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 Holmes’ Trial Update #16 

Michael Santos

Michael Santos

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 PFIZER DID NOT ENDORSE THERANOS (HOLMES TRIAL UPDATE #16)

Pfizer did not endorse Theranos’ blood-testing technology, but Elizabeth Holmes claimed it did by using a fake report.

INTRODUCTION

Prosecutors called a witness to show the jury that Elizabeth Holmes, founder and CEO of Theranos, sent Walgreens a doctored report to lure them into investing in her company. Holmes made Walgreens believe that a pharmaceutical giant had endorsed and validated Theranos’ blood testing technology. Nothing was further from the truth.

DISCUSSION

In a federal court in California, Holmes is on trial on 12 counts of wire fraud and conspiracy to commit wire fraud. She faces up to 20 years in prison and $3 million in fines if convicted.

Shane Weber was the Pfizer scientist who evaluated Theranos’ technology back in 2008. In the end, Weber wrote a report recommending that Pfizer avoid any partnership with Theranos and not pour any resources into the company.

Pfizer’s Evaluation of Holmes & Theranos

In December 2006, Pfizer and Theranos entered into a contract so that Pfizer could evaluate Theranos’ technology and determine whether it could help Pfizer’s drug-development efforts. A partnership with Theranos would have solved specific pain points for Pfizer, as Pfizer was searching for tools to facilitate patient intake for clinical trials. 

Pfizer tasked Weber with investigating a Theranos-prepared oncology study in which Theranos claimed that its technology showed “superior performance” and had “excellent” accuracy. The report also claimed that Theranos’ own technology performed well when compared to “commercially available gold standards.”

But Weber could not substantiate the claims about Theranos’ superior technology with hard evidence, and he did not find the scientific claims in the Theranos oncology study credible. Specifically, Weber concluded that “the nine conclusions in their summary document are not believable based on the information provided.” 

Weber based his determination was on a review of the Theranos study, patent filings and information, a one-hour teleconference call with Theranos, and written follow-up questions he sent to the company. Overall, Weber said he found Holmes “deflective” and provided “evasive non-informative answers” to his due diligence questions on the conference call.

After concluding that Pfizer should not engage with Theranos, Weber told Holmes that Pfizer had decided not to work with Theranos. He stated at trial that Holmes pushed back, asking him if there were other people at Pfizer that she could approach to appeal this decision. About Holmes’ pushing back, Weber wrote to colleagues: “Theranos has been excessively pushy in accessing new points of contact once turned down by an existing point of contact.”

Weber took such a harsh view of Theranos based on the report’s content and Holmes’ behavior when asked to answer basic due diligence questions. It is fair to say that Weber concluded that Theranos lacked transparency and did not share relevant information. He also concluded that Holmes was evasive, pushy, and unconvincing and failed to answer technical questions directly.

A Fake Report

Prosecutors showed Weber the Theranos oncology study that Weber had evaluated and criticized back in 2008. Except that this was a new version. This new version displayed a Pfizer logo on the cover page, as if to suggest that Pfizer had prepared or sponsored it. 

In 2010, Holmes attached this version of the report (with the Pfizer logo) to an email she sent to Walgreens to convince Walgreens to use Theranos’ technology in Walgreens stores. The email subject line said: “Pfizer Theranos System Validation Final Report.” The clear implication of the email and attachment was that Pfizer had somehow given its stamp of approval to Theranos. 

When prosecutors asked Weber whether it was fair to conclude that Pfizer endorsed Theranos’ technology or “comprehensively validated” Theranos’ technology, Weber responded categorically: “No. In fact, Pfizer came to “the opposite conclusion.”

Weber noted that Theranos never had permission to use the Pfizer logo and that he would have been disappointed if he had learned that Theranos was passing off its own conclusions as those of Pfizer. 

Investors’ Lack of Due Diligence

The Holmes trial puts front and center the question of why Elizabeth Holmes should be held guilty of defrauding companies who had an obligation to their shareholders to perform their own due diligence. Companies like Walgreens, and other sophisticated investors, are supposed to know better, the argument goes.

Did Walgreens, who received the fake Pfizer report as an email attachment from Holmes in 2010, ever attempt to corroborate the report with Pfizer? 

Although an email from Walgreens to Pfizer, including the supposed validation report, surfaced at the trial, Weber said he never received an inquiry from Walgreens. Had Walgreens taken serious steps to confirm whether Pfizer validated Theranos’ technology, it may have saved itself hundreds of millions of dollars and more. At most, Walgreens sent an email and never followed up.

Investors’ lack of due diligence and venture capital enablers do not present a technical legal defense for Holmes, and they are not issues that jurors are supposed to consider. Still, one could imagine a juror thinking like biotech consultant Chirag Asaravala, who wrote in the San Francisco Chronicle:

“It has been astonishing to see witness after witness for the prosecution claim they were misled regarding the data and performance of the technology…Each and every investor and partner had ample opportunity to perform their due diligence, prior to and at any point along their investment — yet it appears they willfully ignored this responsibility.”

Pfizer did its due diligence and decided not to invest in Theranos.

CONCLUSION

In their opening statements, prosecutors told the jury that Theranos touted Pfizer as among the pharmaceutical companies that had vouched for Theranos’ technology. But this was not true, and Pfizer had rejected the Theranos technology. Undaunted, Holmes just slapped Pfizer’s logo on a report and claimed to investors that Pfizer had actually validated it.

The testimony of scientist Shane Weber shows that Pfizer decided not to move forward with any business deals with Theranos precisely because it could not validate Theranos’ technology to any degree of satisfaction. Moreover, Weber’s testimony establishes that he communicated Pfizer’s decision directly to Elizabeth Holmes. 

So when Holmes sent Walgreens a supposed Pfizer report vouching for Theranos’ technology, Holmes had to know in no uncertain terms that she was misleading Walgreens. Pfizer never endorsed Theranos’ technology nor gave Theranos permission to use its logo for any reason. 

Walgreens could have saved itself hundreds of millions, and many headaches had it followed up with Pfizer about its experience with Theranos. Holmes’ team claims Walgreens, as a sophisticated business and investor, knew what it was getting into and could not have been defrauded by Holmes. This argument from the defense completely ignores Holmes’ own misleading actions. Investor lack of due diligence is not a defense to fraud. 

Brick by brick, witness after witness, prosecutors continue to build their case against Holmes, showing the jury the multitude of false and misleading statements directly attributable to her. 

Follow the Prison Professors blog for regular updates on the Elizabeth Holmes criminal fraud trial. Prison Professors, an Earning Freedom company, regularly publishes content to educate people on the criminal justice system.

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