injury is related simply to the presence of the tubercle bacilli in his body. He has evidenced no symptoms of the disease and has, thus, experienced no physical pain or suffering as a result of his exposure to tuberculosis. The prescribed INH medication, when taken for approximately one year, minimizes the risk that Sypert will ever develop active tuberculosis as a result of his prison exposure. In addition, the initial exposure and drug treatment provides Sypert with protection against developing tuberculosis from additional exposures to active tuberculosis. Any increased risk resulting from Sypert's failure to take a portion of his medication will not be attributed to defendants.
The case of Plummer, et al. v. United States, 580 F.2d 72 (3rd Cir. 1978), is precisely on point with respect to whether Sypert has suffered a physical injury. The plaintiffs in Plummer were several prison inmates who were exposed to a fellow prisoner with an active case of tuberculosis. The exposed inmates were provided with INH medication and did not develop active tuberculosis. The United States District Court for the Middle District of Pennsylvania determined that the plaintiffs had not suffered a physical injury. The court found that they had experienced no pain and suffering, were not precluded from any occupation, and the "increased probability of 'reactivation' was balanced by the immunity to outside infection conferred by the initial exposure." 580 F.2d at 74. The Third Circuit Court of Appeals accepted this determination. Id.
Sypert, similarly, has not developed active tuberculosis. The Court accordingly finds that Sypert has suffered no physical injury from his exposure to that disease.
Sypert also seeks damages for mental anguish. In Plummer, the Circuit Court found that the physical impact of the tubercle bacilli entering the prisoners' bodies was sufficient to sustain a claim for damages due to negligently caused mental anguish under Pennsylvania law. 580 F.2d at 75-76. Generally under Virginia law, however, a measurable physical injury is required before a plaintiff may recover damages for mental anguish in a negligence action. See, e.g., Naccash v. Burger, 223 Va. 406, 290 S.E. 2d 825 (VA 1982); Hughes v. Moore, 214 Va. 27, 197 S.E. 2d 214 (1973); Soldinger v. United States, 247 F. Supp. 559 (E.D. Va. 1965). Since the Court finds that Sypert has suffered no physical injury as a result of defendants' alleged negligence, he may not recover damages for negligently caused mental anguish.
Physical injury is not a prerequisite under Virginia law for recovery of damages for mental anguish if defendants' actions were "willful, wanton, and vindictive." Soldinger v. United States, 247 F. Supp. at 560. Sypert's complaint alleges only negligence, however, and there is no indication of willful and vindictive conduct by defendants.
The preceding analysis indicates that Sypert has suffered no legally compensable injury. Accordingly, defendants' motion for summary judgment is granted.
An Order consistent with this Memorandum follows.
UPON CONSIDERATION of Defendants' Motion for Summary Judgment, the response thereto, and the entire record herein, it is by the Court this 28th day of March, 1983
ORDERED, that defendants' motion be and the same hereby is granted; and it is,
FURTHER ORDERED, that plaintiff's action be and the same hereby is dismissed.
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