                                                               FILED
                                                   United States Court of Appeals
                      UNITED STATES COURT OF APPEALS       Tenth Circuit

                                      TENTH CIRCUIT                       September 10, 2014

                                                                          Elisabeth A. Shumaker
A.H., a minor, by and through his parent                                      Clerk of Court
and next friend, TONY HADJIH; TONY
HADJIH, individually,

           Plaintiffs – Appellants,                             No. 13-1403
                                                    (D.C. No. 1:10-CV-02435-RBJ-KMT)
v.                                                               (D. Colo.)

EVENFLO COMPANY, INC., a
Delaware corporation,

            Defendant – Appellee.


                              ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, MCKAY and PHILLIPS, Circuit Judges.


     The Evenflo Discovery Infant 316 Car Seat consists of two-pieces: a snap-in seat (the

“carrier”) and a base. The car seat can be used in two ways: first, by securing the base

with the seat belt and then snapping the carrier into it, or, second, by securing the carrier

itself with the seat belt and not using the base at all.

     On June 10, 2005, four-month-old A.H. was properly restrained in the back seat of the

Hadjih Family Jeep using the two-piece configuration of the Discovery model, which had

been properly installed. His mother, Razika Hadjih, misjudged traffic and pulled the Jeep


   * This order and judgment is not binding precedent except under the doctrines of law
of the case, claim preclusion, and issue preclusion. It may be cited, however, for its
persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth
Circuit Rule 32.1.
in front of an oncoming truck. The truck struck the passenger side of the Jeep, separating

A.H.’s carrier, with him strapped in, from the base and sending it airborne into the back

of the Jeep. The infant boy suffered a skull fracture and a severe traumatic brain injury

that has left him permanently impaired.

   On his own and A.H.’s behalf, A.H.’s father sued Evenflo, seeking damages under

several theories, including defective design and failure to warn. Plaintiffs (the “Hadjihs”)

presented evidence sufficient for the jury to find that Evenflo knew or should have known

before this accident that Discovery Infant 316 carriers were prone to detach from their

bases. Even so, the district court directed a verdict for the defendants on the failure-to-

warn claim. Addressing a separate issue, the district court also allowed a videotaped

deposition of a defense witness over the Hadjihs’ objection. After a nine-day trial, the

jury rendered its verdict in favor of Evenflo on the remaining design defect claim.

   After trial, the Hadjihs filed a motion for a new trial, arguing that the court erred in

directing a verdict on the failure-to-warn claim and in allowing the videotaped

deposition. The district court denied the motion, and the Hadjihs now present those issues

on appeal.

                                     DISCUSSION

1. Did the district court err by entering a directed verdict on the failure-to-warn

   claim?

   We review de novo a district court’s order granting judgment as a matter of law,

applying the same standard as the district court applies. See Oja v. Howmedica, Inc., 111

F.3d 782, 792 (10th Cir. 1997). A district court may grant a motion for judgment as a
                                           -2-
matter of law on an issue if it finds “that a reasonable jury would not have a legally

sufficient evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. 50(a). That

standard is met “only when all the inferences to be drawn from the evidence are so in

favor of the moving party that reasonable persons could not differ in their conclusions.”

J.I. Case Credit Corp. v. Crites, 851 F.2d 309, 311 (10th Cir. 1988) (internal quotation

marks omitted).

   In this diversity case, Colorado state law governs the substantive issues. See, e.g.,

Pacheco v. Shelter Mut. Ins. Co., 583 F.3d 735, 737 n.4 (10th Cir. 2009). To survive a

motion for a directed verdict, the Hadjihs had to present evidence of three elements: “(1)

the existence of a duty on the part of the defendant to warn buyers of any dangers that

were known or should have been known, (2) breach of that duty by the defendant, and (3)

injury to the plaintiff resulting from that breach.” Grasmick v. Otis Elevator Co., 817 F.2d

88, 90 (10th Cir. 1987).1

   After reviewing the record, we conclude that the Hadjihs presented sufficient

evidence on each element of a failure-to-warn claim to warrant submission of the claim to

the jury.



   1
       The Colorado jury instruction on negligent failure to warn states: “If a
(manufacturer) (seller) of (an article) (a product) knows or in the exercise of reasonable
care should know that (1) the use of the (article) (product) may be harmful or injurious to
a (consumer) (user), and (2) that risk of harm or injury is not obvious to a reasonable
(consumer) (user), then the (manufacturer) (seller) must use reasonable care to warn the
(consumer) (user) of the risk of harm or injury if a reasonably careful person would under
the same or similar circumstances. The failure to do so is negligence.” CJI-Civ. 4th 14:19
(4th ed.). The Hadjihs tendered a similar instruction to the district court in this case. R.
vol. 1, at 254.
                                            -3-
   First, plaintiffs introduced evidence that Evenflo had a duty to warn of the dangers of

carrier/base separation. A seller has a duty to “give adequate warning of an unreasonable

danger not obvious to the user which the seller knows or should know is involved in the

use of a product.” Bailey v. Montgomery Ward & Co., Inc., 635 P.2d 899, 899–900 (Colo.

Ct. App. 1981); see also Palmer v. A.H. Robins Co., Inc., 684 P.2d 187, 198 (Colo. 1984)

(a seller has a duty to warn if it knows or should know about an unreasonable danger

associated with its product and that danger is not obvious to users). A breach of this duty

constitutes negligence.

   Here, the Hadjihs introduced evidence sufficient for the jury to find that Evenflo knew

or should have known before the accident that carriers had sometimes separated from

their bases in the Discovery Infant 316 car seat. Evenflo knew that customers had

reported 74 incidents in which a Discovery carrier had separated from its base.2 It also

knew that at least one separation had occurred in testing when the car seat had been

dropped from a height of three feet. In fact, evidence showed that Evenflo recalled a later

model of the Discovery with the same latch mechanism connecting the carrier and base

because of the separation hazard. The Hadjihs also introduced evidence that the danger of

separation was not obvious to product users. The three Discovery users who testified at

trial all said they believed the seat was safe before using it. Finally, the Hadjihs presented

evidence that a warning would have been feasible. The Manual contained numerous other

warnings, including the “risk” of eating a lollipop while riding in the car seat.

   2
      The 74 incidents involved both the Discovery 316 model and a later model, the
390/391, but Evenflo offered testimony that the latch connecting the carrier and base on
the two models was the same.
                                            -4-
   In light of the evidence the Hadjihs presented at trial, the district court concluded that,

construing the evidence in favor of the plaintiffs, there was a “fairly well-established

history of detachments in similar car seats, substantially similar car seats, substantially

similar situation and accidents.” R. vol. 5, at 1484.

   Second, plaintiffs introduced evidence that Evenflo breached its duty to warn. It’s

undisputed that the Hadjihs read the Discovery owner’s manual soon after purchasing the

car seat and that Evenflo did not provide any warning about the separation hazard.

   Third, plaintiffs introduced evidence that injury resulted from the breach. Both Hadjih

parents testified that if they had been warned about the danger of the Discovery seat

separating from its base, they would either have not used the seat at all or, at the very

least, not used it with its base. Instead, absent a warning, they secured A.H. in the

Discovery seat using the base. The evidence shows that the seat belt held the base to the

Jeep’s back seat during the crash, while the carrier separated, bounced, and flew into the

rear cargo area. Both of the Hadjihs’ experts testified that the latch failure caused A.H.’s

injuries.

   The Hadjihs presented evidence of duty, breach, and resulting injury, but the district

court took the failure-to-warn claim away from the jury. In summary fashion, it said,

“This is a design case. And it doesn't make any sense for [Evenflo] to warn when they're

putting out a product whose very purpose is two-seat configuration to warn people that

they had better use a single base for their configuration. That goes against the very nature




                                            -5-
of what was being sold, and that isn't what failure-to-warn cases are about. Dismissed.”3

R. vol. 5, at 1481.

   We disagree. By design, the Discovery model could be used with or without the

“convenience” base. Although we don’t share the view that this is dispositive, a warning

about the risk of using the two-piece configuration would not necessarily have

undermined the purchase or use of the product—it is not a “statement not to use the

product at all.” Appellee’s Br. at 24. Instead, the warning would simply have allowed

consumers to decide based on full information when or whether to trade added safety for

added convenience.

   On appeal, Evenflo argues that the Hadjihs failed to provide evidence of a specific

element of a failure-to-warn claim. In particular, Evenflo argues that to establish a

failure-to-warn claim, a plaintiff must show that a warning would have made the product

safe. Response Br. at 21. Here, it says, a warning would not necessarily have eliminated

the risk of separation because consumers could still have used the two-piece

configuration when they wanted the added convenience.

   It is true that the purpose of a warning is to make the use of a product safe or at least

safer. In Hiigel v. General Motors Corp., 544 P.2d 983, 988 (Colo. 1975) (internal


   3
       Perhaps because the district court’s statement was so succinct, we have trouble
understanding it. It seems to say that if a product’s “very purpose” includes a dangerous
option, the manufacturer needn’t warn, because that’s what it intended to sell. The district
court offered no clarification in its order denying the Hadjihs’ Motion for New Trial. It
dealt with the issue in a footnote, saying, “Plaintiffs argue as a second ground for a new
trial that the Court improperly directed a verdict on their failure to warn claim. The trial
record will speak for itself as to the Court’s basis for that decision, and I do not find any
cause to expand on the Court’s reasoning here.” R. vol. 1, at 233.
                                            -6-
quotations omitted), the Colorado Supreme Court said, “The warning should be such that

if followed would make the product safe for users.” And in Armentrout v. FMC Corp.,

842 P.2d 175, 181 (Colo. 1992) (internal quotations omitted), the court said, “The

purpose of a warning is to ensure that an otherwise dangerous product is used in a

reasonably safe manner.”

   These cases stand for the proposition that where a manufacturer has a duty to warn,

the warning must make the use of the product reasonably safe. But reasonably safe does

not mean free from any danger. Evenflo’s reading of Colorado law would allow sellers to

keep silent about any latent dangers that cannot be wholly mitigated. Colorado courts

have not condoned such a view.

   For example, in Bailey v. Montgomery Ward & Co., Inc., 635 P.2d 899, 899–900

(Colo. Ct. App. 1981), a buyer purchased “tube” tires from Montgomery Ward.

Montgomery Ward installed the new tires over tubes from the old tires but did not warn

the buyer of the danger inherent in that practice. A few months later, the right rear tire of

the buyer’s car blew out, and the driver was injured. The buyer sued, but the only issue

put before the jury was whether Montgomery Ward was negligent in mounting new tires

over old tubes, and the jury determined it was not. The trial court refused to instruct the

jury on the buyer’s theory that negligence could be predicated on Montgomery Ward’s

failure to warn consumers of the danger inherent in installing new tires over old tubes.

The appeals court reversed and remanded for a new trial on that claim, concluding, “[A]n

injured user of [a] product may proceed on the theory that the seller has the duty to give



                                            -7-
adequate warning of an unreasonable danger not obvious to the user which the seller

knows or should know is involved in the use of a product.” Id. at 900.

   By making manufacturers reveal the risks involved in the use of a product, the law

enables consumers to make informed decisions about how and when to use a product.

This is particularly true in our case where there are two ways to use the Discovery car

seat: one way is safer; the other way, more convenient. With full information, the

consumer can choose when to opt for safety and when to opt for convenience.

   This theory that a product can be rendered reasonably safe by fully advising

consumers of risk-reducing options was endorsed by the Colorado Supreme Court in

Camacho v. Honda Motor Co., Ltd., 741 P.2d 1240 (Colo. 1987). In Camacho, a plaintiff

sustained leg injuries in a motorcycle crash. He sued the manufacturer, Honda, alleging

that the motorcycle was unreasonably dangerous because the motorcycle was not

equipped with “crash bars” that could have protected a rider’s legs during a crash. Id. at

1241. The trial court granted summary judgment to Honda, but the Colorado Supreme

Court reversed.

   Addressing Camacho’s failure-to-warn claim, the court said, “The purpose of a

warning is to ensure that an otherwise dangerous product is used in a reasonably safe

manner.” Id. at 1248. It presumed, without deciding, that “the Honda motorcycle was

unreasonably dangerous or was rendered unreasonably dangerous by a failure to warn.”

Id. (emphasis added). Then, it said, “Arguably, a warning that injury-reducing crash bars

were available as optional equipment or as add-on equipment would render an otherwise



                                           -8-
unreasonably dangerous motorcycle reasonably safe.” Id. In support of that proposition,

the court cited Wagner v. International Harvester Co., 611 F.2d 224, 231 (8th Cir. 1979).

   In Wagner, the Eighth Circuit concluded that a manufacturer’s duty to supply a safe

product might have been satisfied if it had offered rollover protection as an option for a

crawler tractor that the manufacturer knew could not be used as intended without a risk of

rollovers. The court accepted the theory that “the purchaser of multi-use equipment

knows best the dangers associated with its particular use, and so it should determine the

degree of safety provided. That is to say, the purchaser may be in the best position to

make the cost-benefit analysis implicit in the principles of general negligence.” Id.

   Similarly, here, under the Hadjihs’ theory of the case, Evenflo knew that using the

two-piece configuration presented a risk of separation. In our view, a warning that the

one-piece configuration is a safer alternative could render an otherwise unreasonably

dangerous product reasonably safe. Like the hypothetical warning in Camacho, the

warning here would not by itself have eliminated any risk present when the base was

used. But had Evenflo disclosed its known information about the separation risk, the

Hadjihs could have then decided whether to eliminate the risk by using the carrier

without the base or by finding a different product. They could have weighed the added

risk of using the base against the inconvenience of having to strap in the carrier each time

with the seat belt.

   The Hadjihs presented sufficient probative evidence on the elements of a failure-to-

warn claim to submit it to the jury. They are not required to show that a warning would



                                            -9-
necessarily have eliminated all risk inherent in the product. Thus, the district court erred

in directing a verdict on the failure-to-warn claim.

   Evenflo argues that even if the district court erred, the error was harmless because the

jury found in favor of Evenflo on the design-defect claim. As mentioned, we fail to see

how one follows the other. A jury might find that a product does not have a design defect

but that it still needs appropriate warnings to make it reasonably safe. For example, the

court in Vista Resorts, Inc. v. Goodyear Tire & Rubber Co., 117 P.3d 60, 71 (Colo. App.

2004), found that the jury was properly instructed that “[a] product not otherwise

defective in its manufacture or design becomes defective and unreasonably dangerous if

adequate warnings or instructions for use are not provided.” See also Anderson v. Heron

Eng’g Co., 604 P.2d 674, 676 (Colo. 1979) (“[A] product which is free of manufacturing

and design defects nonetheless may be defective and unreasonably dangerous if not

accompanied by adequate instructions and warnings.”). Here, the jury could have found

that the separation risk did not constitute a design defect but that the separation risk did

create a duty to warn.


2. Was Kiser unavailable to testify?

   The district court admitted the videotaped deposition of Randolph Kiser, an expert

witness, over the objection of the plaintiffs. After trial, the plaintiffs moved for a new

trial in part based on the videotaped deposition. The court reaffirmed its earlier ruling that

the admission was proper because Kiser was “unavailable” as defined by Rule 32(a)(4) of



                                            - 10 -
the Federal Rules of Civil Procedure. The Hadjihs challenge both the decision at trial and

the denial of their motion for new trial.

   We review the district court’s decision allowing the deposition testimony of an

“unavailable witness” for abuse of discretion, and we examine de novo the district

court’s interpretation of the federal rules. Garcia-Martinez v. City and County of

Denver, 392 F.3d 1187, 1190 (10th Cir. 2004). We review the court’s denial of a rule

59(a) motion for abuse of discretion as well. Elm Ridge Exploration Co. v. Engle, 721

F.3d 1199, 1216 (10th Cir. 2013).

   Deposition testimony is normally inadmissible hearsay, but Federal Rule of Civil

Procedure 32 creates an exception. Angelo v. Armstrong World Indus., 11 F.3d 957, 962–

63 (10th Cir. 1993). Rule 32(a)(4) provides:

   (4) Unavailable Witness. A party may use for any purpose the deposition of a
       witness, whether or not a party, if the court finds:
   ...
    (B) that the witness is more than 100 miles from the place of hearing or trial or is
       outside the United States, unless it appears that the witness's absence was
       procured by the party offering the deposition.
   It is undisputed that Kiser was more than 100 miles from the Denver courthouse. He

lives and works in Georgia. The key inquiry, then, is whether “it appear[ed] that the

witness’s absence was procured by the party offering the deposition.” Rule

32(a)(4)(B). The trial court found that Kiser’s “absence was not procured by Evenflo.

He moved to Georgia when he took a job there.” R. vol. 1, at 249. The Hadjihs argue that

the court erred because the “appearance of procurement” existed and the court admitted

the deposition even though Evenflo did not rebut it. Reply Br. at 22.

                                            - 11 -
   The Hadjihs argument is based on the concern that the district court expressed at trial

about Evenflo’s claim that Kiser was unavailable to testify live. Counsel for Evenflo

represented that Kiser “no longer works with” Evenflo. R. vol. 5, at 1484. The court then

asked if Evenflo could get him to court, and it said it wanted an “honest, candid answer.”

R. vol. 5, at 1485. Evenflo’s counsel said he would “ask him if I can get him here . . . I

don’t control him. I can tell you tomorrow, but I have the video ready to go.” R. vol. 5, at

1485–86. The court then got Kiser’s phone number and had the courtroom deputy call.

There was no answer. Id. at 1491. The defense began its case, and then later in the day

the court allowed the videotaped deposition to be played for the jury. Id. at 1554.4 The

next morning the court asked again, “What’s the story with Mr. Kiser?” Id. at 1567.

Defense counsel represented that he had spoken to Kiser and that he could not travel to

testify because he was working with a competitor.

   After trial, the Hadjihs moved for a new trial in part based on the videotaped

deposition. In its order, the court provided an extensive accounting of the relevant facts

and dates. The court found that “notwithstanding Mr. Kiser’s change of employment

from Evenflo to an Evenflo competitor, Mr. Kiser remained willing to cooperate with

Evenflo and its counsel in the present case. . . I am satisfied that Evenflo could have

called him as a live witness had it wished to.” R. vol. 1, at 245. The court also found “that

the scenario as it played out from Mr. Kiser’s departure to the conclusion of the trial was



   4
     The substance of Kiser’s testimony addressed why Evenflo decided to recall the
Discovery 390/391 model and why Discovery 316 was not recalled.

                                           - 12 -
substantially driven by strategic and tactical considerations.” Id. at 246. But, the court

found there was strategizing by the plaintiffs as well:

       [W]hen plaintiffs’ counsel were informed of Evenflo’s decision not to call
       Mr. Kiser as a live witness, their initial reaction was not to object but
       instead to set about the task of exchanging or re-exchanging with Evenflo’s
       counsel designations of portions of the deposition that they wished to have
       presented. They did not express any objection until Tuesday, the start of the
       second trial week. I infer that there was some strategizing occurring on their
       side as well.
Id. at 247. The court concluded that Kiser was unavailable as defined by Rule 32(a)(4):

       It is undisputed that Mr. Kiser was more than 100 miles from this
       courthouse. He lives and works in Georgia, and there has been no
       suggestion that he was within 100 miles of Denver during the second week
       of this trial. His absence was not procured by Evenflo. He moved to
       Georgia when he took a job there after leaving Evenflo (which is
       headquartered in Ohio) in July 2012.

Id. at 249.

   The Hadjihs argue that the district court abused its discretion when it allowed the

videotaped deposition to be played because it did not know if Kiser was truly an

“unavailable witness” under Rule 32(a)(4). It suggests that the court’s repeated inquiries

demonstrate that it had concerns that Kiser’s absence may have been procured by

Evenflo.

   The Hadjihs’ argument fails because, as the district court recognized, there is a

difference between procuring a witness’s absence and electing not to procure his




                                           - 13 -
attendance.5 See 8A Charles Alan Wright et al., Federal Practice and Procedure § 2146

n. 12 (3d ed. 2013).

   In Carey v. Bahama Cruise Lines, 864 F.2d 201, 204 (1st Cir. 1988), the First Circuit

considered a similar argument. In that case, it was undisputed that the witnesses in

question were more than 100 miles from the place of trial, but the plaintiffs argued that

the absence of the witnesses was procured by the defendant. The court rejected that

argument because the plaintiffs offered no evidence to support their allegation that the

defendant “actively took steps to keep the deponents from setting foot in the courtroom.

Under the case law interpreting Rule 32, the mere fact that the deponents are employed

by the defendant and that there is an identity of interest between the deponents and their

employer is not enough to trigger exclusion because procuring absence and doing nothing

to facilitate presence are quite different things.” 864 F.2d at 204.

   The Hadjihs rely on Fairfield v. Dwek, 970 F.2d 990, 995 (1st Cir. 1992), where the

First Circuit affirmed the refusal to admit a deposition under Rule 32(a)(4), based partly

on a finding that a party had failed to explain why he could not appear. But that case is

not on point because there the appellate court simply said it was not an abuse of

discretion for the district court to refuse to admit the deposition. Here, by contrast, the

Hadjihs are asking us to find it was an abuse of discretion for the district court to admit

the deposition.


   5
     As the district court said, “[E]ven assuming that Evenflo in fact could have procured
his presence, there is a difference between procuring an otherwise available witness’
absence to avoid his appearance and electing not to procure the attendance of a witness
who is not within the 100-mile radius.” R. vol. 1, at 249.
                                            - 14 -
   The Hadjihs also argue that the district court made an error of law when it did not

give the word “appears” its full weight as used in Rule 32(a)(4)(B). The Hadjihs argue

that the record shows that it appeared to the district court that the witness’s absence was

procured, so Kiser should not have been considered an unavailable witness. But, even if

we were to give “appears” the emphasis the Hadjihs want, the record shows only that the

district court suspected that Evenflo could procure Kiser’s live testimony had it wanted

to, not that it affirmatively procured his absence.

   In sum, both during and after trial, the district court carefully considered whether

Evenflo should have been allowed to present the Kiser deposition to the jury. In the

district court’s judgment, it did not appear that Evenflo had affirmatively procured

Kiser’s absence and both sides agreed he was more than 100 miles away. Thus, Kiser was

“unavailable” under Rule 32(a)(4)(B). We cannot say that ruling was an abuse of

discretion.

                                     CONCLUSION

   For the reasons discussed above, we affirm the district court’s decision to allow the

videotaped deposition of Kiser to be played for the jury, but we reverse and remand for a

new trial on the merits of the Hadjihs’ failure-to-warn claim.



                                           ENTERED FOR THE COURT



                                           Gregory A. Phillips
                                           Circuit Judge

                                            - 15 -
