# Petition for Writ of Certiorari — Firestone Tire & Rubber Co. v. Cousineau > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0772%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 474 U.S. 971 ## Text VUPICIIS OVUM, Vite | 85-4 82- | FIDEDB | SEP 21 1985 JOSEPH F. SPANIOL, JR. No. CLE v*% | ~ee IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1985 THE FIRESTONE TIRE & RUBBER COMPANY, Petitioner, Vv. THELMA COUSINEAU, PERSONAL REPRESENTATIVE OF THE ESTATE OF MARK COUSINEAU, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE MICHIGAN COURT OF APPEALS BUTZEL LONG GUST KLEIN & VAN ZILE A Professional Corporation By: Xhafer Orhan (Counsel of Record) Daniel Patrick Malone William J. Champion III Carey A. DeWitt 188i First National Building Detroit, Michigan 48226 Telephone: (313) 963-8142 Counsel for Petitioner, The Firestone Tire & Rubber Company Of Counsel: John P. Palumbo Assistant General Counsel The Firestone Tire & Rubber Company THE AMERICAN PRINTING COMPANY 1200 WEST FORT STREET, DETROIT, MICHIGAN 48226 — (313) 963-9310 i QUESTION PRESENTED May a State Constitutionally Impose Tort Liability on Mem- bers of an Industry for Their Joint Activity in Petitioning an Agency of the United States Government for Adoption of a Safety Standard? li TABLE OF CONTENTS Question Presented ........... cece cece eee eee eeees Table of Authorities 2.0.5. ccscesneusscseuaseeewese Proceedings Below ............ eee cceeneeeenseeees Jurie@ictiom oo. uvacs0c008505508 eee Constitutional Provisions Involved ...............+5: Statement Of The Case ......cccsscscccnssatecsnss Reasons For Granting The Writ ............-..0005: Petitioner's Participation In A Joint Campaign To Persuade OSHA To Adopt An Industry Safety Stan- dard May Not Be The Basis Oi A Tortious “Con- cert Of Action” Claim ........cccccnsccscscseess A. Petitioner’s Participation In A Joint Cam- paign To Persuade OSHA To Adopt An Industry Safety Standard Was Protected First Amendment Activity ............-5. B. The Decision Of The Michigan Court Of Appeals Constitutes A Clear Infringement Upon Petitioner's First Amendment Right To Petition ......s«)ss0see ee eee ees C. The Michigan Court’s Distinction Between The Imposition Of Liability For First Amendment Activity Itself And A Finding That Such Activity May “Be Interpreted As A Cooperative Effort To Avoid Respon- sibility” For Risks Completely Ignores The Very Protected Nature Of Such A “Cooper- ative Effort.” ...cscccuepenbeeseeeeeanaes D. The Michigan Court of Appeals’s January 2, 1985 Amendments To Its August 9, !984 Opinion Constitute An Impermissible Pre- textual Afterthought .........cccceeceeess i4 18 S. Conclusion TABLE OF CONTENTS—(Cont’d) Page In Any Event, The Court of Appeals’s Amendments Relating To Exchange of Chart Information As Concerted Activity Clearly Failed To Eliminate The Decision’s Constitu- tional Infirmity Because The Record Is Totally Devoid Of Any Evidence That This Accident Involved A Mismatching Of More Than One Manufacturer's Components .... So a ee eee S CES SC RARE OK OA we Kas uA id iv TABLE OF AUTHORITIES Cases Page Abel v. Eli Lilly & Co., 418 Mich. 311, 343 N.W.2d 164, cert. Gented, V5 S. Ct. 12S GRO) 2 ccccccaccscsss 6, 15 Alma Society, Inc. v. Mellon, 601 F.2d 1225 (2d Cir.), corte. Getied, GAG UB. DoS CHP TEe oo uc ccc secsccenes 25 California Motor Transport Co. v. Trucking Uniimited, OE Bee ee Ec 6s Ra hb dnnsenbbareveceseuss 12, 18 Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974) ...... SSaWecbeescausaecsasenecsensess mo™me Cousineau v. Ford Motor Co., 140 Mich. App. 19, 363 i * & at | eee eT eee re ee passim Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) Cruz v. Beto, 405 U.S. 319 (per curiam, 1972) ...... 12 Eastern Railroad President's Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) 6, 8, 12, 18, 20 Edwards v. South Carolina, 372 U.S. 229 (1963) .... 12 First Natl. Bank of Omaha v. Marquette Natl. Bank of Minneapolis, 482 F. Supp. 514, (D. Minn. 1979), aff'd, 636 F.2d 195 (8th Cir. 1980), cert. denied, 450 OD... See COED s ose canea cea ERRASEA | CXR DERKE eee 13 Gay Student Services v. Texas A&M University, 737 F.2d 1317 (Sth Cir.), cert. denied and app. dismissed, 2 See fee Tere erry 25 Greenwood Utilities v. Mississippi Power Co., 751 F.2d tf, Ge B . weer Perr ce ery Tree re 26 Havoco of America Limited v. Hollowbow, 702 F.2d ee Come Ge I ip oo os 0b nae cc kcan ses canetares ss 12 Ottensmeyer v. Chesapeake & Potomac Tel. Co., 756 Pe ee ED I UD a hxc cane cece ceaveccctsenes 13 Pennwalt Corp. v. Zenith Laboratories, Inc., 472. F. Supp. 413 (E.D. Mich. 1979), appeal dismissed, 615 6 Be Fee Brrr rer rete 13 Searle v. Johnson, 646 P.2d 682 (Utah 1982)........ 13 \ v TABLE OF AUTHORITIES — Continued Cases Page _ Sherrard v. Hull, 53 Md. App. 553, 456 A.2d 59, affd, 296 Md. 189, 460 A.2d 601 (1983)................. 13 Sierra Club v. Butz, 349 F. Supp. 934 (N.D. Cal. 1972) 13 Southland Corp. v. Keating, 465 U.S. 1 (1984) ...... lI State of Missouri v. National Organization For Women, Inc., 467 F. Supp 289 (W.D. Mo. 1979), aff'd, 620 F.2d 1301 (8th Cir.), cert. denied, 449 U.S. eee N40 500.5445 k0 4556455 See eee ee 12-13 Stern v. United States Gypsum, Inc., 547 F.2d 1329 (7th Cir.), cert. denied, 434 U.S 975 (1977) ........ 12 Thomas v. Collins, 323 U.S. 516 (1945).........0.... lI United Mine Workers v. Pennington, 381 U.S. 657 CRUE 64 0:05-4.5 09:5404440-0%0604 5 eee 6, 8, 12 United Mine Workers of America, Dist. 12 v. Illinois State Bar Assn., 389 U.S. 217 (1967) ............. li United States v. Cruikshank, 92 U.S. 542 (1876) .... 12 Webb v. Fury, 282 S.E.2d 28 (W. Va. 1981) ......... 13 Young v. American Mini Theaters, 427 U.S. 50 (1976) 25 United States Constitution: PEE © ha 640554045 behancdee lee 3 RE SE kk nbn skaibankvcersbecepueee 3 United States Statutes: Se a ok. bia os beck eet ee eee 2 Miscellaneous: 45 Fed. Reg. No. 20 (January 29, 1980), pp. 6713-17 (effective April 28, 1980) .... 0... cc cw caccccccee 5, 16 49 Fed. Reg. No. 24 (February 3, 1984), p. 4341 ..... 5 Fischel, Anti-trust Liability for Attempts to Influence Government Action: The Basis and Limits of the Noerr-Pennington Doctrine, 45 U. Chi. L. Rev. 80 TED os xedves caectetebbenedacekeeealoeae 13-14 No. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1985 THE FIRESTONE Tire & RUBBER COMPANY, Petitioner. V. THELMA COUSINEAU, PERSONAL REPRESENTATIVE OF THE ESTATE OF MARK COUSINEAU, Rejpondent. PETITION FOR A WRIT OF CERTIORARI TO THE MICHIGAN COURT OF APPEALS THE FIRESTONE TIRE & RUBBER COMPANY. Peti- tioner herein, prays that a Writ of Certiorari issue to the Michigan Court of Appeals to review whether Petitioner's protected first amendment joint petitioning activity may con- stitute the basis of a “concert of action” tort claim. PROCEEDINGS BELOW Respondent commenced this action in the Circuit Court for the County of Wayne, Michigan on October 29, 1980. On December 10, 1982, the trial court entered an Order, attached as Appendix A, granting Petitioner's Motion for Summary Judgment. Plaintiff-Respondent appealed the trial court’s decision of right to the Michigan Court of Appeals. On August 9, 1984, the Michigan Court of Appeals, in an unpublished per curiam opinion (hereinafter “first Opin- ion”), attached as Appendix B, reversed the trial court's entry of summary judgment in favor of Petitioner and 2 remanded the case, solely on the issue of tortious concert of action, as to four defendants,' to the trial court. On December 26, 1984, Petitioner applied to the Michi- gan Supreme Court for Leave to Appeal the decision of the Michigan Court of Appeals.- On January 2. 1985, the Michigan Court of Appeals released to the parties an “Amended Opinion” (hereinafter “Amended Opinion”), attached as Appendix C, p. 17a, 140 Mich. App. 19, 363 N.W.2d 721 (1985). On fanuary 22, 1985, Petitioner filed a Supplemental Brief t its December 26. 1984 Application for Leave to Appeal, ac iressing the issues raised by the Michigan Court of Appeals’s “Amended Opinion.” On June 24, 1985, the Michigan Supreme Court issued an Order, attached as Appendix D, denying Petitioner's Application for Leave to Appeal the decision of the Michi- gan Court of Appeals. JURISDICTION The Michigan Supreme Court denied Petitioner's Application for Leave to Appeal the decision of the Michi- gan Court of Appeals on June 24, 1985. This Petition for Certiorari is thus being filed within 90 days after the Order of the Michigan Supreme Court denying Petitioner's Application for Leave to Appeal. The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(3). ' The Defendants in the action in the trial court had been Petitioner (Firestone). International Harvester Company. Goodyear Tire and Rubber Company. Kelsey Hayes Corporation, Budd Corporation, Fruehauf Cor- poration, and AMF. Inc. The Michigan Court of Appeals reversed only as to Firestone, Goodyear. Kelsey Hayes, and Budd. 2? Petitioner (Firestone). Budd Corporation, and Goodyear applied to the Michigan Supreme Court for Leave to Appeal. All such applications were denied. 3 CONSTITUTIONAL PROVISIONS INVOLVED United States Constitution, Amendment I: Congress shall make no law respecting an establish- ment of religion, or prohibiting the free exercise thereof: or abridging the freedom of speech, or of the press: or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. United States Constitution, Amendment XIV. Section |: All persons born or naturalized in the United States. and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law: nor deny to any person within its jurisdiction the equal protection of the laws. STATEMENT OF THE CASE This products hability, wrongful death action arose out of a tube-type truck tire and multi-piece truck wheel assem- bly? accident that occurred on May 8, 1979. Plaintiff- Respondent does not now have, and has never had, posses- sion of the component parts of the tube-type tire and multi- ’ The Court may find helpful a brief description of tube-type tire multi-piece truck wheels. The photographs attached as Appendix E, provided in lower court proceedings as. e.g., attachment C to Petitioner's Application for Leave to Appeai to the Michigan Supreme Court, depict a tube-type tire three-piece truck wheel in two stages of assembly: com- pletely disassembled and completely assembled. Essentially, the wheel is designed as “multi-piece” because of the stiffness and construction of tube-type tires of the size here involved, i.e.. the wheel must be made to come apart so that the tire can be mounted on it and the assembly can be used on a truck. As of the date of this Petition for Certiorari, Petitioner knows of no wheel manufacturer in the world that has invented a single piece wheel (such as is used for passenger car tires) upon which a tube- type truck tire of the size involved in this case can physically be mounted and operated on the type of truck involved. (Footnote continued on next page) 4 piece wheel assembly involved in her decedent's accident, nor any other evidence from which the type of components or their manufacturer(s) could be ascertained. The wheel components were misplaced or destroyed after the accident. See Cousineau v. Ford Motor Co., Appendix C, p 17a, 140 Mich App. 19, 24, 363 N.W.2d 721, 725 (1985). Respondent concedes that no one will ever be able to identify the lost “accident wheel” assembly or the manufacturer(s) of its component parts. /d. at p. 19a, 140 Mich. App. at 25, 363 N.W.2d at 725. Respondent's inability to identify the multi-piece wheel components involved in this case or their manufacturer(s) would have proved fatal to recovery under traditional prod- ucts liability law. Thus. Respondent selected and sued some (but not all) manufacturers of multi-piece wheel compo- nents, including Petitioner, alleging. inter alia, a claim based upon Petitioner and its Co-Defendants’ purported tortious “concerted” activity. The only alleged “concerted activity” identified by Respondent took place during the period 1976 through 1980 and consisted of the activities of certain named wheel com- ponent manufacturers. including Petitioner, in petitioning a United States Government agency. the Occupational Safety and Health Administration. for the adoption of an OSHA (Footnote continued from previous page) A tube-type truck tire muiti-piece wheel design employs a tongue and groove technology. In a three-piece wheel the tongue or “heel” of a “lock ring” (see Appendix E. Photograph B) is seated in a groove on the “rim base.” Metal interference retains the “lock ring” and “side ring” (flange) in place when the force produced by inflation pressure in the tire tube clamps the components firmly together. The result is a metal-to-metal interference fit or geometric wedging of the components. Once the decision to use a tube-type tire of the size involved is made by the truck manufacture:. the ultimate consumer. or the user of the truck. a multi-piece wheel is required. Because the tire cannot be cut in half and still hold the tube and restrain the enormous force generated at 80 pounds of inflation (force on the magnitude of 24.000 pounds and higher) the wheel. made of steel. must be capable of coming apart and being reassembled about the tire. The wheel assembly therefore neces- sarily consists of more than one piece or component. Thus. the tube-type tire “multi-piece wheel” was created. Si PhD eC LE ene: eo 5 work-place safety standard governing the servicing of multi- piece wheels. OSHA in fact adopted such a safety standard, effective April 28. 1980, for “servicing multi-piece wheels.” See Appendix F,4 p. 37a, 45 Fed. Reg. No. 20 (Jan. 29, 1980), pp. 6713-17 (eff. April 28, 1980). Following extensive discovery, Petitioner and certain Co- Defendants, see supra, footnote 1, moved for entry of sum- mary judgment in their favor pursuant to Michigan General Court Rule 1963, 117. On December 10. 1982, after first granting Respondent additional time to conduct discovery for the purpose of identification of the product(s) and its/ their manufacturer(s) and obtaining the consensus of all par- ties, including Respondent, that such identification could never be made, the trial court granted Petitioner and its moving Co-Defendants’ motions for summary judgment on Respondent's First and Second Amended Complaints. which had sought recovery on the basis of alternative liability and concerted action. See attached Appendix A. Respondent filed Notice and Claim of Appeal with the Michigan Court of Appeals on January 28. 1983 and. on July 12. 1983, filed her Appeal Brief. Respondent argued that the trial court had improperly entered summary judgment. Petitioner filed its Brief with the Michigan Court of Appeals on September 20, 1983. arguing that reversal of the trial court’s entry of summary judgment for Petitioner would be improper. Among other arguments, Petitioner contended that its participation with other members of the industry in a campaign to persuade OSHA to adopt a safety standard for servicing multi-piece rims could not be considered tor- tious because the first amendment to the United States Con- stitution protected that activity. See Petitioner's Brief on 4+ The OSHA safety standard has been extremely effective in prevent- ing accidents: “A review of the injury producing accidents investigated by OSHA since promulgating the multi-piece rim wheel servicing standard indicates that there has been a 70 to 80 percent reduction in multi-piece rim wheel servicing injuries.” See Appendix G, 49 Fed. Reg. No. 24. Feb. 3, 1984. p. 4341. 6 Appeal to the Michigan Court of Appeals, pp. 25, 27-28. Specifically, Petitioner argued in its Brief that this Court's decisions in Eastern Railroad President's Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), and United Mine Workers v. Penningion, 381 U.S. 657 (1965), recognized the protected nature of Petitioner's petitioning activity. Brief at pp. 27-28; see also id., p. 25, footnote 7 (“If recognized. Plaintiff's allegations would amount to no more or less than imposition of liability for exercise of sacred first amendment rights of citizens. individually or collectively, to petition their government). On August 9, 1984, the Michigan Court of Appeals. in an unpublished per curiam opinion (Appendix B). affirmed the trial court’s entry of summary judgment in favor of those defendants that manufactured vehicles and Defendant AMF. Inc.. one of the wheel manufacturer defendants. The court of appeals reversed. however, the trial court’s entry of sum- mary judgment in favor of the remaining wheel manufacturer Defendants. including Petitioner. insofar as Plaintiff-Respon- dent sought recovery on a “concert of action” theory. In doing so. the court relied heavily on the Michigan Supreme Court’s decision in Abel v. Eli Lilly & Co., 418 Mich, 31}. 343 N.W.2d 164. cert. denied, 105 S. Ct. 123 (1984). In reaching its decision, the court of appeals determined: (1) Plaintiff had no idea who manufactured the accident wheel components at issue. See Appendix B. at 4a-Sa: (2) Plaintiff had no idea when the accident wheel com- ponents were manufactured. See id.; (3) The multi-piece wheel components at issue did not disappear; nor were their sources rendered uniden- tifiable by Defendants’ conduct. Jd. at 9a: (4) Unlike medication, which is irretrievable as evidence after use. the wheel components at issue were kept dee lS 7 for some tit * ater the accident and could have been identified it available. /d.; (5) Plaintiff had not joined all of the wheel component manufacturers who could have made one or more of the accident components. /d. at Sa: (6) AMF was one of the major manufacturers of three- piece type rim components. /d.; (7) Plaintiff made no claim and submitted no evidence to connect AMF [or any non-defendant manufacturer(s) of three-piece rim components] or the Defendant vehicle manufacturers to the OSHA petition cam- paign at issue. /d. at 7a; (8) A petition campaign directed at the enactment of an OSHA work-place standard was engaged in by the remaining rim component manufacturer Defendants between 1976 and 1980. /d. at 6a; (9) The joint petitioning activities of Defendants were not, in and of themselves, tortious, but instead were constitutionally protected activities. Jd. at I3a: see also Cousineau v. Ford Motor Co., Appendix C, p. 27a n.2, 140 Mich. App. at 34 n.2, 363 N.W.2d at 729 n.2; (10) Concert of action cannot exist independently of an underlying tortious act. Appendix B at 15a. Notwithstanding these determinations, the court of appeals held, inter alia, that Plaintiff-Respondent could pro- ceed on a concerted action theory against the remaining wheel manufacturer Defendants. The court did so in the face of the following facts: (1) Plaintiff-Respondent was admit- tedly unable to prove either that she had sued the actual wrongdoer(s) or that the named Defendants had acted tor- tiously in concert with the actual wrongdoer(s); (2) the acci- dent components could have been manufactured either by AMF, which the court of appeals expressly held did not act 8 in concert with the remaining Defendants, or by some unnamed wheel manufacturer that had not acted tortiously in concert with the remaining Defendants; (3) the alleged joint undertakings of Defendants were not tortious, but instead were constitutionally protected activities; and (4) Plaintiff-Respondent could not prove that the alleged tor- tious concerted activity by Defendants in any way prox- imately caused her decedent's injuries. Petitioner and others filed timely Applications for Rehearing as to the Michigan Court of Appeals’s decision on Respondent’s concerted action claims. Petitioner argued once again in its Brief that it could not be found liable in tort for its protected first amendment petitioning activity. See Brief. pp. 20-21 and footnote 8. The Michigan Court of Appeals denied Petitioner's Application for Rehearing on November 29, 1984. See attached Appendix H. On December 26, 1984, Petitioner filed with the Michi- gan Supreme Court an Application for Leave to Appeal the decision of the Michigan Court of Appeals as stated in the court of appeals’s first Opinion of August 9, 1984 and the court of appeals’ss November 29, 1984 Order denying Application for Rehearing insofar as the decisions related to Plaintiff-Respondent’s “concert of action” claim. Petitioner once again argued that its petitioning activity in concert with other industry members was protected under the first amendment as construed in this Court’s decisions in Noerr, supra, and Pennington, supra. See Brief in Support of Application for Leave to Appeal, pp. 13-17. Petitioner con- cluded this argument by stating: As it presently stands, this Opinion violates the ‘“‘Noerr/ Pennington doctrine” enunciated by the United States Supreme Court because, other than a general reference to the “petition campaign’, the only referenced coa- certed activity by Defendants was a 1976 meeting which itself concerned the organization of an OSHA petition campaign. Id. at 17. ne, aah ll 9 On January 2, 1985, the cour. of appeals entered, sua sponte, an Order (see Appendix 1), indicating: (1) The court intended to publish its August 9, 1984 opinion: (2) The August 9. 1984 per curiam opinion would be published as authored by Judge Roman S. Gribbs: and (3) Although the result of the opinion would remain the same, the opinion would be corrected for publication. The court of appeals attached to this Order a new opinion labeled as the court's “Amended Opinion” (Appendix C). The January 2, 1985 “Amended Opinion” substantially modi- fied the “concert of action” section of the Michigan Court of Appeals’s first Opinion. On January 22, 1985, Petitioner filed a Supplemental Brief with the Michigan Supreme Court in which Petitioner argued, inter alia, that the Michigan Court of Appeals’s Jan- uary 2, 1985 Amended Opinion, having been released after Petitioner's Application for Leave to Appeal to the Michigan Supreme Court, also acted to unconstitutionally infringe upon Petitioner's first amendment petitioning rights. See Supplemental Brief, p. 12. On June 24, 1985, Petitioner’s Application for Leave to Appeal to the Michigan Supreme Court was denied. See attached copy of Order (Appendix D). REASONS FOR GRANTING THE WRIT PETITIONER’S PARTICIPATION IN A JOINT CAM- PAIGN TO PERSUADE OSHA TO ADOPT AN INDUS- TRY SAFETY STANDARD MAY NOT BE THE BASIS OF A TORTIOUS “CONCERT OF ACTION” CLAIM. The Michigan Court of Appeals found that Petitioner's protected petitioning activity could be the basis for imposi- tion of liability on a “concert of action” tort claim. This 10 decision cannot be reconciled with the first and fourteenth amendments to the United States Constitution. In the bal- ance of this Petition, Petitioner will articulate why this is so. First, Petitioner will demonstrate that its activity in peti- tioning, along with other entities, the Occupational Safety and Health Administration of the United States Government was protected first amendment conduct. Second, Petitioner will show that the Michigan Court of Appeals’s conclusion that Respondent could base a claim of tortious concert of action on such activity constituted an infringement of Petitioner's constitutional rights. Third, Petitioner will demonstrate that the court's attempt to resolve the constitutional issue by finding that Petitioner's protected first amendment activity could con- stitute a tortious “cooperative effort to avoid responsibility” only underscored the constitutional infirmity of the court's decision. Fourth, Petitioner will show that the Michigan Court of Appeals’s “amendments” to its first opinion—such amend- ments being made after Petitioner had applied for Leave to Appeal to the Michigan Supreme Court from the court of appeals’ first Opinion—were merely a pretextual after- thought and in any event did not change the court’s imper- missible reliance upon Petitioner’s protected conduct. Finally, Petitioner will demonstrate that the purported alternative tortious concerted activity described by the court of appeals (i.e., exchange of information to compose match- ing charts), which was first identified as tortious conduct in the Amended Opinion, has absolutely no factual applicability to this action in any event. Petitioner will show that the only conduct on which Respondent may purportedly base her tortious concert of action claim is protected first amendment conduct. Because this Court should not allow such a fundamental, glaring sani Nase iene Sable kine ee ote le 11 error in the sensitive area of first amendment rights to go unreviewed,* this Court should grant The Firestone Tire & Rubber Company’s Petition for Certiorar!. A. Petitioner’s Participation In A Joint Campaign To Per- suade OSHA To Adopt An Industry Safety Standard Was Protected First Amendment Activity. The right to petition the government for redress of griev- ances is “among the most precious of the liberties safe- guarded by the Bill of Rights.” United Mine Workers of America, District 12 v. Illinois State Bar Association, 389 U.S. 217, 222 (1967). Given the “preferred place” accorded in our system to petitioning rights, such rights having “a sanctity and a sanction not permitting dubious intrusions,” this Court has long been vigilant with respect to possible violations of such rights. Thomas v. Collins, 323 U.S. 516, 530 (1945). Rightly so, of course, since “the right to petition * Under this Court’s decision in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), the decision of the Michigan Supreme Court denying Petitioner's Application for Leave to Appeal the decision of the Michigan Court of Appeals is a “final decision” as to the constitutional question presented herein. Under the Cox Broadcasting rule. “judgments of state courts that finally decide a federal issue are immediately appealable when ‘the party seeking review here might prevail [in the state court] on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court. and where reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action...” Southland Corp. v. Keating, 465 U.S. 1, 104 S. Ct. 852. 856 (1984) (quoting Cox, supra). In such circumstances, the question is whether failure to provide immediate review “might seriously erode federal policy.” /d. Here, a critical, never before resolved issue is pre- sented to this Court in circumsiances in which a state court has seen fit to countenance a violation of the first amendment right to petition. There is thus no doubt that failure to provide review now might seriously erode federal policy. Moreover, “(|wJithout immediate review.” there may be no opportunity to pass on the federal issue and as a result “there would remain in effect the unreviewed decision of” the Michigan Court of Appeals approving of such a constitutional violation. /d. This published decision of the Michigan Court of Appeals, see 140 Mich. App. 19. 363 N.W.2d 721 (1985), if left uncorrected, could influence, aside ‘from unknown and future cases, many current products liability actions in which this precise issue may well arise. Thus, immediate review is appro- priate here. 12 is logically implicit in and fundamental to the very idea of a republican form of governance.” Stern v. United States Gypsum, Inc., 547 F.2d 1329, 1342 (7th Cir.) (citing United States v. Cruikshank, 92 U.S. 542, 552 (1876)). cert. denied, 434 U.S. 975 (1977). It is also well established that a state entity may not deny a person the above described right to petition. See U.S. Const., Am. XIV, § 1; Edwards v. South Carolina, 372 U.S. 229 (1963): Cruz v. Beto, 405 U.S. 319, 321 (per curiam, 1972). Thus, if it is demonstrated here that Michigan courts have run afoul of the first amendment by denying Petitioner its right to petition, federal authority may act to protect the Petitioner. Some of the most well known applications of the first amendment clause guaranteeing the right to petition have occurred in the antitrust context. The so called “Noerr-Pen- nington” first amendment petitioning doctrine, as outlined by this Court, shields from antitrust liability joint petitioning activity by businesses. See Eastern Railroad President's Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961): United Mine Workers v. Pennington, 381 U.S. 657 (1965). This doctrine clearly applies with respect to “all departments of the government.” including, of course, the federal Occupational Safety and Health Administration. See California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). Although this Court has never addressed the question, it seems clear that the first amendment rationale of the Noerr- Pennington doctrine, see, e.g., Noerr, 365 U.S. at 137: Cal- ifornia Transport, 404 U.S. at 510, extends to non-artitrust contexts. Many lower courts have recognized that the doc- trine stands generally for the proposition that genuine first amendment petitioning activity is immune from common law tort liability. See, e.g., Havoco of America Limited v. Hol- lowbow, 702 F.2d 643, 649 (7th Cir. 1983): State of Missouri v. National Organization For Women, Inc., 467 F. Supp. Re eR canee ae Sa pet eI: wt She 13 289, 305 (W.D. Mo. 1979), aff'd, 620 F.2d 1301 (8th Cir.), cert. denied, 449 U.S. 842 (1980); First National Bank of Omaha v. Marquette National Bank of Minneapolis, 482 F. Supp. 514, 524 (D. Minn. 1979), aff'd, 636 F.2d 195 (8th Cir. 1980), cert. denied, 450 U.S. 1042 (1981); Pennwalt Corp. v. Zenith Laboratories, Inc., 472 F. Supp. 413, 424 (E.D. Mich. 1979), appeal dismissed, 615 F.2d 1362 (6th Cir. 1980); Sherrard v. Hull, 53 Md. App. 553, 456 A.2d 59, 65-66, aff d, 296 Md. 189, 460 A.2d 601 (1983); Sierra Club v. Butz, 349 F. Supp. 934, 936 (N.D. Cal. 1972): Webb v. Fury, 282 S.E.2d 28, 37 (W. Va. 1981) (doctrine applies “regardless of the underlying cause of action appealed”): Searle v. Johnson, 646 P.2d 682, 689 (Utah 1982). Clearly, the policies underlying the Noerr-Pennington doctrine support its application in the present circum- stances. As the Fourth Circuit very recently noted, [t]he policies behind the Noerr-Pennington doctrine include preserving an individual's first amendment right to petition government officials and encouraging the free flow of ideas to political bodies in order to ensure intel- ligent decisionmaking. Ottensmever v. Chesapeake & Potomac Tel. Co., 756 F.2d 986. 996 (4th Cir. 1985). The commentators are in accord with this view: A primary purpose of freedom of speech is to ensure that the electorate has the information necessary to properly discharge its self-governing responsibilities. T/e right to petition the government is a necessary adjunct to freedom of speech under the first amendment qua guarantor of informed self-government because most important public questions are resolved by representa- tives in government, not plebiscites. The Noerr doctrine preserves the rights of businessmen to press the govern- ment for resolution of certain legal, economic, and social problems. This advocacy properly includes presentation of facts and opinions. 14 * * Of course, the right to petition does more than ensure that government officials are apprised of the opin- ions held and the facts known by the citizenry. It also promotes confidence that the government is accessible and answerable to the people. That the petitioning activity is of no value to the government does not mean that the petitioning is of nu legitimate value to the peti- tioner and his co-citizens. Fischel, Anti-trust Liability for Attempts to Influence Gov- ernment Action: The Basis and Limits of the Noerr-Pen- nington Doctrine, 45 U. Chi. L. Rev. 80, 100-01 (1977) (emphasis added) (footnote omitted). Here, just as in the antitrust context, there is a great value associated with petitioning activity: ensuring the proper, informed operation of representative government. As a result, the policy basis of the first amendment extends to the present case, and petitioning activity should be found by this Court to be protected from “concert of action” tort liability as well as antitrust liability. Because such activity is protected, any attempt to impose liability on Petitioner for participating in a joint compaign to persuade OSHA to adopt a safety standard violates the first amendment. B. The Decision Of The Michigan Court Of Appeals Con- stitutes A Clear Infringement Upon Petitioner's First Amendment Right To Petition. For the sole purpose of allowing this Court to evaluate the constitutional permissibility of the Michigan Court of Appeals’s finding that Petitioner’s protected activity could be the basis of a viable tort claim, Petitioner will briefly describe the essential characteristic of a “concert of action” tort claim in Michigan. For the purposes of this Petition, Petitioner concedes that the Michigan Court of Appeals has it ede PO eee itty Coie 2 UM ew 2 ME Car Ris mane PR Bw he INT 0h ODE ig Wale te A ig, 15 stated accurately such characteristic in its January 2, 1985 Amended Opinion in this case: ‘Even if defendant caused no harm himself, he is tiable for the harm caused by his fellows because all acted jointly.” Abel [v. Eli Lilly], 94 Mich. App. [59] at 73 [1979]. ‘[T]o state a cause of action, a plaintiff need only allege that the defendants were jointly engaged in tor- tious activity as a result of which the plaintiff was harmed.’ Cousineau v. Ford Motor Co., see Appendix C, p. 25a, 140 Mich. App. i9, 32, 363 N.W.2d 721, 728 (1985) (emphasis added) (quoting Abe/ v. Eli Lilly & Co., 418 Mich. 311, 338, 343 N.W.2d 164, 176, cert. denied, 105 S. Ct. 123 (1984)). The Michigan Court of Appeals thus emphasized that the sine qua non of a concert of action tort claim in Michigan is joint tortious activity on the part of the defendants: [Plaintiff] can prove tortious activity pursuant to a com- mon design if she establishes that the wheel manufac- turers acting jointly breached their duty to warn of the danger posed by their products. See Smith v E.R. Squibb & Sons, inc, 405 Mich 79; 273 NW2d 476 (1979). She can also recover if she can prove that the wheel manufacturers, acting jointly, manufactured and/or mar- keted an unreasonably dangerous product. See Owens v Allis-Chalmers Corp, 414 Mich 413; 326 NW2d 372 (1982); Moning v Alfono, 400 Mich 425; 254 NW2d 759 (1977). A showing by plaintiff that there is some evi- dence supporting these claims would preclude summary judgment. Rizzo, supra. Plaintiff made a sufficient showing that defendant - wheel manufacturers acted jointly in failing to warn of a danger in their products to survive their summary judg- ment motion. Appendix C, pp. 26a-27a, 140 Mich. App. at 33, 363 N.W.2d at 729 (emphasis added). 16 The above quoted language makes it clear that without proof of joint tortious activity, a plaintiff absolutely cannot recover on a concert of action tort claim in Michigan. With this background, the crucial nature of Petitioner's participa- tion in joint petitioning activity—in a campaign to persuade OSHA to adopt an indusiry safety standard on multi-piece rims—comes into focus. The Michigan Court of Appeals based its finding that the joint tortious activity required for a concert of action claim had potentially occurred in this case primarily. if not exclusively, on Petitioner's protected first amendment conduct.® Essentially. the court of appeals held that because Petitioner and its co-defendants had jointly and concertedly petitioned the United States Government, Plain- tiff-Respondent had stated a claim of tortious concert of action. On this basis, the court of appeals reversed the trial court’s grant of summary judgment to Petitioner. The Amended Opinion of the Michigan Court of Appeals is replete with statements demonstrating its finding that Peti- tioner could be liable for tortious “concert of action” because of its protected activity. The court of appeals initi- ated its application of the law to Plaintiff-Respondent’s theory that Petitioner had jointly. with its co-defendants, ® The Amended Opinion (see Appendix C. p. 17a) also refers to Defendants’ exchange of information to compose “matching charts” as a factual basis for PlaintiffRespondent’s concert of action claim. As the name indicates. “matching charts” provide information to prevent the “mismatching” of various manufacturers’ components (e.g.. combining a Goodyear rim base with a Firestone side ring and a Budd lock ring. see Appendix E). OSHA requires the use of these charts. See Appendix F. pp. 43a-4Sa. 45 Fed. Reg. No. 20 Jan. 29, 1980). pp. 6707-08. In this case. however. Respondent has admitted that she can never prove that such a “mismatching” occurred. Absent this factual predicate. Respondent can never prove that the exchanging of charts to avoid rim component mis- matching could have been a proximate cause of Respondent's decedent's injuries. This critical oversight by the court of appeals in its Amended Opinion is discussed more fully in this Brief at Section E, infra, and results ‘= Petitioner's OSHA petitioning activities being the sole alleged conceted activity upon which Respondent and the Michigan Court of Appeals might rely. A os al Oh oath stony 54 17 failed to warn about multi-piece rim danger with the follow- ing sweeping statement: By engaging in the joint OSHA petition campaign, the wheel manufacturers arguably proposed a govern- ment role to re“eve themselves of their duty to warn those working with the multi-piece rims. Appendix C, p. 27a, 140 Mich. App. at 34, 363 N.W.2d at 729 (emphasis added) (footnote omitted: see discussion infra, Section C, regarding footnote 2 of Amended Opinion). Thus, in the court of appeals’s view. when Petitioner sought, with other defendants, to “propose” a government role in wheel safety, it was acting jointly, and, presumably, tortiously. The court of appeals made this point clear with its treat- ment of Petitioner's co-defendant, AMF. As the record establishes, AMF was the on/y wheel manufacturer in the case that had no? participated in the joint petitioning cam- paign to persuade OSHA to establish a rim service safety standard and was the only whee! manufacturer to be dis- missed. See Appendix C, pp. 2la, 28a-29a, 140 Mich. App. at 27, 35. 363 N.W.2d at 726, 730. It is clear that because AMF had not participated in the joint OSHA campaign, the court of appeals did not consider that AMF had engaged in the requisite “joint action,” see supra, essential for a con- cert of action tort claim: Although plaintiff made a sufficient showing to sur- vive a motion for summary judgment on her concert of action claim against the wheel manufacturers, she did not do so with respect to AMF. There was no indication that defendant AMF acted pursuant to a common design of the other defendants prior to sale of its wheel manufacturing division in 1959. Thus, the trial court was correct as to AMF but erred in granting summary judg- ment pursuant to GCR 1963, 117.2(3) in favor of the other wheel manufacturers. 18 Appendix C, pp. 28a-29a, 140 Mich. App. at 35, 363 N.W.2d at 730 (emphasis added). On the other hand, according to the court of appeals, because Petitioner and the remaining wheel manufacturer co-defendants had petitioned the United States Government for redress, they were subject to liability as joint tortfeasors. The Michigan Court of Appeals ran afoul of the first amendment by finding that Petitioner could be liable for tortious concert of action because of its participation in the “joint OSHA petition campaign,” Appendix C, p. 27a, 140 Mich. App. at 34, 363 N.W.2d at 729, and by excusing from such liability the only named whee! manufacturer that had not so jointly petitioned the government. As noted above, this Court’s Noerr-Pennington doctrine protects Petitioner from liability for engaging in protected first amendment peti- tioning activity. It is undeniable that Petitioner engaged in such activity. It is further undeniable that the effect of the court of appeals’s opinion is that such activity is the basis of a tort claim. The Constitution requires, however, that Peti- tioner not be subject to liability for engaging in such pro- tected conduct. See Noerr, supra, 365 U.S. at 138: California Motor Transport, supra, 404 U.S. at 510. As a result, the Michigan Court of Appeals’s action in this case violates the first amendment: and this Court should review and overturn that court’s decision. C. The Michigan Court’s Distinction Between The Imposi- tion Of Liability For First Amendment Activity Itself And A Finding That Suck Activity May “Be Inter- preted As A Cooperative Effort To Avoid Respon- sibility’? For Risks Completely Ignores The Very Protected Nature Of Such A “Cooperative Effort.” In an attempt to sidestep the constitutional issue that Petitioner now wishes to bring before this Court, the Michi- gan Court of Appeals commented as follows: Defendants [including Petitioner] are correct insofar as the OSHA petition campaign cannot be viewed as ae plik ee UNS kre Ait VneRatelt s+ Ae 2 Lh tn Co a tan TNR tt Wa Md EI OR me A PN ee eh ee 19 tortious activity. Nonetheless, the same activity indicates an awareness of the wheel industry as a whole of the gravity of the problem and could be interpreted as a cooperative effort to avoid responsibility for the risks posed by multi-piece rims. Appendix C, p. 27a n.2, 140 Mich. App. at 34 n.2, 363 N.W.2d at 729 n.2 (emphasis and parenthetical added). Far from saving the court of appeals’s decision from con- stitutional infirmity, this footnote serves to underscore the impermissibility of the court’s position. The Michigan Court of Appeals apparently is of the opinion that a constitu- tionally cognizable distinction exists between a finding that Petitioner can be subject to tort liability for participating in the “OSHA petition campaign’—a finding properly rejected by the court of appeals—and that court’s finding that Peti- tioner may be subject to tort liability because “the same” constitutionally protected petitioning “activity . . . could be interpreted as a cooperative effort to avoid responsibility for the risks posed by multipiece rims.”? Appendix C, p. 27a n.2, 140 Mich. App. at 34 n.2, 363 N.W.2d at 729 n.2 (emphasis added). The court of appeals is wrong. The effect of the Michigan Court of Appealss decision is that Plaintiff-Respondent may establish tortious concert of action because Petitioner’s protected petitioning conduct can itself be “interpreted” as tortious concerted activity. Under Noerr-Pennington, Petitioner cannot be subject to liability for this conduct. See supra. Yet the court of appeals’s hold- 7 That such protected petitioning activity might indicate an “awareness” of the industry. see supra, Appendix C. p. 27a n.2. 140 Mich. App. at 34 n.2, 363 N.W.2d at 729 n.2, is irrelevant for purposes of a - concert of action claim because what is required for tortious concert of action, as the court of appeals itself repeatedly emphasized. is “joinft] . . . activity.” Appendix C. pp. 2Sa-26a, 140 Mich. App. at 32-33. 363 N.W.2d at 728, 729. In any event. that court found that such conduct both indicated an awareness “and™ could “be interpreted as the required “cooperative effort” for concert of action purposes. /d., p. 27a n.2. 140 Mich. App. at 34 n.2. 363 N.W.2d at 729 n.2. Hence. the court of appeals clearly found that it could independently impose liability for the protected conduct itself. 20 ing that Petitioner's joint conduct in petitioning OSHA “could be interpreted as a cooperative effort” sufficient to establish tortious concert of action does precisely that. When the Michigan Court of Appeals concluded that Peti- tioner’s protected conduct could constitute concerted action on which Petitioner might be found liable, it exceeded the bounds of the first amendment.® D. The Michigan Court Of Appeals’s January 2, 1985 Amendments To Its August 9, 1984 Opinion Constitute An Impermissible Pretextual Afterthought. The Michigan Court of Appeals “amended,” sua sponte, its earlier opinion in this case. See Appendices C, I. These amendments, however, only make more ob -ious the consti- tutionally impermissible basis for the court’s finding on Respondent's concert of action claim and, in any event, should not, even on their face, be found to save the court's decision from reversal. * The Michigan Court of Appeals’s further comment that Petitioner's acts might have been an “effort to avoid responsibility” for the risk posed by multi-piece rims does not cause. even if such comment were accurate. Petitioners conduct to be any less protected under the first amendment. Aside from the fact that OSHA found considerable merit in Petitioner's efforts and indeed adopted a safety standard as requested. see supra footnote 4 and accompanying text. the court’s opinion that Petitioner's effort was less than altruistic is immaterial since the first amendment protects, and indeed anticipates, the most selfish of petitioning activity by businesses: “[I]t is quite probably people with just such a hope of personal advantage who provide much of the information upon which governments must act.” Noerr, 365 U.S. at 139. Thus, it is equally sensi- ble to find here that a construction . . . that would disqualify people from taking a pub- lic position on matters in which they are financially interested would . . . deprive the gevermment of a valuable source of informa- tion and, at the same time. deprive the people of their righi to peti- tion in the very instances in which that right may be of the most importance to them. Id. Clearly. the existence of a standing precedent that “manufacturers [that] through [an association]. ... campaigned for promulgation of federal standards,’ Appendix C,. p. 20a. 140 Mich. App. at 26. 363 N.W.2d at 726, may effectively be liable in tort for such activity may well have a “chilling effect” on the exercise of such entities’ first amendment rights. Satie dasicie it Tawa ch nscale tie. nasil eomeaemalieallll ee eee ote mer rt Mee nee. Seo ee 21 After Petitioner applied for Leave to Appeal to the Michigan Supreme Court, Petitioner's Brief having reas- serted and re-emphasized the constitutional defect of the Michigan Court of Appeals’s decision, the court of appeals released its Amended Opinion, which “corrected for pub- lication” the court's first Opinion. See Order of January 2, 1985 (Appendix I). In the Amended Opinion, the court of appeals attempted to insert an alternative basis for finding the joint activity required for Respondent's concert of action claim. See Section E, infra. The court of appeals also com- pletely excised two sentences emphasizing the importance, to the concert of action claim, of Petitioner's protected first amendment activity. The relevant portion of the Michigan Court of Appeals’s first Opinion read as follows: Plaintiff also submitted proof to show the defendant wheel manufacturers acted jointly, pursuant to a com- mon design. First, although defendants are correct inso- far as the OSHA petition campaign cannot be viewed as tortious activity, the same activity evidences an awareness on the part of the wheel industry as a whole of the gravity of the problem. Moreover, if it was feasible for employers to warn and train their employees as to the danger of multi-piece wheels, then it would have _ been equally feasible for the wheel manufacturers to assist in doing the same. Instead, they proposed a gov- ernment role in the process to relieve themselves of the burden. /t is noteworthy that the decedent's accident occurred a short time before OSHA finally promulgated the regulation urged by defendants. Furthermore, the adequacy of the manufacturers’ warnings is a question of fact for the jury. Dunn, supra, p 80. Here, it is not clear from the record whether plaintiff had any warning what- soever from the manufacturer of the wheel, or that any of the defendant wheel manufacturers were in the prac- tice of supplying warnings to those affected by the use of their products. Second, plaintiff provided evidence that the defend- ant wheel manufacturers were aware of the dangers 22 posed by mismatch of component parts. Rather than change the design of the components themselves, they composed charts to show which products were safely interchangeable and which were not. Again, there was no indication that such a chart found its way into the decedent’s hands. Third, plaintiff might submit proofs at trial that all three-piece rims pose risks which are “unreasonable in light of the foreseeable injuries”. Owens v_ Allis-Chal- mers Corp, 414 Mich 413, 425; 326 NW2d 372 (1982). The OSHA petition activity was, arguably, a cooperative effort by the wheel manufacturers to create a regulatory buffer and avoid responsibility for those risks. The ven- ture indicates a tacit understanding and mutual encour- agement to refrain from taking more direct steps to prevent this danger. See attached Appendix B, pp. 13a-l4a (emphasis added: bold face indicates emphasis in original). The court’s later, “Amended Opinion” reads in relevant part as follows: By engaging in the joint OSHA petition campaign, the wheel manufacturers arguably proposed a government role to relieve themselves of their duty to warn those working with the multi-piece rims. Plaintiff provided documentation showing that the multi-piece rims manufactured and/or marketed by the wheel manufacturers were dangerous and that the man- ufactuers knew of the danger posed by their products and the mismatch of components of their products. Plaintiff might submit proofs at trial that all three-piece rims posed risks “unreasonabie in light of the foreseea- ble injuries’. Ownes [sic], supra, p 425. Plaintiff also showed that, rather than change the design of the rims or the rim components, the wheel manufacturers acted jointly in exchanging information and composing charts LOA RM SLM ta tee Bah PE F i ee eed Abner Fei Ye Ae IOWA TIRE Hela DA WANA D 1p ses Manet. adeeb ciaoly slit. 23 to show which products were safely interchangeable and which were not. This conduct, as well as the OSHA petition campaign, could indicate a tacit understanding and mutual encouragement to refrain from taking more reasonable steps to prevent the danger posed by the multi-piece wheel rims. See January 2, 1985 Amended Opinion, Appendix C, pp. 27a-28a, 140 Mich. App. at 34, 363 N.W.2d at 729 (emphasis added) (footnote omitted, see supra). The Michigan Court of Appeals’s Amended Opinion is notable first because of what it does not contain. The Amended Opinion completely excised a statement that “[iJt is noteworthy that the decedent's accident occurred a short time before OSHA finally promulgated the regulation urged by defendants.” See August 9, 1984 Opinion, Appendix B, p. 13a (emphasis added). Further, the Amended Opinion omits a reference to the substance of the proposed regula- tion. The Amended Opinion acknowiedges that the proposed regulation would have established an “employer” obligation to assure rim service safety. See Appendix C, p. 20a, 140 Mich. App. at 26, 363 N.W.2d at 726. The first Opinion had seized upon this fact, stating: Moreover, if it was feasible for emplovers to warn and train their employees as to the danger of multi-piece wheels, then it would have been equallv feasible for the wheel manufacturers to assist in doing the same. Instead, they proposed a government role in the process to relieve themselves of the burden. Appendix B, p. I3a (emphasis added). Because this state- ment had followed a statement that itself emphasized the OSHA petitioning activity, see id., the statement as to the court’s impression of what Petitioner might have done to warn, judging from its protected conduct, Clearly itself _ related to such protected conduct. The court of appeals also belatedly attempted to correct the first Opinion’s constitutional deficiency by adding and 24 modifying certain language. Most significant is the amend- ment of the bottom of the only full paragraph now found at Appendix C, 27a-28a, 140 Mich. App. at 34, 363 N.W.2d at 729: Plaintiff also showed that, rather than change the design of the rims or the rim components, the wheel manufac- turers acted jointly in exchanging information and com- posing charts to show which products were safely interchangeable and which were not. This conduct, as well as the OSHA petition campaign, could indicate a tacit understanding and mutual encouragement to refrain from taking more reasonable steps to prevent the danger posed by the multi-piece wheel rims. (emphasis added) The first Opinion had been significantly different on this point: Second, plaintiff provided evidence that the defend- ant wheel manufacturers were aware of the dangers posed by mismatch of component parts. Rather than change the design of the components themselves, they composed charts to show which products were safely interchangeable and which were not. Again, there was no indication that such a chart found its way into the decedent’s hands. Appendix B, p. 13a (emphasis added). While it is obvious that the court's first Opinion made reference to the composition of charts, in no way did the first Opinion indicate that such composition could be joint activity sufficient for a concert of action claim. Unlike the Amended Opinion, which stated that such composition was joint action, see Appendix C, pp. 27a-28a, 140 Mich. App. at 34, 363 N.W.2d at 729, the first Opinion merely found that such composition indicated “‘aware[ness].” The critical point here is that mere “awareness” is not, and would not have been, the “join[t] ... action” that the court itself repeat- a aa ies 25 edly emphasized was essential for a concert of action claim. See Appendix C, pp. 25a-26a, 140 Mich. App. at 32-33, 363 N.W.2d at 728, 729. The Amended Opinion apparently attempted to convert composition of charts, which there- tofore had indicated only the insufficient (for concert of action purposes) “awareness,” into joint action that purpor- tedly could itself sustain a concert of action claim in the event the court’s reliance on protected joint petitioning activity were found to be unconstitutional. The irony of this case, however, is that the amendments of the court’s Opinion, far from serving to avoid the first amendment problem, actually highlighted the court’s imper- missible reliance upon Petitioner’s protected conduct in reversing the trial court’s entry of summary judgment in favor of Petitioner. If the basis of the court’s decision were shown to be that Petitioner's protected conduct constituted tortious “concert of action,” the Noerr-Pennington doctrine would require reversal of the court’s opinion on this constitutional issue. See supra, Argument Sections A, B. It is beyond peradven- ture that constitutional adjudication will scrutinize the sub- stance of an alleged government infringement of citizens rights—no matter what gloss or description government may put on or employ with respect to such an infringement. Indeed, this Court will countenance the interposition by government of no “pretext for suppressing” precious first amendment rights. Young v. American Mini Theatres, 427 U.S. 50, 84 (1976) (Powell, J., concurring); see also Gay Student Services v. Texas A&M University, 737 F.2d 1317, 1322 & n.7 (Sth Cir.) (university’s asserted justification for infringing first amendment associational rights is “an after- - thought”), cert. denied and app. dismissed, 105 S. Ct. 1860 (1985); Alma Society, Inc. v. Mellon, 601 F.2d 1225, 1235 (2d Cir.) (“we must be sure the rationale advanced” in an equal protection case “is not simply an afterthought supplied purely by hindsight”) (citing Cleveland Board of Education v. LaFleur, 414 U.S. 632, 653 (1974) (Powell, J., concurring) 26 (“‘after-the-fact rationalizations” in equal protection case “unsupported in the records’)), cert. denied, 444 U.S. 995 (1979). Here, the Michigan Court of Appeals’s subsequent modi- fications of its Opinion merely offered an after-the-fact rationalization or pretext for its earlier conclusion. The lan- guage of the court's first Opinion, relying exclusively on protected activity to find that Petitioner could be subject to tortious concert of action liability, reveals the basis of the court’s decision. Hence, this Court should act to protect Petitioner from this improper attempt to rationalize on alter- native grounds what can only be found to be a violation of Petitioner's first amendment rights. Even the court’s “Amended Opinion.”’ however, makes it obvious that the court based its finding as to the main- tainability of Respondent’s concert of action claim primarily upon Petitioner's protected conduct. The Amended Opinion did not change the court's initial and sustained emphasis on Petitioner's protected activity. See Appendix C, pp. 27a-28a, 140 Mich. App. at 34, 363 N.W.2d at 721. Nor did the Amended Opinion abolish the distinction between AMF, the only wheel manufacturer that did not engage in protected activity, and the other wheel manufacturers, all of whom petitioned the government and all of whom were found to be subject to a tortious concert of action claim. /d. at 2la. 28a-29a, 140 Mich. App. at 27, 35, 363 N.W.2d at 726, 730. Thus, even if this Court were to ignore the apparent pur- poses of the Michigan Court of Appeals’s amendments of its Opinion, that court’s continued, almost exclusive stated reliance upon protected activity renders its decision consti- tutionally unacceptable. Cf, Greenwood Utilities v. Mis- sissippi Power Co., 751 Fd 1484, 1503 (Sth Cir. 1985) (expert testimony that might have been sufficient io prevent summary judgment may not do so where such experts “relied almost exclusively on conduct that we have deter- mined to be protected under the Noerr-Pennington doctrine in reaching their conclusions .. .”). 1b TE WIT Rp art ie wal WA Si panied Wiese: tr AMEN ta Li NEI Sete EH ie Oa Bo oe 27 E. In Any Event, The Court of Appeals’s Amendments Relating To Exchange of Chart Information As Con- certed Activity Clearly Failed To Eliminate The Deci- sion’s Constitutional Infirmity Because The Record Is Totally Devoid Of Any Evidence That This Accident Invclved A Mismatching Of More Than One Manufac- turer’s Components. A final critical fact is that the only wnprotected pur- ported concerted activity identified by the Michigan Court of Appeals—Petitioner’s exchange of information to com- pose charts for safe multi-piece wheel assembly with its co- defendants—can never be found to support a tortious con- cert of action claim on the admitted facts of this case. As noted above, see supra, footnote 3, the multi-piece wheels in question are composed of three components. See also photos attached as Appendix E. The sole purpose of the manufacturers’ exchange of chart information described by the court of appeals, see Amended Opinion, Appendix C, p. 28a, 140 Mich. App. at 34, 363 N.W.2d at 729, was the prevention of mismatching of various manufacturers’ wheel components. The court of appeals undeniably acknowledged this fact, stating that Petitioner's co-defendant, the Budd Corporation, “noted that, while some rim components man- ufactured by different companies were interchangeable, in some cases ‘mixed side rings are a definite safety hazard.’” See id., p. 20a, 140 Mich. App. at 27, 363 N.W.2d at 726 (emphasis added). Immediately following this quotation, the court itself explicitly found that ‘‘[t]he manufacturers exchanged information on part interchangeability so that charts could be formulated to guide mechanics on [the part mismatch] problem.” /d. at 20a-2la, 140 Mich. App. at 27, 363 N.W.2d at 726. This fact is significant because Respondent has une- quivocally admitted that she “could not identify the specific manufacturer of the subject wheel or the vehicle from which it came.” /d. at p. 19a, 140 Mich. App. at 25, 363 N.W.2d at 725. Thus, Respondent has admitted that she does not know whether the parts of different wheel manufacturers were 28 involved in the multi-piece wheel accident in question or whether the accident wheel consisted of components man- ufactured by the same company, which components explosively disengaged because, for example, they were mis- assembled. As indicated above, the exchange of matching chart information could be relevant only if parts from dif- ferent wheel manufacturers were involved. In light of Respondent's admission that she can never factually prove that the accident at issue involved a mismatching of more than one manufacturer's components, the exchanging of chart information to avoid rim component mismatches can in no event be a proximate cause of her decedent's injuries. At best, as the court of appeals indicated, Respondent can prove only that her decedent's injuries were proximately caused by a multi-piece wheel having three components. Because the exchange of matching chart information cannot be a proximate cause of Respondent's decedent's injuries, Respondent clearly cannot, using evidence of such exchange. satisfy the requirements of a tortious concert of action claim: “join|t] engage|[ment] in a tortious activity as a result of which plaintiff was harmed.” See Appendix C, p. 25a, 140 Mich. App. at 32, 363 N.W.2d at 728. Yet the only other concerted activity identified by the court was Peti- tioner and its co-defendants’ petitioning of OSHA. Thus, on the facts of this case as admitted, the only “concerted activity” that arguably can be relevant to the rim accident is Petitioner's protected first amendment activity. Therefore, the effect of the Michigan Court of Appeais’s decision is to improperly permit liability to flow exclusively from Peti- tioner’s protected first amendment activity. 29 CONCLUSION This Court should take this opportunity to examine the application of the Noerr-Pennington doctrine in a non-anti- trust context. The danger to our governmental system and to our society due to infringements upon first amendment peti- tioning rights is as great where tort liability may be imposed tor such activity as it is where antitrust liability may be so imposed. In particular, this Court should act to correct the constitutionally indefensible finding by the Michigan Court of Appeals that Petitioner's protected petitioning activity may constitute the basis for “concert of action” tort liability. Petitioner therefore requests that this Court grant its Petition for a Writ of Certiorari. Respectfully submitted, Xhafer Orhan (Counsel of Record) Daniel Patrick Malone William J. Champion Ill Carey A. DeWitt BUTZEL LONG GUST KLEIN & VAN ZILE A Professional Corporation i881 First National Building Detroit, Michigan 48226 Telephone: (313) 963-8142 Counsel for Petitioner, The Firestone Tire & Rubber Company Of Counsel: John P. Palumbo Assistant General Counsel The Firestone Tire & Rubber Company Dated: September 20, 1985 No. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1985 THE FIRESTONE TikRE & RUBBER COMPANY, Petitioner. V. THELMA COUSINEAU, PERSONAL REPRESENTATIVE OF THE ESTATE OF MARK COUSINEAU, Respondent. APPENDIX BUTZEL LONG GUST KLEIN & VAN ZILE A Professional Corporation By: Xhafer Orhan (Counsel of Record) Daniel Patrick Malone William J. Champion III Carey A. DeWitt I881 First National Building Detroit, Michigan 48226 Telephone: (313) 963-8142 Counsel for Petitioner, The Firestone Tire & Rubber Company Of Counsel: John P. Palumbo Assistant General Counsel The Firestone Tire & Rubber Company THE AMERICAN PRINTING COMPANY 1200 WEST FORT STREET, DETROIT, MICHIGAN 48226 — (313) 963-9310 INDEX TO APPENDICES Appendix Page A Wayne County Circuit Court Order, dated December 10, 1982, granting Petitioner's Motion for ED NE ano seule eheee bE ERS ope nee la Michigan Court of Appeals’s unpublished per curiam opinion (first Opinion), dated August 9, 1984, reversing the trial court’s entry of Summary Judgment and remanding the case on the issue of GOURIOUS COMGOTE GE ROTOR nn ccc ccc ccccwccevcnn 3a Michigan Court of Appeals’s published Amended Opinion, dated January 2, 1985 ................. 17a Michigan Supreme Court Order, dated June 24, 1985, denying Application for Leave to Appeal .. 32a Photographs A and B, depicting tube-type tire SE PE IE iene wc ckccdnccebecenne 34a 45 Federal Register No. 20 (Jan. 28, 1980), pp. GF Er Ge IE A FUE 0 oc 60 8 sic occ 60-0 ces cs 36a 49 Federal Register No. 24 (February 3, 1984), p. RR eee yevieca Siyhasienceeekecneuness 75a Michigan Court of Appeals’s Order, dated November 29, 1984, denying Petitioner's Applica- ee cas ers aevedaseeee ee 133a Michigan Court of Appeals’s sua sponte Order, dated January 2, 1985, stating the court’s intention to “correct” its August 9, 1984 per curiam opinion I co Ca aaaie inane s ue Saeko een 135a APPENDIX A la Appendix A Order Granting Defendants’ Motions for Summary Judgment STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE THELMA COUSINEAU, Personal Representative of the Estate of Mark Cousineau, Deceased, Plaintiff, HON. IRWIN BURDICK No. 80-039185-NP VS. Forp Motor ComPANY, a foreign corpor- poration, INTERNATIONAL HARVESTER ComPANy, a foreign corporation, GOODYEAR TIRE & RUBBER COMPANY, a foreign corporation, KELSEY Hayes CORPORATION, a foreign corporation, Bubp CorRPORATION, a foreign corpor- ation, THE FIRESTONE TIRE & RUBBER ComMPANY, a foreign corporation, FRUEHAUF CORPORATION, a foreign corporation, and AMF, INc., a for- eign corporation, Defendants. ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT At a session of said Court, held in the City County Building, City of Detroit, County of Wayne, State of Michigan, on Dec 10 1982 (s) HON. IRWIN H. BURDICK Circuit Court Judge This matter having come before the Court on defendants’ Motions for Summary Judgment pursuant to Michigan GCR 2a Appendix A Order Granting Defendanis’ Motions for Summary Judgment 117.2(1) & (3); and the Court having reviewed the matter and having heard oral arguments on July 23, 1982 and December 10, 1982, and being otherwise advised in the premises; IT IS HEREBY ORDERED that, for the reasons set forth on the December 10, 1982 record, each of defendants’ Motions for Summary Judgment pursuant to GCR 117.2(1) & (3) shall be, and hereby is, GRANTED. (s) HON. IRWIN BURDICK Date: APPENDIX B a idles 3a Appendix B Opinion OPINION STATE OF MICHIGAN COURT OF APPEALS THELMA COUSINEAU, Personal Representative of the Estate of MARK COUSINEAU, Plaintiff-Appellant, [Aug 09 1984] Vv No. 69363 Forp Motor Company, a foreign corporation, INTERNATIONAL HARVESTER COMPANY, a foreign corporation, GOODYEAR TirRE & RUBBER COMPANY, a foreign corporation, Ke_tseEY Hayes CORPORATION, a foreign corporation, Bupp CorpPorRATION, a foreign corporation, FIRESTONE TirE & RUBBER COMPANY, a foreign corporation, FRUEHAUF CORPORATION, a foreign corporation, and AMF, INc., a foreign corporation, Defendants-Appellees. Before: R.S. Gribbs, P.J., H. Hood and R.M. Maher, JJ. PER CURIAM Plaintiff appeals by right from an order granting sum- mary judgment for defendants on her wrongful death claim, and a subsequent order denying her motion for reconsidera- tion and denying her leave to amend her complaint. We affirm in part and reverse in part. Plaintiff brought suit on October 29, 1980, alleging her soi, Mark Cousineau (decedent), was killed on May 8, 1979, while repairing a truck tire mounted on a three-piece wheel. Decedent was an employee of Jaeger Brothers Construction Co, which owned several trucks, including four or five made by Ford, two by International Harvester, and at least one Fruehauf Trailer. In addition, Jaeger Brothers had numerous tires and wheels collected from other trucks at the work- 4a Appendix B Opinion place. On May 8, 1979, decedent, who had only been employed for two days, was assigned to repair truck tires. While decedent was working on a three-piece rim, the whee! explosively disengaged, striking and killing decedent. Ronald Jaeger found a three-piece rim held together by a saiety chain at the accident site. The tire was still intact and was subsequently used. The rim parts were at first kept separate, but were later mixed with the gencral rim stock of the busi- ness, rendering identification of the rim involved in the acci- dent impossible. Plaintiff sued wheel manufacturers Goodyear, Kelsey Hayes, Budd and Firestone, and vehicle manufacturers Ford and International Harvester. Plaintiff claimed decedent's injuries resulted from negligent wheel design, failure to ade- quately warn, and failure to provide safety devices by the wheel manufacturers. She further alleged that the defendant vehicle manufacturers negligently produced and sold vehi- cles which required and/or utilized multi-piece wheels. Plaintiffs complaint also contained an allegation of breach of implied warranty. Goodyear and Kelsey Hayes moved for a more definite Statement of the claim, stating that plaintiff ““must be required to identify the manufacturer of the wheel and rim” involved in the accident, and “must be ordered to identify one vehicle manufacturer”. Plaintiff filed an amended complaint and added Fruehauf (vehicle manufacturer) and AMF (wheel manufacturer) as defendants. In the amended complaint, plaintiff set forth claims of alternative liability and concert of action. All defendants except AMF and Fruehauf moved for summary judgment pursuant to GCR 1963, 117.2(1) and (3), based on plaintiff's inability to attribute the wheel in ques- tion to a particular wheel or vehicle manufacturer. Plaintiff Sa Appendix B Opinion admitted, then as now, that she could not identify the spe- cific manufacturer of the subject wheel or the vehicle from which it came. Attached to the wheel manufacturers’ motions were affidavits of their employees, each of whom averred that defendants’ products are identifiable, since they are stamped with a part number and name of the manufac- turer. In addition, the affiants for Firestone and Budd stated that truck rims are distinguishable from one another because of the multiplicity of rim designs. International Har- vester submitted an affidavit and company records showing that the International Harvester truck owned by decedent's employer was originally equipped with two-piece rims. After two adjournments of the motion for summary judg- ment to permit discovery, plaintiff filed a response to the motions. She asserted that the named defendants included “the only major manufacturers” of three-piece wheels “sim- ilar to the one that plaintiff's decedent was handling at the time of his injury”. Regarding the identification issue, plain- tiff argued that the manufacturer’s stamp “is subject to wear, rust and corrosion” which “obliterates the identifica- tion”. Plaintiff contended that truck rims made by various defendants are “very similar in size and configuration”, that “there was no one design that could be identified with one specific manufacturer”, and that “the wheels are essentially of a generic design”. Plaintiff also stated that the manufac- turer of a wheel assembly could not be determined “without the closest of examination”. In support of her alternative liability and concert of action claims, plaintiff submitted numerous documents obtained through discovery. The pertinent matter in the exhibits is summarized as follows: The manufacturers of three-piece rims were made aware, through accident reports, of the problems arising from their products, but ascribed the problems to improper “shop 6a Appendix B Opinion practices”. These practices included non-compliance with the manufacturers’ recommended procedures for assembly, disassembly, and maintenance and safety precautions. Fire- stone urged vehicle manufacturers to print warning materials in the vehicle owner manual. However, the wheel manufac- turers felt that printed warnings on the rim components themselves could be ineffective since they would be covered by corrosion. In a letter to Budd dated May II, 1976, an attorney for Firestone denigrated the effectiveness of such warnings and further stated, “I would hate to be confronted by a plaintiff's lawyer with auother company’s warning if my product did not have one”. The same letter proposed an industry meeting and urged that the different manufacturers not take varying positions on the warning issue. Beginning in 1976, the wheel manufacturers, through the “Rubber Manufacturers Association” and “Multipiece Rim Manufacturers” organizations, campaigned for promulgation of federal OSHA standards governing work with multi-piece rims. Their goal was “to remove all of the burden from the Wheel and Rim manufacturers” and to place responsibility for safety precautions “on the only person in practical posi- tion to discharge such responsibility, i.e. the employer”. In April of 1980, OSHA promulgated a regulation requiring the posting of information and warnings in truck tire mainte- nance facilities, and training of mechanics working with multi-piece wheels. A Budd document dated February 2, 1976, noted the tendency of “standardization” in the truck rim industry and the dangers posed by the similarity of different products. It noted that, while some rim components manufactured by different companies were interchangeable, in some cases “mixed side rings are a definite safety hazard”. The man- ufacturers exchanged information on part interchangeability so that charts could be formulated to guide mechanics on this problem. 7a Appendix B Opinion The defendant vehicle manufacturers purchased substan- tial numbers of multi-piece rims for use as original equip- ment. The petition to OSHA indicates that 98% of all multi- piece rims sold are used as original equipment. However, there is no evidence in the record that vehicle manufac- turers, as opposed to wheel manufcturers, were involved in the OSHA petition campaign. References to defendant wheel manufacturer AMF were also absent from plaintiff's documents, since AMF sold its truck rim subsidiary (“Cleveland Welding Division”) to Budd in 1959. At the December 10, 1982, hearing on the motion for summary judgment, plaintiff argued that summary judgment would be premature, since discovery was not complete. Counsel for Goodyear replied that no amount of discovery would disclose the identity of the manufacturer of the wheel involved in the accident. In granting the motion in favor of defendants, the trial judge stated, “We're not talking about a generic product that cannot be identified”. Rather, the court concluded, “This is a case where the wheel that we're talk- ing about disappeared”. Prior to the grant of summary judgment, plaintiff moved for leave to amend her complaint. She submitted a proposed third amended complaint containing an allegation of civil conspiracy, and a fourth amended complaint which advanced a claim of “enterprise liability”. Hall v E. 1. DuPont De Nemours & Co, 345 F Supp 353 (E D NY 1972). At the hearing on the motions to amend, plaintiff conceded “there’s no cause of action for conspiracy unless you've got an underlying cause”. Plaintiff also requested reconsidera- tion of the grant for summary judgment. The trial judge denied leave to amend the complaint without comment. He also denied the motion for recon- sideration. distinguishing Abel v Eli Lilly & Co, 94 Mich App 59; 289 NW2d 20 (1979), aff'd 418 Mich 311; 343 NW2d 164 (1984). 8a Appendix B Opinion Alternative Liability Plaintiff first contests the granting of the summary judg- ment for defendants on plaintiff's alternative liability claim. She argues that the theory of alternative liability applies where a plaintiff, through no fault of his own, cannot iden- tify the specific defendant responsible for his injuries. The trial court did not specify the court rule underlying its grant of summary judgment. It granted summary judg- ment because the wheel would be identifiable if it were available, basing this conclusion on plaintiff's admission and defendant's affidavit. Since the court went beyond the plead- ings in reaching its decision, the judgment will be reviewed as granted pursuant to GCR 1963, 117.2(3). Under this court rule, the nonmoving party must establish that he has a case on the law and that there are some evidentiary proofs to support his allegation as to any material fact. Durant v Stahlin, 375 Mich 628, 638; 135 NW2d 392 (1965). Substantial guidance is provided by the receni decision in Abel, in which the Supreme Court expressed formal approval of the theory of alternative liability. 418 Mich 329. As noted by this Court in Greene v Union Optical Center, 95 Mich App 167, 171; 290 NW2d 111 (1980), “[iJn certain situations, a plaintiff's burden of proof may be shifted to the defendants where more than one defendant has been negli- gent and the plaintiff is unable to prove which of the two defendants caused his injury”. Prerequisite to such a shift, plaintiff must show, first that all defendants acted tortiously; second, that plaintiff was harmed by one of the defendants: and, third, that plaintiff, “through no fault of [his or her] own, [is] unable to identify which actor caused the injury. Abel, 418 Mich 331-332. Plaintiff fastens her argument onto the latter language, ignoring the policy underlying alternative 9a Appendix B Opinion liability theory. That policy was clearly stated by the Court in the Abel opinion: “(The] reason for the exception to traditional rules is to prevent the injustice of allowing proved wrongdoers to escape liability for an injury inflicted upon an innocent plaintiff ‘merely because the nature of their conduct and the resulting harm made it difficult or impossible to prove which of them has caused the harm.’ ” 418 Mich 327, citing 2 Restatement Torts, 2nd, §433B, Comment f, p 446 (emphasis added). In Abel, the plaintiffs alleged they were harmed by their consumption of synthetic estrogens. 418 Mich 318. Their inability to identify the specific manufacturer which caused the harm resulted from the inherent nature of the product. Once ingested, the medication was irretriveable for use as evidence. Also, plaintiffs alleged that defendants used “a generic marketing scheme to promote the product”. 418 Mich 336. In its decision in Abel, this Court noted the diffi- culties posed by the number of defendants and by the length of time between the ingestion of the allegedly defective drug and the appearance of the damages. 94 Mich App 76. In this case, the wheel assembly which gave rise to the injury did not disappear, nor was its source rendered unidentifiable by the defendants’ conduct. It remained available for use as evidence and was, in fact, kept separate from the wheel inventory of decedent’s employer for quite some time. Plain- tiff argues that the similarity of three-piece rims renders them unidentifiable, but admits the wheel could be identified if it were available. The interchange of parts between wheel rim manufacturers indicates only that more than one man- ufacturer may have made the components in question, not that the parts could not be identified. Plaintiff further con- tends that the identifying stamp on the product was proba- bly obscured by dirt and corrosion, so the decedent could not read it. This is sheer speculation, given the unavailability of the evidence. 10a Appendix B Opinion As to the vehicle manufacturers, plaintiffs claim of alter- native liability is insufficient as well. Trucks are not generic products posing identification difficulties. Plaintiff admits she cannot identify the particular vehicle which was equipped with the subject wheel assembly. In addition, she cannot prove that the wheel was used as original equipment on any of the trucks at decedent’s work place. The defend- ant vehicle manufacturers are not in the business of making three-piece rims. Though a vehicle manufacturer may be hela liable for damages caused by defective component parts supplied by another entity, Comstock v General Motors Corp, 358 Mich 163; 99 NW2d 627 (1959), this duty has not yet been extended to component parts added to a vehicle subsequent to distribution. Assuming the existence of a defect, plaintiff must “trace that defect in the hands” of the defendant. Caldwell v Fox, 394 Mich 401, 410; 231 NW2d 46 (1975). “The threshold requirement of any product liability action is identification of the injury-causing product and its manufacturer.” Abel, 418 Mich 327. Failure of a com- ponent not supplied by the manufacturer does not give rise to liability on the manufacturer’s part. Antcliff v State Employees Credit Union, 95 Mich App 224, 231-233; 290 NW2d 420 (1980), aff'd 414 Mich 624; 327 NW2d 814 (1982). Concert of Action Plaintiff next argues that the trial court erred in granting summary judgment in favor of defendants on plaintiff's con- cert of action claim. Plaintiff argues that she submitted doc- umentary evidence of the joint efforts and conscious parallelism in the wheel industry, and that defendants acted to direct government inquiry away from themselves. Because the trial court relied on affidavits outside the pleadings in granting summary judgment, we again review the summary judgment as one granted pursuant to GCR 1963, 117.2(3). A motion for summary judgment pursuant to { i : 3 lla Appendix B Opinion this court rule should not be granted unless it is impossible for the claim asserted to be supported by evidence at trial. Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973). A plaintiff may proceed on the theory of concert of action if he can prove “that all defendants acted tortiously pursuant to ~ common design’. Abel, 418 Mich 338. “Express agreement is not necessary, and all that is required is that there be a tacit understanding.” Prosser, Torts (4th ed), §46, p 292. “A concert of action case does not require that the plaintiff be unable to identify the spe- cific defendant who caused his injury.” Abel, 418 Mich 338. Rather, each defendant “is jointly and severally liable for the entire amount of damages. although he may be entitled to contribution from his fellow tort feasors.” Abel, 94 Mich App 73. “Even if defendant caused no harm himself, he is liable for the harm caused by his fellows because all acted jointly.” 94 Mich App 73. “. . . [T]o state a cause of action, a plaintiff need only allege that the defendants were jointly engaged in tortious activity as a result of which the plaintiff was harmed.” Abel, 418 Mich 338, citing Walters v Sargent, 390 Mich 775; 210 NW2d 315 (1973), adopting partial dissent in Walters v Sargent, 46 Mich App 379, 384; 208 NW2d 207 (1973). In this case, the trial court did not give this claim the individual consideration it deserved, but disposed of it on the same basis as the alternative liability claim—failure to identify the source of the » heel. As noted above, the identi- fication problem is not a sine qua non of a concert of action claim. Each defendant who acted jointly and tortiousiy is liable, even though his conduct was not the disect cause of the injury. Thus, in the context of this case, we hold that it does not matter if the party causing the injury in fact is not joined in the concert of action claim, since all those acting l2a Appendix B Opinion in concert, named and unnamed defendants, are jointly and severally liable for the entire harm. Abel, 94 Mich App 73.! As discussed below, plaintiff is entitled to recover on a concert of action theory if she can prove that all three-piece truck wheel assemblies are defective, or that the defendant wheel manufacturers breached their duty to warn of a dan- ger posed by their products, and that defendants acted jointly in marketing defective products and/or failing to ade- quately warn those in contact with them. Evidence support- ing her claim would preclude summary judgment. Rizzo, supra. In order to prove her concert of action claim against the wheel manufacturers, plaintiff must first show that they acted negligently. “It is now established that the manufac- turer and wholesaler of a product, by marketing it, owe a legal! duty to those affected by its use.” Moning v Alfono, 400 Mich 425, 433; 254 NW2d 759 (1977). A manufacturer’s duty also includes dissemination of warnings or instructions “appropriate for the safe use of its products”. Antcliff, 414 Mich 638. Defendants in this case had this duty towards those in contact with three-piece wheels. Plaintiff submitted an affidavit and other proof to prove the wheels defective and that defendants were aware of the numerous incidences of death and injury resulting from wheel explosions. The defendants argued that their products are safe when used properly, and that they took measures to warn those working with the wheels. These arguments relat- ing to the reasonableness of defendants’ conduct are for the ! Although each defendant tortfeasor who acts in concert is jointly and severally liable, the plaintiff may join others in tne suit who also engaged in such conduct, GCR 1963, 206.1, and defendants may seek contribution after judgment. MCL 600.2925a; MSA 27A.2925(1); Abel. 94 Mich App 73. The defendant may also implead nonjoined tortfeasors as third party defendants and seek contribution. GCR 1963, 204. l3a Appendix B Opinion trier of fact. Smith v E.R. Squibb & Sons, 405 Mich 79, 88-90; 273 NW2d 476 (1979); Dunn v Lederle Laboratories, 121 Mich App 73, 79-80; 328 NW2d 576 (1982), lv den 417 Mich 1098 (1983). Plaintiff also submitted proof to show the defendant wheel manufacturers acted jointly, pursuant to a common design. First, although defendants are correct insofar as the OSHA petition campaign cannot be viewed as tortious activity, the same activity evidences an awareness on the part of the wheel industry as a whole of the gravity of the problem. Moreover, if it was feasible for employers to warn and train their employees as to the danger of multi-piece wheels, then it would have been equally feasible for the wheel manufacturers to assist in doing the same. Instead, they proposed a government role in the process to relieve themselves of the burden. It is noteworthy that the dece- dent’s accident occured a short time before OSHA finally promulgated the regulation urged by defendants. Further- more, the adquacy of the manufacturers’ warnings is a ques- tion of fact for the jury. Dunn, supra, p 80. Here, it is not clear from the record whether plaintiff had any warning whatsoever from the manufacturer of the wheel, or that any of the defendant wheel manufacturers were in the practice of supplying warnings to those affected by the use of their products. Second, plaintiff provided evidence that the defendant wheel manufacturers were aware of the dangers posed by mismatch of component parts. Rather than change the design of the components themselves, they composed charts to show which products were safely interchangable and which were not. Again, there was no indication that such a chart found its way into the decedent’s hands. Third, plaintiff might submit proofs at trial that a// three- piece rims pose risks which are “unreasonable in light of l4a Appendix B Opinion the foreseeable injuries”. Owens v Allis-Chalmers Corp, 414 Mich 413, 425; 326 NW2d 372 (1982). The OSHA petition activity was, arguably, a cooperative effort by the wheel manufacturers to create a regulatory buffer and avoid responsibility for those risks. The venture indicates a tacit understanding and mutual encouragement to refrain from taking more direct steps to prevent the danger. Although plaintiff submitted sufficient proof to survive a motion for summary judgment on her concert of action claim against the wheel manufacturers, she did not do so with respect to AMF. There was no proof that defendant AMF acted pursuant to a common design of the other defendants prior to sale of its wheel manufacturing division in 1959. Thus, the trial court was correct as to AMF, but erred in granting summary judgment pursuant to GCR 1963, 117.2(3), in favor of the other wheel manufacturers. Plaintiff's concert of action claim against the vehicle manufacturers is not supported by evidence showing they acted jointly with the wheel manufacturers. The purchase of wheels for use as original equipment on their vehicle is not sufficient for a finding of concert of action. “One who inno- cently, and carefully, does an act which furthers the tortious purpose of another is not acting in concert with him.” Prosser, supra, p 292. Thus, the grant of summary judgment for defendant vehicle manufacturers was proper. Leave to Amend Plaintiff finally argues that the trial court erred by deny- ing plaintiff leave to amend her complaint. In her proposed third amended complaint, plaintiff sought to add allegations of civil conspiracy. Plaintiff also submitted a proposed fourth amended complaint, alleging “enterprise liability”. Leave to amend a complaint “shail be freely given when justice requires”. GCR 1963, 118.1; Midura v Lincoln Con- 1Sa Appendix B Opinion solidated Schools, \11 Mich App 568, 562; 314 NW2d 691 (1981). The grant or denial of the motion to amend is within the discretion of the trial court. McCalla v Richard Ellis, 129 Mich App 452; 341 NW2d 525 (1983). Furthermore, sum- mary judgment does not preclude amendment of the com- plaint. Midura, supra, p 56. However, failure to grant leave to amend is not reversible error where the pleadings as sought to be amended still fail to state a claim. Zimmerman v Stahlin, 374 Mich 93, 96; 130 NW2d 915 (1964); Crosby v City of Detroit, 123 Mich App 213, 223; 333 NW2d 557 (1983). Conspiracy “A conspiracy is a combination of two or more persons, by some concerted action, to accomplish a criminal or unlawful purpose, or to accomplish a purpose not unlawful by criminal or unlawful means.” Fenestra v Gulf American Land Corp, 377 Mich 565, 593; 141 NW2d 36 (1966) (empha- sis added). An allegation of civil conspiracy, standing alone, is not actionable, Magid v Oak Park Racquet Club Assocs, Limited, 84 Mich App 522, 529; 269 NW2d 661, /v den 404 Mich 805 (1978). In this case, plaintiff's proposed third amended com- plaint contained no allegation that defendants employed unlawful methods to attain a lawful end. The group activities listed by plaintiff were entirely lawful. On the other hand, the unlawful purposes alleged were largely polemic restate- ments of plaintiff's concert of action allegations. Plaintiff's conspiracy claim boiled down to the allegation that the defendants “conspired to act in concert”. This claim lacks meaning without an underlying tortious or criminal activity. “Concert of action” cannot be the tort or unlawful action underlying a conspiracy claim. Concert of action is itself a claim which, like conspiracy, cannot exist independently of an underlying tortious act. l6a Appendix B Opinion Furthermore, of the specific allegations in the proposed pleadings, only one, defendants’ inhibition of product inden- tification, approached the level of intent or agreement requi- site to a conspiracy claim. Conspiracy entails ‘‘an agreement, or preconceived plan, to do an unlawful act”. Bahr v Miller Bros Creamery, 365 Mich 415, 427; 112 NW2d 463 (1961). However, plaintiffs allegation of an agreement to inhibit product indentification suffers from the absence of an unlawful purpose. Plaintiff does not specify why it is unlawful to inhibit product identification in the absence of a statute requiring clear identifying marks on a product. It is not enough that plaintiff simply asserts a conclusion. Pre- lesnik v Esquina, 132 Mich App 341; NW2d (1984). Thus, the proposed pleading is legally insufficient on its face. Fyke & Sons v Gunter Co, 390 Mich 649, 660; 213 NW2d 134 (1973). We find that the tiiai court did not abuse its discretion by refusing plaintiff leave to file her third amended com- plaint containing the conspiracy claim. Enterprise Liability Also, the trial court correctly denied leave to file the proposed fourth amended complaint, since enterprise lia- bility is not recognized in Michigan. Abel, 418 Mich 336-337. The amended complaint would still have failed to state a claim. Zimmerman, supra. This case is reversed and remanded for trial of plaintiff's concert of action claim against the wheel manufacturers, except defendant AMF. In all other respects, the judgment is affirmed. | Affirmed in part, reversed and remanded in part. /s/ Roman S. Gribbs /s/ Harold Hood /s/ Richard M. Maher APPENDIX C 17a Appendix C Amended Opinion AMENDE® UPINION STATE OF MICHIGAN COURT OF APPEALS THELMA COUSINEAU, Personal Representative of the Estate of MARK COUSINEAU, Plaintiff-Appellant, (JAN 2 1985] ing es 2 Amended Opinion ad No. 69363 Forp Motor Company, a foreign corporation, INTERNATIONAL HARVESTER COMPANY, a foreign corporation, GOODYEAR TiRE & RUBBER COMPANY, a foreign corporation, KELSEY Hayes CORPORATION, a foreign corporation, Bupp CorporaTION, a foreign corporation, FIRESTONE Tire & RUBBER COMPANY, a foreign corporation, FRUEHAUF CORPORATION, a foreign corporation, and AMF, INnc., a foreign corporation, Defendants-Appellees. —Before: R.S. Gribbs, P.J., H. Hood and R.M. Maher, JJ. R. S. Gribbs,. J. Plaintiff appeals as of right from an order granting sum- mary judgment for defendants on her wrongful death claim, and a subsequent order denying her motion for reconsidera- tion and denying her leave to amend her complaint. We affirm in part and reverse in part. Plaintiff brought suit on October 29, 1980, alleging her son, Mark Cousineau (decedent), was killed on May 8, 1979, while repairing a truck tire mounted on a three-piece wheel. Decedent was an employee of Jaeger Brothers Construction Co, which owned several trucks, including four or five made by Ford, two by International Harvester, and at least one Fruehauf Trailer. In addition, Jaeger Brothers had numerous 18a Appendix C Amended Opinion tires and wheels collected from other trucks at the work- place. On May 8, 1979, decedent, who had only been employed for two days, was assigned to repair truck tires. While decedent was working on a three-piece rim, the wheel explosively disengaged, striking and killing decedent. Ronald Jaeger found a three-piece rim held together by a safety chain at the accident site. The tire was still intact and was subsequently used. The rim parts were at first kept separate, but were later mixed with the general rim stock of the busi- ness, rendering identification of the rim involved in the acci- dent impossible. Plaintiff sued wheel manufacturers Goodyear, Kelsey Hayes, Budd and Firestone, and vehicle manufacturers Ford and International Harvester. Plaintiff claimed decedent's injuries resulted from negligent wheel design, failure to ade- quately warn, and failure to provide safety devices by the wheel manufacturers. She further alleged that the defendant vehicle manufacturers negligently produced and sold vehi- cles which required and/or utilized multi-piece wheels. Plaintiff's complaint also contained an allegation of breach of implied warranty. Goodyear and Kelsey Hayes moved for a more definite statement of the claim, stating that plaintiff ““must be required to identify the manufacturer of the wheel and rim” involved in the accident, and “must be ordered to identify one vehicle manufacturer”. Plaintiff filed an amended complaint and added Fruehauf (vehicle manufacturer) and AMF (wheel manufacturer) as defendants. In the amended complaint, plaintiff set forth claims of alternative liability and concert of action. All defendants except AMF and Fruehauf moved for summary judgment pursuant to GCR 1963, 117.2(1) and (3), based on plaintiff's inability to attribute the wheel in ques- — ‘ i 3 : 19a Appendix C Amended Opinion tion to a particular wheel or vehicle manufacturer. Plaintiff admitted, then as now, that she could not identify the spe- cific manufacturer of the subject wheel or the vehicle from which it came. Attached to the wheel manufacturers’ motions were affidavits of their employees, each of whom averred that defendants’ products are identifiable since they are stamped with a part number and name of the manufac- turer. In addition, the affiants for Firestone and Budd stated that truck rims are distinguishable from one another because of the multiplicity of rim designs. International Har- vester submitted an affidavit and company records showing that the International Harvester truck owned by decedent's employer was originally equipped with two-piece rims. After two adjournments of the motion for summary judg- ment to permit discovery, plaintiff filed a response to the motions. She asserted that the named defendants included “the only major manufacturers” of three-piece wheels “sim- ilar to the one that plaintiff's decedent was handling at the time of his injury”. Regarding the identification issue, plain- tiff argued that the manufacturer’s stamp “is subject to wear, rust and corrosion” which “obliterates the identifica- tion’. Plaintiff contended that truck rims made by various defendants are “very similar in size and configuration”, that “there was no one design that could be identified with one specific manufacturer’, and that “the wheels are essentially of a generic design”. Plaintiff also stated that the manufac- turer of a wheel assembly could not be determined “without the closest of examination”. In support of her alternative liability and concert of action claims, plaintiff submitted numerous documents obtained through discovery. The pertinent matter is summar- ized as follows: The manufacturers cf three-piece rims were made aware, through accident reports, of the problems arising from their 20a Appendix C Amended Opinion products, but ascribed the problems to improper “shop practices”. These practices included non-compliance with the manufacturers’ recommended procedures for assembly, disassembly, and maintenance and safety precautions. Fire- stone urged vehicle manufacturers to print warning materials in the vehicle owner manual. However, the wheel manufac- turers felt that printed warnings on the rim components themselves could be ineffective since they would be covered by corrosion. In a letter to Budd dated May Ii, 1976, an attorney for Firestone denigrated the effectiveness of such warnings and further stated, “I would hate to be confronted by a plaintiff's lawyer with another company’s warning if my product did not have one”. The same letter proposed an industry meeting and urged that the different manufacturers not take varying positions on the warning issue. Beginning in 1976, the wheel manufacturers, through the “Rubber Manufacturers Association” and “Multipiece Rim Manufacturers” organizations, campaigned for promulgation of federal OSHA standards governing work with multi-piece rims. Their goal was “to remove all of the burden from the Wheel and Rim manufacturers” and to place responsibility for safety precautions “on the only person in practical posi- tion to discharge such responsibility, i.e. the employer’. In April of 1980, OSHA promulgated a regulation requiring the posting of information and warnings in truck tire mainte- nance facilities, and the training of mechanics working with multi-piece wheels. A Budd document dated February 2, 1976, noted the tendency of “standardization” in the truck rim industry and the dangers posed by the similarity of different products. It noted that, while some rim components manufactured by different companies were interchangeable, in some cases “mixed side rings are a definite safety hazard”. The man- 2la Appendix C Amended Opinion ufacturers exchanged information on part interchangeability so that charts could be formulated to guide mechanics on this problem. The defendant vehicle manufacturers purchased substan- tial numbers of multi-piece rims for use as original equip- ment. The petition to OSHA indicates that 98% of all multi- piece rims sold are used as original equipment. However, there is nothing in the record to show that vehicle manufac- turers, as opposed to wheel manufacturers, were involved in the OSHA petition campaign. References to defendant wheel manufacturer AMF were also absent from plaintiff's documents, since AMF sold its truck rim subsidiary (“Cleveland Welding Division”) to Budd in 1959. At the December 10, 1982, hearing on the motion for summary judgment, plaintiff argued that summary judgment would be premature, since discovery was not complete. Counsel for Goodyear replied that no amount of discovery would disclose the identity of the manufacturer of the wheei involved in the accident. In granting the motion in favor of defendants, the trial court stated, “We're not talking about a generic product that cannot be identified”. Rather, the court concluded, “This is a case where the wheel that we're talk- ing about disappeared”. Prior to the grant of summary judgment, plaintiff moved for leave to amend her complaint. She submitted a proposed third amended complaint containing an allegation of civil conspiracy, and a fourth amended complaint which advanced a claim of “enterprise liability’. Hall v E 1 DuPont DeNemours & Co, 314 F Supp 353 (E D NY 1972). At the hearing on the motions to amend, plaintiff conceded “there’s no cause of action for conspiracy unless you've got an underlying cause”. Plaintiff also requested reconsidera- tion of the grant for summary judgment. 22a Appendix C Amended Opinion The trial court denied leave to amend the compiaint without comment. It also denied the motion for reconsidera- tion, distinguishing Abel v Eli Lilly & Co, 94 Mich App 59; 289 NW2d 20 (1979), aff'd 418 Mich 311; 343 NW2d 164 (1984). Alternative Liability Plaintiff first contests the granting of the summary judg- ment for defendants on plaintiff's alternative liability claim. She argues that the theory of alternative liability applies where a plaintiff, through no fault of his own, cannot iden- tify the specific defendant responsible for his injuries. The trial court did not specify the court rule underlying its grant of summary judgment. It granted summary judg- ment because the wheel would be identifiable if it were available, basing this conclusion on plaintiff's admission and defendant's affidavit. Since the court went beyond the plead- ings in reaching its decision, the judgment will be reviewed as granted pursuant to GCR 1963, 117.2(3). Under this court rule, the nonmoving party must establish that it has a case on the law and that there are some evidentiary proofs to support its allegation as to any material fact. Durant v Stahlin, 375 Mich 628, 638: 135 NW2d 392 (1965). Substantial guidance is provided by the recent decision in Abel, in which the Supreme “ourt expressed formal approval of the theory of alternative liability. 418 Mich 329. As noted by this Court in Greene v Union Optical Center, 95 Mich App 167, 171; 290 NW2d III (1980), “[iJn certain situations, a plaintiffs burden of proof may be shifted to the defendants where more than one defendant has been negli- gent and the plaintiff is unable to prove which of the two defendants caused his injury”. Prerequisite to such a shift, plaintiff must show, first, that all defendants acted tor- tiously; second, that plaintiff was harmed by one of the na NA il lh yt tts ia a AN Ay stn A” a hl ne are oe 23a Appendix C Amended Opinion defendants; and, third, that plaintiff, “through no fault of {his or her] own, [is] unable to identify which actor caused the injury”. Abel, 418 Mich 331-332. Plaintiff fastens her argument onto the latter language, ignoring iiie policy under- lying alternative liability theory. That policy was clearly stated by the Court in the Abel opinion: “(The] reason for the exception to traditional rules is to prevent the injustice of allowing proved wrongdoers to escape liability for an injury inflicted upon an innocent plaintiff ‘merely because the nature of their conduct and the resulting harm made it difficult or impossible to prove which of them has caused the harm.’ ” 418 Mich 327, citing 2 Restatement Torts, 2nd, §433B, Comment f, p 446 (emphasis added). In Abel, the plaintiffs alleged they were harmed by their consumption of synthetic estrogens. 418 Mich 318. Their inability to identify the specific manufacturer which caused the harm resulted from the inherent nature of the product. Once ingested, the medication was irretrievable for use as evidence. Also, plaintiffs alleged that defendants used “a generic marketing scheme to promote the product”. 418 Mich 336. In its decision in Abel, this Court noted the diffi- culties posed by the number of defendants and by the length of time between the ingestion of the allegedly defective drug and the appearance of the damages. 94 Mich App 76. In this case, however, the wheel assembly which gave rise to the injury did not disappear, nor was its source ren- dered unidentifiable by the defendants’ conduct. It remained available for use as evidence and was, in fact, kept separate from the wheel inventory of decedent’s employer for quite some time. Plaintiff argues that the similarity of three-piece rims renders them unidentifiable, but admits the wheel could be identified if it were available. The interchange of parts 24a Appendix C Amended Opinion between wheel rim manufacturers indicates only that more than one manufacturer may have made the components in question, not that the parts could not be identified. Plaintiff further contends that the identifying stamp on the product was probably obscured by dirt and corrosion, so the dece- dent could not read it. This is sheer speculation, given the ‘unavailability of the evidence. As to the vehicle manufacturers, plaintiff's claim of alter- native liability is insufficient as well. Trucks are not generic products posing identification difficulties. Plaintiff admits she cannot identify the particular vehicle which was equipped with the subject wheel assembly. In addition, she cannot prove that the wheel was used as original equipment on any of the trucks at decedent’s work place. The defend- ant vehicle manufacturers are not in the business of making three-piecé rims. Though a vehicle manufacturer may be held liable for damages caused by defective component parts supplied by another entity, Comstock v General Motors Corp, 358 Mich 163; 99 NW2d 627 (1959), this duty has not yet been extended to component parts added to a vehicle subsequent to distribution. Assuming the existence of a defect, plaintiff must “trace that defect in the hands” of the defendant. Caldwell v Fox, 394 Mich 401, 410; 231 NW2d 46 (1975). “The threshold requirement of any product liability action is identification of the injury-causing product and its manufacturer.” Abel, 418 Mich 327. Failure of a com- ponent not supplied by the manufacturer does not give rise to liability on the manufacturer’s part. Antcliff v State Employees Credit Union, 95 Mich App 224, 231-233; 290 NW2d 420 (1980), aff'd 414 Mich 624; 327 NW2d 814 (1982). Concert of Action Plaintiff next argues that the trial court erred in granting summery judgment in favor of defendants on plaintiff's con- cert of action claim. Plaintiff argues that she submitted doc- 25a Appendix C Amended Opinion umentary evidence of the joint efforts and conscious parallelism in the wheel industry, and that defendants acted to direct government inquiry away from themselves. Because the trial court relied on affidavits outside the pleadings in granting summary judgment, we again review the summary judgment as one granted pursuant to GCR 1963, 117.2(3). A motion for summary judgment pursuant to this court rule should not be granted unless it is impossible for the claim asserted to be supported by evidence at trial. Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973). The data which the trial court considers in ruling on the motion are “affidavits, together with the pleadings, deposi- tions, admissions and documentary evidence then filed in the action or submitted by the parties’. GCR 1963, 117.3: Rizzo, supra, p 373. A plaintiff may proceed on the theory of concert of action if he or she can prove “that all defendants acted tortiously pursuant to a common design”. Abe/, 418 Mich 338. “Express agreement is not necessary, and all that is required is that there be a tacit understanding.” Prosser, Torts (4th ed), $46, p 292. “A concert of action case does not require that the plaintiff be unable to identify the spe- cific defendant who caused his injury.” Abel, 418 Mich 338. Rather, each defendant “is jointly and severally liable for the entire amount of damages, although he may be entitled to contribution from his fellow tort feasors.” Abel, 94 Mich App 73. “Even if defendant caused no harm himself, he is liable for the harm caused by his fellows because all acted jointly.” 94 Mich App 73. “. . . [T]Jo state a cause of action, a plaintiff need only allege that the defendants were jointly engaged in tortious activity as a result of which the plaintiff was harmed.” Abel, 418 Mich 338, citing Walters v Sargent, 390 Mich 775; 210 NW2d 315 (1973), adopting partia! dissent in Walters v Sargent, 46 Mich App 379, 384; 208 NW2d 207 (1973). 26a Appendix C Amended Opinion in this case, the trial court did not give this claim the individual consideration it deserved, but disposed of it on the same basis as the alternative liability claim—failure to identify the source of the wheel. As noted above, the identi- fication problem is not a sine qua non of a concert of action claim. Each defendant who acted jointly and tortiously is liable, even though his conduct was not the direct cause of the injury. Thus, in the context of this case, we hold that it does not matter if the party causing the injury in fact is not joined in the concert of action claim, since all those acting in concert, named and unnamed defendants, are jointly and severally liable for the entire harm. Abel, 94 Mich App 73.! As discussed below, plaintiff is entitled to recover from defendant wheel manufacturers on a concert of action the- ory if she can prove that they acted tortiously pursuant to a common design and that such action proximately caused the injury. She can prove tortious activity pursuant to a common design if she establishes that the wheel manufacturers, act- ing jointly, breached their duty to warn of the danger posed by their products (negligence or breach of implied warranty theory). See Smith v E R Squibb & Sons, 405 Mich 79; 273 NW2d 476 (1979). She can also recover if she can prove that the wheel manufacturers, acting jointly, manufactured/mar- keted an unreasonably dangerous product (negligence or negligent design theory). See Owens v Allis-Chalmers Corp, 414 Mich 413; 326 NW2d 327 (1982); Moning v Alfono, 400 Mich 425; 254 NW2d 759 (1977). A showing by plaintiff that there is some evidence supporting these claims would pre- clude summary judgment. Rizzo, supra. !Although each defendant tortfeasor who acts in concert is jointly and severally liable, the plaintiff may join others in the suit who also engaged in such « sduct, GCR 1963, 206.1, and defendants may seek contribution after juugment. MCL 600.2925a; MSA 27A.2925(1); Abel, 94 Mich App 73. The defendant may also implead nonjoined tortfeasors as third party defendants and seek contribution. GCR 1963, 204. 27a Appendix C Amended Opinion Plaintiff made a sufficient showing that defendant wheel manufacturers acted jointly in failing to warn of a danger in their products to survive their summary judgment motion. Plaintiff submitted an affidavit and other data to show that the wheels and the mismatch of wheel components posed a danger, and that the defendants were aware of the numerous incidences of death and injury resulting from wheel explo- sions. The record does not establish that plaintiff had any warning whatsoever from the wheel manufacturers, or that any of these manufacturers were in the practice of supplying warnings to those affected by the use of their products. Although defendants argue that their products are safe when used properly, and that they took adequate measures to warn those working with the wheels, these arguments relat- ing to the reasonableness of their conduct are for the trier of fact. Smith, supra, pp 88-90; Dunn v Lederle Laboratories, 121 Mich App 73, 79-80; 328 NW2d 576 (1982), lv den 417 Mich 1098 (1983). By engaging in the joint OSHA petition campaign, the wheel manufacturers arguably proposed a government role to relieve themselves of their duty to warn those working with the multi-piece rims. Plaintiff provided documentation showing that the multi- piece rims manufactured/marketed by the wheel manufac- turers were dangerous, and that the manufacturers knew of the danger posed by their products and the mismatch of components of their products. Plaintiff might submit proofs at trial that all three-piece rims posed risks “unreasonable in light of the foreseeable injuries’. Owens, supra, p 425. Plaintiff also showed that, rather than change the design of 2Defendants are correct insofar as the OSHA petition campaign can- not be viewed as tortious activity. Nonetheless, the same activity indi- cates an awareness of the wheel industry as a whole of the gravity of the problem and could be interpreted as a cooperative effort to avoid respon- sibility for the :.sks posed by multi-piece rims. 28a Appendix C Amended Opinion the rims or the rim components, the wheel manufacturers acted jointly in exchanging information and composing charts to show which products were safely interchangeable and which were not. This conduct, as well as the OSHA petition campaign, could indicate a tacit understanding and mutual encouragement to refrain from taking more reason- able steps to prevent the danger posed by the multi-piece wheel rims. In addition, plaintiff would have to establish that the above alleged tortious activity engaged in by the wheel man- ufacturers proximately caused the injury. Although the explosion of the multi-piece rim caused decedent’s death in fact, the question of proximate cause is whether or not the conduct of the wheel manufacturers was so significant and important a cause that they should be legally responsible. Moning, supra, p 438. Although proximate cause is a ques- tion of law where there are no factual disputes, Moning, supra, pp 438-439, in a negligence action (which is essen- tially the underlying tortious activity of plaintiff's concert of action claim), any doubts about the relationship between cause and effect should be resolved by the trier of fact. Fiser v City of Ann Arbor, 417 Mich 461, 475; 339 NW2d 413 (1983). Summary judgment can only be granted if reasonable persons could not differ in finding that the wheel manufac- turers’ conduct was not a proximate cause of the injury. Fiser, supra, p 470; Davis v Thornton, 384 Mich 138, 142-146; 180 NW2d 11 (1970). Because summary judgment for deiendant wheel manufacturers was not granted on this ground, we leave this question for the trial court. Although plaintiff made a sufficient showing to survive a motion for summary judgment on her concert of action claim against the wheel manufacturers, she did not do so with respect to AMF. There was no indication that defend- ant AMF acted pursuant to a common design of the other 29a Appendix C Amended Opinion defendants prior to sale of its wheel manufacturing division in 1959. Thus, the trial court was correct as to AMF, but erred in granting summary judgment pursuant to GCR 1963, 117.2(3), in favor of the other wheel manufacturers. Plaintiff's concert of action claim against the vehicle manufacturers is not supported by any showing that they acted jointly with the wheel manufacturers. The purchase of wheels for use as original equipment on their vehicle is not sufficient for a finding of concert of action. ““One who inno- cently, and carefully, does an act which furthers the tortious purpose of another is not acting in concert with him.” Pros- ser, supra, p 292. Thus, the grant of summary judgment for defendant vehicle manufacturers was proper. Leave to Amend Plaintiff finally argues that the trial court erred by deny- ing plaintiff leave to amend her complaint. In her proposed third amended complaint, plaintiff sought to add allegations of civil conspiracy. Plaintiff also submitted a proposed fourth amended complaint, alleging “enterprise liability”. Leave to amend a complaint “shall be freely given when justice requires”. GCR 1963, 118.1; Midura v Lincoln Con- solidated Schools, \11 Mich App 558, 562; 314 NW2d 691 (1981). The grant or denial of the motion to amend is within the discretion of the trial court. McCalla v Richard Ellis, 129 Mich App 452; 341 NW2d 525 (1983). Furthermore, sum- mary judgment does not preclude amendment of the com- plaint. Midura, supra, p 56. However, failure to grant leave to amend is not reversible error where the pleadings as sought to be amended still fail to state a claim. Zimmerman v Stahlin, 374 Mich 93, 96; 130 NW2d 915 (1964); Crosby v City of Detroit, 123 Mich App 213, 223; 333 NW2d 557 (1983). 30a Appendix C Amended Opinion Conspiracy “A conspiracy is a combination of two or more persons, by some concerted action, to accomplish a criminal or unlawful purpose, or to accomplish a purpose not unlawful by criminal or unlawful means.” Fenestra v Gulf American Land Corp, 377 Mich 565, 593; 141 NW2d 36 (1966) (empha- sis added). An allegation of civil conspiracy, standing alone, is not actionable; Magid v Oak Park Racquet Club Assocs, Limited, 84 Mich App 522, 529; 269 NW2d 661, /v den 404 Mich 805 (1978). In this case, plaintiff's proposed third amended com- plaint contained no allegation that defendants employed unlawful methods to attain a lawful end. The group activities listed by plaintiff were entirely lawful. On the other hand, the unlawful purposes alleged were largely polemic restate- ments of plaintiff's concert of action allegations. Plaintiff's conspiracy claim boiled down to the allegation that the defendants “conspired to act in concert”. This claim lacks meaning without an underlying tortious or ciminal activity. “Concert of action” cannot be the tort or unlawful action underlying a conspiracy claim. Concert of action is itself a claim which, like conspiracy, cannot exist independently of an underlying tortious act. Furthermore, of the specific allegations in the proposed pleadings, only one, defendants’ inhibition of product identi- fication, approached the level of intent or agreement requi- site to a conspiracy claim. Conspiracy entails ‘‘an agreement, or preconceived plan, to do an unlawful act”. Bahr v Miller Bros Creamery, 365 Mich 415, 427; 112 NW2d 463 (1961). However, plaintiff's allegation of an agreement to inhibit product identification suffers from the absence of an unlawful purpose. Plaintiff does not specify why it is unlawful to inhibit product identification in the absence of a statute requiring clear identifying marks on a product. It is 3la Appendix C Amended Opinion not enough that plaintiff simply asserts a conclusion. Pre- lesnik v Esquina, 132 Mich App 341; 347 NW2d 226 (1984). Thus, the proposed [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0772%3A1. Public record. Not legal advice.