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Gorostieta v. Parkinson12/15/2000
rted President Smith's testimony. But, as the advisory committee note makes clear, Rule 1002 [of the Federal Rules of Evidence] applies not when a piece of evidence sought to be introduced has been somewhere recorded in writing but when it is that written record itself that the party seeks to prove. Id. at 38 (citations omitted).
The court's opinion is even more directly on point because, as it notes in a footnote, the plaintiff in that case later "unsuccessfully sought to introduce the documentation into evidence." Id.; see also Gonzalez v. Hoffman, 175 N.W.2d 475 (Mich. Ct. App. 1968) (testimony of expenditures for prescription medication admissible without receipts).
I understand the trial court's frustration with the pre-trial behavior of plaintiffs' counsel in this case, and I agree that the preclusion of exhibits was appropriate. However, the trial court's erroneous application of the best evidence rule, now sustained by the majority, improperly prevented Marie Gorostieta from testifying to facts of which she had personal knowledge: namely, that she had paid more than $11,000 for the treatment her daughter's injuries had required. Dr. Larsen had already detailed the nature and necessity of the treatment, and Ms. Gorostieta could certainly have been cross-examined on the accuracy of her recollection. Further, defendant would have been allowed to introduce testimony that the expenses were unreasonable. But if Ms. Gorostieta was billed and paid for the medical expenses, she was entitled to tell the jury so. The error here deprived these plaintiffs of an opportunity to recover for significant damage caused by defendant. I would reverse.
Chief Justice Howe concurs in Justice Durham's dissenting opinion.
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