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The Case of Harland Bassett

Spring Break at Donnell, Young, Dole & Frutt! The regular cast took the week off as Sunday's episode was devoted entirely to Harland Bassett, Esq. Harland is the pathetic, mistake-prone, Eyore-like lawyer who cannot get out of his own way. Up until earlier this season, he had lost every case that he had ever had. Somehow, he now finds himself representing a young girl who developed liver damage from using an antibiotic. Knowing he is in over his head, Harland again seeks help from Eugene Young who, after meeting the girl, agrees to assist Harland in the trial against Haydon Labs, the huge, deep-pocketed drug manufacturer.

The show wades hip-deep in Hallmark greeting card sentiment. The bumbling Harland is up against an attorney who is described as "one of the three best litigators in Boston." Little Annie Mullen is the little girl suffering from an impaired liver (she has had two transplants), and she is up against a multi-billion dollar drug manufacturer. It's set up just like Paul Newman's "The Verdict," only kinda different. Not surprisingly (see my prediction from last week), the result is the same. A humongous $5.6 million win for the plaintiff.

While I think that the strong emotional appeal is probably most satisfying to fans of The Practice, I was intrigued by the strategy behind the claim - a strategy that Harland could never have come up with on his own, and without Eugene's help.

Reflexon, the drug that caused Annie's liver damage, was approved by the FDA only as a drug for adults. It was not tested on children. The drug manufacturer included a warning, which clearly stated that Reflexon had not been tested on children and was not approved for their use. Why then, you might ask, should the drug manufacturer be liable for any harm caused by the misuse of its product - such as when a pediatrician prescribes it as part of the treatment on a child?

Harland's theory is that Haydon Labs knew that Reflexon could harm children and intentionally stuck its head in the sand by not testing it on them. The drug manufacturer therefore knew that if there was only a warning that the drug had not been tested on children - and no warning that the drug would harm children - then (since there were few alternatives) doctors would nevertheless prescribe it for children. Haydon Labs also sent representatives to pediatricians to tout the benefits of Reflexon. Thus, while being able to plausibly deny liability, the drug manufacturer could benefit from sales, whenever pediatricians prescribed Reflexon to children. Harland therefore contends that since Haydon Labs knew and intended for Reflexon to be used to treat children, the drug manufacture could not hide behind its "warning" that the drug was not approved for the treatment of children.

While this is a very clever argument, I strongly doubt that a real court would have allowed the case to go to a jury. Harland would have had to prove, first, that the drug manufacturer knew that the drug was being prescribed for children and, second, that the use of the drug by children was harmful to them. He gets a pass on the first element since the drug manufacturer admits that doctors are prescribing Reflexon for children. In a real case, I would not expect the drug manufacturer to admit such knowledge. I expect that the drug manufacturer would swear up and down that it was " shocked - shocked" to find out that Reflexon is being prescribed to children. The second element - that the drug manufacturer knows that Reflexon is harmful to children - is never proved. Harland does throw around six adverse drug reports (with his own further testimony that there are probably hundreds of unreported adverse reactions), but this is not enough legally. These six drug reports do not constitute affirmative knowledge that Reflexon is dangerous. Moreover, most drugs have some possible adverse reactions. When you pick up your prescription from the pharmacy, there is generally a long list of possible adverse reactions attached, and television advertisements of drugs nearly always include a laundry list of side affects. Also, there is no testimony, from a doctor or researcher, stating that the drug posed a particular danger to children. Without this evidence, it is unlikely that the case against the drug manufacturer would ever make it to a jury.

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The cross-examination of Annie deserves some mention. The "one of three best litigators in Boston" cross-examines Annie, and draws from her an admission that she had a sip of alcohol at a friend's sleepover. Annie also admits that she did not reveal this information her doctor. The exceptionally weak insinuation is that it was Annie's misuse of alcohol, rather than Reflexon, that caused her liver failure. Even a very bad lawyer would have known better than to ask Annie any questions on cross-examination and to get her off the stand as quickly as possible. The jury, like the television audience, feels very deeply for Annie, and anyone who attacks her, even in a benign way, risks the jury's wrath.

A real trial of the issues raised in this show would have taken weeks, not 44 minutes. So, it would be unfair for me to point out all the missing evidence that a real jury would have considered. And, I won't. While a real trial would have been longer, it would have been more sterile and stuffy as well. This week's episode was anything but.

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