¶1dissenting:
¶2I agree with the Second District’s decision in Howell v. Thompson, 161 Ill. App. 3d 466, 514 N.E.2d 813 (1987), that a plaintiff who voluntarily dismisses his case before trial cannot be required to pay evidence deposition expenses pursuant to Supreme Court Rule 208(d).
¶3The majority’s decision in this case contravenes the court’s holding in Galowich that “Rule 208(d) cannot be authority for the assessment of a defendant’s deposition expenses against a plaintiff who voluntarily dismisses his case before trial.” Galowich, 92 Ill. 2d at 167. Although the court in Galowich addressed discovery depositions and not evidence depositions, the court did not limit its holding to discovery depositions.
¶4Nothing in Galowich supports the conclusion that evidence depositions and discovery depositions should be treated differently. The court in Galowich stated that “Rule 208(d) … authorizes] the trial court to tax as costs, in its discretion, the expenses only of those depositions necessarily used at trial.” (Emphasis added.) Galowich, 92 Ill. 2d at 166, 441 N.E.2d at 322. Thus, the majority’s holding that evidence depositions can be taxed as costs to the plaintiff even if they are not used at trial defies Galowich.
¶5The majority relies on speculation and conjecture to conclude that the court would apply a different rule to evidence depositions. The majority speculates that the evidence deposition in this case “would have been used at trial.” 373 Ill. App. 3d at 1102. Well, perhaps. But we know for certain that it was not used at trial, and it is the actual use of the deposition at trial that authorizes the court to tax that expense as costs pursuant to Rule 208(d). See Howell, 161 Ill. App. 3d at 468, 514 N.E.2d at 814. Because there was no trial in this case and no use of the deposition at trial, I would find that the trial court improperly ordered plaintiff to pay defendant’s evidence deposition expenses.