Petition for Writ of Certiorari — Bragdon v. Abbott

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? Supreme Court, U.S

FILED

No. rr ‘ay Tid

ry ft} t : sy

VR il Vi piskh as

In The

SUPREME COURT OF THE

UNITED STATES

October Term 1998

Randon Bragdon, D.M.D..,

Petitioner,

Sidney Abbott, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JOHN W. McCARTHY, ESQ.

Counsel of Record

BRENT A. SINGER, ESQ.

RUDMAN & WINCHELL, LLC

Attorneys for Petitioner

P.O. BOX 1401

84 Harlow Street

Bangor, Maine 04402-1401

Phone: (207) 947-4501

Q arte ae was? 4 1099

981536 maz 4

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QUESTIONS PRESENTED

1. Under the Americans with Disabilities Act (“ADA”),

are health care workers required by law to confront greater

risks than patients?

2. Under the ADA, are a defendant's private expert's

calculations of the statistical likelihood of a fatal injury,

relying on data available in September 1994, admissible to

raise a genuine issue of fact on whether an objectively

reasonable dentist could have deemed a risk significant in

September 1994?

3. Are factual and opinion assertions made for the first

time on appeal in an amicus brief by a professional

Organization admissible evidence justifying summary

judgment against a defendant on the issue of direct threat

under the ADA?

4. Was it plain and highly prejudicial legal error for

the Court of Appeals to maintain that 1987 CDC guidelines

inform dentists universal precautions eliminate the need for

additional precautions during invasive procedures?

9. Did the Court of Appeals’ method in deciding

Dr. Bragdon raises no genuine issue for trial so depart from

accepted and usual standards of judicial review, and the

prior decision of this Court, that its decision on remand

should be vacated and the case remanded for trial?

6. Under Title Ill of the ADA, who has the burden of

proof on the issue of direct threat?

7. What level of risk is legally significant under the

direct threat provisions of the ADA?

LIST OF PARTIES

The parties below were plaintiffs/appellees Sidney

Abbott and the Maine Human Rights Commission, and

defendant/appellant Randon Bragdon, D.M.D.

iil

TABLE OF CONTENTS

QUESTIONS PRESENTED .........ccccccssscssvessesees i

EA A SIR EPG EAS Was basacscbckavessenisevevostitenuceaiqens il

TA COR COU LIN ED Siescinssesss Sevensis cotiveeveeuie ill

TABLE OF AUTHORITIES...iis.c..-cccc.cscccccontses. XVi

PTR SETAE OF ceaccins iv vivcstludiaceecivevosesesonteis l

PRIMING BEDE sicdcdetaivdvisivanteiinctisbvetasctsschcondiness l

RELEVANT STATUTES AND

REISE EPEAT bats cotdechetelobesadesvecitess sesssvevsecess l

STATEMENT OF THE CASE .............::c0cccc000. 2

REASONS FOR GRANTING THE WRIT ....... 5

I. THE COURT SHOULD EXERCISE ITS

SUPERVISORY POWER BECAUSE

THE APPEALS COURT’S DECISION IS

SO PLAINLY FLAWED THAT IT DOES

NOTACCOMPLISH THE GOAL SET BY

THE COURT OF A FULLY INFORMED

DETERMINATION OF THE ISSUE........ 5

A. The 1987 CDC Guidelines Literally Say

The Opposite Of What The Appeals

Court Says They Say «.......i.c6..c..0.... 5

B. The Appeals Court Inexplicably Ignores

Dr. Bragdon’s Expert’s Calculation Of

The Risk Based on Objective

Information Available in September

C. The Appeals Court Ignored Evidence

That Universal Precautions Have Never

Been Shown To Be Effective Against

D. The Appeals Court Misstates The

Record When It Says The Origins Of

The American Dental Association’s

1991 Policy On HIV Are Undisputed,

And The Appeals Court Improperly

Admitted As Evidence Against Dr.

Bragdon Claims Made By The

Dental Association For The First

Time In Its Amicus Brief On

OSGI oeucicivinslccossnccstormahatpraamateiet

E. The Court’s Previous Analysis Of

The Probative Value Of Seven Possible

Occupational Transmissions Of HIV

Is Based On A Case of Mistaken

BCTAIEY issneispiide taolissheinetehteersilaciaastee

F. The Appeals Court Ignored Evidence

That Before 1994, Dentists Were

Repeatedly Warned The Risk Of HIV

Transmission To Them Was Greater

Than The Risk To Their Patients .........

G. The Appeals Court’s Decision So Far

Departs From The Accepted And

Usual Course of Judicial Proceedings

That The Court Should Exercise Its

SUPCTVISOLY POWELE ......00scccrcisvdassceanceces

Oe ONIN ote Ao Lambie Gal hon ein,

Il. THE APPEALS COURT’S DECISION

III.

IV.

CREATES A CONFLICT AMONG THE

CIRCUITS, AND AN UNJUSTIFIED

DOUBLE-STANDARD IN CONFLICT

WITH THE COURT'S DECISION,

CONCERNING WHAT LEVEL OF

RISK IS LEGALLY SIGNIFICANT .... .... 17

CERTIORARI SHOULD BE GRANTED

BECAUSE CASES GENERALLY FAIL

TO PROVIDE EMPLOYERS AND

PROFESSIONALS ACROSS THE

COUNTRY WITH DESERVED

GUIDANCE ON WHAT LEVEL OF RISK

IS LEGALLY SIGNIFICANT, AND

BECAUSE THE APPEALS COURT’S

DECISION SO DISTORTS THE MEDICAL

AND OBJECTIVE EVIDENCE

AVAILABLE TO DENTISTS IN 1994

THAT NO DENTIST OR OTHER

PROFESSIONAL TODAY COULD HOPE

TO COMPREHEND HOW THE LAW

CALCULATES, OR EXPECTS OTHERS

TO CALCULATE, THE SIGNIFICANCE

CE FR PRESB savsedeccenchorcasad dussexaehscaiadiattgs + obe'gie 19

CERTIORARI SHOULD BE GRANTED

BECAUSE THE APPEALS COURT’S

DECISION ENCOURAGES HEALTH

CARE WORKERS TO PRACTICE

BELOW MINIMUM SAFETY

Sek PEDERI: cninscscmsassennsecenvacedpibaasitivbeseays 25

V. THE APPEALS COURT’S DECISION

SHOULD BE REVIEWED BECAUSE

IT CONFLICTS WITH ESTABLISHED )

NORMS OF SAFETY IN OTHER

F Us ahriceiisvbieseedsopiccowrpih coovedeetookstuapivssnaady sen 26

VI. THE COURT SHOULD ADDRESS THE

RECURRING ISSUE OF BURDEN OF

PROOF UNDER TITLE III OF THE

Ft Reeth BRO te Eko ae EL EEF its Rohs eden pe 27

COUNCIL Iie asvcsceec ss cciicesk sets sicdodastheatdas nr 28 :

PETITION APPENDIX .

Abbott v. Bragdon, 163 F.3d 87 (1* Cir. 1998)... 1a-9a

Judgment of the United States Court of Appeals

for the First Circuit Entered December 29,

LODE ooo. cas ii lliG asec Gata eee bali ndadles 10a |

Excerpts from Bragdon v. Abbott, 118. S. Ct.

2196 (1998) en ee ethan lla-32a

Excerpts from Abbott v. Bragdon, 107 F.2d 934 |

C1" Cis: 997 2G oak 33a-52a ‘

Order of Court (1* Cir. Aug. 14, 1998)... 53a-54a

Motion for Remand (Aug. 21, 1998).................. 55a-6la

;

Brief of Defendant on Remand......................0+. 62a-169a

Vil

Excerpts from Addendum to Brief of

Defendant on Remand

Docket Doc. 56, Ex. 2 (Def.’s Mot. For S.J.

filed 09/19/95), excerpts from CDC, Open

Meeting on the Risks of Transmission of

Bloodborne Pathogens to Patients During

Invasive Procedures (Feb. 20-21, 1991)........ 170a-189a

Excerpts from Deposition of John Molinari,

Ph.D. (filed 09/19/95) ...............c0000. sie yale iai 190a-19la

Excerpts from CDC, Public Health Service

Guidelines for the Management of Health-

Care Worker Exposures to HIV and

Recommendations for Postexposure

Prophylaxis MMWR, vol. 47, no. RR-7

CRI FN cessiicsstodseauaicasenasitecsspscevesiutairsenes 192a-215a

Excerpts from Oversight Hearings on OSHA's

Proposed Standard to Protect Health Care

Workers Against Blood-Borne Pathogens

Including the AIDS and Hepatitis B Viruses,

vol. 1, Hearings before the Subcommittee on

Health and Safety of the Committee on

Education and Labor, House of

SOCIO sc csivewssnciccescccopevisiacscveseuy exoesees 216a-222a

Excerpts from CDC, HIV/AIDS Surveillance

Report (U.S. HIV and AIDS cases reported

through June, 1994), vol. 6, mo. 1 ..........-...00 223a-225a

Do Universal Precautions Reduce Needlestick

Injuries?, JAMA, vol. 266, no. 3, pp. 359-360

aly NOOR) Se ek Apert inins 226a-229a

Excerpts from OSHA, Safer Needle Devices:

Protecting Health Care Workers (Oct. 1997) 230a-240a

Vili

John Molinari, Ph.D., Infected Health-Care

Professionals: Healers or Modern Day

Lepers? Part 2 - Approaches and

Recommendations, Compend. Contin. Educ.

Dent., vol. xiv, no. 8 (Aug. 1993)... 241a-243a

Excerpts from Deposition of Deborah

Greenspan, BDS, DSc (filed 09/19/95) ......... 244a-249a

John Molinari, Ph.D., Infected Health-Care

Professionals: Healers or Modern Day

Lepers? Part 1 - Issues and Considerations,

Compend. Cont. Educ. Dent., vol. xiv,

NO: ss nocessusspnribsnssndnahd seobarestec etait aan 250a-254a

Docket Doc. 59 (Abbott’s Motion for

Summary Judgment), p. 17, filed 09/19/95... 255a

Excerpts from deposition of Randon

Bragdon, D.M.D. (filed 09/19/95) ........0....0.. 256a-311a

Docket Doc. 56 (Bragdon’s Motion for

Summary Judgment), Ex. 6, filed 09/19/95... 312a-314a

Excerpts from Deborah Greenspan, et al.,

AIDS and the Mouth (1990).........ccccccccccseseeeee 315a-317a

Tokars, et al., Surveillance of HIV Infection

and Zidovudine Use Among Healthcare

Workers with Occupational Exposure to HIV

Infected Blood, Ann. Intern. Med., vol. 118,

SiO TZ Cire STS FP isiciaricticenscevesiacknanpenetiactcseser 318a-331a

Excerpts from Siew, et al., Percutaneous

Injuries in Practicing Dentists, JADA,

VOL 126 CRB FIGS Bsisacsicccaoakseadcnsdlanescanccacs 332a-334a

Docket Doc. 73 (Bragdon’s Opposition to

Motion for Summary Judgment) Ex. la,

Gooch, et al., Percutaneous Exposures to

HIV-Infected Blood Among Dental Workers

Enrolled in the CDC Needlestick Study,

JADA, vol. 126 (Sept. 1995) ......:ccccceeeeeeeeeees 335a-346a

Klein, et al., Low Occupational Risk of

[HIV] Infection Among Dental Professionals,

New Engla.id J. of Medicine, vol. 318, n. 2

(Jen: A988) csi ciation aecus 347a-356a

Docket Doc. 57 (Bragdon Statement of

Material Fact), Ex. B, Ciesielski, et al.,

Transmission of Human Immunodeficiency

Virus in a Dental Practice, Annals of

Internal Med., vol. 116, no. 10 (May 1992)... 357a-374a

CDC, Update: Investigations of Persons

Treated by HIV-Infected Health-Care

Workers - United States, MMWR, vol. 42,

nos 7. Clay: 17, 1998) cncikcpliineiotiriicdiiss 375a-379a

Chitwood, et al., HIV Seropositivity of

Needles from Shooting Galleries in South

Florida, Am. J. of Public Health, vol. 80,

nO. DAP eR. 1990) esis hc GRAS: 380a-388a

David Ho, M.D., Quantitation of HIV-1 in

Vivo, HIV Advances in Research and

Therapy, vol. 2, no. 3 (Oct. 1992)..............4 389a-399a

Reingold, et al., Failure of Gloves and Other

Protective Devices to Prevent Transmission

of Hepatitis B Virus to Oral Surgeons,

JAMA, vol. 259, no. 17, pp. 2558-2560

(GY 198) 3. ccscc dine alee 400a-408a

Enid Neidle, But the Horse Has Left the

Stable, Quintessence Int’l, vol. 25, no. 3

(999A) oo iiccnicccircinrlastecacni mas ee 409a-413a

Letters from Kenneth Burrell, D.D.S..,

Secretary of Council on Dental Therapeutics,

American Dental Association, to Dr. E. J.

Neiburger, dated 05/25/90 and 07/17/90........ 414a-417a

Noble, et al., Hepatitis B and HIV infections

in dental professionals: Effectiveness of

infection control procedures, J. Can. Dent.

Assoc., vol. 57, no. 1 (Jan. 1991)..........5....... 418a-429a

American Dental Association, Cost of OSHA

Compliance Gets Mixed Response, vol. 25,

no: 18 (Oct S; 1994) ..3..c8ee Aan 430a-434a

Excerpts from Comment no. 863

(April 23, 1991) in ADA Comment Book # 1

for Public Inspection, Justice Dept., Disability

Rights Division, 1425 New York Ave., NW,

Washington, D.C. (Letter from American

Association of Orthodontists dated 04/23/91

to John Wodatch, U. S. Dept. of Justice)....... 435a-438a

Excerpts from CDC, HIV/AIDS Surveillance

Report (U.S. HIV and AIDS cases reported

and or diagnosed through June, 1995) vol. 7, 7

THO. Tso. ccsssisdeivaseligavenounceceseuss haubetiesebbstln ieeiase 439a

Excerpts from Karon, et al., Prevalence of

HIV Infection in the United States, 1984 to

1992, JAMA, vol. 276, no. 2. (1996)............. 440a-448a

Excerpts from United Nations and WHO,

Report on the Global HIV/AIDS Epidemic

(TGC SITY aisaccvcicscinliudeeskaniistumccntentatcaaiie 449a-450a

Page 8 of Abbott’s brief as Appellee (1996). 451a-452a

CDC, Recommendations for Prevention of

HIV Transmission in Health-Care Settings,

MMWR, vol. 36, no. 2S (1987)...............00006 453a-461a.13

Excerpts from CDC Update: Universal

Precautions for Prevention of Transmission

of Human Immunodeficiency Virus,

Hepatitis B Virus, and Other Bloodborne

Pathogens in Health-Care Settings,

MMWR, vol. 37, 377-382, 387,388 (1988)... 462a-467a

Excerpts from CDC, Public Health Service

Statement on Management of Occupational

Exposure to Human Immunodeficiency Virus,

Including Considerations Regarding

Zidovudine Postexposure Use, MMWR,

vol. 39, nd: RR-T C1990) nk ke 468a-472a

Excerpts from ADA and OSHA, A Guide to

Dental Employer Obligations, Post-Exposure

Evaluation and Follow-Up Requirements

under OSHA’s Standard for Occupational

Exposure to Bloodborne Pathogens (1997)... 473a-478a

Weber & Wulc, The Use of a Contained

Breathing Apparatus to Isolate the Operator

and Assistant for Aerosolizing Procedures

Including Dermabrasion and Laser Surgery,

Annals of Plastic Surgery, vol. 29,

6. 2 (1992 oc ea BR, aaa 479a-483a

Excerpts from Abbott’s answers to

RPILRION IOS cs secsevnssacivoiidigeseceiunnsvatersceueesin 484a-488a

i ae

xil

Excerpts from O’Brien and Bartlett, 7B

Plus HIV, American Journal of Nursing

CNG TSG ZK oa ciincsenot tices at colatarnecsvecbacts 489a-492a

Copies of brief covers (4) of amici curiae..... 493a-500a

Excerpts from Mark Mascolini, Interview

with David Ho., MD, How Far Can You

Knock Down HIV? TAPAC 1.......cccccccscecseeeeeee 501la-503a

USA Today, Scientists solve mystery of

Jupiter's rings, (Sept. 16, 1998) ...........00000.. 504a-505a

Copies of letters to and from the American

Dental Association regarding Dr. Bragdon’s

requests for information concerning the

Association’s 1991 Policy Statement ............ 506a-514a

Excerpts from Ehrlich, et al., Essentials of

Dental Assisting O992) cscs thins whciicnGns. 515a-517a

Excerpts from Ehrlich, et al., Essentials of

Dental Assisting, (1996) sccisticathieiudiitonn 518a-523a

Excerpts from Appendix to Brief of Dr.

Bragdon on Appeal (July 1996)

Excerpts from Declaration of Deborah

Greenspan dated 9/17/95 ...........cccccssssecseeseees 524a-526a

CDC, Recommended Infection-Control

Practices for Dentistry, 1993, 41

Morbidity & Mortality Weekly Report,

No. RR-8 (May 28, 1993) c..ccccccisecsicceeescssseveee 527a-547a

Xill

Robert & Bell, HIV Transmission in the

Health-Care Setting, Infectious Disease

Clinics of North America, vol. 8,

yaw TD go) Sandee BR tsircee) Caen 7 aaa 548a-566a

John Molinari, Ph.D., H/V, Health Care

Workers and Patients: How to Ensure

Safety in the Dental Office, JADA,

MOL TAs O. Fe CAMeh BIA) sais tanccocncessmncnnceeiee 567a-57la

Excerpts from Declaration of Sanford F.

Kuvin, M.S., M.D., D.T.M. & H. dated

9/14/95 with Report of Sanford F. Kuvin

nea kn Re ea en ORE EEE MS ey SE OT §72a-575a

Affidavit of Randon Bragdon, D.M.D., dated

gy PRESERNSSE TRIN Sane HABE ET Artes bake oor Ce Gee Re 576a-578a

Excerpts from Abbott’s Answers to

Defendant Randon Bragdon, D.M.D.’s,

PRDORT OB IONI OE ccc ccccenesskiie Siebel nthe 579a

Excerpts from Deposition of Donald

Marianos, DDS, taken on 8/10/95 ................. 580a-583a

Abbott’s Patient Registration and Health

IE FGI aia cscinciccharcieiscc nsdn tapes 584a-585a

Excerpts from Deposition of Sanford F.

Kuvin, M.D., dated July 20, 1995................. 586a-589a

Excerpts from the American Dental

Association Policy on AIDS, HIV

Infection and the Practice of Dentistry .......... 590a-59la

Affidavit of Arleen Richman dated 9/29/95 .. 592a-596a

XiV

Excerpts from Food and Drug Adminis-

tration Notice to All Registered Blood

Establishments dated 4/23/92 ..0...........::00cc000

Second Declaration of Sanford Kuvin,

NLD. Gated 10/4/95 a Bee Ce a

Declaration of William Halteman Ph.D. .......

Excerpts from Declaration of Donald

Wayne Marianos, D.D.S. dated 10/18/95......

Excerpts from Second Affidavit of Randon

Bragdon, D.M.D. dated 10/18/95 ..................

Letter to Senator Daniel Moynihan from

David Satcher, M.D., Director of CDC

GRO LOFT ID iis ccetnandeinsetihccislinss elbpcbcicntainced

Wong, et al., Are Universal Precautions

Effective in Reducing the Number of

Occupational Exposures Among Health

Care Workers? A Prospective Study of

Physicians on a Medical Service, JAMA

Vol. 265, No. 9, p. 1126 (1991)...

Fahey, et al., Frequency of Non-

parenteral Occupational Exposures to

Blood and Body Fluids Before and After

Universal Precautions Training, Am. J.

of Medicine, Vol. 90 (Feb. 1991) ..........0...0...

Johnson & Robinson, Human Jmmuno-

deficiency Virus-1 (HIV-]) in the Vapors

of Surgical Power Instruments, J. of

Medical Virology, Vol. 33 (1191).................

597a-601la

602a-610a

6lla-614a

615a-617a

618a-620a

621a-622a

623a-636a

637a-653a

654a-660a

SENSES Se pa

Rebbe Ti els NE Ra ati a a oth ee ae oa

Pa Re Seg at sed te AIR a IS AIM II bias

Case-Control Study of HIV Serocon-

version in Health-Care Workers After

Percutaneous Exposure to HIV-Infected

Blood — France, United Kingdom, and

United States, January 1988 — August

1994,Morbidity and Mortality Weekly

Report, Vol. 44, No. 50 (12/22/95)...........000: 661a-665a

Declaration of Leon Kelleher, D.D.S.

Bate SIP DIGG ss vaiiskcceikscteecteetaatadbininlsscitiasast 666a-669a

Dr. Bragdon’s Response to Abbott’s Brief on

Remand with attached Exhibit A....................00. 670a-674a

Dr. Bragdon’s Renewed Motion for Remand

CRIT IIS isnt sss scissacecsbaccntiirdeniccessnsses vocadeibactataiceel 675a-68la

Excerpts from Transcript of 11/12/98

Proceedings before the U. S. Civil Rights

CORAIIIGBIGI iii scccsinscccncnntccceslaes dee inetiidonts 682a-683a

Order of Court (1* Cir. Oct. 21, 1998) ..........2... 684a-685a

XV1

TABLE OF AUTHORITIES

CASES PAGES

American Dental Ass’n v. Martin

984 F.2d 823 (7™ Cir.), cert. denied, 510

US. BSF CaP) cvcriincicnibicsmslsattisaesasdadigetins 10

Bradley v. University of Tex. M.D. Anderson

Cancer Ctr.

3 F.3d 922 (5" Cir. 1993), cert. denied, |

114 S42: 1071 90s) cs 17

Burroughs v. City of Springfield

163 F.36 505 (6* Cir. 1998) 5c 24

Daugherty v. City of El Paso

56 F.3d 695 (5" Cir. 1995), cert. denied, 111

S. Ct. 1263 (1996). vsciccsckesectvccblsetd esta Marie 23

Dipol v. New York City Transit Auth.

999 F. Supp. 309 (E.D.N.Y. 1998)................... 23

Doe v. Dekalb County Sch. Dist.

145: F368 TOOT CLSOG) see ui is cesteiesecapeecenes 23

Doe v. University of Md. Medical Sys. Corp.

50 F.3d 1261 44% Cit: A995) SSeS ics 17

Doe v. Washington Univ.

780 F. Supp. 628 (E.D. Mo. 1991)... 17

E.E.0.C. v. Amego Inc.

£10 F.3d 139 €1" Ci: 9997) 6 che ee 23,28

E.E.0.C. v. Exxon Corp.

1 F. Supp.2d 635 (N.D. Tex. 1998) ..........5c50: 21,28

XVil

E.E.O.C. v. Union Pacific R.R.

6 F. Supp.2d 1135 (D. Idaho 1998).................. 21,24,28

Estate of Mauro v. Borgess Med. Ctr, 137

ee we SO vissiinsiccnrscprnssiasnntecsooannen 17

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

Petroleum Institute

GAS U.S: GOT G9GO) (iron conssscsensccreecnssscocssoesssoenss

International Union U.A.W. v. General

Dynamics Land Systs. Div.

615 264570 (DC. Cis, 1987)......00...0.......0065- 26

LaChance v. Duffy's Draft House, Inc.

146 F.3d 832 (11™ Cir. 1998) .....ceeeeeeeeeeeeees 24

Leckelt v. Board of Comm'rs of Hosp. Dist.

No. 1

S00 P94 890 (5" Cr. 1990. cascades tii 17

Montalvo v. Radcliffe

F.3d , 1999 WL 65624 (4" Cir.

Nunes v. Wai-Mart Stores, Inc.

F.3d , 1999 WL 33703 (9" Cir.

Onishea v. Hopper

126 F.3d 1323 (11" Cir. 1997), vacated for

en banc review, 133 F.3d 1377 (11" Cir.

Scoles v. Mercy Health Corp. of S.E. Pa.

887 F. Supp. 765 (E.D. Pa. 1994)............: 17

XVill

Turco v. Hoechst Celanese Corp.

101 F.3d 1090 (5™ Cir. 1996) .0....ccccccceeceeeeeeees 24

STATUTES

26 USC ac l

29 US C4 CO kek SS 26

AS UES OTE neces cineca 2

REGULATORY AUTHORITIES

28 CPR. § SC LOC) vicinsceciosincnsiscissncintbade de 21

2P CBE. © IGG icaccckincsntacoconapentethenssadactugsin 21

SG POSTE, OE GG issn s eats bari skccsenenespcnondaunns 12,13,22

56 Fed. Reg: at G6U26....... niin ein 8

MISCELLANEOUS

Beekmann & Henderson, Managing

Occupational Risks in the Dental Office,

125 J. Am. Dental Assn. 847 (July 1994)........... 15

_ CDC, HIV/AIDS Surveillance Report, vol. 6,

no. 1, p. 15, tbl. 11 (Mid-year ed. June 1994).... 14

CDC, Recommendations for Prevention of

HIV Transmission in Health-Care Settings,

36 Morbidity & Mortality Weekly Report,

INO. Bid CF DG TD dnceseinckccttevesccaceiepiatectinttedertalenns 4.6

CDC, Recommended Infection Control

Practices for Dentistry, 41 Morbidity &

Mortality Weekly Report, No. RR-8

(ESS ZO UPI os esnttcnrtecccicdcecdnasieanabersbacdionibiciens 25

Comment, Federal Statutes and Regulations:

The Americans with Disabilities Act

112 Harv. L. Rev. 283 (No. 1998).................... 18,1924

X1X

Gooch, et. al., Percutaneous Exposures to

HIV-infected Blood Among Dental Workers

Enrolled in the CDC Needlestick Study,

126 J. Am. Dental Assn 1237 (1995) ...........-.-++. 14

Noble, et al., Hepatitis B and HIV Infections

in Dental Professionals: Effectiveness of

Infection Control Procedures, J. Can. Dent.

Po Ra Pe Me Gg) aps aby een EOE 9

Reingold, et al., Failure of Gloves and

Other Protective Devices to Prevent

Transmission of Hepatitis B Virus to Oral

Surgeons, JAMA, vol. 259, no. 17 38) * | SRS 9

Stern, et. al., Supreme Court Practice

Sek get © Pa Lc) Maperersrgconamies | ePas eee Mer 29

OPINIONS BELOW

Abbott v. Bragdon, 163 F.3d 87 (1" Cir. 1998)

(affirming summary judgment) (1a-9a); Bragdon v. Abbott,

__ ~iU~LS. ~___, 118 S. Ct. 2196 (1998) (vacating and

remanding) (11a-32a); Abbott v. Bragdon, 107 F.2d 934

(1* Cir. 1997) (affirming summary judgment) (35a-52a);

Abbott v. Bragdon, 912 F. Supp. 580 (D. Me. 1995)

(summary judgment in favor of plaintiff).

JURISDICTION

The judgment of the United States Court of Appeals for

the First Circuit (the “Appeals Court”) was entered on

December 29, 1998 (10a). This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

RELEVANT STATUTES AND REGULATIONS

42 U.S.C. § 12182(b)(3): “Specific Construction.

Nothing in this subchapter [title Ill of the ADA] shall require

an entity to permit an individual to participate in or benefit

from the goods, services, facilities, privileges, advantages

and accommodations of such entity where such individual

poses a direct threat to the health or safety of others. The

term ‘direct threat’ means a significant risk to the health or

safety of others that cannot be eliminated by a modification

of policies, practices, or procedures or by the provision of

auxiliary aids or services.”

28 C.F.R. §36.208(c): “In determining whether an

individual poses a direct threat to the health or safety of

others, a public accommodation must make an

individualized assessment, based on reasonable judgment

that relies on current medical knowledge or on the best

available objective evidence, to ascertain: the nature,

duration, and severity of the risk; the probability that the

potential injury will actually occur; and whether reasonable

modifications of policies, practices, or procedures will

mitigate the risk.”

a ee

STATEMENT OF THE CASE

On September 16, 1994, Sidney Abbott visited Randon

Bragdon, D.M.D., at the urging of the Executive Director of

the Eastern Maine AIDS Network (485a, 487a). Ms. Abbott

informed Dr. Bragdon she had been HIV positive for

approximately eight years (259a). Dr. Bragdon performed

a non-invasive dental examination on her in his office. He

found a cavity near the gum line on a back lower tooth that

needed filling (256a-259a). Filling the cavity required

invasive procedures (577a-578a), which were defined in

1987 by Centers for Disease Control and Prevention

(“CDC”) as the manipulation or cutting of “oral or perioral

tissues, including tooth structure, during which bleeding

occurs or the potential for bleeding exists” (459a).

According to the 1987 CDC guidelines, universal blood and

body-fluid precautions “should be the minimum precautions

for all such invasive procedures” (emphasis in original)

(459a).

Based on this information and other evidence available

in September 1994 (e.g., studies of the efficacy of universal

precautions (226a, 400a, 414a, 418a, 466a, 623a, 637a),

reported rates of accidental sharps injuries among dentists

(316a, 372a), published seroconversion rates. after

percutaneous HIV exposure (318a, 557a), OSHA analyses

(e.g., 56 Fed. Reg. at 64092), and other CDC guidelines

and reports of actual and possible HIV transmissions

(224a, 549a-550a), Dr. Bragdon believed performing the

invasive procedures necessary to fill Ms. Abbott’s cavity

posed a direct threat of accidental HIV transmission to

himself and his staff, meaning, a significant risk that could

not be eliminated by universal precautions, by other

reasonable modifications of policies, practices, or

procedures, or by the provision of auxiliary aids or services.

See 42 U.S.C. § 12182(b)(3) (definition of direct threat).

Dr. Bragdon believed the best way to minimize the HIV

risk consistent with the highest standard of care for

Ms. Abbott, was to perform the invasive procedure using

«2

state-of-the-art infection control in the most aseptic

environment available. He therefore offered to fill the

cavity in what he thought would be a local hospital, less

than 1.5 miles from where Ms. Abbott lived and worked,

and where he believed dental facilities were maintained

and he would be permitted to perform the procedure

“without any problem” (261a, 265a, 584a). Ms. Abbott said

she would consider it (579a), but instead she sued him

under Title Ill of the ADA. The District Court had

jurisdiction under 28 U.S.C. § 1331.

The District Court granted summary judgment against

Dr. Bragdon based on affidavits of a public health official

that were not available until after September 1994. Abbott,

912 F. Supp. at 589. The Appeals Court, and later this

Court, agreed the affidavits could not be used against

Dr. Bragdon in determining whether Dr. Bragdon’s risk

assessment was objectively reasonable from the

standpoint of medical and objective evidence available in

September 1994 (22a). The Appeals Court nonetheless

affirmed summary judgment against Dr. Bragdon based on

its reading of 1993 CDC Dentistry Guidelines (the “1993

Guidelines”) and a 1991 American Dental Association

Policy Statement on HIV (the “1991 Dental Association

Policy”) (44a-45a). The Court granted certiorari.

By opinions issued June 25, 1998, four members of

the Court agreed “it is clear ... that [Dr. Bragdon]

presented more than enough evidence to avoid summary

judgment on the ‘direct threat question” (Part Il of

Rehnquist, C.J., concurring and dissenting in part, joined

by O'Connor, J., Scalia, J. and Thomas, J.) (30a, 32a).

Three members of the Court were uncertain (Kennedy,

J., Souter, J., and Ginsburg, J.). They believed CDC, or

other public health authority guidance available in

September 1994, should be given special weight in

understanding what would be an objectively reasonable

tisk assessment at the time, and that the existence of a

significant risk must be determined from the standpoint of

wake

objectively reasonable dentists. However, because the

1993 Guidelines “do not assess the level of risk,” they

doubted the 1993 Guidelines justified summary judgment

against Dr. Bragdon (21a-23a).

The same members of the Court questioned the

Appeals Court’s reliance on the 1991 Dental Association

Policy. They pointed out the American Dental Association

is not a public health authority, and that the ADA calls for a

“scientific assessment of the risk,” which is a question of

“statistical likelihood, not professional responsibility.” They

thought the record did not disclose a scientific or statistical

basis for the 1991 Dental Association Policy. The Policy

was some evidence the medical community had assessed

the risk, but it did not prove there was no direct threat, or

that no reasonable dentist could have thought there was a

direct threat based on other medical or objective evidence

(23a-24a). Furthermore, although Dr. Bragdon and

Ms. Abbott presented affidavit testimony from expert

witnesses, the affidavits did not disclose whether the

opinions were based on information available in September

1994 (24a). They therefore favored vacating the judgment

and remanding to “permit a full exploration of the issue”

- (26a). Justice Ginsburg emphasized it was best to err, if at

all, “on the side of caution,” and her stated goal was to

“ensure a fully informed determination” (28a).

Justices Stevens and Breyer thought summary

judgment should be affirmed. However, to make a majority

of five, they joined Justices Kennedy, Souter, and Ginsburg

in favoring a remand to the Appeals Court (27a). The

effect was to block a remand for trial, even though of the

six justices who expressed an opinion on the issue, four

thought Dr. Bragdon clearly raised genuine issues for trial.

The Appeals Court’s decision on remand, see 5a-6a,

relies on CDC’s 1987 Recommendations for Prevention of

HIV Transmission in Health-Care Settings, 36 MMWR No.

2S (Aug. 21, 1987) (the “1987 Guidelines”) (453a-461a.13),

instead of CDC’s 1993 Guidelines (527a-547a). Such

REPEL: SEER NO WN

«i.

reliance is so literally misplaced it is hard to imagine what

the Appeals Court was thinking. The decision also applies

a legally unjustified double standard, inexplicably ignores

Dr. Bragdon’s expert's statistical calculations, and wrongly

treats as undisputed certain factual and opinion assertions

made by the American Dental Association for the first time

on remand in an amicus brief.

The Appeals Court’s opinion is so deeply fiawed that it

cannot be said to have accomplished the tasks set by the

Court of a full exploration of the scientific evidence and a

fully informed determination. The opinion, at best, carries

forth sub silentio a policy determination that regardless of

the scientific and statistical evidence available to dentists in

September 1994, and regardless of what CDC publications

actually say, the case should not go to trial.

REASONS FOR GRANTING THE WRIT

|. - 20 COURT SHOULD EXERCISE ITS

SUPERVISORY POWER BECAUSE THE APPEALS

COURT’S DECISION IS SO PLAINLY FLAWED THAT

IT DOES NOT ACCOMPLISH THE GOAL SET BY

THE COURT OF A_- FULLY INFORMED

DETERMINATION OF THE ISSUE.

A. The 1987 CDC Guidelines Literally Say The

Opposite Of What The Appeals Court Says

They Say.

The Court properly doubted the 1993 Guidelines

support summary judgment on the level of risk (23a).

Thus, on remand, the Appeals Court relied on the 1987

Guidelines, instead of the 1993 Guidelines. The Appeals

Court says the 1987 Guidelines “explain{] that the use of

the universal precautions eliminates the need for additional

precautions that CDC formerly had advocated” (6a). This

information from the 1987 Guidelines, according to the

Appeals Court, fills the implicit gap in the 1993 Guidelines,

thereby informing objectively reasonable dentists there is

no significant risk, thereby proving Dr. Bragdon acted

irrationally.

Under a bold heading “Precautions for Invasive

Procedures,” the 1987 Guidelines define an “invasive

procedure” as, inter alia, “the manipulation ... of any oral

or perioral tissues, including tooth structure, during which

bleeding occurs or the potential for bleeding exists” (459a).

Filling a cavity near the gum line is a quintessential

example of an invasive procedure (577a-578a). The 1987

Guidelines then say:

The universal blood and _ body-fluid

precautions listed above, combined with the

precautions listed below, should be the

minimum precautions for all such invasive

procedures.

(459a) The “universal blood and body-fluid precautions

listed above,” to which the 1987 Guidelines refer, are

routine precautions for non-invasive procedures. They

take the place of formerly recommended CDC isolation

precautions in non-invasive settings (459a). The

“precautions listed below,” to which the 1987 Guidelines

refer, are special precautions for invasive procedures, for

dentistry, and for other specialized services (459a). The

1987 Guidelines say the precautions listed above and

below combined should be the minimum precautions for

all invasive procedures. The Appeals Court says the

1987 Guidelines say the opposite, namely, universal

precautions “eliminate the need for additional precautions.”

On that basis, and really only on that basis, the Appeals

Court rules that Dr. Bragdon is a civil rights violator who

does not deserve a trial, and who should be exposed for

liability under the ADA for Ms. Abbott's attorneys’ and

experts’ fees in excess of $300,000.

What is going on?

The reasonable thing to conclude from the 1987

Guidelines, since it is what they say, is that universal

precautions, plus all the other precautions described in the

Guidelines, are not the maximum prudent precautions

when filling cavities near the gum line, but the minimum

ee camaro

Pye

precautions. This clearly expresses the view that even

with universal precautions, there is a residual risk of

significance, and therefore it is wise to take additional

precautions, and in fact dentists are told they “should” take

additional precautions. Yet the Appeals Court says the

opposite, and based on that, affirms summary judgment

against Dr. Bragdon again.

With this kind of topsy-turvy, up-is-down logic, what

could Dr. Bragdon possibly have said to convince the

Appeals Court that published CDC guidelines do not

support Ms. Abbott and there is a genuine issue for trial?

What could he have said? What's more, Dr. Bragdon

specifically pointed out in his response brief that the 1987

Guidelines support him, not Ms. Abbott, on this very point

(670a-673a). The Appeals Court accepted the brief for

filing (684a). in addition, how are conscientious

professionals in the future supposed to understand what

the law requires, when the law as it now stands is that CDC

guidelines mean the opposite of what they actually say? It

just does not get any more Orwellian than this.

There is no way the highest court in any country

should let this stand as a fully informed determination of an

issue. To do so would insult the integrity of the judicial

process and trivialize in the extreme the Court's previous

decision to vacate and remand.

B. The Appeals Court Inexplicably Ignores

Dr. Bragdon’s Expert’s Calculation Of The Risk

Based On Objective Information Available In

September 1994.

Throughout the case, and on remand, Dr. Bragdon

argued that his expert witness, Sanford Kuvin, M.S., M.D.,

D.T.M.&H., calculated the risk, by accepted scientific

methodology, of contracting HIV by accidental needlestick

when giving intra-oral injections to HIV-positive patients.

The risk is 1 in 67,000 per intra-oral injection, or 1 in 10,

over 30 years of practice, if a dentist gives one such

injection each working day (606a). A 1 in 67,000 risk is

greater than the risk of a fatal accident while skydiving,

which is approximately 1 in 100,000 (592a, 596a).’

On remand, Dr. Bragdon further emphasized how,

according to the Court, the “question under the [ADA] is

one of statistical likelihood, not professional responsibility”

(24a, 83a-86a). Dr. Bragdon explained in careful detail in

his brief, see 91a-119a, 147a-151a, why Dr. Kuvin’s

calculations of the risk are reliable and admissible, how

they are based on published data available in 1994, why

Dr. Kuvin’s results comport with CDC estimates of the risk

to patients (106a-112a), why his results comport with the

number of documented and possible occupational

transmissions of HIV as reported by CDC’s “passive

surveillance” system (147a-151a), and why his results raise

a genuine issue for trial (116a-119a).

The Appeals Court ignored Dr. Kuvin’s analyses with

no explanation at all. There is no hint as to whether the

Appeals Court thought Dr. Kuvin’s analyses were

inadmissible, or if admissible, not on point, or if on point,

insufficient to raise a genuine issue of the statistical

likelihood of the risk, or if sufficient to raise that issue,

insufficient to raise a genuine issue that that level of risk is

legally significant.

In sharp contrast, the Appeals Court states Ms. Abbott

“proffered the opinions of several prominent experts” (7a).

These are the same, non-public health authority, private

expert opinions referred to by this Court, when it noted that

it could not tell if such opinions were based on information

available in September 1994 (24a). To correct this

deficiency, Dr. Bragdon moved on remand for a further,

limited remand, to give experts a chance to clarify through

affidavits the extent to which their opinions are based on

' OSHA assesses the significance of a risk based on an

assumed 45 years of exposure during an entire working

lifetime. See 56 Fed. Reg. at 64028. Dr. Kuvin’s calculation

based on 30 years of exposure is therefore conservative by

accepted OSHA standards.

46%

information that was available in September 1994 (55a).

Dr. Bragdon was particularly concerned because previously

the Appeals Court in a footnote ostensibly discounted

Dr. Kuvin’s analyses because the Appeals Court was

uncertain that Dr. Kuvin relied on information available in

September 1994 (45a-46a). Dr. Bragdon wanted to make

sure the record is clear that Dr. Kuvin’s calculations and

opinions rely on data that was available to knowledgeable

dentists in September 1994.

The Appeals Court denied Dr. Bragdon’s motion which

would have given the experts a chance to clarify whether

their opinions were based on information available in

September 1994 (684a). The Appeals Court then applied a

double standard whereby it ignored the expert opinion of

Dr. Kuvin (e.g, 573a-574a, 606a), but cited Ms. Abbott's

experts’ opinions as further evidence against Dr. Bragdon,

with nothing more to rely on than what the Court rejected

as too uncertain to rely on (7a).

The rule at summary judgment is that courts must view

the record in the light most favorable to the non-movant.

What the Appeals Court did by nullifying Dr. Kuvin without

comment, while citing Ms. Abbott's private experts, is

totally contrary to the rule of law. This further illustrates

how unspoken policy judgments are controlling this case,

rather than the law or any objective evidence available to

dentists in September 1994.

C. The Appeals Court Ignored Evidence That

Universal Precautions Have Never Been Shown

To Be Effective Against HIV.

Dr. Bragdon explained in detail, see 120a-127a, why

no knowledgeable dentist in 1994 could have concluded

universal precautions have any significant impact on the

risk of contracting HIV in the dental office. See also, e.g.,

226a; Reingold, et al., Failure of Gloves and Other

Protective Devices to Prevent Transmission of Hepatitis B

Virus to Oral Surgeons, JAMA, vol. 259, no. 17 (1988)

(400a); Noble, et al., Hepatitis B and HIV infections in

-10-

dental professionals: Effectiveness of infection control

procedures, J. Can. Dent. Assoc., vol. 57, no. 1 (1991)

(418a). A corollary is that no knowledgeable dentist in

1994 would have concluded universal precautions are the

best way to combat the risk of HIV transmission when

working on a person known to carry HIV (see 127a-130a).

This evidence was also ignored by the Appeals Court.

The real effect of universal barrier precautions is to

provide some extra safety at the statistical margins against

the transmission of many diseases including HIV, while at

the same time placating irrational public fears about HIV.

In truth, the statistical risk of HIV transmission during

invasive medical procedures is /ess than many irrational

people probably think, but much more than CDC leads

people to think, probably on account of policy-guided fears

that admission by authorities of any non-trivial risk will fuel

irrational patient behavior, which will ‘ead to more people

dying due to not going to doctors for fear of HIV, than

would die by accidental HIV transmission. For policy

purposes, public health officials rationalize the view that the

HIV risk to dentists is acceptably low, since, in their minds,

no practical alternative eliminates the known risk of

percutaneous injuries, short of not performing the

procedures at all, which is unacceptable.

Likewise, CDC scientists know there is no scientific

evidence that universal precautions significantly reduce the

risk of HIV transmission. So do American Dental

Association scientists (414a-417a). That is why the Dental

Association opposed OSHA’s 1991 bloodborne pathogen

regulations, which require dental employers at costs in

excess of $20,000 a year to maintain universal precautions

for employees (431a). See American Dental Ass'n v.

Martin, 984 F.2d 823 (7" Cir.), cert. denied, 510 U.S. 859

(1993)). Only if “universal precautions” are defined to

include the hepatitis B vaccine (which they do under OSHA

regulations and which legally justified the regulations), have

“universal precautions” been shown to reduce any

<¥t%

significant risks. But that is the effect of the vaccine, not

gloves, masks, and plastic wrap.

D. The Appeals Court Misstates The Record

When It Says The Origins Of The American

Dental Association’s 1991 Policy On HIV Are

Undisputed, And The Appeals’ Court

Improperly Admitted As Evidence Against

Dr. Bragdon Claims Made By The Dental

Association For The First Time In Its Amicus

Brief On Remand.

In its first opinion, the Appeals Court seemed to accord

public health authority status to the American Dental

Association’s 1991 Policy on HIV (the “1991 Policy” or

“Policy”). This Court held, however, that the American

Dental Association is not a public health authority and the

scientific basis of the 1991 Policy is unclear (24a). For

example, the Policy refers to “current scientific and

epidemiologic evidence,” but does not identify the

evidence. The mere existence of the Policy, therefore, did

not justify summary judgment against Dr. Bragdon (24a).

On remand, the Appeals Court asked the parties to

brief, inter alia, “the import and admissibility of the .. . 1991

American Dental Association Policy on HIV” (53a-54a).

Dr. Bragdon then learned the Dental Association planned

to file an amicus brief. It took no genius to predict the

Dental Association would use its amicus brief to make self-

serving claims as to the basis of its Policy. Dr. Bragdon

therefore moved for a limited remand to permit him to

explore through normal discovery the actual historical and

epistemological origins of the Policy (55a). Dr. Bragdon

also asked the Dental Association to share with him

voluntarily information about the origins of the Policy (506a,

509a, 512a). The Dental Association refused (513a).

In Dr. Bragdon’s brief, he argued the alleged scientific

opinion expressed in the 1991 Policy was inadmissib'e

hearsay, as were any factual assertions about the historical

development of the Policy made by the Dental Association

-12-

in an amicus brief (131a-135a). In the alternative,

Dr. Bragdon argued that if the Policy is admissible expert

testimony, it is entitled to less weight than a normal, Rule

702 expert opinion, since the Dental Association is not a

public health authority, the real authors of the opinion are

unknown, no specific data or studies are cited, there is no

mathematical or statistical analysis, it is not subject to

cross-examination, and OSHA earlier specifically rejected

the American Dental Association's assessment of the HIV

risk to dentists as “confusing and not supported by the

data.” 56 Fed. Reg. 64004, 64092 (Dec. 6, 1991). In other

words, legally, why should a court require dentists to give

credence to the Dental Association’s 1991 Policy when

OSHA expressly rejected the Association’s reasoning on

the HIV risk to dentists as confusing and not supported by

the data? (134a-135a)

After the Dental Association filed its brief, which was

Dr. Bragdon’s first chance to see it, Dr. Bragdon renewed

his motion to conduct discovery against the Dental

Association (675a). He also pointed out numerous analytic

gaps in the Dental Association’s amicus presentation

concerning the alleged scientific foundation of the Policy,

including the Policy’s misplaced reliance on the 1987

Guidelines (679a).

The Court denied Dr. Bragdon’s motion (684a).

Dr. Bragdon renewed the motion at oral argument.

Three weeks later the Appeals Court issued its opinion

stating the process by which the 1991 Policy was

assembled is a matter of “undisputed fact,” and that the

undisputed facts show that the Policy has a scientific

foundation (6a-7a).

How can that be? How can that be?

Dr. Bragdon disputed the historical and epistemological

bases of the 1991 Policy at every step: He argued the

Dental Association’s claims were inadmissible, and if

admissible, entitled to less weight than his own expert’s

opinion. He pointed out historical gaps in the account of

13>

the genesis of the Policy, and he pointed out logical holes

in the Dental Association’s so-called “science.” He tried

repeatedly to remand for discovery to expose the true

origins of the Policy. Yet the Appeals Court said the

scientific basis of the 1991 Policy was “undisputed.”

But even if the Dental Association’s factual claims

about the process were undisputed, which they are not, the

Appeals Court still confuses scientific method with

committee process (6a-7a). What this Court thought

important was not the ipse dixit of the Dental Association,

but any statistical or scientific basis for the Policy. The

Dental Association’s factual claim that the Policy was

formulated by a group of experts (6a-7a) is not scientific

proof of its validity, but merely the claim that the Policy is

based on science. The question is, what science?

The Dental Association in fact offered no new scientific

evidence or calculation of the risk. It also omitted crucial

details. For example, it said its 1991 Policy was largely

based on the 1987 Guidelines, but it did not explain how

the 1987 Guidelines say universal precautions should be

the minimum precautions for all invasive procedures. The

Dental Association also vaguely described the testing of

dentists for HIV at annual dental conventions, but provided

no analysis of whether a statistically significant inference

may be drawn. Dr. Bragdon has now learned from persons

familiar with the process that the testing was voluntary, and

each year a significant group of dentists chose (i.e., self-

selected) not to be tested.

Thus, whereas Dr. Bragdon and OSHA rely on, for

example, the scientifically acceptable Klein study, see 56

Fed. Reg. at 64092, which suggests to unbiased readers a

significant incidence of occupationally acquired HIV among

dentists, the Dental Association relies on what OSHA calls

confusing contentions not supported by the data, id.

Nevertheless, the Appeals Court credits the factual and

opinion statements of the Dental Association in an amicus

brief, says they are undisputed when they are disputed,

ne Yee

and says they also justify summary judgment against

Dr. Bragdon. This is not science or law, and it does not

accomplish the goals set by this Court on remand.

E. The Court’s Previous Analysis Of The

Probative Value Of Seven Possible

Occupational Transmissions Of HIV Is Based

On A Case Of Mistaken Identity.

Dr. Bragdon explained to the Appeals Court that this

Court, in its original decision, confused the seven reported

possible transmissions of HIV to dental workers reported

by CDC in June 1994* with seven other dental workers

reported by Gooch, et al.° (see 144a-147a). Gooch

reported in 1995 that a total of seven dental workers who

were enrolled in a CDC neediestick study did not report

back for HIV testing to see if they seroconverted after

percutaneous HIV exposure at work (see 339a (Gooch

explaining that six dental workers did not return for follow-

up testing after establishing baseline seronegativity, and a

seventh was never tested)). The Court’s original decision

confuses these seven dental workers with the seven dental

workers reported in the June 1994 CDC surveillance report

(see 25a-26a). The CDC surveillance report describes

dental workers who already contracted HIV. The seven

individuals described by Gooch failed to return for follow-up

testing to see if they contracted HIV. By confusing the two

groups, the Court ends up by doubting the probative value

for Dr. Bragdon of the seven cases described by Gooch

(see 26a). Instead, the correct question is how would

reasonable dentists have understood the seven cases

reported by CDC in its June 1994 surveillance report,

reproduced at 224a.

* CDC, HIV/AIDS Surveillance Report, vol. 6, no. 1, p. 15, tbl.

11 (Mid-year ed. June 1994), reproduced at 224a.

° Gooch et al., Percutaneous Exposures to HIV-infected

Blood Among Dental Workers Enrolled in the CDC

Needlestick Study, 126 J. Am. Dental Assn. 1237, 1239

(1995), reproduced at 335a, 339a.

a rea eee es ee

-15-

From the standpoint of dentists in September 1994, the

seven dental-worker cases reported in the CDC table at

224a were described in the Journal of the American Dental

Association in July 1994 to dentists as

cases in which occupational transmission

cannot be proven, but is strongly suspected.

These cases involve health care workers

who are ... found to be HIV infected, and

who have provided histories of occupational

HIV-related exposures.

Susan Beekmann & David Henderson, Managing

Occupational Risks in the Dental Office, 125 J. Am. Dental

Assn. 847, 848 (July 1994).

Likewise, during recent hearings before the United

States Civil Rights Commission, CDC’s Deputy Director of

the National Center for HIV, STD & TB Prevention, Dr.

Ronald Valdiserri, explained that after “extensive

investigation by CDC,” these HIV-infected health care

workers were found not to have another risk behavior, and

that is why the cases are “probable,” but not “definite”

(emphasis added) (682a-683a). Published CDC reports in

1994 did not use the word “extensive” to describe the

investigation conducted by CDC, but simply said the

workers “have been investigated” (224a). However,

exactly like OSHA and other experts in the field, see

142a-144a, Dr. Bragdon reasonably treated the cases as

probable (i.e., more likely than not) occupational HIV

transmissions to dental workers, regardless of the label

applied by CDC. CDC’s own published, official position in

1988 was that “possible” transmissions of HIV to dental

workers (and there were only two, not seven, at that time)

-16-

indicated a real threat to dentists, see 466a.*

F. The Appeals Court Ignored Evidence That Before

1994, Dentists Were Repeatedly Warned The Risk Of

HIV Transmission To Them Was Greater Than The Risk

To Their Patients.

This Court held that the existence of a direct threat

must be determined from the standpoint of the practicing

professional (21a). Dr. Bragdon therefore pointed out on

remand, as he has all along, that experts on both sides

agree the risk to an uninfected dentist working on an HIV-

infected patient is greater than the risk to an uninfected

patient from an infected dentist (87a, 191a, 246a, 570a,

581a). Dr. Bragdon also pointed out this assessment of

the relative risks was repeatedly made known to dentists,

in professional publications meant for dentists, on or before

September 1994 (191a (referring to 1991 first edition of

Practical Infection Control in Dentistry), 570a, 253a). The

Appeals Court ignored this, too, in its supposed

determination of what an objectively reasonable dentist

could think in 1994.

G. The Appeals Court’s Decision So Far Departs

From The Accepted And Usual Course Of

Judicial Proceedings That The Court Should

Exercise Its Supervisory Powers.

To summarize, whatever evidence Dr. Bragdon

produced, the Appeals Court ignored. The evidence the

Appeals Court took seriously are inadmissible assertions

by the Dental Association in an amicus brief and

Ms. Abbott’s experts’ affidavits, the evidentiary bases of

which this Court thought were too unclear to justify

summary judgment. The public health authority evidence

the Appeals Court took most seriously is language in the

* After Dr. Bragdon called the Appeals Court's attention to

Dr. Valdiserri’s testimony, Dr. Valdiserri notified the Appeals

Court that he wants to recant his live testimony, and on

reflection he really meant to say “possible” not “probable.”

Eppur si muove (and yet it moves).

MEG hones 1 er nS

«P<

1987 Guidelines. -The Appeals Court thought summary

judgment against Dr. Bragdon was warranted based on

language in the 1987 Guidelines. Yet the 1987 Guidelines

literally say the opposite of what the Appeals Court says

they say. Under these circumstances, it cannot be said the

Appeals Court accomplished the goal set by the Court of a

fully informed determination. Allowing the Appeals Court's

decision to stand would trivialize in the extreme the Court's

previous decision to vacate and remand, and it would be a

tremendous injustice to Dr. Bragdon who faces the

possibility of having to pay Ms. Abbott's attorneys’ and

experts’ fees in excess of $300,000. It would also create in

the law an unjustified direct threat double-standard, it

would confuse and befuddle courts and parties who

deserve real guidance instead, and it would encourage

health care providers to practice at safety levels below

published minimum guidelines. The Court should therefore

exercise its supervisory powers to review and remand this

case for a trial.

ll. THE APPEALS COURT’S DECISION CREATES A

CONFLICT AMONG THE CIRCUITS, AND AN

UNJUSTIFIED DOUBLE-STANDARD IN CONFLICT

WITH THE COURT’S DECISION, CONCERNING

WHAT LEVEL OF RISK IS LEGALLY SIGNIFICANT.

Cases from other circuits have consistently held the

risk to patients from HIV-infected health care workers,

including dentists, during invasive procedures is legally

significant. Estate of Mauro v. Borgess Med. Ctr, 137 F.3d

398 (6" Cir. 1998) (surgical technician); Doe v. University

of Md. Medical Sys. Corp., 50 F.3d 1261 (4 Cir. 1995)

(neurosurgical resident); Bradley v. University of Tex. M.D.

Anderson Cancer Ctr., 3 F.3d 922 (5" Cir. 1993) (surgical

technician) (per curiam), cert. denied, 114 S. Ct. 1071

(1994); Leckelt v. Board of Comm'rs of Hosp. Dist. No. 1,

909 F.2d 820 (5™ Cir. 1990) (practical nurse); Scoles v.

Mercy Health Corp. of S.E. Pa., 887 F. Supp. 765 (E.D. Pa.

1994) (orthopedic surgeon); Doe v. Washington Univ., 780

—:

F. Supp. 628 (E.D. Mo. 1991) (dental student).

Every single expert that has considered the issue on

either side further agrees the risk to an uninfected health

care worker, including a dentist, when performing invasive

procedures on an HIV-infected patient, is equal to and

probably greater than the risk to an uninfected patient from

an infected worker (191a, 246a, 253a, 570a, 581a). Yet,

the Appeals Court maintains Dr. Bragdon does not even

raise a genuine issue for trial. Logically, this creates either

a direct conflict among the circuits on what level of risk is

legally significant, or a double standard whereby dentists in

non-emergency situations are compelled by federal law to

take substantially greater risks than patients and other

citizens.

This double-standard was described in a Harvard Law

Review case comment as a “double standard for dealing

with HIV infection in the health-care setting,” which would

leave[] the nation in the curious position of

having an antidiscrimination statute that

declares ail individuals with HIV to be equal

under the law, but with some “more equal

than others.”

Comment, Federal Statutes and Regulations: The

Americans with Disabilities Act, 112 Harv. L. Rev. 283, 293

(Nov. 1998) (citing and quoting Orwell’s Animal Farm).

According to the author, such a double-standard is contrary

to the “plain language of the statutory provisions,” contrary

to legislative history, and “makes little sense from a policy

standpoint,” id. at 291-292. Equally important is that it

contradicts the Court's plain holding:

Efforts to clarify dentists’ ethical obligations

and to encourage dentists to treat patients

with HIV infection with compassion may be

commendable, but the question under the

statute is one of statistical likelihood, not

professional responsibility (24a).

=) =

The behavior of the Appeals Court on remand

illustrates how,

[wlithout a clear and uniform standard, trial

or appellate court judges finding no

significant risk as a matter of law will

undoubtedly be relying more on their own

personal perspectives than on articulated

dJegal standards. When, as here, the

question can literally be one of life and death,

defendants are entitled to the collective

perspectives of a jury of their peers rather

than the views of a single person—especially

if personal perspectives rather than legal

standards are being used.

Id. at 293.

in accordance with the logic of Justice Ginsburg’s

concurrence, Dr. Bragdon agrees that

unresolved scientific questions [should] be

resolved in favor of the uninfected person.

Presumably, this same standard would apply

whether the infected person was a patient or

a provider, and if so, would harmonize

Bragdon with the "reverse cases.”

Id. at 292-93.

The Court should therefore grant certiorari and remand

for a trial, thereby eliminating an invidious double-standard

and resolving what is otherwise a conflict among circuits on

the level of risk legally significant under the ADA.

ill. CERTIORARI SHOULD BE GRANTED BECAUSE

CASES GENERALLY FAIL TO PROVIDE

EMPLOYERS AND PROFESSIONALS ACROSS

THE COUNTRY WITH DESERVED GUIDANCE ON

WHAT LEVEL OF RISK IS LEGALLY SIGNIFICANT,

AND BECAUSE THE APPEALS COURT’S

DECISION SO DISTORTS THE MEDICAL AND

OBJECTIVE EVIDENCE AVAILABLE TO DENTISTS

- 20 -

IN 1994 THAT NO DENTIST OR OTHER

PROFESSIONAL TODAY COULD HOPE TO

COMPREHEND HOW THE LAW CALCULATES, OR

EXPECTS OTHERS TO CALCULATE, THE

SIGNIFICANCE OF A RISK.

A premise of due process in a democratic society is

that people are entitled to some reasonable indication of

what they must do to conform to the law. This is a reason

why the “existence, or nonexistence, of a significant risk

must be determined from the standpoint of the person who

refuses the treatment or accommodation, and the risk

assessment must be based on medical or other objective

evidence” (21a). However, under current case law,

reasonable professionals and employers have no way of

knowing what level of risk is significant under the ADA or

how to calculate it.

For example, how could Dr. Bragdon know that when

CDC guidelines said universal precautions should be the

minimum precautions when performing an invasive dental

procedure, he should have read that as “maximum

precautions”? In the future, how is a doctor or employer

supposed to know whether, in the eyes of the law,

minimum means minimum or maximum?

How was Dr. Bragdon supposed to calculate the

significance of the risk? Was he allowed to rely on, as he

did, publicly disclosed CDC calculations of the risk to

dental patients and the generally accepted view that the

risk of HIV infection to dental workers is as great? (106a-

112a) Was he allowed, as he did, to calculate the risk as a

scientifically minded person would based on published

rates of infection and rates of sharps injuries? (91a-103a)

Apparently not, since the Appeals Court rejected without

comment such calculations. In the future, how is an

objectively reasonable professional or employer supposed

to calculate the risk? The “probability that the potential

injury will actually occur” is a factor that public

accommodations and employers must consider under

-21-

Title | and Title Ill regulations when evaluating a potential

direct threat. See 28 C.F.R. § 36.208(c); 29 C.F.R.

§ 1630.2(r). If the calculations relied on by Dr. Bragdon are

not admissible even to raise a genuine issue of fact, then

what are? Public accommodations and employers have

the right to some indication from courts as to how they are

supposed to figure out if there is a direct threat. °

From the standpoint of reasonable dentists in 1994,

how were they to know that courts would, without

explanation, treat a policy statement of the Dental

Association as a higher form of expert opinion, when

OSHA concluded, first, that the Dental Association’s

contentions concerning the risk of HIV to dentists are

“confusing and not supported by the data”, and second,

that other medical evidence is consistent with the

conclusion there is a significant HIV risk to dentists? 56

Fed. Reg. at 64092.

Knowledgeable dentists in 1994 also knew the

published, objective rate of HIV infection after gloves failed

to prevent a percutaneous HIV exposure, was between

0.36% and 0.47% (i.e., between 3 to 5 in a 1000) (94a-

98a); and that therefore, just one accidental needlestick

during an entire lifetime of practice, when working on an

HIV positive patient, is a 3 to 5 in a 1000 risk of death,

> But see, Onishea v. Hopper, 126 F.3d 1323, 1334 (11" Cir.

1997) (remanding for the “quantitative analysis necessary to

find a significant risk,” but giving no indication how to perform

the analysis or what level of quantitative risk is legally

significant), vacated for en banc review, 133 F.3d 1377 (11"

Cir. 1998); E.E.0.C. v. Union Pacific R.R., 6 F. Supp.2d

1135, 1139 (D. Idaho 1998) (stating defendant should have

cited “studies or other literature on the subject of the ability of

monocular-sighted person to drive safely,” but giving no

indication what level of risk is significant); E.E.0.C. v. Exxon

Corp, 1 F. Supp.2d 635, 645 (N.D. Tex. 1998) (stating

defendant must show there is a “direct threat,” but giving no

indication what level of risk is significant or how to show it).

-22-

which is many times greater than the level of risk deemed

legally significant by OSHA, 56 Fed. Reg. at 64092. This is

overwhelming evidence of a direct threat from the

standpoint of dentists in 1994.

The point deserves emphasis.

OSHA has established what is an unacceptable

lifetime risk for HIV exposure. That risk is 0.1% or 1 in a

1000. Thus, OSHA has established that a single HIV

needilestick exposure in a lifetime of practice is

unacceptable! So how can Ms. Abbott seriously maintain

that HIV needlestick injuries are not significant risks? How

could an objectively reasonable dentist in 1994 not think

there was a significant risk when working on HIV-infected

patients, when just one slip during an entire lifetime of

practice would put him at between three to five times what

OSHA sets as an unacceptable lifetime hazard?

This point was also made clear to the Appeals Court

(96a-98a). Based on its decision, however, health care

workers again have no way of knowing whether this fact

has any relevance to how they are expected to recognize a

direct threat. Is OSHA’s 1 in a 1000 standard for a “clearly

significant risk,” which was derived from dicta in /ndustrial

Union Dep't, AFL-CIO v. American Petroleum Institute, 448

U.S. 607, 655 (1980), not applicable to a direct threat

analysis under the ADA? Or does the ADA expect health

care professionals to never have an accidental needlestick

during an entire lifetime of practice?

Other reasons why the Court should exercise its

supervisory power is that the Appeals Court’s opinion is

another example of conflicting opinions and a chronic lack

of meaningful guidance from courts on the direct threat

issue.

For example, the district court in Nunes v. Wal-Mart

Stores, Inc., __ F.3d ___, 1999 WL 33703 (9" Cir. 1999),

granted summary judgment to defendant on a direct threat

analysis based on the possibility that a cashier might drop

a heavy object on a customer during a fainting spell. The

«93 <

Ninth Circuit reversed and remanded for a. trial,

acknowledging a genuine issue for trial even though the

cashier’s doctor testified the risk. was “extremely unlikely,”

and no one has ever heard of such a thing actually

happening. Under this standard, Dr. Bragdon is clearly

entitled to a trial.

Dr. Bragdon is also entitled to a trial under the

standard applied in Doe v. Dekalb County Sch. Dist., 145

F.3d 1441 (1998), where there was a bench trial on the

significance of the risk of an HIV-infected teacher. being

involved in blood-to-blood contact with a student in a class

of students with sometimes violent behavioral disorders.

Unfortunately, the district court failed, like so many courts,

to articulate a meaningful risk analysis, quantitative or

qualitative, and relied on “terse findings of fact and

conclusions of law.” The Eleventh Circuit remanded for

informative findings and conclusions concerning the level of

risk and probabilities involved.

Dr. Bragdon is also entitled to a trial under the

standard applied in Montalvo v. Radcliffe, ___—~F.3d ___.,

1999 WL 65624 (4" Cir. 1999), affirming a factual finding at

trial that an HIV-infected student poses a direct threat to

other students in a combat-oriented martial arts class.

The unscientific, intuitive, non-mathematical, “know it

when | see it” summary judgment approach to risk, has

also led to inconsistent conclusions. In Dipol v. New York

City Transit Auth., 999 F. Supp. 309 (E.D.N.Y. 1998), the

court held at summary judgment it was safe (i.e., no

significant risk) for a person who had intermittent vision

problems and only “fair control” of his diabetes to operate

on public tracks in hazardous conditions, whereas in

Daugherty v. City of El Paso, 56 F.3d 695 (5 Cir. 1995),

cert. denied, 111 S. Ct. 1263 (1996), the court upheld

summary judgment it was unsafe (i.e., a significant risk) for

diabetics with similar problems ever to drive city vehicles.

In E.E.0.C. v. Amego Inc., 110 F.3d 135 (1% Cir. 1997), the

court upheld summary judgment it was unsafe (i.e., a

-24-

significant risk) for an employee who had been suicidal to

continue administering drugs to seriously disabled persons,

even though the employee’s own physician and a social

worker saw no difficulty with her continuing to do that job,

whereas in E.E.0.C. v. Union Pacific R.R., 6 F. Supp.2d

1135 (D. Idaho 1998), the court granted summary

judgment that it was safe (i.e., no significant risk) for

monocular-sighted persons without depth perception to

drive safely around switching yards.°

The real lesson from these cases, besides their

inconsistency and lack of statistical analysis, is they should

not have been decided by summary judgment. Given that

“neither Congress nor the Supreme Court

has informed us what the norm is” in

determining whether a given level of risk is

significant or not, it is questionable whether it

is ever appropriate to grant summary

judgment when, as in Bragdon, reasonable

minds could differ. In Bragdon, the Justices

differed substantially on whether the risk was

significant, but none of them explained what

a “significant” risk is, which implies that they

only “know it when [they] see it.” Without a

clear and uniform standard, trial court judges

° Other examples of the intuitive, unscientific, “know it when |

see it” summary judgment approach to direct threat are

LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832 (11" Cir.

1998) (upheld summary judgment of direct threat posed by

line cook, even though he later worked for 13 months without

incident, rarely had seizures, and seizures consisted of

momentary disorientation); Burroughs v. City of Springfield,

163 F.3d 505 (8" Cir. 1998) (upheld summary judgment of

direct threat posed by diabetic police officer when testimony

was merely he “could conceivably be dangerous to the

public”); Turco v. Hoechst Celanese Corp., 101 F.3d 1090 (5"

Cir. 1996) (diabetic chemical process worker described with

no medical or statistical support as “walking time bomb’).

-25-

finding no significant risk as a matter of law

will undoubtedly by relying more on their own

personal perspectives than on articulated

legal standards. When, as [in Bragdon], the

question can literally be one of life and death,

defendants are entitled to the collective

perspectives of a jury of their peers.

Comment, supra, 112 Harv. L. Rev. at 293.

By granting certiorari and remanding for a trial, the

Court can and should send a clear message that “direct

threat” is first and foremost an issue for full exploration at

trial, and rarely, if ever, should it be decided by summary

judgment. This will put an end to the alarming and

mystifying tendency of federal courts to think they must

decide by summary judgment whether a risk is significant.

These issues are properly the subject of in-depth analysis

at trial.

IV. CERTIORARI SHOULD BE GRANTED BECAUSE

THE APPEALS COURT’S DECISION ENCOURAGES

HEALTH CARE WORKERS TO PRACTICE BELOW

MINIMUM SAFETY STANDARDS.

The 1987 Guidelines specifically say universal

precautions should be the minimum precautions for all

invasive procedures (459a). The 1993 Guidelines carry

that principle forward by stating the principles of infection

control remain unchanged (528a), by using the concepts of

universal infection control strategies recommended for all

dental settings versus specific infection control strategies,

and by indicating that although a set of universal

precautions common to all dental-treatment settings

“should reduce the risk,” the “unique nature of rnost dental

procedures ... also may require specific [i.e., non-

universal, additional] strategies directed to the prevention

of transmission of pathogens” (528a; see 128a-130a).

Now the Appeals Court has transformed CDC 1987

voiuntary minimum guidelines into mandatory ceilings on

levels of safe care, and ruled that anyone who practices

- 26 -

above the minimum safety standards is a civil rights

violator. Such a ruling is unprecedented in the history of

law and medicine. Never before has a doctor or an

employer been punished for wanting to practice too safely,

for putting too high a value on human life. In view of the

fact that OSHA’s 1991 regulations required Maine dentists

to treat everyone, including children, as though they might

be infected with HIV, when over 99% of them are not

infected, it is mind boggling to say that a dentist was “too

careful” in treating a known HIV positive patient.

V. THE APPEALS COURT’S DECISION SHOULD BE

REVIEWED BECAUSE IT CONFLICTS WITH

ESTABLISHED NORMS OF SAFETY IN OTHER

FIELDS.

Dr. Bragdon introduced admissible, reliable scientific

evidence that the mortal danger to him was on the order of

1 in 67,000 per injection, and he provided a reliable,

scientific analysis as to how and why this level of risk is

consistent with observed occupational transmissions of HIV

(91a-119a, 147a-151a). The Appeals Court ruling entails

that this level of risk is insignificant to dentists as a matter

of law. Yet, for example, when it comes to airline safety,

traffic safety, or food safety, no one would tolerate that

level of risk or consider it insignificant. If 1 out of every

100,000 planes crashed, or hamburgers were poisonous,

or gasoline tanks exploded, there would be a huge outcry.

Likewise, if Dr. Bragdon compelled one of his employees to

face the risk of HIV needlestick, he could be sued

successfully under the Occupational Safety and Health Act,

29 U.S.C. § 654(a)(1), on the ground he knew specific

OSHA regulations did not purport to eliminate a significant

risk of HIV infection from such injuries. See /nternational

Union U.A.W. v. General Dynamics Land Sys. Div., 815

F.2d 1570, 1577 (D.C. Cir. 1987) (employer liable under

general duty clause despite compliance with specific

regulations when employer knows specific standards will

not protect against a particular hazard).

37.

So why should a 1 in 67,000 or greater risk of death be

legally insignificant for dentists? It should not, but the

psychology, rather than the science of risk, may be playing

a decisive role in the case. Specifically, the vast majority of

people in the United States (over 99%) do not have HIV

(440a), so for billions of routine dental procedures there is

no HIV issue. This means HIV-infected dental workers are

far, far less common than dead people would be if 1 in

every 100,000 hamburgers were poisoned. The problem

seems invisible. For the relatively rare dental procedure

(substantially less than 1%) where an HIV risk is present,

dentists become infected in only a very small fraction of

those cases, and typically by patients who did not reveal

their HIV status, or who did not know it. If the dentist is

gay, no one will believe he was infected on the job. If the

dentist was already infected, no one tests if he was re-

infected at work. If the dentist is infected, he probably will

not know for quite a while, perhaps years, and when he

does, he probably will not make it public since it will destroy

his practice.

Dentists suffer many needlestick and other sharps

injuries each year, but do not stop every time to find out if

the patient is HIV positive or take an HIV test. No law says

a patient must agree to testing. Even if the patient is HIV

positive, there is little a dentist can do unless he is willing to

run to a hospital to start a brutal course of post exposure

prophylaxis (195a-197a). Human nature is to move on and

hope for the best, knowing few patients have HIV, and

even if this one does, odds are only about 4 in a 1000 of

becoming infected. Many dentists are willing to face those

odds, and many public health officials see no practical

alternative. Dr. Bragdon was willing to face the risk for the

sake of Ms. Abbott, but he wanted to be as careful as

possible for himself, his assistants, and his patient. For

that he is branded a civil rights violator and now faces legal

exposure in excess of $300,000.

-28 -

Vi. THE COURT SHOULD ADDRESS THE RECURRING

ISSUE OF BURDEN OF PROOF UNDER TITLE Ill

OF THE ADA.

On remand Dr. Bragdon raised again the issue of who

has the burden of proof on direct threat (163a-166a). With

respect to the risk of aerosol transmission of HIV (158a-

163a), and other risks in cases where there are no

definitive studies to guide a risk analysis, e.g., Onishea,

126 F.3d 1323; Amego Inc., 110 F.3d 135; Union Pacific

R.R., 6 F. Supp.2d at 1139; Exxon Corp, 1 F. Supp.2d at

645, the assignment of the burden of proof essentially

determines the outcome of the case. Prospectively, it

determines whether public accommodations may lawfully

act in conformity with sound practical reason in the

absence of definitive scientific proof (162a-163a), or

whether, if they do, they will be liable for disability

discrimination. Sound policy is to err, “if at all, on the side

of caution” (Ginsburg, J., concurring) (28a). The Court

should therefore grant certiorari to review who has the

burden of proof on direct threat.

CONCLUSION

Four members of the Court already believe this case is

wrongly decided. Three were uncertain, having serious

doubts as to the Appeals Court’s interpretation of the 1993

Guidelines. Did the 1993 Guidelines inform dentists there

is no significant risk? It does not seem so. But perhaps

somewhere else in some other source available before

September 1994, there is language justifying summary

judgment against Dr. Bragdon.

For five years Dr. Bragdon has said there is none.

Is there any doubt that if there were any such language

supporting Ms. Abbott, it would have been plastered all

over her briefs, especially given the resources she brought

to the case, e.g., the American Medical Association, CDC,

the Department of Justice, and the State of Maine?

On remand, the most Ms. Abbott and the Appeals

Court could find to justify summary judgment against

-29-

Dr. Bragdon was unidentified language in the 1987

Guidelines. This is more obviously wrong than before,

since the 1987 Guidelines literally say the opposite of what

the Appeals Court says they say.

This really is a very simple case for summary judgment

purposes. See, e.g., 120an.12. No public health authority

publication available in September 1994 warrants summary

judgment for Ms. Abbott. The Dental Association’s 1991

Policy is not admissible expert testimony, or if it is, it carries

no more weight than any other ipse dixit expert opinion.

Dr. Kuvin'’s expert testimony on behalf of Dr. Bragdon (e.g.,

573a-574a, 602a-610a), and the other sources of medical

and objective information presented by Dr. Bragdon, raise

a genuine issue of fact that an objectively reasonable

dentist could have and would have thought there was a

direct threat based on information available in September

1994.

Dr. Bragdon knows it is uncommon, but not

unprecedented, for the Court to grant certiorari because a

case is wrongly decided. See Robert L. Stern, et al.,

Supreme Court Practice § 4.17 (7" ed. 1993). This is the

unusual situation when there are national issues at stake

and the Court can also do justice in the individual case.

With respect to the four members of the Court who

would have already remanded for trial, Dr. Bragdon

wonders what purpose would be served by declining to

grant certiorari, when the justices are already on record as

favoring a trial and three of their colleagues were uncertain.

Certainly the purposes of blind efficiency and maintaining a

tradition whereby the Court rarely reviews anything but

pure issues of law would be served by denying certiorari.

Just as certainly there is no danger the floodgates to the

Court will open, as this is an extremely unusual situation,

and at all times the Court has the discretion to regulate its

docket. Nor should the Court overlook the real need,

nationally, for guidance on the direct threat issue. Simply

by ordering a remand for trial, and expressing a strong

«30 «

preference for trials in such cases, the Court can effectively

wipe out an unjustified legal double-standard and conflict

among the circuits created by the Appeals Court's decision.

With respect to the three members of the Court who so

doubted the propriety of summary judgment as to vacate

and remand to the Appeals Court, Dr. Bragdon wonders

what purpose would be served by now letting stand a

decision on remand that is more clearly flawed than the

first. The goals already set by the Court of a full

exploration of the facts and a fully informed decision should

be attained by granting certiorari and remanding for a trial.

Finally, though the Court may always prefer regular

briefing and oral argument following a grant of certiorari, it

might also consider asking, in the certiorari petition review

process itself, that Ms. Abbott oppose certiorari by

explaining why the Court should not grant certiorari,

summarily vacate and remand for trial. The relevant

material is contained in this petition and the petition

appendix (e.g., 62a-169a). If five or more members of the

Court agree there is a genuine issue for trial, a short

decision stating a preference for trials in such cases will

work justice in the individual case, will eliminate an

unjustified direct threat double-standard in the law, resolve

unnecessary conflict among the circuits on what level of

risk is legally significant under the ADA, and foretell an end

to the intuitive, unscientific, ad hoc, “I know it when | see it”

summary judgment approach to direct threat.

Respectfully Submitted,

JOHN W. McCARTHY

Counsel of Record

BRENT A. SINGER, Ph.D.

RUDMAN & WINCHELL, LLC

Attorneys for Petitioner

84 Harlow Street

Bangor, Maine 04401

(207) 947-4501

Sidney ABBOTT, et al., Plaintiffs, Appellees,

Randon BRAGDON, D.M.D., Defendant, Appellant. °

No. 96-1643.

United States Court of Appeals,

First Circuit.

Reheard Dec. 9, 1998.

Dec. 29, 1998.

Patient infected with human immunodeficiency virus (HIV)

brought action under Americans with Disabilities Act (ADA)

and Maine Human Rights Act against dentist who refused to

treat her in his office. The United States District Court for the

District of Maine, 912 F.Supp. 580, granted summary judgment

for patient, and dentist appealed. The Court of Appeals, 107 F.3d

934, affirmed. Dentist petitioned for certiorari. The United States

Supreme Court, 118 S.Ct. 2196, affirmed in substantial part, but

remanded with instructions. On remand, the Court of Appeals,

Selya, Circuit Judge, held that dentist's performance of cavity-

filling procedure on patient did not pose "direct threat” to others.

Affirmed.

CIVIL RIGHTS k107(4)

78k107(4)

Dentist's performance of cavity-filling procedure on patient with

asymptomatic human immunodeficiency virus (HIV) did not

pose "direct threat" to others, within exception to ADA's

prohibition against discrimination, considering “universal

precautions" prescribed in Dentistry Guidelines formulated by

Centers for Disease Control (CDC), and Policy on acquired

immune deficiency syndrome (AIDS), HIV Infection and

Practice of Dentistry propounded by American Dental

Association. Americans with Disabilities Act of 1990, § 302, 42

U.S.C.A. § 12182.

See publication Words and Phrases for other judicial

constructions and definitions.

CIVIL RIGHTS k119.1

78k119.1

Dentist's performance of cavity-filling procedure on patient with

asymptomatic human immunodeficiency virus (HIV) did not

pose "direct threat" to others, within exception to ADA's

prohibition against discrimination, considering “universal

precautions” prescribed in Dentistry Guidelines formulated by

Centers for Disease Control (CDC), and Policy on acquired

immune deficiency syndrome (AIDS), HIV Infection and

Practice of Dentistry propounded by American Dental

Association. Americans with Disabilities Act of 1990, § 302, 42

U.S.C.A. § 12182.

See publication Words and Phrases for other judicial

constructions and definitions.

*87 John W. McCarthy, with whom Brent A. Singer and

Rudman & Winchell, LLC, Bangor, ME, were on brief, for

defendant.

_ Stephen C. Whiting and the Whiting Law Firm, P.A., Portland,

ME, on brief for Cary Savitch, M.D., amicus curiae.

Scott Somerville on brief, for Dentists for Preservation of

Professional Judgment, amicus curiae.

Robert J. Masini and Diver, Grach, Quade & Masini,

Waukegan, IL, on brief for American Association of Forensic

Dentists, amicus curiae.

Richard L. Hill, Lance N. Long and Hill, Johnson & Schmutz

P.C., on brief for Clinical Research Associates, amicus curiae.

Bennett H. Klein, with whom Gay and Lesbian Advocates &

Defenders, David G. Webbert, Johnson & Webbert, LLP,

Augusta, ME, Wendy E. Parmet, Boston, MA, were on brief, for

plaintiff Sidney Abbott.

John E. Carnes, Commission Counsel, on consolidated brief for

intervenor- plaintiff Maine Human Rights Commission.

Thomas E. Chandler, Attorney, U.S. Dept. of Justice,

Washington, DC, with whom Bill Lann Lee, Acting Assistant

Attorney General, and Jessica Dunsay Silver, Washington, DC,

were on brief, for United States of America, amicus curiae.

Peter M. Sfikas, Chicago, IL, Mark S. Rubin, Kathleen Todd,

Jill A. Wolowitz, Scott M. Mendel, Chicago, IL, Bell, Boyd &

Lloyd and Patrick J. Quinlan, Providence, RI, on brief for

American Dental Ass'n, amicus curiae.

Before SELYA, Circuit Judge, CYR, Senior Circuit Judge, and

STAHL, Circuit Judge.

*88 SELYA, Circuit Judge.

This case involves a claim of disability-based discrimination

brought by an asymptomatic HIV-positive individual, Sidney

Abbott, against Randon Bragdon, a dentist who refused to fill

Ms. Abbott's cavity in his office. The district court found Ms.

Abbott's case compelling and granted summary judgment in her

favor. See Abbott v. Bragdon, 912 F.Supp. 580 (D.Me.1995)

(Abbott I ). We affirmed, albeit on somewhat different

reasoning. See Abbott v. Bragdon, 107 F.3d 934 (lst Cir.1997)

(Abbott II ). The Supreme Court affirmed our decision in

substantial part, but remanded with instructions that we

reexamine several pieces of evidence. See Bragdon v. Abbott, --

- US. ----, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998) (Abbott III ).

We ordered supplemental briefing, entertained a new round of

oral argument, and now reaffirm the district court's entry of

summary judgment.

We limned the pertinent facts in our earlier opinion, see Abbott

Il, 107 F.3d at 937-38, and it would be pleonastic to rehearse

them here. To lend context, it suffices to remind the reader that

Ms. Abbott, who was. infected with the Human

Immunodeficiency Virus (HIV), went to Dr. Bragdon's Bangor,

Maine office for a dental appointment in September 1994; that

she was then in the asymptomatic phase of the disease and so

informed the dentist; and that, after Dr. Bragdon discovered a

cavity, he refused to fill it in his office. Ms. Abbott sued,

claiming violations of the Americans With Disabilities Act (the

ADA), 42 U.S.C. § 12182 (1994), and the Maine Human Rights

Act, 5 Me.Rev.Stat. Ann. tit. 5, § 4592 (West Supp.1998). [FN1]

FN1. Throughout this litigation, the asserted violations of

the Maine statute have been treated as following the ADA

analysis precisely. See Abbott IJ, 107 F.3d at 937 n. 1.

Accordingly, we need not address the Maine statute further.

The earlier phases of this litigation established that

asymptomatic HIV constitutes a disability under the ADA. See

Abbott II, --- U.S. at ----, 118 S.Ct. at 2207 (aff'g Abbott II, 107

F.3d at 942). The sole remaining question is whether

performance of the cavity-filling procedure posed a "direct

threat" to others and thereby came within an exception to the

ADA's broad prohibition against discrimination. See Abbott II,

107 F.3d at 943; see also 42 U.S.C. § 12182(b)(3) (stating the

exception and defining a direct threat under the ADA as "a

significant risk to the health or safety of others that cannot be

eliminated by a modification of policies, practices, or procedures

or by the provision of auxiliary aids or services").

In the earlier appeal, our rejection of Dr. Bragdon's direct threat

defense relied in part on our reading of (i) the 1993 Dentistry

Guidelines (the Guidelines) formulated by the Centers for

Disease Control] (CDC), and (ii) the Policy on AIDS, HIV

Infection and the Practice of Dentistry (the Policy) propounded

by the American Dental Association (the Association). See

Abbott II, 107 F.3d at 945-46. Each of these documents

indicated to us that the use of so-called "universal precautions"

would render the risk of performing the cavity-filling procedure

in a dental office insignificant. See id. We also noted the

absence of a trialworthy showing by Dr. Bragdon as to any direct

threat. See id. at 946-48. The Supreme Court remanded to

permit a reevaluation of the evidence on this issue, and, in

particular, a reexamination of the Guidelines and the Policy. See

Abbott II], 118 S.Ct. at 2211-13. In doing so, the Court took

pains to explain that its disposition did not debar us from again

reaching the same result. See id. at 2213.

In compliance with the Court's directive, we have reexamined

the evidence to determine whether summary judgment was

warranted. In order to reverse our course, we would have to

find, contrary to our original intuition, either that (i) Ms. Abbott

did not merit judgment as a matter of law even in the absence of

disputed facts, or (ii) that Dr. Bragdon had submitted sufficient

evidence to create a genuine issue of material fact as to his direct

threat defense. In our reexamination, we apply conventional

summary judgment jurisprudence, drawing all reasonable *89

factual inferences in favor of Dr. Bragdon (as the party opposing

brevis disposition). See Abbott II, 107 F.3d at 938 (citing Smith

v. F.W. Morse & Co., 76 F.3d 413, 428 (ist Cir.1996)). Despite

the leniency of this approach, we do not indulge "conclusory

allegations, improbable inferences, and unsupported

speculation." Medina- Munoz v. R.J. Reynolds Tobacco Co.,

896 F.2d 5, 8 (1st Cir.1990).

A. Ms. Abbott's Evidence.

The Supreme Court raised questions regarding whether the

Guidelines, which state that use of the universal precautions

therein described "should reduce the risk of disease transmission

in the dental environment," necessarily imply that the reduction

ss see Re ace ge le

—$—$ $$ CP: TT

of risk would be to a level below that required to show direct

threat. Abbott III, 118 S.Ct. at 2211 (quoting Guidelines). We

have reconsidered this point.

The CDC did not write the 1993 Guidelines in a vacuum, but,

rather, updated earlier versions issued in 1986 and 1987,

respectively. The 1986 text calls the universal precautions

"effective for preventing hepatitis B, acquired immunodeficiency

syndrome, and other infectious diseases caused by bloodborne

viruses." The 1987 edition explains that use of the universal

precautions eliminates the need for additional precautions that

the CDC formerly had advocated for handling blood and other

bodily fluids known or suspected to be infected with bloodborne

pathogens. Neither the parties nor any of the amici have

suggested that the 1993 rewrite was intended to retreat from

these earlier risk assessments, and we find no support for such a

position in the Guidelines’ text. Thus, we have again determined

that the Guidelines are competent evidence that public health

authorities considered treatment of the kind that Ms. Abbott

required to be safe, if undertaken using universal precautions.

Second, the Court questioned the appropriate weight to accord

the Policy, expressing concern that the Policy might be based in

whole or in part on the Association's view of dentists' ethical

obligations, rather than on a pure scientific assessment. See

Abbott III, 118 S.Ct. at 2211-12. The supplemental briefing that

we requested yielded a cornucopia of information regarding the

process by which the Policy was assembled. We briefly recount

the undisputed facts.

The Association formulates scientific and ethical policies by

separate procedures, drawing on different member groups and

different staff complements. The Association's Council on

Scientific Affairs, comprised of 17 dentists (most of whom hold

advanced dentistry degrees), together with a staff of over 20

professional experts and consultants, drafted the Policy at issue

here. By contrast, ethical policies are drafted by the Council on

Ethics, a wholly separate body. Although the Association's

House of Delegates must approve policies drafted by either

council, we think that the origins of the Policy satisfy any doubts

regarding its scientific foundation.

For these reasons, we are confident that we appropriately relied

on the Guidelines and the Policy. Moreover, as the Supreme

Court acknowledged, see id. at 2212, these two pieces of

evidence represent only a fraction of the proof advanced to

support Ms. Abbott's motion. For example, she proffered the

opinions of several prominent experts to the effect that, in 1994,

the cavity- filling procedure could have been performed safely in

a private dental office, as well as proof that no public health

authority theretofore had issued warnings to health care

providers disfavoring this type of treatment for asymptomatic

HIV-positive patients. These materials, in and of themselves,

likely suffice to prove Ms. Abbott's point. Thus, we again

conclude, after due reevaluation, that Ms. Abbott served a

properly documented motion for summary judgment.

B. Dr. Bragdon's Evidence.

We next reconsider whether Dr. Bragdon offered sufficient

proof of direct threat to create a genuine issue of material fact

and thus avoid the entry of summary judgment. In Abbott II, we

canvassed eight items of evidence adduced by Dr. Bragdon in an

effort to demonstrate a genuine issue of material fact. See

Abbott II, 107 F.3d at 946-48. The Supreme Court suggested

that one such piece of evidence--the seven cases that the CDC

considered "possible" HIV patient-to-*90 dental worker

transmissions--should be reexamined. See Abbott III, 118 S.Ct.

at 2212.

The Court's concern revolved around how the word "possible"

was understood in this context at the relevant time. To frame the

issue, the Court noted that the CDC marks an HIV case as a

"possible" occupational transmission if a stricken worker, who

had no other demonstrated opportunity for infection, simply

failed to present himself for testing after being exposed to the

virus at work. See id. The Court speculated that if this

definition of "possible" was not available in September 1994, the

existence of seven "possible" cases "might have provided some,

albeit not necessarily sufficient, support for [Dr. Bragdon's]

position." Id. In other words, if a dentist knew of seven

"possible" occupational transmissions to dental workers without

understanding that "possible" meant no more than that the CDC

could not determine whether workers were infected

occupationally, he might reasonably regard the risk of treating an

HIV-infected patient to be significant.

Upon reexamination of the record, we find that the CDC's

definition of the word "possible," as used here, had been made

public during the relevant period. The record contains two

scientific articles published before Ms. Abbott entered Dr.

Bragdon's office which explained this definition. See Louise J.

Short & David M. Bell, Risk of Occupational Infection With

BloodBome Pathogens in Operating and Delivery Room

Settings, 21 Am. J. Infection Control 343, 345 (1993); John A.

Molinari, HIV, Health Care Workers and Patients: How to

Ensure Safety in the Dental Office, 124 J. Am. Dental Ass'n 51,

51-52 (1993). Since an objective standard pertains here, see

Abbott III, 118 S.Ct. at 2211; Abbott II, 107 F.3d at 944, the

existence of the list of seven "possible" cases does not create a

genuine issue of material fact as to direct threat.

In his supplemental briefing and oral argument, Dr. Bragdon has

drawn our attention again to the CDC's report of 42 documented

cases of occupational transmission of HIV to health-care workers

(none of whom were dental workers). He repeats his argument

that, because dental workers are subject to dangers similar to

those faced by other health-care workers, these cases can be

extrapolated to create an issue of fact as to the degree of risk to

dental workers in September 1994. We previously held that this

evidence was insufficient without a documented showing that the

risks to dentists and other health-care workers are comparable,

see Abbott II, 107 F.3d at 947, and the appellant offers us no

cogent reason to change our view. The Supreme Court did not

question our position on this front, and Dr. Bragdon points to no

record support that we previously might have overlooked.

Our assessment of Dr. Bragdon's, and his amici's, other reprised

arguments similarly remains unchanged. Each piece of evidence

to which they direct us is still "too speculative or too tangential

(or, in some instances, both) to create a genuine issue of material

fact." Id. at 948.

III

We need go no further. Upon reflection, we again find that Dr.

Bragdon did not submit evidence to the district court

demonstrating a genuine issue of material fact on the direct

threat issue. Absent such a showing, the district court

appropriately entered summary judgment in favor of Ms. Abbott.

In espousing that view, we emphasize the case-specific nature of

our determination. Our disposition is confined to the facts of

record here (as they were presented in the nisi prius court). The

state of scientific knowledge concerning this disease is evolving,

and we caution future courts to consider carefully whether future

litigants have been able, through scientific advances, more

complete research, or special circumstances, to present facts and

arguments warranting a different decision.

Affirmed.

10a

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 96-1643

SIDNEY ABBOTT, ET AL..,

Plaintiffs, Appellees,

¥;

RANDON BRAGDON, D.M_D.,

Defendant, Appellant.

JUDGMENT

Entered: December 29, 1998

This cause came on to be heard on remand of the

Supreme Court of the United States, and was argued by counsel.

Upon consideration whereof, it is now here ordered,

adjudged and decreed as follows: The judgment of the district

court is affirmed.

By The Court:

PHOEBE MORSE,

CLERK

By:_JANICE M. O’NEIL

Chief Deputy Clerk

lla

Randon BRAGDON, Petitioner,

Sidney ABBOTT et al.

No. 97-156.

Supreme Court of the United States

Argued March 30, 1998.

Decided June 25, 1998

Patient infected with the human immunodeficiency virus

(HIV) brought action under the Americans with Disabilities Act

(ADA) against dentist who refused to treat her in his office. The

United States District Court for the District of Maine, 912

F.Supp. 580, granted summary judgment in favor of patient, and

dentist-appealed. The First Circuit Court of Appeals, 107 F.3d

934, affirmed. Dentist petitioned for certiorari. The Supreme

Court, Justice Kennedy, held that: (1) HIV infection is a

"disability" under the ADA, even when the infection has not yet

progressed to the so-called symptomatic phase, as a physical

impairment which substantially limits the major life activity of

reproduction, and (2) with regard to "direct threat” provision of

the ADA, the existence, or nonexistence of a significant health

risk from treatment or accommodation of a disabled person must

be determined from standpoint of the person who refused the

treatment or accommodation, but the risk assessment must be

based on medical or other objective evidence, and not simply on

that person's good-faith belief that a significant risk existed.

Vacated and remanded.

Justice Stevens filed concurring opinion in which Justice

Breyer, joined.

Justice Ginsburg filed concurring opinion.

12a

Chief Justice Rehnquist filed opinion concurring in the

judgment in part and dissenting in part, in which Justices Scalia

and Thomas joined, and in Part II of which Justice O'Connor

joined.

Justice O'Connor filed opinion concurring in the judgment in

part and dissenting in part.

[West headnotes omitted]

*2198 Syllabus [FN*]

FN* The syllabus constitutes no part of the opinion of

the Court but has been prepared by the Reporter of Decisions for

the convenience of the reader. See United States v. Detroit

Timber & Lumber Co., 200 U.S.321, 337, 26 S.Ct. 282, 287,

50 L.Ed. 499.

Respondent is infected with the human immunodeficiency virus

(HIV), but had not manifested its most serious symptoms when

the incidents in question occurred. At that time, she went to

petitioner's office for a dental examination and disclosed her

HIV infection. Petitioner discovered a cavity and informed

respondent of his policy against filling cavities of HIV-infected

patients in his office. He offered to perform the work at a

hospital at no extra charge, though respondent would have to pay

for use of the hospital's facilities. She declined and filed suit

under, inter alia, the Americans with Disabilities Act of

1990(ADA), which prohibits discrimination against any

individual “on the basis of disability in the ... enjoyment of the ...

services ... of any place of public accommodation by any person

who ... operates [such] a place," 42 U.S.C. § 12182(a), but

qualifies the prohibition by providing: "Nothing [herein] shall

require an entity to permit an individual to participate in or

benefit from the ... accommodations of such entity where such

individual poses a direct threat to the health or safety of others,"

§ 12182(b)(3). The District Court granted respondent summary

judgment. The First Circuit affirmed, agreeing with the lower

l3 a

court that respondent's HIV was a disability under the ADA even

though her infection had not yet progressed to the Symptomatic

Stage, and that treating her in petitioner's office would not have

posed a direct threat to the health and Safety of others. In

making the latter tuling, the court relied on the 1993 Dentistry

Guidelines of the Centers for Disease Control and Prevention

(CDC) and on the 199] American Dental Association Policy on

HIV.

Held:

1. Even though respondent's HIV infection had not progressed to

the so-called Symptomatic phase, it was a "disability" under §

12102(2)(A), that is, "a physical ... impairment that substantially

limits one or more of [an individual's] major life activities." Pp.

2201-2210.

(a) The ADA definition is drawn almost verbatim from

definitions applicable to § 504 of the Rehabilitation Act of 1973

and another federal statute. Because the ADA expressly provides

that "nothing [herein] shall be construed to apply a lesser

Standard than ... under ... the Rehabilitation Act ... or the

regulations issued ... pursuant to [it]," § 12201(a), this Court

must construe the ADA to grant at least as much protection as

the regulations implementing the Rehabilitation Act. Pp. 2201-

2202.

(b) From the moment of infection and throughout every Stage of

the disease, HIV infection satisfies the Statutory and regulatory

definition of a "physical impairment." Applicable Rehabilitation

Act regulations define "physical or mental impairment" to mean

"any physiological disorder or condition ... affecting ... the ...

body['s]} ... hemic and lymphatic [systems]." HIV infection falls

*2199 well within that definition. The medical literature reveals

that the disease follows a predictable and unalterable course

from infection to inevitable death. It causes immediate

abnormalities in a person's blood, and the infected person's white

cell count continues to drop throughout the course of the disease,

l4a

even during the intermediate stage when its attack is

concentrated in the lymph nodes. Thus, HIV infection must be

regarded as a physiological disorder with an immediate,

constant, and detrimental effect on the hemic and lymphatic

systems. Pp. 2201-2205.

reproduce and to bear children, constitutes a "major life activity”

under the ADA. The plain meaning of the word "major" denotes

comparative importance and suggests that the touchstone is an

activity's significance. Reproduction and the sexual dynamics

surrounding it are central to the life process itself. Petitioner's

claim that Congress intended the ADA only to cover those

aspects of a person's life that have a public, economic, or daily

character founders on the statutory language. Nothing in the

definition suggests that activities without such a dimension may

somehow be regarded as so unimportant or insignificant as not to

be "major." This interpretation is confirmed by the

Rehabilitation Act regulations, which provide an illustrative,

nonexhaustive list of major life activities. Inclusion on that list

of activities such as caring for one's self, performing manual

tasks, working, and learning belies the suggestion that a task

must have a public or economic character. On the contrary, the

regulations support the inclusion of reproduction, which could

not be regarded as any less important than working and learning.

Pp. 2205- 2206.

(d) Respondent's HIV infection "substantially limits" her major

life activity within the ADA's meaning. Although the

Rehabilitation Act regulations provide little guidance in this

regard, the Court's evaluation of the medical evidence

demonstrates that an HIV-infected woman's ability to reproduce

is substantially limited in two independent ways: If she tries to

conceive a child, (1) she imposes on her male partner a

statistically significant risk of becoming infected; and (2) she

risks infecting her child during gestation and childbirth, i.e.,

perinatal transmission. Evidence suggesting that antiretroviral

therapy can lower the risk of perinatal transmission to about 8%,

SS a) snes

ee eh

ISa

even if relevant, does not avail petitioner because it cannot be

and fatal disease to one's child does not represent a substantial

limitation on reproduction. The decision to reproduce carries

econoniic and legal consequences as well. There are added costs

for antiretroviral therapy, supplemental insurance, and long-

term health care for the child who must be examined and treated.

Some state laws, moreover, forbid HIV-infected persons from

having sex with others, regardless of consent. In the context of

reviewing summary judgment, the Court must take as true

respondent's unchallenged testimony that her HIV infection

controlled her decision not to have a child. Pp. 2206-2207.

(e¢) The uniform body of administrative and judicial precedent

interpreting similar language in the Rehabilitation Act confirms

the Court's holding. Every agency and court to consider the

issue under the Rehabilitation Act has found Statutory coverage

for persons with asymptomatic HIV. The uniformity of that

precedent is significant. When administrative and judicial

interpretations have settled the meaning of an existing statutory

provision, repetition of the same language in a new statute

indicates, as a general matter, Congress’ intent to incorporate

such interpretations as well. See, e.g., Lorillard vy. Pons, 434

U.S. 575, 580-581, 98 S.Ct. 866, 869-870, 55 L.Ed.2d 40. Pp.

2207-2209.

(f) The Court's holding is further reinforced by the guidance

issued by the Justice Department and other agencies authorized

to administer the ADA, which Supports the conclusion that

persons with asymptomatic HIV fal] within the ADA's definition

of disability. The views of agencies charged with implementing

a statute are entitled to deference. See Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104

S.Ct. 2778, 2782-2783, 81 L.Ed.2d 694. Pp. 2209-2210.

*2200 2. In affirming the summary judgment, the First Circuit

did not cite sufficient material in the record to determine, as a

matter of law, that respondent's HIV infection posed no direct

l6a

threat to the health and safety of others. The ADA's direct threat

provision, § 12182(b)(3), stems from School Bd. of Nassau Cty.

v. Arline, 480 U.S. 273, 287, 107 S.Ct. 1123, 1130-1131. 94

L.Ed.2d 307, in which this Court reconciled competing interests

in prohibiting discrimination and preventing the spread of

disease by construing the Rehabilitation Act not to require the

hiring of a person who posed "a significant risk of

communicating an infectious disease to others," id., at 287, and

n. 16, 107 S.Ct., at 1130-1131, and n. 16. The existence of a

significant risk is determined from the standpoint of the health

care professional who refuses treatment or accommodation, and

the risk assessment is based on the medical or other objective,

scientific evidence available to him and his profession, not

simply on his good-faith belief that a significant risk existed.

See id., at 288, 107 S.Ct., at 1131; id., at 288, n. 18, 107 S.Ct., at

1131 n. 18, distinguished. For the most part, the First Circuit

followed the proper standard and conducted a thorough review of

the evidence. However, it might have mistakenly relied on the

1993 CDC Dentistry Guidelines, which recommend certain

universal precautions to combat the risk of HIV transmission in

the dental environment, but do not actually assess the level of

such risk, and on the 1991 American Dental Association Policy

on HIV, which is the work of a professional organization, not a

public health authority, and which does not reveal the extent to

which it was based on the Association's assessment of dentists’

ethical and professional duties, rather than _ scientific

assessments. Other evidence in the record might support

affirmance of the trial court's ruling, and there are reasons to

doubt whether petitioner advanced evidence sufficient to raise a

triable issue of fact on the significance of the risk, but this

Court's evaluation is constrained by the fact that it has not had

briefs and arguments directed to the entire record. A remand

will permit a full exploration of the issues through the adversary

process. Pp. 2210-2213.

107 F.3d 934, vacated and remanded.

17a

KENNEDY, J., delivered the opinion of the Court, in which

STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined.

STEVENS, J., filed a concurring opinion, in which BREYER, J.,

joined. GINSBURG, J., filed a concurring opinion.

REHNQUIST, C. J., filed an opinion concurring in the judgment

in part and dissenting in part, in which SCALIA and THOMAS,

JJ., joined, and in Part II of which O'CONNOR, J., joined.

O'CONNOR, J., filed an opinion concurring in the judgment in

part and dissenting in part.

John W. McCarthy, Bangor, ME, for petitioner.

Bennett H. Klein, for respondent.

Lawrence G. Wallace, Washington, DC, for United States as

amicus curiae by special leave of the Court.

Justice KENNEDY delivered the opinion of the Court.

We address in this case the application of the Americans with

Disabilities Act of 1990(ADA), 104 Stat. 327, 42 U.S.C. § 12101

et seq., to persons infected with the human immunodeficiency

virus (HIV). We granted certiorari to review, first, whether HIV

infection is a disability under the ADA when the infection has

not yet progressed to the so-called symptomatic phase; and,

second, whether the Court of Appeals, in affirming a grant of

summary judgment, cited sufficient material in the record to

determine, as a matter of law, that respondent's infection with

HIV posed no direct threat to the health and safety of her treating

dentist.

Respondent Sidney Abbott has been infected with HIV since

1986. When the incidents *2201 we recite occurred, her

infection had not manifested its most serious symptoms. On

September 16, 1994, she went to the office of petitioner Randon

Bragdon in Bangor, Maine, for a dental appointment. She

18a

disclosed her HIV infection on the patient registration form.

Petitioner completed a dental examination, discovered a cavity,

and informed respondent of his policy against filling cavities of

HIV-infected patients. He offered to perform the work at a

hospital with no added fee for his services, though respondent

would be responsible for the cost of using the hospital's facilities.

Respondent declined.

Respondent sued petitioner under state law and § 302 of the

ADA, 104 Stat. 355, 42 U.S.C. § 12182, alleging discrimination

on the basis of her disability. The state law claims are not before

us. Section 302 of the ADA provides:

"No individual shall be discriminated against on the basis

of disability in the full and equal enjoyment of the goods,

services, facilities, privileges, advantages, or accommodations of

any place of public accommodation by any person who ...

operates a place of public accommodation.” § 12182(a).

The term "public accommodation" -is defined to include the

"professional office of a health care provider." § 12181(7)(F).

A later subsection qualifies the mandate not to discriminate. It

provides:

"Nothing in this subchapter shall require an entity to

permit an individual to participate in or benefit from the goods,

services, facilities, privileges, advantages and accommodations

of such entity where such individual poses a direct threat to the

health or safety of others." § 12182(b)(3).

The United States and the Maine Human Rights Commission

intervened as plaintiffs. After discovery, the parties filed cross-

motions for summary judgment. The District Court ruled in

favor of the plaintiffs, holding that respondent's HIV infection

satisfied the ADA's definition of disability. 912 F.Supp. 580,

585-587 (D.Me.1995). The court held further that petitioner

raised no genuine issue of material fact as to whether

respondent's HIV infection would have posed a direct threat to

it iia eee tent

I ET :

a Na lee

Sa Wa sata

ate

19a

the health or safety of others during the course of a dental

treatment. Id., at 587-591. The court relied on affidavits

submitted by Dr. Donald Wayne Marianos, Director of the

Division of Oral Health of the Centers for Disease Control and

Prevention (CDC). The Marianos affidavits asserted it is safe for

dentists to treat patients infected with HIV in dental offices if the

dentist follows the so- called universal precautions described in

the Recommended Infection-Control Practices for Dentistry

issued by CDC in 1993 (1993 CDC Dentistry Guidelines). 912

F.Supp., at 589.

The Court of Appeals affirmed. It held respondent's HIV

infection was a disability under the ADA, even though her

infection had not yet progressed to the Symptomatic stage. 107

F.3d 934, 939-943 (C.A.1 1997). The Court of Appeals also

agreed that treating the respondent in petitioner's office would

not have posed a direct threat to the health and safety of others.

Id., at 943-948. Unlike the District Court, however, the Court of

Appeals declined to rely on the Marianos affidavits. Id., at 946,

n. 7. Instead the court relied on the 1993 CDC Dentistry

Guidelines, as well as the Policy on AIDS, HIV Infection and the

Practice of Dentistry, promulgated by the American Dental

Association in 1991 (1991 American Dental Association Policy

on HIV). 107 F.3d, at 945-946.

The petition for certiorari presented three other questions for

review. The questions stated:

"3. When deciding under title III of the ADA whether a

private health care provider must perform invasive procedures on

an infectious patient in his Office, should courts defer to the

health care provider's professional judgment, as long as it is

reasonable *2210 in light of then-current medical knowledge?

ai a acct

eg ee Pe ne

20a

"4. What is the proper standard of judicial review under

title If] of the ADA of a private health care provider's judgment

that the performance of certain invasive procedures in his office

would pose a direct threat to the health or safety of others?

"5. Did petitioner, Randon Bragdon, D. M. D., raise a

genuine issue of fact for trial as to whether he was warranted in

his judgment that the performance of certain invasive procedures

on a patient in his office would have posed a direct threat to the

health or safety of others?" Pet. for Cert. i.

Of these, we granted certiorari only on question three. The

question is phrased in an awkward way, for it conflates two

separate inquiries. In asking whether it is appropriate to defer to

petitioner's judgment, it assumes that petitioner's assessment of

the objective facts was reasonable. The central premise of the

question and the assumption on which it is based merit separate

consideration.

Again, we begin with the statute. Notwithstanding the

protection given respondent by the ADA's definition of

disability, petitioner could have refused to treat her if her

infectious condition "pose[d] a direct threat to the health or

safety of others." 42 U.S.C. § 12182(b)(3). The ADA defines a

direct threat to be "a significant risk to the health or safety of

others that cannot be eliminated by a modification of policies,

practices, or procedures or by the provision of auxiliary aids or

services." Ibid. Parallel provisions appear in the employment

provisions of Title I. §§ 12111(3), 12113(b).

The ADA's direct threat provision stems from the recognition in

School Bd. of Nassau Cty. v. Arline, 480 U.S. 273, 287, 107

S.Ct. 1123, 1130-1131, 94 L.Ed.2d 307 (1987), of the

importance of prohibiting discrimination against individuals with

disabilities while protecting others from significant health and

safety risks, resulting, for instance, from a contagious disease. In

Arline, the Court reconciled these objectives by construing the

Rehabilitation Act not to require the hiring of a person who

posed "a significant risk of communicating an infectious disease

to others." Id., at 287, n. 16, 107 S.Ct., at 1131, n. 16. Congress

2la

amended the Rehabilitation Act and the Fair Housing Act to

incorporate the language. See 29 U.S.C. § 706(8)(D) (excluding

individuals who "would constitute a direct threat to the health or

safety of other individuals"); 42 U.S.C. § 3604(f)(9) (same). It

later relied on the same language in enacting the ADA. See 28

CFR pt. 36, App. B, p. 626 (1997) (ADA's direct threat provision

codifies Arline ). Because few, if any, activities in life are risk

free, Arline and the ADA do not ask whether a risk exists, but

whether it is significant. Arline, supra, at 287, and n. 16, 107

S.Ct., at 1131, andn. 16; 42 U.S.C. § 12182(b)(3).

[12] The existence, or nonexistence, of a significant risk must be

determined from the standpoint of the person who refuses the

treatment or accommodation, and the risk assessment must be

based on medical or other objective evidence. Arline, Supra, at

288, 107 S.Ct., at 1131; 28 CFR § 36.208(c) (1997); id., pt. 36,

App. B, p. 626. As a health care professional, petitioner had the

duty to assess the risk of infection based on the objective,

scientific information available to him and others in his

profession. His belief that a significant risk existed, even if

maintained in good faith, would not relieve him from liability.

To use the words of the question presented, petitioner receives

no special deference simply because he is a health care

professional. It is true that Arline reserved "the question whether

courts should also defer to the reasonable medical judgments of

private physicians on which an employer has relied." 480 U.S..

at 288, n. 18, 107 S.Ct., at 1131, n. 18. At most, this statement

reserved the possibility that employers could consult with

individual physicians as objective third-party experts. It did not

suggest that an individual physician's state of mind could excuse

discrimination without regard to the objective reasonableness of

his actions.

Our conclusion that courts should assess the objective

reasonableness of the views of health care professionals without

deferring to their individual judgments does not answer *2211

the implicit assumption in the question presented, whether

petitioner's actions were reasonable in light of the available

a eco raertame

22a

medical evidence. In assessing the reasonableness of petitioner's

actions, the views of public health authorities, such as the U.S.

Public Health Service, CDC, and the National Institutes of

Health, are of special weight and authority. Arline, supra, at

288, 107 S.Ct., at 1130-1131; 28 CFR pt. 36, App. B, p. 626

(1997). The views of these organizations are not conclusive,

however. A health care professional who disagrees with the

prevailing medical consensus may refute it by citing a credible

scientific basis for deviating from the accepted norm. See W.

Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton

on Law of Torts § 32, p. 187 (Sth ed.1984).

We have reviewed so much of the record as necessary to

illustrate the application of the rule to the facts of this case. For

the most part, the Court of Appeals followed the proper standard

in evaluating the petitioner's position and conducted a thorough

review of the evidence. Its rejection of the District Court's

reliance on the Marianos affidavits was a correct application of

the principle that petitioner's actions must be evaluated in light

of the available, objective evidence. The record did not show

that CDC had published the conclusion set out in the affidavits at

the time petitioner refused to treat respondent. 107 F.3d, at 946,

n. 7.

A further illustration of a correct application of the objective

standard is the Court of Appeals' refusal to give weight to the

petitioner's offer to treat respondent in a hospital. Id., at 943, n.

4. Petitioner testified that he believed hospitals had safety

measures, such as air filtration, ultraviolet lights, and respirators,

which would reduce the risk of HIV transmission. App. 151.

Petitioner made no showing, however, that any area hospital had

these safeguards or even that he had hospital privileges. Id., at

31. His expert also admitted the lack of any scientific basis for

the conclusion that these measures would lower the risk of

transmission. Id., at 209. Petitioner failed to present any

objective, medical evidence showing that treating respondent in

a hospital would be safer or more efficient in preventing HIV

transmission than treatment in a well-equipped dental office.

at a A ae i

23a

We are. concerned, however, that the Court of Appeals might

have placed mistaken reliance upon two other sources. In ruling

no triable issue of fact existed on this point, the Court of Appeals

relied on the 1993 CDC Dentistry Guidelines and the 1991

American Dental Association Policy on HIV. 107 F 3d, at 945-

946. This evidence is not definitive. As noted earlier, the CDC

Guidelines recommended certain universal precautions which, in

CDC's view, "should reduce the risk of disease transmission in

the dental environment." U.S. Dept. of Health and Human

Services, Public Health Service, CDC, Recommended Infection

Control Practices for Dentistry, 41 Morbidity & Mortality

Weekly Rep. No. RR-18, p. 1 (May 28, 1993). The Court of

Appeals determined that, "[wJhile the guidelines do not state

explicitly that no further risk- reduction measures are desirable

or that routine dental care for HIV-positive individuals is safe,

those two conclusions seem to be implicit in the guidelines’

detailed delineation of Procedures for office treatment of HIV-

positive patients." 107 F.3d, at 946. In our view, the Guidelines

do not necessarily contain implicit assumptions conclusive of the

point to be decided. The Guidelines set out CDC's

recommendation that the universal precautions are the best way

to combat the risk of HIV transmission. They do not assess the

level of risk.

Nor can we be certain, on this record, whether the 199]

American Dental Association Policy on HIV carries the weight

the Court of Appeals attributed to it. The Policy does provide

some evidence of the medical community's objective assessment

of the risks posed by treating people infected with HIV in dental

offices. It indicates:

"Current scientific and epidemiologic evidence indicates

that there is little risk of transmission of infectious diseases

through dental treatment if recommended infection control

procedures are routinely followed. Patients with HIV infection

may be safely treated in private dental offices when appropriate

infection control] procedures are employed. Such infection

24a

control procedures *2212 provide protection both for patients

and dental personnel." App. 225.

We note, however, that the Association is a professional

organization, which, although a respected source of information

on the dental profession, is not a public health authority. It is not

clear the extent to which the Policy was based on the

Association's assessment of dentists’ ethical and professional

duties in addition to its scientific assessment of the risk to which

the ADA refers. Efforts to clarify dentists’ ethical obligations

and to encourage dentists to treat patients with HIV infection

with compassion may be commendable, but the question under

the statute is one of statistical likelihood, not professional

responsibility. Without more information on the manner in

which the American Dental Association formulated this Policy,

we are unable to determine the Policy's value in evaluating

whether petitioner's assessment of the risks was reasonable as a

matter of law.

The court considered materials submitted by both parties on the

cross motions for summary judgment. The petitioner was

required to establish that there existed a genuine issue of

material fact. Evidence which was merely colorable or not

significantly probative would not have been sufficient.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250, 106

S.Ct. 2505, 2510-2511, 91 L.Ed.2d 202 (1986).

We acknowledge the presence of other evidence in the record

before the Court of Appeals which, subject to further arguments

and examination, might support affirmance of the trial court's

ruling. For instance, the record contains substantial testimony

from numerous health experts indicating that it is safe to treat

patients infected with HIV in dental offices. App. 66-68, 88-90,

264- 266, 268. We are unable to determine the import of this

evidence, however. The record does not disclose whether the

expert testimony submitted by respondent turned on evidence

available in September 1994. See id., at 69- 70 (expert

—

25a

testimony relied in part on materials published after September

1994).

There are reasons to doubt whether petitioner advanced

evidence sufficient to raise a triable issue of fact on the

significance of the risk. Petitioner relied on two principal points:

First, he asserted that the use of high-speed drills and surface

cooling with water created a risk of airborne HIV transmission.

The study on which petitioner relied was inconclusive, however,

determining only that "[flurther work is required to determine

whether such a risk exists." Johnson & Robinson, Human

Immunodeficiency Virus-1 (HIV-1) in the Vapors of Surgical

Power Instruments, 33 J. of Medical Virology 47, 47 (1991).

Petitioner's expert witness conceded, moreover, that no evidence

suggested the spray could transmit HIV. His opinion on airborne

risk was based on the absence of contrary evidence, not on

positive data. App. 166. Scientific evidence and expert

testimony must have a traceable, analytical basis in objective

fact before it may be considered on summary judgment. See

General Electric Co. v. Joiner, 522 U.S. 136, ----, ----, 118 S.Ct.

512, 518, 519, 139 L.Ed.2d 508 (1997).

Second, petitioner argues that, as of September 1994, CDC had

identified seven dental workers with possible occupational

transmission of HIV. See U.S. Dept. of Health and Human

Services, Public Health Service, CDC, HIV/AIDS Surveillance

Report, vol. 6, no. 1, p. 15, tbl. 11 (Mid-year ed. June 1994).

These dental workers were exposed to HIV in the course of their

employment, but CDC could not determine whether HIV

infection had resulted. Id., at 15, n. 3. It is now known that

CDC could not ascertain whether the seven dental workers

contracted the disease because they did not present themselves

for HIV testing at an appropriate time after their initial exposure.

Gooch et al., Percutaneous Exposures to HIV-Infected Blood

Among Dental Workers Enrolled in the CDC Needlestick Study,

126 J. American Dental Assn. 1237, 1239 (1995). It is not clear

on this record, however, whether this information was available

to petitioner in September 1994. If not, the seven cases might

40a

have provided some, albeit not necessarily sufficient, support for

petitioner's position. Standing alone, we doubt it would meet the

objective, scientific basis for finding a significant risk to the

petitioner.

*2213 Our evaluation of the evidence is constrained by the fact

that on these and other points we have not had briefs and

arguments directed to the entire record. In accepting the case for

review, we declined to grant certiorari on question five, which

asked whether petitioner raised a genuine issue of fact for trial.

Pet. for Cert. i. As a result, the briefs and arguments presented to

us did not concentrate on the question of sufficiency in light all

of the submissions in the summary judgment proceeding. "When

attention has been focused on other issues, or when the court

from which a case comes has expressed no views on a

controlling question, it may be appropriate to remand the case

rather than deal with the merits of that question in this Court."

Dandridge v. Williams, 397 U.S. 471, 476, n. 6, 90 S.Ct. 1153,

1157, n. 6, 25 L.Ed.2d 491 (1970). This consideration carries

particular force where, as here, full briefing directed at the issue

would help place a complex factual record in proper perspective.

Resolution of the issue will be of importance to health care

workers not just for the result but also for the precision and

comprehensiveness of the reasons given for the decision.

We conclude the proper course is to give the Court of Appeals

the opportunity to determine whether our analysis of some of the

studies cited by the parties would change its conclusion that

petitioner presented neither objective evidence nor a triable issue

of fact on the question of risk. In remanding the case, we do not

foreclose the possibility that the Court of Appeals may reach the

same conclusion it did earlier. A remand will permit a full

exploration of the issue through the adversary process.

The determination of the Court of Appeals that respondent's

HIV infection was a disability under the ADA is affirmed. The

judgment is vacated, and the case is remanded for further

proceedings consistent with this opinion.

27a

It is so ordered.

Justice STEVENS, with whom Justice BREYER joins,

concurring.

The Court's opinion demonstrates that respondent's HIV

infection easily falls within the Statute's definition of "disability."

Moreover, the Court's discussion in Part III of the relevant

evidence has persuaded me that the judgment of the Court of

Appeals should be affirmed. I do not believe petitioner has

sustained his burden of adducing evidence sufficient to raise a

triable issue of fact on the significance of the risk posed by

treating respondent in his office. The Court of Appeals reached

that conclusion after a careful and extensive study of the record:

its analysis on this question was perfectly consistent with the

legal reasoning in Justice KENNEDY's opinion for the Court;

and the latter opinion itself explains that petitioner relied on data

that was inconclusive and speculative at best, see ante, at 2212-

2213. Cf. General Electric Co. v. Joiner, 522 U.S. 136, 118 $.Ct.

512, 139 L.Ed.2d 508 (1997).

There are not, however, five Justices who agree that the

judgment should be affirmed. Nor does it appear that there are

five Justices who favor a remand for further proceedings

consistent with the views expressed in either Justice

KENNEDY's opinion for the Court or the opinion of THE

CHIEF JUSTICE. Because I am in agreement with the legal

analysis in Justice KENNEDY's opinion, in order to provide a

judgment supported by a majority, I join that opinion even

though I would prefer an outright affirmance. Cf. Screws v.

United States, 325 U.S. 91. 134, 65 S.Ct. 1031, 1051, 89 L.Ed.

1495 (1945) (Rutledge, J., concurring in result).

Justice GINSBURG, concurring.

HIV infection, as the description set out in the Court's opinion

documents, ante, at 2203-2205, has been regarded as a disease

28a

limiting life itself. See Brief for American Medical Association

as Amicus Curiae 20. The disease inevitably pervades life's

choices: education, employment, family and financial

undertakings. It affects the need for and, as this case shows, the

ability to obtain health care because of the reaction of others to

the impairment. No rational legislator, it seems to me apparent,

would require nondiscrimination once symptoms become visible

but permit discrimination when the disease, *2214 though

present, is not yet visible. I am therefore satisfied that the

statutory and regulatory definitions are well met. HIV infection

is "a physical ... impairment that substantially limits ... major life

activities," or is so perceived, 42 U.S.C. §§ 12102(2)(A),(C),

including the afflicted individual's family relations, employment

potential, and ability to care for herself, see 45 CFR §

84.3(j)(2)(ii) (1997); 28 CFR § 41.31(b)(2) (1997).

I further agree, in view of the "importance [of the issue] to

health care workers," ante, at 2213, that it is wise to remand,

erring, if at all, on the side of caution. By taking this course, the

Court ensures a fully informed determination whether

respondent Abbott's disease posed "a significant risk to the o

health or safety of [petitioner Bragdon] that [could not] be

eliminated by a modification of policies, practices, or

procedures...." 42 U.S.C. § 12182(b)(3).

Chief Justice REHNQUIST, with whom Justice SCALIA and

Justice THOMAS join, and with whom Justice O'CONNOR

joins as to Part II, concurring in the judgment in part and

dissenting in part.

While the Court concludes to the contrary as to the "disability"

issue, it then quite correctly recognizes that petitioner could

nonetheless have refused to treat respondent if her condition

i lc ae a ce

29a

posed a "direct threat.". The Court of Appeals affirmed the

judgment of the District Court granting summary judgment to

respondent on this issue. The Court vacates this portion of the

Court of Appeals’ decision, and remands the case to the lower

court, presumably so that it may "determine whether our analysis

of some of the studies cited by the parties would change its

conclusion that petitioner presented neither objective evidence

nor a triable issue of fact on the question of risk." Ante, at 2213.

I agree that the judgment should be vacated, although I am not

sure I understand the Court's cryptic direction to the lower court.

"[D]irect threat" is defined as a “significant risk to the health or

safety of others that cannot be eliminated by a modification of

policies, practices, or procedures or by the provision of auxiliary

aides or services." § 12182(b)(3). This Statutory definition of a

direct threat consists of two parts. First, a court must ask

whether treating the infected patient without precautionary

techniques would pose a "significant risk to the heath or safety of

others." Ibid. Whether a particular risk is significant depends

on:

""“a) the nature of the risk (how the disease is

transmitted), (b) the duration of the risk (how long is the carrier

infectious), (c) the severity of the risk (what is the potential harm

to third parties) and (d) the probabilities the disease will be

transmitted and will cause varying degrees of harm.'" School

Bd. of Nassau Cty. v. Arline, 480 U.S. 273, 288, 107 S.Ct. 1123.

1131, 94 L.Ed.2d 307 (1987).

Even if a significant risk exists, a health practitioner will still be

required to treat the infected patient if "a modification of

policies, practices, or procedures" (in this case, universal

precautions) will "eliminat[e]}" the risk. § 12182(b)(3).

I agree with the Court that "the existence, or nonexistence, of a

significant risk must be determined from the standpoint of the

person who refuses the treatment or accommodation," as of the

time that the decision refusing treatment is made. Ante, at 2210.

I disagree with the Court, however, that "[iJn assessing the

30a

reasonableness of petitioner's actions, the views of public health

authorities ... are of special weight and authority." Ante, at 2211.

Those views are, of course, *2217 entitled to a presumption of

validity when the actions of those authorities themselves are

challenged in court, and even in disputes between private parties

where Congress has committed that dispute to adjudication by a

public health authority. But in litigation between private parties

originating in the federal courts, | am aware of no provision of

law or judicial practice that would require or permit courts to

give some scientific views more credence than others simply

because they have been endorsed by a politically appointed

public health authority (such as the Surgeon General). In

litigation of this latter sort, which is what we face here, the

credentials of the scientists employed by the public health

authority, and the soundness of their studies, must stand on their

own. The Court cites no authority for its limitation upon the

courts’ truth-finding function, except the statement in School Bd.

of Nassau Cty. v. Arline, 480 U:S., at 288, 107 S.Ct., at 1131,

that in making findings regarding the risk of contagion under the

Rehabilitation Act, “courts normally should defer to the

reasonable medical judgments of public health officials.” But

there is appended to that dictum the following footnote, which

makes it very clear that the Court was urging respect for medical

judgment, and not necessarily respect for "official" medical

judgment over "private" medical judgment: "This case does not

present, and we do not address, the question whether courts

should also defer to the reasonable medical judgments of private

physicians on which an employer has rélied." Id., at 288, n. 18,

107 S.Ct., at 1131, n. 18.

Applying these principles here, it is clear to me that petitioner

has presented more than enough evidence to avoid summary

judgment on the “direct threat" question. In June 1994, the

Centers for Disease Control and Prevention published a study

identifying seven instances of possible transmission of HIV from

patients to dental workers. See Ante, at 2212. While it 1s not

entirely certain whether these dental workers contracted HIV

during the course of providing dental treatment, the potential that

3la

the disease was transmitted during the course of dental treatment

is relevant evidence. One need only demonstrate "risk," not

certainty of infection. See Arline, supra, at 288, 107 S.Ct., at

1131 (" ‘the probabilities the disease will be transmitted' " is a

factor in assessing risk). Given the "severity of the risk"

involved here, i.e., near certain death, and the fact that no public

health authority had outlined a protocol for eliminating this risk

in the context of routine dental treatment, it seems likely that

petitioner can establish that it was objectively reasonable for him

to conclude that treating respondent in his office posed a "direct

threat” to his safety.

In addition, petitioner offered evidence of 42 documented

incidents of occupational transmission of HIV to healthcare

workers other than dental professionals. App. 106. The Court of

Appeals dismissed this evidence as irrelevant because these

health professionals were not dentists. 107 F.3d 934, 947 (C.A.1

1997). But the fact that the health care workers were not dentists

is no more valid a basis for distinguishing these transmissions of

HIV than the fact that the health care workers did not practice in

Maine. At a minimum, petitioner's evidence was sufficient to

create a triable issue on this question, and summary judgment

was accordingly not appropriate. .

Justice O'CONNOR, concurring in the judgment in part and

dissenting in part.

I agree with THE CHIEF JUSTICE that respondent's claim of

disability should be evaluated on an individualized basis and that

she has not proven that her asymptomatic HIV status

substantially limited one or more of her major life activities. In

my view, the act of giving birth to a child, while a very

important part of the lives of many women, is not generally the

same as the representative major life activities of all persons--

"caring for one's self, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning, and working"--listed in

regulations relevant to the Americans with Disabilities Act of

1990. See 45 CFR § 84.3(j)(2)(ii) (1997); 28 CFR § 41.31(b)(2)

32a

(1997). Based on that conclusion, there is no need to address

whether other aspects of intimate or family relationships not

raised in this case could constitute major life activities; nor is

there reason to consider whether HIV status *2218 would impose

a substantial limitation on one's ability to reproduce if

reproduction were a major life activity.

I join in Part II of THE CHIEF JUSTICE's opinion concurring

in the judgment in part and dissenting in part, which concludes

that the Court of Appeals failed to properly determine whether

respondent's condition posed a direct threat. Accordingly, I agree

that a remand is necessary on that issue.

33a

Sidney ABBOTT, et al., Plaintiffs, Appellees,

Randon BRAGDON, D.M.LD., Defendant, Appellant.

No. 96-1643.

United States Court of Appeals,

First Circuit.

Heard Nov. 8, 1996.

Decided March 5, 1997.

HIV-positive patient brought action under Americans with

Disabilities Act (ADA) and Maine Human Rights Act against

dentist who refused to treat her in his office. The United

States District Court for the District of Maine, Morton A.

Brody, J., 912 F.Supp. 580, granted summary judgment, ‘in

favor of patient, and dentist appealed. The Court of Appeals,

Selya, Circuit Judge, held, in a case of first impression, that:

(1) HIV-positive status comprises "physical impairment"

under ADA; (2) reproduction constitutes "major life activity"

under ADA; (3) reproduction was "major life activity" under

ADA for patient; (4) HIV-positive status is physical

impairment that "substantially limits" fecund woman's major

life activity of reproduction; (5) neither service provider nor

prospective recipient of service may prove or disprove direct

threat defense to ADA claim by relying on medical evidence

not available when treatment was refused: (6) service provider

cannot successfully contradict achieved consensus that

particular disability is not a direct threat simply by proffering

unsupported opinion; and (7) in -September of 1994,

reasonable medical judgments by public health officials, was

that affording routine dental care to HIV-infected patients in

office environment did not pose "direct threat" to dentist's

health.

34a

Affirmed.

[West Headnotes Omitted]

*937 John W. McCarthy, Bangor, ME, with whom Brent A.

Singer and Rudman & Winchell were on brief, for defendant.

Peter M. Sfikas, Mark S. Rubin and Jill A. Wolowitz,

Chicago, IL, on brief for American Dental Ass'n, amicus

curiae.

Bennett H. Klein and David G. Webbert, Augusta, ME, with

whom Gay and Lesbian Advocates and Johnson, Webbert &

Laubenstein were on brief, for plaintiff Sidney Abbott.

John E. Carnes, Commission Counsel, Augusta, ME, on brief

for intervenor- plaintiff Maine Human Rights Commission.

Samuel R. Bagenstos, Attorney, U.S. Dept. of Justice,

Washington, DC, with whom Deval L. Patrick, Assistant

Attorney General, Boston, MA, and Jessica Dunsay Silver,

Attorney, Washington, DC, were on brief, for intervenor-

plaintiff United States of America, amicus curiae.

Robert Greenwald, Yonkers, NY, and AIDS Action

Committee on brief, Boston, MA, for R.I. Dept. of Pub.

Health, Bureau of Health of the Me. Dept. of Human Servs.,

American Pub. Health Ass'n, Ass'n of State and Territorial

Dental Dirs., and Ass'n of State and Territorial Health

Officials, amici curiae.

Donna Levin, Boston, MA, on brief for Mass. Dept. of Pub.

Health, amicus curiae.

a a

35a

Before SELYA, Circuit Judge, ALDRICH, Senior Circuit

Judge, and STAHL, Circuit Judge.

SELYA, Circuit Judge.

In this case of first impression, the district court granted

summary judgment in favor of plaintiff-appellee Sidney

Abbott, an HIV-positive woman, on her-claim that defendant-

appellant Randon Bragdon, a dentist, violated the Americans

with Disabilities Act (the ADA) by refusing to treat her in his

dental office. [FN1] Dr. Bragdon appeals. Because we agree

with the district court that Ms. Abbott is disabled within the

purview of the ADA and that providing routine dental care to

her (i.e., filling a cavity) would not have posed a direct threat

to Dr. Bragdon's health or safety, we affirm.

FN1. Though we write for simplicity's sake as if Ms.

Abbott were the sole plaintiff, we note that the federal

government and the Maine Human Rights Commission

intervened as plaintiffs below. We note, too, that Ms. Abbott

prevailed upon a parallel claim under the Maine Human

Rights Act (MHRA), 5 Me.Rev.Stat.Ann. tit. 5, § 4592 (West

1989). Interpretation of both the ADA and the MHRA has

"proceeded hand in hand," Soileau v. Guilford of Me., Inc.,

105 F.3d 12, 14 (1st Cir.1997), and the parties here do not

Suggest any distinction between the two statutes that might

affect this appeal. Consequently, we need not discuss the

MHRA further.

I. BACKGROUND

The events giving rise to this litigation are straightforward.

On September 16, 1994, Ms. Abbott arrived at Dr. Bragdon's

office in Bangor, Maine for a scheduled appointment. On her

patient registration form, she indicated that she was infected

with the HIV virus. People may be HIV-positive for years

36a

without manifesting the set of symptoms commonly known as

AIDS, and Ms. Abbott was asymptomatic at the time.

Dr. Bragdon performed a dental examination and discovered a

cavity. He told Ms. Abbott that, pursuant to his infectious

disease policy, he would not fill her cavity in his office, but

would only treat her in a hospital setting. Though he would

charge his regular fee, she would have to bear the additional

cost of whatever the hospital charged for the use of its

facilities. Ms. Abbott refused the *938 offer and instead filed

a complaint under the ADA. See 42 U.S.C. § 12182(a) (1994).

After pretrial discovery concluded, the parties cross-moved

for summary judgment. The district court ruled that Ms.

Abbott was substantially limited in a major life activity

(reproduction) and thus was disabled for purposes of the ADA.

See Abbott v. Bragdon, 912 F.Supp. 580, 587 (D.Me.1995).

The court then concluded that the relatively routine treatment

needed by Ms. Abbott could be delivered safely in Dr.

Bragdon's office. See id. at 591. Consequently, the court

granted Ms. Abbott's motion for summary judgment. See id.

at 595-96. This appeal followed.

Il. THE SUMMARY JUDGMENT STANDARD

[1] The Civil Rules authorize federal courts to grant summary

judgment only when “there is no genuine issue as to any

material fact and ... the moving party is entitled to judgment as

a matter of law." Fed.R.Civ.P. 56(c). Confronted with a

properly documented motion for brevis disposition, the

nonmovant must establish the existence of a fact that is both

genuine and material in order to ward off the entry of an

adverse judgment. See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986);

Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (Ist Cir.1990).

Appellate review of the district court's award of summary

37a

judgment is plenary, and, in keeping with this standard, we are

not wedded to the district court's rationale but may affirm on

any alternative ground made manifest by the record. See

Hachikian v. FDIC, 96 F.3d 502, 504 (1st Cir.1996).

[2] In assaying the record, we are guided by the same tenets

that guided the lower court. Thus, we are duty bound to

indulge all reasonable inferences in favor of the party

Opposing summary judgment. See id. This generous outlook

notwithstanding, we must disregard improbable or overly

attenuated inferences, unsupported conclusions, and rank

speculation. See Smith v. F.W. Morse & Co., 76 F.3d 413,

428 (1st Cir.1996); Medina-Munoz v. R.J. Reynolds Tobacco

Co., 896 F.2d 5, 8 (Ist Cir.1990).

Ill. THE QUESTION OF DISABILITY

* * *

IV. THE DIRECT THREAT QUESTION

Under the ADA, a place of public accommodation must

extend its services to all disabled persons without reference to

their disabilities, subject to certain carefully circumscribed

exceptions. See 42 U.S.C. § 12182(a). By virtue of one such

exception, a covered service provider need not deal with an

individual who "poses a direct threat to the health or safety of

others." 42 U.S.C. § 12182(b)(3). The term "direct threat" is

defined by the Statute; in this context it contemplates the

existence of "a significant risk to the health or safety of others

that cannot be eliminated by a modification of policies,

practices, or procedures or by the provision of auxiliary aids or

services." Id. [FN4]

FN4. It is important to note that Dr. Bragdon does not

argue that his offer to treat Ms. Abbott in a hospital setting is a

38a

practice modification that would eliminate the claimed threat

to his health. He did not endeavor to prove in the court below

that hospital treatment was significantly safer than office

treatment, and he makcs no such argument to us. He argues

instead that he had no duty to treat her in his office and that his

offer to treat her in a hospital was gratuitous (and, therefore,

legally irrelevant). Dr. Bragdon claims the right to deny

entirely routine dental treatment to patients with HIV, and his

defense must stand or fall on the correctness vel non of that

thesis. It is only that claim which we consider here. Thus, this

case does not address whether it is illegal under the ADA for

dentists to take additional precautions when treating HIV-

infected patients.

Dr. Bragdon seeks safe harbor under this exception, asserting

that requiring him to treat Ms. Abbott would pose a direct

threat to his health. His argument envisions that to fill Ms.

Abbott's cavity, he would need to inject a local anesthetic into

her mouth and drill the decayed tooth. These procedures, he

says, create an undue risk of HIV transmission both through

needlestick and through the spattering of blood and bloody

saliva.

A court's goal in conducting a direct threat analysis under the

ADA is to achieve a responsible balance, protecting service

providers and other places of accommodation from enforced

exposure to unacceptable health and safety risks while at the

same time protecting disabled individuals from discrimination

that is rooted in prejudice or baseless fear. See Arline, 480

US. at 287, 107 S.Ct. at 1130-31. EEOC regulations drawn

from the Court's seminal opinion in Arline guide this analysis:

In determining whether an individual poses a direct

threat to the health or safety of others, a public

accommodation must make an individualized assessment,

based on reasonable judgment that relies on current medical

knowledge or on the best available objective evidence, to

39a

ascertain: the nature, duration, and severity of the risk; the

probability that the potential injury will actually occur; and

whether reasonable modifications of policies, practices, or

procedures will mitigate the risk.

28 C.F.R. § 36.208(c) (1996); see also Arline, 480 U.S. at

287-88, 107 S.Ct. at 1130-31 (discussing essentially the same

factors).

Of course, any inquiry along these lines depends in one sense

on what information permissibly may be weighed in the

balance and in another sense on the extent to which particular

kinds of evidence should be assigned extra weight (or,

perhaps, decretory significance). Thus, before evaluating the

medical evidence proffered by the parties, we must determine

(1) the relevancy, if any, of subsequent medical knowledge

(that is, medical evidence not available in September 1994

when Dr. Bragdon refused to treat Ms. Abbott), and (2) the

degree of deference, if any, due the judgments of public health

officials.

*944 A. The Evidentiary Time Line.

[16] The first of these excursions need not detain us. The

applicable regulations instruct that a judgment on the presence

or absence of a direct threat must be predicated on "current

medical knowledge or on the best available objective

evidence," 28 C.F.R. § 36.208(c) (1996) (emphasis supplied),

and, hence, point unwaveringly toward confining medical

evidence to that available at the time a dentist or other health-

care professional refuses to treat. This principle--that neither

the service provider nor the prospective recipient of the service

may prove or disprove the direct threat defense by relying on

medical evidence not available when treatment was refused--is

sound policy. Under such a regime, the service provider

retains the opportunity to prove that he made an appropriate

determination of the existence of a direct threat based on the

oe —— ~ or

evidence available when he made the decision to withhold his

services. This is sound policy because, while health- care

providers can be expected to maintain a working knowledge of

currently accepted thinking in their fields, they cannot be

expected to anticipate either future scientific advances or the

emerging wisdom of public health organizations. In short, by

holding covered service providers to an objective standard

featuring the best evidence available at the time they refuse to

render treatment to disabled persons, the ADA holds the

delicate balance between sometimes conflicting rights steady

and true.

This approach is also scrupulously fair. To punish providers

when they satisfy an objective standard based on the best

evidence available at the time of their decisions would be to

punish them for a lack of clairvoyance. By the same token, to

hold providers harmless after they have refused treatment

based on nothing more than unfounded trepidation would run

at cross-purposes with the central theme of the ADA.

Fundamental fairness insists that providers in such

circumstances ought not to be entitled to rely on subsequent

_ understandings to shield them from the condign consequences

of discriminatory conduct. [FN5] Cf. McKennon v. Nashville

Banner Pub. Co., 513 U.S. 352, ----, 115 S.Ct. 879, 885, 13u

L.Ed.2d 852 (1995) (holding that an employer in an

employment discrimination case may not justify its conduct

based on evidence that did not motivate it at the time of the

employment decision); North Shore Univ. Hosp. v. Rosa, 86

N.Y.2d 413, 633 N.Y.S.2d 462, 465, 657 N.E.2d 483, 486

(1995) (evaluating conduct alleged to be discriminatory under

state law based on accepted medical practice at the time of the

alleged infraction).

FNS. Few rules are without exception in extreme cases.

One can conceive of situations in which, after a medical

professional refused treatment but before trial, there might

Sia

occur some medical breakthrough or stunning new CDC

pronouncement that overwhelmingly vindicated the

professional's fears. Especially because decisions in ADA

cases have some forward-looking impact, we do not rule out

the possibility that later occurring events might occasionally

be pertinent. But nothing in the present record suggests any

post hoc scientific revelation warranting a departure from the

usual rule.

B. The Degree of Deference.

[17] The second threshold determination involves the degree

of deference due the medical judgments of public health

authorities. The government joins Ms. Abbott in arguing for a

rule which, if embraced, would cede great deference to those

authorities. They posit that, in the absence of dissent among

public health authorities, a service provider should be bound to

accept the expressed collective judgment of those authorities

unless he can demonstrate that this judgment is medically

unreasonable. In contrast, Dr. Bragdon asseverates that, at

least in the case of a service provider who is himself a skilled

professional (such as a doctor or dentist), a court should defer

to the provider's judgment, as long as it appears to have been

reasonable in light of then-current medical knowledge.

The question of deference pivots on language in Arline, where

Justice O'Connor, writing for the Court, stated that in making

factual findings of the sort that are necessary to inform the

inquiry into the existence vel non of a direct threat, "courts

normally should defer to the reasonable medical judgments

*945 of public health officials." 480 U.S. at 288, 107 S.Ct. at

1131. In crafting regulations applicable to the ADA, the

EEOC treated this passage from Arline as gospel. See 28

C.F.R. Pt. 36, App. B § 36.208 (1996) (remarking that the

direct threat regulations "codif[y] the standard first applied by

the Supreme Court in [Arline F.

Te a

We agree that the deference due public health officials must

flow from the quoted passage--but acknowledging the

hegemony of Arline does not signal automatic victory for Ms.

Abbott and the government. The "defer entirely" formulation

that they urge upon us is totally unprecedented; we have

found no case in which the views of public health authorities

are treated with the solicitude that Ms. Abbott and the

government invite. If adopted, this formulation would come

close to making a consensus among public health authorities

unchallengeable by other medical evidence and, consequently,

unreviewable by the courts. Nothing in Arline demands such

obsequious obeisance to public health authorities or indicates

an intention on the Court's part to consign the medical

judgments of private physicians to some evidentiary Siberia.

Instead, the Court quite clearly left the details of deference for

another day. See, e.g., Arline, 480 U.S. at 288 n. 18, 107 S.Ct.

at 1131 n. 18 ("This case does not present, and we do not

address, the question whether courts should also defer to the

reasonable medical judgments of private physicians...<").

Because we are unprepared to say that medical wisdom

resides exclusively in public health authorities, we reject the

idea of a conclusive presumption. The applicable regulations

state that "[s]ources for medical knowledge include guidance

from public health authorities, such as the U.S. Public Health

Service, the Centers for Disease Control, and the National

Institutes of Health." 28 C.F.R. Pt. 36, App. B § 36.208

(1996) (emphasis supplied). This list is plainly illustrative, not

exhaustive, and the use of the verb "include" indicates to us

that other sources of medical knowledge are within the pale.

The statute, the suggestion implicit in the regulations, and the

teachings of the Court are best synthesized by fashioning a

rule which gives prima facie force to the views of public

health authorities, but which permits a service provider to

challenge those views based on contrary, properly supported

43a

opinions voiced by other recognized experts in the field (e.g.,

research studies published in peer-reviewed journals). Such a

rule accords a meaningful degree of respect to the views of

public health authorities, particularly when those views are

unanimous. But the rule draws a distinction between respect

and absolute capitulation. Under it, the conclusions of public

health authorities may be rebutted by persuasive evidence

adduced from other recognized experts in a given field. [FN6]

FN6. In United States v. Jessup, 757 F.2d 378, 381-84

(Ist Cir.1985), then-Judge Breyer distinguished "bursting

bubble" presumptions (which vanish when contrary evidence

is introduced) from "intermediate" presumptions (which

remain available for consideration by the factfinder even after

contrary evidence is introduced). The presumption here is of

the latter stripe.

[18] Treating the presumption of correctness which attaches

to the collective judgment of public health authorities as

rebuttable will not, as the government intimates, sabotage the

statutory scheme. Because the test for the existence vel non of

a direct threat remains an objective one, a service provider

cannot successfully contradict an achieved consensus simply

by proffering an unsupp

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