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issues, including compliance with the Americans with Disabilities Act and other

accessibility requirements (Tr. 1328, 1358, 1360); the overpass’s environmental impact,

given the adjacent nature preserve (Tr. 1330, 1362); its impact on traffic flow, land use,

and other property owners (Tr. 1354-55); and the need to coordinate its construction with

two different municipalities, Chicago Ridge and Oak Lawn (Tr. 1275-76; DX19). Dr.

Berg dismissed the notion that it would be difficult for defendants to secure permission

from the Illinois Commerce Commission to build the overpass (see 625 ILCS 5/18c-

7401(3)), notwithstanding his conceded lack of familiarity with the Commission’s

procedures. Tr. 1327-28. Most strikingly of all, the overpass would physically project

beyond the railroad’s property and deposit traffic on private property, so defendants

would need to negotiate with neighboring property owners in order to acquire easements

or title. Tr. 1275, 1354, 2092. Yet Dr. Berg’s $150,000 estimate for a crossing entirely

ignored the cost of property acquisition. Tr. 2092. In sharp contrast to Dr. Berg’s patently

unrealistic cost estimates, defendants’ expert, Carl Bradley, testified that the ADA-

compliant bridge he reviewed cost $7.5 million to build. Tr. 2093-94.9

As for the fence, Dr. Berg admitted that no Illinois law requires rail carriers to

“resort to fencing to attempt to keep trespassers off of their property.” Tr. 1306-07. He

acknowledged that chain-link fences could be cut and that children had, in fact, “cut

down the fence on the other side of the tracks [from where the accident occurred] many

9 Choate tried to undermine Bradley’s testimony by soliciting his reaction, over defendants’ objection, to an overpass in Summit, Illinois. Tr. 2095; PX102-103. The overpass in question was not ADA-compliant, and constructing ramps in place of the existing stairs would have been cost-prohibitive. Tr. 2121, 2123. Indeed, Bradley was of the view that the Summit overpass could not even be altered into an accessible design. Tr. 2126. Finally, Dr. Berg himself did not consider the Summit overpass when formulating his opinions about the feasibility of a crossing at Austin. Tr. 2125; see infra pp. 48-49.

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