The opinion of the court was delivered by: MUIR
During the first five months of 1974, Ray was an inmate at the United States Penitentiary in Lewisburg, Pennsylvania. In the above-captioned matter and a related case with which it was consolidated, he, along with several other inmates, contended that as a proximate result of the negligence of personnel at the prison, he was injured by exposure to another inmate suffering from an active case of tuberculosis. Pursuant to F.R.Civ.P. 42(b), the first issue tried was whether or not Ray and his fellow Plaintiffs had sustained an injury.
In an Opinion dated October 19, 1976, the Court found that, although each Plaintiff now tests "positive" on a tuberculin skin test, this change from his previous "negative" condition does not amount to a compensable injury. Plummer v. United States, 420 F. Supp. 978 (M.D.Pa.1976). Consequently, judgment in favor of the Defendant was entered, except with respect to Plaintiff Ray who, on two separate occasions, suffered an apparently allergic skin reaction to the medication which he received and which is ordinarily prescribed when it is discovered that an individual has recently converted from a "negative" to a "positive" skin test.
At the conclusion of the injury phase of the case, the Court, having tentatively reached its ultimate decision that the only possibly compensable injury among all of the Plaintiffs was Ray's skin rash, took further evidence on the extent of the pain and suffering incurred by Ray from his reaction to the medication. The Court determined that if Ray could demonstrate that his rash was a proximate result of negligence attributable to the Defendant, he would be awarded damages in the amount of $150.00. The case was placed on the December, 1976 trial list for resolution of the remaining issues.
On December 1, 1976, Ray's counsel filed a statement that, with respect to the Government's negligence and the proximate relationship between such negligence and Ray's injury, he intended to rest on the evidence previously presented to the Court. The Defendant had presented no evidence on that question and, up to that point, had had no opportunity to do so.
92. A June, 1973 chest X-ray of Samuel Bray showed old, healed lesions on the left lung. (D-3)
93. The June, 1973, chest X-ray was Samuel Bray's routine admission chest X-ray taken soon after his arrival at the Lewisburg Penitentiary.
94. Upon examination on February 8, 1974, Samuel Bray had no fever and no history of bloody sputum. (D-4)
95. Upon examination on February 8, 1974, Samuel Bray did have evidence of pleurisy (which could be due to any type of infection) but no evidence of pneumonia. (Undisputed)
96. Upon examination on February 8, 1974, Samuel Bray gave a history of exposure to tuberculosis in the 1940's. (D-4)
97. Upon examination on February 8, 1974, the diagnosis for Samuel Bray was bronchitis and he was begun on an antibiotic. (Undisputed)
98. A chest X-ray for Samuel Bray, taken on February 7, 1974 and reported on February 13, 1974, was within normal limits and unchanged from the one taken in June, 1973. (D-7)
99. Chest X-rays showing old, healed lesions are considered to be within normal limits and are not viewed as indicative of present ...