(dissenting). I respectfully dissent.
I am convinced that Judge Condon gave proper instructions to the jury. Plaintiffs presented their case on the theory that defendants’ conduct in the underlying suit maximized defendants’ chances of victory in that case. The conduct complained of lead plaintiffs to settle the underlying products liability-negligence claim for an amount less than a verdict which would have otherwise been returned.
Because the underlying case was settled, the *242trial court properly refused the defense request to instruct the jury concerning the liability or liabilities of those eight defendants, along with the defenses interposed by them. There was evidence before the jury as to possible verdict ranges in the underlying case. The court told the jurors that the jury in the underlying suit "would have been properly instructed as to plaintiffs’ theories of recovery, the damages and the defendants’ affirmative defenses and denial of any liability”. This was a proper instruction.
The instruction as given deprived the parties of nothing and added nothing to the jury’s burden. Plaintiffs’ case went to the jury on three theories: negligence, loss of economic advantage, and conflict of interest. Plaintiffs had to prove that defendants’ tortious activity forced a settlement at a lower amount than a jury might have awarded. The issue before the jury was not the liability, if any, of the defendants in the underlying suit.
In this Court’s only real look at the problem presented here, Basic Foods Industries, Inc v Grant, 107 Mich App 685; 310 NW2d 26 (1981), the Court concerned itself with the quantum of proof needed to sustain a verdict in a malpractice action against an attorney. In doing so, it limited the "suit within a suit” requirement, as a matter of sound public policy, to a limited number of situations where trial of the first case in the second case could not be avoided. In Basic Foods Industries, Inc, we said that a plaintiff in such an action need not prove that he would have prevailed completely in the former suit to sustain his burden of proof, rather the plaintiff must show only that the tortfeasor was negligent, or guilty of some other tortious conduct, and that the conduct complained of increased, or, as in this case, decreased, the amount of a jury award.
*243I believe my position is supported by looking at the jury verdict form that was returned by this jury. The jury’s answers to questions one and two clearly indicate that they found that the plaintiffs would not have prevailed at trial because of the missing copper tubing. Thus, any instruction that the trial court would have given as it concerned the eight defendants in the former proceedings would have been irrelevant. While it is true that this jury was asked to evaluate the plaintiffs’ case against those eight defendants and to say whether plaintiffs would or would not have been successful, depending on the presence or absence of the one key piece of evidence, the issue here was the tortious conduct of the defendants in this case and the damages to be awarded as a result of that conduct.
I agree that plaintiffs should have been allowed to call as an adverse party and to cross-examine the attorney who represented Northern Propane Gas Company at the underlying proceedings. However, the trial court’s error was harmless beyond a reasonable doubt. The record reflects that this attorney was on the witness stand for a great length of time. No attempt was made to impeach this witness under MRE 607. Under these circumstances, and especially when impeachment was not even attempted, no reversible error could result from the trial court’s ruling.
I conclude that the verdict was not legally and logically inconsistent. I do not agree with my brothers that the jury found Continental Insurance Company liable for negligently selecting Choi as an engineering expert. This may have been the jury’s finding, but, also, it may not have been its finding. The jury’s inquiry regarding negligence of Continental Insurance Company was not limited *244solely to the contention that this defendant was negligent in selecting an unqualified expert witness. The jury was also advised of plaintiffs other allegations. Additionally, plaintiffs claimed that Continental refused to provide a copy of the report of Mr. Choi to plaintiffs’ attorney, and that this caused delay which in turn resulted in plaintiffs’ loss. Moreover, plaintiffs alleged that Continental wrongfully dealt with the conflicting interest of plaintiffs and Northern Propane and that Continental negligently made representations to the trial court at the hearing on the motions to produce.
I would affirm.