Cox v. Copperfield, 76422

Docket Nº76422
Citation138 Nev.Adv.Op. 27
Case DateApril 14, 2022
CourtSupreme Court of Nevada

138 Nev.Adv.Op. 27

GAVIN COX; AND MIHN-HAHN COX, HUSBAND AND WIFE, Appellants,
v.

DAVID COPPERFIELD, A/K/A DAVID S. KOTKIN; MGM GRAND HOTEL, LLC; BACKSTAGE EMPLOYMENT AND REFERRAL, INC.; DAVID COPPERFIELD'S DISAPPEARING, INC.; AND TEAM CONSTRUCTION MANAGEMENT, INC., Respondents.

No. 76422

Supreme Court of Nevada

April 14, 2022


Appeal from a district court judgment entered on a jury verdict and from a post-judgment order denying a motion for a new trial and for partial judgment as a matter of law in a personal injury action. Eighth Judicial District Court, Clark County; Mark R. Denton, Judge.

Harris & Harris, Injury Lawyers, and Heather E. Harris and Brian K. Harris, Las Vegas; Morelli Law Firm, PLLC, and Benedict P. Morelli, Perry S. Fallick, and Sara A. Mahoney, New York, New York, for Appellants.

Selman Breitman, LLP, and Elaine K. Fresch and Gil Glancz, Las Vegas, for Respondents David Copperfield and David Copperfield's Disappearing, Inc.

Selman Breitman, LLP, and Jerry C. Popovieh and Gil Glancz, Las Vegas, for Respondent MGM Grand Hotel, LLC.

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Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC, and Howard J. Russell and D. Lee Roberts, Jr., Las Vegas, for Respondent Backstage Employment and Referral, Inc.

Lewis Roca Rothgerber Christie LLP and Daniel F. Polsenberg, Joel D. Henriod, Abraham G. Smith, and Chelsee C. Jensen, Las Vegas, for Respondent Team Construction Management, Inc.

BEFORE THE SUPREME COURT, EN BANC.[1]

OPINION

PICKERING, J.

This is an appeal from a judgment on a defense verdict in a personal injury case. Appellants complain that the district court's evidentiary and instructional errors prejudiced their case, requiring reversal and remand for a new trial. Chief among the errors claimed is the district court's decision to admit six surveillance videos of appellant Gavin Cox walking easily and without assistance outside of court. The videos contradicted Cox's in-court presentation, where he used his attorney's or the marshal's arm to walk to and from the witness stand and testified that he uses assistance to walk even when not in court.

The videos qualified as impeachment-by-contradiction evidence, and the district court did not abuse its discretion in admitting

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them. The other claimed errors-that the district court did not adequately admonish defense counsel for improper statements during closing argument; that it misapprehended the record when it allowed the jury to consider comparative negligence; that it should have granted a new trial because the jury could not have followed the court's instructions and still returned the verdict it did; and that it should have told the jury why it canceled a jury view-also fall short. Most involve matters entrusted to the district court's sound discretion; some, the Coxes invited or failed to preserve; and none supports that the district court abused its discretion in denying a new trial. We therefore affirm.

I.

A.

Cox attended respondent David Copperfield's magic show at the MGM Grand Hotel in Las Vegas. Cox volunteered, and Copperfield chose Cox, as one of 13 audience participants in the show's "Lucky #13" illusion. The illusion begins with the audience participants sitting in two rows of chairs in an on-stage prop. A curtain is draped around the prop, the prop is illuminated, and the participants (apparently) disappear. While this is going on, employees of respondent Backstage Employment and Referral, Inc. (Backstage), guide the participants through a "runaround" route: out of the prop, down several stairs, through a hallway and, eventually, outdoors. The participants proceed along a stretch of the MGM's exterior, then reenter and reappear at the back of the showroom, as if by magic.

Cox fell during the outdoor portion of the runaround. The parties dispute where Cox fell and why. The Coxes allege, and Cox testified, that the outdoor portion of the runaround was intermittently dark, then light, and that he slipped on construction dust and fell while running as fast

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as he could up an unsafely sloped ramp. Respondents maintain, and presented evidence to support, that Backstage employees guided participants through the route with lights, that they led the group along at a "brisk walk" or "light jog," and that Cox fell on level concrete, 15 or more feet away from the ramp. Respondents also presented experts, who examined the available evidence and opined that Cox tripped-not slipped-when he failed to pick up his foot and caught his toe on the ground.

B.

Cox and his wife, Minh-Hahn Cox, sued Copperfield-both individually and through his corporation, David Copperfield's Disappearing, Inc. (collectively, Copperfield)-MGM Grand Hotel, LLC, Backstage, and Team Construction Management, Inc. (Team) for negligence; respondeat superior; negligent hiring, training, and supervision; loss of consortium; and punitive damages, seeking over $1 million in damages for the traumatic brain, spine, and shoulder injuries that Cox allegedly suffered from the fall.

On respondents' motion, the district court bifurcated the trial into two phases: liability and damages. The Coxes opposed bifurcation, arguing that it would unfairly prevent them from explaining to the jury how Cox's injuries have affected him and the way he presents himself.[2] To address the Coxes' concerns, the district court crafted a unique bifurcation order. While the order generally precluded medical or other evidence relating to damages during the first phase of the trial, it permitted the Coxes to present evidence "concerning the nature of the injuries claimed," specifically, "what Mr. Cox alleges his injuries generally are and to establish

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that Mr. Cox may have less than a clear recollection of the events on the night of the fall."

Even bifurcated, the first phase of the trial took seven weeks. Before Cox testified, the judge gave the jury a preliminary instruction about Cox's alleged brain injury:

Ladies and gentlemen, Mr. Cox alleges that, as a result of this accident, one of the injuries he sustained was a traumatic brain injury which may affect the way he testifies during this trial. You may take this allegation into consideration when you are evaluating his testimony.

On direct examination, Cox testified about his injuries:

I hit the ground. And ... I felt a pain shoot through me like I never, ever felt before. It was like a lightning bolt going through the whole of my shoulder and left-hand side.
I'm in agony.... I am in so much pain .... I'm hurting and I'm hurt.

The district court overruled respondents' objection to this testimony, deeming it permissible under the flexible parameters of the bifurcation order. Cox continued:

I was sat down with my shoulder hanging in the center of my chest. . . . [Copperfieldj said, "Are you hurt?" And I said yes.

Cox did not just verbalize his injuries to the jury. He also visually presented himself to the jury as a person who needs assistance to walk. Over the two days his testimony spanned, Cox used his attorney's or the marshal's arm as support to walk to and from the witness stand. Up to that point in the trial, he had also used help to come and go from the courtroom.

On cross-examination, Backstage's attorney asked Cox if he used assistance to walk when not in the jury's presence. Cox answered that

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he did. Backstage later moved to admit six 30-second video clips of Cox walking normally and without physical assistance outside of court. These videos show Cox walking his dog on a leash, with his wife, and with his family on the way to trial, all unassisted. Over the Coxes' objection that conduct is not testimony and cannot be impeached, the court admitted the videos, stating that "I consider[ ] that whatever has happened in open court is fair game. And, accordingly, 111 permit the video." Respondents played the videos for the jury alongside courtroom footage of Cox walking with assistance to and from the witness stand.

Closing arguments focused on the conflicts in the evidence- i including between Cox's trial and deposition testimony-as to the circumstances of his fall. Respondents urged the jury to consider the difference between the way Cox walked in court and in the videos in assessing Cox's credibility. MGM's counsel, Jerry Popovich, went further and argued that Cox has "been manipulating this jury from day one with every move he made. You shouldn't believe a word that comes out of his mouth .... He just wants a payoff." After the lunch recess, the Coxes objected to Popovich's comments but added "we're not asking for a mistrial. We're asking for an admonition." The district judge sustained the objection and, when the jury returned from lunch, admonished them to disregard Popovich's remarks.

The Coxes moved for judgment as a matter of law on respondents' comparative negligence defense. The district court denied their motion and instructed the jury on both negligence and comparative negligence. After deliberation, the jury returned a special verdict finding that Backstage and Team Construction were not negligent; that MGM and Copperfield were negligent but that their negligence was not the proximate

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cause of Cox's fall; and that Cox was comparatively negligent and 100 percent the cause of his fall. Renewing their earlier motion, the Coxes moved for judgment as a matter of law on respondents' comparative negligence defense. They also moved for a new trial under NRCP 59(a). The district court denied both motions, and the Coxes timely appealed.

II.

On appeal, the Coxes contend that the district court abused its discretion in denying their motion for a new trial under NRCP 59(a)(1). See Gunderson v. DM. Horton, Inc., 130 Nev. 67, 74, 319 P.3d 606, 611 (2014) ("This court reviews a district court's decision to grant or deny a motion for a new trial for an abuse of discretion."). They assert that the district court...

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