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Dr. Berg never considered such a barrier wall design: He recommended only chain-link

fencing. Tr. 1309, 2127. Choate’s use of the photograph was an “abuse of cross-

examination” because a party is not entitled to present his theory of the case through

cross-examination—particularly by relying on purported “facts” not in evidence and

“never discussed or even mentioned on direct examination.” See Anderson v. Human

Rights Comm’n, 314 Ill. App. 3d 35, 44 (1st Dist. 2000). The circuit court’s decision to

allow the introduction of this photograph despite the fact that Choate had “not provided a

proper foundation” constitutes reversible error, particularly in light of its “acknowledged

significance,” which Choate played up in his closing argument (Tr. 2444). See Apa v.

Nat’l Bank of Commerce, 374 Ill. App. 3d 1082, 1088 (1st Dist. 2007).


A New Trial Is Warranted Because The Verdict Was Against The Manifest Weight Of The Evidence.

The jury’s findings of liability against defendants and of 40 percent comparative

fault were “contrary to the manifest weight of the evidence” because “the opposite

conclusion is clearly evident” on the basis of the record. York, 222 Ill. 2d at 178-79.

“[T]he evidentiary situation that would require a new trial” is not nearly as conclusive as

the standard required to obtain “entry of a judgment” n.o.v. Petre v. Cardiovascular

Consultants, S.C., 373 Ill. App. 3d 929, 939 (1st Dist. 2007). Even if this Court concludes

that defendants are not entitled to judgment, it should overturn the jury’s verdict and

award defendants a new trial. Mizowek v. DeFranco, 64 Ill. 2d 303, 310-11 (1976). The

manifest weight of the evidence shows both that Choate fully appreciated the danger of

moving trains (see supra pp. 27-32) and that defendants could not have inexpensively

eliminated the possibility that he would nonetheless embrace that risk (see supra pp. 34-

  • 42)

    . Moreover, the jury’s comparative fault determination was so at odds with the

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