CARSON CITY, Nev. (Legal Newsline) – A volunteer from the crowd who tried to pull his own trick on magician David Copperfield had his secrets revealed.
The Nevada Supreme Court ruled April 14 against Gavin Cox, who alleged he was injured while taking part in a Copperfield magic show. He was chosen as one of 13 audience participants to sit in two rows of chairs on-stage for an illusion called Lucky #13.
When a curtain fell around the participants, they were guided through a downstairs route to give the impression they disappeared. They were led out of the prop, down stairs and through a hallway, but Cox fell. He said he slipped on construction dust while running.
He sued Copperfield, the MGM Grand Hotel, Backstage Employment and Referral, David Copperfield’s Disappearing and Team Construction Management.
At trial, Cox used his attorney’s or the court marshal’s arm to help him walk to and from the witness stand, where he testified he uses assistance to walk outside of court too.
But defendants submitted six surveillance videos of him “walking easily and without assistance outside of court,” the Supreme Court’s decision says. The jury returned a defense verdict that Cox appealed by arguing those videos shouldn’t have been admitted into evidence.
Cox sought more than $1 million for traumatic brain, spine and shoulder injuries he said he suffered. He was represented by Harris & Harris, Injury Lawyers in Las Vegas and Morelli Law Firm of New York.
“I hit the ground. And… I felt a pain shoot me like I never, ever felt before. It was like a lightning bolt going through the whole of my shoulder and left-hand side,” Cox testified.
“I’m in agony… I am in so much pain… I’m hurting and I’m hurt.”
When asked by defense counsel for Backstage Employment and Referral if he used help to walk outside of court, Cox said he did. The company then moved to admit six 30-second video clips of him walking normally.
In the videos, Cox walked his dog, walked with his wife and walked with his family on the way to trial unassisted. Lawyers played the videos side-by-side with videos of Cox struggling to take the stand.
Cox’s lawyers said the videos shouldn’t have been admitted because they impeached conduct outside of the courtroom and cited a rule prohibiting the introduction of extrinsic evidence to prove dishonesty.
“Cox testified on direct examination about his injuries generally, and on cross-examination to using assistance walking even when not in court,” Justice Kristina Pickering wrote.
“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 the jury that the injuries he sustained in his fall left him unable to walk unassisted – and that the videos directly contradicted that evidence.”
Four justices joined Pickering in the majority, while two dissented. Justice Lidia Stiglich wrote in a dissent that the surveillance videos were not relevant to liability, which was the only issue to be determined at that phase of the trial. The judge had split the trial into separate liability and damages phases.
“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,” Stiglich wrote.
“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.”