Pure Earth Inc v. Gregory Call

531 F. App'x 256
CourtCourt of Appeals for the Third Circuit
DecidedJuly 19, 2013
Docket12-2130
StatusUnpublished
Cited by9 cases

This text of 531 F. App'x 256 (Pure Earth Inc v. Gregory Call) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pure Earth Inc v. Gregory Call, 531 F. App'x 256 (3d Cir. 2013).

Opinions

OPINION

ROTH, Circuit Judge:

This appeal arises out of Gregory W. Call’s claims of securities fraud, breach of contract, and breach of warranty by Pure Earth, Inc., its CEO Mark Alsentzer, and its CFO Brent Kopenhaver (collectively, the PEI Defendants). The only question on appeal is the narrow issue of the District Court’s exclusion of the testimony of Call’s expert, Stephen Scherf. For the reasons that follow, we conclude that the District Court improperly excluded Scherf s testimony. We therefore will remand the case to the District Court for further proceedings.

I. Background1

Pure Earth, Inc., (Pure Earth) is a publicly traded waste-management company; its stock, however, is not widely traded. Pursuant to a Stock Purchase Agreement executed in March 2007, Call agreed to sell [258]*258three companies under his control to Pure Earth in exchange for Pure Earth stock. Call agreed to the exchange based on, among other things, a representation made by Alsentzer and Kopenhaver that at that time there were no government investigations pending against Pure Earth or its subsidiaries. This representation was false because the New York City Business Integrity Commission (BIC) had been investigating one of Pure Earth’s largest subsidiaries for alleged connections to organized crime. In November 2007, the BIC denied the subsidiary’s renewal of its registration, effectively revoking its license to operate in the waste-management industry. As a result, Pure Earth’s stock price began to fall dramatically. The stock is now almost worthless.

In September 2009, the PEI Defendants filed suit against Call, alleging that he had breached the Stock Purchase Agreement. Call filed counterclaims, asserting securities fraud in violation of § 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 and breach of contract and breach of warranty claims under Pennsylvania law.

Call retained Stephen Scherf as an expert.2 Scherf produced a report summarizing the terms of the Stock Purchase Agreement and its subsequent amendments. The report highlighted the misrepresentations concerning the BIC investigation and discussed the historical stock price of Pure Earth. In his report, Scherf concluded that “[a]fter the market learned that Pure Earth has [sic] lost its license to haul waste in New York, the stock price gradually decreased to the current trading price of just $0.17.”

The District Court found that Scherfs report was unreliable under Federal Rule of Evidence 702 because it did not establish the elements of loss causation and damages.3 The court therefore excluded the report. As to loss causation, the District Court held that the report’s fundamental shortcoming was its failure to establish how much Pure Earth’s stock was overvalued in March 2007 as a result of the misrepresentation made by Alsentzer and Kopenhaver. The District Court held that, for the expert testimony on loss causation to be admissible, Scherf needed to show that the decline in Pure Earth’s stock value was a “consequence of dissemination to the market of information regarding the true valuation that caused the subsequent deflation of the stock price.” The court found that Scherfs report failed in this respect because he did not establish how the decline was attributable to the misrepresentation. The court also held that Scherfs loss causation analysis did not use the standards or controls that were generally accepted in the scientific community because he did not “develop a model of the normal returns in the subject stock price based on references to independent data that captures market and other developments that are independent of the events being tested.”

In addition, the District Court held that Scherfs report was inadmissible to calculate the damages sustained by Call. The District Court held that, due to his failure to isolate the causal factors leading to the stock’s then-trading value of $0.17, Scherf had set forth no evidence showing that his damages assessment was accurate.

[259]*259During a two-day bench trial, the District Court excluded additional testimony proffered by Call on the subject of loss causation and damages on relevance grounds. Ultimately, the District Court held that the PEI Defendants could not prevail on any of their claims against Call. As to Call’s counterclaim, the court found that the PEI Defendants engaged in fraudulent conduct in connection with the sale to Call of the PEI stock but that Call could not succeed on his claims against the PEI Defendants because he could not establish damages on his securities fraud and common law claims, nor could he establish loss causation on his securities fraud claim. Therefore, neither side was entitled to financial recovery.

Call appealed.

II. Discussion4

Call contends that the District Court improperly excluded the Scherf report under Federal Rule of Evidence Rule 702 by applying the wrong legal standard in its loss causation and damages analysis. We agree. As a result, we will reverse the District Court’s decision excluding Scherf s testimony.

We ordinarily review a district court’s decision to exclude evidence under Federal Rule of Evidence 702 for an abuse of discretion. Heller v. Shaw Indus., Inc., 167 F.3d 146, 151 (3d Cir.1999). However, our review of whether a district court has properly followed Rule 702 as prescribed in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), is plenary. Id.

A. Rule 702

Rule 702 provides that a witness may be qualified to testify as to his expert opinion if his “scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue[.]” Fed.R.Evid. 702. Rule 702 and Daubert require a district court to ensure that “expert testimony is not only relevant, but reliable.” ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 291 (3d Cir.2012). “As we have made clear, ‘the reliability analysis [required by Daubert ] applies to all aspects of an expert’s testimony: the methodology, the facts underlying the expert’s opinion, [and] the link between the facts and the conclusion.’ ” Id. at 291 (quoting Heller, 167 F.3d at 155) (alterations in original). The standard for determining reliability “is not that high.” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 745 (3d Cir.1994). Thus, plaintiffs offering expert testimony do not “have to prove their case twiee-they do not have to demonstrate to the judge by a preponderance of the evidence that the assessments of their experts are correct,

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531 F. App'x 256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pure-earth-inc-v-gregory-call-ca3-2013.