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
- 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.
- 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.