## Facts

- In a personal-injury action, the plaintiff sought damages for an alleged spinal injury.
- The plaintiff called a radiologist to interpret spinal X-rays and relate the findings to a lumbar-sacral sprain.
- The radiologist had previously reviewed the X-ray plates and prepared a written report.
- At trial, the radiologist had only his report and proposed to use it to refresh recollection.
- The X-ray plates were not produced in court, were not offered into evidence, and their nonproduction was not satisfactorily explained.
- The defendant objected that testimony describing what the X-rays showed would violate the best evidence rule.

## Issues

1. Whether a radiologist may testify to the contents and diagnostic implications of X-ray films when the films are not produced or admitted and no adequate explanation is given for their absence.
2. Whether expert opinion testimony may be admitted when it effectively proves the contents of unproduced evidence that would be required under the best evidence rule.

## Decision

- The court sustained the defendant’s objection.
- The court excluded the radiologist’s testimony describing what the X-rays showed and opinions drawn directly from those X-rays.
- The court reasoned that admitting such testimony would permit proof of the X-rays’ contents without producing the X-rays, placing the expert’s testimony outside the evidentiary record.

## Legal Principles

- When the contents of an item that embodies information (including X-ray films) are in issue, the best evidence rule generally requires production of the original unless its absence is satisfactorily accounted for.
- A party may not use expert testimony to circumvent the best evidence rule by proving the contents of an unproduced item through the expert’s recollection or report.
- An expert’s function is to assist the fact-finder in understanding evidence in the record; an expert may not base trial testimony on material that the jury cannot examine because it was not admitted.
- A writing used to refresh recollection does not, by itself, supply a substitute for required primary evidence when the claim depends on the contents of an unproduced item.

## Conclusion

The court held that, absent production of the X-ray films or a satisfactory explanation for their absence, the plaintiff could not introduce radiological testimony describing the X-rays’ contents or conclusions drawn from them, because doing so would evade the best evidence rule and rest on material not in evidence.


Sirico v. Cotto, 67 Misc. 2d 636, 324 N.Y.S.2d 483 (Civ. Ct. N.Y.C. 1971)