Not for Publication in West’s Federal Reporter 

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 02-1849

ELAINA MALINOWSKI, Individually, and as Administratrix

of the Estate of Michael Malinowski, a/k/a Michael Anthony

Chafee-Malinowski,

Plaintiff, Appellant,

v.

DOCUMENTED VEHICLE/DRIVERS SYSTEMS, INC., 

a/k/a DVD SYSTEMS, INC., UNITED PARCEL SERVICE.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

 Lynch, Circuit Judge,

Campbell, Senior Circuit Judge,

and Howard, Circuit Judge.

Ronald J. Resmini, Jolicoeur & Resmini Co., Inc., Resmini &

O'Hare and Robert D. Parrillo on brief for appellant.

Edward L. Gnys and Armstrong, Gibbons & Gnys, LLP on brief for

appellee, Documented Vehicle/Drivers Systems, Inc.

George A. Dagon, Jr., Murtha Cullina LLP, Lori Caron Silveira,

Tillinghast Licht Perkins Smith & Cohen, LLP on brief for appellee,

United Parcel Service, Inc.

May 30, 2003
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Per Curiam. The Appellant, Elaina Malinowski, appeals

from the district court's order granting summary judgment to

Appellees, United Parcel Service, Inc. ("UPS") and Documented

Vehicle/Drivers Systems, Inc. ("DVD"). Ms. Malinowski argues that

the district court erred when it ruled that the Rhode Island

Supreme Court would not recognize an independent tort for

spoliation of evidence and that it further erred in concluding

that, even supposing it did recognize such a cause of action, she

failed to meet the essential elements. We find it unnecessary to

rule on the first ground and affirm on the second ground. 

I. BACKGROUND

On December 27, 1991, fourteen year old Michael

Malinowski was struck and killed by a UPS tractor trailer operated

by Stephen Hogan. The accident occurred as Michael and three

friends were walking along Taunton Avenue in East Providence,

engaged in horseplay, jumping and shoving each other. As the UPS

truck approached the four boys, Michael was pushed by one of his

friends. He lost his balance and fell into the road just as the

UPS truck passed.

The accident was investigated by the State Police and by

UPS. After the State Police had completed their inspection of the

truck, a UPS supervisor, James Kershaw, removed a "tachograph disc"

from the vehicle. Such a disc, consisting of a round coated paper

chart, tells the movement and speed of the vehicle as recorded on
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a tachograph located in the cab of the truck. UPS sent the

tachograph disc to DVD in California for an independent analysis.

On January 6, 1992, DVD issued a report and returned the disc to

UPS. The DVD report stated that the tachograph disc "has not been

properly cared for," but that the information was readable.

According to DVD, the tachograph disc indicated a speed of about 33

miles per hour at the time of the accident. But the report also

noted a number of discrepancies in the data, as well as a

"mechanical error in the recording device," and concluded that the

disc was of "very little value" in determining Hogan's actual speed

at the time of the accident. Upon receipt of the report, UPS

placed the tachograph disc and the report in an Accident Folder. 

Apart from obtaining the DVD report, UPS performed

independent tests on the truck, specifically a veeder test. A

veeder test uses a meter installed in the transmission to check the

accuracy of the speedometer/odometer, by driving the vehicle a

measured distance. The veeder test indicated that the tachograph

in the vehicle was inaccurate by 26 percent, which, according to

UPS, meant that the tachograph was recording speeds 26 percent

higher than the actual speed of the vehicle. 

On September 27, 1993, Ms. Malinowski, individually and

as administratrix of the estate of Michael, brought a wrongful

death action in the Rhode Island state court against Stephen Hogan

and UPS. Ms. Malinowski alleged that Hogan, who had conceded
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seeing the boys at the side of the road, was negligent and was

driving too fast as he approached the boys. At the start of the

trial, in May 1997, Ms. Malinowski obtained the tachograph disc and

DVD report from UPS. The disc was discolored but readable. The

trial judge, with some hesitation, admitted the tachograph disc as

an exhibit. Neither party sought to introduce the DVD report.

Over defense objections, the court allowed Ms. Malinowski's counsel

to elicit testimony regarding the speed reading on the disc.

Kershaw, the UPS supervisor, testified that the disc showed a speed

of 32-33 miles per hour at the time of the accident. The speed

reading was in direct contradiction to Hogan's testimony that he

was traveling approximately 20 miles per hour at the time of the

accident. Kershaw also testified that the tachograph disc showed

"continuous" or "progressive" acceleration of the vehicle up to the

time of the accident. This testimony also contradicted Hogan's

report that he honked and decelerated when he saw the boys and then

accelerated when it appeared that they had stopped their horseplay.

In response, UPS's counsel had Kershaw testify to the veeder test,

explaining how the veeder test had established that the tachograph

speed readings were inaccurate.

On May 21, 1997, the jury returned a verdict for the

defendants. The plaintiff appealed and, in May 1999, the Rhode

Island Supreme Court vacated the judgment and remanded based upon

errors in the jury instructions not relevant here. See Malinowski
1Specifically, the court stated: 

For the tachograph readings as to speed to be admissible,

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v. United Parcel Serv., Inc., 727 A.2d 194 (R.I. 1999). Neither

side appealed from the court's rulings admitting into evidence the

tachograph disc and the veeder test, and the Rhode Island Supreme

Court's opinion does not mention these rulings.

In October 1999, the case was assigned for a second trial

before a different judge. At the second trial, UPS challenged the

admissibility of the tachograph disc. UPS argued that the

plaintiff had not produced an expert to establish the accuracy of

the tachograph, and that the available evidence was that the

tachograph was not accurate. The trial judge heard testimony,

outside the presence of the jury, regarding the accuracy of the

tachograph. Kershaw testified to the UPS records of repairs to

Hogan's vehicle, which showed that what he termed the speed gear

had been inaccurate for two months prior to the accident and that

replacement parts had been ordered but were not installed until

after the accident. Hogan testified that he had been aware of a

problem with the speedometer in his vehicle before the accident.

As a result, the trial judge concluded that the speed readings from

the tachograph should be excluded. The court ruled that the

evidence provided by the tachograph was scientific evidence and

that the plaintiff had not established a foundation regarding the

accuracy of that evidence as it related to the speed of the truck.1
there must be evidence that the tachograph was in good

working order and accurate at the time the recording of

speed was made. Absent an appropriate foundation as to

the accuracy of the tachograph speed reading, the

evidence as to the speed cannot be deemed relevant

scientific evidence to be placed before the jury. 

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However, because neither party contested the accuracy of the

reading regarding the deceleration and acceleration of the vehicle,

testimony regarding that reading was to be allowed. 

Thus, the second jury was not allowed to hear the

tachograph readings giving the vehicle's purported speed. The jury

in the second trial did, however, hear Kershaw testify that the

line on the tachograph chart indicated "continuous" or

"progressive" acceleration as the vehicle approached the point of

the accident.

At the end of the second trial, Ms. Malinowski's counsel

submitted a proposed jury instruction based on a Rhode Island

evidentiary rule that permits an adverse inference for the

unexplained, deliberate destruction or mutilation of relevant

evidence. See Rhode Island v. Barnes, 777 A.2d 140, 145 (R.I.

2001) (describing the "doctrine of spoliation"). The court

declined to give a jury charge on spoliation. The court observed

that the tachograph was in evidence and that the plaintiff had

failed to identify "what evidence was the subject of an argument

regarding spoliation." On October 8, 1999, the jury returned a

verdict for the defense.
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Ms. Malinowski filed numerous post-trial motions,

including motions seeking a new trial. The motions for a new trial

were based upon two theories: a contention that the court erred in

excluding the tachograph speed reading, and a claim of "newly

discovered" evidence. In support of these motions, Ms. Malinowski

submitted unsworn reports from two people averring to be experts in

tachograph analysis. Both individuals commented on the discolored

nature of the tachograph disc, one citing its "deplorable

condition" and the other his difficulty in reading it. Ms.

Malinowski cited these comments as evidence that either UPS or DVD

had tampered with the disc. However, both individuals went on to

report data they had obtained from the disc and they did not

suggest that the condition of the disc had prevented them from

reading it. Indeed, except for a ten and a half mile error on the

speed stylus, one expert expressly found no evidence of error, and

neither of them noted any problem understanding and analyzing the

disc notwithstanding its poor condition. 

Mr. Resmini, Ms. Malinowski's counsel, also submitted an

affidavit in which he stated that he had just "discovered" that DVD

was still in existence. Based on a comment by a UPS employee

during the first trial, Mr. Resmini had believed that DVD had gone

out of business and, as a result, he had not sought to investigate
2Mr. Resmini suggests that UPS attempted to prevent Ms.

Malinowski from contacting DVD by misrepresenting under oath that

DVD was no longer in existence. During the first trial, Mr.

Resmini asked a UPS employee whether DVD was still in existence.

The employee responded: "No, they are not. I really can't answer

that. We did try to contact them but -- ." The testimony at issue

is not a definitive statement of whether DVD remained in business

nor does it explain why Mr. Resmini waited until after the second

trial to obtain independent verification of DVD's existence. 

3On this point, the court seemed somewhat perplexed by the

lack of effort on Ms. Malinowski's part to diligently develop the

evidence necessary to support her claims. The court observed:

The absence of diligence on the expert front by plaintiff

is remarkable. There was an obvious lack of diligence

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DVD's involvement.2 Mr. Resmini also averred that he had spoken by

phone with the current owner of DVD, Mr. Wilson, and that Mr.

Wilson had informed him that the tachograph disc was in extremely

poor condition. Mr. Wilson, however, declined to submit an

affidavit averring to the condition of the disc or offer an opinion

regarding its accuracy.

The trial court denied each of the post-trial motions.

The court expressly rejected Ms. Malinowski's argument that any

alleged mishandling of the tachograph disc by UPS had prevented

Malinowski from laying the foundation for admissibility of the

speed reading. With regard to the motion for new trial, the court

first observed that Mr. Resmini's affidavit was inadmissible

hearsay. Second, the court noted that even if deemed admissible,

the information in the affidavit could have been discovered prior

to trial.3 Third, the court held that, even if considered new
pertaining to the tachograph that predates even the first

trial. There was no effort made by plaintiff [in

discovery] to request the tachograph or records bearing

on speed (which would have included the DVD report prior

to the first trial . . . .). When the plaintiff finally

learned about the tachograph and the defendant's expert

report by DVD during the first trial in 1997 (which was

six years post accident) no apparent effort was made from

that point until after the second trial in 1999 to have

the tachograph examined or to depose anyone at

DVD . . . .

4The court had made a similar observation earlier in the

hearing.

[E]ven assuming, arguendo, that the evidence as to speed,

as registered on the tachograph, should have been

admitted, this Court is not convinced that it would have

altered the result of this case. After all, the jury in

the first trial heard this evidence and reached the same

conclusion as the second jury, albeit with different jury

instructions . . . . More importantly, the more critical

evidence as to speed was not so much the actual speed of

the truck but the evidence of continued acceleration

(which this Court allowed). 

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evidence, the information probably would not have affected the

outcome of trial. The court concluded that "[t]he evidence of

actual speed is far less relevant than the evidence of acceleration

or the other evidence of what actions Mr. Hogan did or did not take

. . . . I am not convinced that the introduction of evidence as to

speed would have altered the jury's verdict in this case . . . ."4

Ms. Malinowski appealed, contending that the lower court

erred in refusing to admit the tachograph speed reading in

evidence, in declining to charge the jury on spoliation, and in

denying the post-trial motions. The Rhode Island Supreme Court
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affirmed the rulings of the lower court, concluding that each of

the rulings was an appropriate exercise of discretion. See

Malinowski v. United Parcel Serv., Inc.(Malinowski II), 792 A.2d 50

(R.I. 2002). The court opined that "the jury heard the most

compelling information revealed by the tachograph -- that Hogan had

failed to decelerate upon seeing [the boys] . . . ." Id. at 54.

The court further recognized that "speed may not have been a factor

in this accident because it is undisputed that Michael was struck

by the rear wheels of the truck . . . ." Id.

 Following the dismissal of her appeal in the wrongful

death action, Ms. Malinowski brought this independent tort action

in the Rhode Island state court claiming that the condition of the

tachograph disc was the cause of her inability to obtain a

favorable jury verdict in the wrongful death action. According to

Ms. Malinowski, had the tachograph not been "destroyed" it would

have shown that Hogan was traveling at an excess speed at the time

of the accident and that he failed to slow down when he observed

the boys in horseplay -- in direct contradiction to Hogan's own

testimony. DVD and UPS removed the action to federal court.

DVD and UPS immediately filed motions for summary

judgment, arguing, inter alia, that Rhode Island did not recognize

a separate and independent tort for spoliation. Magistrate Judge

Lovegreen granted summary judgment to UPS and DVD. In a thorough

report and recommendation, he noted that the Rhode Island Supreme
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Court had not recognized a separate and independent tort of

spoliation, and went on to hold that it was unlikely Rhode Island

would do so given the problems such a tort would create and the

fact that a majority of "the states' highest courts considering

this issue have declined to adopt a separate and independent cause

of action for spoliation of evidence." Malinowski v. United Parcel

Serv., Inc., C.A. 01-273ML, report and recommendation, at 9 (D.R.I.

May 10, 2002). The magistrate judge further held that even if

Rhode Island recognized such a tort, Ms. Malinowski had failed to

adduce evidence that would establish its elements in her own case.

Id. at 20. Hence, she had not shown that the disc's discoloration

and poor condition were the cause of her inability to have obtained

a favorable jury verdict. Id. at 21. The magistrate judge noted

that although the independent experts that Ms. Malinowski had

retained to review the tachograph disc after the second trial had

commented on its poor condition, they were still able to read and

analyze the contents of the disc. The disc had not been destroyed,

mutilated or significantly altered as would be required to make out

a spoliation tort. Moreover, in the absence of evidence of why the

disc was in poor condition there was insufficient proof that

defendants had intended to damage the disc.

Ms. Malinowski objected to the report and recommendation

of the magistrate judge. The district court agreed with the

magistrate judge's conclusion that Rhode Island would not recognize
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an independent tort for the spoliation of evidence. Malinowski v.

United Parcel Serv., Inc., No. 01-273ML, slip op. at 1 (D.R.I. June

17, 2002). The district court went on to conclude that even if the

tort were available, the Rhode Island Supreme Court's decision in

Malinowski II regarding the lack of materiality of the alleged

"newly discovered" evidence of spoliation eliminated an essential

element of such a tort claim. Id. at 2. The district court

entered judgment as a matter of law in favor of the defendants.

This appeal followed.

II. DISCUSSION

This court reviews grants of summary judgment de novo,

construing the record in the light most favorable to the nonmovant

and resolving all reasonable inferences in that party's favor.

Rochester Ford Sales, Inc. v. Ford Motor Co., 287 F.3d 32, 37 (1st

Cir. 2002). In opposing summary judgment, the nonmoving party "may

not rest upon the mere allegations or denials of [the] pleading,

but must set forth specific facts showing that there is a genuine

issue" of material fact as to each issue upon which he or she would

bear the ultimate burden of proof at trial. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 256 (1986) (internal quotations,

citation, and alteration omitted). This standard of review does

not limit us to the district court's rationale; we may affirm the

entry of summary judgment on "any ground revealed by the record."
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Houlton Citizens' Coalition v. Town of Houlton, 175 F.3d 178, 184

(1st Cir. 1999).

Neither the Rhode Island legislature nor the Rhode Island

Supreme Court has yet established or recognized the existence of an

independent tort for the spoliation of evidence. While both the

magistrate judge and the district court judge concluded that the

Rhode Island Supreme Court would not create such a tort, we see no

need to delve into the unchartered waters of Rhode Island law and

endeavor to prophesize whether the Rhode Island Supreme Court would

adopt an independent tort for spoliation of evidence. Compare,

e.g., Fletcher v. Dorchester Mut. Ins. Co., 773 N.E.2d 420, 426

(Mass. 2002) (declining to recognize an independent tort for

spoliation of evidence) with Torres v. El Paso Elec. Co., 987 P.2d

386, 404 (N.M. 1999) (recognizing a tort for the intentional

spoliation of evidence). 

We agree with the magistrate judge and the district court

that, even supposing the Rhode Island Supreme Court were to

recognize a spoliation tort, Ms. Malinowski has not set forth

specific facts making out such a hypothetical cause of action in

her case. Perhaps most telling is the absence of a factual basis

from which to conclude that DVD or UPS destroyed evidence so as to

affect her ability to obtain a favorable judgment in the wrongful

death action. While Ms. Malinowski's counsel argues that, from the

date of the accident, UPS, along with DVD, conspired to destroy and
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did destroy evidence related to the speed of the vehicle and

further, that the evidence related to speed was critical to the

outcome of the trial, the allegations lack material support in the

record. In the few states that recognize an independent tort for

spoliation of evidence, courts have required, inter alia, that a

party show a causal relationship between the act of spoliation and

the inability of the complainant to prove her lawsuit. See, e.g.,

Oliver v. Stimson Lumber Co., 993 P.2d 11 (Mont. 1999); Torres v.

El Paso Elec. Co., 987 P.2d 386, 401 (N. Mex. 1999).

To support her spoliation claim, Ms. Malinowski relies

heavily on the discoloration of the tachograph disc and other

evidence that the disc was in poor condition. According to Ms.

Malinowski, "[t]he tachograph was willfully destroyed" by either

UPS or DVD and, as a result, she "was unable to prove her case in

state court."

However, there is nothing to show that the poor condition

of the disc affected its accuracy or readability so as to

compromise its use at trial. To be sure, there was a dispute over

whether the speed reading rendered by the tachograph was too high

because of some mechanical malfunction. During the first trial,

the tachograph disc was admitted without limitation to show both

the vehicle's speed and rate of acceleration at the time of the

accident. While the disc was admittedly in a "darkened condition,"

this did not prevent Ms. Malinowski's counsel from eliciting the
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favorable testimony desired from a UPS supervisor showing the

disc's reading as to the speed of the vehicle at the time of the

accident, as well as its acceleration. UPS was allowed to counter

the evidence with testimony that the readings were not accurate

because of problems with the vehicle's speed gear that had preceded

the accident -- problems bearing no apparent relation to the

subsequent readability of the disc or to the claim of post-accident

spoliation of evidence. In the second trial, Ms. Malinowski's

counsel again tried to introduce the disc as evidence of the

vehicle's excessive speed. After UPS had objected and had

presented evidence of mechanical error preceding the accident, the

trial judge disallowed the use of the tachograph disc as it related

to the speed of the vehicle, finding that Ms. Malinowski had failed

to lay a sufficient foundation showing the accuracy of the speed

reading. But the trial judge admitted the tachograph disc for the

limited purpose of showing the vehicle's acceleration and

deceleration patterns. The court's exclusion of the disc's reading

as to speed was not linked to the discoloration or poor condition

of the disc itself. 

 The reports from Ms. Malinowski's experts in tachograph

analysis, Mr. Robert Blancarte and Dr. Nigel Kirkwood, further

weaken Ms. Malinowski's assertion that the condition of the disc

prevented her from obtaining a favorable jury verdict. While both

Mr. Blancarte and Dr. Kirkwood noted the poor condition of the
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disc, each was apparently able to read and analyze the information

on the disc. Indeed, they challenged DVD's report that the speed

shown on the disc was inaccurate, instead defending the accuracy of

the information obtained from the disc. Mr. Blancarte stated that

the DVD report "in no way established any error with the vehicle

and the chart speeds." Rather than suggest that the disc was

irreparably damaged, both reports tend to support the proposition

that the disc was readable and should have been accepted in

evidence at the second trial, as it was at the first trial, to show

the driver's true speed. That position is inconsistent with the

view that the disc had been so destroyed, mutilated or altered by

defendants as to render it defective as trial evidence.

We note further that the Rhode Island courts believed it

unlikely the exclusion of the speed evidence at the second trial

influenced the outcome. The Rhode Island Supreme Court upheld the

trial judge's decision to exclude the portions of the tachograph

disc related to speed in the absence of an expert opinion regarding

its accuracy. The court went on to state:

Further, the jury heard the most compelling

information revealed by the tachograph -- that

Hogan had failed to decelerate upon seeing

Michael and his friends, and in fact, had

accelerated continuously from the previous

traffic signal. Finally, speed may not have

been a factor in this accident because it was

undisputed that Michael was struck by the rear

wheels of the truck and after the accident he

was lying approximately fifty-three feet from

the rear of the trailer.
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Malinowski II, 792 A.2d at 54. This determination was echoed again

by the court when it concluded that the "newly discovered" evidence

regarding the potential spoliation of the tachograph disc "was not

material enough to affect the outcome of the trial." 

III. CONCLUSION

Even were the Rhode Island Supreme Court to recognize an

independent tort for the spoliation of evidence, Ms. Malinowski has

failed to demonstrate her ability to establish all the essential

elements. The order of the district court granting summary

judgment to DVD and UPS is affirmed.