[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

          United States Court of Appeals
                    For the First Circuit


No. 99-1155

    PAMELA B. BERGER, Executrix of Estate of Aliya Berger,

                    Plaintiff, Appellant,

                              v.

                     STEVEN COLON, M.D.,

                     Defendant, Appellee.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Edward F. Harrington, U.S. District Judge]


                            Before

                    Torruella, Chief Judge,
               Selya and Stahl, Circuit Judges.



     Pamela B. Berger on brief pro se.
     James H. Anderson, Shelley A. McNamee and Anderson, Adler,
Cohen & Harvey, LLP on brief for appellee.




                        APRIL 19, 2000
               Per Curiam.        Appellee Steven Colan, M.D. (“Colan”)

has moved for summary disposition of this appeal, and after

a   thorough      review     of    the    record   and   of    the     parties’

submissions, we allow the appellee’s motion and we affirm

the judgment.

               Appellant Pamela B. Berger’s (“Berger’s”) argument

that    the    jury’s   verdict      was    against   the     weight    of    the

evidence may not be raised on appeal, as she did not raise

it in a motion for judgment notwithstanding the verdict, nor

in a motion for new trial pursuant to Fed.R.Civ.P. 59(a).

Puerto Rico Aqueduct & Sewer Auth. V. Constructora Lluch,

Inc., 

, 82 (1st Cir. 1999) (“A motion for a new

trial must be made in the first instance before the trial

court, particularly where the weight of the evidence is at

issue. . . . The failure to move for a new trial waives the

issue    on     appeal.”)     (citations       omitted);       Velazquez       v.

Figueroa-Gomez, 

, 426-27 (1st Cir. 1993) (failure

to move for judgment notwithstanding the verdict and for a

new    trial    pursuant     to    Rule    59(a)   results     in    waiver    of

challenge to sufficiency or weight of evidence).                       Even if

the matter had been presented properly to the district

court, one may not argue that the verdict was against the

weight of the evidence simply by citing to the evidence
which was favorable to one’s position.           If evidence was

offered to the contrary, the jury was free to accept or

reject each party’s evidence, and in most cases, a court is

not warranted in overriding the jury’s choice.

           Likewise, Berger’s argument that the testimony and

opinion of Colon’s expert witness Valhakes was “erroneous”

is insufficient to support relief on appeal.          Berger makes

no argument that Valhakes was unqualified as an expert

witness or that his testimony was for some other reason

inadmissible under the Federal Rules of Evidence.                Her

counsel was free to attack Valhakes’ opinion on cross-

examination (which he did) and in his closing argument.          But

Berger is not entitled to reversal simply because the jury

chose to agree with Valhakes’ view of the medical evidence.

           Berger’s claim that she is entitled to relief based

on newly-discovered evidence fails.       Such claims must first

be brought to the district court through a motion under

Fed.R.Civ.P. 60(b)(2) within one year of judgment.          See In

re Colonial Mortgage Bankers Corp., 

, 51 (1st Cir.

1999) (procedure for reopening judgment in light of newly-

discovered   evidence   is   motion   under   Rule   60(b)(2);   new

evidence is not to be proffered for the first time on

appeal).


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         Finally, there is no record support for Berger’s

contention that jurors slept through portions of the trial,

so her claim that she is entitled to relief on this ground

must fail.

         Affirmed.   1st Cir. Loc. R. 27(c).




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