Accompained by his wife, Diane Smith Levine, Dr. Jack M. Levine leaves the parking lot of the Pike County Court on Monday, Feb. 11. Though a trial date was set for Feb. 21 on the sexual imposition charge pending against Dr. Levine, prosecutors said the case could be dismissed in favor of persuing felony drug charges against him. (Photos by Lawrence Smith)

Moraleja

WAVERLY, Ohio – Fighting allegations of sexual misconduct may the least of Dr. Jack M. Levine’s worries as prosecutors announced their intention to file drug charges against the former Mason County physician.

On Feb. 11, a pre-trial hearing was scheduled on the state of Ohio’s case against Levine for sexual imposition. Originally, the hearing was set for Jan. 16, but postponed due to the Pike County Prosecutor’s Office not turning over certain evidence in time.

On Dec. 21, Levine was arrested and charged with one count of sexual imposition, a misdemeanor. According to court records, a female patient seeking treatment from Levine for an addiction to prescription pain medication alleged Levine, on at least one occasion, touched her in a manner she felt inappropriate.

The hearing, which was set to start at 8:30 a.m., never formally took place as about an hour later Levine was observed leaving a side entrance to the Pike County Court with his wife, Diane Smith Levine, in an attempt to elude media. As reporters caught up with Levine in the parking lot, he and his wife left in a Jeep Cherokee without making a comment.

However, Levine’s attorney Thomas Spetnagel, with the Chillicothe, Ohio law firm of Spetnagel and McMahon later told reporters that a trial date on the sexual imposition charge was scheduled for Thursday, Feb. 21. Spetnagel said his client is innocent of the accusation leveled against him.

“If this case isn’t dismissed by the 21st, it will be tried,” Spetnagel said. “It will be tried and dismissed.”

Also, Spetnagel confirmed that since his arrest, Levine was placed on paid administrative leave from Pike Community Hospital where he’d been on staff since late 2006.

A few hours later, Anthony Moraleja, assistant Pike County prosecutor, spoke with reporters about the case. Though he acknowledged the Feb. 21 trial date on the sexual imposition charge, Moraleja said it might be dismissed in order for the state to focus on more serious issues.

“He’s got more problems than the initial charge,” Moraleja said.
Though cautious in disclosing the particulars of the allegations, Moraleja said, “they are drug-related felonies.” The state, Moraleja said, intends to present evidence that Levine engaged in “inappropriate prescriptions” of controlled substances for not only his patients, but also himself.

According to Moraleja, the Pike County grand jury is scheduled to meet on Feb. 28 to consider the state’s evidence on the drug charges. However, he said the charges are likely to be filed sooner.

Should the charges be filed prior to Feb. 21, Moraleja said the state would ask that the sexual imposition case be dismissed.

Depending on the outcome of the drug charges, the state will decide on whether to refile the case.

The prosecutor’s office, Moraleja said, offered Levine the opportunity to pled guilty to the sexual imposition charge in exchange for it not filing the drug charges. Because such a conviction would carry greater weight with the Ohio Medical Board, Moraleja said Levine declined to accept the offer.

Though sexual imposition is only a misdemeanor, Moraleja said OMB takes conviction of any crime of “moral turpitude” seriously when considering how to proceed when disciplining a physician. Likewise, a conviction for sexual imposition would require that Levine register as a sex offender in Ohio.

An OMB official, Randy Beck, was present Monday for the hearing.

However, he declined to make any comments to reporters.

Pike, Ohio, County Court, Case No. 07-CRB-1035

Former Mason County physician Dr. Jack M. Levine ducks behind his attorney Thomas Spetnagle as they enter the building leading to the Pike County Court on Jan. 16. (Photo by Lawrence Smith)

WAVERLY, Ohio -– A former Mason County physician now awaits a decision by a grand jury if pending drug charges against him have merit.

On Thursday, Feb. 21, Dr. Jack M. Levine was scheduled to go on trial for sexual imposition in Pike County Court. Levine was charged with the crime, a misdemeanor, in December after a female patient he was treating for addiction to prescription pain medication alleged he touched her inappropriately.

However, the Pike County Prosecutor’s Office asked that the charge be dismissed. On Feb. 19, it filed charges of information on alleged drug-related activity conducted by Levine discovered in the course of its investigation of the sexual imposition allegation.

According to Thomas Spetnagel, Levine’s attorney with the Chillicothe law firm of Spetnagel and McMahon, Levine was charged with one count each of illegal processing of drug documents, deception to obtain a dangerous drug and aggravated possession of drugs. On Feb. 20, Levine made an initial appearance in Pike County Court in which, at the request of the prosecutor’s office, was released on his own recognizance, Spetnagel said.

A probable cause hearing on the charges was scheduled for Monday, March 3. However, Spetnagel said Levine agreed to waive the hearing thus sending it over to the Pike Court of Common Pleas to be presented during the next meeting of the grand jury.

The next meeting, according to Spetnagel, is March 20. Though still on paid administrative leave from Pike Community Hospital, and free on his own recognizance, Spetnagel said Levine has been granted permission to write prescriptions for non-narcotic drugs.

When asked if could comment on specifics of the allegations now leveled at his client, Spetnagel said he didn’t know the strength of the charges made. However, in talking with Levine, Spetnagel said, “He feels strongly that there is no substance to the charges against him.”

In Ohio, illegal processing of drug documents is an F5 felony which carries a penalty of 0-12 months in jail and maximum $2,500 fine.

The deception to obtain, and aggravated possession are both F4 felonies that carry 0-18-months in jail, and a maximum $5,000 fine.

Likewise, F4 felonies carry a mandatory driver’s license suspension.

POINT PLEASANT – An Ohio woman alleges she was wrongfully terminated from a Mason County hospital following a complaint she made to regulators concerning the facility’s “unsafe staffing conditions.”

On Feb. 26, Alma Jewell Arrowood, a resident of Jackson County, Ohio, filed suit against Pleasant Valley Hospital. In her complaint and suit, filed with the assistance of Tom Price, with the Charleston law firm of Holroyd and Yost, and Lia DiTrapano Fairless, with the DiTrapano Law Firm, Arrowood, a nurse, alleges that in October 2007 she was assigned “an excessive number of patients” in violation of state law.

“Plaintiff informed her unit manager that she was concerned about the lack of compliance with regulations imposed by the Office of Health Facility Licensure and Certification of the State of West Virginia Department of Health and Human Resources Bureau of Public Health,” said Price in the complaint.

According to court records, Arrowood “informed her unit manager, a supervising employee of Defendant, that the working conditions were unsafe.” Upon sharing her concerns with her supervisor, Arrowood was suspended, and later terminated.

“Plaintiff was suspended after informing her unit manager that she was advising the Office of Health Facility Licensure and Certification about her concerns regarding the unsafe staffing conditions at Defendant’s hospital,” Price said.

“After confirming that Plaintiff had contacted the Office of Health Facility Licensure and Certification and the Occupational Safety and Health Administration, Defendant, willfully, wantonly and maliciously terminated the Plaintiff.”

Arrowood’s termination, Price alleges, resulted in a “loss of income and benefits and has caused Plaintiff to suffer severe psychological injuries.” As compensation for her loss, Arrowood is asking not only to be reinstated with “back pay wages, front pay wages and fringe benefits due and owing with pre-judgment and post-judgment interest thereon,” but also “compensatory damages in an amount to be determined a trial for the severe emotional distress, humiliation, anxiety, embarrassment, depression, aggravation, annoyance, inconvenience, and loss of enjoyment of life…”

Also, Price asked “this Court enter a permanent injunction against Defendants, ordering them to cease and desist from their current unlawful behavior.”

The case has been assigned to Mason Circuit Judge David W. Nibert.

Mason Circuit Court Case No. 08-C-33

POINT PLEASANT – The Mason County Board of Education has been named as a co-defendant in two civil suits alleging responsibility for injuries two special needs students suffered at the hands of their teacher.

That teacher, who is named a co-defendant, has a pending suit against the Board challenging an administrative law judge’s decision upholding the Board’s decision terminating her for the alleged acts.

On Dec. 19, two Mason County residents, identified only as M.F. and A.C., filed separate lawsuits alleging their children, identified only as C.F. and J.C., respectively, were improperly disciplined by their New Haven Elementary preschool teacher, Katherine Parrish.

According to the suits, which are identical in wording expect for the names involved, the infants suffered “physical and emotional abuse” as a result of Parrish’s actions.

In their complaint and suit, filed with the assistance of Matthew L. Clark, with the Point Pleasant law firm of Kayser, Layne and Clark, the residents allege that Parrish on several occasions between August and December 2006, “placed the infant [C.F/J.C] into a body sock, which brutally restrained [C.F./J.C.] in an abusive manner inconsistent with the child’s Individualized Educational Plan or any accepted teaching practice.”

Also, the suits allege Parrish, “covered the infant’s face and head in an unreasonable manner for an undetermined amount of time while [C.F./J.C.] was restrained in the body sock.” During the time they were each restrained, eyewitnesses observed Parrish leave the room.

Likewise, eyewitnesses observed Parrish “pick up [C.F./J.C.] and slam [C.F/J.C] down on the bleachers in an abusive manner.”

Because of the “physical and mental abuse [C.F./J.C.] suffered at the hands of Katherine Parrish, [C.F./J.C.] frequently recalls the abusive events and becomes frightened, and utters phrases consistent with the abuse endured,” the suits allege.

According to court records, Parrish’s actions where not halted until Susan Howard, a teacher’s aide, reported it to the Board on Dec. 14, 2006. However, Clark says the school’s principal, Robert Vaughan, was alerted to this matter a week earlier, but did nothing.

“Defendant, Principal Robert Vaughan’s inaction allowed the emotional and physical abuse of Defendant, Katherine Parrish, to continue until the Mason County Board of Education suspended and eventually terminated the employment of Defendant, Katherine Parrish,” Clark said.

Because of his alleged inaction, Vaughan is named a co-defendant in the suits.

According to court records, the Board terminated Parrish, who lives in Ripley, on Jan. 18, 2007. On July 9, the West Virginia Education and State Employees Grievance Board upheld the school board’s decision.

In the suit, Clark alleges that the actions of the three defendants has resulted in the infants to incur “Physical pain and suffering; Medical bills and costs; Mental pain, Suffering and anguish; Anxiety; and Loss of ability to enjoy life.”

As compensation, Clark is asking that the three defendants be held jointly and severally liable for their actions so the infants may be awarded “an amount above and beyond the jurisdictional limits of this Honorable Court with prejudgment interest at the legal rate set forth by statute, post judgment interest, costs and attorneys fees incurred in the prosecution of this action.”

“Further,” Clark added, “Plaintiff[s] demand judgment against Defendant Katherine Parrish, for exemplary and punitive damages in an amount to be decided by a jury, and such further relief as the Court may order just and proper.”

Teacher challenging termination

Though the suit was filed in December, neither of defendants has filed a reply. However, in a separate lawsuit, Parrish has challenged her termination.

As first reported by the West Virginia Record, Parrish, with the assistance of James M. Casey and Jeremy Vickers of the Casey Law Offices in Point Pleasant, filed an appeal of the Grievance Board’s decision to Mason Circuit Court on Aug. 8. Casey and Vickers challenged personal observations Denise M. Spatafore, the administrative law judge, made in her ruling as “arbitrary, capricious and characterized by abuse of discretion and clearly warranted exercise of discretion.”

Other than the Board via its attorney Gregory W. Bailey with Bowles, Rice, McDavid, Graff and Love’s Morgantown office filing a motion to dismiss on Aug. 13, and Casey and Vickers submitting the entire record of the Grievance Board’s finding into the court record on Oct. 25, no new action has been taken in the case.

All three cases are before Mason Circuit Judge David W. Nibert.

Mason Circuit Court, Case Nos. 07-C-191 (M.F., as guardian and next of kin to C.F.), 07-C-192 (A.C., as guardian and next friend of J.C.) and 07-AA-119 (Parrish)

POINT PLEASANT – Despite being named in two abuse and neglect lawsuits, the Mason County Board of Education recently settled a two-year old personal injury suit which allegedly occurred at the Board’s central office.

On March 4, the Board agreed to settle a lawsuit brought by Charles and Mitzi Spangler of Ashton. In their suit, the Spanglers allege that Mitzi sustained injuries on Dec. 14, 2004, when waiting to see Larry A. Parsons, superintendent of Mason County Schools, she was led into a darkened room by a Board employee, and fell as a result of an uneven floor.

The suit named Parsons and Board President Michael “Micky” Cottrill as co-defendants. According to court records, the suit was filed on July 24, 2006, and slated for trial next month.

The Spangler’s attorney, Matthew C. Clark, with the Point Pleasant law firm of Kayser, Lane and Clark, confirmed that the parties agreed to reach an out-of-court settlement. Though the final order was still awaiting Mason Circuit Judge David W. Nibert’s signature, the case is officially over, Clark said.

Mason Circuit Court Case No. 06-C-112

This spot along the Staff Sergeant Jimmy G. Stewart Highway near Mason is where Point Pleasant attorney and West Virginia Association for Justice lobbyist James M. Casey was involved in an automobile accident with Herbert O. Hoover in 2005. (Photo by Lawrence Smith)

POINT PLEASANT – The defendants in a personal injury suit filed by a Point Pleasant attorney and lobbyist for the state trial lawyer’s association say it is he — and not they — responsible for any misfortune he may have suffered.

In January, the estate of Herbert O. Hoover and Claytongage Inc. filed their respective replies in a lawsuit filed against them by James M. Casey. In his initial complaint and suit, Casey alleged that both contributed to “permanent injuries and damages” he received as a result of a motor vehicle accident in 2005.

Casey, a partner in the Casey Law Offices in Point Pleasant, and lobbyist for the West Virginia Association for Justice, first filed suit against Hoover and Claytongage, parent company of Smoke Time Sams, a discount tobacco retailer doing business in Mason County as the Mason Smoke Shak, on August 27. In his suit, Casey claims that as result of a collision he had with Hoover, as he was exiting the Smoke Shak’s parking lot, caused him to suffer “physical pain, discomfort, mental anguish and nervous and emotional damage and disorder and the ability to enjoy the normal pursuits of life.”

According to court records, Casey was traveling in the southbound lane of the Staff Sergeant Jimmy G. Stewart Highway driving a 2002 Lincoln LS on Aug. 28, 2005 when shortly after noon he collided with a Chevrolet S-10 pickup truck driven by Hoover. The collision occurred when Hoover attempted to exit the Smoke Shak’s parking lot and make a left turn into the Highway’s northbound lane.

Along with blaming Hoover for failing to maintain control of his vehicle, Casey accuses the Smoke Shak of placing he and other motorists “in imminent peril” by “failing to have an unobstructed view of the highway from the parking congestion, plans, design or maintenance, and further in failing to warn of the hazards thereof.”

For reasons not immediately clear, neither party filed their reply promptly after receiving notice of Casey’s suit. This prompted Casey to reserve his suit on Dec. 12.

According to court records, Hoover’s estate was first to reply to the second notice on Jan. 24.

Through its attorney, Ann L. Haight with the Charleston law firm of Kay, Casto and Chaney, Hoover’s estate says Casey has “failed to mitigate his damages regarding his alleged injuries in this matter” as to pertains to the collision. The other contributing factors, such as the Smoke Shak’s location, to Casey’s injuries were out of Hoover’s control.

“The action described in the complaint was the result of a cause or causes over which Defendant has no control,” Haight said.
Nevertheless, Haight filed a cross claim against the Smoke Shak incorporating Casey’s allegations.

On Jan. 28, Claytongage, with the assistance of Jeffrey M. Wakefield and Elizabeth L. Taylor from the Charleston law firm of Flaherty, Sensabaugh and Bonasso, filed its reply. Since his alleged injuries resulted from his collision with Hoover, which occurred off premises, Casey has no grounds to sue the Smoke Shak.

“Claytongage specifically denies that it owed or breached any duty to the plaintiff inasmuch as the accident nor the plaintiff were on premises owned by Claytongage,” Wakefield said.

Since filing Claytongage’s reply, Wakefield submitted a first set of interrogatories and request for production of documents on Feb. 22 to Casey. No other action in the case has been taken since then, court records show.

Mason Circuit Court Case No. 07-C-131

POINT PLEASANT – Despite the recent dismissal of one filed against it from earlier this year, Pleasant Valley Hospital finds itself defending against another malpractice suit.

On March 13, Jodi M. Keiffer, a resident of Ripley, filed suit against PVH alleging it, and Dr. Steven Karl Rerych were negligent in providing post-surgical care to Keiffer following a laparoscopic cholecystectomy on March 15, 2007. The suit does not name Rerych as a co-defendant, but says his acts “were done in the course and scope of his agency and/or employment with PVH and are, therefore, deemed the acts and/or omissions of the corporate defendant, PVH.”

In her complaint and suit, filed with the assistance of Tony L. O’Dell, with the Charleston law firm of Berthold, Tiano and O’Dell, Keiffer alleges she “began experiencing severe abdominal pain associated with nausea.” Rerych, “and other agents and/or employees of the defendant” were negligent, the suit alleges, by, among other things, not ordering follow-up tests, treatment or “transfer to a hospital where that procedure could have been performed emergently.”

As a result of PVH’s negligence, Keiffer alleges she “developed a bile leak which required additional surgery.” As compensation, Keiffer is asking for a sum “far in excess any sums necessary to confer the jurisdiction upon this Court, together with prejudgment and postjudgment interest, the costs expended in the prosecution of this lawsuit, including reasonable attorney fees …”

Vague allegations

About 10 days after Keiffer filed hers, Mason Circuit Judge Thomas C. Evans III dismissed a suit filed by a convicted felon. On March 24, Evans agreed with PVH’s attorneys that a suit filed in January against it, and two physicians was not only vague, but also failed to meet the pre-suit requirements under the Medical and Professional Liability Act.

According to court records, David M. Persons filed suit against PVH, and Drs. Robert McCleary and Anthony McEldowney on January 16. Though he lists his residence as West Columbia, Persons is currently incarcerated at the Huttonsville Correctional Center.

Court records show he pled guilty to conspiracy to attempted breaking and entering on March 14, 2006, and sentenced to an indeterminate term of 1- to 5-years in prison on Jan. 16, 2007.

In his complaint and suit, which he filed pro se, Persons, submitted boilerplate language making a general claim for negligence on the defendants’ behalf. The closest Persons comes to being specific in his suit is alleging that between December 2005 and January 2006 “the existence of a displaced fracture with overriding in the right distal radius and a displaced fracture of the ulnar styloid” was not properly treated.

Court records show though he does not mention McEldowney and McCleary personally, Persons maintains “Each and every one of the foregoing acts and omissions committed by the Defendants, in the course and scope of there agency for Defendant Hospital, taken separately or collectively, constitute a direct and proximate cause of the injuries and damages sustained by plaintiff.”

Defense counsel Paul T. Farrell, with the Huntington law firm of Farrell, Farrell and Farrell, made note of Persons’ vague allegations in his motion to dismiss dated Feb. 1. Also, though Farrell acknowledged that Persons did receive treatment from McEldowney on Jan. 9 and 12, 2006, he “failed to appear for follow-up appointments on Jan. 18 and 25, 2006.”

In addition to saying that Persons saw McEldowney one other time on February 8, 2006, Farrell said hospital records showed that “plaintiff complained of not being able to see Dr. McCleary on three occasions because Dr. McCleary was ill.”

Evans granted Farrell’s motion immediately following a March 24 hearing.

Three months, three suits

Persons filing his suit in January, and Keiffer filing hers in March makes the third one against PVH in as many months. In February, Alma Jewell Arrowood filed a wrongful termination suit after she complained to both her superiors and hospital regulators of “unsafe staffing conditions.”

According to court records, Arrowood, a nurse from Jackson County, Ohio, alleges she was first suspended from her job in October 2007 following notification of her unit manager about her intention to notify authorities about the assignment of “an excessive number of patients” in violation of state law. Despite her suspension, Arrowood went ahead and contacted both the state Office of Health Facility Licensure and Certification and the U.S. Occupational Safety and Health Administration of her concerns.

Upon their discovery that she followed-through on her complaint, PVH fired Arrowood, her suit alleges.

According to court records, PVH has yet to reply to Arrowood’s suit. Along with Keiffer’s, it is before Mason Circuit Judge David W. Nibert.

Mason Circuit Court Case Nos. 08-C-9 (Persons), 08-C-33 (Arrowood) and 08-C-40 (Keiffer)

Pictured here with Mason Circuit Judge Thomas C. Evans III are members of the Point Pleasant city council during a swearing in ceremony on June 30, 2007. A lawsuit filed by Harriett Nibert, the wife of Mason’s other circuit judge, David W. Nibert, alleges she was fired the next day from her position as city secretary for politically motivated reasons.

POINT PLEASANT – A former Point Pleasant city employee is alleging her removal as secretary following least year’s municipal election was politically motivated.

On March 26, Harriett Nibert filed suit against both the city of Point Pleasant and former Mayor Marilyn L. McDaniel for wrongful termination. In her complaint and suit filed with the assistance of Walt Auvil, with the Parkersburg law firm of Rusen and Auvil, Nibert alleges she “and other City employees associated with the previous administration of Democratic Mayor James H. Wilson were conducted in violation of the West Virginia Open Governmental Proceedings Act …”

Specifically, Nibert alleges that from February 2002 until June 29, 2007, she was employed as executive secretary to the Mayor. On June 29, 2007, Nibert says “her position as Executive Secretary was eliminated by the City Council of the City of Point Pleasant effective July 1, 2007.”

According to court records, Nibert’s termination letter, which was dated on a Sunday, “was delivered to the Plaintiff on Monday, July 2, 2007 by Defendant McDaniel.”

“Plaintiff was immediately initially replaced by Louise Hudson,” Nibert says in her suit. “Hudson was a Republican. Plaintiff is and at all times relevant hereto has been a registered Democrat.”

During the May 19 municipal election, Republicans won in seven of the eight wards, and both at-large council seats. The lone Democrat to win, Dr. Bill Park, ran unopposed.

Also, McDaniel was successful in defeating Wilson for re-election. Four years before, Wilson, 7th Ward councilman at the time, narrowly defeated McDaniel, the incumbent city clerk.

Records show Mason Circuit Judge Thomas C. Evans III swore McDaniel and the council into office on June 30. The new council, which was elected to a one-time five-year term, held its first official meeting on July 9.

Because she did not hold “a policy making or confidential position as Executive Secretary,” Auvil alleges Nibert’s termination “violates the employee’s rights to freedom of association.”

“Defendants’ termination of the Plaintiff was based solely upon political reasons in violation of Article III, Section 7, of the West Virginia Constitution,” Auvil says in the suit.

As compensation, Nibert is asking for “lost wages, mental and emotional distress, punitive damages, reinstatement, and such other and further relief as may upon the premises be appropriate.”

Since the suit was filed, both Evans, and Mason Circuit Judge David W. Nibert have recused themselves from hearing the case. Though records are unclear as to why Evans recused himself, Nibert did so because he is Harriett’s husband.

On April 8, Maynard appointed Wood Circuit Judge Jeffrey B. Reed to hear the case.

Mason Circuit Court Case No. 08-C-489

Musgrave

This amateur picture of American Airlines Flight 191 was taken moments before it crashed at Chicago’s O’Hare International Airport on May 25, 1979 killing all 271 passengers and crew members aboard, plus two people near the crash site. Aboard the flight were Mason County residents Dr. Roy Eshenaur, and his wife, Marian, who’s heirs filed a complaint with the state Bar Association in 1988 against Raymond G. Musgrave for his “gross incompetence” in settling the Eshenaur’s estates. Three years later, the Bar sanctioned Musgrave for his conduct including a directive to abstain from consuming alcohol.

CHARLESTON – Failing to return a settlement check is not the only time a Point Pleasant attorney has mishandled legal matters involving a physician. Nearly 20 years ago, Raymond G. Musgrave had to answer for “gross incompetency” in settling the estate of a doctor and his wife who died in the worst single-airplane crash in American history.

On April 4, the Lawyer Disciplinary Board, the prosecutorial arm of the state Bar Association, filed a formal state of charges against Musgrave with the state Supreme Court. In its statement, the Board found probable cause that Musgrave violated at least two Rules of Professional Conduct in not turning over $15,000 awarded to Dr. Danny R. Westmoreland in 2004.

The statement of charges, records show, came almost three years to the day Westmoreland filed his complaint with Musgrave with the Office of Disciplinary Counsel, the Bar’s investigative arm.

The Bar took three years to investigate a complaint filed against Musgrave in 1988 by the family members of Dr. Roy and Marian E. Eshenaur. The family accused Musgrave of “gross incompetency” in not properly settling the Eshenaur’s estates nine years after they died in a 1979 plane crash in Chicago.

In 1991, the Bar closed its investigation into the Eshenaur family’s complaint finding merit to their allegations. Alcohol played an apparent role in Musgrave’s conduct as the Bar ordered Musgrave to abstain from consuming it, and into recovery treatment.

273 fatalities

On May 25, 1979, American Airlines Flight 191 was destined to Los Angeles International Airport from Chicago’s O’Hare International Airport. As it was taking off, the plane’s No. 1 engine was torn off after it seared the tarmac.

Though the flight crew was able to temporarily regain control of the plane, it went into a 112-degree bank before crashing into an open field 4,600 feet northwest of the runway. All 271 passengers and crewmembers on board were killed along with two others near the crash site making Flight 191 the single-worst airplane crash in American history.

According to a letter he sent to the Bar dated Oct. 6, 1987 outlining the problems the family had with Musgrave’s representation, Charles Eshenaur said the purpose of his parent’s visit to Los Angeles was for a “drug company-sponsored seminar.”

Among the matters Musgrave failed to handle, Charles said, was file a claim with the company for return of the $2,400 advance fee they paid for the trip.

Though the family’s complaint was not filed with the Bar until April 1, 1988, they listed several areas were Musgrave’s “negligence and incompetency… resulted in great financial damage … and extreme personal anxiety.” Among these were a failure to file a claim with the Eshenaur’s homeowner’s insurance for personal property lost in the crash, failure to communicate with them about the wrongful death suit filed by the estates in California and procrastination in selling Roy Eshenaur’s medical practice.

Miscommunications

According to the complaint, Musgrave, along with National Bank of Commerce, were co-executors of the Eshenaur’s estates. Part of Musgrave’s responsibility was to file claim with the Eshenaur’s homeowner’s insurance carrier, Aetna, for collection of personal property lost in the crash.

Despite turning over “a number of boxes of documents that appeared of importance,” Charles said the family-heirs learned that almost three years after the Eshenaur’s deaths, Musgrave had yet to file a claim. Though he informed the family-heirs on several occasions the claim was being processed, representatives from Aetna said the only documents they received from Musgrave was notification of the Eshenaur’s deaths.

After Aetna demanded documentation of the personal property the family-heirs provided to him, Musgrave claimed “he did not have the evidence necessary to document those losses.” However, in his letter, Charles said a search of the boxes he and other family members left with Musgrave “discovered the homeowner’s insurance policy itself, as well as the receipts for the various items of jewelry lost.”

Though the complaint is unclear as to when, but Charles says the documents Aetna requested were sent to them by the family-heirs. However, “by that time, the lawsuit that was instituted by the Estate against American Airlines and others arising out of the airline crash had been tried and Aetna took the position that their rights to recover any payments from the airlines had been lost…”
According to the complaint, the estimated loss in personal property was $34,000.

For reasons not immediately clear, the wrongful death suit was filed in California. Musgrave and NBC made the exclusive decision to select legal counsel without any input from the family-heirs, Charles said.

As if not allowing them a say in selecting an attorney weren’t bad enough, Charles said “[s]ome of the heirs did not learn of their need to be present at the trial…until approximately seven days prior to the trial date.”" However, the family-heirs learned from the California attorney that “Musgrave had been notified of the trial date and of the need for the heirs to be present, 30 to 60 days prior to the date of the trial …”

Though the family-heirs made the trip to California “at significant additional expense and inconvenience to each of us, Charles said “we found that legal counsel there had not been informed of numerous important issues in the case.” Among those were the fact that Roy Eshenaur’s remains “by reason of impossibility of identification” were buried in a common grave in California, and the expense and trauma the family members incurred providing health and dental records to assist in identifying their parents.

According to the complaint, such evidence was inadmissible under California law. Had such information been provided to the attorney in California in a timely fashion, Charles said the suit could have been filed in West Virginia which permitted such evidence.

“It is clear that Mr. Musgrave did not properly inform the counsel selected by the Co-Executors of the various aspects of this case,” Charles said in the compliant.

Lastly, Charles said Musgrave’s “negligence and incompetency really predate the death of our parents.” In probating the will, the family-heirs learned that a codicil Roy Eshenaur made with Musgrave’s assistance the day before he died regarding his medical practice was unenforceable.

According the complaint, the family-heirs learned that “an estate cannot act as a shareholder of a professional corporation, as was stated in the Codicil to the Will.” Despite the inability to enforce the codicil, Charles said Dr. Oliver Eshenaur – one of the heirs – Dr. Carr – Roy Eshenaur’s son-in-law – two other physicians involved in the practice and Musgrave entered into negotiations about selling the practice to the two other physicians.

Though no terms were disclosed, a verbal agreement was reached that the two other physicians would purchase Eshenaur’s practice. Despite numerous calls to Musgrave to bring the deal to a close, Charles said after six months the two physicians backed out saying “any good will value was negligible.”

Diagnosed as an alcoholic

Though records are unclear as to exactly when, but the Bar’s Committee on Legal Ethics, the predecessor to the Lawyer Disciplinary Board, found probable cause in the Eshenaur family’s complaint, and brought a statement of charges against Musgrave.

What is clear, however, is that a hearing was held on the statement on Nov. 22, 1991, over 3 ½ years after the complaint was docketed.

Records show the original statement charged Musgrave with committing a Rule violation in not providing sufficient legal representation to Roy Eshenaur in drafting the codicil. However, Bar Counsel Sherri D. Goodman moved to dismiss that paragraph in the statement.

The basis for dismissal, Goodman said, was based on the fact that the statement mistakenly quoted from a December 1978 codicil and not the one drafted on May 24, 1979, and that an expert the Bar consulted with determined the codicil could have been enforced despite earlier assertions it couldn’t.

During the hearing, Musgrave admitted to his failure in timely filing the personal property claim with Aetna. As punishment, Musgrave agreed to a loosely structured plan for supervision in lieu of a public reprimand by the Supreme Court.

Records show that in August 1988 Musgrave “voluntarily submitted to an examination for alcohol impairment by Dr. Stephen Ward and Wayne Dickinson, M.S.W. at the Wheeling Clinic.” Though his evaluation did not conclusively find Musgrave was impaired “between 1979 and 1984, the time period in which he served as co-executor,” Dickinson did determine Musgrave’s alcoholism “may have started as long as ten years prior to the date of the examination.”

Though records are not specific, but prior to conducting the hearing, “A more recent investigation showed that Respondent may still have drinking problems.” Because of that, Goodman said a public reprimand would be insufficient punishment, and ” the public would be better served by prompt implementation of the above-referenced agreement.”

The agreement, records show, called for Musgrave for the next two years beginning on Nov. 25, 1991 to avoid drinking alcohol, attend weekly Alcoholics Anonymous meetings and telephone John T. Kay Jr. once a week on his status. The Committee warned Musgrave failure to abide by the agreement would result in the Bar filing a public reprimand with the Court as well as asking for additional sanctions.

Pursuant to the agreement, the Committee said it would not seek to recover the costs of the hearing from Musgrave unless he filed to abide by the terms.

Finally, the Committee instructed Musgrave to search his files for any personal effects of Roy Eshenaur’s in his belonging, including a spiral notebook in which he kept his appointments. Records show that Charles and Lawrence Eshenaur, who attended the hearing on the family’s behalf, approved of the agreement.

On Aug. 15, 1992 the Committee’s full hearing panel unanimously agreed to adopt the subcommittee’s findings during the Nov. 1991 hearing.

Though the family-heirs could have brought a legal malpractice suit against Musgrave, Charles said in his letter they decided against that. Instead, they opted to file their complaint with the Bar in the hope that any discipline would deter him from victimizing other clients.

“Although as beneficiaries we believe that we sustained financial loss by reason of the actions and inactions for Mr. Musgrave,” Charles said, “we did not file a civil action against Mr. Musgrave for such financial loss, but rather, by this communication, are desirous of having you or your committees verify the negligence and incompetency and take such action as will insure that innocent citizens and clients in the future are not exposed to the same financial loss and anxiety.”

Musgrave

CHARLESTON – Along with disciplining him in Eshenaur case, the state Bar Association ordered Raymond G. Musgrave to pay one client $5, and warned him about his lack of communication with another.

Along with the one filed in 1988 by the Eshenaur family, Musgrave has 10 other complaints in his disciplinary file. Though the Eshenaur complaint is the only one where a formal statement of charges was brought, the Office of Disciplinary Counsel felt Musgrave’s actions in Dana Jones’ and Vickie Smith’s cases were enough to issue a mild rebuke.

In his complaint filed March 16, 1997, Jones, a Point Pleasant resident, said he hired Musgrave to help him file a personal injury suit from an on-the-job boating accident. According to his complaint, Jones received a settlement on May 11, 1995 for $6,242,89 to pay for related hospital and medical bills.

They reached an agreement, Jones says, that Musgrave was to use the settlement to pay all his bills. Should Musgrave be successful in getting any bills written off, he was divide the savings evenly with Jones.

Shortly after Jones won his settlement, Musgrave paid one doctor $500, disbursed $1166 to Jones and kept $4576.89. Since Musgrave had yet to pay on outstanding bills at the time the complaint was filed, Jones asked for the balance of the settlement.

On March 14, 2000, ODC closed its investigation into Jones’ complaint. According to its findings, Musgrave did take “steps to make sure all bills were paid” and by Jan. 11, 2000, Musgrave’s secretary reported per the 50/50 savings agreement, Jones was owed $5.

In his closing letter, Chief Lawyer Disciplinary Counsel Bruce A. Kayuha said “Respondent [Musgrave] is advised to send Complainant the five dollars and this complaint is closed.”

Eighteen months after ODC resolved Jones’ complaint, Smith filed hers against Musgrave. A resident of Gallipolis, Ohio, Smith alleged that despite making regular payments to him for an outstanding legal bill, Musgrave brought suit against her to collect the balance.

According to her complaint, Smith hired Musgrave to represent her in her divorce. Though it is unclear if the divorce happened in West Virginia or Ohio, it was settled in January 2000.

By the time the divorce was finalized, Smith owed Musgrave $23,091.06. Prior to the settlement in April 1998, Smith says she made monthly payments to Musgrave until December 2000.

According to her complaint, Smith says Musgrave refused to accept her December 2000 and January 2001 payments. On Feb. 1, 2001, she received a letter from Brent Saunders about his intention to sue her on Musgrave’s behalf for the $14,242.81 she had outstanding.

On Feb. 14, 2001, the suit was filed against Smith in Gallia Court of Common Pleas.

In her complaint, Smith said she was amazed at Musgrave’s decision to sue her because he never expressed any dissatisfaction with her payments nor sent her an itemized invoice of her outstanding bill.

Initially, Musgrave denied failing to send Smith any invoices claming he submitted at least five to her.

However, when asked by ODC to produce these invoices, Musgrave “replied that there was no formal payment agreement between him and Complainant” and he “believed there was an oral understanding that payments for legal services were due upon receipt of the invoices.”

According to the complaint, Musgrave settled the suit with Smith in January 2002 for $9,000. Musgrave defended his decision to sue Smith saying he’s sued other clients before, like Donald Cheesbrew, for nonpayment of legal services.

Though Smith’s complaint was referred to the Board’s investigative panel, it found “there was insufficient evidence of a violation of the Rules of Professional Conduct at this time.”

However, in his closing letter dated March 8, 2002, Allan N. Karlin, the panel’s chairman, reminded Musgrave of Rule 1.4 (a) about “keep[ing] a client reasonable informed about the status of a matter and promptly comply with reasonable requests for information.”

Also, Karlin said “the Panel strongly warns Respondent to communicate with his clients about his fee arrangements and his expectations of payment in order to avoid suing his clients for nonpayment of legal fees in future matters.”

June 14
Jeromy Black vs. Walmart, Walmart Assoc., Inc., Daniel Baisden, Brooks Rutledge and Anita Stanley
PA- Paul Frampton, Jr.; J- Nibert
*The plaintiff is suing the defendant for alleged handicapped discrimination after he was fired by the defendants on May 7, 2012, following 12 years of employment. He seeks unspecified damages, interest, court costs and attorneys fees.
Case number: 13-C-101

June 17
Vanderbilt Mortgage and Finance, Inc. as attorney-in-fact for Bank of New York Mellon, as trustee vs. Jerry Thomas
PA- Marc A. Lazenby; J- Nibert
*The plaintiff seeks court order granting it possession of a 1997 Oakwood mobile home it sold the defendant in 1999 on an installment contract for $21,977.50, but allegedly went into default on Dec. 1.
Case number: 13-C-103

July 2
Barbara Wallace vs. Mason County Action Group, Inc.
PA- Steven Wiley; J- Nibert
*The plaintiff is suing the defendant for injuries she allegedly sustained on July 7, 2011, when a now-deceased in-home patient she was providing care for kicked her in the shoulder. Prior to the incident, Wallace says she repeatedly asked for a transfer due to the client’s repeated threats on her life. She seeks unspecified damages.
Case number: 13-C-117

POINT PLEASANT – A Mason County man is suing over claims his wife died as a result of a defective seatbelt and airbag.

Mason County resident Philip Stewart, representing the estate of LaDonna Stewart, filed a lawsuit on May 1 in the Circuit Court of Mason County against Ford Motor Co., citing wrongful death.

Stewart says his wife was wearing her seatbelt while driving the couple’s 2000 Ford Explorer XLT, when her vehicle was struck from behind on May 3, 2011, on West Virginia Route 62.

The suit claims the seatbelt and airbag were defective, causing LaDonna Stewart to become suddenly unrestrained during the accident. She was ejected from the vehicle and killed, the brief states.

The estate is seeking an undetermined amount of relief, including more than $1.2 million in lost wages.

The plaintiff is being represented by Nitro attorney Harvey D. Peyton.

Circuit Court of Mason County Case No. 13-C-67.

Goldsmith

POINT PLEASANT – A man and his wife from Point Pleasant are suing over claims he suffered serious injuries while working as a deckhand in the Ohio River.

Robert A. Wilson and his wife, Melissa M. Wilson, filed a lawsuit Feb. 20, in the Circuit Court of Mason County against AEP River Operations LLC, citing negligence and failure to provide a safe work environment.

Robert Wilson says he suffered severe back injuries on Jan. 2 when the defendant’s towboat captain caused the vessel to move suddenly, without warning the plaintiff.

Wilson was working on an ice-covered barge holding a line attached to the towboat, and the sudden movement caused him to jerk and spin around, seriously injuring his lower back, he says. He claims the defendant also failed to allow him to seek immediate medical care, according to the complaint.

He and his wife are seeking an undetermined amount of relief.

The Wilsons are being represented by Pittsburgh attorney Frederick B. Goldsmith of Goldsmith & Ogrodowski.

Circuit Court of Mason County Case No. 13-C-32.

Morrisey

CHARLESTON – State Attorney General Patrick Morrisey announced Sept. 24 that four large banking companies will pay the state $1.95 million each – $7.8 million total – to settle lawsuits over their credit card protection programs.

Former Attorney General Darrell McGraw alleged that the banks’ programs violated West Virginia law. Morrisey inherited the suits, filed in Mason County Circuit Court, after his win in the 2012 election.

The settlements were reached three months after the state’s high court ruled in State ex rel. Discover Financial Services Inc. vs. Nibert.

In Discover, the court ruled that the Attorney General’s Office had the authority to use special assistant attorneys general in certain cases.

The four settling financial institutions – Bank of America Corp., JP Morgan Chase & Co., Citibank/Citigroup Inc. and GE Money Bank – were parties in that case.

“This office worked long and hard in the Discover case to protect West Virginia consumers. But for that case, we would have never reached a settlement in this matter,” Morrisey said in a statement.

According to the complaint filed by the Attorney General’s Office, the banks engaged in misleading and deceptive tactics to enroll customers in payment protection programs, which involved fees of 89 cents per $100 credit card balance and netted millions of dollars for the banks over a period of several years.

“Over a number of years, thousands of West Virginians entered into credit card payment protection programs without knowing they had done so, were charged extra fees and then had trouble reaping the benefits,” Morrisey said.

According to the complaint, bank representatives would ask new card holders whether they were interested in entering a program that would cover minimum monthly payments in the event of a major life change, such as loss of income, spouse or other event.

If the cardholder even expressed “interest,” he or she was automatically enrolled in the program without being given an ability to review the terms and conditions of the program, including the fee structure, what the program would offer and how benefits would be determined.

The banks have denied the allegations.

“Our office will always be aggressive in fighting back against companies that engage in schemes to mislead consumers or knowingly omit facts that would help consumers make the best decisions with their finances,” the attorney general said.

Morrisey said his office did not settle with Discover Financial Services, HSBC Card Services or World Financial Network Bank. Claims against those institutions will continue, he said.

The state was represented in the case by the Charleston-based firms of Bucci Bailey & Javins LC and Druckman & Estep. Baron & Budd PC in Dallas also worked on the case.

Attorneys are expected to collect roughly $1.95 million in fees and costs, according to Morrisey’s office.

While the final attorney fees must be approved by the court, outside counsel firms have agreed to be compensated under the new outside counsel policy established by the attorney general earlier this year.

The policy’s new payment structure is expected to save the state about $650,000 on these cases alone, Morrisey noted.

“Our outside counsel policy already is saving the state a tremendous amount of money,” he said. “This ethics reform ensures that taxpayers are getting a bang for their buck when outside counsel firms are utilized for consumer protection cases.”

Under the terms of the settlement and the office’s agreement with the governor and the state Legislature, the settlement monies will help ensure the Consumer Protection Division has three years of operating revenue.

The rest will be turned over to the Legislature, Morrisey said.

In an opinion released June 4 and authored by Justice Robin Davis, the unanimous court ruled the defendants in the lawsuits have not alleged any conduct that has resulted in an injury.

“The briefs set out a plethora of allegations that involve remotely possible harmful conduct,” Davis wrote.

“We have not and will not interfere with or disqualify a party’s counsel merely because of allegations of improper conduct that has not occurred.

“To allow a mere possibility of improper injurious conduct to be the standard for disqualification would result in parties constantly seeking to disqualify opposing counsel because of phantom injuries. The law of disqualification cannot rest on the imagination of opposing counsel.”

Oliver

POINT PLEASANT – A Mason County resident is suing over claims that unsafe conditions at a restaurant caused her to slip and fall.

Tonia K. Chafin filed a lawsuit Sept. 25 in the Circuit Court of Mason County against TNT Coffee Shop LLC, doing business as Uptown Carryout, and TNT Cafe LLC, citing negligence.

Chafin says on Oct. 14, 2011, she suffered serious injuries when she slipped and fell on stairs while exiting the business premises. The complaint states the defendant was negligent in allowing moisture to accumulate on the wood stairs.

The plaintiff is seeking an undisclosed amount in damages. She is being represented by Huntington attorney Matthew R. Oliver of Vital & Vital LC.

Circuit Court of Mason County Case No. 13-C-151.

Goldsmith

POINT PLEASANT – The wife of a deckhand who claims he was injured on the Ohio River may not make a claim for loss of consortium, AEP River operations.

The company made its argument for dismissal of the claim on Aug. 27, six months after Robert and Melissa Wilson filed a lawsuit against the company in Mason County Circuit Court. Robert is suing over back injuries he says he incurred when a towboat jerked.

“Plaintiff Melissa Wilson’s claim for loss of consortium fails to state a justiciable claim,” the memorandum in support of the motion to dismiss says.

“Because loss of consortium is not recoverable, as a matter of law, under the Jones Act and/or general maritime law, Count IV of Plaintiffs’ complaint seeking loss of consortium damages fails to state a claim upon which relief may be granted, warranting dismissal of the same.”

AEP River Operations is represented by Todd M. Powers of Schroeder Maundrell Barbiere & Powers in Mason, Ohio.

The Jones Act incorporates provisions of the Federal Employers Liability Act, and the U.S. Supreme Court ruled in 1913 that Congress must have intended to place FELA’s limitations on the types of damages available on Jones Act claims, Powers wrote.

“When Congress enacted the Jones Act and incorporated FELA, it was aware of its limitation of nonpecuniary damages and as a result, the Jones Act limits a seaman’s recovery for injury to pecuniary losses and precludes any recovery for nonpecuniary losses, such as loss of society,” Powers wrote.

Robert Wilson says he suffered severe back injuries on Jan. 2 when the defendant’s towboat captain caused the vessel to move suddenly, without warning to the plaintiff.

Wilson was working on an ice-covered barge holding a line attached to the towboat, and the sudden movement caused him to jerk and spin around, seriously injuring his lower back, he says. He claims the defendant also failed to allow him to seek immediate medical care, according to the complaint.

He and his wife are seeking an undetermined amount of relief.

The Wilsons are being represented by Pittsburgh attorney Frederick B. Goldsmith of Goldsmith & Ogrodowski.

A hearing on the motion to dismiss will be held on Dec. 6.

Donald B. O’Dell, an attorney in Huntington, has been selected as mediator for the case.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

Workman

CHARLESTON – An insurance company’s failure to use the state Insurance Commissioner’s prescribed forms when offering underinsured motorist (UIM) coverage results in the loss of the statutory presumption of compliance with state law, the state Supreme Court ruled.

In an Oct. 7 opinion delivered by Justice Margaret Workman, the high court held that the plain language of West Virginia code §33-6-31d regulating UIM, requires that an insurer must use the commissioner’s form in order to gain the “benefit of the statutory presumption that (1) its offer of UIM coverage was effective, and (2) the insured’s rejection of such coverage was knowing and intelligent.”

The question over required use of the forms arose from a Mason County Circuit Court case relating to a civil suit filed after a car accident.

On May 4, 2007, Angela Thomas spoke with a State Farm representative in Point Pleasant about automobile liability insurance. According to court documents, Thomas agreed to buy a liability policy from State Farm for coverage up to $100,000 per person and $300,000 per occurrence for bodily injuries.

The agent also offered Thomas UIM coverage and explained the purpose of it, the limits available for purchase and the cost of each available limit. Thomas declined the UIM coverage and signed a form indicating she understood the coverage and was exercising her right to reject it.

In August 2009, Thomas, her husband and son were seriously injured after a car driven by William Ray McDermitt “negligently crossed the center line and collided with the Thomas vehicle.”

Because the Thomas family’s injuries exceeded the available liability coverage under McDermitt’s automobile liability policy, the Thomas family filed an underinsured motorist claim with State Farm despite Angela Thomas’ rejection of the “purported rejection of such coverage in May 2007.”

State Farm denied coverage for the car accident. Thomas then filed suit against McDermitt and against State Farm in August 2011, alleging that State Farm’s policy must be reformed to include UIM coverage and State Farm’s refusal to provide UIM benefits constituted a breach of the insurance contract.

The plaintiff also asserted that it did not provide a knowing and intelligent waiver of the UIM coverage.

In April 2012, the circuit court granted Thomas’ motion for partial summary judgment after concluding State Farm’s UIM selection and rejection form did not comply with the insurance commissioner’s form.

Both parties agreed that the UIM form Thomas signed included all the elements required by the insurance commissioner. The only difference was that State Farm’s contained additional elements that “arguably render the form difficult to understand and more complicated than necessary.”

The circuit court ruled that the failure to use the exact form prescribed by the insurance commissioner resulted in the addition of UIM coverage to the policy as a matter of law.

State Farm appealed the decision, arguing that failing to use the precise form should only result in the loss of presumption that the insurer provided a reasonable offer which was knowingly rejected.

The high court, citing a similar case in which the court was confronted with a form that also provided all the required information but deviated from the insurance commissioner’s prescribed form by including extraneously information that made the form confusing, applied a similar standard holding that the deviation resulted in merely a loss of presumption of commercial reasonableness.

Stealey

HUNTINGTON – A lawsuit against Adventure Homes LLC has been settled and dismissed from federal court.

Cozy Home Center and Robert A. Johnson were also named as defendants in the suit.

A dismissal order was filed Oct. 24 in the case. On Oct. 16, a report of mediator was filed in the U.S. District Court for the Southern District of West Virginia at Huntington.

As a result of the mediation and good faith negotiations by the parties, the case was settled. James I. Stealey of the Stealey Law Firm was the mediator in the suit.

On May 5, 2011, Dianna Roush and David Roush placed an order to purchase a new Adventure Homes manufactured home from Cozy and/or Johnson, according to a complaint initially filed on March 19 in Mason Circuit Court and removed to federal court on April 25.

The Roushes claimed the home was defective in materials and workmanship and the defects substantially impaired its use and value.

Despite the Roushes’ efforts to allow the defendants the opportunity to repair the new manufactured home, the nonconforming and defective conditions were never completely repaired, according to the suit.

The Roushes claimed the problems in the home included uneven and loose floor decking; bowed walls; uneven floors; soft spots in the floors; loose countertops in the kitchen and master bathtub; crooked cabinets; damaged wall panels; protruding fasteners; loose trim throughout the home; and an inoperable fireplace.

Due to the poor workmanship related to the home, the plaintiffs also incurred personal injuries, according to the suit.

The Roushes claimed the defendants made and broke repeated promises to repair the home and conform it to its express and implied warranties.

The defendants violated the West Virginia Consumer Credit and Protection Act, according to the suit.

The Roushes were seeking compensatory and punitive damages. They were being represented by Kristina Thomas Whiteaker, D. Christopher Hedges and David L. Grubb of the Grubb Law Group.

The defendants were represented by Luci R. Wellborn and Erin J. Webb of Kay Casto & Chaney and Michael L. Powell and Randall L. Trautwein of Lamp Bartram Levy Trautwein & Perry PLLC.

The case was assigned to District Judge Robert C. Chambers.

U.S. District Court for the Southern District of West Virginia at Huntington case number: 3:13-cv-9058

Mason County Courthouse

POINT PLEASANT – Two settlements have been reached over a Mason County fatal crash, but a claim against Ford Motor Company remains pending.

One June 12, Mason Circuit Court Judge David W. Nibert finalized a settlement between the Estate of Ladonna Stewart and Progressive Insurance, which was the insurer on a car driven by Jacob Pillow that was involved in the wreck.

The wreck occurred on May 3, 2011, on Route 62.

According to an amended order approving the settlement, Philip Stewart and the estate of his wife reached a $20,000 agreement with Progressive.

A separate lawsuit filed against Steven Ray Higgins and Erie Insurance Company was settled in May in U.S. District Court for the Southern District of West Virginia. Terms were not disclosed, but the original complaint against Higgins sought $1.5 million.

According to court records, Stewart was traveling in front of the vehicle operated by Pillow on Route 62 near West Columbia.

Pillow’s vehicle went off the road and struck a guardrail, then came back to the road and rear-ended Stewart’s vehicle.

Her vehicle crossed the center line into northbound traffic and was struck by another vehicle.

The witness statement of Higgins, who was the passenger in Pillow’s car, said he grabbed the steering wheel because Pillow passed out.

The crash occurred at 4:20 p.m. Higgins’ statement said that he and Pillow had taken a controlled substance the night before.

On May 1, Stewart’s estate filed a lawsuit against Ford, alleging the seatbelt and airbag in her 2000 Explorer were defective. The suit is seeking more than $1.2 million.

The lawsuit was removed to federal court on July 10.

Stewart lived in West Columbia and was 43 years old when she died. She was a substitute teacher in Meigs County, Ohio. Her estate is represented by attorney Harvey Peyton.

Pillow was charged with negligent homicide and was sentenced to 90 days in jail and two years of probation.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

Cline

HUNTINGTON – Mason County residents are suing after allegedly sustaining injuries in an automobile accident.

Megan D. Bowling, as mother and next friend of Jacob Allen Woyan, an infant, filed a lawsuit Oct. 7 against Appalachian Electrical Supply Inc. and Brad Prince in the Circuit Court of Mason County, citing negligence and vicarious liability.

According to the complaint, on Sept. 1, 2006, Bowling and Prince were involved in a motor vehicle collision on West Virginia Route 2.

The plaintiff states Jacob Allen Woyan was a rear-seat passenger in her vehicle and the defendant was driving a motor vehicle owned by Appalachian Electrical Supply. According to the complaint, Prince failed to slow down and collided with the plaintiff’s stopped vehicle, causing Jacob Allen Woyan to sustain serious injury.

The plaintiff is seeking an undisclosed amount in damages and is being represented in the case by attorneys Robert D. Cline, Jr., Robert A. Campbell and Eric M. Hayhurst of Farmer, Cline & Campbell PLLC.

The lawsuit was removed to U.S. District Court for the Southern District of West Virginia on Oct. 30.

In the removal notice, the defendants allege that the amount in controversy exceeds a $75,000 threshold for federal jurisdiction.

The defendants are represented by Sarah A. Walling of Jenkins Fenstermaker in Huntington.

Circuit Court of Mason County Case No. 13-C-152
U.S. District Court for the Southern District of West Virginia Case No. 3:13-cv-27347