Normally in a jury trial involving personal injuries, a jury is free to award as damages whatever amount they see just and fit, based upon the evidence presented. Traditionally there has been no cap or maximum on an amount that can be awarded, again, so long as the award is supported by the evidence presented.

However, with the push of doctor and insurance lobbyists, a few years ago, Florida passed a cap on certain damages that could be recovered by victims and their families in a medical malpractice claim.


About the Cap

The cap was on what is known as noneconomic damages. Noneconomic damages are things like pain, suffering, mental anguish, loss of the enjoyment of life, and other aspects of injury that don’t have an exact price tag on them, but surely, have a value to the person injured.

The lobbyists were concerned at the time about “runaway juries”—juries that were so persuaded by emotion, that they awarded what was publicly perceived to be excess verdicts. And as a result, it was claimed, insurance premiums went up, and doctors could not afford to practice medicine.

So the Florida Legislature passed a damage cap of $500,000 to $1 million (if the victim was in a coma or vegetative state) on noneconomic damages only in malpractice cases. Any verdict more than this for noneconomic damages would be reduced to that amount.

The Florida Supreme Court Strikes Down the Law

Despite the law being instituted in 2005, only this year has it been challenged in a case that went to the Florida Supreme Court. There, a victim of malpractice contended that the statute was unconstitutional.

The Florida Supreme Court first looked at the equal protection clause. Under equal protection, a law cannot discriminate unfairly between two classes of people. However, if a distinction is “rational,” the law may distinguish between two people. An example of a rational and legal distinction would be the laws requiring truck drivers to obtain one type of license and car drivers another.

The court found the damage cap law violated equal protection because the maximum amount was aggregate. That means that the total amount ($500K-$1mil) is shared amongst all possible Plaintiffs. So in a case with two injured Plaintiffs (say, a husband and wife), both would have the share the total verdict. This means they would receive less per person than a case with just one Plaintiff. The distinction between cases with one injured person, and multiple ones, was found by the court to be arbitrary, and in violation of the Equal Protection clause.

The Court also rejected the legislature’s findings that there was a malpractice crisis in Florida. The Court did not find any meaningful data to suggest such a crisis, and even found that in many cases, awards of over $1 mil involved settlements—not jury verdicts. Even verdicts of that amount are often settled after the verdict for less than the verdict amount.

The court cited studies that the increases in malpractice insurance premiums also were not caused by huge verdicts, but just normal economic cycles in the insurance industry. Additionally, even if premiums were reduced by capping verdicts, there is no requirement that the savings be passed on to doctors, and thus, no guarantee that the supposed “crisis” would be alleviated even if it were true that large verdicts are driving up the cost of insurance.

This is a huge win for those injured by medical malpractice as well as their survivors. It is particularly a victory for those who are the most seriously injured, whose lives have been devastated, and who are most in need of financial reparation. The decision also supports the integrity of our jury system, and the faith that we put in jurors to make the right decisions.

Do you have questions about medical malpractice or any other kind of personal injury? Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your case.

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Florida’s laws banning texting and driving are relatively new, and have been scorned for not being tough enough. That may be true as far as criminal penalties, but when it comes to asserting a claim for injuries in civil court, anything that distracts drivers can lead to significant liability when there’s an accident, and that’s been the law for a very long time.


The Verdict for Texting While Driving

The right to recover damages in civil court for text-related car accidents was reinforced recently when a Florida woman injured in an accident was awarded $4.3 million for permanent disabilities suffered at the hands of a driver who was texting while driving.

Except in this case, the victim was a passenger, and the driver who was texting was her own boyfriend, in her own vehicle. The boyfriend, distracted by the texting,  ran a stop sign and collided with a tractor trailer.

(As an aside to the texting issues, the case also reiterates that if you are a passenger in a vehicle and are injured by a negligent driver, there is still a claim against the driver. Many victims are reluctant to sue same-car drivers, who are often driving with friends or family, but putting aside that personal issue, drivers in the same car you are as responsible for your safety as drivers of other vehicles).

The Sad Texting Statistics

Studies show that a quarter of all motor vehicle crashes are due to texting, which amounts to 1.6 million a year.

Despite the statistics and the passage of the new law, enforcement has been minimal. Only 352 citations have been given in Miami for texting while driving violations, according to the Florida Highway Patrol. This is largely because it is a secondary offense, meaning a driver can only be ticketed if they are also violating another traffic law at the same time.

And, unlike DUI verdicts, which may not be discharged in bankruptcy by negligent parties, texting-related accidents don’t share the same protection. This means that a guilty party may be able to discharge any judgment against it for injuries caused by texting while driving.

Another deterrent to texting and driving should be the relative ease of proving texting while driving cases. Text records are kept by any cell phone carrier. In a personal injury lawsuit, a victim is entitled to obtain the cell phone records of the negligent party, and indications of text message activity will almost always lead to liability.

Still, that’s only part of the battle. Adding to the tragedy of the woman awarded $4.3 million was the fact that the driver in the case had no insurance. In fact, the driver didn’t even show up to the trial, or mount any defense. It is unlikely that the victim will ever reap any recovery of her judgment.

We Can Help You Today

Questions about an accident caused by DUI, DWI, texting or other distracted-driving situations? Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your case.

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When a personal injury case gets submitted to a jury, the jury doesn’t just automatically know what questions it must decide on, nor does it know what kind of law applies. It’s up to the parties, at the conclusion of a trial to instruct a jury to give them guidance on how to rule. That’s normally done by submitting jury instructions.

Both parties must agree to the instructions, and when they can’t it’s often a judge that will make the final decisions.


Those instructions are vitally important. As you can imagine, subtle wording can persuade a jury, and misstating the law, or what the parties have to prove to win, can be the difference between winning and losing. And when jury instructions are incorrect or inaccurate, it can create huge problems, such was the case in a recent appeal to Florida’s Third District Court of Appeals.

Bad Instructions Create a Problem

In Coba v. Tricam Indus., Inc., an injured party was suing for damages that were alleged to be caused by a defective design in a product. The jury instructions read:

“(1) Did Defendants, Tricam Industries and/or Home Depot, place the ladder on the market with a design defect, which was a legal cause of Roberto Coba’s death?

(2) Was there negligence on the part of Defendants, Tricam Industries and/or Home Depot, which was a legal cause of Roberto Coba’s death?”

The jury answered “no,” to the first question, but “yes” to the second. The problem is that the injured party wasn’t suing for negligence—only for a design defect. Thus, when the jury said “yes” to the second question, it was saying yes to liability under a theory that didn’t exist in the case. The jury was allowed to do that because of the way the jury instructions were drafted.

The Appellate Court Cites Fundamental Error

This seems like an easy appeal and an obvious error. The verdict for negligence should be overturned. But the defendant’s attorney made what could have been a crucial error—he or she failed to object to the jury instructions during the trial. You cannot appeal bad jury instructions if you don’t raise the issue at trial. Because the attorney failed to object, the injured party argued that the verdict should be allowed to stand under the instructions as written.

But the appellate court disagreed. Even though an objection must be normally made during trial or else it’s waived, the court made an exception where jury instructions were fundamentally flawed.

Because it would be logically impossible for a jury to find a defendant did not design a dangerous product, but also still believe the defendant was negligent even though the only theory of negligence would be based on the defective design, the court found the error in the case to be fundamental, and reversed the jury verdict.

Forgetting to raise an issue at trial can forever bar a party from arguing something at the appellate level. Thus, the entire problem could have been avoided both by submitting properly worded jury instructions, but also by understanding the subtle rules of appeal.

Small oversights at trial can cause big problems later on. If you are injured, make sure that you have attorneys that understand the laws of trial and appeal. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your case.

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There are some legal fictions that seem to exist no matter how true or untrue they are. One such fiction is the so-called “one free bite rule.” This is the belief that a dog can bite someone the first time without the owner being liable, but the second time there’s liability. This is actually not true in Florida, though.


Dog Bite Laws

The law is clear that if a dog bites you, the owner is responsible for your injuries, regardless of whether Fido has ever bitten someone in the past, and regardless of the dog’s propensities for being a sweetheart or a killer in the past. There are some exceptions to this law:

  1. The person bitten must be lawfully on the property. In other words, a trespasser cannot sue for suffering a dog bite on another’s property. People who are in public places, or on property with permission, are entitled to sue, as are people who have a legal right to be on your property without express permission, such as utility meter readers, municipal officials doing inspections, or of course emergency workers.
  2. If the owner has a “dangerous dog” sign up, they are generally protected from liability if the dog bites someone while on their property.

The laws do allow a court to consider how a victim may have provoked a dog, or who may have otherwise acted in a way that contributed to the possibilities of being bitten. In some situations, this makes sense. Someone should not be able to tease a dog, waive food in front of it, or run aggressively towards it, and then complain about damages suffered when they are bitten by the dog.

But often, this calls for tricky evaluation of dog psychology. How does a court actually determine what kind of activity provokes a dog, or measure how much the dog considered a particular event when deciding to bite?

Non-Human Bites or Non-Bite Injuries

Dog suits are not just limited to human bites, however. Dogs can often cause injury even without biting, or else, by biting non-humans (other animals). The liability is much broader in these cases.

A dog simply needs to cause damage for the owner to be liable, without concern of provocation or whether there was a dangerous dog sign up. Literally, any action a dog takes, directly or indirectly, will give rise to liability. There are even cases where a dog stepped on a loaded gun, shooting another person, and the dog owner was liable.

But in most cases, non-human or non-bite injuries will be simply property damage claims. Although your cat is a valued member of the family, the law sadly treats it as only property. Thus, your damages when a dog kills your cat is the value of the cat as property (or else the value of medical treatment). If a dog damages your fence, you surely can recover the value of the fence repair, but not much else.

If you are injured by a dog bite or other domestic animal, facts are important, and there are steps to be taken to make sure that you get fair recovery. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your case.

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In a bold decision, Miami Dade’s Judge Cueto struck down Florida’s Workers’ Compensation statute as unconstitutional. The ruling is considered a victory for injured workers.

The History of Worfile5311296496969kers’ Compensation

Before workers’ compensation, employees injured on the job sued their employers in the same manner other victims sued over their injuries. Legislatures eventually realized this was not fair for many workers, as personal injury suits frequently took a long time to settle. Worse, some on-the-job injuries did not result from negligence, but merely from working in an inherently dangerous job. Many injured workers had little or no monetary relief for their injuries.

With the advent of workers’ compensation laws, workers could get payed for on-the-job injuries much quicker via an administrative system, as opposed to the court system. To get financial relief, workers were not even required to prove an employer’s negligence, as one would be required to do in a traditional personal injury lawsuit. The tradeoff, however, was that workers could only obtain the damages listed in the workers’ compensation laws. Those damages were usually less generous than damages awarded in a typical personal injury suit.

More significantly, under the new laws, workers could never sue an employer for negligence. This was referred to as “comp immunity.” Other than in cases of near-intentional behavior by an employer, the employee could never sue the employer for any amount beyond the workers’ compensation damages. Immunity also barred a worker’s family members from suing the employer.

Judge Cueto’s Order

Judge Cueto’s order states that delicate balance was upset when the legislature routine cut workers’ compensation benefits, making it harder to get those benefits and lowering the benefit payments. In some cases, wages were made completely unrecoverable, and certain damages could not even be obtained unless a worker was permanently injured. According to Judge Cueto, those restrictions are unconstitutional. Although the order may be appealed to Florida’s higher courts, it is a step forward for Florida’s injured workers.

If you have been injured on the job, make sure you have attorneys that understand how to win your case. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation.

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Victims of injuries very often suffer not only physical injuries, but emotional ones as well. Anxiety, fear, post traumatic stress disorder, and any number of mental ailments are natural consequences of injury, and damages for these injuries can be recovered from a liable party in a personal injury suit. But what if you have only mental or emotional injuries, without physical injury? In these cases, the law makes it much tougher to recover damages.


Situations Where Victims Might Have Only Emotional/Mental Damages

In many cases, someone may suffer no physical injury or impact at all, but still have mental or emotional injury. Emotional damage can stem from an event that happened to you, or from witnessing something happen to a loved one. Some common examples of situations where there may only be emotional damage would be:

– Standing on the corner watching your mother cross the street when she is hit by a car;

– Observing a relative victimized by medical malpractice;

– Witnessing (but not eating) a foreign object in your food;

– Learning that the grave where you thought a loved one is buried is actually not there; or

– Learning that a child has been victimized at school or an after care activity.

All of these are horrific, the fault of another’s negligence, and likely to lead to emotional trauma. But you haven’t actually sustained any direct physical injury, meaning your emotional damages may be difficult to recover damages for.

The Impact Rule

Florida has adopted what is known as the “impact rule.” The impact rule requires that, in order to recover for only emotional trauma, you must sustain some physical contact, no matter how slight, and even if the physical contact itself doesn’t injure you. So if a robber simply touches his gun to your forehead, or your lips touch a foreign substance on the food, or you ingest harmful particles while breathing, you have physical contact—“impact”—and can recover for claims with only emotional damages.

There are exceptions to this “impact rule.” You can recover for just emotional damages if (1) your emotional or mental trauma is manifesting itself in a physical way, for example, headaches, dizziness, or even a heart attack, (2) you were involved in some way with the event that caused the trauma, and (3) you had a close personal relationship with the injured person.

Still, even with the exception, many situations still would be barred from damage recovery because of the Impact Rule.

For example:

– If a child is sexually abused, but you were not present at the time it was happening, you may still be barred recovery;

– If a child is born stillborn because of malpractice, you were not part of the malpractice or involved in it, and thus, may be prohibited from recovering; and

– If a loved one is not in a grave site you were told they were in, you were not involved with that, and did not observe it, and thus, may not be able to recover.

It’s worth noting that the “impact rule” only applies if there is an injury caused by negligence—not by an intentional act, where courts are more likely to allow emotional-only damage claims.

Emotional damages are one of the most complex and confusing areas of personal injury law. If you have suffered any kind of injury because of the actions of another, talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. for a free consultation to discuss your case.

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If you are injured by an agency of the state or city government, or any public entity, you are entitled to recover damages for your injuries. Governments, just like private companies, can be sued for negligence. However, government entities are often protected by what is known as “sovereign immunity,” a concept that can make suing and recovering, much more difficult for injured Florida victims.


What is Sovereign Immunity?

Sovereign Immunity has its roots from the days when we were an English colony. It means that you can’t sue the King—in modern days of course, “the King” being the government (sometimes called “the sovereign”). In many countries, citizens can’t sue their governments at all. But in Florida as well as many other states, the state has consented by statute to allow itself to be sued for certain things, and only up to a certain amount.

Sovereign immunity extends to any agent or entity of government. Some are obvious, like the city you live in, or police officers. Some are not, such as a public hospital where you are a victim of malpractice, or a public school.  Sometimes it can even be difficult to determine if immunity even applies, such as where private industry teams with government to engage in a public affair, building project, running a school, or other function.

When is the State Liable?

You cannot sue a state agency for decisions they make in the course of “operating” the state. Governments are generally shielded from being sued just for making bad decisions.  You can only sue if they implement their decisions incorrectly or negligently. So, for example:

– You can’t sue for there not being enough police officers on your street when a crime occurs. But if an officer shows up drunk and injures you, you may have a claim.

– You can’t sue because the state built a lane change that is difficult to navigate. But you could sue if the painted lines were incorrect, or the lighting was poor, or there was some other condition on the road itself making it dangerous.

Damages Can be Limited

Even if you can sue, your damages are limited to $200,000-$300,000, depending on the number of people who are suing. That means that even if a jury awards you $1 million, the state only has to pay $200,000.

For many injuries, that may be sufficient compensation. But for catastrophic injuries, that cap is a huge burden and isolates the state from any serious financial liability for these kinds of cases.

The only way to recover more than those amounts is to file a claims bill. This is an actual bill filed in the Florida legislature, sponsored by a member of the legislature just like any other law or bill would be. It is a burdensome and often futile process—many claims bills, even those for the most seriously injured victims, are denied in the legislature. Some victims even hire lobbyists to get their claims through. Many legislators simply don’t like the idea of paying state money for victims.

No matter how you’re injured, even if it’s at the hands of a state agent, make sure you have attorneys that understand how to win your case against the entities you are suing. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. for a free consultation to discuss your case.

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A Florida charter school is being sued by a student for personal injuries arising from a traumatic brain injury suffered during an organized and sanctioned school function featuring, of all things, Sumo Wrestling. The tragedy brings up questions about who is at fault when events such as these go wrong; our Miami injury attorneys may be able to provide valuable answers.

Sumo Suit

What Exactly Happened?

The event featured large, inflatable suits, which children (and adults) fit themselves into. The size of the suit is supposed to allow them to smash into each other in the same way that a sumo wrestler might, and also allows the user to tumble, roll around, and bounce off the floor and walls, presumably protected by the large inflatable “body” that they are fitted inside of. The activity is often used at carnivals or festivals, and can even be rented for private functions.

The suit alleges that the student suffered brain damage after having her head bashed when it repeatedly hit the floor, unprotected by the inflatable suit. The student suffered immediate dizziness and cognitive problems, and now, the suit alleges, suffers from severe brain damage.

Who is responsible for the injuries? Many entities have been sued, but in situations like this, there can be many possibilities as to who is really responsible:

  1. The School – The school may have been aware that such an activity was dangerous, or could be dangerous. The school’s employees may also lack the training required to fit the suits on children, determine what age or size children are best fitted for the suits, or sense when there’s a problem during the activity.
  2. The Company Providing the Suits – The company also may not have had employees present that could recognize problems or fit the suits properly. Company employees may have been rushed or distracted, leading to a failure to properly ensure suits were fitted and secured.
  3. The Manufacturer or Designer of the Suit – It is possible everyone present was doing their job, but the suits themselves failed. This would be an action in products liability—the usage of a product with a defective design, or a product that had a good design but just failed. If, for example, a suit tore, loosening the student in the suit enough to hit her head, there would be a products liability problem.

Unfortunately, many people who are injured during recreational activities may assume the problem is theirs—that they took the risk, or voluntarily assumed the risk of injury by participating in a particular activity. And surely, there are instances in law where we recognize that you cannot claim injury that naturally arises from a dangerous activity.

But most of the time, when something goes unexpectedly wrong, such as in this case, someone somewhere failed to act reasonably. Even a parachuter jumping out of a plane has a right to expect that his parachute won’t malfunction, or that it is made in a way to slow a fall to a safe speed when it is extracted.

Our Attorneys Are Here to Help You

Don’t assume that because you may be injured while engaging in a recreational activity or one that may even seem inherently dangerous, nobody is responsible for your injuries. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. for a free consultation to discuss your case.

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If you trip and fall on someone else’s property because a dangerous condition existed, such as, for example, a wet substance, the property owner should be liable for your injuries. At least, that’s the basic idea behind premises liability. But the ability to show a business owner is liable for your injuries may actually hinge on where the dangerous condition was, and whether you had permission to be in the area you fell. Our Miami premises liability attorneys are prepared to help you recover compensation for your injuries.

Slippery When Wet

Premises Liability and Trespassing

We’ve all been in the situation where we are in a store, hospital, or someone’s house, and had full permission to be there. But that doesn’t mean you have permission to be just anywhere on on the premises. What if you are in, for example, a grocery store, and you fall and injure yourself in the stockroom? Were you allowed to be there? What if the door to the stock room is open? What if an employee expressly tells you to go into the stockroom to find an item? What if you go into the stockroom and then venture into the employee lounge and fall there?

These seemingly silly questions get to the heart of what your status is on someone’s premises. Being somewhere you don’t have permission to be makes you a trespasser, even if you have permission to be in the store itself. Florida law does not require a business owner to warn trespassers of anything other than known, concealed dangers. That’s a high standard—recovering damages as a trespasser is a very difficult threshold. In fact, many states have enacted laws making it almost impossible to sue if you’re injured as a trespasser.

You can go from being an invited customer to a trespasser simply by walking from an area you are allowed to be (the food aisles) into an area you are not supposed to be (the stockroom). Making matters more difficult, as illustrated by our hypothetical questions, sometimes it isn’t so easy to tell where you’re allowed to be.

This was the situation in one Florida case, Denniser v. Columbia Hosp. Corp. of South Broward. In Denniser, a relative was staying with a sick family member in the hospital. The relative was there for many hours, and wandered into an unlocked employee break room, where she fell on a wet substance. The court held that although she had a right to be in the hospital, she had no right to be in the break room. Just like that, she had gone from a guest owed a duty of care by the hospital, to a simple trespasser, with a burden at trial which will be very difficult to prove.

Be Careful and Contact an Attorney

Always be careful when venturing “off the beaten path” when you are in a business. Don’t assume that there will be signs or barriers preventing you from walking in areas you aren’t allowed to walk. Asking permission from an employee to walk somewhere you are unsure of can help you avoid being considered a trespasser.

If you have suffered an injury due to a fall, don’t wonder about your rights or what burden will have to be proven to find liability. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. for a free consultation to discuss your case.

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A recent article from Forbes discussed the topic of medical malpractice lawsuits, particularly, how the motivation in filing a malpractice lawsuit is not always about a monetary damage award. Although many areas of personal injury law have emotional aspects to them which go beyond monetary awards, medical malpractice lawsuits and the emotion involved in them can be especially motivated by more than simply a damage award. It is critical to secure the services of a skilled Miami malpractice attorney to succeed in your case.


Recent Case of Malpractice

The Forbes article discussed a daughter whose mother was in a hospital. The mother was not doing well, and the patient’s daughter called the treating doctor to change medications. She was met with a refusal to even respond, with the treating doctor saying that it was a weekend and he needed a break. The mother eventually did survive, but the daughter, upset with the standard of care, and wanting to effect a change, opted to file a formal complaint with the governing medical board as opposed to filing a lawsuit.

We often hear politicians saying that medical malpractice lawsuits are expensive and something to avoid. But unfortunately, as the Forbes article further points out, other alternatives to malpractice lawsuits—such as registering complaints with governing agencies or boards that regulate medical professionals—often go nowhere. The fact is that often, a lawsuit is the only avenue that that really gets anyone’s attention or motivates any type of systemic change.

Victims Seek More Than Monetary Damages

Victims of malpractice often are not just seeking compensation, but also seek change or reform. A malpractice victim may sue with the hope that the suit may bring to light a problem in the medical system. One famous case that made such changes is the Libby Zion law, a law in New York which limits the hours medical residents can work. The law was enacted after a lawsuit was filed when a medical intern, deprived of sleep, made a medical error leading to the death of a patient.

Certainly, lawsuits don’t solve every problem, and there is nothing a judge or jury can do to compel a doctor or medical facility to change its ways. Those who have been malpractice victims, or who have had family members who were victims, should keep in mind that litigation will require them to relive what may be bad memories, and may prevent them from putting the event behind them. And in the end, there is usually no obvious “punishment” other than a significant money award.

Still, for those aggrieved by malpractice, a lawsuit is their chance to face those who may have wronged them, and to hold medical providers responsible. And large damage awards do tend to effect change, be it through discipline of offending treaters, or changes in policy or procedure.

Contact Our Attorneys

If you think you have been a victim of medical malpractice, don’t wait to seek help. Malpractice suits have short timeframes in which a lawsuit can be brought, and medical malpractice is a specialized area of personal injury law. Talk to the Miami injury attorneys of Gerson & Schwartz, P.A. today for a free consultation to discuss your case.

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