Chapman v. Spartan Offshore Drilling, LLC et al
Filing
32
ORDER AND REASONS granting 19 Motion for Partial Summary Judgment. Signed by Judge Ivan L.R. Lemelle. (ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GEORGE L. CHAPMAN
CIVIL ACTION
VS.
NO. 15-CV-994
SPARTAN OFFSHORE DRILLING,
LLC AND MARINE TRANSPORTATION
SERVICES, INC.
SECTION “B”(5)
ORDER AND REASONS1
Before the Court is defendant, Spartan Offshore Drilling,
LLC’s (“Spartan”) motion for partial summary judgment on the
grounds that plaintiff lacks a cause of action for claims of
maintenance and cure. Rec. Doc. 19. Plaintiff George L. Chapman
(“Chapman”) opposes the motion. Rec Doc. 22. Defendant has filed
a reply (Rec. Doc. 26) and supplemental memorandum (Rec. Doc. 30)
in support of its motion.
Having considered the memoranda of counsel, the record, and
the applicable law,
IT IS ORDERED that the motion is GRANTED.
I.
BACKGROUND
This action arises under the Jones Act, 46 U.S.C. § 30104,
and the General Maritime Laws. Rec. Doc. 1 at 2. Chapman was
employed by Spartan as a Jones Act seaman aboard the M/V SPARTAN
208 in September 2014. Id.
John D’Avello, a third year student at Tulane University Law School,
assisted in drafting this order.
1
1
A. Factual Background
The undisputed facts reveal that Chapman initially applied
for a position with Spartan in June 2013 and was hired. Rec. Doc.
19-7 at 2–3. He was laid off in November 2013 due to a workforce
reduction but reapplied and was rehired as a roustabout in January
2014. Id. As a condition to initial employment, Spartan required
that
Chapman
complete
a
post-offer,
pre-placement
entrance
examination (“entrance exam”) and be cleared by a physician. Rec.
Doc. 19-2 at 6–7; Rec. Doc. 19-7 at 3–4. Upon his second hiring
Spartan required that Chapman review and provide any corrections
to
the
first
entrance
exam
and
submit
to
another
physical
examination. Id. The entrance exam is comprised of a list of
questions about a potential employee’s medical history. Rec. Doc.
19-7. The prospective employee must certify that any information
provided is true and correct, and acknowledge that failure to
truthfully answer any question could result in the denial of a
right to maintenance and cure benefits. Id. at 19.
The entrance exam requires a prospective employee to indicate
if he or she has experienced a variety of medical issues. Chapman
completed his first entrance exam on June 17, 2013. Rec. Doc. 191 at 3; Rec. Doc. 22-1 at 1. He indicated by checking the box for
“Yes” and providing a brief explanation that he had previously had
a shoulder spur removed, had broken his left arm, and had pulled
a muscle in his lower back. Id. at 6–8, 12–15. Chapman checked
2
“No” for all other relevant questions, including if he had ever
had surgery, lost time from work, had work activities restricted
by a doctor, was taking any medication or was subject to any
medical treatment. See Id. at 5-15. Chapman signed and dated the
first entrance exam, certifying that all supplied information was
true and correct and acknowledging that failure to truthfully
answer any question could result in denial of maintenance and cure
benefits. Id. at 19.
It is uncontested that, despite Chapman’s representations on
his first entrance exam, he had in fact complained of and been
treated for lower back problems for the past seven years. On
January 5, 2006, Chapman visited Dr. Sage B. Smith and complained
of lower back pain. Rec. Doc. 19-1 at 1; Rec. Doc. 22-1 at 1. Three
days
later
he
received
a
lumbar
MRI
which
revealed
a
disc
herniation at L5-S1. Id. On January 17, 2006, Chapman visited Dr.
Robert White at the Coastal Neurological Institute and reported a
dull ache in his lower back that had existed for six to eight
years. Id. Chapman received lumbar epidural steroid injections on
thirteen separate occasions over the next seven years. Rec. Doc.
19-1 at 2–3; Rec. Doc. 22-1 at 1–2. Chapman or his wife also called
Dr. Smith on twelve separate occasions from August 17, 2006 to
January 7, 2010, to request pain medication for his back. Id. On
a June 27, 2012, visit with Dr. William Smith, Chapman reported
missing time from work due to back pain; Dr. Smith subsequently
3
restricted Chapman from working for an additional two weeks. Id.
On July 23, 2012, Chapman underwent a lumbar MRI which revealed a
disc herniation at the L4-5 level of the spine. Id. Chapman
disputes whether Dr. Smith discussed the possibility of back
surgery with him on this date. Id. Chapman received four lumbar
epidural injections between June 2012 and May 2013, including one
on May 17, 2013. Id.
Spartan’s physical examination of Chapman was conducted by
Dr. Kirthland D. Swan (“Dr. Swan”)on June 17, 2013—just one month
after he had last received a lumbar epidural injection. Rec. Doc.
19-1 at 4; Rec. Doc. 22-1 at 2. In response to a direct question,
Chapman denied having any history of disc or other problems with
his back. Id. Chapman was also examined by Dr. J. Lee Leonard
(“Leonard”) on that day. Id. Chapman’s deposition states that he
discussed his history of back issues with Dr. Leonard and that the
two went over the results of an x-ray examination showing Chapman’s
disc issue. Rec. Doc. 22-6 at 5. Dr. Leonard testified no such
medical history was discussed, and that he would have noted any
such discussion and referred Chapman for further MRIs in light of
such history. Rec. Doc. 19-10 at 3–4, 9–10. Further, Dr. Leonard
stated that if he had known of Chapman’s herniated disc, he would
not
have
recommended
him
for
hiring
without
additional
examinations. Id. at 4-5. Dr. Leonard stated “you can’t see a disc
on an x-ray.” Id. at 8.
4
When Chapman applied for a roustabout position with Spartan
on January 20, 2014, he reviewed the entrance exam he previously
completed on June 17, 2013, and made no changes to any information
it contained. Rec. Doc. 19-1 at 5; Rec. Doc. 22-1 at 2. Chapman
had received a lumbar epidural steroid injection in November 2013,
which he did not reveal. Id. Dr. Swan conducted another physical
examination. Id. In response to direct questions from Dr. Swan,
Chapman denied ever having been told he had a back disorder or
receiving treatment for his back. Id. He also denied having a disc
problem in his back, and denied ever having any problem with his
back except for a pulled muscle that “lasted a week or so” in 2013.
Id. Chapman acknowledged in a deposition that he lied to Spartan
regarding his past history of back injuries while knowing that
Spartan wanted the information as a prerequisite to hiring. Rec.
Doc. 19-8 at 4-5.
On September 2, 2014, Chapman reported waking up to a pain in
his back. Rec. Doc. 19-2 at 14. A supervisor at Spartan filed the
initial report that day. Rec. Doc. 19-11 at 3. The report states
Chapman experienced pain in his right leg and lower back upon
getting out of bed, but could not recall injuring it. Id. Chapman
also revealed that he had trouble with his back in the past. Id.
Subsequently, Chapman recalled injuring his back while unloading
a pipe in the scope of his employment the day before. Rec. Doc. 22
at 2. Wilton Landry, Spartan’s Health, Safety, and Environmental
5
manager, thereafter made arrangements to remove Chapman from the
rig so he could seek medical attention. Rec. Doc. 19-11 at 1–2.
Spartan provided maintenance and cure for a short period of time.
Id. While investigating the reported incident, Spartan secured
Chapman’s medical records and discovered his prior history of back
injuries. Rec. Doc. 19-2 at 15. Based upon the failure to disclose
prior medical history, Spartan terminated maintenance and cure
payments and denied approval of the recommended surgery. Id.
Chapman sought treatment with Dr. Rand Voorhies, a neurosurgeon,
who recommended a lumbar fusion at the L4-5 level. Rec. Doc. 19-2
at 15; Rec. Doc. 22 at 3.
B. Procedural Background
Chapman filed this suit on March 31, 2015. Rec. Doc. 1.
Chapman
alleged
maintenance
and
claims
cure
of
negligence,
benefits
for
unseaworthiness,
injuries
sustained
and
and
subsequent expenses, as well as punitive damages for arbitrary
and/or unreasonable failure to provide maintenance and cure. Rec.
Doc. 1 at 3–5. On December 21, 2015, Spartan moved for partial
summary judgment on the issue that plaintiff lacks a cause of
action for maintenance and cure. Rec. Doc. 19.
C. Arguments of the Parties
Spartan argues that Chapman lacks a cause of action for
maintenance and cure because he willfully concealed a history of
6
lower back treatment that was material to the decision to hire and
causally linked to the injury complained of. Rec. Doc. 19 at 1.
Chapman
opposes
the
motion,
arguing
summary
judgment
is
inappropriate and urging the Court to either defer or deny the
motion, allow time
for Chapman
to obtain affidavits or take
discovery, or issue some other appropriate order. Rec. Doc. 22.
Chapman first argues that the motion for partial summary judgment
is premature because discovery is not yet complete. Id. at 1.
Chapman urges the Court to allow for three “key” depositions: (1)
the treating physician, Dr. Rand Voorhies, regarding the causal
link between the allegedly concealed injuries and the disability
complained
of;
(2)
Dr.
William
Smith,
regarding
his
alleged
discussion of back surgery with Chapman prior to employment; and
(3) Wilton Landry, regarding his knowledge of Chapman’s prior
medical history. Doc. 22 at 1–2. Landry has now been deposed, and
asserted he had no previous knowledge of Chapman’s injury and
indeed had no knowledge of Chapman at all until he reported his
injury. Rec. Doc. 28-3 at 3–4.
Chapman also asserts that summary judgment is inappropriate
on the merits for three reasons. Rec. Doc. 22 at 5–8. First,
Chapman asserts Spartan cannot establish concealment of prior
injuries. Id. at 5-7. Second, Chapman argues that even if such
back issues were not disclosed at the time of hiring they were
immaterial to any hiring decision. Id. at 7. Finally, Chapman
7
argues no causal link exists between the prior injuries and the
current injury. Id. at 8.
II.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only if “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits show that there is no genuine issue
as to any material fact and the movant is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 749 (5th
Cir. 2002). A genuine dispute of material fact exists when the
“evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Royal v. CCC & R. Tres Arboles, L.L.C.,
736 F.3d 396, 400 (5th Cir. 2013).
The
party
moving
for
summary
judgment
must
initially
establish the nonmoving party’s lack of evidence to support its
case. FED.R.CIV.P. 56(c); Stauffer v. Gearhart, 741 F.3d 574, 582
(5th Cir. 2014). Once this burden is met, a party cannot “defeat
summary
judgment
with
conclusory
allegations,
unsubstantial
assertions, or ‘only a scintilla of evidence.’ ” Celtic Marine
Corp. v. James C. Justice Companies, Inc., 760 F.3d 477, 481 (5th
Cir. 2014); TIG Ins. Co., 276 F.3d at 759. Rather, the nonmovant
must go beyond the pleadings and use affidavits, depositions,
interrogatory
responses,
admissions,
or
other
evidence
to
establish the existence of a genuine factual issue. Matsushita
8
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In considering the motion a court must draw all justifiable
inferences in favor of the nonmoving party and must not make
credibility determinations or weigh the evidence. TIG Ins. Co.,
276 F.3d at 759; Celtic Marine Corp., 760 F.3d at 481.
III.
Jones
Act
seaman
are
LAW AND ANALYSIS
entitled
to
powerful
and
generous
remedies under general maritime law due to their close relationship
with the vessel and the particular hazards of their work; chief
among these benefits is the right to maintenance and cure. Willis
v. McDonough Marine Serv., Civ. A. No. 14–811, 2015 WL 3824366, at
*3 (E.D. La. June 18, 2015). Maintenance is a duty imposed upon a
shipowner to provide for a seaman who becomes injured during his
service to the ship. Silmon v. Can Do. II, Inc., 89 F.3d 240, 242
(5th Cir. 1996). Maintenance is a subsidence allowance intended to
cover the reasonable costs a seaman incurs for his food and lodging
during the period of his injury. See Guevara v. Mar. Overseas
Corp., 59 F.3d 1496, 1499 (5th Cir. 1995), abrogated on other
grounds, Atl. Sounding Co., Inc. v. Townsend, 129 S.Ct. 2561
(2009). Cure is an employer's obligation to pay for the medical
care of the sick or injured seaman. Id. at 1499; Thomas J.
Schoenbaum, ADMIRALTY
AND
MARITIME LAW, § 6–32, at 361 (2d ed. 1994).
This right “terminates only when maximum cure has been obtained.”
9
Bertram v. Freeport McMoran, Inc., 35 F.3d 1008, 1012 (5th Cir.
1985).
A Jones Act employer may investigate a claim for maintenance
and cure, and may rely on certain defenses to deny such claims.
Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 171 (5th
Cir. 2005). Maintenance and cure is not owed where a seaman
knowingly or fraudulently conceals or fails to disclose a preexisting injury from a shipowner or employer who required the
seamen to submit to a pre-hiring medical examination or interview.
McCorpen v. Cent. Gulf Steamship Corp., 396 F.2d 547, 548-49 (5th
Cir. 1968). The McCorpen defense is established when an employer
proves: (1) the seaman intentionally misrepresented or concealed
medical facts; (2) the concealed facts were material to the
employer’s decision to hire the seaman; and (3) the withheld
information and injury complained of in the lawsuit are causally
connected. Brown, 410 F.3d at 171. The Court addresses each element
of Spartan’s McCorpen defense in turn.
A. Concealment
The first prong of the McCorpen defense establishes that
“where the shipowner requires a seaman to submit to a pre-hiring
medical examination or interview and the seaman intentionally
misrepresents or conceals material medical facts, the disclosure
of which is plainly desired, then he is not entitled to an award
of maintenance and cure.” McCorpen, 386 F.2d at 549. Whether a
10
seaman intentionally misrepresented or concealed material medical
facts is essentially an objective inquiry where the employer “need
only
show
that
the
seaman
‘[f]ail[ed]
to
disclose
medical
information in an interview or questionnaire that is obviously
designed to elicit such information.’” Meche v. Doucet, 777 F.3d
237, 247 (5th Cir. 2015) (quoting Vitovich v. Ocean Rover O.N.,
Civ. A. No. 94–35047, 106 F.3d 411, 1997 WL 21205, at *3 (9th Cir.
Jan. 14, 1997)).
In Brown, the Fifth Circuit found a Jones Act employer
established, as a matter of law, that a seaman intentionally
concealed his prior history of back injuries. 410 F.3d at 175.
There,
the
employer’s
health
history
form
specifically
asked
whether the applicant had suffered past or present back and neck
trouble, to which Brown responded negatively. Id. at 171. The
employee had in fact been fired from a previous job for failing to
disclose a back injury that required emergency room treatment. Id.
at 170. The court held that where the employee failed to disclose
a
history
of
back
injuries
on
a
subsequent
application,
an
intentional concealment occurred. See id. at 169-75.
Similarly, in Wimberly v. Harvey Gulf International Marine,
LLC, the Court held that a Jones Act employer established as a
matter of law that a seaman intentionally concealed a prior history
of back injuries. Civ. A. No. 14–1208, 2015 WL 5089538, at *6 (E.D.
La. Aug. 27, 2015). The seaman admitted experiencing chronic back
11
pain to prior doctors, and was prescribed pain killers and physical
therapy
some
six
months
before
applying
for
a
job
with
the
defendant. Id. at *5. Furthermore, his medical records revealed
chronic neck pain due to degenerative joint disease, a vertebral
fracture, and a history of back pain. Id. at *4. The seaman
subsequently failed to check “Yes” to questions about back and
neck problems on a post-hire medical questionnaire, though he did
make a “tepid admission of frequent back pain without explanation.”
Id. at *5. This sufficed to prove objective intent to downplay and
conceal prior injuries. Id.
Drawing all justifiable inferences in favor of Chapman and
refraining from making credibility determinations or weighing the
evidence, no genuine issue of material fact precludes the Court
from concluding that Chapman meets the threshold for concealment
of “back trouble” made in Brown. The disclosure of any injury,
treatment, or workplace issue related to the back was “plainly
desired” on both entrance exams. Furthermore, Dr. Swan directly
asked Chapman if he had any history of disc or other problems with
his back or had ever received treatment. Chapman denied ever having
a problem with his back with the exception of a week-long pulled
muscle. In fact, Chapman had complained of back pain beginning in
2006,
and
had
received
at
least
thirteen
steroid
injections
requested prescription medication for his back pain on at least
twelve occasions since that time. See Rec. Doc. 19-1 at 2; Rec.
12
Doc. 22-1 at 1. Chapman acknowledged in his deposition that he
knew the information regarding his medical injury was desired as
a prerequisite to his employment, and admitted
lying on the
entrance exam and in response to direct questions. Rec. Doc.
19-
8 at 4-5.
The pleadings, depositions, and interrogatories reveal the
full history of Chapman’s prior back injuries and treatments, as
well
as
Chapman’s
repeated
untruthful
answers
to
Spartan’s
questions about his back. Chapman’s statement to Spartan that he
had a short-lived pull of a back muscle and Chapman’s flatly
disputed contention that he told Dr. Leonard that he had a “messed
up” disc and “talked about the doctors and what they had said about
it” constitute “tepid” admissions that fall short of meaningful
disclosure or otherwise responsive answers to Spartan’s repeated
questioning about Chapman’s history of back injuries. See Brown,
410 F.3d at 171; Wimberly, 2015 WL 5089538, at *5. There is no
genuine issue of material fact precluding the Court from concluding
that Chapman intentionally concealed medical facts plainly desired
by Spartan. See Wimberly, 2015 WL 5089538, at *6.
B. Materiality
To meet the second prong of the McCorpen defense the defendant
must show that the plaintiff’s misrepresentations were material to
its
hiring
decision. See
Brown, 410
F.3d
at
171
(citing McCorpen, 396 F.2d at 547). Materiality exists where an
13
employer asks specific medical questions rationally related to an
applicant’s physical ability to perform job duties. Id. at 175. If
an employee can show that even if undisclosed facts were material
he or she would have been hired regardless, the employer is not
entitled to the McCorpen defense to evade its maintenance and cure
obligation. See McCorpen, 396 F.2d at 551-52; Hare v. Graham Gulf,
Inc., 22 F. Supp. 3d 648, 654 (E.D. La. 2014) (Morgan, J.). A
genuine
issue
of
fact
exists
when
it
is
unclear
whether
an
employer's hiring decision would be affected by knowledge of a
potential employee's previous injuries. Jauch v. Nautical Servs.,
Inc., 470 F.3d 207, 212 (5th Cir. 2006).
The specific medical questions posed by the entrance exam and
by Doctors Swan and Leonard clearly related to Chapman’s ability
to perform his job duties; therefore, the answers to such questions
were material. See Brown, 410 F.3d at 171. Both of Spartan’s
examining physicians stated that, had the full extent of Chapman’s
medical history been revealed, they would not have released him to
work and would have referred him for additional testing. See Rec.
Doc. 19-9 at 8; Rec. Doc. 19-10 at 3–4. Chapman has failed to show
that Spartan would have hired him regardless of the undisclosed
material facts. Chapman argues that he otherwise passed Spartan’s
physical exam; however, the Fifth Circuit in Brown rejected the
argument that a plaintiff’s successful passing of an employer’s
physical exam factors in to a McCorpen materiality analysis. See
14
Brown, 410 F.3d at 175. There is no justifiable inference that
Chapman would have been hired regardless of his medical history.
Accordingly, no genuine issue of fact as to the materiality of the
concealed or misrepresented medical history exists.
C. Causal Connection
In order to establish the final element of the McCorpen
defense, the defendant must demonstrate the existence of “a causal
link between the pre-existing disability that was concealed and
the disability incurred during the voyage.” McCorpen, 396 F.2d at
549. The present injury need not be “identical” to the previous
injury, nor must the previous injury be the “sole cause” to
establish a causal relationship. Brown, 410 F.3d at 176. “Rather,
the McCorpen defense will succeed if the defendant can prove that
the old injury and the new injury affected the same body part.”
Johnson v. Cenac Towing, 599 F. Supp. 2d 721, 728-29 (E.D. La.
March 2, 2009) (Vance, J.).
The
link
between
prior
and
present
injuries
does
not
necessarily need to occur to the exact same vertebrae or tissue
but rather in the same location on the body. Brown, 410 F.3d at
176-77 (holding that causality existed where plaintiff's prior
injury was a lumbar strain which sent him to the emergency room
and present injury was a herniated disc in the lumbar region of
the spine); see also Wimberly, 2015 WL 5089538, at *7; Kathryn Rae
Towing, Inc. v. Buras, Civ. A. No. 11–2936, 2013 WL 85210, at *7
15
(E.D. La. Jan. 7, 2013) (Vance, J.) (finding a causal link on
summary judgment where previous diagnoses and the precise lumbar
vertebrae injured were not identical but employee’s complaints to
doctors were quite similar); Weatherford v. Nabors Offshore Corp.,
Civ. A. No. 03–0478, 2004 WL 414948, at *3 (E.D. La. Mar. 3, 2004)
(Duval, J.) (finding a causal link on summary judgment where
plaintiff concealed prior injury to lower back and instant injury
claim included pain in the lower back).
“The inquiry is simply
whether the new injury is related to the old injury, irrespective
of their root causes.” Johnson, 599 F. Supp. 2d at 728-29.
Spartan has established that Chapman’s present back pain
injury is related to a history of back pain in general and at the
L4-5 level specifically, beginning at least fourteen years before
the injury complained of. Chapman argues that summary judgment is
inappropriate at this stage because he has not been afforded the
opportunity
depositions,
to
“go
beyond
interrogatory
the
pleadings
responses,
and
use
admissions,
affidavits,
or
other
evidence to establish the existence of a genuine factual issue.”
See Matsushita, 475 U.S. at 586. Specifically, Chapman states that
without deposing Dr. Smith and Dr. Voorhies, “it is unknown what
the similarities and/or differences are between plaintiff’s prior
problems and current complaints.” Rec. Doc. 22 at 9.
Following the standard set forth in Brown and considering the
pleadings, depositions, answers to interrogatories, admissions,
16
and affidavits before the Court, the Court cannot conclude there
is a genuine issue of material fact as to the causal connection
element or a need to allow for additional discovery. Dr. Voorhies
has unequivocally recommended a lumbar fusion at the L4-5 level of
Chapman’s lumbar spine. Rec. Doc. 19-2 at 15; Rec. Doc. 22 at 3.
Chapman submits Dr. Smith must be deposed in order to determine
whether he discussed surgery at this level with Chapman prior to
his
employment
with
Spartan.
This
additional
testimony
is
irrelevant to the consideration of whether or not a causal link
exists when the evidence reveals that Chapman: underwent a lumbar
MRI with Dr. Smith which revealed a disc herniation at L5-S1;
received lumbar epidural steroid injections on thirteen separate
occasions over the next seven years; requested pain medication for
his
back
from
Dr.
Smith
on
twelve
separate
occasions;
was
restricted from working for two weeks due to back pain by Dr.
Smith; underwent a lumbar MRI which revealed a disc herniation at
the L4-5 level of the spine in 2012. See Rec. Doc. 19-1 at 1; Rec.
Doc. 22-1 at 1.
While the testimony of Dr. Smith and Dr. Voorhies could
further elucidate the nature of Chapman’s previous and present
injuries, Spartan must only show that the “old injury and the new
injury affected the same body part.” Johnson, 599 F. Supp. 2d at
728-29. Based on the evidence now before the Court, no genuine
issue of material fact exists because it is clear that the injuries
17
effected that same location on the body—the lower back generally,
and the L4-5 level of the spine specifically. See Brown, 410 F.3d
at 176-77; Wimberly, 2015 WL 5089538, at *7. Therefore, Spartan
has met its burden of showing a lack of genuine material fact
regarding the causality element of the McCorpen defense.
IV.
CONCLUSION
Spartan has established all three prongs of the McCorpen
defense, with no genuine issue of material fact precluding the
Court from granting summary judgment on Chapman’s maintenance and
cure claim in favor of Spartan. Accordingly,
IT IS ORDERED that defendant’s motion for partial summary
judgment is GRANTED.
New Orleans, Louisiana, this 8th day of April, 2016.
____________________________
UNITED STATES DISTRICT JUDGE
18
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