Abbott v. Bragdon
Case Date: 03/05/1997
Court: United States Court of Appeals
Docket No: 96-1643
|
For the First Circuit No. 96-1643 SIDNEY ABBOTT, ET AL., Plaintiffs, Appellees, v. RANDON BRAGDON, D.M.D., Defendant, Appellant. ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before Selya, Circuit Judge, Cyr, Senior Circuit Judge, and Stahl, Circuit Judge. 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, amicus curiae. December 29, 1998 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 (1st 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, 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. I We limned the pertinent facts in our earlier opinion, seeAbbott 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). The earlier phases of this litigation established that asymptomatic HIV constitutes a disability under the ADA. SeeAbbott 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. II 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 brevisdisposition). 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-Mu |