Day 35 - November 18, 2021
The court limited Holmes-Parloff interview excerpts and addressed the scope of Tompkins's testimony. Burnes and Ellsworth traced sharply divergent PSA results, while Parloff testified about Holmes's representations concerning Theranos's test range, analyzers, military use, and pharmaceutical reports before facing questions about reporting ground rules and note reliability.
Full day summary
1. Roger Parloff Interview Designation Hearings and Rulings
Outside the jury's presence, the court ruled on Parloff interview excerpts and addressed subpoenaed medical records and the permitted scope of Erin Tompkins's testimony.
Highlights
Parloff Interview Designation Four Evidentiary Hearing and RulingrulingThe court allowed only the passage from page 17, line 22 through page 18, line 22 ending with “tests,” under Rule 106 and for a limited state-of-mind purpose related to intent; it excluded the remainder and otherwise sustained the objection.Parloff Interview Designation Four Evidentiary Hearing and Ruling“EVERYTHING ELSE, INCLUDING PAGE 19, AND EVERYTHING ELSE ON PAGE 18 WILL NOT BE PERMITTED. I DON'T THINK THAT'S CONTEXTUALLY RELEVANT FOR 106.”— Edward J. DavilaThe court sharply limited the excerpt admitted under the rule of completeness.
3. Mark Burnes — Direct/Cross/Redirect
Prosecution expert Mark Burnes addressed inconsistent Theranos PSA results, laboratory error, and the importance of confirming a concerning result before further intervention.
Highlights
Mark Burnes — Directtestimony highlightBurnes compared a May 14 result of 26.1 with a May 18 result of 1.71, described the first as markedly higher than Ellsworth's prior pattern, and testified that he contacted Theranos and requested another test.Mark Burnes — Directtestimony highlightAfter a third Theranos result of 22.8, Burnes requested a fourth test by a traditional method; the fourth result was 0.95, and later corrected reports voided the first and third results.Mark Burnes — Direct“I BELIEVE THAT TEST WAS INVALID.”— Mark BurnesBurnes gave his direct opinion on the accuracy of the May 14 Theranos result.Mark Burnes — Crossevidence eventUsing Exhibits 4415 and 4938, the defense placed a June 15 email after the June 11 visit date; Burnes then said he had no personal knowledge of what Holmes knew about the test results before that time.
5. Roger Parloff — Direct/Cross
Roger Parloff testified throughout the day about his Fortune profile of Holmes and Theranos, then faced cross-examination on confidentiality, sources, note-taking, and an unrecorded Siemens conversation. Two counsel-consultation breaks addressed privilege concerns before the day ended with matters outside the jury's presence.
Highlights
Roger Parloff — Directtestimony highlightAfter the Theranos presentation and a recorded interview were introduced, Parloff testified that Holmes repeatedly described a test range exceeding 200 tests and never told him before publication that the Theranos device's range was substantially narrower.Roger Parloff — Directevidence eventParloff identified a Pfizer-labeled validation report Holmes sent for his article and said she did not tell him that Theranos had generated the report's content or that its favorable conclusions were not Pfizer's conclusions.Roger Parloff — Directtestimony highlightParloff recounted asking Holmes directly whether Theranos kept Siemens analyzers for overflow or used them when its own platform could not perform a test; he understood her responses as denials and said his notes preserved the exchange.Roger Parloff — Directtestimony highlightParloff said Holmes first mentioned third-party analyzers to him in May 2015, describing their use as a new practice for rarely ordered or highly complex tests rather than disclosing broader earlier use.Roger Parloff — Direct“WELL, IT WAS, IT WAS REALLY ABOUT THE LEGISLATIVE STUFF.
BUT SHE, SHE DID BRING UP AS AN ASIDE THAT THERE WAS SOMETHING NEW THAT THEY HAD STARTED DOING THIS YEAR, MEANING 2015, AND THAT WAS THAT THEY HAD BEGUN USING THIRD PARTY MACHINES TO DO ESOTERIC TESTS, SHE CALLED THEM ESOTERIC TESTS.
AND SHE DEFINED ESOTERIC TESTS AS TESTS THAT WERE SELDOM ORDERED OR HIGHLY COMPLEX, AND THEY WOULD DO THOSE WITH A THIRD PARTY MACHINE AND BY VENIPUNCTURE BECAUSE -- IN ESSENCE TO OFFER ONE STOP SHOPPING SO THAT PEOPLE WOULD -- THEY WOULDN'T HAVE TO REFER THOSE OUT TO A SPECIALTY LAB.”— Roger ParloffParloff described the first disclosure he recalled receiving about Theranos's use of third-party machines and preserved Holmes's stated limitation of that use.Roger Parloff — Direct“I ASKED, HOW MANY TESTS COULD YOU DO ON YOUR PROPRIETARY DEVICE AS OF DECEMBER 2014, WHICH WAS THE DATE REFERENCED IN "THE WALL STREET JOURNAL" ARTICLE. THEY HAD A NUMBER IN THERE.
AND SHE RESPONDED 50, 60, MAYBE 70. WE CAN GET YOU THAT NUMBER.”— Roger ParloffParloff recalled receiving a materially lower capability figure after earlier discussions of hundreds or more tests.Roger Parloff — Crosstestimony highlightParloff explained that "off the record" could have different meanings depending on context, but agreed that material designated off the record during the 2014 interviews was not to be used in the Fortune article.Roger Parloff — Cross ResumedconfrontationThe defense challenged the reliability of Parloff's unrecorded May 2014 Siemens conversation by emphasizing his leading questions, Holmes's brief verbal responses, and the absence of both a recording and the original handwritten notes. The court allowed Parloff to explain why he framed the questions that way.Roger Parloff — Cross Resumed“YES, BUT ONLY BECAUSE I, I DIDN'T WANT TO -- I THOUGHT IT WAS ALREADY OBVIOUS AND I DIDN'T WANT TO OFFEND HER.
I WOULD SAY, LOOK, YOU'RE NOT SAYING THIS, ARE YOU? I JUST WANT TO BE CLEAR.”— Roger ParloffParloff acknowledged using leading questions in the Siemens conversation while explaining that he intended to confirm what he believed was already apparent.