Colorado River Water Conservation District's Response to Motion in Limine Case No. 02CW38

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District Court, Water Division 4, Colorado Case No. 02CW38; Application of Upper Gunnison River Water Conservancy District, in Gunnison Coumty, Cobrado Colorado River Water Conservation District's Response to Motion in Limme Page4of6 2. Pursuant to CRE 702, expert testimony is admissible if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. Opinion testimony that is otherwise admissible is not objectionablebecause it embraces an ultimate issue to be decided bythe trier of fact. CRE 704. However, an expert may not usurp the function of the court by determining the applicable law and communicating legal standards to the trier of fact. People v. Lesslie, 939 P.2d 443, 450 (Colo. App.1996). It is within the txial court's discretion to decide whether an expert's testimony will assist the fact-fmder, see Harvey v. Dyer, 731 P.2d 777, 799 (Colo. App. 1986), and to determine the scope of expert testimony. People v. Davis, 528 P.2d 251, 253, 187 Colo. 16, 19 (1974). Mr. Kuhn's anticipated testimony is within the proper scope of expert testimony under CRE 702. 3. Mr. Kuhn will offer opinion testimony based on his specialized knowledge to help the court understand the evidence and determine facts in issue, including whether the proposed appropriation will impair Colorado's ability to develop its compact entitlement and promote maximumutilization of Colorado's waters. Mr. Kuhn is not expected to offer legal conclusions about the defuutions of "compact impairment" or "maximum utilization." Furthermore, the Court is fully capable of effectively controlling the scope of the examination to ensure that Mr. Kuhn does not improperly testify concerning the ultimate issues of law before the Court and of ignoring inadmissible evidence. See, e.g., Boettcher DTC Building Joint Venture v. Falcon Ventures, 762 P.2d 788, 791 (Colo. App. 1988) (trial court effectively controlled scope of examination and ensured witness did not improperly testify on ultimate issues of law); Silverberg v. Colantuno, 991 P.2d 280, 291(Colo. App. 1998) (trial judges sitting as factfmders are prestnned to ignore incompetent and inadmissible evidence). The fact that Mr. Kuhnwill offer expert testimony regarding facts that are relevant to issues of law before the Court is not a legitimate reason to exclude Mr. Kuhn's testimony in its entirety. 4. The CWCB and Engineers further argue that Mr. Kuhn's expert testimony should be excluded because it does not meet the test for "scientific" evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). This reliance on Daubert is misplaced.