Jacinta Downing v. ABBOTT LABORATORIES and ABBOTT MOLECULAR INC.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 11, 2023
Decided September 22, 2023
By the court
No. 23-1440
JACINTA DOWNING,
Plaintiff-Appellant,
v.
ABBOTT LABORATORIES and ABBOTT
MOLECULAR INC.,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 1:15-cv-05921
John J. Tharp, Jr.,
Judge.
O R D E R
Jacinta Downing worked for many years at Abbott Molecular, Inc. She later sued
that company as well as Abbott Laboratories (collectively “Abbott”), alleging racial
discrimination and retaliation. Many of her claims survived summary judgment, and
those were tried to a jury in August 2021, during the COVID-19 pandemic. The jury
found for Abbott and the district court entered judgment for the companies, which we
affirmed.
Abbott submitted a Bill of Costs requesting $63,103.77 under Federal Rule of
Civil Procedure 54(d). Downing objected, which the district court sustained in part and
overruled in part, awarding Abbott $36,873.72. Downing appeals the district court’s
award.
 Because the briefs and record adequately present the facts and legal arguments,
and oral argument would not significantly aid the court, this case has been decided without
oral argument. F ED. R. APP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 23-1440 Page 2
Background
This court’s published decision resolving the merits of this appeal is incorporated
by reference into this order. Downing v. Abbott Laboratories and Abbott Molecular, Inc., 48
F.4th 793 (7th Cir. 2022).
Downing requests that this court reverse the judgment of the district court
awarding costs to Abbott, or in the alternative reduce the award of costs. She argues the
district abused its discretion when it taxed costs against her which Abbott incurred
unnecessarily, including: (1) over $9,000 for edited trial transcripts; (2) over $4,000 for
deposition videography; and (3) over $3,000 for color printing instead of black-and-
white copies of exhibits. Downing also objects to the costs award because she says
Abbott inflated its costs to discourage Downing from appealing her claims. Abbott
responds that all of Downing’s objections were heard and addressed by the district
court that presided over the trial. That court did not abuse its discretion in making its
determinations, Abbott submits.
This court reviews the district court’s award of costs for abuse of discretion.
Harney v. City of Chicago, 702 F.3d 916, 921 (7th Cir. 2012). If there is statutory authority
to allow an item to be taxed as a cost under 28 U.S.C. § 1920, a district court’s decision
that a cost was necessary, or that court’s determination of what amount is reasonable,
will not be overturned “absent a showing of clear abuse of discretion.” Weeks v.
Samsung Heavy Indus. Co., 126 F.3d 926, 945 (7th Cir. 1997).
A. Edited trial transcripts
The district court awarded costs for one realtime feed per day of trial, reasoning
that “one real time feed to reference the days’ testimony and prepare for the next
witness was reasonably helpful. See In re Dairy Farmers of Am., Inc., 80 F. Supp. 3d 838,
855 (N.D. Ill. 2015).” Then, sustaining Downing’s objections, the court substantially
reduced the award of costs to Abbott for transcript costs. Relaying its reasoning in
detail, the court sustained Downing’s objection and rejected Abbott’s requests for edited
daily transcripts. Assessing what would and would not be required for Abbott to
prepare and file various motions, the court deducted expedited transcript fees from
Abbott’s requests for costs. The court even provided a chart setting forth its calculations
for the revised transcript costs which it gathered from the receipts Abbott provided and
the transcript rates for the Northern District of Illinois.
Downing argues the district court abused its discretion by awarding costs for a
single edited transcript and a realtime transcript, for each day of trial. She relies on the

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No. 23-1440 Page 3
district court’s Statement and Order on the costs, contending that the district court
ruled both that edited transcripts were unnecessary as well as that the edited transcripts
were necessary and therefore taxable.
This court does not read the district court’s reasoning in its Statement and Order
the same way as Downing. Abbott originally sought costs for the edited transcripts on
an expedited basis. The district court overruled that request, concluding that regular,
30-day transcripts were proper, as the court did not believe Abbott required an edited
transcript within 30 days of each trial day. The district court engaged in detailed
factfinding and its conclusions were reasonable. The court taxed only those transcript
costs that were necessary, for example, by substantially trimming the award for daily
transcripts. Such specific examination and thorough consideration is what Rule 54(d)
contemplates, and is not an abuse of discretion.
B. Deposition videography
Downing objects to the taxation of costs for videotaping the depositions of three
of the trial witnesses. The district court had the authority under 28 U.S.C. § 1920(2) to
tax the videorecording and transcript services associated with these witnesses, which
Downing does not dispute. Rather, she argues the costs of those services were not
necessary.
In its Statement and Order resolving costs, the district court reasoned that when
Abbott took the depositions, “it did not know whether it would need to show the jury
video depositions.” It considered that a witness may not be available, especially due to
the possibility of exposure to COVID-19. This reasoning is sound, given the timing of
the trial during the pandemic. Downing objects, noting that Abbott did not use the
videos of the deposition. But whether a costs award is proper is not decided in
hindsight, but whether it was “reasonably necessary” to the cost at the time it was
taken. Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 455 (7th Cir. 1998). Given the
pandemic, or other reasons why trial witnesses may not be available, the district court
did not abuse its discretion by concluding that the choices to videotape these witnesses’
depositions was reasonable and necessary when those decisions were made.
Abbott bore the risk of its decision to pay to have these witnesses’ testimony
preserved on video. If Downing had prevailed at trial, then Abbott would have had to
absorb these costs. Because Abbott prevailed, these deposition videography services are
a taxable statutory cost, and they were reasonable and necessary when Abbott decided
to preserve the witnesses’ testimony by video. The district court did not abuse its
discretion when it taxed these videography costs.

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No. 23-1440 Page 4
C. Color printing of certain trial exhibits
Downing argues the district court was wrong to award Abbott costs under 28
U.S.C. § 1920(4) for the color copying of a portion of Abbott’s trial exhibits. Abbott
responds that any color printing was limited, comprising less than half of the total
pages of its trial exhibits, and that the district court explained why this cost was
reasonable and necessary.
The district court reasoned that “[m]any of the exhibits presented charts that
would not translate well to black and white presentation.” That court presided over this
case from 2016 through 2023, including its substantial motion practice and the two-
week trial. So, it is in the better position to make this decision as to the necessity of color
paper hard copies of exhibits, including because, as the district court stated, “[o]ne
paper hard copy of exhibits confers sensible protection, however, against the whims of
technology; having a hard copy backup was prudent.” Given the district court’s
familiarity with this case and the trial exhibits in dispute, its reason for allowing costs to
be taxed for some of the exhibits to be copied in color was not an abuse of discretion.
D. Abbott’s offer to waive costs in exchange for Downing waiving her appeal
Downing takes issue with Abbott’s attempt to settle this case by offering to
waive its costs in exchange for Downing not pursuing her appeal. Downing’s assertion
is a stretch, ascribing pejorative but unsubstantiated motives to Abbott’s offer. A party
which prevails at the end of a lengthy and hard-fought trial and then attempts to settle
to avoid the attorneys’ fees and costs of an appeal acts rationally. Such an offer is not
uncommon in civil litigation practice.
That Abbott was not awarded all the costs it requested does not mean Abbott
inflated its requests or engaged in gamesmanship. A prevailing party is not always
awarded all the costs it seeks. In fact, the history of Abbott’s costs requests shows
instances of Abbott seeking less costs than it might have, such as for more realtime
feeds of the trial proceedings considering COVID-19 restrictions on the number of
people who could be present in the courtroom.
Given the district court’s knowledge of this case, including its history, the
parties, and their counsel, it was well within its discretion to reject this argument by
Downing.

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Conclusion
As the prevailing party, Abbott was presumptively allowed costs under Federal
Rule of Civil Procedure 54(d). Its requests fell within the applicable statute, 28 U.S.C.
§ 1920, and Abbott provided the appropriate documentation in support of those costs.
The district court reviewed the requests and Downing’s objections and ultimately
reduced Abbott’s requested costs by over 40%. Downing has provided no good reasons
to disturb the district court’s exercise of discretion over the award of costs in this case,
including at a two-week trial over which the district court presided. So, we do not
disturb the district court’s decision.
AFFIRMED.

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