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I.
INTRODUCTION
A new toxin is aggressively framing the next wave of tort litigation. It supposedly killed Ed McMahon's sheepdog, Muffin.1 Even Erin Brockovich has sued her contractor with allegations that it took over her new home.2 And a teacher in Piano, Texas, sued her school district because she claimed that it violated her constitutional rights.3 The "it" is toxic mold, and some believe that it represents the next big toxic tort. If mold becomes an unsightly growth on the underside of the legal industry, then perhaps the Bollard lawsuit4 in Texas was the initial spore.
Plaintiff Melinda Ballard, along with her family, had purchased a twenty-two-room mansion in Dripping Springs, Texas (an ironic site for incipient claims of water damage). Soon after moving in, they noticed mold when a hardwood floor buckled due to a water leak. Ballard and her family then began to suffer a variety of ailments. It was not until Ballard discussed her situation with a fellow passenger on an airline light - who happened to be a mold expert - that she became aware that mold might be the culprit behind her family's health problems. The family then hired a mold expert who found that the house was infested with "black mold." As a result, Ballard and her family moved out immediately and sued Farmers Insurance Group to recover for the damage done to their home and their health. The case became known nationwide5 when the jury returned a verdict against Farmers for $32 million.6
The Ballard case has had a profound impact on mold litigation. According to the Texas Department of Insurance, mold complaints proliferated in 2000, shortly after the jury reached its verdict in the Ballard case.7 By the year 2002, the state of Texas hosted approximately seventy-five percent of all mold claims nationwide, though it holds only eight percent of the nation's population.8 As a result of a unique confluence of events-the Ballard case, weather conditions conducive to the growth of mold,9 and a standard homeowners' insurance policy that made it much easier to locate mold damage within the terms of the policy10-Texas has found itself at the forefront of mold litigation.
As the result of cases such as Bollard, mold (viewed earlier as the most...