On appeal from Superior Court of New Jersey, Law Division, Burlington County.
King, Ashbey and Skillman. The opinion of the court was delivered by Skillman, J.A.D.
[229 NJSuper Page 38] Plaintiff suffered a fractured wrist on January 13, 1982, which he alleges defendant Dr. Eugene Cohen negligently failed to diagnose.*fn1 Plaintiff's X-rays, which Dr. Cohen examined on January 13th, were sent to Dr. Paul Friedman for evaluation on plaintiff's behalf. Dr. Friedman concluded that the X-rays showed evidence of a fractured wrist. However, Dr. Friedman lost or misplaced the X-rays. Consequently, they are
unavailable for use at trial. In addition, Dr. Cohen has been deprived of the opportunity to have an expert review the X-rays and render an opinion based thereon.
The trial court granted Dr. Cohen's motion to preclude plaintiff from presenting testimony regarding the contents of the misplaced X-rays, concluding that the absence of the X-rays deprived Dr. Cohen of a fair opportunity to defend the action. Subsequently, the trial court granted Dr. Cohen's motion for summary judgment on the grounds that without the X-rays or testimony regarding the contents of the X-rays, plaintiff lacked evidence of malpractice by Dr. Cohen.
We conclude that the existing record does not justify the exclusion of testimony regarding the contents of the misplaced X-rays. Therefore, we reverse and remand.
Unless the subject matter of proposed evidence is a "writing" subject to the "best evidence" rule, Evid.R. 70, the law of evidence does not impose any requirement that the proponent present the "original evidence" rather than testimony describing its contents or appearance. McCormick, Evidence, § 229 at 703 (3rd ed. 1984); see United States v. Duffy, 454 F.2d 809 (5th Cir.1972); Chandler v. United States, 318 F.2d 356 (10th Cir.1963). Therefore, unless an X-ray is a "writing" as defined by Evid.R. 1(13),*fn2 New Jersey's rules of evidence would impose no limitation upon the presentation of
testimony regarding its contents rather than the X-ray itself. Moreover, even if an X-ray is considered a "writing" subject to the best evidence rule, testimony regarding its contents would be admissible upon a showing that the X-ray has been lost or destroyed without fraudulent intent on the part of the party offering the evidence. See Evid.R. 70(1)(a).
The trial court's comments in granting Dr. Cohen's motion to bar testimony regarding the X-rays were rather cryptic. However, the court apparently based its ruling on general principles of fairness rather than any specific evidence rule. The trial court viewed the absence of the X-rays as severely prejudicing Dr. Cohen's ability to defend the action and thus concluded that plaintiff should suffer the adverse consequences of his expert's loss of the X-rays.
We agree that a party to civil litigation who negligently loses evidence may be barred from presenting testimony regarding that evidence. The negligent loss of evidence is comparable to a party's failure to comply with discovery obligations, which may result in an order barring the introduction of evidence at trial. R. 4:23-2(b)(2); see Clark v. Fog Contracting Co., 125 N.J. Super. 159 (App.Div.1973), certif. den. 64 N.J. 319 (1973). Indeed, the prejudice to a party from the loss of evidence may be even greater than the prejudice resulting from a delay in the production of evidence due to a failure to comply with discovery obligations.
However, testimony regarding evidence which a party has negligently lost should be barred only if substantial prejudice to the other party would result. As when a party has failed to comply with its discovery obligations, a party who has negligently lost evidence should be given his day in court unless the other party would suffer undue prejudice. Cf. Westphal v. Guarino, 163 N.J. Super. 139, 146 (App.Div.1978), aff'd 78 N.J. 308 (1978) ("This accords with the overriding objective of giving the ...