OPINION AND ORDERMICHAEL H. SIMON, District Judge.
Michelle K. McClure, Stuart K. Cohen, James S. Crane, Landye Bennett Blumstein, LLP, Portland, OR, Richard N. Sieving, The Sieving Law Firm, A.P.C., Sacramento, CA, for Plaintiff.
Anne Cohen, Sharlei C. Hsu, Smith Freed & Eberhard, Julie Annette Smith, Thomas M. Christ, Cosgrave Vergeer Kester, Portland, OR, for Defendant.
OPINION AND ORDER
MICHAEL H. SIMON, District Judge.
Plaintiff, Benson Tower Condominium Owners Association (“Plaintiff” or “Association”), brought this action against Defendant, Victaulic Company (“Defendant” or “Victaulic”), as the manufacturer of allegedly defective plumbing products installed in the Benson Tower Condominium (“Benson Tower”). On January 15, 2015, following an eight-day trial, the jury returned a verdict in favor of Plaintiff on its products
liability claim and awarded Plaintiff $2,045,228 in damages. The jury found against Plaintiff on its claim for negligence and did not award punitive damages. Before the Court are three post-trial motions: (1) Plaintiff's Motion for Reasonable Expenses, Including Attorney's Fees (Dkt. 281), in which Plaintiff seeks under Rule 37(c)(2) “an award of $1,019,280, including but not limited to $857,537.58 in attorneys' fees, $21,621.44 in reasonably incurred costs, and $140,120.98 in expert fees and costs” for Defendant's allegedly improper denial of Plaintiff's requests that Defendant admit that its products were defective; (2) Defendant's Renewed Motion for Judgment as a Matter of Law (Dkt. 299); and (3) Defendant's Motion for New Trial (Dkt. 301). For the reasons that follow, all three post-trial motions are DENIED.
STANDARDS
A. Attorneys' Fees for Failure to Admit
Under Fed.R.Civ.P. 36(a)(1), “[a] party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to: (A) facts, the application of law to fact, or opinions about either, and (B) the genuineness of any described documents.” The scope of Rule 26(b)(1) includes “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense,” which “need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1).
1 When served with a request for admissions, a party must answer or object to the request. See Fed.R.Civ.P. 36(a)(3). The party may not treat the request as “a mere procedural exercise requiring minimally acceptable conduct” and must provide “full and efficient discovery, not evasion and word play.” Marchand v. Mercy Med. Ctr., 22 F.3d 933, 936 (9th Cir.1994). If the party cannot admit or deny a matter, its answer must “state in detail” why. Fed.R.Civ.P. 36(a)(4). If the party objects to a request, its answer must state the grounds for the objection. Fed.R.Civ.P. 36(a)(5). “The requesting party may move to determine the sufficiency of an answer or objection. Unless the court finds an objection justified, it must order that an answer be served.” Fed.R.Civ.P. 36(a)(6).
A party may be sanctioned under Rule 37(c)(2) for failure to comply with Rule 36(a). Rule 37(c)(2) provides:
If a party fails to admit what is requested under Rule 36 and if the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney's fees, incurred in making that proof.
The rule requires an award of expenses unless the court finds one of the following exceptions applies:
(A) the request was held objectionable under Rule 36(a); (B) the admission sought was of no substantial importance; (C) the party failing to admit had reasonable ground to believe that the party might prevail on the matter; or (D) there was other good reason for the failure to admit.
Fed.R.Civ.P. 37(c)(2). The ultimate goal of Rule 37(c)(2), like the Federal Rules of Civil Procedure generally, is “to secure the just, speedy, and inexpensive determination of every action.” Marchand, 22 F.3d at 936 (quoting Fed.R.Civ.P. 1). Rule 37(c)(2) “mandates an award of expenses
unless an exception applies” and therefore “encourages attorneys and parties to identify undisputed issues early to avoid unnecessary costs. Failure to identify those issues wastes the resources of parties and courts.” Id. “[T]he true test under Rule 37(c) is not whether a party prevailed at trial but whether he acted reasonably in believing that he might prevail.” Id. at 937 (citing Fed.R.Civ.P. 37(c), Advisory Committee Notes on 1970 Amendment).
B. Judgment as a Matter of Law
23 Judgment as a matter of law is proper if “the evidence permits only one reasonable conclusion, and that conclusion is contrary to the jury's verdict.” E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir.2009) (quotation marks omitted); see also Weaving v. City of Hillsboro, 763 F.3d 1106, 1111 (9th Cir.2014) (explaining that judgment as a matter of law must be granted if it is clear that “the evidence and its inferences cannot reasonably support a judgment in favor of the opposing party”). Because a motion under Rule 50(b) is a renewed motion, a party cannot “raise arguments in its post-trial motion for judgment as a matter of law that it did not first raise in its Rule 50(a) pre-verdict motion.” Go Daddy Software, 581 F.3d at 961 (quotation marks omitted).
45 In evaluating a motion for judgment as a matter of law, the Court must view all the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Experience Hendrix, L.L.C. v. Hendrixlicensing.com, Ltd., 762 F.3d 829, 842 (9th Cir.2014). The Court may not, however, make credibility determinations, weigh the evidence, or “substitute its view of the evidence for that of the jury.” Krechman v. County of Riverside, 723 F.3d 1104, 1110 (9th Cir.2013) (quotation marks omitted). A jury's verdict must be upheld if it is supported by substantial evidence. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1242 (9th Cir.2014); Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir.2001). Substantial evidence is “such relevant evidence as reasonable minds might accept as adequate to support a conclusion[,] even if it is possible to draw two inconsistent conclusions from the evidence.” Weaving, 763 F.3d at 1111 (quotation marks omitted).
C. New Trial
678 The Court “may grant a new trial only if the verdict is contrary to the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of justice.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir.2007) (quotation marks omitted); see also Shimko v. Guenther, 505 F.3d 987, 993 (9th Cir.2007). Unlike a Rule 50 determination, the Court is not required to view the evidence in the light most favorable to the non-moving party. Experience Hendrix, 762 F.3d at 842. Rather, the Court “can weigh the evidence and assess the credibility of the witnesses.” Id. (citing Kode v. Carlson, 596 F.3d 608, 612 (9th Cir.2010) (per curiam)). A judge should not award a new trial unless he is “left with the definite and firm conviction that a mistake has been committed.” France Telecom S.A. v. Marvell Semiconductor Inc., 82 F.Supp.3d 987, 991, 2015 WL 925892, at *1 (N.D.Cal. Mar. 2, 2015) (quoting Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371–72 (9th Cir.1987)).
DISCUSSION
A. Plaintiff's Motion for Reasonable Expenses, Including Attorneys' Fees
In August 2013, Plaintiff propounded 64 requests for admission (“RFA”) to Defendant in its First Set of Requests for Admissions.
Dkt. 282–6. Pursuant to Fed.R.Civ.P. 36(a), Defendant responded to these inquiries. Id. Plaintiff contends that Defendant's responses to Plaintiff's RFA nos. 9, 11, 27, 28, 39, 49, and 59 (the “Disputed RFAs”) were improper under Fed.R.Civ.P. 37(c)(2), and as a result, Plaintiff expended considerable time and resources during the course of litigation to “prove matters that Victaulic could have and should have admitted.”
The Disputed RFAs requested that Defendant admit the following:
RFA No. 9: Admit that the EPDM used by Victaulic in Victaulic 608 Series valves manufactured between 2000 and 2011 were defective because the EPDM deteriorates and/or degrades when exposed to chloramines.
RFA No. 11: Admit that the Victaulic 608 Series valves containing EPDM that were installed in the Subject Property are defective.
RFA No. 27: Admit that as a consequence of the susceptibility of EPDM contained within the Victaulic 608 Series valves to deteriorate and degrade when exposed to chloramines, the Victaulic 608 Series valves are inherently defective.
RFA No. 28: Admit that the Victaulic Series 608 valves are defective because the EPDM used in those valves deteriorates and/or degrades when exposed to chloramines.
RFA No. 39: Admit that the Victaulic 606 Series couplings containing EPDM installed in the Subject Property are defective.
RFA No. 49: Admit that the deterioration and/or degradation of the EPDM contained within the Victaulic 606 Series couplings becomes progressively worse over time when exposed to chloramines.
RFA No. 59: Admit that as a consequence of the susceptibility of the EPDM contained within the Victaulic 606 Series couplings to deteriorate and degrade when exposed to chloramines, the Victaulic 606 Series couplings are defective.
As to each of the Disputed RFAs, Defendant responded with multiple and lengthy objections, as well as partial admissions or denials. Each of the matters that Plaintiff requested Defendant admit was, however, proved true at trial. Now, in response to the present motion, Defendant argues that Plaintiff should not be awarded fees under Rule 37(c)(2) because: (1) the Disputed RFAs were objectionable under Rule 37(c)(2)(A) on the grounds that the RFAs ask for “purely legal conclusions”; and (2) under Rule 37(c)(2)(C), Defendant had reasonable grounds to believe that it might prevail at trial. The Court addresses each argument in turn.
1. Whether Plaintiff's Requests for Admission Were Objectionable
9 Defendant argues that all of the Disputed RFAs were objectionable because they ask for purely legal conclusions. Specifically, Defendant argues that a request for admission regarding whether a particular product is “defective” is improper because it involves no more than a request for a conclusion of state law. Plaintiff responds that, to the contrary, the RFAs are reasonable applications of fact to law, and thus are permitted under the Federal Rules.
10 Fed.R.Civ.P. 36(a)(1)(A) permits requests for admissions as to “facts, the application of law to fact, or opinions about either.” Requests for purely legal conclusions, however, are generally not permitted. United States v. Petroff–Kline, 557 F.3d 285, 293 (6th Cir.2009) (holding that requests seeking purely legal conclusions are not permitted under Rule 36);
Music Grp. Macao Commercial Offshore Ltd. v. Foote, 2015 WL 579688, at *2 (N.D.Cal. Feb. 11, 2015) (same); Disability Rights Council v. Wash. Metro. Area, 234 F.R.D. 1, 3 (D.D.C.2006) (“[I]t would be inappropriate for a party to demand that the opposing party ratify legal conclusions that the requesting party has simply attached to operative facts.”). As explained in 7 Moore's Federal Practice § 36.10[8] at 36–26 (3d ed.2008) (footnotes omitted):
Requests for admission may relate to the application of law to fact. Such requests should not be confused with pure requests for opinions of law, which are not contemplated by the rule. Nor are requests seeking legal conclusions appropriate when proceeding under Rule 36.
See also 8A Charles Wright, Arthur Miller, & Richard Marcus, Federal Practice and Procedure § 2255, 534 & n. 8 (2d ed.1994) (citing cases). As noted by other district courts in this circuit, however, “the distinction between the application of law to fact and a legal conclusion is ‘not always easy to draw.’ ” In re NCAA Student–Athlete Name & Likeness Licensing Litig., 2012 WL 4743121, at *2 (N.D.Cal. Oct. 3, 2012) (citing Apple, Inc. v. Samsung Elecs. Co., 2012 WL 952254, at *3 (N.D.Cal. Mar. 20, 2012)).
Courts that have grappled with this question have attempted to provide guidance. For example, in Reichenbach v. City of Columbus, a plaintiff alleging disability discrimination under the Americans with Disabilities Act issued an RFA requesting that the defendants “admit that the curb ramp at issue was not compliant with current federal accessibility design standards.” 2006 WL 143552 (S.D.Ohio 2006) at *2. The defendants objected that this request sought only a conclusion of law, and the court agreed. Id. A proper request, according to the court, instead might have asked, “Defendants adopted a transition plan within six months of January 26, 1992, as required by 28 C.F.R. 35.150(d)(1). Admit or deny.” Id. n. 3. According to the court in Reichenbach, the former question involves a pure question of law and is thus improper; the latter question applies operative facts to relevant law. See also Tulip Computers Int'l, B.V. v. Dell Computer Corp., 210 F.R.D. 100, 108 (D.Del.2002) (holding that “determining whether a patent is valid would call for a legal conclusion although dependent on factual inquiries”); Playboy Enters., Inc. v. Welles, 60 F.Supp.2d 1050, 1057 (S.D.Cal.1999) (holding that a defendant may object to an RFA asking her to admit that she is a “public figure” as defined in Supreme Court case law as improperly seeking a purely legal conclusion). A looser or contrary standard would risk undermining the “American Rule” on attorneys' fees, in which each party pays its own attorney fees, at least in the absence of an agreement, statute, or rule to the contrary. See Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (holding that under the “American Rule,” attorneys' fees ordinarily are not recoverable against the losing party in a lawsuit).
Here, the Disputed RFAs are more similar to the RFAs found to be improper by the court in Reichenbach. Although Plaintiff has nominally tied its RFAs to the facts of the case, the request remains a legal conclusion: whether or not the Victaulic products are defective under Oregon law. The Disputed RFAs did not specifically request the admission of underlying facts that may be used to establish that the Victaulic products were defective, which may well have been appropriate RFAs. Rather, the Disputed RFAs merely requested the admission of the legal conclusion that the Victaulic products are defective. Under these circumstances, Defendant's objections to the Disputed RFAs were not improper and the Court denies Plaintiff's motion for fees on this basis.
11 In addition, Plaintiff's failure to bring this dispute before the Court before
trial also weighs against granting fees to Plaintiff under Rule 37(c)(2). Although the Ninth Circuit in Marchand held that “[i]t would be unduly burdensome to require each and every objection to be challenged in order for sanctions to issue,” id. at 938 (emphasis added), Plaintiff provides no explanation for its decision to wait more than 18 months after issuing its RFAs to raise this issue, or for its decision not bring this dispute to the Court's attention before trial as permitted by Rule 36(a)(5). See 8A Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 2290, at 710, n. 9 (1994) (“court[s] should consider [an objection] a ‘good reason’ for failure to admit and hold that it falls within condition (4) of Rule 37(c)”). See also Russo v. Baxter Healthcare Corp., 51 F.Supp.2d 70, 79 (D.R.I.1999) (“The Court finds that the fact that the objection was not challenged constitutes ‘other good reason for failure to admit’ under Rule 37(c)(2).”). Accordingly, the Court finds that Plaintiff's failure to raise this issue at an earlier time is an additional factor supporting denial of Plaintiff's motion.
2. Whether Defendant's Denials Were Reasonable
12 Defendant also contends that it had a reasonable basis for believing that it would prevail on the disputed issues in this matter. The court agrees. Although it did not prevail at trial on the issues involved in the Disputed RFAs, Defendant appears to have had reasonable ground to believe that it might. Putting aside the above-discussed question of whether the RFAs improperly requested admissions to purely legal questions, the Disputed RFAs otherwise involved complex and technical questions of elastomer chemistry, accelerated chemical testing techniques, the performance of multiple EPDM rubber-based products in chloraminated water, and the engineering and design of potable water plumbing systems, among other issues. Given the scientific and technical complexity of these issues, the Court finds that Defendant's denials were not unreasonable. See Marchand, 22 F.3d at 937 (“[T]he true test under Rule 37(c) is not whether a party prevailed at trial but whether [the party] acted reasonably in believing that [it] might prevail.”). See also Scheufler v. Gen. Host Corp., 915 F.Supp. 236, 239 (D.Kan.1995) (holding that denial of requests for admission “involv[ing] complicated scientific issues about which there is little agreement among the experts” did not warrant fees under Rule 37(c)(2)); Bd. of Dirs., Water's Edge, a Condo. Unit Owner's Ass'n v. Anden Grp., 136 F.R.D. 100, 106–07 (E.D.Va.1991) (holding that sanctions were unwarranted because it was not unreasonable for party to deny “complex and contested factual matter[s]”); Dyer v. United States, 633 F.Supp. 750, 759 (D.Or.1985) (holding that denials of requests for admission were reasonable in light of “difficult factual question” regarding helicopter wake turbulence). But see Marchand, 22 F.3d at 937 (citing Dyer with approval for the proposition that a “defendant [is] entitled to rely on expert testimony to deny [a] difficult request for factual admission,” but declining to adopt “a per se rule that reliance on an expert opinion provides a reasonable ground for a party to believe he would prevail at trial”). For this additional reason, the court denies Plaintiff's motion for attorney fees and expert costs associated with Plaintiff proving at trial the substance of the requested admissions.
B. Defendant's Motion for Judgment as a Matter of Law
Defendant renews its motion for judgment as a matter of law on four grounds: (1) Plaintiff suffered no cognizable property damage as a matter of law and thus may not bring an action in tort under the “economic loss doctrine”; (2) Plaintiff's damages are speculative; (3) there was no
evidence presented at trial that Defendant's products were unreasonably dangerous; and (4) there was no evidence presented at trial that any degradation of Defendant's products was caused by a design defect. The Court addresses each argument in turn.
1. Whether Plaintiff suffered property damage as a matter of law
At the outset, Defendant argues that that the economic loss doctrine bars Plaintiff from recovering damages in tort. Defendant concedes, however, that this argument is identical to that made in Defendant's Motion for Summary Judgment (Dkt. 89) and Renewed Motion for Summary Judgment (Dkt. 223). As Defendant presents no new reasons for the Court to reconsider its ruling on the application of the economic loss doctrine to the facts of this case, the Court declines to address this argument for a third time.
Next, Defendant makes two additional, but related, arguments. First, Defendant argues that Plaintiff failed to present sufficient evidence at trial of any “property damage” resulting from black particles being found in the Benson Tower's potable water system. Second, Defendant argues that Plaintiff failed to present any evidence at trial from which a reasonable jury could conclude that the Victaulic products were defective and would eventually leak. Viewing all the evidence presented at trial in the light most favorable to Plaintiff, as the Court must on a motion for judgment as a matter of law, both of these additional arguments fail.
a. Plaintiff's evidence of property damage
13 Plaintiff presented extensive evidence at trial regarding black particles being found in the Benson Tower's potable water system. Plaintiff's expert witness Jerry Leyden testified at trial that the black particles found in the potable water system in the Benson Tower were composed of EPDM rubber and that the same type of EPDM black particles were found during the ASTM D–6284 testing of Defendant's products performed by Mr. Leyden. Trial Tr. vol. 6, 1191–93, Jan. 13, 2015. Similarly, Plaintiff's expert witness Dr. Gerald Fuller testified that the degradation of the Victaulic products continued to release “carbon black” into the potable water system at Benson Tower, that this degradation was observable throughout the system, and that the problem could be remedied only by removal of the defective Victaulic products. Trial Tr. vol. 3, 583–585, Jan. 7, 2015. Plaintiff's witness Baron Adams also testified that he had observed similar black particles in other Portland buildings with Victaulic products and that these black particles routinely clogged filters and aerators in these buildings. Trial Tr. vol. 5, 960–61, Jan. 12, 2015. Taking this evidence in the light most favorable to Plaintiff, this evidence is more than sufficient to establish that Plaintiff suffered cognizable property damage to its potable water system.
b. Plaintiff's evidence that Victaulic's products would eventually leak
14 Plaintiff also presented evidence at trial regarding the premature failure of the Victaulic products installed in the Benson Tower. Dr. Fuller testified to the risks of future leaks caused by the progressive degradation of the Victaulic products. Trial Tr. vol. 3, 583–85, Jan. 8, 2015. Dr. Fuller examined numerous Victaulic products in front of the jury, demonstrating how the Victaulic products had substantially degraded at the thinnest portion of the rubber, that this degradation had occurred far earlier than should have been expected, and that further degradation would inevitably cause leaks in the potable water delivery system. Mr. Leyden also testified to observed EPDM degradation and confirmed Dr. Fuller's observations.
Trial Tr. vol. 6, 1201–3, Jan. 13, 2015. Taking this evidence in the light most favorable to Plaintiff, Plaintiff sufficiently established that the Victaulic products were failing and would inevitably cause leaks in the potable water delivery system.
2. Whether Plaintiff's claimed damages were speculative
15 Defendant argues that because no evidence of leaks at the Benson Tower was presented at trial Plaintiff's damages are speculative as a matter of law. The evidence presented at trial, however, showed that the EPDM in the Victaulic products installed in the Benson Tower were degrading and releasing black particles into the potable water system. Plaintiff's expert testimony showed that these particles were composed of EPDM. The jury heard testimony that other Portland buildings that do not have Victaulic products installed do not have these black particles. Plaintiff's expert testimony further showed that the Victaulic products were degrading, substantially reducing the useful life of the products and eventually requiring full replacement of the Victaulic products to prevent further contamination of the potable water system and leakage from the potable water delivery system at Benson Tower. Thus, Plaintiff's damages, when viewed in the light most favorable to Plaintiff, are not speculative. The evidence presented at trial showed that the Victaulic products were defective and that the defective Victaulic products caused damage to Plaintiff's property and would continue to do so until replaced. Plaintiff's damages were the reasonable replacement costs of the defective products.
3. Whether Plaintiff presented sufficient evidence that Defendant's products were unreasonably dangerous due to a defective design
Defendant argues that Plaintiff failed to present sufficient evidence at trial that the Victaulic products were unreasonably dangerous due to a defective design. Specifically, Defendant contends that Plaintiff failed to show an unreasonably dangerous product under either a “representational approach” or a “risk-utility approach” to the “consumer expectations test” under Oregon law. The Court first describes the consumer expectations test and then addresses the sufficiency of Plaintiff's evidence.
a. Elements of strict products liability by defective design
1617181920 Under Oregon law, the necessary elements of a products liability case involving a design defect are: (1) the sale or leasing of a product by one engaged in the business of selling or leasing such products; (2) a product that was expected to, and did, reach the user or consumer without substantial change in condition; (3) a product that, when sold, was in a defective condition unreasonably dangerous to the user or consumer; and (4) injury to the user or consumer, or damage to his or her property; (5) that was caused by the product's defective condition. McCathern v. Toyota Motor Corp., 332 Or. 59, 77 n. 15, 23 P.3d 320 (2001). As to the third element, “the controlling test ... in Oregon is the consumer expectations test.” Id. at 79, 23 P.3d 320. “When a plaintiff alleges that a product is in a defective condition unreasonably dangerous to the user or consumer, the plaintiff must prove that, when the product left the defendant's hands, the product was defective and dangerous to an extent beyond that which the ordinary consumer would have expected.” Id. (citation and quotation marks omitted). “Whether a product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer is a factual question to be determined by the jury.” Id. at 77, 23 P.3d 320. A trial
court must, however, “ensure that the evidence is sufficient for the jury to make an informed decision about what ordinary consumers expect.” Id. Because Or.Rev.Stat. (“ORS”) § 30.910 creates a rebuttable presumption that a product is not defective, “a plaintiff may not rely on the bare assertion of a defect from which a jury may infer unreasonable dangerousness; rather, a party must affirmatively put forth some evidence on the issue of dangerousness before the issue may properly be submitted to a jury.” Russell v. Deere & Co., 186 Or.App. 78, 83, 61 P.3d 955 (2003).
2122232425 Under Oregon law, consumer expectations about how some products should perform under a particular set of circumstances may, in some cases, be within the realm of jurors' common experience. McCathern, 332 Or. at 78, 23 P.3d 320. In other cases, however, the products or circumstances involved may be such that the average person would not know what to expect. Id. “When a jury is unequipped, either by general background or by facts supplied in the record, to decide whether [a product] failed to perform as safely as an ordinary consumer would have expected ... additional evidence about the ordinary consumer's expectation is necessary.” Id. (quotation marks omitted) (alteration in original). This additional evidence may include advertising or other representations by the defendant about how a product can be used and will perform.
Id. at 79, 23 P.3d 320. In a design defect case, this additional evidence may also consist of risk-utility balancing—proving that a practicable and feasible design alternative was available. Id. at 78, 23 P.3d 320. These two approaches are generally referred to as the “representational” approach and the “risk-utility” approach, respectively. Id. at 76, 23 P.3d 320. A plaintiff may establish consumer expectations under the “representational” approach “by proving that the manufacturer specifically represented to the consuming public that the product would be able to perform certain functions, when, in fact, it could not, resulting in the plaintiff's injury.” Id. (citation omitted). A plaintiff may also establish consumer expectations under the “consumer risk-utility” approach by proving “that a product could have feasibly and practicably been designed more safely.” Id. (citation omitted).