138 Nev., Advance Opinion z7 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

GAVIN COX; AND MIHN-HAHN COX, 

HUSBAND AND WIFE, 

Appellants, 

vs. 

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 

FILE 

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. 

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7 rk, 
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.2To 

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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2We do not consider the propriety of the bifurcation order because the 

Coxes do not raise it as an issue on appeal. 

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-bycontradiction 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 

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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."3This 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. 

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(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 

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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. 

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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 

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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, 

on which construction dust had accumulated, causing Cox to slip. But 

20 

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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 

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). 

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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, 

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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 

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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\ 

Hardesty 

• 

, J. 

Cadish 

J. 

AiI Sr. J. 

Herndon Gibbon 

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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 

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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 

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2 
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. 

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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. 

21t is 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 

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 

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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."). 

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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 casein-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 

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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. 

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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 

(0) I 947A 461413:. 

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