(Ex. 13 ¶ 47.) See Hygh, 961 F.2d at 364; Media Sports, 1999 WL 946354, at *2; Fed. R. Evid. 704, Advisory Comm. Note (Rule 704 does not require “the admission of opinions which would merely tell the jury what result to reach.”). Moreover, like Mr. Harrison, Ms. Bogre applied the wrong legal standard.

Daubert v. Merrill Dow Pharmaceutical, Inc., 509 U.S. 579, 596 (1993); accord McCullock v. Fuller Co., 61 F.3d 1038, 1044 (2d Cir. 1995) (disputes over credentials, methodology, or textual authority “go to the weight, not admissibility” of expert’s testimony). As indicated, Federal Rule of Evidence 704(a) provides that expert testimony “is Case 3:01-cv-02361-MRK Document 185 Filed 07/18/2006 Page 8 of 20 4 not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” In United States v. Boissoneault, 926 F.2d 230, 232 (2d Cir. 1991), the Second Circuit explained that “a qualified expert may generally suggest inferences that should be drawn from the facts,” “including inferences embracing the ultimate issue in the case.”

This is inappropriate testimony. See also United States v. Dupre, 462 F.3d 131, 138 (2d Cir. 2006) (affirming district court’s exclusion of expert psychological testimony that defendant had psychological condition related to religious beliefs which interfered with here ability to form necessary mens rea, noting “we share the District Court’s concern that the proffered evidence might have constituted an impermissible opinion about the ‘ultimate issue’ of whether Dupre possessed the mental state constituting an element of wire fraud”) (quoting Fed. R. Evid. 704(b)). The Court should exclude this testimony as violative of Rule 704(b).

These “opinions” improperly usurp the role of the factfinder. See Hygh, 961 F.2d at 364; Media Sports, 1999 WL 946354, at *1; Fed. R. Evid. 704, Advisory Comm. Note. These “opinions” are also unreliable because Ms. Sussman (and plaintiffs) admit she employed no methodology beyond viewing reproductions of the works. (Opp. at 10; Ex. 18 at 11:16-22; 72:20-73:4; see Fitzpatrick Decl., Ex. 88 ¶ 3 (Ms. Sussman’s opinion is unchanged after viewing replicas of Prince’s works).)

“Testimony in the form of an opinion or inference otherwise admissible 6 is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” FED. R. EVID. 704(a); see also United States v. Long, 300 Fed. App’x. 804, 814-15 (11th Cir. 2008); Cook v. Sheriff of Monroe Cty., 402 F.3d 1092, 1112 n. 8 (11th Cir. 2005). Indeed, courts have routinely admitted testimony of a legal nature in instances were the law presents complex issues:  United States v. Johnston, No. 08-14594, 2009 WL 806740 (11th Cir. March 30, 2009), agreed that expert’s testimony about appropriate standard of care and her opinion that defendant wrote prescriptions without any legitimate medical purpose were not impermissible legal conclusions;  United States v. Long, 300 Fed. App’x. 804 (11th Cir. 2008), permitted expert’s statement describing defendant’s financial practices as a “Ponzi scheme;”  Amerco, Inc. v. Comm’r, 96 T.C. 18 (U.S. Tax Court 1991), aff’d 979 F.2d 162 (9th Cir. 1992), allowed expert testimony on key issues of insurance regulatory procedure;  Peckham v. Cont’l Cas.

LexisNexis(R) Headnotes Evidence > Testimony > Experts > Admissibility Evidence > Testimony > Experts > Helpfulness [HN1] See Fed. R. Evid. 702. Evidence > Testimony > Experts > Ultimate Issue [HN2] In civil cases, Fed. R. Evid. 704 expressly permits expert opinion testimony that embraces an ultimate issue to be decided by the trier of fact. However, Rule 704 was not intended to allow experts to offer opinions embody- ing legal conclusions.

Allowing Professor Fischel to discuss this incentive would also essentially allow him to offer improper comment on Defendant’s credibility. Further, as discussed above, testimony about what Defendant would have wanted to do also may violate Federal Rule of Evidence 704(b). Case 1:05-cr-00545-MSK Document 334 Filed 04/03/07 USDC Colorado Page 38 of 63 39 7.

See Hangarter, 373 F.3d at 1016 citing Mukhtar v. Cal. State Univ., Hayward, 299 F.3d 1053, 1066 n. 10 (9th Cir. 2002). In fact, Federal Rule of Evidence 704(a) provides that expert testimony that is otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. See id.; see also Lexington Ins. Co. v. Swanson, 2007 WL 2463279 (W.D. Wash. 2007); see also Ramirez-Yanex v. Allstate Ins. Co., 2013 WL 1499199 (W.D. Wash. 2013).

See Hangarter, 373 F.3d at 1016 citing Mukhtar v. Cal. State Univ., Hayward, 299 F.3d 1053, 1066 n. 10 (9th Cir. 2002). In fact, Federal Rule of Evidence 704(a) provides that expert testimony that is otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. See id.; see also Lexington Ins. Co. v. Swanson, 2007 WL 2463279 (W.D. Wash. 2007); see also Ramirez-Yanex v. Allstate Ins. Co., 2013 WL 1499199 (W.D. Wash. 2013).

The opinions, therefore, are not cumulative. Plaintiff also contends, contrary to the governing law, that Mr. Ward’s testimony is inadmissible because it is an improper invasion of the providence of the trier of fact to determine whether the lifting, carrying, and other physical requirements are essential Case 6:16-cv-01998-PGB-DCI Document 57 Filed 11/11/17 Page 17 of 21 PageID 870 18 functions of Plaintiff’s former position. Federal Rule of Evidence 704 provides, “An opinion is not objectionable just because it embraces an ultimate issue.” See also Comer v. Gerdau Ameristeel US Inc., No. 8:14-CV-607-T-23AAS, 2017 WL 192370, at *2 (M.D. Fla. Jan. 18, 2017) (citing Fed. R. Evid. 704). The advisory committee notes to Fed. R. Civ. P. 704 provide that the Rule is intended to abolish decisions of “older cases [which] often contained strictures against allowing witnesses to express opinions upon ultimate issues” to “prevent the witness from ‘usurping the province of the jury.’” Plaintiff’s argument therefore has been explicitly rejected by the Federal Rules of Evidence and should be ignored by this Court.