# Reply Brief — Bragdon v. Abbott

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0110%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1998
- **Citation:** 524 U.S. 624

## Text

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.)

20

18

18

4

8

17

16

12

Wi
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

Vv

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)

15

17

18

14

19

19

18

vu

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)

18

17

15

14

oe

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

He

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).

Re

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

eh

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.

7-

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

ie

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

fe

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).

Me

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).

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 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

v4

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

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, { 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

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 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
dentists to be exposed to the blood of their patients. (70a, ©

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

17

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

ae

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. 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

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 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

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. (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

21

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

— —

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22

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

23
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

24

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

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%? (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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0110%3A11. Public record. Not legal advice.