Petition for Writ of Certiorari — Bragdon v. Abbott
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EEO eee — — eee
Supreme Court. U.S. | —
PILED
» 97. 15 6 JUL 21 1997
fick OF THE CLERK
In The
Supreme Court of the United States
October Term 1997
RANDON BRAGDON, D. M. D.,
Petitioner,
v.
SIDNEY ABBOTT ET AL.,
Respondents.
On Petition for a Writ of Certiorari to the United States
Court of Appeals for the First Circuit.
PETITION FOR WRIT OF CERTIORARI
JOHN W. MCCARTHY, ESQUIRE
Counsel of Record
BRENT A. SINGER, ESQUIRE
RUDMAN & WINCHELL
Post Office Box 1401
84 Harlow Street
Bangor, Maine 04402-1401
Phone: (207) 947-4501
Attorneys for Petitioner
APPELLATE SERVICE: CURRY & TAYLOR (215) 241-9764
ee ee
i
QUESTIONS PRESENTED
1. Is reproduction a major life activity within the
meaning of the Americans with Disabilities Act (ADA), 42
U.S.C. §§ 12101-12213?
2. Are asymptomatic individuals infected with HIV per
se disabled within the meaning of the ADA?
3. When deciding under title III of the ADA whether a
private health care provider must perform invasive procedures
on an infectious patient in his office, should courts defer to the
health care provider’s professional judgment, as long as it is
reasonable in light of then-current medical knowledge?
4. What is the proper standard of judicial review under
title III of the ADA of a private health care provider's
judgment that the performance of certain invasive procedures
in his office would pose a direct threat to the health or safety
of others?
5. Did petitioner, Randon Bragdon, D.M.D., raise a
genuine issue of fact for trial as to whether he was warranted
in his judgment that the performance of certain invasive
procedures on a patient in his office would have posed a direct
threat to the health or safety of others?
LIST OF PARTIES
The parties below were plaintiff/appellee Sidney
Abbott, plaintiff/appellee the Maine Human Rights
Commission, intervenor United States of America, and
defendant/appellant Randon Bragdon, D.M.D.
An amicus brief was filed by the Association of State
and Territorial Health Officials, the American Public Health
Association, the Association of State and Territorial Dental
Directors, the Rhode Island Department of Health, the
Department of Public Health, Commonwealth of
Massachusetts, and the Bureau of Health of the Maine
Department of Human Services. The American Dental
Association also filed an amicus brief.
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .....ccccccccccsccccecs: i
, 5 i
OPINIONS BELOW AND JURISDICTION .......... l
RELEVANT STATUES AND REGULATIONS ...... l
STATEMENT OF nc 2
REASONS FOR GRANTING THE Wilk 4
I. BECAUSE THERE IS A CONFLICT AMONG
THE CIRCUITS ON THE REOCCURRING
QUESTION OF WHETHER REPRODUCTION IS
A MAJOR LIFE ACTIVITY UNDER THE ADA,
AND BECAUSE THIS QUESTION RAISES A
SIGNIFICANT AND CHALLENGING PURE
ISSUE OF LAW UNDER AN IMPORTANT CIVIL
RIGHTS STATUTE, THE COURT SHOULD
ENE DEEEBOUEEEEE, <inicccHacedcrdbdcoscerecece 5
A. There is a Clear Conflict Among the Circuits
on the Reoccurring Legal Issue of Whether
Reproduction is a Major Life Activity under the
D OSEE Sah San deh ddaWWibe cet ccsccese 5
B. The Needless Perpetuation of Conflict and
Uncertainty Among Courts Over the Legal Issue of
Whether Reproduction is a Major Life Activity
Under the ADA is Inefficient and Senseless, and
Leads to a Justifiable Public Perception that the
Application of the ADA is Fundamentally Unfair
. . 6
C. The Question of Whether Reproduction is a
Major Life Activity is Especially Well-Suited for
Review Because It is a Neatly Circumscribed and
Typically Dispositive Issue of Law. ............... 7
iv
D. The Question of Whether Reproduction is a
Major Life Activity is Sufficiently Important to
Warrant the Attention of the Court.
Il. BECAUSE THERE IS A CONFLICT AMONG
THE CIRCUITS ON WHETHER
ASYMPTOMATIC INDIVIDUALS INFECTED
WITH HIV ARE PER SE DISABLED, AND
BECAUSE THIS IS A QUESTION OF THE
UTMOST SIGNIFICANCE TO MANY MILLIONS
OF AMERICANS, THE COURT SHOULD
neee 9
A. Circuit Courts are in Conflict as to Whether
Asymptomatic Individuals Infected With HIV are
Per Se Disabled Under the ADA dd
B. Whether HIV Infection is Per Se a Disability is
a Question of the Utmost Significance to Millions
r ͤ ͤ—— ]— it Bde tees
C. By Deciding Whether HIV- Infection is Per Se
a Disability, the Court Can Also Clarify a
Significant Uncertainty as to the Role of
Legislative History in Statutory Construction .....
III. THE COURT SHOULD REVIEW AND
REVERSE THE APPEALS COURT’S DECISION
ON THE ISSUE OF DIRECT THREAT, BECAUSE
IT SETS A DANGEROUS, HIGHLY PUBLICIZED
PRECEDENT, WHEREBY PRIVATE HEALTH
CARE PROFESSIONALS WHO MAKE
REASONABLE JUDGMENTS BASED ON
THEN-CURRENT MEDICAL KNOWLEDGE
MAY BE HELD LIABLE FOR CIVIL RIGHTS
VIOLATIONS WITHOUTATRIAL. ...........
*
A. Dr. Bragdon Made a Reasonable Judgment,
Based on Then-Current Medical Knowledge, that
Filling Ms. Abbott's Cavity in His Office Would
Have Posed a Direct Threat to the Health or Safety
r mets eds Gabbe caer paces 13
B. Ironically, Dr. Bragdon, More Than Ms.
C. The Appeals Court's Decision Sets u Very Bed
Precedent that Will Have Deleterious Effects On
Efforts to Build an Improved, Coherent
Administrative System for the Regulation of Small!
D. The Issue of the Proper Standard of Review
Under Title III of Private Health Care Providers
Determinations of Direct Threat is an Issue of
Nationally Reoccurring Significance. ............. 27
E. Neither Arline, the ADA, Regulations, nor
legislative History, Suggests that Private Health
Care Providers Should Be Held Liable for Making
ee eee 28
F. The Decision by the Appeals Court is Literally
Dangerous as a Matter of Public Health Policy. ..... 29
, ̃ . anak ie saken 31
APPENDIX
Abbott v. Bragdon, 107 F.3d 934 (1St Cir. 1997) .... la
Abbott v. Bragdon, 912 F. Supp. 580 (D. Me.
D re ne ̃ err ee Y 3la
Order of Court (1St Cir. April 22, 1997) .......... 66a
Affidavit of Randon Bragdon, D.M.D. dated
„„ —bDUu 68a
vi
Affidavit of Randon Bragdon, D.M.D. dated
% ˙oàQA e 75a
Response of Sydney Abbott's to Interrogatory No
Q ncccbubecdebeeetenbetctedes ese 80a
Excerpts from 56 Fed. Reg. 64004, 64032, 64092
Gee. .. 8la
October 30, 1995, Letter from Director of CDC to
B Ä 85a
Excerpts from JAMA. 1991:265:1123-1128) ...... 87a
Excerpts from April 23, 1992, FDA
eee ese e eee 90a
Excerpts from June 5, 6, 13, and 14 Deposition of
Randon Bragdon. D. M... 99a
Excerpts from August 10, 1995, Deposition of
Donald Marianos,D.D.S. 8s 102a
Excerpts from June 1994 CDC Report by Laurie
Robert, M.S., and David Bell,
.in 104a
CDC HIVIADS Surveillance Report through
„ . 110a
Annals of Internal Medicine 1992; 116:798-805 .. Illa
Excerpts from May7, 1993,MMWR. ........... I3la
Excerpts from JADA, Vol.124, October 1993 .... 133a
_ Excerpts from August 17, 1995, Deposition of
r ˙ bon cen bebehs cocee 138a
March 27, 1996, Declaration of Leon Kelleher,
ee 140a
Excerpts from Jounal of Medical Virology
rr. ale eee cen cies 145a
vii
October 4. 1995 Declaration of Sanford Kuvin,
Z Se eke wae bcceucccoc: 150a
September 29, 1995, Affidavit of Arleen Richman . Ila
Open Letter to Maine Dental Association from
Randon Bragdon, D. M.. 168a
Excerpts from July 21, 1995, Deposition of
e dee 170a
ee ae el pe ery er ee 172a
Article by Beth Burmahl from AGD IMPACT
, ]‚§⏑T0: tere 176a
Excerpt from JADA, Vol.128, June 1997. ....... 180a
1993 CDC Recommended Infection-Control
r debeeheccecsseces 18la
Excerpts from July 1997 American Bar
Association Journal Article by John Gibeaut. ..... 200a
February 24, 1997, National Law Journal Article. 209a
Excerpts from Review Article in New England
Journal of Medicine, December 2, 199 . la
Excerpts from September 1, 1996, Article in
American Family Physicia n 223a
Excerpts from February 1991 Article in American
SONNE GE NS nbs bs ceed . bids stead 225a
viii
TABLE OF AUTHORITIES
A.R. v. Kogan. F. Supp. N. D.
Ln 27
Abbott v. Bragdon, 107 F.3d 934 (1“ Cir
PS ann 5,29
Co., No. 3:95CV461, 1996 WL 684421
% „ 6
American Dental Ass’n X. Martin, 984
F.2d 823 (7 Cir. 1993), cert. denied,
ROGUE PU. “Go baad . . 13
Andersen Liberty Lobby, Inc.,477
e ũͤ œ :!: „ 13
Bielicki_v. City of Chicago, No.
97-C-1471, 1997 WL 260595 (N. D. Ill.
% !JÄ aS i frie weet 5
Anderson Cancer Ctr., 3 F.3d 922 (5
Cir. 1993), cert. denied, 114 S. Ct. 1071
eee ess ses soos eee 19
Cain u. Hyatt, 734 F. Supp. 671, 679
,, ̃ ̃ I pees §——„ Tae 5, 10
Carter v. Temple-Inland Forest Products
Corp., 943 S.W.2d 221 (Tex. App.
Memorial Hosp., ___—*F. Supp. (0.
. QQ „„ 9
enden 10
Cook x. State of R.L, 10 F.3d 17, 25 (1"
F el 7
Cotes v McDonald’s Corp., 955 F.
IIe 5
Doe_v. Centinela_Hosp., No. CV
87-2514, 57 USLW 2034 (D. Cal. 1988) .............. 7
Doe . District of Columbia, 796 F.
e os ea livcccccccccccccs 5
Doe v. Dolton Elementary School Dist.
No. 148, 694 F. Supp. 440, 444-45
I ne 5, 8. 10
Doe . Johnston, 476 N. W. 2d 28, 31
e e 22
Doe v. Kohn, Nast & Graf, P. C., 862 F.
Supp. 1310, 1318-1320 (E.D. Pa. 1994) ............ 5, 10
6 University of Md, Medical 8
Corp., 50 F.3d 1261 (4" Cir. 1995) ))))) c eens 20
Doe vy. Washington Unix., 780 F. Supp.
Sin ̃ Rh 19
EEQC vy. Amego, Inc., 110 F.3d 135,
ic ᷑— ˙» Si ae 29
Ennis v. National Ass’n of Busi 8
Educ. Radio, 53 F.3d 55, 59-60 (4" Cir.
MERE PEL YES YEP LUE TC? POLE nne 3, 10
Colleges, 911 F. Supp. 316, 323 (N. P.
eee 5
Farmer _v. National City Corp., No.
C-2-94-966, 1996 WL 887478 (S.D.
„e ee hc Oe vo ecsceucetven 5
Gates v. Rowland, 39 F.3d 1439, 1446
r 10
Harris v. Thigpen, 941 F.2d 1495, 1524
W een 7
, ͤuꝓT . 11
Hoepfl_v. Barlow, 906 F. Supp. 317
r dee 27
Howe v. Hull, 873 F. Supp. 72, 78 N. D.
—B / boo Ck cee ek ee 10
Krauel v. lowa Methodist Med. Ctr., 95
pe fh RE pa aee 5, 6,8
Lasser v. Rosa, 654 N.Y.S.2d 822, 823
. œ . gs ic ccacapece 29
Lehmuller_v. Incorporated Village of
Sag Harbor, 944 F. Supp. 1087 (E.D.
Wis Bs MOU ibe 6 OH . EA ERMA TBO Wc ékcwacccccncer 6
Mauro v. Borgess Medical Ctr., 886 F.
Supp. 1349 (W.D. Mich. 1995)... cc ccc cee 19
McWright v. Alexander, 982 F.2d 222,
, cbc tor kh eek 6
Pacourek X. Inland Steel Co., 916 F.
INN 5
e X. Nati d.
N. A., 95 F.3d 1285, 1289 (4 Cir. 1996 ᷑ 10
v. Arline,
480 U.S. 273, 289-293 (1987) ............. 3,4,10.12.28
Sharrow _v. Bailey, 910 F. Supp. 187
/// auds sae acs 27
xi
Soileau . Guilford of Maine, Ing. 105
%%% rer rere 8
Soodman x. Wildman, Harrold, Allen &
Dixon, No. 95-C-3834, 1997 WL
r ̃ ũo O . 5
Thomas _v. Atascadero Unified School
Dist., 662 F. Supp. 376 (C.D. Cal. 1986) .............. 5
United States v. Morvant, 898 F. Supp.
erer kiss dais Sateen eas ex 10, 27
Zatarain_v. WDSU-TV, Inc., 881 F.
Supp. 240, 243 (E.D. La. 1995), affd,79
e œꝶFh'ml, ce acca cende es 5, 6
; Other Authorities
rn... e. 13
, ͤ ͤ¹rmi r .. 15
EEOC Compliance Manual (CCH)
902.3,9 6883, at 5311 (1993) . 8
EEOC Interim Policy Guidance on ADA
and Health Insurance (June 8, 199 3)«0h;hh0ui: 9
H. R. Rep. No. 101-4850II) at 62 (199 % ꝙùůe»vvv—iXn᷑nnnn 28
MMWR, vol. 44, no. 50, p. 929-932
r rene 25
Stephen Breyer, Breaking the Vicious
Circle, 10 (Harvard Univ. Press 1993) ............... 25
Rules and Regulations
28 C.F.R. App. B, § 36.104 ......... patie ess: 7, 8, 10
eee 13, 14, 16, 28
„„ cb ced ows Favs veee cabanas 9
r r 10
Statutes
28 U.S.C. § 1331
Urn . Un ee
42 U.S.C. § 12201(a)
42 U.S.C. § 12201(c)
soereeeeeeeeneteeeeeeeeeeeeeeeeeee
1
OPINIONS BELOW AND JURISDICTION
Abbott v. Bragdon, 107 F.3d 934 (1* Cir. 1997) (la-30a), 912
F. Supp. 580 (D. Me. 1995) (31a-65a).
The judgment of the United States Court of Appeals for
the First Circuit was entered on March 5, 1997. Petitioner’s
petition for rehearing and suggestion for rehearing en banc
were denied on April 22, 1997, Chief Judge Torruella,
dissenting. (66a-67a) This Court has jurisdiction pursuant to
28 U.S.C. § 1254(1).
RELEVANT STATUTES AND REGULATIONS
42 U.S.C. § 12102(2): “The term ‘disability’ means,
with respect to an individual — (A) a physical or mental
impairment that substantially limits one or more major life
activities; (B) a record of such an impairment; or (C) being
regarded as having such an impairment.”
28 C.F.R. § 36.104: “The phrase major life activities
means functions such as caring for one’s self, performing
manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.”
42 U.S.C. § 12182(b)(3): “Specific Construction.
Nothing in this subchapter [title III of the ADA] shall require
an entity to permit an individual to participate in or benefit
from the goods, services, facilities, privileges, advantages and
accommodations of such entity where such individual poses a
direct threat to the health or safety of others. The term ‘direct
threat’ means a significant risk to the health or safety of others
that cannot be eliminated by a modification of policies,
practices, or procedures or by the provision of auxiliary aids or
services.”
2
28 C.F.R. § 36.208(c): “In determining whether an
individual poses a direct threat to the health or safety of others,
a public accommodation must make an individualized
assessment, based on reasonable judgment that relies on
current medical knowledge or on the best available objective
evidence, to ascertain: the nature, duration, and severity of the
risk; the probability that the potential injury will actually
occur; and whether reasonable modifications of policies,
practices, or procedures will mitigate the risk.”
STATEMENT OF THE CASE
On September 16, 1994, plaintiff Sidney Abbott arrived
at the private dental office of defendant Randon Bragdon,
D.M.D., in Bangor, Maine, for an appointment. On her patient
registration form, Ms. Abbott indicated that she was infected
with HIV, the virus that causes AIDS. People may be
HIV-positive for many years without manifesting the set of
symptoms commonly known as AIDS, and Ms. Abbott was
asymptomatic at the time.
Ms. Abbott was brought into the treatment area and
seated in a dental chair. Dr. Bragdon performed a diagnostic
dental examination and discovered that Ms. Abbott had a
cavity near the gum line on a back, lower tooth. (69a, J 6)1
He told Ms. Abbott that, pursuant to his infectious disease
policy, he would not fill her cavity in his office, but would
treat her in a hospital setting. Ms. Abbott said that she would
think about it and get back to him. (80a)
Two months later, Ms. Abbott sued Dr. Bragdon in the
United States District Court, District of Maine (the “District
Court”) for disability discrimination under title III of the ADA.
Title III prohibits disability discrimination by private entities
1 This is a reference to paragraph 6 of page 69a of the appendix
to this petition. Similar references follow throughout this petition.
3
in places of public accommodation. The District Court had
jurisdiction pursuant to 28 U.S.C. § 1331.
Ms. Abbott argued that she was disabled because she
was substantially limited in the major life activity of
reproduction, and that asymptomatic HIV infection is per se a
disability. Dr. Bragdon argued to the contrary. Dr. Bragdon
also argued that even if Ms. Abbott were disabled, he was
under no legal obligation to fill Ms. Abbott’s cavity in his
office because, in his judgment, the invasive procedures
necessary to fill her cavity in his office would have posed a
direct threat to the health and safety of others, including
himself. The District Court acknowledged that the “position
taken by [Dr. Bragdon] is not an unreasonable one” (63a), but
it nevertheless granted summary judgment in favor of Ms.
Abbott. Dr. Bragdon appealed.
The United States Court of Appeals for the First Circuit
(the “Appeals Court”) recognized the conflict among the
circuits on the question of whether reproduction is a major life
activity. The Appeals Court explained that “the question is
very close,” but it decided that “[r]eproduction (and the bundle
of activities that it encompasses) constitutes a major life
activity [under the ADA].” (lla) The Appeals Court also
added a “final observation” implying that it was prepared to
follow other courts in holding that all individuals infected with
HIV are per se disabled under the ADA. (15a) This conflicts
with the Fourth Circuit, which has expressly rejected the view
that “HIV-positive status is per se a disability.“ Ennis v.
National Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 60 (4"
Cir. 1995); see also School Bd. of Nassau County v. Arline,
480 U.S. 273, 289-293 (1987) (Rehnquist, C.J., & Scalia, J.,
dissenting) (tuberculosis, a contagious disease, is not a
handicap within the meaning of the Rehabilitation Act of
sane 2
2 The definition of “individual with a disability” under the ADA
4
With respect to the issue of direct threat, this case
presents an issue expressly left undecided in Arline, namely,
whether courts should defer to the reasonable medical
judgments of private physicians as to the significance of the
risk of communicating an infectious disease. Arline, 480 U.S.
at 288 n.18. Dr. Bragdon argued that courts should defer to
private health care providers’ judgments, as long as they are
reasonable in light of then-current medical knowledge.
(19a-20a) The Appeals Court disagreed. It granted a
continuing presumption of correctness to conclusions which it
said “seem to be implicit” (23a) in 1993 Guidelines issued by
the United States Centers for Disease Control and Prevention
(CDC). The seemingly implicit conclusions identified by the
Appeals Court are that no further risk-reduction measures are
desirable for dental workers when treating HIV infected
patients than those measures recommended for all patients in
the 1993 Guidelines, and that filling cavities of patients known
to be infected with HIV is generally safe.
After reviewing the record, the Appeals Court decided
that Dr. Bragdon did not raise a genuine issue of fact by
presenting sufficient countervailing evidence to rebut the
presumption of correctness attached to the seemingly implicit
CDC conclusions. By a vote of five to one (Chief Judge
Torruella, dissenting), the First Circuit denied Dr. Bragdon’s
petition for rehearing and suggestion for rehearing en banc.
(66a-67a)
REASONS FOR GRANTING THE WRIT
is the same as the definition of “individual with a handicap” under the
Rehabilitation Act of 1973, except that the term “disability” now replaces
the term “handicap” in both statutes. In transplanting this definition from
the Rehabilitation Act to the ADA, Congress intended the retention of the
original meaning. See 42 U.S.C. § 12201(a). Therefore, with respect to
the issue of disability, this petition does not distinguish cases arising
under the Rehabilitation Act.
5
I. BECAUSE THERE IS A CONFLICT AMONG
THE CIRCUITS ON THE REOCCURRING QUESTION
OF WHETHER REPRODUCTION IS A MAJOR LIFE
ACTIVITY UNDER THE ADA, AND BECAUSE THIS
QUESTION RAISES X SIGNIFICANT AND
CHALLENGING PURE ISSUE OF LAW UNDER AN
IMPORTANT CIVIL RIGHTS STATUTE, THE COURT
SHOULD GRANT THIS PETITION.
A. There is a Clear Conflict Among the Circuits on the
Reoccurring Legal Issue of Whether Reproduction is a
Major Life Activity under the ADA.
Federal courts in the First, Third, Seventh, Ninth, and
District of Columbia Circuits, have all held that reproduction
is a major life activity,3 whereas courts in the Fourth, Fifth,
Sixth, and Eighth Circuits, have all held that reproduction is
not a major life activity.4
The Court of Appeals for the First and Eighth Circuits
are expressly in conflict. Compare Bragdon, 107 F.3d 934
(Ila)
3 EA. Abbott L. Bragdon, 107 F 3d 934 (I" Cir 1996);
Pacourek L. Inland Steel Co., 916 F. Supp. 797, 804 (N.D. Ill. 1996);
911 F. Supp. 316, 323
Erickson v. Board of Govs. Of State Colleges,
(N.D. Ill. 1995); Doe v. Kohn, Nast & Graf, P.C., 862 F. Supp. 1310,
1318-1320 (E.D. Pa. 1994), Doe v. District of Columbia, 796 F. Supp.
559, 568 (D. D.C. 1992); Cain vy. Hyatt, 734 F. Supp. 671, 679 (E. D.
Pa. 1990); Doe v. Dolton Elementary Schoo! Dist. No. 148, 694 F.
Supp. 440, 444-45 (N. D. Ill. 1988); Thomas v. Atascadero Unified
School Nis, 662 F. Supp. 376 (C.D. Cal. 1986); Bielicki_v. City of
Chicago, No. 97-C-1471, 1997 WL 260595 (N. D. Ill. 1997); Soodman v.
No. 95-C-3834, 1997 WL 106257
aaa say
Krauel vy. lowa Methodist Med. Ctr.,
ce. 1998); Contes v. MeDonald's Comp.. 955 F. Supp. 541 (E.D.
95 F.3d 674, 677
N.C. 1996); Zatarain v. WDSU-TV, Inc., 881 F. Supp. 240, 243 (E. D.
La. 1995), aff'd,79 F.3d 1143 (“ Cir. 1996); Farmer v. National City
Corp., No. C-2-94-966, 1996 WL 887478 S. D. Ohio).
6
with Krauel, 95 F.3d at 677. The Court of Appeals for the
Fifth Circuit has armed, without opinion, the position that
reproduction is not a major life activity. See Zatarain, 881 F.
Supp. 240, 243 (E.D. La. 1995), aff'd, 79 F.3d 1143 (5% Cir.
1996). The Court of Appeals for the Seventh Circuit has
stated in dicta that reproduction is a maicr life activity. See
McWright_v. Alexander, 982 F.2d 222. 226-227 ( Cir.
1992). The Court of Appeals for the Fourth Circuit has been
understood as holding that reproduction is not a major life
activity. See Cortes, 955 F. Supp. at 546.5
B. The Needless Perpetuation of Conflict and
Uncertainty Among Courts Over the Legal Issue of
Whether Reproduction is a Major Life Activity Under the
ADA is Inefficient and Senseless, and Leads to a
Justifiable Public Perception that the Application of the
ADA is Fundamentally Unfair and Arbitrary.
Due to the present conflict among federal courts on
whether reproduction is a major life activity under the ADA,
the very same person (e.g., Ms. Abbott or Ms. Krauel, see 95
F.3d 674) protected by the ADA under the very same facts in,
for example, Massachusetts, New Hampshire, Maine, and
Illinois, would not be protected in South Dakota, Minnesota,
lowa, and Missouri. Likewise, the very same person liable for
the very same actions in the former states, would not be liable
in the latter states. This fundamental inconsistency causes a
justifiable perception in all jurisdictions that the ADA is unfair
and arbitrary in its application. A failure by the Court to
decide whether reproduction is a major life activity will also
cause needless inefficiency in jurisdictions, like the Second
and Tenth Circuits, where the issue has not yet been decided.6
5 Courts in the Second Circuit have discussed whether
reproduction is a major life activity, but have not decided the issue.
EZ. Lehmuller v. Incorporated Village of Sag Harbor, 944 F. Supp.
1087 (E.D. N.Y. 1996); i No.
3:95CV461, 1996 WL 684421 (D. Conn. 1996).
7
C. The Question of Whether Reproduction is a Major
Life Activity is Especially Well-Suited for Review Because
It is a Neatly Circumseribed and Typically Dispositive
Issue of Law.
The Appeals Court admitted that “the question [of
whether reproduction is a major life activity] is very close.
(11) On the one hand, as the Appeals Court explains.
conceiving and raising children are extremely important
activities in our society; Congress envisions a definition of
“disability” beyond old-fashioned concepts of “handicap”,
reproductive disorders are included among the regulation’s
roster of physical impairments; the regulation’s enumeration
of major life activities is not meant to be exclusive; and
reproduction is not completely dissimilar to the regulation’s
6 The record presents no other theory according to which Ms.
Abbott might be disabled under the ADA, other than the theory that she is
substantially limited in the major life activity of reproduction, or that
HIV-infection is per se a disability under the ADA. Questions presented
numbered one and two are therefore dispositive in this case. Ms. Abbott
may argue, on the contrary, that she was “regarded” by Dr. Bragdon as
disabled, perhaps because he regarded her as contagious. Merely being
regarded as contagious does not make one disabled under the ADA.
Instead, Ms. Abbott would have to prove that Dr. Bragdon regarded her
as substantially limited in one or more major life activities. See 42
of learning and working); Doe v. Centinela Hosp., No. CV 87-2514, 57
USLW 2034 (D. Cal. 1988) (HIV-infected individual regarded as
regarded her as substantially limited in any major life activity.
enumerated major life activities of performing manual tasks,
1 seeing, hearing, and so forth. See 28 C. F. R. §
On the other hand, many healthy, intelligent, normal
people choose never to have children, unlike frequent and
necessary activities such as performing manual tasks, walking,
seeing, hearing, and so forth. With respect to the major life
activity of working, millions of Americans work every day
not as a lifestyle choice, but because they must earn a living.
That is why working is included as a major life activity under
the ADA. The same cannot be said for reproduction. In
addition, viewed as a whole, the regulations indicate that the
Attorney General did consider reproductive issues, see 28
CF. R App. B. § 36.104 (reproductive system disorders are
impairments under ADA), and concluded that
reproduetive disorders are physical impairments,”
reproduction is not itself a major life activity, see 28 C. F. R. §
36.104. Activities such as eating and sleeping, which also are
not on the regulation’s list of major life activities, are much
more analogous to activities on the list, than is reproduction.7
D. The Question of Whether Reproduction is a Major
Life Activity is Sufficiently Important to Warrant the
Attention of the Court.
Ms. Abbott may argue that although the issue of
7 By reviewing this issue, the Court may also want to provide
some guidance, at least indirectly, on how courts should treat other
potential candidates for major life activities, such as “interacting with
others,” and “caring for others.” Compare EEOC Compliance Manual
(CCH) § 902.3, 6883, at 5311 (1995) (stating that imteracting with
others is a major life activity) and Dolton Elementary School, 694 F.
Soileau_v. Guilford _of Maine, Inc., 105 F.3d 12 (1" Cir. 1997)
probably not major life activities) and Krauel, 95 F.3d at 677 (caring for
others is not a major life activity).
9
whether reproduction is a major life activity has been
reoccurring, and is likely to reoccur, it will not reoccur with
sufficient frequency to warrant the attention of the Court. This
is incorrect.
The incidence of infertility in countries like the
United States is estimated at between 10% and 15%, or up to
one in every six couples. (209a, 221a, 223a) Surveys show
that there are approximately 4.9 million women between the
ages of 15 and 44 in America who are infertile (221a), and
who are thus “disabled” according to the First Circuit, but not
the Eighth Circuit. Approximately $1 billion is spent annually
by couples seeking to overcome infertility. (210a) The Court
should therefore expect a significant increase in litigation
under the ADA concerning conduct and/or accommodations of
employers, employee benefit plans, and insurers toward
individuals seeking and undergoing infertility treatments. See,
88. l a
Supp. (D. Me. April 24, 1997) (ADA action by infertile
woman alleging disability discrimination for denial of sick
leave benefits); see also 42 U.S.C. § 12201(c); 29 C.F.R §
1630.4(e), (f); EEOC Interim Policy Guidance on ADA and
Health Insurance (June 8, 1993).
Any doubts as to the importance of this issue are also
substantially outweighed by the existing widespread conflict
among federal courts, and by the fact that the issue is neatly
circumscribed, ripe for review, and typically dispositive when
it does arise. If the Court fails to decide this issue, it will also
perpetuate needless and expensive uncertainty among ADA
litigants and potential litigants, and contribute to a justifiable
perception of fundamental unfairness in the application of the
ADA.
Il. BECAUSE THERE IS A CONFLICT AMONG
THE CIRCUITS ON WHETHER ASYMPTOMATIC
10
INDIVIDUALS INFECTED WITH HIV ARE PER SE
DISABLED, AND BECAUSE THIS IS A QUESTION OF
THE UTMOST SIGNIFICANCE TO MANY MILLIONS
OF AMERICANS, THE COURT SHOULD GRANT
THIS PETITION.
A. Circuit Courts are in Conflict as to Whether
Asymptomatic Individuals Infected With HIV are Per Se
Disabled Under the ADA.
. The Fourth Circuit has held that asymptomatic
individuals infected with HIV are not per se disabled under the
ADA.8 The Ninth Circuit, and other courts, have held that
asymptomatic individuals infected with HIV are per se
disabled.9 Some courts, recognizing that the wording of the
ADA does not suggest that any physical impairment is, per se,
disability, have nevertheless concluded, in effect, that HIV
infection is necessarily a disability because of its negative
impact on the ability to procreate, or to interact with others.10
In Arline, 480 U.S. at 282 n.7, this Court expressly left open
the question of whether asymptomatic carriers of a virus such
as HIV are disabled.
In this case, the Appeals Court found support for the
8 Ennis X. National Ass'n of Business & Educ. Radio, 5
59-60 (4° Cir. 1995); cf. also v, Nati 2
95 F.3d 1285, 1289 (4° Cir. 1996) (reaffirming that asymptomatic HIV is
not a disability per se), reh’g en banc granted, opinion vacated (Dec 3,
1996). 2
92 KEK. Gates v. Rowland, 39 F.3d 1439, 1446 (9 Cir. 1994):
Souler * Prudential Ins. Co. of America, ___ F. Supp. (N. D. Cal.
); United States v. Morvant, 898 F. Supp. 1157, 1161 (E.D. La.
1995); Howe v. Hull, 873 F. Supp. 72, 78 (N.D. Ohio).
10 EZ. Kohn Nast & Graf, F. C., 862 F. Supp. at 1321; Cain, 734
F. Supp. at 679; Dolton Elementary School, 694 F. Supp. at 444-445.
Support for this approach is found in various regulatory guidelines. Eg.
28 C.F.R. App. B. § 36.104; 29 C.F.R. App. § 1630.2(j) (“HIV
infection [is] inherently substantially limiting”).
il
view that HIV infection is per se a disability, in the legislative
history of the ADA. (15a) The Appeals Court implies that on
that basis alone, it would have held that Ms. Abbott is
disabled. (15a-16a) By doing so it would have avoided the
absurd result that if Ms. Abbott were, for example, 70 years
old, and not limited by HIV in her ability to reproduce, then
she would rot have be protected under the ADA. Equally
absurd is the fact that Ms. Abbott’s inability to have children,
which is purportedly the basis of her disability, played no role
in Dr. Bragdon’s decision to defer treatment outside his office.
Cf. Hedberg v. Indiana Bell Tel. Co., Inc., 47 F.3d 928, 932
(* Cir. 1995) (defendant not liable under ADA unless it knew
of disability). Nevertheless, Dr. Bragdon was found liable for
discriminating against Ms. Abbott “on the basis of disability.”
42 U.S.C. § 12182(a). The decision of the Appeals Court is
therefore fundamentally incoherent without the premise that
HIV infection is the disability.11
B. Whether HIV Infection is Per Se a Disability is a
Question of the Utmost Significance to Millions of
Americans.
Ms. Abbott’s experts in this case estimate that
approximately 1,000,000 Americans are infected with HIV.
Very many of these individuals are asymptomatic, and will
fortunately remain asymptomatic for at least quite some time.
It goes without saying that whether such asymptomatic
persons are per se protected under the ADA from employment
and public accommodation discrimination is a question of
immense significance not only to them, but to their employers,
to private owners of public accommodations, and to many,
many others. (200a-20 la) If the Court agrees that HIV
11 In addition, as previously noted, see note 6 supra, there is no
other basis in the record that possibly supports a finding that Ms. Abbott
is disabled, other than the theory that HIV infection is per se a disability,
or the theory that Ms. Abbott is substantially limited in the ability to
reproduce.
12
infection is per se a disability under the ADA, it would appear
cruel beyond necessity for the Court, out of inchoate concerns
for whether the issue is ripe for mature deliberation, to refuse
to answer the question. If, on the other hand, the Court thinks
that HIV infection is not per se a disability, then this is a case
in which the courts of appeals are especially in need of
guidance, as the weight of authority, except in the Fourth
Circuit, is clearly that HIV infection is per se a disability.
C. By Deciding Whether HIV-Infection is Per Se a
Disability, the Court Can Also Clarify a Significant
Uncertainty as to the Role of Legislative History in
Statutory Construction.
The ADA’s legislative history reveals that many
members of Congress thought, for whatever reason, that HIV
infection would automatically be a disability; yet, the wording
of the statute does not reflect it, and even suggests otherwise.
The ADA itself was enacted after this Court left open in
Arline, 480 U.S. at 282 n.7, the issue of whether asymptomatic
carriers of a virus, such as HIV, are disabled. This is therefore
an excellent opportunity for the Court to clarify for Congress
and other courts the significance, if any, of legislative history,
when such history seems inconsistent with the wording of the
Statute on a controversial political issue. In other words,
perhaps lacking the votes in Congress to have expressly made
HIV-infection a disability under the ADA, is it enough that
legislative history may treat it as such?
III. THE COURT SHOULD REVIEW AND REVERSE
THE APPEALS COURT’S DECISION ON THE ISSUE
OF DIRECT THREAT, BECAUSE IT SETS A
DANGEROUS, HIGHLY PUBLICIZED PRECEDENT,
WHEREBY PRIVATE HEALTH CARE
PROFESSIONALS WHO MAKE REASONABLE
JUDGMENTS BASED ON THEN-CURRENT MEDICAL
13
KNOWLEDGE MAY BE HELD LIABLE FOR CIVIL
RIGHTS VIOLATIONS WITHOUT A TRIAL.
A. Dr. Bragdon Made a Reasonable Judgment, Based
on Then-Current Medical Knowledge, that Filling Ms.
Abbott’s Cavity in His Office Would Have Posed a Direct
Threat to the Health or Safety of Others.
The following sampling of facts in the record illustrate
that, for purposes of summary judgment review, Dr. Bragdon
raised a genuine issue of fact under 28 C.F.R. § 36.208(c), as
to whether he made an objectively reasonable judgment, based
on then-current medical knowledge, that filling Ms. Abbott's
cavity in his office on September 16, 1994, would have posed
a direct threat to the health or safety of others.12
1. In 1991, the Occupational Safety and Health
Administration (OSHA) promulgated its Final Standard for
Occupational Exposure to Bloodborne Pathogens, 56 Fed.
Reg. (Dec. 6, 1991). These standards apply to dentists.
See American Dental Ass’n v. Martin, 984 F.2d 823 () Cir.
1993), cert. denied, 114 S. Ct. 172 (1993). OSHA concluded
that dental workers who have occupational exposure to blood
or certain body fluids are “at risk” of contracting HIV, and that
the rate of HIV infection is low, but “not insignificant.” 56
Fed. Reg. at 64032. (81a-82a) OSHA specifically rejected the
American Dental Association’s contention that OSHA
overestimated the occupational risk for dentists. Id. at 64092.
(83a-84a) OSHA explained that empirical findings are
compatible with a finding of a one in 1,000 risk to dentists of a
12 For purposes of summary judgment review, “the evidence of the
nonmovant li e., Dr. Bragdon] is to be believed, and all justifiable
inferences are to be drawn in his favor.” Anderson v. Liberty Lobby,
Inc.,477 U.S. 242, 255 (1986). “Credibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from
the facts are jury functions, not those of a judge, whether he is ruling on
a motion for summary judgment or for directed verdict.” Id.
14
fatal illness as a result of occupational exposure to HIV
infected blood, and that such a risk has “clearly [been] defined
as a Significant risk.” Id. OSHA therefore requires, and
the Bie due a the taking of certain “universal
precautions” (gloves, masks, handwashing, etc.). are
called “universal” in the sense that they 2.0 8 4 all
patients, not in the sense that they eliminate the risk to dentists
of contracting HIV. In fact, when Senator Daniel Moynihan
inquired of the CDC in 1995 as to the efficacy for dentists of
taking universal precautions,“ the Director of the CDC
referred Senator Moynihan to the two latest articles” on the
subject. (85a-86a) The first article concerned only cutaneous
exposures to blood, and reported an approximately 50%
reduction by taking universal precautions. (225a) The second
considered parenteral exposures as well, and concluded that
“the implementation of Ups ſi e., universal precautions]
should reduce the risk of occupational HIV infection by
62%,” (89a) ia
This means that according to OSHA, evidence indicates
that Dr. Bragdon and his assistants have a significant risk of
contracting HIV without taking universal precautions.
According to the latest studies recognized by the CDC, Dr.
Bragdon and his assistants reduce that risk by 62% -- a little
over half -- by taking universal precautions. Most reasonable
minds would agree that a 62% reduction in a significant risk of
contracting HIV still leaves a significant risk. Accordingly
Dr. Bragdon made a_ reasonable judgment, based on
then-current medical knowledge, that the performance of an
8 2 en such as filling Ms. Abbott's cavity near
gum line, would have posed a di
rn posed a direct threat pursuant to 28
2. In 1992, the Food and Drug Administration (FDA)
issued recommendations for the prevention of HIV
transmission. The FDA recommends a twelve month deferral
15
period for all potential blood donors “who have had contact
with blood and body fluids through percutaneous inoculation
(such as injury or accidental needlestick) or through contact
with an open wound, non-intact skin, or mucous membrane
during the preceding 12 months.” (97a, 90a) This means that
whenever a dentist has contact with any patient’s blood by
accidental needlestick or other sharps injury, the FDA, on
account of concern for the transmission of HIV, recommends
that the dentist not be permitted to donate blood for twelve
months, to ensure that blood tests will detect HIV-antibodies if
he is infected.13 It is therefore reasonable to infer that the
FDA, like OSHA, thinks there is a significant risk to dentists
of contracting HIV when they are exposed to the blood of their
patients.
Every time Dr. Bragdon fills a cavity such as Ms.
Abbott’s, there is a significant opportunity for him to be
exposed to his patient’s blood. See 56 Fed. Reg. at 64092
(82a) (“Dentists . . are continually exposed to blood and
bloody saliva during almost all dental procedures.”). For
example, during the injection of local anesthetic, accidental
needlestick injuries to Dr. Bragdon occur before, between, and
after injections, as a result of unexpected patient movements,
such as biting down or flinching. (69a, J 7; 77a-78a;
138a-139a; 176a) One of Ms. Abbott's experts testified that,
for dentists, 1.5 accidental needlesticks per 100 injections, is a
reasonable approximation. (154a-155a, J 16) A startled
patient can cause instruments, such as explorers (the
“shepherd’s crook” used to examine teeth), to be driven into
the bone of the dentist’s finger. (77a, J 7; 139a) The CDC
reports that during routine dental procedures, “contamination
of saliva with blood is predictable [and] trauma to health-care
workers’ hands is common.” MMWR, vol. 37, no. 24, p. 379
13 Blood tests used to determine if someone is HIV-positive actually
detect the presence of HIV-antibodies, which typically do not develop
until one to six months after infection.
16
(June 24, 1988). Dr. Bragdon testified that even doing his best
to implement universal precautions, he sustains sharps
injuries, most of which draw blood, at the rate of several times
a week. (99a-100a) In one study, thirty-five percent of
dentists reported between two and fifteen sharps injuries per
month. (125a) When drilling a cavity near the gum line, it is
not unusual for splatters of blood to reach the dentist. (70a, §
9;102a) The drilling process itself creates an aerosol mist of
tiny droplets of blood and bloody saliva that drifts up into the
face of the dentist. (69a-70a) Consequently, when filling
cavities, and performing other so-called “routine” procedures,
it is not at all unusual for the blood and mucous membranes of
dentists to be exposed to the blood of their patients. (70a, q
12, 72a-74a)
A reasonable inference from the FDA recommendations
concerning deferral periods following exposure to a patient’s
blood, and from the likelihood of Dr. Bragdon being exposed
to the blood of a patient when filling a cavity near the gum
line, is that there was a direct threat to Dr. Bragdon within the
meaning of 28 C.F.R. § 36.208(c).
3. In June 1994, the CDC reported thirty-seven
confirmed cases of occupational transmission of HIV to health
care workers (including four to non-surgical physicians), and
seventy-eight suspected occupational transmissions of HIV to
health care workers, including seven suspected occupational
transmissions of HIV to dental workers. (104a-107a) The
seven suspected occupational transmissions of HIV to dental
workers are ases in which it is reasonable to infer that
transmission occurred, because the dental workers suffered
occupational exposures to HIV-infected blood, and follow-up
investigation by the CDC uncovered no non-occupational risk
factors for the HIV-infected workers. (105a) In other words,
the seven dental workers who were infected with HIV were
“investigated and are without identifiable [non-occupational]
“
17
behavioral or transfusion risks.“ (110a n.3; 11la n.3) The
CDC does not, however, refer to such cases as “confirmed,
because unlike the thirty-seven confirmed cases of
occupational transmission of HIV to health care workers, the
infected dental workers did not have blood tests done at the
time of exposure confirming that they were HIV-negative at
that time. (Id.)14
Moreover, in the same June 1994 report, the CDC
cautioned that its passive surveillance system for documenting
occupational transmissions of HIV “most likely does not
reflect the full extent of occupational transmissions,” and that
estimates are that “only 10% to 60% of percutaneous injuries
are reported” (emphasis added). (105a) Based on this CDC
report, it was reasonable for Dr. Bragdon to conclude that
perhaps as many as seventy dental workers, and at least seven,
had already suffered occupational transmissions of HIV, and
therefore, there would have been a direct threat to him and his
staff while performing invasive procedures on Ms. Abbott in
his office.
4. In 1991, the CDC reported that a Florida dentist,
despite using barrier precautions, transmitted HIV to five of
his patients, between 1987 and 1989. (1 1la-1 - 130a) The
routine procedures in question included restorative fillings,
prophylaxes, and simple extractions. The CDC explained that
{a]ll five patients received multiple injections
14 The Appeals Court dismissed the relevance of these seven
infected dental workers by playing on the word “possible.” Specifically,
although the CDC refers to these suspected cases of HIV transmission as
“possible” cases, it is obvious from the context of the CDC report that this
does not mean “possible” in the sense that “anything is possible.” In legal
terminology, what the CDC calls “documented” cases, and what the
Appeals Court and petitioner call “confirmed” cases, are on the order of
“beyond a reasonable doubt,” whereas “possible” cases are those in
whichthe preponderance of the evidence suggests that occupational
transmissions of HIV occurred.
18
of local anesthetic, and a sharps injury during
anesthetic administration could have resulted in
contamination of the syringe apparatus with the
dentist’s blood. A sharps injury could also
result in direct contact of the dentist’s blood
with the patient’s inflamed or nonintact oral
tissues during the invasive procedures.
Although the dentist began to routinely wear
gloves in 1987, gloves do not prevent most
injuries caused by sharp instruments.
(126a)
The CDC updated this study in 1993, and concluded
that a sixth patient was also infected with HIV while receiving
care from this dentist. Unlike the other patients, “this patient
had neither dental extractions nor root canal therapy.” (132a)
Other than X-rays and a cleaning, there was only a single
surface restorative filling (131a), just like the “routine
procedure” at issue in this case.
In addition, experts agree that the risk of transmission of
IV _ fr ient tist_i
transmission of HIV from dentist to patient. For example, Dr.
Molinari’s article in the October 1993 issue of the Journal of
the American Dental Association reports: “The risk of
transmitting HIV from patient to HCW [health care worker] is
much: higher than the risk of transmitting from HCW to
patient.” (137a) Dr. Molinari later reiterated his view that
“the danger is much greater for dentists and dental care
workers than it is for patients” (emphasis added). (139a)
Given the documented transmissions of HIV from
dentist to patients while filling a simple cavity and other
“routine procedures,” given that courts are in agreement that
there is a direct threat to patients from HIV infected health
19
care workers, including dentists,15 and given experts’ opinion
that the risk to dentists is much greater than the risk to
patients, it was again reasonable for Dr. Bragdon, or anyone
else, to conclude that filling Ms. Abbott’s cavity near the gum
line would have posed a direct threat to him and his staff.
5. Dr. Bragdon also introduced as evidence an affidavit
from Leon Kelleher, D.D.S. Dr. Kelleher directs a group of
seventeen dentists who treat over 100 HIV-positive patients in
the Chicago area. Dr. Kelleher testified that their “standard
operating procedure is to avoid the use of aerosol producing
instrumentation [i.e., the dentist’s high speed drill] in known
HIV+ cases.” (140a, 143a) According to Dr. Kelleher,
“(p]atients on whom the use of the high speed handpiece lite.
the drill] is unavoidable are done with high volume evacuation
under laminar flow conditions with hood or full face
protection and remote air source for the operator.” (143a) Dr.
Kelleher’s group adopted its protocols because of the results of
a 1991 study conducted by Drs. Johnson and Robinson at
Stanford University School of Medicine. (Id.) Drs. Johnson
and Robinson reported that infectious HIV can be isolated
from aerosols generated from HIV infected blood, and
concluded that
dentists . should avoid techniques which
generate such aerosols . . with patients known
to be infected with HIV. Where such
procedures are unavoidable, personnel should
consider using high efficiency filtration masks
and systems for containing aerosols.
(149a)
15 Ext, Bradley v. Universv of Tex. M.D. Anderson Cancer
Cl. 3 F.3d 922 (“ Cir. 1993), cert. denied, 114 S. Ct. 1071 (1994); _
, 886 F. Supp. 1349 (W. D. Mich. 1995);
Mauro v. Borgess Medical Ctr.
Doe vy. Washington Unix., 780 F. Supp. 628 (E. D. Mo. 1991).
20
Rather than filling Ms. Abbott’s cavity in his
one-dentist office in the outskirts of Bangor, where such high
efficiency filtration devices are not available, Dr. Bragdon
wanted to defer treatment to a local hospital setting, where he
had reason to believe they were available. (10la) This was a
reasonable judgment by a health care professional. Yet,
without a trial, and despite conflicting expert affidavit's
(150a-159a), two courts have now determined as a matter of
law that Dr. Bragdon unlawfully discriminated against Ms.
Abbott. Now pending in District Court is Ms. Abbott's
application as a prevailing party for attorneys fees and
litigation expenses in the amount of $205,190.63. The fact
that Dr. Bragdon may owe over $200,000 for wanting to take
the same precautions as are routinely taken by dentists in big
cities, and that federal courts are in effect compelling him to
take risks at work that other dentists routinely do not, is truly
Orwellian, and deserving of this Court’s attention.
6. In affirming the summary judgment against Dr.
Bragdon, the Appeals Court held that all of the evidence
presented by Dr. Bragdon, taken individually and
cumulatively,16 did not raise a genuine issue for trial. The
16 Dr. Bragdon presented other compelling evidence as well. For
example, he presented the direct affidavit testimony of Sanford F. Kuvin,
MS.. M.D., D.T.M. & H. Dr. Kuvin, whose qualifications under Rule
702 as an expert witness on infectious diseases were not challenged ,
corroborated the sources of information already discussed, and concluded
that there would have been a direct threat to Dr. Bragdon. (150a-160a)
Dr. Kuvin also testified that according to CDC recommendations
regarcing the danger of tuberculosis (“TB”), dentists should decline to
perform aerosol-generating procedures on an HIV-positive patient without
high-efficiency particulate air filtration that was unavailable to Dr.
Bragdon in his office (152a-154a) Using a form of analysis recognized
by the Fourth Circuit in
50 F. 3d 1261 (4 Cir. 1995), and empirical data available to Dr. Bragdon
in 1994, Dr. Kuvin further testified that a conservative estimate of the
risk that a dentist will receive at least one fatal, accidental needlestick,
during 30 years of practice giving approximately one injection per
working day to an HIV infected patient, is one in ten. (154a-156a) For
21
Appeals Court arrived at this result, ostensibly, by attaching a
that
continuing presumption of correctness to the conclusions
it thought were implicit in the 1993 Guidelines. This is what
the 1993 Guidelines actually say:
This document updates previously
published CDC recommendations for
infection-control practices for dentistry (1-3)
and offers guidance for reducing the risks of
workers (DHC Ws) and their patients. . . .
A set of infection-control strategies
common to all health care delivery settings
should reduce the risk of transmission of
infectious diseases caused by bloodborne
pathogens such as HBV and HIV.
For both HBV and HIV, the precise event or
events resulting in transmission of infection in
the dental setting have not been determined; . . .
Additional information is needed for
accurate assessment of factors that may
increase the risk for transmission of bloodborne
pathogens and other infectious agents in a
dental setting.
(182a, 183a, 184a, 199a)
The Court will search in vain in the 1993 Guidelines
(18la-199a) for any more definitive statement of the
significance of the risk to dentists, or of the rationality or
the sake of comparison, the risk of sustaining a fatal, accidental
needlestick, while giving just one injection to an HIV infected patient, is
slightly greater than the risk of having a fatal parachute accident while
skydiving. (16la-162a, 164a, 165a-166a)
22
legal.ty of taking additional precautions while working on
persons known to be HIV positive. In fact, although the
plaintiffs vaunt the significance of the 1993 Guidelines, they
did not cite in their appellate briefs a single word from that
document. Nor, apart from two references in the United
States’ brief to a 1993 CDC article about the risk of
occupational infection in operating and delivery room settings
(also cited by Dr. Bragdon in his brief), did the United States,
Ms. Abbott, or any of their health department amici, cite a
single word from any published CDC source, or even a single
word from any of their own published sources.
The outcome of this case was therefore determined by
the application of an extraordinarily unusual standard of
review at summary judgment, and not by the failure of Dr.
Bragdon to present evidence, including direct expert witness
testimony,17 that would have otherwise entitled him to a trial
under normal summary judgment principles. Cf. Doe vy.
Johnston, 476 N.W.2d 28, 31 (lowa 1991) (materiality of risk
was properly a jury question when conflicting expert
testimony put risk of contracting HIV between 1/100,000 and
1/1,000,000); cf. also Carter v. Temple-Inland Forest Products
Corp., 943 S.W.2d 221 (Tex. App. 1997) (reasonableness of
party’s fear of developing cancer was properly a jury question
when the evidence was that the risk of developing cancer was
between 1/100 to 1/500,000).18
B. _ Ironically, Dr. Bragdon, More Than Ms. Abbott,
17 See note 16 supra.
18 Another clear indication that Dr. Bragdon would have survived
summary judgment on normal summary judgment principles, is that while
the Appeals Court did its best to discount, ignore, and belittle the
evidence presented by Dr. Bragdon, it did not indicate that the outcome
would have been the same under a standard of review more favorable to
him. In light of how narrowly the Appeals Court attempted to write on
the ‘issue of direct threat, the Appeals Court surely would have added
such a proviso if it thought it were true.
23
Must Confront Myth and Prejudice in this Case.
It is sometimes assumed tit among the poorly
educated, there is an irrational fear a. d prejudice that HIV is
easily transmitted. Whether or not this is true, there is most
certainly a myth and prejudice among the well educated,
including those like ourselves who have had friends or
relatives become infected with HIV or die of AIDS. The myth
is that apart from activities like unprotected sex and sharing
dirty needles, science has shown that the risk of transmission
of HIV to be nil, even for dentists working with sharp
instruments in bloody mouths. The prejudice is that dentists
or doctors who think otherwise, or who want to take
significant additional precautions when working with even
small amounts of HIV infected blood, must be ignorant,
ic, stigmatizing, cowardly. unethical, and/or
uncaring
This myth and this prejudice is perfectly exemplified
by a recent cover story on this case in the American Bar
Association Journal, in which the author assumes and/or
implies for his audience that there is clear scientific evidence
of no significant risk to dentists. He writes:
Although # id :; ’
dentists may perceive greater risks of
contracting HIV by coming into contact with a
patient’s blood. A typical dental examination is
a more invasive procedure than a routine
physical exam and often draws blood, even
during routine cleaning. |
(207a - emphasis added) The author, of course, does not
explain what is the “evidence to the contrary,” or in what
medical journal or CDC publication it can be found.
24
The vital point for the Court to understand is that
no-where in the record has the CDC, any of Ms. Abbott's four
experts, or any of the many amici public health organizations,
been able to point to a single, scientific, reasoned analysis that
was available to Dr. Bragdon, concluding that the risk to a
dentist filling a cavity (or performing other procedures which
routinely draw patients’ blood) is insignificant, or that because
of a crisis in the availability or cost of dental care for
HIV-infected individuals, dentists must be compelled by
federal law to perform invasive procedures in their offices on
patients known to be infected with HIV, without taking
significant precautions beyond those recommended by the
CDC for all patients. There is no such analysis. It is a myth
that there is, and this myth serves a political agenda, just as
much as the myth that AIDS is a gay disease serves a differing
political agenda.19
Ms. Abbott herself plays upon this myth by repeatedly
making the fallacious argument that the risk to dentists is nil
because, except for the seven suspected transmissions of HIV
to dental workers documented by the CDC, and the six
transmissions to dental patients also documented by the CDC,
the CDC has never documented another case of HIV
transmission in the estimated over “one billion dental
procedures” performed by “250,000 other dentists” in this
country in “the last fourteen years.” (Appellee's Br. at 8)
But what kind of argument is this, when people can be
25
HIV-positive for many years without knowing it, and the CDC
admits that its passive surveillance system for documenting
HIV transmissions to dentists underreports by as much as
90%? (105a)
Scientifically, the argument is specious, but rhetorically,
it helps reinforce the myth that it is nigh unto impossible to
transmit HIV, outside of unprotected sex and dirty needles.
The truth is, however, a little drop of blood on an open wound
or mucous membrane can transmit HIV, although in light of
the cruelty of many in society to those with HIV, we prefer to
ignore it.20 But this does not mean that the government ought
to be in the business of compelling private health care
providers to act against their reasonable judgments, even if
reasonable health care providers disagree about the
significance of a risk.
‘ Very Bad
C. The Appeals Court’s Decision Sets a
Precedent that Will Have Deleterious Effects On Efforts to
Build an Improved, Coherent Administrative System for
the Regulation of Small But Significant Health Risks.
An expert in administrative law recently observed that
“serious problems currently plague efforts to regulate small,
but significant, risks to our health.” Stephen Breyer, Breaking
the Vicious Circle, 10 (Harvard Univ. Press 1993). The
Appeals Court’s opinion, if left to stand as law, will
exacerbate those problems.
* * * 9 fully by
More precisely, this case is being watched care
state and national public health agencies and health care
providers (180a), including, of course, the many national and
state agencies and associations that filed amicus briefs in the
| The CDC that “visible blood on device” is a significant
ro S ta tisk of TEV infection ion for a health-care worker
following a percutaneous injury. MMWR, vol. 44, no. 50, p. 929-932
(Dec. 22, 1995).
26
Appeals Court. Yet, not a single one of these organizations
referred the Appeals Court to any official published source in
which any of them tried to analyze in an authoritative,
scholarly fashion, the significance of the risk to dentists, and
what, if any regulation, is necessary on account of it. That is
why the Appeals Court was reduced in all honesty to relying
on what it said merely “seem[ed] to be implicit” in the 1993
Guidelines, and a negative inference from the fact that no
public health authority has said “it is unsafe” for dentists.21 In
effect, therefore, some CDC officials have thus far succeeded,
with no meaningful regulatory analysis, to enact and to enforce
a new legal standard whereby a private doctor or dentist shall
no longer follow his or her own reasonable judgment as to the
safety of performing invasive procedures in his or her office.
According to this standard, the doctor or dentist must follow a
majority rule and/or divine what merely seems to be implicit in
non-committal agency guidelines. At the same time, the amici
public health officials have learned that it is unnecessary to
issue clearly reasoned policy directives through publicly
accountable processes, in order to effectuate new and
remarkable policy.
This manner of regulating is the complete antithesis of
the carefully reasoned, scientifically based, multidisciplinary
approach envisioned by the author of Breaking the Vicious
Cycle. The “regulatory process” followed by the CDC in this
case, which is to publish non-committal guidelines, and then
to permit its officials to make ad hoc stronger claims in private
civil litigation, does not engender trust and confidence, but
only brings home a political reality to health care providers
that it is pointless, and even illegal, for them to critically digest
and apply for themselves official sources of information about
HIV found in scientific journals and CDC reports. This
21 The Appeals Court apparently decided to overlook the official
CDC reports relied upon by Drs. Kuvin and Bragdon, as well as OSHA's
conclusion that there is evidence of a significant risk to dentists.
27
dangerous state of affairs should be scrutinized carefully by
the Court.
b. The Issue of the Proper Standard of Review Under
Title III of Private Health Care Providers’ Determinations
of Direct Threat is an Issue of Nationally Reoccurring
Significance.
Ms. Abbott’s experts estimate that approximately one
million individuals in the United States are infected with HIV.
Thousands of times, every day, health care providers of every
sort face the prospect of being vilified if they take significant
additional precautions (which may include the deferral of
treatment to another time or to a different location) when
treating a person known to be infected with HIV. (180a, 200a)
Numerous federal cases have already been filed when health
care providers would not treat an HIV-infected patient without
significant additional precautions, e.g., Srarrow v. Bailey, 910
F. Supp. 187 (M.D. Pa. 1995) (one-day deferral of surgery in
order to obtain protective suits for surgical staff), or
apparently, would not treat a patient at all.22 Surveys show
that many more suits are likely to be filed. (205a-206a)23
Patients and the medical community in every federal circuit
deserve to know how the balance between them will be struck
under the ADA. Will courts defer to reasonable judgments of
private health care providers, even if public health
organizations disagree? Or, if there is room for reasonable
D. III. May 29,
: , AR. v. Kogan, F. Supp. __ (N
1997) 1 906 F. Supp. 317 (E. D. Va. 1995); United
* , 898 F. Supp. 1157 (E. D. La. 1995).
Law Professor Scott Burris of Temple University reports
— are thousands and thousands of cases” of HIV-infected individuals
experiencing what they think is discrimination by dentists. While some
ofthese cases may in fact represent unlawful discrimination, many are
probably cases in which dentists are making reasonable professional
judgments based on current medical knowledge of how HIV can be
transmitted during dental procedures. In any event, the magnitude of the
issue is evident.
experts to disagree, do the views of public health
organizations, such as the CDC, take precedence? And if so,
must these views be based upon critical analyses found in
official writings, or is it enough that they seem to be implicit,
or are put forth for the first time in private civil litigation?
E. Neither Arline, the ADA, Regulations, nor
legislative History, Suggests that Private Health Care
Providers Should Be Held Liable for Making Reasonable
Judgments Based On Then-Current Medical Knowledge.
In deciding that courts should “normally defer to the
reasonable medical judgments of public health Officials,” the
Court in Arline was undoubtedly sensitive to the issue of the
proper role for the reasonable medical judgments of private
health care providers. Arline, 480 U.S. at 288 n. 18 (“we do
not address[] the question whether courts should also defer to
the reasonable judgments of private physicians .. ). This
sensitivity suggests that the Court was concerned with
preserving the exercise of reasonable professional judgment by
private health care providers. The ADA itself contains no
wording to suggest that Congress intended to abrogate the
exercise of reasonable professional judgments by private
health care providers, even when balancing the interests of
disabled persons. The applicable regulation states that when
“determining whether an individual poses a direct threat. a
public accommodation must make an indixidualized
assessment n nable j t....” 28CF.R. §
36.208(c) (emphasis added). This seems literally to
contemplate the exercise of reasonable professional judgment
by private persons who provide public accommodations. The
legislative history of the “direct threat” provision in title III of
the ADA states that that “provision is identical to one added in
the employment section [i.e., title I of the ADA], and the
discussion of this issue there applies here as well.” H.R. Rep.
29
U.S.C.C.AN. at 457. That brings the Court back to Arline,
. as * 3
ith nothing in this circle of authorities to suggest
pa may be liable under the ADA for making a reasonable
judgment based on then-current medical knowledge.24
F. The Decision by the Appeals Court is Literally
Dangerous as a Matter of Public Health Policy.
Dr. Bragdon’s view, which was a matter of =
record before this lawsuit began, is that Maine, like 0 *
places, should invest the resources necessary to 2 5
designated HIV/AIDS clinics which include comprehensiv
dental care.25 (168a-169a) That way, in Dr. . e 8
opinion, “[w]e can help provide the bes: possible are yr
for HIV/AIDS patients while at the same time providing the
maximum protection to the uninfected citizens of Maine.
(169a)
Although anecdotal, there has already been a Ar x-
example of the danger of taking away the right of a
professional to exercise reasonable judg nent when 3 a
person known to be infected with HIV. Approximately one
24 Ironically, the First Circuit has decided that the intent 2 the
ADA to codify Arline suggests that the burden is on plaintiffs show
i * Inc., 110
that do not pose a direct threat. 22 .
3 143 (1" Cir. 1997). If the First Circuit is correct in Amego,
then the decision in Abbott . Bragdon conflicts with Arline, and the
should revi is case on that basis alone. |
a Cf 1 654 N. V. S. 2d 822, 823 a 2
dentist who HIV i intiff referral to clinic w
ist who offered HIV infected plaintiff re
— in the treatment of HIV positive patients, and who oer
that in his professional judgment, these “clinics offered precautions —
accommodations beyond the minimum standards prescribed by
{CDC},” was not liable for discrimination based on HIV status).
30
year ago, Dr. Bragdon was contacted by a dentist who was
presented with an apparently asymptomatic patient infected
with HIV. Dr. Bragdon nevertheless urged his colleague to
take extra precautions by deferring treatment until additional
medical tests could be conducted on the patient. Although Ms.
Abbott’s experts would argue that such precautions are
unnecessary, it turned out that, unbeknown to this patient, the
state of his immune system had recently deteriorated
substantially, and according to the patient’s doctor, if the
dentist had simply done the dental work that day, it may well
have been fatal. Many years ago, before Dr. Bragdon started
dental school, he saved the life of a laboratory technician
handling a deadly chemical warfare agent by insisting on the
additional precaution of double gloving, when that was not the
standard protocol. Even health care providers specifically
preferred by HIV-infected patients take significant additional
precautions to protect themselves.26 Thus, in a literal sense,
the Appeals Court opinion is dangerous to patients and to
health care workers who will undoubtedly be discouraged
from deferring non-emergency treatment to settings where
maximum precautions may be taken.
Finally, it is important to note that the Appeals Court’s
argument in its footnote 4, that this case does not address the
issue of whether it is illegal for dentists to take additional
precautions, is logically mistaken, and distorts Dr. Bragdon’s
argurnents below. Contrary to the Appeals Court's premises
in footnote 4, Dr. Bragdon did not claim the right to deny
entirely routine dental treatment to patients with HIV, and he
did not argue that his offer to treat Ms. Abbott in a hospital
was “gratuitous.” Instead, Dr. Bragdon maintained that under
the ADA, whether the risk in a hospital setting would have
been significantly less is legally irrelevant, provided he made
an objectively reasonable judgment that there would have been
a direct threat in his office. He explained:
26 See confidential document lodged with the Court.
31
It is Dr. Bragdon’s view that, legally, he had no duty to
fill the cavity in his office, and whether he had a legal duty to
fill it in a hospital is irrelevant. Ethically, however, Dr.
liev t a duty t , He
therefore offered to treat her in a hospital setting where he
believed he could most fully mitigate the risk, and where he
would be more confident and comfortable.
(Appellant’s Br. at 36-37)
The Appeals Court’s statement that it is not addressing
the legality of additional precautions, which it added in an
errata sheet issued the day after Dr. Bragdon s petition for
rehearing was denied, is simply an attempt, like the final
sentence of the opinion, to write more narrowly than the case
deserves, and very much more narrowly than this case is being
received by millions of Americans. For if Dr. Bragdon did not
even manage to raise a genuine issue of direct threat, on what
legal grounds are other health care providers able to justify the
taking of any significant additional precautions with persons
known to be infected with HIV, such as, for example,
deferring treatment to specialized locations outside the office,
deferring treatment in order to obtain temporary, specialized
equipment in the office, or deferring treatment to special times
and/or permanent locations inside the office?
CONCLUSION
WHEREFORE, Dr. Bragdon. requests that the Court
agree to review the questions presented in this case.
Respectfully submitted,
John W. McCarthy
RUDMAN & WINCHELL
84 Harlow Street/Bangor,Me 04402-1401
UNITED STATES COURT OF
APPEALS
FOR THE FIRST CIRCUIT
No. 96-1643
SIDNEY ABBOTT, ET AL.,
Plaintiffs, Appellees,
V.
RANDON BRAG DON, D. VI. D.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT
COURT
FOR THE DISTRICT OF MAINE
Hon. Morton A. Brody, U.S. District Judge}
Before
Selya, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Stahl, Circuit Judge.
John W. McCarthy, with whom Brent A. Singer
and Rudman & Winchell were on brief, for defendant.
Peter _M. Sfikas, Mark S. Rubin and Jill A.
Wolowitz on brief for American Dental Ass'n, amicus
2a
curiae.
Bennett II. Klein and David G. Webbert, with
whom Gay and Lesbian Advocates and Johnson, Webbert
& Laubenstein were on brief, for plaintiff Sidney Abbott.
John E. Carnes, Commission Counsel, on brief for
intervenor-plaintiff Maine Human Rights Commission.
Samuel R. Bagenstos, Attorney, U.S. Dept. of
Justice, with whom Deval L. Patrick, Assistant Attorney
General, and Jessica Dunsay Silver, Attorney, were on
brief, for intervenor-plaintiff United States of America,
amicus curiae.
Robert Greenwald and AIDS Action Committee
on brief for R. I. Dept. of Pub. Health, Bureau of Health of
the Me. Dept. of Human Servs., American Pub. Health
Ass'n, Ass'n of State and Territorial Dental Dirs., and
Ass'n of State and Territorial Health Officials, amici
curiae.
Donna Levin on brief for Mass. Dept. of Pub.
Health, amicus curiae.
March 5, 1997
SELYA, Circuit Judge. In this case of first
impression, the district court granted summary judgment
in favor of plaintiff-appellee Sidney Abbott, an
HIV-positive woman, on her claim that
defendant-appellant Randon Bragdon, a dentist, violated
the Americans with Disabilities Act (the ADA) by refusing
to treat her in his dental office.! Dr. Bragdon appeals.
l Though we write for simplicity's sake as if Ms.
Abbott were the sole plaintiff, we note that the federal
3a
Because we agree with the district court that Mis. Abbott
is disabled within the purview of the ADA and —
providing routine dental care to her (i. e., filling a cay ity)
would not have posed a direct threat to Dr. Bragdon's
health or safety, we affirm.
UND
’ musa events giving rise to this litigation are
straightforward. On September 16, 1994, Ms. Abbott
arrived at Dr. Bragdon's office in Bangor, Maine for a
scheduled appointment. On her patient be pence
form, she indicated that she was infected with the HI
virus. People may be HIV-positive for years wees
manifesting the set of symptoms commonly known as
AIDS, and Ms. Abbott was asymptomatic at the time.
Dr. Bragdon performed a dental
examination and discovered a cavity. He told Ms. ——
that, pursuant to his infectious disease policy, he woul
not fill her cavity in his office, but would only treat her in
a hospital setting. Though he would charge his regular
fee, she would have to bear the additional cost of
whatever the hospital charged for the use of its facilities.
Ms. Abbott refused the offer and instead filed a complaint
under the ADA. See 42 U.S.C. § 12182(a) (1994).
After pretrial discovery concluded, the
’ the Maine Human Rights Commission
— 22 below. We note, too, that Ms. Abbott
prevailed upon a parallel claim under the Maine Human
Rights Act (MHRA), 5 Me. Rev. Stat. Ann. tit. 5, § 4592 —
1989). Interpretation of both the ADA and the MHRA
in hand,” v. Guilford of Me., Inc.,
are Fs aan (ist Cir. ei. 96-1796, slip op. at 6},
and the parties here do not suggest any distinction between te
two statutes that might affect this appeal. Consequently, we
need not discuss the MHRA further.
4a
parties eross- moved for summary judgment. The district
court ruled that Ms. Abbott was substantially limited in a
— life „ (reproduction) and thus was disabled
or purposes of the ADA. See Abbott v. Bragdon, 912 F.
Supp. 580, 587 (D. Me. 1995). The court then concluded
that the relatively routine treatment needed by Ms
Abbott could be delivered safely in Dr. Bragdon's office.
See id. at 591. Consequently, the court granted Ms
Abbott's motion for summary judgment. See id at
595-96. This appeal followed. *
II. THE SUMMARY JUDGMENT STANDARD
The Civil Rules authorize federal courts to
grant summary judgment only when "there is no genuine
issuc as to any material fact and . . . the moving party is
entitled to judgment as a matter of law." Fed. R. Civ. P
56(c). Confronted with a properly documented motion
for brevis disposition, the nonmovant must establish the
existence of a fact that is both genuine and material in
order to ward off the entry of an adverse judgment. See
* v. Liberty Lobby, Ing, 477 U.S. 242, 248
( ); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (Ist
Cir. 1990). Appellate review of the district court's award
of summary judgment is plenary, and, in keeping with
this standard, we are not wedded to the district court's
rationale but may affirm on any alternative ground made
manifest by the record. See Hachikian v. E I
502, 504 (Ist Cir. 1996). oe ge g cee
In assaying the record, we are gui
the same tenets that guided the lower court. A ogous 5
duty bound to indulge all reasonable inferences in favor
of the party opposing summary judgment. See id. This
generous outlook notwithstanding, we must disregard
improbable or overly attenuated inferences, unsupported
conclusions, and rank speculation. See Smith v. F.W
Morse & Co., 76 F.3d 413, 428 (ist Cir. 1996);
Sa
Medina-Munoz v. R. J. Reynolds Tobacco Co., 896 F.2d 5,
8 (Ist Cir. 1990).
III. THE QUESTION OF DISABILITY
ne ADA sends a clear message to those
who operate places of public accommodation: you may
not discriminate against individuals in the full and equal
enjoyment of services on the basis of a disability. See 42
U.S.C. § 12182(a). Although a dental office qualifies as a
place of public accommodation, see id. § 12181(7)(F); see
also 28 C.F.R. § 36.104 (1996), the ADA protects only
disabled patients against discrimination, and any attempt
to invoke the ADA against a practicing dentist must start
with an investigation into the patient's status. We turn,
then, to the question of whether Ms. Abbott, who was
infected with HIV but was asymptomatic, had a disability
cognizable under the ADA.
This question is first and foremost a
question of statutory construction which we review de
novo. See Strickland v. Commissioner, Me. Dept. of
Human Servs., 96F .3d 542, 545 (Ist Cir. 1996). In all such
cases, we begin with the words of the statute, and we
approach them with an understanding that our role is not
to set public policy, but, rather, to discern the legislature's
will. See, e.g., United States v. Gibbens, 25 F.3d 28, 33
(Ist Cir. 1994).
A. .
Disability is not a unitary concept under the
ADA. Instead, the statute limns three subsets of
disability, any one of which is sufficient to trigger the
act's protections. In this regard, the ADA states:
The term "disability" means, with respect to an
individual (A) a physical or mental impairment
that substantially limits one or more of the major
life activities of such individual; (B) a record of
such an impairment; or (C) being regarded as
6a
having such an impairment.
42 U.S.C. § 12102(2). This case, as Ms. Abbott postures it,
implicates the first subset of the statutory definition.2
Thus, she must prove three things: first, that she has a
"physical or mental impairment"; second, tet this
impairment adversely affects "a major life activity"; and
third, that it does so to a significant extent (or, put more
precisely, that the impairment "substantially limits” her
ability to engage in the particular major life activity).
B. The Impairment.
The plaintiff easily clears the first hurdle.
We hold unhesitatingly that HIV-positive status,
simpliciter, whether symptomatic or asymptomatic,
comprises a physical impairment under the ADA.
Regulations issued by the Equal Employment
Opportunity Commission (the EEOC) implementing Title
Ill of the ADA explicitly support this conclusion, see 28
C.F.R. § 36.104 (1996) (stating that the phrase "physical
impairment" includes HIV); judicial authority buttresses
this conclusion, see, e.g., Gates v. Rowland. 39 F.3d 1439,
1446 (9th Cir. 1994); Doe v. Garrett, 903 F.2d 1455, 1459
(11th Cir. 1990), cert. denied, 499 U.S, 904 (1991); and Dr.
Bragdon does not seriously advocate an antithetical view.
C. The Major Life Activity.
Moving to the second hurdle, Ms. Abbott
cites reproduction as her affected major life activity. The
court below accepted this asseveration. See Abbott, 912
2 The United States asserts that Ms. Abbott also is
disabled under the third subset because society commonly
regards individuals who are infected with HIV as having
substantially limiting impairments. See generally Cook v.
t ep't of Mental tard. „ 10
F.3d 17 (Ist Cir. 1993) (discussing application of the regarded
as" language). We need not reach this contention.
7a
F. Supp. at 587. Dr. Bragdon's rebuttal is twofold. In the
first place, he disputes that reproduction properly can be
characterized as a major life activity. In the second place,
he asserts that even if reproduction so qualifies in
general, there is nonetheless an unresolved issue as to
whether it qualifies in Ms. Abbott's particular case. We
address each of these assertions.
1. Reproduction Writ Large. The question
of whether reproduction in large constitutes a major life
activity under the ADA is not free from doubt. The ADA
itself does not define the term "major life activities," and
the few available judicial precedents reveal divergent
opinions. Compare Pacourek v. Inland Steel Co,, 916 F.
Supp. 797, 804 (N. D. Ill. 1996) (finding that reproduction
is a major life activity) and Erickson v. Board of Govs. of
State Colleges, 911 F. Supp. 316, 323 (N.D. Ill. 1995)
(same) and Cain v. Hyatt, 734 F. Supp. 671, 679 (E.D. Pa.
1990) (same) with Krauel v. lowa Methodist Med. Ctr., 95
F.3d 674, 677 (8th Cir. 1996) (holding that reproduction is
not a major life activity) and Zatarain v. WDSU-TV, I ne:
881 F. Supp. 240, 243 (E. D. La. 1995) (same). Still, it is
clear that Ms. Abbott's HIV-positive status has a
profound impact upon her ability to engage in intimate
sexual activity, gestation, giving birth, childrearing, and
nurturing familial relations. Our society has long
recognized the fundamental importance of each element
of this cluster of activities, and our jurisprudence reflects
this bias. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651
(1972) (terming the rights to conceive and raise children
essential,“ "basic civil rights,“ and rights that are "far
more precious . . . than property rights") (citations and
internal quotation marks omitted). Viewed against this
backdrop, we think it is highly likely that Congress
accorded comparable importance to these activities when
it authored the ADA.
8a
The statute's text appears to bear out this
intuition. Because the term "major life activities" is not
defined in the enactment, we are obliged to construe it in
accordance with its natural (that is, ordinary) meaning.
See Bailey v. United States, 116 S. Ct. 501, 506 (1995);
Smith v. United States, 508 U.S, 223, 228 (1993). The
Court haslooked to familiar dictionary definitions in
similar situations. See, e.g., Bailey, 116 S. Ct. at 506;
Smith, 508 U.S. at 229. Following that model here lends
support to the classification of reproduction as a major
life activity. The plain meaning of the word "major"
denotes comparative importance. See, e.g., The American
Heritage Dictionary of the English Language 1084 (3d ed.
1992) (listing greater than others in importance or
rank" as the initial definition of major“); Webster's
Ninth New Collegiate Dictionary 718 (1989) (defining
"major" as “greater in dignity, rank, importance, or
interest"). These definitions strongly suggest that the
touchstone for determining an activity's inclusion under
the statutory rubric is its significance — and reproduction,
which is both the source of all life and one of life's most
important activities, easily qualifies under that criterion.
The origins of the ADA's language
reinforce this conclusion. Congress lifted the term
"major life activities" from the Rehabilitation Act of
1973, which used it in defining an "individual with
handicaps." See 29 U.S.C. § 706(8)(B) (1988). In that
milieu, the term was accorded "a broad definition, one
not limited to so-called traditional handicaps.“ School
Bd. of Nassau County v. Arline, 480 U.S. 273, 280 n.5
(1987). In transplanting this combination of words from
the soil of the Rehabilitation Act to that of the ADA,
Congress specifically directed retention of the original
meaning. See 42 U.S.C. § 12201(a) (1994). Had Congress
sought to confine the definition of disability narrowly, it
9a
surely would have written new, more restrictive language
instead of borrowing a descriptive phrase notable for its
breadth. See Doe v. Kohn Nast & Graf, P.C., 862 F.
Supp. 1310, 1320 (E.D. Pa. 1994). It would be wholly
inconsistent with this history to hold that Congress did
not envision reproduction as a major life activity.
In addition to the language of the ADA and
the historical antecedents of that language, we are guided
by the regulations, which define "major life activities" to
mean] functions such as caring for oneself, performing
manval tasks, walking, seeing, hearing, speaking,
breathing, learning, and working." 28 C.F.R. § 36.104
(1996).3 As the regulation itself clearly indicates, this
enumeration is not meant to be exclusive, and
reproduction — one of the most natural of endeavors - fits
comfortably within its sweep. Furthermore, the portion
of the regulations which defines physical impairments to
include physiological disorders affecting the reproductive
system, 28 C.F.R. § 36.104 (1996), militates in favor of the
same outcome. From the scope of the latter regulation,
we deduce that its drafters considered reproduction to be
a major life activity - otherwise, including reproductive
disorders among the regulation's roster of physical
impairments would not have made much sense. See
Pacourek, 916 F. Supp. at 1404-05. oi
The appellant resists this conclusion. The
regulation itself includes no general adage to aid courts in
determining what constitutes a major life activity, and he
3 This phraseology is copied verbatim from 45 C.F.R.
84.3(j)(2)(ii) (1996), a regulation implementing *
Rehabilitation Act of 1973. Because that regulation was
drafted with congressional oversight and approval, see Arline,
480 U.S. at 279-80, the definition merits particular deference.
See Consolidated Rail Corp. v. Darrone, 465 U.S. 6
22 solidated Pp 5 U.S. 624, 634
10a
invites us to adopt a limiting principle which will
preclude a finding that reproduction qualifies. In his
view, major life activities do not embody lifestyle choices,
or, as he puts it, “activities that many people decide never
to do.“ This proposition has a modicum of decisional
support. See Krauel v. lowa Methodist Med. Ctr., 915 F.
Supp. 102, 106 n.1 (S.D. Iowa 1995) (Some people choose
not to have children, but all people care for themselves,
perform manual tasks, walk, see, hear, speak, breathe,
learn, and work, unless a handicap or iliness prevents
them from doing so.“), aff'd, 95 F.3d 674 (8th Cir. 1996).
In addition, courts have used other formulations en route
to concluding that reproduction is unlike the activities
listed in the regulation and, therefore, not a major life
activity. See, e.g., Krauel, 95 F.3d at 677 (emphasizing
that the plaintiff "has the ability to care for herself,
perform manual tasks, walk, see, hear, speak, breathe,
learn, and work" and is therefore not disabled); Zatarain,
881 F. Supp. at 243 (distinguishing reproduction from
major life activities based on frequency of performance).
We do not find any of these formulations
persuasive. In Krauel, the Eighth Circuit did not go
beyond the activities explicitly included in the regulation
and thus effectively treated the list as exclusive, not
illustrative. Since the plain language of the regulation
counsels otherwise, we are disinclined to emulate that
example. The approaches taken by the Zatarain court
and the district court in Krauel are no more attractive; in
contradistinction to those courts, we see no reason why an
activity must be performed either frequently or
universally before it can be classified as a major life
activity. There is no evidence that Congress intended
either frequency or universality to operate as a restriction
on the definition of major life activities.“ Indeed, the
activities explicitly enumerated in the regulation are not
wholly characterized by frequency and universality;
learning — even in a broad sense — is for many adults not a
part of daily life, and work is certainly not universal (as
the lives of some of the very rich and some of the very
poor demonstrate). The view from the other end of the
spectrum bolsters this conclusion; neither lack of
frequency nor lack of universality diminishes the
fundamental importance of conceiving, childbearing, and
raising a family.
This leaves us with the bare bones of Dr.
Bragdon's thesis: that reproduction cannot be considered
a major life activity because it is at bottom a lifestyle
choice. That emaciated argument lacks force. To treat
reproduction as a lifestyle choice, and no more, is merely
an exercise in semantics. Most acts that human beings
perform — or refrain from performing — have elements of
volition. Speaking is undoubtedly a major life activity,
but there are those (say, monks who have taken vows of
silence) who choose to eschew it.
Though the question is very close, we think
it must be resolved favorably to Ms. Abbott.
Reproduction (and the bundle of activities that it
encompasses) constitutes a major life activity because of
its singular importance to those who engage in it, both in
terms of its significance in their lives and in terms of its
relation to their day-to-day existence. Mindful of this
reality, and honoring what we believe to be Congress'
intent, we hold that reproduction is a major life activity
within the meaning of the ADA.
2. Reproduction Writ Small. Dr.
Bragdon's fallback position is that Ms. Abbott is not
disabled within the purview of the ADA unless
reproduction is a major life activity for her. He then
endeavors to use this position to defeat summary
judgment, maintaining that a fact finder, drawing
12a
defendant-friendly inferences from the summary
judgment record, would confront a genuine issue as to
whether giving birth and raising a child is so important to
Ms. Abbott as to constitute one of her major life activities.
The premise on which Dr. Bragdon's
argument depends is of uncertain reliability. Though it is
true that analysis under the first subset of the ADA's
definition of disability — a physical or mental
impairment that substantially limits one or more of the
major life activities of {the plaintiff]"" — calls for an
individualized inquiry into whether the plaintiff is
disabled, see 29 C.F.R. Pt. 1630, App. § 1630.2(j) (1996)
(noting in the context of the ADA's employment
discrimination regulations that "[s]ome impairments may
be disabling for particular individuals but not for
others"); Katz v. City Metal Co., 87 F.3d 26, 32 (Ist Cir.
1996); Ennis v. National Ass'n of Business & Educ. Radio,
Inc., 53 F.3d 55, 59 (4th Cir. 1995), the need for this
case-by-case analysis of disability does not necessarily
require a corresponding case-by-case inquiry into the
connection between the plaintiff and the major life
activity. By way of example, it might be enough for a
court to consider only whether a given impairment
substantially limits a particular plaintiff without
considering whether the activity is of particular import to
her. Be that as it may, the question is not dispositive here
(nor will it be in many cases), and the most efficient way
to decide this appeal is simply to postpone a definitive
answer and assume, favorably to the appellant, that a
plaintiff claiming a disability under the ADA must show a
nexus between her impairment and the major life activity
that she asserts has been substantially limited.
Even accepting arguendo that reproduction
is nut a major life activity for one with no interest in
bearing children, the determination of whether
Ja
reproduction is a major life activity in a particular case
does not automatically become a jury question. Cf.
Medina-Munoz, 896 F.2d at 8 (noting that even "elusive
concepts such as motive or intent" sometimes can be
decided on summary judgment). Here, drawing all
reasonable inferences in the manner most helpful to Dr.
Bragdon, a fact finder could reach no conclusion other
than that reproduction, if a major life activity at all,
constitutes such for Ms. Abbott. We explain briefly.
Ms. Abbott's testimony on this point is
uncontradicted:
have made the decision after I tested positive [for
HIV] not to have children because of the risk of
infecting the child and the risk of impairing my
own immune system, and also the fact that this
baby probably wouldn't have a mother after a
while.
Dr. Bragdon offers no substantial rebuttal to Ms.
Abbott's assertion that HIV ended her consideration of
having a family, but instead asks us to doubt her
sincerity. In his most telling sortie, he stresses the fact
that, during her deposition, Ms. Abbott replied "no"
when asked, "Are you impaired in your ability to carry
out any of your life functions by the fact that you are HIV
positive?" We do not believe that a j-arty's response to a
question about "life functions“ — a phrase not used in
ordinary parlance to refer to reproduction — can fairly be
read as a direct contradiction of her unequivocal
Statements about her reasons for not bearing children.
Dr. Bragdon has offered no other evidence suggesting
that, short of her HIV infection, Ms. Abbott would have
elected to remain childless. In the absence of specific
discrediting evidence, a party cannot derail summary
judgment by the primitive expedient of insisting that his
Aa
opponent's evidence should be disbelieved. See Grubb v.
KMS Patriots, L.P., 88 F.3d 1, 4 (Ist Cir. 1996).
To say more at this point would be
supererogatory. Because uncontradicted evidence
establishes that reproduction is a major life activity for
Ms. Abbott, the second element of her case is firmly in
place.
D. The Limitation.
We turn now to the final hurdle that blocks
Ms. Abbott's path. At this hurdle, the parties joust over
whether Ms. Abbott's HIV infection substantially limits
her major life activity of reproduction. Under the
applicable regulation, a person's major life- activity is
"substantially limited" if it is “restricted as to the
conditions, manner, or duration under which [it] can be
performed in comparison to most people.“ 28 C.F.R. Pt.
36, App. B § 36.104 (1996). Dr. Bragdon concedes that an
HIV-positive pregnant woman faces an approximately
25% risk of transmitting the virus to her child without
AZT therapy and an 8% risk of viral transmission with
such therapy. He strives to persuade us, however, that
there is an unresolved issue, sufficient to preclude
summary judgment, as to whether HIV substantially
limits Ms. Abbott's reproductive activity. In other words,
he claims that on the record sub judice, a jury reasonably
could find that the stated degree of risk does not
substantially limit this infected person's ability to
reproduce.
We are unconvinced. No reasonable juror
could conclude that an 8% risk of passing an incurable,
debilitating, and inevitably fatal disease to one's child is
not « substantial restriction on reproductive activity. Cf.,
e.g., 29 C.F.R. Pt. 1630, App. § 1630.2(j) (1996) (stating in
the ADA's employment discrimination regulations that
"lo|ther impairments, however, such as HIV infection,
Sa
are inherently substantially limiting“). In addition, Ms.
Abbott faces the unfortunate reality that even if she gives
birth to a healthy child, she probably will not live long
enough to complete the task of raising the child to
adulthood. We thus hold that HIV-positive status is a
physical impairment that substantially limits a fecund
woman's major life activity of reproduction. Ms. Abbott
therefore is disabled within the purview of the ADA.
We add a final observation. As we noted
earlier, our mission in cases of statutory construction is to
discern the legislature's intent. The result that we reach
here comports with evidence in the legislative archives
that Congress deemed HIV infected individuals to be
disabled under the ADA, See H.R. Rep. No. 101
485(111), at 28 n.18 (1990), reprinted in 1990
U.S. C. C. A. N. 445, 451 n.18 ("Persons infected with the
Human Immunodeficiency Virus are considered to have
an impairment that substantially limits a major life
activity, and thus are considered disabled under th{e] first
test of the definition."). Moreover, the ADA's precursor,
the Rehabilitation Act, had been construed by the
Department of Justice (DOJ) to protect persons infected
with HIV from discrimination; in enacting the ADA,
Congress endorsed the DOJ's view, noting that "a person
infected with [HIV] is covered under the first prong of the
definition of the term disability“ becnuse of a substantial
limitation to procreation and intimate sexual
relationships.“ H.R. Rep. No. 101-485(I1), at 52, 1990
U.S. C. C. A. N. 303, 334; see also S. Rep. No. 101-116, at 22
(1989). This legislative history thus independently
bolsters our conviction that Ms. Abbott is disabled under
the ADA.
IV. THE DIRECT THREAT QUESTION
Under the ADA, a place of public
accommodation must extend its services to all disabled
16a
persons without reference to their disabilities, subject to
certain carefully circumscribed exceptions. See 42 U.S.C.
§ 12182(a). By virtue of one such exception, a covered
service provider need not deal with an individual who
„poses a direct threat to the health or safety of others.“
42 U.S.C. § 12182(b)(3). The term “direct threat“ is
defined by the statute; in this context it contemplates the
existence of “a significant risk to the health or safety of
others that cannot be eliminated by a modification of
policies, practices, or procedures or by the provision of
auxiliary aids or services.“ Id.4
Dr. Bragdon seeks safe harbor under this
exception, asserting that requiring him to treat Ms.
Abbott would pose a direct threat to his health. His
argument envisions that to fill Ms. Abbott's cavity, he
would need to inject a local anesthetic into her mouth and
drill the decayed tooth. These procedures, he says, create
an undue risk of HIV transmission both through
needlestick and through the spattering of blood and
bloody saliva.
4 It is important to note that Dr. Bragdon does not
argue that his offer to treat Ms. Abbott in a hospital setting is
a practice modification that would eliminate the claimed
threat to his health. He did not endeavor to prove in the court
below that hospital treatment was significantly safer than
office treatment, and he makes no such argument to us. He
argues instead that he had no duty to treat her in his office and
that his offer to treat her in a hospital was gratuitous (and,
therefore, legally irrelevant). Dr. Bragdon claims the right to
deny entirely routine dental treatment to patients with HIV,
and his defense must stand or fall on the correctness vel
non of that thesis. It is only that claim which we consider
here. Thus, this case does not address whether it is illegal
under the ADA for dentists to take additional precautions
when treating HIV-infected patients.
17a
A court's goal in conducting a direct threat
analysis under the ADA is to achieve a responsible
balance, protecting service providers and other places of
accommodation from enforced exposure to unacceptable
health and safety risks while at the same time protecting
disabled individuals from discrimination that is rooted in
prejudice or baseless fear. See Arline, 480 U.S. at 287.
EEOC regulations drawn from the Court's seminal
opinion in Arline guide this analysis:
In determining whether an individual poses a direct
threat to the health or safety of others, a public
accommodation must make an individualized assessment,
based on reasonable judgment that relies on current
medical knowledge or on the best available objective
evidence, to ascertain: the nature, duration, and severity
of the risk; the probability that the potential injury will
actually occur; and whether reasonable modifications of
policies, practices, or procedures will mitigate the risk.
28 C.F.R. § 36.208(c) (1996); see also Arline, 480 U.S. at
287-88 (discussing essentially the same factors).
Of course, any inquiry along these lines
depends in one sense on what information permissibly
may be weighed in the balance and in another sense on
the extent to which particular kinds of evidence should be
assigned extra weight (or, perhaps, decretory
significance). Thus, before evaluating the medical
evidence proffered by the parties, we must determine (1)
the relevancy, if any, of subsequent medical knowledge
(that is, medical evidence not available in September 1994
when Dr. Bragdon refused to treat Ms. Abbott), and (2)
the degree of deference, if any, due the judgments of
public health officials.
A. *
The ſirst of these excursions need not detain
us. The applicable regulations instruct that a judgment
on the presence or absence of a direct threat must be
predicated on "current medical knowledge or on the best
available objective evidence,“ 28 C.F.R. § 36.208(c) (1996)
(emphasis supplied), and, hence, point unwaveringly
toward confining medical evidence to that available at the
time a dentist or other health-care professional refuses to
treat. This principle that neither the service provider
nor the prospective recipient of the service may prove or
disprove the direct threat defense by relying on medical
evidence not available when treatment was refused — is
sound policy. Under such a regime, the service provider
retains the opportunity to prove that he made an
appropriate determination of the existence of a direct
threat based on the evidence available when he made the
decision to withhold his services. This is sound policy
because, while health-care providers can be expected to
maintain a working knowledge of currently accepted
thinking in their fields, they cannot be expected to
anticipate either future scientific advances or the
emerging wisdom of public health organizations. In
short, by holding covered service providers to an
objective standard featuring the best evidence available at
the time they refuse to render treatment to disabled
persons, the ADA holds the delicate balance between
sometimes conflicting rights steady and true.
This approach is also scrupulously fair. To
punish providers when they satisfy an objective standard
based on the best evidence available at the time of their
decisions would be to punish them for a lack of
clairvoyance. By the same token, to hold providers
harmless after they have refused treatment based on
nothing more than unfounded trepidation would run at
cross-purposes with the central theme of the ADA.
Fundamental fairness insists that providers in such
circumstances ought not to be entitled to rely on
19a
subsequent understandings to shield them from the
condign consequences of discriminatory conduct.s Cf.
McKennon . Nashville Banner Pub. Co., 115 S.Ct. 879,
885 (1995) (holding that an employer in an employment
discrimination case may not justify its conduct based on
evidence that did not motivate it at the time of the
employment decision); North Shore Univ. Hosp. v. Rosa,
657 N.E.2d 483, 486 (N.Y.1995) (evaluating conduct
alleged to be discriminatory under state law based on
accepted medical practice at the time of the alleged
infraction).
B. The Degree of Deference.
The second threshold determination
involves the degree of deference due the medical
judgments of public health authorities. The government
joins Ms, Abbott in arguing for a rule which, if embraced,
would cede great deference to those authorities. They
posit that, in the absence of dissent among public health
authorities, a service provider should be bound to accept
the expressed collective judgment of those authorities
unless he can demonstrate that this judgment is medically
unreasonable. In contrast, Dr. Bragdon asseverates that,
at least in the case of a service provider who is himself a
skilled professional (such as a doctor or dentist), a court
5 Few rules are without exception in extreme cases.
One can conceive of situations in which, after a medical
professional refused treatment but befure trial, there might
occur some medical breakthrough or stunning new CDC
pronouncement that overwhelmingly vindicated the
professional's fears. Especially because decisions in ADA
cases have some forward-looking impact, we do not rule out
the possibility that later occurring events might occasionally
be pertinent. But nothing in the present record suggests any
post hoc scientific revelation warranting a departure from
the usual rule.
20a
should defer to the provider's judgment, as long as it
appears to have been reasonable in light of then-current
medical knowledge.
The question of deference pivots on
language in Arline, where Justice O'Connor, writing for
the Court, stated that in making factual findings of the
sort that are necessary to inform the inquiry into the
existence vel non of a direct threat, "courts normally
should defer to the reasonable medical judgments of
public health officials." 480 U.S. at 288. In crafting
regulations applicable to the ADA, the EEOC treated this
passage from Arline as gospel. See 28 C.F.R. Pt. 36, App.
B § 36.208 (1996) (remarking that the direct threat
regulations codifſy] the standard first applied by the
Supreme Court in [Arline|"’).
We agree that the deference due public
health officials must flow from the quoted passage — but
acknowledging the hegemony of Arline does not signal
automatic victory for Ms. Abbott and the government.
The “defer entirely" formulation that they urge upon us
is totally unprecedented; we have found no case in which
the views of public health authorities are treated with the
solicitude that Ms. Abbott and the government invite. If
adorted, this formulation would come close to making a
consensus among publie health authorities
uncLallengeable by other medical evidence and,
consequently, unreviewable by the courts. Nothing in
Arline demands such obsequious obeisance to public
health authorities or indicates an intention on the Court's
part to consign the medical judgments of private
physicians to some evidentiary Siberia. Instead, the
Court quite clearly left the details of deference for
another day. See, e.g., Arline, 480 U.S. at 288 n.15 (“This
case does not present, and we do not address, the question
whether courts should also defer to the reasonable
21a
medical judgments of private physicians... ."').
Because we are unprepared to say that
medical wisdom resides exclusively in public health
authorities, we reject the idea of a _ conclusive
presumption. The applicable regulations state that
slourees for medical knowledge include guidance from
public health authorities, such as the U.S. Public Health
Service, the Centers for Disease Control, and the National
Institutes of Health." 28 C.F.R. Pt. 36, App. B § 36.208
(1996) (emphasis supplied). This list is plainly
illustrative, not exhaustive, and the use of the verb
include“ indicates to us that other sources of medical
knowledge are within the pale. The statute, the
suggestion implicit in the regulations, and the teachings of
the Court are best synthesized by fashioning a rule which
gives prima facie force to the views of public health
authorities, but which permits a service provider to
challenge those views based on contrary, properly
supported opinions voiced by other recognized experts in
the field (e.g., research studies published in peer-reviewed
journals). Such a rule accords a meaningful degree of
respect to the views of public health authorities,
particularly when those views are unanimous. But the
rule draws a distinction between respect and absolute
capitulation. Under it, the conclusions of public health
authorities may be rebutted by persuasive evidence
adduced from other recognized experts in a given field.6
Treating the presumption of correctness
6 In United States v. Jessup, 757 F.2d 378, 381-84 (Ist
Cir. 1985), then-Judge Breyer distinguished "bursting bubble"
presumptions (which vanish when contrary evidence is
introduced) from "intermediate" presumptions (which remain
available for consideration by the fact finder even after
contrary evidence is introduced). The presumption here is of
the latter stripe.
22a
which attaches to the collective judgment of public health
authorities as rebuttable will not, as the government
intimates, sabotage the statutory scheme. Because the test
for the existence vel non of a direct threat remains an
objective one, a service provider cannot successfully
contradict an achieved consensus simply by proffering an
unsupported opinion. This ensures that, despite the
rebuttable nature of the presumption, the direct threat
defense may not be used to mask prejudice or unfounded
fears. Rather, to frame a genuine issue, an opposing view
must be documented by competent countervailing
evidence that is directly relevant. Speculative inferences,
glancing statistics, unsupported conclusions, and
ruminative surmise will not serve.
C. Applying the Standard.
We turn next to a review of the medical
evidence that was available when Ms. Abbott visited Dr.
Bragdon's office in September 1994. By then, both the
United States Centers for Disease Control and Prevention
(CDC) and the American Dental Association (the
Association) had spoken to the issue of the health risk to
dental workers from patients infected with HIV. The
Association's 1991 Policy on AIDS, HIV Infection and the
Practice of Dentistry stated that:
Current scientific and epidemiologic evidence indicates
that there is little risk of transmission of infectious
diseases through dental treatment if recommended
infection control procedures are routinely followed.
Patients with HIV infection may be safely treated in
private dental offices when appropriate infection control
procedures are employed.
In 1993, the CDC updated its earlier guidelines and
specified a compendium of infection control procedures,
known as the “universal precautions," for use by dental
23a
workers treating HIV-positive patients. See CDC,
Recommended Infection-Control Practices for Dentistry,
1993 (the Recommendations). The CDC took the position
that, when implemented, the prescribed precautions
“should reduce the risk of disease transmission in the
dental environment." Id. at 3. While the guidelines do
not state explicitly that no further risk-reduction
measures are desirable or that routine dental care for
HIV-positive individuals is safe, those two conclusions
seem to be implicit in the guidelines“ detailed delineation
of procedures for office treatment of HIV-positive
patients. See United States v. Morvant, 898 F. Supp.
1157, 1166 (E.D. La. 1995) (concluding that "the
universal precautions as prescribed by the CDC are
universally accepted as ‘reasonable modifications’ of
practices that will significantly mitigate the risk [of HIV
transmission from patient to dentist]").7 Tellingly, no
public health authority has suggested that it is unsafe to
provide routine dental care to HIV-positive patients in a
private office environment. We find therefore, that Ms.
7 In support of her motion for brevis disposition, Ms.
Abbott also presented testimony from Dr. Donz'd Wayne
Marianos, director of the Division of Oral Health at the CDC.
Dr. Marianos stated categorically that "|n]o infection control
procedures beyond the use of universal precautions are
necessary when providing routine denta care to persons with
HIV and AIDS." He also declared that the CDC does not
recommend the use of infection control procedures beyond
those cited in [the Recommendations] for the provision of
routine dental treatment to persons with HIV or AIDS" and
that the risk of HIV transmission from patient to provider [in
such circumstances] is so low as to be unquantifiable." Dr.
Marianos' testimony is of limited value to us in assessing the
medical evidence available to Dr. Bragdon inasmuch as the
record contains no evidence that the CDC had publicly taken
so explicit a position as of September 1994.
24a
Abbott adduced competent evidence of reasonable
medical judgments by public health officials, not
contradicted by other public health authorities, to the
effect that affording routine dental care (such as filling
cavities) to HIV-infected patients in an office environment
does not pose a direct threat to the dentist's health.
The next question is whether Dr. Bragdon
has produced sufficient countervailing evidence that
filling Ms. Abbott's cavity in an office setting would have
constituted a direct threat to his health. In an endeavor
to create a genuine issue of material fact, he cites eight
sources of information which he argues show that
rendering the necessary treatment in his office would
have jeopardized his health.s We examine these sources
to determine if any of them, individually or in the
aggregate, justify denying summary judgment to Ms.
Abbott.
1. Dr. Bragdon notes that the Food and
Drug Administration (the FDA) recommended in 1992
that persons who have had contact with a patient's blood
through needlestick, non-intact skin, or mucous
membranes refrain from donating blood for a year. This
recommendation is clearly insufficient to demonstrate a
direct threat to Dr. Bragdon. To safeguard the integrity
of the blood supply, the FDA may seek to avoid minute
8 Although Dr. Bragdon presented material from a
retained expert, Dr. Sanford Kuvin, he does not claim that Dr.
Kuvin's testimony was based on medical knowledge available
to him on the date he declined to treat Ms. Abbott, and his
brief discusses Dr. Kuvin's testimony in a separate section
devoted to the possibility that evidence available after
September of 1994 might be relevant to the issue. To clinch
the point, Dr. Kuvin's testimony itself relies on a number of
sources not available until 1995 and beyond.
25a
rid and take unusual precautions even in the absence of
actual evidence of danger. It is not surprising, therefore,
that the FDA issued its recommendation without making
any finding that there was a significant risk of
contracting HIV from contact of the type and kind
described. In contrast, to determine whether there is a
direct threat within the purview of the ADA, an inquiring
court must gauge the nature, duration, and severity of the
risk.9 The FDA's recommendation does not advance this
inquiry.
2. Dr. Bragdon refers to a CDC report
documenting forty-two incidents of transmission of HIV
to health-care workers and seven possible transmissions
to dental workers. We deem this data insufficient to
warrant depriving Ms. Abbott of summary judgment.
Evidence of HIV transmission to health-care workers
outside the dental field does not prove a direct threat to a
practicing dentist in the absence of any evidence showing
that the magnitude of risk to a dentist is comparable to
the risk to other health-care workers in other settings.
Nor is such an equivalency obvious; health-care workers
in, say, emergency rooms may be exposed to much larger
needles and more copious quantities of blood than are
common in routine dental practice.
; Generalities about health-care workers
aside, Dr. Bragdon does not cite a single confirmed
instance of HIV transmission to a dentist. He does, of
course, point to seven instances of possible
9 Ther, too, the stakes are different. The only
foreseeable loss from what may be un overabundance of
caution on the FDA's part is some small quantity of donated
blood. Surrendering to stereotypes and unfounded fears when
dealing with disabled persons, however, will subvert Congress“
intent in enacting the ADA.
26a
transmissions" of HIV to dental workers, but mere
possibilities are too speculative to satisfy a litigant's
burden of production at the summary judgment stage.
See Smith, 76 F.3d at 428 (noting that unsupported
speculation must be disregarded at summary judgment);
Medina-Munoz, 896 F.2d at 8 (similar).
3. Dr. Bragdon brandishes a CDC report
telling of the transmission of HIV from a Florida dentist
to his patients. But neither the CDC report nor any other
proffered evidence establishes transmission of HIV from
a_patient to a dental worker. The difference is
meaningful. Dentists have the advantage of equipping
and staffing their offices and dictating the precautionary
procedures that will be utilized during patient
encounters. In contrast, patients have no way of assuring
that any particular risk-reduction measures, much less
the universal precautions recommended by the CDC, are
introduced. Given that dentists are in a superior position
to patients in terms of protecting against infection, a
single report of dentist-to-patient infection cannot
reasonably be taken to suggest a direct threat to dentists
from their patients’ infections.
4. The high-speed drills that dentists use
when filling cavities may also generate aerosol mists of
water, blood, and bloody saliva. Using this datum as a
springboard, Dr. Bragdon jumps to the conclusion that a
study by researchers at the Stanford Medical School,
raising concerns about transmission of HIV when dentists
perform aerosol generating procedures, is sufficient to
defeat summary judgment. See Gregory K. Johnson and
William S. Robinson, Human Immunodeficiency Virus-1
(HIV-1) in the Vapors of Surgical Power Instruments, 33
Journal of Medical Virology 47 (1991). By its own
characterization, however, the Johnson-Robinson paper
is too conjectural to raise a genuine issue of material fact
|
27a
as to whether filling Ms. Abbott's cavity would constitute
a direct threat to Dr. Bragdon's health. The paper notes
that it doles] not quantitate the risk of HIV transmission
. . » by such aerosols," and that 'the large body of
epidemiologic data on prevalence of HIV infections
would suggest that transmission by aerosols is not
common." Id, at 49.
5. Dr. Bragdon points out that the CDC did
not state that it was medically unwise to take additional
precautions with persons known to be HIV-positive. This
observation, while true, gains him little ground. Such
silence on the part of the CDC is at best equivocal; it does
nothing to prove that there is any risk to a dentist in
treating HIV-positive patients. Because the inference that
Dr. Bragdon seeks to draw from the CDC's silence is
wholly conjectural, it cannot figure in the summary
judgment calculus.10 See Smith, 76 F.3d at 428.
6. Dr. Bragdon adverts to the Association's
report that the risk to health-care workers is greater than
the risk to patients. At the same time, he notes, federal
courts have found a significant risk of HIV transmission
frum health-care workers to patients. See, e.g., Bradley v.
University of Tex. M.D. A on Cancer Ctr., 3 F.3d
922, 924 (5th Cir. 1993) (per curiam), gert. denied, 510
U.S. 1119 (1994); Doe v. Washington Unix., 780 F. Supp.
628, 633 (E.D. Mo. 1991). Dr. Bragdon seeks to lace these
findings together to support a conclusion that the risk to
him from treating Ms. Abbott is also significant. The tie
does not bind; this combination produces far too much of
a generalization to have any force in the much narrower
contours of this case.
10 In all events, it is implicit in the 1993 CDC guidelines
that no risk-reduction steps beyond the universal precautions
are necessary to ensure the safety of dentists providing routine
dental care to HIV-positive individuals. See supra p. 24.
28a
Moreover, the federal cases _ involving
transmission of HIV from health-care workers to patients
are inapposite not only because of the asymmetry of
control of risk-reduction measures between health-care
workers and patients, see supra, but also because the
cited cases spring from a context in which any risk at all
to patients is deemed unacceptable. See Washington
Uniy., 780 F. Supp. at 633 ("It is the stated goal of the
medical profession to heal, and its secondary axiom, if
healing is not possible, is not to harm.") Therefore, these
cases do not support a reasoned inference that rendering
routine care to a dental patient infected with HIV
constitutes a direct threat to the dentist's health.
7. Dr. Bragdon states that although he did
his best to comply with the universal precautions, he still
sustained sharp injuries on a regular basis. We believe
that this kind of anecdotal evidence by a dentist who is
not an expert on infectious disease is inadequate to block
summary judgment. See Medina-Munoz, 896 F.2d at 8
(noting that summary judgment may be granted when
opposing evidence is not significantly probative).
Although courts need not defer slavishly to the judgments
of public health officials, see supra Part IV(B), we believe
it would be inconsistent with Arline were courts to credit
lay testimony on matters of public health. See Arline, 480
U.S. at 287-88 (emphasizing the need to protect the
handicapped from unfounded fears).
8. Dr. Bragdon cites a study reporting that
compliance with the universal precautions would reduce
needlestiek exposures by only 62%. See Edward S. Wong
et al., Are Universal Precautions Effective in Reducing
the Number of Occupational Exposures Among Health
Care Workers?, 265 Journal of the American Medical
Association 1123, 1126 (1991). This statistic says nothing
about the initial baseline degree of danger of treatment in
29a
the absence of the universal precautions and thus is
impuissant to prove that a dentist using the CDC's
precautions is directly threatened by treating an
HIV-positive patient.
At this point, we have reviewed all the
proof relevant to direct threat that Dr. Bragdon claims
was available to him in September of 1994. Each piece of
evidence is too speculative or too tangential (or, in some
instances, both) to create a genuine issue of material fact.
This ends our item-by-item explication of the record.
We next consider whether these eight
proffers, in cumulation, possess greater probative force.
This can occur when items of evidence, each insufficient
in itself to prove a particular point, complement each
other, like interlocking pieces of a jigsaw puzzle, in such a
way that they together demonstrate some material fact.
Thus, had Dr. Bragdon cited separate sources of evidence
demonstrating (a) the likelihood of dental needlestick and
(b) the likelihood of a dentist contracting HIV from a
needlestick, these items together possidly would have been
adequate to defeat summary judgment on the direct
threat defense. Or, had he proffered several items of
evidence that each showed a small risk to the health or
safety of others, the aggregate effect of these items might
have sufficed to prove a significant risk and thus to
thwart summary judgment.
Despite the fact that Dr. Bragdon did not
explicitly make a “cumulative proof" argument, we have
spontaneously reviewed the record with this thought in
mind. Having done so, we are satisfied that the
evidentiary proffers canvassed above, insufficient in
themselves, are likewise insufficient in combination to call
into legitimate question the lower court's entry of
summary judgment. In making this evaluation, we
emphasize that, under the ADA, a service provider like
30a
Dr. Bragdon is not entitled to demand absolute safety; he
can rely upon the direct threat defense only in response to
significant risks. Here, Dr. Bragdon has failed to present
meaningfully probative evidence that treeting Ms. Abbott
would have posed a medically significant risk to his
health or safety.
V. CONCLUSION
For the reasons indicated, we rule that Ms.
Abbott's HIV-positive status is a physical impairment
which substantially interferes with her major life activity
of reproduction, and that she is therefore disabled within
the meaning of the ADA. Inasmuch as Dr. Bragdon has
failed to produce sufficient evidence to establish a triable
issue on his direct threat defense, the entry of summary
judgment in Ms. Abbott's favor must stand.
Under ordinary circumstances, we would
go no further. Here, however, we believe that more
should be said. It is sometimes convenient to think of
cases as involving conduct that may be categorized in
terms of polar extremes: reasonable or unreasonable,
praiseworthy or blameworthy, good or evil. But, given
the complexities of the society in which we live, many
decisions resist such facile classification into
black-or-white dichotomies. Such cases are better
characterized in varying shades of gray.
This is such an instance. The litigants’
positions are understandable in human terms and
impertial observers can empathize with both parties.
Still, on the facts of record, the defendant's refusal to
render routine dental care to an HIV-positive patient
offends a duly enacted federal statute and thus cannot be
tolerated by a court of law.
Although we do what we must, we are not
blind to the difficulty of the choices that the ADA compels
health-care professionals such as Dr. Bragdon to make.
30a-la
We also recognize that cases of this kind are necessarily
fact-sensitive; had the patient required more invasive
treatment or had the dentist proffered stronger evidence
of a direct threat, the result may well have differed. In the
same vein, presented with other facts and circumstances
in a future case, perhaps reflecting dramatic
improvements in medical science that substantially
reduce the likelihood of transmitting HIV through
reproduction, we might well reach a different conclusion
than the one that we reach today. Such an ebb and flow
is to be expected, because this is the very nature of the
inquiry that the ADA mandates. We therefore caution
future courts not to read our words more broadly than
the context admits; our decision today eschews a blanket
rule and instead demands case-by-case inquiry into a
service provider's responsibilities to treat HIV-positive
patients.
Affirmed.
312
ORDER AND MEMORANDUM OF DECISION
BRODY, District Judge.
Plaintiff Sidney Abbott, an individual with Human
Immunodeficiency Virus ("HIV") filed this action against
Defendant Randon Bragdon, a dentist with a practice in
Bangor, Maine. Plaintiffs Amended Complaint alleges
violations of title III of the Americans with Disabilities
Act ("ADA" or “title III“) and the Maine Human Rights
Act ("MHRA") based on Defendant's refusal of
treatment in his office. Defendant offered alternative
treatment to Plaintiff in a hospital setting. Plaintiff seeks
injunctive and declaratory relief under the ADA and
MHRA, and civil penal damages under the MHRA. Both
the United States ("Government") and the Maine Human
Rights Commission ("MHRC") have intervened as
Plaintiffs, and all Parties have moved for Summary
Judgment. For the following reasons, the Court grants
Summary Judgment for Plaintiff, and denies Summary
Judgment for Defendant.
Background
The undisputed facts are as follows. Plaintiff
Sidney Abbott has been infected with HIV for the past
nine years. HIV is a retrovirus which causes Acquired
Immune Deficiency Syndrome ("AIDS"). People exposed
to HIV may contract the virus, and if so, will develop HIV
antibodies and become HIV positive. HIV positive status
does not equate with manifest illness. Individuals may
carry HIV for several years without manifesting the
collection of symptoms known as AIDS. During that
period, the HIV carrier remains asymptomatic, meaning
apparently healthy and generally able to participate in
32a
day to day life. Even in the asymptomatic phase,
however, the HIV carrier's blood remains infected with a
multiplying virus that creates abnormalities in that
person's blood and lymphatic systems. To date, Plaintiff
remains asymptomatic.
Defendant, Randon Bragdon, a dentist licensed to
practice in the state of Maine, has operated a dental
practice in Bangor since 1978. In September of 1994,
Plaintiff arrived at Defendant's office for apre-scheduled
dental appointment. On her Patient Registration and
Health Record form, Plaintiff indicated that she had HIV.
Defendant examined Plaintiff and diagnosed a cavity.
Defendant informed Plaintiff that pursuant to his
infectious disease policy, he would not fill her cavity in his
office, but would be glad to treat her in a hospital setting.
Defendant then told Plaintii .hat he would charge her the
standard fee for filling a cavity as well as what the
hospital charged for use of its facilities.
With respect to the ADA, the Parties dispute (1)
whether Plaintiff's asymptomatic HIV constitutes a
disability under the statute, and (2) whether treatment of
Plaintiff in Defendant's office poses a direct threat to the
health and safety of others such that Defendant may
lawfully refuse such treatment. With respect to the
MHRA, the Parties dispute whether Defendant's office
constitutes a place of public accommodation. Finally,
Defendant challenges the ADA on various constitutional
grounds.
Discussion
A. Summary Judgment
Courts properly grant summary judgment when
the moving. party demonstrates the absence of a genuine
issue of material fact, and that it is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(c). The moving party
may rely on deposition testimony, answers to
interrogatories, admissions on file and affidavits to meet
its burden. Id. In addition the moving party may satisfy
its burden by demonstrating an absence of evidence to
support an essential element of a claim for which the
nonmoving party bears the burden of proof. Celotex Corp.
v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91
L.Ed.2d 265 (1986). To defeat summary judgment, the
nonmoving party need only present evidence from which
a jury might return a verdict in its favor. Anderson v.
Liberty Lobby, 477 U.S. 242, 257, 106 S.Ct. 2505, 2514, 91
L.Ed.2d 202 (1986). The nonmoving party, however, may
not rest on mere allegations or denials, but must
employaffidavits, admissions, deposition testimony and
answers to interrogatories to set forth specific facts
establishing a genuine issue for trial. Fed. R. Civ. P. 56(e).
B. ADA
Under title III, a place of public accommodation
may not discriminate ate against an individual on the
basis of a disability in the full and equal enjoyment of
services. 42 U.S.C. § 12182(a). Places of public
accommodation, however, may deny full and equal
enjoyment of services to an individual who poses a direct
threat to the health or safety of others. 42 U.S.C. §
12182(b)(3). To find a violation of title III, therefore, the
34a
Court must determine that (1) Defendant's office
constitutes a place of public accommodation, (2) Plaintiff
has a disability for purposes of the ADA, and (3)
treatment of Plaintiff in Defendant's office does not pose a
direct threat to the health or safety of others. Defendant
does not dispute that his office constitutes a place of
public accommodation under the ADA.' The Court also
concludes that Plaintiff is disabled as a matter of law, and
that treatment of Plaintiff in Defendant's office poses no
direct threat to the health and safety of others.
J. Plaintiff is Disabled as a Matter of Law
Title III of the ADA prohibits a place of public
accommodation from discriminating in equal use of
services on the basis of disability. Under the ADA,
disability means (A) a physical or mental impairment
that substantially limits one or more of the major life
activities of such individual; (B) a record of such
impairment; or (C) being regarded as having such an
impairment." 42 U.S.C. § 12102(2). Defendant contends
that asymptomatic HIV does not constitute a per se
, Based on the statute and _ interpretive
guidelines, Defendant's office constitutes a
place of public accommodation. The
Department of Justice interpretive guidelines
for the ADA define a place of public
accommodation as including the professional
office of a health care provider whose
operations affect interstate commerce. 28
C.F.R. § 36.104. While not binding, such
regulations carry significant persuasive
weight. See Chamberlin v. 101 Realty, Inc., 915
F.2d 777, 781 (Ist Cir. 1990).
35a
disability, and that Plaintiff has failed to offer evidence
upon which to conclude that her asymptomatic HIV
substantially limits any major life activity.
The ADA classifies neither HIV, nor any other
disease or condition, as a per se disability. Instead,
application of the statute to a given individual depends on
whether that individual has a physical or mental
impairment, and whether that impairment substantially
limits a major life activity of that individual. 42 U.S.C. §
12102(A). The Court is persuaded that asymptomatic
HIV constitutes a physical impairment for the purposes of
the ADA. The interpretive guidelinesspecifically include
HIV, whether symptomatic or asymptomatic, among the
types of diseases that constitute disabilities. 28 C.F.R. §
36.104. The vast weight of the authority also supports the
. The Court departs from the analysis employed
by the two district courts that have considered
the factual issue presented in this case. See
D.B. v. Bloom, 896 F.Supp. 166, 170
(D.N.J.1995): United States of America v.
Morvant, 898 F.Supp. 1157. 1161
(E.D.La.1995). In both of those cases, the
courts assumed that since the interpre2.
The Court departs from the analysis employed
by the two district courts that have considered
the factual issue presented in this case. See
D.B. v. Bloom, 896 F.Supp. 166, 170
(D.N.J.1995): United States of America v.
Morvant, 898 F.Supp. 1157. 1161
(E.D.La.1995). In both of those cases, the
courts assumed that since the interpre-
36a
proposition that HIV constitutes a physical impairment
for the purposes of the ADA.’ See Gates v. Rowland, 39
F.3d 1439, 1446 (9th Cir.1994); Doe v. Garrett, 903 F.2d
1455, 1459 (11th Cir.1990), cert. denied, 499 U.S. 904, 111
S.Ct. 1102.113 L.Ed.2d 213 (1991); EEOC . Chemtech
International Corp., 1995 WL 608355 at 1
(S.D.Tex.1995); Austin ». Pennsylvania Department of
Corrections, 876 F.Supp. 1437,1465 (E.D.Pa.1995);
Robinson v. Henry Ford Health Systems, 892 F.Supp. 176,
180 (E.D.Mich.1994); Howe v. Hull, 873 F.Supp. 72, 78
(N.D.Ohio 1994); Doe v. Kohn Nast & Graf, P.C., 862
F.Supp. 1310, 1318-20 (E.D.Pa.1994); J. E. P. v. Leavitt,
840 F.Supp. 110, 111 (D.Utah 1993); Doe v. District of
Columbia, 796 F.Supp. 559, 568 (D.D.C. 1992); Glanz .
Vernick, 756 F.Supp. 632, 635 (D. Mass. 1991).
Less clear is whether Plaintiff's asymptomatic HIV
substantially limits one or more of her major life
activities. See 42 U.S.C. § 12102(2)(A). The Court
concludes that it does. Plaintiff identifies reproduction as
the sole major life activity that her asymptomatic HIV
substantially limits. She asserts that the risk of
transmitting HIV to a potential child, as well as possible
harm to her own immune system has deterred her from
having children.’ The Court, therefore, must inquire (1)
e The interpretive guidelines state that the ADA
shall not be construed to apply a lesser
standard than the standards applied under
title V of the Rehabilitation Act of 1973. 28
C.F.R. § 36.103. Thus, cases construing
similar language in the Rehabilitation Act
impact interpretation of the ADA.
Intervenor Plaintiff MHRC further asserts
37a
whether reproduction constitutes a major life
activity,and, if so, (2)whether Plaintiff's HIV substantially
limits hat major life activity. 42 U.S.C. § 12102(2)(A).
An examination of both of these inquiries leads the Court
to conclude that Plaintiffs asymptomatic HIV
substantially limits her major life activity of
reproduction.
As a matter of common sense, the outcome of the
first inquiry seems obvious. Reproduction, one of the
most fundamental of human activities, must constitute a
major life activity. From the perspective of the ADA,
however, that issue becomes somewhat murky. The
interpretive guidelines define "major life activities" as
“functions such as caring for one's self, performing
manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.“ 23 C. F. R. § 36.104.
At least one court has determined that reproduction does
that asymptomatic HIV substantially limits
other major life activities such as the victim's
sex life. A close reading of the statutory
language, however. reveals the need for an
individual determination of substantial
limitation. See 42 U.S.C. § 12102(2)(A)
(disability requires substantial limitation of
major life activity of such individual“).
Accordingly, while the MHRC may be
generally correct that asymptomatic HIV can
substantially limit a victim's sex life. Plaintiff
has offered no evidence on that issue, leaving
the Court unable to analyze it in a Summary
Judgment context.
38a
not constitute a major life activity for the purposes of the
ADA, reasoning that one does not engage in reproduction
with the same frequency as walking, seeing, speaking,
breathing, learning and working. Zatarain v. WDSU
Television, Inc., 881 F.Supp. 240, 243 (E. D. La. 1995).
The Court, however, concurs with the majority of
courts who have concluded that reproduction does
constitute a major life activity. See Erickson ».
Northeastern Illinois University, 911 F.Supp. 316 at 321,
(N. D. III. 1995); Pacourek v. Inland Steel Co., 858 F.Supp.
1393. 1404-05 (N. D. III. 1994); Kahn Nast & Graf, P.C., 862
F.Supp. at 1320-21; District of Columbia, 796 F.Supp. at
568; Cain v. Hyatt, 734 F.Supp. 671, 679 (E.D.Pa. 1990).
Rather than limit major life activities, the interpretive
guidelines define major life activities as functions such as
caring for one's self, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and
working. 28 C.F.R. § 36.104 (emphasis added). Use of the
words "such as" indicatesan illustrative, not exclusive, list
of major life activities. Kahn, Nast & Graf, 862 F.Supp. at
1320. Moreover, as the Eastern District of Pennsylvania
points out, Congress chose to use the broad term "major
life activities" rather than a more limited term, such as
“major work activities.“ Id. In other settings, the
interests in conceiving and raising one's own children
have been recognized as essential and basic civil liberties.
Cain, 734 F.Supp. at 679 (citing Stanley v. Illinois, 405
U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972).
Reducing reproduction to the specific act of
conception ignores the processes that occur continually in
both male and female reproductive systems in order to
achieve conception. Erickson, 911 F.Supp. at 321.
Limitation of reproduction to conception also ignores the
39a
process of raising and caring for offspring upon which
successful reproduction depends. The reasoning of courts
that have already considered the issue, as well as the
broad language of both the statute and the interpretive
guidelines persuade this Court that reproduction
constitutes a major life activity for the purposes of the
ADA.
Finally, based on the undisputed evidence, the
Court concludes that Plaintiff's asymptomatic HIV
substantially limits her major life activity of
reproduction.” The Parties have not presented evidence
that Plaintiff's asymptomatic HIV poses a direct barrier
to Plaintiff's ability to reproduce, in the sense, for
example, that it has rendered her infertile. The statutory
language, however, does not require such a stringent
inquiry. By requiring an individual's physical or mental
impairment to substantially limit a major life activity, the
statute does not contemplate a complete inability of
thatindividual to engage in a particular major life
activity. See 42 U.S.C. § 12102(2)(A) (emphasis added).
In order to constitute a disability, an
individual must have a physical or mental
impairment that substantially limits a major
life activity "of such individual." 42 U.S.C. §
12101(2)(A) (emphasis added). Thus. the
Court's inquiry is not whether such
impairment substantially limits the major life
activity of reproduction generally. but
whether in this case, Plaintiff's asymptomatic
HIV substantially limits her major life activity
of reproduction. See id.
40a
Child birth poses a risk of physical harm to an
asymptomatic HIV mother. See Thomas vy. Atascadero
Unified School District, 662 F.Supp. 376, 379
(C.D.Cal.1986) (childbirth dangerous to asymptomatic
HIV patient and others). In her deposition Plaintiff
testified that fear of harm to her immune system
contributed to her decision not to have children once she
tested positive for HIV (PL's Dep. at 79.) In addition, an
HIV positive mother runs the risk of infecting her child,
during pregnancy, through child birth or, if she chooses
to do so, through breast feeding. In her deposition,
Plaintiff also indicated that fear of infecting her child
contributed to her decision not to have children. (PL's
Dep. at 79.) Finally. as previously indicated, reproduction
extends beyond the act of conception and the period of
gestation, to the process of caring for and raising a child.
In her deposition, Plaintiff cited fear that her child would
lose its mother as another reason for not having children.
(Pl.'s Dep. at 79.) Defendant does not dispute any of
Plaintiff's asserted reasons for not having children, and
those reasons all stem from her HIV positive status. The
Court concludes that Plaintiff has established that her
asymptomatic HIV has substantially limited her major
life activity of reproduction.
N Defendant offers statistics demonstrating a
25% risk of transmission of HIV from mother
to child and argues that such a low risk cannot
possibly translate into a disability under the
ADA.
Defendant. however, misconstrues the inquiry.
The Court has determined that the HIV virus
constitutes a physical impairment under the
ADA. The Court has also concluded that
reproduction constitutes a major life activity.
41a
The Court concludes that Plaintiff is disabled as a
matter of law under the ADA.
2.Treatment of Plaintiff in Defendant's Dental
Office Poses no Significant Risk to the Health and
Safety of others
The ADA does not require a covered entity to
extend its public accommodations to any individual who
poses a direct threat to the health or safety of others. 42
U.S.C. § 12182(b)(3). Direct threat means "a significant
risk to the health or safety of others that cannot be
eliminated by a modification of policies, practices or
procedures, or by the provision of auxiliary aids or
services." Id. The interpretive guidelines further define
direct threat as a significant risk to the health or safety of
others that cannot be eliminated by a modification of
policies, practices or procedures. 28 C.F.R. § 36.208(b). In
determining whether an individual poses a direct threat,
the guidelines contemplate that "a public accommodation
must make an individualized assessment, based on
reasonable medical judgment that relies on current
medical knowledge ... to ascertain: the nature, duration.
and severity of the risk; the probability that the potential
injury will actually occur: and whether reasonable
modifications of policies. practices. or procedures will
mitigate the risk.“ 28 C. F. R. § 36.208(c); see also School
Thus, the Court's inquiry is not whether a low
risk of transmission from mother to child
constitutes a disability under the ADA, but
whether asymptomatic HIV in this case
substantially limits Plaintiffs major life
activity of reproduction.
42a
Board of Nassau County v. Arline, 430 U.S. 273. 287-88.
107 S.Ct. 1123, 1131, 94 L.Ed 2d 307 (1987) (employing
similar factors in Rehabilitation Act, employment
discrimination context).
Defendant asserts that performance in his office of
invasive dental procedures, such as filling a cavity, on
HIV patients poses a significant risk to the health and
safety of others that cannot be eliminated. Plaintiff
contends that implementation of Centers for Disease
Control (CDC) recommended precautionary measures
eliminates any significant risk in-office treatment may
pose, and, therefore, that Defendant's infectious disease
policy as applied to her and -milarhy situated HIV
patients constitutes discrimination on the basis of a
disability for purposes of the ADA.
a. Weight of the Evidence
Pursuant to Rule 56, litigants may not base their
Motions or opposition to Motions for Summary Judgment
: The CDC has issued guidelines to reduce the
risk of transmission of infectious diseases in a
report entitled Recommended
Infection-Control Practices for Dentistry,
published in 1993. The CDC provides
recommendations concerning every aspect of
dental practice, including vaccinations for
dental workers, protective attire and barrier
techniques. hand care. use of sharp
instruments and needles, sterilization of
instruments, disinfection of the dental unit
and environmental surfaces, use and care of
hand pieces and other dental devices, single
use disposable instruments, etc.
43a
on mere allegations or denials of the adverse party's
pleading. Fed. R.Civ.P. Se). Instead, Summary
Judgment requires affidavits, depositions or answers to
interrogatories that set forth specific facts as would be
admissible in evidence. Id. In the context of the direct
threat inquiry, the interpretive guidelines provide specific
guidance to courts analyzing the risk to a _ public
accommodation under title III. C. F. R. § 36.208(c). The
interpretive guidelines codify, for ADA purposes, the
analysis employed by the Supreme Court in a
Rehabilitation Act context. See Arline, 480 U.S. at 288,
107 S.Ct. at 1131. The Supreme Court, in School Board of
Nassau County v. Arline, emphasized that courts engaging
in such an analysis “normally should defer to the
reasonable medical judgments of public health officials."
Id.
The Parties“ arguments focus on how HIV can be
transmitted and the probability of transmission in the
dental health context, two of the four analytical prongs
established by the interpretive guidelines. See 28 C.F.R.
36.208(c). Defendant asserts that performing invasive
dental procedures on Plaintiff creates a significant risk of
transmission of HIV through contact with Plaintiff's
blood.
Defendant points out that filling a cavity involves
injecting the mouth with anesthetic and drilling the
decayed tooth. Use of a needle creates a risk of
transmission through percutaneous needle stick injury,
while drilling creates a risk of transmission through
spattering and misting blood and bloody saliva. While
Defendant asserts that both of these results create an
obvious risk of transmission of HIV, Defendant fails
44a
tooffer the Court Summary Judgment quality evidence to
support that assertion. Fed.R.Civ.P. 56. Instead,
Defendant argues that quantification of the risk may be
impossible, since documentation of the transmission of
HIV from infected patient to dentist in many cases may
not occur, and, therefore, such transmission may be
occurring with alarming frequency. Again, Defendant
fails to offer evidence to support that assertion.
Defendant buttresses his argument with tangential
statistics. Defendant points out that three to four percent
of the individuals who carry HIV have not identified any
of the risk factors for becoming infected. By contrast,
Defendant asserts, six percent of all health care workers
who have contracted HIV exhibit no risk factors. Finally,
Defendant points out that in 42 documented cases, health
care workers have suffered occupational transmission of
HIV Defendant concludes that although no documented
case of a dentist suffering occupational transmission has
occurred, that will likely change. In lieu of the reasonable
medical judgment of a public health official. Defendant
N Although the Supreme Court directs district
courts to defer to the reasonable judgment of
public health officials. Arline faded to reach
the issue of whether courts should also defer to
the reasonable medical ji dgments of private
physicians on which an employer has relied.
480 U.S. at 288 n. 18.107 S.Ct. at 1131 n. 18.
Defendant relied on the expert testimony of
Sanford Kuvin, M.D. With respect to
transmission through aerosol mist. Dr. Kuvin
testified that although no one knows whether
such transmission is possible, no evidence
currently supports aerosol spray as a mode of
transmission of HIV
45a
essentially asks the Court to infer a significant risk from a
combination of his conjecture as to potential transmission
and statistics which at best may place health care workers
at a higher risk of contracting HIV.’ The Court cannot
grant Summary Judgment on the basis of allegation or
speculation. See Fed.R.Civ.P. 56. Instead, the Court must
evaluate the risk based on the current state of medical
knowledge, and defer to the reasonable medical
judgments of public health officials. 28 C.F.R. 36.208;
Arline, 480 U.S. at 288, 107 S.Ct. at 1131. Defendant has
failed to meet his Summary Judgment burden.
K Defendant asserts that the Federal Drug
Administration ("FDA") believes the risk of
occupational transmission to dentists is
significant, based on the FDA's
recommendation that any person who has
been exposed to the blood of a patient in the
previous year should not be permitted to
donate blood. The FDA recommendations
pertain to prevention of HIV transmission by
blood and other blood products. Nowhere
does the FDA express a concern regarding the
occupational risk of transmission to dentists.
The FDA simply lists among several other
criteria for donor unsuitability "persons who
have had contact with blood and body fluids
through percutaneous inoculation (such as
injury or accidental needlestick) (Def.'s
Mem.Opp n.Summ. J., Ex. 4a at 4-5.) Based on
that statement alone. the Court is not willing
to infer that the FDA has determined that
dentists suffer a significant risk of
occupational transmission.
46a
Plaintiff, by contrast, offers the reasonable medical
judgment of a public health official, CDC, to refute
Defendant's allegations that treatment of her in his office
poses a direct threat. Specifically, Plaintiff presented
testimony from Wayne Marianos, D.D.S., M.P.H., who
serves as Captain in the United States Public Health
Service at the Centers for Disease Control ("CDC"), and
who currently serves as the Director of the Division of
Oral Health. Dr. Marianos participated in the
development of the CDC recommended precautions for
dentists to prevent the transmission of infectious diseases.
He testified both as to the risk of transmission of HIV in a
dental setting, as well as to the CDC recommended
practices designed to minimize that risk. Dr. Marianos
testified that when implemented, the CDC
recommendations reduce the already low risk of disease
transmission in the dental environment, from either
patient to dental health care worker, dental health care
worker to patient, or patient to patient. Dr. Marianos
further testified that routine dental treatment to persons
with HIV or AIDS requires no additional procedures
beyond the CDC recommendations.” In other werds,
2 Plaintiff also offers the opinion of the
American Dental Association, which concurs
with Dr. Marianos that routine adherence to
the recommended procedures results in little
risk of transmission, and stresses that a dentist
should not refuse to treat a patient whose
condition is within the dentist's current realm
of competence solely because the patient
carries HIV.
47a
Plaintiff has provided evidence, of Summary Judgment
quality, of a reasonable medical judgment of a public
health official, based on current medical knowledge, that
treating HIV positive patients such as Plaintiff in a dental
office does not pose a direct threat to the health and
safety of others.
b. Weight of the Authority
Both Parties assert that the weight of judicial authority
supports their position. Defendant points to a line of case
law in which courts have held that the suspension er
termination of HIV infected health care workers does hot
constitute discrimination under title III. See Doe v.
University of Maryland Medical System Corporation, 50
F.3d 1261, 1267 (4th Cir.1995); Bradley v. University of
Texas M.D. Anderson Cancer Center. 3 F.3d 922.925 (5th
Cir.1993), cert. denied. - U.S. - 114 S. Ct. 1071, 127 L.Ed.2d
389 (1994): Leckelt v. Board of Commissioners of Hospital
District Vo. J. 909 F.2d 820, 830 (5th Cir.1990); Mauro v.
Borgess Medical Center, 886 F.Supp. 1349, 1354
* With respect to the other two analytical
prongs, the duration and severity of the risk,
the evidence demonstrates that the risk is
lifelong, in that no cure for HIV exists, and,
severe, in that the potential harm to third
parties, here Defendant, is illness and death.
See Arline, 480 U.S. at 288 107 S.Ct. at 1131
(explaining test). In this case, however, neither
the duration nor severity outweigh the
evidence as to how the disease is transmitted
and the slight probability of transmission. See
Morvant. 898 F.Supp. at 1166.
48a
(W.D.Mich.1995); Scoles v. Mercy Health Corporation, 887
F.Supp. 765, 772 (E.D.Pa.1994); Doe v. Washington
University, 780 F.Supp. 628, 634-35 (E.D.Mo.1991).
Defendant argues that the health care worker cases
further support his assertion that Plaintiff poses a direct
threat to the health and safety of others. The Court
concludes, however, that the key distinction in hose
eases-HIV infected health care workers as opposed to
patients--renders them inapposite to this case.
The HIV health care worker cases that mention
the judgment of a public health authority rely on CDC
recommendations for minimizing transmission of
infectious diseases from health care workers topatients,
rather than from patients to dentists. See University of
Maryland, 50 F.3d at 1263; Bradley, 3 F.3d at 924; Leckelt,
909 F.2d at 828 and n. 17; Washington University, 780
F.Supp. at 633. In Doe . University of Maryland System
Corporation, for example, the CDC recommendations
indicated that hospitals could bar HIV infected health
care workers from performing those procedures the
hospital had identified as exposure prone. 50 F.3d at
1263, 1266; see also Bradley, 3 F.3d at 924 (same CDC
recommendations); Leckelt, 909 F.2d at 828 (prior version
of same guidelines). As indicated, deference to the
relevant CDC guidelines in this case, combined with the
testimony of one of the authors of those guidelines,
logically compels this Court to a different conclusion.
A closer examination of some of the health care
worker cases reveals that HIV infected health care
workers posed a direct threat in part because of the
nature of the relationship between health care provider
and patient. See University Of Maryland, 50 F.3d at 1266;
Mauro, 886 F.Supp. at 1353; Washington University, 780
49a
F.Supp. at 633-34. The court in Doe . Washington
University, for example, viewed the risk of transmission
from a dental student to patient in the context of the
stated goal of the medical profession "to heal, and ... if
healing is not possible.. .. not to harm.“ 780 F.Supp. at
633. According to that court, to permit even an occasional
death to occur because of a failure to scrupulously guard
the safety of patients would appear to be morally
unacceptable. 780 F.Supp. at 633-34; see also University of
Maryland, 50 F.3d at 1266 (defendant made a considered
decision to err on side of caution and acted solely with
patients“ best interests in mind); Mauro, 886 F.Supp. at
1353 (exposing patient to direct risk of acquiring a fatal
disease is fundamentally inconsistent with mission of
patient care).
The health care provider-patient relationship,
however, is not symmetrical. Defendant in this case does
not occupy the same vulnerable position as patients in the
case of an HIV infected dentist, because Defendant, and
not Plaintiff. controls the level of risk. The reasonable
medical judgment of the CDC indicates that a
dentistprotects him or herself by diligently implementing
the CDC recommended precautions. Compliance with the
CDC recommended precautions, however, is up to the
dentist. A patient has no control over the less diligent
health care provider whose failure to comply with CDC
guidelines significantly increases the risk of patient
infection. See, e. g., Leckelt, 909 F.2d at 829-30 (evidence
suggested that plaintiff nurse failed to comply with CDC
recommendations). In Leckelt v. Board of Commissioners
of Hospital District No. ; the plaintiff, an HIV infected
nurse, asserted that as long as he followed the CDC
guidelines, he posed little or no risk of transmitting HIV
to his patients. 909 F.2d at 829. Evidence of his failure to
50a
consistently comply with the CDC guidelines, as well as
hospital policies based on those guidelines, undermined
his argument. Id. at 829-30. The Fifth Circuit pointed out
that by his conduct, the plaintiff prevented the defendant
hospital from deciding what measures, if any, were
necessary to protect the health of the plaintiff, other
employees and patients. Id. at 830. Implicit in that finding
is the Fifth Circuit's concern that no amount of
reasonable medical judgment as to risk reduction can
protect a patient from an incautious health care provider.
See id. In this case, by contrast, Defendant exercises
complete control over the reduction of his risk, and bears
the consequences of a lapse in his diligence. That critical
difference fatally undermines Defendant's efforts to apply
the health care workers cases to the direct threat analysis
in this case.
Indeed, the federal courts that have examined the
same or factual scenarios similar to those present in this
case have concluded that the risk of transmission from
patient to dentist does not rise to the level of a direct
threat to the health or safety of others and that refusals to
treat HIV positive patients in the dental office constitutes
unlawful discrimination under the ADA. See D.B. vy.
Bloom, 896 F.Supp. 166, 170 n. 6 (D.N.J.1995) (similar
facts established prima facie case under ADA and no
medically justified reason existed for defendant's refusal
to treat HIV infected plaintiff); United States of America
v. Morvant, 898 F.Supp. 1157, 1166-67 (E.D.La.1995).
In Morvant, a dentist referred HIV infected patients to
another dentist rather than treat them in his office.898
F.Supp at 1159. In analyzing whether the HIV infected
patients posed a direct threat to the dentist, the court
pointed to a plethora of expert testimony presented by
the government" that the CDC's recommendations, if
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implemented, would significantly mitigate any risk. Id. at
1166. As in Morvant, this Court has made a similar
finding based on the reasonable medical judgment of a
public health official. See Arline, 480 U.S. at 288, 107
S.Ct. at 1131.
Defendant has provided neither Summary
Judgment quality evidence, nor judicial authority that
can lead to the conclusion that treatment of Plaintiff in his
office constitutes a direct threat to the health and safety of
others. Plaintiff has refuted Defendant's speculative
evidence with the reasonable medical judgment of a
public health official, in this case, the CDC. Defendant
has failed to demonstrate that CDC's judgment is
medically unsupportable. See id. at 286 n. 15. 107 S.Ct. at
1130 n. 15. This Court, therefore, must defer to the CDC,
and concludes that if Defendant implements the CDC
recommended precautions, treatment of Plaintiff in his
* The court in Morvant viewed the CDC
recommended precautions as modifications
that would eliminate the direct threat. 898
F.Supp. at 1166. This Court disagrees with
that analysis. CDC recommends that dentists
implement the precautions in virtually every
procedure. They are universal. As such, CDC
contemplates that the precautions will become
part of the normal practice routine in
dentistry. The Court, therefore, views the
precautions as part of the practice of
dentistry, and concludes that in light of
modern dental methods, treatment of Plaintiff
does not pose a direct threat to the health and
safety of Defendant, his staff, or his patients.
52a
office poses no direct threat to the health or safety of
others.
C. MHRA
The Parties have also moved for Summary
* The implementing guidelines indicate that a
publie
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