Estate of Grubbs v. Weld County Sheriff's Office

          ORDER

          PHILIP A. BRIMMER UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Rule 702 Motion to Exclude Dr. Metzner's Testimony [Docket No. 138] filed by defendants Correct Care Solutions, LLC and Christin Hernandez, Defendants the Weld County Sheriff's Office and the Board of County Commissioners of the County of Weld's Motion for Summary Judgment [Docket No. 139], and CCS and Nurse Hernandez's Motion for Summary Judgment [Docket No. 144]. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.

         I. BACKGROUND^[1]

         Shortly after midnight on March 27, 2014, Colorado State Patrol Trooper Travis Tyndall arrested Barton Grubbs for failing to drive in a single lane and driving while under the influence of alcohol or drugs. Docket No. 139 at 2, ¶ 1; Docket No. 144 at 2, ¶ 1. At Mr. Grubbs' request, Trooper Tyndall retrieved Mr. Grubbs' medications - a bottle of Valium and a bottle of Percocet - from the back seat of Mr. Grubbs' vehicle. Docket No. 139 at 2-3, ¶¶ 2-3; Docket No. 144 at 2, ¶¶ 4, 6. The generic name for Valium is diazepam, while Percocet consists of both oxycodone and acetaminophen. Docket No. 144 at 9, ¶ 65.^[2] Mr. Grubbs subsequently requested medical assistance for pain. Docket No. 139 at 3, ¶ 4; Docket No. 144 at 2, ¶ 7. Mountain View Fire Paramedics met Trooper Tyndall and Mr. Grubbs at a Colorado State Patrol substation, where they cleared Mr. Grubbs for transport to the Weld County Jail. Docket No. 139 at 3, ¶ 6; Docket No. 144 at 2, ¶ 8. After the paramedics confirmed that there was no indication Mr. Grubbs was abusing his prescriptions, Docket No. 144 at 2, ¶ 9; Docket No. 144-1 at 4, Mr. Grubbs was permitted to take one Valium and one Percocet in the presence of Trooper Tyndall and the paramedics. Docket No. 139 at 3, ¶ 7; Docket No. 144 at 2, ¶ 10. In preparation for transport to the Weld County Jail, Trooper Tyndall had Mr. Grubbs put on his coat and place his medications in his coat pocket. Docket No. 139 at 3, ¶ 8; Docket No. 144 at 3, ¶¶ 12-13. Mr. Grubbs was then transported to the jail with his hands cuffed behind his back. Docket No. 139 at 3, ¶ 9; Docket No. 144 at 3, ¶¶ 15-16.

         Once they had arrived at the Weld County Jail, Trooper Tyndall escorted Mr. Grubbs from the sally port into the booking vestibule. Docket No. 139 at 3, ¶ 10; Docket No. 144 at 3, ¶ 17. A sign on the door between the sally port and the booking vestibule stated: “STOP ALL ARRESTEES WILL NOT BE ACCEPTED UNLESS THEY ARE RESTRAINED BEHIND THEIR BACK OR BELLY BELTED.” Docket No. 139 at 4, ¶ 11; Docket No. 144 at 3, ¶ 18; Docket No. 144-4.^[3] When they were inside the booking vestibule, Trooper Tyndall removed Mr. Grubbs' handcuffs and had him take a seat on a bench. Docket No. 139 at 4, ¶ 12; Docket No. 144 at 4, ¶ 21. T rooper Tyndall then turned his back to Mr. Grubbs and began preparing Mr. Grubbs' arrest paperwork. Docket No. 139 at 4, ¶ 13; Docket No. 144 at 4, ¶ 23. W hile Trooper Tyndall's back was turned, Mr. Grubbs took the pill bottles out of his pocket and ingested all of the Valium and all but 11/2 of his Percocet pills. Docket No. 139 at 4, ¶ 14; Docket No. 144 at 4, ¶ 25.

         Deputy Eric Sutherland, of the Weld County Sheriff's Department, arrived in the booking vestibule and informed Trooper Tyndall that arrestees must remain restrained until uncuffed by a Weld County Sheriff Deputy. Docket No. 139 at 4, ¶ 15; Docket No. 144 at 4, ¶ 26.^[4] Trooper Tyndall advised Deputy Sutherland that Mr. Grubbs had medications on his person. Docket No. 139 at 4, ¶ 16; Docket No. 144 at 4, ¶ 28. Deputy Sutherland called Nurse Christin Hernandez, an employee of CCS, to check Mr. Grubbs' medication into the jail. Docket No. 139 at 5, ¶¶ 19, 21; Docket No. 144 at 4, 7, ¶¶ 29, 44; Docket No. 169 at 3, ¶ 19; Docket No. 145-2 at 1. W hile he was waiting for Nurse Hernandez to arrive, Deputy Sutherland searched Mr. Grubbs and found the medication bottles. Docket No. 139 at 5, ¶ 17; Docket No. 144 at 5, ¶ 30. Af ter seeing the bottles, Trooper Tyndall told Deputy Sutherland and Nurse Hernandez that there was a possibility that an unknown number of pills were missing or that he could be mistaken as to what the bottles originally contained. Docket No. 139 at 6, ¶ 26; Docket No. 144 at 5, ¶ 36.^[5] Trooper Tyndall and Deputy Sutherland both asked Mr. Grubbs if he had taken any additional medication; Mr. Grubbs responded “no.” Docket No. 139 at 6, ¶¶ 25, 27; Docket No. 144 at 5, ¶¶ 33-34. Deputy Sutherland asked Mr. Grubbs if he had ever attempted suicide or if he would tell Deputy Sutherland if he had thoughts of suicide. Docket No. 139 at 6, ¶ 30; Docket No. 144 at 6, ¶ 40. Mr. Grubbs responded “no” to both questions. Docket No. 139 at 6, ¶ 30; Docket No. 144 at 6, ¶ 40. Deputy Sutherland requested a suicide staffing for Mr. Grubbs. Docket No. 139 at 7, ¶ 36; Docket No. 144 at 7, ¶ 45. Nurse Hernandez also took Mr. Grubbs' vital signs. Docket No. 139 at 7, ¶ 32; Docket No. 144 at 6, ¶ 42.^[6]

         Nurse Hernandez and Deputy Jennifer Lenderink then conducted Mr. Grubbs' suicide staffing. Docket No. 139 at 8, ¶ 41; Docket No. 144 at 7, ¶ 46.^[7] During the staffing, Mr. Grubbs indicated that he had had thoughts of suicide in the past but was not currently suicidal. Docket No. 139 at 8-9, ¶ 42; Docket No. 144 at 7, ¶ 48; Docket No. 139-8 at 2-3.^[8] After initially denying that he took any extra medications, Mr. Grubbs admitted to Nurse Hernandez and Deputy Lenderink that he had taken approximately 70 Valium pills in the booking vestibule. Docket No. 139 at 9, ¶¶ 44-45; Docket No. 144 at 7-8, ¶¶ 51-53.^[9] After taking Mr. Grubbs' vital signs a second time, Docket No. 139 at 9, ¶ 47; Docket No. 144 at 8, ¶ 55, Nurse Hernandez and Deputy Lenderink placed Mr. Grubbs on Level 1 suicide watch and assigned him to housing Unit 6. Docket No. 139 at 10, ¶ 51; Docket No. 144 at 8, ¶ 56.^[10] At some point between 8:30 a.m. and 8:53 a.m., Mr. Grubbs was found unresponsive in his cell. Docket No. 139 at 11, ¶ 60; Docket No. 144 at 9, ¶ 63; Docket No. 164 at 8, ¶ 63; Docket No. 144-22 at 2; Docket No. 164-13 at 3. Mr. Grubbs was transported to Northern Colorado Medical Center where he died on March 28, 2014. Docket No. 139 at 11, ¶ 61; Docket No. 139-13 at 2.^[11] The autopsy report lists Mr. Grubbs' cause of death as “complications of combined diazepam and oxycodone toxicity” and the manner of death as “suicide.” Docket No. 139 at 12, ¶ 63; Docket No. 144 at 9, ¶¶ 64, 66.

         Plaintiffs filed this lawsuit on March 25, 2016. Docket No. 1. The operative complaint, filed on July 26, 2016, asserts six claims for relief: (1) wrongful death under Colo. Rev. Stat. § 13-21-202; (2) a claim for expenses related to Mr. Grubbs' death under Colo. Rev. Stat. § 13-20-101; (3) deliberate indifference to medical needs under 42 U.S.C. § 1983; (4) adoption of an official policy under 42 U.S.C. § 1983; (5) failure to adequately train or supervise under 42 U.S.C. § 1983; and (6) common law negligence. Docket No. 66 at 22-34, ¶¶ 187-285. Plaintiffs' first through third claims for relief are asserted against all defendants, whereas plaintiffs' fourth and fifth claims are asserted only against the Weld County defendants, and their sixth claim is asserted only against Nurse Hernandez. See Id. On August 9, 2016, Magistrate Judge Nina Y. Wang granted defendants' motion to designate Trooper Tyndall as a non-party at fault under Colo. Rev. Stat. § 13-21-111.5(3)(b). Docket No. 75.^[12] On March 8, 2017, this Court dismissed plaintiffs' third claim for relief as to CCS and the Weld County defendants. Docket No. 92 at 21-22. The Court further dismissed plaintiffs' fourth and fifth claims for relief in their entirety. Id.

         On January 17, 2018, the CCS defendants filed a motion to exclude the testimony of plaintiffs' expert, Dr. Jeffrey L. Metzner, pursuant to Fed.R.Evid. 702. Docket No. 138. On January 24, 2018, the Weld County defendants filed a motion for summary judgment on plaintiffs' wrongful death claims. Docket No. 139. On February 7, 2018, the CCS defendants filed a motion for summary judgment seeking dismissal of CCS from the lawsuit and an order declaring Trooper Tyndall negligent as a matter of law. Docket No. 144.

         II. MOTION TO EXCLUDE PURSUANT TO RULE 702

         The Court will begin by addressing the CCS defendants' Rule 702 motion.

         A. Legal Standard

         The admissibility of expert testimony is governed by Federal Rule of Evidence 702, which provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. As the rule makes clear, while required, it is not sufficient that an expert be qualified based upon knowledge, skill, experience, training, or education to give opinions in a particular subject area. Instead, the Court must “perform[] a two-step analysis.” 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006). After determining whether the expert is qualified, the Court must assess whether the specific proffered opinions are reliable. See id.; Fed.R.Evid. 702 (requiring that the testimony be “based on sufficient facts or data, ” be the “product of reliable principles and methods, ” and reflect a reliable application of “the principles and methods to the facts of the case”).

         Rule 702 thus imposes on the district court a “gatekeeper function to ‘ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.'” United States v. Gabaldon, 389 F.3d 1090, 1098 (10th Cir. 2004) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). To perform this role, the Court must “assess the reasoning and methodology underlying the expert's opinion, and determine whether it is both scientifically valid and applicable to a particular set of facts.” Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003) (citing Daubert, 509 U.S. at 592-93). In assessing reliability, “the court may consider several nondispositive factors: (1) whether the proferred theory can and has been tested; (2) whether the theory has been subject to peer review; (3) the known or potential rate of error; and (4) the general acceptance of a methodology in the relevant scientific community.” 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006). These factors are not applicable in every case. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 150-53 (1999). Indeed, the trial court has “the sam e kind of latitude in deciding how to test an expert's reliability . . . as it enjoys when it decides whether or not that expert's relevant testimony is reliable.” Id. at 152. Regardless of the specific factors applied, however, the objective of Daubert's gatekeeping requirement remains the same: to ensure that an expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id.

         Although the proponent of the challenged testimony has the burden of establishing admissibility, United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (citing Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 970 n.4 (10th Cir. 2001)), the reliability standard does not require proof “that the opinion is objectively correct, but only that the witness has sufficient expertise to choose and apply a methodology, that the methodology applied was reliable, that sufficient facts and data as required by the methodology were used and that the methodology was otherwise reliably applied.” United States v. Crabbe, 556 F.Supp.2d 1217, 1221 (D. Colo. 2008) (internal citation omitted).

         Assuming the standard for reliability is met, the Court must also ensure that the proffered testimony will assist the trier of fact. See Kumho Tire, 526 U.S. at 156; United States v. Rodriguez-Felix, 450 F.3d 1117, 1122-23 (10th Cir. 2006). “Relevant expert testimony must logically advance[ ] a material aspect of the case and be sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.” United States v. Garcia, 635 F.3d 472, 476 (10th Cir. 2011) (internal quotation marks and citations omitted). In assessing whether expert testimony will assist the trier of fact, the Court should also consider “whether the testimony ‘is within the juror's common knowledge and experience,' and ‘whether it will usurp the juror's role of evaluating a witness's credibility.'” Id. at 476-77 (quoting Rodriguez-Felix, 450 F.3d at 1123).

         B. Analysis

         Plaintiffs have designated Dr. Jeffrey L. Metzner, a licensed forensic psychiatrist, to testify regarding “the appropriate protocols in correctional health care, ” Docket No. 151-3 at 1, and specifically, the propriety of Nurse Hernandez's response to Mr. Grubbs' statement that he had ingested Valium and the preventability of Mr. Grubbs' death after that statement. See generally Docket No. 138-5. In his expert report, Dr. Metzner opines that Mr. Grubbs received inadequate care due to Nurse Hernandez's failure to contact the on-call physician, Nurse Hernandez's and Nurse Weatherwax's failure to obtain an emergency mental health consultation, Nurse Hernandez's lack of qualifications to perform a suicide risk assessment, and the insufficiency of the walkthroughs performed by correctional officers as part of the Level 1 suicide watch (“SUW1”) process. Id. at 10. Dr. Metzner concludes that Mr. Grubbs' death would have been preventable had he received adequate mental health and/or medical treatment during his time at the Weld County Jail. Id.

         Defendants move to exclude Dr. Metzner's testimony on four grounds: (1) as a forensic psychiatrist, he is not qualified to opine as to the standard of care for nurses; (2) his testimony is irrelevant to the issues in this case; (3) he is not qualified to testify as to whether Mr. Grubbs' death was preventable following completion of the suicide staffing; and (4) his opinion regarding preventability is unreliable. Docket No. 138.^[13]

         1. Standard of Care Opinions

         Defendants argue that Dr. Metzner is not qualified to testify as to the standard of care applicable to licensed practical nurses because he is a forensic and correctional psychiatrist, has minimal experience training and supervising other psychiatrists, and has never directly supervised correctional nurses. Docket No. 138 at 5, 9. Plaintiffs respond by highlighting Dr. Metzner's experience “defin[ing] and set[ting] the standards for mental health medical care in correctional facilities” and his “numerous positions, honors, memberships, publications, peered [sic] reviewed journals, books, and reviewed books” demonstrating his qualifications as a correctional psychiatrist. Docket No. 151 at 4. Plaintiffs also argue that Dr. Metzner “has not been disclosed to testify regarding nurse standard of care issues.” Id. at 5. They assert that Dr. Metzner's testimony will be limited to “Nurse Hernandez's role in correctional health care, ” “the communication a nurse has with a physician in the context of correctional health care, ” and “the standard of care in correctional health care.” Id. at 5-7.

         As an initial matter, defendants' challenge fails to comply with this Court's Practice Standards, which state that a Rule 702 motion “shall identify with specificity each opinion the moving party seeks to exclude.” Practice Standards (Civil Cases), Judge Philip A. Brimmer, § III.G. Defendants seek to exclude any testimony by Dr. Metzner regarding “practical nursing, ” “Nurse Hernandez' care, ” and the “nursing standard of care.” See Docket No. 138 at 5, 9. This formulation is imprecise because it fails to challenge Dr. Metzner's opinions as they appear in his expert report. See Docket No. 138 at 5, 9; see also White v. Deere & Co., No. 13-cv-02173-PAB-NYW, 2016 WL 482712, at *2 (D. Colo. Feb. 8, 2016) (defendants failed to identify expert opinions with specificity where they challenged the opinions as summarized in defendants' motion to exclude and not as they originally appeared in the expert's report). To the extent that defendants urge the Court to categorically bar any testimony by Dr. Metzner concerning the care provided by Nurse Hernandez, the Court declines to do so. Neither federal law governing the admissibility of expert testimony nor Colorado law governing the competency of medical witnesses supports a rule that a physician is never qualified to opine as to the sufficiency of medical care provided by nursing staff. See Gomez v. Palmer, 2016 WL 212952, at *4 (N.D. Ill. Jan. 19, 2016) (finding doctor qualified to opine on treatment provided by nurses in prison setting where doctor had experience working with licensed practical nurses); Sanford v. Stewart, 2013 WL 3729175, at *3 (N.D. Ohio July 12, 2013) (holding doctor qualified to opine on actions of nursing staff where testimony did not address nursing standards of care but rather basic medical standards regarding when a nurse must report patient symptoms to a physician); Hall v. Frankel, 190 P.3d 852, 858 (Colo.App. 2008) (stating rule that “[a] trial court shall not permit an expert in one medical specialty to testify against a physician in another specialty unless the expert demonstrates a substantial familiarity with the other specialty and a similarity between the standards of care in the two fields” (emphasis added)).

         Although defendants' argument lacks the requisite level of specificity under this Court's practice standards, defendants clearly challenge the opinion, expressed during Dr. Metzner's deposition, that “Nurse Hernandez should have believed Mr. Grubbs when Mr. Grubbs said during the suicide staffing that he took the pills.” Docket No. 138 at 5 (citing Docket No. 138-9 at 25, 93:4-95:7). Accordingly, the Court will confine its Rule 702 analysis to that opinion.^[14]

         The admissibility of Dr. Metzner's opinion “hinges on both state substantive law and federal procedural law.” Nicholson v. Evangelical Lutheran Good Samaritan Society, Inc., 2017 WL 3127799, at *29 (D.N.M. July 21, 2017). While Rule 702 governs the admissibility of expert testimony in diversity cases, Sims v. Great Am. Life Ins. Co., 469 F.3d 870, 883 (10th Cir. 2006), a witness's competency to testify regarding a substantive issue, such as the medical standard of care, is dictated by state law. See McDowell v. Brown, 392 F.3d 1283, 1295 (11th Cir. 2004); see also Fed. R. Evid. 601 (“[I]n a civil case, state law governs the witness's competency regarding a claim or defense for which state law supplies the rule of decision.”).^[15]

         Under Colorado law, an expert in one medical specialty may testify regarding the standard of care applicable to a different medical speciality if (1) the testifying expert “is, by reason of knowledge, skill, experience, training, or education, so substantially familiar with the standard of care applicable . . . as to render the witness' opinion testimony as well-informed as would be the opinion of an expert witness practicing in the same specialty as the defendant, ” or (2) the “standard of care for the condition in question is substantially identical for both specialties.” Melville v. Southward, 791 P.2d 383, 388-89 (Colo. 1990). Courts in this district have applied these standards in medical malpractice cases involving non-physician defendants. See, e.g., Harvey v. United States, No. 04-cv-188-WYD-CBS, 2006 WL 1980623, at *4, *6 (D. Colo. July 13, 2006) (holding, under admissibility rules articulated in Melville, that nurse expert was not qualified to opine regarding standards of care for physicians or physicians assistants in Colorado).

         The Court agrees with defendants that Dr. Metzner is not qualified to opine as to whether Nurse Hernandez breached the nursing standard of care. Although Dr. Metzner testified that he has developed mental health trainings for health care staff and monitored trainings delivered to LPNs, Docket No. 138-9 at 4-5, 25, 12:7-13:10, 95:8-96:6, there is no evidence that he has directly supervised LPNs, received formal training in nursing standards of care, or worked in such close proximity to nursing staff as to become familiar with the applicable standards.

         On the other hand, the Court finds that the combination of Dr. Metzner's psychiatry background and his many years of experience developing policies and practices for correctional health care qualifies him to express an opinion as to whether an individual trained in conducting suicide assessments should have believed Mr. Grubbs when he said he had ingested the pills. Dr. Metzner has been working as a licensed psychiatrist in correctional health care settings for nearly forty years. See Docket No. 138-9 at 2-3, 4:22-5:16; Docket No. 138-11 at 1. In 1980, he serv ed as the chief of psychiatry for the Colorado Department of Corrections (“CDOC”) and worked to develop policies and procedures to remedy deficiencies in CDOC's psychiatric services. Docket No. 138-9 at 3, 7:11-25. Since that time, Dr. Metzner has served as a clinical professor of psychiatry at the University of Colorado Health Sciences Center and as a court-appointed monitor in mental health litigation, ensuring proper implementation of court-ordered remedial plans at correctional facilities across the country. Id. at 7-9, 23:4-32:5; Docket No. 138-11 at 1, 5-6; see, e.g., McClendon v. City of Albuquerque, 2015 WL 13667177, at *2 (D.N.M. Oct. 13, 2015) (discussing appointment of Dr. Metzner as expert “to evaluate conditions of confinement” at the Metropolitan Detention Center).

         These experiences indicate that Dr. Metzner is familiar with the provision of psychiatric care in a correctional setting. They also qualify him to state that an individual adequately trained in conducting suicide assessments should have believed Mr. Grubbs when Mr. Grubbs said he had ingested the pills. Such an opinion does not depend on Dr. Metzner's knowledge of the standard of care applicable to LPNs. Dr. Metzner cited three bases for his conclusion that Nurse Hernandez should have believed Mr. Grubbs: (1) people who are suicidal are often ambivalent about killing themselves; (2) people will often not tell the truth about being suicidal because they do not want to be stopped from killing themselves; and (3) Trooper Tyndall indicated that there might be pills missing from the two pill bottles. Docket No. 138-9 at 25, 93:4-95:3. Dr. Metzner stated that he would not “be real critical about [an LPN] not being aware” of the first two points; however, he indicated that any such lack of awareness on the part of Nurse Hernandez would demonstrate that she was not qualified to conduct a suicide risk assessment. Docket No. 138-9 at 26, 97:12-98:1. This opinion does not require Dr. Metzner to have knowledge of the standard of care applicable to LPNs.

         An issue arises as to what claim testimony about Nurse Hernandez's qualifications to conduct a suicide risk assessment would support. Because Dr. Metzner is not qualified to testify about an LPN's standard of care, his opinions cannot support plaintiffs' negligence claim against Nurse Hernandez. Plaintiffs' claim against Weld County for failure to train its employees was dismissed, Docket No. 92 at 19, and, in any event, did not include allegations concerning CCS or Nurse Hernandez. Moreover, plaintiffs deny making a direct claim against CCS for negligence. See Docket No. 144 at 10, ¶ 75; Docket No. 164 at 10, ¶ 75. Finally, plaintiffs provide no explanation of how Dr. Metzner's testimony about the standards for properly conducting a suicide assessment would be relevant to whether Nurse Hernandez was deliberately indifferent under plaintiffs' third claim. As a result, this testimony, while not subject to exclusion under Rule 702, appears to be irrelevant.

         2. Causation Opinions

         Defendants contend that Dr. Metzner's opinion regarding the preventability of Mr. Grubbs' death at a particular point in time is inadmissible on grounds that (1) Dr. Metzner is not sufficiently knowledgeable about pharmacokinetics, pharmacodynamics, overdose reversal, and resuscitation measures to offer such an opinion; and (2) the opinion is unreliable. Docket No. 138 at 10-15. Plaintiffs' primary response is that defendants' challenge rests on facts not in the record. Docket No. 151 at 10, 12-13. They also assert that Dr. Metzner “testified consistent with the correctional standard of healthcare” and talked “at length” about pharmacokinetics and pharmacodynamics. Id. at 12. Finally, plaintiffs argue that Dr. Metzner does ...