USCA1 Opinion
United States Court of Appeals United States Court of Appeals
For the First Circuit For the First Circuit
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No. 95-1218
MARY E. FEDERICO, ETC., ET AL.,
Plaintiffs, Appellants,
v.
ORDER OF SAINT BENEDICT IN RHODE ISLAND,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Boudin and Stahl, Circuit Judges, ______________
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Dennis J. Roberts II for appellants. ____________________
Michael G. Sarli, with whom Gidley, Sarli & Marusak was on brief ________________ ________________________
for appellee.
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August 29, 1995
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STAHL, Circuit Judge. After John Federico, Jr., STAHL, Circuit Judge. ______________
died at the defendant school, his parents brought this
wrongful death action. Following a thirteen-day trial, the
jury returned a verdict in favor of the defendant. On
appeal, the principal issue is whether the district court
misconceived the scope of the duty owed under Rhode Island
law by a boarding school to one of its students. After
careful review, we determine that there was no error and
therefore affirm.
I. I. __
FACTUAL AND PROCEDURAL BACKGROUND FACTUAL AND PROCEDURAL BACKGROUND _________________________________
John Federico, Jr. ("John"), was a sixteen-year-old
boarding student at defendant Portsmouth Abbey School ("the
school"). The school operated a full-time infirmary, staffed
by the director of medical services, Pamela Gorman, R.N., and
a licensed practical nurse. The school also retained, on a
part-time basis, Dr. Robert Koterbay, a board-certified
pediatrician, as school physician.
As a young child, doctors diagnosed John as
asthmatic with a severe allergy to nuts. The school's
medical staff knew about John's medical condition. John's
father ("John Sr.") -- a pediatrician -- actively
participated in John's medical care. John Sr. arranged for a
Pulmo-Aid machine to be kept in John's room. However, John
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Sr. apparently rejected the advice of John's allergist that
epinephrine1 in a self-administered form be immediately
available to him.
The events underlying this case all took place on
the evening of February 26, 1993. John's dorm parent,
Stephen Carter, held an end-of-term party and ordered Chinese
food from a local restaurant. Carter and his wife, Deidre,
lived in an apartment attached to John's dormitory. John,
who was known to be very careful about his diet, ate only
broccoli and rice. The food did not appear to have nuts in
it. At 9:30 p.m., the students were excused and instructed
to return to the dorm at 10:00 p.m. for prayers. John went
to an area behind the student center, used by students to
smoke cigarettes. John remarked to another student that "I
just don't feel well." John smoked one-half of a cigarette.
At about 9:45 p.m., John returned to the dorm. At
about 9:50 p.m., John knocked on the Carter's apartment door
saying in a wheezy, high-pitched voice, "Hello -- help me --
I'm having an asthma attack." John was blue and breathing
with difficulty. Mrs. Carter assisted him to the sofa of the
apartment, and then called out "Emergency -- John Federico is
having an asthma attack -- someone get his inhaler."
Students came in with one or more inhalers. Mrs. Carter
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1. Epinephrine (adrenaline) is used as a muscle relaxant.
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attempted to reach the infirmary on the telephone. The line
was busy. Mr. Carter then arrived. He immediately went to
the infirmary to get help.
Arriving at the infirmary, Mr. Carter told Nurse
Gorman that John was having a severe asthma attack. Nurse
Gorman took John's chart and an oxygen tank to the dorm. She
did not take an emergency medical kit containing epinephrine
and a syringe. She instructed another infirmary worker,
Sister Frances (a licensed practical nurse), to call the
rescue squad. However, Nurse Gorman did not tell Sister
Frances to call Dr. Koterbay.
Before Nurse Gorman arrived at the Carter
apartment, another student brought the Pulmo-Aid machine to
John, but John could not grab it. Brian Bordeau, a senior
student prefect in John's dormitory, arrived in the Carter
apartment at about 9:55 p.m. At this point, John was lying
on a couch down with vomitus coming from his mouth. Bordeau
-- trained in CPR -- noted a pulse of twelve per fifteen
seconds. Nurse Gorman then arrived. Bordeau advised her of
the pulse rate and then left. Nurse Gorman noted that John
was no longer breathing. Because of the large amount of
material in John's airways, Nurse Gorman could not clear
them. She also unsuccessfully attempted mouth-to-mouth
resuscitation. Nurse Gorman asked Mrs. Carter to get John
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Perreira, a teacher, athletic trainer, and dorm parent from a
nearby dorm.
When Perreira arrived, Nurse Gorman was attempting
to ventilate John. Perreira tried to find a pulse and --
when he was uncertain about having found one -- removed John
to the floor to begin CPR. At 10:02 p.m., the rescue squad
arrived and took over John's care. Rescue efforts continued
briefly in the apartment. None of the rescuers could get air
in John's chest or revive him.
After the rescue squad removed John to the Newport
hospital, Nurse Gorman called Dr. Koterbay. At the hospital,
doctors administered intravenous epinephrine. An x-ray
showed that John was suffering from tension pneumothorax, a
condition where air has lodged between the lungs and the
lining of the chest cavity. The emergency room physician
vacated the air. John was pronounced dead at 10:50 p.m.
Subsequently, John's parents commenced this
diversity-based wrongful death action. A thirteen-day trial
ensued, during which both parties presented conflicting
expert testimony. The plaintiffs presented two pediatric
allergists who testified that John suffered from an allergy-
induced anaphylactic shock reaction, which -- perhaps in
combination with asthma -- led to his death. These experts
testified that epinephrine reverses the shock and opens the
airways, and that had it been administered in the apartment
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or when Nurse Gorman arrived, it would have reversed the
shock and permitted John to survive.
The plaintiffs also presented another expert, the
chief of pediatric pulmonology at Massachusetts General
Hospital, who agreed that John suffered from anaphylaxis,
specifically testifying that John had not suffered from
pneumothorax. The court did not permit the plaintiffs to
present expert testimony with regard to national nursing
standards and standards regarding the development of
individualized emergency care.
The school's experts included a board-certified
pulmonologist, who testified that John's symptoms indicate
that he could have suffered a tension pneumothorax and that
this was the cause of his death. This expert also testified
that epinephrine would not have reversed the condition. A
board-certified emergency room doctor also testified that
Nurse Gorman, confronted with a case of cardiac arrest, met
the standards for emergency care by attempting to clear the
airways in order to perform CPR. A third expert, a board-
certified pediatrician, testified that even if John was
suffering from anaphylactic shock, by the time that Nurse
Gorman arrived on the scene, the administration of
epinephrine would not have changed the outcome inasmuch as
John was at that point suffering from vascular collapse.
Additionally, Dr. Koterbay testified that Nurse Gorman
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followed his orders and acted appropriately when confronted
with a situation constituting cardiac arrest.
Following the jury verdict for the school,
plaintiff filed a motion for new trial pursuant Fed. R. Civ.
P. 59. The district court denied this motion by margin
order. This appeal ensued.
II. II. ___
DISCUSSION DISCUSSION __________
Although not altogether clear from their briefs,
the plaintiffs appear to argue that the district court
committed error by instructing the jury to apply an overly
narrow -- and thus, erroneous -- interpretation of Rhode
Island tort law. The plaintiffs also argue that the district
court abused its discretion when it refused to grant a new
trial. We discuss each issue separately.2
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2. The plaintiffs also objected, and now assign error, to
the district court's instruction that:
Under Rhode Island law, epinephrine is a
drug that may be administered only
pursuant through the prescription or
order of a licensed physician.
Consequently, a nurse cannot be found
negligent for failing to administer
epinephrine in the absence of such a
prescription or order unless she somehow
was responsible for the absence of the
prescription or order.
The plaintiffs argue that the language of the Rhode
Island statute governing nursing standards impliedly
authorized Gorman to administer epinephrine. We do not
agree. Rhode Island law is clear as to who may administer
controlled substances and Gorman, as a registered nurse and
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A. Jury Instructions _____________________
We first set out the legal framework. An error in
jury instructions warrants reversal of a judgment "`only if
the error is determined to have been prejudicial, based on a
review of the record [in its entirety].'" Kelliher v. ________
General Transp. Servs., Inc., 29 F.3d 750, 752 (1st Cir. ______________________________
1994) (quoting Davet v. Maccarone, 973 F.2d 22, 26 (1st Cir. _____ _________
1992)). Thus, the plaintiffs must demonstrate that the
charge was erroneous and that the error was prejudicial.
Connors v. McNulty, 697 F.2d 18, 21 (1st Cir. 1983). We _______ _______
examine jury instructions to determine whether they
adequately explained the law or whether they tended to
confuse or mislead the jury on the controlling issues.
Kelliher, 29 F.3d at 752. ________
An additional consideration frames our discussion.
Because plaintiffs invoke diversity jurisdiction, our
analysis of applicable law is circumscribed. Plaintiffs who
select "federal forum in preference to an available state
forum may not expect the federal court to steer state law
into unprecedented configurations." Martel v. Stafford, 992 ______ ________
F.2d 1244, 1247 (1st Cir. 1993); see also Ryan v. Royal Ins. ________ ____ __________
Co., 916 F.2d 731, 744 (1st Cir. 1990) (rejecting a diversity ___
plaintiff's attempt to stretch New York law to new frontiers
____________________
lacking a physician's order, was not so authorized. R.I.
Gen. L. 21-28-3.20 & 21-23-1.02(29).
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without providing a "well-plotted roadmap showing an avenue
of relief that the state's highest court would likely
follow").
The plaintiffs have failed to establish that the
district court's instructions were erroneous. As to the
school's liability, the district court instructed the jury,
in relevant part, as follows:
A school is required to do whatever a
reasonably prudent school would do in
safeguarding the health of its students,
providing emergency assistance to them
when required and arranging for
appropriate medical care if necessary.
That does not mean that a school is
responsible for guaranteeing the health
of its students. Obviously no one can
guarantee anyone's health. Nor does it
mean that a school is expected to have
the knowledge of a physician or to assume
the role of a physician in diagnosing or
treating its students. What it means is
that a school must act as a reasonable
school in responding to medical needs of
the students.
The plaintiffs objected to this instruction on the
grounds that it understated the nature and scope of the
defendant's liability with respect to the provision of health
care for its students at the school. On appeal, while
conceding that there are no Rhode Island cases precisely
establishing the scope of the duty owed by a school, the
plaintiffs advance two arguments supporting a duty broader
than that reflected in the court's instructions. Notably,
the effect of both the plaintiffs' proffered theories would
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be to hold the school liable for the acts or omissions of Dr.
Koterbay.3
First, the plaintiffs argue that we should
interpret Rhode Island law to hold the school to a
nondelegable duty to provide reasonable health care, the
scope of which includes having individualized standing orders
in place in the event of an emergency. Had such an order
been in place for John, presumably it would have authorized
Nurse Gorman to administer epinephrine subcutaneously in the
event of an allergic reaction. Importantly, the plaintiffs
essentially concede that the school discharged duties created
by Rhode Island's applicable laws and regulations. Thus, the
thrust of their argument is that the school should be
required to do more than the "bare minimum required of it
under state law." Although the plaintiffs offer an extended
policy-based discussion as to why a boarding school should be
held to a higher duty, they do not cite any legal authority
supporting their argument. Our own search has revealed
nothing suggesting that such a broadly defined duty exists
under Rhode Island law. On that basis, we detect no error in
the court's description of the duty owed by the school.
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3. The sole defendant in this suit is the school.
Importantly, the district court found that Dr. Koterbay --
who was not named as a defendant -- was not the school's
agent. Accordingly, the court instructed the jury that "the
school is not legally responsible for the manner in which Dr.
Koterbay performed his services as a physician."
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Second, the plaintiffs argue that the jury
instructions should have reflected the holding of Rodrigues _________
v. Miriam Hosp., 623 A.2d 456 (R.I. 1993), in which the Rhode ____________
Island Supreme Court held that a hospital could be held
vicariously liable for a doctor acting under apparent
authority. Beyond noting that the language of Rodrigues _________
itself appears to be limited to the hospital context, see id. ___ ___
at 462, we do not speculate as to what other situations the
Rhode Island Supreme Court might apply that case's
principles. Even assuming that, like the hospital in
Rodrigues, a boarding school could be held vicariously liable _________
for the acts or omissions of a non-employee physician, the
plaintiffs have failed to establish that Dr. Koterbay had the
requisite apparent authority. Cf. id. (quoting Restatement ___ ___
(2d) Agency 267).4
We have reviewed carefully the plaintiffs' other
arguments, and we detect no error in the district court's
jury instructions.
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4. We also disagree with the plaintiffs' argument that the
school should be held directly liable under a corporate
negligence theory. The plaintiffs did not present evidence
on this theory, and we detect nothing in the record to
suggest that the school "fail[ed] to exercise reasonable care
in selecting [Dr. Koterbay] who the [school] knew or should
have known was unfit or incompetent for the employment,
thereby exposing third parties to an unreasonable risk of
harm." Rodrigues, 623 A.2d at 463 (quotation omitted). _________
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B. Motion for New Trial ________________________
A district court may set aside a jury's verdict and
order a new trial only if the verdict is so clearly against
the weight of the evidence as to amount to a manifest
miscarriage of justice. See, e.g., Lama v. Borras, 16 F.3d ___ ____ ____ ______
473, 477 (1st Cir. 1994). A trial judge's refusal to disturb
a jury verdict is reversed only for abuse of discretion. Id. ___
We conclude that the district court did not abuse
its discretion. Although the facts in this case are tragic,
the legal principles are relatively straightforward and, as
our discussion above suggests, the district court properly
presented them to the jury. We have reviewed the record
carefully, and it would serve no purpose to recapitulate it
in detail here. Directly stated, we conclude that a
reasonable factfinder could have determined that the
defendant was not liable, and that such a determination would
not constitute a miscarriage of justice. The record supports
a conclusion that the defendant did not breach any duty that
it owed to John. Accordingly, the district court was well
within its discretion in denying the plaintiffs' motion.
III. III. ____
CONCLUSION CONCLUSION __________
For the foregoing reasons, the decision of the
district court is affirmed. affirmed. ________
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