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Emanuel Revici, M.D. and the Institute of Applied Biology, Inc. (the "Institute") appeal from a judgment entered in the United States District Court for the Southern District of New York (Motley, J.), in a diversity action arising from Dr. Revici's treatment of plaintiff Edith Schneider's breast cancer with unconventional, non-invasive cancer therapy, after she had been advised by numerous doctors to undergo a biopsy and had refused to do so. Edith Schneider and her husband asserted four claims against Dr. Revici and the Institute: (1) fraud, premised on Dr. Revici's alleged promise to cure Mrs. Schneider of breast cancer; (2) medical malpractice; (3) a claim for lack of informed consent under N.Y. 989*989 Pub.Health Law § 2805-d; and, (4) a derivative claim asserted by Mr. Schneider for loss of consortium. After the district judge refused to charge the jury on the affirmative defense of express assumption of risk, the jury returned a verdict for the plaintiffs on the medical malpractice claim, and a loss of consortium claim. It awarded Edith Schneider and her husband $1,000,000.00 and $50,000.00 respectively. Because the jury found that Mrs. Schneider was equally responsible, through her own culpable conduct, for the damages she suffered, the awards were halved to $500,000.00 and $25,000.00, pursuant to New York's comparative negligence statute, N.Y.Civ.Prac.L. & R. 1411.

On appeal, Dr. Revici and the Institute challenge the district court's refusal to charge with respect to an alleged covenant not to sue and express assumption of risk as affirmative defenses, either of which would serve as a total bar to recovery. Appellants also contend that numerous evidentiary rulings were erroneous. Because we hold that express assumption of risk was available as a total defense to this action under New York law, we reverse and remand this case for determination of that issue only.


817 F.2d 987 (1987)

Edith SCHNEIDER and Herman Schneider, Plaintiffs-Appellees, v. Emanuel REVICI, M.D., and Institute of Applied Biology, Inc., Defendants-Appellants.

No. 585, Docket 86-7145.

United States Court of Appeals, Second Circuit.

Argued December 1, 1986

Decided April 30, 1987

New York Law School location: File #276, Box #119