Inc.

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
October 30, 2025

2025COA85

No. 24CA1393 Smith v. Terumo BCT, Inc. — Class Actions;
Courts and Court Procedure — Jurisdiction of Courts —
Standing — Injury in Fact

A division of the court of appeals holds 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. The concurrence dubitante raises questions about the

correct interpretation of C.R.C.P. 60(b)(5) in the wake of seemingly

conflicting decisions in Schaden v. DIA Brewing Co., 2021 CO 4M,

and BLOM Bank SAL v. Honickman, 605 U.S. 204, 214 (2025).
COLORADO COURT OF APPEALS 2025COA85

Court of Appeals No. 24CA1393
Jefferson County District Court No. 19CV31822
Honorable Lindsay VanGilder, Judge

Edward Smith, Jr.,

Plaintiff-Appellant,

and

Paula Jensen and Gay Lang,

Intervenors-Appellants

v.

Terumo BCT, Inc., and Terumo BCT Sterilization Services, Inc.,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE GROVE
Welling and Johnson, JJ., concur
Grove, J., concurs dubitante

Announced October 30, 2025

Singleton Schreiber LLP, Kevin S. Hannon, Yohania T. Santana, Denver,
Colorado, for Plaintiff-Appellant and Intervenors-Appellants

McFarland Litigation Partners, LLC, J. Lucas McFarland, Golden, Colorado;
King & Spalding LLP, Paul Alessio Mezzina, Nicolas A. Mecsas-Faxon,
Washington, D.C.; King & Spalding LLP, Douglas A. Henderson, Nicholas H.
Howell, Atlanta, Georgia, for Defendants-Appellees
Wheeler Trigg O’Donnell, LLP, Frederick R. Yarger, Kate K. Fletcher, Denver,
Colorado, for Amici Curiae American Property Casualty Insurance Association,
Advanced Medical Technology Association, National Federation of Independent
Business Small Business Legal Center, Inc., American Tort Reform Association,
Chamber of Commerce of the United States of America, Colorado Chamber of
Commerce, Coalition for Litigation Justice, Inc., and American Coatings
Association
¶1 In Colorado, a plaintiff must satisfy two criteria to establish

standing to sue: (1) an injury in fact to (2) a legally protected

interest. Ainscough v. Owens, 90 P.3d 851, 856 (Colo. 2004). In

this case, we consider whether Edward Smith, Jr., the named

plaintiff in this putative class action lawsuit, adequately pleaded

that he suffered an injury in fact by alleging that he and other class

members have been exposed to and absorbed toxic chemicals from

nearby industrial facilities. The district court concluded that

Smith’s complaint must be dismissed because it did not allege that

Smith and his fellow class members have fallen ill or suffered any

other tangible adverse effects as a result of their alleged chemical

exposure. It thus denied Smith’s motion to amend his complaint

under C.R.C.P. 15(a), his motion for relief and subsequent leave to

amend under C.R.C.P. 60(b)(5), and a motion by Paula Jensen and

Gay Lang to intervene as plaintiffs under C.R.C.P. 24(a) or (b).

¶2 Like the district court, we conclude that a plaintiff cannot

establish standing to sue under Colorado law based solely on an

allegation that the defendant’s actions have increased the plaintiff’s

risk of future illness or disease. Therefore, we affirm.

1
I. Background

¶3 We draw the following factual background from Smith’s

complaint and the proposed amended complaint.

¶4 Defendants, Terumo BCT, Inc., and Terumo BCT Sterilization

Services, Inc. (collectively, Terumo), are the owners and operators of

manufacturing and sterilization facilities in Lakewood. Terumo

sterilizes medical equipment using ethylene oxide (EtO), which is a

colorless and odorless gas and a known carcinogen. The Lakewood

facilities emit EtO in accordance with an air quality permit issued

by the Colorado Department of Public Health and Environment.

¶5 In December 2019, Smith filed a class action lawsuit on behalf

of himself and other similarly situated residents living near the

Lakewood facilities. In his complaint, Smith asserted claims for

negligence, strict liability for ultrahazardous activity, private

nuisance, and public nuisance. He alleged that he and other class

members have been injured because they have been exposed to

large amounts of EtO emissions from the Lakewood facilities since

1988.

¶6 Smith did not allege that he or any other member of the

proposed class has suffered any adverse physical effects from EtO

2
exposure; to the contrary, he excluded from the proposed class “all

persons who have been diagnosed with cancer related to exposure

to EtO.” As for the injuries suffered by members of the proposed

class, Smith alleged that the “significant exposure” he and other

nearby residents have experienced has increased their “risk of

illness, disease process and/or disease, including cancer.” An

appropriate remedy for this “increased risk,” Smith contended,

would be to award him and other class members “the cost of a

program of diagnostic testing for the early detection of illnesses,

disease processes or disease” to ensure that any illnesses caused by

EtO exposure could be “immediately identified and aggressively

treated.”

¶7 Terumo moved to dismiss Smith’s complaint. The district

court granted the motion, reasoning that Smith had not alleged that

he or any other class member has been injured by EtO exposure.

As the court put it, “[e]ven taking [Smith’s] allegations of exposure

and heightened risk of developing disease as true, the Court finds

exposure to a toxic substance does not, by itself, establish injury for

an action in tort.”

3
¶8 The court dismissed the complaint on February 16, 2021.

Although the order did not indicate whether the dismissal was with

or without prejudice, the register of actions includes two additional

entries on the same date, one stating that the case was dismissed

without prejudice and the other stating that the case was

administratively closed.

¶9 Smith did not appeal the district court’s February 16, 2021,

order. Instead, on April 5, 2021, he filed a motion to amend the

complaint under C.R.C.P. 15(a) or, alternatively, for relief from

judgment under C.R.C.P. 60(b)(5).1 The proposed amended

complaint sought to add two plaintiffs — Jensen and Lang — who

at the same time moved to intervene in the case. It also alleged

additional facts about EtO’s hazardous, mutagenic, cancer-causing,

and genotoxic nature; diagnostic testing and monitoring available to

facilitate early detection of diseases associated with EtO exposure;

1 At the end of his response to Terumo’s motion to dismiss, Smith

requested “leave to amend his complaint if the Court cannot deny
Defendants’ [C.R.C.P.] 12(b)(5) motion.” The court did not address
Smith’s request at the time because, as the court noted in a
subsequent order, it was not submitted as a separate motion. See
C.R.C.P. 121, § 1-15(1)(d) (“A motion shall not be included in a
response or reply to the original motion.”).

4
Terumo’s EtO emissions; and the presence of EtO in Smith’s,

Lang’s, and Jensen’s bodies, including allegations that EtO has

been absorbed through their respiratory tracts and distributed in

their bodies, “constituting a change in the structure of [their]

bod[ies].” The proposed amended complaint also attempted to add

battery as a new cause of action.

¶ 10 Three years elapsed with no action from the district court.

Eventually, Terumo filed a “Motion to Confirm the Case is Closed,”

which appears to have prompted the court to deny Smith’s requests

for relief under C.R.C.P. 15(a) and 60(b)(5), as well as Jensen and

Lang’s motion to intervene as plaintiffs. Regarding Smith’s motion

to amend the complaint under C.R.C.P. 15(a), the court ruled that

he was not entitled to amend his complaint as a matter of course

because the February 16, 2021, order granting the motion to

dismiss was a final judgment. See Schaden v. DIA Brewing Co.,

2021 CO 4M, ¶ 2. The court denied Smith’s request for relief under

C.R.C.P. 60(b)(5) after concluding that the allegations in the

proposed amended complaint did not “address or cure the legal

deficiencies that provide the basis for the [initial] dismissal of the

complaint.” Accordingly, the court denied the “request for leave to

5
amend under C.R.C.P. 60(b)(5) as futile.” In a separate order issued

the same day, the court denied the motion to intervene filed by

Jensen and Lang “for the reasons outlined” in the order denying

Smith’s motion.

¶ 11 Smith now appeals. He contends first that the district court

should have permitted him to amend his complaint as a matter of

course because the February 16, 2021, order was not a final

judgment. In the alternative, he argues that the court should have

granted his motion for relief under C.R.C.P. 60(b)(5) (and should

have permitted Jensen and Lang to intervene as plaintiffs) because

his proposed amended complaint stated a claim upon which relief

could be granted and included sufficient allegations to establish

that he and the intervenors had standing to pursue their claims.

II. C.R.C.P. 15(a)

¶ 12 Smith contends that the district court’s February 16, 2021,

order granting the motion to dismiss was not a final judgment.

Accordingly, he asserts, he was entitled to amend his complaint as

a matter of right under C.R.C.P. 15(a) because Terumo had not yet

filed a responsive pleading when the court granted the motion. We

disagree.

6
A. Standard of Review

¶ 13 Appellate courts generally review a district court’s denial of a

motion seeking leave to amend a complaint for an abuse of

discretion. Benton v. Adams, 56 P.3d 81, 85 (Colo. 2002). However,

when a court denies leave to amend on grounds that the

amendment would be futile because it cannot survive a motion to

dismiss, we review that question de novo as a matter of law. Id.

B. Applicable Law

¶ 14 C.R.C.P. 15(a) provides that a party “may amend his pleading

once as a matter of course at any time before a responsive pleading

is filed” or if a responsive pleading is not permitted, “within 21

days” after the initial pleading was filed. Outside of this right to

amend, a party may also amend a complaint with the written

consent of the adverse party or by leave of the court “when justice

so requires.” C.R.C.P. 15(a).

¶ 15 “[A] final judgment,” however, “cuts off a plaintiff’s right to file

an amended complaint as a matter of course under C.R.C.P. 15(a).”

Schaden, ¶ 2. Thus, to amend a complaint after entry of a final

judgment, a plaintiff must seek relief under C.R.C.P. 59 or 60 and

7
must obtain either written consent to amend from the defendant or

leave to amend from the court. Schaden, ¶ 39.

¶ 16 “A final judgment is ‘one which ends the particular action in

which it is entered, leaving nothing further for the court

pronouncing it to do in order to completely determine the rights of

the parties involved in the proceeding.’” In re Water Rts. of Elk

Dance Colo., LLC, 139 P.3d 660, 668 (Colo. 2006) (citation omitted).

When evaluating finality, courts look to the substance of the order

at issue, rather than its title or characterization, to determine

whether it cuts off the plaintiff’s right to amend the complaint as a

matter of course. Schaden, ¶¶ 47-49.

C. Additional Facts

¶ 17 The district court granted Terumo’s motion to dismiss because

Smith did not plead a cognizable injury. The court reasoned that

mere exposure to “a toxic chemical,” without an accompanying

adverse physical impact, “is inadequate to support a cause of action

for toxic-tort related injury.” Likewise, to the extent that EtO

exposure increases Smith’s “potential risk for future illness or

disease,” the court determined that the increased risk was “not a

present injury in itself.” As a result, the court concluded, Smith’s

8
claim seeking medical monitoring for class members as a remedy

for EtO exposure must fail. In reaching this conclusion, the court

observed that it had not found a single case decided by a Colorado

state court that “adopted or advanced [medical monitoring as a]

separate cause of action under Colorado state law.”2 Because the

court found it inappropriate “to engage in legislative or policy-

making functions,” it dismissed the case. Given the basis of its

ruling — that Smith had not pleaded that he suffered a legally

cognizable injury — the court did not consider whether Smith had

sufficiently pleaded other elements of the claims asserted in his

complaint.

¶ 18 The court denied Smith’s subsequently filed motion to amend

the complaint for largely similar reasons. After ruling that

amendment as a matter of course was no longer available after it

had dismissed the case, see Schaden, ¶ 2, the court concluded that

2 The court acknowledged two federal district court cases that had

predicted Colorado state courts might “recognize a claim for medical
monitoring absent present physical injury,” see Bell v. 3M Co., 344
F. Supp. 3d 1207, 1224 (D. Colo. 2018); Cook v. Rockwell Int’l Corp.,
755 F. Supp. 1468, 1477 (D. Colo. 1991), but found it significant
that no state court has subsequently done so given the substantial
amount of time that has elapsed since those predictions were made.

9
Smith’s proposed amended complaint was futile because it still

failed to allege a cognizable injury.

D. Analysis

¶ 19 Smith contends that the district court’s February 16, 2021,

order was not a final judgment because it left issues to be decided.

In particular, he asserts that 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. He also asserts the

court’s order lacks indicia of finality because the court did not enter

the judgment in the record of actions, it dismissed Smith’s claim

without prejudice, and it did not dismiss the entire action.

¶ 20 Regardless of how the district court framed its analysis,3 it

concluded that Smith did not allege that he or other members of the

class have suffered a cognizable injury as a result of EtO exposure.

3 We acknowledge that the district court’s February 16, 2021, order

could be read in two ways — as dismissing the case either on
jurisdictional grounds for lack of standing or because Smith’s
complaint failed to state a claim upon which relief may be granted.
Reviewing the question of subject matter jurisdiction de novo, we
conclude that Smith’s failure to plead that he suffered an injury in
fact to a legally protected interest deprived the district court of
jurisdiction over his complaint. See Wimberly v. Ettenberg, 570
P.2d 535, 539 (Colo. 1977).

10
Thus, in the absence of an allegation that the class members have

been “injured in fact,” the district court was required to dismiss the

case on jurisdictional grounds for lack of standing. See Hotaling v.

Hickenlooper, 275 P.3d 723, 725 (Colo. App. 2011) (“To establish

standing, a plaintiff suing in Colorado state court must establish

that (1) he incurred an injury-in-fact; and (2) the injury was to a

legally protected interest.”); Colo. Manufactured Hous. Ass’n v.

Pueblo County, 857 P.2d 507, 510 (Colo. App. 1993) (“If the

complaint fails to allege injury, the case must be dismissed; if the

plaintiff does allege sufficient injury, the question whether the

plaintiff is protected by law from the alleged injury must be

answered.”).

¶ 21 Looking to “the substance of the judgment at issue,” Schaden,

¶ 47, we conclude that the February 16, 2021, order was a final

judgment. The district court concluded that Smith and other

members of the class have not suffered an injury as the result of

Terumo’s alleged EtO emissions. And, having concluded that Smith

did not allege that he or the other putative class members have

been injured by Terumo, it follows that Smith lacked standing and

“the district court was compelled to dismiss the case as it lacked

11
jurisdiction to hear it.” Id. at ¶ 48. Once the court decided it did

not have jurisdiction, there was nothing more for it to decide “and

nothing further for the court to pronounce,” id., meaning that it had

issued a final judgment and Smith could no longer rely on C.R.C.P.

15(a) to amend his complaint as a matter of course. See Moya v.

Schollenbarger, 465 F.3d 444, 449 (10th Cir. 2006) (“In evaluating

finality, . . . we look to the substance and objective intent, of the

district court’s order, not just its terminology.”).

III. C.R.C.P. 60(b)(5)

¶ 22 Smith argues in the alternative that, if the district court’s

dismissal order was a final judgment, the court erred when it

concluded that his proposed amendment to the complaint was futile

and thus denied him relief from judgment under C.R.C.P. 60(b)(5),

which allows the court to relieve a party from a judgment for “any

other reason justifying relief from the operation of the judgment.”4

He asserts that a present physical injury is not a prerequisite for

recovery under Colorado tort law and that, as a result, his proposed

4 To the extent that we address Smith’s arguments, we are limited

to reviewing the court’s decision denying Smith’s request for relief
under C.R.C.P. 60 because he failed to appeal the court’s dismissal
order.

12
amendments cured the alleged deficiencies in his original

complaint.5 We are not persuaded.

A. Applicable Law and Standard of Review

¶ 23 As we have already discussed, Schaden holds that “once a

judgment enters and becomes final, a plaintiff no longer has the

right to file an amended complaint as a matter of course under

C.R.C.P. 15(a).” Schaden, ¶ 39. But losing the right to amend the

complaint as a matter of course does not necessarily deprive a

plaintiff of any postjudgment remedy. To the contrary, the court in

Schaden concluded that “such a plaintiff must seek relief from the

judgment under C.R.C.P. 59 or 60 and must obtain either leave to

amend from the court or written consent to amend from the

defendant.” Id. (emphasis added).

¶ 24 Grounds for a district court to deny leave to amend pleadings

include undue delay, bad faith, dilatory motive, repeated failure to

5 Smith’s appellate briefing does not develop any argument

contesting the district court’s apparent rejection of his proposed
amended claims based on ultrahazardous activity and public and
private nuisance. We therefore do not consider them. See State
Farm Mut. Auto. Ins. Co. v. City of Lakewood, 788 P.2d 808, 811 n.5
(Colo. 1990) (deeming abandoned a claim not raised on appeal, even
where the district court failed to rule on the claim below).

13
cure deficiencies in the pleadings via prior amendments, undue

prejudice to the opposing party, and futility. Benton, 56 P.3d at 86.

A proposed amendment is futile “if, among other things, it fail[s] to

state a legal theory or [is] incapable of withstanding a motion to

dismiss.” Vinton v. Virzi, 2012 CO 10, ¶ 13.

¶ 25 Whether to grant a party leave to amend “is within the sound

discretion of the trial court.” Benton, 56 P.3d at 85. We review the

decision to deny a party’s motion to amend pleadings for an abuse

of discretion. Riccatone v. Colo. Choice Health Plans, 2013 COA

133, ¶ 47. “A trial court abuses its discretion when its decision is

manifestly arbitrary, unreasonable, or unfair” or “when it

misconstrues or misapplies the law.” Rinker v. Colina-Lee, 2019

COA 45, ¶ 29.

¶ 26 C.R.C.P. 60(b)(5) is a residuary provision that has been

construed to apply only to situations not covered by the other

provisions of C.R.C.P. 60(b) and should be employed “only in

extreme situations or extraordinary circumstances.” Davidson v.

McClellan, 16 P.3d 233, 237 (Colo. 2001). As relevant here, a court

may relieve a party from a final judgment under C.R.C.P. 60(b)(5)

for “any other reason justifying relief from the operation of the

14
judgment.” As the concurrence discusses, Schaden did not make

clear whether the plaintiff in that case made a showing of

extraordinary circumstances, and the United States Supreme

Court’s recent decision in BLOM Bank SAL v. Honickman, 605 U.S.

204, 214 (2025), raises questions about the extent to which such a

showing is required. We need not reach that question, however,

because, like the district court, we conclude that Smith’s proposed

amended complaint was futile.

B. Additional Facts

¶ 27 We have already noted that the district court dismissed

Smith’s original complaint after concluding that he had not pleaded

a cognizable injury. In his proposed amended complaint, Smith

attempted to address these shortcomings by, in part, fleshing out

his assertion that he and other class members have suffered a

cognizable injury as a result of their EtO exposure.

¶ 28 The court declined to grant Smith relief because his proposed

amendments were futile. The court explained that, while the

amendments included new allegations “to support [Smith’s] claim of

exposure to EtO and presence of EtO in his body,” the proposed

amended complaint still failed to allege that Smith or any other

15
class member has been “diagnosed with cancer or any other illness

or disease.” While the court acknowledged that Smith’s proposed

amendments added more information about the “hazardous nature

of EtO and its mutagenic, cancerous, and genotoxic properties,” the

proposed amended complaint still failed to do any more than

generally assert that Smith’s body (and the bodies of other class

members) has absorbed the chemical, leading to an increased risk

of illness and disease and alterations in his body and “bodily

structures.” What the proposed amended complaint did not do, the

court observed, was “allege any manifestation of illness or disease.”

¶ 29 In the absence of allegations that Smith and other class

members have suffered any injury as a result of EtO exposure, the

district court adhered to the analysis in its original dismissal order.

To reach this conclusion, the court compared Smith’s complaint to

“cases that analyze exposure to asbestos, finding no injury where

there was no manifestation of illness or disease.” Accordingly,

because granting the proposed amendments would not cure the

alleged deficiencies that provided the basis for the court’s earlier

dismissal, the court denied Smith’s request to amend the complaint

as futile.

16
C. Analysis

¶ 30 Smith contends that his proposed amended complaint was not

futile for two reasons. First, he maintains that he did allege an

injury by asserting that EtO exposure has altered his bodily

structures and left him with an increased risk of disease. Second,

he argues that he has been injured due to the “[t]he pecuniary

detriment of the present medical necessity to incur the cost of

diagnostic testing for the early detection of disease.” As Colorado

law currently stands, we cannot conclude that either of these

assertions established that Smith has suffered an injury in fact

sufficient to confer standing to sue.

¶ 31 “One of the basic principles of law is that a party may not

recover damages if he has not suffered an injury.” Isaac v. Am.

Heritage Bank & Tr. Co., 675 P.2d 742, 744 (Colo. 1984).

Consistent with this principle, “a person cannot pursue a tort claim

for future death, future physical injury, or future property damage.”

Open Door Ministries v. Lipschuetz, 2016 CO 37M, ¶ 19 (emphasis

added). 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,” the district court

17
correctly concluded that he had not alleged an injury “where there

was no manifestation of illness or disease.”

¶ 32 Although Smith does not identify any Colorado case holding

that mere exposure to a toxic chemical without an accompanying

physical injury can confer standing to sue, we acknowledge that

there is a split of authority on this issue in other states. Some have

held that such an allegation can support a claim for medical

monitoring. See, e.g., Meyer v. Fluor Corp., 220 S.W.3d 712, 718

(Mo. 2007) (“A physical injury requirement is inconsistent with the

reality of latent injury and with the fact that the purpose of medical

monitoring is to facilitate the early diagnosis and treatment of latent

injuries caused by exposure to toxins.”); Bower v. Westinghouse

Elec. Corp., 522 S.E.2d 424, 430 (W. Va. 1999) (rejecting “the

contention that a claim for future medical expenses” based on an

allegation of exposure to toxic substances “must rest upon the

existence of present physical harm”); Bourgeois v. A.P. Green Indus.,

Inc., 97-C-3188, pp. 5-6 (La. 7/8/98), 716 So. 2d 355, 356-57, 359

(holding that even though asymptomatic plaintiffs did not suffer

“bodily harm” from exposure to asbestos, their medical-monitoring

claim rested on the “legally protected interest” of avoiding “costly

18
medical bills”), superseded by statute, 1999 La. Acts 2662. Others

have declined to permit medical-monitoring relief under similar

circumstances and have “generally presumed that the subclinical

effects of toxic exposure do not constitute physical injury.” June v.

Union Carbide Corp., 577 F.3d 1234, 1249 & n.11 (10th Cir. 2009)

(collecting cases).

¶ 33 In recent years, however, a trend has emerged as courts

throughout the country have repeatedly held that a toxic tort claim

cannot proceed in the absence of a present physical injury. See,

e.g., Baker v. Croda Inc., 304 A.3d 191, 194 (Del. 2023) (“[A]n

increased risk of harm only constitutes a cognizable injury once it

manifests in a physical disease.”); Brown v. Saint-Gobain

Performance Plastics Corp., 300 A.3d 949, 952 (N.H. 2023) (“[T]he

mere existence of an increased risk of future development of disease

is not sufficient under New Hampshire law to constitute a legal

injury . . . .”); Berry v. City of Chicago, 2020 IL 124999, ¶ 33, 181

N.E.3d 679, 688 (“The rule . . . that an increased risk of harm is

not, itself, an injury, is consistent with the traditional

understanding of tort law.”); Lowe v. Philip Morris USA, Inc., 183

P.3d 181, 187 (Or. 2008) (“Following our precedents, we hold that

19
negligent conduct that results only in a significantly increased risk

of future injury that requires medical monitoring does not give rise

to a claim for negligence.”). Because these cases are consistent

with Colorado’s longstanding rejection of tort claims based on the

potential of future physical harm, see, e.g., Lipschuetz, ¶ 19, the

district court did not err by following them.

¶ 34 Similar reasoning applies to Smith’s new claim that EtO has

been “absorbed” by his respiratory tract and “distributed in his

body,” thus “constituting a change in the structure of his body.”

This allegation hews closely to section 15 of the Restatement

(Second) of Torts (A.L.I. 1965), which defines bodily harm as “any

physical impairment of the condition of another’s body, or physical

pain or illness.” And section 15 provides further in an

accompanying comment that “an impairment of the physical

condition of another’s body” occurs “if the structure or function of

any part of the other’s body is altered to any extent even though the

alteration causes no other harm.” Id. at cmt. a.

¶ 35 No Colorado case has adopted this definition, but we need not

decide whether it controls because Smith’s allegations are

conclusory in any event. See Scott v. Scott, 2018 COA 25, ¶ 19

20
(noting that the “plausibility standard” for a complaint “emphasizes

that facts pleaded as legal conclusions (i.e., conclusory statements)

are not entitled to the assumption that they are true”). True, the

proposed amended complaint cited various scientific studies

describing the health risks associated with EtO exposure and

alleged that it is readily absorbed by the lungs, rapidly metabolized,

and distributed throughout the body. But absorption and

metabolization do not necessarily lead to changes in the body’s

“structure or function,” Restatement (Second) of Torts § 15 cmt. a;

thus, without allegations specific to Smith or the other proposed

plaintiffs, these claims must be rejected as conclusory. Cf. Rhodes

v. E.I. du Pont de Nemours & Co., 636 F.3d 88, 95 (4th Cir. 2011)

(applying West Virginia law to conclude that the “alteration in the

structure” of or accumulation of a toxic chemical in the plaintiffs’

blood was insufficient to support a claim of battery). Because the

proposed amended complaint did not include an allegation that

Smith — or any other member of the class — has suffered any

currently existing adverse effect as a result of his alleged exposure to

EtO, the district court correctly concluded that his proposed

amended complaint was futile.

21
¶ 36 Turning to Smith’s assertion that his need to undergo medical

monitoring amounts to an economic injury, the district court

correctly observed that this claim “blurred the line between

establishing injury and damages.” As the Michigan Supreme Court

put it in a similar case, “a plaintiff must demonstrate a present

physical injury to person or property in addition to economic losses

that result from that injury in order to recover under a negligence

theory.” Henry v. Dow Chem. Co., 701 N.W.2d 684, 690 (Mich.

2005). Put another way, Smith cannot recover economic damages

associated with a medical monitoring claim without first

establishing that he has suffered an injury in fact. Because his

proposed amended complaint did not include allegations that would

support such an inference, the district court did not err by denying

Smith’s motion as futile.

IV. Remaining Issues

¶ 37 We briefly address Smith’s remaining contentions.

• To the extent that Smith attacks the merits of the court’s

original order of dismissal, we do not reach those

arguments because Smith did not appeal that order. See

Gestner v. Gestner, 2024 COA 55, ¶ 21 (explaining that

22
an appeal of the denial of a Rule 60(b) motion “does not

bring up the underlying judgment for review” (quoting

People in Interest of J.A.U. v. R.L.C., 47 P.3d 327, 331 n.6

(Colo. 2002))).

• Although the district court did not explicitly address the

question, we conclude that the claim of battery — which

Smith included in the proposed amended complaint as

an additional ground for the recovery of medical

monitoring costs — was futile. Battery is an intentional

tort, and “regardless of the characteristics of the alleged

tortfeasor, a plaintiff must prove that the actor desired to

cause offensive or harmful consequences by his act.”

White v. Muniz, 999 P.2d 814, 819 (Colo. 2000). While

Smith’s proposed amended complaint alleged that

Terumo intentionally emitted EtO into the atmosphere, it

did not allege that Terumo “desired” to offend or harm

anyone by doing so.

• Finally, the court did not err by denying Jensen and

Lang’s motion to intervene on grounds that intervention

was futile. The proposed new class members asserted

23
“the same claims for injury as Plaintiff Smith: past

present and future significant exposure” to EtO that

resulted in “increased risk of illness, disease, or disease

process” and the need for medical monitoring to detect

the resulting illness or disease. Because Smith’s

proposed amended complaint was futile, it follows that

the proposed intervenors’ claims were futile as well.

V. Disposition

¶ 38 We affirm the judgment.

JUDGE WELLING and JUDGE JOHNSON concur.

JUDGE GROVE concurs dubitante.

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JUDGE GROVE, concurring dubitante.

¶ 39 I write separately to highlight an emerging divide between the

Colorado Supreme Court’s interpretation of C.R.C.P. 60(b)(5) and

the United States Supreme Court’s interpretation of the federal rule

that it tracks, Fed. R. Civ. P. 60(b)(6), and to urge the Colorado

Supreme Court to clarify its interpretation of the Colorado rule.

¶ 40 C.R.C.P. 60(b)(5) is a residuary provision that should be

construed narrowly “to avoid undercutting the finality of

judgments.” In re People in Interest of A.P., 2022 CO 24, ¶ 22; see

Cavanaugh v. State, Dep’t of Soc. Servs., 644 P.2d 1, 5 (Colo. 1982).

The rule mirrors Fed. R. Civ. P. 60(b)(6) and, like its federal

counterpart, has historically been construed to apply “only to

situations not covered by [C.R.C.P. 60(b)’s other] enumerated

provisions” and “only in extreme situations or extraordinary

circumstances.” Davidson v. McClellan, 16 P.3d 233, 237 (Colo.

2001).

¶ 41 Notwithstanding its historically narrow interpretation of

C.R.C.P. 60(b)(5), in Schaden v. DIA Brewing Co., 2021 CO 4M, the

Colorado Supreme Court seemed to suggest that the rule can be

used as a vehicle for the post-dismissal amendment of a complaint

25
without regard to whether an “extreme situation” or “extraordinary

circumstance” exists. As I understand Schaden’s holding, a district

court should allow a postjudgment amendment to the complaint

under C.R.C.P. 60(b)(5) as long as the proposed amendment

remedies the shortcomings that led to the complaint’s dismissal.

Specifically, the Schaden court held that because the plaintiff’s

“proffered amended complaint is not futile and properly alleges both

standing and the claims set forth” therein, the proper remedy was a

remand with instructions to the district court to “accept [the]

amended complaint for filing.” Id. at ¶ 61.

¶ 42 Notably, the Schaden court reached this conclusion without

any reference to the “extraordinary circumstances” requirement

that it has traditionally imposed on all types of requests for

postjudgment relief under C.R.C.P. 60(b)(5). This approach was

consistent with some federal courts’ historical interpretation of the


The plaintiff in Schaden v. DIA Brewing Co., 2021 CO 4M, sought
post-trial relief more than fourteen days after the court had
dismissed its claims and closed the case. See C.R.C.P. 59(a)
(providing that a motion for post-trial relief must be brought within
fourteen days of entry of judgment). So the case appears to have
been decided under the residuary provision of C.R.C.P. 60(b)(5) as
that is the only provision under C.R.C.P. 60(b) that would permit
the court to rule on a futility standard.

26
interplay between Fed. R. Civ. P. 15(a) and Fed. R. Civ. P. 60(b)(6),

which blended the liberal standard for amending pleadings with the

stricter approach generally applicable to motions for postjudgment

relief under Fed. R. Civ. P. 60(b)’s residuary clause. See, e.g.,

Williams v. Citigroup Inc., 659 F.3d 208, 213 (2d Cir. 2011)

(“[P]ostjudgment motions for leave to replead must be evaluated

with due regard to both the value of finality and the policies

embodied in Rule 15.”); O’Brien v. Village of Lincolnshire, 955 F.3d

616, 629 (7th Cir. 2020) (“Although Rules 59(e) and 60(b) provide

extraordinary remedies for exceptional circumstances, we review

post-judgment motions for leave to amend according to the Rule 15

standard when a district court enters judgment at the same time it

first dismisses a case.”).

¶ 43 To the extent that it dispensed with the traditional

prerequisites for obtaining relief under C.R.C.P. 60(b)(5), Schaden’s

approach now appears irreconcilable with the United States

Supreme Court’s holding in BLOM Bank SAL v. Honickman, 605

U.S. 204, 210 (2025). There, the Supreme Court rejected a “hybrid

standard” for reviewing a postjudgment motion to amend a

complaint and instead applied a two-step analysis under which “a

27
party seeking to reopen his case and replead must first satisfy Rule

60(b) on its own terms and obtain Rule 60(b) relief before Rule

15(a)’s liberal amendment standard can apply.” Id. at 210, 214. In

holding that “satisfaction of Rule 60(b)(6) necessarily precedes any

application of Rule 15(a),” BLOM Bank emphasized that “[a] party

seeking Rule 60(b)(6) relief must always demonstrate ‘extraordinary

circumstances’ justifying relief” and noted that a contrary holding

would be incompatible with the “long line of precedents” narrowly

construing the federal rule’s residuary clause. Id. at 213-15.

¶ 44 BLOM Bank stresses the importance of finality, along with

reiterating the “extraordinary circumstances” test when seeking

relief under Fed. R. Civ. P. 60(b)(6). This fits well with Colorado’s

steady march toward streamlining litigation and reducing costs for

litigants. To that end, recent changes in Colorado procedure

encourage — indeed, require — parties to show more of their cards

earlier in the case, with the express goal of increasing efficiency for

courts and parties. Notice pleading, for example, has been

jettisoned in favor of the more demanding “plausibility” standard.

See Warne v. Hall, 2016 CO 50, ¶ 24. Amendments to Colorado’s

case management, discovery, and disclosure rules, too, have

28
“endeavor[ed] to foster a new culture and paradigm for handling

civil cases in a way that will be faster and less expensive.” Richard

P. Holme, New Pretrial Rules for Civil Cases — Part II: What Is

Changed, 44 Colo. Law. 111, 111 (July 2015) (discussing efficiency-

driven changes to C.R.C.P. 16 and C.R.C.P. 26).

¶ 45 The apparent divide between Schaden and BLOM Bank is also

significant because the Colorado Supreme Court has traditionally

aligned its understanding of C.R.C.P. 60(b)(5) with the United States

Supreme Court’s interpretation of Fed. R. Civ. P. 60(b)(6). See, e.g.,

A.P., ¶¶ 21-24; Davidson, 16 P.3d at 237-38; Canton Oil Corp. v.

Dist. Ct., 731 P.2d 687, 694 & n.6 (Colo. 1987). This longstanding

reliance on federal precedent not only reflects the substantial

textual similarities between the state and federal rules but also

advances Colorado’s policy of discouraging forum shopping, see AE,

Inc. v. Goodyear Tire & Rubber Co., 168 P.3d 507, 511 (Colo. 2007),

which can occur when “vastly different outcomes result from

nothing more than a choice of forums.” Warne, ¶ 17.

¶ 46 In the wake of BLOM Bank, and in the absence of a clear break

in Schaden from the Colorado Supreme Court’s historical reliance

on analogous federal precedent when interpreting and applying

29
C.R.C.P. 60(b)(5), I worry that Colorado’s district courts will be left

unsure how to balance the seemingly competing demands of

C.R.C.P. 15(a) and 60(b)(5) when deciding whether to provide leave

to amend a complaint after judgment has been entered. To the

extent Schaden suggests that a postjudgment motion to amend a

complaint need not establish extraordinary circumstances before

qualifying for relief under C.R.C.P. 15(a), I do not believe that it can

be squared with BLOM Bank’s interpretation of Fed. R. Civ. P.

60(b)(6). And while the Colorado Supreme Court is free to interpret

its own procedural rules in a manner that diverges from federal

precedent, see Warne, ¶ 17, Schaden did not do so explicitly. Nor

did the Colorado Supreme Court grapple with its many previous

exhortations that C.R.C.P. 60(b)(5) is not a substitute for appeal,

see A.P., ¶ 23, and that it should be construed narrowly to “give

scrupulous consideration to our strong policies favoring the finality

of judgments,” State Farm Mut. Auto. Ins. Co. v. McMillan, 925 P.2d

785, 791 (Colo. 1996).

¶ 47 Without recounting the facts outlined in the majority opinion, I

believe it is self-evident that Smith’s request for postjudgment relief

under C.R.C.P. 60(b)(5) would have failed under the BLOM Bank

30
standard because it was not based on extraordinary circumstances.

Rather, in his response to Terumo’s motion to dismiss, Smith

conceded that he “ha[d] the information to plead . . . additional

facts” and suggested that he could include those facts in an

amended complaint if the district court determined that he had

failed to plead a cognizable injury. I struggle to see how these

circumstances — in which the plaintiff intentionally omitted

information he believed would successfully counter the motion to

dismiss, offering to add it only after the case was dismissed for lack

of subject matter jurisdiction — are sufficiently “extraordinary” to

overcome the strong interests in both efficiency and maintaining the

finality of judgments. Indeed, “extraordinary circumstances rarely

exist when a party seeks relief from a judgment that resulted from

the party’s deliberate choices.” Budget Blinds, Inc. v. White, 536

F.3d 244, 255 (3d Cir. 2008).

¶ 48 Because of the apparent inconsistency between the Colorado

Supreme Court’s application of C.R.C.P. 60(b)(5) in Schaden and the

United States Supreme Court’s interpretation of Fed. R. Civ. P.

60(b)(6) in BLOM Bank, I urge the Colorado Supreme Court to

clarify whether a plaintiff who seeks to amend his complaint after

31
final judgment is entered must demonstrate “extraordinary

circumstances” before being permitted to do so.

32