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. e du/thir dc ir c uit_1999/74Filed 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 a s Delegate for the County Administrator of the Bucks County Department of Mental Health/Mental Retardati on Lenape Valley Foundation; DEBBIE NEIDHARDT, individually and in her official capacity as Delega te 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, Off icer who, with police officer #2, asked Mrs. Doby to ste p outside apartment at approximately 7:00 p.m. and to ok 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. Dob y to step outside apartment at approximately 7:00 p.m. a nd took Mrs. Doby in handcuffs and shackles to the hos pital, 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 tak en tothe hospital, individually and in his official capa city as

police officer of Warrington Township; LENAPE VALLE Y FOUNDATION; JOHN C. RICHARDS, M.D.; DOYLESTOWN HOSPITAL; JOSEPH KNOX, SERGEANT, of the Warrington Township Police Department, in his official and ind ividual capacity; MICHAEL NEIPP, OFFICER, of the Warrington Township Police Department, in his official and ind ividual capacity; KENNETH HAWTHORN, OFFICER, of the Warrington Township Police Department, in his offic ial 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 a s Delegate for the County Administrator of the Bucks County Department of Mental Health/Mental Retardati on Lenape Valley Foundation; DEBBIE NEIDHARDT, individually and in her official capacity as Delega te 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, Off icer who, with police officer #2, asked Mrs. Doby to ste p outside apartment at approximately 7:00 p.m. and to ok 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. Dob y to step outside apartment at approximately 7:00 p.m. a nd took Mrs. Doby in handcuffs and shackles to the hos pital, individually and in his official capacity as police officer of Warrington Township; JOHN DOE, POLICE OFFICER #3,

2Officer 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 tak en to the hospital, individually and in his official capa city as police officer of Warrington Township; LENAPE VALLE Y FOUNDATION; JOHN C. RICHARDS, M.D.; DOYLESTOWN HOSPITAL; JOSEPH KNOX, SERGEANT, of the Warrington Township Police Department, in his official and ind ividual capacity; MICHAEL NEIPP, OFFICER, of the Warrington Township Police Department, in his official and ind ividual capacity; KENNETH HAWTHORN, OFFICER, of the Warrington Township Police Department, in his offic ial 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 Un ited States Court of Appeals for the Federal Circuit, sitting by desi gnation.

3Joseph 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

4Barbara 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

5Alan 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 suicid al, James DeCrescenzo filed a petition with the Bucks C ounty Department of Mental Health to have her examined involuntarily under section 7302 of the Pennsylvani a Mental Health Procedures Act. The appropriate count y official granted the petition and issued a warrant instructing the local police to bring Doby to a nea rby hospital for a psychiatric evaluation; this evaluat ion led to her involuntary five-day commitment. Claiming that her federal rights to due process and freedom from

unreasonable searches and seizures had been violate d, Doby and her husband, Herbert Doby, brought suit un der 42 U.S.C. S 1983 against the individuals involved i n her commitment, including DeCrescenzo, the county, cert ain of its officials, the police officers who executed the warrant, and an evaluating doctor. The district court dismis sed 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-tri al

6motions for a new trial and for other relief. The D obys

appeal, arguing primarily that Bucks County relies upon an unconstitutional policy in processing petitions for involuntary examinations. After evaluation of the m any issues involved in this case we have concluded that the county's policy in enforcing the Mental Health Proc edures Act is constitutional, and that there is no other r eason to reverse the orders or judgments on appeal. Conseque ntly,

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 fr om final orders of the district court, we have jurisdi ction 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 severa l

instances of sexual contact but not sexual intercou rse. DeCrescenzo denies that his relationship with Doby extended beyond friendship.

The letter in question was lengthy, 11 pages in tot al, and personal. It referred to abuse suffered by Doby dur ing her

childhood and described sexual conduct in which Dob y wished to engage with DeCrescenzo. At the letter's conclusion, Doby also wrote that she had accomplish ed

what she was intended to do in this lifetime and wa s "leaving." Alarmed by the letter's contents, DeCres cenzo consulted with his wife, his marriage counselor, an d his attorney. Dr. Linda Edelstein, his marriage counsel or, advised him that the letter's author was in psychia tric

7distress, potentially suicidal, and needed the imme diate

assistance of mental health professionals. On her a dvice, DeCrescenzo spoke with personnel of the Philadelphi a mental health office who suggested that they could send a mobile emergency crisis team to meet with Doby. Wit hout consulting Doby, DeCrescenzo arranged for the crisi s team to come to his office on December 30, 1993.

However, on December 30, Doby left the office befor e 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 E ve party. Doby was upset and crying, indicated that sh e was driving in the rain, and would not tell McHugh wher e she was going. McHugh reported this conversation to DeCrescenzo who then called Doby to ask her to retu rn to the office. Doby refused and indicated that she did not want to speak to him.

DeCrescenzo then called the Philadelphia mental hea lth office and the Warrington Township police. At the suggestion of the mental health office, he also con tacted Herbert Doby and read to him several phrases from D oby'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 Mc Hugh to search Doby's work area for other indications of her

mental state. This search revealed a suicide note D oby authored, which begins "If you are receiving this l etter it is because I am gone, and I seek your help for Herb an d my girls." The search also uncovered written reminders to make arrangements for organ donation and the custod y of Doby's daughter and step-daughter. The defendants c laim that DeCrescenzo brought these writings when he lat er applied for a warrant to have Doby involuntarily ex amined on an emergency basis.

After discovering the suicide note, DeCrescenzo wen t to the Doylestown Hospital to petition to have Doby

8involuntarily 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. I t

states:

Upon written application by a physician or o ther responsible party setting forth facts consti tuting reasonable grounds to believe a person is se verely mentally disabled and in need of immediate t reatment, the county administrator may issue a warrant requiring a person authorized by him, or any peace officer, to take such a person to the facili ty specified in

the warrant.

Pa. Stat. Ann. tit. 50, S7302(a)(1). According to t he 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 pa st 30 days . . . the person has made threats to commit su icide

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 p hysician must examine a person brought in under a section 73 02

warrant within two hours of her arrival at the faci lity. Pa. Stat. Ann. tit. 50, S 7302(b). If the physician per forming the involuntary examination determines that the individ ual is severely mentally disabled and in need of immediate treatment, the individual may be involuntarily comm itted to begin treatment for a period not to exceed 120 hour s. The period of commitment, however, may be extended in c ertain circumstances. Pa. Stat. Ann. tit. 50 S 7302(b).

Upon reaching the hospital, DeCrescenzo met with Am y Bryant, a crisis worker for Lenape Valley Foundatio n ("LVF"), which processes petitions for involuntary examinations for Bucks County. In his discussion wi th Bryant, DeCrescenzo presented her with an undated c opy of the 11-page letter and stated that he had found a suicide

9note 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 em ergency 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 bi lls, 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 ins tructing me to destroy it if anything should happen to h er. She also has begun letters to friends and relatives, with envelopes already addressed, asking either f or 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 th e names of her husband and children. In the past few we eks Rebecca has been drastically less efficient at work and often retires to a cot to sleep during worki ng hours. She has access to guns and has a license to carry one herself; she also talks a great deal about g uns. 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 recordi ng DeCrescenzo's application, Bryant consulted by tele phone with Debbie Neidhardt of the Bucks County Departmen t of Mental Health and Mental Retardation. During this conversation, Bryant read the section 7302 applicat ion to Neidhardt and, as required by section 7102 of the M HPA, inquired whether involuntary emergency treatment wa s 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 s igned

___________________________________________________ ______________

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 sha ll be employed." Pa. Stat. Ann. tit. 50, S7102.

2. Although the Dobys argued that neither Bryant no r Neidhardt could have seen the suicide note because it was not part of the hospital's file

10the warrant on Neidhardt's behalf, and DeCrescenzo

delivered it to the Warrington Township Police Depa rtment.

Three police officers, Joseph Knox, Michael Neipp a nd Kenneth Hawthorn, arrived at the Dobys' apartment a t approximately 7:00 p.m. to execute the warrant. Aft er Doby answered their knock, they asked her to step outsid e. The parties disagree on whether the officers then expla ined 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, an d after she continued to resist forcefully, they shackled h er and carried her to the police car. One officer, Hawthor n, stayed behind to speak with Herbert Doby. After he left th e 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 admit ted to Dr. Richards that she had been depressed most of he r 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 treatme nt. The examination ended when Doby asked to phone her husband and her psychiatrist and Dr. Richards agree d. 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 th at she was mentally disabled, and thus decided not to rele ase her.

___________________________________________________ ______________

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

contradicted this assertion. Neidhardt testified th at she remembered hearing specific provisions of the two-page note du ring her conversation with Bryant.

11On January 3, 1994, Doby signed voluntary commitmen t

papers on the understanding that doing so would lea d to her release on the following day. Doby was in fact released on January 4, 1994.

Claiming that the involuntary commitment violated t heir 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 De bbie Neidhardt, the Township of Warrington, the Warringt on Township Police Department, Chief John Bonargo, Ser geant Joseph Knox, Officer Michael Neipp, and Officer Ken neth Hawthorn, Dr. John C. Richards, and Doylestown Hosp ital.

B. Procedural History

In their complaint, the Dobys alleged a violation o f their civil rights under section 1983, false arrest and imprisonment, assault and battery, conspiracy, gros s negligence, intentional infliction of emotional dis tress, and loss of consortium against all the defendants and s ought a declaratory judgment that section 7302(a)(1) is unconstitutional. Additionally, they pled an invasi on of privacy claim against DeCrescenzo, the county defen dants, the foundation defendants, and the police defendant s. Finally, the Dobys alleged defamation and wrongful use of civil proceedings against DeCrescenzo.

In an order of June 27, 1995, the district court, b y Judge Rendell, dismissed the section 1983 claim against D r. Richards and the conspiracy claims against all the defendants. Then, following extensive discovery, th e 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, 199 6. The court dismissed claims against the foundation defendants, the county defendants, Doylestown Hospi tal, 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 o r

12policy of causing constitutional violations. Howeve r, it

allowed the Dobys to proceed with some of their cla ims against DeCrescenzo and the police defendants.

Specifically, the court refused to dismiss the defa mation, 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 t heir section 1983 claims based on excessive force and ag ainst the individual police officers on claims of gross n egligence

and intentional infliction of emotional distress. T he Dobys appeal from this September 9, 1996 order, insofar a s it was

unfavorable to them.

The remaining claims were tried on liability to a j ury starting on January 21, 1998. At the close of the D obys' 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 DeCresce nzo and ultimately returned a verdict on special interrogat ories finding him liable for simple negligence but findin g in his favor on all other counts. The jury, however, did n ot 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 th e simple negligence verdict. The Dobys timely filed post-tri al motions requesting reconsideration of certain earlier order s, 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 Doby s' Official Capacity Claims?

Despite the Dobys' wide-ranging claims in their complaint, their appeal focuses on six of the distr ict court's rulings. The first ruling that the Dobys contest is the grant of summary judgment to LVF and the county on the of ficial capacity claims. The first three issues briefed by the Dobys

13revolve around this ruling.3 Thus, the initial ques tion before

us is whether the district court erred in concludin g that LVF and the county were not liable to the Dobys bec ause they had no established custom or policy that cause d a constitutional deprivation. Because this first issu e requires us to review the grant of summary judgment, our rev iew is plenary and we must draw all reasonable factual inf erences in favor of the Dobys, the non-moving party. See Sh arrar v. Felsing, 128 F.3d 810, 817 (3d Cir. 1997).

1. The existence of a municipal custom or po licy

The district court correctly ruled that the Dobys c ould recover under section 1983 on their official capaci ty claims against the county defendants only if they showed t hat the defendants had maintained a policy or custom that c aused 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 coun ty defendants did have a custom or policy and that thi s policy was unconstitutional. Specifically, they argue (i) that allowing any individual, rather than only mental he alth

___________________________________________________ ______________

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 sectio n 1983 according to federal law. See Baker v. McCollan, 443 U.S. 137, 1 42, 99 S.Ct. 2689, 2693 (1979). Moreover, the district court dismissed all the state law claims against LVF and the county based on their im munity 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 th e Dobys' brief is

whether the county and LVF had a custom or policy of enforc ing the MHPA in a manner that caused Doby to suffer a violation of he r federal constitutional rights to due process and freedom fr om unreasonable

seizures.

The Dobys may be arguing that the MHPA itself creat es substantive rights that cannot be withdrawn without violating f ederal constitutional guarantees. The only such right that is briefed sub stantially, however, is the right to have only physicians or other mental h ealth professionals petition for section 7302 warrants. As discussed be low, we do not believe that the MHPA creates this right because we disagre e with the Dobys' statutory interpretation.

14professionals, to petition for an involuntary exami nation is

unconstitutional; (ii) that warrants for involuntar y examinations must be based on probable cause, which requires reliable informants, independent investiga tion, 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 tha t the Dobys' allegation of a single act of constitutional violation, Doby's involuntary examination, could not constitut e a custom or policy. We are of the view that this ruli ng misapplied Monell. In concluding that the Dobys had failed to allege a custom or policy because they claimed o nly 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 violation s of constitutional rights, and permitted these practice s to occur." In constructing this definition, the court relied on Bielevicz v. Dubinon, 915 F.2d 845, 851 (3d Cir. 19 90). In Bielevicz, however, the city had no express policy on the pertinent issue and the plaintiff therefore was att empting to prove that one official's misconduct was not an iso lated occurrence. See id. In contrast, it cannot be doubt ed that the county and LVF maintained a custom or policy concerning applications for involuntary examination s.

LVF's written "Involuntary Commitment Procedure" expressly foresees accepting petitions from non-phy sicians and obtaining approval for the warrant from the cou nty 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 h ow the county and LVF process petitions for involuntary examinations. When a plaintiff is challenging the constitutionality of a policy or custom itself, Bie levicz does not require him or her to allege a sequence of cons titutional deprivations; the claim that the policy resulted in the plaintiff suffering such a deprivation satisfies Mo nell. See

id. at 850-51. The district court therefore erred i n

15dismissing the Dobys' official capacity claims on t he ground

that they had failed to allege a custom or policy.

The question remains, however, whether the defendan ts' method of processing petitions truly can be conside red 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 lia ble under the Monell line of cases. See Surplus Store and Exc h., 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 offi cers 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 spec ifically whether municipalities or counties can be liable fo r enforcing state law, but in one decision we did app rove a suit against a county where county sheriffs had gar nished the plaintiffs' bank accounts based on a state stat ute. See Finberg v. Sullivan, 634 F.2d 50, 53-55 (3d Cir. 19 80). We did not decide Finberg under Monell, however, becau se there the plaintiffs were seeking only a declarator y judgment that the state statute was unconstitutiona l. See

id. at 53.

Without addressing the county/state policy distinct ion specifically, the Dobys clearly have framed their a rguments to focus on the actions of the county. They do not argue that section 7302 as written is itself unconstituti onal; rather they claim that LVF and the county have enfo rced it in an unconstitutional manner by permitting warrant s to be issued by telephone based on uncorroborated informa tion supplied by individuals who are not mental health professionals. The Dobys' suggestion that the enfor cement procedures should be considered a municipal or coun ty, 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 Ga rner court found the existence of such discretion determ inative in deciding that a municipality could be held liabl e for

16enforcing the use of deadly force by its police off icers.

Ultimately, however, we believe that we need not de cide whether a county or state policy is at issue becaus e we conclude that the enforcement policy adopted by LVF and the county is constitutional.

2. Does the county's policy violate the Four teenth

Amendment's Due Process Clause and the Fourt h

Amendment?

The Dobys do not contend that it is unconstitutiona l for the Commonwealth of Pennsylvania to permit the involuntary examination of those individuals who ap pear to pose an immediate danger to themselves or others. I ndeed, they repeatedly commend the State for drafting a st atute that balances the need to provide treatment to the seriously ill against the civil rights of those in need of su ch treatment. The Dobys quarrel only with the enforcem ent of the statute in two respects: (i) that LVF and the c ounty accept petitions for warrants from any individual, rather than only from mental health professionals; (ii) th at the county delegate who decides whether to issue the wa rrant does not interview the petitioner personally, perfo rms no investigation of the petitioner's claims, and permi ts the crisis worker to sign the warrant on his or her beh alf. The district court relied on a well-analyzed and though tful decision of the Court of Appeals for the First Circ uit in ruling that this enforcement policy is constitution al. See McCabe v. Life-Line Ambulance Serv. Inc., 77 F.3d 5 40 (1st Cir. 1996).

We deal first with a statutory interpretation conte ntion the Dobys raise. They devote a considerable portion of their brief to arguing that statutory interpretation prin ciples require us to interpret the phrase "physician or ot her responsible party" in section 7302(a)(1) to mean ph ysician or other mental health professional. The decisive f actor weighing against their interpretation is that it co ntradicts the relevant state agency's construction. The appli cation 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: "P art I must be completed by the person who believes the patient is in

17need of treatment. If this person is not a physicia n, police

officer, the County Administrator or his delegate . . . ." This form is created by the state agency in charge of ov erseeing 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., Fre y v. State Farm Mut. Auto. Ins. Co., 632 A.2d 930, 933 (Pa. Su per. 1993). Given the Legislature's use of the phrase "o ther 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 d eference.

The Dobys' first constitutional argument is that permitting individuals other than mental health professionals to petition for a section 7302 warran t violates

the Due Process Clause of the Fourteenth Amendment. They contend that permitting "anyone" to petition f or such a warrant, particularly when the petitioner's state ments are not investigated independently, will lead to arbitr ary deprivations of liberty as the petitioner may have improper motives for seeking the involuntary examination. In circumstances where anyone can petition for a warra nt, they argue, an individual must be granted the right to notice and a hearing before an involuntary examinat ion 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 involuntar y examination of dangerous individuals and that the f ederal 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, m ay confine mentally ill individuals if it shows by cle ar and convincing evidence that the individuals are ill an d dangerous to themselves or others. See Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 1786 (1 992) (citations omitted). The Dobys argue, however, that permitting non-physicians to apply for such warrant s converts a constitutional process into an unconstit utional one. This argument does not withstand scrutiny.

18As is made clear by the title of section 7302 of th e 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, 49 4 U.S. 113, 127, 110 S.Ct. 975, 984 (1980). It may be reas onable, therefore, for a state to omit a provision for noti ce and a hearing in a statute created to deal with emergenci es, particularly where the deprivation at issue, in thi s case detention for a maximum of several hours to permit an examination, continues for only a short period of t ime. See Memphis Light, Gas and Water Div. v. Craft, 436 U.S . 1, 19, 98 S.Ct. 1554, 1565 (1978) (stating that "[o]n occa sion, this Court has recognized that where the potential lengt h or severity of the deprivation does not indicate a lik elihood of serious loss and where the procedures underlying th e decision to act are sufficiently reliable to minimi ze the risk of erroneous determination, government may act with out 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 informati on provided by non-physicians is unreliable. The Dobys have not demonstrated, however, that non-physicians as a class are inherently unreliable fact informants. Furtherm ore, the Dobys misapprehend the role of a petitioner by sugg esting that a physician is more competent than a non-physi cian to decide when conduct is "dangerous." Although their contention may be true, under the structure of sect ion 7302, the petitioners themselves are not making cli nical 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 th e information provided by the petitioner constitutes grounds for issuing a warrant. The Dobys offer no convincin g reason why non-physicians cannot be trusted to relay infor mation to a person competent to judge such information und er the appropriate clinical standards. Moreover, it is lik ely that a person other than a physician or a mental health professional will have the material information.

19Additionally, section 7302 specifies that the count y

should make decisions based on information provided by a physician or "other responsible party." In the dist rict court the county presented testimony that each warrant application is handled as it arises in order to gua rd 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 im paired.

Further, the application procedure itself has a bui lt-in safeguard to prevent ill-motivated individuals from seeking the involuntary examination of others: the face of the application includes a clear statement providing th at anyone who supplies false information to the county may be prosecuted criminally. In conformity with that p olicy, Bryant informed DeCrescenzo that providing false information on the application would constitute a misdemeanor. Again, the Dobys have failed to explai n why it is unconstitutional to permit responsible indivi duals to report about the actions of others when a mental he alth professional is entrusted with judging the import o f such reports. Thus, the Dobys' claim that permitting non physicians to apply for warrants transforms a proce dure

that is sound under the Due Process Clause to one t hat is unsound is unpersuasive.4

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4. The Dobys also appear to claim substantive due p rocess 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 improp er motive." Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 14 2 F.3d 582, 590 (3d

Cir. 1998) (citations omitted). Our conclusion below tha t the MHPA

authorizes seizures that are "reasonable" under the Fourth Amendment establishes that the MHPA meets the rationality tes t imposed by substantive due process analysis. Furthermore, ther e is no basis in the record to conclude that the LVF or county defendant s' actions were not rationally related to a legitimate government inter est or were motivated by bias, bad faith, or improper motive. Indeed, the jury answered special interrogatories finding in favor of DeCrescenzo him self on the Dobys' claims of defamation, invasion of privacy, false ar rest and detention, gross negligence/willful misconduct, and intentiona l infliction of emotional distress. In the circumstances it is quit e clear that DeCrescenzo was pursuing a legitimate interest in t his matter.

20The Dobys' second constitutional arguments, which t hey

base on the Fourth Amendment, are equally unconvinc ing, and thus the district court correctly dismissed the m based on the "special need" exception to the probable cau se and warrant requirements. The Dobys claim that warrants for involuntary examinations must be based on probable cause, and therefore contend that the county must c onform 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. Orte ga, 480 U.S. 709, 714-15, 107 S.Ct. 1492, 1496 (1987). The fundamental inquiry in such proceedings, however, r emains whether the government's conduct is reasonable unde r 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 ca use in situations where "special needs, beyond the normal need for law enforcement, make the warrant and probable- cause requirement impracticable." Griffin v. Wisconsin, 4 83 U.S. 868, 873, 107 S.Ct. 3164, 3168 (1987) (citations om itted). Construing Griffin, the Court of Appeals for the Fi rst Circuit held that the temporary involuntary commitment of t hose 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 magis trate in a situation where the county delegate has determ ined that there are reasonable grounds to believe in an

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5. The Dobys have not explained how their Fourth Am endment challenge implicates a municipal or county, rather than a sta te, policy. The MHPA clearly permits seizures of mentally ill individual s without requiring county officials to apply to a magistrate for a war rant that would be issued only upon probable cause. Instead, the statu te 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.

21individual's "clear and present" dangerousness woul d entail

delays with potentially life-threatening consequenc es. As discussed above, by its terms, section 7302 applies only in emergencies. Such emergency cases present a situati on where seeking a warrant is systemically impracticab le.

Moreover, as the Supreme Court suggested in Griffin , a magistrate's authorization is less desirable in cas es where non-judicial expertise is involved, such as determi ning the amount of supervision necessary for a probationer. See Griffin, 483 U.S. at 876, 879 n.6, 107 S.Ct. at 317 0, 3172 n.6. The same reasoning applies where a county dele gate trained in a mental health field, rather than a mag istrate judge trained in the law, renders the decision of w hether an individual requires an emergency involuntary examin ation. Although the Dobys suggest that such a determinatio n 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 emergen cy nature of section 7302 warrants. Furthermore, this argument ignores the fact that magistrate judges of ten issue warrants based on information supplied by pol ice officers who themselves are relying on absent infor mants.

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 t hat "the shorter the detention, the less compelling is the evidence of the necessity for it that the authoriti es need to produce." Villanova v. Abrams, 972 F.2d 792, 796 (7 th Cir. 1992) (citations omitted). Because the Dobys contes t the issuance of the section 7302 warrant, it is importa nt to focus on the deprivation of liberty caused by the e xecution of the warrant itself. The MHPA requires that a phy sician

examine a detained individual within two hours of h is or her arrival at a hospital; therefore, that individu al's liberty

will be curtailed for at most several hours unless a physician independently concludes that the individu al is mentally disabled and in need of involuntary treatm ent. See Pa. Stat. Ann. tit. 50, S 7302(b). Given the brief detention authorized, the warrant procedures provide importan t

22safeguards to protect individuals' rights. First, t he warrant

is authorized by a neutral and detached official, t he 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 exc eptions to the warrant and probable cause requirement). Second , the county issues a warrant only when information prese nted by a "responsible party" convinces a trained county delegate that reasonable grounds exist to belief th at 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 respon d to emergency cases, it is reasonable for the county de legate to consult with the crisis workers over the telephone and to issue such warrants without independent investigati on. The statutory requirement that the individual appear "responsible" and the warning on the application fo rm that false statements can subject a petitioner to crimin al prosecution are sufficient safeguards in light of t he circumstances to assure the reliability of informat ion communicated to the delegate. We therefore reject t he Dobys' Fourth Amendment challenge.6

B. Did the District Court Err in Granting a Judgmen t as a Matter of Law to DeCrescenzo on the Neglig ence

Issue?

The jury returned a verdict in DeCrescenzo's favor on all claims, including gross negligence/willful miscondu ct, except simple negligence. The district court, howev er, granted a judgment as a matter of law on the neglig ence

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6. Once again, the Dobys rely on Pennsylvania law i n their section 1983 argument, suggesting that the Pennsylvania Supreme Court has rejected the "special need" exception for state statutes aut horizing 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 ana lysis under section 1983, the Dobys misinterpret Kohl. This decision do es 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.

23claim 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 betwee n the alleged negligence and Doby's injury. Subsequen tly on the Dobys' post-trial motions it ruled that DeCresc enzo was immune from a claim of simple negligence under sect ion

7114 of the MHPA.

We will affirm the district court's ruling on this because we agree with Judge Fullam's conclusion that DeCres cenzo qualifies for immunity under section 7114. This sec tion provides in relevant part that:

In the absence of willful misconduct or gros s negligence, a county administrator, a direct or of a facility, a physician, a peace officer or an y other authorized person who participates in a deci sion 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 DeCresce nzo was the responsible person who initiated the involuntar y examination proceedings under section 7302, we hold that he qualifies as an "authorized person who participa te[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 th ose with mental health training. We recognize that McNamara contains language suggesting that section 7114 only applies to mental health professionals. See McNamar a, 556 A.2d at 449-50 (stating that "the legislature conte mplated the decision-making process under S 7114 as one whi ch would take place within the context of treatment, c are, diagnosis or rehabilitation. It is equally clear th at the individuals who would participate in those decision s would be trained in the field of mental health."). But th e 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 per sonnel

24would qualify for immunity. The Pennsylvania Superi or

Court reasonably concluded that only individuals wi th mental health training, and thus those that actuall y had participated in the assessment of the patient's men tal state, qualified for immunity.

In contrast, the issue posed by this appeal is whet her the individual who applies for a section 7302 warrant c an be deemed to be a participant in the decision-making p rocess to involuntarily examine the patient. We believe th e answer to this question must be "yes" because section 7114 explicitly includes peace officers within its immun ity provision. See Pa. Stat. Ann. tit. 50, S 7114. Give n the statutory scheme, it is difficult to imagine what r ole peace officers could play in a decision to examine or tre at an individual other than to report information of dang erous 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 judgme nt as a matter of law to DeCrescenzo on the simple negligen ce claim.7

C. Did the District Court Err in Entering a Judgmen t 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 Lightn ing Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 199 3). In conducting our review, we apply the same standard r elied upon by the district court. See id. This standard r equires us to consider the evidence in the light most favor able to the nonmoving party and to deny a defendant's motio n 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

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7. We also agree with the district court that the e vidence could not support a verdict on a negligence theory in favor o f the Dobys against

DeCrescenzo. The district court also concluded that the Dobys' pleadings did not include a claim for simple negligence so th at the verdict for that

reason as well could not stand. We do not reach tha t issue.

25a judgment as a matter of law to the police defenda nts 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 testimon y, she was not mistreated. Under plaintiff's own testimony, sh e did kick and scream. So that I don't think any rational jury could say it was unreasonable for them to subdue he r and then to get her to the hospital."

In analyzing claims of excessive force under the Fo urth Amendment, we must decide whether the actions of th e police were "objectively reasonable in light of the facts and circumstances confronting them, without regard to t heir underlying intent or motivation." Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 1872 (1989) (interna l quotation marks omitted). See also In re City of Ph iladelphia Litig., 49 F.3d 945, 962-63 (3d Cir. 1995). Signifi cant factors in evaluating the force used by the police are whether the person being taken into custody is resi sting 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 tak e 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 off icers were aware that there were guns in the Dobys' home. Give n these circumstances, Doby's own testimony establish es 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 wh y she was being taken into custody, Doby made clear that she would not accompany them willingly and "became angr y." 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 scre am, the officers shackled her. Once Doby arrived at the hospital, a female officer performed a pat-down sea rch and Doby was placed in a wheelchair. Her handcuffs and shackles were removed once she promised to cooperat e.

26Doby's own testimony established that the police of ficers

applied force in response to her attempts to resist

, including kicking, screaming and flight. Moreover, they tailored each action taken to the type of resistanc e encountered: handcuffing to prevent flight, shackli ng to prevent kicking. We therefore conclude that the off icers' actions were objectively reasonable as a matter of law and

will affirm the district court's order on the exces sive 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 D obys' motion for a judgment declaring the MHPA to be

unconstitutional under the Fourteenth Amendment's D ue Process Clause and the Fourth Amendment. It ruled t hat the Dobys had abandoned this claim by failing to re new it before the trial and that, as a result, the court h ad not provided the Attorney General of Pennsylvania with the notice required under Fed. R. Civ. P. 24(c). We nee d 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 distr ict 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 admis sibility of expert testimony for abuse of discretion. See Un ited

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8. The Dobys' claim that section 4422 of the Pennsy lvania mental health statutes rendered the officers' actions illegal is meritless. See Pa.

Stat. Ann. tit. 50, S 4422 (West 1969). Section 4422 prov ides that "[m]echanical restraints shall not be used or appli ed to a mentally disabled person, except: (1) When necessary to prev ent such person from harming himself or others when being transported as provided in sections 405 or 421 . . . ." As discussed above, th e restraints used by

the police officers were necessary to prevent Doby from harming the officers

or herself as a result of her resistance.

27States v. Bennett, 161 F.3d 171, 182 (3d Cir. 1998) ;

Waldorf v. Shuta, 142 F.3d 601, 626-27 (3d Cir. 199 8). The trial judge has broad discretion to admit or exclud e 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 soc ial worker who was prepared to opine that Doby had suffered po sttraumatic stress disorder solely as a result of her five-day involuntary commitment. The court concluded that Bi erker was not qualified to render this opinion and that h er opinion was based on a "seriously inaccurate" understanding of the facts. The Dobys claim that th is was

error.

As the Dobys concede, Bierker's testimony was offer ed to prove the damages suffered by Doby. Because the jur y returned a verdict in favor of DeCrescenzo on all c laims 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 w ere 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, b ecause Dr. Richards qualified for immunity under section 7 114 of the MHPA, he could be liable to the Dobys only if h is conduct amounted to gross negligence or willful misconduct. The court ruled, as a matter of law, th at the Dobys had not provided evidence sufficient to "esta blish flagrant behavior which grossly deviates from the s tandard of care required."

The claim against Dr. Richards, of course, essentia lly related to his decision to commit Doby involuntaril y rather than to the issuance of the warrant. The Dobys do n ot contest the district court's decision that, as a tr eating physician, Dr. Richards would be liable to them onl y for gross negligence/willful misconduct. Pennsylvania l aw defines gross negligence in the context of the MHPA as "facts indicating more egregiously deviant conduct than

28ordinary carelessness, inadvertence, laxity or indi fference.

. . . The behavior of the defendant must be flagran t, grossly deviating from the ordinary standard of care." Albr ight v. Abington Memorial Hospital, 696 A.2d 1159, 1164 (Pa

. 1997) (citation omitted). Further, willful miscondu ct exists when "the danger to the plaintiff, though realized, is so recklessly disregarded that, even though there be n o actual intent, there is at least a willingness to inflict injury, a conscious indifference to the perpetration of the w rong." Krivijanski v. Union R.R. Co., 515 A.2d 933, 937 (P a. 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. Richa rds had acted in a grossly negligent manner. Dr. Bazelon's report states: "Dr. Richards [did not act] in accordance w ith the customary or usual standard of care." She opines th at by not questioning DeCrescenzo's motive or further questioning Herbert Doby and Doby's regular psychia trist,

Dr. Richards "deviated from the reasonable standard of care" and evidenced "complete disregard" for Doby's rights. Her report also acknowledges, however, that the con tent of Doby's writings was "frightening."

This first report does not create a genuine factual dispute about Dr. Richards' gross negligence/willful miscon duct. Dr. Bazelon merely states that Dr. Richards deviate d from the standard of care, which might amount to ordinar y negligence, but she does not use terms to suggest t hat this deviation was gross or flagrant.

The second report, by Dr. Applebaum, details five

deficiencies with Dr. Richards' examination and res ulting diagnosis of Doby's depression, including failure t o inquire about the most common symptoms of depression, failu re to evaluate adequately her suicidality, failure to acc ess collateral sources of data such as Doby's regular psychiatrist and Herbert Doby, a "grossly inadequat e" mental status evaluation, and failure to explore le ss restrictive alternatives to involuntary commitment. The language of this report does suggest that Dr. Richa rds acted with gross negligence; Dr. Applebaum presents Dr. Richards as a highly incompetent psychiatrist, unfa miliar

29with the basic medical definition of depression or its

common symptoms and indifferent to the information he did gather. However, Dr. Applebaum's failure to dis cuss 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 1 135, 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 w ritings, which represented crucial evidence of her mental st ate, undermines Dr. Applebaum's conclusions regarding Dr

. Richards' actions.

Considering the undisputed facts of this case, whic h showed that Doby had a history of depression and ad mitted to contemplating suicide, and that Dr. Richards had in his possession an extensive 11-page letter that even th e Dobys' expert Dr. Bazelon concedes was "frightening," we a gree with the district court's ruling "that the deficien cies noted by Drs. Applebaum and Bazelon could not amount to anything more than simple negligence by Dr. Richard s." We also point out that courts should be cautious in al lowing 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 alleged ly 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 protec t person functioning as part of judicial process from harass ment and intimidation).

V. CONCLUSION

We will affirm both the district court's September 9, 1996 order granting summary judgment to the defendants o n 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 o f the judgment.

30A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

31