                          No. 3--06--0030
Filed June 1, 2007.
_________________________________________________________________

                              IN THE

                    APPELLATE COURT OF ILLINOIS

                          THIRD DISTRICT

                            A.D., 2007

DONNA MOLINE,                   ) Appeal from the Circuit Court
                                ) of the 13th Judicial Circuit,
     Plaintiff-Appellant,       ) La Salle County, Illinois,
                                )
                                )
     v.                         ) No. 00--L--186
                                )
HARSHAVADAN VYAS,               ) Honorable
                                ) Robert L. Carter,
     Defendant-Appellee.        ) Judge, Presiding.
_________________________________________________________________

     JUSTICE SCHMIDT delivered the opinion of the court:
_________________________________________________________________

     The plaintiff, Donna Moline, sued the defendant, Harshavadan

Vyas, M.D., alleging medical malpractice.   One week before trial,

the plaintiff voluntarily dismissed her suit, and the circuit

court awarded costs to the defendant for videographer,

stenographer, and professional fees associated with an evidence

deposition of an out-of-state, treating physician.     Because the

defendant has conceded that the circuit court should not have

awarded costs for the professional fee, the issue on appeal is

whether the circuit court erred when it ordered the plaintiff to

pay the videographer and stenographer fees from an evidence

deposition.   We affirm in part and reverse in part.
                               FACTS

     The plaintiff filed her suit on October 30, 2000, alleging

that the defendant was negligent in his evaluation and treatment

of the plaintiff's medical condition.   The case was set for trial

on January 24, 2005.

     At the final pretrial hearing on January 18, 2005, the

plaintiff voluntarily dismissed her case.   The circuit court

entered an order dismissing the case without prejudice pursuant

to section 2--1009 of the Code of Civil Procedure (Code) (735

ILCS 5/2--1009 (West 2004)).   The court also awarded costs to the

defendant in the amount of $50 plus witness fees and videographer

fees.   Finally, the court ordered that the case would be

scheduled for a hearing regarding any of the fees to which the

plaintiff objected.

     On January 26, 2005, the defendant filed a motion to approve

payable costs.   The defendant sought payment of the following

fees: (1) $50 appearance fee; (2) $43.50 witness fee for the

trial testimony of a doctor; (3) $43.50 witness fee for the trial

testimony of another doctor; (4) $750 professional fee for the

evidence deposition of Dr. Deborah Lightner; (5) $171

videographer fee from the evidence deposition; and (6) $288.60

court reporter fee from the evidence deposition.   The plaintiff

objected to all of the fees except for the $50 appearance fee.

     The circuit court held a hearing on the fees on February 22,


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2005.    Citing Galowich v. Beech Aircraft Corp., 92 Ill. 2d 157,

441 N.E.2d 318 (1982), the plaintiff argued that a plaintiff who

voluntarily dismisses her case before trial cannot be ordered to

pay for the defendant's deposition expenses.   The court

determined that the case law distinguished discovery depositions

from evidence depositions and that the Galowich line of cases

applied only to discovery deposition fees.   Furthermore, the

court found that evidence depositions are used at trial and are

therefore taxable as costs.    The court then ordered the plaintiff

to pay the $50 appearance fee and the videographer, stenographer,

and professional fees associated with Dr. Lightner's deposition,

but ordered that the two $43.50 witness fees were not taxable as

costs.    The plaintiff appealed.

                              ANALYSIS

     On appeal, the plaintiff argues that the circuit court erred

when it ordered her to pay the videographer, stenographer, and

professional fees from the evidence deposition of Dr. Lightner.

The defendant concedes the professional fee award was improper,

but contends that the circuit court properly awarded the

videographer and stenographer fees to the defendant.

     Because the allowance and recovery of costs is in derogation

of the common law, the authority to award costs must come via

statute.    Galowich, 92 Ill. 2d 157, 441 N.E.2d 318.   Section 5--

109 of the Code (735 ILCS 5/5--109 (West 2004)) allows a


                                    3
defendant to recover costs if the plaintiff voluntarily dismisses

her action.    The Code expressly authorizes the supreme court to

"provide by rule for *** the assessment of costs."      735 ILCS 5/1-

-105 (West 2004)).    Supreme Court Rule 208 (134 Ill. 2d R. 208)

provides:

            "(a) Who Shall Pay.    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.      The party at whose request a

     tape-recorded deposition is filed without having been

     transcribed shall pay the charges for filing, and if such

     deposition is subsequently transcribed the party requesting

     it shall pay the charges for such transcription. ***

                                   * * *

            (d) Taxing as Costs.    The aforesaid fees and charges

     may in the discretion of the trial court be taxed as costs."

     In Galowich, the plaintiffs voluntarily dismissed their case

before trial, and the defendant sought to recover numerous fees

and costs, including their deposition expenses.      Galowich, 92

Ill. 2d 157, 441 N.E.2d 318.      The supreme court held that "Rule

208(d) [authorizes] the trial court to tax as costs, in its

discretion, the expenses only of those depositions necessarily


                                     4
used at trial."     Galowich, 92 Ill. 2d at 166, 441 N.E.2d at 322.

Because the case did not go to trial, the supreme court held that

the defendants could not recover discovery deposition expenses.

Galowich, 92 Ill. 2d 157, 441 N.E.2d 318.

     The defendant argues that Galowich is distinguishable from

this case because Galowich involved expenses associated with

discovery depositions.    The issue in Galowich was whether the

defendant could recover the costs associated with a discovery

deposition when the plaintiff voluntarily dismissed the case

before trial.     Galowich, 92 Ill. 2d at 166, 441 N.E.2d at 322.

In several other cases, the issue has been whether the plaintiff

could recover the costs associated with evidence depositions

after trial.    Vicencio v. Lincoln-Way Builders, Inc., 204 Ill. 2d

295, 789 N.E.2d 290 (2003); Boehm v. Ramey, 329 Ill. App. 3d 357,

771 N.E.2d 493 (2002); Irwin v. McMillan, 322 Ill. App. 3d 861,

750 N.E.2d 1246 (2001); Perkins v. Harris, 308 Ill. App. 3d 1076,

720 N.E.2d 1131 (1999).    Here, we must decide whether the

defendant can recover the costs associated with an evidence

deposition when the plaintiff voluntarily dismissed the case

before trial.

     Reading section 5--109 of the Code (735 ILCS 5/5--109 (West

2004)) in conjunction with Rule 208, it would appear that a

defendant can recover the costs associated with an evidence

deposition, regardless of whether the case has gone to trial.


                                   5
The decision to award costs rests within the circuit court's

discretion (Perkins, 308 Ill. App. 3d 1076, 720 N.E.2d 1131); the

award of costs does not necessarily mean that the losing party is

being punished.

     In Myers v. Bash, 334 Ill. App. 3d 369, 778 N.E.2d 320

(2002), the plaintiff sought recovery of evidence deposition

costs after the plaintiff prevailed at trial.    The Myers court

deemphasized Galowich's "necessarily used at trial" test, stating

that it had limited relevance with evidence depositions because

all evidence depositions are taken with the intent that they will

be used at trial.   Instead, the court focused its analysis on

whether a party can recover the expenses associated with evidence

depositions after the party has prevailed at trial.     Myers, 334

Ill. App. 3d 369, 778 N.E.2d 320.     Noting that the supreme court

rules evidenced a preference for presenting the testimony of

physicians via evidence depositions, rather than live testimony,

the court held that a plaintiff could recover the costs of

evidence depositions under Rule 208 after the plaintiff prevailed

at trial.    Myers, 334 Ill. App. 3d 369, 778 N.E.2d 320.

     Obviously, Galowich's "necessarily used at trial" test also

has limited relevance in our situation.    There was no trial.   The

evidence deposition at issue was that of an out-of-state treating

physician.   Even though it was not "necessarily used at trial,"

this deposition expense was necessarily incurred before trial,


                                  6
and was necessarily incurred for trial.    The out-of-state

physician was beyond the reach of an Illinois trial subpoena.      A

trial judge is not going to recess a trial and send the jury home

while the lawyers travel to another jurisdiction to obtain a

deposition.    Given the fact that taking this evidence deposition

before trial was necessary, and given the supreme court rules'

preference for taking evidence depositions of physicians, we hold

that, after a voluntary dismissal, a defendant may be entitled to

recover the costs of necessary evidence depositions taken in

anticipation of an upcoming trial.

       Under existing precedent, the defendant in this case would

have been able to recover the costs associated with Dr.

Lightner's evidence deposition if (1) the case had gone to trial;

(2) the deposition was used at trial; and (3) the defendant

prevailed at trial.    See Vicencio, 204 Ill. 2d 295, 789 N.E.2d

290.    The circuit court found that Dr. Lightner's evidence

deposition was necessary and that it would have been used at

trial.    We find no abuse of discretion in awarding court

reporter's fees for this evidence deposition.

       Lastly, we note that Supreme Court Rule 208 (134 Ill. 2d R.

208) allows the recovery of recording or stenographer costs

associated with depositions.    In this case, the evidence

deposition was not only recorded by a court reporter, but also

videotaped.    A trial attorney has a choice as to how he or she


                                  7
will present deposition testimony to a jury.   See, e.g., 188 Ill.

2d R. 206(g)(6) ("The videotape of a deposition may be presented

at trial in lieu of reading from the stenographic transcription

of the deposition").   If a particular witness makes a very good

physical appearance during deposition, a lawyer may decide to

present videotape to the jury.   On the other hand, a trial lawyer

will often not videotape even a witness with critical evidence if

that witness has mannerisms that may detract from the evidence

that is being presented.   Instead, the deposition will be read to

the jury by someone who can present the evidence in, hopefully, a

more credible fashion than the actual witness.   Clearly, whether

or not to videotape (or not videotape) witness deposition

testimony is a matter of trial strategy and we believe that it

was, therefore, an abuse of discretion to award videographer's

fees.

                            CONCLUSION

     For the foregoing reasons, we affirm the portion of the

court's order directing the plaintiff pay the stenographer fee

associated with the evidence deposition of Dr. Lightner, but

reverse the portions of the court's order directing the plaintiff

to pay the associated videographer and professional fees.

     The judgment of the circuit court of La Salle County is

affirmed in part and reversed in part.

     Affirmed in part and reversed in part.


                                 8
     McDADE, J., concurs.

     PRESIDING JUSTICE LYTTON, dissenting:

     I 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).

     The 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.”    92

Ill. 2d 156, 167, 441 N.E.2d 318.     Although the court in Galowich

addressed discovery depositions and not evidence depositions, the

court did not limit its holding to discovery depositions.

     Nothing in Gallowich supports the conclusion that evidence

depositions and discovery depositions should be treated

differently.   The court in Galowich stated that “Rule 208(d) * *

* authoriz[es] the trial court to tax as costs, in its

discretion, the expenses only of those depositions necessarily

used at trial.”   92 Ill. 2d at 166, 441 N.E.2d at 322 (Emphasis

added).   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 Gallowich.

     The majority relies on speculation and conjecture to

                                  9
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.”     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.




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