Supreme Court Rules That Title VII Allows Third-Party Retaliation Claims

Employees who are victims of third-party retaliation clearly state a claim under Title VII of the Civil Rights Act of 1964.

In Thompson v. North American Stainless, the United States Supreme Court held that the plaintiff-employee fell within the “zone of interest” to bring a claim under Title VII. There, Eric Thompson worked at the same employer of his then-fiancée (now wife), Miriam Regalado. Unfortunately, the employer fired Mr. Thompson after Ms. Regalado filed a sex discrimination claim with the Equal Employment Opportunity Commission. Mr. Thompson then filed his own complaint with the EEOC for retaliation under Title VII.

In its opinion, District Court for the Eastern District of Kentucky granted summary judgment for the employer on the basis that Title VII does not contemplate third-party retaliation claims. In doing so, the court stated:

The Court recognizes that retaliating against a spouse or close associate of an employee will deter the employee from engaging in protected activity just as much as if the employee were himself retaliated against. But, the Court also finds persuasive the reasoning that Title VII already offers broad protection in such situations by prohibiting employers from retaliating against employees who oppose unlawful employment actions or who participate in any manner in a proceeding under Title VII.

In its opinion, the Sixth Circuit (en banc) affirmed, reasoning:

Even under the most generous definition of “oppose” recognized by the Court in Crawford—”to be hostile or adverse to, as in opinion”—a plaintiff must engage in a discrete, identifiable, and purposive act of opposition to discrimination. Thus, such action is a critical component of a prima facie case of retaliation under Title VII. The plain text simply cannot be read to encompass “piggyback” protection of employees like Thompson who, by his own admission, did not engage in protected activity, but who is merely associated with another employee who did oppose an alleged unlawful employment practice.

The Supreme Court reversed and, in doing so, rejected the employer’s argument that Title VII claims should be limited to the person who was the subject of unlawful retaliation:

[W]e conclude that Thompson falls within the zone of interests protected by Title VII. Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation—collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII. He is a person aggrieved with standing to sue.

The case was successfully argued by Professor Eric Schnapper of the University of Washington School of Law. Thanks to The Oyez Project, the oral argument can be heard here.

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Memo To President Obama: Seven Ways To Reduce Health Care Costs Without Hurting The Victims Of Medical Malpractice

OBAMA SOTU.jpgRepublicans can’t wrap their heads around the idea that sometimes the most efficient markets are not the freest ones, and so they don’t really have any positive proposals for what to do about our health care mess. They don’t, for example, have any proposals for what to do about the fifty percent of Americans who now have preexisting conditions that could disqualify them from private health insurance.
Their one single, shimmering idea about how to cut health care costs is to reform medical malpractice law, primarily through imposing $250,000 caps on damages for pain-and-suffering. Regular readers of this blog will know that it’s a proposal that is as misguided as it is trivial. According to the most recent survey of the subject, published in the journal Health Affairs, the direct costs of medical malpractice – insurance premiums, insurance company payouts to the victims and defense lawyer costs – amount to 0.5% of total health care spending. Throw in the researchers’ best estimates of the cost of “defensive medicine” and the total costs of medical malpractice liability – both direct and indirect amount to 2.4% of health care spending. So even if we could eliminate the costs of medical malpractice entirely we’d only shave 2.4% off our health care spending. And, if we were to realize fully this 2.4% savings, it would mean completely stiffing the victims of even the most egregious medical malpractice — essentially what the Republican “plan” does.
Unfortunately President Obama lent the Republicans’ eminently bad ideas a patina of seriousness this week during his State of the Union, when he noted: “Still, I’m willing to look at other ideas to bring down costs, including one that the Republicans suggested last year — medical malpractice reform to rein in frivolous lawsuits.”
In light of the President’s disappointing and confounding remarks, this humble blog herewith offers President Obama (or at least its readership) seven ways of cutting health care costs without doing so on the backs of those crippled and maimed by medical malpractice.

  • Medical Hot-Spotting: Regular readers of this blog will know that one of its heroes is Dr. Atul Gawande, probably the most creative and insightful thinker about health care policy that we have. Gawande’s latest New Yorker article is finally out from behind the paywall and it’s a terrific story about a relatively new cost-control technique called “hot spotting.” It involves identifying those hugely expensive patients who are responsible for a tremendously disproportionate percentage of health care costs and then delivering to them the social services and customized medical care that they need.
    Dr. Jeffrey Brenner, one of the main proponents of hot-spotting, was inspired by the Compstat crime-tracking system that Commissioner William Bratton first implemented in New York and that contributed to the dramatic drop in violent crime rates there and in other cities that have adopted the system. Compstat micro-maps crime data and allows police to shift patrols to various hot spots that flare up. When Dr. Brenner applied the same mapping technique to health care costs in Camden, NJ he found that a few buildings in Camden – a nursing home and a public housing project – were costing taxpayers a fortune in health care costs. Zooming in further, Dr. Brenner found a small group of people who were costing the system a fortune – one patient had a $3.5 million annual health care tab. Thirty percent of Camden’s health care spending went to one percent of its residents.
    Dr. Brenner developed a system to deliver intensive preventive care to this handful of patients – by having doctors and social workers make sure that these patients showed up for follow-up appointments, that they took medications regularly, that they got prescriptions refilled, etc. And Dr. Brenner’s program has succeeded: its patients have cut their (massive) health care bills by fifty-six percent.
    Others profiled in the story – from Dr. Rushika Fernandopulle to the software company Verisk – have experienced similar successes by identifying the highest-cost patients and targeting them for specialized care.
    (The themes of Dr. Gawande’s article reminded me of a favorite Malcolm Gladwell article – “Million Dollar Murray” – about how we might actually lower welfare costs by spending more on welfare for certain particularly troubled recipients).
    Of course, as Dr. Gawande points out, special interests, like hospitals, are likely to lobby against pouring money into hot-spotting because hot-spotting reduces the demand for their services. So it is especially important, President Obama, that you use your bully pulpit to back hot-spotting.
  • Reduce Unnecessary Surgeries By Educating Patients About Whether The Guidelines Indicate Surgery For Their Conditions: A while back, Dr. Neil Baum had a great blog post over at KevinMD.com on seventeen ways patients can protect themselves from medical malpractice. One of the best pieces of advice that Dr. Baum had was to urge patients to consult the National Guidelines Clearinghouse to see what treatment the most recent research suggested for their conditions and to challenge their doctor if he recommended a surgery or procedure that was contrary to the Guidelines.
    Educating patients about Guidelines could help address some problems that have reached epidemic proportions. Since the time of Dr. Baum’s blog post, the American Medical Association has published a study about the use of implantable cardiac defibrillators showing that one-in-five defibrillator surgeries are performed outside of situations where the guidelines recommend surgery. The patients who receive defibrillators outside the circumstances where the guidelines recommend surgery are three times more likely to die.
    Of course, if you’re hospitalized three weeks after a heart attack and a doctor recommends defibrillator surgery to you, you’re likely to follow his advice if you don’t know that the evidence shows that you’re likely to be harmed by having surgery so soon after a heart attack.
    The only people benefiting from these unnecessary surgeries are the medical device manufacturers – who make tens of thousands of dollars from every defibrillator and spinal fusion surgery.
  • Reduce Smoking and Obesity: Yes, it’s really that simple. I’m always amused that the same Republicans who oppose an expanded role for government in health care are the same ones who have no problems with the corn subsidies that make corn so cheap that it’s converted in high-calorie high-fructose corn syrup that sweetens our sodas and contributes to obesity. If government’s the problem in health care why is welfare for farmers so good?
  • Implement Policies That Will Lead To More Income Equality: Income inequality actually has a profoundly negative effect on public health. Societies in the developed world with higher rates of inequality also have higher rates – sometimes ten times higher – of mental illness, infant mortality, obesity, teenage pregnancies, homicide, suicide and heart disease. Developed market democracies with high levels of equality – such as Japan, Sweden and Norway – are healthier.
    This relationship also holds within the United States. States with high levels of income equality, such as New Hampshire, Vermont and Utah, are healthier than Southern states and New York, where there are high levels of inequality. You can listen here to a great NPR podcast about “The Spirit Level,” the new book by Drs. Richard Wilkinson and Kate Pickett, about the effects of inequality on public health.
  • Loosen Professional Licensure Requirements: This is a libertarian idea that I’m surprised that Republicans don’t get behind. Part of the reason why health care is expensive is that doctors are scarce and therefore command high salaries. Doctors are scarce in part because of artificial barriers to entry – in the form of licensure requirements for the practice of medicine.
    The anti-competitive and protectionist policies of state medical boards make it difficult for highly-qualified foreign doctors to practice here. They mean that you can’t get a botox injection at a day spa and have to go to a dermatologist instead. And that your dental hygienist can’t clean teeth outside of a dentist’s office where she is supervised.
    Let’s see what medical procedures could be performed just as well (and more cheaply) by paraprofessionals and give them the freedom to compete with doctors.
  • Shift Status Competition Among Doctors From Dollars To Prestige: Regular readers of this blog are very familiar with Dr. Atul Gawande’s investigation of why Medicare costs in McAllen, TX are double what they are in the nearly demographically identical city of El Paso, TX. Medicare costs in McAllen, TX are nearly the highest in the country.
    Dr. Gawande’s explanation was simple: an entrepreneurial ethos of making as much money as possible had replaced an ethos of professionalism among many of McAllen’s doctors. Meanwhile, health care costs are low and the quality-of-care is excellent in academic communities like Hanover, NH (Dartmouth Medical) and Rochester, MN (where the Mayo Clinic is based).
    My guess is that doctors in those tiny academic communities don’t compete for dollars; my guess is that status competition among doctors there is primarily based on who’s published what article most recently in which prestigious journal. We need to find a way to get doctors to compete among each not for big bucks, but for prestige and professional esteem.
  • Spend More On Pure Science:The Golden Age of Pharma is over and pharma companies are no longer willing to invest the money in the fundamental science that will lead to the new wonder drugs and therapies of tomorrow. We need more programs like this new NIH program focused on getting basic R&D of new drugs done and then handing the baton off to pharma companies to bring the drugs to development.

So there you have it, seven ideas for lowering the cost of health care without doing so at the expense of the victims of medical malpractice.

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New Report Shows Unexplained Doubling Of Serious Dog Bite Injuries Over Fifteen Year Period

dog bites.jpgAs reported by The New York Times, a new Department of Health and Human Services report reveals that the number of dog bites requiring hospitalization nearly doubled over a fifteen year period, increasing from 5,100 dog bite victims in 1993 to 9,500 in 2008.
Experts are baffled by the dramatic spike. The increase can’t be explained by population growth because the increase in serious dog bites vastly outstripped population growth. Nor can the increase in dog bites be explained by an increase in dog ownership since dog ownership increased only slightly during the relevant period.
With emergency room visits for dog bites costing an average of $18,200, it is not surprising that dog bites account for one-quarter of homeowner’s insurance claims.

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Blog Roundup

  • The Oregon Attorney General is suing Johnson & Johnson for a secret recall of Motrin that left some bottles of defective product on the shelves. (Hat tip Consumerist). Instead of instructing retailers to pull the bottles from the shelves, hired contractors to go undercover, armed with credit cards that would bill J&J, and buy up all of the defective bottles that they could find. At the close of this secret recall operation, J&J execs sent around emails proclaiming the double-secret probation recall was a “great success” and a “win.”
  • As Tyler Cowen reports, the odds of dying in a horse accident in New York City in 1900 were 1 in 19,000. The odds of dying in a car accident today in New York City are 1 in 26,000. Of course, as law prof Eugene Volokh pointed out in this long-ago post, those numbers aren’t the only consideration. In the late nineteenth century, horses daily deposited an estimated 2.5 million pounds of manure on New York City’s streets.
  • AbnormalUse reports on what is believed to be the first ever wrongful death lawsuit that a chewing tobacco company has settled. As AbnormalUse explains, the unique facts of this case might mean that this is the last chewing tobacco settlement that we are likely to see for a long time.
  • Eric Turkewitz on what AVVO ratings might not tell you about your lawyer – namely that he is a registered sex offender and was once disbarred.
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Dutch Study Finds That Use Of Checklists Could Reduce Medical Malpractice Lawsuits By One-Third

checklist.jpgIf there’s one theme that this blog has hammered away at relentlessly, it’s the importance of checklists in improving patient safety. In a massive World Health Organization study, checklists were shown to reduce surgical deaths by forty-seven percent and major complications by thirty-six percent. Yet only one-quarter of American hospitals are using checklists.
Now comes a Dutch study, published in the Annals of Surgery, that reviews the errors committed by doctors in 294 successful Dutch medical malpractice lawsuits. The study found that in twenty-nine percent of the medical malpractice lawsuits, the error that the doctors committed would have been listed on the relevant checklist. Thus, had all the Dutch doctors adhered to the relevant checklist, there would have been nearly one-third fewer medical malpractice cases.
The stuff of the typical surgical checklist is not rocket science. A typical checklist prompts doctors to make sure the operating schedule is correct, that all the necessary equipment is at hand and that the surgical area is marked, among other things.
Reacting to the study, Boston-based surgeon Atul Gawande, one of the architects of the WHO pilot project, had strong words for surgeons who do not follow checklists: “This kind of evidence indicates that surgeons who do not use one of these checklists are endangering patients.”

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New Database Allows Massachusetts Patients To Review Drug Company Payments To Their Doctors

Massachusetts Database.jpgAs reported by Liz Kowalczyk of the Boston Globe, Massachusetts has become the first state in the nation to post online all payments that drug and medical device companies make to the state’s health care providers. You can use the database for yourself by clicking here.
For years, Minnesota has published similar information regarding its health care providers, but its database is nowhere near as comprehensive or user-friendly as the new Massachusetts database.
In most of the country, obtaining information about drug company payments to doctors is tremendously difficult. As noted in a previous blog post, Sen. Chuck Grassley had to use some Congressional muscle to get the nation’s largest medical device manufacturer – Medtronic – to reveal the payments that it makes to doctors. In addition, as underscored by the Wall Street Journal’s investigative series “Secrets of the System,” connecting drug company payments to doctors to the types of treatment they prescribe for their patients, is made very difficult by an old federal court order that exempts Medicare from having to provide such information pursuant to Freedom of Information Act requests.
The new Massachusetts database is a good day for transparency and for more open doctor-patient dialogues.

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Boston Personal Injury News Roundup

  • You may recall last April’s recall of Simplicity cribs, which we previously blogged about. Now, in the form of a Boston Herald story, comes news that the death of a Massachusetts infant from Attleboro was a “key factor” that prompted the Consumer Product Safety Commission to recall full-sized Simplicity cribs because of the risks they posed of suffocation and strangulation.
    CPSC spokesman Scott Wolfson said, “In the full history of Simplicity cribs and bassinets, there were more than a dozen deaths, including the tragic case in North Attleboro. Simplicity cribs are one of the deadliest products that we’ve dealt with in recent years.”
  • Five Massachusetts auto insurance companies are now offering optional pet injury coverage that will pay veterinarian’s bills for your pets if they are injured in a car crash.
  • If you went to Fenway Park at all last year, they were a familiar sight: scantily clad young women in bright-colored wigs who were attempting to sign up Red Sox fans for a bone marrow registry. Now comes news that UMass Medical Center was behind the program and was spending $50,000 a week on the models. For every volunteer who signed up, UMass Medical Center would bill insurance companies for $4,300, when others in the industry perform the same test for approximately $100. See the WHDH-TV and Boston Herald stories here and here.
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How Many Surgeons Does It Take To Count Your Vertebrae?

counting_blocks.gifOver the past four months, orthopedic surgeons at Beth Israel Deaconess Medical Center have committed the same surgical error three different times – by operating on the wrong vertebra of patients undergoing back surgery.
According to recent news stories about the errors, two of the “wrong site” surgical errors were uncovered only after patients complaining of ongoing back pain underwent post-operative x-rays. One surgeon committed the same “wrong level” error twice between September and December of 2010.
After the third error occurred, the Boston hospital implemented new procedures to avoid further repetition of the error. The new procedures include following a checklist developed by New England Baptist Hospital to help surgeons mark the correct vertebrae during surgery. We’ve blogged about the importance of such checklists and American hospitals’ reluctance to adopt them here, here and here.
Thankfully, none of the patients seem to have suffered any permanent harm as a result of the medical mistakes and at least one patient’s back pain seems to have spontaneously resolved even after the wrong vertebra was operated on.
Dr. Kenneth Sands, senior vice president of health care quality for Beth Israel Deaconess, said that the spate of back surgery errors, “…is really strange and we really don’t have an answer as to why these happened” in a cluster.
In at least one of the cases, however, it appears that the presiding surgeon and a surgical fellow who was assisting him followed different systems for numbering the vertebrae and, consequently, a miscommunication occurred about what vertebra was to be operated on.
The answer to the age-old question, “How many surgeons does it take to count your vertebrae?” appears to be, “More than two, at least if they’re using different numbering systems.”
Let’s hope the new checklists at Beth Israel Deaconess get their surgeons on the same page.

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Disability Discrimination Case Brought Against Kohl’s

A lawsuit filed in federal court in Portland, Maine alleges that Kohl’s Department Stores unlawfully discriminated against an employee based on her disability. The Equal Employment Opportunity Commission (EEOC) filed suit against the Wisconsin-based national retail store chain on behalf of Pamela Manning, who suffers from Type 1 diabetes. Manning worked at Kohl’s Westbrook, Maine store location. Because of her condition, she requires regular insulin injections. Beginning in January 2010, her complaint alleges, Kohl’s switched her full-time work schedule from a consistent daily schedule to an irregular one. This interfered with her daily routine of medical care. She presented her employer with a note from her doctor requesting that she have a regular work schedule, but Kohl’s refused to change it. She eventually developed health complications due to her inability to routinely administer her medications, and she had to quit her job with Kohl’s.

The EEOC filed suit in August 2011, alleging violations of the Americans With Disabilities Act of 1990 (ADA). It first attempted to settle the matter between Manning and Kohl’s through a conciliation process, which was unsuccessful. The lawsuit seeks monetary compensation for Manning and a revision of Kohl’s policies relating to disability discrimination. The EEOC’s Boston office is handling the litigation. They argue that it would have cost Kohl’s nothing to maintain a set schedule for Manning, but the cost of failing to do so was potentially catastrophic for Manning.

Kohl’s filed a response on October 24 denying liability and disability discrimination. According to a report in the American Journal, Kohl’s acknowledged changing Manning’s schedule in January 2010 but denied allegations regarding its knowledge of Manning’s diabetes. Kohl’s also admitted to receiving the note from Manning’s doctor but denies refusing to accommodate Manning’s needs. It claims that it makes “good faith efforts” to accommodate its employees’ scheduling needs. The Journal article does not mention how Kohl’s reconciles these seemingly contradictory claims.

The EEOC is a federal agency within the U.S. Department of Labor. Its purpose is to investigate allegations of employment discrimination and enforce federal anti-discrimination laws like the ADA and the Civil Rights Act of 1964. When an employee makes a complaint, the EEOC will investigate and make a finding or recommendation as to whether it believes unlawful discrimination occurred. Occasionally, it will file a lawsuit directly on behalf of an employee. More often, it will issue a “right to sue” letter that gives the employee a window of time to file a court claim with the help of an employment discrimination lawyer.

The ADA prohibits disability discrimination by employers, which can include an employer failing to make reasonable accommodations for an employee’s needs. By allegedly failing to adjust Manning’s schedule to allow for her particular medical needs, the lawsuit is claiming that Kohl’s discriminated against Manning and therefore violated the ADA.

The Boston employment discrimination attorneys at The Law Office of Alan H. Crede, P.C. specialize in employment law and exclusively represent employees. If you are a victim of disability discrimination, please contact The Law Office of Alan H. Crede, P.C. through our website or at (617) 973-6434 to schedule a confidential consultation.

More Disability Discrimination Blog Posts by The Law Office of Alan H. Crede, P.C.:

Americans with Disabilities Act Violations Alleged in EEOC Lawsuit Against New Hampshire Company, Boston Employment Lawyer Blog (October 25, 2011)
ADA Amendments Act Provides Employees with Greater Protection, Boston Employment Lawyer Blog (December 15, 2009)
Handicap Discrimination Claim Succeeds Against Wal-Mart, Boston Employment Lawyer Blog (August 12, 2008)

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Disability Discrimination Case Brought Against Kohl’s

A lawsuit filed in federal court in Portland, Maine alleges that Kohl’s Department Stores unlawfully discriminated against an employee based on her disability. The Equal Employment Opportunity Commission (EEOC) filed suit against the Wisconsin-based national retail store chain on behalf of Pamela Manning, who suffers from Type 1 diabetes. Manning worked at Kohl’s Westbrook, Maine store location. Because of her condition, she requires regular insulin injections. Beginning in January 2010, her complaint alleges, Kohl’s switched her full-time work schedule from a consistent daily schedule to an irregular one. This interfered with her daily routine of medical care. She presented her employer with a note from her doctor requesting that she have a regular work schedule, but Kohl’s refused to change it. She eventually developed health complications due to her inability to routinely administer her medications, and she had to quit her job with Kohl’s.

The EEOC filed suit in August 2011, alleging violations of the Americans With Disabilities Act of 1990 (ADA). It first attempted to settle the matter between Manning and Kohl’s through a conciliation process, which was unsuccessful. The lawsuit seeks monetary compensation for Manning and a revision of Kohl’s policies relating to disability discrimination. The EEOC’s Boston office is handling the litigation. They argue that it would have cost Kohl’s nothing to maintain a set schedule for Manning, but the cost of failing to do so was potentially catastrophic for Manning.

Kohl’s filed a response on October 24 denying liability and disability discrimination. According to a report in the American Journal, Kohl’s acknowledged changing Manning’s schedule in January 2010 but denied allegations regarding its knowledge of Manning’s diabetes. Kohl’s also admitted to receiving the note from Manning’s doctor but denies refusing to accommodate Manning’s needs. It claims that it makes “good faith efforts” to accommodate its employees’ scheduling needs. The Journal article does not mention how Kohl’s reconciles these seemingly contradictory claims.

The EEOC is a federal agency within the U.S. Department of Labor. Its purpose is to investigate allegations of employment discrimination and enforce federal anti-discrimination laws like the ADA and the Civil Rights Act of 1964. When an employee makes a complaint, the EEOC will investigate and make a finding or recommendation as to whether it believes unlawful discrimination occurred. Occasionally, it will file a lawsuit directly on behalf of an employee. More often, it will issue a “right to sue” letter that gives the employee a window of time to file a court claim with the help of an employment discrimination lawyer.

The ADA prohibits disability discrimination by employers, which can include an employer failing to make reasonable accommodations for an employee’s needs. By allegedly failing to adjust Manning’s schedule to allow for her particular medical needs, the lawsuit is claiming that Kohl’s discriminated against Manning and therefore violated the ADA.

The Boston employment discrimination attorneys at The Law Office of Alan H. Crede, P.C, specialize in employment law and exclusively represent employees. If you are a victim of disability discrimination, please contact The Law Office of Alan H. Crede, P.C. through our website or at (617)973-6434 to schedule a confidential consultation.

More Disability Discrimination Blog Posts by The Law Office of Alan H. Crede, P.C.:

Americans with Disabilities Act Violations Alleged in EEOC Lawsuit Against New Hampshire Company, Boston Employment Lawyer Blog (October 25, 2011)
ADA Amendments Act Provides Employees with Greater Protection, Boston Employment Lawyer Blog (December 15, 2009)
Handicap Discrimination Claim Succeeds Against Wal-Mart, Boston Employment Lawyer Blog (August 12, 2008)

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