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Irwin v. McMillan

June 08, 2001

JANICE K. IRWIN, PLAINTIFF-APPELLEE,
v.
ROBERT P. MCMILLAN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of De Kalb County. No. 97--L--80 Honorable Kurt P. Klein, Judge, Presiding.

The opinion of the court was delivered by: Justice Rapp

Plaintiff, Janice K. Irwin, filed a complaint against defendant, Robert P. McMillan, claiming that on September 2, 1995, in Sycamore defendant negligently drove his car into the back of plaintiff's car and injured plaintiff. Following a jury trial, plaintiff was awarded $23,685.86 in damages, and plaintiff moved for an award of costs totaling $5,514.92. The trial court granted the motion. Defendant appealed, arguing that the trial court erred when it taxed against him as costs various witness fees and evidence deposition charges. We reverse in part and vacate in part.

According to the filed bystander's report, the parties stipulated that Dr. Craig Popp, plaintiff's treating orthopedic surgeon, was not available to testify at the trial. Thus, Dr. Popp's evidence deposition was introduced during plaintiff's case in chief. Plaintiff also called Dr. John Kelly, plaintiff's treating family physician, and Ms. Lynn Batalden, plaintiff's treating physical therapist. Both Dr. Kelly and Ms. Batalden testified at the trial about their treatment of plaintiff and their opinions regarding plaintiff's physical condition.

After judgment was entered on the jury's verdict, the trial court awarded costs based on Perkins v. Harris, 308 Ill. App. 3d 1076 (1999). Defendant did not object to the following imposed costs:

"DeKalb County Circuit Clerk Filing Fee: $121.00

DeKalb County Sheriff: Service of Summons: $28.00

Harold Hardy: Subpoena Witness Fee: $20.00

Lynn Batalden: Subpoena Witness Fee: $20.00

Janson Reporting: Evidence Deposition

Transcript of Deposition of Dr. Popp: $288.45."

However, defendant did challenge the following charges:

"Dr. Craig Popp:

Fee for Evidence Deposition: $750.00

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