Smith v. Terumo BCT, Inc.
2025 COA 85. No. 24CA1393. Class Actions—Jurisdiction—Standing—Injury-in-Fact—CRCP 15(a)—CRCP 60(b)(5).
October 30, 2025
Terumo BCT, Inc., and Terumo BCT Sterilization Services, Inc. (collectively, Terumo), own and operate manufacturing and sterilization facilities in Lakewood (the facilities). Terumo sterilizes medical equipment using ethylene oxide (EtO), a colorless and odorless gas and a known carcinogen. The facilities emit EtO in accordance with a Colorado Department of Public Health and Environment air quality permit. Smith filed a class action lawsuit on behalf of himself and similarly situated residents living near the facilities, asserting claims for negligence, strict liability for ultrahazardous activity, private nuisance, and public nuisance. Smith alleged that he and other proposed class members have been injured by exposure to EtO emissions from the facilities since 1988, but he did not allege that he or another proposed member suffered adverse physical effects from EtO exposure. Smith also excluded from the proposed class persons diagnosed with cancer related to EtO exposure. The district court concluded that Smith had not alleged that he or another class member had been injured by EtO exposure and thus dismissed the complaint. Smith did not appeal the dismissal order but moved to amend the complaint under CRCP 15(a) or, alternatively, moved for relief from judgment under CRCP 60(b)(5). The proposed amended complaint alleged additional facts and added a battery cause of action, and sought to add plaintiffs Jensen and Lang, who at the same time moved to intervene in the case. The court ultimately ruled that Smith was not entitled to amend his complaint as a matter of course because the dismissal order was a final judgment. The court also denied Smith’s request for relief under CRCP 60(b)(5) because the additional allegations in the proposed amended complaint did not cure the legal deficiencies in the initial complaint. Lastly, the court denied the motion to intervene.
On appeal, Smith argued that the dismissal order was not a final judgment, so he was entitled to amend his complaint as a matter of right under CRCP 15(a) because Terumo had not filed a responsive pleading when the court granted the dismissal motion. Smith maintained that the dismissal order left issues to be decided; for example, the dismissal order did not determine standing, whether he had sufficiently pleaded all of his claims, or the scope of the district court’s jurisdiction. Smith further asserted that the court’s order lacked indicia of finality because the judgment was not entered in the record of actions, it dismissed Smith’s claim without prejudice, and it did not dismiss the entire action. A final judgment ends a plaintiff’s right to file an amended complaint as a matter of course under CRCP 15(a). In evaluating finality, courts analyze the substance of the order rather than its title or characterization. To amend a complaint after entry of a final judgment, a plaintiff must seek relief under CRCP 59 or 60 and must obtain either the defendant’s written consent to amend or the court’s leave to amend. Here, regardless of how the district court framed its analysis, the basis of its ruling was that Smith failed to plead a legally cognizable injury. Given the lack of an injury-in-fact allegation, the district court was thus required to dismiss the case on jurisdictional grounds for lack of standing. And, having decided it lacked jurisdiction, there was nothing more for the court to decide. The judgment was therefore final, and Smith could not rely on CRCP 15(a) to amend his complaint as a matter of course.
Smith contended alternatively that even if the dismissal order was a final judgment, the court erred by concluding that his proposed amendment to the complaint was futile and denying him relief from judgment under CRCP 60(b)(5). He asserted that a present physical injury is not a prerequisite for recovery under Colorado tort law, so his proposed amendments cured the alleged deficiencies in his original complaint. Smith maintained that he alleged an injury by asserting that (1) EtO exposure altered his bodily structures and left him with an increased risk of disease, and (2) he has been injured due to the present medical necessity to incur diagnostic testing costs for early disease detection. To establish standing to sue, a Colorado plaintiff must establish an injury in fact to a legally protected interest. There has been a recent trend of courts throughout the country holding that a toxic tort claim cannot proceed in the absence of a present physical injury, and these cases are consistent with Colorado’s long-standing rejection of tort claims based on the potential of future physical harm. The court of appeals thus held that a plaintiff cannot establish standing to sue based solely on an allegation that the defendant’s negligent conduct may increase his future risk of illness or injury. Here, Smith’s allegation that EtO exposure increases his risk of cancer or other disease is simply a hypothetical claim of future physical injury, so the district court correctly concluded that he had not alleged an injury-in-fact sufficient to confer standing to sue and that his proposed amended complaint was futile.
The court also concluded that (1) the battery claim was futile because battery is an intentional tort, and Smith did not allege that Terumo wanted to offend or harm anyone; and (2) the court did not err by denying the motion to intervene on grounds that intervention was futile, because the proposed new class members asserted the same deficient injury claims as Smith.
The judgment was affirmed.