All language subtitles for the_practice_s05e20_the_case_of_harl_and_basset

Previously on The Practice.

I got a lewd and lascivious schedule for
trial this morning, but Judge Hilla,

she's ordered me to get co -counsel.

Why? Something about how I never want a
trial. Bobby, it's bad for us to even be

associated with Harlan Bassett. He's a
nice guy. Yeah, and the world's worst

attorney. I do not want to be in court
with that man.

If I have you guys on board as co
-counsel, I know I could chip the

up. Every time I sign up with you, I end
up getting embarrassed.

That's not going to happen this time.

What's this case and what's our
involvement? Product liability against a

company that injured a little girl,
Harlan. This guy ponies you up every

told him I'd join him for a settlement
conference. That's all it will be.

Gentlemen, come right in.

That's John Raverson. You know him? The
man is one of the top three civil

litigators in Boston.

Our client has directed us not to
settle. We just beat the EPA for over

million on injuries that weren't even as
bad.

They beat the EPA, Mr. Bassett. Now,
while I salute your last -minute

in signing them up for shock value, we
know who opposing counsel really is.

Eugene, this is Christine and Annie
Mullen, our clients.

Hello. That drug did this to her?

Every bit of it.

Six months ago, she was completely
healthy.

Annie, you up for a fight?

Yes. You tough enough to take on the
drug company?

I'll be as tough as I need to be.

The big hurdle is causation, proving the
drug caused Annie's liver failure.

And do we have to prove it beyond a
reasonable doubt?

No. Well, that's the criminal standard.

The burden here is the preponderance of
the evidence.

Where is Harlan?

He should be right in.

Mr. and Mrs. Mullen, we don't think
we'll win.

Our goal here, if we can do well enough,
that we might win.

Then we should be able to settle because
Hayden Laboratories can't risk losing.

Does that make sense?

Yeah, I think so.

Let me check on Harland.

Harland, the Mullins are waiting.

Could you take the meeting, Eugene?

Take the meeting? It's a pre -trial.
They want to talk to you. I'm just...

What's wrong?

I'm having a little anxiety.

It's nothing. Had it before, it goes
away.

What goes away? What exactly are you
feeling?

My breathing gets a little hard.

Just need a few minutes.

So, should I tell them to wait?

No.

I'm okay.

Herman?

Okay.

Can't get there.

I want to do one more test, but from
everything I can see, it was just an

anxiety attack. Your heart looks fine.
Thank God.

We can keep you overnight, or you can
leave. No, I gotta leave. I'm in trial

six hours.

Harland, I think we can get a
continuance. I wouldn't be so sure,

judge said the last one was final.

But this is medical. You had a near
heart attack.

That's the problem.

Could I have a second?

Absolutely. I'll check back.

I sort of faked a heart attack.

What do you mean you sort of faked a
heart attack?

He wasn't going to give me any more
time, so I grabbed my chest and I said I

to go to my doctor.

He says if this happens again, then
somebody else is going to have to try it

because the case is going forward no
matter what.

You're the only one who can try this
case. We don't know it well enough.

Which is why I ought to be checking out
tonight.

Hand me my pants, would you?

So you're going forward?

He says he's ready.

Exhibits? They've been delivered to the
courthouse.

Do you guys have any chance? That is an
encouragement, Eleanor. The first chance

you get to settle.

Don't worry.

Are we ready?

We're ready.

All right.

Annie Mullen came to me with a sinus
infection.

I first treated it with another
antibiotic.

When that didn't work, I prescribed
Reflexin.

Reflexin. This is also an antibiotic?

That's correct.

And what happened?

After taking the drug, she almost
immediately went into acute liver

ultimately resulting in two transplants.

In your medical opinion, ma 'am, did
Reflexin cause this liver failure?

I cannot state it to a medical
certainty.

But I can think of no cause other than
the reflexin.

Objection. Doctor, did you know that
reflexin was dangerous?

Objection. No foundation.

Sustained.

What were your expectations regarding
the safety of this antibiotic, Doctor?

I was aware that it hadn't been tested
on children. But neither are about 80 %

of the drugs on the market today.

Obviously, I didn't consider it to be
dangerous.

If I did, I wouldn't have prescribed it.

But this is an adult drug.

Yes, but we have to prescribe adult
drugs to children because the

companies test so few of them on kids.

And to your knowledge, do many
pediatricians prescribe adult drugs to

We all do, routinely.

Doctor, would you tell the court how you
first learned about reflexin? The same

way I hear about all new drugs.

The company sends out a rep. He's called
a detail person to promote the product.

Did this detail person say anything
about the safety of Reflexum? He

it to me as very safe.

Did he warn you about giving it to kids?

No, he did not.

Doctor, you were sued by the Mullins and
you settled out of court, did you not?

On the advice of my lawyer, I settled
the claim, yes.

Now, as part of that settlement
agreement, you agreed to assist the

pursuing her claims against other
parties.

Yes. But I only agreed to tell the
truth, which is what I've done here.

The literature that you received from my
client's detailed person included

all labeling information, did it not,
Doctor?

Yes. And I show you a copy of that
information now marked and identified as

Exhibit A. Could you read the
highlighted section?

Not proven safe and effective for
children under 16 years of age.

And yet you prescribed it to a 13 -year
-old girl?

It's done all the time.

Thank you, Doctor.

Mr. Bassett, redirect.

Can you think of anything else?

No. You got what you can from her.

And you don't want to get Raverson
another whack across.

Right.

Tell the judge you have nothing further.

Nothing further from this witness, Your
Honor.

Looking at the biopsy on her liver, I
concluded to a reasonable degree of

medical certainty that drug toxicity was
the cause for the failure.

Do you know which drug caused this
toxicity?

It had to be the reflexin.

Two weeks after she took it, she needed
an emergency transplant.

She had no medical history that made her
susceptible, and I found no other

factors that would have contributed to
the failure.

Okay, doctor.

Can you tell us why the reflexin would
have caused her liver to fail?

All drugs are metabolized through either
the liver or the kidneys, and sometimes

the drug can simply overwhelm the liver.

Can it attack children in particular?

Children are especially vulnerable.

They have immature livers.

And for a number of reasons, they cannot
be treated simply as small adults.

That's why this drug should have been
tested on children.

Was it?

No.

Are you aware of any research or data
that suggests reflexin causes liver

failure? Hayden's own data indicated
abnormal levels of liver activity.

That's from their own study. Now, in
this data that you refer to, what

of the participants had an elevated
liver function?

I believe it was 2%. 2 %?

Are there other drugs on the market that
cause similar levels of elevated liver

activity? Yes.

A few? Many?

Many. Do you know how many people would
die if we took them off the market?

Objection. Speculative.

Sustained. Doctor, you spoke about
children being especially vulnerable.

Isn't it true that children's livers are
typically more resilient than adults?

Typically, yes, but not always.

Thank you, Doctor.

It was a good start.

Solid. It was?

It seemed like the doctors admitted they
weren't sure.

Well, we knew they'd have to.

That's what we talked about last night.
Proof is tough.

But Harlan did a good job.

Why is he breathing into that bag?

It works.

I do it all the time. You get more
oxygen that way.

So, what's next?

Annie's next.

You ready, Annie?

You're going to have to be brave up
there.

I'm ready.

You're going to do great.

While she's testifying, I do not want
you to move.

Not at all.

Not at all.

She's our case, Harlan.

Now, if they're going to budge on
settling Annie's testimony, we'll have

it. We need every juror's eyes on her.

Okay.

We're almost there, aren't we?

We haven't even finished putting in our
case.

After that, they put on a defense.

Right.

Let's go.

I threw up a lot, but I thought it was a
stomach flu.

Then I was on the bus to school, and I
passed out.

What happened?

They said my liver stopped working, and
I needed another one.

And then?

Then I got really sick for a few weeks.

My eyes and skin turned yellow, and I
lost all this weight.

Then they found a new liver.

So you got a transplant?

Yeah.

But it didn't work.

Tell us how it didn't work.

My body started to reject the
replacement liver.

I got really sick.

It took a long time to fight another
one.

Longer than the first one?

Yes.

I wasn't as high on the list anymore
because they thought that my body would

reject the next liver too.

Is everything going to be okay now?

I don't know.

My body's still having some problems.

They have me on these anti -rejection
pills that I have to take every day for

the rest of my life.

That makes me more likely to get stuff
like infections and cancer.

Annie, what if you need a third
transplant?

I probably wouldn't get it.

I'm too far down the list.

Thank you, Annie.

I'm very sorry about your illness.

Annie, I know that everybody in this
room wishes you a complete recovery.

Thank you.

I'm going to just ask you a few
questions. If at any time you want to

break, I'm sure we can do that.

Okay?

Okay.

When the doctors were diagnosing you,
Did they

ask whether you had taken any other
drugs or taken too many pain relievers?

I think so.

Yeah. Do you remember what your answer
was?

I told them that I hadn't, except for
the other antibiotics.

Okay. You know, they were asking about
other possible reasons your liver

Yes.

You also told them you hadn't drunk
alcohol, right?

Yeah. Now, Annie.

Remember a sleepover at your friend
Robin Cohen's house a few weeks before

fell ill?

I think so.

If we brought Robin here and asked
whether you and the other girls drank

her father's liquor cabinet, what would
you say?

I hardly had anything.

So you had some.

Yes.

You didn't tell that to the doctors,
though, did you?

No.

Are there any other things you didn't
tell the doctors?

No.

Okay.

Prior to your taking Reflexin, you'd
taken other antibiotics, right?

Yes. And you'd had a flu a few weeks
before this?

Yes. Did you take any cough medicine?

Yes. Pain relievers?

Yes.

Okay, Annie. That's actually all I have.

And again, let me extend my wishes that
you have a complete and healthy

recovery.

Thank you.

Annie, how much alcohol have you had in
your life?

I've had like two sips of vodka.

That's it.

I hated it.

And did you tell the truth to the
doctors for all the other questions they

you? Yes.

Thank you, Annie.

Eugene's going to dinner with the
defense lawyer.

They've now seen our case.

If we're going to get an offer, this
would be the time.

It's a good sign that he's willing to
have dinner, right?

We hope.

I'm sorry.

Sorry?

Why, sweetheart?

For not telling you about that
sleepover?

And the alcohol?

Hey, you did great up there.

That was just a cheap trick. It'll
backfire. You watch.

The doctor said, John, toxicity to the
liver causes failure. He ruled out

everything but reflexin.

I thought I crossed him, okay?

But the bottom line is, it's in the
record.

Plus, we have a very sympathetic little
girl.

You're preaching to the choir.

I've been trying to convince Hayden to
offer something.

Trust me, I don't like going up against
little girls.

So what gives?

I think they're angry.

Your client?

The pediatrician dropped the ball here,
Eugene. I'm not saying doctors don't

prescribe off -label. I know they do.

But she should have at least monitored
the girl.

Now, for her to settle out with a
promise to testify against the drug

She's not the first doctor to do that.

Exactly. Which is why they're so angry.

Give me something.

Come on, admit it.

Harlan Bassett has done better than you
thought.

If it were up to me.

But it isn't.

Okay.

We'll just keep going.

Their first witness is the hepatologist.

Dr. Peter Kendall.

Reflexin is not the most likely cause of
Miss Mullen's liver damage.

Can you be sure of that, Dr. Cameron?

Viral infections are the most common
cause of liver failure in children.

This girl was coming off a stomach flu,
and that's probably the very infection

that led to her liver injury.

Can you state this to a medical
certainty, Doctor? Not a certainty.

You have to understand that the cause of
most cases of liver failure in children

is unknown.

So in a majority of cases...

There's no cause found.

That's correct, but here we know she had
a viral infection, which we can isolate

as the most likely culprit.

Doctor, isn't it true that the vast
majority of stomach flus do not cause

failure? Neither do most drugs.

But the speed at which Annie's liver
failed is more consistent with drug

toxicity, isn't it? In general, yes.

You can't rule out reflexin as cause of
Annie's injuries, can you?

Well, the question is not... You can't
rule it out, can you?

No.

And, Doctor, how many times have you
testified for drug companies?

I can't be sure.

More than 50? Yes.

More than 100?

Probably. And in all these appearances,
have you ever testified for a plaintiff?

No, I haven't.

I'll take him to the witness room.

Am I crazy? Or is Harlan... He was good
just then.

He was.

Eugene, we've put in our case, we just
had their first witness, and we're in

this. Nobody's laughing in there.

Yeah, but now come their big guns.

I know.

But nobody's laughing.

For a drug to be approved in the United
States, it needs to go through an

incredible testing process.

When you say incredible, I mean hundreds
of millions of dollars.

First comes testing on a cellular level,
then animals.

The last step is clinical trials on
humans.

Then what?

Then the company turns over its clinical
data to the FDA medical officers.

They review the data. Then they convene
an advisory panel of outside independent

specialists who give an opinion, which
the FDA may or may not follow.

What does it mean to have approval from
the FDA?

It's the gold standard.

Meaning? The United States has the
safest, most rigorous pharmaceutical

process in the world. Many, many drugs
are available overseas that are

prohibited here for safety reasons.

In fact, a number of states limit the
liability of drug manufacturers from

if their product is FDA approved.

Objection. Sustained.

Jury will disregard.

From your review of the data.

Did Hayden Laboratories comply with
testing requirements for Reflexin?

Absolutely. Thank you, Doctor.

In the last four years, 11 different
drugs have been pulled off the market

the FDA approved them. Isn't that
correct?

Yes. Direct.

Painkiller linked to liver failure? That
was one of them.

Objection. This trial's about reflexin.
They opened the door, Your Honor. This

witness testified that the FDA's
approval was the gold standard.

Objection overruled. Elotronex,
irritable bowel syndrome, suspected

five deaths.

Yes. Propulsed, heartburn, suspected in
over 300 deaths.

Yes. Seldane, Resolute, the list goes
on. All approved by the FDA, all pulled

because of safety concerns. The fact
that these drugs were withdrawn shows

the system works, that the FDA
investigators are doing their job.

Think the 20 million Americans who took
those drugs believe the system works?

Objection. Sustained. The fact that the
FDA approved Reflexin doesn't establish

it's safe, does it, Doctor?

There are never any guarantees.

I am extremely proud of Reflexin. It
kills bacterial infections that can lead

pneumonia and meningitis.

It saves lives every single day.

Are you satisfied, sir, that it's safe?

Absolutely. When used as directed.

Now, here it was not used as directed.
It is not intended for children.

Now, I don't believe that reflexin
caused Annie Mullen's injuries.

Nevertheless, it should never have been
prescribed.

That's why our label is clear. Not
proven safe for children under 16.

What else can we do?

We cannot be held responsible for every
doctor who ignores our warnings.

Thank you, Mr. Yates.

Eugene.

Can you take this one?

What?

Look, Harland, I don't think we should
let what that witness just said hang

the jury.

The sooner we defuse it, the better.

The FDA advisory committee that approved
your drug was comprised of 12 doctors,

correct? Yes. And seven of them had
financial ties to your company, didn't

We fund research, Mr.

Bassett. I mean, if that qualifies as
financial ties, then technically you may

be correct.

Fact is, the drug industry is the major
source of funding.

For doctors who study the safety and
efficacy of drugs, isn't that right, Mr.

Yates? I believe so. And if a doctor's
studies don't come out like you want,

he's not going to get a grant next time
around for his research, is he?

That's not true. As part of their
compensation, you offer these doctors

options in Hayden Labs, don't you?

Sometimes. You make it in their
financial interest to make favorable

These are doctors that you're talking
about.

They are going to do what's right.

They're doctors.

They're going to do what's right.

Objection. Argumentative.

Sustained. What's the average review
time for FDA approval?

A little over a year.

How long did the FDA review the
application for reflexin? We were

expedited review.

How long?

Six months.

Do you think the FDA might have caught
the problems with reflexin if they took

the normal review time?

There were no problems to catch.

Really?

No problems to catch.

What is an adverse drug report?

It's a form filled out by a doctor when
a patient suffers an unexpected reaction

that might, and I stress might, be
related to a prescription drug. I'm

six adverse drug reports, which list
reflexin as primary suspect in liver

damage. Four involve children.

You are talking six reports.

Out of two million prescriptions.

But doctors aren't required to file
these reports, are they, Mr. Yates? Some

experts estimate six reports translates
to 600 actual complications.

I disagree.

You are aware that doctors are
prescribing Reflexin to kids, aren't

can do is to make the appropriate
warning.

We can't control what doctors do. Yes or
no?

You know doctors are prescribing it to
kids.

Yes. Hayden Labs made $265 million on
Reflexin last year, didn't they?

Objection. Overruled.

$265 million.

How much of that came from off -label
use by children?

Some. Some.

Children are good business, aren't they,
Mr. Yates?

Objection.

Overruled. You don't test children
because you don't want to know what

find. That is untrue. Why do you only
test adults when you know your drug is

going to kids?

We limited our research and market to
adults because the product is intended

adults. Again, we cannot control what
the doctors do.

But when doctors prescribe Reflexin to
kids, you don't issue a stronger

You don't do anything about it. You just
take the money.

Objection! Sustained.

Truthfully, you have researched
children, haven't you?

This is your research.

Six isolated cases is not data, Mr.
Baffet.

How about seven?

You did great.

We did great.

So now what?

Closing arguments.

A good close, and we have a chance. I
haven't written it yet. You'll do it

tonight.

Can we get together?

We'll be right out.

Here comes the offer.

Oh, my God. What? All right, listen.

We need to pick a number.

I need to go out there with a number.

600. They won't pay 600.

Two. Harlan, you don't have to cave that
much. How do you go from six to two?

I'm confused.

Look, liability is still shaky. Last
night, the number was zero. Right now, I

think 400 ,000 is possible.

225. That was a half a million dollar
cross if I ever heard one.

225 was as high as he authorized me. I'm
not playing poker here.

I could convince him to throw in your
fees. You took it on a contingency.

another 60 or so.

Let's say goodbye to this at three.

Four. And we'll sign off.

Can't do it, Eugene. Three's the number.

No.

Okay.

We get to do this one more day.

We just turned down $300 ,000.

Lucy?

Guys.

Guys. What time is it? 7 .30.

How late were you up?

We just laid down to take a break at 4
or so. Do we have any coffee?

I'll make some.

I need new clothes.

I can't close in this. You got plenty of
time. It's early.

What are you doing?

Nine. Okay, so you don't have plenty of
time.

I gotta go home and change.

I'll meet you guys there.

They offered three.

And you turned it down?

I know we can get another hundred if he
closes well.

Or it could go back to zero.

Have you ever heard Harlan Bassett
close?

It isn't pretty.

He's different this trial, Bobby.

He's in some kind of zone.

In a zone?

When have you ever, ever known him not
to screw things up?

If you give him enough time.

We all know to warn our kids about the
kind of drugs you buy on the street

corner.

We know to steer them away from shady
dealers and back alleys.

But what we don't know is that they are
twice as likely to die from the drugs in

our own medicine cabinets.

James and Christine Mullen told their
daughter to take her medicine because it

would make her feel better.

Look at her.

A simple antibiotic.

Two weeks later, she lost her liver and
her opportunity for a normal life.

The defense would have you believe that
her doctor bears all responsibility, but

this ignores one critical fact.

Hayden Labs knew that once reflexin was
approved for adults,

it would make its way to children.

Eighty percent of the drugs on the
market today are not adequately tested

kids.

Eighty percent.

And it's common practice for doctors to
prescribe these medications to children.

Now, knowing this, what does Hayden Labs
do?

They slip in the most innocuous warning
they can, while at the same time

marketing the drug to pediatricians.

But saying not proven safe or effective
is not the same

as warning it could be dangerous.

And they knew it.

It's hard to wage a battle against a big
pharmaceutical company.

This is a $100 billion industry.

I'm sorry, Your Honor. I'm loath to
object during a closing.

But this is neither relevant... It is
relevant.

The revenues they generate are relevant
to the extent that they control

research. I'll give you a short leash,
Mr. Bassett.

But keep it about the case.

The drug companies.

They fund the research.

They pay many doctors who are in charge
of testing whether a drug is safe. And

some drugs get to the market that are
unsafe.

In the last four years alone, 20 million
Americans took drugs that were pulled

off the market because of safety
reasons.

20 million.

And I submit.

that when reflexin is finally tested on
kids, it too will probably be pulled.

But Hayden Labs, they're not going to
test it, ladies and gentlemen. Not if

can help it.

The problem with test results is you're
stuck with them.

And they don't want any test proving
what Annie Mullen already knows, that

drug can cause liver failure.

It caused hers.

They don't care, ladies and gentlemen.
They don't give a damn. And the FDA?

They rely on clinical and advisory
panels that are bankrolled by these

In the end, it's not about safety.

It's not about compassion.

It's not about little girls like Annie.

It's about money.

That's all they understand.

Go back to that jury room and return
with a number that'll make them

That was very impassioned.

However, cases are decided on fact and
merit, not passion.

Fact. The cause of most liver failure in
children is unknown.

Fact. It's much more likely that Ms.
Mullen's stomach flu caused her liver

failure than any drug she took.

Fact. The FDA reviewed Reflexin.

and found it to be safe and effective
when used as directed.

Fact, the FDA still approves Reflexin.

Fact, we warn doctors not to use it on
children under 16.

Fact, Ms. Mullen's doctor read that
warning and still prescribed it.

Mr. Bassett would have you believe that
the evil pharmaceutical companies are

out there killing people for profit.

Reflexin.

is in the family of antibiotics that
have saved millions of lives.

All right, yes.

The drug companies fund research. Does
this mean that the findings are bought?

Absolutely not, and there is no evidence
to suggest otherwise.

They pay for this research to get it
done, to be able to discover life

medicines. We all live longer, more
enriched lives because of those

Reflexin is one such.

Life -saving medication.

Now, do we know some doctors might
possibly prescribe it to children?

Yes.

So we clearly warn them.

Not proven safe for children.

You know, what else can we do?

What else can we do?

No matter what happens, Harlan.

You tried a great case.

I still wish I could have done more with
the medicals.

There isn't more.

It's not like the truth is out there
somewhere.

I don't know how I'm ever going to be
able to repay you.

Me?

I just bet there. Yeah, right.

400. Hang on.

I need a second with co -counsel.

I don't know how to advise you.

I can't say we're going to win, but if
we win, they should be more than full.

What does your gut tell you?

Only that I gotta throw up.

No matter what, we gotta run it by the
client.

If they're offering four, you think
they'd go higher?

Oh, this lawyer doesn't really play that
way. He just puts it out.

Now, that's not to say we couldn't chip
it up some, but... Harland, six months

ago, we put ourselves in your hands.

Let's go to verdict.

Harlan. They never thought we'd get this
far, Eugene.

Let's go to verdict.

Let me see if I can get it up to six.
No.

Let's go to verdict.

You understand, Mr. Mullin, that this...
I understand that Harlan took us here.

I'm going to follow his instinct.

Jerry's back.

Who's Jerry?

Jury.

The jury's back.

Let's go.

And Eugene, I'm sure.

Okay.

600 ,000.

No.

Can you get a read?

No.

Mr. Foreman, have you reached a verdict?

We have, Your Honor.

What say you?

In the matter of Ann Mullen v.

Hayden Laboratories, we find in favor of
the plaintiff, Ann Mullen.

And we order the defendant to pay
compensatory damages in the amount of $5

million.

The defendant moves for a judgment
notwithstanding the verdict.

The evidence never established
causation, and no reasonable jury could

it did.

In the alternative, we're entitled to a
new trial.

Denied.

Members of the jury, this concludes your
service. Your judgment is so entered,

and you are dismissed with thanks from
the court.

How about that?

Yeah.

You look like you're about to cry.

Yeah.

And if you tell anybody, I'll kill you.