|||U.S. Court of Appeals, First Circuit
|||163 F.3d 87, 8 A.D. Cases 1592, 1998.C01.42083 <http://www.versuslaw.com>
|||December 29, 1998
|||SIDNEY ABBOTT, ET AL., PLAINTIFFS, APPELLEES,
RANDON BRAGDON, D.M.D., DEFENDANT, APPELLANT.
|||John W. McCarthy, with whom Brent A. Singer and Rudman & Winchell,
Llc, were on brief, for defendant. Stephen C. Whiting and The Whiting
Law Firm, P.a. 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 on brief
for American Association of Forensic Dentists, amicus curiae. Bennett
H. Klein, with whom Gay and Lesbian Advocates & Defenders, David G.
Webbert, Johnson & Webbert, Llp, and Wendy E. Parmet 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, with whom Bill Lann Lee, Acting
Assistant Attorney General, and Jessica Dunsay Silver, Attorney, were
on brief, for United States of America, amicus curiae. Peter M. Sfikas,
Mark S. Rubin, Kathleen Todd, Jill A. Wolowitz, Scott M. Mendel, Bell,
Boyd & Lloyd and Patrick J. Quinlan on brief for American Dental Ass'n,
|||Before Selya, Circuit Judge, Cyr, Senior Circuit Judge, and Stahl, Circuit
|||The opinion of the court was delivered by: Selya, Circuit Judge.
|||ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
|||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 (1st Cir. 1997) (Abbott II). The Supreme
Court affirmed our decision in substantial part, but remanded with instructions
that we re-examine several pieces of evidence. See Bragdon v. Abbott,
118 S. Ct. 2196 (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 II,
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
|||The earlier phases of this litigation established that asymptomatic
HIV constitutes a disability under the ADA. See Abbott III, 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 III, 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 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 (1st Cir. 1996)). Despite the leniency of this approach, we do not
indulge "conclusory allegations, improbable inferences, and unsupported
speculation." Medina-Muņoz 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 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- 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 Blood-Borne 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.
|||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.
Throughout this litigation, the asserted violations of the Maine statute
have been treated as following the ADA analysis precisely. See Abbott
II, 107 F.3d at 937 n.1. Accordingly, we need not address the Maine statute
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