Kokins, et al v. Teleflex, Incorporated

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[9806260] Affirmed; Terminated on the merits after oral hearing; Written, signed, published; Judges Briscoe, Tymkovich and Holmes (authoring). Mandate to issue.

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Kokins, et al v. Teleflex, Incorporated U n i t e d States Court of Appeals Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010Circuit 1 T e n t h Page: FILED Doc. 0 O c t o b e r 14, 2010 PUBLISH U N I T E D STATES COURT OF APPEALS T E N T H CIRCUIT E l i s a b e t h A. Shumaker C l e r k of Court K A R E N KOKINS; THE CITY OF W E S T M I N S T E R , a Colorado mu n i c i p a l i t y , Plaintiffs-Appellants, v. T E L E F L E X , INCORPORATED, a f o r e i g n corporation, Defendant-Appellee. N o . 08-1272 A p p e a l from the United States District Court for the District of Colorado ( D . C . No. 1:06-CV-01018-WDM-KLM) S c o t t R. Larson, of Scott R. Larson, P.C., Denver, Colorado, for PlaintiffsAppellants. Laurin D. Quiat (Cory M. Curtis with him on the brief), of Baker & Hostetler L L P , Denver, Colorado, for Defendant-Appellee. B e f o r e BRISCOE, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges. H O L M E S , Circuit Judge. A p p e l l a n t s Karen Kokins and the City of Westminster sued Teleflex in this p r o d u c t s liability action. The jury returned a verdict for Teleflex. Appellants Dockets.Justia.com Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 2 n o w ask us to grant them a new trial because they claim that the district court i mp r o p e r l y instructed the jury on two issues. First, Appellants contend that the d i s t r i c t court failed to give the appropriate instruction for determining whether a p r o d u c t is defectively designed. Second, they allege that the district court erred b y instructing the jury regarding a Colorado statutory presumption of nond e f e c t i v e n e s s . Because we conclude that the district court did not err, we A F F I R M its entry of judgment for Teleflex. I. BACKGROUND M s . Kokins was employed as a park ranger for the City of Westminster, C o l o r a d o , at the City's Standley Lake facility. On July 6, 2004, she was on duty a n d patrolling the lake by boat when the boat's steering cable suddenly snapped, c a u s i n g the boat to careen sharply and throwing Ms. Kokins overboard. She s u s t a i n e d serious and lasting injury to her ankle as a result of the accident. Despite five surgeries, she has not regained normal use of it. Ms. Kokins and the C i t y brought suit in Colorado state court against Teleflex, the maker and seller of t h e steering cable, alleging, inter alia, that the cable was defectively designed and u n r e a s o n a b l y dangerous. Ms. Kokins sought damages in connection with her i n j u r i e s . The City sought to recover the amount it had paid Ms. Kokins in w o r k e r s ' compensation. Pursuant to 28 U.S.C. 1441, Teleflex removed the case t o federal district court based on diversity of citizenship. 2 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 3 A. E v i d e n c e Presented at Trial The parties agreed that the steering cable snapped because water had e n t e r e d its inner core and caused it to rust. 1 But they disagreed about how the w a t e r got there, and whether the cable could have been designed to avoid such c o r r o s i o n . This made the design of the cable a critical disputed issue at trial. A p p e l l a n t s alleged that the cable was defective in two ways. First, they a r g u e d that a design defect allowed water to invade the cable, causing its carbons t e e l core to rust. Appellants' experts presented evidence of how water entered t h e core and contended that grease fittings or O-rings could have sealed gaps in t h e cable. Teleflex's experts responded with evidence that the cable on Ms. K o k i n s ' s boat was incorrectly installed. Teleflex also pointed out that boat o p e r a t o r s are instructed to regularly grease the cable to prevent water penetration, a n d elicited testimony that City employees had failed to undertake this routine 1 I n its brief, Teleflex describes the cable as follows: T h e steering cable is comprised of two main components: the i n n e r core assembly and the outer jacket. The inner core a s s e mb l y is composed of wire rope, surrounded by a carbon steel h e l i c a l cable which is in turn encased in water-proof grease. The i n n e r core assembly is itself enclosed within the water-proof o u t e r jacket. The outer jacket is made up of a white polyethylene s h e a t h , which is surrounded by wire wrap and finally encased in a black polyethylene sheath. A p l e e . Br. at 3 (citations omitted). Teleflex designed the cable model at issue i n the late 1980s, updating a prior model designed in the early 1960s. 3 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 4 ma i n t e n a n c e . One Teleflex engineer testified that of the four to five million c a b l e s sold since the early 1960s, none had failed in the manner of the cable i n s t a l l e d in Ms. Kokins's boat. Second, Appellants contended that the cable was defective because its inner c o r e should have been made of stainless steel rather than carbon steel. Stainless s t e e l was a safer choice, Appellants claimed, because it was less prone to corrode i f water did invade the cable core. Teleflex countered with expert testimony that c a r b o n steel is preferable because it is stronger than stainless steel. Further, e x p e r t s for Teleflex testified that carbon steel expands when it rusts, causing the c a b l e to stiffen, making the boat more difficult to steer, and alerting the operator t h a t the cable needs to be replaced. By contrast, stainless steel is subject to s u d d e n cracking under stress and provides no advance warning that it is deteriorating. A l t o g e t h e r the jury heard testimony about the design, use, and installation o f the cable from eight witnesses--a forensic engineer, a mechanical engineer, t w o mechanics, a metallurgist, a consultant, a product assurance manager for T e l e f l e x , and a former Teleflex senior design engineer. B. D i s p u t e s Concerning Jury Instructions T h e two disputes forming the basis for this appeal arose when it came time t o instruct the jury. First, the parties disagreed about the proper instruction for d e t e r mi n i n g whether a product is defectively designed and unreasonably 4 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 5 d a n g e r o u s . Colorado law provides two different tests. Under the "consumer e x p e c t a t i o n " test, the jury is instructed to find defectiveness if the plaintiff proves t h a t a product is dangerous "to an extent beyond that which would be c o n t e mp l a t e d by the ordinary consumer who purchases it." Ortho Pharm. Corp. v . Heath, 722 P.2d 410, 413 (Colo. 1986) (quoting Restatement (Second) of Torts 402A cmt. I (1965)) (internal quotation marks omitted), overruled on other g r o u n d s by Armentrout v. FMC Corp., 842 P.2d 175 (Colo. 1992). Under the " r i s k - b e n e f i t " test, the jury is instructed to conclude that a product is u n r e a s o n a b l y dangerous if the plaintiff proves that the risks of a challenged d e s i g n outweigh its benefits. Armentrout, 842 P.2d at 18284. Appellants s u b mi t t e d instructions proposing that the district court instruct the jury under both t e s t s , but the district court gave only the risk-benefit instruction. The second dispute centered on the applicability of Colorado Revised S t a t u t e 13-21-403(3), which creates a presumption that a product is not d e f e c t i v e once it has been on the market for ten years. Over Appellants' o b j e c t i o n s , the district court instructed the jury on the presumption. T h e jury returned a verdict for Teleflex and the district court entered j u d g me n t accordingly. Ms. Kokins and the City timely appealed. We have j u r i s d i c t i o n pursuant to 28 U.S.C. 1291. 5 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 6 II. DISCUSSION A. J u r y Instruction for Defective Design A p p e l l a n t s first argue that the district court erred when it refused to instruct t h e jury on Colorado's consumer expectation test. We detect no error in the i n s t r u c t i o n given by the district court. 1. S t a n d a r d of Review " W e review the district court's decision about whether to give a particular i n s t r u c t i o n for abuse of discretion." Martinez v. Caterpillar, Inc., 572 F.3d 1129, 1 1 3 2 (10th Cir. 2009). "We review the trial court's conclusions on legal issues de n o v o , however, and need not defer to its decisions on questions of law." City of W i c h i t a v. U.S. Gypsum Co., 72 F.3d 1491, 1495 (10th Cir. 1996). I n a diversity case like this one, the substance of jury instructions is a ma t t e r of state law. City of Wichita, 72 F.3d at 149495; see also Erie R.R. Co. v. T o m p k i n s , 304 U.S. 64, 7780 (1938). In such a case, our task is "not to reach [ o u r ] own judgment regarding the substance of the common law, but simply to a s c e r t a i n and apply the state law." Wankier v. Crown Equip. Corp., 353 F.3d 862, 8 6 6 (10th Cir. 2003) (quoting Huddleston v. Dwyer, 322 U.S. 232, 236 (1944)) ( i n t e r n a l quotation marks omitted). To properly discern the content of state law, w e "must defer to the most recent decisions of the state's highest court." Id. Of c o u r s e , by the principles of stare decisis, we also are bound by our own prior i n t e r p r e t a t i o n s of state law. "[W]hen a panel of this Court has rendered a 6 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 7 d e c i s i o n interpreting state law, that interpretation is binding on district courts in t h i s circuit, and on subsequent panels of this Court, unless an intervening decision o f the state's highest court has resolved the issue." Id. (emphasis added). 2. L e g a l Background A p p e l l a n t s argue that the district court misapplied Colorado law when it r e f u s e d to instruct the jury on both the consumer expectation test and the riskb e n e f i t test. To grapple with this contention, we must discern the import of C o l o r a d o law. T h e guiding case for us is Camacho v. Honda Motor Co., Ltd., 741 P.2d 1 2 4 0 (Colo. 1987). The plaintiff in Camacho crashed his motorcycle and injured h i s legs. He sued Honda, the manufacturer of the motorcycle, alleging that the v e h i c l e was defectively designed because it lacked steel crash bars that would h a v e protected his legs and lessened the severity of his injuries. Id. at 1242. The t r i a l court granted Honda's motion for summary judgment, applying a form of the c o n s u me r expectation test and concluding that the risk of leg injury was obvious a n d foreseeable to any purchaser of a motorcycle. Id. The Colorado Supreme C o u r t reversed and remanded, holding that the consumer expectation test was i n a d e q u a t e under these circumstances. "Total reliance upon the hypothetical o r d i n a r y consumer's contemplation of an obvious danger," the court reasoned, " d i v e r t s the appropriate focus and may thereby result in a finding that a product is n o t defective even though the product may easily have been designed to be much 7 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 8 s a f e r at little added expense and no impairment of utility." Id. at 1246; see also i d . at 1247 n.8. I n reaching this result, the court offered a standard for identifying those c a s e s where the consumer expectation test would not be sufficient: [ E ]x c l u s i v e reliance upon consumer expectations is a particularly i n a p p r o p r i a t e means of determining whether a product is u n r e a s o n a b l y dangerous . . . where both the unreasonableness of t h e danger in the design defect and the efficacy of alternative d e s i g n s in achieving a reasonable degree of safety must be d e f i n e d primarily by technical, scientific information. I d . at 124647 (citing Ortho Pharm. Corp., 722 P.2d at 414); see also A r m e n t r o u t , 842 P.2d at 18082 (discussing the Camacho standard); White v. C a t e r p i l l a r , Inc., 867 P.2d 100, 10406 (Colo. App. 1993) (applying Camacho to c o n c l u d e that the trial court erred by not instructing the jury concerning the riskb e n e f i t test). O u r court was called upon to apply Camacho in Montag v. Honda Motor C o . Ltd., 75 F.3d 1414 (10th Cir. 1996). In that case, we rejected Appellants' c l a i m that the district court had erred by not giving a combination of both i n s t r u c t i o n s to the jury. "The Colorado Supreme Court," we stated, "has held that c o mp l e x product liability claims involving primarily technical and scientific i n f o r ma t i o n require use of a risk-benefit test rather than a consumer expectations t e s t . " Id. at 141819 (emphasis added). 8 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 9 3. P r o c e e d i n g s before the District Court T h e district court considered extensive arguments on whether to instruct the j u r y in accordance with the consumer expectation test, the risk-benefit test, or b o t h . Appellants argued that both instructions should be given. On the other h a n d , Teleflex urged the district court to instruct the jury only under the riskb e n e f i t test. Acknowledging that it was a "difficult call," the court agreed with T e l e f l e x and decided to give only the risk-benefit instruction. In explaining its d e c i s i o n the court stated: I am going to go on the basis of the risk harm instruction only to a v o i d jury confusion in a case that seems here to be premised on a n unusual set of circumstances of an alleged design defect a l l o w i n g a break to occur in circumstances where the alternative s u g g e s t e d is much beyond the knowledge of the ordinary c o n s u me r and it is based upon distinctions primarily technical a n d scientific, namely whether there is an alternative design of s t a i n l e s s steel to carbon. A p l t . App. at 815. Later, the district court explained further that its conclusion w a s "based upon what seems to be the mandate that the risk benefit formulation b e used where you are dealing with technical or scientific information beyond the n o r ma l -- w h a t would be expected of the normal consumer." Id. at 866 (emphasis a d d e d ) . It seems to us that the best interpretation of the statements above is that t h e district court held that (1) this case involved primarily technical and scientific e v i d e n c e , and (2) it thus was required to give only the risk-benefit instruction. 9 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 10 T h e district court accordingly rejected Appellants' request to instruct the j u r y on both tests and instead gave the following instruction: "A product is u n r e a s o n a b l y dangerous because of a defect in its design if it creates a risk of h a r m to persons or property that is not outweighed by the benefits to be achieved f r o m such design." Id. at 966. 4. T h e District Court Did Not Err O n appeal, Appellants seem to contend that two errors underlie the district c o u r t ' s failure to give the consumer expectation instruction. First, Appellants a r g u e that the district court erred "because it excluded the `consumer expectation' t e s t as a possible basis for liability under Colorado law," Aplt. Opening Br. at 25, i n s t e a d instructing the jury on the risk-benefit test and effectively treating the two t e s t s as mutually exclusive. Second, Appellants contend that the court erred in c o n c l u d i n g that this case involved primarily technical and scientific information: "An ordinary person can understand, without the benefit of scientific or technical i n f o r ma t i o n , that it is unreasonable to use a material that will rust and corrode in a marine steering cable . . . . In short, rust is not rocket science." Id. at 22. a. E x c l u s i o n of the Consumer Expectation Test We first address Appellants' argument that the district court erred by c o n c l u d i n g that, once it found that this case involved primarily technical and s c i e n t i f i c information, it was required to give only the risk-benefit instruction. In s u p p o r t of their allegation of legal error, Appellants hold up Biosera, Inc. v. 10 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 11 F o r m a Scientific, Inc., 941 P.2d 284 (Colo. App. 1996), for the proposition that " t h e `consumer expectation' and `risk/benefit' tests are not mutually exclusive; b o t h tests can be applied in the appropriate circumstances." Aplt. Opening Br. at 21. I n BioSera, the Colorado Court of Appeals did appear to conclude that the t w o tests were not mutually exclusive. The BioSera court stated that "we do not r e a d Camacho as precluding application of the consumer expectation test in an a p p r o p r i a t e case." 941 P.2d at 287. "Rather, a court should review each [test] to d e t e r mi n e if it is an appropriate standard for judging the dangerous nature of the p r o d u c t at issue." Id. The BioSera court concluded that the trial court did not err i n instructing the jury on both tests. Id. The court reached this result because the i s s u e before it--whether a health care company's freezer that stored blood p r o d u c t s was defective because it could be turned off inadvertently by the s l i g h t e s t pressure on its power switch--did "not" involve "the sort of technical, s c i e n t i f i c information that would render use of the `consumer expectation' test i n a p p r o p r i a t e . " Id. In light of Montag, however, we interpret Colorado law on this question as f o l l o w s : where a case is defined primarily by technical and scientific information, t h e court must use only the risk-benefit test; it may not use the consumer e x p e c t a t i o n test, and it may not use both tests together. See Montag, 75 F.3d at 1 4 1 9 . Appellants seem to acknowledge that we closed the door to their argument 11 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 12 i n Montag when we held that "claims involving primarily technical and scientific i n f o r ma t i o n require use of a risk-benefit test rather than a consumer expectations t e s t . " Id. (emphasis added). But Appellants would distinguish or ignore this p r e c e d e n t , arguing that the "suggestion that Montag somehow ties this Court's h a n d s and prevents it from considering the analysis in Biosera . . . is flawed." Aplt. Reply Br. at 6 n.2. T o the contrary, it is Appellants' argument that is flawed; Montag is c o n t r o l l i n g law. Appellants are correct to note, see id., that "[t]he decision of an i n t e r me d i a t e appellate state court is a datum for ascertaining state law which is n o t to be disregarded by a federal court unless it is convinced by other persuasive d a t a that the highest court of the state would decide otherwise." Stickley v. State F a r m Mut. Auto. Ins. Co., 505 F.3d 1070, 1077 (10th Cir. 2007) (quoting West v. A m . Tel. & Tel. Co., 311 U.S. 223, 237 (1940)) (internal quotation marks o mi t t e d ) . But, as we stated above, "when a panel of this Court has rendered a d e c i s i o n interpreting state law, that interpretation is binding on district courts in t h i s circuit, and on subsequent panels of this Court, unless an intervening decision o f the state's highest court has resolved the issue." Wankier, 353 F.3d 866 ( e mp h a s i s added). Biosera came after Montag; however, the Colorado Court of A p p e a l s decided Biosera, so it is not an "intervening decision of the state's h i g h e s t court." Id. (emphasis added). And Colorado's highest court, the C o l o r a d o Supreme Court, has not offered any intervening guidance--through 12 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 13 i n t e r p r e t a t i o n of Camacho or otherwise--indicating that a trial court is authorized t o instruct the jury in products liability cases that are defined primarily by t e c h n i c a l and scientific information regarding the consumer expectation test, in a d d i t i o n to the risk-benefit test. Thus, we appropriately apply Montag here. Consequently, we conclude that the district court committed no legal error when i t held that it was required to instruct the jury on only the risk-benefit test. 2 b. " P r i m a r i l y " Technical and Scientific Information A p p e l l a n t s also contend that the district court erred in instructing the jury c o n c e r n i n g the risk-benefit test in any event because the case does not involve S e p a r a t e l y , Appellants contend that the district court committed error b y not instructing on both tests because "the consumer . . . is entitled to the ma x i mu m of protection" under Colorado products liability law. Aplt. Opening B r . at 24 (quoting Camacho, 741 P.2d at 1246) (internal quotation marks o mi t t e d ) . In light of this goal, Appellants argue, Colorado courts have "approved u s e of the `risk/benefit' test to expand the liability of product manufacturers, not t o restrict it." Id. (emphasis added). Appellants seem to argue that, in weighing h o w to instruct the jury, courts are required to put a thumb on the scale and c h o o s e the instructions that will maximize the likelihood of a plaintiff's recovery. A p p e l l a n t s misunderstand Colorado law. Though Camacho justified its a d o p t i o n of the risk-benefit test as a way to further the public policy underlying t h e doctrine of strict liability in tort, neither that case nor any other suggests that C o l o r a d o courts are guided by a public policy that the consumer should win every d i s p u t e d legal issue. To the contrary, several of the very cases cited by A p p e l l a n t s reversed jury verdicts at the request of the manufacturer. See, e.g., A r m e n t r o u t , 842 P.2d at 183 (holding that the burden is on the consumer, not the ma n u f a c t u r e r , to show that the benefits of a proposed design alternative outweigh t h e risks, and remanding for a new trial); Ortho Pharm. Corp., 722 P.2d at 4 1 5 1 6 (remanding for a new trial at the request of a manufacturer because "[t]he f a i l u r e of the trial court to give an instruction on the risk-benefit test was r e v e r s i b l e error"). 13 2 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 14 p r i m a r i l y technical and scientific information. In that regard, Appellants assert: " A l t h o u g h the case does involve some technical and scientific information, an o r d i n a r y person can form reasonable expectations regarding the dangerous risks p o s e d by the cable and the efficacy of alternative designs." Aplt. Reply Br. at 11 ( e mp h a s i s added); see also id. at 7 ("Plaintiffs have never argued that this case d o e s not involve some technical and scientific information." (emphasis added)). We discern no error. To assess this argument we must look to Colorado cases to see which p r o d u c t s they have deemed to involve primarily technical and scientific i n f o r ma t i o n . We have already reviewed Camacho, in which the Colorado S u p r e me Court found that the feasibility of installing leg guards on a motorcycle w a s defined primarily by technical and scientific information because " ma n u f a c t u r e r s of such complex products as motor vehicles invariably have g r e a t e r access than do ordinary consumers to the information necessary to reach i n f o r me d decisions concerning the efficacy of potential safety measures." 741 P . 2 d at 1247. I n Ortho Pharmaceutical Corp., the direct predecessor to Camacho, the C o l o r a d o Supreme Court found that the dangerousness of an oral contraceptive w a s defined primarily by technical and scientific information. 722 P.2d at 414. The court determined that the plaintiff's claim that her estrogen dose was too high c o u l d not be resolved without balancing the risks and benefits of the chemical 14 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 15 c o mp o s i t i o n of the drug. Id. As three Justices later described it, the Ortho court r e a s o n e d that "[a] consumer of drugs cannot realistically be expected to foresee d a n g e r s in prescribed drugs which even scientists find to be complex and u n p r e d i c t a b l e . " Camacho, 741 P.2d at 1251 (Vollack, J., dissenting). I n Armentrout, a crane oiler sued the crane manufacturer to recover for i n j u r i e s that he suffered when he was trapped in a pinch point between moving p a r t s of the crane. See 842 P.2d at 178. In discussing the legal principles g o v e r n i n g design-defect claims in Colorado, the court noted that "[t]he instruction g i v e n by the trial court incorporate[d] the rule that whether a product is ` u n r e a s o n a b l y dangerous' is to be determined under a risk-benefit analysis." Id. at 1 8 2 . See also White, 867 P.2d at 10506 (holding that the trial court erred by i n s t r u c t i n g the jury under the consumer expectation test, "rather than" under the r i s k - b e n e f i t test, where a truck driver alleged that his gasoline-delivery truck e x p l o d e d due to a defectively designed engine). In light of these cases, we conclude that this case primarily involved t e c h n i c a l and scientific information. In particular, there was testimony of this s o r t about the steering cable, its manufacture and design, the measures taken to k e e p water from entering its inner core, the possible avenues of entry for water i n t o the core, and the chemical and physical properties of two different kinds of s t e e l . Even if this information was not as technical and scientific as the level of e s t r o g e n found in the oral contraceptive at issue in Ortho Pharmaceutical Corp., 15 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 16 i t seems that the design of the steering cable was at least as technical and s c i e n t i f i c -- i f not more so--than the design of a motorcycle without leg guards in C a m a c h o or the design of a crane with a dangerous pinch point in Armentrout. A l t h o u g h common knowledge of rust may have aided the jury's u n d e r s t a n d i n g of the issues, both parties proffered technical and scientific e v i d e n c e from various expert witnesses. Indeed, Appellants themselves called as w i t n e s s e s two boat mechanics, see Aplt. App. at 15960, 31617, a mechanical e n g i n e e r , see id. at 21920, and a forensic engineer and a metallurgist, see id. at 2 6 8 6 9 . Appellants' arguments appear to tacitly acknowledge that the issue for t h e jury's consideration was one of a technical and scientific nature. See Aplt. O p e n i n g Br. at 7 ("Plaintiffs' experts testified that it would be foreseeable to any e n g i n e e r that water would likely enter the carbon steel core in a marine e n v i r o n me n t and cause corrosion." (emphasis added)). T h u s , we hold that the district court did not commit error in determining t h a t , if it concluded that the case involved primarily technical and scientific i n f o r ma t i o n , then it was required to instruct the jury only in accordance with the r i s k - b e n e f i t test. Nor do we believe that the district court erred in concluding that t h i s case involved primarily technical and scientific information. 16 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 17 B. J u r y Instruction on Presumption of Non-Defectiveness A p p e l l a n t s ' second contention is that the district court erred by instructing t h e jury under Colorado law that a product is presumed not to be defective once it h a s been on the market for ten years. We disagree. 1. S t a n d a r d of Review A s discussed in the context of Appellants' first argument, we review a d i s t r i c t court's decision to give a jury instruction for an abuse of discretion. Martinez, 572 F.3d at 1132. However, "[w]hether a jury was properly instructed i n accord with the applicable law and consistent with matters properly within its p r o v i n c e is a question we review de novo." Bitler v. A.O. Smith Corp., 400 F.3d 1 2 2 7 , 1240 (10th Cir. 2004). "The determination of the substance of a jury i n s t r u c t i o n in a diversity case is a matter of state law . . . ." City of Wichita, 72 F . 3 d at 1494. 2. L e g a l Background A t issue here is Colorado Revised Statute 13-21-403(3), which provides t h a t , in a products liability case, "[t]en years after a product is first sold for use or c o n s u mp t i o n , it shall be rebuttably presumed that the product was not defective a n d that the manufacturer or seller thereof was not negligent and that all warnings a n d instructions were proper and adequate." I n 1992, the Colorado Supreme Court held, in Mile Hi Concrete, Inc. v. M a t z , 842 P.2d 198 (Colo. 1992), that it was improper to instruct the jury 17 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 18 c o n c e r n i n g the presumption of 13-21-403(3). See Mile Hi, 842 P.2d at 205. In r e a c h i n g this conclusion, the court focused on the substantive legal context. Specifically, it stated: T o establish liability, a plaintiff must prove each element of a c l a i m for relief by a preponderance of the evidence. A plaintiff h a s the burden of persuasion as to the defective condition of a p r o d u c t . Regardless of whether a product liability action is g r o u n d e d in negligence or strict liability, a plaintiff must prove t h a t the product was defective. I d . (citation omitted). The court noted that Colorado's evidence l a w -- s p e c i f i c a l l y , Colorado Rule of Evidence 301 3-- p r o v i d e d that "a p r e s u mp t i o n does not shift the burden of persuasion." Id. It reasoned that "[i]t is p r e c i s e l y because the plaintiff (the party against whom the presumption is d i r e c t e d ) already has the burden of going forward with evidence in this case [as to t h e issue of defect vel non] that an instruction based on the statutory presumption o f section 13-21-403(3) is meaningless." Id. Under the court's rationale, "a p l a i n t i f f who has presented sufficient evidence to defeat a motion for a directed 3 T h e rule states that: In all civil actions and proceedings not otherwise provided for by s t a t u t e or by these rules, a presumption imposes upon the party a g a i n s t whom it is directed the burden of going forward with e v i d e n c e to rebut or meet the presumption, but does not shift to s u c h party the burden of proof in the sense of the risk of n o n - p e r s u a s i o n , which remains throughout the trial upon the p a r t y on whom it was originally cast. C o l o . R. Evid. 301. 18 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 19 v e r d i c t has necessarily rebutted the presumption of section 13-21-403(3)" and, c o n s e q u e n t l y , "no reason exists for a trial judge to instruct a jury" on it. 4 Id. ( e mp h a s i s added). The court further observed that under Colorado law "[t]he o n l y effect of the statutory presumption of section 13-21-403(3) is to impose the b u r d e n of going forward on the party against whom it is directed." Id. at 207. In t h i s regard, the court specifically noted that "[t]he presumption of section 13-214 0 3 ( 3 ) is not evidence." 5 Id. at 206. W e followed Mile Hi in Perlmutter v. U.S. Gypsum Co., 4 F.3d 864 (10th C i r . 1993), affirming the district court's refusal to instruct the jury under 13-214 0 3 ( 3 ) . "Under Mile-Hi Concrete," we held, "it is not necessary to instruct the j u r y on the presumption contained in section 13-21-403(3) if the plaintiff has p r e s e n t e d evidence sufficient to survive a motion for a directed verdict." Id. at T h i s interpretation of the effect of the presumption is in accord with " [ t ]h e most widely followed theory of presumptions," often referred to as the " b u r s t i n g bubble" theory. Tafoya v. Sears Roebuck & Co., 884 F.2d 1330, 1 3 3 7 n.13 (10th Cir. 1989), overruled on other grounds as recognized by Wagner v . Case Corp., 33 F.3d 1253, 1257 n.4 (10th Cir. 1994); see 2 Kenneth S. Broun, M c C o r m i c k on Evidence 344 at 508 (6th ed. 2006) ("The most widely followed t h e o r y of presumptions in American law . . . has become known as the Thayer or ` b u r s t i n g bubble' theory . . . ."). C h i e f Justice Rovira, joined by Justice Vollack, dissented. They w o u l d have held that 13-21-403(3)'s presumption "does constitute evidence." Mile Hi, 842 P.2d at 207 (Rovira, C.J., concurring in part and dissenting in part) ( e mp h a s i s added). "So finding would enable this court to give some effect to the l e g i s l a t u r e ' s action in passing this statute and thereby avoid a finding that the l e g i s l a t u r e passed a law which is utterly meaningless and ineffective . . . ." Id. ( c i t a t i o n s omitted). 19 5 4 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 20 8 7 5 . Further, in Wagner v. Case Corp., 33 F.3d 1253, 125657 (10th Cir. 1994), applying the logic of Mile Hi, we reached a like conclusion regarding another p r e s u mp t i o n of section 13-21-403--specifically, a presumption found in section 13-21-403(1)(a)). I n 2003, the Colorado General Assembly amended the statute, adding s e c t i o n 13-21-403(4), which provides: "In a product liability action in which the c o u r t determines by a preponderance of the evidence that the necessary facts g i v i n g rise to a presumption have been established, the court shall instruct the j u r y concerning the presumption." See 2003 Colo. Session Laws 128990 ( e mp h a s i s added). No Colorado court has yet determined how 403(4) affects t h e holding of Mile Hi. 3. P r o c e e d i n g s before the District Court W i t h o u t substantial guidance from the Colorado courts, the district court in t h i s case was called upon to determine whether section 13-21-403(4) effectively o v e r r u l e d Mile Hi. Appellants contended that Mile Hi was still controlling; T e l e f l e x countered that the new statute superceded Mile Hi and effected a s u b s t a n t i v e change in Colorado products liability law. After acknowledging the d i f f i c u l t y of the question, the district court concluded that section 13-21-403(4) h a d displaced Mile Hi in favor of a "statutory mandate as a part of those statutes w h i c h enable the product liability actions in Colorado. And [the presumption] is p a r t of the substantive law of the right to recover in Colorado, and it is a 20 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 21 ma n d a t e d part of that right." Aplt. App. at 958. Accordingly the district court i n s t r u c t e d the jury as follows: P r e s u mp t i o n s are legal rules based on experience or public p o l i c y . They are established in the law to assist the jury in d e t e r mi n i n g the truth. C o l o r a d o law provides that if you find that this type of steering c a b l e was first sold for use or consumption 10 or more years b e f o r e plaintiff's injuries, it is presumed that the steering cable w a s not defective. However, the presumption is rebuttable and y o u may consider this presumption together with all other e v i d e n c e in the case in deciding whether the plaintiff has proved b y a preponderance of the evidence that the steering cable was defective. I d . at 967. 4. T h e District Court Did Not Err A p p e l l a n t s now contend that the district court erred by instructing the jury o n the presumption. They make two arguments. 6 First, Appellants argue that p r e s u mp t i o n s are a matter of procedure, not substance, and thus they are A p p e l l a n t s raised an additional objection to the presumption i n s t r u c t i o n before the district court--specifically, that the presumption did not a p p l y because the particular steering cable at issue here was less than ten years o l d . The district court rejected this argument because it interpreted the phrase " [ t ]e n years after a product is first sold for use or consumption," Colo. Rev. Stat. 13-21-403(3) (emphasis added), to mean "a type of product and not the p a r t i c u l a r product." Aplt. App. at 960 (emphasis added). Appellants do not raise t h i s argument on appeal. Accordingly, they have waived (that is, abandoned) it. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) ("[W]e routinely h a v e declined to consider arguments that are not raised, or are inadequately p r e s e n t e d , in an appellant's opening brief."); accord Krastev v. I.N.S., 292 F.3d 1 2 6 8 , 1280 (9th Cir. 2002) ("Issues not raised on appeal are deemed to be waived."). 21 6 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 22 c o n t r o l l e d by federal rather than state law. The federal law on this issue, A p p e l l a n t s claim, can be found in Perlmutter and Wagner, which held that it was e r r o r for a trial court to instruct the jury concerning certain presumptions of s e c t i o n 13-21-403. Second, if state law does apply, Appellants contend that s e c t i o n 13-21-403(4) did not undermine Mile Hi's holding that section 13-214 0 3 ( 3 ) is merely a rebuttable presumption--that disappears from a case if the p l a i n t i f f survives a motion for directed verdict--and, consequently, is not the a p p r o p r i a t e subject of a jury instruction. Teleflex responds that this case is g o v e r n e d by state law, and contends that when the Colorado General Assembly a d d e d section 13-21-403(4), it overruled Mile Hi and "changed the effect of the t e n - y e a r presumption." Aplee. Br. at 14. Both of these arguments are legal in n a t u r e , so our review is de novo. a. S t a t e Law Controls A s to the first argument, Appellants are incorrect: the question before us is g o v e r n e d by state, not federal, law. Our polestar is Federal Rule of Evidence 302, w h i c h provides: "In civil actions and proceedings, the effect of a presumption r e s p e c t i n g a fact which is an element of a claim or defense as to which State law s u p p l i e s the rule of decision is determined in accordance with State law." The a d v i s o r y committee elaborated on the rule's import: It does not follow . . . that all presumptions in diversity cases are g o v e r n e d by state law. In each case cited [where state law was a p p l i e d ], the burden of proof question had to do with a 22 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 23 s u b s t a n t i v e element of the claim or defense. Application of the s t a t e law is called for only when the presumption operates upon s u c h an element. Accordingly the rule does not apply state law w h e n the presumption operates upon a lesser aspect of the case, i . e . "tactical" presumptions. F e d . R. Evid. 302, advisory committee's note. In the case at hand, Appellants c o n t e n d that under Rule 302 the district court was required to apply federal law b e c a u s e the presumption is procedural rather than substantive. Teleflex responds t h a t state law provides the rule of decision here because "[t]he presumption at i s s u e affects the core element of Plaintiffs' claim and Teleflex' defense: whether t h e cable was defective." Aplee. Br. at 16. Teleflex is correct. T h e presumption of section 13-21-403(3) operates with regard to the key s u b s t a n t i v e issue of defect vel non. The Colorado Supreme Court in Mile Hi c l e a r l y recognized this. In particular, the court understood that when section 132 1 - 4 0 3 ( 3 ) ' s presumption was given its ordinary effect under Colorado law, its a p p l i c a t i o n to the substantive question of defect rendered an instruction c o n c e r n i n g the presumption "meaningless." 842 P.2d at 205. Under Colorado R u l e of Evidence 301, section 13-21-403(3)'s presumption did not alter the s u b s t a n t i v e law's allocation of the burden of proof. Id. And, under Colorado's s u b s t a n t i v e products liability law, plaintiff had the burden of going forward on t h e defect question. Id. Consequently, the Mile Hi court reasoned that, once the p l a i n t i f f had introduced sufficient evidence concerning the defect issue to survive a directed verdict, section 13-21-403(3)'s rebuttable presumption concerning the 23 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 24 a b s e n c e of a defect was "necessarily rebutted" and the presumption no longer had a n y meaningful role to play. Id. (emphasis added). Therefore, it is patent from Mile Hi's analysis itself that section 13-214 0 3 ( 3 ) ' s presumption operates with respect to "an element of a claim or defense a s to which State law supplies the rule of decision" and, accordingly, the effect of t h a t presumption must be "determined in accordance with State law." 7 Fed. R. E v i d . 302. 8 T h e Mile Hi court's ultimate conclusion that "[a]n instruction based o n the statutory presumption of section 13-21-403(3) should not be given when t h e r e is evidence to the contrary" turned in part on its view that under (extant) C o l o r a d o law "[t]he presumption of section 13-21-403(3) is not evidence" and t h a t "[t]he only effect of the statutory presumption of section 13-21-403(3) is to i mp o s e the burden of going forward on the party against whom it is directed." 842 P.2d at 20607. We conclude infra that, in enacting section 13-21-403(4), in a l l material respects, the Colorado legislature overruled that view, turning section 1 3 - 2 1 - 4 0 3 ( 3 ) ' s presumption under certain conditions into a matter for c o n s i d e r a t i o n by the jury along with traditional forms of evidence. That c o n c l u s i o n , however, has no impact on our analysis here. Whether section 13-214 0 3 ( 3 ) ' s presumption is viewed as a tool for ordering the presentation of proof c o n c e r n i n g the issue of defect or as substantive proof concerning that issue, it is c l e a r that the presumption operates with regard to "an element of a claim or d e f e n s e as to which State law supplies the rule of decision," Fed. R. Evid. 3 0 2 -- i . e . , the element of defect in a products liability action--and, accordingly, s t a t e law must control our disposition here. F u r t h e r mo r e , our conclusion concerning the operation of section 13-21-403(3)'s presumption also finds support in the nature of the presumption i t s e l f . This presumption cannot be characterized as involving "procedural" t a c t i c a l matters that "do not express a state's policy toward its litigants." 1 Jack B . Weinstein & Margaret A. Berger, Weinstein's Federal Evidence 302.02[2][b] a t 302-6 (Joseph M. Laughlin ed., 2d ed. 2010) (noting as an example of a p r o c e d u r a l or tactical presumption, "the presumption establishing the receipt of a ma i l e d letter," which "operates tactically as a rule of convenience"); see Fed. R. (continued...) 24 8 7 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 25 A p p e l l a n t s ' arguments to the contrary are misguided and unavailing. Their r e l i a n c e on Perlmutter and Wagner to support the view that federal law provides t h e rule of decision here concerning the effect of section 13-21-403(3)'s p r e s u mp t i o n is misplaced. These cases are certainly federal law in the sense that t h e y are decisions of our court. However, in both Perlmutter and Wagner, we w e r e interpreting state law in the diversity context, not independently applying f e d e r a l law. It was only through that diversity lens that we determined that Colorado law, which at the time was defined by Mile Hi, did not permit the jury t o be instructed on certain section 13-21-403 presumptions, including the one e mb o d i e d in section 13-21-403(3). As we discuss infra, to the extent that C o l o r a d o ' s law has shifted direction on this instructional issue, we are obliged in t h e diversity context to follow suit. Furthermore, Appellants' assertion that "[t]he decision of a federal court as t o whether to give or refuse a tendered jury instruction . . . is governed by federal l a w and rules," Aplt. Opening Br. at 28-29, is true. But it also is irrelevant. The (...continued) E v i d . 302, advisory committee's note. Instead, it is evident on its face that s e c t i o n 13-21-403(3)'s presumption expresses a state public policy against c o n s u me r recovery where a product has been on the market for a substantial p e r i o d of time. Accordingly, in view of its "substantive policy" nature, we r e a s o n a b l y may conclude that section 13-21-403(3)'s presumption is the kind of p r e s u mp t i o n that Rule 302's drafters contemplated would fall within its scope. Weinstein & Berger, supra, 302.02[2][a] at 302-5; see id. at 302-6 (suggesting t h a t state law should apply under Rule 302 where a statute "effectuated a state p o l i c y favoring the plaintiff or the defendant in the particular situation involved"). 25 8 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 26 q u e s t i o n before us is not whether the district court properly exercised its d i s c r e t i o n in "[t]he admission or exclusion of a particular jury instruction." City o f Wichita, 72 F.3d at 1495. Instead, the focus of the inquiry is whether the d i s t r i c t court was authorized as a matter of law to instruct the jury concerning s e c t i o n 13-21-403(3)'s presumption. And the resolution of that inquiry p r i n c i p a l l y turns on the legal effect that should be accorded to the presumption--a ma t t e r within the purview of Federal Rule of Evidence 302. Therefore, A p p e l l a n t s ' attempt to frame the issue for decision as a question of federal law on t h e grounds that it relates to giving (or refusing) a particular tendered instruction i s misguided. In sum, guided by Federal Rule of Evidence 302, we are confident that state l a w controls our assessment of whether the district court erred in instructing the j u r y concerning section 13-21-403(3)'s presumption. b. I n t e r p r e t a t i o n of State Law T o address Appellants' second argument, we must determine whether s e c t i o n 13-21-403(4) had a substantive effect on the nature of the presumption of s e c t i o n 13-21-403(3). See 1 Jack B. Weinstein & Margaret A. Berger, W e i n s t e i n ' s Federal Evidence 302.04[1] at 302-9 (Joseph M. Laughlin ed., 2d e d . 2010) ("[O]nce it is determined that a state presumption must be applied under R u l e 302, the court must give the presumption the same effect it would be given u n d e r state law."). Appellants essentially contend that it had no substantive 26 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 27 i mp a c t on section 13-21-403(3)'s presumption and, more specifically, that section 1 3 - 2 1 - 4 0 3 ( 4 ) does not undermine Mile Hi's holding that the "only effect" of s e c t i o n 13-21-403(3)'s presumption is "to impose the burden of going forward on t h e party against whom it is directed" and that the presumption is intended to d i s a p p e a r once a plaintiff meets that burden. Mile Hi, 842 P.2d at 207. To s u p p o r t their argument, Appellants point out that the Colorado General Assembly d i d not remove from section 13-21-403(3) the language providing that the p r e s u mp t i o n is "rebuttable." Aplt. Reply Br. at 17. They also argue that the C o l o r a d o Supreme Court's 2009 decision in Krueger v. Ary, 205 P.3d 1150 (Colo. 2 0 0 9 ) , "confirms that [the Tenth Circuit's] interpretation of Colorado's rebuttable p r e s u mp t i o n s in Wagner and Perlmutter was correct." Id. at 18. Teleflex c o u n t e r s that "there can be no doubt that the statutory amendment was intended b y the legislature to change how the presumption operated at trial." Aplee. Br. at 1 5 . As a result, Teleflex reasons, Perlmutter and Wagner "are no longer good law i n Colorado," id. at 17, and the Tenth Circuit must reassess Colorado law. A s we noted above, in diversity cases our task is "simply to ascertain and a p p l y the state law." Wankier, 353 F.3d at 866 (quoting Huddleston, 322 U.S. at 2 3 6 ) (internal quotation marks omitted). "It is axiomatic that state courts are the f i n a l arbiters of state law." United States v. DeGasso, 369 F.3d 1139, 1145 (10th C i r . 2004). But here there are no relevant Colorado decisions interpreting section 27 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 28 1 3 - 2 1 - 4 0 3 ( 4 ) , so we "must attempt to predict what the state's highest court would d o . " Wankier, 353 F.3d at 866. A s we are sitting in diversity and construing a Colorado statute, w e must give it the meaning it would have in the Colorado c o u r t s . "To accomplish this objective, this court must begin with t h e plain language of the statute. If the statute is unambiguous a n d does not conflict with other statutory provisions, we need l o o k no further." P a r i s h Oil Co., Inc. v. Dillon Companies, Inc., 523 F.3d 1244, 1248 (10th Cir. 2 0 0 8 ) (quoting People v. Luther, 58 P.3d 1013, 1015 (Colo. 2002)) (brackets and c i t a t i o n s omitted). "In construing statutes, our primary duty is to give full effect t o the intent of the General Assembly. . . . [T]he statute should be construed as w r i t t e n since it may be presumed that the General Assembly meant what it clearly s a i d . " Colo. Water Conservation Bd. v. Upper Gunnison River Water C o n s e r v a n c y Dist., 109 P.3d 585, 593 (Colo. 2005) (citations and internal q u o t a t i o n marks omitted). "[W]e may consider the textual context; the statute's l e g i s l a t i v e history; the state of the law prior to the legislative enactment; the p r o b l e m addressed by the legislation; and the relationship between the particular l e g i s l a t i o n and other relevant legislative provisions in an effort to discern the l e g i s l a t i v e intent." Colby v. Progressive Cas. Ins. Co., 928 P.2d 1298, 1302 ( C o l o . 1996) (citations omitted); see also Mile Hi, 842 P.2d at 20708 (Rovira, C . J . , concurring in part and dissenting in part) (collecting cases on statutory interpretation). 28 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 29 S e c t i o n 13-21-403(4) states that "[i]n a product liability action in which the c o u r t determines by a preponderance of the evidence that the necessary facts g i v i n g rise to a presumption have been established, the court shall instruct the j u r y concerning the presumption." Colo. Rev. Stat. 13-21-403(4) (emphasis a d d e d ) . This plain text indicates that the Colorado General Assembly sought to ma k e clear that, once a showing by a preponderance has been made concerning t h e facts giving rise to section 13-21-403(3)'s presumption, an instruction r e g a r d i n g the presumption must be given. In the face of this plain language, Appellants would have us believe that " [ t ]h e General Assembly's decision to statutorily require a jury instruction r e f l e c t s nothing more than a legislative determination that, procedurally, a jury i n s t r u c t i o n on the presumption will not be confusing to the jury." Aplt. Reply Br. a t 16. Setting to one side the observation that this statement seems to concede t h a t the district court here was permitted--though not obliged--to instruct the j u r y on section 13-21-403(3)'s presumption, such a reading of section 13-214 0 3 ( 4 ) would require us to assume that the Colorado General Assembly passed a s u p e r f l u o u s statute--one with a mandatory directive that the General Assembly d i d not intend to be mandatorily implemented. That would be an absurd i n t e r p r e t a t i o n . For us to indulge it, we would have to abandon "our primary duty . . . to give full effect to the intent of the General Assembly," Colo. Water C o n s e r v a t i o n Bd., 109 P.3d at 593, ignore our obligation to consider "the state of 29 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 30 t h e law prior to the legislative enactment," Charnes v. Boom, 766 P.2d 665, 667 ( C o l o . 1988), and forget that we should consider a statute's "textual context," K r i e g v. Prudential Property & Cas. Ins. Co., 686 P.2d 1331, 1335 (Colo. 1984). Furthermore, Appellants' suggestion that section 13-21-403(4) merely had a procedural effect on the nature of section 13-21-403(3)'s presumption is mi s g u i d e d . Before the amendment, the presumption operated as a procedural tool f o r ordering proof--the presumption required a finding in favor of nond e f e c t i v e n e s s until some credible evidence rebutted that presumption, at which t i me the presumption disappeared. In the absence of rebuttal, the plaintiff had not me t the burden of going forward and a directed verdict was appropriate. See Mile H i , 842 P.2d at 20407; see also Beaver v. Fid. Life Ass'n, 313 F.2d 111, 113 ( 1 9 6 3 ) (discussing the category of presumption that functions "as a procedural t o o l for ordering proof"); cf. Krueger, 205 P.3d at 115456 (discussing rebuttable p r e s u mp t i o n s as tools for burden shifting). See generally 2 Kenneth S. Broun, M c C o r m i c k on Evidence 344 at 506-22 (6th ed. 2006) (discussing the p r o c e d u r a l effect of presumptions in civil cases). As a consequence of the 2003 a me n d me n t , which introduced section 13-21-403(4), the presumption of section 1 3 - 2 1 - 4 0 3 ( 3 ) is now accorded substantive effect in the case; it is to be considered b y the jury along with traditional forms of evidence, so long as the trial court d e t e r mi n e s by a preponderance of the evidence that the necessary facts giving rise t o the presumption have been established. See Colo. Rev. Stat. 13-21-403(4); 30 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 31 s e e also Beaver, 313 F.2d at 113 (applying Kansas law and noting the judicial c a t e g o r y of presumption that operates "as a rule of affirmative evidence, which p e r s i s t s to sustain the burden of proving" the presumed fact "until outweighed by t h e preponderance of the evidence" of the non-existence of that fact, "i.e., it is to b e considered as evidence against evidence" (emphasis added)); Broun, supra, 344 at 513 (noting that "[a]nother solution . . . is to instruct the jury that the p r e s u mp t i o n is `evidence,' to be weighed and considered with the testimony in the c a s e " ) . Therefore, in enacting section 13-21-403(4), the Colorado General A s s e mb l y effectively overruled Mile Hi's interpretation of the "effect" of section 1 3 - 2 1 - 4 0 3 ( 3 ) ' s presumption as being "only" to "impose the burden of going f o r w a r d on the party against whom it is directed." Mile Hi, 842 P.2d at 207. And, consequently, our cases that adopted Mile Hi's interpretation--viz. P e r l m u t t e r and Wagner--no longer accurately reflect Colorado law. To be sure, as Appellants note, the Colorado General Assembly did not r e mo v e the word "rebuttable" from section 13-21-403(3). But the General A s s e mb l y ' s deliberate choice--and we must assume that its choice was deliberate, s e e , e.g., Stumph v. Colo. Dep't of Revenue, 231 P.3d 1, 3 (Colo. App. 2009)--to l e a v e the word in the statute does not mean that section 13-21-403(4) is window d r e s s i n g . The continuing presence of the word "rebuttable" can be explained r e a d i l y as an attempt to clarify that the jury is still permitted to conclude that a p r o d u c t is defective, even when the presumption is in force. In other words, it 31 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 32 i n d i c a t e s that section 13-21-403(3) does not embody a "conclusive presumption." See Colby, 928 P.2d at 130809 (Scott, J., dissenting) (noting conclusive p r e s u mp t i o n s in the Colorado code); see also Broun, supra, 344 at 513 (noting " t h e danger that the jury may infer that the presumption is conclusive"). Further, Appellants offer no reason to think that our reading of the statute i s erroneous. To the contrary, all indications from Colorado law suggest that we a r e on the right path. In Krueger--the key case relied upon by Appellants--the C o l o r a d o Supreme Court "h[e]ld [that] the rebuttable presumptions of undue i n f l u e n c e and unfairness do not continue in a case after they are sufficiently r e b u t t e d " and, therefore, that plaintiff's "requested instructions--which inform t h e jury of the presumptions and require the jury to consider the presumptions in c o n j u n c t i o n with all the other evidence to determine whether [the defendant] u n d u l y influenced [the decedent]--are improper." 205 P.3d at 1153, 1156. The c o u r t in Krueger, however, expressly noted that its discussion of presumptions o n l y covered the "general rule." Id. at 1154. Krueger does not foreclose the p o s s i b i l i t y that some "rebuttable presumptions" do not follow the "general rule." 205 P.3d at 1154. And Krueger recognized, of course, that "[a] trial court is o b l i g a t e d to correctly instruct the jury on the law applicable to the case." Id. at 1 1 5 7 (quoting Jordan v. Bogner, 844 P.2d 664, 667 (Colo. 1993)) (internal q u o t a t i o n marks omitted). Neither Krueger nor any other case of which we are a w a r e suggests that the Colorado General Assembly is somehow barred from 32 Appellate Case: 08-1272 Document: 01018514655 Date Filed: 10/14/2010 Page: 33 c r e a t i n g a presumption with substantive effect. Cf. Ravin v. Gambrell, 788 P.2d 8 1 7 , 822 (Colo. 1990) ("Our prior decisions have made clear that when a plaintiff i n t r o d u c e s sufficient evidence to establish the presumption of negligence e mb o d i e d in the doctrine of res ipsa loquitur, the trial court must instruct the jury a s to the nature and effect of that doctrine." (emphasis added)); Tafoya, 884 F.2d a t 1336 (noting that "the status and strength of a rebuttable presumption vary a c c o r d i n g to the force of the policies which motivate a court or a legislature to c r e a t e it"). And we believe that the General Assembly has done just that by e n a c t i n g section 13-21-403(4). In sum, we think it clear that, in adding section 13-21-403(4), the Colorado G e n e r a l Assembly said what it meant and meant what it said: "[i]n a product l i a b i l i t y action in which the court determines by a preponderance of the evidence t h a t the necessary facts giving rise to a presumption have been established, the c o u r t shall instruct the jury concerning the presumption." Colo. Rev. Stat. 132 1 - 4 0 3 ( 4 ) (emphasis added). Properly instructed, the jury may consider this p r e s u mp t i o n along with traditional forms of evidence in the case. This is p r e c i s e l y the conclusion that the district court reached here. III. CONCLUSION F o r the foregoing reasons, we reject Appellants' contentions of i n s t r u c t i o n a l error. In our view, the district court properly instructed the jury. Accordingly, we AFFIRM the judgment for Teleflex. 33

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