                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-14-2007

DeJesus v. US Dept Veterans
Precedential or Non-Precedential: Precedential

Docket No. 05-4952




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                                 PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT


        Nos. 05-4952 and 05-5112


CAMILLE DeJESUS, INDIVIDUALLY AND AS
  ADMINISTRATRIX OF THE ESTATE OF
  ALEJANDRO DeJESUS, JR., DECEASED,
         AND THE ESTATE OF
  FELICIA LYNNE DeJESUS, DECEASED;
 CHERYL FAULK, INDIVIDUALLY AND AS
  ADMINISTRATRIX OF THE ESTATE OF
 MICHAEL BRANDON FAULK, DECEASED,
          AND THE ESTATE OF
  AARON ASHANTI FAULK, DECEASED

                Appellants, No. 05-5112

                    v.

    UNITED STATES OF AMERICA
 DEPARTMENT OF VETERANS AFFAIRS,

          Defendant/Third-Party Plaintiff


PHILADELPHIA VETERANS MULTI-SERVICE
      & EDUCATION CENTER, INC.;
   LANDING ZONE II TRANSITIONAL RESIDENCE,

                       Third Party Defendant

                        United States of America
                     Department of Veterans Affairs,

                           Appellant, No. 05-4952


      On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
                  (D.C. No. 02-cv-00253)
       District Judge: Honorable Paul S. Diamond


                Argued December 13, 2006
            Before: FISHER, CHAGARES and
              GREENBERG, Circuit Judges.

                  (Filed: March 14, 2007)

William G. Cole (Argued)
U.S. Department of Justice
Civil Division, Appellate Staff
601 D Street, N.W., Room 7409
Washington, DC 20530




                             2
Joan K. Garner
Joel M. Sweet
Office of U.S. Attorney
615 Chestnut Street, Room 1250
Philadelphia, PA 19106
       Attorneys for Appellant/Cross Appellee
       U.S. Department of Veterans Affairs

Gerald A. McHugh, Jr. (Argued)
Regina M. Foley
Raynes, McCarty, Binder, Ross & Mundy
1845 Walnut Street, Suite 2000
Philadelphia, PA 19103
      Attorneys for Appellees/Cross Appellants
      Camille DeJesus, etc., and Cheryl Faulk, etc.




                 OPINION OF THE COURT


FISHER, Circuit Judge.
       This case comes to us on appeal from the District Court’s
judgment in favor of Camille DeJesus (“Camille”) and Cheryl
Faulk (“Faulk”), plaintiffs and appellees in this case. Following
a bench trial, the District Court determined that the U.S.
Department of Veterans Affairs (“the VA”) was liable on a
theory of gross negligence for the shooting deaths of Camille’s
and Faulk’s children by Camille’s husband, Alejandro DeJesus,
Sr. (“DeJesus”), just eighteen hours after he was released from

                               3
a residential housing facility located on the VA’s grounds. On
appeal, the VA argues that it had no statutory or common-law
duty to protect the third-party children from DeJesus. Camille
and Faulk cross-appeal, claiming the District Court erred in
granting summary judgment to the VA on their failure-to-warn
claims. For the reasons set forth below, we will affirm the
judgment of the District Court.
                                  I.
       The tragic factual background to this case centers around
DeJesus, an honorably discharged ex-Navy enlisted man.
DeJesus was married to Camille, with whom he had three
children, Alex, Jr. (age 22), Candida (age 19), and Felicia (age
6).1 DeJesus had a history of domestic violence that culminated
in 1997 when Camille obtained a Temporary Ex Parte Protection
From Abuse Order requiring DeJesus to stay away from his son
Alex, Jr. for one year, following an incident in which he
allegedly struck Alex, Jr. repeatedly. Following the incident,
DeJesus was arrested and placed in jail. While in jail, he
attempted to hang himself by his shoelaces. After he was
released, DeJesus had no home to which to return and began
living on the street, occasionally visiting homeless shelters.
       In September 1997, DeJesus voluntarily entered the VA
Domiciliary Program as an unemployed, homeless veteran with
substance abuse problems. The Domiciliary Program is an
inpatient program designed to help veterans with the process of
moving from homelessness and unemployment to being active



       1
           Ages are at the time of the shooting.

                                  4
members of the work force. Most patients in the Domiciliary
Program spend approximately 90-120 days in the program and
then attempt to transition back into the community. It is
considered the least restrictive means of inpatient treatment at
the VA.
        At the time he entered the Domiciliary Program, DeJesus
was initially evaluated by Dr. Edward Moon, a clinical
psychologist working at the VA. Dr. Moon’s evaluation found
that DeJesus had a history of domestic violence, and, while
DeJesus had denied depression, he admitted sadness and
bordered on lability2 when speaking of his estranged family. In
addition, DeJesus indicated to Dr. Moon that while he was not
currently suffering from any homicidal or suicidal thoughts, he
previously had thoughts about hurting others and previously
attempted suicide. Dr. Moon’s report also suggested that
unemployment and homelessness were “triggers” for DeJesus’s
destructive outbursts. During his time at the VA Domiciliary
Program, DeJesus reported to a case manager that he was
concerned because he had killed a man when in Vietnam and
felt nothing while doing so.
       Based on this information, Dr. Moon believed that
DeJesus had intermittent explosive disorder. According to trial
testimony, “[i]ntermittent explosive disorder is a disorder which
involves some discrete incidents of either destruction or
violence, those incidents are disproportionate to the stimulus,
and those incidents do not occur or are not better explained by


       2
       Lability refers to emotional extremes – smiling at one
minute followed by an immediate shift to sobbing.

                               5
another diagnosis, such as antisocial personality disorder . . . .”
Individuals suffering from intermittent explosive disorder are
generally not violent between episodes, only occasionally
exhibiting violence or impulsiveness at a low level. Following
violent episodes, those with the disorder often exhibit signs of
calm and remorse. Persons with intermittent explosive disorder
repeatedly react to the same stimuli and display the same
response in each violent episode.
       Following this preliminary evaluation by Dr. Moon,
DeJesus saw a VA psychiatrist, Dr. Saul Glasner, who
confirmed Dr. Moon’s initial diagnosis of intermittent explosive
disorder. Dr. Glasner prescribed twice-daily doses of 200 mg of
Tegretol, an anti-convulsive medication which has been
successfully used to control intermittent explosive disorder. A
second VA psychiatrist, Dr. Tirso Vinueza, found that DeJesus
was suffering from mild depression and would be seen on an “as
needed basis.” Because Dr. Vinueza was not informed that
DeJesus was on Tegretol and did not read DeJesus’s chart, he
was unaware of Dr. Glasner’s diagnosis of intermittent
explosive disorder. No medication was prescribed for the mild
depression. There is no indication in the record that DeJesus
ever saw another psychiatrist during his stay at the Domiciliary
Program.
      After his psychiatric evaluation, DeJesus was assigned a
“team” that would head up his treatment at the Domiciliary
Program, including psychotherapy and substance abuse
counseling. Although she was not DeJesus’s original case
manager (also called his primary therapist), Denise Outzs-



                                6
Cleveland came to take over that position.3 During his time at
the Domiciliary Program, DeJesus attended group therapy
sessions headed by Outzs-Cleveland and underwent therapy at
one-on-one sessions. At no time during her management of
DeJesus’s case did Outzs-Cleveland familiarize herself with
DeJesus’s medical history or become aware that he had been
diagnosed with intermittent explosive disorder. In addition,
despite the fact that Outzs-Cleveland was treating DeJesus for
substance abuse problems, she was never aware of what, if any,
medications he was on.
       After DeJesus completed approximately four-and-a-half
months in the Domiciliary Program, Outzs-Cleveland
recommended him for placement in Landing Zone II
Transitional Residence (“LZ-II”). LZ-II is a program of the
Philadelphia Veteran’s Multi-Service and Education Center,
which serves as a transitional program for veterans who may
live and work at LZ-II for up to two years. LZ-II is a privately
run, non-profit organization that is funded by the VA Homeless
Grant and Per Diem Program. It is located on the grounds of the
VA Medical Center at Coatesville in a building owned by the
VA. As part of its grant to LZ-II, the VA provides all medical
and psychiatric services to LZ-II residents, including around-
the-clock emergency medical and psychiatric care. The VA also
provides full-time police and fire services. LZ-II staff members



       3
        Outzs-Cleveland has a Registered Nursing degree, but
does not have a license to practice as she has twice failed the
licensing exam. Outzs-Cleveland does not have a license to
practice therapy either, as the VA does not require it.

                               7
regularly consult with VA case managers and mental health
workers regarding the residents.
       Residents at LZ-II are subject to a number of restrictions.
While they may leave the residence, they are required to sign in
and out and must provide an account of their whereabouts.
LZ-II residents may not keep alcohol in their rooms, which are
subject to search by LZ-II at any time if the facility deems such
a search necessary. LZ-II conducts weekly inspections of every
resident’s room.
        While at LZ-II, DeJesus participated in a voluntary
aftercare program, during which time Outzs-Cleveland was
available to him for continued therapy. At the time DeJesus was
admitted to LZ-II, Outzs-Cleveland had permission to release to
LZ-II all personal information regarding DeJesus that she had in
her possession, including his medical and psychiatric history.
Despite this permission, Outzs-Cleveland never released any of
this information to LZ-II. In fact, on her recommendation form
for LZ-II, Outzs-Cleveland indicated that DeJesus had no mental
health issues or behavioral problems, despite the evidence in the
VA records that DeJesus had intermittent explosive disorder and
suffered from violent outbursts and suicidal ideations.
       On November 10, 1998, DeJesus contacted Outzs-
Cleveland and informed her that he was engaged in court
proceedings to seek partial custody of or, at least, visitation
rights for his younger daughter, Felicia. At that time, he
indicated that his estranged wife would not allow him any
contact with her, and that his prior abusive behavior had led his
older children, Alex, Jr. and Candida, to avoid contact with him.
On January 15, 1999, DeJesus told Outzs-Cleveland that he was

                                8
“[g]etting quite frustrated with the court.” Despite a letter
Outzs-Cleveland wrote to the family court, DeJesus still had not
gained custody over his daughter and, in addition, Candida and
his wife had seen him at a custody hearing but refused to speak
to him. He expressed his gratitude to Outzs-Cleveland that he
was “in this facility to vent his feelings and maintain his
sobriety.”
       On February 12, 1999, Outzs-Cleveland received a phone
call from a man requesting to speak to Camille. Outzs-
Cleveland recognized DeJesus’s voice and realized that he had
mistakenly called her while trying to contact his estranged wife.
Her log entry following the conversation read:
       Phone rang around 1500 [hours] and the person
       on the other end asked for Camille. Responded
       saying they had the wrong number and then
       recognized the voice to be familiar. Asked if it
       was A. DeJesus and this veteran responded,
       “Yes.” Mr. DeJesus was trying to call Media to
       contact his estranged wife and had some[how]
       called the 7A do[r]m. Learned that he had just
       been served his divorce papers and he was very
       distraught on the phone. Talked briefly and asked
       him to see undersigned [Outzs-Cleveland] ASAP
       to process his feelings and talk. He said he would
       call back.
(Emphasis added.) DeJesus never called back and Outzs-
Cleveland never undertook any follow-up.
      On March 22, 1999, DeJesus was working in the kitchen
at LZ-II, preparing breakfast with other residents. DeJesus

                               9
entered into a verbal confrontation with another LZ-II resident,
Bill Queen, over a dirty bucket of water. While residents’
versions of the events differed, all agreed that at some point
during the altercation, DeJesus picked up a knife, held it behind
his back, and Queen felt threatened. The knife incident only
lasted a matter of minutes, and, while DeJesus did not injure
anyone, the knife had to be forcibly removed from his hands.
       After the altercation, LZ-II contacted Outzs-Cleveland
and Bruce Newell, Queen’s therapist, to discuss the situation.
The VA recommended that DeJesus be discharged. While LZ-II
claimed it was under no obligation to follow the VA’s
recommendation regarding his dismissal from the program, it
relied heavily on the VA staff’s advice and would not have
dismissed DeJesus but-for the VA’s recommendation. DeJesus
was involuntarily discharged from the LZ-II program for
“creating a physical threat with a weapon.” After he was told
that he would be discharged from LZ-II, DeJesus was “quiet”
and said he would leave. Before he left, DeJesus met Outzs-
Cleveland, said that he loved her, gave away a number of his
personal possessions, and informed several people that he would
be walking to Maine or New Hampshire.
       At this time, Outzs-Cleveland expressed concern over
DeJesus’s mental well-being and offered twice to take DeJesus
to seek a psychiatric evaluation. He declined both times. After
DeJesus declined to be seen, Outzs-Cleveland contacted Dr.
Stephen Chambers and Dr. Christopher Ray, two VA
psychologists, to inquire as to whether she could require
DeJesus to seek counseling before he left. Despite the existence
of involuntary commitment procedures at the VA, they both
informed her that he could not be forced to be seen because he

                               10
was an outpatient. However, when she asked them, she did not
inform them that DeJesus was giving away his possessions or
inform them about his prior history of domestic abuse and
suicidal ideations, often triggered by a change in job or home
situation. Had she informed him of that information, Dr.
Chambers believed he may have suggested she have DeJesus
involuntarily committed.
         In her write-up following the incident, Outzs-Cleveland
wrote:
         [DeJesus] didn’t quite understand or refused to
         understand the seriousness of picking up this
         knife to use as a weapon. He was offered twice
         during meeting to be escorted over to Bldg 2 to
         outpatient to have a STAT Psychiatric Consult.
         Mr. DeJesus did not want to utilize this offer of
         support and just said he would leave today after
         he gave a few of his items away to current LZ-II
         residents. He stated he would be walking to New
         Hampshire or Maine.          Concern arose by
         undersign[ed] for him to be seen due to his past
         history of wanting to hurt others, particularly his
         estranged wife who recently served him divorce
         papers and has not allowed contact with youngest
         daughter for over a year. He is in a custody
         battle with wife. He has also in past had thoughts
         of hurting self.
(Emphasis added.) At no point on March 22 did DeJesus make
any specific threats against his wife or children.



                                 11
       Following DeJesus’s release from LZ-II, the LZ-II staff
conducted a search of DeJesus’s room and found that he had
shredded much of his clothing, including a baseball cap that was
of particular importance to him. Despite the fact that this
behavior is consistent with suicidal tendencies, no one who was
called to consult thought to make use of Pennsylvania
involuntary commitment procedures or emergency psychiatric
intervention under the VA’s internal procedures.
       DeJesus left LZ-II sometime on the afternoon of
March 22. Approximately eighteen hours later, on March 23,
DeJesus charged through the door of Camille’s apartment and
shot two of their children, Alex, Jr. and Felicia, and two
neighbor children, Aaron Faulk and Michael Faulk. Alex, Jr.,
Felicia and Aaron Faulk died immediately. Michael Faulk died
two days later in the hospital. After shooting the four children,
DeJesus turned the gun on himself. Upon hearing about an
incident involving a man killing his children and then himself on
the news, Outzs-Cleveland immediately thought it was DeJesus.
                               II.
       On January 16, 2002, Camille and Faulk instituted a suit
against the United States, the VA, the Philadelphia Veterans
Multi-Service Center, and LZ-II 4 under the Federal Tort Claims
Act (“FTCA”) individually and on behalf of the estates of their
children for the March 23 deaths. The Complaint included
claims for: (1) The VA’s gross negligence in discharging or



       4
        The Philadelphia Veterans Multi-Service Center and LZ-
II are not participating in this appeal.

                               12
failing to treat DeJesus when he was an imminent threat,
(2) failure to warn, (3) wrongful death and (4) negligent
infliction of emotional distress.
       The District Court granted the VA’s motion for summary
judgment on the plaintiffs’ failure-to-warn claims on
February 17, 2005, finding that a mental healthcare provider
only has a duty to warn if a “patient communicates a specific
and immediate threat of serious bodily injury against a
specifically identified or readily identifiable third party.”
Following the conclusion of pre-trial motions, the District Court
heard the remaining claims without a jury.
        At trial, the plaintiffs presented an expert, Dr. Robert
Lloyd Goldstein, who testified that DeJesus’s behavior leading
up to the shootings was very consistent with someone suffering
from intermittent explosive disorder. He stated that the phone
call to Outzs-Cleveland indicated the beginning of a crisis. He
further testified that the incident with the knife was a sign of
decompensation (or deterioration). DeJesus’s diagnosis as
having intermittent explosive disorder “indicated . . . his
propensity to have explosive outbursts . . . Under the
circumstances it was certainly something to pause and be
concerned about.” In situations like the one presented following
the knife incident, Dr. Goldstein stated that it is imperative to
take into account a patient’s history when making treatment
decisions. He believed that the VA grossly failed in its duty in
this regard as no one was familiar with DeJesus’s full medical
history when someone should have been.
      Dr. Goldstein also testified that, under the circumstances,
DeJesus should not have been released. His willingness to give

                               13
away his personal belongings indicated a propensity for suicidal
behavior. Further, anyone familiar with DeJesus’s tendency to
have violent outbursts after facing frustration in his home or
work life should have known that to expel him from LZ-II was,
in effect, to expel him from his job and to completely isolate
him from his support system not long after he learned he would
be getting divorced. Dr. Goldstein stated that to do so would be
to take someone who is already in crisis and seriously compound
that crisis. The failure to share readily-available information,
the failure to correctly recognize DeJesus’s suicidal tendencies,
and the failure to prevent DeJesus’s release constituted gross
negligence.
       The VA also presented an expert witness, Dr. Brooke
Zitek, who testified regarding involuntary commitment
procedures in Pennsylvania. She testified that most patients who
are involuntarily committed are suffering from much more
severe psychotic episodes than DeJesus. “[T]he person is totally
lacking in terms of their [sic] judgment and their [sic] insight
into their [sic] illness.” She did not believe that DeJesus’s
behavior during the knife incident created a “clear and present
danger” as required by Pennsylvania commitment procedures.
Other than the February 4 phone call and the March 22 knife
incident, Dr. Zitek did not believe that DeJesus had exhibited
any behavior that indicated a serious demeanor change.
        On cross examination, Dr. Zitek admitted that, of the
factors typically considered in determining whether a psychiatric
emergency existed, all of them applied to DeJesus. DeJesus also
exhibited several signs indicating a tendency toward suicide.
She also testified that “ideally the therapist would have known
[DeJesus’s] diagnosis.” However, Dr. Zitek maintained her

                               14
position that the VA did not grossly deviate from the standard of
care. In its final decision, the District Court stated that it found
Dr. Goldstein credible while Dr. Zitek’s testimony was
equivocal and unconvincing.
       Following testimony, the District Court found sufficient
evidence to enter judgment against the VA, finding it was
grossly negligent in its determination that DeJesus should be
discharged from LZ-II and in its failure to commit DeJesus
following the discharge. These violations of the appropriate
standard of care proximately caused the shooting deaths of the
four children. Therefore, the District Court awarded damages
to Camille and Faulk individually and on behalf of the estates of
their children for gross negligence and wrongful death.
Additionally, the District Court found that Camille had proven
the necessary elements for negligent infliction of emotional
distress and awarded her additional damages on that claim.
                                III.
       The District Court had jurisdiction over this FTCA claim
pursuant to 28 U.S.C. § 1346(b). We exercise jurisdiction over
this appeal from a final judgment of the District Court pursuant
to 28 U.S.C. § 1291. We review the legal decisions of a district
court conducting a bench trial de novo, but “[f]indings of fact
shall not be set aside unless clearly erroneous and due regard
must be given to the trial court’s judgments as to the credibility
of the witnesses.” Colliers Lanard & Axilbund v. Lloyds of
London, 458 F.3d 231, 236 (3d Cir. 2006) (citing Fed. R. Civ.
P. 52(a)). Because the liability of the United States under the
FTCA is determined by the law of the state where the allegedly
tortious act occurred, 28 U.S.C. § 2647, we will look to the state

                                15
courts to determine how to resolve the underlying legal issues.
If there is no applicable decision from the state’s highest court,
we are charged with predicting how that court would resolve the
issue, considering “(1) what that court has said in related areas;
(2) the decisional law of the state intermediate courts; (3) federal
cases interpreting state law; and (4) decisions from other
jurisdictions that have discussed the issue.” Id. (internal
citations omitted). We “must attribute significant weight to
these [lower state court] decisions in the absence of any
indication that the highest state court would rule otherwise.” Id.
Because the conduct in question took place in Pennsylvania, its
law properly governs this action.
                                IV.
        The primary issue that we are presented with is whether
the VA had a duty under Pennsylvania law to protect the third
parties who were killed when DeJesus was released from LZ-II.
Because Camille and Faulk have cross-appealed the District
Court’s decision to grant the VA summary judgment on their
failure-to-warn claims, we begin our analysis with the
Pennsylvania Supreme Court’s decision in Emerich v.
Philadelphia Center for Human Development, Inc., 720 A.2d
1032 (Pa. 1998). Taking its cue from the California Supreme
Court’s landmark decision in Tarasoff v. Regents of the
University of California, 551 P.2d 334 (Cal. 1978), the
Pennsylvania Supreme Court recognized that, while there is
generally no duty to control the conduct of a third party, where
the defendant stands in a special relationship to the victim or
some other party, the victim deserves protection. Emerich, 720
A.2d at 1037. Therefore, the Court held that when a mental
health professional determines that her patient presents a serious

                                16
danger of violence to another, that mental health professional
has an affirmative duty to warn the intended victim. Id. at 1039-
40.
        However, recognizing that to read that duty too broadly
would result in crippling an already heavily-burdened
profession, the Pennsylvania Supreme Court carefully delineated
its application. Before a mental health provider has a duty to
warn or otherwise protect a third party from a threat presented
by a patient in her care, the threat must be a specific and
immediate threat of serious harm, and the victim must be readily
identifiable. Id. at 1041.
        In their cross-appeal, Camille and Faulk make a novel
argument regarding why the VA had a duty to warn Camille of
her husband’s behavior. However, this is a clear case where
Emerich does not apply. Camille and Faulk agree that there was
no specific threat of immediate harm made against Camille or
her children before DeJesus left LZ-II. Rather, they argue that
because Outzs-Cleveland wrote a letter to the family court
attesting to DeJesus’s improved mental health, the VA then had
a duty to inform any person who may have relied on that letter
if DeJesus’s mental health state changed. However, the
outcome of court proceedings can affect numerous parties, and
it would be very difficult to identify all persons who would have
relied on Outzs-Cleveland’s letter. Because of the Pennsylvania
Supreme Court’s narrow reading of failure-to-warn claims, we
do not believe that, given the opportunity, it would expand




                               17
Emerich to a situation that involves no specific threat of
immediate harm against a readily identifiable victim.5




       5
        We also note that Camille’s and Faulk’s reliance on
Cipriani v. Sun Pipeline Co., 574 A.2d 706 (Pa. Super. Ct.
1990), and Schwartz v. United States, 230 F. Supp. 536 (E.D.
Pa. 1964), is misplaced. In both cases, the court found that a
defendant who had created a risk of harm was under a duty to
prevent that harm from taking effect. Cipriani relied on Section
321 of the Restatement (Second) of Torts, which provides that
where an actor has created a risk of harm, the actor is under a
duty to exercise reasonable care to prevent the risk from taking
effect. Restatement (Second) of Torts § 321. While the
Pennsylvania Supreme Court has never adopted Section 321,
Glick v. Martin & Mohler, Inc., 535 A.2d 626, 629 (Pa. Super.
Ct. 1987), even if it had, this case would not be an appropriate
Section 321 action. Unlike the plaintiffs in Cipriani and
Schwartz, the parties who were likely to be affected by Outz-
Cleveland’s letter to the family court are not easily identifiable.
To use Section 321 to expand the limited duty in Emerich to
cases where an affirmative statement by a mental health worker
may affect some unidentified party would impose a vague and
unworkable standard. As the California Supreme Court said in
Tarasoff, application of Section 321 liability in situations such
as this raises “difficult problems of cauastion and of public
policy.” Tarasoff, 551 P.2d at 349 n.18. Therefore we do not
believe the Pennsylvania Supreme Court would impose liability
on the VA based on Section 321 of the Restatement.

                                18
                                V.
        As the District Court did not base its judgment against
the VA on a failure-to-warn claim, we next address whether
Camille and Faulk appropriately recovered because the VA
owed a different duty to their children. In all tort cases, a duty
may be imposed either through common-law case development
or through statute. Emerson v. Adult Cmty. Total Servs., Inc.,
842 F. Supp. 152, 155 (E.D. Pa. 1994); see Serbin v. Ziebart
Intern. Corp., Inc., 11 F.3d 1163, 1167-68 (3d Cir. 1993)
(looking to both statute and common law to determine existence
of a duty). We therefore look to both kinds of duties to
determine the scope of the VA’s duty to the third-party victims
in the case before us.
                                A.
        While the Pennsylvania Supreme Court has not
specifically addressed the common-law duty to protect third
parties in situations other than failure to warn, the Pennsylvania
Superior Court has twice stated that there is no common-law
duty to protect third parties in situations like the one presented
here. In F.D.P. v. Ferrara, 804 A.2d 1221 (Pa. Super. Ct.
2002), the parents of a girl who was sexually assaulted by a
resident of a mental health facility brought suit against the
operators of that facility. They alleged, inter alia, that the
mental health facility was negligent in failing to seek a civil
commitment of the resident, who had a long history of sexual
misconduct. Id. at 1225. The court found that there was no
general duty to control the conduct of a third party to protect
another from harm “unless there is a special relationship . . . that
imposes a duty upon the actor to control the third person’s

                                19
conduct or unless there is a special relation between the actor
and the other . . . .” Id. at 1228. No such duty existed as to the
facility. Further, the court declined to adopt Section 319 of the
Restatement, which imposes a duty to prevent a third-person
from doing harm on “[o]ne who takes charge of a third person
whom he knows or should know to be likely to cause bodily
harm to others if not controlled.” Restatement (Second) Torts
§ 319. Based on balancing policy considerations,6 the court
stated:
       If we allow recovery against mental health and
       mental retardation providers for harm caused by
       patients except in the clearest circumstances, we
       would paralyze a sector of society that performs
       a valuable service to those in need of mental
       health care. Thus, we decline to impose a duty of
       ordinary care under Restatement (Second) of
       Torts [Section] 319 on providers of mental health
       and mental retardation services.
Id. at 1232; see also Heil v. Brown, 662 A.2d 669, 671 (Pa.
Super. Ct. 1995) (refusing to find common-law duty where a


       6
        These considerations include: “‘(1) the relationship
between the parties; (2) the social utility of the actor’s conduct;
(3) the nature of the risk imposed and the foreseeability of the
harm incurred; (4) the consequences of imposing a duty upon
the actor; (5) the overall public interest in the proposed
solution.’” Ferrara, 804 A.2d at 1231 (quoting Brisbine v.
Outside in Sch. of Experiential Educ., Inc., 799 A.2d 89, 95 (Pa.
Super. Ct. 2002)).

                                20
police officer was struck by a vehicle driven by a patient
receiving voluntary outpatient care from the defendant health
institution).
        We find this reasoning compelling and believe that, given
the opportunity, the Pennsylvania Supreme Court would adopt
a similar approach.7 It is unlikely that the Pennsylvania
Supreme Court would adopt a general common-law duty to
commit a patient or otherwise protect third parties from a mental
health patient absent a special relationship. Therefore, liability
cannot be based on a common-law duty owed to the four victims
in this case.




       7
        Dicta in Emerich suggests that there may be a duty
greater than simply the duty to warn. For example, the Supreme
Court indicated that mental health care professionals maintain
a special relationship with their patients. Emerich, 720 A.2d at
1037. It also referred to Section 319 of the Restatement
(Second) of Torts, which it cited “with approval” in its decision
in Goryeb v. Pennsylvania Department of Public Welfare, 575
A.2d 545, 549 (Pa. 1990). While this discussion indicates that
the Pennsylvania Supreme Court sees some value in imposing
a duty to control dangerous patients on mental healthcare
providers who take charge of these patients, there is no
indication that the Supreme Court would expand such a duty to
such an extent as to find a common-law duty to commit in a
situation such as the one presented here.

                               21
                                B.
       However, duties that give rise to claims sounding in tort
are not found only in common-law decisions. In 1976, the
Pennsylvania legislature passed the Mental Health Procedures
Act (“MHPA”). P.L. 817, No. 143 (1976). The relevant portion
reads:
       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, or that a person be discharged, or placed
       under partial hospitalization, outpatient care or
       leave of absence, or that the restraint upon such
       person be otherwise reduced, or a county
       administrator or other authorized person who
       denies an application for voluntary treatment or
       for involuntary emergency examination and
       treatment, shall not be civilly or criminally liable
       for such decision or for any of its consequences.
50 Pa. Cons. Stat. § 7114(a).
       Taking the converse of the statutory language, the
Pennsylvania Supreme Court has found an affirmative duty
exists requiring that mental health institutions avoid gross
negligence or willful misconduct in the treatment of mental
health patients. Sherk v. Dauphin, 614 A.2d 226, 232 (Pa.
1992). In the landmark case on the MHPA, Goryeb v.
Pennsylvania Department of Public Welfare, 575 A.2d 545 (Pa.


                                22
1990), the Pennsylvania Supreme Court held that the act’s
language, which limits liability, also expressly creates a duty:
       When a Commonwealth party participates in a
       decision that a person be examined, treated or
       discharged pursuant to the Mental Health
       Procedures Act, such a party shall not be civilly or
       criminally liable for such decision or for any of its
       consequences except in the case of willful
       misconduct or gross negligence. Conversely, and
       most importantly to the instant case, a
       Commonwealth party participating in a decision
       to examine, treat or discharge a mentally ill
       patient within the purview of the Mental Health
       Procedures Act who commits willful misconduct
       or gross negligence can be liable for such
       decision.
Id. at 548-49 (emphasis added).
        The Supreme Court further explicated the scope of the
duty created by the MHPA. The language in the MHPA states
that no liability will be imposed for the decision itself “or for
any of its consequences.” 50 Pa. Cons. Stat. § 7114(a).
“Clearly, the words ‘any of its consequences’ indicate the
legislative recognition that discharging a severely mentally
disabled person . . . is a potential serious danger not only to the
patient himself but to ‘others.’” Goryeb, 575 A.2d at 549.
Therefore, whenever a plaintiff can prove that the hospital failed
to meet its duty to refrain from gross negligence in decisions
regarding treatment, discharge or commitment of a patient, the
hospital is liable for injury “‘to the person or property of third

                                23
parties where such injury resulted from a hospital’s negligent
failure to meet its responsibility.’” Id. (quoting Vattimo v.
Lower Bucks Hosp., Inc., 465 A.2d 1231, 1240 (Pa. 1983)); see
also Sherk, 614 A.2d at 232.
       Based on Goryeb and Sherk, the Superior Court in
Ferrara found that there was a duty created by the Mental
Health and Mental Retardation Act, an act similar in structure
and purpose to the MHPA. Ferrara, 804 A.2d at 1233. The
court held that the Guidance Center, a non-profit organization
that provided only guidance to the residents of Group Home,
had a duty to refrain from gross negligence. Id. at 1233.8
Therefore, if LZ-II is a facility covered by the MHPA, then the
VA had a duty to refrain from gross negligence in its treatment
and discharge decisions regarding DeJesus.
                                1.
       The first question that presents itself under the MHPA is
whether Outzs-Cleveland and the other VA parties involved in
DeJesus’s release from LZ-II are subject to the MHPA. The VA
argues that, in this instance, they were not.9 The MHPA applies


       8
       The court ultimately found that the Guidance Center had
not behaved in a grossly negligent manner.
       9
        Under the FTCA, the federal government can only be
held liable for breaches of duties imposed on private, rather than
state, parties. United States v. Olson, 546 U.S. 43, 43 (2005)
(holding that the federal government cannot be held liable for
violating duties that are imposed solely on state governments
acting in their peculiar positions as governments). In this case,

                               24
to physicians or other authorized persons who “participate in” a
decision to treat or examine a person under the act, or a decision
regarding discharge.10 50 Pa. Cons. Stat. § 7114. “Treatment”
is defined as “diagnosis, evaluation, therapy, or rehabilitation
needed to alleviate pain and distress and to facilitate the
recovery of a person from mental illness and shall also include
care and other services that supplement treatment and aid or
promote such recovery.” 50 Pa. Cons. Stat. § 7104. It is
uncontraverted that Outzs-Cleveland treated DeJesus. As his
primary therapist, Outzs-Cleveland undertook therapy sessions
with DeJesus, provided him support, and helped him deal with
his substance abuse problems.
       Further, both Outzs-Cleveland and Dr. Chambers
participated in the decision to discharge DeJesus from LZ-II.
While the VA has argued that it was LZ-II, not the VA, that
ultimately decided to discharge DeJesus, the District Court
found that the VA and its employees were key players in all
decisions LZ-II made regarding DeJesus, particularly in the
decision to release DeJesus from LZ-II. We can reverse this


the VA has conceded that the MHPA applies to it even if the
MHPA is written so as to apply only to governmental entities in
Pennsylvania. If there is a duty in these circumstances under the
MHPA, the VA agrees that the duty applies to it. Therefore, we
do not engage in an analysis of whether providing mental health
assistance and committing patients is a duty that is peculiar to
Pennsylvania state mental health facilities as governmental
entities.
       10
            Discharge is not defined under the MHPA.

                                25
determination only if it is clearly erroneous. Miller v. Phila.
Geriatric Ctr., 463 F.3d 266, 270 (3d Cir. 2006). Based on the
fact that LZ-II consulted the VA staff extensively before making
a decision to release DeJesus and that the VA provided all
mental health care to LZ-II residents, we find that the District
Court did not err in its determination that the VA, and not LZ-II,
was primarily responsible for the decision to release DeJesus.
        However, determining that the VA provided physicians
and other authorized persons who participated in decisions
regarding DeJesus’s ultimate discharge does not bring it within
the MHPA. Rather, the VA is only liable under the duty
imposed by the MHPA if DeJesus was a patient at an
appropriate facility. The MHPA applies to “involuntary
treatment of mentally ill persons, whether inpatient or
outpatient, and for all voluntary inpatient treatment of mentally
ill persons.” 50 Pa. Cons. Stat. § 7103. Pennsylvania courts
have held that the MHPA does not apply to voluntary outpatient
treatment. Emerich, 720 A.2d at 1038 n.7; see also Chartiers
Comm. Mental Health & Retardation Center, Inc. v. Dept. of
Pub. Welfare, 696 A.2d 244, 247-48 (Pa. Commw. Ct. 1997).
        Prior to trial, both parties stipulated to the fact that, when
he was at LZ-II, DeJesus was receiving outpatient treatment
from the VA. However, that stipulation is not dispositive. In
the case before us, we are not examining the VA’s decision to
discharge DeJesus from the voluntary, outpatient treatment he
was receiving from Outzs-Cleveland and others at the VA.
Rather, we are examining the VA’s decision to have LZ-II
release DeJesus from the community in which he had been
living for over a year. Nothing in the MHPA requires that the
physician or other authorized person actually work for the

                                 26
inpatient facility where the patient is located. Rather, it requires
that a physician or authorized person “participates in” a decision
to treat or discharge the patient. Therefore, if DeJesus was an
inpatient at LZ-II, and the VA participated in a decision to treat
or discharge him, it may still be liable under the MHPA for
improperly suggesting that LZ-II discharge DeJesus and then
failing to commit him.
       Whether a community living facility like LZ-II
constitutes a facility that provides inpatient treatment is a
question of first impression for this Court and the Pennsylvania
courts. As in all cases that depend on statutory interpretation,
we begin with the language of the statute. Under the MHPA:
       “Inpatient treatment” shall include all treatment
       that requires full or part-time residence in a
       facility. For the purposes of this act, a “facility”
       means any mental health establishment, hospital,
       clinic, institution, center, day care center, base
       service unit, community mental health center, or
       part thereof, that provides for the diagnosis,
       treatment, care or rehabilitation of mentally ill
       persons, whether as inpatients or outpatients.
50 Pa. Cons. Stat. § 7103.
       Generally, the terms of the MHPA have been broadly
construed by Pennsylvania courts.11 For example, in Allen v.


       11
        The VA agreed to broad construction in its opening
brief submitted to this Court. “[T]his protection granted to
mental health workers is to be construed broadly . . . .”

                                27
Montgomery Hospital, 696 A.2d 1175 (Pa. 1997), the
Pennsylvania Supreme Court ruled that the limited liability
provision of the MHPA extended to care given by a physician in
a hospital for physical ailments plaguing a mentally ill patient.
“[T]he General Assembly did not intend to limit treatment to
that only directly related to a patient’s mental illness. Instead,
treatment is given a broader meaning in the MHPA to include
medical care coincident to mental health care.” Id. at 307. The
broad construction of the MHPA guides our interpretation of the
inpatient requirement and leads us to believe that the
Pennsylvania Supreme Court would find that, under the specific
facts of this case, LZ-II was providing inpatient treatment to
DeJesus.
        The District Court found the following facts: LZ-II had
rules by which its residents must abide to continue living there;
LZ-II residents were prohibited from having alcohol in their
rooms; residents at LZ-II were required to sign in and out of the
facility; LZ-II oversaw residents’ finances to ensure residents
were being fiscally responsible; LZ-II reserved the right to
conduct room searches at any time and conducted actual
searches on a weekly basis; as an LZ-II resident, DeJesus took
part in group therapy sessions and continued counseling in
substance abuse; as an LZ-II resident, DeJesus had around-the-
clock mental health help available to him; DeJesus had
continued access to his primary therapist. Based on these
specific facts, we conclude that DeJesus was an inpatient within
the meaning of the MHPA.
       DeJesus was not simply residing in an apartment
subsidized by LZ-II. Rather, he was a resident at a facility that
closely monitored nearly every aspect of his life: his job, his

                               28
daily movements, his finances, and his mental well-being. Even
his ability to retain his place of residence rested on his continued
willingness to abide by rules that limited his freedom and
involved a substantial reduction in his personal privacy. LZ-II,
in addition to providing DeJesus with a place to live, provided
him, through its contract with the VA, with 24-hour access to
mental health care, continued individual and group therapy, and
lessons in the life skills necessary for a recovering substance-
abuser with a history of mental instability to transition to life
outside the controlled walls of LZ-II. The combination of the
restrictions imposed on DeJesus and the services provided by
LZ-II make it an “institution . . . that provides for the diagnosis,
treatment, care or rehabilitation of mentally ill persons, whether
as outpatients or inpatients.” 50 Pa. Cons. Stat. § 7103.
         Even if LZ-II could not be termed an institution that
provides treatment of mentally ill persons in and of itself, it is
still a qualifying facility under the MHPA. Section 7103
includes in its definition of facility “any mental health
establishment . . . or part thereof” that treats mentally ill
persons. Id. (emphasis added). While LZ-II is a privately run
group home, its location, organization and funding make it “part
of” the VA Coatesville compound, which is clearly a qualifying
facility. LZ-II operates primarily on grant money from the VA.
It is located on the VA Coatesville property in a building owned
by the VA. It has a contract with the VA in which the VA
provides medical and psychiatric services as well as fire and
police protection. LZ-II conferences regularly with VA
counselors, psychologists, and psychiatrists regarding the
treatment of LZ-II residents, and the VA commonly transfers
patients from its inpatient Domiciliary Program to LZ-II as a

                                29
way for those patients to transition to life outside the facility.
These factors are sufficient to show that LZ-II was not an
isolated residential facility, but rather a part of an integrated
campus designed to serve the total health of veterans.
Therefore, at a minimum, LZ-II is “part of” a facility that
provides “diagnosis, treatment, care or rehabilitation of mentally
ill persons, whether as inpatients or outpatients.” Id.
        Further, while DeJesus’s interactions with VA therapy
may technically be termed “outpatient treatment,” viewing his
overall treatment in combination with his residence at LZ-II
indicates he was receiving voluntary, inpatient treatment. Under
the MHPA, “‘[i]npatient treatment’ shall include all treatment
that requires full or part-time residence in a facility.” Id. While
DeJesus could have continued to contact Outzs-Cleveland had
he lived anywhere, in order to receive around-the-clock mental
health assistance, continued group therapy, and the lessons in
life skills, in addition to his contact with Outzs-Cleveland,
DeJesus was required to maintain residence at LZ-II. The
restrictions placed on DeJesus by LZ-II, his continued therapy
with VA professionals, and the VA’s intimate relationship with
LZ-II, taken in the aggregate, satisfy us that DeJesus was
receiving inpatient treatment at a qualifying facility under the
MHPA. Because, as we have indicated above, the VA
participated in a decision to discharge DeJesus from that
inpatient facility, it had a duty to refrain from gross negligence
in that decision and its treatment of DeJesus.
                                2.
    Having determined that the VA had a duty under the
MHPA, we must next consider whether its behavior was

                                30
sufficiently negligent to meet the “gross negligence” standard
under the MHPA. In order to recover from an institution
involved in mental health decisions, a plaintiff must prove more
than simple negligence. The MHPA grants immunity to such
institutions unless the plaintiff can show willful conduct or gross
negligence. 50 Pa. Cons. Stat. § 7114(a).
       “It appears that the legislature intended to require
       that liability be premised on facts indicating more
       egregiously deviant conduct than ordinary
       carelessness, inadvertence, laxity, or indifference.
       We hold that the legislature intended the term
       gross negligence to mean a form of negligence
       where the facts support substantially more than
       ordinary carelessness, inadvertence, laxity, or
       indifference. The behavior of the defendant must
       be flagrant, grossly deviating from the ordinary
       standard of care.”
Albright v. Abbington Mem. Hosp., 696 A.2d 1159, 1164 (Pa.
1997) (quoting Bloom v. DuBois Reg’l Med. Ctr., 597 A.2d 671,
679 (Pa. Super. Ct. 1991)); Walsh v. Borczon, 881 A.2d 1, 7 (Pa.
Super. Ct. 2005). While the behavior must be more than simple
negligence, it need not reach the level of wanton conduct.
“Negligence consists of inattention or inadvertence, whereas
wantonness exists where 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.”
Bloom, 597 A.2d at 679. Gross negligence lies somewhere in
between.


                                 31
        In its very thorough decision, the District Court ruled that
the VA was grossly negligent in a number of ways. First, the
District Court found that the failure of any member of the VA
staff to be fully familiar with DeJesus’s medical condition was
a “gross deviation from the required standard of care in treating
a patient.” Further, the District Court ruled that the VA’s
decision to discharge DeJesus when he “was distressed and
irrational, displaying poor control of his violent urges by
brandishing a knife in his place of employment” and making
comments “that his Primary Therapist believed were potentially
suicidal” also constituted a gross breach of the standard of care.
Finally, the District Court ruled that the VA was negligent in
failing to commit or detain DeJesus for a psychiatric
consultation once he had been discharged from LZ-II. Given
DeJesus’s behavior on March 22, the District Court stated that
there was sufficient evidence to have DeJesus committed under
Pennsylvania law or the VA’s internal commitment procedures,
which require a “clear and present danger to [the patient] or
others.” However, as the VA staff was unclear about its own
commitment procedures and failed to conduct an appropriate
suicide or psychiatric assessment, its conduct was grossly
negligent. We review the District Court’s determination that the
VA acted in a grossly negligent manner for clear error. See
Rodriquez v. United States, 823 F.2d 735, 742 (3d Cir. 1987).
       The Pennsylvania cases finding only simple negligence
involve significantly less egregious breaches of the standard of
care than that exhibited here and often lack sufficient expert
testimony to prove the plaintiff’s case. For example, in
Albright, after the plaintiff’s wife missed an appointment, and
with only four days remaining in a 90-day involuntary outpatient

                                32
treatment program, the plaintiff contacted the hospital because
his wife was not taking her medication, seemed to be suffering
from a manic episode, was chain smoking and had left a turkey
to burn in the oven. The hospital responded by setting up an
appointment with the plaintiff’s wife after the holidays and
encouraging the plaintiff to bring her to the hospital for
involuntary commitment, a suggestion the plaintiff ignored.
Soon thereafter, the plaintiff’s wife was smoking carelessly and
burned down their house, taking her own life with it. The
Pennsylvania Supreme Court found this was insufficient to find
gross negligence. Albright, 696 A.2d at 1165-66. While the
hospital’s failure to follow-up when the plaintiff’s wife missed
an appointment may have been an exercise of poor judgment, id.
at 1167, the hospital did take some affirmative steps to repair the
error by scheduling an appointment and encouraging the
plaintiff to have his wife committed. Id. at 1166. “The purpose
of the [MHPA’s] immunity provision is to insulate mental health
employees and their employers from liability for the very
determination made by the Hospital here.” Id. at 1167.
       Unlike Albright, the District Court found that the VA had
more serious warning signs regarding DeJesus’s condition than
simply leaving a turkey burning in the oven. Further, no one on
the VA’s staff was familiar with DeJesus’s medical history, no
one scheduled any kind of an appointment after he called
distraught over his pending divorce, and there was insufficient
communication between members of the VA staff.
       Further, Camille and Faulk presented detailed expert
testimony by Dr. Goldstein indicating that the VA’s behavior
grossly deviated from the appropriate standard of care. Dr.
Goldstein testified that “the act of discharging [DeJesus] would

                                33
. . . take someone who’s already in crisis and . . . compound the
crisis many fold . . . . It’s very inexplicable.” He further
testified as to five specific breaches and characterized them as
“extreme and egregious”:
              Well, I’d have to say they were very
       extreme and egregious, really, because multiple,
       multiple breaches, breakdowns in the system,
       multiple deviations, departures from the accepted
       standard of care. And in addition, it was the
       factor of the dimension of it being known that the
       – in other words, the person with the clinical
       responsibility, [Outzs-Cleveland], recognized the
       risk, explained why there was a risk, very well
       documented notes, and then proceeded to do
       nothing about it.
             [I]n other words, she recognized the
       danger, and didn’t take appropriate steps, maybe
       because she didn’t know how to take them. So I
       would say it was a major, major breakdown.
In its findings of fact, the District Court explicitly stated that it
gave great credence to Dr. Goldstein’s testimony, a credibility
determination to which we give considerable deference. Dr.
Goldstein’s testimony, unlike the testimony in cases finding only
simple negligence, unequivocally stated that the breach of duty
in this case went beyond mere carelessness or inadvertence. It
was what Dr. Goldstein called “a major, major breakdown.”
See, e.g., Walsh, 881 A.2d at 8 (holding that there was
insufficient evidence of gross negligence where expert only
testified that clinic’s failure to follow-up with patient was

                                 34
“mismanagement” and “under-appreciation” of plaintiff’s
condition); Downey v. Crozer-Chester Med. Ctr., 817 A.2d 517,
26 (Pa. Super. Ct. 2003) (holding that expert’s testimony was
insufficient to establish gross negligence where expert
characterized hospital’s failure to supervise patient while
bathing only as a deviation from the standard of care).
       This case closely accords with a decision of the Court of
Common Pleas of Pennsylvania, Philadelphia County, which,
while in no way binding, is instructive. In Mertz v. Temple
University Hospital, 25 Pa. D. & C. 4th 541 (Pa. Comm. Pl.
1995), the court found sufficient evidence of gross negligence
where a hospital failed to commit a patient after he exhibited
signs of suicide. Id. at 557-58. The psychiatrist on duty failed
to do anything more than review the patient’s chart before
releasing him. The court ruled that the hospital should have
spent more time with the plaintiff and his medical records before
releasing him, resulting in the hospital’s liability for damages
resulting from his subsequent suicide. Id. at 558; see also
Bloom, 597 A.2d at 679 (sufficient evidence of gross negligence
to withstand summary judgment where patient was admitted to
the psychiatric unit, was not diagnosed or treated, and was later
found hanging by her shoelaces in a bathroom in the unit).
       In fact-intensive inquiries such as these, due deference is
owed to the District Court’s determination. Based on its
extensive factual findings and application of the facts to the law
of gross negligence, we are satisfied that the District Court’s
determination that the VA was grossly negligent is not only not
clearly erroneous, but is a correct decision.



                               35
                               VI.
        In summary, because DeJesus did not make a threat of
immediate harm against a readily identifiable victim, Camille’s
and Faulk’s failure-to-warn claims were properly dismissed.
However, the VA was under a statutory duty to refrain from
gross negligence in its treatment of DeJesus, and the District
Court did not err in its determination that the VA acted in such
a grossly negligent manner when it strongly encouraged LZ-II
to discharge DeJesus and then failed to commit him under its
procedures or Pennsylvania’s MHPA. These egregious breaches
of the appropriate standard of care resulted in the tragic shooting
deaths of four children and DeJesus’s own suicide. Therefore,
and for the reasons fully stated above, we will affirm the
judgment of the District Court.




                                36
