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 

cc: Hon. Mark R. Denton, District Judge 

William C. Turner, Settlement Judge 

Potter Law Offices 

Hansen Rasmussen, LLC 

Eighth District Court Clerk 

2Because we are affirming the district court's decision, the issue 

concerning McDonald's bankruptcy is rendered moot. 

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