COX v. MGM GRAND HOTEL, LLC

138 Nev., Advance Opinion z7
IN THE SUPREME COURT OF THE STATE OF NEVADA
GAVIN COX; AND MIHN-HAHN COX, No. 76422
HUSBAND AND WIFE,
Appellants,
vs.
DAVID COPPERFIELD, A/K/A DAVID
S. KOTKIN; MGM GRAND HOTEL,
FILE
LLC; BACKSTAGE EMPLOYMENT
AND REFERRAL, INC.; DAVID
COPPERFIELD'S DISAPPEARING,
INC.; AND TEAM CONSTRUCTION
MANAGEMENT, INC.,
Respondents.
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.
Affirmed.
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 Breitrnan, 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. Popovich and Gil Glancz, Las Vegas,
for Respondent MGM Grand Hotel, LLC.
SUPREME COURT
OF
NEVADA
7 rk,
03) 1947A 416Pl.
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. PoIsenberg, Joel D.
Henriod, Abraham G. Smith, and Chelsee C. Jensen, Las Vegas,
for Respondent Team Construction Management, Inc.
BEFORE THE SUPREME COURT, EN BANC.'
OPINION
By the Court, 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
1The Honorable Abbi Silver, Justice, voluntarily recused herself from
participation in the decision of this matter. The Honorable Mark Gibbons,
Senior Justice, was appointed to sit in her place. The case was initially
argued before a three-justice panel, then transferred and reargued before
the en banc court.
2
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
3
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 wale 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
2We do not consider the propriety of the bifurcation order because the
Coxes do not raise it as an issue on appeal.
SUPREME Couarr
OF
NEVADA
(0) 1947A mat.
4
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.
cm 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. . . . [Copperfield] said, "Are you
hurtr 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
5
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 consided I that whatever has happened in open court
is fair game. And, accordingly, Ill 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—
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.
Were 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
6
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.
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. D.R. 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
erred, prejudicing their right to a fair trial, when it (1) admitted the sub
rosa videos, (2) did not adequately admonish defense counsel for improper
argument, (3) allowed the jury to consider comparative negligence, (4) did
not find that the jury manifestly disregarded the instructions in reaching
its verdict, and (5) did not tell the jury why it canceled the jury view. To be
entitled to a new trial, the movant must establish grounds, see NRCP
59(a)(1) (listing as grounds for granting a new trial: "(A) . . . abuse of
discretion by which either party was prevented from having a fair trial;
(B) misconduct of the . . . prevailing party; . . . (E) manifest disregard by the
jury of the instructions of the court; . . . [and] (G) error in law occurring at
the trial and objected to by the party making the motion") and prejudice
"materially affecting the substantial rights of the moving party." Id.; see
also Pizarro-Ortega v. Cervantes-Lopez, 133 Nev. 261, 263-64, 396 P.3d 783,
786 (2017) ("[E]ven if one of NRCP 59(a)s new-trial grounds has been
established, the established ground must have 'materially affected the
7
substantial rights of the aggrieved party to warrant a new trial.") (quoting
NRCP 59(a) (201.9)).
A.
A district court's "decision to admit or exclude evidence [is
reviewed] for abuse of discretion" and will not be disturbed "absent a
showing of palpable abuse." M.C. Multi-Family Dev., LLC v. Crestdale
Assocs., Ltd., 124 Nev. 901, 913, 193 P.3d 536, 544 (2008). Over the Coxes'
objection, the district court admitted six 30-second videos that showed Cox
walking normally and without assistance outside of court. The district court
admitted the videos to impeach Cox's in-court presentation of disability. In
court, Cox walked with difficulty, using his lawyer's or the court marshal's
arm for support, and testified that he also used assistance to walk when not
in court.
The district court did not abuse its discretion in admitting the
videos as impeachment-by-contradiction evidence. "Impeachment by
contradiction occurs when a party offers evidence to prove that a fact to
which a witness testified is not true." 27 Charles A. Wright & Victor J.
Gold, Federal Practice & Procedure § 6096, at 655 (2d ed. 2007). Long
recognized at common law, see Jezdik v. State, 121 Nev. 129, 136, 110 P.3d
1058, 1063 (2005), impeachment by contradiction is implicitly authorized
by NRS 50.075 (providing that It]he credibility of a witness may be
attacked by any part?) and its federal cognate, Federal Rule of Evidence
(FRE) 607. United States v. Greenridge, 495 F.3d 85, 99 (3d Cir. 2007); see
also Jezdik, 121 Nev. at 138-39, 110 P.3d at 1064. Contradiction evidence
undermines credibility in two ways: "First, it permits the inference that the
witness either lied or at least was mistaken with respect to the specific facts
contradicted." 27 Wright & Gold, supra, at 656. Second, "since
contradiction tends to show that the witness has erred or lied with respect
8
to some facts, the jury could infer that the witness is generally an unreliable
source of information and erred or lied with respect to other facts." Id. at
657.
The Coxes do not and did not in district court dispute the videos'
authenticity but do make four distinct arguments why the district court
should not have admitted them. First, they argue that the videos were not
admissible to impeach Cox's conduct because only sworn verbal testimony
is impeachable. Second, they argue that admitting the videos violated NRS
50.085(3), which prohibits the introduction of extrinsic evidence to prove a
witness's bad character for truthfulness. Third, they argue that the videos
were irrelevant to the liability phase of a bifurcated trial and therefore
inadmissible because collateral to the matter. Finally, they maintain that
the district court abused its discretion in denying their request to call a
medical expert on rebuttal to explain why Cox walked differently in and out
of court.
1.
The Coxes first argument—that only sworn verbal testimony is
impeachable—proceeds from a flawed premise. Conduct, equally with
words, can constitute evidence. See NRS 51.045 (defining "statement" for
hearsay purposes as including both "[a]n oral or written assertion" or
"En] onverbal conduct of a person, if it is intended as an assertion"); Hon.
Robert E. Jones et al., Rutter Group Practice Guide: Federal Civil Trials
and Evidence ¶ 8:364, at 8C-34 (Supp. 2021) (stating that "[a] party's
appearance, demeanor or nontestimonial behavior in court may constitute
evidence on matters at issue in the case") (citing Pennsylvania v. Muniz,
496 U.S. 583, 591 (1990)). So, "Eflor purposes of contradiction impeachment,
a witness may be taken to testify to a fact where the witness engages in
9
assertive conduct on the witness stand." 27 Charles A. Wright & Victor J.
Gold, Federal Practice & Procedure § 6096, at n.1 (Supp. 2021) (discussing
as an example United States v. Hinkson, 526 F.3d 1262, 1282-83 (9th Cir.
2008), on reh'g en bane, 585 F.3d 1247 (9th Cir. 2009), where a "witness who
wore Purple Heart lapel pin while on [the] witness stand was engaging in
conduct assertive of [the] fact he had been wounded while in military
service"). Going further, while it is true that most impeachment-by-
contradiction cases "involve attempts to contradict actual testimony given
by parties, . . . this form of impeachment can target . . . forms of evidence
other than testimony." 3 Christopher B. Mueller & Laird C. Kirkpatrick,
Federal Evidence § 6:86 (4th ed. 2021); cf. Henriod v. Henriod, 89 P.2d 222,
225 (Wash. 1938) (in assessing credibility, the finder of fact can consider
"not only . . . the facts testified to in the court room, but also . . . the attitude
and conduct of the witness during the progress of the trial"); United States
v. Shonubi, 895 F. Supp. 460, 480 (E.D.N.Y. 1995) (Weinstein, J.) (noting
that a finder of fact "may consider the demeanor and actions of a person
even when that person is not testifyine and quoting Jerome Frank, Law
and the Modern Mind 109 (1931), "The tongue of the witness, it has been
said, is not the only organ for conveying testimony.") (internal quotation
marks omitted), rev'd on other grounds by 103 F.3d 1085 (2d Cir. 1997).
Cox testified on direct examination about his injuries generally,
and on cross-examination to using assistance walking even when not in
court. In addition, he walked to and from the witness stand on the arm of
his attorney or the marshal. Once sworn as a witness, he remained under
oath until his testimony concluded the next day, so at least some of the
demonstrative conduct occurred while he was under oath. From this, the
district court properly concluded that Cox's courtroom conduct conveyed to
SUPREME COURT
NEVADA
10) 19.17A agie1n 10
the jury that the injuries he sustained in his fall left him unable to walk
unassisted—and that the videos directly contradicted that evidence.
2.
The Coxes second argument—that NRS 50.085(3) expressly
precludes admission of all extrinsic evidence when used to attack a
witness's credibility—also fails. Nevada's evidence code is modeled after a
draft of the Federal Rules of Evidence, see Mitchell v. Eighth Judicial Dist.
Court, 131 Nev. 163, 170, 359 P.3d 1096, 1101 (2015), and NRS 50.085(3) is
substantially similar to the pre-2003 version of FRE 608(b). See Lobato v.
State, 120 Nev. 512, 519 n.11, 96 P.3d 765, 770 n.11 (2004). The gloss
accompanying this federal rule is therefore persuasive when interpreting
NRS 50.085(3). See Rodriguez v. State, 128 Nev. 155, 160 n.4, 273 P.3d 845,
848 n.4 (2012).
NRS 50.085(3) provides that "[s]pecific instances of the conduct
of a witness, for the purpose of attacking or supporting the witness's
credibility, other than conviction of crime, may not be proved by extrinsic
evidence."3 This language parallels that in the pre-2003 version of FRE
608(b). Courts addressing the pre-2003 version of Rule 608(b) found that it
created "difficulty in distinguishing between Rule 608 impeachment and
impeachment by contradiction." 4 Joseph M. McLaughlin, Weinstein's
Federal Evidence § 608.12[6] [a], at 608-41 (2d ed. 1999). They concluded
that, while Rule 608(b) prohibits the use of extrinsic evidence of conduct to
3NRS 51.085(3) continues, stating: "They may, however, if relevant to
truthfulness, be inquired into on cross-examination of the witness or on
cross-examination of a witness who testifies to an opinion of his or her
character for truthfulness or untruthfulness, subject to the general
limitations upon relevant evidence and the limitations upon interrogation
and subject to the provisions of NRS 50.090."
11
impeach a witness's credibility in terms of his general character for
truthfulness—or untruthfulness—"the concept of impeachment by
contradiction permits courts to admit extrinsic evidence that specific
testimony is false, because contradicted by other evidence." United States
v. Castillo, 181 F.3d 1129, 1132 (9th Cir. 1999) (emphasis added). They
based this approach "on the grounds that the witness should not be
permitted to engage in perjury, mislead the trier of fact, and then shield
himself from impeachmene under Rule 608(b)'s prohibition, id. at 1132-33(quoting 28 Charles A. Wright & Victor J. Gold, Federal Practice and
Procedure § 6119, at 116-17 (1993)), as well as on Rule 607s (NRS 51.075s)
general provision that "[al ny party.. . . may attack [a] witness's credibility."
See United States v. Benedetto, 571 F.2d 1246, 1250 n.7 (2d Cir. 1978).
The 2003 amendments to Federal Rule of Evidence 608(b)
confirm the correctness of cases like Castillo. The amendments substituted
the phrase "character for truthfulness" for "credibility." The purpose was
to "clarify that the absolute prohibition on extrinsic evidence applies only
when the sole reason for proffering that evidence is to attack or support the
witnese[s] character for truthfulness." Fed. R. Evid. 608 advisory
committee's note to the 2003 amendment. As the advisory committee noted,
"On occasion, the Rules use of the overbroad term 'credibility has been read
to bar extrinsic evidence for bias, competency, and contradiction
impeachment since they, too, deal with credibility." Id. (internal quotation
marks omitted). "By limiting the application of [Rule 608(b)] to proof of a
witness's character for truthfulness, the amendment leaves the
admissibility of extrinsic evidence offered for other grounds of impeachment
(such as contradiction, prior inconsistent statement, bias and mental
capacity) to Rules 402 and 403," the general rules on relevance. Id.SUPREME Coon
OF
NEVADA
(0) 1447A olgibiz.
12
(internal quotation marks omitted; emphases added); see also discussion
infra Section II.A.3. The 2003 amendment substituting "character for
truthfulness" for "credibility" conforms Rule 608(b) "to its original intent,
which was to impose an absolute bar on extrinsic evidence only if the sole
purpose for offering the evidence was to prove the witness's character for
veracity." Id.; see also United States v. Tarantino, 846 F.2d 1384, 1409 (D.C.
Cir. 1988) (holding that admissibility of extrinsic evidence offered to
contradict a witness is governed by Rules 402 and 403, as distinguished
from evidence to impeach a witness's character for truthfulness, which is
governed by Rule 608(b)); State v. Hayes, 462 P.3d 1110, 1119-20 (Idaho
2020) (holding that Idaho's version of FRE 608(b), which, similar to NRS
50.085(3), tracked the pre-2003 version of Rule 608(b), only prohibits
extrinsic evidence of the defendant's character for untruthfulness, not
extrinsic evidence used to impeach by specific contradiction).
Cox walking unassisted outside of court is a neutral act. It does
not inherently connote good or bad character for truthfulness. Its
evidentiary value arises because it contradicts Cox's in-court assertion that
he uses assistance to walk. NRS 50.085(3)s prohibition against using
extrinsic evidence to prove general character for truthfulness or
untruthfulness thus does not apply.4 See 28 Charles A. Wright & Victor J.
4Distinct from this case is Jezdik v. State, in which this court
established an exception to NRS 50.085(3)s prohibition against use of
extrinsic evidence to prove general character for truthfulness when the
defendant places a bad act at issue. 121 Nev. at 138-39, 110 P.3d at 1064.
There, the court permitted the State to admit extrinsic evidence that the
defendant was being investigated related to another matter and that he had
opened a fraudulent credit card account to rebut his statement on direct
examination that he had never been accused of anything other than the
instant charges. Id. at 134, 136-37, 110 P.3d at 1062, 1063. The court
SUPREME COURT
OF
NEVADA
(0) 1947A 040111>
13
Gold, Federal Practice & Procedure § 6118, at 113-22 (2d ed. 2012) (giving
examples of conduct bearing on bad character for truthfulness, including
perjury, fraud, lying repeatedly on official documents, and so on).
3.
The Coxes next argue that admitting the videos violated the
common law collateral fact rule. This rule limits the admissibility of
contradiction evidence by holding "relvidence extrinsic to a witness's
testimony.. . . inadmissible to contradict that witness on a collateral
matter." 27 Wright & Gold, supra, at 659. "Facts are collateral if they are
outside the controversy or are not directly connected with the principal
matter or issues in dispute." Jezdik, 121 Nev. at 136-37, 110 P.3d at 1063(internal quotation marks omitted). The Coxes maintain that the
bifurcation order limited the trial to liability, not damages, and that,
because Cox's (in)ability to walk concerned damages, not liability, the videos
were collateral and should have been excluded as such.
This argument considerably overstates the bifurcation order.
This is a personal injury case. The bifurcation order did not place the issue
of Cox's injuries out of bounds during the first phase of the trial. At the
Coxes request, the order specifically permitted the introduction of evidence
"concerning the nature of the injuries claimed" during the liability phase of
the trial. And Cox availed himself of this permission in presenting his case,
both in his testimony about his agonizing injuries and when he used
assistance to walk to and from the witness stand to present that testimony.
Although the bifurcation order deferred presentation of medical and other
reasoned that the defendant "opened the door" to contradictory extrinsic
evidence, although collateral, by placing the bad act in issue. Id. at 138-40,
110 P.3d at 1064-65.
SUPREME COURT
OF
NEVADA
(0) 1447A 421/P31.
14
specific damages evidence to the second phase of the trial, it did not make
the general nature of Cox's injuries irrelevant or "collateral" to the first
phase of the trial.
The collateral fact rule concerns relevance and is governed by
NRS 48.015 through NRS 48.035, not the categorical prohibition in NRS
50.085(3). Cf. Jezdik, 121 Nev. at 138, 110 P.3d at 1064; see also 4 Jack B.
Weinstein & Margaret A. Berger, Weinstein's Federal Evidence
§ 607.06[3] [a] (2d ed. 2021). Evidence is logically relevant if it has "any
tendency to make the existence of any fact that is of consequence to the
determination of the action more or less probable than it would be without
the evidence." NRS 48.015. "All relevant evidence is admissible" except
where otherwise provided by statute or constitution. NRS 48.025(1). Under
NRS 48.035, in applying the collateral fact rule, the judge makes "a
practical judgment as to whether the importance of the [extrinsic evidence]
and the impeachment warrants the expenditure of the additional trial time"
its presentation entails. 1 Robert P. Mosteller, McCormick on Evidence
§ 49, at 393 (8th ed. 2020). Such determinations are entrusted to the sound
discretion of the district court. See MEI-GSR Holdings, LLC v. Peppermill
Casinos, Inc., 134 Nev. 235, 243, 416 P.3d 249, 257 (2018).
Cox's (in)ability to walk without assistance was in issue with
respect to both his claimed injuries and his credibility. The district court
did• not abuse its discretion when it so held. Sweet v. Pace Membership
Warehouse, Inc., 795 A.2d 524 (R.I. 2002), is analogous. In Sweet, also a
personal injury case, the trial court excluded videos showing the plaintiff
riding all-terrain vehicles, snowmobiling, and rollerblading, which the
defendant offered to impeach the plaintiffs permanent disability claim.
After being provided with the videos, the plaintiff chose to cut off his
SUPREME COURT
Of
NEVADA
(0) 1947A 01410.
15
damages claim before the date of the first videos. The Rhode Island
Supreme Court deemed the videos admissible and reversed for a new trial,
holding that the damages-date restriction "did not lessen the relevance of
the evidence for impeaching Sweees credibility" and "to contradict Sweees
specific assertions that he had been permanently disabled by the accident."
Id. at 528-29 & n.6; see also Diamond Offshore Servs., Ltd. v. Williams, 542
S.W.3d 539, 548, 552 (Tex. 2018) (reversing a judgment on a jury verdict
where the district court excluded a video showing the plaintiff engaging in
activities he claimed he could no longer pursue; his credibility was at issue
as to both liability and damages); James v. Carawan, 995 So. 2d 69, 77
(Miss. 2008) (similar).
Cox's credibility was a central defensive issue with respect to
both the extent of his injuries and the circumstances that led to his fall. The
videos thus did not just bear on damages, but also on liability. Diamond
Offshore Servs. Ltd., 542 S.W.3d at 552. Evidence suggesting that a party
has feigned or exaggerated injuries to garner sympathy suggests
consciousness of a weak case, which is relevant and admissible. 1 Edward
J. Imwinkelried, Uncharged Misconduct Evidence § 7.2 (2020) (reasoning
that "any act evidencing consciousness of the weakness of the litigant's
position should be admissible and is relevant); 2 John H. Wigmore,
Evidence § 278 (Chadbourn rev. 1979) (reasoning that "a party's falsehood
or other fraud in the preparation and presentation of his cause . . . is
receivable against him as an indication of his consciousness that his case is
a weak or unfounded one; and from that consciousness may be inferred the
fact itself of the causes lack of truth and merit); see also Roger Park & Tom
Lininger, The New Wigmore, A Treatise on Evidence: Impeachment and
Rehabilitation § 4:2, at 203 (Supp. 2021) (noting that contradiction by even
16
collateral evidence is permissible when it "is a fair response to overreaching
by the opponent"). Allowing Cox to testify to the nature of his injuries and
corroborate that testimony with visible courtroom conduct without allowing
respondents to rebut his in-court presentation would be fundamentally
unfair. See NRS 47.030 (the evidence code serves to "secure fairness in
administration . . to the end that the truth may be ascertained and
proceedings justly determined"). The district judge was within the province
of his authority when he held, on this record, that "whatever has happened
in open court is fair game. And, accordingly, I'll permit the video."
4.
The district court granted the Coxes initial request to recall
Cox to rebut the videos. They then decided against recalling Cox and asked
instead to call a medical expert to rebut the videos. The district court denied
this request, which the Coxes contend on appeal was an abuse of discretion.
NRS 47.040(1)(b) provides that "error may not be predicated upon a ruling
which . . . excludes evidence unless a substantial right of the party is
affected, and . . . the substance of the evidence was made known to the judge
by offer or was apparent from the context within which questions were
asked." This court "will not review exclusion of evidence where trial counsel
makes no offer of proor below. E.g., McCall v. State, 97 Nev. 514, 516, 634
P.2d 1210, 1212 (1981) (citing Van Valkenberg v. State, 95 Nev. 317, 318,
594 P.2d 707, 708 (1979)). Here, the Coxes did not proffer the identity of
their requested medical expert or what she or he might testify to, and the
issue is accordingly waived. See Van Valkenberg, 95 Nev. at 318, 594 P.2d
at 708 (holding that this court cannot determine if a party's substantial
rights were prejudiced by the trial court's exclusion of evidence under NRS
47.040(1) if trial counsel failed to offer proof of that evidence).
17
B.
The Coxes next argue that attorney misconduct during closing
arguments entitles them to a new trial under NRCP 59(a)(1)(B) and Lioce
v. Cohen, 124 Nev. 1, 20, 174 P.3d 970, 982 (2008). "Under Lioee, this court
decides whether there was attorney misconduct, identifies the applicable
legal standard for determining whether a new trial was warranted, and
assesses whether the district court abused its discretion in applying that
standard." Gunderson, 130 Nev. at 74-75, 319 P.3d at 611. Although the
abuse-of-discretion standard applies to the order granting or denying a new
trial, de novo review applies to the issue of whether attorney misconduct
occurred. Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 364, 212 P.3d
1068, 1078 (2009).
Rule 3.4(e) of the Nevada Rules of Professional Conduct (RPC)
states that a "lawyer shall not . . . state a personal opinion as to the justness
of a cause, the credibility of a witness, [or} the culpability of a civil litigant."
On appeal, the Coxes contend that counsel for Backstage, Copperfield, and
MGM each made statements during closing arguments that violated RPC
3.4(e). But the Coxes did not object at trial to the statements that
Backstages and Copperfield's counsel made. See Gunderson, 130 Nev. at
75, 319 P.3d at 612 ([F] ailure to object constitutes waiver.. . . unless the
failure to correct the misconduct would constitute plain error."). These
statements, in which Backstages and Copperfield's counsel invited the jury
to consider the contradiction between the way Cox walked in court and in
the videos in assessing his credibility and did not offer personal opinions,
impugn Cox's character, or otherwise invite the jury to rely on emotion in
deciding the case. They amounted to advocacy, not misconduct, and do not
establish grounds for a new trial. See id. at 76, 319 P.3d at 612 (noting that
18
the new trial analysis stops if this court concludes that misconduct did not
occur).
But the statements that MGM's lawyer, Popovich, made during
closing argument crossed the line between advocacy and misconduct. In
concluding his argument, Popovich stated 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 because the only reason to do that is the
green box at the end. He just wants a payoff." These statements were
improper because they asked the jury to step outside the relevant facts and
hold MGM not liable because Cox is a liar who only sued for financial gain.
See Grosjean, 125 Nev. at 364-65, 212 P.3d at 1079 (holding that attorney
committed misconduct by calling respondent a "liar" and appealing to the
jury's emotions rather than facts in evidence); Lioce, 124 Nev. at 22, 174
P.3d at 984 (holding that attorney committed misconduct by calling a
plaintiffs case frivolous and worthless).
The Coxes objected at trial to Popovich's statements—albeit
after Popovich finished his closing argument and the jury broke for lunch—
and the district court sustained their objection. Under the Lioce framework,
if a party objects to attorney misconduct at trial, and the district court
sustains the objection, it should "admonish the jury and counsel." 124 Nev.
at 17, 174 P.3d at 980. The severity and frequency of attorney misconduct
dictate whether an admonishment is sufficient to cure alleged prejudice.
See Grosjean, 125 Nev. at 369, 212 P.3d at 1082 (recognizing that "a single
instance of ilnproper conduct might be cured by objection and
admonishment"). This court also looks to whether the jury's verdict is well
supported by evidence outside of the objected-to misconduct. Id.
19
Here, the parties presented the district court with a draft
admonishment that the Coxes either drafted or approved. The district court
changed the word "impermissible to "the Court has sustained the
objection." The Coxes did not object to this revision. When the jury
returned from lunch, the district court gave the admonition, as revised, to
the jury;
Members of the jury, during Mr. Popovich's closing
arguments, he stated that Gavin Cox is here
because of the "green box at the end," and "he just
wants a payoff." Those comments were objected to
and [imperinissible] the Court has sustained
the objection, and I admonish you to disregard
those comments and to dismiss them from your
mind. You may not use those comments in coming
to your decision in this case and must decide this
case solely based on the evidence and law.
Despite not objecting to the revision in district court, the Coxes argue on
appeal that the admonishment was insufficient because it did not
adequately, and separately, rebuke Popovich.
The district court did not abuse its discretion by finding the
admonishment sufficient such that no new trial was warranted. The Coxes
objected to just a few sentences in Popovich's closing argument during a
lengthy seven-week trial. The Coxes approved the form of admonition,
which clearly instructed the jury to disregard Popovich's comments. In its
verdict, the jury found Backstage and Team Construction not negligent;
MGM and Copperfield negligent but not the proximate cause of Cox's fall;
and Cox negligent and the cause of his fall. Although Cox disagrees with
the verdict, it is sustained by the evidence. The Coxes presented evidence
that he fell on a Tamp in the runaround that had a slope of 5 degrees, which
exceeds the maximum allowed pitch of 4.76 degrees under the building code,
SUPREME COURT
on which construction dust had accumulated, causing Cox to slip. But
OF
NEVADA
10) 1947A ma*.
20
respondents presented contrary evidence showing that Cox fell on level
ground, approximately 15 feet away from the ramp, and tripped because he
was running too fast and not looking where he was going. This evidence
permitted the jury to find MGM and Copperfield negligent but not the cause
of Cox's fall, and Cox also negligent and the cause of his fall. The jury's
verdict is thus supported by tangible record evidence divorced from any
emotion that Popovich's inflammatory comments may have inspired. The
Coxes fail to establish that Popovich's single instance of misconduct was so
extreme as to require a new trial despite the district court's sustained
objection and admonishment.
C.
The Coxes argue that the district court erred in instructing the
jury on comparative negligence and should have granted their motion for
judgment as a matter of law, striking comparative negligence as an
affirmative defense. In Nevada, "[i]ssues of negligence are properly
resolved by a jury." Brascia v. Johnson, 105 Nev. 592, 595, 781 P.2d 765,
767 (1989). The same holds true for comparative negligence. Wagon Wheel
Saloon & Gambling Hall, Inc. v. Mavrogan, 78 Nev. 126, 128, 369 P.2d 688,
689-90 (1962) (holding that the issue "is one of fact; it becomes a question of
law only when the evidence is of such a character as to support no other
legitimate inference").
NRS 41.141 requires the district court to instruct the jury on
comparative negligence on request of a defendant when the issue is raised
as a bona fide defense:
In any action to recover damages for death or injury
to persons or for injury to property in which
comparative negligence is asserted as a
defense . . . the judge shall instruct the jury
that . . . [t]he plaintiff may not recover if the
SUPREME COURT
OF
NEvA.DA
(0) I947A A po.
21
plaintiffs comparative negligence . . . is greater
than the negligence of the defendant or the
combined negligence of multiple defendants.
NRS 41.141(2)(a) (emphasis added). Comparative negligence is a "bona fide
issue" when the evidence supports that it is a viable defense. Buck ex rel.
Buck v. Greyhound Lines, Inc., 105 Nev. 756, 764, 783 P.2d 437, 442 (1989).
Under NRS 41.141, the district court must deliver a comparative negligence
instruction upon a party's request if a bona fide issue exists. Verner v. Nev.
Power Co., 101 Nev. 551, 555-56, 706 P.2d 147, 150 (1985).
Comparative negligence "is conduct on the part of the plaintiff
[that] falls below the standard to which [they] should conform for [their]
own protection, and which is a legally contributing cause co-operating with
the negligence of the defendant in bringing about the plaintiffs harm."
Restatement (Second) of Torts § 463 (Am. Law Inst. 1965). A plaintiffs duty
of care for the plaintiffs own safety is the same as a defendant's—that of a
reasonable person under like circumstances. Id. § 464. And a defendant's
coextensive duty of care to a foreseeable plaintiff does not obviate a
plaintiffs duty of reasonable self-care. See Foster v. Costco Wholesale Corp.,
128 Nev. 773, 777, 291 P.3d 150, 153 (2012) (holding that a landowner owes
a duty of reasonable care to land entrants even if a dangerous condition is
open and obvious and reasoning that apportionment of liability depends on
the landowner's breach of that duty and comparative fault); Restatement
(Second) of Torts § 463; 3 Stuart M. Speiser et al., American Latv of Torts
al 12:49 (Supp. 2021) (explaining that drivers still owe a duty of care to a
plaintiff who darts into traffic but that comparative fault principles apply
to limit a driver's liability).
SUPREME COUFIT
OF
NEVADA
(0) I947A APO.
22
At trial, respondents produced evidence showing that Cox
voluntarily participated in the illusion and agreed that he could run; Cox
drank alcohol before participating in the illusion; Cox was so excited that
he chose to continue participating in the illusion, despite that it felt to him
like "total pandemonium"; and Cox ran as fast he could, although other
witnesses testified that participants were not encouraged to run and
typically proceeded at a brisk walk or light jog. Trial testimony conflicted
about whether the runaround route was dark: witnesses testified that it
was not dark and that Backstage employees held bright lights directing
participants through the route, while Cox testified that the route was
intermittently dark. Cf Tryba v. Fray, 75 Nev. 288, 293, 339 P.2d 753, 755
(1959) (stating that whether a plaintiff is contributorily negligent where she
finds herself in a dark and unfamiliar situation but proceeds anyway is a
question of fact for the jury). But although Cox testified that the route was
dark and he lacked adequate direction, Cox also said that he did not look at
the ground while running at full speed. See Joynt v. Cal. Hotel & Casino,
108 Nev. 539, 544, 835 P.2d 799, 802 (1992) (finding comparative fault was
a viable defense where a plaintiff did not look before stepping backward).
Respondents further produced two expert witnesses who each
reconstructed the fall and testified that Cox tripped on a flat surface when
he caught the toe of his shoe on the ground. The experts testified that
construction dust would not have interrupted Cox's gait to cause the toe
catch and subsequent fall. The Coxes point to MGM's NRCP 30(b)(6)
witness, Mark Habersack, who testified that he was not aware of anything
that Cox did wrong during the illusion. But this testimony is not conclusive;
rather, it is another piece of evidence for the jury to consider when
determining comparative fault. See Anderson v. Baltrusaitis, 113 Nev. 963,
SUPREME COURT
OF
NEVADA
(0) I947A 010144
23
965, 944 P.2d 797, 799 (1997) (holding that comparative negligence is a
question of fact for the jury); see also Tuba, 75 Nev. at 295, 339 P.2d at 757(remanding because contributory negligence should have remained a
question for the jury). Respondents produced significant evidence to offset
Habersack's testimony and show that Cox may have acted unreasonably by
running as fast as he could, through allegedly dark corridors, without
knowing where he was going, culminating in a trip and fall. Therefore,
respondents produced enough evidence to raise a bona fide issue of Cox's
comparative negligence, and the district court did not abuse its discretion
by delivering NRS 41.141s mandatory instruction. The district court
therefore properly denied the Coxes motions for judgment as a matter of
law or a new trial on these grounds.
D.
NRCP 59(a)(1)(E) provides that "manifest disregard by the jury
of the instructions of the coure can constitute grounds for a new trial.
Invoking this rule, the Coxes next argue that they are entitled to a new trial
because the jury manifestly disregarded the district court's proximate cause
instruction and ignored applicable law by concluding that MGM and
Copperfield were negligent but not the proximate cause of Cox's injuries
because no force intervened to sever the causal link. See Price v. Sinnott,
85 Nev. 600, 606, 460 P.2d 837, 840 (1969). But this court presumes that
the jury followed the court's instructions, Motor Coach Indus., Inc. v.
Khiabani, 137 Nev., Adv. Op. 42, 493 P.3d 1007, 1015 (2021), and will
uphold a jury's verdict if "a reasonable mind might accept [the evidence] as
adequate to support a conclusion." Prahhu v. Levine, 112 Nev. 1538, 1543,
930 P.2d 103, 107 (1996); see also Allstate Ins. Co. v. Miller, 125 Nev. 300,
308, 212 P.3d 318, 324 (2009). And to establish manifest disregard of the
24
instructions, the movant must demonstrate that, "had the jurors properly
applied the instructions of the court, it would have been impossible for them
to reach the verdict which they reached." Weaver Bros., Ltd. v. Misskelley,
98 Nev. 232, 234, 645 P.2d 438, 439 (1982); McKenna v. Ingersoll, 76 Nev.
169, 174-75, 350 P.2d 725, 728 (1960).
The record does not support that it was impossible for the jury
to have followed the jury instructions and returned the verdict it did. As
discussed, the evidence permitted the jury to find that MGM was negligent
because its outdoor ramp violated the building code, and because of this,
Copperfield was negligent for taking audience participants past the ramp.
But while Cox testified that he slipped and fell on the ramp, respondents
presented contrary evidence that he fell 15 or more feet away from the
ramp, on level ground. This evidence supports the finding the jury made
that MGM and Copperfield were negligent, but their negligence did not
cause Cox to fall. And, as the preceding discussion of comparative
negligence demonstrates, the evidence also supported, if it did not compel,
a finding that Cox was comparatively negligent and the cause of his own
fall.
Based on these divergent accounts of the incident, the jury
weighed the evidence and concluded that respondent& negligence was not
the proximate cause of Cox's fall and resulting injuries, Taylor v. Silva, 96
Nev. 738, 741, 615 P.2d 970, 971 (1980) ("Proximate cause is any cause[,1
which in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury complained of and without which the
result would not have occurred.") (quoting Mahan v. Hafen, 76 Nev. 220,
225, 351 P.2d 617, 620 (1960)), which is within its province to do. Barnes v.
Delta Lines, Inc., 99 Nev. 688, 690, 669 P.2d 709, 711 (1983) (holding that
SUPREME COURT
OF
NEVADA
(01 1947A 40040
25
proximate cause is a question of fact for the jury). Otherwise stated, the
Coxes failed to establish a causal link based on the facts in evidence, thus
missing a step while reaching for their conclusion of the jury's illogic. See
Rickard v. City of Reno, 71 Nev. 266, 270-72, 288 P.2d 209, 210-11 (1955)
(holding that plaintiff failed to establish proximate cause as a matter of law
because she did not produce evidence showing that a depression in a city
sidewalk—and the dirt, silt, etc. collected within it—caused her fall). Based
on the trial evidence, the jury could both comply with the coures
instructions and conclude, as it did, that respondents were negligent but
not the proximate cause of Cox's injuries. The jury did not disregard the
court's instructions or applicable law, and the district court therefore did
not abuse its discretion in denying the Coxes motion for a new trial on these
grounds.
E.
Finally, at trial and in the jury's presence, respondents moved
for a jury view of the runaround route, which the district court granted. The
Coxes argue that they suffered prejudice warranting a new trial because
the district court did not explain its reasoning when it later canceled the
jury view, thus implying to the jury (in the Coxes' estimation) that the Coxes
caused the cancelation because they had something to hide. The Coxes did
not object to the district court's cancelation of the jury view, ask the district
court to explain to the jury why it canceled the jury view, or otherwise raise
this issue below, and we decline to address it in the first instance. Old Aztec
Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981).
26
For these reasons we affirm the district court's judgment on the
jury's special verdict for respondents and the district court's order denying
the Coxes motions for judgment as a matter of law or a new trial.
Ada, ,J
Pickering
We concur:
•
4.41-t\ , J. J.
Hardesty Cadish
AiI Sr. J.
Herndon Gibbon
SUPREME COURT
OF
NEVAOA
27
OA 1947A Maw
STIGLICH, J., with whom PARRAGUIRRE, C.J., agrees, dissenting:
On the record before us, I believe the district court abused its
discretion by admitting sub rosa surveillance videos that were not relevant
to liability and were barred by the collateral fact rule. I respectfully dissent
because this evidence should not have been presented in the liability phase,
rendering the outcome unfair.
In light of the bifurcation, the videos were not relevant to liability
The trial here was bifurcated—at respondents request—such
that the only question at issue during this proceeding was liability. See
Verner v. Nev. Power Co., 101 Nev. 551, 554, 706 P.2d 147, 150 (1985)
(providing that a separate proceeding on liability may be held only if "the
issue of liability [is] separate and distinct from the issue of damages").
Contrary to the majority's conclusion, the bifurcation order was not
"flexible." Respectfully, that is simply not true. Respondents moved to
bifurcate the trial because, in their view,
[t]he issue of liability is separate and distinct from
the issue of damages as the evidence presented
during the liability phase will focus solely on the
execution of the [i]llusion to the point of Mr. Cox's
fall while the damages phase will focus solely on the
events after Mr. Cox's fall.
The district court granted Respondents' bifurcation motion and prohibited
the Coxes from adducing any "evidence as to the nature or extent of Mr.
Cox's alleged injuries" stemming from the fall during the liability phase.
The order allowed the Coxes to present evidence only as to Cox's injuries
generally at the time of the fall and "to establish that Mr. Cox may have
less than a clear recollection of the events of the night of the fall." The
record plainly contradicts the majorit3es framing
SUPREME COURT
OF
NEVADA
During the liability phase, Cox's injuries were mentioned in the
two ways—and only the two ways—allowed by the bifurcation order. First,
the district court instructed the jury that Cox alleged a 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." This
instruction did not presume that Cox actually had a brain injury, and there
was no sworn testimony regarding a brain injury. Second, Cox testified to
his pain and injuries only within the context of describing the fall allegedly
caused by respondents negligence and its immediate aftermath. As in any
personal injury trial, Cox's testimony regarding his initial experience of
injury was relevant to whether respondents were liable.
The majority, however, conflates Cox's testimony about the
pain when he fell with the extent of his injuries at the time of trial,
misstating the record. For example, the majority correctly observes that
Cox testified to the injuries incurred when he fell. But it uses that
testimony to conclude that Cox "conveyed to the jury that the injuries he
sustained in his fall left him unable to walk unassisted." Cox did no such
thing: in accordance with the bifurcation order, he mentioned the pain he
felt after his fall, not during the trial.
While Cox's current physical health and the extent of his injury
would be relevant to determining damages, they were not relevant to
whether respondents breached a duty of care owed to Cox, i.e., liability. The
fact that testimony and the jury instruction on Cox's original experience of
being hurt and "the way he testifiee touch on injuries in general does not
place the injuries at issue during the liability phase.
The majority's view that nontestimonial behavior in court may
constitute evidence rendering the videos relevant is mistaken. The extent
SUPREME COURT
OF
NEVADA
2
I947A 40§Ppa
of Cox's injuries was not at issue during the liability phase, and his walking
with assistance was thus not relevant to a matter at issue. The majority's
invocation of Sweet v. Pace Membership Warehouse, Inc., 795 A.2d 524 (R.I.
2002), does not support a contrary conclusion. Unlike here, the defendant
in that case "conceded liability, and the case proceeded to trial solely on the
issue of damages." Id. at 526. Nontestimonial videos there were relevant
in a way that they were not here. These videos were not relevant, and the
district court should not have admitted them.
The videos were barred by the collateral fact rule
The collateral fact rule also should have barred admission of
these videos. This rule provides that extrinsic evidence of specific instances
of a witness's conduct, other than a criminal conviction, may not be
proffered to show the witness's credibility or lack thereof. NRS 50.085(3).
A fact is collateral when it is "outside the controversy, or [is] not directly
connected with the principal matter or issue in dispute." Lobato v. State,
120 Nev. 512, 518, 96 P.3d 765, 770 (2004) (quoting Black's Law Dictionary
262 (6th ed. 1990)).
Here, Cox's ability or inability to walk on his own was collateral
to the proceedings at the liability phase of trial. The collateral fact rule
exists to center the jury's attention on the primary questions before it; at
this stage of the trial, the primary question was whether respondents
negligently caused Cox's injuries. Respondents did not proffer the videos to
rebut the Coxes allegation of negligence, but rather to imply that Cox faked
a need for assistance to elicit the jury's sympathy and thus was not credible.
This tenuous connection makes the question of whether Cox could walk
without assistance collateral.
SUPREME COURT
OF
NEVADA
3
Mi 1947A akiilDos
The district court overruled the Coxes objection to the videos,
concluding "that whatever has happened in open court is fair game" and
admitting the videos.' However, this misunderstands the scope of the
collateral fact rule, which may bar impeachment even where sworn
testimony has been given. See Rembert v. State, 104 Nev. 680, 683, 766 P.2d
890, 892 (1988) (holding that extrinsic evidence that the defendant was fired
from a job he testified to leaving on his own terms was collateral and
inadmissible when it went to the defendant's credibility rather than
whether defendant committed the crime). "Whatever has happened in
open court'' is too broad a characterization of what conduct may be
impeached. Here, whether Cox could walk without assistance was
collateral, even if it may have been relevant to his credibility in general.
The district court again should not have admitted the video evidence.2
The videos were inadmissible under the specific contradiction
exception to the collateral fact rule
The specific contradiction exception outlined in Jezdik v. State,
121 Nev. 129, 110 P.3d 1058 (2005), does not apply here. The exception
provides that "false statements on direct examination trigger or 'open the
door' to the curative admissibility of specific contradiction evidence." Id. at
'The trial record memorializes only that Cox walked to and from the
witness stand with assistance from the marshal and his attorney. The
arguments made in closing and on appeal regarding other instances of Cox
using assistance in the courtroom are not supported by evidence in the
record.
21tis noteworthy that while the majority suggests a number of
reasons the evidence may have been admissible, respondents proffered
impeachment as the sole basis to admit this evidence.
4
138, 110 P.3d at 1064. The exception permits extrinsic evidence that
specifically rebuts an "adversary's proffered evidence of good character," but
this must "squarely contradict" the adverse testimony. Id. at 139, 110 P.3d
at 1065; see also Newman v. State, 129 Nev. 222, 235-36, 298 P.3d 1171,
1181 (2013) (barring extrinsic testimony about a specific altercation that
was fundamentally distinct from the offense charged and not offered to
rebut a particular assertion).
Jezdik was born out of fairness considerations. Jezdik provided
a narrow exception to prevent "the shield provided by NRS 50.085(3) being
used as a sword "for a defendant to purposefully, or even inadvertently,
introduce evidence giving the jury a false impression through an absolute
denial of misconduct and then frustrate the States attempt to contradict
this evidence through proof of specific acts." Jezdik, 121 Nev. at 139, 110
P.3d at 1065. When a party seeks to use extrinsic evidence to contradict
testimony that is not a factual assertion made on direct examination, the
collateral fact rule bars its admission.
I cannot find any rebuttable testimony regarding Cox's ability
to walk. Respondents contend that, in using assistance to walk, Cox made
specific nonverbal assertions during trial that they are permitted to rebut.
They point out that NRS 51.045(2) defines a "statemene to include
"In] onverbal conduct of a person, if it is intended as an assertion."
"Assertive conduct," however, means nonverbal behavior intended to
functionally replace a spoken assertion (for example, a nod in response to a
question, or a pointed finger). See Assertive conduct, Black's Law Dictionary
(11th ed. 2019). Cox's walking with assistance was not a rebuttable factual
assertion because it was not made in lieu of a statement.
5
While the majority regards Cox's walking with assistance as
assertive conduct, it offers no Nevada law supporting that position. It cites
instead hornbook law on federal practice that in turn relies on
distinguishable authorities, namely an out-of-state decision that concluded
that wearing a Purple Heart pin on the witness stand was assertive conduct,
United States v. Hinkson, 526 F.3d 1262, 1282-83 (9th Cir. 2008), rev'd 585
F.3d 1247 (9th Cir. 2009), and other decisions standing for the general
principle that a factfinder may consider the attitude and conduct of the
witness, e.g., United States v. Shonubi, 895 F. Supp. 460, 480 (E.D.N.Y.
1995); Henriod v. Henriod, 89 P.2d 222, 225 (Wash. 1938). But these cases
are all examples of conduct on the witness stand, which is distinguishable
from Cox's "conduct" here, walking to and from the witness stand with
assistance. Further, these cases do not support the proposition for which
they are implicitly used, that nonverbal conduct in this case (walking with
assistance) is assertive in the same way as pointing a finger at someone or
nodding ones head.
Cox's nonverbal actions were not rebuttable testimony simply
because juries may consider a witness's demeanor or mannerisms. These
4 observable qualities—such as the manner of walking, crying, being nervous,
or laughing—do not constitute testimony or statements on their own.
Treating such details as evidence ripe for rebuttal would invite a party to
seek out all matter of irrelevant information, so long as it may be patched
together, paying little heed to context, to deride the other sides credibility.
Opening the door to contesting all sorts of largely unreviewable courtroom
conduct would result in trials that would be civil in name only.
Further, the principle outlined in Jezdik relates to a party
"opening the dooe by eliciting false statements on direct examination. The
SUPREME COURT
OF
NEVADA
6
(0) I947A
cross-examining party cannot elicit testimony on a subject (here, Cox's
current ability to walk) outside the scope of direct examination only for the
purposes of impeaching that testimony with extrinsic evidence. If Cox had
proffered this information on direct examination—that he had been entirely
unable to walk without help since his injury—respondents arguments
under Jezdik might have merit. As it is, this argument fails because the
courtroom conduct here was not impeachable testimony.3
The majority, however, takes this mistaken approach even
further. It states that "the collateral fact rule concerns relevance and is
governed by NRS 48.015 through NRS 48.035, not the categorical
prohibition in NRS 50.085(3)." This, it cannot do. This court applies the
laws as written by the Nevada Legislature. See Hobbs v. State, 127 Nev.
234, 237, 251 P.3d 177, 179 (2011) (observing that "[ilf the statute's
language is clear and unambiguous, we enforce the statute as written").
The Legislature has provided that even relevant evidence may be
inadmissible where otherwise provided by statute or the state or federal
constitution. NRS 48.025(1). NRS 50.085(3) states one of those limitations,
prohibiting the introduction of extrinsic evidence to demonstrate specific
instances of a witness's conduct "for the purpose of attacking or supporting
the witness's credibility." In my view, the majority errs by disregarding the
intent of the Legislature.
3Respondents did not argue below that the videos were admitted to
specifically contradict Cox's statements on cross-examination regarding his
need for assistance while walking, and that argument is therefore waived.
See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981)
("A point not urged in the trial court, unless it goes to the jurisdiction of that
court, is deemed to have been waived and will not be considered on
appeal.").
SUPREME COURT
OF
NEWUM
101 PM7A
7
The improper admission of the sub rosa surveillance videos warranted a new
trial
I maintain further that the improper admission of the sub rosa
surveillance videos is reversible error because I do not believe the jury
would have found respondents not liable for Cox's injury had the videos not
been admitted. The videos were shown to the jury to rest respondents case-
in-chief and played again during closing arguments. During those
arguments, Cox was described as "deceiving the jury since day one" and
"manipulating the jury.. . . with every move he's made." The jury was told
to disregard the entirety of Cox's testimony due to "the fact that he faked it,
the fact that he attempted to deceive you." Respondents' counsel argued
that, because of the videos, "you shouldn't believe a word that comes out of
his mouth . . . he just wants a payoff" and "the Cox family was part of the
deception." The videos' importance to the case was emphasized repeatedly
in statements like "the tapes speak for themselves. The tapes speak the
truth." One attorney remarked, "[Cox's attorney] should be praying because
the jury saw what they saw." Another told the jury, "I saw the way some of
you reacted when you first saw this. I know you aren't going to be fooled."
In short, closing argument became dominated by the allegation
that Cox had made a calculated, deceitful effort to manipulate the jury, only
to be dramatically exposed through surveillance. The jury members were
told that they would be fools not only if they believed that Cox needed help
walking, but if they believed even one word he had told them. Cox's
testimony that he had been rushed through darkness, slipped, and fell was
integral to the issue of liability. The jury fol.md Cox completely responsible
for his own injuries; it might reasonably have reached a different result if
the videos had not been admitted. See Wyeth v. Rowatt, 126 Nev. 446, 465,
244 P.3d 765, 778 (2010) (concluding that prejudicial error occurs when "the
8
error affects the party's substantial rights so that, but for the alleged error,
a different result might reasonably have been reached"). Therefore, I would
reverse on this issue.
The district court committed other, non-reversible errors
The district court committed two other mistakes that warrant
discussion, even though they do not, alone, rise to the level of reversible
error. First, I believe that the district court erred in its comparative
negligence instruction. Second, the district court did not properly admonish
Popovich for his attorney misconduct during closing arguments.
The district court incorrectly gave the comparative negligence
instruction
Respondents argue five reasons why Cox was comparatively
negligent: (1) Cox willingly participated in the magic trick, (2) Cox
negligently proceeded down a dark path, (3) Cox was running, (4) Cox failed
to look at the ground, and (5) Cox tripped on his own feet. I do not believe
these allegations warranted a comparative negligence instruction, as they
did not support a theory that Cox acted unreasonably and that his
negligence was a substantial factor in bringing about his injury. See Shuette
v. Beazer Homes Holdings Corp., 121 Nev. 837, 859-60, 124 P.3d 530, 546
(2005) (discussing when comparative negligence applies).
Notably, respondents organized the magic show and created the
conditions in which they contend Cox was negligent. They maintain both
that Cox was lying about the conditions being dark, rushed, or unsafe, and
that Cox's running along the dark, unsafe path was unreasonable and
negligent. But respondents concede in their briefing that volunteers were
asked whether they can run before they participate in the show. They try
to have it both ways by arguing that Cox was negligent because he was
running as part of a show in which the ability to run is, as respondents state
9
in their brief, "the most important" question asked of prospective
volunteers. Further, respondents experts contradicted their position on
appeal: MGM's head of risk management admitted that Cox did not act
carelessly or do anything wrong while performing the illusion. Therefore, I
do not believe that respondents made an adequate showing that Cox acted
unreasonably or in a negligent manner.
The district court did not admonish Popovich for his misconduct
I agree with the majority that Popovich committed attorney
misconduct in closing argument, and though I disagree that the district
court's admonition was sufficient, I concur that relief is not warranted on
this basis. On a meritorious objection to attorney misconduct, "the district
court should sustain the objection and admonish the jury and counsel,
respectively, by advising the jury about the impropriety of counsel's conduct
and reprimanding or cautioning counsel against such misconduct."
Gunderson v. D.R. Horton, Inc., 130 Nev. 68, 75, 319 P.3d 606, 612 (2014).
The Coxes timely objected, the parties argued the issue, and the
district court found the comments improper. The district court discussed
the proposed admonition with counsel, specifically saying "Pm not inclined
to use the term 'misconduct' or 'impropriety' or anything like that."
The district court noted the comments and instructed the jury
to disregard them. The jury, however, was not advised that the conduct had
been improper, only that it had been objected to and sustained. Merely
telling the jury to disregard without making plain that Popovich's
comments were inappropriate does not provide the jury with suitable
guidance. Nor did the district court reprimand or caution Popovich beyond
a cursory remark that his statements “appear[ ] to me to be synonymous"
with a statement deemed misconduct in another case. The district court's
admonition was inadequate under Gunderson.
10
Nevertheless, Cox did not demonstrate that a more appropriate
admonition would have affected the verdict. As the majority notes, the
misconduct was a short portion within lengthy closing arguments by
multiple attorneys. Popovich inappropriately impugned Cox's credibility
and motive. These facts, however, did not rise to the level of misconduct
affecting the verdict, and thus I would not reverse on this issue. See
Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 365, 212 P.3d 1068, 1079
(2009) (considering "the scope, nature, and quantity of [attorney]
misconduct as indicators of the verdict's reliability").
I believe that the court has erred in resolving this appeal. I
respectfully dissent.
J.
Stiglich
I co r:
, C.J.
Parragurre
SUPREME COURT
OF
NEVADA
11
(0) I 947A 461413:.