Sirico v. Cotto

Supreme Court of New York, Trial Term · Evidence

EvidenceBest Evidence RuleExpert OpinionX-ray platessecondary evidenceoriginal documentmissing originalexpert testimony

Facts

Plaintiff called Dr. Stanley Wolfson, a radiologist, to support damages. He testified that he took X-rays of plaintiff's spine, studied them, and sent both his report and the X-ray plates to plaintiff's treating physician; at trial he had only a copy of his report, which he used to refresh his recollection. Outside the jury's presence, he testified that the X-rays showed flattening of the lumbar lordosis and scoliosis, leading him to conclude that plaintiff suffered consequences of a lumbar-sacral sprain. The treating physician did not testify, plaintiff did not produce the X-ray plates, and counsel gave no explanation for failing to produce them.

Issue

May a radiologist, without producing the X-ray plates or explaining their absence, testify to what he observed on the plates and give an opinion derived entirely from them? Does CPLR 4515 permit such testimony even though the underlying X-ray plates are not in evidence?

Rule

When a party seeks to prove the contents of a document, the best evidence rule requires production of the original; if the original is not produced, secondary evidence of its contents is admissible only after the proponent competently explains the failure to produce the original. An X-ray plate is a document for this purpose. Separately, an expert's opinion is admissible only if it is based on matter in the trial record; an opinion resting on information not in evidence must be excluded, and CPLR 4515 does not alter that requirement.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a negligence trial in Buffalo, Nora Levin calls Dr. Eli Mercer, a radiologist, to testify that a set of CT scan films showed a hairline fracture in her ankle. Dr. Mercer says he sent the original films to Nora's orthopedist months earlier and brought only his memory of what the films revealed; Nora offers no explanation for not producing the films.

Should the court admit Dr. Mercer's testimony describing what the CT scan films showed?

Explanation. When a party seeks to prove the contents of a document, the best evidence rule requires the original. The majority opinion treats an X-ray plate as a document because it is a physical embodiment of information, and the same principle applies to diagnostic image films offered for their contents. A witness's oral description is secondary evidence, admissible only after competent proof explaining nonproduction of the original. Here, no such explanation was offered, so the testimony should be excluded. (Derived from Sirico v. Cotto (n.d.).)