Daniel F. Polsenberg

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Recent Appellate Successes

• In June 2012, Dan obtained reversal of a $5.5 million verdict and a new trial in a premises liability case, persuading the appellate court that a “mode of operation” liability theory applies only in self-service contexts. FGA, Inc. v. Gilgio, 128 Nev. ___, 278 P.3d 490 (2012).
• Also in June 2012, Dan reversed a judgment against and obtained judgment as a matter of law for a medical malpractice insurer, in a published opinion that limits the type of notice required to secure coverage under a claims-made policy. Physicians Ins. Co. of Wisconsin v. Williams, 128 Nev. ___, 279 P.3d 174 (2012).
• Business owners not jointly and severally liable for damages caused when one patron attacks another. Instead, a business owner’s liability is limited to his share of fault, if any. Café Moda v. Palma, 128 Nev. ___, 272 P.3d 137 (2012).
• In March 2012, Dan successfully appealed from an excessive punitive damage award and reduced it by more than half. The Nevada Supreme Court reduced the ratio of punitive damages to compensatory damages from 2.1:1 to 1:1. Exposure Graphics v. Rapid Mounting Display, No. 54069, 2012 WL 1080596 (Nev. March 29, 2012).
• In July 2011, Dan successfully obtained mandamus relief in the Las Vegas Hepatitis C cases holding that defense medical experts are not required to proffer alternative, affirmative theories of causation. Williams v. District Court, 127 Nev. ___, 262 P.3d 360 3 (2011).
• In April 2011, Dan persuaded the appellate court to vacate a district court order granting a new trial and reinstate a defense verdict, with an opinion that sets new standards for sanctions based on alleged attorney misconduct during trial. Bayerische Motoren Werke v. Roth, 127 Nev. ___, 252 P.3d 649 (2011).
• In July of 2011, Dan successfully obtained affirmance of a judgment where plaintiff sought a new trial based on jury selection and other issues. Jitnan v. Oliver, 127 Nev. Adv. Op. 35, 254 P.3d 623 (2011).
• In October of 2011, He successfully defended a defense verdict in a products liability case. The Court was persuaded that federal maritime law’s comparative fault doctrine displaced ordinary strict products liability principles, and that the plaintiff’s own negligence therefore barred any recovery. Hill v. Chaparral Boats, Inc., No. 54368, 2011 WL 5009413 (Nev. Oct. 18, 2011).
• In February 2011, Dan successfully defended a defense judgment in a catastrophic personal injury case involving paraplegia. Lord v. Chew, No. 49969, 2011 WL 676089 (Nev. Feb. 23, 2011).
• In December 2010, He successfully represented a large construction company in litigation regarding priority of mechanics liens, procuring reversal of an adverse judgment. Hardy Companies, Inc. v. SNMARK, LLC, 126 Nev. ___, 245 P.3d 1149 (2010).
• In July 2009, Dan obtained a new trial in an insurance bad faith action, successfully arguing that an insurance company has no duty to consent to a stipulated excess judgment or file an independent interpleader action if not expressly provided for in the policy. Allstate Ins. Co. v. Miller, 125 Nev. ___, 212 P.3d 318 (2009).
• September 2008, He obtained a reversal of $1.2 million in damages on behalf of Countrywide in a case regarding a mistaken foreclosure. The Nevada Supreme Court agreed with Mr. Polsenberg that damages for breach of contract and negligence were duplicative of plaintiffs’ damages for trespass and conversion to their personal property. Countrywide Home Loans, Inc. v. Thitchener, 124 Nev. __, 192 P.3d 243 (2008).
• In August 2008, Dan obtained a complete reversal of a $33 million jury award for a contract regarding the land development. Instead of simply vacating the judgment and remanding for a new trial, moreover, the court ruled that no liability could lie against Mr. Polsenberg’s client as a matter of law. The William Peccole 1982 Trust v. Stoddart, Case No. 42234 (August 22, 2008).
• In February 2008, He obtained a complete reversal of attorney’s fees under Nevada’s offer of judgment provisions and the district court’s erroneous award of prejudgment interest on punitive damages. Most significantly, however, Mr. Polsenberg convinced the supreme court to remand the punitive damages award of 2.5 times the compensatory damages because it was constitutionally excessive the despite the statutory limit of 3 times the compensatory award. Rapid Mounting Display v. Exposure Graphics, Case No. 44664 (Feb. 29, 2008).
• In March 2008, Dan obtained a favorable ruling in an appeal that raised an issue of first impression under the Uniform Prudent Investor Act. The case concerned one of the successor trusts to the historic John Paul Getty Family Trust created in 1934. The district court denied the special trustee’s petition to retroactively adjust amounts of trust income and principal distributed to the trust beneficiary and the trust corpus. The Nevada Supreme Court reversed the district court and held that at a minimum, a special trustee may adjust between principal and income accrued in the year immediately preceding the special trustee’s appointment. In re Orpheus Trust, 124 Nev. Adv. Op. No. 16, 179 P.3d 562 (March 27, 2008).

Dan is also experienced in defending favorable results on appeal. For example:

• In May 2012, Dan obtained affirmance of a defense judgment in a multiple-wrongful-death case alleging a defective tire. Michelin North America, Inc. v. Deal, 2012 WL 1929336 (Nev. 2012).
• In June 2009, Dan obtained an affirmance in a challenge to a community property award in a divorce action. Mr. Polsenberg successfully argued that post-separation transfers of community property are proper in an attempt to preserve the estate’s value. Kryger v. Kryger, No. 47534 (Nev. June 16, 2009) (unpublished order)
• In June 2009, He successfully argued that a successor corporation may enforce restrictive employment covenants acquired by merger, thereby distinguishing Traffic Control Services v. United Rentals, 120 Nev. 168, 87 P.3d 1054 (2004), which held that such covenants are not assignable when acquired by purchase. HD Supply Facilities Maint. v. Bymoen, 125 Nev. ___, 210 P.3d 183 (2009).
• In April 2009, Dan obtained an affirmance of a jury verdict awarding $12 million in damages in a wrongful death action. Courtesy Cars, Inc. vs. Morgan, No. 47582 (Nev. April 30, 2009) (unpublished order).
• In October 2008, He successfully argued that the collateral source rule does not preclude an offset of a jury award of damages where the contract expressly provides that the insurance proceeds must be made available to the lessor for any losses arising from use of the premises. Winchell v. Schiff, 124 Nev. ___, 193 P.3d 946 (2008).
• In April 2008, Dan prevailed in a case before the Ninth Circuit Court of Appeals regarding Nevada’s “countersignature” statute, NRS 680A.300, where he successfully argued that the district court did not err in holding that the statute violated the Privileges and Immunities and Equal Protection clauses of the United States Constitution because it discriminated against licensed nonresident insurance agents who were prevented from selling insurance in Nevada. Restrepo v. Molasky, 2008 U.S.App. LEXIS 7652 (9th Cir. April 10, 2008).
• In January 2008, He obtained an affirmance of a jury verdict in a defamation action. Ripplinger v. Perini Building Company, Case No. 46996 (2008).

Making The Record in Complex Trials:

Dan has considerable trial experience in scores of cases. For example, he was lead counsel in the 1997, five-week trial arising from multiple deaths in a Laughlin crane accident. From 1998 to 2005, in addition, he was lead defense counsel in the Nevada Fen-Phen cases.

Dan  now uses that extensive trial experience to specific advantage in appeals. He is frequently involved during the trial of large and complex cases to prepare them for appeal and to argue legal issues, such as jury instructions and dispositive motions. Representation examples include:

• Out-of-state counsel called Dan into a trial in Elko, Nevada, where the local client was making a $60 million UCC claim, to assist with jury selection and to successfully resist a motion to change venue. After prevailing on the motion, Dan successfully defended the ruling on appeal. Dresser Industries, Inc., Roots Division v. Newmont Gold Company, Case, CV-C-98-29863. Supreme Court Case 45313 (2006).
• In November 2003, Dan was brought in on the third day of a three-month long class-action trial and, on appeal in December 2005, obtained an historic reversal of the adverse $14-million-dollar judgment and a new trial. Shuette v. Beazer, 124 P.3d 530 (2005).
• In 2006, in mid-trial, a client called upon Dan to preserve appellate issues in a trial that resulted in a $14 million compensatory and punitive damage wrongful-death award, arising out of the client’s temporary employee taking a truck, without permission, and then driving under the influence. He successfully reduced the punitive damage award to $4 million. The matter is now on appeal. Delegado v. Terrible Herbst, Case A437408. Las Vegas Review Journal Editorial

Through 2007 and 2008, Dan continued to participate in large trials to prepare a record for appeal where the circumstances have threatened potentially large verdicts. These trials resulted a $30 million verdict against a major tire company, a $20 million verdict against a doctor’s group, and two defense verdicts where plaintiffs had asked for tens of millions. Dan now has those cases on appeal.