Federico v. Order of St Benedict ( 1995 )

  • USCA1 Opinion


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

    No. 95-1218


    Plaintiffs, Appellants,



    Defendant, Appellee.




    [Hon. Ernest C. Torres, U.S. District Judge] ___________________



    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. __


    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


    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. ___


    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

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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


    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.


    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."

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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.


    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. ____


    For the foregoing reasons, the decision of the

    district court is affirmed. affirmed. ________

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