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Plummer v. United States

argued: April 25, 1978.

GERALD L. PLUMMER, CHARLES C. RAY, ALFRED JEFFRESS, JAMES B. SMOAK, ROSA CRESPO, BURLESS ANDERSON, KENNETH A. MOULDEN, KENNETH A. JENKINS, FRANKIE L. THOMAS, ORLANDO JENNINGS, THEODORE HARRISON
v.
UNITED STATES OF AMERICA (D.C. CIVIL NO. 76-114) DONALD E. ALLEN, V. UNITED STATES OF AMERICA (D.C. CIVIL NO. 76-887) DONALD ALLEN, ORLANDO JENNINGS, ALFRED JEFFRESS, KENNETH JENKINS, APPELLANTS IN NO. 77-1121 ROSA CRESPO, JAMES B. SMOAK, KENNETH MOULDEN, APPELLANTS IN NO. 77-1122



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA C.A. Nos. 76-114 and 76-887.

Aldisert and Adams, Circuit Judges, and Hannum, District Judge.*fn*

Author: Adams

Opinion OF THE COURT

ADAMS, Circuit Judge.

Eight prisoners confined in a federal penitentiary brought the present suit under the Federal Tort Claims Act seeking damages as a result of allegedly negligent action by prison officials in exposing them to the active tuberculosis of a fellow prisoner. The trial court bifurcated the proceedings and heard the damage phase of the case first. It determined that the appellants here proved no compensable damages under the law of Pennsylvania, which is applicable under the Tort Claims Act.*fn1 Since we believe that the trial court erred in its application of the Pennsylvania rule in such situation, we reverse.

A.

The plaintiffs were incarcerated in the United States Penitentiary in Lewisburg, Pennsylvania in early 1974, and were quartered near a fellow inmate, Samuel Bray. Upon his arrival at Lewisburg in 1973, Bray's routine physical examination had revealed "old, healed lesions on the left lung." In February 1974, Bray was examined by a prison physician because of a cough. Despite Bray's history of exposure to tuberculosis, the physician diagnosed Bray's malady as bronchitis and returned him to the prison population with a prescription for antibiotics. Subsequent examination of Bray's sputum specimens, however, revealed that Bray was in fact suffering from tuberculosis and, on May 16, 1974, he was hospitalized, isolated and treated for that disease.

Upon the discovery of Bray's true condition, the prison authorities proceeded to examine for evidence of infection other inmates who had been in contact with Bray. As a result, skin tests for the presence of tuberculosis were administered to those in Bray's environment; the tests revealed that the eight plaintiffs had been infected with tuberculosis during their contact with Bray. Though the complaining prisoners suffered no symptoms, their bodies harbored one or more dormant tubercle bacilli which could later develop into full-fledged cases of tuberculosis.

The treatment suggested by prison medical authorities to diminish the risk of such "reactivation" was a year-long dosage of a drug called "isoniazid" (INH). Although six of the plaintiffs accepted the treatment, two refused it because of the risk of hepatitis associated with the INH regimen. In addition, one of the plaintiffs, Charles Ray, who chose to take the INH, experienced allergic reactions to the drug.

After exhausting their administrative remedies, the eight prisoners brought suit under the Federal Tort Claims Act,*fn2 alleging that the prison authorities had been negligent in failing to recognize and treat Bray's condition earlier and more diligently, thereby exposing his fellow prisoners to infection. As damages, the prisoners claimed compensation for mental anxiety, for impaired earning capacity, and for the physical harm of an increased risk of developing tuberculosis because of the dormant bacilli in their bodies. Ray also asserted an entitlement to damages for the pain and suffering brought about by his allergic reaction to the INH treatment.

The case was tried before the Honorable Malcolm Muir sitting without a jury. Judge Muir first heard evidence regarding damages, and then examined the asserted negligence. As to the former issue, he found that none of the appellants other than Ray had suffered compensable damages, and limited Ray's potential recovery to $150 based on his allergic reaction. On October 19, 1976, the trial court entered judgment against all of the plaintiffs except for Ray. Thereafter, all the plaintiffs aside from Ray took an appeal from that judgment on December 13, 1976.

At his trial on the question of negligence, Ray rested on the testimony that he had previously presented in the damage phase of the case. After hearing the government's evidence, Judge Muir found that there was no negligence on the part of the prison personnel. He accordingly entered judgment for the United States. Ray took no appeal.

B.

We must, of course, initially ascertain the basis of our jurisdiction. Although the appeals from Judge Muir's October 19th finding regarding damages were timely filed, when those appeals were docketed Judge Muir had not yet issued a final order, since the negligence portion of Ray's ...


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