Prohibition of Commission and Retention of Asymptomatic HIV-Positive Servicemembers

Lambda Legal engaged Kevin W. Christensen, PhD, to provide pro bono expert testimony in Wilkins et al. v. Austin, III, et al. Lambda Legal and co-counsel Winston & Strawn filed the litigation to challenge the Department of Defense’s policy that prohibits individuals living with medically controlled and undetectable HIV viral loads from joining the military.

The Department of Defense argued that the prohibition was justified, in part, because of the high financial costs associated with treating people living with HIV. As evidence, the defendants had a report prepared by a medical doctor that summarized economic and data analyses quantifying these costs.

Plaintiffs’ counsel asked Dr. Christensen to assess the economic and data analyses. Across two reports and deposition testimony, Dr. Christensen detailed the weaknesses in the defense expert’s cost estimates and opined they were unreliable as a matter of economics due to unsound methodologies and calculation errors. Dr. Christensen’s work was specifically relied upon by the court when deciding to exclude the adverse expert and was referred to in a hearing on the plaintiffs’ counsel’s motion to exclude the defendant’s expert. The court agreed with the plaintiffs. At a hearing to resolve the matter, the judge noted:

“[…] Dr. Christensen’s rebuttal expert report where he points out the multiple flaws in the assumptions and methodology used to reach some of the [medical doctor’s] conclusions is very, very sound.”

Subsequently, the judge found that “policies prohibiting the accession of asymptomatic HIV-positive individuals with undetectable viral loads into the military are irrational, arbitrary and capricious.” In her memorandum opinion, the judge stated:

“[D]efendants have not provided a scintilla of admissible evidence to support their claim that the accession of some unidentifiable number of asymptomatic HIV-positive individuals with undetectable viral loads would produce ‘disproportionately higher financial costs.’”

Read Lambda Legal’s press release.