PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ DAVID HELMER; FELICIA MUFTIC; FELICIA MUFTIC as personal representative of the Estate of Michael Muftic, on behalf of themselves and all others similarly situated, Plaintiffs - Appellants,

v. GOODYEAR TIRE & RUBBER CO., an Ohio corporation, Defendant - Appellee. No. 15-1214

________________ _________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:12-C V-00685-RBJ-MEH)

________________ _________________ Rick D. Bailey, Burg Simps on Eldredge Hersh & Jardine, Englewood, Colorado (Diane Vaksdal Smith, David K. TeSelle, and Seth A. Katz, Burg Simpso n Eldredge Hersh & Jardine, Englewood, Colora do, Gary E. Mason, Whitfie ld Bryson & Mason LLP, Washington D.C., Michael Flannery, and Ka therine Van Dyck, Cuneo Gilbert & Laduca LLP, St. Louis, Missouri, and Washington D. C., with him on the briefs), for PlaintiffsAppellants. David L. Lenyo, Garfield & Hecht, P.C., Aspen, Colorado (L. Michael Brooks, Jr., Wells, Anderson & Race, LLC, Denver, Colorado, Chad J. Schmit, Garfield & Hecht, P.C., Aspen, Colorado, Roger P. Thomasch, and David M. Strauss, Ballard Spahr LLP, Denver, Colorado, with him on th e brief), for Defendant-Appellee.

________________ _________________ Before KELLY , McKAY , and LUCERO , Circuit Judges.

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### July 12, 2016
Elisabeth A. Shumaker Clerk of Court2 LUCERO , Circuit Judge.

________________ _________________ Plaintiffs David Helmer and Felicia Muftic 1 represent a certified class of homeowners who contend a radiant-heatin g hose, the Entran 3, manufactured by Goodyear Tire & Rubber Company (“Goody ear”) suffered design defects leading to cracks and leaks. At trial, Goodyear argued the leaks were caused by third parties’ improper installations. The jury returned a verdict in favor of Goodyear, concluding the Entran 3 was not defectively designed. On appeal, Plaintiffs argue that insufficient evidence supported the district court’s instruct ion on nonparty fault. They further argue that the district court failed to require proof of a necessary fact before instructing the jury regarding Colorado’s presumptio n that a product is not defec tive if ten years have passed since it was first sold. Colo. Rev. Stat. § 13- 21-403(3). We conclude that any error in the third-party liability instruc tion was harmless, and the inclus ion of the instruction as to the presumption was proper. Exercising jurisd iction under 28 U.S.C. § 1291, we affirm.
I In the late 1980’s, Goodyear designed and manufactured the Entran 3 hose for Chiles Power Supply Company d/b/a H eatway Radiant Floors and Snowmelting (“Heatway”). The hose is used to co nvey hot fluid to prov ide radiant heating in structures, including homes. Thus, it is inst alled permanently under flooring, in walls and ceilings, and in concrete. The parties do not di spute that Entran 3 ha s an expected useful life of greater than forty years. From 1992 to 1996, Goodyear produced approximately

1 Muftic participates in th is appeal in her personal capacity and as the personal representative of the Es tate of Michael Muftic.3 thirty-three million feet of Entran 3, which it sold exclusively to Heatway. Heatway provided a product guarantee to homeowners and published an installation manual for the hose. In 1996, Goodyear ceased manufacture of Entr an 3 because “the potential for product related claims over[rode] th e commercial justification for pu rsuing th[e] ma rket.” Entran 3 hoses were installed in the Co lorado homes of Plaintiffs Helmer and Muftic. Helmer’s hose was installed when his home was built in 1992-93, and was first observed leaking in April 2010. He suffere d severe leaks in the fall of 2013. The Muftics’ hose was installed in 1994-95, an d developed serious leak s in June 2010 and December 2014. At trial, Plaintiffs presente d evidence that Entran 3 hoses had developed splits or leaks in five othe r Colorado homes as well. In 2012, Plaintiffs filed this cla ss action alleging defective design. They presented evidence that the et hylene-propylene diene monomer (“EPDM”) rubber used in the inner layer of Entran 3 was not suitable to carry hot li quid for the lifetime of a home, and that a design defect caused inconsistent thickness and bonding between the layers of the hose, allowing oxyg en to permeate into the system. Plaintiffs claim these design choices destined the product to crack, leak, and burst from foreseeable use. Goodyear argued that the hose was not de fectively designed, and that any leaking hoses resulted from improper installation. It presented evidence suggesting that whoever installed the relevant systems had used improp er clamps and bent th e hoses too tightly in most of Plaintiffs’ homes. It also argued that Heatway negligently failed to provide custom designs, failed to install Entran 3 hea ting systems, and failed to provide necessary instructions for installation and maintenance of the systems, as promised to Goodyear.4 Specifically, David Maguire, the engineer in char ge of developing Entr an 3, testified that Heatway represented to Goodyear that it woul d design, supervise, inspect, test, and maintain every system it sold. Maguire documented these promises and representations in a trip report he prepared after a meeting w ith Heatway. He also testified the promises were never kept. Instead, Goodyear argued th at Heatway generally sold Entran 3 hoses for installation by third parties and never inspec ted or tested the systems. Goodyear thus designated Heatway as a nonpart y at fault under Colo. Rev. Stat. § 13-21-111.5(3)(b). Goodyear also presented ev idence that more than ten years had passed since Entran 3 first went on the market, and the pa rties agreed that no la wsuit had been filed alleging the hose was defective in the ten years after Entran 3 was first sold in Colorado. Goodyear thus invoked § 13-21-403(3), whic h imposes a rebuttable presumption that a product is not defective if ten years have passed since the product was first sold. After the close of evidence, Plaintiffs moved for judgment as a matter of law under Fed. R. Civ. P. 50(a), arguing that Go odyear failed to offer an y evidence to support Heatway’s alleged nonparty fault, and that Goodyear was not entitled to the § 13-21-403 presumption. The district court ruled against Plain tiffs, finding sufficient evidence that Heatway may have contributed to the leaks by fa iling to inspect or inst all the systems. In addition, the district court determined the statutory presum ption unambiguously applied. Accordingly, the court instruct ed the jury that if it concluded that a design defect in Entran 3 was a cause of the damages or losse s, the jury must th en determine whether improper installation contributed to the dama ges and decide the comparative percentages of fault attributable to Heat way and an installer. Similarl y, the court’s special verdict5 form instructed the jury to consider Heatway’s liability only if it determined Goodyear had not defectively designed the Entran 3. The court also in structed that the jury must presume that the hose was not defective if it “was sold for the first time for use or consumption ten or more years before any cl aimed damages or losses were incurred by the Plaintiffs.” During deliberations, the jury inquired of the court: “[w]hen did Heatway go out of business and why.” The court refused to answer because the question asked for additional evidence. Ultimatel y, the jury returned a verd ict in favor of Goodyear, determining that the Entran 3 was not def ectively designed. Because it did not find a design defect, the jury did not reach questions regarding nonp arty fault. After trial, Plaintiffs filed a renewed motion for judgment as a matter of law pursuant to Rule 50(b), and a Rule 59 motion for a new trial, again ra ising the issues of Heatway’s nonparty fault and the statutory presumption. The district court denied both motions and this appeal followed.
II We review de novo a distri ct court’s decisions regard ing Rule 50(a) and 50(b) motions, applying the same standards as the district court. Elm Ridge Expl. Co. v. Engle, 721 F.3d 1199, 1216 (10t h Cir. 2013); Hardeman v. City of Albuquerque, 377 F.3d 1106, 1112 (10th Cir. 2004). In di versity cases “federal law governs the appropriateness of a Rule 50 motion, while the substantive law of the forum state controls the analysis of the underlyi ng claims.” Wolfgang v. Mid-America Motorsports, Inc., 111 F.3d 1515 , 1522 (10th Cir. 1997). In reviewing the denial of6 judgment as a matter of law, we “determi ne whether there is evidence upon which the jury could have properly found a verdict for the nonmoving party.” Id. In other words, we may find error “only if the evid ence points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion.” Id. (quotation omitted). We “construe the evidence and inferences there from . . . most favorably to the nonmoving party.” Id.
A Plaintiffs suggest Goodyear presente d insufficient eviden ce to support the instruction on Heatway’s nonparty liability. Under Colorado law, a defendant may designate a nonparty at fault as a defense to liability. § 13-21-111.5(3)(b). Because Goodyear designated Heatway as a nonparty at fault, the jury in structions and the verdict form directed the jury to apportion liability if it decided that Entran 3 was defectively designed. Because the jury fo und Entran 3 was not defectively designed, it did not proceed to the subsequent que stions on the verdict form concerning nonparty fault. Even if Plaintiffs are correct that insufficient evidence supported Heatway’s nonparty liability, the instruction di d not affect the jury’s verdict. 2 A jury’s negative answer to a threshold questi on of liability may render a verdict form’s subsequent erroneous questions harmless . See Allen v. Minnstar, Inc., 97 F.3d 1365, 1369 (10th

2 Plaintiffs do not contend there was in sufficient evidence to support a finding that the hoses were installe d incorrectly, but suggest in sufficient evidence supported a finding that Heatway was liable for any improper installation.7 Cir. 1996). In Allen, the plaintiff alle ged that a boat was unreasonably dangerous because passengers could be ejected during shar p turns. Id. at 1367 . A jury returned a verdict in favor of the defendant manufac turer. Id. at 1367-68. On appeal, the plaintiff argued an instruction on the defense of misuse was improper. Id. at 1368. But because the jury found the boat was not unreasonably dangerous, it never reached the question of misuse. Id. at 1369. The challenged ques tion thus played no part in the verdict, and the Allen c ourt concluded there was “no error on the part of the district court . . . in inst ructing the jury on the misuse defense.” Id. at 1370. Similarly, because the jury concluded En tran 3 was not defectively designed, it did not reach any question as to nonparty liability. Thus , even assuming insufficient evidence of nonparty fault, any error was harmless. See Fed. R. Civ. P. 61; Staley v. Bridgestone/Firestone, Inc., 106 F.3d 1504, 1512 (10th Cir. 1997) (“Because the jury found no liability on the part of the only named defendan t, there was no reason for the jury to assign or apportion fa ult to other parties.”). Plaintiffs conced e as much when they argue: “the whole question of Heatway’ s negligence is utterl y irrelevant to the question of whether Goody ear was liable for design de fect—such negligence could not affect Goodyear’s liabili ty, only the apportionment of damages.” Absent a design defect, Goodyear is not liable and nonparty fault is irrelevant. Plaintiffs nevertheless argue that the inst ruction on nonparty fault and inclusion of the issue on the verdict form confused the jury. They highlight the jury’s question “[w]hen did Heatway go out of business and why,” and contend the question demonstrates the jury consider ed Heatway’s role as part of their deliberations as to8 whether a design defect existe d. We decline to conjectur e as to why the jury asked the question. We “properly avoid such [s peculative] explorati ons into the jury’s sovereign space.” Yeager v. United States, 557 U.S. 110, 122 (2009) ; see also Allen, 97 F.3d at 1373 (“[A] verdict will not be upset on the basis of speculation about possible jury confusion.” (quotation omitted)). Moreover, “[w]e generally pr esume that juries follow th e instructions given to them.” Cavanaugh v. Woods Cross City, 7 18 F.3d 1244, 1250 (10th Cir. 2013). In particular, if a “special verdict form was divided into clearly articulated subparts, there is no reason to questi on the common sense assumption that the jury proceeded logically to answer the questions in or der, following the judge’s instruction.” Osteguin v. S. Pac. Transp. Co., 144 F. 3d 1293, 1295 n.4 (10t h Cir. 1998). The district court instructed the jury to consider whether a design defect existed before considering third party fault. Jury Instruction No. 9 e xplained the elements of a design defect claim, a nd directed that if the jury foun d that any element had not been proved, the verdict must be fo r Goodyear. It then instruct ed that only if all elements had been proved, the jury was to consider Goodyear’s affirmat ive defenses, including nonparty fault. Similarly, Jury Instruction No. 13 direct ed the jury to consider nonparty fault if it found “tha t a design defect in Entran 3 was a cause of damages or losses.” Thus, the instructions and the verdict form togeth er instructed the jury to consider Heatway’s nonparty fault only if it found the Entran 3 was defectively designed. We conclude Plaintiffs have not demonstrated prejudice from the instruction as to Heatway’s liability or inclusion of th e issue on the verdict form.9 Any error as to that instru ction was harmless, and the di strict court did not err in denying Plaintiffs’ Rule 50 motions.
B Plaintiffs argue the distri ct court erred in denying their Rule 50 motions as to presumptions arising in product liability ca ses. In particular, they argue the court must consider a product’s usef ul life in determining wh ether Colorado’s presumption applies. In Colorado, “[t]en years after a product is first sold for use or consumption, it shall be rebuttably presumed that the pr oduct was not defective.” § 13-21-403(3). A district court “shall instru ct the jury concerning the pr esumption” if the court has determined “by a preponderance of the evid ence that the necessary facts giving rise to a presumption have been established.” § 13-21-403(4). Plaintiffs argue that the phrase “necessary facts giving rising to the presumption” is ambiguous, and the presumption should only be tr iggered if the product has b een used beyond its useful safe life. 3 In interpreting § 13-21-403, we must give the statute the meaning it would have in the Colorado courts. See Kokins v. Teleflex, Inc., 621 F.3d 1290, 1304 (10th Cir. 2010). Because there is no Colora do decision consider ing whether “the necessary facts” include a produ ct’s useful safe life, we “m ust attempt to predict what the state’s highest court would do.” Id. (q uotation omitted). Our primary duty is to

3 Although we entertain doubts on the ma tter as to certain parties, we do not consider whether the presumptio n was in fact rebutted, as Plaintiffs do not raise that issue on appeal.10 give full “effect to the inte nt of the General Assembly, looking first to the statute’s plain language.” Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004). “[T]he statute should be construed as written since it may be presum ed that the Ge neral Assembly meant what it clearly said.” Resolution Tr. Corp. v. Heiserman, 898 P.2d 1049, 1054 (Colo. 1995). “If the statute is unam biguous and does not conflict with other statutory provisions, we need look no further.” People v. Luther, 58 P.3d 1013, 1015 (Colo. 2002). A plain reading of the statute as a whol e refutes the claim th at the phrase “the necessary facts giving rise” in paragra ph four of the stat ute is ambiguous. 4 The preceding subsections of the statute delin eate three other scenarios triggering a rebuttable presumption as to a product’s defectiveness. For example, § 13-21-403(1) imposes a rebuttable presumptio n if the product conformed to the state of the art or complied with any applicable code, standard, or regulation. Read in this context, § 13-21-403(4) simply refers back to the preceding paragr aphs, directing courts to issue an instruction on a re buttable presumption once th e facts in the relevant subsections have been demonstrated. 5 Looking to § 13-21-403(3), the plain language

4 Colorado courts have disagr eed about when the ten-year period begins to run. Compare Downing v. Overhead Door Corp ., 707 P.2d 1027, 1031-32 (Colo. App. 1985) (ten-year time period be gins on date individual prod uct was first sold), with Patterson v. Magna Am. Corp., 754 P.2d 13 85, 1387 (Colo. App. 1988) (ten-year period runs from date product line was first sold). But that que stion does not play any part in our analysis beca use the hoses sold to Plainti ffs satisfy eith er test. 5 Plaintiffs appear to ag ree with this assessment. They argue that § 13-21- 403(4), which was enacted in 2003, merely refers to the legislature’s “previous understanding” of the “necessary facts” to trigger the § 13-21-403(3) presumption.11 states that the presumption is triggered when more than ten years have passed since the product was first sold on the market. We acknowledge that the Colorado Suprem e Court has read an additional fact into the language of § 13-21-403(3)—namely , that no other strict liability claims have been established against the particular product. Uptain v. Huntington Lab, Inc., 723 P.2d 1322, 1331 & n.10 (Colo. 1986). Ho wever, the Uptain court observed that “implicit in th[e] statutory language is the assumption th at no other strict liability claims have been established against the particular produc t” because “the mere fact that a product has been marketed for ten years or more does not, without more, lead to the natural inference that the product is not defective.” Id. Far from deeming the statutory language ambiguous, the Colora do Supreme Court held that the plain language of the statute necessa rily required defendants to de monstrate that prior strict liability claims had not been established. Similarly, Plaintiffs ask us to infer a useful safe li fe requirement. But Uptain notwithstanding, when Colorado courts “cons true a statute, [they] do not adopt a construction that . . . inj ects additional terms.” Dill ard v. Indus. Claim Appeals Office, 134 P.3d 407, 409 (Colo. 2006). A nd nothing in the plain language of § 13- 21-403(3) or (4) suggests cour ts must consider a product’s useful safe life. To the contrary, in Mile Hi Concrete, Inc. v. Matz, 842 P.2d 198 (Colo. 1992), superseded on other grounds as stated in Kokins, 621 F.3d at 1305-06, the Colorado Supreme Thus, Plaintiffs argue that any ambiguity in § 13-21-403(4) stems from ambiguity in § 13-21-403(3).12 Court observed that a similar Kansas statute expressly cr eated a presumption after a product’s “useful safe life” had expired, whereas § 13-21-403(3) did not. Mile Hi, 842 P.2d at 204 n.11. Thus, Mile Hi s uggests that the Colorado Supreme Court would not read a “useful life” requi rement into § 13-21-403(3). Plaintiffs do not cite any authority counseling against our conclusion. They suggest that the Model Unifor m Products Liability Act (t he “Model Act”), published after § 13-21-403(3), would cr eate a presumption when th e product has been used beyond its useful safe life. But even if the legislature could have relied on a model act not yet published, if “a legislature models an act on another statute but does not include a specific provision in the original , a strong presumption exists that the legislature intended to omit that provision.” Kirchner v. Chattanooga Choo Choo, 10 F.3d 737, 738-39 (10th Cir. 1993). 6 Thus, the inclusion of a product’s useful safe life in the Model Act weighs against reading the requirement into § 13-21-403(3). Plaintiffs also cite the st atute’s legislative history, highlighting legislators’ concern with the originally-proposed statut e of repose, which would have served as an absolute cutoff for product liability claims afte r six years. The legislators were

6 For the contrary proposition, Plaintiffs cite Fraley v. Am . Cyanamid Co., 570 F. Supp. 497, 503 (D. Colo. 1983), disapproved of on other grounds in Tafoya v. Sears Roebuck & Co., 884 F.2d 1330, 1336 (10th Ci r. 1989). In Fraley, the district court looked to the Model Act to de termine the date from which the ten-year period runs. Id. Because the ten-year period in that case ha d not yet expired, the court found that the presumption did not apply. Id. In dicta, the court also observed that, after ten years, the Model Act imposes a presumption that the prod uct has been used beyond its useful safe life, and that “Colorado law utilizes this approach.” Id. (quo tation and emphasis omitted). For the reasons set forth herein , Fraley’s observation is not persuasive.13 concerned that, for some products , this date would be before the product’s useful safe life had expired. But the final enacted st atute is a rebuttable presumption, not a statute of repose. The legisl ators’ concerns about a statut e of repose play no part in our reading of the enacted presumption. Under § 13-21-403(3), a plaintiff advancing a strict liability claim against a product w hose useful safe life has not expired may present evidence to rebut the presumption. But we decline to infe r a useful safe life requirement as a “necessary fact” giving rise to a jury inst ruction as to the presumption. “Had the Gene ral Assembly intended otherw ise, it could have used language to that effect.” E-470 Pub. Hi ghway Auth. v. Kortum Inv. Co., 121 P.3d 331, 333 (Colo. App. 2005). We thus reje ct Plaintiffs’ sole challenge to this instruction. 7
III The judgment of the district court is AFFIRMED

.

7 Plaintiffs also appeal the denial of their Fed. R. Ci v. P. 59 motion, raising the same arguments as against the denials of their Rule 50 motions. We reject these arguments for the same reas ons described supra.