Opposition — Shelton v. Carlton

Office - Supreme Court, U.S.

FILED

APR #6 934

No. 83-1628

ALEXANDES 1. STEVAS.

CLERK

In The

Supreme Court of the United States

October Term, 1983

sy

Vv

DR. HERBERT M. SHELTON, ET AL.,

Petitioners,

Vs.

JOAN F. CARLTON, ET AL,

Respondents.

fy

Vv

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ry

Vv

RESPONDENTS’ BRIEF IN OPPOSITION

fy

Vv

Ricuarp TINSMAN

TixnsMan & Hovser, Inc.

1900 NBC Building

San Antonio, Texas 78205

(512) 225-3121

Attorney for Respondents

April 25, 1984

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

RESPONSE TO QUESTIONS PRESENTED

1, The Court of Appeals’ decision does not prohibit

a person from selecting a course of treatment not sanc-

tioned by orthodox medical opinion.

2. The Court of Appeals’ decision does not prohibit

Petitioners from engaging in a course of treatment not

sanctioned by orthodox medical opinion.

3. There was sufficient evdence presented that Dr.

Vetrano did recommend an extended fast for the treatment

of William R. Carlton’s ulcerative colitis and the Court of

Appeals was correct in holding that Dr. Vetrano made that

fatal recommendation.

4. The Court of Appeals did not hold the Defendants

to the standard of care of medical practitioners.

5. There is more than ample evidence to support the

verdict and judgment of negligence, both ordinary and

gross, and the Court of Appeals’ decision is supported by

the great weight and preponderance of that evidence.

6. The Court of Appeals correctly held that the evi-

dence of prior, related and substantially similar “finger-

print deaths” was admissible under the Federal Rules in

a negligence case.

ii

PARTIES BEFORE THE FIFTH CIRCUIT

The parties to the proceeding in the Fifth Circuit

were the following:

Dr. Herbert M. Shelton

Dr. Vivian Vetrano

Joan F. Carlton, Individually and as Representative

of the Estate of William R. Carlton, and as Next

Friend of Robert Carlton, Melissa Carlton, David

Carlton, and Lynn Carlton.

iii

TABLE OF CONTENTS

Pages

Response to Questions Presemted 0... cette i

Parties Before the Fifth Circuit ii

Table of Authorities . iil

Opinions Below 2

Jurisdiction 2

Federal Rules Involved 2

Preliminary Statement 4

Statement 6

Proceedings Before the District Court 12

Proceedings Before the Fifth Cireuit 00000012

Reasons for Denying the Writ 13

Argument:

I. The Court of Appeals Has Rendered a Decision

in Accordance With Applicable State Law. 13

II. The Court of Appeals Has Rendered a Decision

in Accordance With the Federal Rules of Evi-

dence. 21

Ili. The Court of Appeals Has Not Rendered a De-

cision Which Will Inhibit Freedom of Choice,

Research and Exploration. 25

Conclusion 26

TABLE OF AUTHORITIES

Cases

Burk Royalty Co. v. Walls, 615 S.W.2d 911 (Tex.

(1981) 19

Dollar v. Long Mfg. N.C., Inc., 561 F.2d 613 (5th

Cir. 1977) 23

Me See

iv

TABLE OF AUTHORITIES—Continued

Pages

Fielder v. Bosshard, 590 F.2d 105 (5th Cir. 1959)... 16

Garcia v. Aetna Cas. and Sur. Co., 657 F.2d 562

(5th Cir. 1981) 24, 25

Gardner v. QHS, Inc., 488 F.2d 238 (4th Cir. 1971) —. 23

General Talk P. Corp. v. Western Electric Co.,

304 U.S. 175 (1938), adherred to 305 U.S. 124,

reh. den. 305 U.S. 675 14

Gilander v. Ford Motor Company, 488 F.2d 839

(10th Cir. 1973)

Jones and Laughlin Steel Corp. v. Matherne, 348

F.2d 394 (5th Cir. 1965)

Miles v. Meadows, 309 S.W.2d 284 (Tex. Civ. App.

—Dallas, no writ 1958) 19

Morrison v. Wilkerson, 343 F. Supp. 1319 (W.D.

Miss. 1971) 23

National Labor Relations Board v. oe 8.8.

Co., 340 U.S. 498 (1951) 14

Ramos v. Liberty Mut. Ins. Co., 615 F.2d 334 (5th

Cir. 1980) 22

Rice v. Sioux City Memorial Park Cemetery, 349

U.S. 70 (1955) 14

Smith v. State Fire and Cas. Co., 633 F.2d 401

(5th Cir. 1980) 24, 25

Statutes

28 U.S.C. § 1254 (1) 2

28 U.S.C. § 1332(a) 2

Fed. R. Evid. 403 23

Fed. R. Evid. 404 (b) 2, 24

F. R. Cw. P. 51 3,16

Sup. Ct. R. 17 3,13

No. 83-1628

st.

Ww

In The

Supreme Court of the United States

October Term, 1983

sy

Ww

DR. HERBERT M. SHELTON, ET AL.,

Petitioners,

vs.

JOAN F. CARLTON, ET AL.,

Respondents.

, ———

oe

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

‘.

ae

RESPONDENTS’ ERIEF IN OPPOSITION

—

a

To the Honorable Supreme Court of the United States:

Joan F. Carlton, Individually and as Representative of

the Estate of William R. Carlton, Deceased and as Next

Friend of Melissa Carlton, Robert Carlton, David Carlton,

and Lynn Carlton, pray that the Petition for a Certiorari

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, be denied.

1

OPINIONS BELOW

Petitioners accurately state the status of the opinions

below in their Petition for a Writ of Certiorari.

°

JURISDICTION

The Judgment of the Fifth Circuit was filed on Jan-

uary 3, 1984. The jurisdiction of this Court has been in-

voked under 28 USC & 1254(1). The basis of the District

Court’s jurisdiction was 28 USC & 1332(a). The petition

for certiorari should be denied in accordance with S. Ct.

R. 17.

°

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, confusion of the issues, or misleading

the jury, or by considerations of undue 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 oth-

er crimes, wrongs, or acts is not admissible to show the

character of a person in order to show that he acted in

conformity therewith. It may be admissible for other

purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mis-

take or accident.

Rule 51, Federal Rules of Civil Procedure:

At the close of the evidence or at such earlier time

during the trial as the court reasonably directs, any party

may file written requests that the court instruct the jury

on the law as set forth in the requests. The court shall

inform counsel of its proposed action upon the requests

prior to their arguments to the jury, but the court shall

instruct the jury after the arguments are completed. No

party may assign as error the giving or the failure to

give an instruction unless he objects thereto before the

jury retires to consider its verdict, stating distinctly the

matter to which he objects and the grounds of his objec-

tion. Opportunity shall be given to make the objection out

of the hearing of the jury.

Rule 17, Rules of the Supreme Court:

1. A review on writ of certiorari is not a matter of

right, but of judicial discretion, and will be granted only

when there are special and important reasons therefor.

The following, while neither controlling nor fully measur-

ing the Court’s discretion, indicate the character of reasons

that will be cansidered.

(a) When a federal court of appeals has rendered a

decision in conflict with the decision of another

federal court of appeals on the same matter; or

has decided a federal question in a way in con-

flict with a state court of last resort; or has so

far departed from the accepted and usual course

of judicial proceedings, or so far sanctioned such

a departure by a lower court, as to call for an

exercise of this Court’s power of supervision.

(b) When a state court of last resort has decided a

federal question in a way in conflict with the

decision of another state court of last resort or

of a federal court of appeals.

(c) When a state court or a federal court of appeals

has decided an important question of federal law

which has not been, but should be, settled by this

Court, or has decided a federal question in a way

in conflict with applicable decisions of this Court.

io™

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PRELIMINARY STATEMENT

This is an action brought by the widow and children

of William R. Carlton for the wrongful death of their

husband and father. This case presents a novel method

of health care. However, the issues of negligence and

gross negligence were not decided against the Defendants,

Shelton and Vetrano, for their decision to practice this

unusual therapy but for their complete failure to exercise

the basic standard of care of the reasonable ordinary pru-

dent person in regards to the rights of the Decedent, Wil-

liam R. Carlton.

This cause of action was presented to the jury with-

out any requested issues by the Defendants in regard to

the now alleged contributory negligence of Carlton nor

were any instructions requested for submission to the

jury on the issue of assumption of the risk which was

first raised by the Defendants’ appeal.

The fundamental issue presented in the case was

whether the Defendants or any person could be excused

for withholding proper medical attention until such time

as medical aid becomes ineffective, particularly when three

other unfortunate persons had succumbed under similar

conditions in the preceding five year period under Defend-

ants’ supervision.

William R. Carlton had not made a “decision” to die.

That decision was made by Dr. Vetrano when Carlton’s

mind and body had reached such a deplorable state that

he no longer possessed the mental ability to reason and

no longer possessed the physical ability to carry out any

course of saving action.

The Judgment in this case is based on a wealth of

supportive evidence. A right and fair result was reached

by respected lower court judges. The complete lack of

any case authority regarding the standard of care of

“fasting practitioners” indicates the problem is unlikely

to occur frequently. Furthermore, since the reasonable

man standard in regards to Defendants’ care was sub-

mitted to the jury with the approval of all trial counsel,

the rule sought by the Petitioners is not supported by this

fact situation.

While the federal questions raised by the Petitioners

present intellectually interesting problems, this Court

does not sit for the benefit of Defendants to satisfy their

interests but for special and important reasons which

reach beyond the academic or the episodic.

6

STATEMENT

Plaintiff was the wife of the Decedent and Lynn,

Robert, Melissa, and David were his four (4) adopted

children. (Tr. 1-22). William R. Carlton was forty-nine

(49) years of age at the time of his death (Tr. 1-97), a

graduate of the University of Rochester and held a Mas-

ter’s Desrree in Business from the Wharton School of

Finance. (Tr. 1-23, 24).

William Carlton was an employee of the Hewlett-

Packard Company exercising the position of the Corpo-

rate Marketing Finance and Systems Manager. (Tr. 2-

366). His fellow employees described William Carlton as

possessing outstanding technical skills and having a “real

good working attitude” as far as getting along with peer

groups. (Tr. 2-367, 368). Prior to entering the Health

School, Carlton had accepted a promotion to become comp-

troller of the company’s leasing division and would have

enjoyed a salary of $56,000.00 a year. (Tr. 2-367, 368).

In 1968, Decedent was diagnosed as having ulcerative

colitis. (Tr. 1-31). The condition, manifested by ulcers

in the colon, was not painful, though it became quite a

nuisance and required Carlton to make frequent trips to

relieve himself. (Tr. 1-32). However, the colitis did not

interfere in Carlton’s enjoyment of life, particularly out-

door activities. (Tr. 1-97, 2-357).

When drug therapy failed to correct the colitis, Carl-

ton’s physician recommended a complete colostomy, a sur-

gical procedure in which the colon is removed. (Tr. 1-33).

The need for surgery was not critical. However, due to its

irreversible nature, Car'ton and his wife wanted to explore

all alternatives. (Tr. 1-34). They were introduced to the

“Hygenic” way of thinking which advocated complete

fasting for the treatment of the disease. If the fast was

unsuccessful, then there was the option of the colostomy.

As Mrs. Carlton testified:

“We had been introduced to the natural health hy-

giene way of thinking and possibly of undertaking a

fast to allow the body to rest and cure itself, and we

thought that was a viable alternative to the operation

because if it didn’t work, we could always go ahead

with the operation.” (Tr. 1-35, lines 17-22).

The Carltons read several books by Dr. Herbert M.

Shelton. (Tr. 1-38). The books were devoid of any dang-

ers of death resulting from a fast as long as the fasting

supervisor exercised good common sense. (Tr. 1-38, 39,

Plaintiffs’ Exhibit No. 32). Nor did Dr. Vetrano ever

mention to the Carltons the susceptibility of the human

body to pneumonia as a result of a debilitating fast, or

the fact that death had occurred as a result of fasting at

the Shelton Health School. (Tr. 1-38, 39).

On Dr. Vetrano’s recommendation, Carlton stopped

his drug therapy and came to San Antonio to begin a fast

consisting solely of distilled water intake. (Plaintiffs’ Ex-

hibit No. 3, Tr. 1-43). William Carlton entered the Health

School weighing 190 to 192 pounds. (Tr. 1-45).

On October 10, 1978, 29 days later, William Carlton

was brought to Baptist Memorial Hospital in an extreme-

ly weak, debilitated, and dehydrated condition, so weak

that he could not sit up and become exhausted by simply

moving his hands. (Tr. 1-168, 170, 175, 197, 252, 253, 261).

Chest X-rays indicated that Carlton was also suffering

from aspiration pneumonitis indicating that several days

prior to his admission, he had become so weak that he was

inhaling his own saliva and vomitus, severely infecting

his lungs. (Tr. 1-190, 244, 267). For at least four (4) days

prior to his admission into Baptist Memorial Hospital,

Carlton had been unable to get out of bed. (Tr. 1-261).

In the words of Dr. Vincent Di Maio, Carlton’s chanc-

es for survival were slim:

“When he came in, he was in very serious and critical

condition. His blood tests revealed that the constitu-

ents of his blood were such that he was sort of, I guess

you would say, balanced on a knife’s edge... . If he

had died five minutes after admission, I would not

have been surprised in the least.” (Tr. 2-419, lines

17-24).

Less than 24 hours after admission, Carlton was dead

due to debilitation, dehydration, malnutrition, and aspira-

tion bronchial pneumonia. (Tr. 2-374). His weight at

autopsy was 130 pounds. (See Plaintiffs’ Exhibit No. 17).

Carlton had not eaten anything at the Health School

the entire 29 days he was under the supervision of Dr.

Vetrano. (Tr. 3-796). While Dr. Vetrano was licensed as

a chiropractor by the State of Texas, her “treatment” by

prolonged fasting was not in accordance with the laws of

the State of Texas nor with her studies as a chiropractor.

(Tr. 2-296).

Dr. Charles Downing, a licensed chiropractor and past

president of Texas Chiropractic Association and Texas

State Director for the American Chiropractic Association,

testified that it was beneath the standard of care for a rea-

sonable chiropractor to recommend a diet consisting of a

sole intake of distilled water for the treatment of ulcera-

tive colitis. (Tr. 2-296, 2-317).

Five medical doctors testified that on a medical stand-

ard, Dr. Vetrano’s actions were not only negligent, but

constituted gross neglect. (Tr. 1-236, 1-239, 1-241, 1-259,

1-260, 2-421-2-423, 2-469-2-470). Furthermore, in the course

of her “practice”, Dr. Vetrano had seen at least three other

individuals die as a result of dehydration, starvation, and

disease, at Dr. Shelton’s Health School, and two of these

three ill-fated patients had aspiration pneumonitis at

the time of their death. William R. Carlton suffered from

all of these conditions. (Tr. 2-407-2-409).

Defendant, Dr. Herbert M. Shelton, while bedridden

with Parkinson’s Disease, was completely lucid at all times

material herein, and consistently advised Dr. Vetrano in

regards to the operations of the Health School. Further-

more, Dr. Shelton maintained complete veto power over the

operations of the Health Center. (Tr. 3-849-850, 3-855-857,

3-868).

Defendants’ expert, Dr. Scott, a fasting practitioner

from Ohio, stated that patients must be seen at least once

a day during a fast and notes must be recorded following

each observation. (Tr. 3-630, 3-671). According to Dr.

Scott, patients who refuse to follow orders must be dis-

charged. (Tr. 3-362). Finally, Dr. Scott testified that it

is extremely important to note in the records when a pa-

tient refuses to break a fast. (Tr. 3-672). Dr. Vetrano’s

notes indicated that she was seeing Carlton every two to

three days. She did not record any indication of a re-

fusal by Mr. Carlton to break the fast. (Tr. 4-903, 4-919,

4-921).

Emmett Freez, Mr. Carlton’s part-time roommate,

was not a “disinterested witness” as claimed by Petition-

¥G

Se

10

ers. He refused to talk to the Plaintiffs’ counsel prior to

the trial, because he believed that Plaintiffs wanted to

build a case against Dr. Vetrano. (Tr. 3-734). On cross-

examination, Emmett Freez admitted that he never heard

Dr. Vetrano recommend that Mr. Carlton break his fast.

“Q. You never did hear her recommend that he break

the fast, did you?

A. I didn’t hear her recommend it, no.” (Tr. 3-740,

lines 24, 25; Tr. 3-741, line 1).

Nor was Emmett Freez Carlton’s roommate during

Carlton’s final days at the Health School. Freez left the

School on October 1, 1978. (Tr. 3-717). Carlton remained

at the Schoo] until October 10, 1978. (Tr. 1-168-170).

Never did Dr. Herbert M. Shelton in his books, nor

did Dr. Vetrano inform Mr. Carlton or his wife, of the pos-

sibility of death in fasts conducted at the Shelton Health

Center. Defendants’ expert fasting practitioner, Dr.

Scott, testified that he does not inform his patients of the

possibility of death. (Tr. 3-687). Furthermore, all wit-

nesses at the trial who had engaged in a prolonged fast

at some time in the past, stated that they were never ad-

vised of the possibility or the risk of death occurring dur-

ing a fast, particularly at the Shelton Health Center. (Tr.

3-686, 3-762, 3-780, Pickle Depo. p. 22).

The opinion below clearly indicates that the Court of

Appeals did correctly perceive the nature of the case. Dr.

Vetrano did recommend a prolonged fast for the treatment

of Mr. Carlton’s condition. (Plaintiffs’ Exhibit No. 3).

The record clearly reflects that while the Defendants

carefully and deliberately avoided use of the term “medi-

cal facility” to describe their operation at the Shelton

ll

Health Center, their persistence in using the title “doctor”,

their use of health questionnaires, doctor’s notes, and

physical examinations, gave the public, including Carlton,

the impression that this was a “medical facility”. This

constant referral to one another as “doctor”, despite the

fact that prolonged fasting is not a sanctioned practice

within the chiropractic field, is deliberately misleading to

those unfamiliar with the Hygenic Program. Use of such

terminology gives the illusion that during a fast, basic

conditions will be monitored and proper and timely medi-

cal attention will be forthcoming in the event the need

arises.

Respondents respectfully disagree with the Petition-

ers in that the correct posture of this case does not con-

cern Carlton’s decision to enter the Health School but the

Defendants continuing the fast and withholding proper

medical attention in that critical period prior to Mr.

Carlton’s death. As Dr. Vetrano’s notes indicate, Mr.

Carlton began having chest pains on October 7, 1978. By

that time, Carlton had slipped into a mental fog and he

had become too weak to stand. The Defendants’ inaction

during this period was the basis of the verdict and judg-

ment of negligence and gross neglect. They failed to ex-

ercise the standard of care which would have been exer-

cised by the ordinary prudent person under the same or

similar circumstances, that is seek proper medical atten-

tion before it becomes too late. Dr. Vetrano chose to de-

lay conventional medical treatment. She chose to retain

Carlton, a man whose reasoning had become clouded, and

his physical strength nearly extinguished, in a non-medical

facility without testing or monitoring equipment at a

time when Carlton was experiencing severe chest pains and

12

was suffering from malnutrition and dehydration. She,

“the fasting supervisor”, with the advice and consent of

Dr. Shelton, allowed William R. Carlton to die. As set

forth in the record, it was her decision to continue the

fast despite Carlton’s complaints of pain.

“Q.

>

Haven’t there been people that you have advised

you are in a crisis, it will pass, and the person

did not survive the crisis, they died?

Yes, I have had that. (Tr. 4-926, lines 20-23).

I just want to know if you don’t encourage crisis

to be endured?

If I think the crisis should be endured, I encour-

age it. If I think it shouldn’t, I break the fast.

Alright, did anyone tell Mr. Carlton, ‘you are in

a crisis, this will pass, just endure it.’?

I told him that I thought he was passing gall-

stones. I feel that he did start passing gallstones

and I said, let’s watch it and see what it is.” (Tr.

4-927, lines 9-17).

st

a

PROCEEDINGS BEFORE THE DISTRICT COURT

Petitioners have accurately stated the proceedings be-

fore the District Court.

s*

—

PROCEEDINGS BEFORE THE FIFTH CIRCUIT

Petitioners have accurately stated the proceedings be-

fore the Fifth Circuit.

°

13

REASONS FOR DENYING THE WRIT

I

The Court of Appeals Has Rendered a Deci-

sion In Accordance With Applicable State Law.

II.

The Court of Appeals Has Rendered a Deci-

sion In Accordance With the Federal Rules of

Evidence.

III.

The Court of Appeals Has Not Rendered a

Decision Which Will Inhibit Freedom of Choice,

Research and Exploration.

ARGUMENT

The Court of Appeals Has Rendered a Deci-

sion In Accordance With Applicable State Law.

Petitioners are correct in that it is Respondents’ posi-

tion that there are no substantial federal questions pre-

sented in this case. While a decision involving a starvation

clinic may be novel and thus intellectually interesting, the

questions presented are unique to these Defendants and

are in no way questions which have not been but should

be settled by this Court. Sup. Ct. R. 17.

Furthermore, Petitioners have failed to cite to this

Court, nor have Respondents located any decision by any

14

other federal court of appeals, which is in conflict with

the Fifth Circuit’s decision in this matter. Petitioners

have not located any decisions of this Court which conflict

with the federal questions which Petitioners state arise in

this cause of action.

The respected judges below based their decision on the

accepted usual course of judicial proceedings, that is a

review of the record to see if the evidence sufficiently

supports the district court’s judgment and whether or not

the district court exercised sound judicial discretion in the

admission of particular evidence. A right and fair result

was reached by the court below.

As this Court has stated before, concurrent findings

on questions of fact by the district court and circuit court

of appeals will not be disturbed unless piainly without

support in the evidence. General Talking P. Corp. v. West-

ern Electric Co., 304 U.S. 175 (1938) adhered to 305 U.S.

124, reh. den. 305 U.S. 675.

The record is replete with evidence to support the

jury’s verdict. This Court is not the place to review any

alleged conflicts of evidence but to review those decisions

and cases involving principles, the settlement of which are

of importance to the public as distinguished from the

parties. National Labor Relations Board v. Pittsburg S.S.

Co., 340 U.S. 498 (1951).

As the Rules of this Court state, review on a writ of

certiorari is not a matter of right, but of judicial discre-

tion, and will be granted only when there are special and

important reasons therefor. Rice v. Sioux City Memorial

Park Cemetery, 349 U.S. 70 (1955). “‘Special and im-

15

portant reasons imply a reach to a problem beyond the

academic or the episodic.’” supra at 74.

Respondents respectfully submit that this case has

been subject to a thorough and effective Federal Appellate

review and there is no need for further review.

The record clearly supports the judgment of negli-

gence, both ordinary and gross, under Texas Law. Petition-

ers are now attempting to cast this case in terms of as-

sumption of the risk and/or contributory negligence. As-

sumption of the risk and contributory negligence imply in-

formed consent. Nowhere in the record is there found any

testimony that anyone, the Carltons, or other “patients” at

the Health School were ever advised that people have die:!

during a fast, particularly at the Shelton Health School.

Petitioners now are alleging that Carlton was “deter-

mined to die.” The record is clear that at least four days

prior to his death, Mr. Carlton was totally dependent on

Dr. Vetrano for his welfare. He was too weak to physically

resist any efforts to place him in an ambulance, if Vetrano

had called one. Furthermore, his reasoning had become

clouded due to the severe infection, malnutrition, and

debilitation, Carlton was suffering during his final days

at the Shelton Health Center.

Respondents are not denying that Carlton made a

reasoned choice to undergo a fast at the Shelton Health

School in San Antonio, Texas. However, Carlton did not

look at the Health School as a place of final resort but

simply as an alternative to be investigated, and if the

Hygenic treatment was not successful, then he would have

submitted to the colostomy.

16

Clearly, the jury did not believe the testimony of the

“disinterested witness”, Emmett Freez. The statement

“do or die” could not have been uttered by a man who in the

very words of the Petitioners was an “intelligent, educated,

and mature businessman”. (See Page 8 of Petition).

The record is absent of any requested instruction to

the jury concerning assumption of the risk and contribu-

tory or comparative negilgence. Under the Federal Rules

of Civil Procedure, Petitioners should not be allowed to

raise those issues now. F. R. Civ. P. 51.

Due to the findings of gross negligence, the jury obvi-

ously believed that Vetrano and Shelton had crossed the

line between misfeasance and conscious indifference. In

cases such as this, the attitudes and states of minds of the

Defendants weigh very heavily. Thus, as the Court of

Appeals of the Fifth Circuit has decided in similar fact

situations, appellate courts are reluctant to read between

the lines of the record. “We commit our trust to the jurors

who saw and heard the witnesses”. Fielder v. Bosshard,

590 F.2d 105 (5th Cir. 1959).

Plaintiffs did not bring an action for malpractice. To

allege malpractice would give undue credence and status

to the fasting practitioner. There is no such standard,

there is no training facility, there is no testing of prac-

titioners. These individuals are self-appointed and basi-

cally conduct their activities in accordance with their per-

sonal prerogatives.

Due to the lack of an established standard, Plaintiffs

submitted the reasonable man standard. Defendants’ trial

attorneys were in agreement. (Tr. 1-123, 1-125). Dr. Vet-

rano’s trial attorney stated that due to the absence of such

17

a standard, the Defendant’s conduct should be weighed

against that of reasonable man. (T'r. 1-123). Dr. Shelton’s

attorney agreed. (Tr. 1-125). There wus no objection in

accordance with Rule 51 of the Federal Rules of Civil

Procedure to the submission of the issue of negligence of

Dr. Vetrano.

Based on the record, the only standard applicable

to measure Defendants’ conduct was the reasonably pru-

dent person. Dr. Downing, ihe chiropractor, testified that

Dr. Vetrano and Dr. Sheltcn, through their use of pro-

longed fasting, were not practicing chiropractic. A care-

ful reading of Dr. Downing’s testimony reveals that fast-

ing an individual with the sole intake of distilled water

for a considerable period of time is definitely not within

the practices and teachings of the science of chiropractic.

(Tr. 2-296, 2-300). Furthermore, Dr. Downing was not

aware of any chiropractors who conduct themselves in that

matter. (Tr. 2-305). Furthermore, as Petitioners have

pointed out, Dr. Downing did testify that it was beneath

the standard of care of a chiropractor to recommend a diet

of distilled water only for the treatment of ulcerative

colitis. (Tr. 2-317).

Dr. Vetrano did recommend the fast for the treat-

ment of Mr. Carlton’s ulcerative colitis as set forth in Mr.

Carlton’s letter of July 30, 1978 to Dr. Vetrano:

“Accordingly, my reservation form specifies no ending

date for my health school stay; however, per your

recommendation, I am tentatively thinking in terms

of two months or so, depending on how things go with

the fast.” (Plaintiff’s Exhibit No. 3).

Furthermore, Dr. Vetrano did ask Mr. Carlton to

stop taking the drugs prescribed by his physician at least

.

.

&

4

P

o>

“i

;

18

three weeks prior to his entry into the Health School.

(Tr. 1-48).

It was agreed by all parties and all experts who tes-

tified, that no practitioner of any school should allow a

patient to deteriorate to a point of dehydration, mal-

nourishment, and grave illness. All the medical doctors

were in agreement that Carlton suffered from all three

conditions on his admission to Baptist Memorial Hospital.

Defendants’ own expert, Dr. Scott, the fasting practi-

tioner, stated that on admission to the Baptist Memorial

Hospital, Mr. Carlton was critically ill.

‘‘This is a very very sick man. He is metabolically

deranged, seriously, dangerously, perhaps critically.

Metabolically deranged, meaning he is suffering from

a mortal illness and it means his internal regulators

are not sustaining his vital function well enough to

preserve his health.” (Tr. 3-650, lines 12-16).

Even Dr. Shelton, in his book Fasting Cam Save Your

Life, (See Plaintiff’s Exhibit No. 32) stated:

‘*He (the supervisor) carefully watches the faster

in the day-by-day developments and breaks the fast

when his object has been obtained or before any

danger to the faster has developed.’ (Tr. 3-681, lines

4-7). (Emphasis added.)

As this Court is aware, all of the standards of the

experts, were superior to that of a reasonably prudent

man. The higher the standard of care required by the

defendant, the easier to prove liability. Here the De-

fendants’ conduct did not even rise to the standard of the

reasonably prudent man, the lowest standard of conduct

that our society will permit in governing man’s relation-

ship to man. It is conclusive that the Defendants, from

the testimony of all] experts, failed to meet the lowest

19

‘*standard of care”. See Miles v. Meadows, 309 S.W.2d

284 (Tex. Civ. App.-Dallas, no writ, 1958) at 287.

Gross Negligence

Respondents agree that in the State of Texas, Burk

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

controlling authority on gross negligence and exemplary

damages.

The Texas Supreme Court has stated that the appel-

late standard in testing a jury finding of gross negligence

test must be the same evidence test which should apply

to any other fact issue. supra at 920.

‘*The plaintiff has the burden to prove that the de-

fendant was grossly negligent. If the jury finds gross

negligence, the defendant has the burden of establish-

ing that there is no evidence to support the finding.

... The jury, after all, does not have to believe evi-

dence that some care was exercised. When there is

some evidence of the defendant’s want of care and

also some evidence of some care by the defendant,

the jury finding of gross negligence through entire

want of care resolves the issue, and the appellate

court is bound by the finding and testing for legal

sufficiency. supra at 920, 921.

The fact that Dr. Vetrano had previously supervised

three (3) people who died from malnutrition, dehydration,

debilitation and the effects thereof, was probative that

Dr. Vetrano knew about the peril to which she was sub-

jecting Carlton. Furthermore, the medical testimony that

at least four (4) days prior to his death, Carlton was too

weak to even leave his bed, established that he was totally

subject to the will and control of Dr. Vetrano. To have

allowed Carlton to fall into such a debilitated state and

to have refused to call for medical assistance until the

20

eleventh hour, was a strong indication of her want of care,

particularly in view of three (3) prior deaths from sub-

stantially the same causes and under identical cireum-

stances. Furthermore, the fact that she would allow a

living, vibrant individual, to be subjected to such pain

and suffering and to waste away to the skeletal state,

was also strong proof that she did mot care about the

safety and welfare of Mr. Carlton. (See Plaintiffs’ Ex-

hibit Nos. 9-11.)

While Dr. Vetrano alleged that she visited Carlton

on a regular basis, her notes clearly point to conduct to

the contrary. Furthermore, while she testified that she

attempted to have Mr. Carlton break his fast, there was

no record in her notes of such advice, though her own ex-

pert, Dr. Scott, indicated that it was of vital importance

to make such a notation. More importantly, Mr. Carlton

was at such a point of debilitation and extreme weakness,

he could not have physically resisted Dr. Vetrano had she

called an ambulance at any time. Dr. Vetrano did not

have the right to gamble with Mr. Carlton’s life on her

theory that he could survive the crisis. Thus any attempts

by the Petitioners to point to any evidence that Dr. Ve-

trano exercised some care is overshadowed by the over-

whelming evidence to the contrary.

Her own expert, Dr. Scott, testified that patients must

be seen at least once a day during the fast and more often

if they are critically or seriously ill. (Tr. 3-630). As Dr.

Vetrano’s notes indicated, she consistently did not see Mr.

Carlton for two to three days at a time. (Tr. 4-904).

As stated above, Dr. Vetrano did recommend a fast-

ing program for the treatment of Mr. Carlton’s disease.

(See Plaintiffs’ Exhibit No. 3). Thus, the focus of the

21

Fifth Circuit’s decision is not misplaced as alleged by

Petitioners. At no time was the possibility or risk of

death ever disclosed to Carlton or the fact that other per-

sons under Dr. Vetrano’s supervision had died during

fast at Shelton’s Health School. Without this crucial in-

formation, Carlton could not have made a reasoned choice

about the fast. The decision to continue the fast to the

point of starvation and eventual death was that of Dr.

Vetrano.

II.

The Court of Appeals Has Rendered a Deci-

sion In Accordance With the Federal Rules of

Evidence.

During the testimony of Dr. Vincent Di Maio, Bexar

County Medical Examiner, the autopsy reports of three

(3) prior individuals who had died at Dr. Shelton’s Health

School were admitted into evidence. (Tr. 2-399, 400). These

individuals were Fr. Armand John Gilbert, Keith V. Ellis

and Joy Michelle Bristo. Dr. Vincent Di Maio had re-

viewed the autopsy reports anc personally examined tis-

sue slides which had been retained by the prior medical

examiner for each of these three (3) persons. (Tr. 2-405-

407). Fr. Armand John Gilbert died in 1973; Keith Ellis

in 1974; Joy Michelle Bristo in 1977; and William R. Carl-

ton in 1978. (Tr. 2-406). Thus, the period between the

death of the first, Fr. Armand John Gilbert and Mr. Carl-

ton was five (5) years. In the opinion of Dr. Vincent Di

Maio, the state of health of all four (4) individuals were

similar at the time of their death.

‘*All of these people died as a result of dehydration,

starvation, and they manifested the evidence at autop-

22

sy of their disease, starvation and dehydration.” (Tr.

2-407, lines 3-5).

Three of the four had bronchial pneumonia at the

time of their death.

‘“‘The last one, Ms. Bristo, had bronchial pneumonia.

Mr. Ellis had bronchial pneumonia, and of course,

Mr. Carlton had bronchial pneumonia.” (Tr. 2-408,

lines 4-6).

All four, including Carlton, had sustained extreme

weight losses prior to the time of their death. (Tr. 2-409).

All four had come from Shelton’s Health School. (Tr. 2-

411). At the time of his admission to Baptist Memorial

Hospital, Carlton was described as a likely candidate for

a heart attack. Fr. Armand John Gilbert appeared to

have died from cardiac arrest. (Tr. 2-416). The first three

had actually died at Shelton’s Health School. (Tr. 2-417).

Based on the similarity of the conditions, Dr. Di Maio

testified that in his opinion, the perso who supervised

the fast of all four of these people from 1973 to 1978,

exhibited a gross neglect for their welfare and safety.

(Tr. 2-422-2-423). There was sufficient and substantial

similarity between the deaths of Gilbert, Ellis, Bristo, and

Carlton; all had died due to complications, malnutrition,

dehydration, and extreme weight loss, and these conditions

occurred at the Shelton Health Center. (Tr. 2443). Dr.

Vetrano was the supervisor in charge during 1973 throngh

1978. (Tr. 3-826-830).

It has been repeatedly held that evidence of similar

accidents is relevant in regards to issues such as the de-

fendant’s notice, magnitude of the danger involved, the

defendant’s ability to correct, the standard of care, and

causation. Ramos v. Liberty Mut. Ins. Co., 615 F.2d 334

23

(5th Cir. 1980); and Jones and Laughlin Steel Corp. v.

Matherne, 348 F.2d 394 (5th Cir. 1965).

Only if there was no similarity of conditions between

these prior deaths could this evidence be deemed inad-

missible as a matter of law. Morrison v. Wilkerson, 343

F.Supp. 1319 (W.D. Miss. 1971).

“Tf there is some similarity of conditions, the weight

of that evidence would be in proportion to the evidence

of similarity, the greater weight to be given where

there is greater similarity and a lesser weight where

the similarity is less’”. supra at 1326.

Where the issue is one of foreseeability or notice,

evidence of what has actually been experienced in the same

or controllable situations constitutes proof of the greatest

probative value. Gardner v. QHS, Inc., 488 F.2d 238 (4th

Cir., 1971). While the evidence may be prejudicial, such

prejudice is greatly outweighed by it probative value. Fed.

R. Evid. 403. Virtually all evidence is prejudicial. De-

fendants have failed to show the prejudice is unfair. Dollar

v. Long Mfg. N. C., Inc., 561 F.2d 613 (5th Cir. 1977).

Generally, where negligence is an issue, prior failures

concerning an allegedly hazardous condition are admitted

as being probative of the Defendants’ knowledge. Are

not prior deaths under identical conditions indicative of

hazardous conditions? Rule 404 (b) is not limited solely

to products liability. Prior failures imputes knowledge

and this knowledge, in turn, then operates as a standard

against which can be tested the reasonableness of the De-

fendants’ conduct with regard to the allegedly hazardous

condition, or in this case, treatment. Gilander v. Ford Motor

Company, 488 F.2d 839 (10th Cir. 1973) at 846.

RR

24

Thus, the District Court exercised sound judicial dis-

cretion which has been upheld by the Fifth Circuit in that

the evidence of other wrongful conduct by Dr. Vetrano

was admissib!» for such other purposes as proof of motive,

opportunity, intent, preparation, plan, knowledge, and

causation. Fed. R. Evid. 404 (b).

Defendants have cited the case of Garcia v. Aetna Cas.

and Sur. Co., 657 F.2d 562 (5th Cir., 1981) in support of its

contention that the prior deaths were inadmissible. In

Garcia, the evidence of a prior fire was properly denied

since the defendant introduced absolutely no evidence to

show that the plaintiff had anything to do with the prior

fire. A similar resuit was reached in the decision of

Smith v. State Fire and Cas. Co., 633 F.2d 401 (5th Cir.

1980). In Smith, the defendants attempted to introduce the

evidence of five prior fires but failed to lay the proper

predicate by submitting evidence to show that the plain-

tiffs had actually been involved in the fires. Thus in both

Garcia and Smith, the Fifth Cireuit correctly upheld the

trial court’s decision to refuse the admission of prior inci-

dents since the moving party failed to produce evidence

to show a connection with the party against whom the evi-

dence was offered. Such connective evidence can be found

in this record.

It is undisputed that all three (3) prior deaths oc-

curred at the Shelton Health School. Furthermore, Dr.

Vetrano was the director of Dr .Shelton’s Health School

and under the supervision of Defendant, Dr. Shelton, and

was in full control and custody of its operations since

1965. (Tr. 1-47, 2-399, 2-339-340, 3-791-794). The record is

uncontroverted that Dr. Vetrano was the supervisor re-

sponsible for the fasts of Fr. Armand John Gilbert, Joy

25

Bristo, and Keith Ellis as she was Carlton’s. (Tr. 3-826-

830). Thus, the cases of Garcia and Smith are not rele-

vant to this case before this Court.

Petitioners are correct that on Page 382 of Volume II

of the Transcript, testimony from Dr. Ruben Santos was

read from deposition, that Dr. Santos had autopsied eight

deaths from the Shelton Health School in about fifteen

(15) years. However, no objection was made to that read-

ing at the time it was offered. Furthermore, the trial

court only allowed the details concerning the substantially

similar deaths of Fr. Armand John Gilbert, Joy Bristo, and

Keith Ellis into evidence

ITI.

The Court of Appeals Has Not Rendered a

Decision Which Will Inhibit Freedom of Choice,

Research and Exploration.

Respondents respectfully submit that Petitioners are

incorrect in their assertion that the judgments of the courts

below were based on a disdain for the practice of fasting

as the treatment for physical illness. (See Page 18 of

Petition). The judgments of the courts below are based

on the trial record and that record clearly showed that Dr.

Vetrano “literally allowed Carlton to starve to death”.

(Opinion at Page 1332). While Petitioners submit and

Respondents agree that the Federal Courts are not the

appropriate forum to debate the virtues and vices of “fast-

ing treatments”, Petitioners are asking this Court to ignore

the plethora of evidence of negligence and grant a writ

of certiorari in order that the theories of the Petitioners

can be further discussed.

26

The courts below are not criticizing Dr. Vetrano and

Dr. Shelton for their theories of health care but their gross

lack of attention to the basic human needs of Mr. Carlton

during his stay at the Shelton Health School. Mr. Carlton

did not intend to risk his life but relied upon Dr. Vetrano

and Dr. Shelton to exercise their duties as ordinary rea-

sonably prudent persons. Under the law, such was his

right.

CONCLUSION

Because the judgment reached by the courts below is

fair and just and Petitioners have failed to raise any sub-

stantial federal questions:

We respectfully submit that the Court should deny

Petitioners’ prayer for a Writ of Certiorari.

Respectfully submitted,

Tinsman & Hovser, Inc.

1900 NBC Building

San Antonio, Texas 78205

(512) 225-3121

By:

Ricuarp TinsMANn

Counsel of Record