U.S. District Judge Edward Davila of the Northern District of California watches from the audience as the Charney Hall of Law is dedicated Oct. 12, 2018. Photo: Jason Doiy/ALM

The federal judge overseeing the criminal fraud case against Theranos founder Elizabeth Holmes and the blood-testing company's former COO and president, Ramesh Balwani, largely turned back a trio of motions to dismiss the case their defense lawyers filed late last year.

In an order handed down Tuesday evening, U.S. District Judge Edward Davila of the Northern District of California, however, did narrow the government's case by finding that prosecutors would not be able to show that doctors or insured patients were victims of fraud since they weren't directly paying for Theranos' allegedly inconsistent test.

"The contrast between doctors and patients is plain; the [superseding indictment] alleges patients paid while doctors referred," Davila wrote. As to the insured patients, the judge wrote that they "would have paid their premiums regardless of Theranos' blood tests." 

A spokesman for the U.S. Attorney's Office for the Northern District of California, which is prosecuting the case, said the office has no comment on the pending litigation.

Davila's ruling largely leaves in place claims that the pair misled investors and patients and that they knew Theranos' blood analyzer could not deliver on the public promises they were making to provide "fast, inexpensive, accurate, and reliable" tests.

Holmes' lawyers at Williams & Connolly asked Davila to dismiss the indictment in court papers filed late last year, claiming that prosecutors failed to allege a single fraudulent statement or misrepresentation made about the now-defunct blood-testing company. The motions, which were joined by Balwani's lawyers at Orrick, Herrington & Sutcliffe, also sought to force the government to provide more detailed information about how it intended to prove the defendants misled investors and customers about the company's blood-testing capacities, its partnership with the Walgreens pharmacy chain, or any need Theranos might have for regulatory approval.

Davila on Tuesday did, in part, grant the defense request related to forcing prosecutors to hand over further details about specific misrepresentations in the advertisements and marketing materials that allegedly misled patients and doctors. However, he held that since defendants made "inflated representations" about Theranos' success and profitability, the government raised viable claims that they needed to tell the "whole truth" about things such as the company's stalling partnership with Walgreens.

"Likewise, by representing their tests as 'accurate' and 'reliable,' defendants had a duty to disclose to doctors and patients that their tests 'consistently' produced wrong results," Davila wrote. "Defendants argument that the Government is 'transforming' the duty to correct asserted half-truths into an independent duty to disclose is thus misplaced."

Orrick's Jeffrey Coopersmith said via email that he had no comment on the ruling. Williams & Connolly's Amy Saharia, who handled the majority of the defense arguments at a Monday hearing on the motions, didn't respond to a message seeking comment.

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