Expert Witness Blog

In the recent case of Elevate Federal Credit Union v. Elevations Credit Union, 10th Cir. 2024, the Tenth Circuit Court of Appeals addressed critical issues surrounding the admissibility and impact of a Trademarks Expert Witness in a trademark infringement dispute between two credit unions.

Background and Parties

Elevate Federal Credit Union (“Elevate”) initiated litigation seeking a declaratory judgment of noninfringement against Elevations Credit Union (“Elevations”), which counterclaimed for trademark infringement under the Lanham Act. Both parties operated in the financial services sector, but with distinct eligibility restrictions and geographic markets. The dispute centered on whether the similarity between the marks “Elevate” and “Elevations” was likely to cause consumer confusion, a core issue in trademark law.

In the recent copyright infringement case of Emmerich Newspapers, Incorporated v. Particle Media, Inc. et al, S.D. Miss. 2022, the role and admissibility of a Printing & Publishing Expert Witness were central to the court’s analysis under Daubert. This case provides a clear example of the boundaries courts set for expert testimony in the printing and publishing industry, particularly when the testimony approaches ultimate legal conclusions.

Background and Parties

The plaintiff, Emmerich Newspapers, Incorporated, owns and operates several local newspapers across three southern states. The defendant, Particle Media, Inc., operates Newsbreak, a website that aggregates, indexes, and republishes news content from various sources, including snippets and, at times, full-text articles from online newspapers. Emmerich Newspapers alleged that Particle Media’s practices constituted copyright infringement, specifically challenging the defendant’s use of article snippets under the fair use doctrine.

In the recent South Dakota Supreme Court case Estate of Olsen v. Agtegra Cooperative, 2023, the role of the Crops Expert Witness was pivotal in determining the outcome of a dispute involving alleged herbicide damage to trees on agricultural property. This case underscores the indispensable function of expert testimony in complex agricultural litigation, particularly where causation hinges on scientific and technical knowledge beyond the ken of lay jurors.

Background and Facts

The plaintiffs, the Estate of Olsen, owned property in South Dakota where they operated a hunting business and maintained stands of ponderosa pine trees. In October 2014, while guiding a hunting party, the Olsens’ son observed a crop duster spraying herbicide on adjacent farmland. Shortly thereafter, the Olsens noticed significant damage and death among their pine trees. They attributed this damage to herbicide drift from the aerial application and brought suit against Agtegra Cooperative and other defendants, alleging negligence, trespass, nuisance, promissory estoppel, and civil conspiracy.

A recent decision by the Delaware Supreme Court in In re Columbia Pipeline Group, Inc. Merger Litigation, 2024 provides critical guidance on the standards for liability in merger transactions, with the testimony of a Mergers & Acquisitions Expert Witness playing a pivotal role in the proceedings.

Background and Parties

The case arose from the acquisition of Columbia Pipeline Group, Inc., a Delaware corporation, by a Canadian energy company. The transaction resulted in substantial change-in-control payments to three Columbia executives, two of whom were directly involved in negotiating the merger. Columbia’s stockholders initiated litigation, alleging that the executives and the board breached their fiduciary duties by timing the merger to maximize their personal financial gain at the expense of shareholders. The plaintiffs further claimed that the acquiror aided and abetted these breaches and that the executives issued a misleading proxy statement to shareholders[1].

In the high-profile case of Kelley v. BMO Harris Bank N.A., 8th Cir. 2025, the role of the Business Law Expert Witness was pivotal in dissecting complex issues of fiduciary duty, banking practices, and the application of equitable defenses in the context of one of the largest Ponzi schemes in U.S. history.

Background and Parties

Thomas Petters orchestrated a massive Ponzi scheme through Petters Company, Inc. (PCI), which collapsed in 2008, resulting in criminal convictions and the appointment of Douglas Kelley as receiver and later bankruptcy trustee for PCI. Kelley, acting as trustee, initiated an adversary proceeding against BMO Harris Bank, alleging the bank aided and abetted PCI’s breach of fiduciary duty by facilitating the movement of illicit funds through its accounts.

In the recent Fifth Circuit decision of Kerns v. First State Bank, 5th Cir. 2024, the court addressed the liability of a financial institution following its report of suspected criminal conduct by a borrower, with the analysis turning in part on the testimony and opinions of a Banking Expert Witness. The case provides a clear illustration of how expert testimony on banking practices and regulatory compliance can decisively influence the outcome of litigation involving banks and their customers.

Background and Parties

Matthew Kerns, the sole member and manager of Glade Creek Livestock, LLC, personally guaranteed a loan from First State Bank of Ben Wheeler (FSBBW). The loan was secured by equipment and cattle. When Glade Creek encountered financial distress, Kerns sold some of the collateralized cattle. FSBBW, upon learning of the sale, demanded full repayment of the loan. Kerns subsequently filed for Chapter 7 bankruptcy protection. During the automatic stay period, FSBBW reported the sale of collateral to a special ranger with the Texas and Southwestern Cattle Raisers Association (TSCRA), a law enforcement entity under Texas law. This report led to Kerns’ indictment and arrest for hindering a secured creditor.

In the landmark case of Oberdorf v. Amazon.com Inc., 3rd Cir. 2025, the role of the Consumer Products Expert Witness proved pivotal in the evolving landscape of online marketplace liability. This case addressed whether Amazon could be held strictly liable as a “seller” for injuries caused by a defective product sold by a third-party vendor through its platform, with expert testimony central to the court’s analysis of product safety, warnings, and causation.

Background and Facts

Plaintiff Heather Oberdorf purchased a retractable dog leash and collar from a third-party vendor on Amazon.com. While walking her dog, the collar’s D-ring failed, causing the leash to snap back and strike Oberdorf in the face, resulting in permanent blindness in her left eye. Oberdorf sued Amazon, asserting claims for strict products liability and negligence, alleging that the product was defectively designed and lacked adequate warnings regarding foreseeable hazards.

The Texas Court of Criminal Appeals’ decision in Sexton v. State, 93 S.W.3d 96 (Tex. Crim. App. 2002), is a leading authority on the reliability of Firearms & Ballistics Expert Witness testimony, particularly for novel forensic techniques. The court applied a Daubert-style analysis to exclude magazine-mark identification evidence as insufficiently reliable for criminal proceedings.

Background and Parties

The defendant, Sexton, was prosecuted for aggravated assault following a shooting incident in Bexar County, Texas. The State sought to link Sexton to the shooting through forensic comparison of unfired cartridges recovered from his possession with fired cartridge casings recovered from the scene. The connection depended on a relatively novel forensic technique: identifying impressions left on cartridges by the lips of a magazine, which the State argued were as distinctive as fingerprint or toolmark evidence.

In the recent data breach litigation of Savidge et al v. Pharm-Save, Inc. et al, W.D. Ky. 2023, the role of the Cybersecurity Expert Witness was pivotal in addressing complex questions of negligence and causation following a significant compromise of employee data. This case provides a clear illustration of how courts scrutinize the reliability and admissibility of expert testimony in cybersecurity matters.

Background and Parties

Plaintiffs Andrea Savidge and Beth Lynch, both former employees of Pharm-Save, Inc., initiated suit after a data breach resulted in the unauthorized disclosure of sensitive personal information. The breach occurred when cybercriminals, posing as company executives, deceived Pharm-Save employees into releasing confidential data. Plaintiffs alleged that Pharm-Save failed to implement adequate cybersecurity protocols, thereby enabling the breach and exposing employees to risk.

In the recent case of Scottsdale Insurance Co. v. Columbia Insurance Group, Inc, 7th Cir. 2024, the role of the Construction Site Expert Witness was central to the court’s analysis of liability and insurance coverage following a serious workplace accident on a Chicago construction site.

Background and Facts

TDH Mechanical, Inc. contracted to provide HVAC services at a multi-story construction project in Chicago. The contract required TDH to indemnify Rockwell, the property owner, and to provide liability insurance naming Rockwell and Prairie Management as additional insureds. During ongoing construction, a TDH employee, Guzman, fell 22 feet through an unguarded opening on the second floor, suffering severe injuries. Guzman initiated a lawsuit against Rockwell, Prairie, and other parties, alleging negligence in site safety management. Several defendants filed third-party complaints against TDH for contribution, seeking to allocate responsibility for the accident.