Colorado’s second-highest court concluded last week that state law does not recognize a plaintiff’s claim that a defendant’s actions increased their risk of illness in the future.

A three-judge Court of Appeals panel acknowledged that courts in some states have sided with plaintiffs’ arguments that the need to spend money on medically monitoring their exposure to toxins can form the basis of a civil claim.

“In recent years, however, a trend has emerged as courts throughout the country have repeatedly held that a toxic (exposure) claim cannot proceed in the absence of a present physical injury,” wrote Judge Matthew D. Grove in an Oct. 30 opinion.

In an unusual move, Grove also authored a separate concurring opinion asking the Colorado Supreme Court to clarify a procedural issue in a way that could limit plaintiffs’ ability to revise their claims to make them more viable.

In the underlying case, Edward Smith Jr., who lives in Jefferson County, sued Terumo BCT, Inc., which has a facility in Lakewood for sterilizing medical equipment. The process uses ethylene oxide gas (EtO), which the U.S. Environmental Protection Agency recognizes as a carcinogen. Smith alleged the Lakewood facility released large volumes of EtO over several decades.

Smith’s lawsuit, intended as a class action, included claims of negligence and nuisance. But rather than allege he was currently sick from Terumo’s EtO use, Smith argued the gas put class members at an “increased risk of illness,” making it “reasonably medically necessary to undergo and incur the cost of diagnostic testing for the early detection” of disease.

In February 2021, District Court Judge Lindsay VanGilder granted Terumo’s motion to dismiss. She indicated she could not find a single case in Colorado recognizing a plaintiff’s future medical monitoring costs as the basis for a claim. As such, Smith had not alleged an injury from Terumo’s conduct.

“Plaintiff concludes he has been exposed to EtO based on how the chemical disperses in the atmosphere but provides no tangible information to support the claim that he has been exposed or has experienced any physical manifestation of injury from the exposure,” VanGilder wrote.

Several weeks after the dismissal, Smith moved to amend his complaint. Terumo opposed the move. More than three years went by with no action from VanGilder, until Terumo filed a motion asking her to “clarify that the case is terminated.”

In a June 2024 order, VanGilder confirmed that, procedurally, her dismissal was a final judgment and Smith had no right under the procedural rules to automatically file an amended complaint. But even with Smith’s revised allegations, VanGilder noted he still had not alleged any current illness from EtO exposure.

Smith then turned to the Court of Appeals. Weighing in on behalf of Terumo was a collection of industry groups, including the Chamber of Commerce and trade associations for insurers, medical technology suppliers and paint manufacturers.

“These claims invite unlimited liability, diverting judicial and financial resources away from those who are genuinely injured and in need of compensation,” the organizations wrote.

During oral arguments, the appellate panel was concerned about the consequences of allowing exposure-based claims.

“I worry that this proves too much. Anything I breathe in or anything I eat, I have a chemical reaction with and I absorb it,” said Grove. “So, if that’s true, then everything I do, every interaction I have with the environment, results in a change in my bodily structure.”

Ultimately, the panel upheld the dismissal based on how “Colorado law currently stands.”

“Because Smith’s allegation that EtO exposure increases his risk of cancer or other disease amounts to nothing more than a hypothetical claim of ‘future physical injury’,” wrote Grove, “the district court correctly concluded that he had not alleged an injury ‘where there was no manifestation of illness or disease.'”

Grove also wrote a separate solo opinion focusing on a different aspect of the case: Smith’s attempt to amend his complaint after VanGilder dismissed it.

He noted there is a similar rule in Colorado and federally governing that scenario. The Colorado Supreme Court, in a 2021 decision, held that plaintiffs do not automatically have a right to amend their allegations in those circumstances. But if the amendment addresses the identified shortcomings, the Supreme Court suggested trial judges should accept the amended complaint.

However, earlier this year, the U.S. Supreme Court interpreted the parallel federal rule to require “extraordinary circumstances” before a plaintiff can amend their complaint after a final judgment.

Grove wrote that if the federal standard applied to Smith’s case, the attempt to amend the complaint would have easily failed for lack of extraordinary circumstances. But, more broadly, Grove was concerned that Colorado has seemingly not adopted the more restrictive federal standard, to the confusion of trial judges.

“Because of the apparent inconsistency,” he wrote, “I urge the Colorado Supreme Court to clarify whether a plaintiff who seeks to amend his complaint after final judgment is entered must demonstrate ‘extraordinary circumstances’ before being permitted to do so.”

The case is Smith v. Terumo BCT, Inc. et al.