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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 96-1643 <br> <br>                      SIDNEY ABBOTT, ET AL., <br> <br>                      Plaintiffs, Appellees, <br> <br>                                v. <br> <br>                     RANDON BRAGDON, D.M.D., <br> <br>                      Defendant, Appellant. <br> <br> <br> <br>ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES <br> <br> <br> <br>                              Before <br> <br>                      Selya, Circuit Judge, <br>                                 <br>                   Cyr, Senior Circuit Judge, <br>                                 <br>                   and Stahl, Circuit Judge. <br>                                 <br> <br> <br>     John W. McCarthy, with whom Brent A. Singer and Rudman & <br>Winchell, LLC, were on brief, for defendant. <br>     Stephen C. Whiting and The Whiting Law Firm, P.A. on brief for  <br>Cary Savitch, M.D., amicus curiae. <br>     Scott Somerville on brief for Dentists for Preservation of <br>Professional Judgment, amicus curiae. <br>     Robert J. Masini and Diver, Grach, Quade & Masini on brief for <br>American Association of Forensic Dentists, amicus curiae. <br>     Bennett H. Klein, with whom Gay and Lesbian Advocates & <br>Defenders, David G. Webbert, Johnson & Webbert, LLP, and Wendy E. <br>Parmet were on brief, for plaintiff Sidney Abbott. <br>     John E. Carnes, Commission Counsel, on consolidated brief for <br>intervenor-plaintiff Maine Human Rights Commission. <br>     Thomas E. Chandler, Attorney, U.S. Dept. of Justice, with whom <br>Bill Lann Lee, Acting Assistant Attorney General, and Jessica <br>Dunsay Silver, Attorney, were on brief, for United States of <br>America, amicus curiae. <br>     Peter M. Sfikas, Mark S. Rubin, Kathleen Todd, Jill A. <br>Wolowitz, Scott M. Mendel, Bell, Boyd & Lloyd and Patrick J. <br>Quinlan on brief for American Dental Ass'n, amicus curiae. <br> <br> <br> <br> <br> <br>December 29, 1998 <br> <br> <br> <br>                                 <br>                                 <br> <br>

  SELYA, Circuit Judge.  This case involves a claim of <br>disability-based discrimination brought by an asymptomatic HIV- <br>positive individual, Sidney Abbott, against Randon Bragdon, a <br>dentist who refused to fill Ms. Abbott's cavity in his office.  The <br>district court found Ms. Abbott's case compelling and granted <br>summary judgment in her favor.  See Abbott v. Bragdon, 912 F. Supp. <br>580 (D. Me. 1995) (Abbott I).  We affirmed, albeit on somewhat <br>different reasoning.  See Abbott v. Bragdon, 107 F.3d 934 (1st Cir. <br>1997) (Abbott II).  The Supreme Court affirmed our decision in <br>substantial part, but remanded with instructions that we reexamine <br>several pieces of evidence.  See Bragdon v. Abbott, 118 S. Ct. 2196 <br>(1998) (Abbott III).  We ordered supplemental briefing, entertained <br>a new round of oral argument, and now reaffirm the district court's <br>entry of summary judgment. <br>                                I <br>  We limned the pertinent facts in our earlier opinion, seeAbbott II, 107 F.3d at 937-38, and it would be pleonastic to <br>rehearse them here.  To lend context, it suffices to remind the <br>reader that Ms. Abbott, who was infected with the Human <br>Immunodeficiency Virus (HIV), went to Dr. Bragdon's Bangor, Maine <br>office for a dental appointment in September 1994; that she was <br>then in the asymptomatic phase of the disease and so informed the <br>dentist; and that, after Dr. Bragdon discovered a cavity, he <br>refused to fill it in his office.  Ms. Abbott sued, claiming <br>violations of the Americans With Disabilities Act (the ADA), 42 <br>U.S.C.  12182 (1994), and the Maine Human Rights Act, 5 Me. Rev. <br>Stat. Ann. tit. 5,  4592 (West Supp. 1998). <br>     The earlier phases of this litigation established that <br>asymptomatic HIV constitutes a disability under the ADA.  SeeAbbott III, 118 S. Ct. at 2207 (aff'g Abbott II, 107 F.3d at 942).  <br>The sole remaining question is whether performance of the cavity- <br>filling procedure posed a "direct threat" to others and thereby <br>came within an exception to the ADA's broad prohibition against <br>discrimination.  See Abbott II, 107 F.3d at 943; see also 42 U.S.C. <br> 12182(b)(3) (stating the exception and defining a direct threat <br>under the ADA as "a significant risk to the health or safety of <br>others that cannot be eliminated by a modification of policies, <br>practices, or procedures or by the provision of auxiliary aids or <br>services"). <br>     In the earlier appeal, our rejection of Dr. Bragdon's <br>direct threat defense relied in part on our reading of (i) the 1993 <br>Dentistry Guidelines (the Guidelines) formulated by the Centers for <br>Disease Control (CDC), and (ii) the Policy on AIDS, HIV Infection <br>and the Practice of Dentistry (the Policy) propounded by the <br>American Dental Association (the Association).  See Abbott II, 107 <br>F.3d at 945-46.  Each of these documents indicated to us that the <br>use of so-called "universal precautions" would render the risk of <br>performing the cavity-filling procedure in a dental office <br>insignificant.  See id.  We also noted the absence of a trialworthy <br>showing by Dr. Bragdon as to any direct threat.  See id. at 946-48.  <br>The Supreme Court remanded to permit a reevaluation of the evidence <br>on this issue, and, in particular, a reexamination of the <br>Guidelines and the Policy.  See Abbott III, 118 S. Ct. at 2211-13.  <br>In doing so, the Court took pains to explain that its disposition <br>did not debar us from again reaching the same result.  See id. at <br>2213. <br>                                II <br>     In compliance with the Court's directive, we have <br>reexamined the evidence to determine whether summary judgment was <br>warranted.  In order to reverse our course, we would have to find, <br>contrary to our original intuition, either that (i) Ms. Abbott did <br>not merit judgment as a matter of law even in the absence of <br>disputed facts, or (ii) that Dr. Bragdon had submitted sufficient <br>evidence to create a genuine issue of material fact as to his <br>direct threat defense.  In our reexamination, we apply conventional <br>summary judgment jurisprudence, drawing all reasonable factual <br>inferences in favor of Dr. Bragdon (as the party opposing brevisdisposition).  See Abbott II, 107 F.3d at 938 (citing Smith v. F.W. <br>Morse & Co., 76 F.3d 413, 428 (1st Cir. 1996)).  Despite the <br>leniency of this approach, we do not indulge "conclusory <br>allegations, improbable inferences, and unsupported speculation."  <br>Medina-Muoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. <br>1990). <br>                    A.  Ms. Abbott's Evidence. <br>     The Supreme Court raised questions regarding whether the <br>Guidelines, which state that use of the universal precautions <br>therein described "should reduce the risk of disease transmission <br>in the dental environment," necessarily imply that the reduction of <br>risk would be to a level below that required to show direct threat.  <br>Abbott III, 118 S. Ct. at 2211 (quoting Guidelines).  We have <br>reconsidered this point. <br>     The CDC did not write the 1993 Guidelines in a vacuum, <br>but, rather, updated earlier versions issued in 1986 and 1987, <br>respectively.  The 1986 text calls the universal precautions <br>"effective for preventing hepatitis B, acquired immunodeficiency <br>syndrome, and other infectious diseases caused by bloodborne <br>viruses."  The 1987 edition explains that use of the universal <br>precautions eliminates the need for additional precautions that the <br>CDC formerly had advocated for handling blood and other bodily <br>fluids known or suspected to be infected with bloodborne pathogens.  <br>Neither the parties nor any of the amici have suggested that the <br>1993 rewrite was intended to retreat from these earlier risk <br>assessments, and we find no support for such a position in the <br>Guidelines' text.  Thus, we have again determined that the <br>Guidelines are competent evidence that public health authorities <br>considered treatment of the kind that Ms. Abbott required to be <br>safe, if undertaken using universal precautions. <br>     Second, the Court questioned the appropriate weight to <br>accord the Policy, expressing concern that the Policy might be <br>based in whole or in part on the Association's view of dentists' <br>ethical obligations, rather than on a pure scientific assessment.  <br>See Abbott III, 118 S. Ct. at 2211-12.  The supplemental briefing <br>that we requested yielded a cornucopia of information regarding the <br>process by which the Policy was assembled.  We briefly recount the <br>undisputed facts. <br>     The Association formulates scientific and ethical <br>policies by separate procedures, drawing on different member groups <br>and different staff complements.  The Association's Council on <br>Scientific Affairs, comprised of 17 dentists (most of whom hold <br>advanced dentistry degrees), together with a staff of over 20 <br>professional experts and consultants, drafted the Policy at issue <br>here.  By contrast, ethical policies are drafted by the Council on <br>Ethics, a wholly separate body.  Although the Association's House <br>of Delegates must approve policies drafted by either council, we <br>think that the origins of the Policy satisfy any doubts regarding <br>its scientific foundation. <br>     For these reasons, we are confident that we appropriately <br>relied on the Guidelines and the Policy.  Moreover, as the Supreme <br>Court acknowledged, see id. at 2212, these two pieces of evidence <br>represent only a fraction of the proof advanced to support Ms. <br>Abbott's motion.  For example, she proffered the opinions of <br>several prominent experts to the effect that, in 1994, the cavity- <br>filling procedure could have been performed safely in a private <br>dental office, as well as proof that no public health authority <br>theretofore had issued warnings to health care providers <br>disfavoring this type of treatment for asymptomatic HIV-positive <br>patients.  These materials, in and of themselves, likely suffice to <br>prove Ms. Abbott's point.  Thus, we again conclude, after due <br>reevaluation, that Ms. Abbott served a properly documented motion <br>for summary judgment. <br>                   B.  Dr. Bragdon's Evidence. <br>     We next reconsider whether Dr. Bragdon offered sufficient <br>proof of direct threat to create a genuine issue of material fact <br>and thus avoid the entry of summary judgment.  In Abbott II, we <br>canvassed eight items of evidence adduced by Dr. Bragdon in an <br>effort to demonstrate a genuine issue of material fact.  See Abbott <br>II, 107 F.3d at 946-48.  The Supreme Court suggested that one such <br>piece of evidence   the seven cases that the CDC considered <br>"possible" HIV patient-to-dental worker transmissions   should be <br>reexamined.  See Abbott III, 118 S. Ct. at 2212. <br>     The Court's concern revolved around how the word <br>"possible" was understood in this context at the relevant time.  To <br>frame the issue, the Court noted that the CDC marks an HIV case as <br>a "possible" occupational transmission if a stricken worker, who <br>had no other demonstrated opportunity for infection, simply failed <br>to present himself for testing after being exposed to the virus at <br>work.  See id.  The Court speculated that if this definition of <br>"possible" was not available in September 1994, the existence of <br>seven "possible" cases "might have provided some, albeit not <br>necessarily sufficient, support for [Dr. Bragdon's] position."  Id.  <br>In other words, if a dentist knew of seven "possible" occupational <br>transmissions to dental workers without understanding that <br>"possible" meant no more than that the CDC could not determine <br>whether workers were infected occupationally, he might reasonably <br>regard the risk of treating an HIV-infected patient to be <br>significant. <br>     Upon reexamination of the record, we find that the CDC's <br>definition of the word "possible," as used here, had been made <br>public during the relevant period.  The record contains two <br>scientific articles published before Ms. Abbott entered Dr. <br>Bragdon's office which explained this definition.  See Louise J.  <br>Short & David M. Bell, Risk of Occupational Infection With Blood- <br>Borne Pathogens in Operating and Delivery Room Settings, 21 Am. J. <br>Infection Control 343, 345 (1993); John A. Molinari, HIV, Health <br>Care Workers and Patients:  How to Ensure Safety in the Dental <br>Office, 124 J. Am. Dental Ass'n 51, 51-52 (1993).  Since an <br>objective standard pertains here, see Abbott III, 118 S. Ct. at <br>2211; Abbott II, 107 F.3d at 944, the existence of the list of <br>seven "possible" cases does not create a genuine issue of material <br>fact as to direct threat. <br>     In his supplemental briefing and oral argument, Dr. <br>Bragdon has drawn our attention again to the CDC's report of 42 <br>documented cases of occupational transmission of HIV to health-care <br>workers (none of whom were dental workers).  He repeats his <br>argument that, because dental workers are subject to dangers <br>similar to those faced by other health-care workers, these cases <br>can be extrapolated to create an issue of fact as to the degree of <br>risk to dental workers in September 1994.  We previously held that <br>this evidence was insufficient without a documented showing that <br>the risks to dentists and other health-care workers are comparable, <br>see Abbott II, 107 F.3d at 947, and the appellant offers us no <br>cogent reason to change our view.  The Supreme Court did not <br>question our position on this front, and Dr. Bragdon points to no <br>record support that we previously might have overlooked. <br>     Our assessment of Dr. Bragdon's, and his amici's, other <br>reprised arguments similarly remains unchanged.  Each piece of <br>evidence to which they direct us is still "too speculative or too <br>tangential (or, in some instances, both) to create a genuine issue <br>of material fact."  Id. at 948. <br>                               III <br>     We need go no further.  Upon reflection, we again find <br>that Dr. Bragdon did not submit evidence to the district court <br>demonstrating a genuine issue of material fact on the direct threat <br>issue.  Absent such a showing, the district court appropriately <br>entered summary judgment in favor of Ms. Abbott.  In espousing that <br>view, we emphasize the case-specific nature of our determination.  <br>Our disposition is confined to the facts of record here (as they <br>were presented in the nisi prius court).  The state of scientific <br>knowledge concerning this disease is evolving, and we caution <br>future courts to consider carefully whether future litigants have <br>been able, through scientific advances, more complete research, or <br>special circumstances, to present facts and arguments warranting a <br>different decision. <br> <br>Affirmed.</pre>

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