June 8, 2001

JUSTICE RAPP delivered the opinion of the court:

Plaintiff, Janice K. Irwin, filed a complaint againstdefendant, Robert P. McMillan, claiming that on September 2, 1995,in Sycamore defendant negligently drove his car into the back ofplaintiff's car and injured plaintiff. Following a jury trial,plaintiff was awarded $23,685.86 in damages, and plaintiff moved for an award of costs totaling $5,514.92. The trial court grantedthe motion. Defendant appealed, arguing that the trial court erredwhen it taxed against him as costs various witness fees andevidence deposition charges. We reverse in part and vacate inpart.

According to the filed bystander's report, the partiesstipulated that Dr. Craig Popp, plaintiff's treating orthopedicsurgeon, was not available to testify at the trial. Thus, Dr.Popp's evidence deposition was introduced during plaintiff's case in chief. Plaintiff also called Dr. John Kelly, plaintiff'streating family physician, and Ms. Lynn Batalden, plaintiff'streating physical therapist. Both Dr. Kelly and Ms. Bataldentestified at the trial about their treatment of plaintiff and theiropinions regarding plaintiff's physical condition.

After judgment was entered on the jury's verdict, the trialcourt awarded costs based on Perkins v. Harris, 308 Ill. App. 3d1076 (1999). Defendant did not object to the following imposedcosts:

"DeKalb County Circuit Clerk Filing Fee:           $121.00

DeKalb County Sheriff: Service of Summons:     $  28.00

Harold Hardy: Subpoena Witness Fee:               $  20.00

Lynn Batalden: Subpoena Witness Fee:              $  20.00

Janson Reporting: Evidence Deposition

Transcript of Deposition of Dr. Popp:                $288.45."

However, defendant did challenge the following charges:

"Dr. Craig Popp:

Fee for Evidence Deposition: $750.00

Caroline Communications Video Recording

Of Deposition of Dr. Popp: $387.47

Dr. John Kelly: Witness Fee: $3,000.00

Lynn Batalden: Witness Fee: $900.00."

After the trial court entered its order awarding costs, thiscourt decided Wiegman v. Hitch-Inn Post of Libertyville, Inc., 308Ill. App. 3d 789 (1999). Defendant moved to reconsider the trialcourt's award of costs based on Wiegman. At the hearing on themotion to reconsider, defendant argued, based on Wiegman, that eachparty must bear its own costs for litigation. Therefore, defendantclaimed that the trial court could not tax as costs the witnessfees that Dr. Popp, Dr. Kelly, and Ms. Batalden charged. Plaintiffargued that Wiegman was distinguishable because Wiegman involved aretained expert and not a treating physician, as in this cause andPerkins. The trial court denied the motion to reconsider, anddefendant filed this timely appeal.

Defendant first argues that the trial court erred when ittaxed as costs the witness fees that Dr. Popp, Dr. Kelly, and Ms.Batalden charged. Defendant claims that the fees were improperlyassessed against defendant because no statute or supreme court rulerequires defendant to pay witness fees for treating health careprofessionals. Plaintiff argues that the fees were properly taxedbecause section 5--108 of the Code of Civil Procedure (Code) (735ILCS 5/5--108 (West 1998)) allows the court to award a plaintiffcertain costs if judgment is entered for the plaintiff. Plaintiffthen claims that because neither the statutes nor the supreme courtrules define "costs," this court should look to the cases that haveconcluded that witness fees are included in the term "costs."

At common law, a successful litigant could not recover thecosts he incurred in pursuing his case. Falkenthal v. PublicBuilding Comm'n, 111 Ill. App. 3d 703, 710 (1982). However, aprevailing party currently may recover costs if a statute orsupreme court rule so provides. Gleason v. Carter, 212 Ill. App.3d 206, 208 (1991). A party recovering costs under a statute orsupreme court rule is limited to the costs the statute or rulespecifically allows, and a trial court's judgment awarding costswill not be reversed on appeal absent an abuse of discretion. Gleason, 212 Ill. App. 3d at 208-09.

Section 5--108 of the Code provides that a prevailingplaintiff in an action for damages personal to the plaintiff canrecover certain "costs," but the statute fails to define "costs" ordelineate what costs are recoverable. 735 ILCS 5/5--108 (West1998); Wiegman, 308 Ill. App. 3d at 804. Nevertheless, our supremecourt has defined costs as the "allowances in the nature ofincidental damages awarded by law to reimburse the prevailingparty, to some extent at least, for the expenses necessarilyincurred in the assertion of [the party's] rights in court." Galowich v. Beech Aircraft Corp., 92 Ill. 2d 157, 165-66 (1982)(Galowich I).

The first issue we address is whether the fee Dr. Popp chargedfor the taking of his evidence deposition can be taxed againstdefendant. In Galowich I, our supreme court concluded that SupremeCourt Rule 208(d) (134 Ill. 2d R. 208(d)), which addresseddiscovery depositions, authorized trial courts to tax as costs theexpenses of those depositions that were "necessarily used attrial." Galowich I, 92 Ill. 2d at 166. The court noted that "adiscovery deposition would become a necessity *** when a crucialwitness died or disappeared before trial." Galowich I, 92 Ill. 2dat 166. Thus, "necessarily used at trial" has been interpreted tomean "indispensable" to the trial, as when the witness dies ordisappears. Wiegman, 308 Ill. App. 3d at 804.

The precise issue raised here was addressed in two recentFifth District cases. First, in Perkins the appellate courtconcluded that the prevailing plaintiff could recover the witnessfee that the plaintiff's treating doctor charged for the taking ofthe doctor's videotaped deposition. Perkins, 308 Ill. App. 3d at1084. The court reasoned that the costs were recoverable based onan interpretation of Rule 208 and Supreme Court Rule 204(c) (166Ill. 2d R. 204(c)). Perkins, 308 Ill. App. 3d at 1084.

In Woolverton v. McCracken, Nos. 5--99--0237 & 5--99--0573cons. (April 25, 2001), the Fifth District more fully developed itsholding in Perkins. In Woolverton, as in Perkins, the court reliedon Rule 204(c) to conclude that the prevailing plaintiff mayrecover the fee that a treating doctor charged to testify in anevidence deposition. Woolverton noted that Rule 204(c) addresseda doctor's discovery deposition, not evidence deposition, butconcluded that the spirit of Rule 204 revealed a strong desire tocompensate doctors for the time they spent being deposed. Woolverton, slip op. at 4.

Although we agree with the policy behind the rule, we notethat Rule 204(c) does not require a losing defendant to pay thedoctor's fees. Rather, Rule 204(c), when read in conjunction withRule 208, provides that the party at whose instance a doctor'sdiscovery deposition is taken bears the burden of paying thedoctor's fees. 166 Ill. 2d R. 204(c); Woolverton, slip op. at 4-5. Here, the record revealed that the evidence deposition was "beingtaken and recorded on behalf of [plaintiff]." Thus, plaintiffshould be held responsible for Dr. Popp's witness fee.

Nevertheless, Woolverton did not rely solely on Rule 204(c). Rather, after discussing Rule 204(c), Woolverton noted that Rule208(d) authorized the trial court to tax a losing defendant forcertain deposition expenses. Woolverton, slip op. at 4-5. UnderRule 208, the trial court may tax as costs the expense of thosedepositions that were "necessarily used at trial" or, in otherwords, "indispensable" to the trial. Woolverton, slip op. at 5-6. The issue then becomes whether the evidence deposition of aplaintiff's treating physician can be taxed against the defendantwhen the parties stipulated that the treating doctor was notavailable for trial. We determine that such costs cannot beassessed against defendant.

We find support for our position in Physicians InsuranceExchange v. Jennings, 316 Ill. App. 3d 443 (2000). In Jennings,the parties agreed that the deposition of six witnesses could beused in the stipulated bench trial. Jennings, 316 Ill. App. 3d at463. The court concluded that the expenses incurred in deposingthe six witnesses could not be taxed against the counterdefendantbecause the depositions were not "indispensable." Jennings, 316Ill. App. 3d at 463. In reaching this conclusion, the court notedthat if the six witnesses would have testified at the trial, thecounterplaintiff could not recover the deposition costs for thosewitnesses. Jennings, 316 Ill. App. 3d at 448, 463.

Although Jennings states in dicta that a videotaped depositionis different from the situation presented in that case, and thus aprevailing plaintiff may recover a treating doctor's fees fortestifying in an evidence deposition, we conclude that anyvariation between the facts and conclusion reached in Jennings andthis cause is a distinction without a difference. Specifically, asin Jennings, defendant would not bear the costs of Dr. Popp's feeif Dr. Popp testified at the trial for plaintiff. Therefore, themere fact that Dr. Popp did not personally appear at the trialcannot somehow change the fact that plaintiff is responsible forpaying the witness fees that his own treating doctor charges. Plaintiff claims that defendant should be assessed the costs of Dr.Popp's witness fee because the parties stipulated that Dr. Popp wasunavailable for trial. However, the unavailability of a witnessdoes not rise to the level of "indispensable." See Boyle v.Manley, 263 Ill. App. 3d 200, 206 (1994)(recognizing that awitness's deposition is indispensable to the trial when the witnesshas died or disappeared); Galowich v. Beech Aircraft Corp., 209Ill. App. 3d 128, 142 (1991) (Galowich II) (implying that"necessary" or "indispensable" requires something more than usingthe deposition at trial because Galowich I's examples of"necessary" use at trial included only the narrow situation wherea crucial witness dies or disappears before trial); ClevelandWrecking Co. v. Central National Bank, 216 Ill. App. 3d 279, 296(1991) (concluding that deposition costs of two witnesses were notindispensable because the witnesses had not died or disappeared).

We further must note that a blanket rule requiring thedefendant to pay the plaintiff's treating doctor's fee fortestifying in an evidence deposition would violate the "necessary"-or-"indispensable"-use-at-trial test because under Supreme CourtRule 212(b) (134 Ill. 2d R. 212(b)) a doctor's evidence depositionmay be taken and presented to the court regardless of the doctor'savailability to testify at trial. Specifically, Rule 212(b)provides that "[t]he evidence deposition of a physician or surgeonmay be introduced in evidence at trial on the motion of eitherparty regardless of the availability of the deponent." (Emphasisadded.) 134 Ill. 2d R. 212(b). Therefore, under Rule 212(b) theuse of a doctor's evidence deposition at trial has nothing to dowith the "indispensable" or "necessary" use of the evidencedeposition or even the availability of the doctor. Based on theforegoing, we determine that the part of the trial court's judgmenttaxing defendant $750 for Dr. Popp's witness fee must be reversed.

The next issue we resolve is whether the trial court may taxas costs the fees two health care professionals charged to testifyin plaintiff's case in chief. Defendant argues that he cannot beassessed these fees because no supreme court rule or statuteauthorizes the trial court to impose these costs. Plaintiff arguesthat under section 5--108 of the Code Dr. Kelly's and Ms.Batalden's witness fees were properly assessed against defendant. Plaintiff also claims that section 2--1101 of the Code (735 ILCS5/2--1101 (West 1998)) allows a treating medical professional torecover more than the mileage and per diem fee provided for insection 4.3(a) of the Circuit Courts Act (Act) (705 ILCS35/4.3(a)(West 1998)).

As noted above, section 5--108 of the Code allows a court totax certain costs against a losing defendant; however, the statutedoes not define the term "costs." Plaintiff suggests that section2--1101 of the Code gives the trial court the authority to taxagainst defendant the witness fees of two health care professionalswho treated plaintiff and testified in plaintiff's case in chief. Section 2--1101 of the Code provides that, when an expert issubpoenaed to testify at trial and a dispute arises about theexpert's fee, the trial court may conduct a hearing to determinethe reasonable fee that should be paid to the expert. We do notbelieve that section 2--1101 of the Code applies to this cause.

Plaintiff next argues that section 4.3 of the Act requiresdefendant to pay Dr. Kelly's witness fee because defendantsubpoenaed Dr. Kelly. Plaintiff argues that under the Actdefendant should be held responsible for Dr. Kelly's witness feeeven though Dr. Kelly testified for plaintiff in plaintiff's casein chief and did not testify for defendant. We determine thatsection 4.3 of the Act does not require defendant to pay Dr.Kelly's witness fee. Under section 4.3(a) of the Act, a party whosubpoenas a witness is required to pay the witness $20 per day and$0.20 for each mile that the witness drives to and from the trial. This section does not require the subpoenaing party to pay thewitness any additional costs, such as witness fees, which thesubpoenaed witness may seek. See Clayton v. Ingalls MemorialHospital, 311 Ill. App. 3d 135, 138-39 (2000) (analogizing thesubpoena provisions of the Workers' Compensation Act (820 ILCS305/16 (West 1996)) to section 4.3(a) of the Act and concluding, asunder the Act, that a party subpoenaing a witness does not have topay that witness any costs in addition to mileage and per diemfees).

The parties have failed to cite any other statute or rule thatallows a trial court to tax as costs the fees a witness charges forappearing and testifying in court, and our own research has failedto uncover any such authority. Therefore, we conclude that thepart of the trial court's judgment awarding plaintiff $3,000 forDr. Kelly's witness fee and $900 for Ms. Batalden's witness feemust be reversed.

Defendant's final argument is that the trial court erred whenit taxed defendant for both videotaping and transcribing Dr. Popp'sevidence deposition. Defendant claims that he should not be taxedfor either videotaping or transcribing Dr. Popp's evidencedeposition because the deposition was not "necessary" or"indispensable" to the trial. In the alternative, defendant arguesthat the court could assess only costs for either videotaping ortranscribing the evidence deposition. Defendant claims thatSupreme Court Rule 206(g)(5) (166 Ill. 2d R. 206(g)(5)), when readin conjunction with Rule 208(b) (134 Ill. 2d R. 208(b)), authorizesthe trial court to assess costs against a losing defendant foreither the cost of recording the videotaped evidence deposition ortranscribing it, depending on which version of the evidencedeposition was used at trial. Plaintiff argues that this courtshould follow Perkins, which concluded that both the cost ofvideotaping and transcribing an evidence deposition may be taxedagainst the losing defendant.

Under section 1--105 of the Code (735 ILCS 5/1--105 (West1998)), our supreme court may make rules related to assessingcosts. Rule 206 allows the trial court to assess costs forvideotaped depositions. More specifically, the rule states thatthe party at whose instance a deposition is videotaped shall bearthe costs that the video operator imposes and the fees for filingthe videotape. 166 Ill. 2d R. 206(g)(5). Rule 206 also providesthat the rules governing the practice of and the procedures anduses for depositions shall apply to evidence depositions. 166 Ill.2d R. 206(g).

The same construction rules that apply to statutes apply tosupreme court rules. Hill v. Joseph Behr & Sons, Inc., 293 Ill.App. 3d 814, 817 (1997). When interpreting the supreme courtrules, we must ascertain and give effect to the supreme court'sintent. Hill, 293 Ill. App. 3d at 817. In determining the supremecourt's intent, the reviewing court should first look to thelanguage of the rule and consider each part of the rule in relationto the rest of the rule. Hill, 293 Ill. App. 3d at 817. Thecourts should also consider the reason and necessity for the rule,the evil to be remedied, and the purpose of the rule. Hill, 293Ill. App. 3d at 817.

Here, according to the language of Rule 206, plaintiff shouldpay the costs of videotaping Dr. Popp's evidence deposition becauseplaintiff requested that Dr. Popp's evidence deposition bevideotaped. More specifically, according to the record, Dr. Popp'sdeposition was "being taken and recorded on behalf of [plaintiff]."

Nevertheless, as plaintiff indicates, Perkins concludes that a trial court may assess costs of videotaping, editing, andtranscribing a videotaped evidence deposition if the deposition is "necessarily used at trial." Perkins, 308 Ill. App. 3d at 1080. As noted above, we do not believe that the mere use of an evidencedeposition at trial means that the deposition is "necessary" or"indispensable" to the trial and, thus, may be taxed against thelosing defendant. Rather, necessity requires a determination that the deposition must be used because, for example, a crucial witnesshas died or disappeared. Wiegman, 308 Ill. App. 3d at 804. Thistype of "necessity" was not present in this cause. Thus, wedetermine that the part of the trial court's order awardingplaintiff $288.45 for transcribing Dr. Popp's evidence depositionand $387.47 for videotaping the deposition must be reversed.

For the above stated reasons, the judgment of the circuit courtof De Kalb County is reversed in part and we vacate that portion ofthe judgment ordering defendant to pay various witness fees andevidence deposition charges totaling $5,325.92 as costs.

Reversed in part and vacated in part.

BOWMAN and BYRNE, JJ., concur.