In January of 2018, Mr. Creager was selected as a Virginia Super Lawyer for the 13th straight year. Super Lawyers is a rating service of outstanding lawyers who have attained a high-degree of peer recognition and professional achievement. This selection process includes independent research, peer nominations and peer evaluations.
In September of 2017, Mr. Creager's article on Virginia appellate practice was selected as the lead article for publication in the Appellate Practice Issue of the Virginia Trial Lawyer's Association Journal. The article addressed the "Tipsy Coachman" doctrine, which is also known as the "right for the wrong reason" doctrine. When the doctrine applies, it enables a litigant to uphold a trial court's decision on appeal even though the trial court's reasoning was incorrect. The full copy of the article can be reviewed by clicking on this link-- Riding with the "Tipsy Coachman" How to affirm a trial court that was wrong
In a ruling by the United States District Court in Alexandria, Mr. Creager recently defeated an attempt by a defense lawyer employed by a major insurance company to shut down deposition questioning of a truck driver regarding her knowledge of the hazards posed by commercial motor vehicles. With increasing frequency, defense attorneys have been attempting to block such questioning on the theory that it is "Reptile Theory" questioning (i.e., is designed to elicit testimony which will cause jurors to decide cases based upon fears for the safety of themselves and others in their community. After the defense lawyer instructed the truck driver to refuse to answer such questions, Mr. Creager, representing the Plaintiff, filed a motion asking the Court to compel the truck driver to answer. Mr. Creager contended that the various hazards posed by operation of a truck under certain circumstances are clearly relevant to the degree of care that should be used. Following briefing and oral arguments, the Court on June 29, 2017 entered an Order granting the motion to compel. See Bogart v. Ward, Civil Case Number 1:16-cv-1544, Docket #48.
In May of 2017, Mr. Creager and co-counsel, John C. Shea of Marks & Harrison, P.C., recovered $250,000.00 in damages for an 89-year-old man who sustained injuries while being transported to the hospital by a local rescue squad. The man had been receiving care at a nursing home for mobility problems. He had greatly improved and was due to be discharged home in two days. Two rescue squad workers arrived to move the plaintiff from the nursing home for routine transportation for an evaluation at the hospital. When they allowed the gurney to move sideways, topple over, and fall, the man's head struck the concrete.
In February of 2017, the Virginia Lawyers Weekly listed the top personal injury recoveries reported in Virginia for the previous year. Mr. Creager was co-counsel with John C. Shea of Marks & Harrison, P.C., on a case listed as the 10th largest recovery ($2.5 million) in the state. The plaintiff was traveling southbound on Route 35 in Sussex County when a tractor trailer ran a stop sign at the intersection of Rout 626 and Route 35 and collided with the plaintiff's vehicle. Virginia State Police investigation showed that the condition of the truck's brakes was so bad it should not have been on the road. Defendants admitted negligence, but argued plaintiff should have avoided the accident. One vehicle traveling in front of the plaintiff managed to avoid the tractor trailer, and defendants claimed plaintiff was distracted by her cell phone. In the months before trial, Mr. Creager took a deposition of a spokesman for the cell phone carrier which established that the transactions that had taken place involved an incoming call, not actual phone usage by the plaintiff. The case settled one night prior to the scheduled trial date.
In the Fall of 2016, a group of leading medical malpractice attorneys in Virginia voted to invite Mr. Creager to join their statewide organization known as the Etheridge Society. Mr. Creager attended the first meeting in November of 2017, and was selected to serve on a committee studying ways to challenge the statutory limitation (cap) on damages which can be recovered for medical malpractice.
In February of 2016, the Virginia Lawyers Weekly listed the top personal injury recoveries reported in Virginia for the previous year. Mr. Creager was co-counsel with Stephen M. Smith and David B. Holt of Hampton, and Edward E. Scher of Richmond on a case listed as the 10th largest recovery ($3.0 million) in the state. The plaintiff went to Langley Speedway to participate in an event that offered members of the public the chance to drive a NASCAR-style race car on a real race track. Plaintiff had never driven a race car before. While the plaintiff drove around the track at approximately 35 mph, the vehicle went out of control and collided with the wall on the driver's side of the vehicle. In the plaintiff's assigned car, the seat back was not securely attached to the roll cage, and as a result, the plaintiff's helmeted head struck either the roll bar or the wall, causing a traumatic brain injury. Plaintiff sued both the event promoter and the track, alleging that the speedway was in a joint venture with the promoter and should share liability. The track owner claimed it merely leased its facility. After protracted litigation and trial preparation, the case settled.
In January of 2016, Mr. Creager, as co-counsel with Stephen Swain of Virginia Beach, achieved a $1.4 million recovery in a medical malpractice case. Plaintiff, age 54, was having flu-like and sinus symptoms, with cough, fever, and headache. He sought help from his primary care provider who diagnosed a sinus infection and prescribed an antibiotic. The next day, the plaintiff felt worse and decided to go to his local hospital emergency department. The ER doctor obtained the history of the plaintiff (a lifelong cigarette smoker), examined the plaintiff and then ordered tests, including chest X-rays. The ER doctor reviewed the test results, including the X-ray report, diagnosed pneumonia and prescribed medication. The plaintiff recovered from the pneumonia within several days. Unbeknownst to the plaintiff, the X-rays taken at the hospital, the results of which were available and reviewed before the plaintiff was discharged, showed a 14mm nodular density in one of the plaintiff's lungs. The X-ray report expressly recommended "correlation with CT," i.e., follow-up CT testing to further investigate the 14 mm nodular density. The plaintiff later testified that he was not informed of this finding or of the need for follow-up testing. Almost two years later, the plaintiff had a pain in his chest and shoulder. His wife was concerned about the possibility of a heart attack, and they returned to the same hospital emergency room. Another emergency room doctor examined the plaintiff and ordered a chest X-ray and other tests. After the results were reviewed, the emergency room doctor advised plaintiff he did not have a heart attack, but simply had a nerve pain in his shoulder. The doctor also mentioned to the plaintiff that the nodule seen on the earlier X-ray had become larger; the doctor asked the plaintiff whether he had further testing done regarding that nodule. The plaintiff replied that he had never been informed of the earlier nodule finding or the need for CT follow-up. The plaintiff immediately sought further testing and medical care and within several months learned that by that time he had Stage IIIA lung cancer. At another hospital, the mass was cut out, the plaintiff received chemotherapy and radiation, but the cancer was not eliminated and instead was also found in his brain. Doctors used cyberknife technology to destroy the cancerous lesions in his brain, but plaintiff's cancer was not eliminated and spread in his chest and was also found in his spinal area. Plaintiff filed a medical malpractice action against the first emergency room doctor, the hospital and certain other healthcare providers.
In 2015, Mr. Creager prevailed in an appeal to the Supreme Court of Virginia by a nursing home that had sought to force the family of an elderly woman to arbitrate their claims for her negligent injury and death. The family argued they had the right to have the case tried to a jury. The trial court held that even though the woman had signed an arbitration agreement, it would not be enforced because the agreement also referred to the Virginia Landlord-Tenant Act, which the trial judge concluded prohibited arbitration clauses. On appeal, Mr. Creager renewed that argument, but also added a new argument - under the law of Virginia the beneficiary of the claim for wrongful death of the elderly woman was her daughter. Mr. Creager argued that her daughter should not be bound by an arbitration agreement she never signed. Shortly after the Justices of the Supreme Court of Virginia responded favorably to the new argument as a basis to uphold the trial court, the nursing home abandoned its appeal. The Court's recording of the oral argument is available on the Court's website at the following web page address.
In 2014 and 2015, Mr. Creager, together with John C. Shea and Mark S. Lindensmith, represented the family of a girl who died after falling through the railing of hotel balcony. The girl, who was almost 3 years old, and members of her family rented a room at a hotel for an overnight stay at the beach. While on the balcony with family members, the girl lost her balance and fell through one of the spaces between the balcony railings. She ultimately died from her injuries. Mr. Creager obtained experts who measured the spaces between the balusters (vertical railings) on the balcony and determined that in certain areas they were as much as 5.51 to 5.55 inches apart. While the balusters met building code standards, the plaintiff (the girl's mother) contended they were unsafe. The hotel initially contended that it was impossible for a child to fall through the railings, and argued that the child must have climbed over the top. Plaintiff's experts examined CT scans of the child's skull taken at the hospital before she died and determined the breadth of her skull was 5.48 to 5.51 inches at the widest area. Plaintiff's anthropometric expert opined that the railings would not have prevented the child from passing through them. Mediation held two weeks before trial was not successful, but the mediator remained involved and the case settled for $1.5 million several days before the first day of trial.
Roger T. Creager Wins Appeal to the Supreme Court of Virginia; Overturns Defense Verdict in Airplane Crash Case
On April 16, 2014, Roger T. Creager presented oral argument to the Supreme Court of Virginia in favor of an appeal regarding Harman, Administratrix, etc., et al. v. Honeywell International, Inc. (Rec. No. 130627). Mr. Creager was retained to appeal to the Supreme Court after a jury trial in Chesterfield County resulted in a defense verdict. The case involves a 2008 airplane crash in Chesterfield County in which a father and son were both killed. After the adverse jury verdict was rendered at trial, John C. Shea (a past President of the Virginia Trial Lawyers Association) and Gary C. Robb (a nationally-recognized airplane crash litigator from Kansas City), asked Mr. Creager to become involved in the case to seek a new trial. Mr. Creager petitioned the Supreme Court to consider whether to grant a new trial on the basis that five specific rulings of the trial court were erroneous and prejudicial. Based upon Mr. Creager's Petition for Appeal and oral argument to a three-Justice panel of the Supreme Court, on December 13, 2013, the Supreme Court agreed to hear an appeal based upon all five errors assigned by Mr. Creager. Following the submission of additional briefing, the full Court heard oral argument on April 16, 2014. To listen to Mr. Creager's oral argument and the questions posed by the Supreme Court, click here. On June 5, 2014, the Supreme Court granted the plaintiffs a new trial. The Court agreed with Mr. Creager's contentions that the trial court had erred by allowing testimony regarding the contents of a private accident investigation report under the hearsay exception for "learned treatises," by allowing certain lay witnesses to give opinion testimony, and by allowing improper closing arguments by Honeywell's attorney. To review a copy of the Court's opinion, click here.
The Virginia Lawyers Weekly selected Mr. Creager for recognition as one of 20 members of its "Leaders in the Law" class of 2014. The honorees are selected by the Virginia Lawyers Weekly, the Virginia weekly legal newspaper, which recognizes the lawyers across the commonwealth who are setting the standard for other lawyers in Virginia. "Leaders in the Law" are recognized for changing the law, serving the community, changing practice or improving Virginia's justice system, among other accomplishments.
Creager co-authors appellate brief successfully defending Virginia $10 million verdict
Leading Virginia brain-injury litigation attorneys Stephen M. Smith, Carlton T. Bennett, and Edward E. Scher retained Roger T. Creager several months ago to serve with them as co-counsel on appeal of a $10 million jury verdict and judgment that Smith, Bennett, and Scher won in August of 2008 in the Circuit Court of the City of Norfolk. Creager and this team of outstanding lawyers authored a Brief in Opposition to the defendant trucking company’s Petition for Appeal. The Brief in Opposition to the appeal argued that many of the issues raised by the trucking company had not been properly raised and preserved in the trial court, and all the arguments on appeal lacked merit in any event. Oral argument on the Petition for Appeal was presented to a Writ Panel on February 11, 2009. On February 20, 2009, the Virginia Supreme Court denied the Petition for Appeal, and thereby allowed the full $10 million verdict and judgment to stand.
Appeals and post-judgment motions–principles of finality
Roger T. Creager recently spoke at the Virginia State Bar Appellate Advocacy Summit regarding appeals and post-judgment motions, and how they are affected by principles of finality under Virginia law. His presentation was titled, Some Principles of Finality.
Rules of the Virginia Supreme Court Addressing Discovery of Electronically-Stored Information
For the past two years, Roger T. Creager has served as Chair of the Boyd-Graves Conference Subcommittee Regarding Discovery of Electronically-Stored Information. Proposed changes to the Rules of the Virginia Supreme Court which specifically address discovery of electronically-stored information are currently pending for consideration by the Supreme Court of Virginia.
The Court is expected to consider the proposed changes at its next business meeting in September 2008 or thereafter in the Fall 2008. A summary of the status of the proposed changes has been prepared by Mr. Creager together with Exhibit A thereto, which contains the language of the proposed changes as they stood in October 2007 as promulgated by the Virginia Supreme Court’s Advisory Committee on Rules of Court. The proposed changes have been further revised since October 2007, and those further revisions are indicated in the summary prepared by Mr. Creager.
Creager to Speak at 2008 Brain Injury Law Retreat
The Virginia Trial Lawyers Association invited Roger T. Creager to speak at its 2008 Brain Injury Law Retreat on September 27, 2008. My Creager will speak on the topic of excluding defense evidence asserting that the plaintiff is allegedly faking or feigning his or her cognitive limitations and impairments and is “malingering.”
Creager Presents at Appellate Advocacy Summit
The Virginia State Bar Appellate Law Section invited Roger T. Creager to make a presentation at its Appellate Advocacy Summit on August 28, 2008. Mr. Creager will address the topic of when a trial court order or judgment becomes final for purposes of triggering the deadlines for making post-trial motions and noting an appeal.
Roger T. Creager Chairs Boyd-Graves Conference Subcommittee
In June and July 2008, Roger T. Creager served as Chair of the Boyd-Graves Conference subcommittee studying the discovery of electronically stored information in Virginia civil litigation. Mr. Creager will give the report of the Subcommittee to the Boyd-Graves Conference at its meeting in October of 2008.
The Boyd-Graves Conference is an organization of over 100 judges, legislators, and leading civil litigation attorneys from throughout Virginia that studies ways to improve civil litigation practice and procedures in Virginia. Mr. Creager has served on the Boyd-Graves Conference continuously since 2002.
This year’s Conference meeting will be held in Staunton, Virginia at the historic Stonewall-Jackson Hotel.
Roger T. Creager Steps Down as Chair of the Virginia State Bar’s Standing Committee on Legal Ethics
In June 2008, Roger T. Creager stepped down as Chair of the Virginia State Bar’s Standing Committee on Legal Ethics after completing six years of continuous service on that Committee. In 2002, the President of the Virginia State Bar, Bernard J. DiMuro, appointed Mr. Creager to serve on the Committee and he served for two three-year terms. During Mr. Creager’s tenure, the Committee issued numerous published legal ethics opinions on issues of importance to Virginia lawyers. The Committee also conducted an intensive study of the ethical standards governing use of undisclosed recordings and recommended changes on this subject matter to the Virginia Rules of Professional Conduct. Those recommended changes were published statewide for comment, and were then unanimously approved by the Council of the Virginia State Bar. At the request of the Virginia Supreme Court, the changes were published a second time for comment, and were once again approved by the Council in a nearly unanimous second vote. The proposed changes are pending before the Supreme Court of Virginia.
Roger T. Creager Speaks for Tort Seminar of the Virginia Trial Association
In May 2008, Roger T. Creager served as a speaker for the May Tort Seminar of the Virginia Trial Association. Mr. Creager addressed some of the leading Virginia Supreme Court decisions of greatest importance to personal injury lawyers in Virginia.
Roger T. Creager Authors Article on John Crane Opinion
In April 2008, Roger T. Creager wrote an article on the John Crane opinion and expert disclosure requirements for the statewide newspaper for Virginia lawyers, the Virginia Lawyers Weekly. See Creager, Roger T., “Assessing the probable impact of ‘John Crane, ‘” published in Virginia Lawyers Weekly, March 31, 2008.
Roger T. Creager Selected As Governor at Large on VTLA Board of Governors
In April 2008, Roger T. Creager was once again selected by the Nominating Committee of the Virginia Trial Lawyers Association (VTLA) to serve as a Governor at Large on the VTLA’s Board of Governors. The VTLA Nominating Committee is comprised of some of the leading plaintiffs’ personal injury lawyers in Virginia. Mr. Creager’s nomination was unanimously approved by the VTLA Board of Governors. Mr. Creager has been nominated and selected to serve as a Governor at Large every year since 2003. He served for two years prior to that as an Ex-Officio Member of the Board of Governors due to his work chairing VTLA committees.
The ‘Peer Review Privilege’ Should Not Shelter Hospital Policies and Procedures From Discovery
Roger T. Creager has published an article entitled, “The ‘Peer Review Privilege’ Should Not Shelter Hospital Policies and Procedures From Discovery,” in the Spring 2008 issue of the Virginia State Bar’s Litigation News.
In medical malpractice actions, doctors, hospitals, and other healthcare providers frequently argue that even though they were governed by written medical protocols, policies, and procedures when they provided services, the lawyers for persons injured as a result of their medical malpractice should be denied access to those protocols, policies, and procedures. This argument is especially unfair since the lawyers for the doctors, hospitals, and other healthcare providers have full access to those protocols, policies, and procedures.
Mr. Creager’s new article provides an in-depth study of this issue. He writes: “This article argues that the courts that have applied the statutory privilege to insulate hospital polices and procedures from discovery should reconsider their holdings in view of the flawed and incomplete reasoning of the case law applying the privilege and also because of more recent Virginia Supreme Court authority and legislative developments.” His article cites extensive legal authorities on the subject.
Roger T. Creager Selected as Panelist Virginia Bar Association
In January 2008, Roger T. Creager was selected by the Virginia Bar Association to serve as a panelist on a panel speaking on the topic of the Virginia Supreme Court’s recent John Crane decision and its effect on expert disclosure requirements in Virginia. Mr. Creager served on the panel along with retired Virginia Circuit Court Judge William Ledbetter, Jr. and two other Virginia lawyers at the Virginia Bar Association’s mid-winter conference in Williamsburg, Va.