Plaintiff, Dianna Boehm, and defendant, David Ramey,were involved in an automobile accident when defendant rear-endedplaintiff's vehicle while she was stopped and waiting to make aleft-hand turn. After a jury trial in the circuit court ofMacoupin County, plaintiff was awarded $75,000 in damages. Defendant appeals and asserts the following errors: (1) the trialcourt erred in allowing plaintiff to surprise defendant at trialwith opinion testimony not disclosed in pretrial discovery; (2)damages were awarded for past physical therapy, future medicalexpenses, and lost income without sufficient proof; (3) the jurywas instructed as to future loss of normal life and aggravationof a preexisting condition when insufficient evidence was presented to warrant such instructions; (4) aggravation of preexisting condition was duplicative of other elements of damages; and(5) doctor's fee for attending an evidence deposition used byplaintiff at trial and costs of transcribing a video depositionfor 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 automobilein Carlinville when she stopped at an intersection to make a leftturn. As she waited for oncoming traffic to pass, defendantapproached her vehicle from behind and rear-ended plaintiff's carat a low rate of speed. The collision left a minor dent inplaintiff's fender. The only damage to defendant's car was abroken headlight. Plaintiff refused medical treatment at thescene of the accident and left in her car, returning home. Shetook a nonprescription pain medication and went to bed.

The next morning, August 1, 1998, plaintiff soughtmedical attention at the local hospital emergency room for painin her neck and right arm and headache. X rays showed degenerative arthritis in the spine as well as osteophytes, arthriticspurs, in the lower part of her neck. She was told to contacther regular doctor. After leaving the emergency room, plaintiffwent to see Dr. Thomas Brown, a chiropractor who had been treating her for approximately a year prior to the accident for"subluxations," or minor misalignments of the vertebrae. Priorto the accident, Dr. Brown had recommended maintenancechiropractic care for the rest of plaintiff's life due to thesesubluxations.

After examining plaintiff on August 1, Dr. Browndiagnosed subluxations in the neck, muscular spasms, and reversecervical curve as a result of cervical acceleration-decelerationsyndrome or whiplash. Dr. Brown treated plaintiff with ultrasound muscle stimulation, massage therapy, and chiropracticadjustments. He found the pain in plaintiff's muscles diminishedbut the pain in her ligaments remained strong. Because plaintiff was not responding as well as hoped, Dr. Brown suggested shesee a neurologist. Plaintiff went to see Dr. Wesley Betsill onAugust 31, 1998. Dr. Betsill previously treated plaintiff onDecember 15, 1988, for severe pain in the base of her neckradiating down the right arm after lifting a heavy load. Dr.Betsill diagnosed acute cervical disc protrusion with right C7radiculopathy and placed plaintiff in traction in the hospitalfor two days. Dr. Betsill saw her again in 1994 when she complained of neck pain, and he diagnosed osteoarthritis in herneck. He saw her again in May 1996 when she complained of painin the neck and numbness in her arm.

When Dr. Betsill saw plaintiff in 1998 he could find nophysical abnormalities. She appeared to be a healthy woman; hehad nothing to go on except her complaints of pain. He assuredher she had not sustained a serious injury in the accident ofJuly 31, because her symptoms were no different from those whichhad been bothering her for 10 years. Dr. Betsill prescribed painmedication.

Plaintiff left Dr. Betsill's office and went to anotherneurologist, Dr. M.L. Mehra. Dr. Mehra diagnosed plaintiff assuffering from whiplash and concussion headache. He did not havethe benefit of Dr. Betsill's records and admitted in his testimony he had no basis for disputing Dr. Betsill's conclusionplaintiff's symptoms now were no different from those she suffered for the previous 10 years. Dr. Mehra prescribed painmedication and physical therapy. Plaintiff underwent physicaltherapy at the local hospital throughout 1998. She returned toDr. Mehra in July and September 1999, still complaining of painin her neck and shoulder. She returned for physical therapy inSeptember 1999.

In January 2001, plaintiff returned to Dr. Brown'scare. At that time, Dr. Brown found plaintiff had decreasedrange of motion in her cervical spine and was unable to performdaily activities without pain. Dr. Brown diagnosed chroniccervical acceleration-deceleration syndrome. He admitted most ofhis diagnosis came from plaintiff's subjective complaints of painand not objective observations. Dr. Brown recommended maintenance chiropractic care for the rest of plaintiff's life.

Shortly before trial, at defendant's request, plaintiffwas examined by neurologist Dr. Simon Horenstein. Dr. Horensteinfound a slight limitation in the range of motion in plaintiff'sneck and some visible osteoarthritis in her finger joints. Heconcluded the limitation of range of motion in her neck was dueto the same arthritic process evident in her finger joints. Hestated although there was the possibility of a further test, hedid not feel plaintiff would benefit from further diagnosis ortreatment.

Plaintiff cleaned houses for a living prior to theaccident. After the accident, she was off work completely forthree to four months. Due to her fairly constant pain, she hadbeen unable to resume a complete workload and had dropped fromcleaning 10 to 13 houses per week to only 3 or 4. She claimedloss of income of approximately $15,000 per year. Plaintiff'smedical bills totaled approximately $5,500.

The jury awarded plaintiff a total of $75,000 indamages 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 courtdirected a verdict on liability in favor of plaintiff. Defendantfiled a posttrial motion, which the trial court denied. Thisappeal 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 forthe trial court to allow surprise testimony from plaintiff'streating-physician witness. At trial, plaintiff called Dr. Brownto testify to plaintiff's treatment, the causation of her injuries and the necessity of future medical treatment. While he wastestifying, Dr. Brown was asked by plaintiff's counsel whetherthere was any relationship between the force of an impact and theseverity of the resulting injury. Over objections by defendant,Dr. Brown testified the most damage done to the cervical spine isin lower-speed accidents. This opinion was not disclosed ateither Dr. Brown's discovery deposition or in answers to interrogatories as required by Supreme Court Rule 213 (177 Ill. 2d R.213). Thus, defendant argues it was reversible error to allowthis testimony.

There are several discovery rules applicable to opinionwitnesses. Supreme Court Rule 213 reads, in relevant part:

"(g) Opinion Witnesses. An opinionwitness is a person who will offer any opinion testimony. Upon written interrogatory,the party must state:

(i) the subject matter onwhich the opinion witness is expected to testify;

(ii) the conclusions and opinions of the opinion witness and thebases therefor; and

(iii) the qualifications ofthe opinion witness;

and provide all reports of the opinion witness. ***

(i) Duty to Supplement. A party has aduty to seasonably supplement or amend anyprior answer or response whenever new oradditional information subsequently becomesknown to that party.

If a deposition of an opinion witness istaken, the witness' testimony at trial willbe limited to the opinion expressed therein,in addition to those opinions identified inanswers to Rule 213(g) interrogatories.

The opinions expressed in a depositionneed not be later specifically identified inRule 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 opinionwitnesses and the completion of discoveryshall be chosen to ensure that discovery willbe completed not later than 60 days beforethe date on which the trial court reasonablyanticipates the trial will commence." 166Ill. 2d R. 218(c).

The committee comments to Rule 213(g) provide in pertinent part:

"It is the Committee's belief that in orderto avoid surprise, the subject matter of allopinions must be disclosed pursuant to thisrule and Supreme Court Rule 218, and that nonew or additional opinions will be allowedunless the interests of justice require otherwise." 177 Ill. 2d R. 213(g), CommitteeComments, at xxx-xxxi.

Rules 213(g), 213(i), and 218(c) work together toensure that, upon written interrogatory and no later than 60 daysprior to anticipated date of trial, parties disclose the subjectmatter, conclusions, opinions, qualifications, and reports ofopinion 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 basisfor it must be disclosed prior to trial. Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7, 24, 724 N.E.2d 115, 128(1999). No exceptions have been recognized for Rule 213 disclosure. 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 (2001). The express language of Rule 213provides each party is required to disclose an opinion witness'proposed testimony, including conclusions and the bases of thoseconclusions. Department of Transportation v. Crull, 294 Ill.App. 3d 531, 536, 690 N.E.2d 143, 147 (1998). The supreme courtrules on discovery are mandatory rules of procedure and must befollowed. Crull, 294 Ill. App. 3d at 537, 690 N.E.2d at 147. This court in Crull admonished trial courts to "be more reluctantunder Rule 213 than they were under former Rule 220(1) to permitthe parties to deviate from the strict disclosure requirements,or (2) not to impose severe sanctions when such deviationsoccur." Crull, 294 Ill. App. 3d at 539, 690 N.E.2d at 148.

Admission of evidence pursuant to Rule 213 is withinthe trial court's discretion and the court's ruling will not bereversed absent an abuse of discretion. Crull, 294 Ill. App. 3dat 537, 690 N.E.2d at 147. It is an abuse of discretion to allowparties to present opinions at trial without having disclosedthose 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. Andif 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 tothe testimony on Rule 213(g) grounds, plaintiff was required toprove the opinion was provided in interrogatory answers ordiscovery deposition testimony. She did not do so. Plaintiffwas allowed to use Dr. Brown to testify the low speed on impact,as evidenced by defendant's photos of slight damage as well astestimony by defendant himself, resulted in more severe injuriesto plaintiff.

The opinion offered by Dr. Brown as to injuries incurred in low-speed accidents was neither disclosed in requiredpretrial discovery, nor was it an elaboration on an opinion whichwas disclosed. Defense counsel did argue in closing that commonsense would tell us a low-impact collision would not result inserious injuries, but defendant was unnecessarily prejudiced bythe trial court allowing Dr. Brown to give his opinion on thesubject. This was an abuse of discretion warranting reversal andremand for a new trial on damages.

B. When IPI 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. 3d925, 935-36, 631 N.E.2d 1269, 1277 (1994), defendant also argues"aggravation of a preexisting condition" should not be treated asa separate element of damages because it duplicated or overlappedother elements of damages, namely, "loss of a normal life," "painand suffering," and loss of earnings, and the jury should nothave been instructed it could compensate plaintiff separately foraggravation. We agree with Smith. An award of damages foraggravation of a preexisting condition overlaps with any awardobtained for all of the other elements of damages. Statedanother way, there is no need for Illinois Pattern Jury Instructions, Civil, No. 30.03 if No. 30.21 is given (Illinois PatternJury 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 taxinghim with the appearance fee for Dr. Mehra's evidence depositiontaken by plaintiff and with the cost of making a copy of Dr.Horenstein's video deposition for plaintiff. A prevailing partymay 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 Procedureprovides for the trial court to award a plaintiff certain costsif judgment is entered for the plaintiff. 735 ILCS 5/5-108 (West2000). A party recovering costs under statute or supreme courtrule is limited to costs specifically allowed, and a trialcourt's judgment awarding costs will not be reversed absent abuseof discretion. Gleason, 212 Ill. App. 3d at 208-09, 570 N.E.2dat 1197-98.

Section 5-108 fails to define "costs" or describe whatcosts are recoverable. The proper definition of "costs" has beenleft for the courts to determine. Boyle v. Manley, 263 Ill. App.3d 200, 206, 635 N.E.2d 1014, 1018-19 (1994). Rule 208(d) (134Ill. 2d R. 208(d)) authorizes the trial court to tax only thosedeposition 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 witnessmust be either dead or missing to tax as costs the charge of adoctor for an evidence deposition. Irwin v. McMillan, 322 Ill.App. 3d 861, 865, 750 N.E.2d 1246, 1250 (2001). While a treatingphysician's demanding surgery schedule has been found to preventhis live testimony and make his evidence deposition necessary totrial and, thus, the costs of his deposition properly assessed asa cost to the losing party (Perkins v. Harris, 308 Ill. App. 3d1076, 1079-80, 720 N.E.2d 1131, 1134-35 (1999)), where a plaintiff did not offer any reason for the unavailability of an expertwitness, he failed to show his evidence deposition was indispensable and costs could not be assessed. Wiegman v. Hitch-Inn Postof Libertyville, Inc., 308 Ill. App. 3d 789, 804, 721 N.E.2d 614,627 (1999).

Here, no evidence reflected on Dr. Mehra's availabilityat the time of trial. The trial court abused its discretion infinding defendant could be taxed Dr. Mehra's witness fee ascosts.

The trial court also abused its discretion in taxing ascosts to defendant the fee charged plaintiff for a copy of Dr.Horenstein's video deposition taken by defendant. Supreme CourtRule 208(a) provides:

"(a) Who Shall Pay. The party at whoseinstance the deposition is taken shall paythe fees of the witness and of the officerand the charges of the recorder or stenographer for attending. The party at whose request a deposition is transcribed and filedshall pay the charges for transcription andfiling. The party at whose request a tape-recorded deposition is filed without havingbeen transcribed shall pay the charges forfiling, and if such deposition is subsequently transcribed the party requesting itshall pay the charges for such transcription." 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 thiscase defendant) and the cost of transcribing it on the partyrequesting a transcription (in this case plaintiff).

D. Remaining Issues

The remaining issues defendant raises in his appealcould arise in the context of a new trial. Defendant contendsthere was not sufficient proof of damages for past physicaltherapy, future medical expenses, and lost income. We assumethese elements of damages will be claimed in any new trial;however, these issues involve the quantum and quality of proof inthe trial that has already occurred. We do not know how theevidence 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'sjudgment as to damages and remand the case for new trial ondamages.

Reversed and remanded.

MYERSCOUGH and TURNER, JJ., concur.