The court found that the expert had invaded the court's province by making impermissible legal conclusions, including "rendering a legal opinion concerning whether various agents of [defendants] complied with their obligations under federal securities law." Id., slip op. at 14, emphasis removed. However, rather than strike the expert's report in its entirety, the court sought "to better define [sic] the line between permissible testimony on ultimate issues and an impermissible legal opinion." Id., slip op. at 15.
The court began by noting that Federal Rule of Evidence 704(a) specifically permits an expert to proffer testimony that "embraces an ultimate issue to be decided by the trier of fact." Id. Were this not the case, "the factfinder might be left hanging if the witness [could not] cap off the testimony with a conclusion about the ultimate issue to which the expert is testifying." Id. However, this rule (sometimes referred to as "the ultimate issue rule") does not permit an expert to instruct the jury as to what result to reach. As the court noted, the advisory committee's notes to FRE 704(a) provide an example: "[A]n expert may not render any ultimate opinion concerning, for example, whether a specific party had 'capacity to make a will,'" but may offer an opinion concerning whether that party had "sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution." Id., slip op. at 16. The Krys court further explained:
Taken together, these authorities therefore instruct that any qualified expert … may provide an opinion on whether a party's conduct or actions meet the underlying bases for an ultimate issue in a case (by, for example, testifying concerning whether certain acts would in the abstract be improper and/or inconsistent with a party's legal duties), but may not merely instruct the jury on the result to reach based upon a party's specific conduct or actions (by, for example, stating that a party did indeed violate an applicable duty through certain actions). Id., slip op. at 17.
Applying these rules to the dispute before it, the court excluded the expert's testimony "to the extent he reaches the specific conclusion that any the defendant acted in compliance with and/or in violation of applicable legal duties or segregation requirements." Id. However, rather than excluding the expert's entire report, the court allowed the report "[w]ith appropriate redactions, [because the expert's] proposed testimony will be helpful to the jury in assessing the underlying conduct in this case." Id.