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(necessity of conducting field survey), 1324-25 (height requirements), 1328-29

(compliance with the Americans with Disabilities Act); 2092 (cost of acquiring property).

Defendants also challenged Dr. Berg to show how his proposal would have addressed the

condition that gave rise to the accident—trespassers who jump on moving trains to “show

off,” despite “kn[owing] the train and the tracks were dangerous” (Tr. 1280, 1304). They

also argued that “[t]here [was] no connection between the facts of this accident and the

construction of a new crossing at Austin.” Tr. 1369. Nonetheless, the court cut short

defendants’ cross-examination of Dr. Berg on this crucial point. Tr. 1369-70.

Finally, although Dr. Berg was never qualified as an expert on matters of child

psychology or behavior, the trial court also permitted him to testify, over defendants’

objection, that it was “common knowledge” that “young people and trains don’t mix.” Tr.

1244-47. Dr. Berg testified that moving trains were a risk to children because, in his

view, young people lacked the “maturity” of adults. Tr. 1243. He provided no basis for

these opinions. Similarly, although Dr. Berg was not an expert on law enforcement, he

was permitted to testify, again over defendants’ objection, that defendants’ policing

efforts were inadequate. Tr. 1377-1378, 1392. (At the same time, defendants were barred

from adducing the opinion of actual police officers regarding the effectiveness of their

patrols. Tr. 1589, 1648-49.)


Denial of defendants’ request for a special jury interrogatory. Defendants

submitted a special interrogatory, which would have asked the jury: “at the time and

place of Dominic Choate’s accident, did he appreciate that attempting to jump onto a

moving freight train presented a risk of harm to him”? Tr. 1847. The court refused to give

the special interrogatory, reasoning that it was “not dispositive” because, in its view, the

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