Supply Chain Expert Witness

Overview

About Supply Chain Expert Witnesses

A supply chain expert decides what a reasonable buyer, seller or logistics provider would have done when supply broke down: whether the failure was truly beyond anyone's control, whether alternatives existed and whether the available goods were shared fairly. These cases run on dates, volumes and purchase orders. This page covers procurement, sourcing, logistics and inventory practice. Pricing the resulting loss belongs to a damages or lost profits expert, whether a part was defective to an engineer, and trade rules to a customs specialist.

The expert reads supply agreements, purchase orders, forecasts, inventory and shipment data, supplier notices, allocation records, emails and the company's own continuity plans. A forecast is often the crucial document, because it shows what each side expected and when that changed.

Excuse Under the UCC

For goods, the default rule is UCC 2-615. Delay or non-delivery is not a breach if performance has been made impracticable by a contingency whose non-occurrence was a basic assumption of the contract, so long as the seller has complied with the section's other terms ¹. Where the cause affects only part of capacity, the seller must allocate production and deliveries among customers, and may do so in any manner that is fair and reasonable ¹. It must also notify the buyer seasonably ¹.

That allocation duty is where an expert often earns the fee. How were scarce goods divided? Did a favored customer get more, or did the seller divert product to higher bidders? The data should show it. UCC 2-614 adds a related point: where the agreed carrier or manner of delivery becomes commercially impracticable and a commercially reasonable substitute is available, the substitute must be tendered and accepted ². An expert can say what substitutes the trade actually used at that time.

Force Majeure Clauses

Most contracts replace the default rule with their own words. The Fifth Circuit's Winter Storm Uri decisions show how much those words matter. In MIECO v. Targa, it reversed a summary judgment that had excused a seller, concluding the seller failed to show no genuine dispute that its gas supply had been lost ³. In a separate dispute, the court had read a contract's term prevent as not requiring that an event make performance literally impossible, and later affirmed a judgment that a seller had exercised due diligence, after a bench trial ⁴. That second appeal also involved expert testimony on industry custom and practice: one side argued the trial court abused its discretion by admitting the other's expert and limiting its own, and the court affirmed ⁴. Counsel should plan early how a custom opinion will be offered.

Demand collapse is usually not enough. In a federal case over an egg supply contract, a buyer argued that falling demand excused it. The court distinguished earlier situations in which a seller faced a dramatic drop in supply due to forces that could not reasonably be anticipated, and said the case before it involved a drop in market demand ⁵. Reading the risk allocation in the contract usually comes first, and the expert's job is to give the facts that fit those words.

Procurement and Logistics Practice

Other disputes have no disaster at all. A buyer may say a supplier missed lead times, or a supplier may say the buyer's forecasts were reckless. Expert work covers:

• Forecasting. Were forecasts binding, how accurate were they, and did either side change behavior when they moved?
• Sourcing. Was single sourcing reasonable for that part, and what would a second source have taken?
• Inventory. Were safety stocks in line with the industry and the company's own policy?
• Logistics. Were carrier, routing and customs choices reasonable for the goods, the dates and the available capacity?
• Quality. Did incoming inspection and supplier audits work as written?

Hindsight is the main trap. A plan that looks thin after a once-in-a-generation event may have been normal the day before. Each opinion should stay within what a reliable method supports ⁶, and should compare the conduct with what peers were doing at the same time.

Who Is Qualified

No license exists, though certifications such as those from professional supply management groups show training. Look for a senior procurement, operations or logistics leader who has run supply in the same industry and at a similar scale, ideally through a real disruption. A person who ran automotive parts supply may not fit a natural gas case. Pair this expert with an accountant or economist for damages.

Qualifications

Qualifications to Look For

• ✓Senior procurement, operations or logistics leadership in the same industry
• ✓Direct experience managing supply through a disruption
• ✓Working knowledge of how the relevant contracts are written and run
• ✓Skill with purchasing, shipment and inventory data
• ✓Professional certifications where held; no license exists
• ✓Comparison with peers at the same time, not hindsight
• ✓Prior deposition or trial testimony on custom and practice

FAQ

Frequently Asked Questions