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On August 21, 2001, a jury awarded plaintiff, Amy BethMyers, $13,725.09 for personal injuries sustained in an automobile accident. Plaintiff moved for an award of costs, includingfees of $1,275 charged by a treating physician and two chiropractors for giving evidence depositions and $821 representing thecosts of the evidence depositions. The depositions were readinto evidence during plaintiff's case. The trial court determined that the doctors were available to personally testify attrial and that it was necessary to use the evidence depositionsat trial and denied the motion for costs. Plaintiff appeals.

The taxing of costs is clearly an area in which thetrial court exercises its discretion, to which we will deferunless that discretion is abused. 134 Ill. 2d R. 208(d). However, it is the duty of the reviewing courts to establishgeneral principles for the taxation of costs. We should notsimply defer to every decision of the trial court, as doing so"tends to establish too many ad hoc rules of law as to thecorrect result in any given case." In re Estate of Smith, 201Ill. App. 3d 1005, 1010, 559 N.E.2d 571, 574 (1990) (sanctionsunder Rules 219(b) and 137 (166 Ill. 2d R. 219(b); 155 Ill. 2d R.137)). The reviewing court should maintain some consistency ofresult at least for certain situations that are common and forwhich a clear result follows from the spirit as well as theletter of the applicable rules or statutes. Smith, 201 Ill. App.3d at 1010, 559 N.E.2d at 574. The general question whetherevidence 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 thediscretion of the trial court.

At common law, a successful litigant was not entitledto recover from his opponent the costs and expenses of thelitigation. The allowance and recovery of costs are thereforeentirely dependent on statutory authorization. Galowich v. BeechAircraft 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.2d795, 796 (2001).

If a plaintiff recovers damages in a lawsuit, "thenjudgment shall be entered in favor of the plaintiff to recovercosts against the defendant." 735 ILCS 5/5-108 (West 2000). Adefendant may recover costs if the action is voluntarily dismissed or is dismissed for want of prosecution or judgment isentered against plaintiff. 735 ILCS 5/5-109 (West 2000). Thesupreme court is expressly authorized to provide by rule for "theassessment 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 bepaid by the party at whose instance the deposition is taken, but"[t]he aforesaid fees and charges may in the discretion of thetrial court be taxed as costs." 134 Ill. 2d R. 208(d).

Much of the supreme court's discussion of costs isfound in Galowich, where the supreme court ruled against an awardof some $200,000 to defendants for discovery deposition expensesafter plaintiffs voluntarily dismissed their case before trial. The court's approach was that the taking of depositions inpreparation for trial is a luxury that a party must pay forhimself. "[D]epositions, particularly discovery depositions, areusually taken for the convenience of the litigant and counsel inpreparing for trial; they are an expense of litigation that aparty undertakes for his own benefit, and therefore are notproperly allowable as costs." Galowich, 92 Ill. 2d at 163-64,441 N.E.2d at 321. The court was not opposed to costs in aproper case, however. "Costs are allowances in the nature ofincidental damages awarded by the law to reimburse the prevailingparty, to some extent at least, for the expenses necessarilyincurred in the assertion of his rights in court." Galowich, 92Ill. 2d at 165-66, 441 N.E.2d at 321.

Galowich mentioned three points, which may or may nothave general application beyond the issue of discovery depositions: (1) costs must be necessarily incurred, (2) a successfullitigant is not entitled to recover the ordinary expenses oflitigation, and (3) the test for when the expense of a depositionis taxable as costs is its necessary use at trial. Galowich, 92Ill. 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, whichthe witness admitted was mistaken, and to refresh recollection,not "indispensable").

We first address the suggestion that a successfullitigant is not entitled to recover the ordinary expenses oflitigation. A persuasive argument can be made that all costs, bydefinition, are ordinary expenses of litigation, and that ifordinary expenses of litigation are not recoverable, no cost canever be recovered. The costs of an interpreter and subpoena feesto a witness have been denied on the basis that they were theordinary expenses of litigation. Vicencio v. Lincoln-Way Builders, Inc., 328 Ill. App. 3d 439, 444, ___ N.E.2d ___, ___ (2002);cf. Irwin v. McMillan, 322 Ill. App. 3d 861, 863, 750 N.E.2d1246, 1248 (2001) (defendant agreed to pay filing fee, sheriff'sfee for service of summons, and subpoenaed witness fees of $20 aday and $0.20 a mile). We disagree with Vicencio. We readGalowich and the cases it cites to stand for the proposition thatordinary expenses and burdens of litigation such as attorney feesare not allowable to the successful party in the absence of astatute or rule, but the statutory costs awarded a successfulplaintiff are recoverable even if they are ordinary expenses oflitigation. Ritter v. Ritter, 381 Ill. 549, 553-54, 46 N.E.2d41, 43-44 (1943) (attorney fees); House of Vision, Inc. v.Hiyane, 42 Ill. 2d 45, 52, 245 N.E.2d 468, 472 (1969) ("attorneys' fees and the ordinary expenses and burdens of litigation");Galowich, 92 Ill. 2d at 166, 441 N.E.2d at 322 (citing Ritter andHouse of Vision).

The test for when the expense of a discovery depositionis taxable as costs, its necessary use at trial, has limitedrelevance 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), withIrwin, 322 Ill. App. 3d at 867, 750 N.E.2d at 1250 (use ofdoctor's evidence deposition at trial has nothing to do withnecessary use or even unavailability). All evidence depositionsare taken with the idea they will be used at trial. Unlike adiscovery deposition, it is not unusual for an evidence deposition to be used at trial. We conclude the essential question inthis case is not whether these depositions were taken for theconvenience of counsel in preparing for trial or whether theywere used in an unusual situation "as when a crucial witness diedor disappeared before trial." Galowich, 92 Ill. 2d at 166, 441N.E.2d at 322; see 188 Ill. 2d R. 212(a)(5) (discovery depositionmay be used at trial, in the court's discretion, if "deponent isunable to attend or testify because of death or infirmity").

I. ORDINARY EXPENSES OF AN EVIDENCE DEPOSITION

Should the reporting and transcription costs of aphysician's evidence deposition, and any statutory witness feesand mileage, be taxable as costs? We conclude they should be. Some cases have held that such costs are not "necessarily incurred" because a cheaper option is available, live testimony attrial. Irwin, 322 Ill. App. 3d at 866, 750 N.E.2d at 1250 (mereunavailability for trial, as opposed to death or disappearance,not sufficient). Other cases have held that, as a matter ofpractical necessity, evidence depositions of physicians must beused. Vicencio, 328 Ill. App. 3d at 442-43, ___ N.E.2d at ___(testimony would require physician to be absent from his practiceand require substantial travel time); Perkins v. Harris, 308 Ill.App. 3d 1076, 1080, 720 N.E.2d 1131, 1134-35 (1999) ("Dr. Jacobcould not testify live at trial due to his demanding surgeryschedule").

In recent years, special rules have been adoptedregarding the testimony of physicians, recognizing their busyschedules, 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 onlyupon order of court. 166 Ill. 2d R. 204(c). "The evidencedeposition of a physician or surgeon may be introduced in evidence at trial on the motion of either party regardless of theavailability of the deponent, without prejudice to the right ofeither party to subpoena or otherwise call the physician orsurgeon for attendance at trial." 188 Ill. 2d R. 212(b).

Given the preference expressed in the rules that thetestimony of a physician be presented by way of evidence deposition, we conclude that a party should be allowed to recover theregular expenses connected with an evidence deposition as costs. An evidence deposition is but a substitute for live testimony attrial, and the expenses incurred in connection with live testimony are taxable as costs. We do not consider a physician'sevidence deposition to be a "luxury," an expense of litigationthat a party undertakes for his own benefit, in light of theexpressed preference for the use of physician evidence depositions.

We conclude, however, that nonstatutory witness feespaid to a physician in connection with his evidence depositionare not taxable as costs. See Boehm v. Ramey, 329 Ill. App. 3d357, 366, 771 N.E.2d 493, 500 (2002).

Expert witnesses, like other witnesses, normally areonly entitled to $20 per day and $0.20 per mile of necessarytravel. 705 ILCS 35/4.3(a) (West 2000); Falkenthal v. PublicBuilding Comm'n of Chicago, 111 Ill. App. 3d 703, 711, 444 N.E.2d498, 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 plaintiffto obtain the testimony of a physician who has relevant knowledgewithout paying the physician any fee, simply by calling thephysician as a witness and paying the statutory fee. However,such a witness is not likely to be a very cooperative witness; inpractice, the party calling a physician as a witness pays thephysician a fee.

Prior to 1989, Rule 204(c) provided that a party "mayagree to pay" a reasonable fee to a physician for the time he orshe will spend testifying at a discovery deposition. The ruleallowed lawyers to reasonably compensate physicians for theirtime 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) appliedto evidence depositions, or to testimony at trial, it might beargued that the reasonable fee charged by a physician was arequired fee, similar to the statutory fees of $20 a day and$0.20 a mile required to be paid other witnesses, and taxable ascosts. Rule 204(c), however, does not apply to evidence depositions or testimony at trial. 166 Ill. 2d R. 204(c) ("The discovery depositions of nonparty physicians"). Cf. Woolverton, 321Ill. App. 3d at 442-44, 748 N.E.2d at 330-31 (rules express astrong desire to ensure physicians are properly compensated). The limitation of mandatory fees to discovery depositions appearsto have been intended to prevent the taxation of mandatory feesas costs, it being recognized that the expenses of discoverydepositions generally may not be taxed as costs.

Assessing substantial witness fees to the losing partyas costs, like the assessment of attorney fees, would constitutea major change in our procedural law. Falkenthal, 111 Ill. App.3d at 711, 444 N.E.2d at 504 (in the absence of statutory authority, experts' fees are not taxable as costs). In the absence ofa specific statute or rule permitting nonstatutory fees forphysician witnesses to be taxed as costs, we affirm the trialcourt's decision refusing to tax those costs. We reverse thetrial court's decision refusing to tax the standard expenses ofthe evidence depositions as costs and remand for further consideration in light of this opinion.

Affirmed in part and reversed in part; cause remanded.

MYERSCOUGH, J., specially concurs.

TURNER, J., dissents.

JUSTICE MYERSCOUGH, specially concurring:

I write to specially concur. As the opinion anddissent indicate, the supreme court rules are not clear on thisissue of reimbursement for costs of physician depositions. Giventhe recognition that physicians' evidence depositions may beintroduced at trial (188 Ill. 2d R. 212(b)), it is only logicalthat unavailability no longer need be established. However,reasonable physician witness fees for evidence depositions shouldalso be considered costs assessable to the losing party, asdiscovery deposition fees are. 166 Ill. 2d R. 204(c). Thesupreme court rules are clearly in need of clarification on thispoint.

JUSTICE TURNER, dissenting:

I respectfully dissent.

Here, the trial court denied the prevailing party herevidence deposition expenses, finding that, while the evidencedepositions were "necessary for the presentation of he[r] case,"she presented "no evidence that any of these doctors were unavailable to testify live."

"A prevailing party may recover costs if a statute orsupreme 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 deposition is taken shall pay the fees of the witness and of the officer and the charges ofthe recorder or stenographer for attending. The party at whose request a deposition istranscribed and filed shall pay the chargesfor transcription and filing."

Rule 208(d) then states, "[t]he aforesaid fees and charges may inthe discretion of the trial court be taxed as costs." 134 Ill.2d R. 208(d). The proper definition of "costs" has been left forthe courts to determine. Boehm, 329 Ill. App. 3d at 366, 771N.E.2d at 500.

In Galowich, 92 Ill. 2d at 166, 441 N.E.2d at 322, theSupreme Court of Illinois interpreted "Rule 208(d) as authorizingthe trial court to tax as costs, in its discretion, the expensesonly of those depositions necessarily used at trial." WhileGalowich dealt with the expenses associated with discoverydepositions, this court and other appellate courts have appliedthe "necessarily used at trial" language in analyzing whetherevidence deposition expenses were costs under Rule 208(d). SeeBoehm, 329 Ill. App. 3d at 366, 771 N.E.2d at 500 (Fourth District); Vicencio, 328 Ill. App. 3d at 441-42, ___ N.E.2d ___(Third District); Irwin, 322 Ill. App. 3d at 865, 750 N.E.2d at1249 (Second District); Perkins, 308 Ill. App. 3d at 1079, 720N.E.2d at 1134 (Fifth District). Specifically, the aforementioned cases dealt with the evidence depositions of physicians.

While the appellate courts have all applied theGalowich language to evidence deposition expenses, the courtshave 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 attrial" because the physician was not "unavailable" by reason ofdeath or disappearance), with Perkins, 308 Ill. App. 3d at 1080,720 N.E.2d at 1134-35 (evidence deposition was "necessarily usedat trial" because the physician's demanding schedule did notallow him to testify). In Boehm, 329 Ill. App. 3d at 366, 771N.E.2d at 500, this court held that a plaintiff fails to demonstrate 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 havebefore him "any evidence that any of these witnesses were unavailable." Thus, I continue to follow our holding in Boehm andwould affirm in toto the trial court's judgment because plaintifffailed to offer any evidence that the physicians and chiropractors were unavailable.