Elizabeth Holmes, Founder and Former CEO of Theranos, arrives for a motion hearing on Monday, November 4, 2019 at U.S. District Court inside the Robert F. Peckham Federal Building in San Jose, California.
Yichuan Cao | NurPhoto | Getty Images
The mystery of what happened to the critical evidence proving Theranos’ blood test technology didn’t work deepened when Elizabeth Holmes blamed the government for what she calls an “investigative failure.”
In a Tuesday night filing, Holmes’ lawyers hit back at prosecutors on a motion to exclude evidence of so-called test results, claiming they were responsible for the loss of a database called the Information System Laboratory (LIS), which contained three years of accuracy and failure rates of Theranos tests.
“Rather than accept responsibility for this failed investigation and the resulting evidentiary gaps in its case, the government chose a different path,” Holmes lawyers write, adding that “the government has implied that the loss of the LIS data reflects on Ms. Holmes’ supposed guilt even though it had nothing to do with it. “
“The reason the government does not have this evidence is that prosecutors sat idly by for years before attempting to acquire it, then sat down again after acquiring it. They are entirely up to it. blame it, “Holmes lawyers write.
“The reason the government has built its case on this tottering wallet of irrelevant evidence is that it has lost – or, worse, refused to analyze the pre-charge – the actual evidence of the test results. in this case, “argued Holmes’ lawyers.
However, prosecutors allege that Theranos executives destroyed the LIS system which proved his blood test was inaccurate.
In a filing last month, the government said that three months after a federal grand jury issued a subpoena for a copy of the database in August 2018, “the LIS has been destroyed.” They wrote that “ the government never received the complete records contained in the LIS, nor the tools, which were available in the database, to search for evidence as critical as all Theranos blood tests with errors of validation. The data is gone. “
Prosecutors say the failure rate in one of these tests was 51.3%, adding that the Theranos test results “were so inaccurate, it was essentially a toss that the patient got the correct result. . The data was devastating. ” They want to call on 11 patients and 11 physicians to testify about the accuracy and reliability issues.
Holmes says there is a certain amount of error expected in all lab tests, “just as the fact of a heart attack doesn’t prove what caused the heart attack, so does an incorrect blood test. does not prove what caused the error. “
Prosecutors point to internal emails they say prove Theranos and his attorney attempted to conceal the test results from the grand jury database. Theranos provided backup copies of the database that investigators were able to reconstruct. However, prosecutors allege that the backup required a password that Theranos executives could not remember.
Theranos was once a Silicon Valley darling, attracting the who’s who of venture capitalists and a private valuation of $ 9 billion before closing in 2018.
Holmes and his co-defendant Ramesh “Sunny” Balwani each face a dozen criminal fraud charges in connection with investors, patients and deceptive doctors about Theranos technology.
Holmes will face prosecutors next month over evidence she believes should not go to a jury to decide her fate.
The judge’s rulings will set the stage for her long-awaited trial, which is due to start in July.
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