The Journal of The DuPage County Bar Association

Back Issues > Vol. 14 (2001-02)

Recovery of Litigation Expenses by a Prevailing Plaintiff
Mark W. Monroe and Anne M. Riegle

The Civil Law and Practice Committee recently completed the DuPage County Bar Association Civil Law Trial Advocacy Workshop, in which we covered all aspects of a civil jury trial, from preparation to closing arguments. One thing that was not covered was what occurs after a plaintiff receives a verdict. While there are many things that may occur, one thing will definitely occur is that the prevailing plaintiff will seek an award of "costs."

It is not uncommon for a prevailing plaintiff to have incurred substantial "litigation expenses," with only a small portion consisting of filing, service and statutory witness fees, and the remainder consisting of expenses such as discovery and evidence deposition expenses and non-statutory fees incurred for treating physicians or other experts to appear and testify at an evidence deposition or trial.1 This article will address whether these litigation expenses are recoverable as costs, focusing on non-statutory witness fees and expenses associated with evidence depositions.2 Prior to addressing these issues, an overview of the taxation and recovery of costs and litigation expenses generally in Illinois is useful.

I. Overview of the Taxation and Recovery of Costs and Litigation Expenses in Illinois (Galowich v. Beech Aircraft Corporation)

An overview of the taxation and recovery of costs and litigation expenses in Illinois must begin with the Illinois Supreme Court decision in Galowich v. Beech Aircraft Corporation.3 Although Galowich specifically addresses and denies the recovery of discovery deposition expenses when a plaintiff voluntarily dismisses a case, the Court took the opportunity to address the recovery of costs and litigation expenses generally.

The Galowich Court reaffirmed that Illinois follows the "American rule," which requires that each party must bear its own costs and expenses of litigation. Therefore, in Illinois, the recovery of costs is "entirely dependent on statutory authorization."4 The Supreme Court noted that its decision denying recovery of discovery deposition expenses as costs under Supreme Court Rule 208(d) "accords with this court’s frequent statements that a successful litigant is not entitled to recover the ordinary expenses of litigation," and that "[l]itigants in Illinois must bear their own litigation and trial preparation expenses."5

As noted in Galowich, the Illinois costs statute6 does not define "costs" or delineate what items of costs are taxable and recoverable.7 Likewise, Section 5-108 of the Illinois Code of Civil Procedure8 does not define or delineate what costs are recoverable by a prevailing plaintiff. Therefore, it is left to the courts to decide what costs are recoverable.9 The Galowich Court defined "costs" as "allowances in the nature of incidental damages [to be] awarded by law to reimburse the prevailing party…for the expenses necessarily incurred in the assertion of [a party’s] rights in court."10 Costs that are routinely allowed include filing and service fees, as well as statutory witness fees pursuant to Section 4.3(a) of the Circuit Courts Act (hereinafter "the Act").11 On the other hand, Galowich and its progeny make it clear that a prevailing plaintiff (or any other party) is not entitled to recover the ordinary expenses of litigation.12

It is refreshing when one can identify a black-and-white rule of law. The one point that appears to be agreed upon by all Illinois courts is that if you do not try a case to verdict, discovery and evidence deposition expenses are not recoverable as costs.13 A review of the cases addressing recovery of deposition expenses reveals that prevailing plaintiffs do not fare much better after trial.

The taxing and recovery of discovery deposition expenses is entirely dependent on statutory authorization, as are all costs.14 The statutory authorization for awarding discovery deposition expenses is found in Rule 208(d), which provides that the expenses specified in Rule 208 incurred in taking, transcribing and filing depositions, "may, in the discretion of the trial court, be taxed as costs."15 The Act provides that trial and deposition witnesses are to receive $20 for each day’s attendance and $.20 per mile for necessary travel for testifying at trials and depositions.16 However, special rules apply to nonparty physicians being deposed in their professional capacity. In such a situation, a "reasonable fee" is to be paid by the party taking the deposition, unless otherwise ordered by the court, or if the physician was retained as an expert trial opinion witness.17

In Galowich, the Court examined the two positions adopted by other jurisdictions to determine when deposition expenses are recoverable as costs. One position is that deposition expenses are taxable to the losing litigant as costs when the deposition is necessary for and is actually used at trial. The contrary position permits taxation of discovery deposition expenses, even if not used at trial, if the deposition was taken in good faith and was actually or reasonably necessary for preparation of the case or for the protection of the prevailing party’s rights.18 The Court adopted the former position, holding 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."19 The two basic reasons employed by the Court in adopting the "necessarily used at trial" test were: (1) discovery depositions are taken for the convenience of counsel in preparing for trial; and (2) it is undesirable to encourage the taking of depositions, which delays and increases the expense of litigation, "with the prospect that the expense may be recouped in an award of costs."20 Since the "test" for taxing deposition expenses is "necessarily used at trial," Rule 208(d) cannot authorize the taxing of deposition expenses against a plaintiff who voluntarily dismisses his case before trial.21

Galowich has been strictly interpreted by nearly all Illinois appellate courts. For example, in Galowich v. Beech Aircraft Corporation (Galowich II), the court upheld the trial court’s denial of deposition expenses for depositions not "actively used" at trial.22 Galowich II noted that the Supreme Court did not define "necessity," other than noting that a discovery deposition may be a "necessity — as when a crucial witness died or disappeared before trial."23 Under the Galowich two-prong test, discovery depositions are not taxable as costs unless the deposition: (1) is used at trial; and (2) the deposition must be "indispensable" or "needed to achieve a certain result."24 In strictly interpreting Galowich, and noting the Supreme Court "was attempting to discourage the taxing of deposition costs," the Galowich II court held that the trial court abused its discretion in taxing deposition expenses as costs, despite the depositions being used to impeach and refresh the recollection of witnesses.25 The Second District has also narrowly interpreted Galowich, describing the standard as "whether [the depositions] were indispensable to the trial, such as when a witness dies or disappears."26

The dye was and still is cast: The ability of a prevailing plaintiff to satisfy its burden that discovery deposition expenses are both necessary and indispensable to the trial is the rare exception.27 Consequently, discovery deposition expenses are not recoverable as costs, except in very limited circumstances.

Unlike discovery deposition expenses, a trial court’s discretion to tax non-statutory expert witness fees and evidence deposition expenses to a non-prevailing defendant as costs became a "hot topic" when the Fifth District Appellate Court issued its opinion in Perkins v. Harris,28 followed by Woolverton v. McCracken.29 However, the other Illinois appellate courts that have addressed taxation and recovery of non-statutory witness fees and evidence deposition expenses as costs have held that these litigation expenses are not recoverable by a prevailing plaintiff.

In Falkenthal v. Public Building Commission of Chicago, the First District reversed the trial court’s taxing of the plaintiff’s expert witness fees, because there is no statutory authority to tax experts’ fees as costs,30 and all witnesses, including experts, are only entitled to a witness fee of $20 per day, pursuant to Section 43(a) of the Act.31 In Lee v. Hyster Company, the First District reaffirmed that Section 43(a) of the Act "does not differentiate between an expert and nonexpert witness, nor does it exclude an expert witness from its scope." Thus, "expert witnesses, like other witnesses, are entitled to $20 per day and 20 cents per mile of necessary travel."32 Less than three months later, in Naiditch v. Shaf Home Builders, Inc., the Second District held that expert fees incurred in connection with consultations during negotiations and trial preparation are not recoverable as costs.33 One month prior to the Perkins decision, the Second District held that expenses associated with an evidence deposition used at trial were not recoverable as costs, because the prevailing plaintiff failed to show its expert witness was unavailable to testify at the trial, and that the evidence deposition was indispensable to trial.34

The Fifth District came to a contrary result. In Perkins, the court held that the trial court did not abuse its discretion in awarding the prevailing plaintiff non-statutory fees charged by her physicians for time spent testifying at an evidence deposition.35 The court relied upon the trial court’s discretion to tax witness fees under Rule 208(d), and the policy behind Rule 204(c): Compensation of treating physicians for time spent testifying at a discovery deposition.36 The court also affirmed the trial court’s award of expenses associated with both the videotaping and transcription of the treating physician’s evidence deposition.37 The court reasoned that the doctor was the primary treating physician of the injured plaintiff, and was unavailable to testify live at the trial due to his demanding surgery schedule. Therefore, the doctor’s evidence deposition was necessarily used at trial, as it was played for the jury in lieu of the doctor’s live testimony.38

In Woolverton v. McCracken, the Fifth District again awarded the prevailing plaintiff non-statutory fees charged by the treating physicians for giving an evidence deposition in lieu of testifying at trial.39 The court noted that Rule 204(c) provides for a reasonable fee to be paid to a physician for time spent testifying in a discovery deposition, and allows a court to make exceptions to the general rule that the party taking the deposition is required to pay the doctor’s fee.40 Even though the fees arose from an evidence deposition, rather than a discovery deposition, the court held that the trial court did not abuse its discretion in awarding the non-statutory witness fees to the prevailing plaintiff.41

After the Perkins and Woolverton decisions, the Fourth District Appellate Court held that the trial court erred in awarding expenses associated with the copying and use of an evidence deposition of the defendant’s medical expert, as such litigation expenses are not recoverable costs.42 In Irwin v. McMillan,43 decided one and one-half months after Woolverton, the Second District directly addressed these issues, and disagreed with the Fifth District. In Irwin, despite the Second District’s decision in Wiegman,44 the trial court refused to vacate its award of non-statutory witness fees and videotape and transcription fees for evidence depositions.45 The Second District reversed the trial court’s award of non-statutory witness fees and evidence deposition expenses to the prevailing plaintiff. Of course, Irwin is significant for attorneys and the judiciary in the Second District, including DuPage County.

In Irwin, the court held that the non-statutory fees charged by the prevailing plaintiff’s treating physician to testify at an evidence deposition are not taxable against the defendant, despite the parties stipulating that the treating physician was unavailable to testify at trial.46 In support of this holding, the court reasoned that (1) Rule 204(c) does not require a losing defendant to pay a treating doctor’s evidence deposition fees; (2) reading Rule 204(c) in conjunction with Rule 208, these fees must be borne by the party taking the evidence deposition, the prevailing plaintiff; (3) since the treating physician’s fees to testify live at trial could not be taxed against the defendant, the doctor’s fee to testify via evidence deposition likewise cannot be taxed against a defendant, as the unavailability of a witness to testify at trial does not rise to the level of "indispensable;"47 and (4) since a doctor does not need to be "unavailable" for his evidence deposition to be introduced at trial (Rule 212(b)), a blanket rule requiring defendants to pay a plaintiff’s treating doctor’s fee for testifying via evidence deposition would violate the "necessary" or "indispensable use at trial" test.48 Therefore, in the Second District, the fee charged by a treating physician to testify at trial via evidence deposition is not recoverable by a prevailing plaintiff as a cost.

The Irwin court also reversed the award of non-statutory witness fees charged by two of plaintiff’s health care professionals to testify at trial in plaintiff’s case-in-chief. In support of this holding, the court reasoned that (1) Section 2-1101 of the Code of Civil Procedure49 does not apply; and (2) Section 4.3(a) of the Act does not require a defendant who subpoenas a plaintiff’s medical providers to pay more than $20 per day, and thus does not require payment of non-statutory witness fees to a subpoenaed witness that charges more than $20 per day to testify at trial.50 Therefore, in the Second District, witness fees recoverable by a prevailing plaintiff as costs are limited to $20 per day.

Finally, the Irwin court reversed the trial court’s award to the prevailing plaintiff of both videotaping and transcribing the plaintiff’s treating doctor’s evidence deposition. In support of this holding, the court reasoned: (1) pursuant to Rule 206, the party requesting that the evidence deposition be videotaped is responsible for paying the expenses associated with the videotaping; and (2) merely playing a videotaped evidence deposition at trial does not mean it was "necessary" or "indispensable" to the trial.51

This leaves attorneys and judges with a conflict between the Second District (and other appellate courts) and the Fifth District. Of course, within the Second District, including DuPage County, this conflict is insignificant, as trial courts are required to follow the decisions of the appellate court of the district in which the trial court is sitting.52 Therefore, within the Second District, trial courts are required to follow Irwin. Going further, it is our position the Irwin court was correct in holding that non-statutory witness fees charged by witnesses and videotape and other expenses for evidence depositions are not taxable as costs. There are a number of reasons for this position, many of which are discussed or referred to in Irwin. While we need not set forth an exhaustive list herein, we would highlight several significant reasons for this position.

First, while the awarding of costs "…is discretionary with the trial court and will not be disturbed on review absent a clear abuse of discretion,"53 a trial court’s discretion to tax costs against a non-prevailing defendant is entirely dependent on specific statutory authorization, and is limited to the items allowed by statute.54 Therefore, a trial court’s discretion to tax costs is limited, and will only be upheld on appeal when the awarded costs are "specifically authorized" by statute. Galowich and its progeny instruct that litigation expenses that are not specifically authorized by a statute or rule to be taxed as costs cannot be awarded to a prevailing plaintiff under the guise of the trial court’s discretion. Thus, either a trial court has no discretion to award costs that are not statutorily authorized, or it is an abuse of discretion to award costs that are not statutorily authorized.55

Second, while Rule 208(d) gives a trial court discretion to tax as recoverable costs the expenses associated with the taking and transcribing of depositions, the depositions must be necessarily used at trial.56 "Necessarily used at trial" means that deposition expenses cannot be taxed as costs unless the use of the deposition is "indispensable" to the trial, as when a witness dies or disappears.57 A treating physician’s unavailability to testify at trial is insufficient.58 Where a prevailing plaintiff fails to carry the burden of proof to show that the use of the evidence deposition was necessary and indispensable to the trial,59 a trial court does not have discretion to tax as costs expenses associated with videotaping and transcribing evidence depositions.60 Furthermore, it is not necessary or indispensable to videotape an evidence deposition to play for the jury at trial. While generally considered a more preferable and persuasive method to present an evidence deposition at trial, it is not "necessary" and certainly not "indispensable."

Third, the statutory authority to award witness fee deposition expenses is found in Rule 208. The plain language of Rule 208(c) provides that a witness "…is entitled to the fees… provided by statute for witnesses attending courts in this state." (Emphasis added.) Rule 208(d) provides that "[t]he aforesaid fees… may in the discretion of the trial court be taxed as costs." The statute referred to in Rule 208(c) is Section 4.3(a) of the Act, which provides that witnesses attending trials and depositions receive only a $20 witness fee for each day’s attendance, and then only if supported by an affidavit of the witness. The Act does not differentiate between expert and non-expert witnesses, and does exclude expert witnesses (retained or non-retained) from its scope.61 Neither Section 35/4.3(a) of the Act, nor any other statute or rule, authorizes trial testimony fees above the statutory $20 witness fee (live, videotape or otherwise) to be taxed as costs. Non-statutory witness or expert fees resulting from agreements between a party and its expert witness (retained or non-retained), are not required to be paid by a losing defendant under any rule or statute.62 Expert witness fees, like any other witness fees, are only taxable as costs at the statutory $20 per day witness fee. 63 As a prevailing plaintiff must bear his or her own litigation and trial expenses, 64 additional fees paid to a prevailing plaintiff’s treating physicians or other witnesses are non-statutory and, therefore, cannot be taxed as costs.65

Fourth, Perkins found Falkenthal inapplicable because the plaintiff’s treating physician in Perkins testified by way of evidence deposition, not live at trial, as in Falkenthal. Thus, the recoverable fees awardable to a prevailing plaintiff when the treating physician (or expert) testifies live at trial is the statutory $20, versus whatever "reasonable fee" is charged by the physician to testify at an evidence deposition.66 This distinction is illogical and inconsistent with the Supreme Court’s mandate that it is "undesirable to encourage increased deposition taking."67

Fifth, as correctly noted by the Irwin court, while the policy to compensate doctors for time spent being deposed is applicable, the remainder of Rule 204(c), read in conjunction with Rule 208, requires that the fee is to be paid by the party at whose insistence the deposition is taken. No statute or rule allows a non-statutory "reasonable fee" to be paid to a physician for a deposition to be taxed as costs.68 Further, a prevailing plaintiff is required to submit competent evidence that the fees charged are reasonable.

Finally, Rule 219(e) provides additional guidance and support to the position that the Irwin analysis and result is correct. In Rule 219(e), within the context of voluntary dismissals to avoid discovery deadlines, orders or rules, the Supreme Court provided that "[t]he court may, in addition to the assessment of costs, require the party voluntarily dismissing a claim to pay an opposing party or parties reasonable expenses incurred in defending the action, including but not limited to discovery expenses, opinion witness fees, reproduction costs, travel expenses, postage, and phone charges."69 Thus, the Supreme Court in Rule 219(e) recognizes the long-standing distinction between "costs" and litigation expenses.70

With the exception of the Fifth District, the appellate courts that have addressed taxing non-statutory witness fees and evidence deposition expenses as costs have adhered to Galowich’s mandate that recoverable costs are to be construed narrowly. These courts continue to limit the discretion of a trial court to award costs to a prevailing plaintiff to only those expenses authorized to be taxed as costs by a rule or statute. Of course, this requires practitioners to be mindful of the district in which the action is pending in determining how the trial court should view a request for taxing of non-statutory witness fees and expenses associated with evidence depositions.

IV. Conclusion

Under well-settled Illinois law, certain costs are automatically recoverable by a prevailing plaintiff, and are nearly always agreed to by the non-prevailing defendant. These costs include filing fees, sheriff fees and statutory witness fees. Expenses associated with transcription of discovery depositions may be recoverable in very limited circumstances, such as, for example, when a witness dies or disappears. Non-statutory expert witness fees and evidence deposition expenses are not recoverable in Illinois, except in the Fifth District. Until Perkins and Woolverton, the Illinois appellate courts generally applied Galowich to deny taxing evidence deposition expenses and non-statutory witness fees as costs to a non-prevailing defendant. Whether the Illinois Supreme Court will address these issue in the near future and, if so, how the Court will apply Galowich, remains to be seen.

1. "Litigation expenses" in this article is used to describe litigation expenses other than filing, service and statutory witness fees, which are generally considered recoverable "costs" to a prevailing party. Further, this article discusses recovery of litigation expenses by a prevailing plaintiff mainly within the context of a personal injury case. We do so only because that is one of the "hot topics" in this area of the law. This article applies to any "prevailing" party in most types of civil litigation, including commercial litigation.

2. This article does not attempt to address the "fairness" of whether litigation expenses should be recoverable as costs. There are many arguments in favor of and against litigation expenses being recoverable as costs. For instance, speaking from our admittedly defense perspective, there are many cases that are tried (especially soft tissue auto cases in traditionally conservative jurisdictions, such as DuPage County), in which a "prevailing" plaintiff obtains a small verdict and seeks three to four times more than the verdict in litigation expenses to be taxed as costs. See, e.g., Falkenthal v. Public Building Commission of Chicago, 111 Ill.App.3d 703, 444 N.E.2d 498 (1st Dist. 1983) (Jury verdict of $1,079.50 and trial court awarded $6,845.61 in costs to plaintiff). Regardless of the arguments on both sides, the "American rule," which has always been the law in Illinois, should not lightly be disregarded.

3. 92 Ill.2d 157, 441 N.E.2d 318 (1982).

4. 92 Ill.2d at 162.

5. Id., at 166.

6. 735 ILCS 5/5–101 et seq.,

7. Galowich, 92 Ill.2d at 162.

8. 735 ILCS 5/5-108; Cf., 735 ILCS 5/5-109 (Defendant to Recover Costs). There are many statutes and rules that provide for the taxing of costs, such as 735 ILCS 5/2-1009 (voluntary dismissal) and 815 ILCS 505/1, et seq. (Consumer Fraud and Deceptive Business Practices Act). However, these rules and statutes generally do not specify the costs that are recoverable. But see, S.Ct.Rule 219(e) ("costs" and "expenses" designated separately).

9. Galowich, 92 Ill.2d at 163; See also, Boyle v. Manley, 263 Ill.App.3d 200, 205, 635 N.E.2d 1014 (1st Dist. 1994); Wiegman v. Hitch-Inn Post of Libertyville, Inc., 308 Ill.App.3d 789, 804, 721 N.E.2d 614 (2nd Dist. 1999).

10. Galowich, 92 Ill.2d at 165-66.

11. 705 ILCS 35/4.3(a) (West 1998), which provides that:

(a) Every witness attending in any county upon trials in the courts shall be entitled to receive the sum of $20 for each day’s attendance and $.20 per mile each way for necessary travel. For attending in a foreign county, each day’s travel shall constitute a day of attendance. Every person attending for the purpose of having his deposition taken shall receive the same per diem and mileage as provided in this Section for witnesses in circuit courts. No allowance or charge shall be made, however, for the attendance of a witness unless the witness makes an affidavit stating the number of days he or she actually attended, and that attendance was at the instance of one or both of the parties or his or her attorney.

12. See, e.g., Wiegman, 308 Ill.App.3d at 804 (Subpoenaing and copying of medical records and enlargement of photographs used at trial not recoverable cost.); Nagel v. Gerald Dennen & Co., 272 Ill.App.3d 516, 525, 650 N.E.2d 547 (1st Dist. 1995); Boyle, 263 Ill.App.3d at 206 (Transcripts of the proceedings from the first trial not recoverable as costs.)

13. As the test for taxing deposition costs is the depositions being necessarily used at trial, absent a trial, deposition expenses cannot be recovered. Galowich, 92 Ill.2d at 167 (voluntary dismissal); See also, Howell v. Thompson, 161 Ill.App.3d 466, 467-68, 514 N.E.2d 813 (2nd Dist. 1987) (Cost of discovery deposition used by physician in preparation for defense of medical malpractice suit not recoverable where plaintiff voluntarily dismissed suit before trial – failure of suit to reach trial prohibited deposition expenses being taxed as costs.); Petition of Village of Kildeer, 191 Ill.App.3d 713, 722-23, 548 N.E.2d 654 (2nd Dist. 1989) (Deposition expenses cannot be assessed against a plaintiff that voluntarily dismisses suit before trial, despite use of depositions at hearing.); Gebelein v. Blumfield, 231 Ill.App.3d 1011, 1014-15, 597 N.E.2d 265 (5th Dist. 1992) (Deposition expenses not taxable as costs where settlement reached before judgment). There is an exception when a party voluntarily dismisses an action to avoid discovery deadlines, orders and rulings. S.Ct.Rule 219(e) ("[A]ssessment of costs…[and] reasonable expenses in defending the action" awardable.).

14. Galowich, 92 Ill.2d at 162.

15. S.Ct.Rule 208(d); Galowich, 92 Ill.2d at 162-63.

16. See, n. 11.

17. S.Ct.Rule 204(c), which provides:

(c) Depositions of Physicians. The discovery depositions of nonparty physicians being deposed in their professional capacity may be taken only with the agreement of the parties and the

subsequent consent of the deponent or under a subpoena issued upon order of court. 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.

18. Galowich, 92 Ill.2d at 163.

19. Id., at 166.

20. Id., at 164-67.

21. Id., at 167; See, n. 13.

22. 209 Ill.App.3d 128, 141, 568 N.E.2d 46 (1st Dist. 1991) ("Galowich II").

23. Id., citing Galowich, 92 Ill.2d at 166.

24. Galowich II, 209 Ill.App.3d at 142.

25. Id.

26. Wiegman, 308 Ill.App.3d at 804; See also, Boyle, 263 Ill.App.3d at 206; But see, Gleason v. Carter, 212 Ill.App.3d 206, 208-10, 570 N.E.2d 1196 (2nd Dist. 1991).

27. See, also, Cleveland Wrecking Company v. Central National Bank in Chicago, 216 Ill.App.3d 279, 296, 576 N.E.2d 1055 (1st Dist. 1991) (discovery deposition must be "strictly indispensable" to the trial); Boyle, 263 Ill.App.3d at 206 (Depositions cannot be fairly characterized as "indispensable" to trial); Physicians Insurance Exchange v. Jennings, 316 Ill.App.3d 443, 459-64, 736 N.E.2d 179 (1st Dist. 2000); Hesson v. Leichsenring, 321 Ill.App.3d 1018, 1020-21, 748 N.E.2d 795 (4th Dist. 2001) (Discovery deposition of medical expert not used at trial not "necessarily used" at or "indispensable" to the trial.) Gleason, 212 Ill.App.3d at 208-10 ("Under the narrow circumstances of the facts of this case" trial court did not abuse its discretion in awarding deposition expenses.). But see, In re Marriage of Nancy Lefler, 185 Ill.App.3d 677, 685-86, 542 N.E.2d 1 (1st Dist. 1989) (Expenses for deposition awarded as costs without distinguishing Galowich’s narrow interpretation of Rule 208(d)).

28. 308 Ill.App.3d 1076, 720 N.E.2d 1131 (5th Dist. 1999).

29. 321 Ill.App.3d 440, 748 N.E.2d 327 (5th Dist. 2001).

30. 111 Ill.App.3d at 710-11; citing In Re Estate of James, 10 Ill.App.2d 232, 134 N.E.2d 638 (1956) and Hutchinson v. Hutchinson, 152 Ill. 347, 38 N.E. 926 (1894).

31. 111 Ill.App.3d at 711; 705 ILCS 35/4.3(a).

32. 156 Ill.App.3d 214, 219-20, 509 N.E.2d 586 (1st Dist. 1987).

33. 160 Ill.App.3d 245, 268, 512 N.E.2d 1027 (2nd Dist. 1987).

34. Wiegman, 308 Ill.App.3d at 804.

35. 308 Ill.App.3d at 1082-84.

36. Id. at 1084.

37. 308 Ill.App.3d at 1079-81.

38. 308 Ill.App.3d at 1080.

39. 321 Ill.App.3d at 445.

40. Id. at 443; S.Ct.Rule 204(c).

41. 321 Ill.App.3d at 443.

42. Hesson v. Leichsenring, 321 Ill.App.3d 1018, 1021, 748 N.E.2d 795 (4th Dist. 2001).

43. 322 Ill.App.3d 861, 750 N.E.2d 1246 (2nd Dist. 2001).

44. 308 Ill.App.3d 789.

45. Irwin, 322 Ill.App.3d at 863-64.

46. Id., at 865-67

47. Id. at 865, citing, Boyle, 263 Ill.App.3d at 206; Galowich II, 209 Ill.App.3d at 142; and Cleveland Wrecking Co., 216 Ill.App.3d at 296.

48. Irwin, 322 Ill.App.3d at 865-67.

49. 735 ILCS 5-2-1101 (West 1998) (When an expert is subpoenaed to testify at trial and a dispute arises about the expert’s fee, the trial court may conduct a hearing to determine the reasonable fee that should be paid to the expert).

50. Irwin, 322 Ill.App.3d at 866.

51. Id., at 868-69.

52. See, e.g., Aleckson v. Village of Round Lake Park, 176 Ill.2d 82, 92, 679 N.E.2d 1224 (1997).

53. See, e.g., Galowich II, 209 Ill.App.3d at 39-40.

54. Id.; Galowich, 92 Ill.2d at 162.

55. See, Galowich, 92 Ill.2d at 165-68; Galowich II, 209 Ill.App.3d at 139-144; Boyle, 263 Ill.App.3d at 206; Naiditch, 160 Ill.App.3d at 266-68; Wiegman, 308 Ill.App.3d at 804; Irwin, 322 Ill.App.3d at 866 (Where there is not a "statute or rule that allows a trial court to tax as costs fees a witness charges for appearing and testifying in court," the trial court abused its discretion in awarding such non-statutory fees.); Cf. Woolverton, 321 Ill.App.3d at 445.

56. Galowich, 92 Ill. 2d at 166.

57. See, e.g., Wiegman, 308 Ill.App.3d at 804; Boyle, 263 Ill.App.3d at 206 (and cases cited therein).

58. Irwin, 322 Ill.App.3d at 865-67.

59. See, e.g., Wiegman, 308 Ill.App.3d at 804; Galowich II, 209 Ill.App.3d at 142.

60. See, Irwin, 322 Ill.App.3d at 869.

61. 156 Ill.App.3d at 220; Falkenthal, 111 Ill.App.3d at 710-11; Irwin, 322 Ill.App.3d at 867-68.

62. Id.

63. Lee, 156 Ill.App.3d at 219-20; Falkenthal, 111 Ill.App.3d at 711; Naiditch, 160 Ill.App.3d at 266; Irwin, 322 Ill.App.3d at 867-68

64. Galowich, 92 Ill.2d at 166.

65. Lee, 156 Ill.App.3d at 220; Naiditch, 160 Ill.App.3d at 266; Falkenthal, 111 Ill.App.3d at 711; Irwin, 322 Ill.App.3d at867-68.

66. Irwin, 322 Ill.App.3d at 865.

67. Galowich, 92 Ill.2d at 167.

68. Irwin, 322 Ill.App.3d at 865.

69. S.Ct.Rule 219(e).

70. See, Valdvinso v. Luna-Monalac Medical Center, Ltd., 2002 WL 257331, p.8 (1st Dist., February 21, 2002) (Recognizing the distinction between "costs" and "expenses" in Rule 219(e).).

Mark W. Monroe is a partner in the Downers Grove firm of Momkus Ozog & McCluskey, LLC. He concentrates his practice in the areas of insurance coverage, appellate law, commercial litigation, and general casualty defense. Mr. Monroe received his B.S. in 1977 from Trenton State College, and his J.D. from Northern Illinois University College of Law (summa cum laude) in 1986.

Anne M. Riegle, B.A. Summa Cum Laude 1989 University of Michigan, J.D. 1993 DePaul Uni-versity College of Law, is an associate at Momkus Ozog & McCluskey, LLC, and concentrates her practice in the areas of insurance defense, general civil litigation, insurance coverage and appellate practice.


 
 
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