Mold Litigation: Expert Testimony Required to Prove Causation
April 2006
Due to lack of expert testimony concerning
causation, a federal district court in Texas dismissed a suit by a homeowner
alleging that a leaking sewer pipe in a basement crawl space caused mold to
grow throughout the house. No previous Texas cases have dealt specifically with
whether expert testimony was required to prove the causation of the mold. The
court, therefore, looked to other Texas cases holding expert testimony is required
to establish negligence when issues and standards are not familiar to the ordinary
person, and to cases holding expert testimony is required to establish causation
of injury from toxic substances.
by J.
Kent Holland Jr.
ConstructionRisk.com LLC
In E. Lee Qualls v. State Farm Lloyds, 226
F.R.D 551, 2005 U.S. Dist LEXIS 5049 (2005), the U.S. District Court for the
Northern District of Texas granted summary judgment in favor of the insurance
company (State Farm) in a claim under a homeowners insurance policy brought
by homeowner (Qualls) alleging mold property damage in their home. The first
issue considered by the court was the failure of the Qualls to designate expert
witnesses in a timely manner. The plaintiff thought it could proceed with its
case based on fact witnesses alone. They did not designate any expert on causation.
The court concluded that due to the lack of expert testimony, summary judgment
would be appropriate. The plaintiff then filed a motion for leave to designate
experts.
The court denied the motion for leave to designate experts because discovery
(including depositions) had already been completed, and it was the eve of trial
before the plaintiffs belatedly sought to designate experts. This would have
caused prejudice to the defendant in litigating the case.
Having denied the motion for leave to designate experts and present expert
testimony, the court next analyzed whether the case could go forward to a trial
without expert testimony or whether it would have to be dismissed as a matter
of law.
The federal court naturally looked to the law of the state of Texas to determine
what was required in the way of expert testimony. Under Texas law, expert testimony
is not required in those cases in which general experience and common sense
will enable a layman to determine with reasonable probability, the causal relationship
between the event and the condition.
The U.S. District Court looked at how Texas Supreme Court decisions have
addressed the need for expert testimony in the context of standard of care in
a negligence case. The Texas courts "have considered whether conduct at issue
involves the use of specialized equipment and techniques unfamiliar to the ordinary
person."
The District Court looked at how the Texas courts deal with proof of medical
causation. What it found was that, "Numerous Texas cases have held that expert
testimony is required to establish causation of injury from exposure to toxic
substances." No Texas case was found to specifically address proof of causation
with regard to mold.
The court also looked to caselaw outside the state to determine how other
courts have addressed the situation and was so impressed with a factually similar
case and decision written by the U.S. District Court for the Eastern District
of Pennsylvania (Kermmerer v. State Farm Ins.,
2004) that it quoted from the decision at length. That case involved a leaking
toilet which a homeowner alleged caused mold infestation to accelerate. The
defendant in that case argued that the plaintiff lacked requisite formal training
or education required to render an opinion as to the cause of infestation.
The Pennsylvania court concluded the following:
- To establish such an element of complex causation, however, Plaintiff
must provide evidence beyond lay opinions. In a case involving complex issues
of causation not readily apparent to the fact finder, plaintiff must present
admissible expert testimony to carry her burden. The report provided by
Plaintiff's expert provides conclusions as to the presence, levels, and
likely health hazards of mold cultures in the house. It does not speak to
the cause of the mold infestation. If the expert testimony cannot support
both general and specific causation, summary judgment for the defendant
must be granted. Opinions merely expressing "possibilities" do not suffice
to support the admissibility of expert testimony; an expert must supply
more than a bottom line to be of value to the judicial process.
Turning to the facts of the instant case, the court in Texas found that the
Texas caselaw concerning expert testimony is consistent with the above-quoted
Pennsylvania case. The court, therefore, found Kemmerer to be persuasive authority that expert testimony is required in this case:
- Although it may be within general experience that water can cause mold,
it is not within general experience that a buried sewer pipe that does not
leak under normal flow conditions could cause mold over an extended distance
throughout the house.
The court also noted that "When there is, as here, expert testimony that
another source is a likely cause of the mold, lay testimony is not adequate
to rule out that alternate cause." Although the court noted that "some circumstances
may be clear enough to fall within the common experience of jurors" and that
it would not hold that expert testimony is always required to show the cause of mold, such expert testimony was required in this
case based upon the facts. For these reasons, the court granted summary judgment
against the homeowner and in favor of the insurance company.
Comment
In mold cases that allege bodily injury, a plaintiff may be required to prove
through expert testimony not only what caused the mold growth, but also that
the mold caused the alleged bodily injuries. This can be a difficult matter
to prove, and summary judgments are not uncommon. As this Texas case demonstrates,
expert testimony is also required to prove causation of property damages in
cases involving mold.
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