Jacobs v. Alam et al
Filing
227
ORDER Denying Defendants' Motion to Exclude Evidence of Economic Damages and Denying Defendants' Motion to Exclude Expert Testimony 179 . Signed by District Judge Denise Page Hood. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EDUARDO JACOBS,
Plaintiff,
CASE NO. 15-10516
HON. DENISE PAGE HOOD
v.
RAYMON ALAM, et al.,
Defendants.
/
ORDER DENYING DEFENDANTS’ MOTION TO EXCLUDE EVIDENCE
OF ECONOMIC DAMAGES AND DENYING DEFENDANTS’ MOTION
TO EXCLUDE EXPERT TESTIMONY [#179]
I.
BACKGROUND
Defendants Raymon Alam, David Weinman, and Damon Kimbrough
(“Defendants”) have filed a Motion to exclude evidence of economic damages.
[ECF No. 179]
This case involves the events that occurred between Defendants and Plaintiff
Eduardo Jacobs (“Plaintiff”) during the raid at his residence located at 5837
Christiancy Street, Detroit, MI on January 3, 2014. The parties dispute many of the
events leading up to Plaintiff’s injury. However, it is undisputed that Plaintiff was
shot at least one time from one of Defendants’ bullets.
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Plaintiff alleges that the bullet wound he sustained resulted in his permanent
inability to work, which caused a series of economic losses related to his rental
properties, “Mexicantown Properties, LLC.” Plaintiff further contends that his
absence from work allowed employees of his company to loot his business assets.
Plaintiff also alleges that his permanent disability forced several of his properties
into tax foreclosure. Defendants claim Plaintiff has violated Federal Rule of Civil
Procedure 37 and that Plaintiff’s expert witnesses, Dr. Nitin V. Paranjpe and Mr.
Guy A. Hostetler should be excluded.
II.
ANALYSIS
A. Rule 37
1. Legal Standard
“If a party fails to provide information or identify a witness as required by
Rule 26(a) or (e),” Rule 37 of the Federal Rules of Civil Procedure explains that
“the party is not allowed to use that information or witness to supply evidence on a
motion, at a hearing, or at trial, unless the failure was substantially justified or is
harmless.” Fed.R.Civ.P. 37(c)(1); see also Bessemer & Lake Erie R.R. Co. v.
Seaway Marine Transp., 596 F.3d 357, 396 (6th Cir.2010).
The Rule 37 sanction “is mandatory unless there is a reasonable explanation
of why Rule 26 was not complied with or the mistake was harmless.' “Bessemer &
Lake Erie R.R. Co. v. Seaway Marine Transport, 596 F.3d 357, 370 (6th Cir.2010)
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(quoting Vance ex rel Hammons v. United States, 182 F.3d 920 (6th Cir.1999)).
The burden is on the potentially sanctioned party to prove the failure was harmless
and avoid automatic sanctions. See Everlight Electronics, Co. v. Nichia Corp., No.
12–CV–11758, 2014 WL 3925276, at *5 (E.D.Mich. Aug.12, 2014) (citing R.C.
Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262, 271 (6th Cir.2010)); see also
El Camino Res., Ltd. v. Huntington Nat. Bank, No. 1:07–CV–598, 2009 WL
1228680, at *2 (W.D.Mich. Apr.30, 2009) (citing Roberts ex rel. Johnson v. Galen
of Virginia, Inc., 325 F.3d 776, 782 (6th Cir.2003)).
“[D]espite the mandatory language of the rule,” this Court notes that “the
appellate courts continue to insist that [exclusion pursuant to Rule 37(c)(1) ] falls
within the sound discretion of the trial court.” El Camino Res., Ltd., 2009 WL
1228680, at *2 (citing Roberts ex rel. Johnson, 325 F.3d at 782); accord Design
Strategy, Inc. v. Davis, 469 F.3d 284, 297 (2d Cir.2006) (stating that preclusion
remains discretionary, even where nondisclosing party has not met its burden to
show that violation was justified or harmless); see also Pride v. BIC Corp., 218
F.3d 566, 578 (6th Cir.2000) (“[Trial] courts have broad discretion to exclude
untimely disclosed expert-witness testimony.”); McCarthy v. Option One
Mortgage Corp., 362 F.3d 1008, 1012 (7th Cir.2004) (“[trial] courts enjoy broad
discretion in controlling discovery.”); S. States Rack & Fixture, Inc. v. Sherwin—
Williams Co., 318 F.3d 592, 597 (4th Cir.2003) (stating trial courts have “broad
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discretion to determine whether a nondisclosure of evidence is substantially
justified or harmless for purposes of a Rule 37(c)(1) exclusion analysis”);
Laplace—Bayard v. Batlle, 295 F.3d 157, 162 (1st Cir.2002) (“[Trial] courts have
broad discretion in meting out Rule 37(c) sanctions for Rule 26 violations.”);
Jacobsen v. Deseret Book Co., 287 F.3d 936, 953 (10th Cir.2002) (“The
determination of whether a Rule 26(a) violation is justified or harmless is entrusted
to the broad discretion of the [trial] court.”).
In determining whether nondisclosure is harmless, courts look at several
factors, but the principal factor is whether the opponent will be prejudiced or
surprised. See, e.g., El Camino Res., Ltd., 2009 WL 1228680, at *2 (citing David v.
Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir.2003)). The Advisory Committee
Comments to Rule 37 note that “[l]imiting the automatic sanction to violations
without substantial justification,' coupled with the exception for violations that are
‘harmless,’ is needed to avoid unduly harsh penalties in a variety of situations[.]”
Fed.R.Civ.P. 37 Advisory Committee Notes, 1993 Amends. (emphasis added).
2. Application
Defendants argue that Plaintiff failed to respond to their discovery
requests and the Court’s Order compelling the disclosure of certain information. In
forming their argument, Defendants allege that Plaintiff took several actions—and
in some cases no action—to circumvent the discovery process. Defendants allege
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that Plaintiff has been receiving social security disability checks since 2011.
Defendants highlight that it is unclear how Plaintiff can receive social security
disability benefits, despite operating a “highly-profitable business.” [ECF No. 179,
Pg.ID 5884] Plaintiff did not address this claim in his Response.
In addition to Plaintiff’s injuries stemming from the January 2014 shooting,
Plaintiff also sustained injuries in two serious car accidents—one in 2009 and the
other in April 2014. To determine each incident’s effect on Plaintiff, Defendants
asked Plaintiff to disclose which of his injuries were attributable to each event.
Defendants allege Plaintiff failed to answer their requests, so they moved to
compel Plaintiff’s answers. Although Plaintiff submitted an interrogatory
explaining which injuries were caused by the shooting and not attributable to either
car accident, [ECF No. 183-5, Pg.ID 6161] Defendants claim the interrogatory was
insufficient because Plaintiff failed to produce specific medical records as
requested. Defendants argue that there is no way of knowing whether Plaintiff’s
injuries came from his car accidents or bullet wound. Defendants assert that if
Plaintiff did not have any medical records to support his claims, he needed to
respond that “‘no’ medical records supported his claims,” and acknowledge that
fact.
Defendants also allege that Plaintiff failed to produce his personal and
business tax returns for the relevant time periods. Plaintiff responds that he
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submitted a request to the IRS for all of his relevant personal and business tax
returns. Through his request, Plaintiff realized that he did not file personal or
business taxes during the relevant years and therefore, did not have any tax returns
to produce.
Defendants further allege that Plaintiff neglected to produce his business
bank account records, and other relevant business records. Plaintiff states that he
produced 395 pages of bank statements from JP Morgan Chase Bank and Bank of
America from 2013 to 2016.
Defendants also claim that Plaintiff failed to provide the names of the
individuals who allegedly stole from Mexicantown Properties, while Plaintiff was
absent from the property due to injury. Plaintiff correctly asserts that the Court’s
Order on December 16, 2016 [ECF No. 92] acknowledged that Plaintiff did not
know the identity of the individuals who looted his business. Plaintiff’s
acknowledgment that he has an ongoing duty to report any new information
illustrates his continuing compliance with this issue.
Defendants use Razzoli v. Jersey City Police Dep’t to support their argument
that failing to comply with discovery requests justifies excluding evidence
concerning that topic of discovery. No. 16-5545, 2019 U.S. Dist. LEXIS 108812
(D.N.J. Apr. 26, 2019) (unpublished). But the Court finds the events in Razzoli
sufficiently distinguishable from the instant case. In Razzoli, Plaintiff repeatedly
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failed to attend scheduling conferences and other meetings associated with
litigation. Id. at 4. Although the plaintiff attempted to justify each absence with a
medical issue or physical ailment, the plaintiff never provided the court with any
documentation. Id. The plaintiff also provided illegitimate excuses for failing to
comply with discovery. Id. at 5 (explaining that the plaintiff alleged he could not
afford to pay for the reproduction of documents that were in his estranged wife’s
possession).
In the instant case, Plaintiff has either complied with court orders and
discovery requests or provided reasonable reasons for not doing so. For example,
Defendants argue that Plaintiff failed to comply with the Court’s instructions by
not filing a declaration stating that he was unable to obtain certain documents.
Plaintiff states that he thought it was unnecessary to file a declaration confirming
the absence of a record when the court order specified that Plaintiff would have to
request the sought-after records. Plaintiff thought that complying with the Court’s
first mandate would satisfy or negate the second instruction. The Court can see
both side’s perspective. Although Plaintiff definitively confirming some records
did not exist or could not be located would have provided Defendants with some
peace of mind, Plaintiff’s actions were not blatantly outrageous, do not appear
intentional, and are ultimately harmless.
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Defendants’ most compelling argument is that Plaintiff did not provide
specific medical documents to support the claims he made in his interrogatory
response. [ECF No. 183-5, Pg.ID 6161] Plaintiff’s failure to provide specific
medical records highlights a potential weakness in his argument, which is an issue
for Defendants to point out at trial. However, Plaintiff’s failure to specify medical
records does not provide a sufficient reason to exclude evidence of all economic
damages. The Court does not think Plaintiff’s actions amount to a violation of Rule
37 and DENIES Defendant’s request to exclude evidence of economic damages
based on a Rule 37 violation.
B. Expert Testimony
Alternatively, Defendants seek to exclude evidence of economic damages
because of Plaintiff’s alleged untimely disclosure and deficiencies with Plaintiff’s
expert witnesses, Dr. Nitin V. Paranjpe and Mr. Guy A. Hostetler.
1. Legal Standard
Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; (b) the testimony
is based upon scientific facts or data; (c) the testimony is
the product of reliable principles and methods; and (d)
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the expert has reliably applied the principles and methods
to the facts of the case.
Rule 702 charges trial judges with the task of ensuring “that any and all scientific
testimony or evidence admitted is not only relevant, but reliable.” Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). The gatekeeping
role “entails a preliminary assessment of whether the reasoning or methodology
underlying the testimony is ... valid and of whether that reasoning or methodology
properly can be applied to the facts in issue.” Id. at 592-93. This role applies to all
expert testimony, not only to “scientific” expert testimony. Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 147 (1999). As the advisory committee notes to Rule
702 explain, expert testimony is admissible provided that “the principles and
methods [used by the expert] are reliable and applied reliably to the facts of the
case.” FRE 702 Advisory Committee notes (2000 amendments).
The Sixth Circuit has explained the district court’s gatekeeping
responsibility
under Daubert as follows:
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597,
113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court held that
scientific evidence proffered by an expert must be “relevant to the
task at hand” and must rest “on a reliable foundation.” The Supreme
Court subsequently affirmed that Daubert’s principles apply more
generally to all expert testimony admissible under Rule 702 in Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 148, 119 S.Ct. 1167, 143
L.Ed.2d 238 (1999). The maxims set forth in Daubert and Kumho Tire
have since been incorporated in Rule 702 . . .
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***
In essence, Daubert and its progeny have placed the district courts in
the role of “gatekeeper,” charging them with evaluating the relevance
and reliability of proffered expert testimony with heightened care.
Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 294-295 (6th Cir.
2007) This “gatekeeping responsibility” includes an obligation to “ensur[e] that an
expert’s testimony rests on a reliable foundation and is relevant to the task at
hand.” Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d
706, 714-15 (8th Cir. 2001) (quoting Kumho, 526 U.S. at 141).
The “gatekeeping” role does not always necessitate a pretrial hearing. See
Greenwell v. Boatwright, 184 F.3d 492, 498 (6th Cir. 1999). On the contrary, the
Sixth Circuit has repeatedly emphasized that a district court “is not required to hold
an actual hearing to comply with Daubert,” and that the decision about whether to
hold such a hearing falls firmly within the district court’s discretion. Nelson v.
Tennessee Gas Pipeline Co., 243 F.3d 244, 249 (6th Cir. 2001) (citing Greenwell,
184 F.3d at 498 and Kumho, 526 U.S. at 152). Where a district court opts not to
hold a Daubert hearing, the court may satisfy its gatekeeping role by “keep[ing]
watch over the proceedings, and, with the aid of objections from [counsel],
eliminat[ing] methodologically unsound or irrelevant expert testimony.” Avery
Dennison Corp. v. Four Pillars Enterprise Co., 45 F. App’x 479, 484 (6th Cir.
2002).
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Whether deciding the issue on the parties’ written submissions or after
holding an evidentiary hearing, a district court’s task in assessing evidence
proffered under Rule 702 is to determine whether the evidence “both rests on a
reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597.
“The trial judge must determine at the outset. . .whether the expert is proposing to
testify to (1) scientific knowledge that (2) will assist the trier of fact to understand
or determine a fact in issue.” Daubert, 509 U.S. at 592. “One key consideration is
‘whether the reasoning or methodology underlying the testimony is scientifically
valid.’ The inquiry is ‘a flexible one,’ and ‘the focus. . .must be solely on
principles and methodology, not on the conclusions they generate.”” Newell
Rubbermaid, Inc. v. Raymond Corp, 676 F.3d 521, 527 (6th Cir. 2012) (quoting
Daubert at 592-93, and 594-95).
In Daubert, the Supreme Court set out four factors the court may consider
when assessing the reliability of an expert’s methodology, including: (1) whether
the theory is based on scientific or other specialized knowledge that has been or
can be tested; (2) whether the theory has been subject to peer review; (3) the
known or potential rate of error and the existence of standards controlling the
theory’s operation; and (4) the extent to which the theory is generally accepted in
the relevant community. Id. at 593-94. Although Daubert identified a number of
potential considerations for determining reliability, the district court has “wide
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latitude” in “deciding how to test an expert’s reliability,” and must be afforded
“considerable leeway in deciding . . . how to go about determining whether
particular expert testimony is reliable.” Kumho Tire Co., 526 U.S. at 137. The
district court need not follow one particular method for deciding how to test an
expert’s reliability, nor does this decision even have to take place at a preliminary
hearing. Id.; see also Greenwell, 184 F.3d at 498 (“[T]he trial court is not required
to hold an actual hearing to comply with Daubert…”).
“Once initial expert qualifications and usefulness to the jury are established,
however, a district court must continue to perform its gatekeeping role by ensuring
that the actual testimony does not exceed the scope of the expert's expertise, which
if not done can render expert testimony unreliable under Rule 702, Kumho Tire,
and related precedents.” Id. at 715.
2. Application
Defendants assert that Federal Rule of Evidence 702 requires the exclusion
of Plaintiff’s economic damages experts. Defendants claim that Plaintiff failed to
disclose Dr. Paranjpe and Mr. Hostetler in a timely manner. Defendants also argue
that Plaintiff now asserts a new theory of damages, and that Plaintiff’s experts
based their testimony on unsupported evidence.
Although Dr. Paranjpe and Mr. Hostetler were disclosed after the close of
discovery, their initial disclosure in April 2019 did comply with Rule 26
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(a)(2)(D)(i). The experts were disclosed more than 90 days before the trial was
scheduled to begin in October 2019 and the disclosure did not violate a preexisting
court order or stipulation. However, Plaintiff did violate Rule 26 by not providing
the expert witness reports at the time of disclosure.
Defendants assert that Plaintiff did not submit the reports until July 2019. At
that time, trial was set to begin on October 8, 2019. Since Defendants did not
specify what date they received the expert reports, the Court cannot definitively
determine whether the reports were disclosed in a timely manner. The Court also
finds that Defendants’ cited cases are distinguishable from the instant case. Good
v. Biolife Plasma Services, L.P. differs because it involved the untimely disclosure
of expert witnesses and does not mention expert reports. No. 18-11260, 2019 U.S.
Dist. LEXIS 119357, *9-10 (E.D. Mich. July 18, 2019) (unpublished). Here,
Plaintiff disclosed the witnesses on time, but may have disclosed the reports in an
untimely manner. The Court finds Doe v. Livonia Public Schools more persuasive.
No. 13-11687, 2018 U.S. Dist. LEXIS 9493, *9 (E.D. Mich. Jan. 22, 2018)
(unpublished). Doe emphasized that proper notice is an underlying rationale behind
Rule 37. Id. Plaintiff filed the expert report in July 2019. Defendants did not
request to depose the experts and did not raise the issue of disclosure until
September 2019. The Court finds that Defendants had sufficient notice of the
contents of Dr. Paranjpe and Mr. Hostetler’s testimonies to prepare for trial.
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Defendants argue that Plaintiff originally calculated his damages using his
estimates that he earned approximately “$230,000-$300,000” per year before the
January 2014 incident. However, after failing to provide documents supporting this
claim, Defendants contend Plaintiff now attempts to reframe his damages request.
Plaintiff now argues he is entitled to damages that a typical person in his
profession, “property management or “construction,” would make absent
Plaintiff’s injuries. The Court takes no issue with Plaintiff using whatever
argument and evidence is available to him, within the confines of the Federal Rules
of Evidence, to support his claims.
Defendants then argue that Plaintiff’s experts base their opinions on
unsupported facts. Federal Rule of Evidence 702 establishes broad criteria for
expert witness qualifications. Both of Plaintiff’s expert witnesses for economic
damages have the requisite knowledge, training, and education to satisfy Rule 702.
Next, the Court is not convinced that Plaintiff’s expert opinions are based on
unsupported facts or insufficient data.
Defendants first argue that Mr. Hostetler’s opinion is based on an outdated
medical examination from Dr. Lerner, a physician who has since lost his medical
license and is a convicted felon. Although the Court does not dispute this
assertion, Dr. Lerner did have a valid medical license at the time of the
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examination. Any issue that Defendants have with Dr. Lerner’s analysis can be
raised during cross-examination or through a rebuttal witness.
Defendants also argue that Plaintiff’s experts base their opinions on
Plaintiff’s personal remarks about his business and health. Plaintiff counters that
Dr. Paranjpe also based his opinion on information from the Michigan Department
of Labor, Market Information & Strategic Initiatives, and the Bureau of Labor
Statistics. Defendants respond that Dr. Paranjpe was only able to use the
Department of Labor data after Plaintiff self-reported his past work experience and
wages. The Court finds that this dispute reflects the weight of the evidence and not
its admissibility. Defendants will be able to respond at trial with rebuttal witnesses
or other appropriate methods of impeachment.
Next, the Court agrees that Mr. Hostetler is not permitted to opine on
whether Plaintiff is “totally disabled.” Mr. Hostetler is not a medical expert and
may not make assertions about Plaintiff’s total inability to work. As a vocational
expert, Mr. Hostetler is limited to opining on the types of jobs that Plaintiff may be
able to perform based on his current physical capabilities. See Perschka v. Comm'r
of Soc. Sec., 411 F. App'x 781, 787 (6th Cir. 2010) (explaining that the vocational
expert’s opinion was valid because it was limited to listing eligible job
opportunities and was consistent with multiple physician reports). Mr. Hostetler’s
expert testimony can be informed by medical reports but must be limited to
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potential jobs available to Plaintiff. The Court DENIES Defendants’ Motion to
exclude Plaintiff’s expert witnesses Dr. Paranjpe and Mr. Hostetler.
C. Bifurcation
Alternatively, Defendant filed a motion to bifurcate liability and damages.
Defendant argues bifurcation will save judicial time and resources because if
liability is not proven, there will be no need for the presentation of damages.
Plaintiff counters that the potential for judicial economy is minuscule.
A district court may bifurcate a trial “in furtherance of convenience or to
avoid prejudice, or when separate trials will be conducive to expedition and
economy.” Fed.R.Civ.P Rule 42(b); Saxion v. Titan-C-Mfg., Inc., 86 F.3d 553, 556
(6th Cir. 1996). The decision to bifurcate a trial is “within the sound discretion of
the court.” Yung v. Raymark Indus. Inc., 789 F.2d 397, 400 (6th Cir.1986). “The
party seeking bifurcation has the burden of demonstrating judicial economy would
be promoted and that no party would be prejudiced by separate trials.” K.W. Muth
Co., Inc. v. Bing–Lear Mfg. Group, L.L.C., No. 01–cv–71925, 2002 WL 1879943,
at *3 (E.D. Mich. Jul 16, 2002). Courts have indicated that bifurcation “should be
used sparingly.” Kelley v. Steel Transp., Inc., No. 09-CV-14318, 2011 WL
1690066, at *4 (E.D. Mich. May 4, 2011).
The Court will not bifurcate this matter. Defendants note that bifurcation
would allow the parties to revisit any legal issues regarding damages at a later date.
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Although this is true, it is unwarranted in this case. While bifurcation could shorten
the trial by excluding testimony regarding damages, the “saved” time would be for
naught should the damages phase become necessary. Bifurcation requires a certain
degree of duplication of efforts by the parties, counsel, and the Court. In the event
the damages phase becomes necessary, there would have to be another round of
opening statements, closing arguments, and jury instructions. Id. at *5. This trial
does not involve complex issues requiring bifurcation.
III.
CONCLUSION
IT IS HEREBY ORDERED that Defendants’ Motion to Exclude Evidence
of Economic Damages (#179) is DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion to Exclude Expert
Testimony of Dr. Paranjpe and Mr. Hostetler (#179) is DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion to Bifurcate the trial
into two phases (#179) is DENIED.
s/Denise Page Hood
DENISE PAGE HOOD
Chief Judge
DATED: November 13, 2019
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