The pre-trial jockeying for position heading into the Elizabeth Holmes trial is continuing, with Holmes' lawyers trying to get a witness thrown out just days before the trial starts.
Former lab director for Theranos, Kingshuk Das, is set to testify in Holmes' upcoming trial and apparently could cause enough of an uproar for Holmes that her lawyers think his "testimony threatens to upend the proceeding," according to Bloomberg.
At least that's what Holmes' lawyers argued this week to try and have him removed. They told the judge he was added too late to the prosecution’s list of witnesses and that the defense was unaware that he would be giving expert testimony until late last month. The defense said they haven't had enough time to prepare for the witness.
But U.S. District Judge Edward Davila said he's going to allow the testimony, which he called “something we’re going to have to police as the witness testifies” to make sure he doesn't get into topics that are too complex.
“My concern is if we wait and defer on this we’re not going to draw the lines the way we think is appropriate,” Holmes' lawyers argued. He said Das “is creating the serious risk of a continuance down the road," according to the report.
Bloomberg described Das as "one of the few high-level scientists positioned to explain to jurors how aware Holmes was of problems with the machines even as she continued to promote them".
Das “concluded the Edison devices did not perform well, and the accuracy and precision did not meet the level needed for clinical testing,” upon reviewing Theranos' data while working there. “Even using a fairly low bar, none of the Edison tests passed an acceptable level,” he told the government.
Recall, earlier this summer, we noted that patients victimized by Theranos had spoken out. Prosecutors intend to call 11 patients and roughly the same number of medical providers to testify about their experience being defrauded by Theranos. These witnesses and their testimony will be the "wild card" as everything will depend on how the jury perceives their testimony.
Most of their stories haven't been previously reported, we noted.
One witness, nurse practitioner JoEllen Embry, took her problems with the tests directly to Theranos after her patients received several terrifying false positivies. She said she recalls "screaming" at Holmes, only to be brushed off by the executive (who probably used her fake deep speaking voice, making the encounter even more surreal).
Ms. Embry, a large Theranos customer, recalled screaming at Mr. Holmes in a call, demanding an explanation for the inaccurate tests, the court records say. Mr. Holmes told her the Theranos machines were “calibrated for finger stick” blood draws, she recalled, to which she responded: “My patients never had finger stick draws,” but rather had blood drawn from their arms. She said Mr. Holmes replied: “We’ll figure this out.”
Unfortunately for Holmes, text messages obtained by prosecutors show Holmes knew about the deficiencies, yet kept offering the tests. In one message to her co-defendant, Ramesh "Sunny" Balwani, Holmes said she was "praying" the Theranos lab passed a federal inspection.