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
________________
________________________
for appellee.

____________________

August 29, 1995

____________________

on br

STAHL, Circuit Judge.

STAHL, Circuit Judge.
______________

died

at the

defendant

wrongful death action.

jury

returned a

verdict

school,

After John

his

parents

Federico, Jr.,

brought

Following a thirteen-day

in

favor of

the

this

trial, the

defendant.

On

appeal, the

principal issue

misconceived the scope

law

by a

of the duty

boarding school

careful review,

is whether

to one

we determine

the district

owed under Rhode

of

court

Island

its students.

that there

was

no error

After

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

school").

Portsmouth Abbey School

("the

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,

board-certified

pediatrician, as school physician.

As

asthmatic

with

young

child,

a severe

medical

staff knew about

father

("John

Sr.")

doctors

allergy

to

nuts.

The

John's medical condition.

--

pediatrician

participated in John's medical care.

Pulmo-Aid machine to

diagnosed

as

school's

John's

actively

John Sr. arranged for a

be kept in John's room.

-22

--

John

However, John

Sr. apparently rejected

epinephrine1

in

the advice of John's

self-administered

form

allergist that

be

immediately

available to him.

The events underlying

the evening

of

February

26,

this case all took

1993.

John's

dorm

place on

parent,

Stephen Carter, held an end-of-term party and ordered Chinese

food from a

lived in

local restaurant.

an apartment attached

who was known

to be very

Carter and

his wife, Deidre,

to John's dormitory.

careful about his

diet, ate

John,

only

broccoli and

it.

At

rice.

The food did not

appear to have nuts in

9:30 p.m., the students were

excused and instructed

to return to the

dorm at 10:00 p.m. for prayers.

to an

area behind

the student center,

smoke

cigarettes.

John remarked to

just don't feel well."

used by

John went

students to

another student that "I

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."

with difficulty.

John was blue

and breathing

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.

-33

attempted to reach the infirmary

was

busy.

on the telephone.

Mr. Carter then arrived.

The line

He immediately went to

the infirmary to get help.

Arriving at

Gorman that

the infirmary, Mr.

John was having

Carter told

Nurse

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

Sister

Frances (a

rescue

squad.

instructed

another infirmary

licensed practical

However, Nurse

nurse),

Gorman

worker,

to call

did not

the

tell Sister

Frances to call Dr. Koterbay.

Before

Nurse

Gorman

apartment, another student brought

John,

student

but John could

not grab it.

prefect in John's

apartment at about

arrived

at

the

the Pulmo-Aid machine

to

Brian Bordeau, a senior

dormitory, arrived in

9:55 p.m.

Carter

At this point,

the Carter

John was lying

on a couch down with vomitus coming from his

-- trained

seconds.

in CPR

-- noted

Nurse Gorman then

the pulse rate and then left.

was

no longer

material

them.

breathing.

in John's

She

resuscitation.

also

a pulse of

arrived.

Bordeau

twelve per

fifteen

Bordeau advised her of

Nurse Gorman

Because of

airways, Nurse

unsuccessfully

Nurse

mouth.

-44

the large

Gorman

attempted

Gorman asked Mrs.

noted that

John

amount of

could not

clear

mouth-to-mouth

Carter to get

John

Perreira, a teacher, athletic trainer, and dorm parent from a

nearby dorm.

When Perreira arrived, Nurse

to ventilate

John.

Perreira

Gorman was attempting

tried to find

a pulse and

--

when he was uncertain about

having found one -- removed John

to the floor to

At 10:02 p.m.,

begin CPR.

arrived and took over John's care.

briefly in the apartment.

the rescue squad

Rescue efforts continued

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.

doctors

administered

showed that John

intravenous

epinephrine.

was suffering from tension

condition

where air

has

lining of

the chest

cavity.

vacated the air.

lodged between

expert

induced

which

testimony.

allergists

x-ray

pneumothorax, a

the lungs

The emergency room

John's

parents

diversity-based wrongful death action.

during

An

and the

physician

John was pronounced dead at 10:50 p.m.

Subsequently,

ensued,

At the hospital,

both

parties

The plaintiffs

commenced

this

A thirteen-day

trial

presented

presented

conflicting

two pediatric

who testified that John suffered from an allergy-

anaphylactic shock

combination with asthma

reaction,

which

-- led to his death.

-- perhaps

in

These experts

testified that epinephrine

airways, and that had it

reverses the shock and

opens the

been administered in the

apartment

-55

or

when Nurse

Gorman arrived,

it

shock and permitted John to survive.

would have

reversed the

The plaintiffs also

chief

of

pediatric

Hospital, who

specifically

present

standards

pulmonology

agreed that

The court

John

with

standards

Massachusetts

suffered from

did not

expert testimony

and

at

John

testifying that

pneumothorax.

presented another expert,

had

not

regard

regarding

anaphylaxis,

from

plaintiffs to

to national

the

General

suffered

permit the

the

nursing

development

of

individualized emergency care.

The

school's

pulmonologist, who

that he could

experts included

testified that

that epinephrine would

board-certified

indicate

pneumothorax and that

This expert also testified

not have reversed

emergency room

board-certified

John's symptoms

have suffered a tension

this was the cause of his death.

doctor

the condition.

also testified

that

Nurse Gorman, confronted with

the standards for emergency

a case of cardiac arrest,

care by attempting to

airways in

order to perform CPR.

certified

pediatrician, testified

suffering from

Gorman

arrived

epinephrine

John

anaphylactic shock,

was at

Additionally,

on

the

scene,

would not have

that point

Dr.

Koterbay

even

by the

the

if

-66

John

that

was

Nurse

administration

of

inasmuch as

from vascular

testified

a board-

time that

changed the outcome

suffering

clear the

A third expert,

that

met

collapse.

Nurse

Gorman

followed his

orders and acted appropriately

when confronted

with a situation constituting cardiac arrest.

Following

the

jury

plaintiff filed a motion for

P.

59.

order.

The district

court

verdict

for

the

school,

new trial pursuant Fed. R. Civ.

denied this

This appeal ensued.

II.
II.
___

DISCUSSION
DISCUSSION
__________

motion by

margin

Although not

the

altogether clear

plaintiffs appear

committed error

narrow

-- and

trial.

argue

that

by instructing the

thus, erroneous

Island tort law.

court abused

to

--

from their

the

briefs,

district

jury to apply

court

an overly

interpretation of

Rhode

The plaintiffs also argue that the district

its discretion when

it refused to grant

a new

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

drug

that

pursuant
order

may
through

of

Consequently,
negligent
epinephrine

for
in

law, epinephrine is a
be

administered

the

prescription

licensed

nurse cannot
failing
the

only

to

or

physician.
be

found

administer

absence of

such

prescription or order
was responsible

unless she somehow

for the

absence of

the

prescription or order.

The plaintiffs argue that the language of the Rhode

Island

statute

authorized
agree.

Gorman

Rhode

governing
to

nursing

administer epinephrine.

Island law is clear

controlled substances and

as to who

impliedly
We

do not

may administer

Gorman, as a registered

-77

A. Jury Instructions
_____________________

standards

nurse and

We first set out the

legal framework.

An error in

jury instructions warrants

reversal of a judgment

the error is determined to

have been prejudicial, based on a

review of

the

record

[in

its entirety].'"

"`only if

Kelliher
________

General Transp. Servs., Inc., 29

______________________________

F.3d 750,

1994) (quoting Davet v. Maccarone,

_____
_________

973 F.2d 22, 26 (1st Cir.

1992)).

Thus,

the plaintiffs

charge

was erroneous

Connors
_______

v. McNulty,
_______

examine

jury

adequately

confuse

and that

697 F.2d

instructions

explained the

or mislead

must

the

the

(1st Cir.

demonstrate

error was

18, 21

to

752

v.

that the

prejudicial.

(1st Cir. 1983).

determine

law

or

whether

jury

on

the

whether

they

they

tended

controlling

We

to

issues.

Kelliher, 29 F.3d at 752.

________

An additional consideration

Because

plaintiffs

analysis

of applicable law is circumscribed.

select "federal

forum may

invoke

frames our discussion.

forum in

not expect

into unprecedented

F.2d 1244, 1247

diversity

preference to

the federal court

configurations."

jurisdiction,

our

Plaintiffs who

an available

to steer

state

state law

Martel v. Stafford, 992

______
________

(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

Gen. L.

21-28-3.20 & 21-23-1.02(29).

so authorized.

R.I.

-88

without providing

of

relief

that

a "well-plotted roadmap showing

the

state's

highest

court

an avenue

would

likely

follow").

The plaintiffs

district

have failed to

court's instructions

establish that

were erroneous.

As to

the

the

school's liability, the district

court instructed the

jury,

in relevant part, as follows:

school is

reasonably

required to
prudent

school would

safeguarding the health

providing
when

emergency

required

appropriate
That

does

guarantee anyone's
mean that

for

if necessary.

that

school is

guaranteeing the

its students.

a school

in

to them

arranging
care

mean

responsible for
of

assistance

medical

do

of its students,

and

not

do whatever

health

Obviously no

one can

health.

does it

Nor

is expected to

have

the knowledge of a physician or to assume

the role of a

physician in diagnosing or

treating its students.

that a

school must

What it means

act as

is

a reasonable

school in responding to medical needs

of

the students.

The plaintiffs objected to this instruction

grounds

that

it understated

the

nature and

scope

on the

of the

defendant's liability with respect to the provision of health

care

for its

conceding

students

that there

establishing

the scope

plaintiffs advance two

than

that reflected in

the effect of

at

the school.

are no

Rhode

of the

On appeal,

Island cases

duty owed

by a

arguments supporting

both the plaintiffs' proffered

-99

precisely

school, the

a duty

the court's instructions.

while

broader

Notably,

theories would

be to hold the school liable for the acts or omissions of Dr.

Koterbay.3

First,

interpret

Rhode

nondelegable

duty

the

Island

plaintiffs

argue

law

hold

to provide

to

that

the

reasonable

we

should

school

health care,

to

the

scope of which includes having individualized standing orders

in

place in the

been in place for

event of an

emergency.

such an order

John, presumably it would have

Nurse Gorman to administer epinephrine

event of an

Had

allergic reaction.

authorized

subcutaneously in the

Importantly,

the plaintiffs

essentially concede that the school discharged duties created

by Rhode Island's applicable laws and regulations.

Thus, the

thrust

of

their

required to

argument

do more

under state law."

is that

the

than the "bare

school

should

minimum required

be

of it

Although the plaintiffs offer an extended

policy-based discussion as to why a boarding school should be

held

to a higher duty, they

supporting

nothing

their

argument.

suggesting that such

under Rhode Island law.

do not cite any legal authority

Our

own

search

a broadly defined

has revealed

duty exists

On that basis, we detect no error in

the court's description of the duty owed by the school.

____________________

3.

The

sole

defendant

in

Importantly,

the district court

who

named as a

was not

agent.

Accordingly,

this

suit

is

found that Dr.

defendant --

was not

the

school.

Koterbay -the school's

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."

-1010

Second,

the

plaintiffs

instructions should have

argue

that

reflected the holding of

the

jury

Rodrigues
_________

v. Miriam Hosp., 623 A.2d 456 (R.I. 1993), in which the Rhode
____________

Island

Supreme Court

vicariously

liable

held

for

that a

doctor

hospital

acting

could be

under

held

apparent

authority.

Beyond

noting that

the

language of

Rodrigues
_________

itself appears to be limited to the hospital context, see id.

___ ___

at 462, we

Rhode

do not speculate as to what

Island

principles.

Supreme

Even

Court

assuming

might

that,

other situations the

apply

like

the

that

case's

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

(2d) Agency

We

arguments,

authority.

Cf. id.
___ ___

(quoting Restatement

267).4

have reviewed

and we

detect no

carefully the

error in the

plaintiffs' other

district court's

jury instructions.

____________________

4.

We also disagree

school

should

be

with the plaintiffs' argument

held directly

negligence theory.
on

this theory,

liable

under

The plaintiffs did not

and

we

detect nothing

that the

a corporate

present evidence
in

the record

to

suggest that the school "fail[ed] to exercise reasonable care

in selecting [Dr.
have

known

was

thereby exposing
harm."

Koterbay] who the [school] knew

unfit or

incompetent

third parties

to an

for

or should

the employment,

unreasonable risk

Rodrigues, 623 A.2d at 463 (quotation omitted).

_________

-1111

of

B. Motion for New Trial

________________________

A district court may set aside a jury's verdict and

order a new trial only

the

weight

of the

if the verdict is so clearly

evidence

miscarriage of justice.

473, 477 (1st Cir. 1994).

as

to

amount to

See, e.g., Lama v.

___ ____ ____

against

manifest

Borras, 16 F.3d
______

A trial judge's refusal to disturb

a jury verdict is reversed only for abuse of discretion.

We conclude that

its discretion.

the district court did

Although the

Id.
___

not abuse

facts in this case are tragic,

the

legal principles are

our discussion

presented

above suggests, the

them to

carefully, and it

in

detail

reasonable

relatively straightforward and, as

here.

the jury.

We

district court

have reviewed

would serve no purpose

Directly

factfinder

stated,

could

have

we

properly

the record

to recapitulate it

conclude

determined

that

that

the

defendant was not liable, and that such a determination would

not constitute a miscarriage of justice.

a conclusion that the defendant

it owed

to John.

The record supports

did not breach any duty that

Accordingly, the district court

was well

within its discretion in denying the plaintiffs' motion.

III.
III.
____

CONCLUSION
CONCLUSION
__________

For

the

foregoing reasons,

district court is affirmed.

affirmed.
________

-1212

the

decision

of the