Lawyers for Theranos founder Elizabeth Holmes and its president, Ramesh “Sunny” Balwani, on Tuesday asked a federal appeals court to overturn the couple’s convictions for misleading investors in the collapse of the blood-testing startup that was once valued at $9 billion.
Holmes’ lawyer, Amy Saharia, told a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco that Holmes believed she was telling the truth when she told investors that Theranos’s miniature blood-testing devices could accurately perform a wide range of medical diagnostic tests on small amounts of blood.
Holmes, who founded Theranos as a college student and became its public face, was indicted alongside her ex-boyfriend, Balwani, in 2018. The pair were tried separately in 2022 and sentenced later that year to 11 years and three months and 12 years and 11 months in prison, respectively.
Saharia said the judge improperly allowed former Theranos employee Kingshuk Das to testify as a scientific expert on Theranos products without allowing him to be cross-examined about his qualifications.
She also said the judge should have allowed Holmes to present more evidence attacking another key witness for the prosecution, Theranos’ former lab director Adam Rosendorf, including details of the government’s investigation into Rosendorf’s work after he left Theranos, which she said cast doubt on his competence.
Those mistakes could have been the difference between victory and defeat in the “close” trial, in which the jury was unable to reach a verdict on most of the charges against Holmes after seven days of deliberations.
Assistant US Attorney Kelly Volcker, the government’s lawyer, countered that Das improperly testified as an expert, saying he was only called to talk about his personal experience at Theranos, and that “it was not in fact in dispute that the device did not work.”
The justices posed skeptical questions to both sides and left the outlook for the ruling unclear. Circuit Judge Ryan Nelson said that even without the testimony at issue, “it seemed to me that the evidence was pretty overwhelming.”
Circuit Judges Jacqueline Nguyen and Mary Schroeder said much of Das’ testimony concerned his observations at the company and not scientific opinions, as Saharia maintained.
But both Nguyen and Nelson told Volcker they had concerns about what opinions Das would be allowed to express during the trial.
Balwani’s lawyer, Jeffrey Coopersmith, argued that prosecutors had gone beyond the indictment against his client by presenting evidence that the commercial testing technology secretly used by Theranos was unreliable.
The justices expressed more skepticism about the argument but again did not clearly indicate how they would rule.
