NOS. 5-99-0237, 5-99-0573 CONS.

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

________________________________________________________________________

DAWN WOOLVERTON,				)  Appeal from the   

							)  Circuit Court of 

     Plaintiff-Appellee,				)  Madison County.

							)

v.							)  No. 96-L-790

							)

MARIAH McCRACKEN,				)  

								)  

     Defendant-Appellant.					)

______________________________________	)

								)

GENEVIEVE EHRHART,				)

								)

     Plaintiff-Appellee,					)

								)

v.								)  No. 97-L-636

								)

JACLYN M. HALEMEYER,				)

								)

     Defendant-Appellant,					)

								)

and								)

								)

FREDERICK ANDREW REAVILL			)

and ECOLAB, INC.,					)  Honorable

								)  Philip J. Kardis,

     Defendants.						)  Judge, presiding.

________________________________________________________________________

	JUSTICE GOLDENHERSH delivered the opinion of the court:

	In separate lawsuits filed in the circuit court of Madison County, plaintiff Dawn

Woolverton obtained a judgment for damages in the amount of $9,319.63 against Mariah

McCracken, and plaintiff Genevieve Ehrhart obtained a judgment for damages in the amount

of $2,898.40 against Jaclyn M. Halemeyer, Frederick Andrew Reavill, and Ecolab, Inc.  The

same trial judge presided over both cases.  In each case, the plaintiff filed a posttrial motion for costs, requesting that certain costs be taxed against the defendant or defendants,

including costs in the form of treating physicians' hourly fees for giving evidence

depositions used at the trial.  The defendants objected to the plaintiffs' requests to tax as

costs the fees charged by the plaintiffs' treating physicians.  In the Woolverton case, the trial

court awarded the plaintiff $800 for the professional witness fees of Dr. Knapp ($500) and

Dr. Cheely ($300).  In the Ehrhart case, the trial court awarded the plaintiff $1,200 for the

professional witness fees of Dr. Randall Rogalsky ($600) and Dr. Judson Martin ($600). 

McCracken and Halemeyer (defendants) filed timely notices of appeal objecting to the

awards to Woolverton and Ehrhart (plaintiffs) of the costs of the treating physicians'

evidence deposition fees.  Upon the motion of plaintiffs, cause No. 5-99-0237 (Woolverton)

and cause No. 5-99-0573 (Ehrhart) have been consolidated for appeal.  The issue in each

case is whether the trial judge erred in awarding as costs the fees charged by the plaintiff's

treating physicians for giving evidence depositions used at the trial.  We affirm.     

	ANALYSIS

	Defendants contend that the money paid by plaintiffs to their treating physicians for

the time spent giving evidence depositions so that the physicians would not have to appear

at the trial was an ordinary expense of litigation, not taxable as costs.  Defendants insist that

there is no statutory authority or case law that allows for the taxing of costs for the time of

plaintiffs' treating physicians in giving their evidence depositions.  Plaintiffs reply that the

trial judge's determination to allow plaintiffs to recover from defendants the professional

witness fees of plaintiffs' treating physicians was not an abuse of discretion.  Plaintiffs

submit that the circumstances surrounding the giving of an evidence deposition are not

inherently different from the circumstances surrounding a discovery deposition and that

taxing the professional fees of plaintiffs' treating physicians for the time they spent giving

their evidence depositions is within the spirit and intent upon which Supreme Court Rule 204 (166 Ill. 2d R. 204) and Supreme Court Rule 208 (134 Ill. 2d R. 208) are premised. 

	The Illinois Supreme Court has defined costs as "allowances in the nature of

incidental damages awarded by law to reimburse the prevailing party, to some extent at least,

for the expenses necessarily incurred in the assertion of his rights in court."  Galowich v. Beech Aircraft Corp., 92 Ill. 2d 157, 165-66, 441 N.E.2d 318, 321 (1982) (Galowich I).  Defendants correctly point out that, at common law, a successful litigant was not allowed

to recover the costs of litigation from his opponent (Galowich I, 92 Ill. 2d at 162, 441 N.E.2d at 320; Gleason v. Carter, 212 Ill. App. 3d 206, 208, 570 N.E.2d 1196, 1197 (1991)).  Accordingly, before costs can be allocated to the losing party in a lawsuit, there

must be statutory authority, and any assessed costs are limited to those specifically allowed

by statute.  Galowich I, 92 Ill. 2d at 162, 441 N.E.2d at 320.  However, "[w]hile the power to impose costs must ultimately be found in some statute, the General Assembly may grant

the power in general terms to the courts, which may in turn make rules or orders under

which costs may be taxed and imposed."  Gebelein v. Blumfield, 231 Ill. App. 3d 1011, 1013, 597 N.E.2d 265, 267 (1992); see also Galowich I, 92 Ill. 2d at 162, 441 N.E.2d at 320.

	Section 5-108 of the Code of Civil Procedure provides as follows:

		"Plaintiff to recover costs.  If any person sues in any court of this state in any

action for damages personal to the plaintiff[] and recovers in such action, then

judgment shall be entered in favor of the plaintiff to recover costs against the

defendant, to be taxed, and the same shall be recovered and enforced as other

judgments for the payment of money ***."  735 ILCS 5/5-108 (West 1998).

While this statute authorizes the award of costs to a successful plaintiff, it does not specify

what items of costs are allowable.  Plaintiffs rely on Supreme Court Rules 204(c) and 208(d)

(166 Ill. 2d R. 204(c); 134 Ill. 2d R. 208(d)), which they allege grant the specific authority

necessary to tax as costs the professional fees charged by plaintiffs' treating physicians for their evidence depositions.  

	Supreme Court Rule 204(c) relates to the depositions of physicians but specifically

refers to "[t]he discovery depositions of nonparty physicians being deposed in their professional capacity."  (Emphasis added.)  166 Ill. 2d R. 204(c).  Supreme Court Rule

204(c) provides for a reasonable fee to be paid to a physician for the time he or she spends

testifying in a discovery deposition and sets forth the general rule that the party at whose

instance the deposition is taken should pay the fee, but it allows a court to make exceptions

to the general rule.  166 Ill. 2d R. 204(c).  Even though the instant cases concern fees

charged by treating physicians for evidence depositions, not discovery depositions, we agree

with plaintiffs.  The spirit of Supreme Court Rule 204(c) indicates a strong desire to ensure

that physicians are properly compensated for the time they spend giving depositions.  While

Supreme Court Rule 204(c) refers to "discovery depositions," it reflects our supreme court's

recognition and acknowledgment that a treating physician's time is valuable, and it orders

a reasonable fee to be paid to a physician for the time he or she spends testifying in a

deposition.  The rule states in pertinent part:

	"A party shall pay a reasonable fee to a physician for the time he or she will spend

testifying at any such deposition.  Unless the physician was retained by a party for the

purpose of rendering an opinion at trial, or unless otherwise ordered by the court, the fee shall be paid by the party at whose instance the deposition is taken."  (Emphasis

added.)  166 Ill. 2d R. 204(c).

The plain language of the rule provides that, with regard to a discovery deposition, a

physician must be compensated for the time he or she spends giving the deposition, and a

trial court can tax such fees as costs.  

	Unlike Supreme Court Rule 204, Supreme Court Rule 208 is not limited to discovery

depositions.  In Galowich I, our supreme court interpreted Rule 208(d) "as authorizing the trial court to tax as costs, in its discretion, the expenses only of those depositions necessarily

used at trial."  Galowich I, 92 Ill. 2d at 166, 441 N.E.2d at 322.  In Galowich I, the plaintiffs voluntarily dismissed their suit prior to the trial, but the trial court nevertheless taxed against

the plaintiffs the cost of the defendants' depositions.  Our supreme court refused to allow the

plaintiffs to be taxed with the defendants' deposition costs, reasoning that the depositions

were not necessary for use at the trial because there was no trial.  One of the reasons noted

by our supreme court in Galowich I for limiting the discretion of a trial court to tax deposition costs against an opponent was to prevent parties from taking unnecessary

discovery depositions and then forcing the opposing party to pay for them under Rule

208(d).  The Galowich I court stated:

	"There has been considerable discussion recently of the tendency of counsel to

overuse discovery methods, especially in large cases.  [Citation.]  We agree with the

courts that have found it undesirable to encourage increased deposition taking ***

with the prospect that the expense may eventually be recouped in an award of costs." 

92 Ill. 2d at 166-67, 441 N.E.2d at 322.

Galowich I discourages the taxing of deposition costs and sets forth a two-pronged test for awarding costs for depositions.  A trial court is authorized to use its discretion to tax as costs

the expenses of only those depositions that are: (1) necessary and (2) used at the trial. 

Galowich I, 92 Ill. 2d at 166, 441 N.E.2d at 322.  

	In a follow-up case, Galowich v. Beech Aircraft Corp., 209 Ill. App. 3d 128, 568 N.E.2d 46 (1991) (Galowich II), our colleagues in the First District expounded on what our supreme court meant by the word "necessary."  In Galowich II, the plaintiffs in Galowich I refiled their lawsuit, and after a trial on the merits, the trial court entered a judgment for the defendants.  The defendants then filed a motion that, inter alia, asked for the costs of their depositions to be taxed against the plaintiffs.  The trial court granted the motion, but the Galowich II court held that although the depositions were used by the defendants during the trial for impeachment purposes, it was not going to adopt a rule stating that just because

a deposition is used for impeachment it is "ipso facto necessary."  Galowich II, 209 Ill. App. 3d at 142, 568 N.E.2d at 55.  The Galowich II court explained as follows:

	"Use at trial itself is not sufficient.  In order for deposition expenses to be taxed to the

losing litigant, the deposition must be necessary.  A necessity is something that has

the condition or quality of being necessary, that is 'indispensable' or 'needed to

achieve a certain result.'  [Citation.]"  209 Ill. App. 3d at 142, 568 N.E.2d at 55.

Other courts have applied the "necessarily used at trial" test to determine whether or not

deposition fees are recoverable.

	For example, in Perkins v. Harris, 308 Ill. App. 3d 1076, 720 N.E.2d 1131 (1999), the court held that the plaintiff could recover a nonstatutory witness fee for his or her

treating physician's videotaped deposition.  The Perkins court, applying the Galowich I analysis, concluded that the trial court did not abuse its discretion in awarding costs to the

plaintiff for the fee charged by the plaintiff's treating physician, Dr. Jacob, because the

videotaped deposition was necessarily used at the trial.  308 Ill. App. 3d at 1084, 720 N.E.2d

at 1137.  The Perkins court stated, in pertinent part:

	"Dr. Jacob was the primary treating physician of plaintiff with respect to the auto

accident, and Dr. Jacob could not testify live at trial due to his demanding surgery

schedule.  Dr. Jacob's deposition was an evidence deposition necessarily used at trial:

it was played for the jury in lieu of Dr. Jacob's live testimony."  308 Ill. App. 3d at

1080, 720 N.E.2d at 1134-35.

Thus, contrary to defendants' assertion, there is case law that supports the trial court's

decision to tax as costs the fees charged by plaintiffs' treating physicians for giving their

evidence depositions.  

	Like the Perkins case, in the cases before us, treating physicians gave evidence depositions that were used in lieu of the physicians' testimony at the trials.  Defendants do

not dispute that the evidence depositions were necessarily used by plaintiffs during the

presentation of their cases in- chief.  In each case, in order to establish damages the treating

physician testified regarding the nature, severity, and treatment of the plaintiff's injuries.  We

believe that the depositions in question meet the requirements of the two-pronged test set

forth by our supreme court in Galowich I, and we cannot say that the trial court's decision to tax as costs the deposition fees charged by the treating physicians was an abuse of

discretion.

	An award of costs and fees by a trial court is a discretionary matter and will not be

disturbed on review absent a clear abuse of discretion.  Perlman v. Time, Inc., 133 Ill. App. 3d 348, 355, 478 N.E.2d 1132, 1138 (1985).  It is important to remember that the role of a

reviewing court is not to substitute its judgment for that of the trial court or even to

determine whether the trial court exercised its discretion wisely.  Schoon v. Hill, 207 Ill. App. 3d 601, 609, 566 N.E.2d 718, 724 (1990).  In determining whether the trial court

abused its discretion, the question we must consider is whether the trial court acted

arbitrarily without the employment of conscientious judgment or, in view of all the

circumstances, exceeded the bounds of reason and ignored recognized principles of law so

that substantial prejudice resulted.  Zurich Insurance Co. v. Raymark Industries, Inc., 213 Ill. App. 3d 591, 594-95, 572 N.E.2d 1119, 1122 (1991).  We find that the trial judge did

not abuse his discretion in awarding as costs to plaintiffs the fees charged by plaintiffs'

treating physicians for giving evidence depositions used at the trials.  

	Moreover, we point out that the policy considerations discussed by our supreme court

in Galowich I as a reason to limit the discretion of a trial court to tax deposition costs against an opponent are not factors in the cases before us.  Underlying our supreme court's decision in Galowich I was the desire to prevent parties from taking unnecessary discovery depositions and then forcing the opposing party to pay for them under Rule 208(d).  Gleason v. Carter, 212 Ill. App. 3d 206, 210, 570 N.E.2d 1196, 1199 (1991).  However, because the instant case concerns evidence depositions of treating physicians whose testimony was

crucial to plaintiffs' cases, such considerations are not relevant here.  "Treating physicians

are not retained for the purpose of giving an expert opinion at trial[] but are consulted,

without regard to litigation, to provide medical treatment."  Tzystuck v. Chicago Transit Authority, 124 Ill. 2d 226, 239-40, 529 N.E.2d 525, 531 (1988).  Discovery overuse was not a problem in either of the instant cases.      

	Defendants cite Falkenthal v. Public Building Comm'n of Chicago, 111 Ill. App. 3d 703, 444 N.E.2d 498 (19832), and Lee v. Hyster Co., 156 Ill. App. 3d 214, 509 N.E.2d 586 (1987), in support of their contention that the trial court abused its discretion in awarding as costs the

fees charged by plaintiffs' treating physicians for giving evidence depositions used at the

trials.  Both Falkenthal and Lee determined that expert witnesses, like any other witnesses, are only entitled to $20 per day and 20 cents per mile of necessary travel.  However, the Lee court conceded that fees charged by physicians "are a common necessity of the litigation

process, since the testimony of an expert witness especially retained for purposes of

litigation is the normal method by which an injured party establishes liability in many cases." 

Lee, 156 Ill. App. 3d at 220, 509 N.E.2d at 591.  Since those cases were decided, the supreme court rules have been revised to recognize the practicalities of deposing physicians. 

Falkenthal and Lee were decided prior to the 1989 amendment of Supreme Court Rule 204, which changed the language of paragraph (c).  The Ccommittee Ccomments to Supreme Court

Rule 204 state in pertinent part:

		"Paragraph (c) was amended in 1989 to provide that a party 'shall pay,' rather

than 'may agree to pay,' a reasonable fee to a physician or surgeon for the time the physician or surgeon will spend testifying at any such deposition.  This change will

clarify the responsibility of the parties to not intrude on the time of physicians and

surgeons without seeing to it that the physicians or surgeons receive reasonable

compensation for the time they spend undergoing questioning on deposition."  166

Ill. 2d R. 204, Committee Comments, at 204.

Thus, Falkenthal and Lee are not controlling in the present cases.  Moreover, we point out that Falkenthal and Lee concerned physicians who were experts retained for purposes of litigation, whereas in the instant case the physicians were all treating physicians. 

	CONCLUSION

	The power to impose costs must be found in some type of statutory authority, but our

General Assembly may grant the power in general terms to the courts, and the courts may

in turn make rules or orders under which costs may be taxed and imposed.  Geblin v. Blumfield, 231 Ill. App. 3d 1011, 1013, 597 N.E.2d 265, 267 (1992).  Section 5-108 of the Code of Civil Procedure (735 ILCS 5/5-108 (West 1998)) allows for costs to be taxed

against defendants.  While Supreme Court Rule 204(c) concerns discovery depositions, not

evidence depositions, it nevertheless recognizes the practicalities of dealing with physicians

whose time is quite valuable.  Furthermore, Supreme Court Rule 208 provides that

deposition costs "may in the discretion of the trial court be taxed as costs."  134 Ill. 2d R.

208(d).  In the cases before us, the trial judge determined that plaintiffs were entitled to be

reimbursed for the fees charged by the treating physicians for giving their evidence

depositions, which were used at the trials.  These fees were necessarily incurred by plaintiffs

in asserting their rights in court and were not the ordinary expenses of litigation.  Therefore,

we cannot say that the trial judge erred in awarding as costs the fees charged by plaintiffs'

treating physicians for giving evidence depositions used at the trials.  

	For the foregoing reasons, the judgments of the circuit court of Madison County are hereby affirmed.

	Affirmed.

	CHAPMAN, P.J., and WELCH, J., concur.

                                     	NO. 5-99-0237

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________________

DAWN WOOLVERTON,					)  Appeal from the

								)  Circuit Court of 

     Plaintiff-Appellee,					)  Madison County.

								)

v.								)  No. 96-L-790

								)

MARIAH McCRACKEN,					)  

								)  

     Defendant-Appellant.					)

______________________________________	)

								)

GENEVIEVE EHRHART,				)

								)

     Plaintiff-Appellee,					)

								)

v.								)  No. 97-L-636

								)

JACLYN M. HALEMEYER,				)

								)

     Defendant-Appellant,					)

								)

and								)

								)

FREDERICK ANDREW REAVILL			)

and ECOLAB, INC.,					)  Honorable

								)  Philip J. Kardis,

     Defendants.						)  Judge, presiding.

___________________________________________________________________________________

Opinion Filed:	April 25, 2001

___________________________________________________________________________________

Justices:	Honorable Richard P. Goldenhersh, J.

	Honorable Charles W. Chapman, P.J., and

	Honorable Thomas M. Welch, J.,

	Concur

___________________________________________________________________________________

Attorneys	John M. Heyl, John M. Heyl & Associates, 23 Public Square, Suite 404, Belleville,

for	IL 62220 (for Mariah McCracken)

Appellants	

	Richard E. Boyle, Gundlach, Lee, Eggmann, Boyle & Roessler, 5000 West Main

	Street, P.O. Box 23560, Belleville, IL 62223-0560 (for Jaclyn M. Halemeyer)

___________________________________________________________________________________

Attorney	Eric Deitz, Wiseman, Hesi, Mormino, Hubbs, Velloff, Edmonds & Snider, P.C.,

for	3517 College Avenue, Alton, IL 62002 (for Dawn Woolverton and Genevieve

Appellees	Ehrhart)

___________________________________________________________________________________