Mejias-Aguayo, et al v. Doreste-Rodriguez, et al

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Kermit V. Lipez, Appellate Judge and David J. Barron, Appellate Judge. Published. [16-1886]

Case: 16-1886

Document: 00117176611

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Date Filed: 07/12/2017

Entry ID: 6105406

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

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HOWARD,

Chief

Page: 2

Judge.

Date Filed: 07/12/2017

Following

an

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unfortunate

car

accident, injured pedestrian José Mejías-Aguayo filed a negligence
action against the vehicle's driver Juan Doreste-Rodríguez and
Doreste's

insurance

("Universal").

company

Universal

Insurance

Company

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).
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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.
taken

by

the

insurance

company

showed

damage

Photographs

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.
consistent with the verdict.

The court entered judgment

Mejías filed a motion for a new

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trial, which the district court denied.

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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.").
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A. Verdict Against the Weight of the Evidence
Mejías first argues that the trial evidence established
that Doreste was negligent.
own

testimony

as

proving

In doing so, he points to Doreste's
uncontroverted

facts

that

the

jury

wrongfully disregarded.
In assessing a motion for a new trial, a district court
determines

whether

verdict."

Jones, 780 F.3d at 492.

not

required

testimony.

to,

Id.

"the

weigh

weight

the

of

the

evidence

supports

the

The court may, though it is

evidence

and

credibility

of

the

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

injuries sustained by plaintiff."

tortious

conduct

and

the

Smith v. Williams Hospitality

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

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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
testimony,

passenger-side
coupled

with

bumper.
the

Mejías

photographs

argues

presented

that
at

this
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.
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Although

Mejías

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characterizes

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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.
*2.

See id. at

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

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(6) the verdict itself."

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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."

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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.
prompt

curative

Moreover, we think that the district judge's
instructions

"sufficiently

"tendency to mislead" caused by the comment.

neutralized"

any

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.

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Accordingly, the district

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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.

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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

instructions.

be

drafted

word

by

word

in

the

final

jury

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).

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"substantial

rights."

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Id.  (quoting

Date Filed: 07/12/2017

Play

Time,

Inc.

Entry ID: 6105406

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.
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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.

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