X hits on this document





39 / 60

that [he] was grabbing onto was dangerous.” D. Choate Dep. 127-28 (A29). Choate’s

admission was binding on him, and allowing him to subsequently back away from it

created a needless “temptation to commit perjury.” Hansen, 155 Ill. App. 3d at 480. “A

party deponent cannot avoid the consequences of a deposition by subsequently changing

or reconstructing testimony.” Steiner Elec. Co. v. NuLine Techs., Inc., 364 Ill. App. 3d

876, 882 (1st Dist. 2006).

The only other evidence Choate offered on this point constituted equally

forbidden attempts to nullify his “judicial admission . . . with . . . [the] contrary testimony

. . . of other . . . [purported] experts,” such as Dr. Berg (who opined that children lack the

“maturity” of adults, Tr. 1243) and Dr. Lencki (who opined that Choate had “low average

to average” intelligence, Tr. 1479-80). Caponi v. Larry’s 66, 236 Ill. App. 3d 660, 671

(2d Dist. 1992); see infra pp. 42-46. Moreover, Dr. Berg was not even qualified to testify

as an expert on child psychology, so his testimony on young people’s ability to recognize

the hazards of trains was inadmissible for this independent reason. See infra pp. 47-48.

Finally, assuming (contrary to fact) that Dr. Berg’s or Dr. Lencki’s testimony were

otherwise admissible and “pertinent to whether a moving train is a dangerous condition

that may reasonably be expected” to be appreciated by children generally, their testimony

is irrelevant to whether Choate subjectively appreciated the danger, since neither testified

that Choate himself was “a child who does not understand the danger of moving trains.”

Nixon, 2007 WL 4190705, at *8.6

6 For similar reasons, Choate’s reliance below on IHB Special Agent James Griffith’s musings that “[s]ome kids” might not realize the risks of hopping a ride on a moving train was misplaced. Tr. 1452 (emphasis added). Griffith did not testify that children of Choate’s age—much less Choate himself—would not understand that danger. Griffith merely thought that a “younger child[],” as distinguished from an “older child, [such as] a


  • -

    30 -

Document info
Document views204
Page views204
Page last viewedTue Jan 17 15:32:03 UTC 2017