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Docket No. 93687-Agenda 12-January 2003.

NICOLAS VICENCIO, Appellee, v. LINCOLN-WAY 
BUILDERS, INC., et al. (Lincoln-Way Builders, Inc., Appellant).

Opinion filed April 17, 2003.

JUSTICE GARMAN delivered the opinion of the court: 

Plaintiff, Nicolas Vicencio, prevailed in the underlyingpersonal injury action against defendant, Lincoln-Way Builders,Inc., and was awarded damages by the circuit court of Will Countyin excess of $100,000. He thereafter successfully soughtreimbursement of costs totaling $5,341.80, pursuant to section5-108 of the Code of Civil Procedure (Code) (735 ILCS 5/5-108(West 2000)), and Supreme Court Rule 208 (134 Ill. 2d R. 208).Defendant appealed (155 Ill. 2d R. 304(a)), and the appellate courtaffirmed in part and reversed in part (328 Ill. App. 3d 439). Wegranted defendant's petition for leave to appeal to resolve a splitamong the appellate districts on the question of whether a trialcourt may assess as costs the fee charged by a plaintiff's treatingphysician for his participation in an evidence deposition that waspresented to the jury.

BACKGROUND

Defendant agreed that it was responsible for $283.80 ofplaintiff's costs, including the filing fee, the service of summonsfee, and trial subpoena fees paid to two of plaintiff's witnesses, butdisputed the suggestion that it was obligated to pay the trialsubpoena fee of a third witness, who failed to appear at trial andwhose evidence deposition was subsequently read to the jury. Inaddition, defendant denied that plaintiff was entitled to recoverany costs associated with the videotaping of the evidencedeposition of plaintiff's treating physician, Dr. Preston Wolin. Theexpenses included Dr. Wolin's fee and the fee charged by thevideographer. Defendant also argued that the extra costs associatedwith the production of an expedited transcript of Dr. Wolin'sdeposition should not be imposed on it, because plaintiff's failureto take the evidence deposition in a timely manner necessitated theexcess costs. Other challenged expenses included the fee paid tothe technician who operated the video equipment at trial and theindividual who interpreted for plaintiff during his testimony attrial. After a hearing on the matter, the trial court entered thefollowing written order: "In the exercise of its discretion andhaving found that the contested costs were necessary and integralto the presentation of the plaintiff's case to the jury[, i]t is orderedthat the costs awarded to plaintiff in this cause are $5,381.80[,]which is the total of the uncontested costs of [$]283.00 and thecontested costs of [$]5,058.80."

The appellate court found that the trial court had not abusedits discretion by taxing as costs the fee charged by Dr. Wolin. 328Ill. App. 3d at 443. According to the appellate court, this expensewas "necessarily incurred by plaintiff in asserting his rights incourt," as opposed to an "ordinary expense[] of ligitation," andwas therefore properly taxed as a cost. 328 Ill. App. 3d at 442. Theappellate court also affirmed the trial court's awarding as costs thefees of the court reporter and videographer because "the depositionitself was 'necessarily used at trial.' " 328 Ill. App. 3d at 443. Asto the interpreter's fee and the subpoena fee paid to the plaintiff'switness who failed to appear, the appellate court reversed, findingthese items unauthorized by any rule or statute. 328 Ill. App. 3d at444.

ANALYSIS 

As appellant, defendant formulates the question for this courtas whether a trial court may assess as costs "the fee charged by anexpert witness for his testimony at trial." We will address thenarrower question actually presented by the facts of thiscase-whether the trial court may assess as costs the fee charged bya nonparty treating physician for attending an evidence deposition.

Defendant's petition for leave to appeal, which also serves asits brief, does not comply with our rule requiring the appellant toprovide a concise statement of the applicable standard of review,with citation to authority. 188 Ill. 2d R. 341(e)(3). At oralargument, counsel suggested that the issue should be reviewed denovo, because it is a question of law. Plaintiff responds that theaward of costs is within the sound discretion of the trial court andshould not be reversed on appeal absent an abuse of thatdiscretion. Although the cases cited by plaintiff provide adefinition of the abuse of discretion standard, they do not supportthe assertion that the trial court indeed has the discretion to awardsuch costs.

We will review the underlying issue-whether the trial courthas the authority to award such costs-de novo, because it is aquestion of law. Donaldson v. Central Illinois Public Service Co.,199 Ill. 2d 63, 100 (2002). Because we conclude that the trial courtdoes not have such authority, we find it unnecessary to considerwhether the trial court abused its discretion.

At common law, a losing litigant was not responsible forpaying the costs and expenses of his prevailing adversary.Patterson v. Northern Trust Co., 286 Ill. 564, 568 (1919). Since1845, however, the prevailing plaintiff's recovery of costs hasbeen authorized by statute in Illinois. See Ill. Rev. Stat. 1845, ch.33, par. 4; Ill. Rev. Stat. 1874, ch. 33, par. 7; Ill. Rev. Stat. 1981,ch. 33, par. 7. Since 1983, the cost-recovery provision has read:

"If any person sues in any court of this state in anyaction for damages personal to the plaintiff, and recoversin such action, then judgment shall be entered in favor ofthe plaintiff to recover costs against the defendant, to betaxed, and the same shall be recovered and enforced asother judgments for the payment of money, except in thecases hereinafter provided." (Emphasis added.) 735 ILCS5/5-108 (West 2000).

A similar provision mandates the award of costs to a prevailingdefendant in a civil case (735 ILCS 5/5-109 (West 2000)), and theaward of costs to the prevailing party when judgment is grantedupon motion (735 ILCS 5/5-110 (West 2000)).

The statutes allowing recovery of costs are in derogation ofthe common law. Thus, it has long been said that they must benarrowly construed (Department of Revenue v. Appellate Court,of Illinois, First District, 67 Ill. 2d 392, 396 (1977)), and that onlythose costs specifically designated by statute may be taxed as costs(Ryerson v. Apland, 378 Ill. 472, 477 (1941)). See, e.g., Patterson,286 Ill. at 568 ("Any party claiming a judgment for his costsagainst his adversary must bring himself within the operation ofsome statutory provision, and courts have no power to adjudgecosts against anyone on merely equitable grounds").

Although the "power to impose costs must ultimately befound in some statute," the legislature may nevertheless grant thepower to the courts to make rules under which costs may be taxed.Galowich v. Beech Aircraft Corp., 92 Ill. 2d 157, 162 (1982),citing Wintersteen v. National Cooperage & Woodenware Co.,361 Ill. 95, 108 (1935). However, the delegation of rulemakingauthority must be explicit: "the courts cannot make such rules ororders and impose costs thereunder unless the power so to do isexpressly given them by statute or ratified by legislativeenactment." Wintersteen, 361 Ill. at 108.

Three sections of the Code arguably provide authority for atrial court to tax as costs the fees of the treating doctor in thepresent case: sections 5-108, 1-104, and 1-105.

Section 5-108

Section 5-108 provides that judgment "shall be entered" infavor of the prevailing plaintiff to recover costs against thedefendant. 735 ILCS 5/5-108 (West 2000). The provision ismandatory, but as noted above, the mandate must be narrowlyconstrued. The term "costs" is not defined in section 5-108 or anyof the previous versions of the statute.

The cardinal rule of statutory construction is that the courtmust ascertain and give effect to the intent of the legislature. Parisv. Feder, 179 Ill. 2d 173, 177 (1997). When construing a statute,the court should look first to the language of the statute, giving theterms their plain and ordinary meaning. Paris, 179 Ill. 2d at 177.The plain and ordinary meaning of the term "costs," however, doesnot enlighten us. See Merriam-Webster's Collegiate Dictionary262 (10th ed. 2000) (defining the singular "cost" as "the amountor equivalent paid or charged for something," and the plural"costs" as "expenses incurred in litigation; esp: those given by thelaw or the court to the prevailing party against the losing party").

In Galowich, this court stated that the term "costs" hasacquired "a fixed and technical meaning in the law." Galowich, 92Ill. 2d at 165. In effect, this court acknowledged that in thiscontext, the word "costs" is a term of art. See Black's LawDictionary 1483 (7th ed. 1999) (defining a term of art as a word's"specific, precise meaning in a given specialty, apart from itsgeneral meaning in ordinary contexts"). The meaning ascribed tothe term of art by the Galowich court was: "Costs are allowancesin the nature of incidental damages awarded by law to reimbursethe prevailing party, to some extent at least, for the expensesnecessarily incurred in the assertion of his rights in court."Galowich, 92 Ill. 2d at 165-66. This definition is descriptive, butit is not prescriptive. That is, it describes a characteristic shared byall categories of taxable costs ("necessarily incurred"), but it doesnot prescribe a rule that draws a line between those that must betaxed pursuant to section 5-108 and those that may be taxedpursuant to another statute or rule. For example, a corporation mayappear in court as plaintiff only through counsel. 705 ILCS 205/11(West 2000); 177 Ill. 2d R. 282(b). Thus, every time a corporateplaintiff is involved in litigation, attorney fees are "necessarilyincurred." Yet, such fees have never been suggested to be taxablecosts under section 5-108. Neither the plain and ordinary meaningof the word, nor our description in Galowich, provide a workingdefinition of the "costs" covered by section 5-108.

Under its definition of "costs," Black's Law Dictionarydistinguishes between court costs, the "charges or fees taxed bythe court, such as filing fees, jury fees, courthouse fees, andreporter fees," and litigation costs, the "expenses of litigation,prosecution, or other legal transaction, esp[ecially] those allowedin favor of one party against the other." Black's Law Dictionary350 (7th ed. 1999). It is undisputed that section 5-108 mandatesthe taxing of costs commonly understood to be "court costs," suchas filing fees, subpoena fees, and statutory witness fees, to thelosing party.

The fee of the treating physician that is at issue in the presentcase is a "litigation cost," and as such, is not a cost the taxing ofwhich is mandated by section 5-108. Thus, it may be taxed as acost only if authorized by another statute or by supreme court rule.See, e.g., House of Vision, Inc. v. Hiyane, 42 Ill. 2d 45, 51-52(1969) (noting that, apart from statute, the successful party maynot recover "the ordinary expenses and burdens of litigation").

Sections 1-104 and 1-105

Under section 1-104 of the Code and its precursors, this courthas long had the authority to make rules of pleading, practice, andprocedure. See Ill. Rev. Stat. 1933, ch. 110, par. 126. At present,section 1-104, entitled "Power of courts to make rules," delegatesto this court the "power to make rules of pleading, practice andprocedure for the circuit, Appellate and Supreme Courtssupplementary to, but not inconsistent with the provisions of thisAct." 735 ILCS 5/1-104 (West 2000).

We note that the court's power to make rules regarding theassessment of costs is not inherent in the judicial power, but "findsits lodgment in the specific legislative grant whereby the court wasauthorized" to promulgate these rules. Wintersteen, 361 Ill. at 108.In Wintersteen, this court found express authority "to tax costscovering the reasonable expenses of procuring the testimonywhich the adverse party ought to admit" in a provision of the CivilPractice Act. Wintersteen, 361 Ill. at 108. This court made it clear,however, that absent such express authorization, the court had noauthority to promulgate rules regarding taxation of costs. Inaddition, section 1-104 clearly prohibits the making of rules thatwould be inconsistent with section 5-108.

In 1955, the legislature delegated additional authority to thiscourt to make rules "for the orderly and expeditious administrationand enforcement" of the Code, including rules for the impositionof costs. Ill. Rev. Stat. 1955, ch. 110, par. 3, now codified at 735ILCS 5/1-105 (West 2000). Further, the Code itself is to beliberally construed, and the "rule that statues in derogation of thecommon law must be strictly construed does not apply" to theCode or to "rules made in relation thereto." 735 ILCS 5/1-106(West 2000).

The express grant of authority in section 1-105, liberallyconstrued, gives this court broad discretion to formulate rules,including the assessment of costs, as a means of enforcing theprovisions of the Code. This section does not, however, authorizethis court to assess costs merely on the basis of doing equity or to"reimburse the prevailing party" (Galowich, 92 Ill. 2d at 165) forhis necessary expenses. That rules promulgated under this sectionare to serve as enforcement mechanisms only is evident from thecontext in which the phrase "assessment of costs" appears:

"The Supreme Court may provide by rule for theorderly and expeditious administration and enforcementof this Act and of the rules, including the striking ofpleadings, the dismissal of claims, the entry of defaults,the assessment of costs, the assessment against anoffending party of the reasonable expenses, includingattorney's fees, which any violation causes another partyto incur, or other action that may be appropriate." 735ILCS 5/1-105 (West 2000).

The provision contains a nonexclusive list of sanctions that maybe employed for the purpose of enforcing the Code. Thus, underthe authority delegated in section 1-105, this court may make rulesregarding the assessment of costs only if such costs are in thenature of sanctions, not if they are "in the nature of incidentaldamages" (Galowich, 92 Ill. 2d at 165).

We now turn to the rules of this court, adopted pursuant to theauthority granted in sections 1-104 and 1-105 of the Code, todetermine whether the rules permit the trial court to tax as coststhe fees of Dr. Wolin.

Rule 208

Plaintiff asserts that the source of the trial court's discretionto award the fees of Dr. Wolin as costs can be found in SupremeCourt Rule 208(d). Rule 208 is contained in part E of our rules,which governs discovery, requests for admission, and pretrialprocedure and, as such, was adopted pursuant to section 1-104 ofthe Code. Rule 208(a) provides that the party "at whose instancethe deposition is taken shall pay the fees of the witness and of theofficer and the charges of the recorder or stenographer forattending." 134 Ill. 2d R. 208(a). Paragraph (b) of the rule sets theamounts to be paid. "Every witness attending before the officer isentitled to the fees and mileage allowance provided by statute forwitnesses attending courts in this State." 134 Ill. 2d R. 208(b).Paragraph (d) states: "The aforesaid fees and charges may in thediscretion of the trial court be taxed as costs." 134 Ill. 2d R.208(d).

Rule 208(d), however, does not permit the trial court to awardany or all fees and charges incurred in the taking of the deposition,only those "aforesaid," that is, those fees and charges"[m]entioned above" or "referred to previously" in the body of therule. Black's Law Dictionary 61 (7th ed. 1999). The chargesreferred to in paragraphs (a) and (b) of Rule 208 include thereasonable and necessary charges of the recorder or stenographer,charges for transcription and filing, and the statutory fees of theofficer taking and certifying the deposition. 134 Ill. 2d Rs. 208(a),(b). As for witness fees, Rule 208(b), titled "Amount," does notmention any fee paid to secure the attendance of a witness beyondthe "fees and mileage allowance provided by statute for witnessesattending courts in this State." (Emphasis added.) 134 Ill. 2d R.208(b). A witness attending court receives the statutory fee of $20per day and $0.20 per mile. 705 ILCS 35/4.3 (West 2000). Theplain language of Rule 208(d), therefore, does not authorize thetaxing of the cost at issue here.

Nevertheless, when this court last considered the scope ofRule 208, it implied that other expenses associated withdepositions might be taxable under the rule. In Galowich, theplaintiffs moved for a voluntary dismissal (Ill. Rev. Stat. 1979, ch.110, par. 52), with the intention of refiling the lawsuit. Thedefendants objected, asking the court to either dismiss the casewith prejudice or to "impose costs beyond the usual itemscontained in the clerk's bill." Galowich, 92 Ill. 2d at 160. Theclaimed costs included "filing fees, jury demand fees, witness fees,costs of depositions, costs of transcripts, experts costs and relatedexpenses." Galowich, 92 Ill. 2d at 160. Defendants estimated theirdeposition expenses at approximately $200,000. Galowich, 92 Ill.2d at 160-61. The trial court assessed costs of $219 and defendantsappealed. The appellate court reversed, finding that Rule 208(d)authorized the trial court, in its discretion, to tax as costs theexpenses incurred in taking depositions when a plaintiff moves forvoluntary dismissal. Galowich v. Beech Aircraft Corp., 93 Ill.App. 3d 690, 693 (1981).

In Galowich, after noting that the term "costs" has acquireda fixed and technical meaning in the law (Galowich, 92 Ill. 2d at165), we concluded that the "test for when the expense of adeposition is taxable as costs is its necessary use at trial."Galowich, 92 Ill. 2d at 167. Although we noted that it might bepossible for the use of a discovery deposition to become anecessity, such as when the deposed witness died or disappearedbefore trial, we concluded that, in general, the cost of taking adiscovery deposition is one of the ordinary expenses of litigationand, therefore, not recoverable by the prevailing party. Galowich,92 Ill. 2d at 166.

Galowich, however, does not resolve the present case for tworeasons. First, in Galowich, this court did not interpret the term"costs" in section 5-108 or the phrase "aforesaid costs" in Rule208 to determine which types of costs might be taxed. Rather,Galowich left this threshold question unanswered and formulateda rule to guide the trial court's discretion when taxing costspursuant to Rule 208.

Second, because our test required necessary use of thedeposition at trial, and because the matter in Galowich did notproceed to trial, but was resolved by the plaintiff's taking avoluntary dismissal, we concluded that the defendants were notentitled to recover any of the costs incurred in taking discoverydepositions. Galowich, 92 Ill. 2d at 167. In effect, thedeterminative factor in Galowich was not "necessary use"; it was"at trial." Although this court in Galowich may have implied thatall of the costs of a discovery deposition, perhaps even includingthe professional fees of an expert witness, might be recoverable bya plaintiff who prevails at trial, the entire discussion of depositionexpenses and what might or might not constitute "necessary use"was dicta because it was not necessary to the resolution of thatcase.⁽¹⁾

The present case requires us to address the question left openin Galowich and we have done so by limiting costs recoverableunder Rule 208(d) to those expressly authorized by paragraphs (a),(b), and (c) of the rule. Our holding must be read as limitingapplication of the Galowich necessary-use-at-trial test to thosecosts specifically referred to in Rule 208. Thus, if a deposition isnecessarily used at trial, only those costs enumerated in Rule 208,not all costs associated with the deposition, may be taxed at thetrial court's discretion. Dr. Wolin's professional fee is not such acost. We must, therefore, look elsewhere for the source of a trialcourt's authority, if any, to tax as costs the fee charged by anonparty treating physician whose testimony is taken by evidencedeposition.

Before proceeding further with our consideration of thedoctor's fee, we note that defendant's petition for leave to appeal,which serves as its brief, also asserts that the trial court erred intaxing as costs the fees of the videographer and court reporter whoattended Dr. Wolin's deposition. Such fees are mentioned in Rule208(a) and, as such, they are among the "aforesaid costs" that thetrial court has the discretion to tax under Rule 208(d) if thedeposition was necessarily used at trial. As noted above, oursuggestion in Galowich that use of a deposition would becomenecessary if a deposed witness died or disappeared before trial wasdicta. See Galowich, 92 Ill. 2d at 166. The present case, however,did proceed to trial and the deposition was admitted into evidence.Thus, we must now address the question that was not squarelypresented in Galowich-when is a deposition necessarily used attrial?

The trial court in the present case determined that Dr. Wolin'sdeposition was necessarily used at trial because his testimony wasessential to the plaintiff's ability to prove his case. We hold thatnecessity requires more than mere significance of the depositionin terms of its evidentiary value. A deposition is necessarily usedat trial only when it is relevant and material and when thedeponent's testimony cannot be procured at trial as, for example,if the deponent has died, has disappeared before trial, or isotherwise unavailable to testify.

Since we cannot determine from the record before usewhether Dr. Wolin's evidence deposition was used at trial as amatter of necessity or purely as a matter of convenience, this causemust be remanded to the trial court to determine whether the feesof the videographer and court reporter may be taxed as costs todefendant.

Rule 204

Plaintiff contends that Rule 204(c), which was adopted in1985 (subsequent to the Galowich decision), confers upon the trialcourt the discretion to tax as costs the fee charged by Dr. Wolinfor his appearance at the evidence deposition. Rule 204(c)provides:

"Depositions of Physicians. The discovery depositionsof nonparty physicians being deposed in their professionalcapacity may be taken only with the agreement of theparties and the subsequent consent of the deponent orunder a subpoena issued upon order of court. A party shallpay a reasonable fee to a physician for the time he or shewill spend testifying at any such deposition. Unless thephysician was retained by a party for the purpose ofrendering an opinion at trial, or unless otherwise orderedby the court, the fee shall be paid by the party at whoseinstance the deposition is taken." 166 Ill. 2d R. 204(c).

The rule creates two exceptions to the general rule that theparty at whose instance the deposition is taken will bear the cost.Plaintiff misconstrues the first exception, which applies only whena party deposes a physician retained by the opposing party for thepurpose of offering opinion testimony at trial. In this circumstance,the party who retained the expert is responsible for his or her"professional fee, as well as other fees and expenses provided forin Rule 208." 166 Ill. 2d R. 204, Committee Comments, at lxvi.However, a nonparty treating physician, even though he or shemay offer an opinion during testimony, is not an expert or opinionwitness in the sense used here. See Tzystuck v. Chicago TransitAuthority, 124 Ill. 2d 226, 234-35 (1988) (determining thattreating physicians are not "expert witnesses" within meaning ofthen-applicable pretrial disclosure rule). See also Boatmen'sNational Bank of Belleville v. Martin, 223 Ill. App. 3d 740, 742(1992) (determining that treating physicians are not opinionwitnesses under Rule 220). Thus, this exception to the general ruledoes not apply to Dr. Wolin's deposition in the present case.

The second exception provides that the trial court may order"otherwise." Clearly, there are some circumstances, such as thosecontemplated by Rule 219(e), under which it would be within thediscretion of the trial court to order that a treating physician'sreasonable fee be taxed as a cost. Plaintiff's assertion that thislanguage authorizes the trial court's taxing of Dr. Wolin'sprofessional fee is incorrect, however, because Rule 204(c) speaksonly of discovery depositions and Dr. Wolin gave an evidencedeposition.

Rule 212

Rule 212(b), which was adopted pursuant to the court'ssection 1-104 powers, governs evidence depositions, that is, thosedepositions taken in anticipation of the potential need to use themat trial. Evidence depositions may be used for any purpose forwhich a discovery deposition may be used and if, at the time oftrial, certain conditions are met may be used by any party for anypurpose. 188 Ill. 2d R. 212(b). The rule requires that before anevidence deposition may be used at trial, the court must giveconsideration to both the "interest[s] of justice" and the"importance of presenting the testimony of witnesses orally inopen court." 188 Ill. 2d R. 212(b)(3).

Evidence depositions by physicians, however, need not meetthe conditions imposed on depositions by others to be admissibleat trial. "The evidence deposition of a physician or surgeon may beintroduced in evidence at trial on the motion of either partyregardless of the availability of the deponent, without prejudice tothe right of either party to subpoena or otherwise call the physicianor surgeon for attendance at trial." 188 Ill. 2d R. 212(b). In effect,doctors are different. Our rules permit physicians to give evidencedepositions for their own convenience and the convenience ofparties, notwithstanding the strong preference for live testimony.

Keeping in mind that defendant could not have been taxed topay Dr. Wolin's professional fee if he had testified live at trial, wefind no justification in Rule 212 for the award of his fee for theevidence deposition, the taking and use of which is permitted as amatter of convenience.

Because the issue in this case may be resolved by constructionof the applicable statutes and rules, we have not considered thevarious public policy arguments made by the parties in favor of orin opposition to the ability of a prevailing party to recover thesecosts. We suggest that such concerns be addressed to thelegislature.

CONCLUSION

We, therefore, hold that a trial court is neither required bysection 5-108 nor permitted by other statute or rule to tax as coststo the losing party the professional fee charged by a nonpartytreating physician for attending an evidence deposition. Wereverse that part of the appellate court's judgment affirming thetrial court's taxing as costs the professional fee of Dr. Wolin andthat part of the trial court's judgment awarding these costs.

In addition, because the fees of the videographer and courtreporter are not taxable as costs under Rule 208(d) unless thedeposition was necessarily used at trial, that portion of theappellate court's judgment affirming the taxing of these costs andthat portion of the trial court's judgment taxing these costs are alsoreversed. This cause is remanded to the circuit court forreconsideration of the taxing of these fees as costs in light of thisopinion.

Appellate court judgment

reversed in part;

circuit court judgment

reversed in part;

cause remanded.

I cannot agree with the majority's refusal to permit plaintiffto recover as costs the professional fees charged by Dr. Wolin, nordo I see the need to remand the cause for further consideration asto whether Wolin's deposition was necessarily used at trial.

Whether a trial court may grant a prevailing plaintiff's motionto tax as costs the professional fees charged by the plaintiff'streating physician for testifying at an evidence deposition is not aquestion of first impression. It has been considered on numerousoccasions by our appellate court. Although that court has notspoken with a single voice on the matter, the various districts haverecognized, as the Third District recognized in the case before ustoday, that such fees may be recovered by plaintiff where theplaintiff can show that the evidence deposition was "necessarilyused at trial." See Irwin v. McMillan, 322 Ill. App. 3d 861, 865-67(2d Dist. 2001); Boehm v. Ramey, 329 Ill. App. 3d 357, 366-67(4th Dist. 2002); Woolverton v. McCracken, 321 Ill. App. 3d 440(5th Dist. 2001); Perkins v. Harris, 308 Ill. App. 3d 1076 (5thDist. 1999); see also Physicians Insurance Exchange v. Jennings,316 Ill. App. 3d 443, 464 (1st Dist. 2000) (distinguishingcircumstances in that case from Fifth District's opinion in Perkinsv. Harris).

With the exception of a badly splintered disposition by theFourth District in Myers v. Bash, 334 Ill. App. 3d 369 (2002), nocourt of review in Illinois has suggested that the professional feescharged by a treating physician to testify at an evidence depositioncan never be taxed as costs against a losing defendant. To theextent that there is any disagreement among the various districts,that disagreement concerns when and under what circumstancesan evidence deposition can be regarded as having been"necessarily used at trial." The Second District has taken the viewthat the standard is only met where the plaintiff shows that thewitness who was deposed has subsequently died or disappeared.See Irwin v. McMillan, 322 Ill. App. 3d at 866. The Third Districtin this case and the Fifth District in Perkins v. Harris, 308 Ill.App. 3d 1076, have opined, however, that a trial court does notabuse its discretion when it taxes as costs the professional feescharged by a treating physician to testify at an evidence depositionwhere the physician is unavailable to appear at trial due to hisdemanding work schedule.

In my view, the position taken by the Third and Fifth Districtsis a sound one. Contrary to the majority's view, the case before usdoes not present a situation where the physician was deposedsolely for his own convenience or the convenience of the parties.Considering the distance between the physician's practice inChicago and the place of trial in Will County as well as theburdens of the doctor's workload, the circuit court could certainlyhave concluded that plaintiff would not have been able to obtainthe doctor's testimony voluntarily absent the evidence deposition.Because the doctor was plaintiff's treating physician and the onlyperson who could testify regarding plaintiff's injuries andtreatment, there can be no serious question that his testimony wasindispensable at trial.

For the foregoing reasons, I would hold that the circuit courtdid not err when it included in the costs taxed against defendantthe professional fees charged by plaintiff's treating physician toappear at the evidence deposition. Consistent with that view, Iwould further hold that there is no need to set aside the award offees for the videographer and court reporter who served at thatdeposition pending remand to determine whether the doctor'sevidentiary deposition was necessarily used at trial. The judgmentof the appellate court should be affirmed outright without furtherdelay. Accordingly, I respectfully dissent.

JUSTICE KILBRIDE joins in this partial concurrence andpartial dissent.

1. ¹We note also that our subsequent revision of Rule 219, which dealswith the "Consequences of Refusal to Comply with Rules or OrderRelating to Discovery or Pretrial Conferences," permits a trial court toassess costs and expenses under the circumstances alleged to haveexisted in Galowich. 166 Ill. 2d R. 219(e). Rule 219(e), which is clearlyauthorized by section 1-105 of the Code as a means of enforcing itsprovisions, gives the trial court the discretion not only to assess "costs,"but to "require the party voluntarily dismissing a claim to pay anopposing party or parties reasonable expenses." 166 Ill. 2d R. 219(e)."[R]easonable expenses," is a much broader term than the term "costs"as it is used in section 5-108 and Rule 208. 166 Ill. 2d R. 219(e),Committee Comments. Expenses that are awarded pursuant to Rule219(e) are in the nature of sanctions imposed on a party for its abuse ofthe ability to take a voluntary dismissal without prejudice (see 735 ILCS5/2-1009 (West 2000)).