NO. 4-01-0963

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

AMY BETH MYERS,					)	Appeal from

		Plaintiff-Appellant,		)	Circuit Court of

		v.						)	Champaign County

CODY J. BASH,						)	No. 00L226

		Defendant-Appellee.			)	

								)	Honorable

								)	John R. DeLaMar,

								)	Judge Presiding.

_________________________________________________________________

		JUSTICE COOK delivered the opinion of the court:

		On August 21, 2001, a jury awarded plaintiff, Amy Beth

Myers, $13,725.09 for personal injuries sustained in an automo

bile accident.  Plaintiff moved for an award of costs, including

fees of $1,275 charged by a treating physician and two chiroprac

tors for giving evidence depositions and $821 representing the

costs of the evidence depositions.  The depositions were read

into evidence during plaintiff's case.  The trial court deter

mined that the doctors were available to personally testify at

trial and that it was necessary to use the evidence depositions

at trial and denied the motion for costs.  Plaintiff appeals.    

		The taxing of costs is clearly an area in which the

trial court exercises its discretion, to which we will defer

unless that discretion is abused.  134 Ill. 2d R. 208(d). 

However, it is the duty of the reviewing courts to establish

general principles for the taxation of costs.  We should not

simply defer to every decision of the trial court, as doing so

"tends to establish too many ad hoc rules of law as to the correct result in any given case."  In re Estate of Smith, 201 Ill. App. 3d 1005, 1010, 559 N.E.2d 571, 574 (1990) (sanctions

under Rules 219(b) and 137 (166 Ill. 2d R. 219(b); 155 Ill. 2d R.

137)).  The reviewing court should maintain some consistency of

result at least for certain situations that are common and for

which a clear result follows from the spirit as well as the

letter of the applicable rules or statutes.  Smith, 201 Ill. App. 3d at 1010, 559 N.E.2d at 574.  The general question whether

evidence depositions may be taxed as costs is a question of law. 

The question whether particular evidence depositions, e.g., cumulative depositions, should be taxed as costs is within the

discretion of the trial court.       

		At common law, a successful litigant was not entitled

to recover from his opponent the costs and expenses of the

litigation.  The allowance and recovery of costs are therefore

entirely dependent on statutory authorization.  Galowich v. Beech Aircraft Corp., 92 Ill. 2d 157, 162, 441 N.E.2d 318, 320 (1982); Hesson v. Leichsenring, 321 Ill. App. 3d 1018, 1020, 748 N.E.2d 795, 796 (2001).   

		If a plaintiff recovers damages in a lawsuit, "then

judgment shall be entered in favor of the plaintiff to recover

costs against the defendant."  735 ILCS 5/5-108 (West 2000).  A

defendant may recover costs if the action is voluntarily dis

missed or is dismissed for want of prosecution or judgment is

entered against plaintiff.  735 ILCS 5/5-109 (West 2000).  The supreme court is expressly authorized to provide by rule for "the assessment of costs."  735 ILCS 5/1-105 (West 2000).  By rule,

deposition costs, for both discovery and evidence depositions

(see 134 Ill. 2d R. 208, Committee Comments), shall initially be

paid by the party at whose instance the deposition is taken, but

"[t]he aforesaid fees and charges may in the discretion of the

trial court be taxed as costs."  134 Ill. 2d R. 208(d).  

		Much of the supreme court's discussion of costs is

found in Galowich, where the supreme court ruled against an award of some $200,000 to defendants for discovery deposition expenses

after plaintiffs voluntarily dismissed their case before trial. 

The court's approach was that the taking of depositions in

preparation for trial is a luxury that a party must pay for

himself.  "[D]epositions, particularly discovery depositions, are

usually taken for the convenience of the litigant and counsel in

preparing for trial; they are an expense of litigation that a

party undertakes for his own benefit, and therefore are not

properly allowable as costs."  Galowich, 92 Ill. 2d at 163-64, 441 N.E.2d at 321.  The court was not opposed to costs in a

proper case, however.  "Costs are allowances in the nature of

incidental damages awarded by the 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, 92 Ill. 2d at 165-66, 441 N.E.2d at 321.

		Galowich mentioned three points, which may or may not have general application beyond the issue of discovery deposi

tions:  (1) costs must be necessarily incurred, (2) a successful litigant is not entitled to recover the ordinary expenses of

litigation, and (3) the test for when the expense of a deposition

is taxable as costs is its necessary use at trial.  Galowich, 92 Ill. 2d at 165-66, 441 N.E.2d at 321-22; see also Galowich v. Beech Aircraft Corp., 209 Ill. App. 3d 128, 142, 568 N.E.2d 46, 55 (1991) (use of deposition to correct witness's answer, which

the witness admitted was mistaken, and to refresh recollection,

not "indispensable").   

		We first address the suggestion that a successful

litigant is not entitled to recover the ordinary expenses of

litigation.  A persuasive argument can be made that all costs, by

definition, are ordinary expenses of litigation, and that if

ordinary expenses of litigation are not recoverable, no cost can

ever be recovered.  The costs of an interpreter and subpoena fees

to a witness have been denied on the basis that they were the

ordinary expenses of litigation.  Vicencio v. Lincoln-Way Build ers, Inc., 328 Ill. App. 3d 439, 444, ___ N.E.2d ___, ___ (2002); cf. Irwin v. McMillan, 322 Ill. App. 3d 861, 863, 750 N.E.2d 1246, 1248 (2001) (defendant agreed to pay filing fee, sheriff's

fee for service of summons, and subpoenaed witness fees of $20 a

day and $0.20 a mile).  We disagree with Vicencio.  We read Galowich and the cases it cites to stand for the proposition that ordinary expenses and burdens of litigation such as attorney fees

are not allowable to the successful party in the absence of a

statute or rule, but the statutory costs awarded a successful plaintiff are recoverable even if they are ordinary expenses of litigation.  Ritter v. Ritter, 381 Ill. 549, 553-54, 46 N.E.2d 41, 43-44 (1943) (attorney fees); House of Vision, Inc. v. Hiyane, 42 Ill. 2d 45, 52, 245 N.E.2d 468, 472 (1969) ("attor neys' fees and the ordinary expenses and burdens of litigation");

Galowich, 92 Ill. 2d at 166, 441 N.E.2d at 322 (citing Ritter and House of Vision).     

		The test for when the expense of a discovery deposition

is taxable as costs, its necessary use at trial, has limited

relevance with evidence depositions.  Compare Woolverton v. McCracken, 321 Ill. App. 3d 440, 445, 748 N.E.2d 327, 331 (2001) (evidence depositions met two-pronged test of Galowich), with Irwin, 322 Ill. App. 3d at 867, 750 N.E.2d at 1250 (use of doctor's evidence deposition at trial has nothing to do with

necessary use or even unavailability).  All evidence depositions

are taken with the idea they will be used at trial.  Unlike a

discovery deposition, it is not unusual for an evidence deposi

tion to be used at trial.  We conclude the essential question in

this case is not whether these depositions were taken for the convenience of counsel in preparing for trial or whether they

were used in an unusual situation "as when a crucial witness died

or disappeared before trial."  Galowich, 92 Ill. 2d at 166, 441 N.E.2d at 322; see 188 Ill. 2d R. 212(a)(5) (discovery deposition

may be used at trial, in the court's discretion, if "deponent is

unable to attend or testify because of death or infirmity").

I. ORDINARY EXPENSES OF AN EVIDENCE DEPOSITION

		Should the reporting and transcription costs of a physician's evidence deposition, and any statutory witness fees

and mileage, be taxable as costs?  We conclude they should be. 

Some cases have held that such costs are not "necessarily in

curred" because a cheaper option is available, live testimony at

trial.  Irwin, 322 Ill. App. 3d at 866, 750 N.E.2d at 1250 (mere unavailability for trial, as opposed to death or disappearance,

not sufficient).  Other cases have held that, as a matter of

practical necessity, evidence depositions of physicians must be

used.  Vicencio, 328 Ill. App. 3d at 442-43, ___ N.E.2d at ___ (testimony would require physician to be absent from his practice

and require substantial travel time); Perkins v. Harris, 308 Ill. App. 3d 1076, 1080, 720 N.E.2d 1131, 1134-35 (1999) ("Dr. Jacob

could not testify live at trial due to his demanding surgery

schedule").

		In recent years, special rules have been adopted

regarding the testimony of physicians, recognizing their busy

schedules, the frequency with which they are called to testify,

and perhaps the expense involved in obtaining their testimony. 

In the absence of consent by the parties and the physician,

discovery depositions of nonparty physicians may be taken only

upon order of court.  166 Ill. 2d R. 204(c).  "The evidence

deposition of a physician or surgeon may be introduced in evi

dence at trial on the motion of either party regardless of the

availability of the deponent, without prejudice to the right of

either party to subpoena or otherwise call the physician or

surgeon for attendance at trial."  188 Ill. 2d R. 212(b). 

		Given the preference expressed in the rules that the

testimony of a physician be presented by way of evidence deposi

tion, we conclude that a party should be allowed to recover the

regular expenses connected with an evidence deposition as costs. 

An evidence deposition is but a substitute for live testimony at

trial, and the expenses incurred in connection with live testi

mony are taxable as costs.  We do not consider a physician's

evidence deposition to be a "luxury," an expense of litigation

that a party undertakes for his own benefit, in light of the

expressed preference for the use of physician evidence deposi

tions.

	II. THE FEES PAID TO THE EXPERT

		We conclude, however, that nonstatutory witness fees

paid to a physician in connection with his evidence deposition

are not taxable as costs.  See Boehm v. Ramey, 329 Ill. App. 3d 357, 366, 771 N.E.2d 493, 500 (2002).

		Expert witnesses, like other witnesses, normally are

only entitled to $20 per day and $0.20 per mile of necessary

travel.  705 ILCS 35/4.3(a) (West 2000); Falkenthal v. Public Building Comm'n of Chicago, 111 Ill. App. 3d 703, 711, 444 N.E.2d 498, 504 (1982); Lee v. Hyster Co., 156 Ill. App. 3d 214, 220, 509 N.E.2d 586, 590 (1987).  It may be possible for a plaintiff

to obtain the testimony of a physician who has relevant knowledge

without paying the physician any fee, simply by calling the

physician as a witness and paying the statutory fee.  However,

such a witness is not likely to be a very cooperative witness; in practice, the party calling a physician as a witness pays the

physician a fee. 

		Prior to 1989, Rule 204(c) provided that a party "may

agree to pay" a reasonable fee to a physician for the time he or

she will spend testifying at a discovery deposition.  The rule

allowed lawyers to reasonably compensate physicians for their

time without being criticized for paying more than was required. 

In 1989, Rule 204(c) was changed to say that a party "shall pay"

a reasonable fee.  166 Ill. 2d R. 204(c).  If Rule 204(c) applied

to evidence depositions, or to testimony at trial, it might be

argued that the reasonable fee charged by a physician was a

required fee, similar to the statutory fees of $20 a day and

$0.20 a mile required to be paid other witnesses, and taxable as

costs.  Rule 204(c), however, does not apply to evidence deposi

tions or testimony at trial.  166 Ill. 2d R. 204(c) ("The discov

ery depositions of nonparty physicians").  Cf. Woolverton, 321 Ill. App. 3d at 442-44, 748 N.E.2d at 330-31 (rules express a

strong desire to ensure physicians are properly compensated). 

The limitation of mandatory fees to discovery depositions appears

to have been intended to prevent the taxation of mandatory fees

as costs, it being recognized that the expenses of discovery

depositions generally may not be taxed as costs.  

		Assessing substantial witness fees to the losing party

as costs, like the assessment of attorney fees, would constitute

a major change in our procedural law.  Falkenthal, 111 Ill. App. 3d at 711, 444 N.E.2d at 504 (in the absence of statutory author ity, experts' fees are not taxable as costs).  In the absence of

a specific statute or rule permitting nonstatutory fees for

physician witnesses to be taxed as costs, we affirm the trial

court's decision refusing to tax those costs.  We reverse the

trial court's decision refusing to tax the standard expenses of

the evidence depositions as costs and remand for further consid

eration in light of this opinion.  

		Affirmed in part and reversed in part, and; acause remanded.

        		MYERSCOUGH, J., specially concurs.

		TURNER, J., dissents. 

		JUSTICE MYERSCOUGH, specially concurring:

		I write to specially concur.  As the opinion and

dissent indicate, the supreme court rules are not clear on this

issue of reimbursement for costs of physician depositions.  Given

the recognition that physicians’ evidence depositions may be

introduced at trial (188 Ill. 2d R. 212(b)), it is only logical

that unavailability no longer need be established.  However,

reasonable physician witness fees for evidence depositions should

also be considered costs assessable to the losing party, as

discovery deposition fees are.  166 Ill. 2d R. 204(c).  The

supreme court rules are clearly in need of clarification on this

point.

		JUSTICE TURNER, dissenting:    

		I respectfully dissent.

		Here, the trial court denied the prevailing party her

evidence deposition expenses, finding that, while the evidence

depositions were "necessary for the presentation of he[r] case,"

she presented "no evidence that any of these doctors were un

available to testify live."

		"A prevailing party may recover costs if a statute or

supreme court rule so provides."  Boehm, 329 Ill. App. 3d at 366, 771 N.E.2d at 500.  Supreme Court Rule 208(a) (134 Ill. 2d R.

208(a)), provides, in pertinent part, as follows:

			"The party at whose instance the deposi

tion is taken shall pay the fees of the wit

ness and of the officer and the charges of

the recorder or stenographer for attending. 

The party at whose request a deposition is

transcribed and filed shall pay the charges

for transcription and filing." 

Rule 208(d) then states, "[t]he aforesaid fees and charges may in

the discretion of the trial court be taxed as costs."  134 Ill.

2d R. 208(d).  The proper definition of "costs" has been left for

the courts to determine.  Boehm, 329 Ill. App. 3d at 366, 771 N.E.2d at 500.  

		In Galowich, 92 Ill. 2d at 166, 441 N.E.2d at 322, the Supreme Court of Illinois 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."    While

Galowich dealt with the expenses associated with discovery depositions, this court and other appellate courts have applied

the "necessarily used at trial" language in analyzing whether

evidence deposition expenses were costs under Rule 208(d).  See

Boehm, 329 Ill. App. 3d at 366, 771 N.E.2d at 500 (Fourth Dis trict); Vicencio, 328 Ill. App. 3d at 441-42, ___ N.E.2d ___ (Third District); Irwin, 322 Ill. App. 3d at 865, 750 N.E.2d at 1249 (Second District); Perkins, 308 Ill. App. 3d at 1079, 720 N.E.2d at 1134 (Fifth District).  Specifically, the aforemen

tioned cases dealt with the evidence depositions of physicians.

		While the appellate courts have all applied the

Galowich language to evidence deposition expenses, the courts have disagreed on the definition of "necessarily used at trial." 

Compare Irwin, 322 Ill. App. 3d at 866, 750 N.E.2d at 1250 (physician's evidence deposition was not "necessarily used at

trial" because the physician was not "unavailable" by reason of

death or disappearance), with Perkins, 308 Ill. App. 3d at 1080, 720 N.E.2d at 1134-35 (evidence deposition was "necessarily used

at trial" because the physician's demanding schedule did not

allow him to testify).  In Boehm, 329 Ill. App. 3d at 366, 771 N.E.2d at 500, this court held that a plaintiff fails to demon

strate his evidence deposition was "necessarily used at trial"

where the plaintiff does not offer any reason for the physician-

witness's unavailability.

		Here, the trial judge commented that he did not have before him "any evidence that any of these witnesses were un

available."  Thus, I continue to follow our holding in Boehm and would affirm in toto the trial court's judgment because plaintiff failed to offer any evidence that the physicians and chiroprac

tors were unavailable.