*1 conclusion, In we remand to the district appoint- future may miss fears she in view of this court for reconsideration ments. opinion. The district court should focus its Culture The Bacteria Hopper analysis proceeded on whether Dr. manner, especially in the correct consider- fo opinion court also The district ing temporary fillings fact that had the cultures. The use of bacteria on the cused longer in for 3'/2 months than been the concluded that United district should they should have been. The court any assertion adequately rebutted Hopper negli- Dr. was should have been consider whether cultures that bacteria gent washing the root canals canals with sodium whether in not the taken to determine However, this rebuttal antiseptic, and in hypochlorite still infected.6 or a similar were not de concerning cultures does renewing procedure evidence not the whole over negligence strong inference of feat the again on March 5. Ms. LaRoche’s missed inser Hopper’s Dr. immediate arising from only in appointments should be viewed fillings without further permanent Hopper Dr. or terms of whether knew being taken some four steps prophylactic greater should have known of the likeli- fillings had been temporary months after existing perma- hood of infection when he conclu The court’s broad inserted. district nently filled the teeth. taking make respect to cultures sions with The case is vacated and remanded. inference this does rebut the appear government. Costs assessed court stated: negligence. The district of the evidence the Court con- Upon all plaintiff failed to show

cludes Hopper that Dr. breached

preponderance plaintiff by failing perform to duty to question. at the time in

bacteria cultures accept- Hopper according

Dr. acted to moreover, the evi- practice; dental

ed by necessary dence does not establish GREGORY, Appellant, be- preponderance a causal connection result plaintiff’s tween final untoward omitting culture of a bacteria WYRICK, Appellee. Donald W. the root permanent placement of

before fillings. canal analyze to the actual This discussion fails of United States Court wit, case, to whether Dr. known, in Hopper have knew or should March Submitted circumstances, there light existing infection possibility an increased existed whether, knowledge, light

and of such protect against adequate procedure to plaintiff was to immedi- harm of the

future fillings.

ately permanent insert Seltzer, Biologic culturing Endodontology, Considerations practice 6. The shows (1971) (Hobson procedure. experts Some in Endodontic Procedures 305 is a controversial Grossman, strenuously its use. See L. advocate has been shown concludes that "the culture ... 1978). (9th best, ed. Endodontic Practice Others, however, thoroughly inadequate and mis- at be culturing position take the Richter, worst.”). leading a South Dakota Dr. necessary could lead to incorrect is not States, testifying United stated dentist Morse, analysis D. and treatment. See Dakota who he knew of no one in South Technique: An Culture The Endodontic culturing culturing. stated that is Dr. James did Procedure, Unnecessary Den- Impractical practice general the Midwest. not a S. America 793 tal Clinics of North cf.

543 valid because it was based on identification testimony as a obtained result of an arrest that violated the Fourth Amendment. Gregory full and fair opportunity had a courts, question raise this the State they rejected fact contention on its merits, holding that even if his arrest was illegal, the identification complains was not tainted there- v. 465, Under by. 428 U.S. 3037, (1976), 96 S.Ct. 49 L.Ed.2d 1067 feder- corpus al review of issue is habeas this barred. IIA of the Part District Court’s opinion fully explains the for this reasons result. Cir.R. 14. See 8th

Affirmed.

HEANEY, Judge, concurring. Circuit v. agree I bars reexa state, I mination of this matter. must how ever, I court erred believe state Gregory’s it when concluded even if invalid, arrest was fact warrantless require suppression would not of a result ing lineup as of the un identification fruit Gregory, v. State lawful 630 arrest. 607, (Mo.App.1982). 608 Under S.W.2d York, 573, Payton New 445 U.S. 100 1371, (1980), appears 63 L.Ed.2d 639 S.Ct. arrest, police after offi Gregory’s entry cers’ warrantless nonconsensual Gen., Ashcroft, Rosalynn Van Atty. John residence, into his violated his Gen., Heest, City, Atty. Asst. Jefferson Payton rights. Fourth Amendment While Mo., appellee. for was not until seven months after decided Mo., Miller, City, Kansas for Donald E. Payton arrest, Gregory’s applies rule appellant. United States v. John under retroactively son, 457 537, 2579, 102 73 U.S. S.Ct. HEANEY, Judge, HEN- Before Circuit (1982). Any pretrial L.Ed.2d identifica 202 ARNOLD, LEY, Judge, and Senior Circuit Gregory tion of obtained as a direct result Judge. Circuit of his detention should not have unlawful See United trial. been introduced PER CURIAM. Crews, 477, 463, States v. 445 U.S. 100 corpus petition, filed This is a for habeas 1253, 1244, S.Ct. 63 L.Ed.2d 537 custody. The Dis- prisoner state Fisher, 702 379 United States F.2d 715, dismissed the F.Supp. 564 trict Court1 (2d Cir.1983). But see United States and we affirm. petition, (4th Cir.), cert. de Young, 512 F.2d 321 nied, 47 petitioner-appel- U.S. S.Ct. Gregory, (1975). may It rever- lant, in- L.Ed.2d 362 be that conviction is claims that his State Oliver, Senior United Missouri. The Honorable John W. Judge Western District District any have been warranted in sal would not

event, independent probably since an basis in-court identifica-

existed for the victim’s Gregory. I write nevertheless to strong concerns

express my about *3 bar fed-

scope of Stone Powell’s review of Fourth Amendment

eral habeas Halpern,

claims. Federal See Corpus Mapp

Habeas Exclusion-

ary Rule Stone v. 82 CO- After Note, v. Pow- LUM.L.REV. Corpus Narrowing ell: Habeas —Not It, Like 31 ARK.L.REV. 285

As We Would

(1977); Comment, Corpus: Habeas Still as Writ?, 43 as When it Was BROOK-

Great (1977).

LYN L.REY. 773 This is one case complete trust which places in opportunity for full litigation

and fair of Fourth Amendment misplaced. at the state level is America, Appellee, STATES of

UNITED OLSON, Roger Appellant.

Jens

United States Court of

Submitted Dec.