¶1specially concurring:
¶2I write to specially concur. As the opinion and dissent indicate, the supreme court rules are not clear on this issue of reimbursement for costs of physician depositions. Given the recognition that physicians’ evidence depositions may be introduced at trial (188 Ill. 2d R. 212(b)), it is only logical that unavailability no longer need be established. However, reasonable physician witness fees for evidence depositions should also be considered costs assessable to the losing party, as discovery deposition fees are. 166 Ill. 2d R. 204(c). The supreme court rules are clearly in need of clarification on this point.
¶3dissenting:
¶4I respectfully dissent.
¶5Here, the trial court denied the prevailing party her evidence deposition expenses, finding that, while the evidence depositions were “necessary for the presentation of he[r] case,” she presented “no evidence that any of these doctors were unavailable to testify five.”
¶6“A prevailing party may recover costs if a statute or supreme 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 of the recorder or stenographer for attending. The party at whose request a deposition is transcribed and filed shall pay the charges for transcription and filing.”
¶7Rule 208(d) then states, “[t]he aforesaid fees and charges may in the discretion of the trial court be taxed as costs.” 134 Ill. 2d R. 208(d). The proper definition of “costs” has been left for the courts to determine. Boehm, 329 Ill. App. 3d at 366, 771 N.E.2d at 500.
¶8In Galowich, 92 Ill. 2d at 166, 441 N.E.2d at 322, the Supreme Court of Illinois 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.” While Galowich dealt with the expenses associated with discovery depositions, this court and other appellate courts have applied the “necessarily used at trial” language in analyzing whether evidence deposition expenses were costs under Rule 208(d). See Boehm, 329 Ill. App. 3d at 366, 771 N.E.2d at 500 (Fourth District); Vicencio, 328 Ill. App. 3d at 441-42 (Third District); Irwin, 322 Ill. App. 3d at 865, 750 N.E.2d at 1249 (Second District); Perkins, 308 Ill. App. 3d at 1079, 720 N.E.2d at 1134 (Fifth District). Specifically, the aforementioned cases dealt with the evidence depositions of physicians.
¶9While the appellate courts have all applied the Galowich language to evidence deposition expenses, the courts have 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 at trial” because the physician was not “unavailable” by reason of death or disappearance), with Perkins, 308 Ill. App. 3d at 1080, 720 N.E.2d at 1134-35 (evidence deposition was “necessarily used at trial” because the physician’s demanding schedule did not allow him to testify). In Boehm, 329 Ill. App. 3d at 366, 771 N.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.
¶10Here, the trial judge commented that he did not have before him “any evidence that any of these witnesses were unavailable.” Thus, I continue to follow our holding in Boehm and would affirm in toto the trial court’s judgment because plaintiff failed to offer any evidence that the physicians and chiropractors were unavailable.