IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JOANNE C. KLOSIEWICZ, )

Individually and as Personal )

Representative of THE ESTATE OF )

THOMAS J. KLOSIEWICZ, SR., __)

THOMAS J. KLOSIEWICZ, JR., )

AMY WHARRY, and DENISE FAY, )
Plaintiffs, ) C.A. No. N17C-02-191 VLM

)

v. )

)

ROGER C. STEVENSON, M.D., and )
LIMESTONE MEDICAL AID UNIT )
LLC, )

Defendants. )

ORDER

Submitted: January 14, 2020
Decided: February 12, 2020

Upon Consideration of Plaintiffs’ Motion for New Trial,
GRANTED.

Randall E. Robbins, Esquire and Randall J. Teti, Esquire of Ashby & Geddes,
Wilmington, Delaware. Attorneys for Plaintiff.

Stephen J. Milewski, Esquire of White and Williams LLP, Wilmington, Delaware.
Attorney for the Defendant.

MEDINILLA, J.
AND NOW TO WIT, this 12" day of February, 2020, upon consideration of
the Plaintiffs’'Motion for New Trial, Defendants Roger Stevenson, M.D., and
Limestone Medical Aid Unit LLCs’ (“Defendants”) Response in Opposition,
Plaintiffs’ Reply, oral arguments heard January 14, 2020, and the record in this case,
IT IS HEREBY ORDERED that Plaintiffs’ Motion is GRANTED for the
following reasons:

5 On July 19, 2019, after a five-day trial in this medical negligence case,
a jury returned a verdict in favor of Defendants. In so doing, it found that Dr.
Stevenson met the standard of care in treating Plaintiff Tom Klosiewicz (“Plaintiff”
or “Mr. Klosiewicz”), who died of sepsis one day after he presented to the Limestone
Medical Aid Unit (“Limestone”) with an acute onset of symptoms that were
misdiagnosed as flu.

2. On August 2, 2019, Plaintiffs filed a timely Motion for New Trial,
arguing that Defendant elicited undisclosed inadmissible expert testimony and that
the verdict was manifestly against the evidence.” On August 16, 2019, Defendants
filed their Response in Opposition.’ On August 23, 2019, Plaintiffs filed their Reply.

On September 17, 2019, Defendants supplemented their Response. On December

 

! Plaintiffs are Joanne C. Klosiewicz, Individually and as Personal Representative of the Estate
of Thomas J. Klosiewicz, St., Thomas J. Klosiewicz, Jr., Amy Wharry, and Denise Fay.

2 Plaintiffs’ Motion for New Trial at § 2 [hereinafter “Pl.s’ Mot.”].

3 Defendant’s Answer to Plaintiffs’ Motion for New Trial at page 7 [hereinafter “Def. s’ Resp.”].

2
31, 2019, the Court sought clarification and heard oral arguments on January 14,
2020.

3. The bases for a new trial relate primarily to the testimony offered by
both Defendant Dr. Stevenson and the Defendant’s standard of care expert, Dr.
Coletti. The first claim is that Dr. Stevenson provided inadmissible expert opinion
on the issues of standard of care and causation. The second claim is that Dr. Coletti
exceeded the scope of the relevant timeframe for his expert opinion on the issue of
standard of care. Since the jury never reached the issue of causation, the Court
focuses on the testimony of Dr. Stevenson on standard of care and his role as either
a fact or expert witness.* His role has remained unclear throughout this case and
even through oral arguments.

4, Defendants named Dr. Stevenson in their expert disclosure under Rule
26, indicating that he would testify on behalf of Defendants on standard of care, and
limit the testimony to what he provided at deposition. Defendants subsequently
changed their minds and designated him a fact witness in their Motion in Limine to
limit Plaintiffs’ ability to challenge Dr. Stevenson’s credentials as an expert after
Plaintiffs learned of his failed board exams and his admission at deposition that he

was reluctant to take the exams because he did not believe he could pass them.

4 Because the Court finds in favor of Plaintiffs on the first claim, it does not need to reach a
decision with respect to the claims related to Dr. Coletti.

3

 
Plaintiffs then not only reserved the right to call him as an expert, they named him
in the Pre-trial Stipulation as a fact/expert witness, and reiterated their intent to call
him as a standard of care expert.

5. At trial, the parties also stipulated that the Plaintiff did not have a
spleen.® The Stipulation was introduced to ensure no liability would attach against
the doctor for not knowing that the patient did not have a spleen, and to help the jury
consider this fact on the issue of causation. This was consistent with Defendants’
theory in the Pre-trial Stipulation that “the reason for the outcome in this case was
because [Mr. Klosewicz] did not have a spleen.” Indeed, during opening statements,
Defense counsel argued that the doctor should not found liable where the absence of
the spleen caused Plaintiff's death.

6. Each side called their expert witnesses for both standard of care and
causation. Plaintiffs also called Dr. Stevenson in their case-in-chief. On cross-
examination, Defense counsel posed the following hypothetical question to his
client: “If you had known Doctor, that Mr. Klosiewicz didn’t have a spleen, would

you have done anything differently that day?” Without objection, Dr. Stevenson’s

 

5 See Plaintiffs’ Response to Motion in Limine to Preclude Dr. Stevenson’s Failed Board-
Certification Attempts at { 10.

6 The Stipulation read as follows 1. Nobody, including [Plaintiff] and [sic] his physicians, knew
that he did not have a spleen; 2. It was first discovered that [Plaintiff] did not have a spleen at the
time of his autopsy; 3. Although [Plaintiff's] autopsy states that his spleen appeared to have been
surgically removed, there is no evidence that this ever happened; 4. There is no claim that Dr.
Stevenson should have known that [Plaintiff] did not have a spleen. See Pl.s’ Mot., Exhibit C.

7 Def.s’ Resp., Exhibit D at page 4.
response was that he “would have sent him to the emergency room, knowing that
the spleen is a significant organ in the acute onset of illness.”8

7. On re-direct, Plaintiffs’ counsel asked a series of follow-up questions
regarding what the doctor would have done if he had known about the spleen. The
doctor reiterated that he would have sent the patient to the emergency room, and
when asked why, he added, “Because no spleen increases the dynamic of what’s
going on... you don’t have the benefit of the splenic response to infection ... . If]
knew he didn’t have a spleen, I would have probably signed him out with a
fever...with rule out sepsis and sent him to the hospital.”

8. After Dr. Stevenson testified, outside the presence of the jury,
Plaintiffs’ counsel moved to strike the doctor’s responses as speculative and not
relevant. Counsel asked for a curative instruction, arguing that the hypothetical
question regarding the spleen was not germane to the issue before the jury because
the parties agreed that Dr. Stevenson did not know at the time when he treated his
patient that the Plaintiff did not have a spleen. Plaintiffs’ counsel conceded that the
absence of the spleen was germane to the issue of causation, but challenged the line

of questioning that allowed this witness to use the Stipulation to speculate and testify

as to what he would have done differently.

 

8 Def.s’ Resp. at page 1.
® Trial Transcript — Partial Testimony of Dr. Roger Stevenson (July 16, 2019) at 70:1-8.
[hereinafter “Trial Tr. II’’].
9. Defense counsel opposed the request for a curative and argued that the
doctor’s opinion was not only relevant but that it went to the very core of the dispute
between the parties. And that “these are all expert opinions that have been disclosed,
[and] talked about in deposition,” and as a result are “germane to the lawsuit and
relevant... .”!° The Court accepted Defendants’ representations and overruled the
motion to strike and did not give a curative instruction. The jury returned a verdict
in favor of Defendants on the issue of standard of care.

Contention of Parties

10. Plaintiffs argue Defendants’ failure to disclose Dr. Stevenson’s new
standard of care opinion warrants a new trial.'' They argue the failure to know that
the Defendant doctor would opine regarding the significance of the spleen prevented
Plaintiffs from taking appropriate discovery, and prepare for the issues at trial in
violation of both Civil Rules 16 on timely disclosure of opinions, and 26(e) related
to supplemental discovery.

11. Defendants’ argument is two-fold: first, that disclosure was not
necessary because Dr. Stevenson did not testify as an expert, clarifying at oral
argument that when they represented “these are all expert opinions,” they did not

mean to include Dr. Stevenson. Alternatively, Defendants argue that even if he was

10 Trial Excerpt (July 16, 2019) at 5:6-14 [hereinafter “Trial Tr. HI”].
‘1 P}.s? Mot. at § 3.
an expert, Plaintiffs called him as their expert witness, and the line of questioning
was proper on cross-examination. In addition, Defendants argue that the motion to
strike, made only after the Plaintiffs failed to elicit a more favorable response from
the Defendant doctor, was untimely and therefore, waived.
Standard of Review
12. Under Superior Court Civil Rule 59(a), a new trial may be granted as
to all or part of the issues in an action.” The Court has broad discretion in

cee

considering a motion for new trial. However, such discretion “‘should be exercised
sparingly and cautiously,’ and . . . ‘should be invoked only in cases in which the
evidence preponderates heavily against the verdict.’”'? For this reason, the Court
will not upset a jury verdict unless it finds that: “‘a reasonable juror could not have

reached the result[;]’” “the jury disregarded applicable rules of law[;}” or “the jury’s

verdict is tainted by legal error committed by the Court during the trial.”"*

Discussion
13. Under Superior Court Civil Rule 26, a party may require an opposing
party to identify any and all experts expected to testify at trial, “to state the substance

of the facts and opinions” to which the party expects the experts to testify, and to

 

12 See DEL. SUPER. CT. Civ. R. 59.
3 Storey v. Camper, 401 A.2d 458, 460 (Del. 1979) (quoting Miller v. Pennsylvania R. Co., 161

F. Supp. 633, 640 (D.D.C 1958)).
\4 Mitchell y. Haldar, 2004 WL 1790121, at *3 (Del. Super. Ct. Mar. 20, 2008) (quoting Storey,

401 A.2d at 465)).
provide “a summary of the grounds” for each expected opinion.'5 It is not
uncommon for a plaintiff in a medical negligence action to call the defendant doctor
as a witness and question him as a fact or expert witness. Here, both sides dispute
whether Dr. Stevenson’s testimony implicates Rule 26.

14. Defendants argue today that Dr. Stevenson’s opinion was not expert
opinion. They argue that asking him what he would have done had he known his
patient did not have a spleen was simply “teeing up the causation” opinion that
would later be offered by their causation expert, and that doctor did not testify that
the lack of spleen caused the patient’s death. While this may be true, it is important
first to determine whether Dr. Stevenson was testifying as an expert or a fact witness.

15. Because it is undisputed that Dr. Stevenson did not properly diagnose
his patient when he decided to send Plaintiff home with a prescription for flu
medicine, Dr. Stevenson’s testimony included details about the examination he
performed for the purpose of identifying and diagnosing the illness from which his
patient suffered.'° “While an expert witness assists the jury to understand the facts,
a treating physician testifies as a fact witness ‘concerning his or her own medical

performance on a particular occasion and is not opining about the medical

 

'5 DEL. SUPER. CT. Civ. R. 26(b)(4)(i).

16 The Court’s recitation of the testimony of Dr. Stevenson is specifically only from his trial
testimony. See generally Trial Transcript — Partial Testimony of Dr. Roger Stevenson (July 15,
2019) [hereinafter “Trial Tr. I].
performance of another.’”!? “This necessarily involves testifying with regard to the
exercise of the treating physician’s specialized medical knowledge as applied to

2918

other facts of the case, namely the plaintiff's symptoms. “A treating physician is

a fact witness, and testifies to past facts based on personal knowledge.”!”

16. During Plaintiffs’ case-in-chief, Plaintiffs’ counsel elicited these facts
to demonstrate that the physician’s medical knowledge was lacking, and to prove
that Dr. Stevenson‘s conduct did not meet the standard of care. Dr. Stevenson
testified about his experience in the medical field from 1990 until the summer of
2016 when employed full-time at the Limestone Medical Aid Unit. He testified that
from 1974 until 1980 he worked at an emergency practice and applied the same
standard of care at the emergency department as he did at Limestone.”’ He testified
that he never taught in any medical school, had never lectured at any medical
conferences and had not been published in any medical journals.*! When asked if

he subscribed to any medical journals, he testified that he “had the New England

Journal of Medicine for a few years, but other than that, [he] just reviewed free

 

17 Gutierrez y. Vargas, 239 So. 3d 615, 622 (Fla. 2018) (quoting Fittipaldi USA, Inc. v.
Castroneves, 905 So.2d 182, 186 (Fla. Dist. Ct. App. 2005)).

18 Id

19 Id

20 Trial Tr. J at 15:4-14.

21 Td. at 16:14-22.
magazines... .”22. When asked if he had reviewed literature concerning the issues
in the case, he stated he had not.”

17. Dr. Stevenson testified about the signs and symptoms of bacteremia and
sepsis. He explained his understanding of the definition of bacteremia, and
discussed the signs and symptoms associated with this infection. When asked what
would be done when someone presented with signs and symptoms suspicious of
sepsis, Dr. Stevenson testified, “they would go to the emergency room” as the
standard of care.24 He further testified that, if untreated, sepsis could progress
rapidly and cause death.

18. Directed to his own deposition regarding the definition of tachycardia,
it was highlighted for the jury that he had misstated his understanding of tachycardia;
a rapid heart rate or pulse as one factor to consider as a sign of sepsis.”” When asked

if he went back to look at what the Plaintiff's heart rate was when he did not have

an elevated heart rate, the Defendant doctor testified that he did not “remember

looking into that specifically.””°

 

22 Trial Tr. I at 16:23-17:6.

3 Id, at 18:5-16.

4 Td, at 21:11-22.

25 At his deposition, the doctor testified that a heart rate of under 110 beats per minute was
normal, while tachycardia is defined as a heart rate over 100. See id. at 25:2-12. For Mr.
Klosiewicz’s age and health, the Defendant doctor testified that a normal rate was 70 to 90 beats
per minute. See id. at 25:15-18. Mr. Klosiewicz presented with a heartrate of 109.

26 Td. at 25:19-22.

10
19. The Defendant doctor was questioned about his familiarity with the
screening tool known as SIRS, and the four criteria used in that tool to identify
patients at risk of sepsis.*’ He testified he did not know there were any screening
tools when he was practicing.*® When asked if he considered these factors in
evaluating whether Mr. Klosiewicz was at risk for sepsis, Dr. Stevenson testified

9 and

that he “used them as a measure of the illness but not specifically for sepsis,
that he instead used his “clinical impression” to determine if a patient was at risk of
sepsis.°°

20. He explained further that flu and sepsis often present with similar or
overlapping symptoms. He was asked, “when a patient presents with the same...
signs and symptoms that could be the flu or could be sepsis . . . wasn’t it the standard
of care to rule out sepsis because if you are wrong, the patient will likely die?”*' Dr.

Stevenson responded that his evaluation was more “flu oriented because of the

patient’s history.”>? Asked if Mr. Klosiewicz’s history upon arrival at Limestone

 

27 Trial Tr. | at 31:15-23. The SIRS criteria were identified as: (1) whether patient had a fever of
over 100.4 or less than 96.8; (2) whether patient had a heart rate greater than 90 beats per minute;
(3) whether the patient had a respiratory rate of greater than 20 breaths per minute; and (4)
whether patient had an abnormally high or low white blood cell count.

28 Td. at 31:4-6.

29 Td. at 32:1-13.

30 Yd. at 32:14-18.

3! Jd. at 33:16-22.

32 Id. at 33:23-34:1.

11
was consistent with sepsis, the doctor testified that sepsis was included in his
“differential” diagnosis.

21. Presented with this differential diagnosis (sepsis) that the patient has
signs and symptoms consistent with a “life-threatening” condition, the doctor was
asked if standard of care required him to rule out the life-threatening condition.*
Dr. Stevenson maintained that it was the end of flu season “so the potential for flu
was still there.”*> Plaintiffs’ counsel continued:

Q: “Sure the potential for flu was still there but wasn’t the potential for

sepsis there because his history was also consistent with sepsis, you’ ve
testified to that correct?”*°

A: “Yes.”37

Q: “And isn’t the standard of care... that ifon your differential diagnosis,
a life threatening illness is on that list, you’ve got to rule that out?”%*

A: “Yes.739

Q: “You did not rule out that Mr. Klosiewicz had potential for sepsis,
correct?”

A: “[S]epsis was not high on my list at that particular time. It was in my
differential, but I didn’t consider the situation to be that dire... .”

 

33 Trial Tr. I at 34:9-35:4.
34 Td. at. 35:6-14.

35 Td. at 35:15-36:3.

36 Id. at 36:4-7.

37 Td. at 36:8.

38 Td. at 36:12-15.

39 Id. at 36:17.

12
Dr. Stevenson conceded that he should have considered the situation to be that
serious “in retrospect.”“° He later testified he believed he met the standard of care."!

22. Oncross-examination, the doctor was asked for the first time about the
Stipulation read to the jury, and the significance of the spleen. In considering
whether the testimony was expert, “the determination turns on the role played by the
witness: if the treating physician gives a medical opinion formed during the course
and scope of treatment in fulfillment of their obligation as a physician, then the
physician is a fact witness, albeit a highly qualified one.” Dr. Stevenson did so on
direct-examination.

23. “If, however, the treating physician gives an opinion formed based on
later review of medical records for the purpose of assisting a jury to evaluate the
facts in controversy, the physician acts as an expert witness, and should be
considered as such.”“? Dr. Stevenson did so on cross-examination.

24. Here, Plaintiffs’ entire case against the physician was that the Plaintiff
should have been sent to the emergency room because the onset of symptoms met

the criteria for sepsis. It is undisputed that the doctor failed to diagnose sepsis. It is

 

40 Trial Tr. I at 36:20-37:3.

41 Trial Tr. II at 18:4-8.

42 Gutierrez v. Vargas, 239 So. 3d 615, 624 (Fla. 2018).

43 Id. (citing Lion Plumbing Supply, Inc. v. Suarez, 844 So. 2d 768, 771 (Fla. Dist. Ct. App.
2003) (holding it is improper for a treating physician to “serve[ ] as a conduit to place specialist
testimony before the jury, or offer[ ] medical opinions based on specialist reports” when
testifying as a lay witness rather than an expert)).

13
also undisputed that he incorrectly diagnosed the flu. He testified that “in retrospect”
he should have assessed the situation as “more dire.”“* It is also undisputed that his
diagnosis delayed the emergency care that Mr. Klosiewicz untimely received the
next day.

25. The Defendants’ theory focused on causation and that the doctor’s
decision, even if he breached the standard of care, did not cause Plaintiffs death.
Defendants maintained, “the reason that Mr. Klosiewicz sustained injuries and died
was because he did not have a spleen... .”4° They presented expert testimony that
the lack of a spleen caused his death and that sending him to the emergency room
would not have made a difference. Yet, the jury never reached the issue of causation.
Instead, they returned a verdict that the doctor did not breach the standard of care
despite his testimony that the diagnosis of sepsis was “in his differential,” and he
failed to rule it out, instead sending the patient home. Thus, the expert opinion on
standard of care was critical.

26. Here, Defendants stated in their Rule 26 disclosures that Dr.
Stevenson’s testimony would be limited to the testimony offered at deposition.
Although it was represented that all opinions had been disclosed, there was no

mention of the significance of the spleen by Dr. Stevenson. Defendants concede that

 

“ Trial Tr. I at 36:20-37:3.
45 Def.s’ Resp., Exhibit D at page 14 at { 8.

14
they changed Dr. Stevenson’s designation as expert when it became strategically
beneficial to designate him a fact witness in an attempt to reduce the impeachment
evidence expected from Plaintiffs. That Plaintiffs decided to call him instead does
not change the requirement under Rule 26 that his testimony should have been
limited as disclosed. Regardless of which party called him, he gave an undisclosed
and inadmissible opinion that violated Rule 26.

27. As for the timeliness of the motion to strike, upon further review of
Plaintiffs’ motion to strike, it is noted that the request was made immediately after
Dr. Stevenson testified, outside the presence of the jury. “This Court has
consistently required that any objections be made contemporaneously. Failure to do
so waives any claim of error. The reasoning is simple: ‘A party must timely object
to improper statements made during closing argument in order to give the trial court

the opportunity to correct any error.’”*°

28. Here, the Court finds that it was a timely motion to the extent that the
Court had the opportunity to give a curative instruction. Even if Plaintiffs’ counsel
had made his objection immediately after the question was asked, the Court would

have ruled against them for the same reasons made after Dr. Stevenson testified fully.

 

46 Gen. Motors Corp. v. Grenier, 981 A.2d 531, 541 n. 27 (Del. 2009) (quoting Medical Center
of Delaware, Inc. v. Lougheed, 661 A.2d 1055,1060 (Del. 1995); citing Koutoufaris v. Dick, 604
A.2d 390, 400 (Del. 1992) (“[T]he failure of opposing counsel to make a contemporaneous
objection deprived the trial judge of the opportunity to deal with the problem when it arose. Such
inaction is deemed a waiver of any resulting error for appellate purposes.”); Delaware Electric
Coop., Inc. v. Duphily, 703 A.2d 1202, 1210 (Del. 1997)).

15
Rejecting the need to provide a curative instruction, it did so because it believed that
the expert’s opinion had been disclosed. It had not. The error was not harmless.

29. The Court disagrees that this was simply a hypothetical question asked
of an expert witness. As stated, the Stipulation was introduced to assist the jury to
make sure no liability was inferred against the doctor for not knowing that the patient
did not have a spleen, and allow them to consider this fact on the issue of causation.
A review of the record does not support Defendants’ argument that this hypothetical
questioning was appropriate to “tee up” this issue of causation where the questioning
did more.

30. When asked on cross-examination about his treatment of the patient,
Dr. Stevenson was able to use this fact—that the jury was specifically told he did
not know at the time of treatment—to reassess his expert opinion on standard of care.
“An expert witness testifies with the benefit of hindsight, whereas a treating
physician does not.’”*” With the benefit of the findings in the autopsy report, the
doctor offered new expert opinion that the spleen was “a significant organ in the
acute onset illness.’*® And then explained to the jury why this finding was important

to the determination that he would have met the standard of care and sent the patient

 

47 Gutierrez v. Vargas, 239 So. 3d 615, 622 (Fla. 2018) (citing Ryder Truck Rental, Inc. v. Perez,
715 So.2d 289, 290-91 (Fla. Dist. Ct. App. 1998) (“Treating physicians do not acquire their
‘expert knowledge for the purpose of litigation but rather simply in the course of attempting to
make [their] patient well.’”) (alteration in original) (quoting Frantz v. Golebiewski, 407 So.2d
283, 285 (Fla. Dist. Ct. App. 1981))).

48 Trial Tr. II at 62:19-63:1.

16
to the emergency room. To ask him the hypothetical question “what would you have
done had you known” was contrary to the circumstances of the case, and allowed
the Defendant doctor to use the stipulated fact on the issue of causation and convert
it to a mew and undisclosed opinion on standard of care.

31. Even accepting Defendants’ argument today that Dr. Stevenson did not
give expert testimony, at best, this line of questioning called for speculation of a fact
witness regarding the treatment of his patient. Plaintiffs’ counsel made such
argument during his motion to strike and the Court rejected the argument when
Defendants’ counsel represented that the question was fair as expert witness cross-
examination. Defendants cannot have it both ways and argue successfully at trial
that the expert testimony was permissible, and now argue on this motion for new
trial that the testimony was not expert at all.

32. Dr. Stevenson testified as an expert. “Parties must comply with the
discovery rules by identifying expert witnesses and disclosing the substance of their
expected opinions as a precondition to the admissibility of expert testimony at
trial.’“? Since the significance of the spleen in the context of standard of care
required a disclosed expert opinion, Dr. Stevenson rendered this opinion beyond the

scope of his disclosure. The Monday morning quarterbacking allowed Dr.

 

49 Barrow v. Abramowicz, 931 A.2d 424, 434 (Del. 2007) (citing Sammons v. Doctors for
Emergency Services, P.A., 913 A.2d 519, 530-33 (Del. 2006)).

17
Stevenson to use a stipulation intended for other purposes to speculate about what
he would have done had he known otherwise. The combination of the inadmissible
testimony and improper use of the stipulation took from the jury the very issue it
needed to decide on standard of care as reflected by the verdict. The representation
made at trial led to the wrong ruling and the Court should have provided a curative
instruction at the time, and precluded or limited the testimony of this hybrid
fact/expert witness.
Conclusion

A new trial is warranted under Superior Court Civil Rule 59(a) where the
evidence preponderates heavily against the jury verdict on the issue of standard of
care, which was tainted by legal error committed by this Court, primarily related to
the admissibility of Dr. Stevenson’s testimony and the scope to which he testified as
an expert witness in violation of Civil Rule 26.

IT IS SO ORDERED. o>

 
 
    

 

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fo Vivian 1% Medinilla

Judge

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