DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
5
LILLIAN SUTHERLAND,
5
5
Plaintiff,
5
2006-CV-0001
v.
5
5
HYANNIS AIR SERVICES, INC. d/b/a 5
CAPE AIR,
5
5
Defendant.
5
____________________________________5
TO:
Lee J. Rohn, Esq.
Michael C. Quinn, Esq.
ORDER REGARDING PLAINTIFF’S MOTION TO QUASH SUBPOENA DUCES
TECUM
THIS MATTER came before the Court upon Plaintiff’s Motion to Quash Subpoena
Duces Tecum Regarding Dr. Jett (Docket No. 91).  Defendant filed an opposition to said
motion.  The time for filing a reply has expired.
Plaintiff claims that Dr. Jett has been designated as an expert witness and has
submitted a report as required of expert witnesses pursuant to Fed. R. Civ. P. 26(a)(2)(B). 
Based upon such designation, Plaintiff seeks to quash the subpoena duces tecum served
upon Dr. Jett by Defendant, requesting the production of Plaintiff’s medical records, among
other documents.  In opposition, Defendant states that despite Dr. Jett’s designation as an
Case: 1:06-cv-00001-RLF-GWC   Document #: 97   Filed: 12/23/08   Page 1 of 5
Sutherland v. Hyannis Air Services, Inc.
2006-CV-0001
Order Regarding Plaintiff’s Motion to Quash
Page 2
expert witness, he also has been identified by Plaintiff as a “treating physician,” and, thus,
may be treated as an ordinary fact witness and subject to the subpoena at issue.  Defendant
further states that it intends to depose Dr. Jett as a fact witness and, in anticipation of such
deposition, requests that the Court determine the fees it must pay associated with such
deposition.
A review of the caselaw related to both of these issues reveals no controlling
opinions issued in this jurisdiction.
[W]here there is no controlling case on point, “the issue, essentially, boils
down to policy.” . . .  Moreover, as indicated by Fed. R. Civ. P. 83(a)(1), the
district court's local rules reflect a considered decision by a majority of its
district judges and are thus binding on both the parties and the promulgating
court.
Yazdani v. Pan-American Life Ins. Co., No. Civ. S-02-1418, 2002 WL 32098288 at *2 (D. Md.
November 25, 2005) (quoting Demar v. United States, 1999 F.R.D. 617, 618 (N.D. Ill. 2001)
(footnote omitted)).
With regard to the issue concerning Defendant deposing Dr. Jett as a fact witness,
the Court finds the Explanatory Notes to Rule 26.3 of the Local Rules of Civil Procedure
instructive.  It notes that the order authorizing the amendment of this rule stated,” [O]ther
witnesses who may also be qualified to give expert testimony, e.g. treating physicians, are
treated by the federal and local rules as ordinary witnesses whose evidence is fully
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Sutherland v. Hyannis Air Services, Inc.
2006-CV-0001
Order Regarding Plaintiff’s Motion to Quash
Page 3
discoverable.”  LRCi 26.3, Editor’s Note.  The Court also takes guidance from the opinion
in McReynolds v. Bigler,  No. 88-1343-C, 1990 WL 129454 at *2-3 (D. Kan. August 6, 1990),
where the court states:
[I]s the treating physician a fact witness or an expert? Generally, a physician
who testifies on information and opinions developed and drawn during the
treatment of the party as a patient is considered to be an ordinary fact
witness rather than an expert. . . .
Of course, a witness may be both an expert witness under Rule
26(b)(4) as to some matters and an ordinary witness on other areas.  Marine
Petroleum Co. v. Champlin Petroleum Co., 641 F.2d 984, 992 (D.C. Cir. 1980).  It
is critical to determine when the testimony of the treating physician is no
longer that of merely an observer or actor in the occurrence and becomes that
of an expert witness.  There is no single bright line test to use in this
determination.  This court is comfortable with viewing the treating physician
as a fact witness if the testimony concerns information, conclusions and
opinions which were obtained in the course of treating the party and which
were necessary to make in rendering this treatment.  Opinion testimony on
the previous care given to the party or on medical matters unrelated to the
actual care and treatment eventually administered to the party elevates the
treating physician to the status of an expert witness covered by Rule 26(b)(4).
Id. (citations omitted) (cited in Kennedy v. United States, No. 07-1093-JTM, 2008 WL 717851
at *2-3 (D. Kan. March 17, 2008) (slip copy)).
In this matter, Plaintiff does not dispute Defendant’s contention that Plaintiff has
identified Dr. Jett as a treating physician in addition to designating him as an expert. 
Consequently, the Court finds that Defendant is entitled to depose Dr. Jett as a fact witness
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Sutherland v. Hyannis Air Services, Inc.
2006-CV-0001
Order Regarding Plaintiff’s Motion to Quash
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and question him regarding any information, observations, etc. that Dr. Jett obtained
during his care and treatment of Plaintiff and that Dr. Jett is subject to the subpoena and
must produce Plaintiff’s medical records generated during such treatment by Dr. Jett.
As stated previously, no controlling case on point exists regarding the proper
witness fees for Dr. Jett for his deposition as a fact witness.  As observed by the Yazdani
court,
“[T]here is a split among the district courts that have addressed this issue as
to whether treating physicians testifying about their opinions based on facts
learned during treatment should be compensated under 28 U.S.C.A. § 1821,
or under the more generous “reasonable fee” standard of Fed. R. Civ. P.
26(b)(4)(C).  See Demar v. United States, 199 F.R.D. 617, 618 (N.D. Ill.2001) and
cases cited therein.
2002 WL 32098288 at *2. (footnotes omitted).  Because the Court has found that Defendant
may depose Dr. Jett as an ordinary fact witness and based upon Defendant’s representation
that if it desires to depose Dr. Jett as an expert witness it will give proper notice and pay
his reasonable expert fee at such time, the Court finds that the witness fee pursuant to 28
U.S.C. § 1821 is appropriate.
Accordingly, it is now hereby ORDERED:
1.
Plaintiff’s Motion to Quash Subpoena Duces Tecum Regarding Dr. Jett
(Docket No. 91) is DENIED.
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Sutherland v. Hyannis Air Services, Inc.
2006-CV-0001
Order Regarding Plaintiff’s Motion to Quash
Page 5
2.
Defendant may issue a proper notice of deposition of Dr. Jett as a fact
witness.
3.
In the event Defendant deposes Dr. Jett strictly as a fact witness regarding
Dr. Jetts’ care and treatment of Plaintiff, Defendant may pay Dr. Jett the
attendance fee as provided in 28 U.S.C. § 1821.
ENTER:
Dated: December 23, 2008
                                /s/                                    
GEORGE W. CANNON, JR.
U.S. MAGISTRATE JUDGE
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