dissenting:
153 I dissent from that portion of the majority opinion construing the best evidence rule, and from its conclusion that Ms. Gorost-ieta was to be asked to read the contents of the medical bills into evidence.
154 First, the trial transcript shows that plaintiffs' counsel told the court that "as far as the bills would go is that I would hand, you know, I would have her refresh her memory from the bills as to the amounts." There was no intent or request to permit Marie Gorostieta to read their contents.
'I 55 Second, the best evidence rule applies only when a party is seeking to prove "the content of a writing." Here, plaintiffs were seeking to prove the amount actually expended for treatment of serious injuries, not the content of the bills received from providers. The majority correctly cites 29A Am. Jur.2d Evidence § 1049 (1994) for the proposition that "[the underlying purpose of the best evidence rule is the prevention of fraud or mistake in proof of the contents of a writing." However, it does not cite the next principle summarized in § 1049: "According ly, the rule does not preclude a witness from testifying to facts recorded in a writing from his or her personal knowledge." The annotations to that section include numerous state and federal cases, one of which amply illustrates the difference between proving what a writing says and proof of an independent fact of which a witness has personal knowledge. In R & R Associates, Inc. v. Visual Scene, Inc., 726 F2d 36 (1st Cir.1984), the court reviewed the testimony of a corporate executive about the cost to his company of defective merchandise obtained from the defendant:
[When President Smith testified that it cost plaintiff $31,850.19 to procure the allegedly defective merchandise, he was in no way attempting 'to prove the contents of a writing' Rather, he was attempting by his own direct testimony to prove a particular fact what it cost R & R to procure the merchandise. To be sure, plaintiff had in its possession written documentation that presumably supported 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).
156 The court's opinion is éven more directly on point because, as it notes in a footnote, the plaintiff in that case later "unsuccessfully sought to introduce the doeu-mentation into evidence." Id.; see also Gonzales v. Hoffman, 157 NW.2d 475 (Mich.Ct. App.1968) (testimony of expenditures for pre-seription medication admissible without receipts).
157 1 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 erroncous 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. *1122Dr. Larsen had already detailed the nature and necessity of the treatment, and Ms. Go-rostieta 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.
1 58 Chief Justice HOWE concurs in Justice DURHAM'S dissenting opinion.