Elizabeth Holmes Threatens to Delay Trial If Lab Chief Testifies

Of all the high profile witnesses set for Elizabeth Holmes’s criminal trial, Dr. Kingshuk Das isn’t exactly a key player in the collapse of Theranos Inc. But he poses enough of a risk for her defense that she’s asking a judge to block his testimony or else delay the start of her trial.

Das, a former lab director at Theranos, said he told Holmes, who founded the company and was its chief executive officer, that its blood-testing machines were deficient and not reliable, court filings show. He’s 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.

Elizabeth Holmes Threatens to Delay Trial If Lab Chief Testifies

But on Friday, lawyers for Holmes were set to argue in court that Das was added too late to the prosecution’s list of witnesses for a trial that starts in 11 days. The defense said in court filings it wasn’t aware until late last month that the government might rely on his expert opinions about assays, or tests. That didn’t allow enough time to prepare a response at trial, her attorneys said.

“It is unfair to Ms. Holmes to require her to develop a response to new expert opinions on new assays on the eve of trial,” Holmes’s lawyers said in a court filing. If the judge doesn’t rule in Holmes’s favor, they said she “will be forced to move for a continuance to attempt to mitigate the prejudice resulting from this untimely disclosure.”

The government has argued that Das is providing testimony about facts and events in the case, not expert opinion.

Jury selection is scheduled to begin in a San Jose, California, federal court on Aug. 31.

Holmes is charged with lying to doctors, patients and investors about the accuracy and capabilities of blood-testing machines made by Theranos. The company was once valued at $9 billion, but crashed and was dissolved after exposes and regulators revealed myriad problems with the tests. 

Possible witnesses at the trial include former Secretary of State Henry Kissinger, former Secretary of Defense James Mattis and Holmes herself. 

According to court filings, Das said he was hired in 2015 and told by Holmes his job would include responding to findings in an audit of the company’s Edison blood-testing machine by the Centers for Medicare & Medicaid Services. Das said he was told the CMS audit had uncovered “a few irregularities,” but that specific details weren’t discussed, according to a court filing. 

In his own review of Theranos data, Das “concluded the Edison devices did not perform well, and the accuracy and precision did not meet the level needed for clinical testing,” court records show. Das told the government that “even using a fairly low bar, none of the Edison tests passed an acceptable level,” and that CMS inspectors were “100% correct with their deficiency findings.”

He was laid off at Theranos in 2018, the year the company ceased operations.

The case is U.S. v. Holmes, 18-cr-00258, U.S. District Court, Northern District of California (San Jose).

©2021 Bloomberg L.P.

BQ Install

Bloomberg Quint

Add BloombergQuint App to Home screen.