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Canadian Bar Association: Personal Injury Case Comment and Updates

Collection of Interest on Disbursements Schmolzer v. Higenbottam, 2009 ABQB 616.  [B.E. Romaine] The 35 year old male Plaintiff suffered soft tissue injuries and a mild traumatic brain injury or concussion. The court awarded general damages of $75,000. The court was asked to consider whether the Plaintiff was entitled to interest on the disbursements incurred to prosecute his claim. The court refused to grant the plaintiff interest on disbursements holding:

I agree with the Defendants that the facts of Bourgoin v. Ouellette [2009] N.B.J. No. 164 are distinguishable, and that in Mr. Schmolzer’s case, there is not a strong access to justice issue that would warrant an exceptional award of interest on disbursements. I therefore decline to grant interest on disbursements for expert fees.

It appears that the issue may still be argued depending on the particular circumstances of each case and whether there is an access to justice issue. Chronic Pain: Aggravation of an underlying “asymptomatic” injury. Do v. Sheffer, 2010 ABQB 86 [D. Lee] The male plaintiff was involved in collision in November 2002. The Plaintiff had a significant pre existing history of low back pain that included a surgical repair 10 months before the collision. The Plaintiff claimed for injuries to his thumb, neck pain, upper back pain and aggravation of low back pain. The court found that:

  • the Plaintiff had history of intermittent back pain prior to the collision;
  • the plaintiff had a satisfactory recovery from his surgery and was working full time at the time of the collision; and
  • the plaintiff suffered a significant aggravation to his lower back and new injuries to his neck and shoulder.

The court held that trauma resulted in much of the Plaintiffs ongoing complaints.  The court held that the collision and trauma was the cause of the plaintiff’s permanent disability. The court awarded $85,000 in general damages for continuing and permanent neck, shoulder and back injuries. As a side note, the court considered whether RRSP withdrawals should be compensated. The court refused to compensate for the withdrawal but seemed to cite lack of evidence as the reason. Lastly, notwithstanding the court finding a permanent disability, no award for past loss of housekeeping was granted and it was included the general damages. Personal Injury Refresher Adeshina et. al. [2010 ABQB 80] This case covers many issues relative to the practice of personal injury law including, standard of care, settlement offers, client updates, exchange of expert reports and advocacy.  This case will the subject of a loss prevention seminar in June. Rule 217 Within the case the court stated that Rule 217 is to be considered in a broad fashion.  In essence, when a plaintiff is served with a medical report under Rule 217 it triggers an obligation to disclose all “like reports”.  This should be interpreted to include all medical reports, health care provider reports and even raw testing data.   The distinction between a “physician” and “health care provider” is eliminated. If the report covers the plaintiffs injuries it is to be produced. Trial within a Trial The plaintiff sued all of his former lawyers for settling his claim for an improper amount.  The court rejected his claims and dismissed his action.  However, the court provisionally assessed the damages that were likely had his claim not been settled.   The court held his best case was in the range of $620,000. If the court had concerns about his credibility it was likely that he would not beat the first Formal offer of $275,000. The plaintiff complained of chronic pain, mild head injury, mild hearing loss, TMJ injury, right shoulder injury with surgery and depression. The plaintiff alleged that the injuries forced him to quit his job.  The court provisionally assessed general damages at $120,000 for the constellation of injuries. Informal” Offers and Costs Mahe v. Boulianne, 2010 ABCA 32 In this case the plaintiff was awarded in excess in $500,000 at trial for a fall from a pole. The defendant appealed alleging that the allocation of fault was too low. The court of appeal agreed and reduced damages awarded at trial [2010 ABCA 32]. Between the end of trial and the start of the appeal, the defendant offered to pay the limit of the policy of insurance being $500,000.   The offer was rejected. At the conclusion of the Appeal the claim was reduced to $375,000.  The defendant sought double costs from time of the offer to the conclusion of the appeal. The $500,000 was made on a “without prejudice basis” and did not refer to any of the Rules dealing with Formal Offers.  The Court of Appeal held that all offers, whether made without prejudice or not are privileged. However, the privilege is subject to an exception.  There is an exception in that “without prejudice” offers can be referred to when the merits of the dispute have been decided.   The court made it clear that “informal offers that arguably do not comply with the Rules can have an effect on costs”. This case reinforces the need to properly educate a client as to the nature of the offer and the upside and downside of accepting or rejecting it. Case Summaries Prepared byCraig G. Gillespie Cuming & Gillespie 403-571-0555 craig@cglaw.ca


Canadian Bar Association: Personal Injury Case Comment and Updates

Mild Traumatic Brain Injury

Schmolzer v. Higenbottam, 2009 ABQB 522.  [B.E. Romaine] The 35 year old male Plaintiff suffered soft tissue injuries and a mild traumatic brain injury or concussion. The soft tissue injuries resolved within 12 months. The court accepted the evidence of both plaintiff and defendant expert that the head injury was fairly classified as a mild traumatic brain injury or alternatively, a concussion.  It should be noted that there was only a brief loss of consciousness, a GCS of 15 at the scene and no diagnosis of head injury made. The court awarded general damages of $75,000. Egglestone v. Cox, 2009 ABQB 584.  [L.D. Wilkins] The male plaintiff was involved in a t-bone collision on July 1, 2004. The plaintiff suffered from a non displaced fractured vertebra in his neck resulting in an 8% impairment. The plaintiff also suffered soft tissue injuries to his neck, upper back and shoulders as well as headaches. These were acute for approximately 15 moths with ongoing residual chronic pain.  It was also alleged that the plaintiff suffered a head injury. It was noted that there was likely no loss of consciousness and only minor issues with memory around the time of the Collision. The plaintiff was noted to have an underlying history of depression. The plaintiff was diagnosed by a neurologist and a number of IME’s as having a concussion and post-concussion syndrome. The court rejected the diagnosis and held:

For these reasons, I accept the opinions of Dr. King and Dr. Levin that the symptoms of neurological or psychological difficulties disclosed by the Plaintiff were not proven, on a balance of probabilities to have been caused by the accident. They would have occurred in any event “but for” the accident due to his untreated depressive illness or his adjustment disorders.

The court awarded general damages of $75,000. Park v. Jordan and Jordan ABQB No. 0801-00138 [Mr. Justice Mahoney]. The 41 year old male Plaintiff was a passenger in a pick-up truck that went over a 20 to 30-foot cliff into a riverbank.  The Defendant was the driver.  The Plaintiff suffered the following injuries: spiral fracture of his right humeral shaft, decreased sensation in his arm due to a crushed radial nerve, aggravation of a pre-existing back condition, and restricted range of motion in his shoulder.  Two years after the incident, the Plaintiff continued to experience episodes of chronic pain in his cervical, upper thoracic and lumbar spine, for which no future relief was predicted.  The Plaintiff sustained a permanent arm impairment of 10%, representing 6% whole person impairment. In determining damages for the soft tissue injuries, the Court held that the aggravated back injury and minor neck injury were at the low end of the moderate soft tissue injury.  The damages would be worth $7,500 under the old regime and were therefore capped at $4,000 pursuant to the proper meaning of the Minor Injury Regulation, Alberta Regulation 123/2004. Mr. Justice Mahoney discussed how the cap should be applied to the determination of damages, indicating that:

The cap works on the basis that if general damages under the old regime would have been assessed at $4,001 based on decided law, then that amount of damages is reduced to $4,000.  If general damages for a minor injury would have been assessed at $10,000, that amount is reduced to $4,000.  If general damages are assessed any higher, they are all reduced to $4,000. All damages for minor injury above $4,000 are reduced to $4,000, but any claim that previously would have been worth $4,000 or more is not somehow assessed and prorated on the basis of how it measures against the worst possible minor injury.

The Court awarded the cap of $4,000 plus $75,000 in general damages, subject to a 10% deduction for contributory negligence on the basis that the Plaintiff failed to wear a seatbelt. Relevant Quoted Passage from Park v. Jordan and Jordan

…I am told some insurance companies take the position that the cap is similar to the cap in the trilogy cases.  In other words, the $4,000 cap is a maximum that can be achieved for the most seriously injured person sustaining minor injuries as defined in the regulation.  Therefore, so the argument goes, the $4,000 cap is not always awarded in each case. In reading the legislation I do not find any language that would have the cap work that way.  The cap works on the basis that if general damages under the old regime would have been assessed at $4,001 based on decided law, then that amount of damages is reduced to $4,000.  If general damages for a minor injury would have been assessed at $10,000, that amount is reduced to $4,000.  If general damages are assessed any higher, they are all reduced to $4,000.

All damages for minor injury above $4,000 are reduced to $4,000, but any claim that previously would have been worth $4,000 or more is not somehow assessed and prorated on the basis of how it measures against the worst possible minor injury.  If the legislature wanted that approach, it would have made its intention unambiguously clear.

Case Summaries Prepared by Craig G. Gillespie Cuming & Gillespie Lawyers 403-571-0555 craig@cglaw.ca


Canadian Bar Association: Personal Injury Case Comment and Updates

Facial Lacerations and Fractured Arm Weatherall v. Scaba [2008] ABQB 689. The male plaintiff suffered a fractured left forearm and facial lacerations in a high speed collision. The plaintiff also claimed to have suffered from neck injuries and left shoulder injuries both of which required surgery. The court completely dismissed the shoulder and neck injuries and held that they were pre-existing and not aggravated in any way by the Collision. The court awarded $32,000 in general damages.  [E. Wilson] Unnecessary Surgery, Abdominal Pain and Fatigue Whitt v. Purkin, 2008 ABQB 6664. The plaintiff brought a medical negligence claim for an unnecessary surgery that left him with abdominal wall pain and fatigue that lasted for 2 years. The plaintiff also battled an infection following the procedure and was left with a scar. The court awarded $42,000 for what it found was 2 years of pain and suffering. The court also awarded 12 years of PJI finding that there was no clear evidence of intentional delay. [C.L. Kenny] Soft Tissue Injury 18 monthsLawson v. Le, 2008 ABQB 275.  The female plaintiff was in a motor vehicle accident and suffered soft tissue injuries and an alleged Post Traumatic Stress Disorder. The court found the plaintiff was a malinger and not honest. The court rejected the claim for PTSD and found that the plaintiff suffered soft tissue injuries that were “not severe”.  The injury occurred in February 2001 and the plaintiff was noted to be golfing in the spring of 2001 and was able to landscape in the summer of 2001. The court awarded $27,500 for soft tissue injuries that fully recovered within 18 months. [J.B. Veit] Chronic Pain Bearchell v. King [2008] CarswellAlta 884. The female plaintiff was struck by a van while crossing the street. She claimed to suffer from chronic neck pain, shoulder pain, upper back pain and lower back pain that lasted over 6 years and was ongoing. The court found that the plaintiff was not credible and at times “faked” her injuries. The court found that the injuries should have resolved within six weeks to six months with some ongoing residual symptoms [Para 127]. The court rejected the claim that the chronic pain condition was caused by the collision. The court awarded $32,000 for the mild to moderate injury noting that the plaintiff was vulnerable and may have had more pain than the average person.

Case Summaries Prepared by Craig G. Gillespie Cuming & Gillespie Lawyers 403-571-0555  craig@cglaw.ca


Canadian Bar Association: Personal Injury Case Comment and Updates – June 2008

Pre-Judgment Interest: Date of injury not claim Willeson v. Calgary (City) [2008] A.J. No. 564. The plaintiff sustained soft tissue injuries and a concussion. At trial, the judge awarded $45,000 for general damages. The judge held that pre-judgment interest was to be calculated from the time the Statement of Claim was served not the date of the accident. The Court of Appeal upheld the award of general damages. The Court went to hold that interest is to be calculated from the date of the accident as that is when the defendant was aware of a claim. Soft Tissue Injury: One Year Deo v. Wong, [2008] B.C.J. No. 466 the plaintiff suffered soft tissue injuries in a collision. The court concluded that the soft tissue injuries to the plaintiff’s neck and back resolved within 1 year. The plaintiff also developed knee pain 6 months after the collision. At trial the court awarded $36,650 for all of the injuries including the knee. On appeal, the court held that the knee injury was not related and reduced the damages by $7,000.  The British Columbia Court of Appeal supported and affirmed an award of $29,650 for a moderate soft tissue injury that resolved within one year. Chronic Pain O’Scolai v. Antrajenda [2008] A.J. No. 495 the female plaintiff was rear ended in what the court called a minor collision. After 4 years, the plaintiff had not returned to work and was suffering from neck pain, shoulder pain, TMJ pain, weakness in her limbs, nausea and vomiting. After a period of time the plaintiff developed a severe abnormal posture in her neck. The court considered issues of causation and credibility. The court noted that the plaintiff had prior complaints of pain in her neck and shoulder that was noted to be severe at times. The court also concluded that the plaintiff deliberately exaggerated her symptoms. The court concluded that the plaintiff suffered from an aggravation of neck and shoulder pain, TMJ pain, nausea and vomiting. The court concluded that the plaintiff’s abnormal neck posture and weakness in her limbs were not caused by the collision. The court concluded that after the passing of 4 years the plaintiff did continue to have a degree of pain in her neck and jaw as well as reduced range of motion but that the severity was exaggerated. The court awarded $75,000 for general damages.  [Justice Read] Case Summaries Prepared by Craig G. Gillespie Cuming & Gillespie Lawyers 403-571-0555 craig@cglaw.ca


Canadian Bar Association: Personal Injury Case Comment and Updates January – March, 2008

Mild to Moderate Soft Tissue Injuries: The Essential Collection Palpal-Latoc v. Berstad, [2004] A.J. No. 240 the plaintiff suffered injuries which persisted for only seven months. At trial the jury awarded $2,500.00 for general damages. On Appeal, the Court held that $2,500.00 for a seven month injury was inordinately low and substituted an award of $12,000.00 for general damages [updated $13,500]. Sra v. Zhu, 2007 ABQB 426, the 54 year old male plaintiff was injured when he was tboned in a red light intersection collision. He suffered from lower back pain, neck pain and TMJ pain. The court was of the view that he had pre-existing injuries and was also in a subsequent accident. The court had concerns over the plaintiff’s credibility. The court held that his injuries resolved within three to four months. The court awarded $13,000.00 [updated $13,500] in general damages. Reimer v. Polgar, [2005] A.J. No. 373 (Prov Ct.) the plaintiff suffered soft tissue injuries that were symptomatic for 11 months and were expected to continue on an intermittent basis for some time into the future. The court awarded general damages of $16,500 for the acute phase of less than 1 year plus an additional $3,000 for the ongoing intermittent pain for a total of $19,500.00 updated [$20,750]. Teichgraber v. Gallant, [2003] A.J. No. 70 the plaintiff suffered soft tissue injuries in a very low impact collision. The court had concerns over the plaintiff=s credibility and found that many symptoms were exaggerated. The court was of the view that the plaintiff suffered a mild to moderate soft tissue injury to his neck and back which lasted six months and should have completely resolved after a short period of further intermittent pain. In this case the court assessed the general damages of at $17,000.00. [Updated $18,600]. Krawchuk v. Mellor, [2003] A.J. No. 216 the female plaintiff was rear ended and suffered soft tissue injuries. For only two months she had acute pain and then had lingering intermittent pain for 15 more months. The court awarded $18,000.00 in general damages [updated $19,725] for the two month acute injury combined with the ongoing intermittent and occasional pain. Morrow v. Zhang, 2008 ABQB 98 the court considered the constitutionality of the Alberta Government “Cap” on soft tissue injuries. The court held that the cap was unconstitutional. In doing so the court assessed damages for two soft tissue injuries:

Pearl Morrow v. Jian Yue Zhang The 34 year old female plaintiff suffered soft tissue injuries to her neck and upper back but was noted to have a history neck and back pain that predated the Collision. She experienced some tingling and numbness for 6 months post Collision. She was diagnosed with having a “WAD II” injury and mild lumbar strain and attended for 21 physiotherapy treatments. She also attended for 13 chiropractic adjustments and several massage therapy treatments. It was noted that the plaintiff had injuries that were acute for approximately 10 months with gradual improvement over 18 months. Balancing the plaintiffs moderate soft tissue injuries and her underlying medical history the court awarded $20,000.00 in General Damages. Wittmann J. Brea Pederson v. Darin James Van Thournout et. al. The 32 year old female plaintiff was rear ended while yielding to pedestrians. The plaintiff suffered soft tissue injuries to her neck, shoulders, back and wrists. Her neck, shoulder and back pain resolved within one month of the Collision. She continued to have wrist pain on an ongoing intermittent basis. The Certified Examiner suggested that the Plaintiff suffered a Grade II soft tissue injury to her neck and back and an injury to her wrist. For soft tissue injuries and the Grade I wrist strain injury the Court awarded $15,000.00 in General Damages. Wittmann J.

Ly v. Gilbert, 2001 CarswellAlta 1524 (Q.B.) two plaintiffs, both 36, suffered soft tissue injuries to their neck and back. Both had pre-existing injuries that were relatively asymptomatic at the time of the accident. They had decreased range of motion and tenderness with pain. The injuries, for the most part, resolved after one year with some ongoing minimal stiffness. The court awarded $25,000.00 [updated $29,000] and $20,000.00 [updated $23,200] respectively. Dyck v. Wilkinson, [2004] A.J. No. 1155 the female plaintiff suffered neck and lower back pain with some hip pain that lasted approximately 18 months. The Court found that she would also have some intermittent ongoing pain beyond that time but none of her normal activities were restricted. The plaintiff had underlying degenerative disc disease that the Court held was not worsened by the accident. The Court also refused to accept that the Plaintiff had suffered from any permanent or partial impairment. In this case, with soft tissue injuries lasting approximately 18 months, Justice Rooke awarded $30,000.00 in general damages [updated $32,500]. Case Summaries Prepared by Craig G. Gillespie Cuming & Gillespie Lawyers 403-571-0555 craig@cglaw.ca


Canadian Bar Association: Personal Injury Case Comment and Updates

December 2007 The One Percent Rule Revisited In Danek v. Calgary (City), 2007 ABQB 670 the Defendant City of Calgary took the position that the Administrator of the Motor Vehicle Accident Claims Act was responsible for paying a portion of a judgment where liability was joint. In short, the City took issue with the 1% Rule. The court disagreed with the City and confirmed that in cases involving multiple tortfeasors, the Administrator does not contribute if any other party is at least 1% liable. The Fund is a recovery source of last resort. Master Hanebury The Right to a Nominee during a Rule 217 Examination In Nistor v. Kankolongo, 2007 ABQB 684 the Plaintiff wanted to have his own nominee present during a Rule 217 Psychological exam. The Defendant objected citing concerns that a third party nominee may negatively impact the quality of testing. The court disagreed with the Defendant and directed that the nominee be present. The court confirmed the principle that the Plaintiff’s right to have a nominee present is absolute. M.B. Bielby No Liability for a Municipality for Trees Near an Intersection In Malmas Estate v. Mittelstadt, 2007 ABQB 648 the Defendants issued a Third Party Notice against the County of Wetaskiwin No. 10 for failing to erect signage at an uncontrolled intersection and for failing to clear trees that allegedly obscured the intersection. The County brought a motion for summary judgment on the grounds that section 533 of the Municipal Government Act provided a complete defence. The court agreed and held that a County cannot be liable for a decision not to control an intersection or for trees that might obscure the intersection. The principles of stare decisis should be followed. S. SandermanMinor Soft Tissue Injures: British Columbia In Dadson v. Gallo, [2007] B.C.J. No. 2215, the female plaintiff suffered a minor injury in a low impact collision. The plaintiff maintained that her injuries were acute for 6 months and generally symptomatic for 17 months. The court disagreed and held that the injuries “were resolved sometime within four to six months from the date of the accident.” The court was of the view that strain was no worse than Grade II and awarded $15,000.00 for general damages. The court also awarded loss of housekeeping of $3,000.00. D. Satanove Post Traumatic Stress Only: Damages for Nervous Shock In Arnold v. Cartwright Estate, [2007] B.C.J. the male plaintiff attended at the scene of an accident and assisted with first aid on the victims, three of who died. Eleven months later the plaintiff suffered a panic attack and was diagnoses with post traumatic stress and bipolar disorder. The court awarded damages for the post traumatic stress finding that it was sufficiently connected to the accident. The court did not award damages for losses it determined flowed from the bi-polar disorder. For Post Traumatic Stress Disorder symptoms lasting 12 to 18 months the court awarded $10,000.00 for general damages. G.B. Butler Case Summaries Prepared by Craig G. Gillespie Cuming & Gillespie 403-571-0555 craig@cglaw.ca www.cuminggillespie.com *If you have interesting cases that you think should be summarized please email me the citation for review.


Canadian Bar Association: Personal Injury Case Comment And Updates

Multiple Injuries with Chronic Pain In Park v. Heimbeckner, 2007 ABQB, 386 the 29 year old male plaintiff suffered serious injuries when he was ejected from a vehicle involved in a high speed collision on December 30th, 2001.The plaintiff suffered eight fractures to his cervical spine, a minor closed head injury, a broken right foot, a severe injury to his and a torn rotator cuff on his left shoulder. Additionally, the plaintiff suffered from a laceration on his scalp which required a skin graft and four surgical procedures. The court concluded that as a result of his injuries the plaintiff was in constant severe pain and suffered from bouts of depression and sexual dysfunction. For the significant injuries and ongoing chronic pain the court awarded $160,000.00 for general damages. It should be noted that notwithstanding the seriousness of the injuries, the court did not award damages for loss of housekeeping and instead factored the amount into the general damages. Mild to Moderate Soft Tissue Injury at Low Speed In Gerlitz v. Lee, 2007 ABQB 495, the 25 year old male plaintiff was rear ended in August of 2001. The evidence suggested that there was minimal damage to either vehicle and that the speed of the defendant vehicle was around 4.5 km/h. The plaintiff suffered from neck pain and back pain after the collision. Notwithstanding treatment the plaintiff complained of ongoing back pain to the time of trial (6 years). The court concluded that collision caused a “whiplash type injury in the mild to moderate range” and awarded $35,000.00 in general damages. It should be noted that at the time of the Collision the Plaintiff was a martial arts instructor.

He claimed between $700,000 – $3,000,000.00 in loss of income and earning capacity as a result of his inability to run his business. The court accepted that loss of earning capacity can be proven on a simple probability basis however found no evidence to justify a large award. The court awarded $68,000.00 for loss of income. Minor Brain Injury, Fractured Wrist and Moderate Soft Tissue Injuries In Seich v. Tobin, 2007 ABQB 492 the 21 year old male plaintiff was injured when his motorcycle struck a van. Liability was in issue and apportioned equally. The court concluded that the plaintiff sustained a fractured wrist with ongoing impairment, moderate soft tissue injuries to his neck and back which lasted 3-4 years, and a mild brain injury that did not cause any long term deficits. The court awarded $80,000.00 in general damages and reduced the amount by half for liability. Again this award was inclusive of housekeeping damages. Production of Medical Charts In Prasad v. Weber, 2007 ABQB, the female plaintiff filed a claim alleging ongoing injuries to her neck, shoulders and back etc. The injuries were alleged to be permanent and ongoing – i.e. “chronic”. At discovery defence counsel requested a number of medical charts from the Alberta Statement of Benefits. The plaintiff refused on the basis that they were not relevant. The Master directed the charts be produced and the Justice, on appeal, agreed. The court concluded that the starting point for relevancy and materiality was the pleadings. In this case, the pleadings alleged an ongoing “chronic” injury. The defence maintained that the injuries could have been caused by other sources. The court agreed that the “mere fact that a plaintiff puts their health into issue does not entitle a Defendant to review the Plaintiff’s entire medical history and to the medical chart records of any treating physician . . .” However, the court went on to say that when the Plaintiff “raised the issue of her severe and ongoing pain . . .” the records of any treatment provider that could disclose pain would be relevant. The court directed that the records be ordered and produced subject to any objections over relevance. This decision seems to suggest that if the allegations are in the nature of an ongoing “chronic” injury the entire medical history may be relevant, and at the very least, needs to be canvassed. From a practice perspective, it appears that all records on the SOBP should be ordered and then reviewed for relevance. Soft Tissue and TMJ Injury In Sra v. Zhu, 2007 ABQB 426, the 54 year old male plaintiff was injured when he was t-boned in a red light intersection collision. He suffered from lower back pain, neck pain and TMJ pain. The court was of the view that he had pre-existing injuries and was also in a subsequent accident. The court had concerns over the plaintiff’s credibility. The court held that his injuries resolved within three to four months. The court awarded $13,000.00 in general damages and held that higher awards are for cases involving permanent partial disability or there is a long period of recovery or chronic pain. The court included loss of housekeeping in this general damages.

Case Summaries Prepared by Craig G. Gillespie Cuming & Gillespie Lawyers 403-571-0555 craig@cglaw.ca *If you have interesting cases that you think should be summarized please email me the citation for review.


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