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

                             FOR THE TENTH CIRCUIT                         November 29, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
MIRIAM WHITE,

      Plaintiff - Appellant,

v.                                                          No. 16-1098
                                               (D.C. No. 1:13-CV-02173-PAB-NYW)
DEERE & COMPANY,                                             (D. Colo.)

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, GORSUCH, and MATHESON, Circuit Judges.
                  _________________________________

      After a bale of hay hit and injured Miriam White while she was operating her

tractor, she sued the manufacturer, Deere & Company. At the trial that followed the

jury returned a verdict for Deere. Ms. White now appeals this judgment, but we

discern no reversible error.

      Ms. White first claims the district court erred by instructing the jury that it

could presume Deere’s product free from defect. Usually, Colorado law requires just

such an instruction where (as here) the product at issue has been on the market for ten

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
years. See Colo. Rev. Stat. § 13-21-403(3)-(4). But Ms. White says Colorado courts

have created an exception to this rule for products that have been subject to previous

product liability suits. Deere disagrees with this assessment and says a statutory

amendment abrogated any such judicially crafted exception. For our part, we don’t

have to tangle with the parties’ legal dispute, though, because the record before us

offers no evidence that the Deere equipment has been subject to any previous defect

claim. True, in a pre-trial motion Ms. White sought to identify such a claim. But the

district court granted a motion in limine excluding this evidence, Ms. White has not

appealed that ruling, and so it is we are left without any record evidence of any prior

claim. And given that and whatever the state of Colorado law may be, we cannot say

the district court erred.

       Ms. White next claims that, when the district court instructed the jury about

the ten-year presumption, it failed to explain that the presumption was “rebuttabl[e].”

But Ms. White didn’t raise this objection at trial, so we may review the district

court’s instruction for plain error only. And that much we do not see. The district

court’s jury instruction was almost identical to the Colorado pattern jury instruction.

And, at least implicitly, it conveyed the concept that the presumption was rebuttable:

after all, by definition and in ordinary usage presumptions are usually (if not always)

thought to be just (and only) that. See 12 Oxford English Dictionary 428-29 (2d ed.

1989) (defining “presumption” to mean, among other things, an assumption,

expectation or supposition). Neither does anyone doubt that Ms. White was free to

argue exactly this much to the jury. So while the pattern jury instruction could

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perhaps be more punctilious, and while we offer no view of how we’d rule de novo,

we cannot say the district court plainly erred in offering the instruction it did.

       Finally, Ms. White claims the district court wrongly excluded a particular

version of an operator’s manual for the Deere equipment, one written after the

accident in this case. But Ms. White herself seems to concede that this manual’s only

relevance or utility was to rebut Deere’s affirmative defenses. And at trial the jury

never got that far, for it found Ms. White failed to carry her prima facie case. So it is

any conceivable error on this point could have been no more than harmless. See

Allen v. Minnstar, Inc., 97 F.3d 1365, 1369 (10th Cir. 1996).

       Affirmed.


                                             Entered for the Court



                                             Neil M. Gorsuch
                                             Circuit Judge




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