Petition — Shelton v. Carlton

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO.

SUPREME COURT OF THE UNITED STATES na

OCTOBER TERM, 1963 ig

ses a

DR. HERBERT M. SHELTON, ET AL, «

vs. .

JOAN F. CARLTON, ET AL, ‘s

Respondents mx

ses ’

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

sts:

TO THE HONORABLE SUPREME COURT OF THE UNITED

STATES: -

Dr. Herbert M. Shelton and Dr. Viwian V. Vetrano pray that a writ

of certiorari issue to review the Judgment of the United States Court

of Appeals for the Fifth Circuit 722 F.2d 203 filed in the above-entitled

case on January 3, 1984. -

‘

a

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ii

QUESTIONS PRESENTED

1. Did the Court of Appeals err in apparently holding that a person

is not entitled to choose a course of treatment not sanctioned by or-

2. Did the Court of Appeals err in apparently holding that practi-

tioners are not entitled to engage in a course of treatment not sanction-

ed by orthodox medical opinion?

3. Did the Court of Appeals err in apparently holding that Dr. Vetrano

recommended an extended fast for the treatment of decedent’s ulcerative

colitis?

4. Did the Court of Appeals err in effectively holding that the defen-

dants should be held to the standard of care of medical practitioners?

5. Did the Court of Appeals err in apparently holding that the evidence

is sufficient to support the verdict and judgment of negligence, both

ordinary and gross?

6. Did the Court of Appeals err in apparently holding that the Federal

Rules of Evidence permit the admission of unrelated prior accidents

in a negligence case?

.

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PARTIES BEFORE THE FIFTH CIRCUIT

The parties to the proceeding in the Fifth Circuit were the following:

Joan F. Cariton, individually and as representative of the Estate

iam R. Carlton, Deceased and as next friend of Roberi

Carlton, Melissa Carlton, David Carlton and Lynn Carlton

Dr. Vivian V. Vetrano

Dr. Herbert M. Shelton

of

iv

TABLE OF CONTENTS

Page

QUESTIONS: PRESENTED.............ccccccccecceucceee ii

PARTIES BEFORE THE FIFTH CIRCUIT ................. iii

TABLE OF AUTHORITIES

Cases Page

Allen v. Voje 10

14 Wis. 1 89 N.W. 924 (1902)

Atlas Chemical Industries, Inc. v. B

Anderson, 524 S.W. 2d 681 (Tex. 1975) 4

Burk Royalty Co. v. Walls B, ¥ :

616 SW. 2d 911 (Tex 1981) a

Dallas Ry. & Terminal Co. v. Industries 16 :

604 SW. 2d 341 (Tex. Civ. App—Texarkana,

1980, no writ) s

Ethicon, Inc. v. Parten = 2

520 SW. 2d 527 (Tex. Civ. App—Houston

(I4th Dist. 1975, no writ)

Garcia v. Aetna Casualty & Surety Co. 17, 18

657 F. 2d 652 (Sth Cir 1981)

Green v. Evans 16

362 S.W. 2d 377 (Tex. Civ. App-—Dallas

1962, no writ)

Hood v. Phillips ll

554 SW. 2d 160 (Tex. 1977)

Jackson v. Burnham i)

s - 20 Colo. 532 39 P. 577 (1895)

__--275 F. Supp. 897 (D. Ariz. 1967) ue

vi

Page

Levermann v. Cartall 12

393 S.W. 2d 931 (Tex. Civ. App—

San Antonio, 1965, ref. n.r.c.)

McHugh v. Audet 10

72 F. Supp. 394 (M.D. Pa. 1974)

Missouri K & T Ry. Co. v. Johnson 16 ”

485 SW. 568 (Tex. 1898)

Missouri Pacific Ry. v. Shuford B d

10 S.W. 408 (Tex. 1838)

Nicodeme v. Bailey 2 4

243 SW. 2d 397 (Tex. Civ. App--El a

Paso, 1951, ref. n.r.c.) :

Ramos v. Liberty Mutual Insurance Co. 18 |

615 F. 2d 334 ’

Reynolds & Huff v. White 16 i

378 SW. 2d 923 (Tex. Civ. App-—Tyler, a

1964, no writ) ;

Ross v. Sher 2 a

483 SW. 2d 297 (Tex. Civ. App-—Houston ‘ai

Mth Dist. 1972, ref. n.r.c. ah,

Sheffield Division, Armco Steel Corp. v. Jones, 6 Ce

PF 376 SW. 2d 825 (Tex. 1964) a,

; Smith v. State Farm Fire and Casualty Co. 18

: 633 F. 2d 401 (Sth Cir 1980)

Snyder v. St. Louis Southwestern Ry. Co. | Daa

a 7

‘228 Mo. App. 626 72 SW. 2d 504 (1934) es

"4 a

vii

Statutes Page

28 U.S.C. $1332(a) 1,7

28 U.S.C. §1254(1) 1

Rule 404(b), Federal Rules of Evidence 16, 17, 18

Rule 403, Federal Rules of Evidence 16, 18

OPINIONS BELOW

The District Court Judgment is included herein as Appendix A-1 in-

fra. The Fifth Circuit Opinion is included herein as Appendix B, in-

fra, and is reported at 722 F 2d 203.

JURISDICTION

The Judgment of the Fifth Circuit was filed on January 3, 1984. The

jurisdiction of this Court is invoked under 28 USC § 1254 (1). The basis

of jurisdiction in the District Court was 28 USC §1332(a).

FEDERAL RULES INVOLVED:

Rule 403, Federal Rules of Evidence:

Although relevant, evidence may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice, confu-

sion of the issues, or misleading the jury, or by considerations of un-

diie delay, waste of time, or needless presentation of cumulative

evidence.

Rule 404(b), Federal Rules of Evidence:

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs,

or acts is not admissible to prove the character of a person in order

to show that he acted in conformity therewith. It may, however, be ad-

missible for other purposes, such as proof of motive, opportunity, in-

tent, preparation, plan, knowledge, identity, or absence of mistake or

accident.

PRELIMIN/ RY STATEMENT

This is an action for wrongful death. This case presents novel and

important questions concerning the freedom of individuals to choose

health care procedures which are not recognized by the ‘medical

establisicnent and the liability of those persons and institutions who

2

p’ ovide such alternative procedures to individuals who choose them

contrary to the advice of physicians.

The decedeni in this case chose to undergo alternative treatment in

spite of medical advice to the contrary.

The fundamental issue presented in this case is that of effective

freedom of choice, the freedom to probe beyond the assumptions sanc-

tified by time and the acceptance of mainstream medical opinion.

It must be noted at the threshold that this litigation does not involve

such questions as whether or not parents should be permitted to sub-

ject their minor children to unorthodox beliefs and practices, such as

refusal of blood transfusions. The decedent in this case was an in-

telligent, educated adult, who made his decision based upon indepen-

STATEMENT

Plaintiff was the wife of the decedent, William Carlton (TR 1-22).

Decedent was forty-nine years old at the time of his death (TR 1-97).

He was a graduate of the Wharton School of Finance, and at the time

of his death was comptroller of the eastern sales region of the Hewlett

Packard Corporation (TR 1-24, 26).

The decedent had suffered from ulcerative colitis for about ten years

prior to his death (TR 1-29, 31). The condition grew progressively worse

(TR 1-32).

In April of 1978 the decedent and his wife consulted a medical doc-

tor in the State of California (TR 1-33). The physician strongly advis-

ed a complete colostomy and iliostomy, which involves the complete

removal of the large intestine of the lower bowel, an incision in the

stomach area, and the attachment of an exterior bag to collect tic ex-

cretaat (sic) (TR 1-33, 34).

3

Plaintiff and decedent were reluctant to submit to such a radical treat-

ment (TR 1-34). Because of such reluctance, and because of the pro-

gressive nature of the disease and the danger of cancer if the disease

progressed unchecked, they began to explore alternative treatment op-

tions (TR 1-35).

Friends at work introduced decedent to the concept of natural health

hygiene, rest, natural foods, and fasting. The decedent, always a

voracious reader, read some ten to twelve books on the subject (TR

1-35-38).

The decedent telephoned the Sheiton Health School in San Antonio,

Texas, for further information (TR 1-40).

After they concluded their research, decedent and his wife decided

that he should enter the Shelton Health School for a fast (TR 1-95,

96). They well knew that the Shelton Health School was not operated

by medical doctors and was not a hospital. They knew that drugs,

ee a ee eee

School (TR 1-81).

They discussed this proposed course of action with their medical

physician in California. The doctor advised against a fast, stating that

such a treatment could result in chemical imbalances in the body. In

the face of this advice, the decedent and his wife persisted in their deci-

sion to place the decedent in the Health Sckool for a fasting treatment

(TR 1-96). Decedent was a determined individual who made his own

decisions, regardless of the doctors (TR 1-100, 3-722).

The decedent checked into the Health School and began his fast on

or about September 11 or 12, 1978 (TR 3-794, 4-902). He was visited

every day by cither Dr. Vetrano or Dr. Chapmen (TR 4-903). Upon

admission Dr. Vetrano took the decedent's histor ,, and over the course

) of his visit she performed a physical exarnination of the decedent (TR

4-905-913).

A Mr. Emmett Freez shared a room with the decedent and testified

that the decedent appeared to be well and enthusiastic about the fast

;

s

,

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at least until Mr. Freez left the Health School on or about October

1, 1978 (TR 3, 716-728). Dr. Vetrano confirmed that decedent did not

appear to be having any particular problems (TR 4-913).

On Septembér 28 the decedent had a fainting spell. Dr. Vetrano at-

tempted to persuade decedent to break the fast, but the decedent refused

(TR 3-797, 798). Mr. Freez confirmed this advice and refusal. The dece-

dent stated to Mr. Freez:

“T am sure this is my best chance . . . I am determined

to do or die.”

(Emphasis supplied.)

(TR 3-724)

The decedent was a determined person and was disgruntled that Dr.

Vetrano suggested a shorter fast (TR 1-100, TR 3-722, 723). He stated

to Mr. Freez:

“IT am determined to see this thing through . . . This is my

best bet in my best judgment . . . I am going to do or die.”

(TR 3-741)

On or about October 7th the decedent complained of a little pain

in his chest. Dr. Vetrano broke his fast and gave him nourishment the

following day (TR 3-796, 799).

On October 10, 1978 the decedent’s pain appeared to be getting worse.

Dr. Vetrano called Dr. Fernandez, a medical doctor to whom she was

referred by a surgeon of her acquaintance, and arranged for the dece-

dent to be admitted to a hospital (TR 3-802).

Dr. Vetrano brought the decedent to the hospital at 2:44 p.m. and. ae:

stayed with him until the doctors showed up around 7:00 p.m. (TR

3-795, 801). The doctors stayed for about five minutes and left (TR

3-802). re ong rare ee Ve 7 eset

a ae TR 3-95).

5

Dr. Vetrano is and was at all material times a chiropractor licensed

by the State of Texas (TR 3-790). She holds a Bachelor of Science degree

from Trinity University in San Antonio and is an honors graduate of

the Texas Chiropractic College (TR 3-971). Over her seventeen years

of experience she has conducted supervised fasts for twelve thousand

to fifteen thousand people (TR 3-792).

The District Court, over objection, admitted evid ‘

prior, unrelated deaths connected to the Shelton Health School (TR

2-348, 369, 376, 382, 394, 398, 399, 400, 400-423).

Dr. Shelton was bedridden with Parkinson's diseuse at all material

times. He never had any contact with the decedent or his wife.,

The essence of this tragic story is that a seriouslly ill man, understan-

dably anxious to avoid major irreversible surgery, chose to pursue an

unorthodox mode of treatment. He was-an intelligent, educated man,

investigation. He consulted his own medical physician and persisted

in his decision in spite of his doctor's advice.

He chose the Shelton Health School with full knowledge that it was

not a medical facility operated by medical doctors, and that the care

did not include drugs, chemicals, chemical analysis, and equipment

ordinarily associated with hospitals and doctors.

Once he began his fast, he persisted in the fast in spite of Dr. Vetrano’s

entreaties to break his fast.

When his condition turned for the worse, Dr. Vetrano immediately

called in medical assistance, transported him to the hospital, and stayed

with him until the doctors arrived, some four hours later.

'The liability of Dr. Shelton, if any, is vicarious.

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6

The Opinion below clearly indicates that the Court of Appeals did

not correctly perceive the nature of this case. The Court incorrectly

states that the Shelton Health School is a “medical facility,’ and that

Dr. Vetrano recommended an extended fast for the treatment of Carlton's

condition. (Opinion P. 1330, 1331).

The record reflects that the Shelton Health School was not, and was

not represented to be a medical facility, and that Dr. Vetrano did not

recommend a course of treatment for ulcerative colitis.

The essence of the Opinion of the Court of Appeals appears to be

that the Defendants were negligent in prescribing fasting as a treat-

and failing to medically monitor the condition of the deceased.

The correct posture of the case is that Defendants did not prescribe

fasting as the proper treatment, and the deceased chose this treatment

based upon indepeadent investigation in the face of conventional medical

advice. He chose to enter a non-medical facility without testing and

monitoring equipment. He chose to do or die.

PROCEEDINGS BEFORE THE DISTRICT COURT

Trial was before a jury in the District Court, which entered a Judg-

ment based upon the verdict, which is included herein as Appendix A-1.

PROCEEDINGS BEFORE THE FIFTH CIRCUIT

This case was submitted on briefs and oral arguments before a three

judge panel, which entered Judgment in accordance with its Opinion

(Appendix B).

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REASONS FOR GRANTING THE WRIT

I.

The Court .of Appeals Has Rendered a Decision In Conflict with

Applicable State Law.

Il.

The Court of Appeals Has Rendered a Decision In Conflict With

The Federal Rules of Evidence.

Il.

The Court of Appeals Has Rendered a Decision Which Will Inhibit

Freedom of Choice, Research, and Exploration.

I. The Court of Appeals Has Rendered a Decision In Conflict

With Applicable State Law.

Petitioners are not unmindful of the gargantuan caseload of this Court

and its awesome responsibility to the Nation in cases of the gravest

national significance. Petitioners are further cognizant of the Court’s

increasing reluctance to grant certiorari to correct errors of the inferior

federal courts in matters of jocal law.

It will doubtlessly be argued by Respondent that this Court should

not accept this case because no substantial federal question is presented.

The crowded dockets of this Court and the Courts of Appeal perhaps

suggest a re-examination of the wisdom and necessity of j

in the federal courts based upon diversity of citizenship. Nonetheless,

as long as the diversity jurisdiction constitutes an integral part of the

of our federal system, a case and controversy arising under

28 USC $1332(a) should be of the same dignity before this Court as

one arising under the laws of the United States.

It is respectfully pointed out that the Petitioners before this Court,

Defendants below, did not choose the federal forum for this litigation.

Inasmuch as the Respondent, Plaintiff below, chose the federal forum,

she should not be heard to complain of thorough and effective

federal appellate review on the ground that the case may turn on a point

of state law.

The record will not support a judgment of negligence, either ordinary

or gross, under Texas law. It is conclusively established by the Plain-

tiff's testimony that the decision by the decedent to undergo a fast at

the Shelton Health School was based upon his independent research

and investigation. It is further conclusively established by her testimony

that he persisted in this course of conduct in the fact of the contrary

advice of his own physician. The Court is presented with a picture of

an intelligent, educated, mature businessman, determined to avoid

radical, irreversible surgery, which would be accompanied by unplea-

sant and annoying side effects for the remainder of his life.

He had been suffering from this condition for about ten years. The

disease was getting progressively worse. His choices were:

1. Continue with drug treatment that was obviously not

working and risk cancer; or,

2. undergo radical surgery; or,

3. explore alternative theories.

On the basis of independent research the decedent made a reasoned

choice to undergo a fast at the Shelton Health School in San Antonio.

Plaintiff's testimony conclusively establishes that decedent knew ex-

actly what kind of facility he was entering. He knew he was not enter-

ing a hospital operated by doctors with drugs and medical equipment

readily available.

; The Health School never claimed to be a medical facility:

“A Health School is not a hospital; it is not a clinic; it is

not a sanatorium; it is not an institution dedicated to the

cure of disease. It administers no drugs; it employees no

treatments; it relies on no antivital factors for the restora-

tion of health.”

(Plaintiff's Exhibit No. 2).

9

Thus, the decedent and his wife well knew that he was not checking

After he entered the school and commenced his fast, he persisted

in the fast over the objections of Dr. Vetrano. From the transcript:

“Q Now, after the 28th, did you again advise him to break the fast?

“A. Yes. I continued advising him. I told him it was best to break

his fast, he should break his fast. I kept trying to get him

to break his fast. He didn’t want to.

“Q. Did he eventually break the fast?

“A. Well, on October 8 is when I sent him up some watermelon

and he said he had pain in his chest.”

(TR 3-799).

The testimony that the decedent persisted in his fast over the objec-

tion of Dr. Vetrano is corroborated bythe disinterested witness, Freez:

“Q. But Mr. Carlton did tell you that he was not going to break

the fast against doctor’s orders?

“A. I don’t know that he used those words, but he was—well, he

sort of did, too, yes. He came in the last time, I heard him

speak of it, he groused about it once or twice you know. I

thought, well, you know, I sort of calmed him down but this

one time he seemed a little bit put out because Dr. Vetrano

wanted to break his fast and he says, you know, he says, “This

is my best bet, in my judgment,’ and he said, ‘I am going

to do or die.’ ”

(TR 3-741).

10

Thus, it is established, corroborated, and uncontested that the dece-

dent persisted in his fast in spite of the expressed and repeated ad-

monishments of Dr. Vetrano.

It is further established and uncontroverted that the decedent never

It was Dr. Vetrano, and only Dr. Vetrano, who telephoned the doc-

tors and brought the man to the hospital, some four hours before the

doctors saw fit to arrive.

What is the act or omission on the part of Dr. Vetrano which con-

stitutes negligence? The Court’s charge and the jury verdict are not

particularly illuminating on this issue., We are told only that the

negligence of Dr. Vetrano in some way caused the death of Mr. Carlton.

Thus, we must look to the evidence to attempt to discern any act or

omission of negligence.

The first possibility is that pursuing this course—i.e-—fasting, would

constitute negligence. In some jurisdictions any variance from the ac-

cepted mode of treatment upheld by a consensus of opinon among the

members of the medical profession renders the physician liable. Jackson

v. Burnham, 20 Colo. 532, 39 P. 577 (1895); Allen v. Voje, 114 Wis.

1, 89 NW. 924 (1902).

In other jurisdictions, the mode of treatment must have the support

of a respectable minority or a considerable number of physicians. Leech

v. Bralliar, 275 F.Supp. 897 (D.Ariz. 1967); McHugh v. Audet, 72

F.Supp. 394 (M.D.Pa. 1947).

In other jurisdictions there must be at least a reasonable disagree-

ment in the medical community. Snyder v. St. Louis Southwestern Ry.

Co., 228 Mo.App. 626, 72 SW.2d 504 (1934).

‘Appendix A-2.

iy Dg a Si edge

ll

It is clear from the testimony of the medical doctors presented by

Plaintiff that they share the almost universal disdain in which alter-

native health care practitioners are held by the medical community.

They indicated that fasting is an improper procedure.

The Supreme Court of Texas considered the question of acceptance

of a mode of treatment by the medical establishment in Hood v. Phillips,

554 S.W.2d 160 (Tex. 1977). The Court, per Justice Sam D. Johnson,

carefully reviewed the authorities embracing the “any variance,”

“respectable minority,” and “reasonable division’’ tests discussed above,

and rejected all of them. Thus, in Texas, the use of a mode of treat-

ment which is not accepted by the medical community is not negligence

in and of itself.

Moreover, the defendants are not medicai doctors and cannot be held

to the standard of medical doctors.

Finally, the Plaintiff well knew he was opting for a nonmedical course,

and he made a reasoned choice.

Thus, the use of fasting in and of itself cannot be the basis of

negligence. The question then becomes whether or not there was

negligence in Dr. Vetrano’s implementation of the technique.

Again, what are the acts or omissions? She took a history, perform-

ed a physical examination, saw the man on a regular basis, and regularly

took his pulse, blood pressure, and temperature (TR 4-903, 905-913,

916, 921, 3-771, 3-795, 3-841).

There is one thing that Plaintiff's medical witnesses suggested should

have been done which Dr. Vetrano did not do, that is, blood testing

and chemical analysis. But again, Dr. Vetrano is not a medical doctor

and cannot be held to the standard of a medical doctor. Moreover, when

the decedent chose the Health School over a medical facility with doctors

and laboratories, he knew he was opting for natural hygiene over medical

analysis and treatment. Thus, the failure to perform chemical blood

analysis cannot be the basis for negligence in this case.

~— r=—9 — _ ——*

12

The Defendants are not medical doctors and cannot be held to the

standards of medical doctors Nicodeme v. Bailey, 243 SW. 2d 397 (Tex.

Civ. App-—E] Paso, 1951, ref. n.r.e.) A Plaintiff has no cause of action

for malpractice, either in diagnosis or recognized treatment, unless he

proves by a practitioner of the same school of practice as the Defen-

dant that the diagnosis or treatment complained of was such as to con-

stitute negligence and that it was a proximate cause of the Plaintiff's

injuries. Levermann vy. Cartall, 393 SW. 2d 931 (Tex. Civ. App-—San

Antonio, 1965, Ref. n.r.e.); Ethicon, Inc. v. Parten, 520 SW. 2d 527

(Tex. Civ. App-—Houston (Mth Dist.) 1975, no writ); Ross v. Sher, 483

S.W. 2d 297 (Tex. Civ. App-Houston (4th Dist.) 1972, Ref. n.r.c.)

Applying these principles to the case at bar we sce that the only prac-

titioner of the same school as that of the Defendants presented by the

Plaintiff was Dr. Downing (TR 291-318). A careful reading of Dr. Down-

ing’s testimony reveals that at no time did he point to any act or omis-

sion of Dr. Vetrano as negligence. The only time Dr. Downing expressed

an opinion indicating that conduct would be beneath the standard 7is

in his exchange with the Court on page 317 of Volume 2 of the transcript.

In response to a direct question from the Court, Dr. Downing responds

that it would be beneath the standard to recommend a diet of distilled

water for the treatment of ulcerative colitis.

It must be here remembered that Dr. Vetrano did not recommend

the diet for the treatment of ulcerative colitis. Mr. Carlton did not walk

in off the street and ask for a diagnosis and recommended treatment.

His ailment has been diagnosed and treated in California prior to any

involvement with Dr. Vetrano. He decided upon the fasting diet based

upon his independent research in consultation with his medical doctor

prior to meeting Dr. Vetrano. Thus, there is no competent evidence

that Dr. Vetrano was guilty of any act or omission constituting

negligence.

.

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13

Gross Negligence

In Texas, gross negligence, to be the ground for exemplary damages,

should be that entire want of care which would raise the belief that

the act or omission complained of was the result of a conscious indif-

ference to the right or welfare of the person or persons to be affected

by it. Missouri Pacific Ry. v. Shuford, 10 SW. 408 (Tex. 1888); Arias

Chemical Industries, Inc. v. Anderson, 524 SW. 2d 681 (Tex. 1975);

Burk Royalty Co. v. Walls, 616 S.W. 2d 911 (Tex. 1981).

Thus, the record must reflect such an entire want of care as to in-

dicate conscious indifference to safety to support findings of gross

negligence. From the Opinon in Burk Royalty Co. v. Walls:

“The essence of gross negligence is not the neglect which

must, of course, exist. What lifts ordinary negligence into

gross negligence is the mental attitude of the defendant; that

is what justifies the penal nature of the imposition of ex-

emplary damages. The Plaintiff must show that the Defen-

dant was consciously, i.e., knowingly, indifferent to his

rights, welfare and safety. In other words, the Plaintiff must

show that the Defendant knew about the peril, but his acts

or omissions demonstrated that he did not care.”

(At P. 922, Emphasis Supplied).

Thus, there must be such an entire want to care as to indicete that

the Defendant did not care!

The question then becomes whether or not this record fairly sup-

ports the proposition that Dr. Vetrano did not care what happened to

this man. It must be remembered that she:

(1) visited and examined him on a regular basis; and

(2) attempted to persuade him to break his fast; and

4

(3) called in the medical doctors; and

(4) transported him to the hospital; and

(5) stayed with him some four hours until the medical doctors arrivod.

No fair reading of this Transcript will support the proposition that

Dr. Vetrano did not care what happened to this unfortunate man.

But, the Appellee will no doubt respond, “any care” or “some care”

is no longer sufficient to refute gross negligence, as the Supreme Court

in Burk Royalty Co. v. Walls, supra, specifically disapproved and over-

ruled Sheffield Division, Armco Steel Corp. v. Jones, 376 SW. 2d 825

(Tex. 1965) and it’s progeny.

The problem with the “some care”, or “any care” analysis is suc-

cinctly stated in the majority Opinion at P. 921. The Court offers the

example that gross negligence would be defeated in any automobile

case if the driver had both hands on the wheel under the Sheffield Rule.

Thus, the reviewing Court must look to all of the surrounding facts,

circumstances, and conditions, not just individual elements or facts.

Applying the teaching of Burk Royalty Co. v. Walls to the instant

case yields the following conclusion:

Any care, no matter how slight, on the part of Dr. Vetrano will not

rebut the jary finding of gross negligence. But all of surrounding facts,

circumstances, and conditions disclosed by this record indicate a course

of conduct on the part of Dr. Vetrano that is totally inconsistent with

the proposition that she did not care what happened to Mr. Carlton.

As is succinctly stated in the concurring Opinion of Chief Justice

Greenhill in Burk, supra:

“The bottom line, as | read the cases, 1s the state of mind

of the Defendant. . .”

(At P. 926)

5 .

The bottom line of this issue in this case is that, regardless of the scien-

tific validity or invalidity of Dr. Vetrano’s theories and practices, her

every action indicated a comnitment to the care of her guests.

It is clear that the Court of Appeals has incorrectly perceived the

nature of this case. First, the Court incorrectly identifies the Shelton

Health School as a “medical facility”. (Opinion Pg. 1330). It is clear

from Plaintiffs’ Exhibit No. 2, supra, that it was not a medical facility,

. did not claim to be a medical facility, and in fact affirmatively stated

that it was not a medical facility.

Second, the Court declares:

“Dr. Vetrano recommended an extended fast for the treatment of

Carlton's condition, urged him to quit taking the medication prescrib-

ed for Carlton by his doctors, and enrolled Carlton in the Shelton Health

School's fasting program.”

As has been noted, Dr. Vetrano never recommended a fasting pro-

gram for the treatment of Cariton’s disease. Carlton made that deci-

sion in California, upon independent research and investigation, after

Thus the focus of the Fifth Circuit appears to be misplaced. It ap-

pears that the essential inquiry of concern to (he Court was:

Was it negligence to recommend an extended fast for the treatment

of decedent's ulcerative colitis?

Under the facts of this case Petitioners respectfully submit that the

appropriate inquiry should be:

Was it actionable negligence to aditit decedent to the fasting pro-

gram which he was determined to pu: we?

Inasmuch as decedent was fully informe! concerning ali aspects of

Som docmserapeatibetaasd teammate

cian, the answer to the appropriate inquiry 1:

16

Furthermore, Dr. Vetrano attemped to persuade Mr. Carlton to break

his fast. The Court of Appeals notes that:

“Furthermore while she testified that she attempted to have

the decedent break his fast, there was no record in her notes

of such advice.”

(Opinion Pg. 1332)

The Opinion totally ignores the clear, unequivocal testimony of the

disinterested witness, Freez, that Carlton related that Dr. Vetrano at-

tempted to break his fast, but that he was determined to do or dic.

Thus it is clear that the decision to embark upon the fast was that

of Mr. Carlton, against the advice of his medical physician. The deci-

sion to continue the fast was that of Mr. Carlton, against the advice

of Dr. Vetrano.

Il. The Court of Appeals Has Rendered A Decision In Conflict

With The Federal Rules of Evidence.

The District Court, over objection, admitted evidence concerning

prior, unrelated deaths connected to the Shelton Health School (TR

2-348, 369, 376, 382, 397, 398, 399, 400, 400-423).

Evidence of similar but unrelated acts or omissions on other occa-

sions is inadmissible on the issue of whether or not a party has been

negligent in doing, or not doing a particular thing. Rules 403, 404(b)

Federal Rules of Evidence. See also Missouri K & T Ry Co. v. Johnson,

485 S.W. 568 (Tex. 1989); Dallas Ry. & Terminal Co. v. industries,

604 S.W. 2d 341 (Tex. Civ. App-—Texarkana, 1980, no writ); Reynolds

& Huff v. White, 378 SW. 2d 923 (Tex. Civ. App—Tyler, 1964, no writ).

On page 382 of Volume 2 of the Transcript, the Court admits the

Health School in about fifteen years. Obviously this is highly prejudicial

and inflammatory. There is not even a scintilla of evidence that these (ws

eight deaths were connected to or related to the case at bar. See Green

v. Evans, 362 SW. 2d 377 (Tex. Civ. App-—Dallas, 1962, no writ).

a. ee 2 Was he. eee Le

17

The Court next permitted testiniony concerning the deaths of Ar-

mand John Gilbert, Keith V. Ellis, and Joy Michelle Bristo (TR 2-399).

The witness testified that all three died of “. . . their disease, starva-

tion, dehydration.” (TR 2-407). The witness is testifying from autop-

sy reports and tissue slides. (P. 405)

The witness also testified that all three came from the Shelton Health

School.

The obvious purpose of this tender is to persuade the jury that if

three people died from the same disease, and all three had been at the

Shelton Health School, it necessarily follows that the Health School

caused the death of all three, and Mr. Carlton as well.

The problem is that the Plaintiff has not demonstrated a degree of

substantial similarity of circumstances as to render such prior unrelated

condition of the three persons upon admission to the Health School,

the length of their stay or the course of treatment at the Health School.

The Plaintiff has merely selected three random deaths, over a five year

period where the cause of death is the same.

Nor are these prior deaths admissible under some theory of intent,

scheme, or design. It is not alleged that the death in the case at bar

was the result of an intentional act. This tender is offered purely and

simply to prove an act of negligence in 1978 by showing specific in-

cidents in 1973, 1974, and 1977).

The District Court’s theory of admissibility is to show knowledge,

intent, nature, and understanding pursuant to Rule 404(b), Federal Rules

of Evidence (TR 2-398).

The proper interpretation and application of Rule 404(b) is illustrated

by the Opinion of the Court in Garcia v. Aetna Casualty & Surety Co.,

657 F. 2d 652 (Sth Cir 1981). In Garcia, a suit on a fire insurance

one year before the fire another building leased by Plaintiff had burn-

ed. There was also evidence that the Plaintiff was in financial straits

oe

Jae

and that a relative of Piaintiff had set the recent fire. This Court reversed

the Judgment of the District Court, squarely holding that the prior fire

was inadmissible.

The Court was confronted with a similar question in Smith v. State

Farm Fire and Casualty Co., 633 F. 2d 401 (Sth Cir. 1980). In this

case there was not one, but five prior fires. The Court again held the

prior fires to be inadmissible.

It is clear that the deaths in the instant case, like the fires in Garcia

and Smith, supra, do not meet the standards of Rule 404(b) Federal

Rules of Evidence or the limitations of Rule 403, Federal Rules of

Evidence.

It is respectfully submitted that the reliance of the Court of Appeals

on Ramos v. Liberty Mutual Insurance Co. , 615 F. 2d 334 is misplac-

ed. The vital distinction is that Ramos and it’s predecessors are pro-

ducts liability cases, wherein the focus is om the: physical strengths,

weaknesses, and defects of products. Rule 404(b) Federal Rules of

Evidence is addressed to other acts to prove character to prove con-

duct in a specific instance. Thus, the focus of Rule 404(b) is conduct

of a person, not the physical properties of a product. Garcia v. Aetna

Casualty & Surely Co. and Smith v. State Farm Fire and Casualty Co. ,

supra, aiso involved conduct and excluded the extraneous acts.

III. The Court of Appeals Has Rendered A Decision Which Will

Inhibit Freedom of Choice, Research and Exploration

With deference and respect Petitioners suggest that the real basis of

the judgments of the Courts below may well be a disdain for the prac-

tice of “fasting” as a treatment for physical illness. It is certainly true

that such practices have not been largely accepted by the medical com-

munity or the population at large.

Although the Court holds that it is not holding the Petitioners to the

standards of medical doctors, a careful analysis of the Opinion sug-

gests that the Court is in reality comparing fasting practice with medical. —

care, and is plainly appalled at the perceived difference. For example, _

19

the Court describes the Shelton Health School as a “medical facility”

and is offended that the decedent's vital signs were not monitored and

recorded on a daily basis and blood or urine samples were never tested.

(Opinion Pgs. 1330, 1332)

As has been noted, the Court incorrectly faults Dr. Vetrano for recom-

mending a fast for the treatment of ulcerative colitis. (Opinion Pg. 1331)

without vitamins or food suppplements. (Opinion Pg. 1332)

It may be true that the theories and practices of the Petitioners have

no basis in biology, physics, psychology, parapsychology or any other

scientific discipline. Or, it may be that the intelligence of a future day

will perceive the vision of the present as myopic and the theories of

the Petitioners will be enshrined orthodoxy.

forum to debate such matters. In the case at bar a mature, educated,

intelligent person, chose to embark on an unaccepted and perhaps ex-

perimental form of treatment. He chose to risk his life, rather than

live with the available alternatives. Such was his right.

20

CONCLUSION

Because the resolution of the serious questions raised by the Courts

below is important to the proper functioning of the Federal Courts:

We respectfully submit that the Court should grant Petitioners’ prayer

for a Writ of Certiorari.

By:

Respectfully submitted,

THOMAS GOGGAN

416 Littlefield Building

Austin, Texas 78701

(512) 477-9412

21

CERTIFICATE OF SERVICE

This is to certify that a ture copy of the foregoing Petition For A Writ

of Certiorari To The United States Court of Appeals For the Fifth Circuit

was this 2nd day of April, 1984, forwarded to the following attorney

of record, Mr. Dennis Bujnoch, 1900 NBC Building, San Antonio,

Texas, 78205, by U.S. Mail, certified, return receipt requested.

THOMAS GOGGAN

APPENDIX A

JUDGMENT ie

VERDICT FORM A-2

ORDER OVERRULING A-3

MOTION FOR NEW TRIAL

EE

A-l

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

JOAN F. CARLTON, INDI-

VIDUALLY and as repre-

sentative of the Estate of

WILLIAM R. CARLTON,

Deceased, and as Next

Friend of ROBERT CARL-

TON, MELISSA CARLTON,

DAVID CARLTON and

LYNNE CARLTON, CIVIL ACTION NO.

SA-80-CA-454

60? COP GOO GOP G08 GOP GOP GOP GOP 60> GOP GO GOP LOD GO? GOP GOP 600 Goo

JUDGMENT

The above entitled and numbered cause came on regularly for trial

on September 8, 1982. Plaintiffs, JOAN F. CARLTON, Individual-

ly and as Representative of the Estate of WILLIAM R. CARLTON,

Deceased, and as Next Friend of ROBERT CARLTON, MELISSA

CARLTON, DAVID CARLTON and LYNNE CARLTON and

Defendants DR. HERBERT M. SHELTON, Individually and d/b/a

DR. SHELTON’S HEALTH SCHOOL and DR. VIVIAN V.

VETRANO appeared in person and by their attorneys. A jury of six

oa

A-l

persons and two alternates was duly accepted, impaneled and sworn

to try the action.

After hearing the evidence, arguments of counsel, and instructions

of the court, the special issues were submitted to the jury. On September

17, 1982, the jury returned a special verdict. On that basis, therefore,

the Court is of the opinion that, on the merits, jedgment should be

rendered in favor of the Plaintiffs.

IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED:

(1) That Plaintiffs have judgment jointly and severally against the

Defendants DR. HERBERT M. SHELTON and DR VIVIAN V.

VETRANO and recover damages in the following amounts and

in the following capacities:

(a) JOAN F. CARLTON the sum of EIGHT HUNDRED TWEN-

TY FIVE THOUSAND ($825,000.00) DOLLARS with interest

thereon at the rate of nine percent (9%) per annum from date of

rendition of judgment until paid;

(b) LYNN CARLTON the sum of TWELVE THOUSAND

($12,000.00) DOLLARS with interest thereon at the rate of nine

percent (9%) per annum from date of rendition of judgment until

paid;

(c) ROBERT CARLTON the sum of TWELVE THOUSAND

($12,000.00) DOLLARS with interest thereon at the rate of nine

percent (9%) per annum from date of rendition of judgment until

paid;

(d) Joan F. Carlton as Next Friend of DAVID CARLTON the sum

of TWELVE THOUSAND ($12,000.00) DOLLARS with interest

thereon at the rate of nine percent (9%) per annum from date of

rendition of judgment until paid;

(2) That all costs of this suit be taxed against the Defendants jointly

and severally.

FRED SHANNON

U.S. District Judge

>

A-2

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

JOAN F. CARLTON, et al §

Plaintiffs,

CIVIL ACTION NO.

DR HERBERT M. § SA-80-CA454

SHELTON, et al §

DEFENDANTS ;

§

§

VERDICT FORM

QUESTION NO. 1.

Do you find from a preponderance of the evidence that the

negligence of Defendant Vetrano, if any, proximately caused the death

of Mr. Carlton?

You are instructed that ‘‘negligence’’ is the failure to use reasonable

care. ‘*Reasonable care’’ is that degree of care which a reasonably

careful person would use under the same or similar circumstances.

Negligence may consist either in doing something that a reasonably 4

careful person would do under like circumstances. 1%

**Proximate cause’’ :s that cause which in a natural and continuance

sequence produces a result, which results would not have occur-

red but for the cause at issue. in order to be a proximate cause,

the result or some similar result must have been reasonably :

foreseeable to a reasonably prudent person under the same or similar

circumstances

Answer, ‘‘We do”’ or ‘‘We do not’’.

We, the Jury, answer ‘‘We do’’.

A-2

If you answer No. | ‘‘We do’’, then answer 1-A, otherwise do

not answer 1-A.

QUESTION NO. 1-A.

What sum of money, if any, if paid now in cash, do you find from

a preponderance of the evidence would fairly and reasonably com-

pensate each of the following Plaintiffs for their damages, if any,

which you find from a preponderance of the evidence resulted from

the conduct of Defendant Vetrano inquired about in Question No. 1?

Answer separately as to each Plaintiff in dollars and cents, if any.

(a) Joan F. Carlton;

You may consider the present value of care, maintenance, sup-

port, services, advice, counsel, and contributions of pecuniary value

that she would in reasonable probability have received from Mr.

Carlton during his lifetime had he lived.

You may also consider her loss of consortium, that is, her loss

of the affection, society, sexual relations, companionship and emo-

tional support of Mr. Carlton.

We the jury, answer 800,000.00

(b) Estate of William R. Carlton:

You may consider reasonable funeral and burial expenses which

would be suitable to his station in life.

You may also consider Mr. Carlton's conscious physical pain, if

any, and mental anguish, if any, suffered before his death.

We, the Jury, answer none.

(c) With regard to the children of Mr. Carlton, you may consider

the present value of care, maintenace, support, services, education,

advice, counsel, and contributions of pecuniary value that each child

would have received in reasonable probability from Mr. Carlton dur-

ing his lifetime had he lived. Answer separately as to each child.

Lynn Carlton 12,000.00

Robert Carlton 12,000.00

David Carlton 12,000.00

Melissa Carlton 12,000.00

If you have answered Question No. | ‘“We do’’, then answer the

following question; otherwise do not answer the following question.

%

QUESTION NO. 2

Do you find from a preponderance of the evidence that the con-

duct of Defendant Vetrano inquired about in Question No. | amounted

to gross negligence?

**Gross negligence’’ means a wanton or reckless disregard for the

welfare of others.

Answer ‘‘We do’’ or ‘‘We do not’’.

We, the Jury, answer: We do.

If you have answered Question No. 2 ‘‘We do’’, then answer the

following question; otherwise do not answer the following question.

QUESTION NO. 2-A

What sum of money do you find from a preponderance of the

evidence should be awarded to Plaintiffs against Defendant Vetrano

as exemplary damages for the death of Mr. Carlton?

**Exemplary damages’’ means an amount which you may in your

discretion award as an example to others or as a penalty or by way

of punishment in addition to any amount you may have awarded

as actual damages.

Answer in dollars and cents, if any.

We, the Jury, answer: 25,000.00

If you answered Question No. 1 ‘‘We do’’, then answer Question

No. 3, otherwise do not answer Question No. 3.

QUESTION NO. 3

Do you find from a preponderance of the evidence that Defendant

Vetrano was employed in a managerial capacity by Defendant Shelton

and was acting within the scope of such employment in the supervi-

sion of Mr. Carlton's fast?

A-2

Answer ‘‘We do”’ or ‘We do not.”’

We, the Jury, answer: We do.

DATE FOREPERSON

}

A-3

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

JOAN F. CARLTON, In- §

dividually and as Represen- §

tative of the Estate of §

WILLIAM R. CARLTON, §

Deceased, and as Next §

Friend of ROBERT §

CARLTON, MELISSA §

CARLTON, DAVID § CIVIL ACTION’ NO.

CARLTON and LYNNE § SA-80-CA-454

CARLTON, §

§

Plaintiffs §

§

VS. §

§

§

§

§

DR. HERBERT M.

SHELTON, Individually

and d’b/a DR. SHELTON’S

HEALTH SCHOOL and

DR. VIVIAN V. VETRANO

ORDER

On the 26 day of October, 1982, came on for consideration the

Defendants’ DR HERBERT M. SHELTON’S Motion for New Trial

and DR. VIVIAN V. VETRANO’S Motion for New Trial and the

Court having read the pleadings is of the opinion that both motions

should be in all things overruled.

It is THEREFORE, ORDERED, AJUDGED AND DECREED

that the Motion for New Trial filed by Defendant DR. HERBERT

M. SHELTON and the Motion for New Trial filed by DR. VIVIAN

A-3

V. VETRANO are both hereby in all things OVERRULED and that

the Judgment of this Court entered on September 30, 1982 is in all

things FINAL.

SIGNED and ENTERED on the 26 day of October, 1982.

JUDGE PRESIDING

B(1)

Joan F. CARLTON, Individually and as representative of the estate

of William R. Cariton, deceased, and as next friend of Robert

Carlton, et al., Plaintiffs-Appellees,

Vv

Dr. Herbert M. SHELTON, Individually and d/b/a Dr. Shelton’s

Health School, and Dr. Virginia V. Vetrano, Defendants-

Appellants.

No. 82-1659

United States Court of Appeals,

Fifth Circuit.

Jan. 3, 1984.

Widow brought action against ‘fasting practitioner’ and facility

operated by such practitioner, arising from death of husband follow-

ing such practitioners care of husband during extended fast recom-

mended by such practitioner for treatment of husband’s ulcerative col-

itis. The United States District Court for the Western District of Texas,

Fred Shannon, J., entered judgment on jury verdict in favor of widow,

and defendants appealed. The Court of Appeals, Johnson, Circuit

Judge, held that: (1) evidence was sufficient to support jury’s findings

of negligence and gross negligence, and (2) district court did not err

by admitting evidence of similar, prior deaths at facility.

Affirmed.

1. Federal Courts 847

If state of proof is such that reasonable and impartial minds could

reach conclusion expressed in jury's verdict, Court of Appeals must

not disturb jury’s findings on appeal.

2. Physicians and Surgeons 18.80(2) :

Evidence in action against ‘‘fasting practitioner’’ arising from death

of plaintiff's decedent following such practitioner’s care of decedent

B(2)

during extended fast recommended by such practitioner for treatment

of decedent's ulcerative colitis was sufficient to support conclusion

of negligence and gross negligence on part of such practitioner.

3. Federal Courts 630

Federal district court’s definition of gross negligence as ‘‘a wanton

or reckless disregard of others’’ did not constitute plain error.

4. Physicians and Surgeons 18.70

Federal district court in action against ‘‘fasting practitioner’’ aris-

ing from death of plaintiff's decedent during extended fast recommend-

ed by such practitioner for treatment of decedent’s ulcerative colitis

did not improperly admit evidence that such practitioner previously

had supervised three people who died from malnutrition and dehydra-

tion while engaged in similar fasts, and admission of such evidence

did not constitute ‘‘unfair prejudice.”’

Appeals from the United States District Court for the Western District

of Texas.

Before POLITZ, JOHNSON and WILLIAMS, Circuit Judges.

JOHNSON, Circuit Judge:

Appellants Herbert M. Shelton and Vivian V’. Vetrano are chiroprac-

tors operating the Shelton Health School in San Antonio, Texas. The

Shelton Health School is a ‘medical facility’’ that, among other things,

encourages the practice of extended fasting for the treatment of

numerous illnesses. On September 11, 1978, forty-nine year old

William R. Carlton checked into the Shelton Health School in an at-

tempt to obtain relief from a condition known as ulcerative colitis,

a8 nagging disorder of the colon., Upon admittance, Carlton weighed

approximately 192 pounds and was, other than for ulcerative colitis,

in good physical condition. Twenty-nine days later, Carlton died of

' While not uncommon, ulcerative colitis is a condition the cause of which remains

unknown to modern medicine. See Record, vol. i, at 193. A condition manifested

by ulcers in the colon, ulcerative colitis appears more frequently in individuals in-

volved in high stress occupation. /d.

Ls ; , be > “ , 24 ai}

a - ~ * 7% £ 4 4 ac

a <= ae - =~ rh te ae, ee ty Far

(3)

severe dehydration, ma\nutrition, and aspiration pneumonitis., At the

time of death, Carlton weighed only 130 pounds.

Carlton’s widow, Joan F. Carlton, instituted this action on behalf

of herself and the Carltons’ four surviving children—Lynn, Robert,

Melissa, and David. The Carltons alleged that the appellants were both

negligent and grossly negligent in the supervision of the decedent’s

fast and that William Carlton died as a result of the appellants’

negligence and gross negligence. The case was tried to a jury, which

found the appellants both negligent and grossly negligent and award-

ed the Carltons compensatory and punitive damages totalling $873,000.

On appeal, appellants argue that there is insufficient evidence to sus-

tain the jury’s findings of negligence and gross negligence, and that

the district court erred by admitting evidence of prior, similar deaths

at the Shelton Health School. There is a plethora of evidence suppor-

ting the jury’s findings of negligence and gross negligence; the ap-

pellants failed to object to the district court’s definition of gross

negligence; and, the district court did not improperly admit the evidence

of previous deaths at the Shelton Health School. Hence, we affirm

the district court’s judgment.

I. Facts

In 1968, the decedent was diagnosed as having ulcerative colitis.

While not particularly painful, the condition became quite a nuisance,

often requiring the decedent to interrupt his active schedule as a finance

and systems manager for Hewlett-Packard as many as eighteen times

a day to relieve himself. Unfortunately, the decedent’s condition did

not respond to the repeated efforts of numerous physicians, and in

April of 1978, Cariton’s physicians, recommended a complete col-

ostomy, a process requiring surgical removal of the entire colon and

construction of an external opening allowing the collection of the pa-

tient’s excrement in a small plastic bag. Understandably hesitant to

submit hastily to such a drastic operation, Carlton and his wife began

to investigate alternative treatments.

2 Basically, aspiration pneumonitis occurs in individuals who have become too weak

to gag. As a result, these individuals inhale their o vn saliva and vomit and are in-

flicted with bronchial disorders resulting from the inhaled substances.

a

==

B(4)

Carlton was introduced to the concept of extended fasting by a friend

at work and decided to pursue this alternative form of treatment prior

to submitting to the surgical removal of his colon. Joan Carlton describ-

ed the decedent’s decision to pursue fasting at trial:

We had been introduced to the natural health hygiene way of

thinking and possibility of undertaking a fast to allow the body

to rest, cure itself, and we thought that was a viable alternative

to the operation because if it didn’t work, oe

ahead with the operation.

Record, vol. 1, at 35.

William Carlton read several books discussing the fasting treatment,

and, after reading Dr. Shelton’s book—Fasting Can Save Your Life—he

contacted the Shelton Health School and consulted with Dr. Vetrano.

Dr. Vetrano recommended an extended fast for the treatment of

Carliton’s condition, urged him to quit taking the medication prescribed

for Carlton by his doctors, and enrolled Carlton in the Shelton Health

School’s fasting program. Carlton complied with Dr. Vetrano’s ad-

vice, checked into the Shelton Health School weighing 192 pounds

and, as we have seen, twenty-nine days later and sixty pounds lighter,

William Carlton expired shortly after being admitted to Baptist

Memorial Hospital in San Antonio, Texas.

Il. Sufficiency of the Evidence

[1] Initially, appellants allege that there is insufficient evidence to

support the jury’s findings of negligence and gross negligence. In deter-

mining the sufficiency of the evidence, we apply well-settled standards

of appellate review. If the state of the proof is such that reasonable

and impartial minds could reach the conclusion expressed in the jury’s

verdict, we must not distrub the jury’s findings on appeal. See Fielder

v. Bosshard, 590 F.2d 105 (Sth Cir. 1979).

A. Negligence

The district court’s charge required the jury to determine whether

Dr. Vetrano exercised that degree of care which a ‘‘reasonably careful

person would [have] use{d] under the same or similar circumstances.”

Xs. ee

B(S)

The basic ‘‘reasonable person’’ standard was utilized since none of

the attorneys at trial could suggest an appropriate standard of care other

than the ‘‘reasonable person’’ standard. The degree of care required

of medical doctors certainly was not appropriate since neither Dr.

Vetrano nor Dr. Sheltor held themselves out as medical doctors.

Moreover, the degree of care required of chirporactors was not ap-

propriate since the appellants do not appear to have been engaged in

their particular treatment of Carlton at the Shelton Health School. Con-

fronted with this dilemma, counsel for the Carltons agreed to submit

the issue of the appellants’ negligence under the least stringent stan-

dard available—the reasonable person standard. See Record, vol. 1,

at 121. Hence, there is no need for this Court to delve into the quagmire

of determining the appropriate standard of care required of a ‘‘fasting

practitioner.’’ We need only determine whether reasonable and im-

partial minds could have concluded that Dr. Vetrano failed to exer-

cise that degree of care which a reasonably prudent person would have

used under the same or similar circumstances. We have little difficul-

ty concluding that the jury’s verdict is supported adequately by the

evidence presented at trail.

[2-4] The evidence presented to the jury demonstrated that Dr.

Vetrano literally allowed Carlton to starve to death. For twenty-nine N

days, the decedent was given nothing more than distilled water, usually

only two cups of water a day. No vitamins or food supplements were

administered and virtually no record of the decedent’s progress was a

kept by Dr. Vetrano. The decedent's vital signs were not monitored a

and recorded on a daily basis and blood or urine samples were never *

tested. Indeed the record reflects that Dr. Vetrano would not even see ae

the decedent for as long as four days at a time. Carlton was unable "

to leave his bed for almost four days before Dr. Vetrano ultimately 9

had him transported to Baptist Memorial Hospital and, upon arrival, it

the doctors noted that he could not sit up and became completely ex- a

hausted by simply moving his hands. Record, vol. 1, at 175, 197, 252, <

253, 261. The deteriorated state of Carlton's condition when Dr.

Vetrano finally sought competent medical assistance was described

by the Bexar County Medical Examiner at trial:

ae Oy : me ye.

Wy : err : - we Pe) ati gdry Cgame by

ore. ar 4 - x ~e Te Paria. 27 &. Fo“ rt oe Pyare See

B(6)

When he came in he was in a very serious condition, a critical

condition. His blood tests revealed that the constituents of his

blood were such that he was sort of, I guess you would say,

balanced on a knife endge . . . If he had died five minutes after

admission I would not have been surprised in the least.

Record, vol. 2, at 419. Suffice it to say that the jury was presented

with sufficient evidence to support the conclusion of negligence on

the part of Dr. Vetrano.

B. Gross Negligence

Appellants also contend that the jury was not presented with suffi-

cient evidence to conclude that Dr. Vetrano’s actions constituted gross

negligence, defined to the jury as ‘‘a wanton or reckless disregard of

others.’’? We find sufficient evidence to support the jury's finding.

As we shall find in the following section of this opinion, the jury pro-

perly was presented with evidence of three prior deaths at the Shelton

Health School, which resulted from virtually identical causes. The fact

that Dr. Vetrano previously had supervised three people who died from

malnutrition and dehydration while engaged in a distilled water fast

alone would support the jury’s conclusion that Dr. Vetrano displayed

a wanton and reckless disregard for the welfare of William Carlton.

Certainly, the jury could have concluded that Dr. Vetrano was gross-

ly negligent when she had seen three people waste away and die under

substantially similar circumstances.

Dr. Vetrano's lackadaisical efforts to monitor Carlton's condition

and her willingness to await the eleventh hour before contacting com-

petent medical assistance also are indicative of her wanton and reckless

disregard for Carlton's welfare. Although Dr. Vetrano alleged she

» Appellants attack the trial court's definition of **gross negligence’ and urge that

it is inconsistent with the Texas Supreme Court's decision in Burk Royalth v. Walls,

616 S.W.2d 911 (Tex. 1981). However, since the appellants failed to object to the

trial court's definition of gross negligence, we refuse to consider the appropriateness

of the district court's definition. See Haupt v. Atwood Oceanics, Inc. 681 F2d 1058,

1062 (Sth Cir. 1981). The district court's definition certainly did not constitute plain

error. id.

B(7)

visited the decedent on a regular basis, her notes clearly point to con-

duct to the contrary. Furthermore, while she testified that she attempted

to have the decedent break his fast, there was no record in her notés

of such advice. Even Dr. Vetrano’s own witness, a ‘‘fasting practi-

tioner,’’ testified that the patient must be seen every day, that careful

records must be kept, and that it is crucial to make a record of a pa-

tient’s refusal to break a fast. Record, vol. 3, at 671-73. We *‘com-

mit our trust to the jurors who saw and heard the witnessess’’ and

refuse to disturb the jury's findings of gross negligence. Fielder v.

Bosshard, 590 F.2d at 109.

Ill. The Evidence of Prior Deaths

[5] In appellants’ final attack upon the district court's judgment, they

contend that the district court erred by admitting evidence of similar,

prior deaths at the Shelton Health School. Record, vol. 2, at 399-400.

We disagree.

During the testimony of Dr. Vincent Di Maio, Bexar County medical

Examiner, the autopsy reports of three individuals who had died as

the result of extended fasting were admitted. Dr. Di Maio had ex-

amined the autoposy reports and had actually examined tissue slides

that had been retained by the medical examiner. All three individuals,

like William Carlton, had undertaken an extended fast at the Shelton

Health School, had sustained extreme weight losses prior to the time

of their demise, and had been under the care of Dr. Vetrano. See

Record, vol. 2, at 8. Dr. Di Maio further testified concerning the similar

nature of all four patients’ deaths: ‘*All of these people died as a result

of dehydration, starvation and they manifested the evidence at autop-

sy of their disease, starvation, and dehydration.’’ Record, vol. 2, at

407. Based upon the similarity of the conditions, the doctor testified

that the individual who supervised the fast had grossly neglected the

welfare of all four patients.

‘This Court has held that evidence of similar events may be relevant

to the ‘‘defendant’s notice, magnitude of the danger involved, [or]

the defendant's ability to correct a known [condition] . . . "’ See Ramos

yy 3 a val by r ¥ »

Dy be Le ee ee ee Ml a

B(8)

v. Liberty Mutual Insurance Co. , 615 F.2d 334-338-39 (Sth Cir. 1980).

We have also emphasized that the trial court generally has broad discre-

tion in the admission of evidence. Jd. at 340. We do not find error

in the district court’s admission of the prior deaths.

The evidence presented by Dr. Di Maio demonstrated that the three

prior deaths occurred under shockingly similar circumstances and from

virtually identical causes. This evidence undoubtedly was probative

on the issue of Dr. Vetrano’s gross negligence. The evidence proved

that she was aware of the grave circumstances in which she had plac-

ed Carlton, had knowledge of the probability of death, and repeated-

ly ignored these patients’ need for competent medical assistance. More

relevant evidence of her wanton and reckless disregard for the welfare

of her patients cannot be fathomed. While the evidence certainly was

prejudicial to Dr. Vetrano, its admission did not constitute ‘‘unfair

prejudice.’’ See Fed.R.Evid. 403. The district court did not improperly

admit the evidence of the three prior deaths.

IV. Conclusion

William R. Carlton died as a result of severe dehydration and

malnutrition while under the care of Herbert M. Shelton and Vivial

V. Vetrano. An impartial jury concluded that Carlton’s death was pro-

ximately caused by these individuals’ gross negligence and awarded

loss. We have seen that the evidence presented to the jury was rele-

vant and admissible and that the jury's verdict is supported by a wealth

of evidence. Accordingly, we affirm the district court's judgment in

all respects.

AFFIRMED.