April 25, 2001

JUSTICE GOLDENHERSH delivered the opinion of the court:

In separate lawsuits filed in the circuit court of Madison County, plaintiff DawnWoolverton obtained a judgment for damages in the amount of $9,319.63 against MariahMcCracken, and plaintiff Genevieve Ehrhart obtained a judgment for damages in the amountof $2,898.40 against Jaclyn M. Halemeyer, Frederick Andrew Reavill, and Ecolab, Inc. Thesame trial judge presided over both cases. In each case, the plaintiff filed a posttrial motionfor costs, requesting that certain costs be taxed against the defendant or defendants,including costs in the form of treating physicians' hourly fees for giving evidencedepositions used at the trial. The defendants objected to the plaintiffs' requests to tax ascosts the fees charged by the plaintiffs' treating physicians. In the Woolverton case, the trialcourt awarded the plaintiff $800 for the professional witness fees of Dr. Knapp ($500) andDr. Cheely ($300). In the Ehrhart case, the trial court awarded the plaintiff $1,200 for theprofessional witness fees of Dr. Randall Rogalsky ($600) and Dr. Judson Martin ($600). McCracken and Halemeyer (defendants) filed timely notices of appeal objecting to theawards 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 eachcase is whether the trial judge erred in awarding as costs the fees charged by the plaintiff'streating physicians for giving evidence depositions used at the trial. We affirm.

Defendants contend that the money paid by plaintiffs to their treating physicians forthe time spent giving evidence depositions so that the physicians would not have to appearat the trial was an ordinary expense of litigation, not taxable as costs. Defendants insist thatthere is no statutory authority or case law that allows for the taxing of costs for the time ofplaintiffs' treating physicians in giving their evidence depositions. Plaintiffs reply that thetrial judge's determination to allow plaintiffs to recover from defendants the professionalwitness fees of plaintiffs' treating physicians was not an abuse of discretion. Plaintiffssubmit that the circumstances surrounding the giving of an evidence deposition are notinherently different from the circumstances surrounding a discovery deposition and thattaxing the professional fees of plaintiffs' treating physicians for the time they spent givingtheir evidence depositions is within the spirit and intent upon which Supreme Court Rule204 (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 ofincidental 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 allowedto recover the costs of litigation from his opponent (Galowich I, 92 Ill. 2d at 162, 441N.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, theremust be statutory authority, and any assessed costs are limited to those specifically allowedby statute. Galowich I, 92 Ill. 2d at 162, 441 N.E.2d at 320. However, "[w]hile the powerto impose costs must ultimately be found in some statute, the General Assembly may grantthe power in general terms to the courts, which may in turn make rules or orders underwhich 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 anyaction for damages personal to the plaintiff[] and recovers in such action, thenjudgment shall be entered in favor of the plaintiff to recover costs against thedefendant, to be taxed, and the same shall be recovered and enforced as otherjudgments 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 specifywhat 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 authoritynecessary to tax as costs the professional fees charged by plaintiffs' treating physicians fortheir evidence depositions.

Supreme Court Rule 204(c) relates to the depositions of physicians but specificallyrefers to "[t]he discovery depositions of nonparty physicians being deposed in theirprofessional capacity." (Emphasis added.) 166 Ill. 2d R. 204(c). Supreme Court Rule204(c) provides for a reasonable fee to be paid to a physician for the time he or she spendstestifying in a discovery deposition and sets forth the general rule that the party at whoseinstance the deposition is taken should pay the fee, but it allows a court to make exceptionsto the general rule. 166 Ill. 2d R. 204(c). Even though the instant cases concern feescharged by treating physicians for evidence depositions, not discovery depositions, we agreewith plaintiffs. The spirit of Supreme Court Rule 204(c) indicates a strong desire to ensurethat physicians are properly compensated for the time they spend giving depositions. WhileSupreme Court Rule 204(c) refers to "discovery depositions," it reflects our supreme court'srecognition and acknowledgment that a treating physician's time is valuable, and it ordersa reasonable fee to be paid to a physician for the time he or she spends testifying in adeposition. The rule states in pertinent part:

"A party shall pay a reasonable fee to a physician for the time he or she will spendtestifying at any such deposition. Unless the physician was retained by a party for thepurpose of rendering an opinion at trial, or unless otherwise ordered by the court, thefee shall be paid by the party at whose instance the deposition is taken." (Emphasisadded.) 166 Ill. 2d R. 204(c).

The plain language of the rule provides that, with regard to a discovery deposition, aphysician must be compensated for the time he or she spends giving the deposition, and atrial court can tax such fees as costs.

Unlike Supreme Court Rule 204, Supreme Court Rule 208 is not limited to discoverydepositions. In Galowich I, our supreme court interpreted Rule 208(d) "as authorizing thetrial court to tax as costs, in its discretion, the expenses only of those depositions necessarilyused at trial." Galowich I, 92 Ill. 2d at 166, 441 N.E.2d at 322. In Galowich I, the plaintiffsvoluntarily dismissed their suit prior to the trial, but the trial court nevertheless taxed againstthe plaintiffs the cost of the defendants' depositions. Our supreme court refused to allow theplaintiffs to be taxed with the defendants' deposition costs, reasoning that the depositionswere not necessary for use at the trial because there was no trial. One of the reasons notedby our supreme court in Galowich I for limiting the discretion of a trial court to taxdeposition costs against an opponent was to prevent parties from taking unnecessarydiscovery depositions and then forcing the opposing party to pay for them under Rule208(d). The Galowich I court stated:

"There has been considerable discussion recently of the tendency of counsel tooveruse discovery methods, especially in large cases. [Citation.] We agree with thecourts 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 forawarding costs for depositions. A trial court is authorized to use its discretion to tax as coststhe 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, 568N.E.2d 46 (1991) (Galowich II), our colleagues in the First District expounded on what oursupreme court meant by the word "necessary." In Galowich II, the plaintiffs in GalowichI refiled their lawsuit, and after a trial on the merits, the trial court entered a judgment forthe defendants. The defendants then filed a motion that, inter alia, asked for the costs oftheir depositions to be taxed against the plaintiffs. The trial court granted the motion, butthe Galowich II court held that although the depositions were used by the defendants duringthe trial for impeachment purposes, it was not going to adopt a rule stating that just becausea 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 thelosing litigant, the deposition must be necessary. A necessity is something that hasthe condition or quality of being necessary, that is 'indispensable' or 'needed toachieve 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 notdeposition 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 hertreating physician's videotaped deposition. The Perkins court, applying the Galowich Ianalysis, concluded that the trial court did not abuse its discretion in awarding costs to theplaintiff for the fee charged by the plaintiff's treating physician, Dr. Jacob, because thevideotaped deposition was necessarily used at the trial. 308 Ill. App. 3d at 1084, 720 N.E.2dat 1137. The Perkins court stated, in pertinent part:

"Dr. Jacob was the primary treating physician of plaintiff with respect to the autoaccident, and Dr. Jacob could not testify live at trial due to his demanding surgeryschedule. 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 at1080, 720 N.E.2d at 1134-35.

Thus, contrary to defendants' assertion, there is case law that supports the trial court'sdecision to tax as costs the fees charged by plaintiffs' treating physicians for giving theirevidence depositions.

Like the Perkins case, in the cases before us, treating physicians gave evidencedepositions that were used in lieu of the physicians' testimony at the trials. Defendants donot dispute that the evidence depositions were necessarily used by plaintiffs during thepresentation of their cases in chief. In each case, in order to establish damages the treatingphysician testified regarding the nature, severity, and treatment of the plaintiff's injuries. Webelieve that the depositions in question meet the requirements of the two-pronged test setforth by our supreme court in Galowich I, and we cannot say that the trial court's decisionto tax as costs the deposition fees charged by the treating physicians was an abuse ofdiscretion.

An award of costs and fees by a trial court is a discretionary matter and will not bedisturbed 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 areviewing court is not to substitute its judgment for that of the trial court or even todetermine 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 courtabused its discretion, the question we must consider is whether the trial court actedarbitrarily without the employment of conscientious judgment or, in view of all thecircumstances, exceeded the bounds of reason and ignored recognized principles of law sothat substantial prejudice resulted. Zurich Insurance Co. v. Raymark Industries, Inc., 213Ill. App. 3d 591, 594-95, 572 N.E.2d 1119, 1122 (1991). We find that the trial judge didnot 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 courtin Galowich I as a reason to limit the discretion of a trial court to tax deposition costs againstan opponent are not factors in the cases before us. Underlying our supreme court's decisionin Galowich I was the desire to prevent parties from taking unnecessary discoverydepositions and then forcing the opposing party to pay for them under Rule 208(d). Gleasonv. Carter, 212 Ill. App. 3d 206, 210, 570 N.E.2d 1196, 1199 (1991). However, because theinstant case concerns evidence depositions of treating physicians whose testimony wascrucial to plaintiffs' cases, such considerations are not relevant here. "Treating physiciansare 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 TransitAuthority, 124 Ill. 2d 226, 239-40, 529 N.E.2d 525, 531 (1988). Discovery overuse was nota problem in either of the instant cases.

Defendants cite Falkenthal v. Public Building Comm'n, 111 Ill. App. 3d 703, 444N.E.2d 498 (1982), and Lee v. Hyster Co., 156 Ill. App. 3d 214, 509 N.E.2d 586 (1987), insupport of their contention that the trial court abused its discretion in awarding as costs thefees charged by plaintiffs' treating physicians for giving evidence depositions used at thetrials. 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 Leecourt conceded that fees charged by physicians "are a common necessity of the litigationprocess, since the testimony of an expert witness especially retained for purposes oflitigation 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, thesupreme 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 committee comments to Supreme CourtRule 204 state in pertinent part:

"Paragraph (c) was amended in 1989 to provide that a party 'shall pay,' ratherthan 'may agree to pay,' a reasonable fee to a physician or surgeon for the time thephysician or surgeon will spend testifying at any such deposition. This change willclarify the responsibility of the parties to not intrude on the time of physicians andsurgeons without seeing to it that the physicians or surgeons receive reasonablecompensation for the time they spend undergoing questioning on deposition." 166Ill. 2d R. 204, Committee Comments, at 204.

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

The power to impose costs must be found in some type of statutory authority, but ourGeneral Assembly may grant the power in general terms to the courts, and the courts mayin 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 theCode of Civil Procedure (735 ILCS 5/5-108 (West 1998)) allows for costs to be taxedagainst defendants. While Supreme Court Rule 204(c) concerns discovery depositions, notevidence depositions, it nevertheless recognizes the practicalities of dealing with physicianswhose time is quite valuable. Furthermore, Supreme Court Rule 208 provides thatdeposition 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 bereimbursed for the fees charged by the treating physicians for giving their evidencedepositions, which were used at the trials. These fees were necessarily incurred by plaintiffsin 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 arehereby affirmed.

Affirmed.