
USCA1 Opinion

	




                            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
