Id. at 180; see also Weeks v. Chaboudy, 984 F.2d 185, 189 (6th Cir. 1993) (recognizing the applicability of joint and several liability in the § 1983 context via Watts). Defendants also cite Ortho-McNeil Pharmaceutical, Inc. v. Mylan Laboratories, Inc., 569 F.3d 1353 (Fed. Cir. 2009) [Ortho-McNeil I], as an example of the one-satisfaction rule's application in the context of a plaintiff's taxable costs. Ortho-McNeil I was one of two patent infringement cases filed regarding the antibiotic levofloxacin.

For the remaining nine Plaintiffs, the Court has discretionary authority to apportion taxable costs among the non-prevailing parties. See Ortho-McNeil Pharm., Inc. v. Mylan Labs. Inc., 569 F.3d 1353, 1357 n.4 (Fed. Cir. 2009) ("As a general rule, it is well established that in multiparty proceedings before a single judge (as where multiple losing parties are joined in one case, or where multiple cases are consolidated into a single proceeding), the district court has discretion to apportion payment of jointly incurred costs among the losing parties . . . ." (internal footnote omitted)); In re Paoli R.R. Yard PCB Litigation, 221 F.3d 449, 469 (3d Cir.) (2000) ("The general rule in this circuit and others is that a district court, in exercising its equitable discretion, may apportion costs between the prevailing and non-prevailing parties as it sees fit.").

In reviewing taxable costs under 28 U.S.C. § 1920, we apply the procedural law of the regional circuit, here the Eighth Circuit. See Ortho-McNeil Pharm., Inc. v. Mylan Labs. Inc., 569 F.3d 1353, 1356 (Fed. Cir. 2009) (procedural matters not unique to the Federal Circuit are governed by regional circuit law). 28 U.S.C. § 1920 defines the costs that a district court may tax. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987).

See Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 764 (8th Cir.2006) (“[A] division of ... costs among the thirteen cases was equitable.... [A]pportionment reduced the risk of duplicative cost recovery.”). See also Ortho–McNeil Pharm., Inc. v. Mylan Labs. Inc., 569 F.3d 1353, 1358 (Fed.Cir.2009) (applying Fourth Circuit law) (vacating a district court's award of litigation-wide expenses and remanding for apportionment among all cases). The district court abused its discretion in awarding the plaintiff full costs for litigation-wide depositions. * * * * * *

Partial or apportioned costs have on occasion been awarded, when appropriate to the circumstances. See 10 Wright Miller, Federal Practice Procedure § 2667 (3d ed. 2010); Ortho-McNeil Pharm., Inc., v. Mylan Labs. Inc., 569 F.3d 1353, 1358 (Fed. Cir. 2009); K-S-H Plastics, Inc. v. Carolite, Inc., 408 F.2d 54, 60 (9th Cir. 1969). This court has observed that costs should be apportioned only under "limited circumstances, such as when the costs incurred are greatly disproportionate to the relief obtained."

The parties have not cited (and this Court has not found) precedent in the Eighth Circuit on whether costs must be apportioned where a defendant settles with one party and agrees to bear its own costs, and later prevails against the remaining plaintiffs. However, the Federal Circuit analyzed analogous circumstances in Ortho-McNeil Pharm., Inc. v. Mylan Labs., Inc., 569 F.3d 1353 (Fed. Cir. 2009). In that case, the plaintiff, Daiichi Pharmaceutical Co. ("Daiichi"), sued Mylan Laboratories ("Mylan") for patent infringement relating to an antibiotic drug called levofloxacin.

It is true that Plaintiff cannot recoup duplicate cost awards. See, e.g., Ortho-McNeil Pharm., Inc., v. Mylan Labs., 569 F.3d 1353, 1358 (Fed. Cir. 2009). But Plaintiff's counsel have repeatedly stated, at oral argument and elsewhere, that they have no intention of seeking duplicative cost awards.

See R. 242. Where there are multiple non-prevailing parties, courts presume that each non-prevailing party is jointly and severally liable, "unless it is clear that one or more of the losing parties is responsible for a disproportionate share of the costs." Anderson v. Griffin, 397 F.3d 515, 523 (7th Cir. 2005) (collecting cases); see also Ortho-McNeil Pharm., Inc. v. Mylan Labs., Inc., 569 F.3d 1353, 1357 (Fed. Cir. 2009). Courts have discretion to apportion costs between the parties. See In re Paoli, 221 F.3d at 469 ("The general rule in this circuit and others is that a district court, in exercising its equitable discretion, may apportion costs between the prevailing and non-prevailing parties as it sees fit.").

The Clerk commends Electrolux for splitting the costs of these depositions over the three cases, in recognition of the fact that it cannot recoup duplicate cost awards. Ortho-McNeil Pharm., Inc. v. Mylan Labs., 569 F.3d 1353, 1357 (Fed. Cir. 2009). NJM does not object to the costs of the Ellis and two Crabtree depositions.

Fleming's attempt to receive further damages in this lawsuit for selling devices infringing the '038 and '653 patents is barred by the prohibition against a double recovery. See Ortho-McNeil Pharmaceutical, Inc. v. Mylan Laboratories, Inc., 569 F.3d 1353 (Fed.Cir. 2009) (holding that in a patent infringement action the "prevailing party may receive only one satisfaction of costs"). The Court must be careful, however, to dismiss only those portions of Counts One and Two that were actually litigated in the prior trial.