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Rule 213 declarations pertaining to Dr. Berg never even claimed expertise in these areas.

There was no basis for allowing Dr. Berg to offer opinion testimony about such matters,

and the trial court should have sustained defendants’ objections to it. Choate’s assertion

that Dr. Berg’s testimony merely was a matter of “common sense” (Tr. 691) or “common

knowledge” (Tr. 1244) was no basis for admitting it, since “[e]xpert testimony is

improper when the inquiry regards an area within the common knowledge of the average

juror.” Bachman v. Gen. Motors Corp., 332 Ill. App. 3d 760, 784 (4th Dist. 2002)

(internal quotation marks omitted).

The erroneous admission of Dr. Berg’s testimony was particularly prejudicial

because it was a “legal opinion[] that invaded the province of the trial court” insofar as it

related to what obvious dangers a child of Choate’s age could reasonably be expected to

appreciate (Todd W., 394 Ill. App. 3d at 800), and it impermissibly sought to undermine

the import of Choate’s judicial admission that he subjectively appreciated the

dangerousness of moving trains (see supra pp. 42-46).


The Trial Court Erred In Allowing Choate To Cross-Examine Defendants’ Engineering Expert With A Photograph For Which He Never Established A Foundation.

Carl Bradley, defendants’ engineering expert, explained that Dr. Berg’s proposed

improvements would neither be effective nor feasibly implementable. In particular,

Bradley testified that it was unlikely that any channeling chain-link fence would remain

intact, given the evidence that holes were routinely cut in such fences. Tr. 2090-91.

During Bradley’s cross-examination, and over defendants’ objection, Choate exhibited a

picture of a concrete barrier wall, which Bradley agreed might not be susceptible to being

cut. Tr. 2095, 2115; PX78. But Choate presented no evidence regarding how much the

concrete wall cost, where it was located, or who constructed it. Tr. 2127-28. Moreover,

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