LOUISVILLE, Ky. (WDRB) -- When famed civil attorney Larry Franklin died nearly two years ago, he left behind cases he was actively working on – including multiple transcripts of phone calls in an ongoing wrongful death lawsuit a family filed against Baptist Healthcare and other medical providers.
The contents of the 40 transcribed pages threaten to tarnish not only Franklin’s significant legacy, but that of the attorney who took over the civil case, another Kentucky legal legend: Ann Oldfather, selected by her peers as one of the best lawyers in America.
At issue is Oldfather’s use of allegedly secretly recorded phone calls between Franklin and a good family friend who also was a medical expert working for Baptist, the hospital his clients were suing. In the calls, the late attorney asked his friend, Dr. Bruce Ferrara, for inside details of the defense’s case.
The medical malpractice case centered on a newborn boy’s death in 2016. The transcripts contained Ferrara’s conclusions about the infant’s death that Oldfather allegedly used in crafting her case and shaping her questioning of witnesses, including Ferrara himself.
Franklin’s actions violate standard attorney-client privilege rules; lawyers aren’t permitted to speak with witnesses from an opposing party in private.
“She has concealed wrongful conduct,” Baptist attorney David Thompson said of Oldfather in a July court hearing. “It violates civil rules. It violates ethical rules. And they know it.”
For her part, Oldfather has said in court that the transcripts have given her no upper hand and called the allegations a desperation move by the hospital because it is clear malpractice led to the death of the infant.
“They see we now know what happened to this little boy,” she said during the July hearing. “This is all a ploy your honor. … I don’t know any civil rule I violated, none. What did I violate?”
But some of the violations have been substantiated by the judge in the case in Jefferson Circuit Court. Baptist and the other defendants have asked to dismiss the lawsuit, or at least remove Oldfather from the case.
Franklin knew, Thompson said, from his first phone call to Ferrara in July 2017 that Baptist had already retained his friend for the case. And an attorney from the hospital had told Franklin that they would be using Ferrara as an expert.
“So, what I want is, even if (an attorney for the hospital) has retained you, I’d still like to know the honest inside story,” Franklin said in one of the transcribed phone calls, according to court records.
In another, Franklin asked Ferrara to look over evidence in the case and share his opinion.
“But officially, you are not sending me this,” Ferrara told Franklin. The two were good friends whose families vacationed together.
“I understand, not at all,” Franklin responded.
Franklin and Oldfather are well-known in Kentucky, widely considered among the top litigators of their generation.
Franklin won more than 20 civil cases for $1 million or more in damages, including the state's largest medical malpractice verdict, $27.6 million. That verdict was against Baptist Hospital East for mistakes resulting in severe brain damage to a newborn.
Like Franklin, Oldfather has handled and won some of the biggest civil cases in the state, including more than $34 million in back pay for Louisville firefighters.
At one point, Oldfather was named by her peers as the state’s second best trial lawyer, behind only Franklin, according to a Courier-Journal story from 2007. Oldfather was a law clerk for Franklin before starting her own practice.
Both have also been elected to the Inner Circle of Advocates, an elite group of the nation's top 100 plaintiff's lawyers.
But the two have been heavily criticized in this case, and the judge has already found that Franklin violated civil rules and improperly obtained attorney-client privileged information and then Oldfather improperly used that information.
Ferrara was retained by the hospital a year before the phone calls, and had told Franklin he didn’t have a good case against Baptist.
“There is no defense to that willing invasion of privilege,” Thompson, an attorney for the hospital told Jefferson Circuit Court Judge Susan Schultz Gibson during a July 25 hearing. “We all know this is wrong.”
In addition, he accused Oldfather of hiding the fact that she had the phone transcripts and using the expert’s opinion on the cause of death and other strategic advantages, including knowing Ferrara’s conclusions before questioning him in a March deposition
“They have had our playbook in this case from day one,” Thompson said in court, according to videos of the hearings. “I can’t understand why Mrs. Oldfather did not pick up the phone and call” one of the attorneys for the hospital and tell them about the transcripts. “She had many months to do this.”
Oldfather declined to comment because the case is pending.
But she said in court that there is no rule requiring her to turn over the transcripts and if anyone should be disqualified from the case, it is Ferrara for sharing his opinions with Franklin after being retained by the hospital. To take her off the case, she said, would only punish the family of the infant who died.
Oldfather also told the judge she was heartbroken not only for the parents of the child, but for Franklin, whose character was being maligned without a chance to defend himself.
In addition, she said Thompson has repeatedly accused her of being unethical and lying in previous cases in which they opposed each other and told the judge he should take those complaints to the Kentucky Bar Association for possible disciplinary action.
“The courtroom is not the place where we deal with attorney discipline,” Oldfather said at the July hearing. “My behavior has been entirely consistent with someone who has nothing to hide. If I had something to hide, why would I have brought up” the questions in a deposition that revealed Franklin had spoken with Ferrara.
Hospital attorneys said whether Oldfather should be punished for misconduct should be resolved after the civil case has concluded.
Gibson ruled that while Franklin and Oldfather clearly committed attorney-client privilege violations – including that Franklin knew he was talking to a retained expert for the opposing side - removing Oldfather would be too extreme and inevitably punish the parents of the dead newborn who filed suit, “who are blameless.”
Instead, Gibson threw out some of Ferrara’s deposition testimony and barred Oldfather from using any of the information gained from the improper talks with the expert.
That was not enough for the hospital and attorneys, who have asked the Kentucky Court of Appeals to overturn the ruling and remove Oldfather.
In October, the appellate court ordered the case, which was scheduled to go to trial that same month, be delayed pending a review.
And in an October 7 court hearing, Thompson said they would ask the Kentucky Supreme Court to look at the case if the appeals court sides with Gibson.
Meanwhile, the hospital and other defendants have also asked Gibson to dismiss the case altogether based on the information they say Franklin and now Oldfather improperly got from Ferrara.
The hospital asked Gibson to “send a clear signal to other litigants that invading an opposing party’s privileged work product is an affront to the integrity of our system, and any attempt at covering up and/or attempting to benefit from such an invasion is of equal concern.”
The infant child at the heart of the case died just days after he was born on April 19, 2016.
His parents say in the lawsuit that Baptist and Norton Children’s hospital as well as doctors and medical staffers failed to recognize the newborn’s worsening condition and were negligent in dealing with a respiratory problem.
The hospital has claimed the newborn suffered a pulmonary hemorrhage, or bleeding in the airways, and staffers were not at fault – a defense crafted with help from Ferrara.
In essence, the hospital alleges that the parents’ lawyers had their playbook, giving them a guide for Oldfather in hiring her own experts, which is “about as prejudicial as an act of misconduct could possibly be.”
While Oldfather took over the case in April 2018, it wasn’t until Ferrara sat down for a deposition, or pre-trial questioning under oath, in March of this year before the truth about the transcripts came out, the hospital claims.
In that time, Oldfather took depositions of 20 people involved in the case, according to the defense.
Only during Ferrara’s deposition in March did Oldfather signal that she knew Franklin and Ferrara had discussed the case.
“Frustrated by her inability to get Dr. Ferrara to offer the testimony she was hoping to elicit, Attorney Oldfather then asked a series of questions that revealed Attorney Franklin’s improper communications with Dr. Ferrara,” the hospital claimed in a motion to the appeals court.
During the March 26 deposition, Ferrara initially testified that he told Franklin “I can’t help you on this case.”
“And then proceeded to have an hour-plus conversation with him?” Oldfather asked him.
Ferrara then said he had hours of conversation with Franklin because the two were friends, but whenever Franklin brought up this case, Ferrara told him he couldn’t talk, according to the deposition.
After more questioning by Oldfather, Ferrara acknowledged that Franklin had asked him whether he “had a good case” and the doctor had responded that he didn’t and explained why.
And he testified Franklin continued to call him about the case, even though he knew he had been hired as an expert for the other side.
“I think the baby died from a pulmonary hemorrhage, and I’m helping (the hospital), and I can’t help you,” Ferrara told Franklin, according to court records.
Oldfather also asked Ferrara if he had told Franklin he would never testify against him in this case, which Ferrara denied.
After the deposition, Baptist filed its motions against Oldfather, arguing she “was in possession of documents that laid out in great detail Baptist’s legal strategy from the outset of this litigation.”
And the defendants argued Oldfather had used Ferrara’s opinion on how the infant died to come up retain experts with alternative theories. Oldfather has denied this.
The case even includes a sworn affidavit from Franklin’s widow, Judy, who was also an administrator with his law firm. Judy Franklin said she and her husband were good friends with Ferrara and his wife and he called Ferrara for advice in most of his civil cases that involved alleged malpractice against infants.
She said that while Ferrara had said the hospital had contacted him about using him as an expert in the case, he had not agreed and had said he wouldn’t testify in a lawsuit that involved Franklin. (There is no evidence of that in the transcripts, according to the hospital. The full transcripts are sealed.)
After her husband died, Judy Franklin gave the transcripts to Oldfather, who had taken over the case.
“Later, we were both surprised when he (Ferrara) was disclosed by Baptist Health Louisville as an expert in December 2018,” according to Judy Franklin’s affidavit. Oldfather said she was “shocked” when Ferrara agreed to testify on behalf of the hospital.
The defendants have fought against participating in mediation with the plaintiffs to try and settle the case, in part, because of the ongoing distrust and uncertainty in what may happen.
And the hospital claims Oldfather and her legal team have still not turned over all of the evidence of Franklin and Ferrara’s communications, including audio recordings of the calls, written correspondence between the two and any notes Franklin took.
The case has become so acrimonious that in a September hearing, Oldfather said she was “begging” the judge to do “whatever is in your power” to stop the attacks from the opposing attorneys.
Judge Gibson has grown weary of the infighting, chastising both sides as they bickered during one hearing in September.
“This case can’t be about the lawyers,” an exasperated Gibson said. “This is a case about a child that died and whether or not somebody is responsible for it.”
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