Present: Koontz, Kinser, Lemons, and Mims, JJ., and Russell 

and Lacy, S.JJ. 

CNH AMERICA LLC 

v. Record No. 091991 OPINION BY JUSTICE DONALD W. LEMONS 

 January 13, 2011 

FRED N. SMITH 

FROM THE CIRCUIT COURT OF SMYTH COUNTY 

Birg E. Sergent, Judge Designate 

 In this appeal, we consider whether the trial court erred 

in admitting into evidence the opinion testimony of the 

plaintiff’s two expert witnesses. For the reasons stated 

below, we will reverse the judgment of the trial court and 

remand for further proceedings. 

I. Facts and Proceedings Below 

On October 12, 2002, Fred N. Smith (“Smith”), a then 72-

year-old farmer, was severely injured when a hose on his 

newly-purchased New Holland 616 disc mower (“the mower”) 

exploded and injected burning hydraulic fluid into his hand. 

Smith had purchased the mower from Lebanon Equipment Co., Inc. 

(“Lebanon”), an agricultural equipment dealer, approximately 

two months before the accident. 

On the day of the accident, one of Smith’s sons had 

difficulty operating the mower and called for Smith’s 

assistance. As Smith approached the tractor, he “heard a 

bang, like a .22 had went off.” Smith could not remember what 

happened, but he found himself lying on the ground with his 
hand burning. Smith was taken to the hospital, where doctors 

determined that his injuries were caused by the injection of 

hydraulic fluid into his right hand. The injuries required 

five surgical operations, including the partial amputation of 

the middle finger on his right hand. Smith’s medical bills 

totaled approximately $79,000. 

Smith filed a civil action against New Holland North 

America, Inc. (“New Holland”) and Lebanon containing five 

counts: (I) negligence against New Holland; (II) strict 

liability against New Holland; (III) failure to warn against 

New Holland; (IV) negligence against Lebanon; and (V) breach 

of express and/or implied warranty against both New Holland 

and Lebanon. CNH America, LLC (“CNH”) responded in place of 

New Holland to Smith’s motion for judgment with a demurrer and 

grounds of defense, claiming that CNH had been “improperly 

named as New Holland.”∗

 Subsequently, Lebanon was dismissed 

from the action and Counts II and III were struck, leaving 

only Counts I and V for negligence and breach of warranty 

against CNH. 

 ∗

 The final judgment order in this case is styled as “Fred 

N. Smith, Plaintiff v. New Holland North America, Inc., (now 

known as CNH America LLC) Defendant.” The defendant initiated 

its appeal with a filing in the trial court captioned: “CNH 

America LLC’s Notice of Appeal.” CNH filed its petition for 

appeal as “CNH America LLC, Petitioner v. Fred N. Smith, 

Respondent.” 

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Before trial, CNH moved to exclude Smith’s two liability 

experts. CNH sought to exclude Smith’s hose expert, Steven D. 

Haubert (“Haubert”), asserting that his opinions were 

inadmissible because they lacked adequate foundation or basis 

in fact. CNH also sought to exclude Dennis L. Heninger 

(“Heninger”), Smith’s hydraulics systems expert, arguing that 

Heninger was not qualified to offer opinion testimony and his 

opinions lacked adequate foundation or basis in fact. The 

trial court denied CNH’s motions and permitted Haubert and 

Heninger to testify. 

At trial, Smith asserted that the mower’s hose had a 

manufacturing defect in its internal wire braiding, which 

caused the hose to curl under pressure. Smith argued that 

this curled, pressurized hose became pinched in a gap caused 

by a design defect in the mower. In combination, Smith 

asserted that the manufacturing defect in the hose and the 

design defect in the mower caused the hose to rupture. Smith 

conceded that he needed the expert testimony of both Haubert 

and Heninger to prove his case, stating: 

Heninger gives us the gap and the pinching. 

Haubert gives us the initial weakness in the 

hose which causes the torquing. Taken 

together, it explains how this accident 

occurred. 

Smith also specifically admitted that “if [the court] were to 

exclude Heninger in particular . . . we don’t have a case.” 

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Haubert, an engineering manager for a window company, 

testified that the hose had a manufacturing defect called 

“tight carrier” that caused the hose to curl under pressure. 

Haubert had previous experience working for hose 

manufacturers, but he had never before been qualified as a 

hose expert. Haubert explained that there were three methods 

he could have used to determine the cause of the defect: he 

could pressurize the hose in order to see how it responds; he 

could peel back the outer layer of the hose to examine the 

internal wire braiding; and he could x-ray the hose to see the 

internal braiding. However, Haubert admitted that he did not 

perform any of these tests that may reveal the presence or 

absence of a “tight carrier” defect. 

Additionally, Haubert testified that he used a borescope, 

a tubular viewing device used to inspect the inside of 

cylindrical objects, Webster’s Third New International 

Dictionary 256 (1993), to inspect the inside of the hose, but 

he saw no evidence of a “tight carrier” defect. Even though 

he admitted that he saw no evidence of a defect in the hose, 

Haubert testified that it was still his opinion that the hose 

was defective because it “failed young.” 

Smith offered Heninger to testify about the hydraulic 

system of the mower. During voir dire examination on 

qualifications, Heninger admitted that his experience with 

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hydraulic systems was limited to the mining industry and that 

he was not an expert in the hydraulic system of this 

particular type of hay mower or agricultural equipment 

generally. Based on his lack of expertise for hydraulic 

systems in hay mowers, CNH moved to exclude his testimony as 

an expert witness. The trial court denied CNH’s motion but 

restricted Heninger’s testimony to general “hydraulic hose 

matters.” The trial court stated that Heninger was to be 

limited to testifying about hydraulic systems generally and 

could not give his opinion regarding this particular mower, 

but rather only “generally, with respect to a machine of any 

sort that has a hydraulic system.” The trial court further 

stated that Heninger could “testify in general now, not 

specifically.” 

Nonetheless, Heninger testified about the specific cause 

of this hose’s rupture, opining that the hose became trapped 

in a “pinch point” in a gap caused by a design defect in the 

mower. Heninger stated, 

My purpose for – in being here . . . is to be a 

witness and to offer my opinion on what caused 

the hose to fail. 

And in my opinion, the lack of those restraints 

and that design caused that hose to be pinched. 

(Emphasis added.) Heninger offered alternative designs for 

this particular mower and concluded that the design defect 

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could be remedied by adding a bracket over the gap that would 

prevent the hose from becoming pinched. He opined that the 

“gap and [the] lack of restraint on that hose is a safety 

hazard.” 

On cross-examination, Heninger admitted that he would 

never make such recommendations without determining whether 

the design changes would affect the function or safety of the 

machine, and he could not state whether these changes would be 

feasible, effective, or create other safety issues. He 

conceded that the design change “wouldn’t be [his] 

recommendation, because [he had not] done the analysis that 

would be necessary to make that recommendation.” Finally, 

Heninger admitted that he was “not a hose expert” and never 

examined or tested the hose, stating, “I don’t know anything 

about the hose . . . I’ve done no examination of the hose.” 

 CNH moved to strike the testimony of Haubert and 

Heninger, arguing that “the opinions they offered are 

inadmissible and insufficient as a matter of law to allow the 

jury to make a finding that [the mower] was unreasonably 

dangerous.” The trial court denied the motions and admitted 

their testimony, stating that “they’re just barely experts, 

maybe but . . . that’s all they have to be.” 

After presentation of the evidence and instructions to 

the jury, it returned a verdict for Smith in the amount of 

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$1,750,000. The trial court denied CNH’s post trial motions 

for a new trial, to set aside the verdict as excessive, and to 

set aside the verdict for insufficient evidence. 

CNH timely filed a notice of appeal to this Court. We 

awarded an appeal on the following assignments of error: 

1. The Trial Court committed reversible error in 

allowing unqualified and speculative expert opinion 

testimony from Steven Haubert that the subject hose 

was defectively manufactured, despite his admission 

that (a) he failed to conduct the tests that he 

testified were necessary to reveal the presence or 

absence of the alleged defect, and (b) his own 

unscientific examination of the hose revealed no 

defect. 

2. The Trial Court committed reversible error in 

permitting Dennis Heninger’s opinion testimony that 

CNH’s mower was defectively designed because 

Heninger was unqualified to render design opinions 

on the mower and because he did not conduct the 

analysis required to render his design opinions. 

3. The Trial Court committed reversible error in 

denying CNH’s motion to set aside or remit the jury 

verdict because the jury’s verdict was excessive, 

against the weight of the evidence and based upon 

passion, prejudice and/or mistake of law or fact. 

II. Analysis 

A. Standard of Review 

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

250 Va. 161, 166, 458 S.E.2d 462, 465 (1995) (quoting Brown v. 

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Corbin, 244 Va. 528, 531, 423 S.E.2d 176, 178 (1992)). 

Therefore, we apply an abuse of discretion standard when 

reviewing a trial court’s decision to admit expert opinion 

testimony. Keesee v. Donigan, 259 Va. 157, 161, 524 S.E.2d 

645, 647 (2000). 

We have held that “[e]xpert testimony is allowed where it 

‘will assist the trier of fact to understand the evidence or 

to determine a fact in issue.’ ” Norfolk Southern Railway Co. 

v. Rogers, 270 Va. 468, 479, 621 S.E.2d 59, 64 (2005) (quoting 

Code § 8.01-401.3.). “An expert’s testimony is admissible not 

only when scientific knowledge is required, but when 

experience and observation in a special calling give the 

expert knowledge of a subject beyond that of persons of common 

knowledge and ordinary experience.” Neblett v. Hunter, 207 

Va. 335, 339, 150 S.E.2d 115, 118 (1966). Additionally, under 

Code § 8.01-401.1, an expert’s opinion may be based upon 

“facts, circumstances or data made known to or perceived by 

such witness.” 

However, we also have recognized that the admission of 

expert testimony is limited and “subject to certain 

fundamental requirements, including the requirement that the 

evidence be based on an adequate foundation.” Keesee, 259 Va. 

at 161, 524 S.E.2d at 647. Therefore, expert testimony is 

inadmissible if it rests on assumptions that have an 

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insufficient factual basis or it fails to take into account 

all of the relevant variables. Tittsworth v. Robinson, 252 

Va. 151, 154, 475 S.E.2d 261, 263 (1996); Tarmac Mid-Atlantic, 

250 Va. at 166, 458 S.E.2d at 465-66. We have explained: 

Expert testimony founded upon assumptions that 

have no basis in fact is not merely subject to 

refutation by cross-examination or by counterexperts; it is inadmissible. Failure of the 

trial court to strike such testimony upon a 

motion timely made is error subject to reversal 

on appeal. Furthermore, expert testimony is 

inadmissible if the expert fails to consider 

all the variables that bear upon the inferences 

to be deduced from the facts observed. 

Vasquez v. Mabini, 269 Va. 155, 160, 606 S.E.2d 809, 811 

(2005) (citations omitted). 

B. The Expert Testimony of Haubert and Heninger 

Regarding Haubert, the only basis for his opinion 

testimony that the hose had a manufacturing defect was the 

failure of the hose itself. That opinion is not based upon an 

adequate foundation. It is insufficient for Haubert to base 

his opinion upon the premise that because the hose failed, it 

was the result of a manufacturing defect. Additionally, 

Haubert admitted that he failed to perform tests that could 

have determined whether the hose suffered from the “tight 

carrier” defect he alleged. When Haubert made his own 

examination of the hose with a borescope, he conceded that he 

saw no evidence of a “tight carrier” defect in the hose. 

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Haubert’s opinion testimony concerning the hose’s alleged 

manufacturing defect was not supported by facts, and the trial 

court abused its discretion in admitting his opinion into 

evidence. 

The trial court also abused its discretion in admitting 

the expert opinion of Heninger. Heninger admitted that he was 

not an expert in the hydraulic systems of mowers and had no 

experience in the design or manufacture of mowers or any other 

agricultural equipment. An expert’s qualifications must 

correlate to the opinions for which the expert is being 

offered. King v. Sowers, 252 Va. 71, 78, 471 S.E.2d 481, 485 

(1996). The fact that a person is a qualified expert in one 

field does not make him an expert in another field, even if 

they are closely related. Combs v. Norfolk & W. Ry., 256 Va. 

490, 496, 507 S.E.2d 355, 358 (1998); Tazewell Oil Co. v. 

United Virginia Bank, 243 Va. 94, 110, 413 S.E.2d 611, 620 

(1992). Here, Heninger admitted that he lacked specific 

expertise in the hydraulics of disc mowers and was unfamiliar 

with the hydraulic system of this mower. 

In Keesee, we clarified the standard for “the 

admissibility of expert testimony offered to assist a trier of 

fact in understanding general scientific or technical 

principles.” 259 Va. at 161, 524 S.E.2d at 648 (emphasis 

added). While a trial court may permit an expert witness to 

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explain the general nature of the principle, testimony that 

goes further and attempts to relate those general principles 

to a particular person or event generally is inadmissible 

because “the probative value of that evidence rest[s] on 

assumptions . . . that [have] no factual basis in the record.” 

Id. at 162, 524 S.E.2d at 648. 

Furthermore, because of Heninger’s limited expertise, the 

trial court ruled that his testimony was to be restricted to 

hydraulic systems generally and held that he could not testify 

specifically about the particular mower at issue. However, 

Heninger’s actual testimony went far beyond the court’s 

limitations. He opined that the defect in this particular 

hose could have caused the hose to get caught in a “pinch 

point” in the mower, which caused the hose to burst. Heninger 

also offered alternative designs for the mower, but he 

conceded that he did not know whether these alternatives would 

make the mower unsafe or would even be feasible or effective. 

His opinions about the design of the mower were based upon 

assumptions not supported by facts and outside his area of 

expertise. Additionally, he admitted that he was not 

qualified to testify about the hose. As such, Heninger’s 

opinion testimony lacked adequate foundation, and the trial 

court abused its discretion in admitting his opinions into 

evidence. 

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III. Post-Trial Motions and Conclusion 

This case was submitted to the jury on two theories of 

liability: negligence and breach of implied warranty. After 

the verdict, CNH filed two post-trial motions, each requesting 

a new trial. CNH argued that the admission of opinion 

testimony of Haubert and Heninger constituted error and that 

the trial court should award CNH a new trial. Additionally, 

CNH argues that the verdict was excessive, should be set 

aside, and that CNH should be granted “a new trial as to all 

issues.” Finally, one of CNH’s alternate requests for relief 

on appeal states as follows: “CNH requests that this Court set 

aside the verdict and remand the case for a full trial on the 

merits.” 

For the reasons previously stated, the admission of the 

expert testimony of Haubert and Heninger constitutes 

reversible error. Vasquez, 269 Va. at 160, 606 S.E.2d at 811. 

Therefore, consistent with CNH’s requests for relief, we will 

reverse the judgment of the trial court and remand “for a full 

trial on the merits.”

Reversed and remanded. 

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