Federico v. Order of Saint Benedict in Rhode Island

                United States Court of Appeals
                            United States Court of Appeals
                    For the First Circuit
                                For the First Circuit
                                         

No. 95-1218

               MARY E. FEDERICO, ETC., ET AL.,

                   Plaintiffs, Appellants,

                              v.

           ORDER OF SAINT BENEDICT IN RHODE ISLAND,

                     Defendant, Appellee.

                                         

         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,
                                                          

                                         

Dennis J. Roberts II for appellants.
                                
Michael G. Sarli, with whom Gidley,  Sarli & Marusak was  on brief
                                                                
for appellee.

                                         

                       August 29, 1995
                                         


          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

                             -2-
                                          2


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

                    
                                

1.  Epinephrine (adrenaline) is used as a muscle relaxant.

                             -3-
                                          3


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

                             -4-
                                          4


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

                             -5-
                                          5


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

                             -6-
                                          6


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  

                    
                                

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

                             -7-
                                          7


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).

                             -8-
                                          8


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

                             -9-
                                          9


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.  

                    
                                

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."  

                             -10-
                                          10


          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.

                    
                                

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).
                             

                             -11-
                                          11


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.
                                      

                             -12-
                                          12