Ibarra v. Lee

Qnited States District Court

for the sQorthern District of Oklahoma

Case No. 4:20-cv-598-JDR-SH

ROSALINDA IBARRA, 4s the special administratrix of THE ESTATE OF

JORGE MARTINEZ, DECEASED,

Plaintiff,

versus

CHEYENNE LEE; THE BOARD OF COUNTY COMMISSIONERS OF

ROGERS COUNTY,

Defendants.

OPINION AND ORDER

Deputy Cheyenne Lee was dispatched to serve a protective order on

Jorge Martinez. While serving that order, an altercation ensued, and Deputy

Lee fatally shot Mr. Martinez. Rosalinda Ibarra, special administratrix of Mr.

Martinez’s estate, has filed suit against Defendants Deputy Lee and the

Board of County Commissioners for Rogers County. Defendants have moved

to exclude or limit the expert testimony of Roger Clark and Jeffrey Noble,

arguing that the experts are not qualified, used unreliable methodologies, and

will give cumulative testimony. Dkts. 47, 48." Ms. Ibarra has contested the

motions. Dkts. 56, 57. For the reasons discussed below, Defendants’ motions

are granted with respect to sections of both Mr. Clark’s and Mr. Noble’s tes-

timony but denied as to other relief. The Court will first address Mr. Clark’s

testimony, then Mr. Noble’s, and will last consider the objection to cumula-

tive testimony.

' All citations use CMECF pagination.

No, 20-cv-598

The Court has previously stated the relevant legal standards for ad-

missibility of expert witness testimony in this case and applies that standard

here. Dkt. 118 at 2-4.

Defendants begin with challenges to the expert testimony of Roger

Clark, a police procedure expert, who will testify to the standards to which

law enforcement are trained. Defendants object to Mr. Clark’s use of various

“foundation” principles and standards for police use of force, testimony

about areas outside his expertise, and testimony about another shooting in-

volving Deputy Lee.

Defendants first argue that Mr. Clark improperly based his opinion on

a set of “foundation” principles that, according to Defendants, are “errone-

ous standards [that] would seriously mislead . . . the jury.” Dkt. 47 at 15. The

objected-to principles include both general commentaries on police policies,

such as the “reverence for all human life” standard in use of force training,

and specific commentaries on Deputy Lee’s training and actions. Jd. at 15-16.

Most of the objected-to opinions are not offered as statements of law

or statements of what Mr. Clark believes police officers should do, but rather

as statements about the contents of formal police training. For example, he

opines that the “standards and training regarding the use of deadly force”

which police officers learn includes “reverence for all human life.” Dkt. 47-2

at 7. Likewise, his statements on “deadly force,” “self-discipline,” “the use

of a firearm,” and “overreaction,” all are his opinions on common elements

of police training, not law. /d. at 7-10. Defendants also argue that when Mr.

Clark opines that a failure to give a verbal warning is “contrary to law” he is

giving legal testimony. Dkt. 47 at 15. But Mr. Clark’s full statement is that the

failure was “contrary to training, policy and law (as trained).” Dkt. 47-2 at 10.

No. 20-cv-598

When taken in context, Mr. Clark is not opining on legal precedent, but on

the typical contents of police training.

Although Mr. Clark’s sources are not clearly identified (which is a ba-

sis for cross-examination), other courts have permitted experts to testify re-

garding typical police officer training, which is relevant to whether an of-

ficer’s use of force was objectively reasonable. See VV. v. City of Los Angeles,

No. 2:21-cv-01889-MCS-PD, 2022 WL 3598167, at *3 (C.D. Cal. July 6,

2022) (permitting Mr. Clark to testify to the “reverence for human life”

standard, among others, as “opinions about how [an officer’s] conduct com-

ports with police training and typical police practice”); see also Scott v. City of

Tulsa, Oklahoma, No. 4:17-cv-400-GAG-CDL, 2025 WL 1909382, at *3

(N.D. Okla. July 11, 2025) (“[C]ourts routinely permit experts to testify

about whether a defendant’s conduct was consistent with, or constituted a

deviation from, standard police practices and procedures.” (quotation marks

omitted) (collecting cases)).

Mr. Clark’s “foundation” principles are not “erroneous [legal] stand-

ards” liable to mislead the jury, but are statements of Mr. Clark’s opinion,

based on his knowledge and experience, about what typical police officer

training includes. The Court will not exclude his testimony wholesale. How-

ever, Ms. Ibarra is cautioned that Mr. Clark must ensure that he appropriately

limits his testimony to statements about the contents of police training. De-

fendants remain free to object to specific statements which go beyond that

context.

Defendants object that Mr. Clark offers impermissible legal conclu-

sions in his opinion. They argue Mr. Clark should be foreclosed from opining

that Deputy Lee’s conduct was “unreasonable,” “reckless,” or done with

“callous disregard” of Mr. Martinez’s life. Dkt. 47 at 22 (quoting Dkt. 47-2

at 9-11). Defendants point to several cases where Mr. Clark’s testimony was

No. 20-cv-598

excluded for similar conclusions. Dkt. 64 at 4 (citing Borawick v. City of Los

Angeles, No. CV1702036TJHJCX, 2021 WL 5770172, at *1 (C.D. Cal. July

13, 2021) (precluding Mr. Clark from stating legal conclusions as to “exces-

sive,” “unlawful,” or “unreasonable force” or to any Fourth Amendment vi-

olation)).* Ms. Ibarra responds by arguing that Mr. Clark may give “opinion

or inference even if that opinion or inference is determined by the trier of

fact.” Dkt. 55 at 3.

Expert witnesses may not testify to conclusions of law. Anderson ».

Suiters, 499 F.3d 1228, 1237 (10th Cir. 2007) (citing Specht v. Jensen, 853 F.2d

805, 808 (10th Cir. 1988); Scott, 2025 WL 1909382, at *3. The determination

of whether Deputy Lee acted “reasonably,” “disregarded” Mr. Martinez’s

safety, or was “reckless” belong strictly to the jury. As Mr. Clark is not per-

mitted to testify to legal conclusions, he will not be allowed to testify to

these—or any other—legal opinions.

Specifically, the Court will preclude Mr. Clark from testifying to what

was “reasonable” or “unreasonable and inappropriate” in Opinion 1, “fore-

seeable” in Opinion 4, “objectively unreasonable” and “reckless” in Opinion

6, what constituted “deliberate indifference” in Opinions 5 and 12, and what

was “callous disregard” in Opinion 13. The Court will also preclude Mr.

* Rascon v. Brookins, No. CV-14-00749-PHX-JJT, 2018 WL 739696, at *4 (D. Ariz.

Feb. 7, 2018) (precluding testimony as to legal conclusions); Cooke v. City of Stockton, No.

214CV00908KJMKJN, 2017 WL 6447999, at *5 (E.D. Cal. Dec. 18, 2017) (“[Mr.] Clark

may not use judicially defined or legally specialized terms in providing his opinions.”); Carr

v. Montgomery Cnty., Tex., No. CIV.A. H-13-2795, 2015 WL 5838862, at *6 (S.D. Tex. Oct.

7, 2015) (holding “[Mr.] Clark certainly would not be qualified to testify as to his interpre-

tation of Fifth Circuit case law”); Burke »v. City of Santa Monica, No.

CV0902259MMMPLAX, 2011 WL 13213593, at *29 (C.D. Cal. Jan. 10, 2011) (precluding

Mr. Clark from testifying that a taser is a deadly weapon).

No. 20-cv-598

Clark from testifying as to how Deputy Lee’s “subjective fear” impacts the

reasonableness of his use of force as in Opinion 7.

The Court will not preclude Mr. Clark from testifying to what was a

“departure from . . . law (as trained)”, as in Opinion 3 and 9, because these

are statements as to whether Deputy Lee’s “conduct was consistent with, or

constituted a deviation from, standard police practices and procedures.”

Scott, 2025 WL 1909382, at *3.°

Defendants next argue that Mr. Clark’s testimony about the standards

to which police officers are held is inaccurate. Dkt. 47 at 24. In support of this

argument, they cite to Zenorio v. Pitzer, No. CIV1201295JCHKBM, 2018 WL

4491167, at *8 (D.N.M. Sept. 19, 2018), wherein Mr. Clark’s testimony was

precluded. The statement in 7enorio is distinguishable. In that case, Mr. Clark

testified that an officer’s “apparent reliance on the most lethal option in a

situation where less-lethal force was appropriate and mandated, can only be

interpreted as wanton disregard for the life and safety of Mr. Tenorio.” Jd.

(alterations removed). The court excluded the testimony in part because of

Mr. Clark’s use of “mandated” was found to potentially confuse the jury and

be taken as a true legal standard. Jd.

Mr. Clark’s testimony in this case is not about the /ega/ standards po-

lice officers are held to, but to the typical contents of police training. See supra

§ I(A). Except for the statements excluded in § I(B), supra, Mr. Clark does not

suggest a legal mandate exists. When discussing the law, he clarifies that he is

referring to the law “‘as trained.” See Dkt. 47-2 at 8, 10. Defendants have not

objected that Mr. Clark’s testimony about the contents of police training is

* Defendants raise two further objections to Mr. Clark’s Opinion 12 and 14, which

discuss the “lack of training on use of force” and the Rogers County Sheriff’s Office’s “‘col-

lective approval” of unconstitutional tactics. Dkt. 47 at 24; Dkt. 47-2 at 10-11. These state-

ments are irrelevant, as they only apply to Ms. Ibarra’s Monell claims, which are no longer

asserted. See Dkt. 106.

No. 20-cv-598

inaccurate, and his testimony is free from the type of confusing testimony of

what was “mandated” that the court found objectionable in Tenorio. So long

as Mr. Clark clearly states that he is speaking of training standards, content,

and Deputy Lee’s compliance therewith, there will be no jury confusion. The

Court will not exclude Mr. Clark’s statements on police training.

Defendants next argue that Mr. Clark is not qualified to render expert

testimony on medical issues. Specifically, Defendants challenge Mr. Clark’s

opinions that photographs of Deputy Lee taken shortly after the incident are

“inconsistent with someone who was a victim of an assault” and his state-

ment that medical care given shortly after Deputy Lee shot Mr. Martinez

would have been “life saving.” Dkt. 47 at 26; Dkt. 47-2 at 10. Both statements

fall outside the reasonable confines of an expert in police procedure.* Mr.

Clark’s time as an officer may have given him some exposure to these issues,

but there is no evidence that Mr. Clark is a physician, has medical knowledge,

or is otherwise qualified to opine on medical issues. His testimony to these

matters will not be uniquely helpful to the jury. The Court will strike both

statements.

Defendants next challenge Mr. Clark’s ability to testify to “the duty to

render medical care.” Dkt. 47 at 26. Defendants’ motion is unclear to which

statement they object, but it appears to be to Mr. Clark’s use of the phrase

“did not provide life saving measures” as his testifying to a duty officers have

to provide medical care to an individual they have shot. Dkt. 47-2 at 10. As a

duty is a legal term relevant to Ms. Ibarra’s negligence claims, Mr. Clark will

be precluded from using the term “duty” but may otherwise testify to the

lack of a medical response.

* See Rascon, 2018 WL 739696, at *3; Valtierra v. City of Los Angeles, 99 F. Supp. 3d

1190, 1199 (C.D. Cal. 2015)); LeBlanc v. City of Los Angeles, No. CV 04-8250 SVW VBKX,

2006 WL 4752614, at *9 (C.D. Cal. 2006).

No. 20-cv-598

Defendants next object that Mr. Clark is not qualified to testify to bul-

let trajectories. Dkt. 47 at 27. Although Mr. Clark may be “very familiar with

ballistic evidence,” it is not apparent that ballistics falls into his area of exper-

tise. He gives little basis for his familiarity other than his training as a detec-

tive and his leadership of a homicide investigation team. Dkt. 47-1 at 14. Nei-

ther are sufficient to qualify him as an expert witness in ballistics. See Bermu-

dez ». Cnty. of San Bernardino, No. EDCV20438JGBSHKX, 2021 WL

6618857, at *7 (C.D. Cal. Dec. 6, 2021); Speer ». Cnty. of San Bernardino, No.

EDCV 20-44 JGB (SPX), 2021 WL 4459680, at *2 (C.D. Cal. July 9, 2021).

The Court will not permit Mr. Clark to testify on ballistics.

Defendants also object to Mr. Clark impugning the credibility of other

witnesses based on his ballistics analysis. Dkt. 47 at 27; Dkt. 47-2 at 8. Spe-

cifically, Defendants object to Mr. Clark’s opinion that the bullet’s trajectory

was “inconsistent with the testimony of Deputy Lee” and statement that

Deputy Lee’s testimony is “not truthful” if Ms. Mitchell’s testimony is true.

Dkt. 47-2 at 8.

The Tenth Circuit addressed this matter in United States v. Adams, 271

F.3d 1236, 1246 (10th Cir. 2001), a case where an expert witness gave testi-

mony about the propensity of another witness to lie to the police. The court

of appeals held that an expert witness may not give “vouch[ing]” testimony

directly about the credibility of another witness. Jd. Here, as Mr. Clark may

not testify to ballistics, the first objection is moot. As for the second objection,

although Mr. Clark couches his opinion with the phrase “[t]aking Ms. Mitch-

ell’s testimony as true,” his following point “then Deputy [sic] is not truthful

in his account of any facts that could possibly justify shooting Mr. Martinez”

is testimony about Deputy Lee’s credibility and so is impermissible under Ad-

ams. Dkt. 47-2 at 8. The Court will not permit this statement or any others

that comment directly on the credibility of another witness.

No. 20-cv-598

Defendants next seek to exclude Mr. Clark’s testimony about another

shooting involving Deputy Lee. Dkt. 47 at 29-30. Mr. Clark’s Opinion 14 in-

dicates only that shooting happened and “the Sheriff concluded that the

shooting was consistent with the training given to Deputy Lee and with the

Department [sic] policies.” Dkt. 47-2 at 11.

Evidence must be relevant to be admissible. Fed. R. Evid. 402. Evi-

dence is relevant if “(a) it has any tendency to make a fact more or less prob-

able than it would be without the evidence; and (b) the fact is of consequence

in determining the action.” Fed. R. Evid. 401. Further, the Court may exclude

evidence if its probative value is outweighed by unfair prejudice, confusion,

wasting time, or presenting needlessly cumulative information. Fed. R. Evid.

403.

Mr. Clark’s testimony about an unrelated shooting has minimal pro-

bative value, and risks both confusing the jury and potentially creating unfair

prejudice by introducing a second shooting without any context. The evi-

dence is not relevant and unfairly prejudicial. Mr. Clark will not be allowed to

testify about this second shooting.

Last, Defendants object that Mr. Clark is not qualified to testify about

Deputy Lee’s and Mr. Martinez’s body positioning. Dkt. 47 at 30. Mr. Clark

briefly discusses in his report the positions of Mr. Martinez and Deputy Lee

at the time of the shot, but in doing so he simply restates the testimony of

Isidra Mitchell and Deputy Lee. Dkt. 47-2 at 8. He does not analyze the po-

sitions of Deputy Lee and Mr. Martinez. Jd. As there is no expert opinion for

the Court to exclude on this topic besides the already-excluded ballistics anal-

ysis, this objection is moot.

No. 20-cv-598

I]

Defendants next object to Ms. Ibarra’s “police practices” expert, Mr.

Noble, on the grounds that his opinions are unreliable, irrelevant, speculative,

hearsay, and include inadmissible testimony. Dkt. 48.

Defendants first object to three of Mr. Noble’s statements as “‘irrele-

vant” and “inherently unreliable.” Specifically, Defendants object to Mr. No-

ble’s opinion that “any reasonable police officer in these circumstances would

have waited for a backup officer” based on “generally accepted police prac-

tice.” Dkt. 48-1 at 29. Defendants also object to Mr. Noble’s statement that

“the failure of deputies to carry less-lethal tools . . . may require a deputy to

violate the constitutional rights of another” and to his criticism of “Deputy

Lee’s reckless decision making in... failing to engage in de-escalation tech-

niques.” Jd. at 32-33.

Defendants argue that all three statements are irrelevant under

Marquez v. City of Albuquerque, wherein the Tenth Circuit held that “whether

[an officer] violated some well established police procedure [is] only tangen-

tially related” to determining if an officer’s actions were reasonable under the

circumstances, as the analysis looks towards the reasonableness of the of-

ficer’s actions based on the situation at the moment of the use of force. 399

F.3d 1216, 1222 (10th Cir. 2005) (quotation marks removed). Under the

Marquez standard, Mr. Noble’s testimony to generally accepted police prac-

tice is irrelevant to the objective reasonableness prong of a § 1984 claim, as is

his testimony about the reasonableness of Deputy Lee’s actions prior to his

use of force. The Court precludes Mr. Noble from offering his opinions on

iy

No. 20-cv-598

either Deputy Lee’s violations of generally accepted police practice or the

reasonableness of Deputy Lee’s actions prior to his decision to use force.°

Defendants next argue that “Mr. Noble’s opinions are, at best, specu-

lative in nature and based on conjecture.” Dkt. 48 at 14. Defendants cite to

Mr. Noble’s statements that he was unsure if a baton would have been more

effective than Deputy Lee’s thrust strikes, his statement that a taser would be

an “appropriate tool to use” if “[Mr.] Martinez is actively resisting by punch-

ing him” and that it was “possible” for Deputy Lee to have actually avoided

the event without actively punching Mr. Martinez. /d.; Dkt. 48-2 at 20-22.

“Tt is axiomatic that an expert, no matter how good his credentials, is

not permitted to speculate.” Goebel »v. Denver & Rio Grande W. R.R. Co., 215

F.3d 1083, 1088 (10th Cir. 2000). Mr. Noble’s cited statements are specula-

tion, but they are not the sum total of Mr. Noble’s testimony. All statements

that Defendants cite come from Mr. Noble’s deposition responses to Defend-

ants’ counsel’s questions, and are not independent evaluations. Dkt. 48 at 14.

The Court will not bar Mr. Noble from testifying because he answered ques-

tions that call for speculation, but the parties may object to any speculation at

trial.

Cc

Defendants next argue that Mr. Noble’s testimony that Isidra Mitch-

ell’s ballistics testimony is “consistent with the physical evidence” is outside

of Mr. Noble’s expertise. Ms. Ibarra has not offered Mr. Noble as a general

expert in policing, but as an expert in police practices. See Dkt. 48-2 at 4 (stat-

ing “I’m not a forensic expert” and agreeing he is not a ballistics expert). As

Mr. Noble admits he is not qualified to opine, the Court will not permit Mr.

* Defendants do not specifically cite to these statements as giving legal conclusions,

but the Court notes that Mr. Noble’s use of “reasonable officer” and “reckless decision

making” is also barred by the Court’s ruling infra § II(D).

in

No. 20-cv-598

Noble to testify about the physical evidence and whether it comports with

other witness testimony.

Defendants next argue that Mr. Noble’s testimony includes legal con-

clusions to which he cannot testify. Dkt. 48 at 17-18. Defendants point to Mr.

Noble’s use of “excessive” and “objectively unreasonable” in his opinion on

Deputy Lee’s use of force. Jd. (quoting Dkt. 48-1 at 35). Statements that an

action was “excessive” or “objectively unreasonable” are legal conclusions

left to the jury. See Anderson, 499 F.3d at 1237. As with Mr. Clark, the Court

will prohibit Mr. Noble from giving testimony using these terms or giving

other legal conclusions.

Last, Defendants state multiple arguments for excluding Mr. Noble’s

expert report from evidence. Dkt. 48 at 18-19. The report is an out-of-court

statement given to prove the truth of the matter asserted, and Ms. Ibarra has

not argued or suggested that a hearsay exception applies. The Court will not

admit the report into evidence. See Rimes v. MVT Serys., LLC, No. 19-cv-

00282-JFH-JFJ, 2020 WL 9074900, at *3 (N.D. Okla. July 24, 2020) (exclud-

ing expert report as hearsay).

III

Defendants object that Mr. Clark and Mr. Noble may not both testify,

as their opinions are cumulative of one another. Dkt. 47 at 30-31; Dkt. 48 at

19. Much of Mr. Clark’s and Mr. Noble’s testimony does not overlap. Mr.

Clark does not discuss the lead-up to the events or Deputy Lee’s decision

making in entering the home without backup or not engaging in de-escalation.

Mr. Noble and Mr. Clark’s testimony do overlap as to the propriety of Deputy

Lee’s use of force in light of police standards, but it is not apparent if that

overlap would be unduly cumulative at trial. The Court will reserve this issue

71

No. 20-cv-598

for trial, but the Court cautions Ms. Ibarra that she will not be allowed to have

two witnesses plow the same ground.

IV

Based on the above, Defendant’s motion to exclude testimony of

Roger Clark [Dkt. 47] is granted in part. Mr. Clark will not be allowed to tes-

tify to legal conclusions, medical issues, bullet trajectories, witness credibil-

ity, other shootings involving Deputy Lee, or the body positioning of Deputy

Lee and Mr. Martinez.

Defendant’s motion to exclude testimony of Jeffrey Noble [Dkt. 48] is

granted in part. Mr. Noble may not testify to generally accepted police stand-

ards, ballistics, body positioning, or legal conclusions, and his expert report

will be excluded from evidence as hearsay. The Court will reserve the issue

of unduly cumulative testimony for trial.

DATED this 30th day of September 2025.

JOHN D. RUSSELL

United States District Judge