Roger T. Creager
Winner of the Prestigious
VTLA Courageous Advocate Award
Founder of Virginia Trial Lawyers
Appellate Section
Practice Focused on Working
With Other Lawyers; Co-Counsel,
Consultation, Research, Briefing
and Post Trial
Experience With
Major Personal Injury Cases

Virginia Appeals Lawyer

Mr. Creager has extensive experience handling post-trial motions and appeals. For example, in 2013 the attorneys who represented the plaintiff in a major product liability case retained Mr. Creager to handle post-trial motions and an appeal from a defense verdict rendered after a two-week-long trial. The case involved the crash of an airplane which resulted in the deaths of the pilot and his passenger. Mr. Creager reviewed the massive record and identified five rulings of the trial court to assign as errors. On appeal, the Supreme Court of Virginia agreed that several of those rulings had been erroneous. The Supreme Court overturned the verdict for the defense and granted a new trial on all issues. See Harman v. Honeywell Int'l, Inc., 288 Va. 84, 758 S.E.2d 515, 518 (2014). Mr. Creager’s oral argument to the full Supreme Court is available on the Court’s website here.

At the trial of the Harman case, the plaintiff contended that a malfunction of the plane’s Honeywell flight control system caused the crash. On appeal, Mr. Creager contended that the trial court had erred by allowing into evidence inadmissible hearsay in the form of an investigative report prepared by the Mooney Airplane Company, Inc., the manufacturer of the airplane. Honeywell contended that a special statute that had been enacted by the Virginia General Assembly (Virginia Code Section 8.01-401.1) allowed this type of document to be introduced as evidence. In the Supreme Court of Virginia, both in briefs and at oral argument, Mr. Creager contended that the Mooney report was not the type of document contemplated by the statute. Mr. Creager also asserted that there was no testimony that established that the Mooney report met the statutory requirement of reliability. Mr. Creager also noted that the trial court had compounded the effect of its error by allowing the Mooney report to be introduced as an exhibit which went to the jury room, contrary to the limitations of the pertinent statute. The Supreme Court agreed with all of these contentions, overturned the defense verdict, and granted a new trial on all issues. The Supreme Court also found merit in Mr. Creager’s contention that the pilot’s friend and flight instructor was improperly allowed to testify that in his opinion “it wasn't the best of judgment” for the pilot to take off in the limited visibility conditions that existed at the time of the fatal flight. The Supreme Court agreed and held that the testimony was both “superfluous” and “an impermissible assessment of Grana's culpability for the accident.” The Court also agreed that the trial court had erroneously overruled an objection to a closing argument by Honeywell’s trial counsel which told the jury that the type of malfunction alleged by the plaintiff had “never happened before. There is no evidence this has ever happened anywhere any time.”

In another recent appeal handled by Mr. Creager in the Supreme Court of Virginia, Mr. Creager was retained by trial counsel to oppose the defendant’s appeal from the trial court ruling upholding the plaintiff’s right to a jury trial of her claims and refusing to enforce a contractual provision for arbitration which was contained in an agreement signed by a nursing whom resident who subsequently allegedly died after she was negligently knocked down by a medicine cart pushed by a nursing home employee. See Retirement Unlimited, Inc. v. Dorothy K. Williams, By Lauren Tompkins, Executrix, Supreme Court of Virginia Record Number 140665. On appeal of that decision, Mr. Creager invoked the “right for any reason doctrine” and advanced a new reason for affirmance of the trial court’s ruling. In his brief and at oral argument, Mr. Creager contended that although the nursing home resident herself had signed the agreement that contained the arbitration provision, the beneficiaries of her estate, who were the “real parties in interest” on the claim for her wrongful death, had never agreed to give up their right to a jury trial. The new reason was favorably received by the Court at oral argument. The Court’s recording of the oral argument is available on the Court’s website here.

During oral argument, Justice D. Arthur Kelsey reminded Appellants’ counsel [counsel seeking to compel arbitration] that the right to bring a wrongful death action “is never vested in a decedent.” Record No. 140665, Audio Recording of April 13, 2015 Oral Argument (see link above) at 12:36-39. Chief Justice Donald W. Lemons likewise observed that on a wrongful death claim “the parties in interest are the beneficiaries, not the estate,” and suggested that as a result the arbitration clause signed by the decedent prior to his death might not be binding upon the statutory beneficiaries. Oral Argument at 7:10-14. Chief Justice Lemons told counsel for the Appellants that although this rationale was not the basis of the trial court’s decision “it might be a basis for declaring that she [the trial court] was correct for a different reason altogether.” Oral Argument at 11:56 to 12:07. After oral argument, and prior to decision of the case, the Appellants decided to abandon the appeal. The case was remanded to the trial court for jury trial of the plaintiff’s claims.

Other appellate decisions in cases in which Mr. Creager was involved as counsel include: Acuar v. Letourneau, 260 Va. 180, 531 S.E.2d 316 (2000) (amicus curiae counsel) (upholding Virginia’s Collateral Source Rule against defense challenge); Radvany v. Davis, 262 Va. 308, 551 S.E.2d 347 (2001) (amicus curiae counsel) (upholding Virginia’s Collateral Source Rule and rejecting second defense attempt to undermine the Rule); Wagner v. Shird, 257 Va. 584, 585, 514 S.E.2d 613 (1999) (upholding jury verdict and judgment in favor of injured plaintiff) (counsel for plaintiff/appellee).

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