Present: All the Justices
TARMAC MID-ATLANTIC, INC.
v. Record No. 941648 OPINION BY JUSTICE BARBARA MILANO KEENAN
June 9, 1995
SMILEY BLOCK COMPANY
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
In this case, we consider whether the trial court properly
sustained a motion to strike, and whether, in connection with
that ruling, the court abused its discretion in excluding expert
testimony on the basis that it lacked an adequate foundation.
Smiley Block Company, Inc. (Smiley), filed a motion for
judgment to recover sums due from Tarmac Mid-Atlantic, Inc.
(Tarmac) in payment for "cupola slag." Tarmac denied it was
indebted to Smiley and filed a counterclaim asserting various
theories, including breach of express and implied warranties.
Tarmac alleged that the slag Smiley provided did not conform to
industry standards, and that when Tarmac used the slag in its
manufacture of concrete masonry block, the block developed
defects known as "pop-outs."
At the jury trial, Tarmac's evidence on its counterclaim
also constituted its sole evidence in defense of Smiley's breach
of contract action. When the trial court sustained Smiley's
motion to strike Tarmac's evidence on the counterclaim, it also
ruled in favor of Smiley on the motion for judgment, finding that
there were no issues remaining for the jury's determination. We
review the evidence and all reasonable inferences therefrom in
the light most favorable to Tarmac. See Medcom, Inc. v. C.
Arthur Weaver Co., 232 Va. 80, 82, 348 S.E.2d 243, 245 (1986).
James E. Ritter, operations manager of Tarmac's Richmond
Block plant, testified that he began purchasing slag from Smiley
around May 1992. Slag is a lightweight aggregate that is
incorporated together with other materials in the manufacture of
concrete products. Over the next year, pumice and the slag
purchased from Smiley were the only lightweight aggregates that
the Richmond Block plant used in its production.
Before Tarmac began to order the slag, Henry Smiley had
provided Ritter with a bag of the aggregate, a piece of concrete
block, and a certification stating that the slag met the criteria
for lightweight aggregates established by the American Society
for Testing and Materials. In particular, the certification
stated that the material tested exhibited no pop-outs. Ritter
testified that, in buying the slag, Tarmac relied on the
certification and on Smiley's representations as to the quality
of the material.
In early 1993, Tarmac's customers complained to Ritter about
the block Tarmac had manufactured using Smiley's slag. Ritter
examined the block used in construction projects and noted pop-
outs, or "small chunks that popped out of the face of the block."
To remedy the problem, Tarmac went to the construction projects
and repaired the block.
Ritter then submitted several samples to a laboratory,
Froehling & Robertson, Inc., to determine the cause of the pop-
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outs. He identified three reports received from Froehling &
Robertson showing its test results. Ritter stated that he and
Richard Wright, Tarmac's production manager, obtained the samples
that were the subject of two reports made in July 1993. The
first sample was a block containing pop-outs, taken from Tarmac's
stock, and the second was a bag of slag, taken from slag received
from Smiley and stockpiled in Tarmac's yard. Wright delivered
both these samples to Froehling & Robertson. A third report,
made in September 1993, provided an analysis of two slag samples,
which Ritter stated he collected from Tarmac's stockpile and
personally delivered to Froehling & Robertson.
Ritter stated that Tarmac regularly hired a trucking company
to deliver shipments of slag purchased from Smiley to Tarmac's
plant, where Tarmac stored the slag in open bins. The samples of
slag provided to Froehling & Robertson came from these
stockpiles. Ritter did not obtain a sample directly from
Smiley's yard for testing. He said that he did not know what
other materials might have been carried in the delivery trucks,
nor whether foreign materials such as seeds or dust might have
blown into the slag while it was in Tarmac's stockpiles. Ritter
acknowledged that pop-outs in the block could be caused by the
introduction of any material that tends to expand, such as a
seed.
August A. Thieme of Froehling & Robertson, the author of the
test reports, qualified as an expert in inorganic and analytical
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chemistry. Thieme stated that each sample provided to him by
Tarmac contained high levels of magnesium. * He concluded that
magnesium compounds in the slag had caused the pop-outs in the
manufactured block. Thieme explained that when slag is derived
from dolomitic-type limestone, the magnesium contained in the
stone may be subjected to excessive temperatures, or
"overburning." As a result, the magnesium is slow to rehydrate
upon exposure to moisture and carbon dioxide, and it remains in
an unstable state. In the process of rehydration, the material
expands, increases in volume, and exerts pressure, leading to a
"propelling of the surface from the block."
*
Ritter testified that when he provided two slag samples to
Thieme for his September 1993 report, he also delivered a sample
of bottom ash received from a Tarmac plant in South Carolina,
which was submitted to be tested for reasons not revealed by the
record. Thieme found high levels of magnesium in all three
samples. He stated that the entire group of samples tested for
his September 1993 report was labeled "slag aggregate," and that
he was not aware that one of the samples was actually bottom ash.
Smiley cites these facts in support of its argument that
Thieme's testimony did not have an adequate foundation. However,
we do not consider this evidence in evaluating the admissibility
of the testimony, because neither the record nor Smiley's
argument on appeal explains the significance of the cited facts.
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Thieme stated that he had considered whether other
components of the block, such as cement and additives, or the
presence of contaminants in the slag, could have been the source
of the pop-outs. He acknowledged that in testing material such
as this, it is necessary to consider matters such as handling,
sampling, storage, and transportation. However, Thieme testified
that he had not identified any other cause of the high magnesium
content he observed, and he concluded that the slag material must
have been the only source, since any source other than the slag
"would almost have to be a burned lime of some sort." Thieme
also stated that, although unstable burned lime is manufactured
for certain uses, it is shipped in individually sealed containers
and typically is not carried in open trucks.
Thieme stated that all the materials tested were delivered
to him in his laboratory. He acknowledged that he would have
preferred to draw a slag sample directly from Smiley's yard for
testing.
During trial, the court took under advisement Smiley's
motions to exclude Thieme's testimony based on a lack of adequate
foundation. Smiley argued that the samples Thieme analyzed had
been exposed to many sources of contamination while they were out
of Smiley's possession and control, so that Thieme's testimony
was unreliable and speculative. After Ritter and Thieme had
testified, and before Tarmac presented evidence of damages,
Smiley moved to strike Tarmac's evidence on its counterclaim.
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Although Smiley raised various arguments, the trial court's
comments show that it sustained the motion based on its
conclusion that Thieme's testimony was inadmissible.
Citing Mary Washington Hospital, Inc. v. Gibson, 228 Va. 95,
319 S.E.2d 741 (1984), the trial court stated that, in the
present case, "too many variables" rendered the expert's
testimony "open to speculation," because the evidence raised
questions about conditions that may have affected the slag during
its transportation and storage. The trial court noted that
Tarmac's "own expert is saying that he would have preferred to
have come up here and gotten it at Smiley, and [it] is obvious
why he would have preferred that, because the test itself would
have been much more reliable." The trial court granted the
motion to strike, concluding that "in this case, because of the
nature of the claim[,] fundamental fairness dictates that you
have got to show a better chain than that."
On appeal, Tarmac argues that the trial court erred in
granting Smiley's motion to strike. In particular, Tarmac
contends that Thieme's testimony regarding the nature of the
substances he tested was admissible, and if the trial court had
not improperly excluded it, Tarmac would have presented a prima
facie case on its breach of warranty claim. In response, Smiley
reasserts the arguments it raised in the trial court, contending
that Thieme's testimony was speculative because it was based on
an assumption, not supported by the evidence, that the slag
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samples he examined were in the same condition as when they left
Smiley's yard. We disagree with Smiley.
"The admission of expert testimony is committed to the sound
discretion of the trial judge, and we will reverse a trial
court's decision only where that court has abused its
discretion." Brown v. Corbin, 244 Va. 528, 531, 423 S.E.2d 176,
178 (1992). As a general rule, a litigant is entitled to
introduce all competent, material, and relevant evidence tending
to prove or disprove any material issue raised, unless the
evidence violates a specific rule of admissibility. Barnette v.
Dickens, 205 Va. 12, 15, 135 S.E.2d 109, 112 (1964); McNeir v.
Greer-Hale Chinchilla Ranch, 194 Va. 623, 628-29, 74 S.E.2d 165,
168-69 (1953).
Expert testimony is admissible in civil cases to assist the
trier of fact, if the evidence meets certain fundamental
requirements, including the requirement that it be based on an
adequate foundation. See Code §§ 8.01-401.1, 8.01-401.3; Lawson
v. Doe, 239 Va. 477, 482-83, 391 S.E.2d 333, 336 (1990); Clark v.
Chapman, 238 Va. 655, 664-65, 385 S.E.2d 885, 891 (1989). Expert
testimony is inadmissible if it is speculative or founded on
assumptions that have no basis in fact. See Gilbert v. Summers,
240 Va. 155, 159-60, 393 S.E.2d 213, 215 (1990); Cassady v.
Martin, 220 Va. 1093, 1100, 266 S.E.2d 104, 108 (1980).
In addition, such testimony should not be admitted unless
the trial court is satisfied that the expert has considered all
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the variables bearing on the inferences to be drawn from the
facts observed. See Swiney v. Overby, 237 Va. 231, 233-34, 377
S.E.2d 372, 374 (1989); Grasty v. Tanner, 206 Va. 723, 727, 146
S.E.2d 252, 255 (1966). Finally, the trial court should refuse
to admit expert testimony unless there is proof of a similarity
of conditions existing at the time of the expert's tests and at
the time relevant to the facts at issue. Runyon v. Geldner, 237
Va. 460, 463-64, 377 S.E.2d 456, 458-59 (1989).
These principles were applied in Mary Washington Hospital,
228 Va. at 99, 319 S.E.2d at 743. In that case, this Court held
inadmissible evidence regarding an architect's tests made at the
location where the plaintiff had fallen on a sidewalk, because
there was insufficient proof that the site had not changed
materially during the 23 months between the accident and the
inspection. The uncontradicted evidence showed there had been
construction work in the area during that time, and that the
section of concrete on which the plaintiff slipped had been
destroyed. These changes constituted "missing variables" not
considered by the architect, so that the delayed inspection of
the sidewalk was not reliable and probative evidence of its
condition at the time of the accident. Id.
In contrast, the evidence in the present case showed that
the condition of the slag was essentially the same at the time of
its shipment and at the time of the expert's testing. Ritter's
testimony regarding the transportation, storage, and sampling of
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the slag was prima facie evidence that the samples Thieme tested
had originated in the slag supplied by Smiley. Further, it could
be inferred that, with the passage of time, the samples would
become more stable rather than less so, due to the tendency of
the overburned magnesium to rehydrate slowly. Thus, unstable
magnesium found at the time of testing would have been unstable
at an earlier time, as well.
In addition, there was no positive evidence showing any
alteration of the slag or any intermixture of foreign materials,
other than the fact that, in one of the samples, the slag was
present together with other materials in a finished concrete
block. Further, the evidence showed that Thieme had considered
and excluded other variables that would affect his conclusions,
such as the possibility that materials other than slag were the
source of the high levels of magnesium. Thus, we hold that
Tarmac adequately provided a foundation for the admission of
Thieme's test results.
Although Smiley argues that in various respects Thieme's
conclusions were open to challenge, any such weaknesses in his
testimony were not grounds for its exclusion, but were matters
properly to be considered by the jury in determining the weight
to be given the evidence. See Ford Motor Co. v. Bartholomew, 224
Va. 421, 430, 297 S.E.2d 675, 680 (1982); Martin v. Penn, 204 Va.
822, 826, 134 S.E.2d 305, 307 (1964). Therefore, we conclude
that the trial court abused its discretion in refusing to admit
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Thieme's testimony.
Smiley further argues that, even if Thieme's testimony had
been admitted at trial, Tarmac failed to present a prima facie
case on its breach of warranty counterclaim. Smiley contends
that Tarmac's evidence did not show either that a warranty was
made or that Tarmac relied on any such warranty. We disagree.
Tarmac presented evidence that Ritter received and relied on
samples of block and slag and a certification stating, among
other things, that the material tested had no pop-outs. Granting
Tarmac the benefit of all reasonable inferences to be drawn from
the evidence, we find that Tarmac presented sufficient evidence
on these issues to create a question for the jury's
determination. See Code § 8.2-313.
For these reasons, we conclude that the trial court erred in
sustaining Smiley's motion to strike Tarmac's counterclaim. We
will reverse the trial court's judgment and remand this case for
a new trial consistent with the principles expressed in this
opinion.
Reversed and remanded.
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