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Gorostieta v. Parkinson12/15/2000
Ross, 573 P.2d 1288, 1289-90 (Utah 1978) (holding that trial court erred in allowing police officer to testify to contents of telephone records that were not introduced into evidence). To allow a witness to so testify would present directly to the jury unsubstantiated information contained in the excluded exhibits. See Intermountain Farmers, 574 P.2d at 1165-66; Ross, 573 P.2d at 1290.
The best evidence rule provides that " o prove the content of a writing, . . . the original writing . . . is required, except as otherwise provided in these rules or by other rules adopted by the Supreme Court of this State or by Statute." Utah R. Evid. 1002. The purpose of this rule is primarily to prevent mistake or fraud. See 29A Am. Jur. 2d Evidence § 1049, at 511 (1994); 32A C.J.S. Evidence § 1061 (1996); 6 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 1002.03 (Joseph M. McLaughlin, ed., Matthew Bender 2d ed. 1997) [hereinafter Weinstein's]; 4 Wigmore on Evidence § 1179, at 417 (James H. Chadbourn ed., rev. 1972). Therefore, when the content of a document is material to the matter to be proved, the original writing must be produced unless it is unavailable due to an exception and its absence is not attributable to the fault of the party seeking to use it as proof of the contents therein. See Am. Jur. 2d supra, § 1049, at 510; C.J.S. supra, §§ 1057, 1059.
The rules of evidence provide for exceptions in cases where the originals are lost or destroyed, the original is not obtainable, the original is in the possession of the opponent, or the writing concerns a collateral matter. See Utah R. Evid. 1004. Nevertheless, even if an original document meets one of the exceptions provided, secondary evidence will not be allowed if the proponent of the evidence was responsible for its absence. See Weinstein's § 1004.11 . This is due to the extensive risk that the proponent might offer false or misleading secondary evidence. See id.
In the instant case, Dr. Larsen, who was the treating physician, was called by the Gorostietas to testify. Because we have been provided with only partial transcripts, there is no record of his testimony. However, he was apparently never asked about the medical charges.
Also due to the incompleteness of the record, it is unclear as to what testimony Marie Gorostieta would have provided. However, it appears from the partial transcripts that she was to be asked to provide testimony as to the reasonableness of the charges by reading the contents of the medical bills that had not been admitted into evidence.
The Utah Rules of Evidence and Utah case law require that the medical bills themselves be used to prove their contents. The exceptions to the best evidence rule are not applicable in this case. Furthermore, where a party has been properly sanctioned by the trial court, and thereby precluded from admitting any exhibits, we cannot allow the sanctioned party to then circumvent the law by reading into evidence the contents of the exhibits that have been precluded. This would reward the sanctioned party by putting it into a stronger position, whereby it could be allowed to mislead the trier of fact as to the contents of the inadmissible writing. Therefore, we hold that the trial court did not err in refusing to allow Marie Gorostieta to testify as to the amounts contained in the medical bills.
IV. JURY INSTRUCTIONS
The Gorostietas allege that the trial court erred in removing a sentence from a requested jury instruction that had been taken verbatim from section 41-6-80 of the Utah Code. In addition, they argue that the court erred in giving jury instructions 16, 21, 22, 24, 25, 27, and
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