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"[T]estimony on ultimate issues of law by the legal expert is inadmissible because <br />it is detrimental to the trial process." Specht v. Jensen, 853 F.2d 805, 809 (C.A.10 <br />(Colo.) 1988). An expert witness may not give an opinion on ultimate issues of law. Marx <br />& Co. v. Diners' Club, Inc.,.550 F.2d 505 (2d Cir.); Adalman v. Baker, Watts & Co., 807 <br />F.2d 359, 366 (4th Cir.1986); Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (Sth <br />Cir.1983); United States v. Zipkin, 729 F.2d 384 (6th Cir.1984) <br />"If scientific, technical, or other specialized knowledge will assist the trier of fact <br />to understand the evidence or to deternune a fact in issue" an expert may testify thereto. <br />C.R.E. 702, C.R.S. (2002). The subject of an expert's testimony must be scientific <br />knowledge. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590 (1993): <br />"The adjective "scientific" implies a grounding in the methods and procedures of science <br />... [and] the word "knowledge" connotes more than subjective belief or unsupported <br />speculation." Id. "Ordinarily, a key question to be answered in determining whether a <br />theory or technique is scientific knowledge that will assist the trier of fact will be whether <br />it can be (and has been) tested." Id. "Another pertinent consideration is whether the <br />theory or technique has been subjected to peer review and publication." Id. <br />Because this is a case of first impression and Senate Bill 216 does not define the <br />terms "maximum utilization" and "compact impairment" under section 37-92- <br />102(6)(a)(I) &(V), C.R.S. (2002), any opinion on what those terms means is speculation, <br />not grounded in scientific or technical knowledge or examined by peer review or <br />publication. <br />Finally, the Committee Comments on C.R.E. 704 explains the purpose of <br />allowing an expert to testify as to "an ultimate issue of fact," not the ultimate issue of <br />law. <br />WHEREFORE the State respectfully respects this Court to enter an Order <br />excluding the testimony of James Lochhead and Eric Kuhn as set forth above. <br />Submitted this 29t' day of August, 2003. <br />KENSALAZAR <br />Attorney General <br />A r <br />SUSAN J. 5CHNEIDER, 41996 <br />LORI J. COULTER, #17766 <br />Natural Resources and Environment Section <br />Attorneys for CWCB and the Engineers