Tarmac Mid-Atlantic, Inc. v. Smiley Block Co.

• Decision Date: 09 June 1995
• Docket Number: MID-ATLANTI,No. 941648,INC,941648
• Citation: 458 S.E.2d 462,250 Va. 161
• Court: Virginia Supreme Court
• Parties: TARMACv. SMILEY BLOCK COMPANY. Record

Page 462

458 S.E.2d 462

250 Va. 161

TARMAC MID-ATLANTIC, INC. v. SMILEY BLOCK COMPANY.

Record No. 941648.

Supreme Court of Virginia.

June 9, 1995.

William L. Thurston (Beale, Balfour, Davidson, Etherington & Parker, on briefs), Richmond, for appellant.

John R. Alford, Jr. (John R. Alford, Caskie & Frost, on brief), Richmond, for appellee.

Present: All the Justices.

KEENAN, Justice.

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-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 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."

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. 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...