In the case of Sirico v. Cotto (67 Misc.2d 636, 324
N.Y.S.2d 483)), Sirico claimed to have been injured by Cotto and sued for
damaged. At trial, she called her doctor (Wolfson) testify about what he saw
in some x-rays he took of Sirico's spine. However, he did not have the x-rays.
The Court found that under FRE 1001(2) (aka the best
evidence rule), a party that wishes to admit a document must offer
into evidence the original document. If that document is not available,
then the party must present secondary evidence (like a photocopy), along
with an explanation of why the original is not available. In this case,
Sirico did not have the original x-rays and had no explanation of what
happened to them. Therefore her secondary evidence was excluded.
The Court noted that a "document" is defined as
any physical embodiment of information or ideas, including a letter, a
contract, a receipt, a book of account, a blueprint, or even an x-ray
Btw, even a copy of the x-ray would have been admissible
to the same extent as the original, as per FRE 1003.
The Advisory Committee Notes to FRE 1002 indicate
that, "FRE 703 allows an expert to give an opinion based on
matters not in evidence, and the present rule must be read as being
limited accordingly in its application."
Basically, the expert may be able to give an opinion on
otherwise inadmissible evidence if it is reasonable to do so within the field