The Product Liability & Mass Tort Monitor is a monthly newsletter delivering critical updates, data insights and actionable strategies for navigating the complexities of product liability and mass tort litigation. This month’s issue highlights a recent decision from the Colorado Court of Appeals affirming dismissal of a proposed class action in which the plaintiff claimed standing was conferred upon him based on a claim of potential future illness from exposure to toxic chemicals.
In Smith v. Terumo BCT, Inc., the court rejected standing for a plaintiff asserting only the risk of future harm, marking a significant clarification of Colorado’s injury-in-fact requirement. In a published opinion arising from claims of exposure to ethylene oxide near a sterilization facility, the court held that allegations of potential future illness — even when coupled with assertions that a toxin has been absorbed and metabolized — do not constitute a concrete present injury under Colorado law. The court underscored that economic losses tied to the fear of future harm, such as medical monitoring costs, cannot substitute for a present physical injury.
This ruling repositions the contours of toxic tort and environmental exposure litigation in Colorado by tightening the threshold for justiciability at the pleading stage. Plaintiffs seeking class-wide medical monitoring without demonstrable current health effects face a significantly higher bar, as the decision confirms that risk alone is insufficient to confer standing. The opinion also forecloses attempts to salvage standing through post-judgment amendments that merely repackage exposure or absorption allegations without demonstrating an actual, present alteration to bodily structures or health. It also reiterates that medical monitoring claims require proof of present physical injury in addition to economic loss.
Practically, the decision will shape case strategy for both plaintiffs and defendants. Plaintiffs will need to prioritize early development of evidence of current, concrete harm rather than reliance on exposure models or probabilistic risk to secure standing, particularly in putative class actions that exclude individuals with diagnosed conditions. Defendants, meanwhile, can leverage the ruling to press early motions challenging standing and resist medical monitoring claims unmoored from present injury. While a concurring opinion invited higher court clarification on the standards for post-judgment relief, the core holding aligns Colorado with a broader judicial trend, including by the U.S. Supreme Court, requiring a present physical injury in toxic tort contexts, narrowing the pathway for suits premised on speculative or future harms.
McGuireWoods’ Product Liability and Mass Tort Practice Group supports clients in assessing and mitigating risks, developing strategic responses to evolving laws and regulations, and defending litigation as it arises. The team is experienced in leading national defenses across a wide range of industries, including automotive, food and beverage, electronics, medical devices, chemicals, tobacco, pharmaceuticals, aircraft, trains, power tools, and building products. It also has deep experience handling toxic substance exposure and regulatory matters. Lawyers work closely with clients to navigate complex legal landscapes and protect their interests in high-stakes cases.