J-A15001-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHRISTY CARASSAI,                                IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

LOUISE T. ECHELMEIER, PERSONAL
REPRESENTATIVE OF THE ESTATE OF
THOMAS O. GEHRIS, DECEASED AND
RONALD H. FREDERICK, III,

APPEAL OF: LOUISE T. ECHELMEIER,
PERSONAL REPRESENTATIVE OF THE
ESTATE OF THOMAS O. GEHRIS,
DECEASED,

                          Appellant                   No. 2993 EDA 2014


              Appeal from the Judgment Entered October 7, 2014
             In the Court of Common Pleas of Montgomery County
                       Civil Division at No(s): 07-04081


BEFORE: BOWES, MUNDY, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J:                           FILED OCTOBER 16, 2015

       This is an appeal from judgment entered on a $1,000,000 jury verdict

in favor of Christy Carassai for personal injuries she sustained in a February

18, 2005 automobile accident involving Thomas O. Gehris. Mr. Gehris died

during the course of litigation, and Louise Echelmeier, his personal

representative, was substituted as a party defendant in the action.       Ms.

Echelmeier contends that the trial court abused its discretion in denying her




*
    Former Justice specially assigned to the Superior Court.
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motion for post-trial relief requesting a new trial based on an excessive

verdict. After thorough review, we affirm.

     The trial court ably summarized the facts as developed at trial:

     On February 18, 2005, nineteen (19) year-old [DOB: March 23,
     1985] Christy Carassai was a passenger in a car driven by her
     boyfriend on her way to go snowboarding at Blue Mountain in
     the Lehigh Valley. She was a student at Pennco Tech in Bristol
     working on her automotive technology associate’s degree. Her
     ambition was to work on cars as an auto mechanic with the
     possibility of moving out to Colorado to work and go
     snowboarding. She had been snowboarding, up to eight (8)
     hours a day, since she was twelve (12) years old. She also liked
     to run, ride bike and jet ski. She never had problems with her
     knees until February 18, 2005. On that day, as the pair came up
     to an intersection in the far right-hand lane, a car driven by Mr.
     Thomas O. Gehris turned in front of their car, resulting in a
     collision.  Appellee flew forward inside the car, her knees
     breaking the dashboard and her head cracking the windshield.
     An ambulance arrived and medical personnel examined Appellee.
     She declined their offer to take her to the local hospital, opting
     instead to go to the Emergency Room at Paoli Hospital near her
     home later the same day. After obtaining X-rays of both her
     knees and CAT scan of her head, the ER doctor advised Appellee
     to ice her knees and rest.

     Appellee saw her family practice doctor a few days after the
     accident complaining of pain in both knees. Her family doctor
     recommended taking Naprosyn as well as continuing to ice and
     rest. When her knee pain had not subsided, she returned to her
     family doctor and received a referral to see Dr. Kevin B.
     Freedman for an orthopedic consultation.          Dr. Freedman
     prescribed physical therapy, which Appellee received. Appellee
     was discharged after six (6) sessions of physical therapy in the
     fall of 2005 and given exercises to do at home. At that time she
     may have been feeling better, but she also was not doing much
     physical activity for fear of aggravating her knee pain.
     Snowboarding, running, climbing stairs, bending, lunging,
     squatting or anything strenuous resulted in knee pain.




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     Appellee returned to her family doctor seeking relief. Appellee
     saw Dr. Richard Zamarin, another orthopedic specialist who
     recommended diagnostic arthroscopic surgery.          Dr. Zamarin
     performed the arthroscopic surgery on Appellee’s left knee on
     May 29, 2007, at Paoli Hospital’s Surgery Center. This surgery
     left Appellee in significant pain and unable to walk without
     crutches for two to three weeks. Dr. Zamarin did not note any
     significant findings that would explain Appellee’s symptoms. Dr.
     Zamarin found the articular surfaces to be pristine and his
     postoperative diagnosis was “chronic patellofemoral pain
     syndrome.” Dr. Zamarin referred Appellee for more physical
     therapy and suggested injections in her knee for relief. Appellee
     completed the prescribed physical therapy at NovaCare and
     continued to do physical therapy at home. She experimented
     with different knee braces to find one that helped while she
     worked out. Appellee continued to do the home exercises, take
     Advil and ice her knees, but she still suffered from knee pain.

     When Appellee’s knee pain gradually worsened, she sought
     another orthopedic opinion and possible treatment. Appellee
     presented to Dr. Steven J. Valentino for an examination. Dr.
     Valentino prescribed an MRI for both knees. Appellee presented
     for the MRIs on July 14, 2010. According to Dr. Valentino, the
     MRIs confirmed his diagnosis of chondromalacia patella and
     tendinopathy in both knees, with left knee pain greater than the
     right. Dr. Valentino discussed treatment options with Appellee,
     including more physical therapy, injections, knee braces and,
     eventually, another surgical arthroscopy, all of which would help
     temporarily alleviate her pain but would not cure the underlying
     condition.    Dr. Valentino referred Appellee to Dr. Timothy
     Amann, a sports medicine surgeon, for another opinion. Dr.
     Amann      agreed    with  Dr.   Valentino’s    assessment   and
     recommended injection therapy to temporarily relieve Appellee’s
     pain and potential arthroscopic surgery. No doctor offered a
     long-term cure for Appellee’s knee pain. Finally, Appellee saw a
     doctor at the Rothman Institute who also prescribed physical
     therapy.     Appellee complied with the doctor’s orders and
     received two (2) to three (3) months of additional physical
     therapy in 2013.

          ....




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     Christy Carassai and her mother, Mary Arena, testified about
     Christy’s medical care, her constant knee pain and how the
     injury has limited her activities. Appellee testified that she had
     graduated second in her class from Pennco Tech with a degree in
     automotive technology in 2005 but did not apply for mechanic
     positions because of what that job would entail and the resulting
     pain in her knees. She described her home physical therapy
     routine that takes approximately sixty (60) to ninety (90)
     minutes, four (4) to six (6) days per week. Appellee showed the
     jury the various knee braces she has worn since the accident
     that have provided some relief. Appellee also described in detail
     for the jury all of the activities she can no longer participate in
     the way she used to, including her passion of snowboarding as
     well as riding jet skis, biking and running. She explained how
     just sitting at a desk at her current job would result in knee pain
     and that the pain would often wake her up at night. . .

     Appellee’s mother confirmed the affect her daughter’s injury and
     resulting knee pain was having on Appellee’s life. She described
     it as watching her daughter diminish before her eyes.

     Appellee also presented the testimony of Dr. Steven Valentino by
     way of videotape deposition after the court instructed the jury on
     this evidence.     Dr. Valentino explained all of the medical
     treatment Appellee had received, including a follow up visit to his
     office on January 29, 2014. He testified that the clinical findings
     of Drs. Melli, Freedman, Zamarin and Amann were all consistent
     with his diagnosis because they all found problems with
     Appellee’s cartilage underneath the kneecap. He also testified
     that Dr. Amman saw positive findings on the MRI as did he. Dr.
     Valentino explained for the jury what he considered the
     difference between Dr. Zamarin’s arthroscopy findings and the
     MRI findings. He testified that while arthroscopy may be the
     “gold standard” for detecting a medial meniscle tear or a
     ligament tear, the MRI is a better tool to detect damage to the
     cartilage under the kneecap. Dr. Valentino opined that Appellee
     has suffered permanent injury and her prognosis is guarded. . .

     Finally, Appellant presented the videotaped deposition testimony
     of Dr. Barry Snyder after the court’s same jury instruction on
     deposition testimony. Dr. Snyder testified that he examined
     Appellee on November 25, 2008. Other than her knees cracking,
     Dr. Snyder testified that he found nothing abnormal and no

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      impairment as a result of the 2005 motor vehicle accident. Dr.
      Snyder also testified that he reviewed all of the medical records
      submitted from Drs. Melli, Freedman, Zamarin, Valentino and
      Amann and found no objective evidence of impairment and no
      support for Appellee’s complaints of knee pain.

Trial Court Opinion, 12/8/14, at 2-5 (citations to notes of testimony and

footnotes omitted).

      Ms. Carassai originally commenced this action against both Mr. Gehris,

the driver of the other vehicle, and Ronald H. Frederick, III, the driver of the

vehicle in which she was a passenger.      On February 8, 2012, the parties

stipulated to the dismissal of all claims and cross-claims as to Mr. Frederick

and the case proceeded solely against Mr. Gehris’ personal representative.

At the conclusion of a jury trial, the jury returned a $1 million verdict in

favor of Ms. Carassai.

      Ms. Echelmeier filed a motion for post-trial relief in which she

contended that a new trial was warranted because the verdict was not

supported by the evidence. She argued that the verdict was excessive and

bore no rational relationship to the nature or extent of Ms. Carassai’s

injuries.   In the alternative, Ms. Echelmeier sought a remittitur.         Ms.

Carassai filed a motion for delay damages. The court denied the motion for

post-trial relief, denied a remittitur, awarded delay damages of $142,630.65,

and molded the verdict to reflect the addition of those damages.




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       Ms. Echelmeier appealed to this Court on August 27, 2014.1 The trial

court directed Ms. Echelmeier to file a Pa.R.A.P. 1925(b) concise statement

of errors complained of on appeal, she complied with that directive, and the

trial court issued its Rule 1925(a) opinion on December 8, 2014.

       Ms. Echelmeier presents two issues for our review:

       1. Whether the trial court abused its discretion in permitting to
          stand a $1,000,000 damages award when the plaintiff
          sustained injury only to her knees, received only sporadic and
          limited medical treatment, did not lose the ability to work,
          had no economic damages, and demanded less than $50,000
          in her Complaint?

       2. Whether the trial court’s calculation of Rule 238 damages is in
          error where it is based on an excessive verdict for which a
          new trial should be granted?

Appellant’s brief at 3.2



____________________________________________


1
 Appellant’s appeal from the August 15, 2014 order denying post-trial relief,
a remittitur, awarding delay damages, and molding the verdict to
$1,142,630.65, was premature as no judgment had been entered. She
subsequently filed a praecipe to enter judgment on that order on October 7,
2014, which remedied that defect.
2
  In her Rule 1925(b) statement, Ms. Echelmeier alleged that the trial court
erred in not granting her motion for new trial “as the Jury’s award of
$1,000,000.00 was against the weight of the evidence offered and accepted
at trial.” She also complained that the trial court erred in failing to grant a
remittitur based on the “grossly exorbitant” verdict. On appeal, she does
not challenge the trial court’s refusal to order a remittitur; she asks only that
we reverse and remand for a new trial based on the allegedly excessive
verdict. Appellant’s brief at 26.




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      Ms. Echelmeier argues that the amount of the verdict was excessive

and the trial court erred in denying her motion for new trial on that ground.

As the trial court correctly noted, this Court will reverse a decision denying a

motion for a new trial only if the trial court abused its discretion. Gbur v.

Golio, 932 A.2d 203, 206-207 (Pa.Super. 2007). In undertaking our review,

we recognize that the trial court has had the opportunity to observe the

demeanor of the witnesses. Botek v. Mine Safety Appliance Corp., 611

A.2d 1174 (Pa. 1992).     We will sustain its decision regarding a new trial

unless there is a clear or gross abuse of discretion or error of law, which

controlled the verdict or outcome of the case.

      In Helpin v. Trustees of the University of Pennsylvania, 969 A.2d

601, 615 n.9 (Pa.Super. 2009), this Court held that “Where an appellant’s

claim arises from a challenge to the jury’s determination of damages,

[appellate] review is highly circumspect.” We explained,

             The duty of assessing damages is within the province of
      the jury and should not be interfered with by the court, unless it
      clearly appears that the amount awarded resulted from caprice,
      prejudice, partiality, corruption or some other improper
      influence. In reviewing the award of damages, the appellate
      courts should give deference to the decisions of the trier of fact
      who is usually in a superior position to appraise and weigh the
      evidence.

Id. When reviewing such an order, we begin with the premise that “large

verdicts are not necessarily excessive verdicts.”      Gillingham v. Consol

Energy, Inc., 51 A.3d 841, 857 (Pa.Super. 2010) (quoting Hyrcza v. West



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Penn Allegheny Health System, Inc., 978 A.2d 961, 979 (Pa.Super.

2009)).

      Ms. Echelmeier alleges that the trial court abused its discretion when it

failed to apply the six factors identified by the Supreme Court in Haines v.

Raven Arms, 640 A.2d 367, 370 (Pa. 1994), in determining whether the

jury’s verdict was excessive. She sets forth those factors: (1) the severity of

the injury; (2) whether the plaintiff's injury is manifested by objective

physical evidence or whether it is only revealed by the subjective testimony

of the plaintiff; (3) whether the injury will affect the plaintiff permanently;

(4) whether the plaintiff can continue with his or her employment; (5) the

size of the plaintiff's out-of-pocket expenses; and (6) the amount plaintiff

demanded in the original complaint. Appellant’s brief at 20.

      Ms. Echelmeier contends that application of the factors leads to the

conclusion that the verdict was excessive.     First, she maintains that the

injury, which was limited to Ms. Carrassai’s knees, was not severe.         In

support thereof, she points to the fact that treatment initially consisted of

three doctor visits and six physical therapy sessions.           Although an

arthroscopy was subsequently performed, Ms. Echelmeier emphasizes that

the surgery was diagnostic and performed only on the left knee. Thereafter,

Ms. Carassai underwent brief courses of physical therapy and used over-the-

counter medications.




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         Additionally, Ms. Echelmeier alleges that there was no objective

evidence of injury.      She argues that the MRI that showed chondromalacia

and tendinopathy was interpreted as reflecting only a mild change in

condition from the earlier arthroscopy that showed a pristine left knee.

Although she concedes that Ms. Carassai’s medical expert concluded that her

injury    is    permanent,   Ms.   Echelmeier   complains   that   there   was   no

explanation for that conclusion.

         Ms. Echelmeier next asserts that the trial court had no basis to

conclude that Ms. Carassai could not work as an auto mechanic due to her

injuries.      Moreover, she charges that the trial court totally overlooked the

fact that Ms. Carassai did not make a claim for past or future medical bills or

other economic loss.         Finally, she faults the court for not including any

discussion of the fact that Ms. Carassai initially only demanded damages

“not in excess of $50,000.”

         Ms. Carassai counters that the formulaic six-factor test was not

adopted in Haines, and furthermore, the Supreme Court did not state

therein that trial courts are required to apply such a test. The Haines Court

merely noted that the en banc trial court therein applied the various factors,

although it found many irrelevant, because the Superior Court recommended

that it do so. Nonetheless, Ms. Carassai maintains that consideration of the

six factors supports the trial court’s finding that the verdict was not

excessive and its denial of a new trial on that basis.

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     Ms. Carassai points to Dr. Valentino’s unequivocal testimony that the

injuries to both of her knees are permanent and progressive.             The

chondromalacia and tendinopathy were confirmed by MRI and patellofemoral

compression testing.   She pursued training as an auto mechanic, but she

testified that she cannot perform that work.    She is limited to sedentary

work, and even then, she experiences constant pain for which she takes

medication.

     Ms. Carassai explains that she made no claim for medical bills because

her automobile–related claim was statutorily limited to damages for pain and

suffering under the Pa. Motor Vehicle Financial Responsibility Law (“MVFRL”),

75 Pa.C.S. § 1701 et seq. Furthermore, she maintains that, as a matter of

law, special damages are not relevant to the issue of pain and suffering.

Martin v. Soblotney, 466 A.2d 1022 (Pa. 1983) (finding no logical

correlation between cost of medical services and pain and suffering endured

under the under the No-Fault Act, the predecessor to the MVFRL).         Ms.

Carassai originally filed the case in arbitration, which has a jurisdictional

limit of $50,000, because at the time she did not have an expert opinion

that the injury was permanent and would worsen over time.

     We agree with Ms. Carassai that the term “Haines factors” coined by

Ms. Echelmeier is a misnomer. The Haines Court did not adopt the factors

upon which Ms. Echelmeier relies, but merely noted that this Court

previously had identified factors that could be considered in determining

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whether a verdict was excessive. In Kemp v. Philadelphia Transp. Co.,

361 A.2d 362, 364 (Pa.Super. 1976), this Court collected “the various

factors   appellate   courts   have   considered   and   which    may   apply   in

determining whether a particular verdict was excessive.”                (emphasis

supplied).     There is no mandate that the factors be weighed.             When

considering these factors in subsequent cases, this Court has acknowledged

that often some of the factors have no relevance to the case.                See

Whitaker v. Frankford Hosp. of City of Philadelphia, 984 A.2d 512

(Pa.Super. 2009); see also Gbur, supra at 212. The issue before us on

appeal is whether the trial court abused its discretion in denying the motion

for new trial premised on an allegedly excessive verdict. Preliminarily, we

find that the fact that the trial court did not cite the Kemp factors and

address them seriatim is not error or an abuse of discretion. Moreover, the

court based its decision on many of those same considerations, to the extent

they were relevant.

      The issue before the trial court in ruling on the motion for new trial

was whether the verdict was so excessive as to shock the conscience and

suggest that the jury was influenced by “partiality, prejudice, mistake, or

corruption.”    The court concluded that it was not.     The court preliminarily

observed that liability was virtually conceded: the parties stipulated that Mr.

Gehris was negligent and Ms. Echelmeier did not challenge causation at trial

or on appeal.    Trial Court Opinion, 12/18/14, at 8, 14.        Furthermore, Ms.

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Echelmeier did not identify any error in the admission of evidence, in the

court’s instructions to the jury, or in the conduct of trial generally that would

tend to suggest that “partiality, prejudice, mistake, or corruption” may have

influenced the verdict.

      The trial court thoroughly summarized the evidence and determined

that it supported the jury’s verdict. It found objective evidence of injury in

Dr. Steven Valentino’s testimony that the MRI yielded positive findings and

that the clinical findings of all of Ms. Carassai’s physicians were consistent

with his diagnosis of damage to the cartilage underneath both kneecaps.

The physician also explained that the arthroscopy did not indicate damage

because it was not the best tool for detecting damage to the cartilage under

the kneecap.       The serious nature of the injury was manifested in Dr.

Valentino’s opinion that Ms. Carassai’s injury was permanent, would likely

worsen, and that Ms. Carassai would have to “change her lifestyle” to

minimize its impact.        Deposition, 3/11/14, at 31-32.        Although Ms.

Echelmeier’s medical expert, Dr. Barry Snyder, testified that he found no

objective evidence of impairment, the trial court noted that the jury

obviously chose to believe Dr. Valentino’s opinion to the contrary, which was

its prerogative.    As the fact finder, “[a] jury is always free to believe all,

part, some, or none of the evidence presented.” Kaufman v. Campos, 827

A.2d 1209, 1211 (Pa.Super. 2003).




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      The court pointed to considerable evidence of pain and suffering and

loss of enjoyment of life adduced by Ms. Carassai and her mother.         They

testified about the constant pain and the physical limitations the injury

placed on Ms. Carassai’s employment and favorite physical activities. Trial

Court Opinion, 12/18/14, at 6.    Despite obtaining a degree in automotive

technology, Ms. Carassai testified that she did not apply for jobs as a

mechanic because of the physical demands of such a position and that even

sitting at a desk results in knee pain.      Although she was a passionate

snowboarder, jet skier, runner, and biker before the accident, she could no

longer enjoy those activities due to her injury.   Ms. Carassai told the jury

about the sixty to ninety minute home physical therapy routine that she

performs four to six times per week.

      The trial court found that there was sufficient evidence in the record to

support the jury’s verdict. In reaching that conclusion, the court was fully

aware that Ms. Carassai initially filed the case in arbitration where the

jurisdictional limits were $50,000, as well as her explanation that she did not

have expert medical opinion that her injuries were permanent. It also noted

that pain is an issue of credibility “uniquely within the purview of the jury.”

Majczyk v. Oesch, 789 A.2d 717 (Pa.Super. 2001) (en banc). The court

found that the verdict, though “large,” was not against the weight of the

evidence nor “excessive” in light of the evidence presented.       Trial Court

Opinion, 12/18/14, at 16. The trial court, “[h]aving heard the testimony and

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observed     every    witness,”    found       that   “the   jury’s   decision   was   not

unreasonable, arbitrary, or capricious” and that it should stand. Id. at 14.

       Ms. Echelmeier suggests that the verdict was driven by partiality or

prejudice due to the jury’s dislike of defense expert, Dr. Snyder. Appellant’s

brief at 24-25.       She even speculates that the verdict may have been

intended to punish or send a message to Dr. Snyder. She argues that the

trial court virtually conceded at the argument on motions for post-trial relief

that the jury could have been unfairly influenced by its attitude towards the

defense expert.3 Appellant’s brief at 25.

       Ms. Carassai counters that nothing in the court’s comments indicated

that the jury’s award was a punitive response to the defense expert.                   We

agree. The trial court never suggested that the jury was unfairly influenced

by the expert’s demeanor. At the argument on post-trial motions, the court

____________________________________________


3
  Ms. Echelmeier’s contention is based upon remarks of the trial court at the
argument on post-trial motions. The transcript of that argument is not
contained in the certified record. The law of Pennsylvania is well settled that
matters which are not of record cannot be considered on appeal.
Commonwealth v. Bracalielly, 658 A.2d 755, 763 (Pa. 1995).
Furthermore, it is the appellant’s responsibility to ensure that the certified
record is complete. Pa.R.A.P. 1926, 1931(d); Bennyhoff v. Pappert, 790
A.2d 313 (Pa.Super. 2001). Ms. Echelmeier supplied the transcript in the
reproduced record. Since Ms. Carassai has not objected to inclusion of the
transcript in the reproduced record or challenged its accuracy, we may
consider it. See Comment to Pa.R.A.P. 1921 (citing Commonwealth v.
Brown, 52 A.3d 1139, 1145 n.4 (Pa. 2012) (Where the accuracy of a
pertinent document is undisputed, the Court can consider that document if it
is in the reproduced record)).



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merely shared its opinion that Dr. Snyder’s testimony was not believable.

N.T., 7/18/14, at 25. The court perceived the expert as disparaging of Ms.

Carassai’s counsel and unreasonable in his failure to respond to reasonable

questions on cross-examination.     The court explained that it watched the

jurors as Dr. Snyder testified and their body language indicated that they did

not find him credible. Noting that credibility was especially important in this

case, the court opined that the jury “had every right to credit the testimony

of the plaintiff, her mother, and Dr. Valentino, who unlike Dr. Snyder, came

across as a professional.”     Id. at 28.        The court merely offered its

impression of Dr. Snyder’s demeanor to explain why, in its opinion, the jury

did not credit the defense expert’s testimony.

      In sum, the trial court applied the proper legal standard and provided

ample support for its finding that the verdict was not excessive, shocking,

contrary to the weight of the evidence, or motivated by “caprice, prejudice,

partiality, corruption or some other improper influence.” Helpin, supra at

615 n.9. Thus, we find no abuse of discretion in the trial court’s denial of a

new trial on the record before us. Since our affirmance of the trial court’s

order denying a new trial leaves the jury’s verdict intact, the award of delay

damages calculated on that verdict is correct.

      Judgment affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2015




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