Substantially Similar--A Blog on IP Issues, Writing and Film

I have long felt that medical breakthroughs that have occurred over the past two decades--such as the mapping of the human genome that has led to better understanding of and treatment of diseases or how medical research stopped AIDS from being a death sentence--would be good sources for movies.  

But that hasn’t been happening. The problem has been that in the 1930s and 1940s the scientist/medical researcher was a movie hero, But post-World War II he/she has been a movie villain. A major film was released a few years ago with a medical research premise, but one particular thing about it appeared to harm attendance. I pitched my editor in a previous position on the topic of medical research in the movies, but that didn't happen either.

Maybe such films are on somebody's development list. If not, perhaps a flmmaker or someone with money to fund films will consider this type of movie. The stories described above and others actually happened, and millions are already experiencing their effects.

A few years ago, I interviewed the head of the Biotechnology Innovation Organization, and he told me he had been trying to interest filmmakers in medical research stories. He said younger people he had talked to had been excited about crime scene investigation television series, and he didn’t understand why they wouldn’t be interested in stories of curing diseases and helping people live longer.

Hollywood studios used to make movies about such things. The Story of Louis Pasteur (Warners, 1936) was based on the life of the French microbiologist known for his discoveries of the principles of vaccination, instrument sterilization,microbial fermentation, and pasteurization. It won Academy Awards for best actor (Paul Muni) and best story and screenplay. The 1938 M-G-M film Yellow Jack was based on the "Walter Reed Boards" of 1898 to 1900 in which Major Walter Reed of the U.S. Army worked to diagnose and treat human fever in Cuba by performing tests on volunteers. Other films followed, including Dr. Ehrich's Magic Bullet (Warners 1940), which traced a German doctor's discovery of a cure for syphilis, and The Great Moment (Paramount 1944), which described the discovery of ether as a general discovery of ether as a general anesthesia.  

These movies were part of a series of historical films portraying inventors like Thomas Edison and Alexander Graham Bell and scientists like Madame Curie as creative heroes striving to better human life.  Concurrently, there was a series of science fiction/horror films about men and women who were also trying to find cures for cancer, to expand the life span, and even bring back the dead. But these scientists went too far, committed crimes, went mad, and were destroyed. The 1936 Universal film The Invisible Ray contains a line that ultimately became a trope for these movies: “There are some secrets we are not meant to probe.”  

Films about medical science took a back seat in the early 1940s to movies meant to boost optimism about the war effort. After the war, filmmakers’ view took a darker turn that mirrored the mood of the many who had lost loved ones in the conflict and those who had seen the horrors of war that ended with death camps and the detonations of two atomic bombs. Not only were there film noirs about criminal behavior but movies that mirrored the mad scientist films of the 1930s. Japanese filmmakers envisioned that the atomic bombs that hit Japan as having unintentionally engendered the gigantic monster Godzilla. American filmmakers responded with Them! (Warners 1954), which involved giant radiated ants and Tarantula (Universal 1955) in which a scientist’s experiments to produce a super-nutrient to enlarge the food stock went wildly astray.

There was a sense that science had indeed gone too far, that it was out of control, and that it was no longer our savior. The 1956 20^th Century Fox film Bigger Than Life told a story inspired by a true incident of a seriously ill schoolteacher’s dependence on the “miracle” drug cortisone that drives him mad. Mayo Clinic researchers had won the Noble Prize for Medicine in 1950 for the development of cortisone for the treatment of severe pain. If the film had been made in the 1930s as an A-movie, the researchers would have been portrayed as heroes. Instead, Bigger than Life focused on the drug’s side effects.

A logical extension of this trend was fueled by the growth of biopharmaceutical companies as really big businesses and accusations of actions such as the suppression of negative clinical results of experimental drugs because they would keep the drugs off the market and harm the company’s bottom line. The Constant Gardener (2005), based on the novel by John Le Carre, told the fictional story of a man who learns that his wife was murdered for trying to release negative clinical trial results. The film won the best actress Academy Award (Rachel Weisz). In a related vein, there have been several fact-derived movies—Lorenzo’s Oil (Universal 1992) and Extraordinary Measures (CBS Films 2010) --in which parents go off on their own to find treatments or cures for their children’s diseases because biopharma companies won’t or can’t.

During the last 10 years, filmmakers finally made two positive fact-derived medical research movies. One, Living Proof (2008), was made for the cable tv network Lifetime and was based on the heroic 10-year efforts of Dr. Dennis Slamon to get the Food and Drug Administration to approve the breast cancer drug Herceptin, which, in combination with chemotherapy, increased survival rates. The movie accurately depicted the long process of drug approval and related the stories of three patients.  But the movie’s viewership of 2.8 million was a quarter of that of even a mediocre movie, which would itself then be shown on cable.

The second, Concussion (Universal 2015) was released to theatres and looked like it had everything going for it. It combined football and medical research and was based on the successful efforts of Dr. Bennet Omalu, a forensic pathologist who fought against the National Football League allegedly trying to suppress his research that indicated professional football players were suffering from chronic traumatic encephalopathy (CTE) brain degeneration. The medical researcher is the hero. It’s an earnest if slow-moving and overlong film. But it tanked at the box office. It cost $35 million to produce and reportedly an equal amount to market and earned $48 million worldwide despite extensive promotion due to the timeliness of its topic. The conclusion of some was that football fans just didn’t want to see a movie that depicts the tackling and slamming they love as harmful. It was perhaps the right approach for the wrong topic. This effect is reminiscent of the failure of the 1976 film Two-Minute Warning about a sniper’s plan to kill people at random while they are watching the Super Bowl, which turned out to be a nightmare that football fans didn’t want to pay to see.

The medical scientist as hero approach may have worked in the 1930s because it was in keeping with the nation’s optimism as it emerged from the Great Depression. The films were also telling the broadest stories of medical innovation—vaccination, yellow fever, syphilis—that were easily understood, the low-hanging fruit so to speak. Stories about finding the appropriate chemical formulation are likely to encounter the same problem as movies about songwriters and novelists—they are basically about the highly undramatic process of people thinking. 

But saying that is like deciding not to make a movie about the sinking of the Titanic because everyone knows how it ends. There are obstacles that filmmakers need to surmount. But the stories are important and need to be told if filmmakers can figure out how to tell them. Drugs that failed to cure a cancer have been repurposed to cure other illnesses. Genomic mapping has enabled the discovery of new treatments for some cancers, diabetes and obesity as well as a better understanding of how and why a disease strikes. Isn't that as exciting as crime scene investigations? 

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Perry Mason, the noble, nigh-powered but fictional attorney, has been ridiculed by real-life lawyers since the television series based on Erle Stanley Gardner’s novels premiered in 1957. And yet, 60 years later, the 271 episodes can be seen as often as four times a day in some markets, like in the Washington, D.C. area where I live.

Over the past four years, my telecommuting work situation has allowed me to see most, if not all, of these episodes. Those scoffing attorneys were right, in a way. There are unrealistic aspects to Perry Mason. Each episode ends with Mason either getting a confession on the stand from the real murderer or unmasking the guilty party out of court. 

I remember when the show was first broadcast a noted attorney was asked in a tv interview what he thought about it. “During voir dire [the attorneys’ in-court screening of prospective jurors], I’ll ask if the individual thinks the defendants committed the crime, and he’ll say, ‘If he didn’t do it, who did?’ And I’ll say, ‘That’s not my job. My job is to establish that the prosecution hasn’t proved guilt beyond a reasonable doubt.’” Real criminal trials may end with the defendant found not guilty and no indication that someone else was guilty—look at the 1994 acquittal of O.J. Simpson of the murder of his wife. The usual complaint of the show from practicing attorneys was that it portrayed an attorney as part private eye. In real life, if an attorney behaved like Mason he would have been so involved in the investigation that he would always be called as a witness—and in the show Mason sometimes is. Police officers complained that in the show the police always arrested an innocent person.

There are other major variances in the show from actual legal procedure. And yet, when Raymond Burr, the actor who played Perry Mason, died in 1993, the president of the American Bar Association paid tribute to his portrayal of Mason as a strong advocate of defendants who are facing insurmountable odds in establishing their innocence. Other tributes noted that the show reinforced the presumption of innocence for the viewing audience. Gardner’s character reestablished the attorney-as-hero approach that Mark Twain put forward in his 1884 novel Pudden’head Wilson. As a result of Perry Mason, tv audiences became more familiar with the idea of the judicial process and found more respect for defense attorneys. And, for his part, Burr pushed the makers of the show for as much authenticity as a 60-minute dramatization would allow and was a regular speaker at ABA and other legal association meetings. A good many famous attorneys, including Supreme Court Justice Sonia Sotomayor, have gone on record saying that Perry Mason was the spark igniting their interest in the law.

The show also evolved over its nine-year run. In the first season, Mason was very involved in the detective work, wore loud jackets, flirted with women, played fast and loose with the truth before the court, was frequently threatened with disbarment, and had a wisecracking personality. In one instance,the prosecutor, Hamilton Burger, congratulates him for winning the case and apologizes for things, he said during trial. Mason invites him for lunch and then tells the waitress Burger will have a heaping helping of crow. Over the years and as Burr aged and gained weight, Mason became more of a quoter of statues and precedents from memory, a strong upholder of the law and is shown as a speaker at bar associations meetings that Burr became. Early shows have Mason and Burger arguing before a jury, but later shows, mostly, have them arguing before a judge in a preliminary hearing, with Mason presenting a more elaborate defense than most real-life attorneys could in a preliminary hearing. As the show’s run continued and it became a staple of the CBS lineup, its budget was increased and later show had more location shooting and some fairly sophisticated cinematography. But, in another unrealistic aspect, Mason ended as it began, with Mason working alone—he didn’t have other attorneys on his staff (except for one young lawyer for a few episodes), just a private detective on retainer and one confidential secretary.

As a whole, the Perry Mason episodes are compact, well-engineered mysteries that are solved in the courtroom. As a mystery writer, I am occasionally asked if I can figure out who the murder is. The answer is sometimes. Some of the epidoes, like the 1963 "The Case of the Deadly Verdict," a rare episode in which Mason loses the case but solves the murder out of court in a spooky, dark mansion, are really remarkable. Others, like in "The Case of the Missing Third Act" from 1959, while well acted and intriguing, have plots in which the murderer could be anybody, with motives quickly supplied at the end without foundation.  The writers, after all, were writing 30 episodes a year and sometimes fudged. That's why it's only sometimes.

The attorney-as-hero approach continued in later lawyer shows. Matlock, which ran from 1986 to 1994, followed the Mason format except that his cases went to jury trial and, while he exposed the real murderer on the stand, the jury still entered a verdict rather than, as in Mason, with the prosecution immediately withdrawing the charges after the in-court confession. Other lawyer shows, such as Law and Order, L.A. Law, and The Good Wife, have been called more realistic in that the attorney heroes sometimes lose their cases and defendants are sometimes guilty. These shows may adhere more strictly to legal procedure, but all of them have a preference for plotting that is provocatively fantastic. The last two may be called unrealistic for their non-trial scenes, unless attorneys having sex with clients or paralegals on the conference room table is common behavior in law firms.

Most post-Mason lawyer shows are not mysteries. You may ask, what is wrong with that? Nothing, really. Law and Order is a superior television show that has been on the air longer than Perry Mason. It is not strictly a lawyer show, being focusing first on police detectives and then on prosecutors. Sometimes the criminal goes free. Perry Mason fits the traditional mold of episodic television in that there is a resolution within the 60 minutes and that resolution is a satisfactory one--the guilty are punished. 

Perry Mason is not so much unrealistic as idealistic. Except for three episodes, Perry Mason always wins. When a woman asked Burr how that could be so, he answered that she only saw the cases he tried on Sunday nights. When asked why Burger always lost, the actor William Talman, who bravely played Burger for 225 of the 271 shows, said, "Burger doesn't lose. How can a district attorney lose when he fails to convict an innocent person?" It's a formulaic show, to be sure. But its longevity and the effect even the ABA said it had and still has on the image of attorneys is not to be ridiculed.

At one point, Mason says, "[An attorney] takes his clients as they come. They're in trouble, so he can't always expect them to tell the truth. [He's] a fool if he completely trusts any client, but that's besides the point. His job is to believe and to help them as best he can. The only time he's really a fool is when he sticks by a client who won't trust him." Still inspirational advice.

Copyright 2018 by John T. Aquino

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I've written a book (Truth and Lives on Film: Legal Issues in Depicting Real Persons and Events in a Fictional Medium) and articles about films based on fact. There are legal issues involved, such as defamation, false light invasion of privacy, and violation of the right of publicity. Then there are larger issues, such as misleading audiences about historical events.

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As I look back on the past decades, I reflect on a series of shocks about truth and trust that occurred. On June 20, 2018, like so many others, I was shocked at the news that Cardinal Theodore McCarrick, who was the Archbishop of Washington, D.C. from 2001 to 2006, was removed from the ministry as a result of an allegation of sexual abuse against a teenager 50 years ago when he served the Archdiocese of New York.. 

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Max Scherzer, the Washington Nationals pitcher, is the finest I have ever seen, and I've been privileged to watch Whitey Ford, Don Drysdale, Sandy Koufax, Roger Clemens and Andy Pettitte. But Scherzer, at the moment, evokes the image of the Greek mythic figure Prometheus, a Titan who was bound to a rock by Zeus, the king of the gods, for giving man fire.

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