Mason attorney previously sanctioned over '79 plane crash settlement

By Lawrence Smith | Apr 25, 2008

Musgrave 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.

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."

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