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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 Ritter

stated that the material tested exhibited no pop-outs.

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 popouts, 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 & Ritter stated that he and

Robertson showing its test results.

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. both these samples to Froehling & Robertson. Wright delivered 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 He said that he did not know what

Smiley's yard for testing.

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 He concluded that

Tarmac contained high levels of magnesium. *

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. samples. Thieme found high levels of magnesium in all three 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." 178 (1992). Brown v. Corbin, 244 Va. 528, 531, 423 S.E.2d 176, 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

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