Plaintiff sued defendant for injuries sustained throughdefendant's negligence. During trial, plaintiff presented thetestimony of his treating physician, Dr. Preston Wolin, byvideotaped evidence deposition because Wolin was not available totestify at trial due to his professional schedule. Plaintiff alsorequired the services of a Spanish interpreter during his owntestimony because he does not speak English. Finally, MelvinWeidner, one of plaintiff's witnesses, failed to show up at trial. Defendant subsequently took Weidner's evidence deposition andpresented it during its case-in-chief.

After a jury verdict in his favor, plaintiff filed a motionfor costs. Defendant agreed to all costs except:

Dr. Preston Wolin (trial testimony) $2,400.00

Court Reporter (Wolin's deposition transcript) 921.06

Videographer (record) 766.50

Videographer (playback) 630.00

Spanish Interpreter 428.80

Melvin Weidner (trial subpoena fee) 22.80

After a hearing, the trial court found that the "contested costswere necessary and integral to the presentation of Plaintiff's caseto the jury" and ordered defendant to reimburse plaintiff.

I. Dr. Wolin's Fee

Defendant contends that the fees paid by plaintiff to histreating physician for the time spent giving his evidencedeposition so that the physician would not be required to appear attrial was an ordinary expense of litigation and not reimbursableunder Rule 208. Plaintiff responds that because Dr. Wolin was histreating physician, and the only person who could testify regardingplaintiff's injuries and treatment, his testimony was indispensableat trial. We agree.

Any costs charged to the losing party in a lawsuit must beauthorized specifically by statute. Galowich v. Beech AircraftCorp., 92 Ill. 2d 157, 162, 441 N.E.2d 318, 320 (1982). However,"the General Assembly may grant the power in general terms to thecourts, which may in turn make rules or orders under which costsmay be taxed and imposed." Gebelein v. Blumfield, 231 Ill. App. 3d1011, 1013, 597 N.E.2d 265, 267 (1992).

Section 5-108 of the Code of Civil Procedure (735 ILCS 5/5-108(West 2000)) allows for costs to be taxed against defendants, butdoes not specifically identify which expenses are allowed to betaxed as costs. Woolverton v. McCracken, 321 Ill. App. 3d 440,442, 748 N.E.2d 327, 329 (2001). However, Supreme Court Rule 208provides that deposition costs "may in the discretion of the trialcourt be taxed as costs." 134 Ill. 2d R. 208(d).

In Galowich, our supreme court further defined the costscovered by Rule 208, stating,

"[N]either the Illinois costs statute nor the supremecourt rules provide a specific definition of costs. However, the term has acquired a fixed and technicalmeaning in the law. Costs are allowances in the natureof incidental damages awarded by law to reimburse theprevailing party, to some extent at least, for theexpenses necessarily incurred in the assertion of hisrights in court. [Citations.] We therefore interpret Rule208(d) as authorizing the trial court to tax as costs, inits discretion, the expenses only of those depositionsnecessarily used at trial." Galowich, 92 Ill. 2d at 165-66, 441 N.E.2d at 322.

Since Galowich, the Second and Fifth Districts have addressed thetrial court's authority to tax as costs the expenses of a treatingphysician's evidence deposition used at trial in lieu of livetestimony with differing results.

In Irwin v. McMillan, 322 Ill. App. 3d 861, 750 N.E.2d 1246(2001), the Second District reasoned that the plaintiff's treatingphysician was not "indispensable" because he was not "unavailable"by reason of death or disappearance. Irwin, 322 Ill. App. 3d at866, 750 N.E.2d at 1250. Therefore, his evidence deposition wasnot "necessarily used at trial" under Supreme Court Rule 208. Irwin, 322 Ill. App. 3d at 866, 750 N.E.2d at 1250; see alsoWiegman v. Hitch-Inn Post of Libertyville, Inc., 308 Ill. App. 3d789, 721 N.E.2d 614 (2nd Dist. 1999).

The Fifth District, in Perkins v. Harris, 308 Ill. App. 3d1076, 720 N.E.2d 1131 (1999), and Woolverton v. McCracken, 321 Ill.App. 3d 440, 748 N.E.2d 327 (2001), found that whether an evidencedeposition was "necessarily used at trial" is a matter within thediscretion of the trial court. The court reasoned that thetreating physicians were the only witnesses able to testifyregarding the plaintiffs' injuries and treatments. The evidencedepositions were necessarily incurred by plaintiffs in assertingtheir rights in court and were not the ordinary expenses oflitigation. The court concluded that because the physicians'demanding schedules did not allow them to testify, the depositionswere "necessarily used at trial" under Rule 208. Perkins, 308 Ill.App. 3d at 1080, 720 N.E.2d at 1134; Woolverton, 321 Ill. App. 3dat 445, 748 N.E.2d at 333.

We recognize that the Irwin court was concerned with thepossibility of abuse of Rule 208 by a plaintiff attempting to shiftdeposition costs to a defendant by merely alleging that the witnessis unavailable to testify due to a demanding work schedule. Whilewe share this concern, we find the Second District's interpretationof Rule 208 too rigid and its results too harsh. Therefore, weagree with the Fifth District that rule 208 grants the trial courtthe discretion to tax costs to a defendant based on the individualcircumstances of each case. We trust that trial courts willexercise their discretion under Rule 208 wisely.

A trial court's award of costs and fees is a discretionarymatter and will not be disturbed on review absent a clear abuse ofdiscretion. Perlman v. Time, Inc., 133 Ill. App. 3d 348, 355, 478N.E.2d 1132, 1138 (1985). An abuse of discretion is found if thetrial court "acted arbitrarily without the employment ofconscientious judgment or, in view of all the circumstances,exceeded the bounds of reason and ignored recognized principles oflaw so that substantial prejudice resulted." Zurich Insurance Co.v. Raymark Industries, Inc., 213 Ill. App. 3d 591, 595, 572 N.E.2d1119, 1122 (1991). The role of a reviewing court is not tosubstitute its judgment for that of the trial court. Woolverton,321 Ill. App. 3d at 444, 748 N.E.2d at 331.

In the case before us, the trial court determined thatplaintiff was entitled to be reimbursed for the costs connectedwith taking Dr. Wolin's evidence deposition, which was used at thetrial. These expenses were necessarily incurred by plaintiff inasserting his rights in court and were not the ordinary expenses oflitigation. Additionally, Dr. Wolin's practice is located inChicago. Forcing him to testify at trial would not only requireabsence from his practice for the time he would testify, but wouldalso require substantial travel time. Under the circumstances, wecannot say that the trial judge erred in awarding as costs the feescharged by plaintiff's treating physician for giving an evidencedeposition used at trial.

II. Court Reporter and Videographer Fees

Defendant also argues that the trial court erred by awardingplaintiff the costs of videotaping Dr. Wolin's deposition. CitingSupreme Court Rule 206, (134 Ill. 2d R. 206(f)(5)), defendantcontends that plaintiff is required to pay the costs of videotapingthe deposition because the deposition was videotaped at plaintiff'sinsistence.

We find that the trial court did not abuse its discretion intaxing the costs of the court reporter and videographer because thedeposition itself was "necessarily used at trial." Rule 206 statesthat "[t]he party at whose instance the videotaped deposition istaken shall pay the charges of the videotape operator *** and ***charges for filing the videotape of an evidence deposition." 134Ill. 2d R. 206. However, the rule is silent on whether that partymay be reimbursed for those charges.

As discussed above, Rule 208 authorizes the trial court toaward costs to the prevailing party for depositions "necessarilyused at trial." The costs of videotaping, editing, andtranscribing an evidence deposition fall within Rule 208 "becauseSupreme Court Rule 208 provides for fees associated withvideotaping and transcription and, as a result, provides for thetrial court to tax both to defendant." Perkins, 308 Ill. App. 3dat 1081, 720 N.E.2d at 1135.

The trial court did not abuse its discretion in awarding coststo plaintiff for the fees associated with the court reporter andvideographer. The deposition was necessarily used at trial and thecosts of recording and transcribing of the deposition are allowedto be taxed to the prevailing party under Supreme Court Rule208(d).

III. Interpreter and Trial Subpoena Fees

Defendant's final contentions are that the trial court abusedits discretion by awarding as costs the fee for the services ofplaintiff's interpreter during trial and the trial subpoena feepaid to plaintiff's witness, Melvin Wiedner. It argues that thecourt lacked the statutory authority required to assess thoseexpenses as costs because they are the ordinary expenses oflitigation.

As noted above, the allowance of costs for ordinary expensesand the burden of litigation is entirely dependent upon statutoryauthorization. Galowich, 92 Ill. 2d at 162, 441 N.E.2d at 320. While, section 5-108 of the Code of Civil Procedure (735 ILCS 5/5-108 (West 2000)) does not specifically define the word costs,section 1-105 of the Code (735 ILCS 5/1-105 (West 2000)) allows thesupreme court to provide for the assessment of costs by rule. Plaintiff has cited no statute or rule that would allow us to shiftthe costs of the interpreter or the subpoena fees to defendant. Without such authority, the court was powerless to grant relief. The trial court abused its discretion in requiring the cost ofplaintiff's interpreter and Weidner's subpoena fee to be paid bythe defendant.

The judgment of the circuit court of Will County is affirmedin part and reversed in part.

Affirmed in part and reversed in part, cause remanded.

BRESLIN and HOLDRIDGE, JJ., concur.