Appeal from the Circuit Court of Madison County. No. 96-L-790; No. 97-L-636 Honorable Philip J. Kardis, Judge, presiding.
Justices: Honorable Richard P. Goldenhersh, J.
Honorable Charles W. Chapman, P.J., and
Honorable Thomas M. Welch, J., Concur
The opinion of the court was delivered by: Justice Goldenhersh
In separate lawsuits filed in the circuit court of Madison County, plaintiff Dawn Woolverton obtained a judgment for damages in the amount of $9,319.63 against Mariah McCracken, and plaintiff Genevieve Ehrhart obtained a judgment for damages in the amount of $2,898.40 against Jaclyn M. Halemeyer, Frederick Andrew Reavill, and Ecolab, Inc. The same trial judge presided over both cases. In each case, the plaintiff filed a posttrial motion for costs, requesting that certain costs be taxed against the defendant or defendants, including costs in the form of treating physicians' hourly fees for giving evidence depositions used at the trial. The defendants objected to the plaintiffs' requests to tax as costs the fees charged by the plaintiffs' treating physicians. In the Woolverton case, the trial court awarded the plaintiff $800 for the professional witness fees of Dr. Knapp ($500) and Dr. Cheely ($300). In the Ehrhart case, the trial court awarded the plaintiff $1,200 for the professional witness fees of Dr. Randall Rogalsky ($600) and Dr. Judson Martin ($600). McCracken and Halemeyer (defendants) filed timely notices of appeal objecting to the awards 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 each case is whether the trial judge erred in awarding as costs the fees charged by the plaintiff's treating physicians for giving evidence depositions used at the trial. We affirm.
Defendants contend that the money paid by plaintiffs to their treating physicians for the time spent giving evidence depositions so that the physicians would not have to appear at the trial was an ordinary expense of litigation, not taxable as costs. Defendants insist that there is no statutory authority or case law that allows for the taxing of costs for the time of plaintiffs' treating physicians in giving their evidence depositions. Plaintiffs reply that the trial judge's determination to allow plaintiffs to recover from defendants the professional witness fees of plaintiffs' treating physicians was not an abuse of discretion. Plaintiffs submit that the circumstances surrounding the giving of an evidence deposition are not inherently different from the circumstances surrounding a discovery deposition and that taxing the professional fees of plaintiffs' treating physicians for the time they spent giving their evidence depositions is within the spirit and intent upon which Supreme Court Rule 204 (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 of incidental 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 allowed to recover the costs of litigation from his opponent (Galowich I, 92 Ill. 2d at 162, 441 N.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, there must be statutory authority, and any assessed costs are limited to those specifically allowed by statute. Galowich I, 92 Ill. 2d at 162, 441 N.E.2d at 320. However, "[w]hile the power to impose costs must ultimately be found in some statute, the General Assembly may grant the power in general terms to the courts, which may in turn make rules or orders under which 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 any action for damages personal to the plaintiff and recovers in such action, then judgment shall be entered in favor of the plaintiff to recover costs against the defendant, to be taxed, and the same shall be recovered and enforced as other judgments 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 specify what 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 authority necessary to tax as costs the professional fees charged by plaintiffs' treating physicians for their evidence depositions.
Supreme Court Rule 204(c) relates to the depositions of physicians but specifically refers to "[t]he discovery depositions of nonparty physicians being deposed in their professional capacity ***." (Emphasis added.) 166 Ill. 2d R. 204(c). Supreme Court Rule 204(c) provides for a reasonable fee to be paid to a physician for the time he or she spends testifying in a discovery deposition and sets forth the general rule that the party at whose instance the deposition is taken should pay the fee, but it allows a court to make exceptions to the general rule. 166 Ill. 2d R. 204(c). Even though the instant cases concern fees charged by treating physicians for evidence depositions, not discovery depositions, we agree with plaintiffs. The spirit of Supreme Court Rule 204(c) indicates a strong desire to ensure that physicians are properly compensated for the time they spend giving depositions. While Supreme Court Rule 204(c) refers to "discovery depositions," it reflects our supreme court's recognition and acknowledgment that a treating physician's time is valuable, and it orders a reasonable fee to be paid to a physician for the time he or she spends testifying in a deposition. The rule states in pertinent part:
"A party shall pay a reasonable fee to a physician for the time he or she will spend testifying at any such deposition. Unless the physician was retained by a party for the purpose of rendering an opinion at trial, or unless otherwise ordered by the court, the fee shall be paid by the party at whose instance the deposition is taken." (Emphasis added.) 166 Ill. 2d R. 204(c).
The plain language of the rule provides that, with regard to a discovery deposition, a physician must be compensated for the time he or she spends giving the deposition, and a trial court can tax such fees as costs.
Unlike Supreme Court Rule 204, Supreme Court Rule 208 is not limited to discovery depositions. In Galowich I, our supreme court interpreted Rule 208(d) "as authorizing the trial court to tax as costs, in its discretion, the expenses only of those depositions necessarily used at trial." Galowich I, 92 Ill. 2d at 166, 441 N.E.2d at 322. In Galowich I, the plaintiffs voluntarily dismissed their suit prior to the trial, but the trial court nevertheless taxed against the plaintiffs the cost of the defendants' depositions. Our supreme court refused to allow the plaintiffs to be taxed with the defendants' deposition costs, reasoning that the depositions were not necessary for use at the trial because there was no trial. One of the reasons noted by our supreme court in Galowich I for limiting the discretion of a trial court to tax deposition costs against an opponent was to prevent parties from taking unnecessary discovery depositions and then forcing the opposing party to pay for them under Rule 208(d). The Galowich I court stated:
"There has been considerable discussion recently of the tendency of counsel to overuse discovery methods, especially in large cases. [Citation.] We agree with the courts that have found it undesirable to encourage increased deposition taking *** with the prospect that the expense may eventually ...