FILED
United States Court of Appeals
Tenth Circuit

December 20, 2005

Clerk of Court

PUBLISH
					
UNITED STATES COURT OF APPEALS		
												
TENTH CIRCUIT

LINDA LOUGHRIDGE; WILLIAM P. LOUGHRIDGE; JERRY HANNAH; NANCY HANNAH; DONNA L. GARTH; RONALD HOCHFIELD; MARSHA HOCHFIELD; BALAJU, LLC, a Colorado limited liability company; DALE V. KESLER; JUDITH A. KESLER; ROSEMARIE GLAS; CHRISTOPHER W. CONGALTON; SUSAN T. CONGALTON; CLAIRE BECK; CALVIN DAKS; CAROL DAKS; JUSTINE PARKER; HOWARD G. PARKER; JANET SUTTERLEY; RANDY KILGORE; SUE TAYLOR; DARRELL TAYLOR; JANET G. UPTON; CHARLES R. UPTON; ROBERT B. GROSSMAN; GALE K. GROSSMAN; MARK A. LATHROP; SUSAN K. LATHROP; JANICE C. MEYER; GARY Q. BARNETT; JULIA WATSON BARNETT; ROBERT S. JULIAN; COREY BENDER MINDLIN; ADDISON L. PIPER; RICHARD C. RACZUK; CLAUDETTE L. RACZUK; THOMAS A. HARDILEK; SANDRA J. HARDILEK; FUYU FARMS, a Colorado general partnership; DONALD K. HAGAR; LEILA M. HAGAR; DONALD M. JOHNSON; TERESA Y. JOHNSON; STEVE SHUMAN; KAREN SHUMAN; DAVID PRICE; MARY
PRICE; TIM BORDEN; JANET BORDEN; JOHN W. PAUL; LINDA T. PAUL; MARCUS MEYER; KARRIE MEYER; JAMES C. HOLZWARTH; NIKI K. HOLZWARTH; MARTHA W. HIBBARD; ROBERT C. COMYN; NOELLE L. COMYN; KIEFER MENDENHALL; MARY MENDENHALL; WILLIAM F. GOROG, on behalf of the GRANTOR RETAINED INCOME TRUST,

	Plaintiffs ‑ Appellants/
	Cross ‑ Appellees,

v.

CHILES POWER SUPPLY COMPANY, INC., doing business as Heatway Radiant Floors and Snowmelting,

	Defendant‑ Cross‑Claimant ‑
	Appellee,

v.

GOODYEAR TIRE & RUBBER COMPANY, an Ohio Corporation,
	Defendant ‑ Cross ‑
	Defendant ‑ Appellee/
	Cross ‑ Appellant.

Nos. 04‑1261 & 04‑1263

		

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 98‑B‑1302(MJW))

Stephen G. Maschiocchi, Holland & Hart LLP, Denver, Colorado, (David L. Black, Holland & Hart LLP, Denver, Colorado, William W. Maywhort and J. Lee Gray, Holland & Hart LLP, Greenwood Village, Colorado, Geoffrey P. Anderson, Burns, Figa & Will P.C., Englewood, Colorado, Rohn K. Robbins, Law Offices of Rohn K. Robbins LLC, Vail, Colorado, with him on the briefs) for Plaintiffs-Appellants/Cross-Appellees.

Roger P. Thomasch, Ballard, Spahr, Andrews & Ingersoll, LLP, Denver, Colorado, (Mary A. Wells and L. Michael Brooks, Jr., Wells, Anderson & Race LLC, Denver, Colorado, David L. Lenyo and Chad Schmit, Garfield & Hecht, P.C., Aspen, Colorado, with him on the briefs for Appellee/Cross-Appellant Goodyear Tire and Rubber Company, and Wendelyn K. Walberg and Lynaia M. South, Walberg, Dagner & Tucker, P.C., Centennial, Colorado, on the brief for Appellee Chiles Power Supply Company) for Appellee/Cross-Appellant Good Year Tire and Rubber Company.

Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge and, KELLY Circuit Judge.

KELLY, Circuit Judge.

	This appeal and cross-appeal arise from a diversity action brought under Colorado state law by the owners of 36 Colorado homes (“Homeowners”) against Defendants Chiles Power Supply, Inc. d/b/a Heatway Radiant Floors and Snowmelting (“Heatway”) and Goodyear Tire and Rubber Company (“Goodyear”).  After a jury trial and post-trial motions, many, but not all, of the Homeowners were awarded damages against Goodyear only.  We affirm the district court’s amended judgment in part, reverse in part, and remand.
Background	In the 1980s, Heatway began selling parts for hydronic radiant heating systems.  These systems use hose to circulate warm fluid under indoor flooring as an alternative to conventional heating systems, or under driveways and sidewalks to melt snow and ice.  Heatway originally contracted with Dayco Rubber Products Company (“Dayco”) to produce the hose, “Entran,” used in Heatway’s radiant systems.  In 1989, Heatway contracted with Goodyear to manufacture a new hose, “Entran II.”  By 1990, Heatway discontinued Dayco as a supplier and thereafter used Goodyear as its sole supplier of hose.  Goodyear made Entran II until 1993 and supplied it exclusively to Heatway. 
	As early as 1991, some homeowners began noticing problems with their hydronic heating systems, including cracking, leaking and sediment build-up in their Entran II hose.  In many cases, these problems required the removal and replacement of the hose in its entirety, as well as the replacement of most other parts of the hydronic heating system.  By 1992, Heatway began receiving complaints from homeowners about hardening of the Entran II hose and leaks in the installed heating systems.  Believing that the Entran II hose was causing the leaks, Heatway stopped paying Goodyear for hose shipments.  As a result, Goodyear sued Heatway in 1997 in federal district court in Ohio (the “Ohio action”).  Heatway filed a counterclaim alleging that the Entran II hose was defective.  Goodyear had by this time manufactured 25,000,000 feet of Entran II hose.  The Ohio action went to trial on the issue of the merchantability of all 25,000,000 feet of Entran II hose.  The jury returned a verdict for Goodyear, whereupon Heatway declared bankruptcy. 
	
 Goodyear and Heatway asserted cross-claims against one another for contribution or indemnification under Ohio law.  Goodyear cross-claimed against Heatway for deceit (fraud), and Heatway cross-claimed against Goodyear for sale of a defective product. 					
	After the close of evidence, Goodyear moved, pursuant to Fed. R. Civ. P. 50(a), for judgment as a matter of law as to the claims of three homeowners who sold their homes prior to trial: James and Nikki Holzwarth (the “Holzwarths”), Janet Sutterley and Randy Kilgore (“Sutterley/Kilgore”), and Ms. Glas.  The district court denied Goodyear’s motion as to the claims of the Holzwarths and Sutterley/Kilgore.  However, the district court granted the motion as to Ms. Glas, reasoning that her damages were too speculative.  Ms. Glas filed a post-judgment motion asking the court to alter or amend the judgment in her favor and for a new trial concerning damages.  The district court denied the motion.
	With the exception of one homeowner, William Gorog, the jury returned verdicts in favor of all Homeowners and against Goodyear on three theories of recovery: sale of a defective product, negligence, and negligent failure to warn.  The jury awarded Homeowners damages in the aggregate of $4,079,391.50.  J.A. at 800-943.  The jury found in favor of Goodyear and Heatway on all claims for violation of the CCPA and civil conspiracy.  Neither Goodyear nor Heatway prevailed on its cross-claim against the other.  The jury did, however, apportion fault evenly between Goodyear and Heatway as to all prevailing Homeowners. 
	With respect to the jury’s apportionment of fault to Heatway, Homeowners filed a post-trial motion for judgment as a matter of law or to alter or amend the judgment pursuant to Fed. R. Civ. P. 50(b) and 59(e) respectively.  Homeowners argued that because the jury did not find Heatway liable on any of the Heatway plaintiffs’ claims or on Goodyear’s cross-claim, damages were not appropriately apportioned to it as a nonparty at fault.  J.A. at 1146.  The district court denied the motion. 
	As to the Holzwarths, the jury awarded them $243,072 in “reasonable repair and/or replacement costs.”  The jury awarded Sutterley/Kilgore $240,071 in “other reasonable costs or losses.”  After the district court entered judgment on the jury’s verdicts, Goodyear renewed its motion for judgment as a matter of law as to the claims of the Holzwarths and Sutterley/Kilgore, pursuant to Fed. R. Civ. P. 50(b).  Goodyear argued that the Holzwarths and Sutterley/Kilgore presented evidence and were awarded damages for future repair costs that they had not incurred and would never incur because they had already sold their homes.  J.A. at 1050-58.  The district court construed the motion as a Fed. R. Civ. P. 59(e) motion and granted it.  As such, the district court amended the judgment and reduced the Holzwarths’ jury award to $43,072 and Sutterley/Kilgore’s jury award  to $44,000, thereby eliminating the portions of their awards which the district court interpreted as representing future repair costs.
	With respect to Mr. Gorog, the only homeowner against whom Goodyear had asserted a statute of limitations defense, the jury found in favor of Goodyear on all claims.  But the jury did not answer the questions on the verdict form about Goodyear’s statute of limitations defense.  The district court entered judgment against Mr. Gorog.  After entry of judgment, Mr. Gorog moved for judgment as a matter of law, to alter or amend the judgement or for a new trial.  The district court denied the motion.
	After trial, Homeowners moved for prejudgment interest.  The district court held that Homeowners were entitled to prejudgment interest from the date on which the hydronic heating systems, containing Entran II, were originally installed in the Homeowners’ respective homes.  The district court awarded prejudgment interest in the aggregate of $5,701,367. 
	Homeowners appeal from the district court’s order contending that (1)
the jury rendered inconsistent verdicts and the district court’s attempt to reconcile the verdicts conflicts with the jury instructions and Colorado law, and the district court erred (2) in reducing the jury’s award of damages to the Holzwarths and Sutterley/Kilgore, (3) in granting judgment as a matter of law in favor of Goodyear on Ms. Glas’s damage claims, and (4) in granting judgment in favor of Goodyear on Mr. Gorog’s claims when the jury failed to answer the questions about Goodyear’s limitations defense.  Goodyear cross-appeals arguing that the district court erred in determining that prejudgment interest should be calculated from the date of installation of the heating systems.  Goodyear also conditionally cross-appeals contending that the district court erred in instructing the jury on design defect.  Goodyear asks us to address its conditional cross-appeal in the event we reverse the fifty percent apportionment of fault to Heatway or order a new trial on the claims of the Holzwarths, Sutterley/Kilgore, Ms. Glas or Mr. Gorog.  We deal with each issue in turn.

DiscussionI.  Apportionment of Fault
	Homeowners contend that the district court erred in denying its post-trial motion for judgment as a matter of law or to alter or amend the judgment.  Homeowners’ argument on appeal is twofold: first, the jury rendered inconsistent verdicts; and second, the district court’s attempt to reconcile the verdicts conflicts with the jury instructions and Colorado law. 				
	As a preliminary matter, Goodyear asserts that Homeowners’ post-trial motion never raised the argument that the jury verdicts were inconsistent.  Upon review of Homeowners’ motion, Goodyear’s response, and the district court’s order relating thereto, we are satisfied that the issue was adequately raised post-trial.  See United Int’l Holdings, Inc. v. Wharf (Holdings) Ltd., 210 F.3d 1207, 1229 (10th Cir. 2000) (Rule 50 “does require that [the grounds for a motion] be stated with sufficient certainty to apprise the court and opposing counsel of the movant’s position with respect to the motion.”) (internal quotations and citations omitted).  Homeowners did not, however, make a Rule 50(a) motion on the grounds that Goodyear’s evidence was insufficient as to Heatway’s fault at the close of all the evidence.  Accordingly, relief under Rule 50(b) is unavailable.  See Fed. R. Civ. P. 50(b); Trotter v. Todd, 719 F.2d 346, 350 (10th Cir. 1983).
	Whether Homeowners’ Rule 59(e) motion may be used to secure the relief sought is a closer question.  “A Rule 59(e) motion to alter or amend the judgment should be granted only to correct manifest errors of law or to present newly discovered evidence.”  Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997) (internal quotations and citations omitted).  Although this circuit has not directly addressed whether a Rule 59(e) motion, in its role of correcting manifest errors of law, may be used to contest verdict inconsistencies, other circuits have so allowed.  See Munafo v. Metro. Transit Auth., 381 F.3d 99, 105 (2d Cir. 2004); Top of Iowa Co-op v. Schewe, 324 F.3d 627, 632 (8th Cir. 2003); Turyna v. Martam Const. Co., Inc., 83 F.3d 178, 181-82 (7th Cir. 1996).  On such authority, we are persuaded that Homeowners’ Rule 59(e) motion was appropriate to raise the issues presented here. 
	This court reviews the district court’s ruling on a Rule 59(e) motion for abuse of discretion.  Minshall v. McGraw Hill Broadcasting Co., Inc., 323 F.3d 1273, 1287 (10th Cir. 2003).  Accordingly, we will not reverse the decision of the district court unless the district court made a “clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” Id. (citations omitted).  “The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.”  Jennings v. Rivers, 394 F.3d 850, 854 (10th Cir. 2005) (internal quotations and citations omitted).In order to protect the jury’s function, courts must “reconcile the jury’s findings, by exegesis if necessary, . . . before [they] are free to disregard the jury’s special verdict and remand the case for a new trial.”  Johnson v. Ablt Trucking Co., Inc., 412 F.3d 1138, 1143 (10th Cir. 2005) (quoting Gallick v. Baltimore & Ohio R.Co., 372 U.S. 108, 119 (1963)).  “When reviewing claims that a jury verdict is inconsistent, [the reviewing court] must accept any reasonable view of the case that makes the jury’s answers consistent.” Heno v. Sprint/United Mgmt. Col., 208 F.3d 847, 852 (10th Cir. 2000) (quoting Patton v. TIC United Corp., 77 F.3d 1235, 1241 (10th Cir. 1996)).  The consistency of a jury’s verdict must be considered in light of the instructions given to the jury, among other factors.  See Harvey By and Through Harvey v.
, 873 F.2d 1343, 1348 (10th Cir. 1989).  When the jury provides answers that are irreconcilably inconsistent, the court cannot enter judgment without choosing between the conflicting findings of fact and thereby overturning one of them.  Johnson, 412 F.3d at 1144.  To be irreconcilably inconsistent, the jury’s answers must be “logically incompatible, thereby indicating that the jury was confused or abused its power.”  Id. (quoting Stone v. Chicago, 738 F.2d 896, 899 (7th Cir. 1984)).  A jury’s verdict may not be overturned merely because the reviewing court finds the jury’s resolution of different questions in the case difficult, though not impossible, to square.  Id. 	Verdict Inconsistencies
A.With the exception of Mr. Gorog, the jury returned the following verdict (the “Apportionment Verdict”) for each homeowner:

APPORTIONMENT OF FAULT
[]Taking as 100 percent the combined fault that caused the damages or losses, what percentage of plaintiff’s damages was caused by the fault of each person or entity identified below.  Enter the figure of zero, “0” for any person or entity who you have found to be not at fault.

	Goodyear:								50%
	Heatway:								50%
	Other non‑parties:					            	0%See J.A. at 802-942.  					
	The jury found in favor of Heatway on all claims asserted against it as a party, including violation of the CCPA, civil conspiracy, and fraud (the “No Liability Verdict”).  Homeowners maintain “[t]hese findings necessarily meant that Heatway was not at fault — and [the Apportionment Verdict’s instruction] to ‘enter zero’ for any party found not to be at fault was applicable.”  (Aplt. Op. Br. at 19).  Homeowners therefore argue that the jury’s allocation of fifty percent fault in the Apportionment Verdict is irreconcilably inconsistent with the No Liability Verdict and “the correct resolution is to disregard the Apportionment Verdict as surplusage and give effect only to the jury’s finding that Heatway was not at fault.”  Id.
	The district court rejected the Homeowners’ argument that the jury was somehow precluded from assessing fault to Heatway.  It concluded that Goodyear was not required to cross-claim against Heatway and prevail on claims against it in order to have the jury instructed as to apportionment of fault.  In any event, the district court observed that Homeowners never objected to the verdict forms on this basis.  The district court further reasoned:
Plaintiffs did not pursue claims against Heatway based on the sale of a defective product, negligence or negligent failure to warn – the very claims upon which the jury found Goodyear liable.  Here, it is not only plausible, but likely that the jury concluded Heatway and Goodyear to both be ‘at-fault’ for negligence, negligent failure to warn, and sale of a defective product, but not liable for violation of the CCPA or for civil conspiracy.  The verdict is wholly consistent. . .									

J.A. at 1880-81.  We agree. 
Homeowners attempt to manufacture a conflict where one does not exist.  As noted, the instruction within the Apportionment Verdict actually stated that the jury was to “enter zero for any person or entity found not at fault,” not “any party found not at fault.”  J.A. at 802-942 (emphasis supplied).  The actual instruction properly preserves the distinction between Heatway’s role as a party to certain claims and a nonparty to other claims.  Although Heatway was found not liable for the claims asserted against it as a party (CCPA, civil conspiracy and fraud), the jury was still required to address its “fault” as a nonparty to the claims successfully asserted against Goodyear (sale of a defective product, negligence, and negligent failure to warn).  Thus, the verdicts are not irreconcilably inconsistent.   B.  District Court’s Verdict Reconciliation
Homeowners argue that the district court’s conclusion that the jury “likely concluded” Heatway to be at fault for the claims successfully asserted against Goodyear rests on the erroneous assumption that the jury was instructed to assess Heatway’s fault as a nonparty as to these claims.  Homeowners further maintain that to the extent the verdict was sustained on these grounds, Heatway could not be considered a nonparty to these claims because Goodyear failed, under Colorado law, to plead and prove as such.  1.  Jury InstructionsHomeowners maintain, on several grounds, that the jury was instructed to consider Heatway’s fault only with respect to claims asserted against it as a defendant.  First, Homeowners point to the jury instruction’s repeated reference to Heatway and Goodyear in their capacity as defendants.  (Aplt. Op. Br. at 33-36).  Yet, the repeated reference to Heatway as a defendant does not compel the conclusion that the jury was foreclosed from considering Heatway’s fault as a nonparty with respect to the claims asserted against Goodyear.  No instruction to that effect was given, nor did Homeowners request one.
Second, paragraph 3 of Instruction 23J.A. at 778-79.		 directed the jury to compare “the fault, if any, of Goodyear and/or Heatway” with that of the “nonparties.”  Homeowners argue that “[i]f this reference to ‘Heatway’ were not meant to refer to Heatway in its capacity as a defendant, this sentence would be confusing at a minimum: it would ask the jury to compare the fault of Heatway as a defendant with the fault of Heatway as a nonparty.”  (Aplt. Op. Br. at 35).  However, with regards to non-party status in this context, persons and entities are nonparties in their relation to claims, not the litigation.  Heatway was a nonparty with respect to the claims asserted against Goodyear by Homeowners.  Heatway was a party to the claims asserted against it by the Heatway plaintiffs.  Thus, the jury was not asked to compare the fault of Heatway as a defendant with the fault of Heatway as a nonparty. 
Third, paragraph 3 of Instruction 23 omits, from the list of theories that could constitute “fault,” any mention of fraud.  Homeowners assert that if Goodyear had chosen to include theories beyond those urged by the Heatway plaintiffs (CCPA and civil conspiracy) and including sale of a defective product, negligence and negligent failure to warn, Goodyear surely would have demanded that fraud be added to the list.  This argument is wholly speculative.  Goodyear may not have listed fraud as a theory of “fault” because it asserted a cross-claim against Heatway based on fraud, i.e., both Heatway and Goodyear were already parties to the fraud claim.  Regardless, the absence of fraud in the list does not control this issue. 
Last, Homeowners argue that the district court’s assumption that the jury could have found Heatway at fault for negligence, negligent failure to warn, and sale of a defective product was incorrect because its reliance on the term “fault,” as defined in Instruction 23, was misplaced.  Homeowners maintain that the definition of the term “fault” was merely a convenient “checklist” for the jury of all the theories of liability asserted against one or both of the defendants, Goodyear and Heatway, and that it was not intended to supersede all of the other instructions and submit to the jury theories of fault against Heatway that had not been raised.  This argument is unavailing.  The jury instructions defining the elements of the claims asserted against Goodyear specifically required the jury to “consider Goodyear’s defense[] of . . .  the fault of others.”  J.A. at 755-56, 759, 765, 768.  Thus, to the extent that the district court relied on the definition of the term “fault,” within Instruction 23, its reliance was supported by the underlying elements of the claims instructions.  Accordingly, we find no inconsistency between the verdicts and the jury instructions.  The contended-for construction by the Homeowners borders on tortured.2.  Colorado Law				Homeowners also argue that to the extent the district court upheld the jury’s  apportionment of fault to Heatway as a nonparty to the claims successfully asserted against Goodyear, it adopted an interpretation of the verdict that conflicts with Colorado law.  Homeowners maintain that in order for the jury to apportion fault to Heatway based on the claims asserted against Goodyear, Goodyear was required to plead and prove that Heatway was at fault as a nonparty on these grounds; yet it failed to do so.In Redden v. SCI Colo. Funeral Servs., Inc., 38 P.3d 75, 80-81 (Colo. 2001) and Barton v. Adams Rental, Inc., 938 P.2d 532, 535-40 (Colo. 1997), the Colorado Supreme Court set forth the relevant requirements of the Colorado apportionment statute, Colo. Rev. Stat. § 13-21-111.5.  First, a party must sufficiently designate the nonparty by making “a brief statement of the basis for believing such nonparty to be at fault.”  Redden, 38 P.3d at 80 (quoting Colo. Rev. Stat. § 13-21-111.5(3)(b)).  To satisfy this requirement, the party must “allege the basis for believing the nonparty is legally liable to the extent the non-party’s acts or omissions would satisfy all the elements of a [] claim.”  Id. at 81.  Courts should “construe designation requirements strictly to avoid a defendant attributing liability to a non-party from whom the plaintiff cannot recover.”  Id. at 80.  Second, the defendant seeking the allocation of fault must present sufficient evidence at trial to support a finding on each of the essential elements of the claimed basis for a finding of fault.  See Barton, 938 P.2d at 536-37.  
Goodyear’s initial designation of Heatway as a nonparty at fault stemmed from its cross-reference to allegations it made in its Answer to Plaintiffs’ Complaint (“Goodyear’s Answer”) and Cross-Claim against Heatway (“Goodyear’s Cross-Claim”).  J.A. at 310-12.  Goodyear’s Answer contained no allegation of fault against Heatway.  See J.A. at 296A-P. Homeowners contend, therefore, that Goodyear’s Cross-Claim, which asserted that Heatway had committed fraud, was the operative pleading.  (Aplt. Op. Br. at 23); see J.A. at 250-56.  Accordingly, Homeowners maintain that Goodyear’s designation of Heatway as a nonparty at fault was limited to its allegation of fraud, and that the jury was thereby precluded from considering any other claims in determining Heatway’s fault.  (Aplt. Op. Br. at 39). 
The Amended Final Pretrial Order, dated February 3, 2003, however, by its own terms supplanted all prior pleadings of the parties.  J.A. at 317-45.  The Amended Pretrial Order states:
Plaintiffs’ claims asserted against Goodyear are barred or reduced to the degree or percentage of negligence or fault attributable to certain non-parties at fault pursuant to § 13-21-111.5, C.R.S.
J.A. at 322 (emphasis supplied).	
	Homeowners argue that the Amended Final Pretrial Order “affords no basis for altering the plain meaning of Goodyear’s specific designation of Heatway as a nonparty at fault.”  (Aplt. Reply Br. at 44).  We disagree.  To the extent Goodyear’s Cross-Claim was the operative document, it was obviated by the Amended Final Pretrial Order which clearly contemplated the reduction of Goodyear’s liability based on the “negligence or fault” of nonparties, including Heatway.  Further, logic compels the conclusion that the Amended Final Pretrial Order contemplated more than the fraud allegation contained in Goodyear’s Cross-Claim because Heatway was not a nonparty to that claim; it was the defendant.  Moreover, to the extent Goodyear’s designation of Heatway in the Amended Final Pretrial Order was insufficient or lacked a basis for altering its designation in Goodyear’s Cross-Claim, the Homeowners failed to make a timely objection on that basis.  Cf. Redden, 38 P.3d at 79-80 (plaintiff objected to a nonparty designation before the case was submitted to the jury). 
	Homeowners maintain that even if Goodyear’s designation was proper, Goodyear failed to provide sufficient evidence that Heatway was negligent or at fault.  The jury apportioned fifty percent “fault” to Heatway as a nonparty to the claims successfully asserted against Goodyear, but the verdict form did not allow the jury to indicate the claimed basis for its finding of fault: defective product, negligence, or negligent failure to warn.  That is, the apportionment of fault verdict was general.  As such, the jury’s apportionment of fault to Heatway could have been based on defective product, negligence, or negligent failure to warn. 	Homeowners did not object to the instructions defining the elements of each claim, and our review of Colorado law reveals that they were proper.  The jury instructions on defective product and negligence both required the jury to find Goodyear manufactured Entran II.  J.A. at 755-64.  The jury instruction on negligent failure to warn was not so restricted:
If a manufacturer or seller of a product knows or in the exercise of reasonable care should know that the use of a product may be harmful or injurious to a consumer’s or user’s property, and such risk of harm or injury is not obvious to a reasonable consumer or user, then the manufacturer or seller must use reasonable care to warn the consumer or user of the risk of harm or injury if a reasonablely careful person would under the same or similar circumstances. The failure to do so is negligence. 

J.A. at 763.	 
	
	Upon review of record, we have little trouble concluding that sufficient evidence was adduced at trial to support such a finding.  The Homeowners’ failure to use a corrosion preventative may have contributed to the harmful effect that Entran II had on the Homeowners’ hydronic heating systems, and ultimately their homes.  Further evidence suggested that such risk of harm or injury was not obvious to Homeowners.  Evidence was also presented that Heatway failed to use reasonable care to warn the Homeowners of these risks by, for example, providing them with instructions for the use of Entran II, including the need for corrosion prevention.
	Homeowners argue that Heatway was not aware of any problems with the design of Entran II and thus could not have been negligent for failing to warn the Homeowners of the risks associated therewith.  However, this argument unduly narrows what the jury was required to find in order to conclude that Heatway was at fault for negligent failure to warn.  The jury was required to determine whether Heatway, knew or in the exercise of reasonable care should have known, that the use of Entran II may be harmful or injurious to the Homeowners’ property.  See J.A. at 763.  A reasonable jury could well have found that Heatway, in the exercise of reasonable care, should have known of the risks associated with using Entran II and that it acted negligently in failing to warn the Homeowners thereof.  Moreover, it was reasonable for the jury to conclude that this negligence contributed to the Homeowners’ damages.  Therefore, we will not disturb the jury’s determination that Heatway was equally at fault for the damages suffered by the Homeowners.  The district court did not abuse its discretion in denying Heatway’s post-judgment motion on this basis.
II.  Sutterley/Kilgore and the Holzwarths  
	Although the district court construed Goodyear’s Rule 50(b) motion as a Rule 59(e) motion, it effectively granted Goodyear judgment as a matter of law on two grounds.  First, because the jury awards mirrored the amounts Homeowners’ expert testified were appropriate for future repair costs, these damages were impermissible.  The Holzwarths and Sutterley/Kilgore would never incur those costs as they had already sold their homes, and thus the awards exceeded the amount which could have been granted based upon the evidence.  Second, to the extent future repair costs served as a proxy for the losses these homeowners incurred on selling their homes, the jury was given the opportunity to award them diminution in value damages, but declined to do so.  The Holzwarths and Sutterley/Kilgore ask us to reverse the district court’s grant of Goodyear’s motion and to reinstate the full amount of their jury verdicts.  They assert that they provided sufficient evidence to support the jury’s awards because future repair costs represented a proxy for the amount they lost on the sale of their homes.  Further, they maintain that because the evidence supports the damages awarded, the district court should have given effect to the jury’s intention to award these diminution in value damages.  We agree.
	We review the grant of a motion for judgment as a matter of law de novo, reviewing all of the evidence in the record.  See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000).  All reasonable inferences are drawn in favor of the nonmoving party and this court does “not make credibility determinations or weigh the evidence.”  Id.  Judgment as a matter of law is appropriate “only if the evidence points but one way and is susceptible to no reasonable inferences which may support the opposing party’s position.”  Finley v. United States, 82 F.3d 966, 968 (10th Cir. 1996) (internal quotation and citation omitted).  We will reverse the district court if, viewing the record in the light most favorable to the nonmoving party, we find evidence upon which the jury could have properly returned a verdict in its favor.  See Harolds Stores, Inc. v. Dillard Dep’t Stores, Inc., 82 F.3d 1533, 1546 (10th Cir. 1996).  In diversity cases, the substantive law of the forum state governs the analysis of the underlying claims, including specification of the applicable standards of proof.  Oja v. Howmedica, Inc., 111 F.3d 782, 792 (10th Cir. 1997).
	Under Colorado law, diminution in value is ordinarily the rule applied to measure damages to real property.  See Board of County Com’rs of Weld County v. Slovek, 723 P.2d 1309, 1314 (Colo. 1986).  The goal in compensating the property owner is to reimburse that owner for the actual loss suffered.  Id.  Damages are not recoverable, however, for losses beyond an amount that a plaintiff can establish with reasonable certainty by a preponderance of the evidence.  Pomeranz v. McDonalds’s Corp., 843 P.2d 1378, 1381 (Colo. 1993).  The “rule of certainty” requires a reasonable degree of persuasiveness in the proof of the fact of damages or injury.  Western Cities Broadcasting, Inc. v. Schueller, 849 P.2d 44, 48 (Colo. 1993) (interpreting Pomeranz, 843 P.2d 1378) (quotations in original)).  Once the fact of damage has been established with the requisite degree of certainty, a plaintiff will not be barred from recovery for failing to prove the amount of loss with mathematical certainty.  Id.  The amount of damages to be awarded is a matter within the sole province of the jury, and such award may not be disturbed unless it is completely without support in the record.  Margenau v. Bowlin, 12 P.3d 1214, 1218 (Colo. Ct. App. 2000); see Bennett v. Longacre, 774 F.2d 1024, 1028 (10th Cir. 1985) (“[T]he amount of damages awarded by a jury can be supported by any competent evidence tending to sustain it.”).