Not for Publication in West’s Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3 

# United Stat es Court of Appeals

For the First C ircuit

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 .

RonaldJ. Resmini , Jolicoeur & Re smini Co., Inc. , Resmini & O'Hare and Robert D. Parrillo on brief for appellant. EdwardL. 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, 2003-2- Per Curiam . The Appellant, Elaina Malinow ski, appeals fromthe dis trict court's order granting summary judgment to Appellees, Uni te d 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

O n December 27, 1991, fourteen year old Mic hae l 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 tr uck approached the four boys, Michael was pushed by one of hi s friends. He lost his bala nce 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, removeda "tachograph disc" fromthe vehicle. Such a disc, consisting of a round coated paper chart, tells the movement and speed of the vehicle as recorded on-3-

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 properlycared for," but that the information was readable. According to DVD, the tachograph disc indicateda speed of about 33 mile s per ho ur at the time of the accident. But the report also noteda number of discrepancies in the dat a, as w ell 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 perform e d 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 speedomete r/od ometer, 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 andUPS. Ms. Malinowski alleged that Hogan, who had conceded-4-

seeing the boys at the side of the road, was negligent and was driving too fast as he approac hed 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 testimon y r egarding 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. Th e s peed reading was in direct contra dictio n to Hogan's testimony that he

was traveling approximately 20 miles per hour at t he ti me 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 contradictedHo gan's report that he honked and decelerated when he saw the boys and then acceleratedwhen it appeared that they hadstopped 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 Malinowski1 Specifically, the court stated:

For the tachograph readings as to speedto be admissible, -5- v. Un ited 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 secondtrial, UPS challenged the admissibilit y of t he 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 tha t 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 install ed until after the accident. Hogan testified that he had been aware of a problemwith the speedometer in his ve hicle 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. 1there must be evidence that t he tac hograph 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 sp eedreading, the evidence as t o the speed cannot be deemed relevant scientific evidence to be placed before the jury. -6- However, because nei ther 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 cha rt indicated "continuous" or "progressive" acceleration as the vehicle approached the point of the accident.

At the endof the second trial, Ms. Malinowski's counsel subm itted a proposed jury instruction based on a Rhode Island evidentiaryrule that permits an adver se i nference for the unexplained, deliberate destruction or mutilation of relevant evidence. See Rhode Islandv. B arne s , 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 failedto identify "what evidence was the subject of an argument regarding spoliation." On October 8, 1999, the jury returned a verdict for the defense.-7- 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 readin g, and a claim of "newly discovered" evidence. In support of these motions, Ms. Malinowski submittedunsworn 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 fromth e 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 speedstylus, 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 hadgone out of business and, as a result, he had not sought to investigate2 Mr. Resmini suggests that UPS attempted to p revent Ms.

Malinowski from contacting DVD by misrepresenting under oath that DVD was no long er 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.

3 On 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 wa s an o bvious lack of diligence -8- DVD's involvement. 2 Mr. Resmini also averred that he had spoken by phone with the current owner o f 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 eac h of the post-trial motions. The court expressly rejected Ms. Malinowski's argument that any allegedmishandling of the tach ogr aph disc by UPS had prevented Malinowski from laying the foundation for ad miss ibility of the speedreading. With regard to the motion for new trial, the court first observed that Mr. Resmini's affida vit was inadmissible hearsay. Second, the court noted that even if deemed admissible, the information in the affidavit could have been discovered prior to tr ial. 3 Third, the court held that, even if considered n e wpertaining 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 includedthe 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 an y one at DVD . . . .

4 The court had made a similar observation earli er in the hearing. [E]ven assuming, arguendo, that the evidence as to speed, as registered on th e t achograph, should have been admitted, this Court is not convincedthat it would have alteredthe result of this case. After all, the jury in the first trial heardthis evidence and reached the same conclusion as the second jury, albeit with different jury instructions . . . . More importantly, the more critical evidence as to speedwas not so much the actual speed of the truck but the evidence of continued acceleration (which this Court allowed).

-9- evidence, the information probably wouldnot 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 didnot take

. . . . I am not convinced that the introduction of evidence as to speedwould have altered the jury's verdict in this case . . . ." 4

Ms. Malinowski appealed, contending that the lower court

e rredin refusing to admit the tachograph speed read ing i n evidence, in declining to charge the jury on spoliation, and in denying the post-trial motions. The Rhode Island Suprem e C ourt-10-

affirmedthe rulings of the lower court, concluding that each of the rulings was an appropriate exercise of d iscr etion. 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 failedto 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 dismi ssal o f 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 "destroy ed" 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 a nd UPS immediately filed motions for summary judgment, arguing, inter alia , that Rhode Island didnot 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-11-

Court had not recognized a separate and independent tort of spoliation, and went on to hold that it was unlikely Rhode Island woulddo so given the problems such a tort would create and the fact that a majority of "the sta tes ' 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 andpoor 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, mutilatedor significantly altered as would be required to make out

a spoliation tort. Moreover, in the absence of evidence of why the disc w as in poor condition there was insufficient proof that defendants had intended to damage the disc.

Ms. Malinowski objected to the report andrecommendation of the magistrate judge. The district court agreed with the magistrate judge's conclusion that Rhode Island would not recognize-12-

an independent tort for the spoliation of evidence. Malinowski v. UnitedParcel 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. Th e 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 andresolving all reas onable 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 o f pro of at trial. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 256 (1986) (internal quotations, citati on, an d 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."-13-

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 conclu ded 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. C omp are, e.g. , Fletcher v. Dorchester Mut. Ins. Co. , 773 N.E.2d 420, 426 (Mass. 2002) (declining to recogni ze a n independent tort for spoliation of evidence) with Torres v. El Paso Elec. Co. , 987 P.2d 386, 404 (N.M. 1999) (recognizing a tort f or 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. Malin owski 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 fromwhich 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, conspiredto destroy and-14-

diddestroy 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 spoli atio n claim, Ms. Malinowski relies heav ily on the discoloration of the tachograph disc and other evidence that the disc was in poor conditio n. Accord ing to Ms. Malinows ki, "[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 malfunc tion. During the first trial, the tachograph disc was admitted without limitation to s how bo th the vehicle's speed and rate of accelerat ion at the time of the accident. While the disc was admittedly in a "darkened condition," t his did not prevent Ms. Malinowski's counsel from eliciti ng th e-15-

favorable testimony desired from a UPS supervisor showing the disc's reading as to t he 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 th e readings were not accurate because of problems with the vehicle's speed gear that had preceded the accide nt -- 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 excess ive sp eed. After UPS had objected and had presentedevidence 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 limitedpurpose of showing the vehicle's acc eler ation 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. Nig el K irkwood, further weaken Ms. Mal inowsk i's assertion that the condition of the disc preventedher from obtaining a favorable jury verdict. While both Mr. Blancarte and Dr. Kirkwood noted the poor condition of the-16-

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 wa y est ablished any error with the vehicle andthe chart speeds." Rather t han sugge st 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 influencedthe outcome. The Rhode Island Supreme Court upheld the trial judg e's de cision 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, a nd in fact, had acceleratedcontinuously from the previous traffic signal. Fi nall y, speed may not have been a factor in this accident because it was undisputedthat 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.-17-

Malinowski II , 792 A.2dat 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 failedto demonstrate her ability to est ablish all the essential elements. The order of the district court granting summary judgment to DVD and UPS is affirmed .