NO. 4-01-0642

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

DIANNA J. BOEHM,					)	Appeal from

	Plaintiff-Appellee,			)	Circuit Court of

	v.				     	)	Macoupin County

DAVID RAMEY,			 			)	No. 99L21

	Defendant-Appellant.		)	

	                     		)	Honorable

							)	Thomas P. Carmody,

							)	Judge Presiding.

_______________________________________________________________

	JUSTICE KNECHT delivered the opinion of the court:

	Plaintiff, Dianna Boehm, and defendant, David Ramey,

were involved in an automobile accident when defendant rear-ended

plaintiff's vehicle while she was stopped and waiting to make a

left-hand turn.  After a jury trial in the circuit court of

Macoupin County, plaintiff was awarded $75,000 in damages. 

Defendant appeals and asserts the following errors: (1) the trial

court erred in allowing plaintiff to surprise defendant at trial

with opinion testimony not disclosed in pretrial discovery; (2)

damages were awarded for past physical therapy, future medical

expenses, and lost income without sufficient proof; (3) the jury

was instructed as to future loss of normal life and aggravation

of a preexisting condition when insufficient evidence was pre

sented to warrant such instructions; (4) aggravation of preexist

ing condition was duplicative of other elements of damages; and

(5) doctor's fee for attending an evidence deposition used by

plaintiff at trial and costs of transcribing a video deposition

for plaintiff's use were improperly assessed against defendant.  We reverse and remand for a new trial on damages.

I. BACKGROUND

	On July 31, 1998, plaintiff was driving her automobile

in Carlinville when she stopped at an intersection to make a left

turn.  As she waited for oncoming traffic to pass, defendant

approached her vehicle from behind and rear-ended plaintiff's car

at a low rate of speed.  The collision left a minor dent in

plaintiff's fender.  The only damage to defendant's car was a

broken headlight.  Plaintiff refused medical treatment at the

scene of the accident and left in her car, returning home.  She

took a nonprescription pain medication and went to bed.

	The next morning, August 1, 1998, plaintiff sought

medical attention at the local hospital emergency room for pain

in her neck and right arm and headache.  X- rays showed degenera

tive arthritis in the spine as well as osteophytes, arthritic

spurs, in the lower part of her neck.  She was told to contact

her regular doctor.  After leaving the emergency room, plaintiff

went to see Dr. Thomas Brown, a chiropractor who had been treat

ing her for approximately a year prior to the accident for

"subluxations," or minor misalignments of the vertebrae.  Prior

to the accident, Dr. Brown had recommended maintenance

chiropractic care for the rest of plaintiff's life due to these

subluxations.  

	After examining plaintiff on August 1, Dr. Brown

diagnosed subluxations in the neck, muscular spasms, and reverse

cervical curve as a result of cervical acceleration-deceleration

syndrome or whiplash.  Dr. Brown treated plaintiff with ultra

sound muscle stimulation, massage therapy, and chiropractic adjustments.  He found the pain in plaintiff's muscles diminished

but the pain in her ligaments remained strong.   	Because plain tiff was not responding as well as hoped, Dr. Brown suggested she

see a neurologist.  Plaintiff went to see Dr. Wesley Betsill on

August 31, 1998.  Dr. Betsill previously treated plaintiff on

December 15, 1988, for severe pain in the base of her neck

radiating down the right arm after lifting a heavy load.  Dr.

Betsill diagnosed acute cervical disc protrusion with right C7

radiculopathy and placed plaintiff in traction in the hospital

for two days.  Dr. Betsill saw her again in 1994 when she com

plained of neck pain, and he diagnosed osteoarthritis in her

neck.  He saw her again in May 1996 when she complained of pain

in the neck and numbness in her arm.  

	When Dr. Betsill saw plaintiff in 1998 he could find no

physical abnormalities.  She appeared to be a healthy woman; he

had nothing to go on except her complaints of pain.  He assured

her she had not sustained a serious injury in the accident of

July 31, because her symptoms were no different from those which

had been bothering her for 10 years.  Dr. Betsill prescribed pain

medication.

	Plaintiff left Dr. Betsill's office and went to another

neurologist, Dr. M.L. Mehra.  Dr. Mehra diagnosed plaintiff as

suffering from whiplash and concussion headache.  He did not have

the benefit of Dr. Betsill's records and admitted in his testi

mony he had no basis for disputing Dr. Betsill's conclusion

plaintiff's symptoms now were no different from those she suf

fered for the previous 10 years.  Dr. Mehra prescribed pain

medication and physical therapy.  Plaintiff underwent physical therapy at the local hospital throughout 1998.  She returned to

Dr. Mehra in July and September 1999, still complaining of pain

in her neck and shoulder.  She returned for physical therapy in

September 1999.  

	In January 2001, plaintiff returned to Dr. Brown's

care.  At that time, Dr. Brown found plaintiff had decreased

range of motion in her cervical spine and was unable to perform

daily activities without pain.  Dr. Brown diagnosed chronic

cervical acceleration-deceleration syndrome.  He admitted most of

his diagnosis came from plaintiff's subjective complaints of pain

and not objective observations.  Dr. Brown recommended mainte

nance chiropractic care for the rest of plaintiff's life.

	Shortly before trial, at defendant's request, plaintiff

was examined by neurologist Dr. Simon Horenstein.  Dr. Horenstein

found a slight limitation in the range of motion in plaintiff's

neck and some visible osteoarthritis in her finger joints.  He

concluded the limitation of range of motion in her neck was due

to the same arthritic process evident in her finger joints.  He

stated although there was the possibility of a further test, he

did not feel plaintiff would benefit from further diagnosis or

treatment.   

	Plaintiff cleaned houses for a living prior to the

accident.  After the accident, she was off work completely for

three to four months.  Due to her fairly constant pain, she had

been unable to resume a complete workload and had dropped from

cleaning 10 to 13 houses per week to only three3 or four4.  She claimed

loss of income of approximately $15,000 per year.    Plaintiff's

medical bills totaled approximately $5,500.    

	The jury awarded plaintiff a total of $75,000 in

damages itemized as follows:

	Past pain and suffering		$15,000.00

	Future pain and suffering		 0.00

	Past medical expenses		  5,500.00

	Future medical expenses		  5,000.00

	Past loss or earnings		 30,000.00

	Future loss of earnings			 0.00

	Loss of normal life			  4,500.00

	Aggravation of preexisting	 15,000.00

	 	condition         

	TOTAL					 75,000.00.

	At the close of all the evidence, the trial court

directed a verdict on liability in favor of plaintiff.  Defendant

filed a posttrial motion, which the trial court denied.  This

appeal followed.

II. ANALYSIS

A. Reversible Error Occurred In Admission of Undisclosed

Opinion Witness Testimony Contrary to Rule 213

	Defendant contends, first, it was reversible error for

the trial court to allow surprise testimony from plaintiff's

treating-physician witness.  At trial, plaintiff called Dr. Brown

to testify to plaintiff's treatment, the causation of her inju

ries and the necessity of future medical treatment.  While he was

testifying, Dr. Brown was asked by plaintiff's counsel whether

there was any relationship between the force of an impact and the

severity of the resulting injury.  Over objections by defendant,

Dr. Brown testified the most damage done to the cervical spine is in lower-speed accidents.  This opinion was not disclosed at

either Dr. Brown's discovery deposition or in answers to inter

rogatories as required by Supreme Court Rule 213 (177 Ill. 2d R.

213).  Thus, defendant argues it was reversible error to allow

this testimony.

	There are several discovery rules applicable to opinion

witnesses.  Supreme Court Rule 213 reads, in relevant part:

		"(g) Opinion Witnesses.  An opinion

witness is a person who will offer any opin

ion testimony.  Upon written interrogatory,

the party must state:

			(i) the subject matter on

which the opinion witness is ex

pected to testify;

			(ii) the conclusions and opin

ions of the opinion witness and the

bases therefor; and

			(iii) the qualifications of

the opinion witness;

	and provide all reports of the opinion witness.

		***

		(i) Duty to Supplement.  A party has a

duty to seasonably supplement or amend any

prior answer or response whenever new or

additional information subsequently becomes

known to that party.  

		If a deposition of an opinion witness is

taken, the witness' testimony at trial will be limited to the opinion expressed therein,

in addition to those opinions identified in

answers to Rule 213(g) interrogatories.  

		The opinions expressed in a deposition

need not be later specifically identified in

Rule 213(g) answers but, upon objection	at

	trial, the burden is on the proponent of the 

	witness to prove the opinions were provided 

	in deposition or Rule 213(g) interrogatory."  

	177 Ill. 2d Rs. 213(g), (i).

Supreme Court Rule 218(c) states, in pertinent part:

	"All dates set for the disclosure of opinion

witnesses and the completion of discovery

shall be chosen to ensure that discovery will

be completed not later than 60 days before

the date on which the trial court reasonably

anticipates the trial will commence."  166

Ill. 2d R. 218(c).

The cCommittee Ccomments to Rule 213(g) provide in pertinent part: 

	"It is the Committee's belief that in order

to avoid surprise, the subject matter of all

opinions must be disclosed pursuant to this

rule and Supreme Court Rule 218, and that no

new or additional opinions will be allowed

unless the interests of justice require oth

erwise."  177 Ill. 2d R. 213(g), Committee

Comments, at xxx-xxxi.

	Rules 213(g), 213(i), and 218(c) work together to ensure that, upon written interrogatory and no later than 60 days

prior to anticipated date of trial, parties disclose the subject

matter, conclusions, opinions, qualifications, and reports of

opinion witnesses.  Warrender v. Millsop, 304 Ill. App. 3d 260, 266, 710 N.E.2d 512, 516 (1999).

	If an opinion is important to a case, it and the basis

for it must be disclosed prior to trial.  Seef v. Ingalls Memo rial Hospital, 311 Ill. App. 3d 7, 24, 724 N.E.2d 115, 128 (1999).  No exceptions have been recognized for Rule 213 disclo

sure.  Regala v. Rush North Shore Medical Center, 323 Ill. App. 3d 579, 585, 752 N.E.2d 443, 448 (2001), appeal denied, 197 Ill. 2d 584, ___763 N.E.2d ___777 (December 5, 22001).  The express language of Rule 213

provides each party is required to disclose an opinion witness'

proposed testimony, including conclusions and the baseis of those

conclusions.  Department of Transportation v. Crull, 294 Ill. App. 3d 531, 536, 690 N.E.2d 143, 147 (1998).  The supreme court

rules on discovery are mandatory rules of procedure and must be

followed.  Crull, 294 Ill. App. 3d at 537, 690 N.E.2d at 147.  This court in Crull admonished trial courts to "be more reluctant under Rule 213 than they were under former Rule 220(1) to permit

the parties to deviate from the strict disclosure requirements,

or (2) not to impose severe sanctions when such deviations

occur."  Crull, 294 Ill. App. 3d at 539, 690 N.E.2d at 148.

	Admission of evidence pursuant to Rule 213 is within

the trial court's discretion and the court's ruling will not be

reversed absent an abuse of discretion.  Crull, 294 Ill. App. 3d at 537, 690 N.E.2d at 147.  It is an abuse of discretion to allow

parties to present opinions at trial without having disclosed those opinions in response to Rule 213(g) interrogatories. 

Warrender, 304 Ill. App. 3d at 270, 710 N.E.2d at 519.

	The testimony objected to in this case was as follows:

		"Q.  Have you had occasion to study and 

	be aware of some of the facts of this whiplash-

	type	injury?

		A.  Yes.  I do that as part of my continu-

	ing education.

		Q.  And what do you find in regard to 

	permanency involved in these kinds of injuries?

		A.  The latest research by two gentlemen 

	named Forman and Croft.

		MR. HOLLEY [(defense counsel)]: Let me 

	interpose an objection.  I think this is 

	improper to cite.

		THE COURT: Overruled.

		Q.  You may answer.

		A.  The latest research that I've read and 

	understood and taken classes on shows that 

	about 25 percent of all whiplash accidents--the 

	whiplash meaning cervical acceleration and 

	deceleration--about 25 percent of them have 

	permanent injuries due to this, and about 75

	percent of them have full recovery.

		Q.  Does it matter much about the velocity 

	or the force of the impact?

		MR. HOLLEY: Same objection, and also under 

	[Rule] 213(g).

		MR. REES[(plaintiff's counsel)]: May  

	we approach the bench?

		THE COURT: I'm going to overrule the 

	objection.  You may proceed.

		Q.  Do you under [sic] the question?

		A.  Yes.  In the study of this whiplash  

	we find that most, the most damage done to the

	cervical spine is in the lower speed accidents.

	Because as the–as more metal bends, most of 

	the stress, or more of the stress, is taken

	off the person and into the metal.  That's why

	you have comfortable zones in cars so that slow

	speed injury where there's no bending of metal,

	that energy is transferred right into the 

	cervical spine or into the person, at which 

	shows up mostly in the neck.

		MR. REES: Your Honor, could we approach 

	the bench for just a moment?

		THE COURT: Yes, you may.

			(Bench conference between the 

			Court and counsel, off the re-

			cord, outside the hearing of 

			the jury.)

		MR. REES: May I approach the witness, your 

	Honor?

		THE COURT: You may.

		Q.  I'm going to show you what has been 

	marked for identification as [d]efendant's 

	[e]xhibit No. 1 and 2.  If I advised you that 

	was [plaintiff's] automobile, would you take 

	a moment and view the damage to the automobile?

		A.  Yes.  

		MR. HOLLEY: Judge, could you show this 

	as a continuing objection under [Rule] 213(g)?

		THE COURT: The [c]ourt will treat it as  

	a continuing objection.  It's overruled.  And 

	if it reaches a point that I think it should

	be sustained, I'll make that ruling.

		Q.  After observing those photographs,  

	is there anything about those photographs and 

	the damage that you see that would cause you 

	to change your testimony or your feelings 

	about this matter?

		A.  No.  This is the first time I've 

	seen these.  And it appears that there's one 

	dent in the middle of the bumper, but it 

	doesn't appear that there was a lot of com-

	pression of that bumper.  So it appears that, 

	probably, the energy was transferred through 

	most of the car.

		Q.  Thank you.  Doctor, based upon a 

	reasonable degree of medical and chiropractic 

	certainty, do you have an opinion as to whether 

	or not the automobile collision that [plaintiff] 

	described to you would or could have been the

	proximate cause of the complaints and the in-

	juries that she related to you?

		A.  Yes.  I believe the automobile accident

	was directly responsible for her injuries."

	Pursuant to Rule 213(i), after defendant objected to

the testimony on Rule 213(g) grounds, plaintiff was required to

prove the opinion was provided in interrogatory answers or

discovery deposition testimony.  She did not do so.  Plaintiff

was allowed to use Dr. Brown to testify the low speed on impact,

as evidenced by defendant's photos of slight damage as well as

testimony by defendant himself, resulted in more severe injuries to plaintiff.  

	The opinion offered by Dr. Brown as to injuries in

curred in low-speed accidents was neither disclosed in required

pretrial discovery, nor was it an elaboration on an opinion which

was disclosed.  Defense counsel did argue in closing that common sense would tell us a low-impact collision would not result in

serious injuries, but defendant was unnecessarily prejudiced by

the trial court allowing Dr. Brown to give his opinion on the

subject.  This was an abuse of discretion warranting reversal and

remand for a new trial on damages.

B. When Pattern InstructionIPI Civil No. 30.21 is Given, IPI Civil No. 30.03 

Should Not Be Given

	Relying on Smith v. City of Evanston, 260 Ill. App. 3d 925, 935-36, 631 N.E.2d 1269, 1277 (1994), defendant also argues

"aggravation of a preexisting condition" should not be treated as

a separate element of damages because it duplicated or overlapped

other elements of damages, namely, "loss of a normal life," "pain

and suffering," and loss of earnings, and the jury should not have been instructed it could compensate plaintiff separately for

aggravation.  We agree with Smith.  An award of damages for aggravation of a preexisting condition overlaps with any award

obtained for all of the other elements of damages.  Stated

another way, there is no need for Illinois Pattern Jury Instruc

tions, Civil, No. 30.03 if No. 30.21 is given (Illinois Pattern

Jury Instructions, Civil Nos. 30.03, 30.21 (2000)).

C. Assessment of Doctor Fees For Evidence Deposition

and Costs For Transcending Video Deposition

	Defendant also contends the trial court erred in taxing

him with the appearance fee for Dr. Mehra's evidence deposition

taken by plaintiff and with the cost of making a copy of Dr.

Horenstein's video deposition for plaintiff.	 A prevailing party may recover costs if a statute or supreme court rule so provides. 

Gleason v. Carter, 212 Ill. App. 3d 206, 208, 570 N.E.2d 1196, 1197 (1991).  Section 5-108 of the Code of Civil Procedure

provides for the trial court to award a plaintiff certain costs

if judgment is entered for the plaintiff.  735 ILCS 5/5-108 (West

2000).  A party recovering costs under statute or supreme court

rule is limited to costs specifically allowed, and a trial

court's judgment awarding costs will not be reversed absent abuse

of discretion.  Gleason, 212 Ill. App. 3d at 208-09, 570 N.E.2d at 1197-98.  

	Section 5-108 fails to define "costs" or describe what

costs are recoverable.  The proper definition of "costs" has been

left for the courts to determine.  Boyle v. Manley, 263 Ill. App. 3d 200, 206, 635 N.E.2d 1014, 1018-19 (1994) (1st Dist.)..  Rule 208(d) (  134 Ill. 2d R. 208(d1))) authorizes the trial court to tax only those deposition expenses "necessarily used at trial."  Galowich v. Beech Aircraft Corp., 92 Ill. 2d 157, 166, 441 N.E.2d 318, 322 (1982).  Depositions must be indispensable at trial to tax costs. 

Boyle, 263 Ill. App. 3d at 206, 635 N.E.2d at 1019.

	Courts have discussed what "necessarily used at trial"

and "indispensable" to trial means and have concluded the witness

must be either dead or missing to tax as costs the charge of a

doctor for an evidence deposition.  Irwin v. McMillan, 322 Ill. App. 3d 861, 865, 750 N.E.2d 1246, 1250 (2001).  While a treating

physician's demanding surgery schedule has been found to prevent

his live testimony and make his evidence deposition necessary to

trial and, thus, the costs of his deposition properly assessed as

a cost to the losing party (Perkins v. Harris, 308 Ill. App. 3d 1076, 1079-80, 720 N.E.2d 1131, 1134-35 (1999)), where a plain

tiff did not offer any reason for the unavailability of an expert

witness, he failed to show his evidence deposition was indispens

able and costs could not be assessed.  Wiegman v. Hitch-Inn Post of Libertyville, Inc., 308 Ill. App. 3d 789, 804, 721 N.E.2d 614, 627 (1999).

	Here, no evidence reflected on Dr. Mehra's availability

at the time of trial.  The trial court abused its discretion in

finding defendant could be taxed Dr. Mehra's witness fee as

costs. 

	The trial court also abused its discretion in taxing as

costs to defendant the fee charged plaintiff for a copy of Dr.

Horenstein's video deposition taken by defendant.  Supreme Court

Rule 208(a) provides:

		"(a) Who Shall Pay.  The party at whose instance the deposition is taken shall pay

the fees of the witness and of the officer

and the charges of the recorder or stenogra

pher for attending.  The party at whose re

quest a deposition is transcribed and filed

shall pay the charges for transcription and

filing.  The party at whose request a tape-

recorded deposition is filed without having

been transcribed shall pay the charges for

filing, and if such deposition is subse

quently transcribed the party requesting it

shall pay the charges for such transcrip

tion."  134 Ill. 2d R. 208(a).

	Rule 208(a) seems to put the costs of filing a tape-

recorded deposition on the party requesting it be filed (in this

case defendant) and the cost of transcribing it on the party

requesting a transcription (in this case plaintiff).

D. Remaining Issues

	The remaining issues defendant raises in his appeal

could arise in the context of a new trial.  Defendant contends

there was not sufficient proof of damages for past physical

therapy, future medical expenses, and lost income.  We assume

these elements of damages will be claimed in any new trial;

however, these issues involve the quantum and quality of proof in

the trial that has already occurred.  We do not know how the

evidence may be presented when a new trial is conducted.  Thus,

we decline to address these three contentions.

III. CONCLUSION

	For the foregoing reasons, we reverse the trial court's

judgment as to damages and remand the case for new trial on

damages.

	Reversed and remanded.         

	MYERSCOUGH and TURNER, JJ., concur.