUCH MORE OPEN ENDED. THE QUESTION WAS, WHAT DID YOUR DOCTOR TELL YOU? AND I THINK -- I DON'T KNOW WHAT THAT CALLS FOR. I DON'T KNOW WHAT OTHER CONTENT MIGHT BE THERE. BUT I DIDN'T WANT THE WITNESS TO INADVERTENTLY OR TO FEEL THAT SHE WAS OBLIGATED TO PROVIDE INFORMATION BEYOND I THINK WHAT MS. TREFZ IS ASKING ABOUT. EVEN AS TO THE STATEMENT THAT MS. TREFZ IS REFERENCING, THOUGH, I DO HAVE HEARSAY CONCERNS STILL, AND I ALSO HAVE RELEVANCE CONCERNS BECAUSE I'M NOT SURE OF THE RELEVANCE OF WHAT THIS PATIENT'S PHYSICIAN TOLD HER ABOUT THE RESULTS. SEPARATELY, JUST FACTUALLY, AND I SHOULD HAVE STARTED HERE, MY UNDERSTANDING OF THE FACT IS SLIGHTLY DIFFERENT FROM MS.
TREFZ'S ALSO, AND MAY BE I SHOULD GO BACK AND WE SHOULD BOTH REVIEW THE 302'S. BUT MY UNDERSTANDING IS THAT HER DOCTOR EXPRESSED SOME DOUBT ABOUT WHETHER THAT TEST RESULT COULD BE ACCURATE. HE WAS IN DISBELIEF, IN OTHER WORDS, THAT MS. TOMPKINS COULD ACTUALLY HAVE HIV ANTIBODIES IN HER BLOOD, SO HE EXPRESSED SKEPTICISM OR DISBELIEF AS TO THE ACCURACY OF THE RESULTS. I DON'T UNDERSTAND THAT TO BE THE SAME AS HIM SAYING, "THESE RESULTS ARE ACCURATE AND THEY DO NOT CONNOTE AN HIV INFECTION," WHICH COULD POTENTIALLY BE RELEVANT. BUT EVEN THERE I WOULD QUESTION THE RELEVANCE BECAUSE, FIRST OF ALL, THAT'S -- THAT WOULD BE A HEARSAY OUT-OF-COURT OPINION ABOUT THE TEST ACCURACY COMING INTO EVIDENCE HERE, WHICH WOULD NOT BE PROPER. AND IF IT'S SOLELY FOR THE WITNESS'S STATE OF MIND, I DON'T THINK THAT'S RELEVANT GIVEN THAT THE COURT HAS EXCLUDED, YOU KNOW, VICTIM IMPACT INFORMATION. IF WE WERE TRYING TO PRESENT EVIDENCE OF PAIN AND SUFFERING OR TRAUMA THAT SHE WENT THROUGH AS A RESULT OF RECEIVING THIS RESULT, THEN IT MIGHT BE RELEVANT THAT HER DOCTOR GAVE HER SOME INFORMATION TO MITIGATE THAT. BUT BECAUSE THAT IS NOT WHAT THE CASE IS ABOUT, I'M NOT SURE WHY IT'S NECESSARY.
JUDGE DAVILA: THANK YOU. WELL, SHE DID TESTIFY -- I THINK -- WHAT DID SHE SAY? SHE WAS UPSET, SHOCKED, SURPRISED.
MS. TREFZ: YES, SHE SAID SHE WAS EMOTIONAL.
JUDGE DAVILA: YES. AND MR. BOSTIC DID NOT FOLLOW UP ON THAT.
MS. TREFZ: I AGREE.
JUDGE DAVILA: AND I THINK THAT THE QUESTION DID NOT CALL FOR THAT TYPE OF A RESPONSE. IT WAS -- THE QUESTION CALLED FOR A DIFFERENT CALL. SO THAT WAS PURELY VOLUNTARY ON HER PART THAT SHE SAID THAT. THERE WAS NO FOLLOWUP ON IT AT ALL. I SAY THAT BECAUSE I THINK MR. BOSTIC'S POINT ABOUT IT COULD, IT COULD ALLOW HER, AND I MIGHT ALLOW HER TO THEN TALK A LITTLE BIT MORE ABOUT THAT IF WE GET INTO WHAT THE DOCTOR SAID. BUT IS IT YOUR -- YOU JUST WANT TO GET IN THE FACT THAT -- IT SOUNDS LIKE YOU WANT TO GET SOME SCIENTIFIC EVIDENCE IN.
MS. TREFZ: I BELIEVE THAT THIS DOCTOR IS GOING TO TESTIFY AS WELL, THAT IS MY UNDERSTANDING, AND, YOU KNOW, WE WOULD OBVIOUSLY HAVE A PROBLEM IF HE WAS NOT GOING TO TESTIFY AS WELL. SO SOME OF THIS INFORMATION I'M HAPPY TO GET IN THROUGH THE DOCTOR, BUT WHAT I DON'T WANT TO BE THE CASE IS TO BE PRECLUDED FROM CROSS-EXAMINING EITHER HER OR THE DOCTOR ON KIND OF WHAT THEY SAID AT THE TIME IF IT'S INCONSISTENT WITH WHAT WAS SAID NOW. AND THAT'S -- I WAS TRYING TO EXPLORE THAT SO WE DON'T HAVE TO CALL SOMEBODY BACK IN ORDER TO DO THAT. I FULLY TAKE THE POINT THAT THE QUESTION WAS BROADER. I'M HAPPY TO NARROW IT SPECIFICALLY. I DO THINK I CAN TRY TO COME AT IT ANOTHER WAY, AND MAYBE WE'LL GET THERE IN A WAY THAT DOESN'T CAUSE MR. -- WHATEVER -- THE CONCERN THAT MR. BOSTIC HAS TO COME TO FRUITION.
BUT I DO BELIEVE THAT WE SHOULD BE ABLE TO EXPLORE THE UNDERSTANDING OF THE DOCTOR AT THE TIME AND WHETHER THAT WAS COMMUNICATED TO THE PATIENT AT THE TIME BECAUSE WE'RE NOW MANY YEARS LATER, OF COURSE, AND WE'RE IN A TRIAL, AND, YOU KNOW, THERE'S A LOT OF ATTENTION ON WHETHER A RESULT IS ACCURATE OR NOT IN A DIFFERENT KIND OF SETTING. BUT WE DO HAVE EVIDENCE FROM THE TIME PERIOD THAT, YOU KNOW, THAT AT LEAST THE DOCTOR DID NOT BELIEVE THAT THIS WAS A POSITIVE, OR DID NOT BELIEVE THAT THIS PATIENT HAD A POSITIVE -- WAS HIV POSITIVE AND THAT THE DOCTOR, YOU KNOW, INDICATED ON THE -- OR INDICATED THAT THE REPORT ITSELF WAS PERHAPS CONFUSING. BUT THE REPORT ITSELF SAYS AT THE END IN THE PART THAT MR. BOSTIC IDENTIFIED ON DIRECT, IT SAYS, YOU KNOW, THERE'S NO EVIDENCE OF HIV, THERE'S NO LABORATORY EVIDENCE OF HIV INFECTION. AND WE BELIEVE THAT THE -- THAT PART OF THE CONFUSION HERE COMES FROM HOW THIS INFORMATION WAS PRESENTED IN THE LAB REPORT AND IS LESS ABOUT KIND OF THE OVERALL ACCURACY OF THE TEST. THIS WAS RUN ON AN FDA APPROVED DEVICE, AND AN FDA APPROVED METHOD. SO I THINK THERE ARE A NUMBER OF DIFFERENT ISSUES THAT POTENTIALLY COME INTO THIS PARTICULAR PATIENT, AND I WOULD -- AND THIS PARTICULAR RESULT, AND I WOULD LIKE JUST THE LEEWAY TO EXPLORE THE KIND OF UNDERSTANDING OF WHAT THIS TEST RESULT MEANT AND WHAT WAS COMMUNICATED AT THE TIME.
JUDGE DAVILA: WELL, SHE TESTIFIED WHAT IT MEANT TO HER WAS THAT SHE HAD HIV. AND IF YOU'RE GOING TO GET INTO SCIENTIFIC EVIDENCE OF THIS AS TO WHAT THE DOCTOR'S OPINION IS, IT MIGHT BE BETTER TO WAIT FOR HIM OR HER TO TESTIFY ABOUT WHAT HE TOLD HER. SHE CAN TESTIFY ABOUT -- WITH THAT LIMITED SCOPE OF, DID YOU TALK TO YOUR DOCTOR ABOUT THIS TEST AND WHAT WAS THE DISCUSSION ABOUT THE TEST? I THINK THAT'S WHAT MR. BOSTIC IS REFERRING TO.
MS. TREFZ: AND I'M HAPPY TO LIMIT MY, MY QUESTIONING WITH HER TO THE TEST ITSELF. BUT I DO THINK IT'S RELEVANT FOR THE JURY TO HEAR, NOW THAT THEY'VE HEARD THAT SHE THOUGHT IT MEANT THAT IT WAS -- THAT SHE -- THAT IT MEANT THAT SHE MIGHT HAVE BEEN HIV POSITIVE, TO HEAR THAT SHE WAS TOLD BASICALLY IMMEDIATELY THAT, IN FACT, THAT'S NOT WHAT THE DOCTOR BELIEVED.
MR. BOSTIC: SO, YOUR HONOR, I DON'T THINK SHE TESTIFIED TO THAT. I DON'T REMEMBER HER SAYING THAT SHE BELIEVED THAT SHE WAS HIV POSITIVE. AND WHEN IT COMES TO THE ACCURACY OF THE TEST, THIS IS AN HIV ANTIBODY TEST. THE THERANOS TEST DOES INCLUDE THE LANGUAGE THAT I HIGHLIGHTED FOR THAT PURPOSE BECAUSE I DIDN'T WANT THERE TO BE ANY CONFUSION ABOUT WHETHER THIS -- WHETHER THERANOS WAS TELLING HER THAT SHE HAD THE VIRUS ITSELF PRESENT IN HER BLOODSTREAM. THE TEST THAT CAME BACK POSITIVE WAS AN HIV ANTIBODY TEST, AND THAT'S WHY IT'S RELEVANT THAT SHE HAD NEVER BEEN DIAGNOSED WITH THE ILLNESS, SHE'D NEVER HAD SYMPTOMS, SHE'D NEVER BEEN TREATED. THOSE FACTS SHOULD PRECLUDE HIV ANTIBODIES FROM BEING PRESENT IN HER BLOODSTREAM, AND THE FACT THAT SHE HAS TESTED SUBSEQUENTLY NEGATIVE FOR THOSE SAME ANTIBODIES, THAT'S THE EVIDENCE THAT THE THERANOS PROVIDED TEST WAS INACCURATE. TO THE EXTENT THAT HER DOCTOR HAD CONCERNS ABOUT THE ACCURACY OF THE TEST AT THE TIME, THAT IS INADMISSIBLE HEARSAY.
THAT'S WHY I DIDN'T ASK ABOUT IT. I WOULD NOT TRY TO GET IN THAT DOCTOR'S OPINION OF THE ACCURACY OF THE RESULTS THROUGH THIS WITNESS. I JUST WANT TO BE CLEAR THAT WE ARE NOT CERTAIN AS OF THIS POINT WHETHER THE DOCTOR WILL, IN FACT, TESTIFY. WE'RE, AS THE COURT KNOWS, WE'RE SEEKING TO STREAMLINE THE CASE AS MUCH AS WE CAN. IN LIGHT OF DELAYS TODAY, WE WERE THANKFUL TO GET MS. TOMPKINS'S DIRECT DONE. DR. ASIN HAS COMMITMENTS LATER IN THE WEEK THAT MIGHT MAKE HIM UNAVAILABLE, AND AS I SAID, WE'RE CONSTANTLY EVALUATING OUR WITNESS LIST TO DETERMINE WHICH WITNESSES ARE TRULY NECESSARY. SO I THINK THE CONVERSATION SHOULD BE CABINED TO WHAT IS ADMISSIBLE THROUGH THIS WITNESS, AND I STILL DON'T SEE A BASIS FOR GETTING IN OUT-OF-COURT STATEMENTS WHICH SOUNDS LIKE THEY WOULD BE COMING IN FOR THEIR TRUTH.
JUDGE DAVILA: IS IT, IS IT -- WHAT I UNDERSTAND THE DOCTOR -- WHEN SHE CALLED HER PHYSICIAN, HER PHYSICIAN EXPRESSED SURPRISE AT A TEST RESULT, THAT HOW COULD THAT BE? I DON'T KNOW HOW LONG THEY'VE HAD THEIR RELATIONSHIP, PHYSICIAN-PATIENT RELATIONSHIP. IT SOUNDS LIKE HE WOULD -- BASED ON HIS KNOWLEDGE OF HER HEALTH, THAT'S WHAT HIS EXPRESSION OF SURPRISE WAS. NOW, IT SOUNDS LIKE THAT, THROUGH HER CONVERSATION WITH THE DOCTOR ABOUT THEIR DISCUSSION ABOUT THAT, YOU SHOULD BE ABLE TO FLUSH THAT OUT, IT SOUNDS LIKE. AND IT SOUNDS LIKE MAYBE -- AND YOU HAVE THE 302'S -- DID THEY HAVE A DISCUSSION ABOUT ANTIBODY VERSUS HIV AND IS THAT -- WELL, IS THAT WHAT YOU'RE GOING TO EXPLORE?
MS. TREFZ: YEAH. ONE OF THE THINGS I'D LIKE TO EXPLORE IS HOW DETAILED THAT DISCUSSION WAS AND WHETHER THE MULTI-STEP PROCESS WAS EXPLAINED TO HER, ESPECIALLY IF WE'RE NOT GOING TO HAVE, IF WE MAY NOT HAVE THE DOCTOR, WHICH IS, FRANKLY, A SURPRISE TO US, AND WE WOULD WANT TO CONSIDER WHETHER WE NEED TO STRIKE THE TESTIMONY OF THE WITNESS AS PARTICULARLY PREJUDICIAL, BECAUSE JUST A TEST COMING IN, IT IS NOT PROOF OF INACCURACY FOR YOU TO GET A REACTIVE TEST ON AN INITIAL SCREEN AND THEN NOT GET REACTIVE TESTS LATER ON IN YOUR TESTING. THAT IS NOT PROOF OF INACCURACY, AND THERE WILL BE NO SCIENTIFIC TESTIMONY WITHOUT THIS DOCTOR ABOUT WHETHER IT IS PROOF OF INACCURACY. I MEAN, THE REPRESENTATION THAT MR. BOSTIC JUST MADE ABOUT HOW ALL OF THESE DIFFERENT QUESTIONS ABOUT, YOU KNOW, HAVE YOU EVER TESTED POSITIVE BEFORE AND DO YOU KNOW ANYTHING ABOUT WHETHER YOU WOULD HAVE A CONDITION THAT MIGHT LEAD TO THAT IS KIND OF, IT BECOMES ESPECIALLY PREJUDICIAL BECAUSE IT'S NOT CLEAR THAT SHE HAS THE FOUNDATION TO KNOW THAT WITHOUT THE DOCTOR EXPERT TESTIFYING. YOU KNOW, WITH ALL OF THE PATIENT --
JUDGE DAVILA: WELL, SHE'S SAID SHE'S NEVER TESTED FOR ANY OF THESE BEFORE, WHICH I SUPPOSE PRESUMES THAT SHE'S BEEN TESTED FOR OTHER THINGS BEFORE, BUT SHE'S NEVER HAD A TEST LIKE THIS. BUT YOU HAVE THE 302, AND THAT SHOULD --
MS. TREFZ: YES.
JUDGE DAVILA: -- REVEAL WHAT THE DISCUSSION WAS WITH THE DOCTOR.
MS. TREFZ: WELL, IT REVEALS AT LEAST WHAT THE GOVERNMENT ASKED AND WHAT WAS EXPLORED AND WHAT WAS ELICITED IN THE GOVERNMENT'S INTERVIEW FROM THE DOCTOR. I THINK I'M A LITTLE WORRIED THAT WE'RE TALKING PAST EACH OTHER A LITTLE BIT BECAUSE BASED ON THE 302, THAT'S WHY I WANT TO EXPLORE WITH THE WITNESS WHAT WAS DISCUSSED. BUT I WAS JUST HIGHLIGHTING A SEPARATE ISSUE THAT WAS IDENTIFIED IF DR. ASIN DOES NOT COME TO TESTIFY. THAT'S A PROBLEM FOR US BECAUSE, YOU KNOW, THERE'S A LOT OF -- WE HAVEN'T HAD A LOT OF TESTIMONY AT ALL ABOUT HIV TESTING IN THIS CASE, ASIDE FROM THE TESTIMONY THAT ON THE THERANOS TEST, THAT THERANOS RAN IT ON FDA APPROVED DEVICES, AND AN FDA APPROVED METHOD, AND WITHOUT SCIENTIFIC TESTIMONY ABOUT THE TEST AT ALL, I MEAN, IT WOULD BE HIGHLY PREJUDICIAL TO JUST HAVE A PATIENT SAY, "HERE'S A TEST RESULT, AND I GOT ANOTHER TEST RESULT LATER THAT DIDN'T MATCH THIS" WITHOUT A SCIENTIFIC FOUNDATION TO BE ABLE TO TELL THAT THOSE THINGS ACTUALLY ARE INCONSISTENT WITH EACH OTHER. YOU KNOW, THE TWO TESTS -- JUST TO BE CLEAR, THESE TWO TESTS THAT WERE PRESENTED JUST NOW ARE RUN ON DIFFERENT METHODS BASED ON MY RESEARCH. AND SO --
JUDGE DAVILA: WELL, MAYBE YOU SHOULD TESTIFY.
MS. TREFZ: YOUR HONOR, IF I COULD. I'M JUST FLAGGING THAT PARTICULAR ISSUE. I BELIEVE WE SHOULD BE ABLE TO GET INTO THIS QUESTION WITH THIS WITNESS, AND IF DR. ASIN DOESN'T TESTIFY, THEN, YOU KNOW, WE MAY HAVE A MOTION RELATED TO THIS WITNESS'S TESTIMONY.
MR. BOSTIC: SO, YOUR HONOR, CONFLICTING OR INCONSISTENT TEST RESULTS HAS BEEN COMPETENT EVIDENCE AS TO TEST ACCURACY THROUGHOUT THE CASE. I THINK THAT'S BEEN THE GOVERNMENT'S UNDERSTANDING AND THE COURT'S APPROACH IN MAKING ADMISSIBILITY DECISIONS. I DISAGREE THAT EXPERT TESTIMONY IS NECESSARY FOR THE JURY TO UNDERSTAND THAT A TEST THAT SAYS POSITIVE AT ONE TIME AND ANOTHER TEST THAT SAYS NEGATIVE AT ANOTHER TIME CANNOT BOTH BE CORRECT. ONE MUST BE INCORRECT. I THINK THAT IS PROBATIVE EVIDENCE OF THE INACCURACY OF THE THERANOS RESULT IN THE CONTEXT OF THE WITNESS'S TESTIMONY.
JUDGE DAVILA: WELL, IF THAT'S THE EVIDENCE, IT'S A JURY DECISION AS TO WHICH ONE THEY BELIEVE IS ACCURATE THEN, RIGHT? MAYBE THEY'LL DISBELIEVE THE CONTRA COSTA. ISN'T THAT WHAT YOU'RE ASKING ULTIMATELY THE JURY TO DO?
MS. TREFZ: I DON'T THINK THAT THAT'S FAIR TO ASK THEM TO DO. I ALSO DISAGREE THAT A TEST THAT -- YOU KNOW, THAT TWO TESTS RUN ON DIFFERENT METHODS CANNOT BOTH BE ACCURATE. THIS IS THE PROBLEM WITH NOT HAVING A DEEP SCIENTIFIC UNDERSTANDING IN A SCIENTIFIC CASE ABOUT KIND OF ALL OF THE TESTING ISSUES THAT ARE IN THE CASE. THAT'S WHY WE HAVE BEEN PRESSING FOR THE DOCTORS TO COME WITH THE PATIENTS. I BELIEVE WE LITIGATED ISSUES AROUND THIS PREVIOUSLY. THIS DOCTOR HAS ALWAYS BEEN ON THE LIST, SO THIS WAS NEVER A CONCERN OF OURS. BUT I DON'T THINK THAT TWO TESTS THAT ARE RUN POTENTIALLY ON DIFFERENT METHODS -- I BELIEVE THEY ARE, BUT THAT'S NOT EVIDENCE IN THE CASE -- BUT TWO TESTS THAT ARE RUN ON DIFFERENT METHODS IS INHERENTLY INCONSISTENT. AND I THINK IT WOULD BE HIGHLY MISLEADING TO ALLOW THAT TO BE THE EVIDENCE OF, OF INACCURACY IN THE CASE. SO ALL I'M SAYING, YOUR HONOR, IS THAT, YOU KNOW, WE STRONGLY BELIEVE THAT IF THERE'S GOING TO BE -- THAT IF A PATIENT IS GOING TO COME IN AND TESTIFY ABOUT THEIR INACCURATE, ALLEGEDLY INACCURATE TEST, THEN WE CERTAINLY SHOULD GET TO EXPLORE WITH THAT PATIENT ALL OF THE POTENTIAL SCIENTIFIC -- IF THERE'S NOT GOING TO BE A DOCTOR, WE SHOULD GET TO EXPLORE THE DEPTHS OF THAT PATIENT'S KNOWLEDGE AS TO WHAT THE TEST RESULTS MEAN, INCLUDING WHAT THE DOCTOR TOLD HER.
JUDGE DAVILA: WELL, I THINK THAT'S FAIR GAME. I THINK MR. BOSTIC SAID THAT NARROWING DOWN OF WHAT THEIR CONVERSATION WAS. I DON'T THINK HE HAS -- DID YOU SAY YOU DIDN'T HAVE ANY PROBLEM WITH THAT, MR. BOSTIC?
MR. BOSTIC: I'M SORRY TO BE DIFFICULT, YOUR HONOR. I STILL DON'T SEE THE RELEVANCE OF IT BECAUSE IT GOES TO -- THE TWO PURPOSES I CAN THINK OF ARE EITHER THE JURY NEEDS TO KNOW WHAT THIS DOCTOR BELIEVED OR CONCLUDED ABOUT THE TEST RESULTS, THAT'S HEARSAY. THAT'S AN OUT-OF-COURT STATEMENT COMING IN FOR ITS TRUTH. THAT'S NUMBER ONE. OR NUMBER TWO, THE JURY NEEDS TO KNOW HOW ALL OF THE INFORMATION AVAILABLE TO THE PATIENT AND HOW THE PATIENT FELT AND WHAT THE PATIENT'S UNDERSTANDING WAS, AND I DON'T THINK THAT'S RELEVANT EITHER IN A CASE WHERE THE COURT HAS RULED THAT PATIENT IMPACT AND EMOTIONAL DISTRESS AND THINGS LIKE THAT ARE NOT AT ISSUE AND WHERE THE GOVERNMENT DIDN'T DELVE INTO THAT ON DIRECT. SO I'M JUST NOT SEEING THE CONNECTION AS TO WHAT MATTER AT ISSUE THIS MAKES MORE OR LESS LIKELY UNDER 401.
JUDGE DAVILA: WELL, I COULD SEE IF -- AND MS. TREFZ WANTS TO EXPLORE THIS CONVERSATION WITH THE DOCTOR. YOU TALKED TO YOUR DOCTOR AND YOUR DOCTOR SAID, AND I THINK WHAT THE DOCTOR IS GOING TO SAY IS, HOW IS THAT POSSIBLE OR SOMETHING LIKE THAT, HE'S GOING TO EXPRESS HIS SURPRISE ABOUT THAT. AND HE'LL GET -- THAT'S WHAT YOU WANT TO ASK THIS WITNESS.
MS. TREFZ: AND THEN I WANT TO BE ABLE TO EXPLORE WHETHER SHE WAS TOLD ABOUT A PARTICULAR -- THE PARTICULAR, YOU KNOW, PARAMETERS OF THIS KIND OF TESTING, WHICH IS UNIQUE COMPARED TO OTHER TESTS THAT WE HAVE SEEN SO FAR IN THE CASE IN THAT THEY'RE YOU DO NOT DIAGNOSE SOMEBODY WITH HIV FROM THE, FROM THE -- JUST THE SCREENING TEST. IT IS, IT IS A WHOLE PROCESS.
JUDGE DAVILA: SO THAT -- I THINK THAT GOES -- CERTAINLY SHE CAN'T TESTIFY ABOUT THAT. THAT'S BEYOND HER EXPERTISE. YOU WOULD GET THAT THROUGH AS TO WHAT HER DOCTOR TOLD HER I PRESUME. IS THAT WHAT YOU'RE SAYING?
MS. TREFZ: YES, AND WE BELIEVE IT'S IMPORTANT, ESPECIALLY IF THE DOCTOR IS NOT GOING TO COME, WE NEED TO BE ABLE TO PROBE, WE NEED TO MEET THE ALLEGATIONS OF ACCURACY HERE WITH, YOU KNOW, MEANINGFUL ABILITY TO CROSS-EXAMINE AND -- BUT I BELIEVE THAT THAT'S PART OF IT.
JUDGE DAVILA: OKAY.
MR. BOSTIC: SO, YOUR HONOR, THE LACK OF A WITNESS WHO CAN TESTIFY COMPETENTLY TO A SUBJECT DOESN'T MAKE IT OKAY TO EXPLORE THAT SUBJECT WITH A WITNESS WHO IS NOT COMPETENT TO TESTIFY ABOUT IT AND WHO LACKS FOUNDATION.
JUDGE DAVILA: ALL RIGHT. OKAY. ALL RIGHT. THANK YOU.
COURT CLERK: COURT IS ADJOURNED.
(COURT ADJOURNED AT 3:52 P.M.)