Reply Brief — Bragdon v. Abbott

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No. 97-156

In The

SUPREME COURT OF THE

UNITED STATES

October Term, 1997

RANDON BRAGDON, D.M.D.

Petitioner,

SIDNEY ABBOTT, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FIRST CIRCUIT

REPLY BRIEF FOR THE PETITIONER

JOHN W. McCARTHY

Counsel of Record

BRENT A. SINGER, Ph.D.

RUDMAN & WINCHELL, LLC

Attorneys for Petitioner

84 Harlow Street

Bangor, Maine 04401

Telephone: (207)947-4501

TABLE OF CONTENTS

TABLE OF AUTHORITIES il

I. IF DR. BRAGDON’S RISK ASSESSMENT

WAS WITHIN THE RANGE OF REASON

GIVEN THEN-CURRENT MEDICAL

KNOWLEDGE, HE SHOULD NOT BE

LIABLE. l

II. DR. BRAGDON’S RISK ASSESSMENT

WAS WITHIN THE RANGE OF REASON

GIVEN THEN-CURRENT MEDICAL

KNOWLEDGE. rs)

III. DR. BRAGDON DID NOT REGARD

MS. ABBOTT AS DISABLED. 9

IV. ABBOTT'S INTERPRETATION OF THE

TERM “DISABILITY” IS POLICY-DRIVEN,

OPEN-ENDED AND NOT BASED ON THE

STATUTE. 13

V. “MAJOR LIFE ACTIVITIES” HAS NO

HELPFUL PLAIN OR ORDINARY

MEANING. 18

CONCLUSION 20

APPENDIX --

PETITION PAGES 13-25 APP. 1 - APP. 13

TABLE OF AUTHORITIES

Cases

ABF Freight System v. NLRB, 510 U.S. 317 (1994)

Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984)

Cain v. Hyatt, 734 F. Supp. 671 (E.D. Pa. 1990)

Chalk v. United States Dist. Ct., 840 F.2d 701

(9% Cir. 1988)

Doe v. Garrett, 903 F.2d 1455 (11 Cir. 1990),

cert. denied, 499 U.S. 904

E.E.O.C. v. Amego, Inc., 110 F.3d 135 (1% Cir. 1997)

General Electric v. Joiner, 118 S. Ct. 512 (1997)

Gulf Offshore Co. v. Mobile Oil Corp., 453 U.S.

473 (1981)

Hillsborough County v. Automated Med. Labs,

Inc., 471 U.S. 707 (1985)

Industnal Union Dep’t, AFL-CIO v. American

Petroleum Inst., 448 U.S. 606 (1980) (Plurality

Opinion)

Le Juene Road Hosp., Inc. v. Watson, 171 So.2d

202 (Fla. App. 1965)

Montalvo v. Radcliffe, No. 3:97 cv 487 (U.S.

Dist. Ct. E.D. Va.)

Nicely v. Rice, 1992 WL 403091 (D. Kan.)

Pauley v. BethEnergy Mines, Inc., 501 U.S. 680

(1991) 20

PBGC v. LTV Corp., 496 U.S. 633 (1990) 20

School Board of Nassau County v. Arline, 480 U.S.

273 (1987) 11

Thomas v. Atascadero Unified Sch. Dist., 662

F. Supp. 376 (C.D. Cal. 1987) 9,18

United States v. Morvant, 898 F. Supp. 1157

(E.D. La. 1995) 3

Virginia State Bd. of Pharmacy v. Virginia

Citizens Consumer Council, 425 U.S. 748 (1976) 16

Yellow Freight Systems v. Donnelly, 494 U.S.

820 (1990) 17

Statutes

42 U.S.C. § 1395dd 8

42 U.S.C. § 12102(2) 9,10

Haw. Rev. Stat. § 515-6 15

Ill. Ann. Stat. Ch. 20 § 301/30-5(aa) (Smith-

Hurd) 15

Ky. Rev. Stat. Ann. § 207.135(1) 15

La. Rev. Stat. Ann. § 22:228 (West) 15

Md. Code Ann., Health Occ., § 4-315(a) 15

Mo. Ann. Stat. §191.699 (Vernon) 15

Mont. Code Ann. § 50-5-105 15

N.J. Stat. Ann. § 10:5-5(q) (West) 15

Vt. Stat. Ann. Tit. 3, § 961 15

W. Va. Code § 30-36-18 (1966) 15

Regul \uthoriti

28 C.F.R. § 36.104 10,12,13,16,19

29 C.F.R. pt. 1630, app. § 1630.2(h) 16

29 C.F.R. § 1910. 1030(f)(3)(ii)(vi) 7

56 Fed. Reg. 35544, 35549-50 (July 26, 1991),

reprinted at 28 C.F.R. pt. 36 app. B § 104 10,15

56 Fed. Reg. 35544, 35560 (July 26, 1991),

reprinted at 28 C.F.R. pt. 36 app. B § 208 5

56 Fed. Reg. 64004, 64009 (Dec. 6, 1991) 7

56 Fed. Reg. 64004, 64055 (Dec. 6, 1991) 7

56 Fed. Reg. 64004, 64058 (Dec. 6, 1991) 7

56 Fed. Reg. 64004, 64064-65 (Dec. 6, 1991) 7

56 Fed. Reg 64004, 64088 (Dec. 6, 1991) 7

56 Fed. Reg. 64004, 64092 (Dec. 6, 1991) 2

Legislative Hi

S. Rep. No. 93-1297, 93" Cong., 1** Sess. (1974),

reprinted in 1974 U.S.C.C.A.N. 6373, 6413-

6414

11,14

Miscellaneous

ADA Comment Books #1 and #2 for Public

Inspection (comments 100-1299),

available through U.S. Dep't of Justice,

disability rights division, 4% floor,

1425 New York Ave. N.W., Washington, D.C. 6,19

Anne Katz, Gaining a New Perspective on Life

as a Consequence of Uncertainty in HIV

Infection, 7 J. Ass’n of Nurses in AIDS Care 51

(July-August 1996) 14,15

Arthur Silverstein, Pure Politics and Impure

Science: The Swine Flu Affair (1981) 2

Barry Sullivan, When The Environment Is Other

People: An Essay On Science, Culture, and the

Authoritative Allocation of Values, 69 Notre

Dame L. Rev. 597 (1994) 2,3,4,8

Carol Chenoweth, et al., Postexposure Chemo-

prophylaxis for Occupational Exposure to HIV

in the Dental Office, 128 JADA 1135 (Aug. 1997) 3

CDC, Prevalence of Mobility and Self-Care

States, 1990, 42 MMWR 760

(Oct. 8, 1993) 12

Cryptosporidiosis: A Guide for Persons With

HIV/ AIDS, http: / /www.cdc.gov /

ncidod/diseases/crypto/hivaids.htm

(Feb. 11, 1998) 15

James A. Cottone, et al., Practical Infection

Control in Dentistry (2d ed. 1996) 13

John Erffmeyer, Adverse Reaction to Penicillin,

47 Ann. Int. Med. 288 (1981) 3

Judith Rabkin, et al, Stability of Mood Despite HIV

Illness Progression in a Group of Homosexual

Men, Am. J. Psychiatry 154:2, 231-238

(Feb. 1997)

Laurence Tribe, Comment, published in Antonin

Scalia, A Matter of Interpretation (1997)

Lee S. Cohen, et al., A Reevaluation of Risk oj in

Utero Exposure to Lithtum, 271 JAMA 146

(Jan. 12, 994) (citing James W. Jefferson &

John H. Greist, Lithium in Psychiatric Practice,

in Encyclopedia of Neuroscience 592-93

(Birkhauser 1987) citing Policy Research

Incorporated, Medical Practice Information

Demonstration Project, Feb. 1979)

M.A. Noble, et al., Hepatitis B and HIV

Infections in Dental Professionals: Effectiveness

of Infection Control Procedures

Mitchell Katz & Harry Hollander, HIV Infection,

Current Medical Diagnosis & Treatment 1204,

1208 (1998)

National Council on the Handicapped, On the

Threshold of Independence (1988)

National Council on the Handicapped, Toward

Independence (1986)

Policy Research Inc., Medical Practice Information

Demonstration Project - Bipolar Disorder: A

State-of-the-Science Report (Gov. Contract

No. 282-77-0068 with HEW)(79-06-MED;

MED-38-11/Feb. 1979)

Richard Neustadt & Harvey Fineberg, The Swine

Flu Affair (1978)

Roger Evans, et al., The Quality of Life of Hemo-

dialysis Recipients Treated With /rHuEPO],

263 JAMA 825 (1990)

Ronald Dworkin, Comment, published in Antonin

Scalia, A Matter of Interpretation (1997)

USPHS/IDSA Guidelines for the Prevention of

Opportunistic Infections in Persons Infected

with [HIV], 44 MMWR No. RR-8 (July 14, 1995)

Yunzhen Cao, et. al., Virologic and Immunologic

Characterization of Long-Term Survivors of

[HIV] Type 1 Infection, 332 N. Eng. J. Med. 201

(1995)

I. IF DR. BRAGDON’S RISK ASSESSMENT WAS

WITHIN THE RANGE OF REASON GIVEN

THEN-CURRENT MEDICAL KNOWLEDGE, HE

SHOULD NOT BE LIABLE.

Respondents and amici (“Abbott”) seem to

concede that if Dr. Bragdon’s risk assessment was

within the range of reason given then-current

medical knowledge, then Dr. Bragdon should not

be liable.! Their concession is implicit in their

refusal to join the issue, attacking instead

caricatures of Dr. Bragdon’s position.2 The lower

courts, howéver, did not apply the standard for

healthcare provider liability under title III urged by

Dr. Bragdon. Instead, each applied a legal

presumption that required him to do significantly

more to survive summary judgment than raise a

genuine issue of whether his risk assessment was

within the range of reason given then-current

medical knowledge. If it was error to apply these

presumptions, the case should be remanded for

the application of the correct standard.

Furthermore, Dr. Bragdon is not arguing courts

should defer to individual dentists because they

are experts. The term “deference” can be

! The American Medical Association (AMA) expressly concedes

that dentists “need do no more—and no less—than make a

medically reasonable decision .. . .” AMA Br. at 25.

2 Resp’t Br. at 42, 46-47, 49 (characterizing Dr. Bragdon’s

position as seeking deference to subjective, personal beliefs,

simpliciter); Infectious Diseases Soc. of Am., et al., Br. at 23

(same); AIDS Action Council, et al., Br. at 28 (same).

3 Dr. Bragdon did designate himself as an expert for trial.

Abbott objected under Rule 702, and Dr. Bragdon responded

that his training and experience as a dentist for 17 years

qualified him under Rule 702 to give testimony on numerous

issues. For summary judgment purposes, however, Dr.

Bragdon did not claim that his own personal opinions are

evidence of the objective range of reason, and the District

misleading. Dr. Bragdon is not asking the Court to

defer to anybody or to decide ultimately whether

there is a significant risk. The legal question for

the Court is when may a dentist be liable for

discrimination under the ADA. Dr. Bragdon’s view

is that (1) if a reasonable dentist could have

concluded from then-current medical knowledge

that the risk was significant, and (2) if he thought

in good faith that the risk was significant, then he

did not violate Ms. Abbott’s civil rights.

It is also important to understand that

although the quantification of a risk can be mostly

objective and scientific, to decide whether it is

“significant” requires a value judgment informed by

political, policy, or even personal factors.4 Very

low identifiable risks that are difficult to estimate

are often “significant” for health policy reasons,®°

Court never ruled on Abbott’s Rule 702 objection.

4 See Barry Sullivan, When The Environment Is Other People:

An Essay On Science, Culture, and the Authoritative Allocation

of Values, 69 Notre Dame L. Rev. 597, 601, 643 (1994) (the

“standard formulation of the [Arline] ‘significant risk’ test

represents a(n]... attempt to fit normative pegs into factual

holes”).

> OSHA treats the “Klein study,” cited by Infectious Diseases

Soc. of Am., et al. Br. at 20 n.10, as evidence of a significant

risk to dentists, though it found only one apparent

occupational HIV infection among 1,132 dentists. 56 Fed.

Reg. 64004, 64092 (Dec. 6, 1991) (Pet. App. 83a-84a). The

estimated risk of HIV infection following just one

percutaneous occupational exposure to HIV is 0.3%, or 3

expected fatalities per 1000 exposed, which is three times the

level of risk deemed “significant” by the Court in /ndustrial

Union Dep’t, AFL-CIO v. American Petroleum Inst., 448 U.S.

606, 655 (1980) (plurality). Health officials thought the risk

of developing Guillain-Barre syndrome for vaccinees was

significant, even though it was less than 1 in 100,000.

Richard Neustadt & Harvey Fineberg, The Swine Flu Affair

69-73 (1978); Arthur Silverstein, Pure Politics and Impure

Science: The Swine Flu Affair 117-119 (1981). Dr. Bragdon

aie

and reasonable individuals may have differing

personal risk tolerances.

By affidavits of Dr. Marianos, the CDC reached

an implicit policy decision that the known risk to

dentists (for mo one denies there is a risk) is

insignificant. The CDC disclosed this position for

the first time in private civil litigation, which came

to Dr. Bragdon’s attention when he obtained a

copy of Dr. Marianos’s January 7, 1995, affidavit

filed in United States v. Morvant, 898 F. Supp. 1157

(E.D. La. 1995). Various other organizations now

maintain in an amicus brief that the risk is

“negligible” (Infectious Diseases Soc. of Am., et al.,

Br. at 19-22).7 These decisions have not been “the

product of open and complete analysis,” relevant

dimensions of the problem have been “suppressed

without explanation,” Sullivan, supra, note 4, at

664, and the lower courts have tried to resolve

issues “without acknowledging their normative

was keenly aware of these policy precedents. In addition,

while Ms. Abbott offered her opinion that taking penicillin is

“considered safe” (Mot. for S.J. at 16, filed Sept. 19, 1995),

the article relied on by her expert states that the incidence of

adverse reactions to penicillin is a “significant health

problem.” John Erffmeyer, Adverse Reactions to Penicillin, 47

Ann. Int. Med. 288, 288 (1981) (Ex. E of Sept 13, 1995 Aff. of

Donald Craven, M.D.)(emphasis added).

6 The policy directive is implicit to the extent Dr. Marianos

avoids using the term “insignificant.” The locution he

prefers, which first appears in his fourth declaration (J.A.

283), is that “it is safe to provide routine dental care to

patients with HIV ... when universal precautions are

utilized.” Dr. Marianos understands, however, that the

intended result of his testimony is the establishment into

federal law of the policy that the risk is insignificant.

7 But see Carol Chenoweth, et al., Postexposure Chemo-

prophylaxis for Occupational Exposure to HIV in the Dental

Office, 128 JADA 1135, 1136 (Aug. 1997) (occupational HIV

risk to dentists characterized as “low,” not negligible, and

stressing need for HIV postexposure plans).

eG <

character” by deferring to the CDC which has “no

mandate to resolve normative issues.” Id. at 685.8

Nevertheless, according to Abbott (U.S. Br. at

26), the best thing the Court can do is to follow the

advice in Chalk v. United States Dist. Ct., 840 F.2d

701, 712 (9™ Cir. 1988) (Sneed, J., concurring):

Confronted with some uncertainties

about scientific truth, judges, perhaps

above all others, should act on the

basis of that which is known, or,

where this is not possible, on the basis

of that which those best qualified to

speak say is known.... [W]Je have no

choice but to accept their version of

the truth.

The fallacy here is the assumption that the Court

should or must accept anyone’s version of the

truth as to whether there is a “significant risk.”

The proper role of the Court is not final arbiter of

substantive national health policy, acting on its

own or in conjunction with the AMA or CDC. Even

if Professor Sullivan’s ideal agency existed, the

agency's policies could have the force of law only

by express Congressional delegation, not judicial |

fiat. The limited role of the judiciary is to decide if

Dr. Bragdon committed a civil rights violation. The

Court can best advance this goal by remanding for

8 Professor Sullivan’s makes many good points, but his

critical theme is belied by his own uncritical, unspoken, and

unsupported asstimption that if his ideal, democratically

accountable agency of experts considered all the scientific

and normative issues involved, it would naturally decide the

risk of occupational HIV transmission is insignificant.

Professor Sullivan also wrongly assumes that the burden of

proof on “direct threat” is on defendants. See E.E.0.C. v.

Amego, Inc., 110 F.3d 135, 143 (1* Cir. 1997).

application of the legal standard urged by Dr.

Bragdon, which does not require any court to set

substantive national health policy.?

Il. DR. BRAGDON’S RISK ASSESSMENT WAS

WITHIN THE RANGE OF REASON GIVEN

THEN-CURRENT MEDICAL KNOWLEDGE.

Abbott asks the Court to find that on

September 16, 1994 (1) there was a “consensus

among public and private health authorities that

{filling Ms. Abbott’s cavity] posed no significant risk

of harm to Dr. Bragdon if universal precautions

were followed” (AMA Br. at 27); (2) Dr. Bragdon

knew or should have known of such a consensus;

and (3) no dentist could have reasonably assessed

the risk differently. The record supports none of

these findings, and certainly not the absence of

disputed fact required for summary judgment. !°®

As to relevant facts and inferences therefrom,

please see pages 12-25 of Dr. Bragdon’s petition

reproduced in the appendix hereto.'! Dr. Bragdon

also wishes to highlight three additional points.

First, Abbott offers only two pieces of evidence

that Dr. Bragdon knew or should have known of a

private and public consensus as to the significance

9 The Maine Human Rights Commission (MHRC} misstates

Justice Department guidelines concerning “direct threat.”

Compare MHRC Br. at 4 with 56 Fed. Reg. 35544, 35560

(July 26, 1991), reprinted at 28 C.F.R. pt. 36 app. B § 208.

10 Even if officials had made it known there was a consensus

(which they did not), does the mere announcement define the

boundaries of reasonable risk assessment? [If not, what

analysis must health officials provide before courts should

close the legal door on the possibility that a private person

could reasonably disagree?

11 By joining these issues, Dr. Bragdon does not concede the

Court should reach them. (See Pet. Br. at 10-11)

—

SS eee ee

of the risk: (1) the 1993 CDC guidelines on

infection control for dentists (Pet. App. 18la-199a),

and (2) the American Dental Association’s (AmDA’s)

1991 policy statement:

Patients with HIV infection may be

safely treated in private dental offices

when appropriate infection control

procedures are employed. Such

infection control procedures provide

protection both for patients and dental

personnel.

(J.A. 225) The language in the 1993 CDC

guidelines does not support Abbott’s conclusion

(see Pet. at 21-22). The language in the AmDA’s

policy statement is non-committal at best. To say

that procedures provide protection and something

may be done safely with proper precautions does

not mean the risk is insignificant. Brain surgery

may be done safely with proper precautions.

Furthermore, the contemporaneous opinion of

the American Association of Orthodontists was

that in health care settings “scientific evidence

indicates that HIV disease poses a direct threat

and significant risk” and “much uncertainty

surrounds what precautions, including barrier

techniques, if any, can prevent the transmission of

HIV disease.” !2

Consider too the 1992 FDA guidelines to blood

banks. (Pet. App. 97a) If Dr. Bragdon had contact

with the blood of any patient in the preceding year

because of a sharps or needlestick injury (which

12 Comment No. 863 at 5 (April 23, 1991) in ADA Comment

Book #1 for Public Inspection, available through Justice

Department, disability rights division, 4th floor, 1425 New

York Ave. N.W., Washington, D.C.

always occurs more than once a year), and the

blood bank followed the FDA guidelines, it would

regard Dr. Bragdon as if he had HIV and not

permit him to donate blood. According to Abbott

this would make him disabled under the ADA ({i.e.,

regarded as having HIV). If Dr. Bragdon sued the

blood bank under title III, and it said he posed a

direct threat, what result? Based on FDA

guidelines, could no reasonable blood bank think

the risk to dentists was significant? And if the

blood bank may deem the risk significant, why not

the dentist himself? Also, if the consensus was

that the risk is_ negligible with universal

precautions, why does OSHA mandate extensive

and expensive post-exposure HIV testing and

prophylaxis procedures for dental offices? See 29

C.F.R. § 1910.1030(f)(3)(ii)-(vi); 56 Fed. Reg. at

64064-65 (noting the “relatively high frequency of

occurrence of exposure incidents” in the dental

office).

Second, Abbott’s substantive analysis is

essentially predicated on one sentence: The CDC

has never documented a case of occupational

transmission of HIV to a dentist. To maintain this

argument, Abbott overlooks the CDC’s warning

13 OSHA said available information was insufficient to

estimate the effectiveness of universal precautions (UPs) in

reducing occupational HIV infection. 56 Fed. Reg. at 64055.

As for hepatitis B virus (HBV), OSHA estimated that UPs were

only 75% effective, id. at 64058, and concluded that UPs are

insufficient to provide the level of workplace safety mandated

by law, id. at 64088. See also M.A. Noble, et al., Hepatitis B

and HIV Infections in Dental Professionals, 57 J. Can. Dent.

Assoc. 55, 55 (1991) (“use of gloves did not show a protective

effect” and “[rjeliance on gloves for operator protection

appears to be inadequate”). Like HIV, HBV is a bloodborne

pathogen. Although HIV is about 100 times less infectious

than HBV, HIV is more than 50 times as deadly. 56 Fed.

Reg. at 64009 and J.A. 179.

———e

that its figures “most likely [do] not reflect the full

extent of occupational transmission” (Pet. App.

105a). She also discounts seven HIV-infected

dental workers who had occupational exposures to

HIV, and who “have been investigated and are

without identifiable [non-occupational] behavioral

or transfusion risks” (Pet. App. llla n.3, 110a,

106a) (e.g., AMA Br. at 11-12). Abbott’s handling

of these dental workers illustrates the principle

that “risk assessors make constitutive value

judgments whenever they follow one

methodological rule rather than another.”

Sullivan, supra, note 4, at 650. More concretely,

Dr. Marianos’s testimony that “it is likely that a

number of [the seven dental workers] .. . actually

had nonoccupational risk factors ... they did not

report or recognize” (U.S. Reply Mem. on S.J., Ex.

A 45), shows that his value system leads him to

speculate that all seven were infected while they or

others carried on illicit sexual affairs or drug use

hidden from CDC investigators. !4

Third, Abbott never objected to the

admissibility of Dr. Kuvin’s expert testimony,

unlike disputed expert testimony in General

Electric v. Joiner, 118 S. Ct. 512 (1997). Without

ruling it inadmissible, the Appeals Court tried to

discount Dr. Kuvin’s testimony because it relies

14 The Court must appreciate Dr. Bragdon’s profound

frustration when courts belittle his evidence as “conjecture”

(even his direct observations of how often he sustains

accidental sharps injuries! -- see Pet. App. 28a), and treat the

sketchiest of public health official affidavits as gospel. Abbott

also implies that the law expects dentists to take greater risks

than patients or other citizens. This moral principle has

never been part of our jurisprudence, and certainly not for

elective, non-emergency treatment. See, e.g., Le Juene Road

Hosp., Inc. v. Watson, 171 So.2d 202, 203 (Fla. App. 1965);

see also 42 U.S.C. § 1395dd.

-9-

partly on post-September 1994 authority. But

most of Dr. Kuvin’s authorities pre-date September

1994.15 Moreover, no one argues that anything

happened after September 1994 to make it

reasonable to assess the risk as significant when

before it was not. Dr. Kuvin’s opinion is plain that

both before and after September 1994 Dr. Bragdon

could have reasonably assessed the risk as

significant. Dr. Kuvin’s testimony, by itself and

with the primary authorities cited by Dr. Bragdon,

raises a genuine issue of whether Dr. Bragdon’s

risk assessment was within the range of reason

given then-current medical knowledge. Weighing

this evidence belongs to the fact finder at trial.'®

Ill.DR. BRAGDON DID NOT REGARD MS.

ABBOTT AS DISABLED.

Abbott makes two arguments under the third

prong, 42 U.S.C. § 12102(2)(C), whereby a person

1S See Def.’s Rule 19 Statement of Undisputed Mat’! Facts,

Ex. C; Second Decl. of Sanford F. Kuvin, M.S., M.D., D.T.M.

& H. The reason no attempt was made in the District Court

to divide Dr. Kuvin’s opinions by the date of authority relied

upon is that Dr. Bragdon proceeded as though the fact finder

had to decide whether there is a direct threat. Dr. Bragdon

argued on appeal for a standard based on reasonable

judgment and then-current medical knowledge. The Appeals

Court reached this issue over Ms. Abbott’s objection.

16 Filling cavities, which entails giving oral injections to

nervous patients, working in bloody aerosol mists (Pet. App.

69a-70a), and poking with sharp instruments in bloody

mouths, is a long way from the classroom setting, cf. Thomas

v. Atascadero Unified Sch. Dist., 662 F. Supp. 376 (C.D. Cal.

1987), and more like instruction in hard-style karate where

“students frequently receive nosebleeds and minor cuts.”

Montalvo v. Radcliffe, No. 3:97cv487, Findings of Fact and

Conclusions of Law at 2 (U.S. Dist. Ct. E.D. Va. Jan. 29,

1998) (finding that HIV-infected student posed direct threat

to others in karate class).

-10-

is “disabled” if she is regarded as “having such an

impairment” (emphasis added), meaning an

impairment “that substantially limits one or more

major life activities,” 42 U.S.C. § 12102(2)(A).

The first is that she “is a person who is

‘regarded as’ having a physical impairment and

therefore ... a person with a disability under the

statute.” (Resp’t Br. at 41) According to this

argument, merely to regard an individual as having

a physical impairment makes the individual

disabled under the ADA. This eliminates from the

inquiry the qualifying phrase “that substantially

limits one or more major life activities.”

The ADA’s definition of “physical impairment”

is extraordinarily broad. See 28 C.F.R. § 36.104

(physical impairment means “Any physiological

disorder or condition, cosmetic disfigurement, or

anatomical loss affecting one or more of the

following body systems: [comprehensive list of all

body systems]”) (emphasis added). For Abbott,

then, if a defendant regards someone as having a

physical impairment (e.g., an infected finger or

sprained ankle), the person is “disabled” under the

ADA. This is over broad. See 56 Fed. Reg. at

35549, reprinted at 28 C.F.R. pt. 36 app. B § 104

(“simple infected fingers” are not disabilities, and

“broken legs” are rarely regarded as disabilities).

As the Justice Department explains, “Test C--Being

Regarded as Having Such an Impairment” is

intended to cover “persons who are treated ... as

having a physical or mental impairment that

substantially limits a major life activity.” Id. at

35549-35550 (emphasis added).

Abbott also makes the somewhat narrower

argument that for certain stigmatizing

impairments, defined as those “which invoke fear

and discomfort in others” (Resp’t Br. at 40), a

person is disabled when a defendant treats her

of0«

unreasonably out of unfounded fear, prejudice,

attitudinal barriers, or the like. The essence of this

argument is that whenever a defendant employer

or public accommodation treats someone

unreasonably based on exaggerated fears or

discomfort concerning any impairment, the

defendant, by virtue of that very act, both

constitutes the person as having a stigmatizing

disability and discriminates against her in violation

of the ADA. This argument not only eliminates the

inquiry into substantial limitation on a major life

activity, but also collapses the distinction between

determining (a) whether someone is disabled and

(b) whether there was unlawful discrimination: an

unreasonable reaction based on an impairment

makes the plaintiff disabled and violates the

ADA.?!7

This is an interesting theory, but even the

Court’s broadly worded dicta in Arline seems to

recognize that the third prong is not satisfied for

“those who are [merely] regarded as impaired,”

unless “as a result, [they] are substantially limited

in a major life activity.” Arline, 480 U.S. at 284;

see also S. Rep. No. 93-1297, 93" Cong., 1* Sess.

(1974), reprinted in 1974 U.S.C.C.A.N. 6373, 6414

(the new definition “focuses on substantial

limitations of one or more of an individual’s major

life activities” and includes “an individual who is

regarded as having such a substantial limitation”).

This is sensible since otherwise the ADA would be

transformed from the Americans with Disabilities

Act into the “Act to Outlaw All Unreasonable Fears

Based on Physical or Mental Impairments.”

17 Here, contrary to Abbott’s assurances, “the breadth of the

definition fof disability]” is not “balanced by the limiting or

ae eeteten ta tim ene —_ dees

provisions.” (Resp’t Br. at 16 n.19)

-12-

The AMA implicitly recognizes that Abbott’s

arguments have no basis in the statute. The AMA

therefore makes the novel argument that Dr.

Bragdon regarded Ms. Abbott as _ substantially

limited in the major life activity of caring for

herself. Assuming only for the sake of argument

that “caring for one’s self,” 28 C.F.R. § 36.104,

includes periodic trips to have cavities filled,'* the

record does not support a finding that

Dr. Bragdon’s reaction caused Ms. Abbott to be

substantially limited in the ability to care for

herself, or that Dr. Bragdon perceived her as

substantially limited in the ability to care for

herself. Rather, Dr. Bragdon testified that when he

offered to fill Ms. Abbott’s cavity in a hospital, he

believed that Eastern Maine Medical Center

(“EMMC”) “maintained [dental facilities} and

general dentistry could be done at that facility

without any problem” and EMMC would have been

the “first place” he would have looked to if she had

accepted his offer (June 5 and 6, 1995 Bragdon

Dep. at 286-287, 282-283). EMMC is located less

than 1.2 miles from where Ms. Abbott lived in

Brewer and less than 1.1 miles from where she

worked. (J.A. 48) Dr. Bragdon’s office is three

times as far away.’ Dr. Bragdon did not,

18 “Caring for one’s self” usually refers to daily activities such

as bathing, dressing, cleaning, cooking, ete. E.g., CDC,

1990, 42 MMWR 760 (Oct. 8, 1993); Nicely v. Rice, 1992 WL

403091, *3 (D. Kan.).

19 Dr. Bragdon also said he would have considered using St.

Joseph Hospital (Bragdon Dep. at 282). St. Joseph is less

than a mile from where Ms. Abbott worked. It was only after

Ms. Abbott declined his offer that Dr. Bragdon learned that

the head of dental services at EMMC and St. Joseph was

against the idea of general dentists working in the hospital.

(id. at 283-85) Thereafter Dr. Bragdon applied at Downeast

Community Hospital in Machias for dental privileges, but

therefore, regard Ms. Abbott as _ substantially

limited, or cause her to be substantially limited, in

the ability to care for herself.

This evidence is also important because Abbott

repeatedly accuses Dr. Bragdon of violating his

ethical duty by refusing to treat her. Dr. Bragdon

never refused to treat her. He decided to treat her,

and said he would treat her in a hospital, which he

thought would be EMMC. She said she would

“think about it and get back to him” (Pet. App.

80a). Instead of responding to him, she sued him.

In no way is it fair to depict this as a violation of

Dr. Bragdon’s ethical duty to treat.?°

IV. ABBOTT’S INTERPRETATION OF THE TERM

“DISABILITY” IS POLICY-DRIVEN, OPEN-

ENDED AND NOT BASED ON THE STATUTE.

Dr. Bragdon agrees that the definition of

disability is not limited to “traditional handicaps”

such as blindness. That is why a person with TB,

HIV, malaria, a drug addiction, any form of cancer,

or any other “physiological disorder or condition,

cosmetic disfigurement, or anatomical loss,” 28

C.F.R. § 36.104, may and often will be “disabled”

as long as that impairment also substantially

limits a major life activity, or she has a record of

such a limitation, or she is regarded as having

ironically that failed mostly because Ms. Abbott was suing

him and the hospital was worried about its own potential

legal exposure. (Def.’s Mot. for S.J. Ex. 6)

20 Deferral of elective dental and medical treatment to a

safer, more controlled, or more convenient time or location is

common. See, eg., James A. Cottone, et al., Practical

Infection Control in Dentistry 81-82 (2d ed. 1996) (deferral of

elective dental treatment whenever there is any reasonable

uncertainty surrounding the possibility of active TB). As to

more controlled settings, see also confidential document

lodged with the Court.

-14-

such a limitation. This definition was formulated

to “provide sufficient latitude (but still mot be

totally open ended).” S. Rep. No. 93-1297, 934

Cong., 1% Sess., reprinted in 1974 U.S.C.C.A.N.

6373, 6413.

Abbott tries to fit asymptomatic HIV infection

into this definition by exaggerating the uniformity

of physiological and psychological responses. For

some the diagnosis of HIV infection is so

devastating psychologically as to substantially limit

the ability to learn (e.g., go to school) or work (e.g.,

clinically depressed). But this is not universal.

Physically, five percent of persons with HIV have

“remained clinically healthy and immunologically

normal for more than a decade,” while the average

interval between infection and the development of

AIDS is about ten years.?! Ms. Abbott herself

reported that her “general health” was “good”

(J.A. 49). When asked whether she was impaired

in her ability to carry out any of her life functions

by the fact she is HIV positive, she said “No”

(J.A. 14). Psychologically, some with HIV have

“indicated personal growth as a result of having

this disease and were firm in their belief that this

growth would not have happened without HIV as

an impetus.”22 Everyone in one study “described

being able to look to the future and acknowledged

they are surviving with HIV infection and not

waiting to die.” Katz, supra, note 22, at 54. “Many

of these individuals stated they would not change

21 Yunzhen Cao, et. al., Virologic and Immunologic

Characterization of Long-Term Survivors of [HIV] Type 1

Infection, 332 N. Eng. J. Med. 201, 201 (1995) (emphasis

added); Mitchell Katz, et al., HIV Infection, Current Medical

Diagnosis & Treatment 1204, 1208 (1998).

22 Anne Katz, Gaining a New Perspective On Life as a

Consequence of Uncertainty in HIV Infection, 7 J. Ass'n of

Nurses in AIDS Care 51, 53 (July-August 1996).

anything about their life, even the fact of their HIV

infection.” Id. at 58.2% Accordingly, even the

Justice Department agrees that the determination

of whether any particular impairment (e.g., a

severe allergy) is a disability “must be made using

the same case-by-case analysis that is applied to all

other physical or mental impairments.” 56 Fed.

Reg. at 35549, reprinted at 28 C.F.R. pt. 36 app. B

§ 104 (emphasis added). There is no special

statutory exception for HIV in the ADA.?*

23 See also Judith Rabkin, et al., Stability of Mood Despite

HIV Illness Progression in a Group of Homosexual Men, Am. J.

Psychiatry 154:2 at 231, 237 (1997) (compared to the “HIV-

negative men, the HIV-positive men had slightly more anxiety

and somatic depressive assessments,” but “were not, by and

large, clinically anxious or depressed”). Amici AIDS Action

Council, et al., also considerably overstate CDC guidelines

about things such as the danger of tap water. Compare AIDS

Action Council, et al., Br. at 25 with USPHS/IDSA Guidelines

for the Prevention of Opportunistic Infections in Persons

Infected With [HIV]: A Summary, 44 MMWR, No. RR-8, 8-9

(July 14, 1995) and Cryptosporidiosis: A Guide for Persons

WithHIV/ AIDS, http: / / www.cdc.gov/ncidod / diseases /crypto/

hivaids.htm (Feb. 11, 1998).

24 By contrast, many States have laws that apply specifically

to those with HIV. See, eg., Haw. Rev. Stat. § 515-6

(restrictive covenants void based on “race, . . . disability, age,

or HIV”); Ill. Ann. Stat. ch. 20, § 301/30-5(aa) (Smith-Hurd)

(discrimination prohibited based on “HIV status”); Ky. Rev.

Stat. Ann. § 207.135(1) (Baldwin) (same); La. Rev. Stat. Ann.

§ 22:228 (West) (“terminal, incapacitating, or debilitating

condition” includes “HIV”); Md. Code Ann., Health Occ., § 4-

315(a) (dentists may not discriminate based on “HIV”); Mo.

Ann. Stat. § 191.699 (Vernon) (health care professionals may

not discriminate based on “HIV infection”); Mont. Code Ann.

§ 50-5-105 (same); N.J. Stat. Amn. § 10:5-5(q) (West)

infection”); Vt. Stat. Ann. tit.3, §961 (unlawful to

discriminate based on positive “HIV-related blood test”); W.

Va. Code § 30-36-18 (1966) (“HIV” discrimination prohibited).

Many of these laws directly regulate health care

AP a ee in 4

-16-

Abbott also argues that everyone with a

“serious, irreversible, life-threatening medical

condition” (AMA Br. at 21) or a “contagious,

incurable, fatal” condition (Resp’t Br. at 28) is

disabled. The theory is that the duration of life is

substantially limited, and therefore all major life

activities, whatever they are, are substantially

limited. This view does not comport with the

historical context, purposes, and language of the

ADA, which are directed at persons with past or

present functional limitations, not statistically

probable future limitations, or even present

conditions causing significantly shortened life-

expectancies. E.g., 29 C.F.R. pt. 1630 app.

§ 1630.2(h) (“impairment” under the ADA does not

include “predisposition to illness or disease”).

Many people by genetic predisposition or other

condition (e.g., cancer, nicotine addiction, obesity)

have significantly shortened life-expectancies. The

ADA expands on the traditional idea of “handicap”

by covering such individuals, but only if they have

a record of a past or present functional limitation

which is substantial, or are regarded as such.?5

Congress could have passed the “Americans

professionals. Because this field is traditionally occupied by

the States, see County v. Automated Med. Labs.,

Inc., 471 U.S. 707, 715 (1985); Virginia State Bd. of Pharmacy

v. Virginia Citizens Consumer Council, 425 U.S. 748, 772

(1976) (Burger, C.J., concurring), the Court should hesitate

to interpret the ADA as a national health care regulatory act

giving the force of law to implicit CDC guidelines.

25 This is one reason why statistics that 8% to 25% of the

offspring of HIV-infected women have significantly shortened

life expectancies do not make all fertile HIV-infected woman

disabled, even if reproduction were a major life activity. Nor,

contrary to the logic of Abbott’s argument, would a nicotine

addict’s and/or functioning alcoholic’s decision not to become

pregnant make her disabled, even though “drug addiction

and alcoholism” are impairments listed in 28 C.F.R. § 36.104.

~ -

with Terminal Illnesses Act,” or the “Americans

with HIV Act,” but it did not. Even if every member

of Congress wanted, expected, or assumed that

HIV is always a disability, the objective import of

the words in the statute does not support that

interpretation. See Laurence Tribe, Comment, in A

Matter of Interpretation 65, 65 (1997) (“[ljike Justice

Scalia, I never cease to be amazcd by the

arguments of judges, lawyers, or others who

proceed as though legal texts were little more than

interesting documentary evidence of what some

lawgiver had in mind”); Ronald Dworkin, Comment,

id. at 118; see also Yellow Freight Systems uv.

Donnelly, 494 U.S. 820, 826 (1990).26

Abbott also protests that it makes no sense to

protect people with advanced “visible” HIV, but not

asymptomatic HIV. The same can be said for

almost every other condition: Why protect those

who are substantially limited, but not those who

are not quite as limited? It is simply inherent in

the definition chosen by Congress.?7

2© Dr. Bragdon is confident that an inquiry into why socially

conservative opponents of the ADA maintained that all HIV

carriers would be covered would disclose a purely political

motive to exaggerate the ADA to make it look bad for their

constituencies and to try to throw a late public relations

obstacle in its path. Cf. Gulf Offshore Co. v. Mobile Oil Corp.,

453 U.S. 473, 483 (1981). Legislators on the other side

hoped to accomplish their goal without having to amend the

statute, since that could be difficult (i.e., if HIV, why not

cerebral palsy, Huntington’s disease, cancer, etc?). Thus,

despite intense lobbying from AIDS organizations and a direct

recommendation from the Presidential Commission on HIV to

clearly include HIV as a disability, a majority in Congress (if

it existed) lacked the courage of its convictions, settling for

floor speeches and ambiguous committee reports. Now the

same organizations lobby the Court with the same policy

arguments. Regardless of their merit, they are properly

directed at Congress and/or state legislatures, not the Court.

27 Contrary to U.S. Br. at 19 n.11, Congress did not enact

- 18 -

V. “MAJOR LIFE ACTIVITIES” HAS NO

HELPFUL PLAIN OR ORDINARY MEANING.

Dr. Bragdon has been able to locate only two

instances of the phrase “major life activity” or

“major life activities” appearing outside a piece

about the ADA definition of disability. Both were

medical articles. Each equated “major life activity”

with school, work, retirement, or keeping house.?®

Furthermore, ask a person unfamiliar with the

ADA to list major life activities, and it is as likely

he will answer “avoiding pain and _ seeking

pleasure,” “war and destruction,” “the search for

meaning,” “gambling, drinking, and womanizing,”

or “culture and religion,” as “seeing and

breathing.” The “plain meaning” approach is

therefore unhelpful or hopelessly over-inclusive.

“Major life activities” only makes sense as a

term-of-art chosen to help circumscribe the

meaning of “disability” for the purposes of the ADA.

Reproduction, regardless of how vital it is to life,

does not f:t those purposes. That is why

the ADA against a reasoned judicial consensus that HIV is

always a disability. The cited cases are AIDS cases, e.g, Cain

v. Hyatt, cases of substantial limitations of major life

activities, e.g., Thomas v. Atascadero Unified Sch. Dist.; and

dicta citing an AIDS case, Doe v. Garrett. Moreover, the

Court had expressly reserved the issue in Arline, which holds

that persons with contagious diseases may be disabled, not

that they are always disabled.

28 Evans, et al., The Quality of Life of Hemodialysis Recipients

Treated With /rHuEPO], 263 JAMA 825, table 7 (1990); Lee

Cohen, et al., A Reevaluation of Risk of In Utero Exposure to

Lithium, 271 JAMA 146, 149 (1994) (indirectly citing Policy

Research Inc., Medical Practice Information Demonstration

Project at 4, 26 (Gov. Contract No. 282-77-0068 with HEW)).

29 The same person is as likely to insist that reproduction is

a major life event, not a major life activity.

-19-

reproduction is not found on HEW’s or any other

agency’s list of major life activities. It is also why

not a single comment of over 1,100 received during

Justice Department rulemaking maintained that

sexual activity and reproduction should be on the

Justice Department’s list of major life activities,

was concerned they were not, or spoke on behalf of

the problems of infertility or impotence.*°

Furthermore, if reproduction (or whatever

bundle of activities it refers to) is a “major life

activity” because of its importance in life or to life,

then nurturing others, feeding and clothing others,

having relations with others (or whatever you want

to call it) must in principle also be “major life

activities” since they are just as vital to the life and

growth of children (and the human race) as the

bare acts of impregnation and giving birth. But

given the extraordinarily broad definition of

“impairment,” if these forms of other-directed

activities are also “major life activities,” there will

be the proverbial flood of litigation, and the ADA

will expand into territories presently unimaginable.

This is why “caring for others” has never been on

any agency’s list of major life activities.*!

Also, contrary to Resp’t Br. at 20 n.24 and

U.S. Br. at 13, there is no _ one-to-one

correspondence between the list of eleven “body

systems” found in the regulatory definition of

“impairment,” 28 C.F.R. § 36.104, and “major life

activities.” Some body systems (e.g., skin,

cardiovascular) have no corresponding major life

30 ADA Comment Books #1 and #2 for Public Inspection

(comments 100-1299). See supra note 12.

31 Construing “major life activities” to include other-directed

activities is contrary to the impetus behind the ADA, which

was to promote independent living. See National Council on

the Handicapped, On the Threshold of Independence (1988)

and Toward Independence (1986).

- 20 -

activity, and some major life activities (working,

caring for one’s self) have no corresponding body

system. The inclusion of the reproductive system

in the list of body systems means that if a woman,

for example, is substantially limited in her ability

to work because of incapacitating pain associated

with dysmenorrhea or endometriosis, or has a

record of substantial limitation due to ovarian

cancer, she is not excluded from the definition of

disability because the condition originates in her

reproductive system.%?

CONCLUSION

While Abbott makes many policy arguments,

the better legal arguments support Dr. Bragdon’s

position. The judgment of the Court of Appeals

should therefore be reversed.

Respectfully submitted,

JOHN W. McCARTHY

BRENT A. SINGER, Ph.D.

Counsel of Record

RUDMAN & WINCHELL, LLC

Attorneys for Petitioner

84 Harlow Street

Bangor, Maine 04401

(207) 947-4501

32 Contrary to U.S. Br. at 10 n.3, no Chevron deference is

appropriate because Congress did not delegate authority to

an agency “to make specific policy determinations,” ABF

Freight System v. NLRB, 510 U.S. 317, 324 (1994); see Pauley

v. BethEnergy Mines, Inc., 501 U.S. 680, 696-697 (1991),

concerning the meaning of “disability,” and the Justice

Department has no special expertise to apply, see PBGC uv.

LTV Corp., 496 U.S. 633, 651-652 (1990).

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 Stuadard for

Occupational Exposure to Bloodborne Pathogens, 56 Fed.

Reg. 64004 (Dec. 6, 1991). These standards apply to dentists.

See American Dental Ass'n v. Martin, 984 F.2d 825 (7° Cir.

1993), cert. denied, 114 S. Ct. 172 (1995). 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 [i.e., Dr. Bragdon] is to be believed, and all justifiable

inferences are to be drawn in his favor.” Anderson v. Liberty Lobbv.

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.

App. 1

fatal illness as a result of occupational exposure to HIV

infected blood, and that such a risk has “clearly [been] defined

_. . as @ significant risk.” Id- OSHA therefore requires. and

the CDC recommends. the taking of certain “universai

precautions” (gloves, masks. handwashing, etc.). They are

called “universal” in the sense that they are to be used for all

patients. not in the sense that they eliminate the risk to dentists

of contracting HIV. In fact. when Senator Danie] Moynihan

inquired of the CDC in 1995 as to the efficacy for dentists of

taking “universal precautions,” the Director of the CDC

referred Senator Movnihan 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 [i.e., universal precautions]

should reduce the risk of occupational HIV infection by . .

62%.” (89a)

This means that according to OSHA. evidence indicates

that Dr. Bragdon and his assistants have a significant nsk of

contracting HIV without taking umiversal 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

invasive procedure. such as filling Ms. Abbort’s cavity near

the gum line, would have posed a direct threat pursuant to 28

C.F.R. § 36.208(c).

: 2. in 1992, the Food and Drug Administration (FDA)

issued recommendations for the prevention of HIV

transmission. The FDA recommends a twelve month deferral

App. 2

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, { 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, 4 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, § 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.

App. 3

i ee

(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 1s

not unusual for splatters of blood to reach the dentist. (70a, q

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

12, 72a-74a)

A reasonable inference from the FDA recommendations

concerning deferral periods following exposure to 4 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-surgica! physicians), and

seventy-eight suspected occupational transmissions of HIV to

health care workers, i

issi _ (104a-107a) The

seven suspected occupational transmissions of HIV to dental

workers are cases 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 }

App. 4

behavioral or transfusion risks.” (110a n.3; 1llan3) 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 “onlv 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. (llla-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.

App. 5

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. Uniike 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 (13la), just like the “routine

procudure” at issue in this case.

In addition, experts agree that the risk of transmission of

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

mucl: higher than the risk of transmitting from HCW to

patieat.” (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

App. 6

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 fi.e.,

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 be:ause 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

are unavoidable, personne! should

consider using high efficiency filtration masks

and systems for containing aerosols.

(149a)

15 E.g.. Bradley v. Universtiv of Tex. M.D. Anderson Cancer

Cur., 3 F.3d 922 (S® Cir. 1993), cert. denied, 114 S. Ct. 1071 (1994); _

Mauro v. Borgess Medical Cir., 886 F. Supp. 1349 (W.D. Mich. 1995);

Doe v. Washington Univ., 780 F. Supp. 628 (E.D. Mo. 1991).

App. 7

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. (101a) This was 2a

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 4 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

by Dr. Bragdon, taken individually and

cumulatively,16 did not raise a genuine issue for trial. The

Appeals Court arrived at this result, ostensibly, by attaching a

continuing presumption of correctness to the conclusions that

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

disease transmission among dental health-care

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)

App. 9

— —

li, Pg in———-_. ey

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™ ieee

legality of taking additional precautions while working on

perscns 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 ro »m settings

(also cited by Dr. Bragdon in his brief), did the United Siates,

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 v.

Johnston, 476 N.W.2d 28, 31 (Iowa 1991) (materiality of risk

was properly a jury question when conflicting expert

testiraony put risk of contracting HIV between 1/100,000 and

1/1,000,000); ef. also Carter v. Temple-Inland Forest Products

Corp., 943 $.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.

App. 10

Must Confront Myth and Prejudice in this Case.

It is sometimes assumed that among the poorly

educated, there is an irrational fear and 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,

homophobic, 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:

thous the evid

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 ‘vhat

medical journal or CDC publication it can be found.

App. 11

eel

ie ee

The vital point for the Court tc understand is that

no-where in the record has the CDC. any of Ms. Abbott's four

expe'ts, 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 bevond 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 gav disease serves a differing

polincal agenda.19

Ms. Abbott herself plays upon this myth bv repeated]v

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

19 The morally righteous tone to the plaintiffs’ political agenda is

illustrated by the response of one of Ms. Abbott's experts to the question

of whether Dr. Bragdon should be legally compelled to treat HIV-infected

patients, assuming there is a substantial likelihood of a transmission of

HIV :o him or his staff once every 10 years, or even once every vear.

His answer was “Yes,” “Life is a risk.” “[T)here’s obviously a risk, and

I think he should provide services. I’m not saying when you provide

services you provide it risk free and nothing happens. So the time frame

makes no difference to me.” (170a-171a)

App. 12

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%? (105Sa)

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.

C. The Appeals Court’s Decision Sets a Very Bad

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.

More precisely, this case is being watched carefully by

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

20 The CDC reports that “visible blood ou device” is a significant

factor for increasing the risk of HIV infection for a health-care worker

following a percutaneous injury. MMWR, vol. 44, no. 50, p. 929-932

(Dec. 22, 1995).

App. 13

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.