Filed: May 30, 2003
Latest Update: Feb. 22, 2020
Summary: by Stephen Hogan.speed reading. During the first trial, Mr., Resmini asked a UPS employee whether DVD was still in 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.
Not for Publication in West’s Federal Reporter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
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
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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
1
Specifically, the court stated:
For the tachograph readings as to speed to be admissible,
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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.
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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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
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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
2
Mr. 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.
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 was an obvious lack of diligence
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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
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 . . . .
4
The 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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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.
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