          United States Court of Appeals
                       For the First Circuit


No. 16-1886

  JOSÉ A. MEJÍAS-AGUAYO; RAMON LUIS MEJÍAS-NIEVES; JOSÉ ANTONIO
                          MEJÍAS-NIEVES,

                      Plaintiffs, Appellants,

                                 v.

      JUAN DORESTE-RODRÍGUEZ; UNIVERSAL INSURANCE COMPANY,

                       Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

              [Hon. Marcos E. López, Magistrate Judge]


                               Before

                        Howard, Chief Judge.
                 Lipez and Barron, Circuit Judges.


     José Luis Ubarri, Esq., David W. Román, Esq., and Ubarri &
Román Law Office on brief for appellants.
     José Hector Vivas, Pedro Jamie Lopez-Bergollo, José M.
Martinez Chevres, Vivas & Vivas, and Andreu & Sagardia on brief
for appellees.

                           July 12, 2017
              HOWARD,    Chief    Judge.        Following   an   unfortunate   car

accident, injured pedestrian José Mejías-Aguayo filed a negligence

action against the vehicle's driver Juan Doreste-Rodríguez and

Doreste's       insurance        company        Universal   Insurance      Company

("Universal").      After a four-day jury trial, the jury returned a

verdict in favor of the defendants.                 Mejías then filed a motion

for a new trial, which the district court denied.1                      Mejías now

appeals this denial, maintaining that the verdict was against the

weight of the evidence and that certain statements by defense

counsel and erroneous jury instructions warrant a new trial.

Finding insufficient merit to his challenges, we affirm.

                                           I.

              In January 2013, Mejías was on his way to a Banco Popular

branch in Isabela, Puerto Rico. As he crossed Agustín Ramos Calero

Avenue,   a    two-way    street     --    though    not,   he   concedes,   at   a

designated crosswalk -- Doreste's car struck him, and he suffered

significant     injuries.         Mejías    subsequently    filed   a    state-law

negligence action in federal district court, invoking diversity

jurisdiction.

              At trial, Mejías testified that he was hit "just as he

lifted his foot to step onto the sidewalk" leading to the bank.




1    The parties consented to the conduct of all proceedings in
the case by a magistrate judge, whose decision we therefore review
directly. See 28 U.S.C. § 636(c)(3); Fed. R. Civ. P. 73(c).


                                       - 2 -
Miguel Arroyo, Mejías's witness at trial, testified that at the

time of the accident he was parked at a nearby stop sign, and saw

Mejías's body fly about two feet into the air and land four to

five feet from the front bumper of Doreste's car.                  Photographs

taken   by   the   insurance   company     showed   damage    to    the   front

passenger-side bumper.

             Doreste,   by   contrast,   maintained    that   the    accident

occurred not near the sidewalk, but closer to the center of the

road.    Doreste testified that, as he was driving, Mejías --

initially shielded from view by a large SUV driving in the opposite

direction -- suddenly appeared in front of his vehicle.               Doreste

immediately applied the brakes, but nevertheless struck Mejías.

Doreste testified that he was not on the phone, had not been

drinking, and obeyed all traffic laws.         He also asserted that the

damage to the passenger-side front bumper of his car, indicated in

the insurance company photo, was the result of an earlier accident,

and that it was actually the middle of his front bumper that struck

Mejías, closer to the driver's side.

             The jury returned a verdict in favor of Doreste, finding

that Mejías failed to prove by a preponderance of the evidence

that Doreste was negligent in his driving and that his negligence

proximately caused damage to Mejías.          The court entered judgment

consistent with the verdict.         Mejías filed a motion for a new




                                   - 3 -
trial, which the district court denied.      This timely appeal of

that denial followed.

                                  II.

          A trial court may, on motion, grant a new trial in

limited circumstances. See Fed. R. Civ. P. 59(a)(1). "A new trial

may be warranted if 'the verdict is against the weight of the

evidence' or if 'the action is required in order to prevent

injustice.'"   Jones ex rel. U.S. v. Mass. Gen. Hosp., 780 F.3d

479, 492 (1st Cir. 2015) (quoting Jennings v. Jones, 587 F.3d 430,

436 (1st Cir. 2009)).   We review a district court's denial of a

motion for a new trial for abuse of discretion.    Id.

          On appeal, Mejías repeats the arguments set forth in his

motion for a new trial before the district court, arguing that: 1)

the verdict was against the weight of the evidence; 2) defense

counsel made improper comments at closing argument that were not

remedied by the court's curative instruction; and 3) the jury

instructions were incomplete.2    We address each argument in turn.




2     On appeal, Mejías also contends that the verdict form misled
the jury into thinking that there could be only one proximate cause
under Puerto Rico negligence law -- that is, that any negligence
attributed to Mejías would preclude attributing negligence to
Doreste. However, he fails to direct us to any language in the
verdict form that would suggest as much. Accordingly, his claim
is waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990)    ("[I]ssues  adverted   to   in   a   perfunctory   manner,
unaccompanied by some effort at developed argumentation, are
deemed waived.").


                                 - 4 -
A. Verdict Against the Weight of the Evidence

              Mejías first argues that the trial evidence established

that Doreste was negligent.             In doing so, he points to Doreste's

own   testimony      as   proving   uncontroverted          facts   that   the   jury

wrongfully disregarded.

              In assessing a motion for a new trial, a district court

determines     whether     "the   weight     of    the   evidence    supports     the

verdict."      Jones, 780 F.3d at 492.             The court may, though it is

not   required    to,     weigh   the    evidence     and    credibility    of    the

testimony.     Id.     In conducting our abuse-of-discretion review, we

take "both the facts and the reasonable inferences therefrom in

the   light    most    hospitable       to   the   jury's    verdict."      Poy    v.

Boutselis, 352 F.3d 479, 485 (1st Cir. 2003) (alteration in

original) (quoting Correa v. Hosp. S.F., 69 F.3d 1184, 1188 (1st

Cir. 1995)).          Our review is circumscribed because "[c]ircuit

judges, reading the dry pages of the record, do not experience the

tenor of the testimony at trial."             Jones, 780 F.3d at 492 (quoting

Jennings, 587 F.3d at 436-37).

              Under Puerto Rico law, to make a prima facie showing of

negligence, a plaintiff must demonstrate: "1) an act or omission

constituting fault or negligence; 2) damages; and 3) a causal

connection     between     the    defendant's       tortious    conduct    and    the

injuries sustained by plaintiff."               Smith v. Williams Hospitality

Mgmt. Corp., 950 F. Supp. 440, 446 (D.P.R. 1997) (citing Marital


                                        - 5 -
Cmty. v. Gonzalez Padin Co., 17 P.R. Offic. Trans. 111, 113

(1986)).     Within this framework, a negligent act or omission is

one in which the defendant failed to behave as a reasonable and

prudent person would have in the same or similar circumstances.

Id.   (citing Jiménez v. Pelegrina Espinet, 12 P.R. Offic. Trans.

881, 888 (1982)).

             Here, Mejías's argument is premised on what he deems

"patently clear" facts refuting Doreste's claim that he did not

have time to stop before hitting Mejías, and thus did not breach

a duty of care.         First, Mejías contends that Doreste himself

admitted at trial that Mejías was closer to the sidewalk than to

the middle of the road when Doreste's car hit him.         He also points

to Doreste's testimony indicating that damage was sustained on

Doreste's     passenger-side    bumper.       Mejías   argues    that     this

testimony,    coupled    with   the    photographs   presented   at     trial,

"shatters Doreste's claim that [Mejías] appeared suddenly in front

of his SUV."3


3    Mejías also presses a claim that the jury verdict was "against
bedrock legal precedents," because the weight of the evidence does
not support a finding that Mejías was comparatively negligent, or
that Mejías's own negligence should preclude finding Doreste
negligent as well. He cites two Puerto Rico Supreme Court cases,
Vda de Vila v. Guerra Mondragón, 7 P.R. Offic. Trans. 463 (1978),
and Briales Aldrich v. Torres, 89 P.R.R. 797 (1964), as support
for assigning liability to a driver in spite of a pedestrian's
comparative negligence.    However, these cases are inapplicable.
The jury did not enter any verdict with respect to Mejías's
negligence. It simply found that the preponderance of the evidence
did not support finding Doreste negligent.


                                      - 6 -
            Although   Mejías     characterizes       Doreste's       alleged

admissions as "uncontradicted," as the district court pointed out

that is simply not accurate.       Not only did Doreste testify that

the damage sustained on the passenger side of his car was not from

hitting Mejías, but he also testified on cross-examination that

Mejías appeared suddenly in front of him, before he had a chance

to respond.    A jury could find Doreste's version of the accident

persuasive. Indeed, the district court concluded that the evidence

about the vehicle damage favored the defendants.              See Aguayo v.

Rodriguez, No. 14-1059, 2016 WL 3522259, at *3 (D.P.R. June 21,

2016). Moreover, the court considered Doreste's testimony at trial

that he did not drink, obeyed the traffic laws, and was not

otherwise     distracted,   and   concluded    that     the    jury     could

permissibly have found that Doreste behaved as a reasonable man

would have under the same or similar circumstances.             See id. at

*2.   We find no abuse of the district court's discretion in

declining to disturb the jury's conclusion on these points.

B. Defense Counsel Closing Statements

            Mejías next takes aim at certain statements that defense

counsel made during closing arguments.        We "examine the totality

of the circumstances, including (1) the nature of the comments;

(2) their frequency; (3) their possible relevance to the real

issues before the jury; (4) the manner in which the parties and

the court treated the comments; (5) the strength of the case; and


                                  - 7 -
(6) the verdict itself."     Granfield v. CSX Transp., Inc., 597 F.3d

474, 490 (1st Cir. 2010).      We "do not reverse in the absence of

prejudice to the appellant's case."         Osorio v. One World Techs.,

Inc., 659 F.3d 81, 90 (1st Cir. 2011).

             Mejías first directs our attention to the following

comment made by defense counsel at closing:

             I leave you with the Oxford Dictionary's
             definition of what an accident is. I quote,
             'An   unfortunate   incident    that   happens
             unexpectedly and unintentionally typically
             resulting in damage or injury.'       That is
             precisely what happened on January 28, 2013 in
             Isabela, an accident . . . . It was not
             [Doreste's] negligence.    Unfortunately this
             good gentleman suffered serious injuries but
             please apply the law.

             Mejías argues that this comment gave the jury "the

erroneous belief that there is no liability if the event was

accidental."      He   preserved    this   challenge   at   trial.   After

overruling Mejías's objection, the judge stated to the jury: "I

will be instructing you as to the law but nothing prevents counsel

from incorporating, from citing the law . . . ultimately it is my

instructions as to the law [t]hat matters." Moreover, at the close

of trial, the judge reminded the jury: "In the final analysis . .

. it is your own recollection and interpretation of the evidence

that controls in the case.         What the lawyers say is not binding

upon you."




                                   - 8 -
          At the outset, we note that this was a negligence action,

and not once in the district court's explanation of negligence law

did the term "accident" appear.    In light of the lack of relevance

to "real issues before the jury," we fail to discern how, given

the totality of the circumstances, the district court's allowance

of defense counsel's remark was an abuse of discretion. Granfield,

597 F.3d at 490.    Moreover, we think that the district judge's

prompt   curative   instructions   "sufficiently   neutralized"   any

"tendency to mislead" caused by the comment.        See id. at 491;

United States v. Ayala-García, 574 F.3d 5, 21 (1st Cir. 2009)

(noting that generally, the "standard instruction, advising jurors

that arguments of counsel are not evidence, [is] adequate to dispel

any prejudice from improper remarks").

          Mejías asserts another preserved objection to Universal

counsel's warning, at closing, to "not fall for the catch that if

there's insurance, the sky is the limit."    He maintains that this

comment was an inappropriate "blatant appeal to sympathy" because

it "impl[ied] that Doreste may have to pay out of his own pocket."

We need not dwell on this challenge.    The court reminded the jury

to not "consider[]" the insurance-coverage evidence in determining

either Doreste's liability or the damages award.      Moreover, any

assertion of prejudice on the basis of this comment is hard to

grasp, as the jury -- having found that Doreste was not negligent

-- never reached the issue of damages.    Accordingly, the district


                               - 9 -
court did not abuse its discretion in allowing this comment to be

presented to the jury.

C. Jury Instructions

          Finally, Mejías argues that the court gave "fatally

incomplete" jury instructions on the duty of drivers vis-á-vis

pedestrians.     The district court instructed the jury on the duty

of drivers as follows:

          The motor vehicle operator owes the pedestrian the
          duty to regulate the speed of his motor vehicle at
          all times with due care taking into account the
          width, traffic, use and condition of the public
          highway. Additionally, the operator has a duty to
          take the proper precautions so as to not injure any
          pedestrian with special precautions when the
          pedestrians are children or elderly or disabled
          persons.   These precautions shall be taken even
          when the pedestrian is improperly or illegally
          using the public road.

          While    these   instructions   incorporate   and   paraphrase

certain sections of the Puerto Rico Vehicle and Traffic Laws,

Mejías argues that the full text of these sections should have

been included.    See P.R. Laws Ann. tit. 9, § 5121; id. § 5253(a).4


4    Specifically, Mejías requested that the following statutory
text be included in the jury instructions, verbatim:

          No one shall drive at a speed greater than that
          which allows the driver to exercise proper control
          of the vehicle and shall reduce its speed or stop
          when needed to prevent an accident . . . [E]very
          person shall drive at a safe and adequate speed
          . . . when there is special danger to pedestrians
          or other traffic, or due to the weather or the
          condition of the public highway.



                                - 10 -
He raised these objections at the charge conference, and after

considering     his   suggestions,    the     district    court    denied    them,

stating, "[T]here is no requirement that the entire provision

verbatim   has   to   be   drafted    word    by   word   in   the   final   jury

instructions.     It is sufficient to inform the jury adequately as

to the pertinent law and as drafted I believe that it [does]."

           We    agree.     A   district      court's     refusal    to   give   a

particular instruction is only reversible error if: "the requested

instruction was (1) correct as a matter of substantive law, (2)

not substantially incorporated into the charge as rendered, and

(3) integral to an important point in the case."                  Cigna Ins. Co.

v. Oy Saunatec, Ltd., 241 F.3d 1, 8 (1st Cir. 2001) (quoting White

v. N.H. Dep't of Corr., 221 F.3d 254, 263 (1st Cir. 2000)).

Moreover, to succeed, Mejías must show that the error affected his




P.R. Laws Ann. tit. 9, § 5121.

Additionally, he requested that the following be included in the
instructions:

           Any person who drives a vehicle on the public roads
           shall be bound to . . . [y]ield [the] right of way
           when there are no traffic lights installed or are
           not working properly, reduce speed, and stop if
           necessary, for any pedestrian who is crossing the
           road on a pedestrian crosswalk on a road where said
           vehicle is being driven, or when the pedestrian may
           be in danger when approaching from the opposite
           side of the roadway.

Id. § 5253(a).



                                     - 11 -
"substantial   rights."   Id.  (quoting   Play    Time,   Inc.   v.    LDDS

Metromedia Commc'ns, Inc., 123 F.3d 23, 29 n.7 (1st Cir. 1997);

see Fed. R. Civ. P. 61 ("At every stage of the proceeding, the

court must disregard all errors and defects that do not affect any

party's substantial rights.").   Our review is de novo.5         Id.

          Mejías's challenge fails the second prong of the test

because the given instructions "substantially incorporated" a

driver's duties with respect to pedestrians under Puerto Rico law.

Cigna, 241 F.3d at 8 (citation omitted).         Indeed, we have often

stated that a trial court need not "use the precise words proposed

by one party in its instructions; it is sufficient if the principle

of law is correctly stated."   United States v. Rule Indus., Inc.,

878 F.2d 535, 543 (1st Cir. 1989) (quoting Harrington v. United

States, 504 F.2d 1306, 1317 (1st Cir. 1974)).         The instructions

were sufficient, as they addressed the core concerns of Mejías's

preferred text, that is, that a driver owes a duty to pedestrians

to regulate his speed and to take proper precautions.                 It is

unlikely that additional text would have enhanced the jurors'

understanding here, and the district court did not err in choosing


5    Jury-instruction challenges asserting that the court "omitted
a legally required instruction" or "materially misstated the law"
are reviewed de novo, while challenges to a court's phrasing of
certain instructions are reviewed for abuse of discretion. United
States v. De La Cruz, 835 F.3d 1, 12 (1st Cir. 2016). We assume
without deciding that the more exacting standard applies here, as
the parties do not take a position on the matter and Mejías's
challenge fails under both standards.


                               - 12 -
to exclude this extraneous language.        See, e.g., White, 221 F.3d

at 264-65; Rule, 878 F.2d at 543-44.        Moreover, Mejías fails to

articulate how these omissions affected his substantial rights.

The   district   court's   refusal     to   give   Mejías's   preferred

instruction, then, was not reversible error.

                                III.

          For the reasons discussed above, we AFFIRM the judgment.




                               - 13 -
