The Plaintiffs rested this morning in the closely watched trial in the dispute between property owners, Phillis Windy Hope Reilly and Michael P. Reilly, and the adjacent marijuana grow which the Plaintiffs allege constitutes a nuisance.  The case is captioned Reilly et al. v. 6480 Pickney, LLC et al., and is in the United States District Court for the District of Colorado, before the Honorable Robert Blackburn. 

The trial comes roughly fifteen months after the United States Court of Appeals for the Tenth Circuit held that Mr. and Mrs. Reilly could assert their claims under the civil citizen-suit provision of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1964.  See Safe Streets Alliance v. Hickenlooper, 859 F.3d 865 (10th Cir. 2017).  The case is widely viewed as a bellweather for claims by other property owners who may be unhappy about having cannabis businesses as neighbors.

The Plaintiffs’ final witness was Professor Stephen Billings, who opined that smells and sounds emanating from the marijuana facility adversely affected the Reillys’ property value.  On cross examination, however, Professor Billings admitted that he had never been to either property, had not performed any testing to measure sound or noise, and that his assumptions regarding the sounds and smells created by the marijuana grow were based on information relayed to him by the Plaintiffs. 

Following Professor Billings’ testimony, the Defendants moved for judgment as a matter of law, in part, on the basis that the Plaintiffs had not offered objective evidence regarding the alleged noise and odor emanating from the marijuana grow.  Although the Court deferred ruling, Professor Billings’ testimony highlights the challenges for plaintiffs in these types of cases to the extent they rely on subjective information regarding their experience as neighbors. 

Andrew Orr is a litigator who follows the cannabis industry, and has represented agricultural companies in a variety of commercial and other complex cases.