Nevada Court of Appeals hears first oral arguments

Cued by the words “all rise,” the three judges of Nevada’s new Court of Appeals entered their Las Vegas courtroom Wednesday to mark another first.

At 10 a.m. on the 17th floor of the Regional Justice Center, the court heard oral arguments for the first time.

Chief Judge Michael Gibbons began by thanking those in attendance.

“We very much appreciate your presence at this historic event,” Gibbons said.

Gibbons said he and his fellow judges on the new court, Jerome Tao and Abbi Silver, took the bench Jan. 5 and already have resolved 165 cases. The court is expected to issue its first published opinion today.

In 2014, voters approved the creation of the Court of Appeals by allowing an amendment to Article 6 of Nevada’s Constitution. Its judges were appointed by Gov. Brian Sandoval.

The Nevada Supreme Court assigns cases to the Court of Appeals. Both share courtrooms in Las Vegas and Carson City.

Among the observers Wednesday morning was Supreme Court Justice Mark Gibbons, Michael Gibbons’ brother.

The appeals court chose a product liability case for its first oral arguments. The case was filed in 2009 by Las Vegas resident Emmett Michaels, a former FBI agent, against Pentair Water Pool and Spa Inc.

Michaels lost his left eye in July 2008 when his pool filter exploded. He claimed the product was defectively designed, but a jury ruled in favor of the defendant after a 2011 trial.

In his appeal, Michaels raised such questions as:

■ Did District Judge Douglas Herndon properly admit certain evidence at trial?

■ Did attorney misconduct occur during closing arguments?

■ Was the verdict supported by the evidence, or was evidence ignored by the jury?

Pentair’s lawyers contend the trial was fair and that its outcome was justified.

Attorney Robert Winner, who represents Michaels, began his arguments Wednesday by discussing the filter’s design.

“That design has been around for decades, and there have been explosions for decades,” Winner said.

He also said two safer designs have been available for decades.

Attorney Daniel Polsenberg, who represents Pentair, said his client disagrees with Michaels’ version of the facts, including his contention that he did nothing more than turn on power to the filter before it exploded.

The lawyer said Michaels told his treating physicians that he was injured while working on his pool filter.

“There was not a defect in this machine,” Polsenberg argued.

All three judges asked questions during the arguments. Afterward, they came down from the bench to greet the lawyers and pose for pictures.

“We are so thrilled and excited to be part of history,” Silver said.

She said she had butterflies in her stomach in anticipation of the momentous occasion, though she has been a judge for more than 12 years.

The appeals court heard arguments in four cases Wednesday.

Polsenberg, past president of the State Bar of Nevada, said his first appearance before the Court of Appeals presented “an exciting opportunity to be prepared for anything.”

Although he has argued more than 250 appeals during his career, Polsenberg said he had no idea what the judges on the new court would be interested in.

Polsenberg said the judges proved well-prepared, and he enjoyed the experience of appearing before them.

“You could feel the energy and electricity in that room,” he said.

Polsenberg said he favored the creation of an appeals court for Nevada.

“The Supreme Court had far too many cases to give them all enough attention.”

Contact reporter Carri Geer Thevenot at or 702-384-8710. Find her on Twitter: @CarriGeer.

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