Issue:

Does the defendant have the right, under the best evidence rule to enter the radiologist’s testimony and written report instead of the actual X-ray which was lost or does the Plaintiff have the right to keep the testimony and report barred from evidence?

Background:

The plaintiff applied for a life insurance policy with the defendant life insurance company. The defendant wanted to make sure that the plaintiff was an “acceptable heath risk” due to an underlying heart condition on plaintiff’s medical history. On March 20, the plaintiff went for a physical exam and X-ray. In a written report the radiologist confirmed that the plaintiff did have an enlarged heart. On April 9, the plaintiff died from an unrelated cause of death. On April 9, the defendant had not accepted or rejected the policy application, at the time of death the defendant did reject the application and returned the paid premium. The plaintiff’s wife has filed a cause of action against the insurance company for the insurance proceeds. Defendant is claiming that at the time of the plaintiff’s application he was not an acceptable heath risk based on his enlarged heart therefore he was uninsurable. The defendant during discovery and trial was unable to find the X-ray and defense counsel is wants to introduce the radiologist’s written report and testimony establish that the plaintiff’s heart was enlarged. The plaintiff wants this precluded as evidence based the best evidence rule requires the X-ray to be present.

Applicable Law:

USCS Fed Rules Evid R 1004Rule 1004. Admissibility of Other Evidence of Content -An original is not required and other evidence of the content of writing, recording, or photograph is admissible if:

(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith

Schozer v. William Penn Life Ins. Co., 84 N.Y.2d 639 (N.Y. 1994) Under a long-recognized exception to the best evidence rule, secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith. Best evidence rule simply requires the production of an original writing where its contents are in dispute and sought to be proven. Under a long-recognized exception to the best evidence rule, secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith. Why Did you repeat this? Loss may be established upon a showing of a diligent search in the location where the document was last known to have been kept, and through the testimony of the person who last had custody of the original.

Cole v. Canno, 168 A.D. 178 (N.Y. App. Div. 1915) Secondary evidence as to the contents of a letter necessary to sustain plaintiff's cause of action for breach of contract is only admissible when such is the best evidence attainable after reasonable efforts to obtain the original are exhausted. he party alleging the loss of a material paper, where such proof is necessary for the purpose of giving secondary evidence of its contents, must show that he has in good faith exhausted, to a reasonable degree, all the sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him. On appeal, the court held that because the courts below improperly concluded that the best evidence rule established an absolute bar to the admission of that secondary evidence, without permitting the insurer to establish any excuse for its nonproduction, a new trial was required.

As in the case of any other lost original, once the absence of an X-ray