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Dr. Cocoziello discovered a lump in P's right breast during her annual gynecological checkup. Dr. Cocoziello referred P to Drs. Snyder and Lichy, who performed a bilateral mammogram and compared the results to one taken in 1978. Dr. Lichy's report indicated the presence of a 'one-centimeter nodulation' in the right breast, and advised a biopsy, both in the report to Dr. Cocoziello and by telephone to Mrs. Schneider. P told Dr. Lichy that she did not want a biopsy and would seek a doctor who would treat her nonsurgically. Dr. Cocoziello urged P to have a biopsy and referred her to three general surgeons: Dr. Abessi, Dr. Addeo, and Dr. Volke. P was examined by Dr. Abessi and Dr. Volke, who both separately advised her to undergo a biopsy and possibly a partial mastectomy, depending upon the analysis of the biopsied tissue. P refused. P consulted with D who is the President and Scientific Director of the Institute. P is a physician and researcher who treats cancer patients with 'non-toxic,' non-invasive methods that have not been adopted by the medical community. P had learned of D and his novel cancer therapy from a radio program. P signed a detailed consent form. D was diagnosed with cancer and began treatment with selenium and dietary restrictions. P claims that D never advised either a biopsy or surgery. D's records show that in February 1982, and on three later occasions, he recommended that she have the tumor surgically removed. The tumor increased in size, and the cancer had spread to her lymph system and left breast. P underwent a bilateral mastectomy followed by sixteen months of conventional chemotherapy. P sued for common law fraud, common law, medical malpractice, and lack of informed consent. On the eve of trial, Ds sought leave either to clarify their Third Affirmative Defense of 'culpable conduct' or to amend their answer to include express assumption of risk as an affirmative defense. The trial judge denied the motion. The court denied a similar oral motion on the first day of trial and, at the end of the trial, refused to charge the jury on express assumption of risk. P got the verdict for $1,000,000 which was halved on the finding of 50-50 comparative negligence. Ds appealed contending that the district court erred by refusing to charge as affirmative defenses an alleged covenant not to sue and express assumption of risk.

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