McDonald v. Anderson C/W 61622

 was discovered that he had stage four cancer of the larynx. Due to
swelling in his throat, there were intubation problems that resulted in
complications.
McDonald sought relief from the workers' compensation board,
which decided that part of the disability was related to the accident, but
most of it was related to the cancer. Meanwhile, McDonald also sued
Anderson for his injuries. Prior to trial, the district court granted
McDonald's motion to exclude any evidence regarding workers'
compensation. However, during the trial, the parties stipulated to allow
in some evidence of the workers' compensation claim to put the case in
context. Evidence of workers' compensation was limited to passing
references made during depositions that were read to the jury. The jury
was never instructed or presented evidence that McDonald received
workers' compensation benefits. However, Anderson's counsel then made
a reference to workers' compensation during closing argument,
insinuating that McDonald was being or had been compensated by some
other entity. Counsel stated that "[Oat does not mean that Mr.
McDonald has not received compensation but it simply means that my
client does not have to pay for that." McDonald's counsel failed to object to
this statement. The jury ultimately found for Anderson and McDonald
appealed.
On appeal, McDonald argues that a new trial is warranted
based on defense counsel's comment during closing argument. We
conclude that while the statement did not explicitly state that there was a
collateral source of payment, where the alleged payment might have come
from, or the payment amount, the statement was still improper because it
suggested to the jury that McDonald had received compensation for his
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injury. See Proctor v. Castelletti, 112 Nev. 88, 90, 911 P.2d 853, 854 (1996)
(explaining that this court has adopted a "per se rule barring the
admission of a collateral source of payment for an injury into evidence for
any purpose"); Cramer ix Peavy, 116 Nev. 575, 580-82, 3 P.3d 665, 669-70
(2000) (recognizing an exception limited to the introduction of workers'
compensation payments); Lioce v. Cohen, 124 Nev. 1, 20, 174 P.3d 970, 982
(2008) (reviewing the existence of attorney misconduct de nova).
Accordingly, we must assess potential prejudice. When a
party fails to object to attorney misconduct, we "will reverse the judgment
only when the misconduct amounted to 'irreparable and fundamental
error . . . that results in a substantial impairment of justice or denial of
fundamental rights such that, but for the misconduct, the verdict would
have been different." Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 364,
212 P.3d 1068, 1079 (2009) (alteration in original) (quoting Lioce, 124 Nev.
at 19, 174 P.3d at 982).
In light of the evidence presented at trial, we decline to
overturn the jury's verdict. The evidence demonstrated that McDonald's
injuries could not be definitively tied to the motor vehicle accident—there
was no evidence that the accident caused a hematoma that resulted in the
abscess, only that the scenario was one of a few possible causes of the
abscess. The evidence showed that irritation in McDonald's throat, likely
caused by the cancer, caused the intubation problems. Moreover, evidence
was presented that McDonald was told before the accident to check on a
lump in his throat. Thus, while we conclude that the reference to
compensation in closing arguments constituted misconduct, McDonald
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was not entitled to a new trial because he failed to demonstrate that, but
for the un-objected-to misconduct, the verdict would have been different.
See Lioce, 124 Nev. at 19-20, 174 P.3d at 982.
Accordingly, we 2
ORDER the judgment of the district court AFFIRMED.
tEe—A-al , J.
Hardesty
J.
cc: Hon. Mark R. Denton, District Judge
William C. Turner, Settlement Judge
Potter Law Offices
Hansen Rasmussen, LLC
Eighth District Court Clerk
2 Because
we are affirming the district court's decision, the issue
concerning McDonald's bankruptcy is rendered moot.
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