Doby v. DeCrescenzo

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

3-23-1999

Doby v. DeCrescenzo

Precedential or Non-Precedential:

Docket 98-1124

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Filed March 22, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 98-1124 and 98-1224

REBECCA S. DOBY; HERBERT K. DOBY,

Appellants in No. 98-1124

v.

JAMES DECRESCENZO; BUCKS COUNTY DEPARTMENT

OF MENTAL HEALTH AND MENTAL RETARDATION;

PHILLIP M. FENSTER, COUNTY ADMINISTRATOR, BUCKS

COUNTY DEPARTMENT OF MENTAL HEALTH AND

MENTAL RETARDATION, in his official capacity; AMY

BRYANT, individually and in her official capacity as

Delegate for the County Administrator of the Bucks

County Department of Mental Health/Mental Retardation

Lenape Valley Foundation; DEBBIE NEIDHARDT,

individually and in her official capacity as Delegate for the

County Administrator of the Bucks County Department of

Mental Health and Mental Retardation; TOWNSHIP OF

WARRINGTON; WARRINGTON TOWNSHIP POLICE

DEPARTMENT; JOHN BONARGO, CHIEF OF POLICE,

WARRINGTON TOWNSHIP POLICE DEPARTMENT, in his

official capacity; JOHN DOE, POLICE OFFICER #1, Officer

who, with police officer #2, asked Mrs. Doby to step

outside apartment at approximately 7:00 p.m. and took

Mrs. Doby in handcuffs and shackles to the hospital,

individually and in his official capacity as police officer of

Warrington Township; JOHN DOE, POLICE OFFICER #2,

Officer who, with police officer #1, asked Mrs. Doby to

step outside apartment at approximately 7:00 p.m. and

took Mrs. Doby in handcuffs and shackles to the hospital,

individually and in his official capacity as police officer of

Warrington Township; JOHN DOE, POLICE OFFICER #3,

Officer who came to the Dobys' apartment at

approximately 7:00 p.m. on December 30, 1993, and

remained at their apartment after Mrs. Doby was taken to

the hospital, individually and in his official capacity as

police officer of Warrington Township; LENAPE VALLEY

FOUNDATION; JOHN C. RICHARDS, M.D.; DOYLESTOWN

HOSPITAL; JOSEPH KNOX, SERGEANT, of the Warrington

Township Police Department, in his official and individual

capacity; MICHAEL NEIPP, OFFICER, of the Warrington

Township Police Department, in his official and individual

capacity; KENNETH HAWTHORN, OFFICER, of the

Warrington Township Police Department, in his official

and individual capacity

REBECCA S. DOBY;

HERBERT K. DOBY,

Appellants in No. 98-1224

v.

JAMES DECRESCENZO; BUCKS COUNTY DEPARTMENT

OF MENTAL HEALTH AND MENTAL RETARDATION;

PHILLIP M. FENSTER, COUNTY ADMINISTRATOR, BUCKS

COUNTY DEPARTMENT OF MENTAL HEALTH AND

MENTAL RETARDATION, in his official capacity; AMY

BRYANT, individually and in her official capacity as

Delegate for the County Administrator of the Bucks

County Department of Mental Health/Mental Retardation

Lenape Valley Foundation; DEBBIE NEIDHARDT,

individually and in her official capacity as Delegate for the

County Administrator of the Bucks County Department of

Mental Health and Mental Retardation; TOWNSHIP OF

WARRINGTON; WARRINGTON TOWNSHIP POLICE

DEPARTMENT; JOHN BONARGO, CHIEF OF POLICE,

WARRINGTON TOWNSHIP POLICE DEPARTMENT, in his

official capacity; JOHN DOE, POLICE OFFICER #1, Officer

who, with police officer #2, asked Mrs. Doby to step

outside apartment at approximately 7:00 p.m. and took

Mrs. Doby in handcuffs and shackles to the hospital,

individually and in his official capacity as police officer of

Warrington Township; JOHN DOE, POLICE OFFICER #2,

Officer who, with police officer #1, asked Mrs. Doby to

step outside apartment at approximately 7:00 p.m. and

took Mrs. Doby in handcuffs and shackles to the hospital,

individually and in his official capacity as police officer of

Warrington Township; JOHN DOE, POLICE OFFICER #3,

2

Officer who came to the Dobys' apartment at

approximately 7:00 p.m. on December 30, 1993, and

remained at their apartment after Mrs. Doby was taken to

the hospital, individually and in his official capacity as

police officer of Warrington Township; LENAPE VALLEY

FOUNDATION; JOHN C. RICHARDS, M.D.; DOYLESTOWN

HOSPITAL; JOSEPH KNOX, SERGEANT, of the Warrington

Township Police Department, in his official and individual

capacity; MICHAEL NEIPP, OFFICER, of the Warrington

Township Police Department, in his official and individual

capacity; KENNETH HAWTHORN, OFFICER, of the

Warrington Township Police Department, in his official

and individual capacity

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 94-03991)

District Judge: Honorable John P. Fullam

Argued February 16, 1999

BEFORE: GREENBERG, ROTH, and LOURIE,*

Circuit Judges

(Opinion filed: March 22, 1999)

Timothy I. McCann (argued)

Linda A. Carpenter

McCann & Geschke

1819 John F. Kennedy Boulevard

Suite 330

Philadelphia, PA 19103

Attorneys for appellants

_________________________________________________________________

* Honorable Alan D. Lourie, Circuit Judge of the United States Court

of Appeals for the Federal Circuit, sitting by designation.

3

Joseph Goldberg (argued)

Peggy B. Greenfeld

Tracy A. Walsh

Margolis Edelstein

Sixth and Walnut Streets

The Curtis Center, 4th Floor

Philadelphia, PA 19106

Attorneys for appellee James

Decrescenzo

Sean X. Kelly (argued)

Marks, O'Neill, Reilly, O'Brien

& Courtney

216 Haddon Avenue

Suite 500

Westmont, NJ 08108

Attorneys for appellees Bucks

County Department of Mental

Health and Mental Retardation,

Phillip M. Fenster, County

Administrator, Bucks County

Department of Mental Health And

Mental Retardation, in his official

capacity and Debbie Neidhardt,

individually and in her official

capacity as Delegate for the

County Administrator of the Bucks

County Department of Mental

Health and Mental Retardation and

Township of Warrington

4

Barbara S. Magen (argued)

Donald N. Camhi

Amalia V. Romanowicz

Post & Schell

1800 JFK Boulevard

19th Floor

Philadelphia, PA 19103

Attorneys for appellees Amy

Bryant, individually and in her

official capacity as Delegate for the

County Administrator of the Bucks

County Department of Mental

Health/Mental Retardation Lenape

Valley Foundation and Lenape

Valley Foundation

L. Rostaing Tharaud (argued)

Marshall, Dennehey, Warner,

Coleman & Goggin

1845 Walnut Street

Philadelphia, PA 19103

Attorneys for appellees Warrington

Township Police Department, John

Bonargo, Chief of Police,

Warrington Township Police

Department, in his official capacity,

Joseph Knox, Sergeant, Warrington

Township Police Department, in his

official and individual capacity,

Michael Neipp, Officer, of the

Warrington Township Police

Department, in his official and

individual capacity, and Kenneth

Hawthorn, Officer, Warrington

Township Police Department, in his

official and individual capacity

5

Alan S. Gold (argued)

Monaghan & Gold

7837 Old York Road

Elkins Park, PA 19027

Attorneys for appellee John C.

Richards, M.D.

Marion H. Griffin (argued)

Marshall, Dennehey, Warner,

Coleman & Goggin

1845 Walnut Street

Philadelphia, PA 19103

Attorneys for appellee Doylestown

Hospital

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Believing that his employee Rebecca Doby was suicidal,

James DeCrescenzo filed a petition with the Bucks County

Department of Mental Health to have her examined

involuntarily under section 7302 of the Pennsylvania

Mental Health Procedures Act. The appropriate county

official granted the petition and issued a warrant

instructing the local police to bring Doby to a nearby

hospital for a psychiatric evaluation; this evaluation led to

her involuntary five-day commitment. Claiming that her

federal rights to due process and freedom from

unreasonable searches and seizures had been violated,

Doby and her husband, Herbert Doby, brought suit under

42 U.S.C. S 1983 against the individuals involved in her

commitment, including DeCrescenzo, the county, certain of

its officials, the police officers who executed the warrant,

and an evaluating doctor. The district court dismissed

portions of the Dobys' case, entered judgment as a matter

of law for the defendants before or at the trial on other

claims, and subsequently denied the Dobys' post-trial

6

motions for a new trial and for other relief. The Dobys

appeal, arguing primarily that Bucks County relies upon an

unconstitutional policy in processing petitions for

involuntary examinations. After evaluation of the many

issues involved in this case we have concluded that the

county's policy in enforcing the Mental Health Procedures

Act is constitutional, and that there is no other reason to

reverse the orders or judgments on appeal. Consequently,

we will affirm.

II. JURISDICTION

The district court had jurisdiction over the Dobys' section

1983 claims under 28 U.S.C. SS 1331 and 1343 and

supplemental jurisdiction over their related state law claims

under 28 U.S.C. S 1367. Because the Dobys appeal from

final orders of the district court, we have jurisdiction under

28 U.S.C. S 1291.

III. FACTUAL AND PROCEDURAL HISTORY

A. Factual History

The chain of events at the center of this appeal

commenced when Doby handed a letter to DeCrescenzo on

December 22, 1993. At the time, Doby had worked for

DeCrescenzo's court reporting agency for two years. She

alleges that during her employment her relationship with

DeCrescenzo had become intimate and included several

instances of sexual contact but not sexual intercourse.

DeCrescenzo denies that his relationship with Doby

extended beyond friendship.

The letter in question was lengthy, 11 pages in total, and

personal. It referred to abuse suffered by Doby during her

childhood and described sexual conduct in which Doby

wished to engage with DeCrescenzo. At the letter's

conclusion, Doby also wrote that she had accomplished

what she was intended to do in this lifetime and was

"leaving." Alarmed by the letter's contents, DeCrescenzo

consulted with his wife, his marriage counselor, and his

attorney. Dr. Linda Edelstein, his marriage counselor,

advised him that the letter's author was in psychiatric

7

distress, potentially suicidal, and needed the immediate

assistance of mental health professionals. On her advice,

DeCrescenzo spoke with personnel of the Philadelphia

mental health office who suggested that they could send a

mobile emergency crisis team to meet with Doby. Without

consulting Doby, DeCrescenzo arranged for the crisis team

to come to his office on December 30, 1993.

However, on December 30, Doby left the office before the

mobile emergency crisis team arrived. From her car phone,

she placed a call to a co-worker, Kathy McHugh, to advise

her that she would not attend McHugh's New Year's Eve

party. Doby was upset and crying, indicated that she was

driving in the rain, and would not tell McHugh where she

was going. McHugh reported this conversation to

DeCrescenzo who then called Doby to ask her to return to

the office. Doby refused and indicated that she did not want

to speak to him.

DeCrescenzo then called the Philadelphia mental health

office and the Warrington Township police. At the

suggestion of the mental health office, he also contacted

Herbert Doby and read to him several phrases from Doby's

letter. Concerned for his wife, Herbert Doby called her on

the car phone but their conversation convinced him that

nothing was wrong. Doby then phoned DeCrescenzo to

assure him that she was not in danger.

Unsure of what to do next, DeCrescenzo again phoned

the Warrington Township Police Department. At their

suggestion, DeCrescenzo asked his wife and Kathy McHugh

to search Doby's work area for other indications of her

mental state. This search revealed a suicide note Doby

authored, which begins "If you are receiving this letter it is

because I am gone, and I seek your help for Herb and my

girls." The search also uncovered written reminders to

make arrangements for organ donation and the custody of

Doby's daughter and step-daughter. The defendants claim

that DeCrescenzo brought these writings when he later

applied for a warrant to have Doby involuntarily examined

on an emergency basis.

After discovering the suicide note, DeCrescenzo went to

the Doylestown Hospital to petition to have Doby

8

involuntarily examined according to the guidelines of the

Pennsylvania Mental Health Procedures Act ("MHPA"), Pa.

Stat. Ann. tit. 50, S 7101 et seq. (West Supp. 1998). During

his drive to the hospital, he received another call from

Herbert Doby informing him that Doby was fine.

Section 7302 of the MHPA permits the issuance of a

warrant for an involuntary emergency examination. It

states:

Upon written application by a physician or other

responsible party setting forth facts constituting

reasonable grounds to believe a person is severely

mentally disabled and in need of immediate treatment,

the county administrator may issue a warrant

requiring a person authorized by him, or any peace

officer, to take such a person to the facility specified in

the warrant.

Pa. Stat. Ann. tit. 50, S7302(a)(1). According to the statute

a person may be "severely mentally disabled" if he or she

"poses a clear and present danger of harm to others or to

[himself/herself.]" Pa. Stat. Ann. tit. 50,S7301(a). In turn,

clear and present danger is shown if "within the past 30

days . . . the person has made threats to commit suicide

and has committed acts which are in furtherance of the

threat to commit suicide." Pa. Stat. Ann. tit. 50

S7301(b)(2)(ii). The statute also provides that a physician

must examine a person brought in under a section 7302

warrant within two hours of her arrival at the facility. Pa.

Stat. Ann. tit. 50, S 7302(b). If the physician performing the

involuntary examination determines that the individual is

severely mentally disabled and in need of immediate

treatment, the individual may be involuntarily committed to

begin treatment for a period not to exceed 120 hours. The

period of commitment, however, may be extended in certain

circumstances. Pa. Stat. Ann. tit. 50 S 7302(b).

Upon reaching the hospital, DeCrescenzo met with Amy

Bryant, a crisis worker for Lenape Valley Foundation

("LVF"), which processes petitions for involuntary

examinations for Bucks County. In his discussion with

Bryant, DeCrescenzo presented her with an undated copy

of the 11-page letter and stated that he had found a suicide

9

note that day on Doby's desk. Bryant's recorded the

information provided by DeCrescenzo on the section 7302

application:

I believe that Rebecca Doby is in need of emergency

psychiatric care. Today I found an extensive suicide

note on her desk, as well as lists of chores including

transferences of information to her husband about

access to bank accounts, insurance policy bills, a

shared storage shed, and her current status with my

company. She also has written a reminder to call about

organ donations. Rebecca asked me as well to lock

away a file for her with a note attached instructing me

to destroy it if anything should happen to her. She also

has begun letters to friends and relatives, with

envelopes already addressed, asking either for

forgiveness for pain she caused or including pleas for

their help with the raising of her children. The return

address is to a P.O. Box which only lists the names of

her husband and children. In the past few weeks

Rebecca has been drastically less efficient at work and

often retires to a cot to sleep during working hours.

She has access to guns and has a license to carry one

herself; she also talks a great deal about guns. I truly

fear for her safety.

DeCrescenzo did not recount the events of the day

specifically, nor did he relate the Dobys' repeated claims

that day that Doby was not in danger. After recording

DeCrescenzo's application, Bryant consulted by telephone

with Debbie Neidhardt of the Bucks County Department of

Mental Health and Mental Retardation. During this

conversation, Bryant read the section 7302 application to

Neidhardt and, as required by section 7102 of the MHPA,

inquired whether involuntary emergency treatment was the

least restrictive alternative available.1 After a 14-minute

discussion, Neidhardt authorized the issuance of a section

7302 warrant for Doby's examination.2 Bryant then signed

_________________________________________________________________

1. Section 7102 of the MHPA provides: "Treatment on a voluntary basis

shall be preferred to involuntary treatment; and in every case, the least

restrictions consistent with adequate treatment shall be employed." Pa.

Stat. Ann. tit. 50, S7102.

2. Although the Dobys argued that neither Bryant nor Neidhardt could

have seen the suicide note because it was not part of the hospital's file

10

the warrant on Neidhardt's behalf, and DeCrescenzo

delivered it to the Warrington Township Police Department.

Three police officers, Joseph Knox, Michael Neipp and

Kenneth Hawthorn, arrived at the Dobys' apartment at

approximately 7:00 p.m. to execute the warrant. After Doby

answered their knock, they asked her to step outside. The

parties disagree on whether the officers then explained to

her why they were taking her into custody.

After Doby refused to accompany the officers and

attempted to reenter the apartment to speak to her

husband, the officers "grabbed" her. When she began to

kick at the apartment door, they handcuffed her, and after

she continued to resist forcefully, they shackled her and

carried her to the police car. One officer, Hawthorn, stayed

behind to speak with Herbert Doby. After he left the

apartment, he entered the police car and drove Doby to

Doylestown Hospital.

At the hospital, Dr. John Richards examined Doby.

During the examination, they discussed the 11-page letter

and Doby's feelings towards DeCrescenzo. Doby admitted to

Dr. Richards that she had been depressed most of her life

but claimed that she functioned very well. She also told

him that she had been seeing a psychiatrist who had

prescribed Prozac to treat her depression, but that she

recently had stopped taking the medication. When Dr.

Richards asked Doby whether she needed help, she

admitted that she did but refused voluntary treatment. The

examination ended when Doby asked to phone her

husband and her psychiatrist and Dr. Richards agreed. Dr.

Richards involuntarily committed Doby for a period not to

exceed 120 hours.

On the following day, another physician, who is not a

defendant in this suit, examined Doby, concluded that she

was mentally disabled, and thus decided not to release her.

_________________________________________________________________

on Doby, the district court noted that Neidhardt's deposition testimony

contradicted this assertion. Neidhardt testified that she remembered

hearing specific provisions of the two-page note during her conversation

with Bryant.

11

On January 3, 1994, Doby signed voluntary commitment

papers on the understanding that doing so would lead to

her release on the following day. Doby was in fact released

on January 4, 1994.

Claiming that the involuntary commitment violated their

rights under federal and state law, the Dobys filed this

action in June 1994 against DeCrescenzo, the Lenape

Valley Foundation and Amy Bryant, the Bucks County

Department of Mental Health and Mental Retardation,

Philip M. Fenster, the county administrator, and Debbie

Neidhardt, the Township of Warrington, the Warrington

Township Police Department, Chief John Bonargo, Sergeant

Joseph Knox, Officer Michael Neipp, and Officer Kenneth

Hawthorn, Dr. John C. Richards, and Doylestown Hospital.

B. Procedural History

In their complaint, the Dobys alleged a violation of their

civil rights under section 1983, false arrest and

imprisonment, assault and battery, conspiracy, gross

negligence, intentional infliction of emotional distress, and

loss of consortium against all the defendants and sought a

declaratory judgment that section 7302(a)(1) is

unconstitutional. Additionally, they pled an invasion of

privacy claim against DeCrescenzo, the county defendants,

the foundation defendants, and the police defendants.

Finally, the Dobys alleged defamation and wrongful use of

civil proceedings against DeCrescenzo.

In an order of June 27, 1995, the district court, by Judge

Rendell, dismissed the section 1983 claim against Dr.

Richards and the conspiracy claims against all the

defendants. Then, following extensive discovery, the parties

cross-moved for summary judgment, and the district court,

again by Judge Rendell, addressed their claims in a

memorandum opinion and order dated September 9, 1996.

The court dismissed claims against the foundation

defendants, the county defendants, Doylestown Hospital,

and Dr. Richards. The court also denied the Dobys' motion

for summary judgment, which requested a ruling that the

municipal defendants and individual defendants sued in

their official capacity were liable as a matter of law under

section 1983 because the Dobys had shown a custom or

12

policy of causing constitutional violations. However, it

allowed the Dobys to proceed with some of their claims

against DeCrescenzo and the police defendants.

Specifically, the court refused to dismiss the defamation,

invasion of privacy, false arrest or imprisonment, gross

negligence, and intentional infliction of emotional distress

claims against DeCrescenzo. The court also allowed the

Dobys to proceed against the police defendants on their

section 1983 claims based on excessive force and against

the individual police officers on claims of gross negligence

and intentional infliction of emotional distress. The Dobys

appeal from this September 9, 1996 order, insofar as it was

unfavorable to them.

The remaining claims were tried on liability to a jury

starting on January 21, 1998. At the close of the Dobys'

case, the district court, by Judge Fullam, granted the police

defendants a judgment as a matter of law. Thus, the jury

deliberated only on certain claims against DeCrescenzo and

ultimately returned a verdict on special interrogatories

finding him liable for simple negligence but finding in his

favor on all other counts. The jury, however, did not make

a damages award. DeCrescenzo immediately moved for a

judgment as a matter of law, and the court granted his

motion, ruling that the evidence did not support the simple

negligence verdict. The Dobys timely filed post-trial motions

requesting reconsideration of certain earlier orders,

amendment of the verdict, and a new trial, but the district

court denied the motions in a memorandum and order on

March 10, 1998. The Dobys appeal from this order as well.

IV. DISCUSSION

A. Did the District Court Err in Granting Summary

Judgment to the Municipal Defendants on the Dobys'

Official Capacity Claims?

Despite the Dobys' wide-ranging claims in their

complaint, their appeal focuses on six of the district court's

rulings. The first ruling that the Dobys contest is the grant

of summary judgment to LVF and the county on the official

capacity claims. The first three issues briefed by the Dobys

13

revolve around this ruling.3 Thus, the initial question before

us is whether the district court erred in concluding that

LVF and the county were not liable to the Dobys because

they had no established custom or policy that caused a

constitutional deprivation. Because this first issue requires

us to review the grant of summary judgment, our review is

plenary and we must draw all reasonable factual inferences

in favor of the Dobys, the non-moving party. See Sharrar v.

Felsing, 128 F.3d 810, 817 (3d Cir. 1997).

1. The existence of a municipal custom or policy

The district court correctly ruled that the Dobys could

recover under section 1983 on their official capacity claims

against the county defendants only if they showed that the

defendants had maintained a policy or custom that caused

a deprivation of constitutional rights. See, e.g., Monell v.

Department of Social Servs., 436 U.S. 658, 694, 98 S.Ct.

2018, 2037-38 (1978). The Dobys argue that the county

defendants did have a custom or policy and that this policy

was unconstitutional. Specifically, they argue (i) that

allowing any individual, rather than only mental health

_________________________________________________________________

3. The Dobys repeatedly rely on Pennsylvania courts' interpretations of

Pennsylvania's constitutional provisions in making their argument that

Doby's constitutional rights were violated. However, we must determine

the liability of the county defendants under section 1983 according to

federal law. See Baker v. McCollan, 443 U.S. 137, 142, 99 S.Ct. 2689,

2693 (1979). Moreover, the district court dismissed all the state law

claims against LVF and the county based on their immunity from such

claims under section 7114(a) of the MHPA, Pa. Stat. Ann. tit. 50, S 7114,

and the Dobys have not appealed this ruling. Thus, the only valid issue

for appeal raised by the first three sections of the Dobys' brief is

whether

the county and LVF had a custom or policy of enforcing the MHPA in a

manner that caused Doby to suffer a violation of her federal

constitutional rights to due process and freedom from unreasonable

seizures.

The Dobys may be arguing that the MHPA itself creates substantive

rights that cannot be withdrawn without violating federal constitutional

guarantees. The only such right that is briefed substantially, however, is

the right to have only physicians or other mental health professionals

petition for section 7302 warrants. As discussed below, we do not believe

that the MHPA creates this right because we disagree with the Dobys'

statutory interpretation.

14

professionals, to petition for an involuntary examination is

unconstitutional; (ii) that warrants for involuntary

examinations must be based on probable cause, which

requires reliable informants, independent investigation,

neutral and detached decision makers, and a warrant that

is signed and sealed.

The district court dismissed the official capacity claims

against LVF and the county because it concluded that the

Dobys' allegation of a single act of constitutional violation,

Doby's involuntary examination, could not constitute a

custom or policy. We are of the view that this ruling

misapplied Monell. In concluding that the Dobys had failed

to allege a custom or policy because they claimed only a

single violation, the district court stated that a custom or

policy is found only when a "municipality must have

known, or reasonably should have realized, from the nature

of its conduct or from actual past violation, that its

practices were causing or likely to cause violations of

constitutional rights, and permitted these practices to

occur." In constructing this definition, the court relied on

Bielevicz v. Dubinon, 915 F.2d 845, 851 (3d Cir. 1990). In

Bielevicz, however, the city had no express policy on the

pertinent issue and the plaintiff therefore was attempting to

prove that one official's misconduct was not an isolated

occurrence. See id. In contrast, it cannot be doubted that

the county and LVF maintained a custom or policy

concerning applications for involuntary examinations.

LVF's written "Involuntary Commitment Procedure"

expressly foresees accepting petitions from non-physicians

and obtaining approval for the warrant from the county by

telephone. Moreover, it instructs the crisis worker to

"document" the behavior witnessed by the petitioner

without making any mention of investigation. The

defendants have not disputed that this is in fact how the

county and LVF process petitions for involuntary

examinations. When a plaintiff is challenging the

constitutionality of a policy or custom itself, Bielevicz does

not require him or her to allege a sequence of constitutional

deprivations; the claim that the policy resulted in the

plaintiff suffering such a deprivation satisfies Monell. See

id. at 850-51. The district court therefore erred in

15

dismissing the Dobys' official capacity claims on the ground

that they had failed to allege a custom or policy.

The question remains, however, whether the defendants'

method of processing petitions truly can be considered a

county, rather than a state, policy because when a county

is merely enforcing state law, without adopting any

particular policy of its own, it cannot be held liable under

the Monell line of cases. See Surplus Store and Exch., Inc. v.

City of Delphi, 928 F.2d 788, 790-92 (7th Cir. 1991); cf.

Garner v. Memphis Police Dep't, 8 F.3d 358, 364-66 (6th

Cir. 1993) (stating that municipality would be held liable

under Monell where state law authorized police officers to

use deadly force to apprehend fleeing felons but

municipality adopted a policy explaining when such force

could be used). We seem not to have considered specifically

whether municipalities or counties can be liable for

enforcing state law, but in one decision we did approve a

suit against a county where county sheriffs had garnished

the plaintiffs' bank accounts based on a state statute. See

Finberg v. Sullivan, 634 F.2d 50, 53-55 (3d Cir. 1980). We

did not decide Finberg under Monell, however, because

there the plaintiffs were seeking only a declaratory

judgment that the state statute was unconstitutional. See

id. at 53.

Without addressing the county/state policy distinction

specifically, the Dobys clearly have framed their arguments

to focus on the actions of the county. They do not argue

that section 7302 as written is itself unconstitutional;

rather they claim that LVF and the county have enforced it

in an unconstitutional manner by permitting warrants to be

issued by telephone based on uncorroborated information

supplied by individuals who are not mental health

professionals. The Dobys' suggestion that the enforcement

procedures should be considered a municipal or county,

rather than a state, policy has merit; because the statute

itself does not specify how the county delegate is to receive

information and issue warrants, LVF and the county

presumably have some discretion in deciding how to

implement the warrant application procedure. The Garner

court found the existence of such discretion determinative

in deciding that a municipality could be held liable for

16

enforcing the use of deadly force by its police officers.

Ultimately, however, we believe that we need not decide

whether a county or state policy is at issue because we

conclude that the enforcement policy adopted by LVF and

the county is constitutional.

2. Does the county's policy violate the Fourteenth

Amendment's Due Process Clause and the Fourth

Amendment?

The Dobys do not contend that it is unconstitutional for

the Commonwealth of Pennsylvania to permit the

involuntary examination of those individuals who appear to

pose an immediate danger to themselves or others. Indeed,

they repeatedly commend the State for drafting a statute

that balances the need to provide treatment to the seriously

ill against the civil rights of those in need of such

treatment. The Dobys quarrel only with the enforcement of

the statute in two respects: (i) that LVF and the county

accept petitions for warrants from any individual, rather

than only from mental health professionals; (ii) that the

county delegate who decides whether to issue the warrant

does not interview the petitioner personally, performs no

investigation of the petitioner's claims, and permits the

crisis worker to sign the warrant on his or her behalf. The

district court relied on a well-analyzed and thoughtful

decision of the Court of Appeals for the First Circuit in

ruling that this enforcement policy is constitutional. See

McCabe v. Life-Line Ambulance Serv. Inc., 77 F.3d 540 (1st

Cir. 1996).

We deal first with a statutory interpretation contention

the Dobys raise. They devote a considerable portion of their

brief to arguing that statutory interpretation principles

require us to interpret the phrase "physician or other

responsible party" in section 7302(a)(1) to mean physician

or other mental health professional. The decisive factor

weighing against their interpretation is that it contradicts

the relevant state agency's construction. The application

form for requesting a warrant for a section 7302

examination does not limit the class of petitioners to mental

health professionals like physicians; it states: "Part I must

be completed by the person who believes the patient is in

17

need of treatment. If this person is not a physician, police

officer, the County Administrator or his delegate . . . ." This

form is created by the state agency in charge of overseeing

the implementation of the MHPA. Pennsylvania cases

provide that courts must defer to an administrative

agency's interpretation of a statute unless that

interpretation is clearly erroneous. See, e.g., Frey v. State

Farm Mut. Auto. Ins. Co., 632 A.2d 930, 933 (Pa. Super.

1993). Given the Legislature's use of the phrase "other

responsible party" rather than a phrase like "other health

care professional," the agency's interpretation of the statute

is not clearly erroneous and therefore merits our deference.

The Dobys' first constitutional argument is that

permitting individuals other than mental health

professionals to petition for a section 7302 warrant violates

the Due Process Clause of the Fourteenth Amendment.

They contend that permitting "anyone" to petition for such

a warrant, particularly when the petitioner's statements are

not investigated independently, will lead to arbitrary

deprivations of liberty as the petitioner may have improper

motives for seeking the involuntary examination. In

circumstances where anyone can petition for a warrant,

they argue, an individual must be granted the right to

notice and a hearing before an involuntary examination is

conducted.

It is important to note the narrowness of the Dobys'

arguments: they do not doubt that Pennsylvania has a

legitimate interest in providing for the involuntary

examination of dangerous individuals and that the federal

constitution does not prohibit it from legislating procedures

to enforce this interest. A contrary argument would be

difficult to support as the Supreme Court has held that a

state, in conformity with the Due Process Clause, may

confine mentally ill individuals if it shows by clear and

convincing evidence that the individuals are ill and

dangerous to themselves or others. See Foucha v.

Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 1786 (1992)

(citations omitted). The Dobys argue, however, that

permitting non-physicians to apply for such warrants

converts a constitutional process into an unconstitutional

one. This argument does not withstand scrutiny.

18

As is made clear by the title of section 7302 of the MHPA,

the procedure was created to allow the counties to handle

emergency situations. Courts have stated repeatedly that

due process is a flexible notion and that what kind of

process is due depends on the individual and state

interests at stake. See, e.g., Zinermon v. Bush, 494 U.S.

113, 127, 110 S.Ct. 975, 984 (1980). It may be reasonable,

therefore, for a state to omit a provision for notice and a

hearing in a statute created to deal with emergencies,

particularly where the deprivation at issue, in this case

detention for a maximum of several hours to permit an

examination, continues for only a short period of time. See

Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1, 19,

98 S.Ct. 1554, 1565 (1978) (stating that "[o]n occasion, this

Court has recognized that where the potential length or

severity of the deprivation does not indicate a likelihood of

serious loss and where the procedures underlying the

decision to act are sufficiently reliable to minimize the risk

of erroneous determination, government may act without

providing additional `advance procedural safeguards' ").

Indeed, the Dobys recognize the State's need to act

quickly in emergencies but nevertheless claim that notice

and a hearing must be provided in cases where the

petitioner is not a physician because the information

provided by non-physicians is unreliable. The Dobys have

not demonstrated, however, that non-physicians as a class

are inherently unreliable fact informants. Furthermore, the

Dobys misapprehend the role of a petitioner by suggesting

that a physician is more competent than a non-physician to

decide when conduct is "dangerous." Although their

contention may be true, under the structure of section

7302, the petitioners themselves are not making clinical

determinations about an individual's mental state; instead,

it is the county delegate, a trained mental health

professional, who has the duty to decide whether the

information provided by the petitioner constitutes grounds

for issuing a warrant. The Dobys offer no convincing reason

why non-physicians cannot be trusted to relay information

to a person competent to judge such information under the

appropriate clinical standards. Moreover, it is likely that a

person other than a physician or a mental health

professional will have the material information.

19

Additionally, section 7302 specifies that the county

should make decisions based on information provided by a

physician or "other responsible party." In the district court

the county presented testimony that each warrant

application is handled as it arises in order to guard against

individuals "who appear impaired in some way." The Dobys

have not proffered any evidence to suggest that LVF and

the county have a practice of issuing warrants when a

petitioner seems clearly imbalanced or otherwise impaired.

Further, the application procedure itself has a built-in

safeguard to prevent ill-motivated individuals from seeking

the involuntary examination of others: the face of the

application includes a clear statement providing that

anyone who supplies false information to the county may

be prosecuted criminally. In conformity with that policy,

Bryant informed DeCrescenzo that providing false

information on the application would constitute a

misdemeanor. Again, the Dobys have failed to explain why

it is unconstitutional to permit responsible individuals to

report about the actions of others when a mental health

professional is entrusted with judging the import of such

reports. Thus, the Dobys' claim that permitting non-

physicians to apply for warrants transforms a procedure

that is sound under the Due Process Clause to one that is

unsound is unpersuasive.4

_________________________________________________________________

4. The Dobys also appear to claim substantive due process violations. "A

substantive due process violation is established if the government's

actions were not rationally related to a legitimate government interest or

were in fact motivated by bias, bad faith or improper motive." Sameric

Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 590 (3d

Cir.

1998) (citations omitted). Our conclusion below that the MHPA

authorizes seizures that are "reasonable" under the Fourth Amendment

establishes that the MHPA meets the rationality test imposed by

substantive due process analysis. Furthermore, there is no basis in the

record to conclude that the LVF or county defendants' actions were not

rationally related to a legitimate government interest or were motivated

by bias, bad faith, or improper motive. Indeed, the jury answered special

interrogatories finding in favor of DeCrescenzo himself on the Dobys'

claims of defamation, invasion of privacy, false arrest and detention,

gross negligence/willful misconduct, and intentional infliction of

emotional distress. In the circumstances it is quite clear that

DeCrescenzo was pursuing a legitimate interest in this matter.

20

The Dobys' second constitutional arguments, which they

base on the Fourth Amendment, are equally unconvincing,

and thus the district court correctly dismissed them based

on the "special need" exception to the probable cause and

warrant requirements. The Dobys claim that warrants for

involuntary examinations must be based on probable

cause, and therefore contend that the county must conform

to the requirements imposed by criminal law before it

authorizes the police to take custody of a mentally ill

individual for an involuntary examination.5

The Fourth Amendment applies to seizures in civil, as

well as criminal, proceedings. See O'Connor v. Ortega, 480

U.S. 709, 714-15, 107 S.Ct. 1492, 1496 (1987). The

fundamental inquiry in such proceedings, however, remains

whether the government's conduct is reasonable under the

circumstances. See Cady v. Dombrowski, 413 U.S. 433,

439-40, 93 S.Ct. 2523, 2527 (1973).

Although it was discussing a search rather than a

seizure, the Supreme Court has held that states may act

without obtaining a warrant and without probable cause in

situations where "special needs, beyond the normal need

for law enforcement, make the warrant and probable-cause

requirement impracticable." Griffin v. Wisconsin, 483 U.S.

868, 873, 107 S.Ct. 3164, 3168 (1987) (citations omitted).

Construing Griffin, the Court of Appeals for the First Circuit

held that the temporary involuntary commitment of those

deemed dangerous to themselves or others qualifies as a

"special need" permitting the state to act without a warrant.

See McCabe, 77 F.3d at 549. We agree.

Requiring the county to seek a warrant from a magistrate

in a situation where the county delegate has determined

that there are reasonable grounds to believe in an

_________________________________________________________________

5. The Dobys have not explained how their Fourth Amendment challenge

implicates a municipal or county, rather than a state, policy. The MHPA

clearly permits seizures of mentally ill individuals without requiring

county officials to apply to a magistrate for a warrant that would be

issued only upon probable cause. Instead, the statute creates an

alternative warrant scheme. We continue to assume, however, for

purposes of this opinion, that the county and LVF's actions in enforcing

this statute could be deemed a county policy.

21

individual's "clear and present" dangerousness would entail

delays with potentially life-threatening consequences. As

discussed above, by its terms, section 7302 applies only in

emergencies. Such emergency cases present a situation

where seeking a warrant is systemically impracticable.

Moreover, as the Supreme Court suggested in Griffin, a

magistrate's authorization is less desirable in cases where

non-judicial expertise is involved, such as determining the

amount of supervision necessary for a probationer. See

Griffin, 483 U.S. at 876, 879 n.6, 107 S.Ct. at 3170, 3172

n.6. The same reasoning applies where a county delegate

trained in a mental health field, rather than a magistrate

judge trained in the law, renders the decision of whether an

individual requires an emergency involuntary examination.

Although the Dobys suggest that such a determination is

unreliable when made by a county delegate on the

telephone without a face-to-face interview with the

petitioner, this argument again ignores the emergency

nature of section 7302 warrants. Furthermore, this

argument ignores the fact that magistrate judges often

issue warrants based on information supplied by police

officers who themselves are relying on absent informants.

Although we find that the "special need" exception

applies to the county's conduct under the MHPA, we

nevertheless must examine whether the procedures

followed by the county are reasonable under the

circumstances. Fourth Amendment doctrine provides that

"the shorter the detention, the less compelling is the

evidence of the necessity for it that the authorities need to

produce." Villanova v. Abrams, 972 F.2d 792, 796 (7th Cir.

1992) (citations omitted). Because the Dobys contest the

issuance of the section 7302 warrant, it is important to

focus on the deprivation of liberty caused by the execution

of the warrant itself. The MHPA requires that a physician

examine a detained individual within two hours of his or

her arrival at a hospital; therefore, that individual's liberty

will be curtailed for at most several hours unless a

physician independently concludes that the individual is

mentally disabled and in need of involuntary treatment. See

Pa. Stat. Ann. tit. 50, S 7302(b). Given the brief detention

authorized, the warrant procedures provide important

22

safeguards to protect individuals' rights. First, the warrant

is authorized by a neutral and detached official, the county

delegate. See Pa. Stat. Ann. tit. 50, S 7302(a)(1); see

McCabe, 77 F.3d at 552 (interpreting Supreme Court

precedent to require neutral and detached decision-maker

to authorize search or seizure in special needs exceptions to

the warrant and probable cause requirement). Second, the

county issues a warrant only when information presented

by a "responsible party" convinces a trained county

delegate that reasonable grounds exist to belief that an

individual poses a clear and present danger to him/herself

or others. Id.; Pa. Stat. Ann. tit. 50,S 7301(a).

Because the section 7302 procedures exist to respond to

emergency cases, it is reasonable for the county delegate to

consult with the crisis workers over the telephone and to

issue such warrants without independent investigation. The

statutory requirement that the individual appear

"responsible" and the warning on the application form that

false statements can subject a petitioner to criminal

prosecution are sufficient safeguards in light of the

circumstances to assure the reliability of information

communicated to the delegate. We therefore reject the

Dobys' Fourth Amendment challenge.6

B. Did the District Court Err in Granting a Judgment as

a Matter of Law to DeCrescenzo on the Negligence

Issue?

The jury returned a verdict in DeCrescenzo's favor on all

claims, including gross negligence/willful misconduct,

except simple negligence. The district court, however,

granted a judgment as a matter of law on the negligence

_________________________________________________________________

6. Once again, the Dobys rely on Pennsylvania law in their section 1983

argument, suggesting that the Pennsylvania Supreme Court has rejected

the "special need" exception for state statutes authorizing a seizure. See

Commonwealth v. Kohl, 615 A.2d 308 (Pa. 1992). Even if the court's

ruling in Kohl could be relevant to the federal analysis under section

1983, the Dobys misinterpret Kohl. This decision does not purport to

renounce categorically the "special need" exception; instead it simply

states that, under federal law, the exception does not apply in cases

where "the governmental interest to be advanced is the normal need for

law enforcement." Kohl, 615 A.2d at 314.

23

claim primarily because it concluded that there was simply

no evidence to support the verdict. It also found, however,

that the Dobys had not shown proximate cause between

the alleged negligence and Doby's injury. Subsequently on

the Dobys' post-trial motions it ruled that DeCrescenzo was

immune from a claim of simple negligence under section

7114 of the MHPA.

We will affirm the district court's ruling on this because

we agree with Judge Fullam's conclusion that DeCrescenzo

qualifies for immunity under section 7114. This section

provides in relevant part that:

In the absence of willful misconduct or gross

negligence, a county administrator, a director of a

facility, a physician, a peace officer or any other

authorized person who participates in a decision that a

person be examined or treated under this act . . . shall

not be civilly or criminally liable for such decision or

for any of its consequences.

Pa. Stat. Ann. tit. 50, S 7114(a). Because DeCrescenzo was

the responsible person who initiated the involuntary

examination proceedings under section 7302, we hold that

he qualifies as an "authorized person who participate[d] in

a decision that a person be examined." See id.

Judge Rendell concluded otherwise in her summary

judgment order because she interpreted McNamara v.

Schleifer Ambulance Serv., Inc., 556 A.2d 448 (Pa. Super.

1989) to limit "participa[nts] in a decision" to those with

mental health training. We recognize that McNamara

contains language suggesting that section 7114 only

applies to mental health professionals. See McNamara, 556

A.2d at 449-50 (stating that "the legislature contemplated

the decision-making process under S 7114 as one which

would take place within the context of treatment, care,

diagnosis or rehabilitation. It is equally clear that the

individuals who would participate in those decisions would

be trained in the field of mental health."). But the issue in

McNamara was whether ambulance drivers transporting a

mental health patient qualified for immunity under the

MHPA. See id. at 449. Thus, the implicit question

addressed in that case was what kind of medical personnel

24

would qualify for immunity. The Pennsylvania Superior

Court reasonably concluded that only individuals with

mental health training, and thus those that actually had

participated in the assessment of the patient's mental state,

qualified for immunity.

In contrast, the issue posed by this appeal is whether the

individual who applies for a section 7302 warrant can be

deemed to be a participant in the decision-making process

to involuntarily examine the patient. We believe the answer

to this question must be "yes" because section 7114

explicitly includes peace officers within its immunity

provision. See Pa. Stat. Ann. tit. 50, S 7114. Given the

statutory scheme, it is difficult to imagine what role peace

officers could play in a decision to examine or treat an

individual other than to report information of dangerous

conduct observed by them. Because this is precisely what

DeCrescenzo did in this case, we find that he, like a peace

officer, qualifies for immunity under section 7114 unless he

engaged in willful misconduct or gross negligence. The

district court, therefore, correctly granted judgment as a

matter of law to DeCrescenzo on the simple negligence claim.7

C. Did the District Court Err in Entering a Judgment as

a Matter of Law for the Police Defendants on the

Claims of Excessive Force?

In considering the judgment as a matter of law for the

police defendants our review is plenary. See Lightning Lube,

Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993). In

conducting our review, we apply the same standard relied

upon by the district court. See id. This standard requires

us to consider the evidence in the light most favorable to

the nonmoving party and to deny a defendant's motion for

a judgment as a matter of law if there is evidence

reasonably supporting recovery by the plaintiffs.

At the close of the Dobys' case, the district court granted

_________________________________________________________________

7. We also agree with the district court that the evidence could not

support a verdict on a negligence theory in favor of the Dobys against

DeCrescenzo. The district court also concluded that the Dobys' pleadings

did not include a claim for simple negligence so that the verdict for that

reason as well could not stand. We do not reach that issue.

25

a judgment as a matter of law to the police defendants on

the excessive force claims because it ruled that no rational

jury could find in the Dobys' favor on these claims. The

court explained: "[b]y the plaintiff's own testimony, she was

not mistreated. Under plaintiff's own testimony, she did

kick and scream. So that I don't think any rational jury

could say it was unreasonable for them to subdue her and

then to get her to the hospital."

In analyzing claims of excessive force under the Fourth

Amendment, we must decide whether the actions of the

police were "objectively reasonable in light of the facts and

circumstances confronting them, without regard to their

underlying intent or motivation." Graham v. Connor, 490

U.S. 386, 397, 109 S.Ct. 1865, 1872 (1989) (internal

quotation marks omitted). See also In re City of Philadelphia

Litig., 49 F.3d 945, 962-63 (3d Cir. 1995). Significant

factors in evaluating the force used by the police are

whether the person being taken into custody is resisting or

attempting to resist by flight. See Graham, 490 U.S. at 396,

109 S.Ct. at 1871-72.

As the police officers argue, when they came to take Doby

into custody they had to be prepared to handle an

individual that the county delegate had determined posed a

clear danger to herself or others. Further, the officers were

aware that there were guns in the Dobys' home. Given

these circumstances, Doby's own testimony establishes that

the officers' actions were reasonable.

Upon arrival at the Dobys' residence, the officers knocked

on the door and requested that Doby step outside of the

apartment. When the officers refused to tell her why she

was being taken into custody, Doby made clear that she

would not accompany them willingly and "became angry."

She then attempted to return to the apartment, thus

resisting, causing the officers to "grab" her. When she

began to kick at the door and scream, the officers

handcuffed her. When she continued to kick and scream,

the officers shackled her. Once Doby arrived at the

hospital, a female officer performed a pat-down search and

Doby was placed in a wheelchair. Her handcuffs and

shackles were removed once she promised to cooperate.

26

Doby's own testimony established that the police officers

applied force in response to her attempts to resist,

including kicking, screaming and flight. Moreover, they

tailored each action taken to the type of resistance

encountered: handcuffing to prevent flight, shackling to

prevent kicking. We therefore conclude that the officers'

actions were objectively reasonable as a matter of law and

will affirm the district court's order on the excessive force

claims.8

D. Did the District Court Err in Denying the Dobys'

Request for a Declaratory Judgment?

The district court, by Judge Fullam, rejected the Dobys'

motion for a judgment declaring the MHPA to be

unconstitutional under the Fourteenth Amendment's Due

Process Clause and the Fourth Amendment. It ruled that

the Dobys had abandoned this claim by failing to renew it

before the trial and that, as a result, the court had not

provided the Attorney General of Pennsylvania with the

notice required under Fed. R. Civ. P. 24(c). We need not

reach the issue of proper notice in order to affirm the

district court's decision. As explained above, the statute is

constitutional under the Due Process Clause and the

Fourth Amendment even if non-physicians are allowed to

petition for section 7302 warrants. Thus, the district court's

refusal to rule on the declaratory judgment motion, even if

it had been error, was harmless.

E. Did the District Court Abuse Its Discretion in

Prohibiting Dobys' Expert Susan Bierker From

Testifying?

We review the district court's rulings on the admissibility

of expert testimony for abuse of discretion. See United

_________________________________________________________________

8. The Dobys' claim that section 4422 of the Pennsylvania mental health

statutes rendered the officers' actions illegal is meritless. See Pa.

Stat.

Ann. tit. 50, S 4422 (West 1969). Section 4422 provides that

"[m]echanical restraints shall not be used or applied to a mentally

disabled person, except: (1) When necessary to prevent such person from

harming himself or others when being transported as provided in

sections 405 or 421 . . . ." As discussed above, the restraints used by

the

police officers were necessary to prevent Doby from harming the officers

or herself as a result of her resistance.

27

States v. Bennett, 161 F.3d 171, 182 (3d Cir. 1998);

Waldorf v. Shuta, 142 F.3d 601, 626-27 (3d Cir. 1998). The

trial judge has broad discretion to admit or exclude expert

testimony, based upon whether it is helpful to the trier of

fact. See Bennett, 161 F.3d at 182.

The district court, by Judge Fullam, excluded the

testimony of Susan Bierker, a licensed clinical social worker

who was prepared to opine that Doby had suffered post-

traumatic stress disorder solely as a result of herfive-day

involuntary commitment. The court concluded that Bierker

was not qualified to render this opinion and that her

opinion was based on a "seriously inaccurate"

understanding of the facts. The Dobys claim that this was

error.

As the Dobys concede, Bierker's testimony was offered to

prove the damages suffered by Doby. Because the jury

returned a verdict in favor of DeCrescenzo on all claims

other than simple negligence, and because the court

correctly granted a judgment as a matter of law to

DeCrescenzo on the simple negligence claim, there were no

damages for the jury to calculate. Thus, any error by the

district court in excluding Bierker's testimony is harmless.

F. Did the District Court Err in Granting Summary

Judgment to Dr. Richards?

The district court, by Judge Rendell, found that, because

Dr. Richards qualified for immunity under section 7114 of

the MHPA, he could be liable to the Dobys only if his

conduct amounted to gross negligence or willful

misconduct. The court ruled, as a matter of law, that the

Dobys had not provided evidence sufficient to "establish

flagrant behavior which grossly deviates from the standard

of care required."

The claim against Dr. Richards, of course, essentially

related to his decision to commit Doby involuntarily rather

than to the issuance of the warrant. The Dobys do not

contest the district court's decision that, as a treating

physician, Dr. Richards would be liable to them only for

gross negligence/willful misconduct. Pennsylvania law

defines gross negligence in the context of the MHPA as

"facts indicating more egregiously deviant conduct than

28

ordinary carelessness, inadvertence, laxity or indifference.

. . . The behavior of the defendant must be flagrant, grossly

deviating from the ordinary standard of care." Albright v.

Abington Memorial Hospital, 696 A.2d 1159, 1164 (Pa.

1997) (citation omitted). Further, willful misconduct exists

when "the danger to the plaintiff, though realized, is so

recklessly disregarded that, even though there be no actual

intent, there is at least a willingness to inflict injury, a

conscious indifference to the perpetration of the wrong."

Krivijanski v. Union R.R. Co., 515 A.2d 933, 937 (Pa. Super.

1986) (internal quotation marks omitted).

The Dobys produced two expert reports, one from Dr.

Paul S. Applebaum and the other from Dr. Eileen A.

Bazelon, to support their contention that Dr. Richards had

acted in a grossly negligent manner. Dr. Bazelon's report

states: "Dr. Richards [did not act] in accordance with the

customary or usual standard of care." She opines that by

not questioning DeCrescenzo's motive or further

questioning Herbert Doby and Doby's regular psychiatrist,

Dr. Richards "deviated from the reasonable standard of

care" and evidenced "complete disregard" for Doby's rights.

Her report also acknowledges, however, that the content of

Doby's writings was "frightening."

This first report does not create a genuine factual dispute

about Dr. Richards' gross negligence/willful misconduct.

Dr. Bazelon merely states that Dr. Richards deviated from

the standard of care, which might amount to ordinary

negligence, but she does not use terms to suggest that this

deviation was gross or flagrant.

The second report, by Dr. Applebaum, details five

deficiencies with Dr. Richards' examination and resulting

diagnosis of Doby's depression, including failure to inquire

about the most common symptoms of depression, failure to

evaluate adequately her suicidality, failure to access

collateral sources of data such as Doby's regular

psychiatrist and Herbert Doby, a "grossly inadequate"

mental status evaluation, and failure to explore less

restrictive alternatives to involuntary commitment. The

language of this report does suggest that Dr. Richards

acted with gross negligence; Dr. Applebaum presents Dr.

Richards as a highly incompetent psychiatrist, unfamiliar

29

with the basic medical definition of depression or its

common symptoms and indifferent to the information he

did gather. However, Dr. Applebaum's failure to discuss in

any way the contents of the 11-page letter and the suicide

note suggests a lack of familiarity with the basic facts of the

case. See Shaw by Strain v. Strackhouse, 920 F.2d 1135,

1142 (3d Cir. 1990) (stating that expert opinion in the

circumstance of that case should have been based on facts

in the record). This apparent ignorance of Doby's writings,

which represented crucial evidence of her mental state,

undermines Dr. Applebaum's conclusions regarding Dr.

Richards' actions.

Considering the undisputed facts of this case, which

showed that Doby had a history of depression and admitted

to contemplating suicide, and that Dr. Richards had in his

possession an extensive 11-page letter that even the Dobys'

expert Dr. Bazelon concedes was "frightening," we agree

with the district court's ruling "that the deficiencies noted

by Drs. Applebaum and Bazelon could not amount to

anything more than simple negligence by Dr. Richards." We

also point out that courts should be cautious in allowing

juries to deliberate on the liability of physicians making

involuntary committments lest physicians decline to order

committments when needed, thus possibly leading to

unfortunate consequences. Cf. McArdle v. Tronetti, 961 F.2d

1083, 1085-86 (3d Cir. 1992) (prison doctor allegedly giving

false testimony and false diagnosis in commitment

proceedings entitled to absolute immunity in action under

42 U.S.C. S 1983 in furtherance of policy to protect person

functioning as part of judicial process from harassment and

intimidation).

V. CONCLUSION

We will affirm both the district court's September 9, 1996

order granting summary judgment to the defendants on a

portion of the Dobys' claims and its March 10, 1998 order

denying the Dobys' motion requesting a new trial,

reconsideration of previous orders, and amendment of the

judgment.

30

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

31