In personal injury actions, and in all civil actions in Illinois where damages are awarded, the prevailing plaintiff is entitled to recover “costs”, in addition to the damages awarded. To ensure that his or her client recovers full compensation under the law, top Chicago personal injury lawyers must familiarize themselves with the relevant statutory authority and case law in Illinois governing recoverable costs.
At common law, a losing litigant was not responsible for paying the costs and expenses of his prevailing adversary. However, since the mid-1800s, the prevailing plaintiff’s recovery of costs has been authorized by statute in Illinois.
Since 1983, the Illinois cost-recovery statute has read, “If any person sues in any court of this state in any action for damages personal to the plaintiff, and recovers in such action, then judgment shall be entered in favor of the plaintiff to recover costs against the defendant, to be taxed, and the same shall be recovered and enforced as other judgments for the payment of money, except in the cases hereinafter provided.” 735 ILCS 5/5-108 (West 2000) (emphasis added).
Thus, the provision for awarding costs is mandatory. However, the term “costs” is not defined in section 5-108 or any of the previous versions of the statute.
Unfortunately for prevailing plaintiffs in personal injury and other civil actions, recent Illinois case law has construed the statute narrowly. In Galowich v. Beech Aircraft Corp., the Illinois Supreme Court stated that the “test” for when the expense of a deposition is taxable as costs is its “necessary use at trial.” Gallowich, 92 Ill. 2d at 167. The Court concluded that, in general, the cost of taking a discovery deposition is one of the ordinary expenses of litigation and, therefore, not recoverable by the prevailing party.
More recently, in Vicencio v. Lincoln-Way Builders, Inc., 204 Ill. 2d 295 (Ill. 2003), the Illinois Supreme Court limited this amount of costs recoverable by the prevailing plaintiff. The Court stated that the determinative factor in Galowich was not “necessary use,” but “at trial.” Further, the Court stated that the “necessary-use-at-trial-test” was limited to those costs specifically referred to in Illinois Supreme Court Rule 208 (“Rule 208″), which includes charges of the court reporter or stenogapher, fees of a videographer, charges for transcription and filing, and the statutory fee witness fee and fee of the officer taking and certifying the deposition.
Thus, even if a deposition is necessarily used at trial, “only those costs enumerated in Rule 208, not all costs associated with the deposition, may be taxed at the trial court’s discretion.” 204 Ill. 2d at 298. This does NOT include the professional fee of the witness, including a treating physician.
To determine whether a deposition is “necessarily used at trial,” the Supreme Court held that “necessity requires more than mere significance of the deposition in terms of its evidentiary value.” Id. A deposition is “necessarily used at trial only when it is relevant and material and when the deponent’s testimony cannot be procured at trial as, for example, if the deponent has died, has disappeared before trial, or is otherwise unavailable to testify.” Id.
The Illinois Supreme Court has held that the following costs ARE recoverable by the prevailing plaintiff:
- Commonly understood “court costs,” such as filing fees
- Subpoena fees
- Statutory witness fees — see 705 ILCS 35/4.3 (West 2000)
- Deposition expenses listed in Rule 208 (i.e. fees of videographer, court reporter, etc.) only for those depositions “necessarily used at trial” — see Vicencio, 204 Ill. 2d at 298-300
The Illinois Supreme Court has held that the following costs are NOT recoverable by the prevailing plaintiff:
- Professional fee charged by a non-party treating physician for his or her deposition, including an evidence deposition
- Fees for a healthcare professional’s report — see Moller v. Lipov, 368 Ill. App. 3d 333 (1st Dist. 2006).
Experienced Chicago, Illinois personal injury lawyers must stay abreast of Illinois law concerning the “costs” recoverable for prevailing plaintiffs to maximize the compensation for their clients.
