                 IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-605

                              Filed: 17 January 2017

Iredell County, No. 12 CVS 2025

WALTER CALVERT SMITH, Plaintiff,

              v.

STEWART POLSKY, M.D., CAROLINA UROLOGY PARTNERS, PLLC, and LAKE
NORMAN UROLOGY, PLLC, Defendants.


        Appeal by defendants from order entered 8 March 2016 by Judge Julia Lynn

Gullett in Iredell County Superior Court. Heard in the Court of Appeals 15 November

2016.


        Homesley, Gaines, Dudley & Clodfelter, LLP, by Edmund L. Gaines and
        Christina Clodfelter, for plaintiff-appellee.

        Parker Poe Adams & Bernstein LLP, by Chip Holmes and Bradley K. Overcash,
        for defendants-appellants.


        ZACHARY, Judge.


        Stewart Polsky, M.D., Carolina Urology Partners, PLLC, and Lake Norman

Urology, PLLC (defendants) appeal an order denying certain portions of their pretrial

motion in limine. For the reasons that follow, we dismiss defendants’ appeal as

interlocutory.
                                 SMITH V. POLSKY

                                 Opinion of the Court



                                 I. Background

      Plaintiff Walter Smith (Smith) became a paraplegic in 1975 when he suffered

a spinal cord injury in a motor vehicle accident. In 1995, Smith underwent the

implantation of an inflatable penile prosthesis, which malfunctioned and ceased

operating in 2008. Dr. Polsky became Smith’s urologist in 2005. On 25 August 2009,

Dr. Polsky performed penile prosthesis revision surgery on Smith, a procedure that

involved removing the original inflatable penile prosthetic device and replacing it

with a new one.

      Following the procedure, Smith experienced pain and swelling at the surgical

site, and he was eventually hospitalized on 19 September 2009. Dr. Polsky examined

Smith at the hospital, diagnosed him with a “possible scrotal infection,” and

prescribed three antibiotics.    The antibiotics Gentamicin, Vancomycin, and

Ceftriaxone were administered intravenously.        After being discharged from the

hospital on 23 September 2009, Smith was instructed to continue taking the three

antibiotics intravenously, and Advanced Home Care, Inc. (Advanced Home Care)

provided and administered the medications.          Smith received his last dose of

Gentamicin—which is known to cause bilateral vestibulopathy, a condition caused by

damage to one’s inner ears that results in imbalance and impaired vision—on 9

October 2009. Shortly thereafter, Smith was diagnosed with bilateral vestibulopathy.




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Smith had the infected, replacement penile prosthesis surgically removed

approximately three years later.

      In February 2011, Smith filed for Chapter 7 Bankruptcy. On 21 August 2012,

the trustee of Smith’s bankruptcy estate filed a complaint in Iredell County Superior

Court against Dr. Polsky, his medical practice, and Advanced Home Care. The

complaint alleged numerous theories of medical negligence arising out of the surgical

care as well as the prescription and monitoring of the post-surgery antibiotic therapy

that Smith received from August through October of 2009. Pertinent to this appeal,

the complaint alleged that once Smith was diagnosed with a scrotal (or superficial

wound) infection on 19 September 2009, Dr. Polsky was negligent in choosing to

prescribe antibiotic therapy instead of surgically removing the infected penile

prosthesis. All claims against Advanced Home Care were eventually settled and

dismissed, and a portion of the settlement proceeds were used to satisfy the claims of

Smith’s bankruptcy estate. As a result, Smith was substituted as plaintiff against

Dr. Polsky and his practice, the remaining defendants in the medical negligence

action.

      In May 2014, defendants filed a Motion for Summary Judgment, or in the

alternative, Motion for Partial Summary Judgment. However, before the trial court

ruled on defendants’ motion, the parties entered into a Voluntary Dismissal with

Prejudice and Stipulation (the Dismissal).         Pursuant to the Dismissal, Smith



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dismissed with prejudice the claims contained in Paragraph 41, subparagraphs (d)

through (k) of his complaint, which alleged the following theories of negligence:

              (d) Having decided to initiate antibiotic therapy on
             September 19, 2009, Defendant Dr. Polsky breached the
             standard of care by choosing the antibiotic gentamicin as
             opposed to choosing other more efficacious and less risky
             agents.

             (e) Having decided to administer gentamicin, Dr. Polsky
             failed to communicate to the hospital pharmacists the
             severity of the infection, and whether he was employing
             gentamicin as a primary or synergistic agent.

             (f) Having decided to administer gentamicin, Dr. Polsky
             failed to adequately inform himself of what parameters
             would be applied by the hospital pharmacists in calculating
             “gentamicin daily dosing per pharmacy.”

             (g) Having decided to administer gentamicin, Dr. Polsky
             failed to select a proper dose of gentamicin for the target
             infection assuming that it required treatment for more
             than 3-5 days.

             (h) Having decided to administer gentamicin, Dr. Polsky
             failed to prudently balance the probability of success with
             antibiotic treatment against the extremely high likelihood
             that bilateral vestibulopathy would result from the
             prolonged administration of 7 mg/kg/day of gentamicin.

             (i) Having decided to administer gentamicin, Dr. Polsky
             failed to order renal function testing with sufficient
             frequency to detect rapidly deteriorating renal function.
             This violation continued throughout the period of
             gentamicin administration as changes in renal function
             were noted. Defendant Dr. Polsky breached the standard
             of care when he failed to discontinue gentamicin
             immediately on October 1, 2009, when excessive
             gentamicin and vancomycin trough levels were obtained in


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            conjunction with an increased serum creatinine.

            (j) Defendant Dr. Polsky breached the standard of care
            when he failed to discontinue gentamicin immediately on
            October 6, 2009, when excessive gentamicin and
            vancomycin trough levels were obtained in conjunction
            with an increased serum creatinine.

            (k) His care was also deficient in other respects as may be
            discovered in the prosecution of this action.

      The Dismissal also required Smith to file an amended complaint, and he did so

on 3 September 2014. Smith further stipulated that the “only remaining theories of

negligence alleged against [d]efendants . . . [were] enumerated in Paragraph 32,

subparagraphs (a) through (c)” of his amended complaint, which read:

            (a) Defendant Dr. Polsky breached the standard of care by
            failing to utilize a multiple wound irrigation technique at
            the time of the AMS 700 reimplantation on August 25,
            2009.

            (b) On or about September 19, 2009, Defendant Dr. Polsky
            breached the standard of care by failing to remove the
            previously placed reservoir and attached tubing, along
            with the AMS 700 device which was implanted on August
            25, 2009.

            (c) Defendant Dr. Polsky breached the standard of care by
            initiating antibiotic treatment for the infected prosthetic
            device on September 19, 2009. The risk of Dr. Polsky’s
            prescribed long term therapy greatly outweighed the
            extremely unlikely potential reward of salvaging the
            device.

      In exchange for Smith’s promises to dismiss the above-mentioned theories of

negligence and file an amended complaint, defendants agreed and stipulated that


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material issues of fact remained concerning Smith’s surviving negligence claims.

      Smith and defendants both filed pretrial motions between November and

December of 2015. Defendants’ motion in limine No. 1 requested that the trial court

exclude

              [a]ny evidence and/or argument related to any theories of
              liability that Dr. Polsky was negligent in any manner for
              the selection and/or use of the antibiotic Gentamicin,
              including but not limited to: (1) the decision not to choose
              any alternative antibiotic; (2) testimony or evidence
              relating to the individual toxicity characteristics of
              Gentamicin; (3) that the “prolonged” use of Gentamicin was
              negligent; and (4) evidence related to the “synergistic”
              effect of the antibiotics as those claims have been
              Dismissed, with Prejudice, by the Plaintiff.

The trial court held a hearing on the parties’ pretrial motions on 21 December 2015.

At the hearing, defendants argued that while Smith could present evidence that “any

antibiotic treatment would not have helped [him] because the only [prudent] decision

[was] the surgical removal,” he could not contend that Dr. Polsky was negligent in

choosing, administering, dosing, or monitoring the antibiotic Gentamicin.

      In contrast, Smith argued that not allowing him to explain the risks of the

Gentamicin treatment “would be to hamstring . . . , prevent us from being able to give

the jury the rest of the story.” Smith’s position was that the term “initiating antibiotic

therapy” in Paragraph 32, subparagraph (c) of his amended complaint included and

preserved claims that Dr. Polsky was negligent in prescribing the long-term use of

Gentamicin.


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                                    Opinion of the Court



      Defendants responded by asserting that all negligence claims concerning the

specific, prolonged use of Gentamicin to treat Smith’s infection had been dismissed

with prejudice. According to defendants, the Dismissal acted as a prior adjudication

on the merits as to those claims, and all subparts of defendants’ motion in limine

should have been granted pursuant to the doctrine of res judicata.

      In an order entered 8 March 2016, the trial court denied defendant’s motion in

limine No. 1, subparts (1) through (3), and granted defendants’ motion as to subpart

(4). Defendants appeal.

                              II. Standard of Review

      It is well established that

             [a] motion in limine seeks pretrial determination of the
             admissibility of evidence proposed to be introduced at trial,
             and is recognized in both civil and criminal trials. The trial
             court has wide discretion in making this advance ruling . .
             . . Moreover, the court’s ruling is not a final ruling on the
             admissibility of the evidence in question, but only
             interlocutory or preliminary in nature. Therefore, the
             court’s ruling on a motion in limine is subject to
             modification during the course of the trial.

Heatherly v. Indus. Health Council, 130 N.C. App. 616, 619, 504 S.E.2d 102, 105

(1998) (internal citations and quotation marks omitted). When this Court reviews a

decision to grant or deny a motion in limine, the determination will not be reversed

absent a showing that the trial court abused its discretion. Id.

      In the instant case, because the trial court’s order denying portions of



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                                   Opinion of the Court



defendants’ motion in limine No. 1 is interlocutory, we must first determine whether

this appeal is properly before us. Both Smith and defendants contend that the trial

court’s ruling is subject to immediate review, but “acquiescence of the parties does

not confer subject matter jurisdiction on a court.” McCutchen v. McCutchen, 360 N.C.

280, 282, 624 S.E.2d 620, 623 (2006).

      “An interlocutory order is one made during the pendency of an action, which

does not dispose of the case, but leaves it for further action by the trial court in order

to settle and determine the entire controversy.” Veazey v. Durham, 231 N.C. 354,

362, 57 S.E.2d 377, 381 (1950). In most cases, a party has “no right of immediate

appeal from interlocutory orders and judgments.” Goldston v. Am. Motors Corp., 326

N.C. 723, 725, 392 S.E.2d 735, 736 (1990). This general rule prevents “fragmentary

and premature appeals that unnecessarily delay the administration of justice[.]”

Bailey v. Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 434 (1980).

      There are “at least two instances[,]” however, in which a party may

immediately appeal from an interlocutory order or judgment. Sharpe v. Worland, 351

N.C. 159, 161, 522 S.E.2d 577, 579 (1999). The first occasion arises when the trial

court certifies its order for immediate review under Rule 54(b) of the North Carolina

Rules of Civil Procedure. McConnell v. McConnell, 151 N.C. App. 622, 624, 566 S.E.2d

801, 803 (2002). In the second instance, immediate review is available where the




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order affects a substantial right. Blackwelder v. Dept. of Human Res., 60 N.C. App.

331, 333, 299 S.E.2d 777, 779 (1983).

      Our Supreme Court has defined a “substantial right” as “a legal right affecting

or involving a matter of substance as distinguished from matters of form: a right

materially affecting those interests which a [person] is entitled to have preserved and

protected by law: a material right.” Sharpe, 351 N.C. at 162, 522 S.E.2d at 579

(quotation marks and citation omitted) (alteration in original). “The burden is on the

appellant to establish that a substantial right will be affected unless he is allowed

immediate appeal from an interlocutory order.” Embler v. Embler, 143 N.C. App.

162, 166, 545 S.E.2d 259, 262 (2001). Put differently, an appellant must demonstrate

that the challenged “order deprives the appellant of a substantial right that ‘will

clearly be lost or irremediably adversely affected if the order is not review[ed] before

final judgment.’ ” Edmondson v. Macclesfield L-P Gas Co., 182 N.C. App. 381, 391,

642 S.E.2d 265, 272 (2007) (quoting Blackwelder, 60 N.C. App. at 335, 299 S.E.2d at

780). In making this determination, our appellate courts take a “restricted view of

the ‘substantial right’ exception to the general rule prohibiting immediate appeals

from interlocutory orders.” Blackwelder, 60 N.C. App. at 334, 299 S.E.2d at 780.



                                    III. Analysis




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      According to defendants, “[a]llowing [Smith] to resurrect his Gentamicin-

specific claims that were previously dismissed undermines the doctrine of res judicata

and violates [d]efendants’ substantial right to avoid inconsistent verdicts on the same

claims.” Defendants further argue that if the trial court’s preliminary ruling on their

motion in limine is not addressed, they will be forced “to re-litigate the previously-

adjudicated Gentamicin claims.” Defendants’ res judicata defense rests on their

contention that the Dismissal operated as a final judgment on the merits releasing

them from any further exposure to Gentamicin claims at trial.            In sum, while

acknowledging the interlocutory nature of their appeal, defendants insist that the

denial of their motion in limine No. 1, subparts (1) through (3), affects a substantial

right. We disagree.

      The longstanding rule in North Carolina is that a voluntary dismissal with

prejudice is, by operation of law, a final judgment on the merits implicating the

doctrine of res judicata. Riviere v. Riviere, 134 N.C. App. 302, 306, 517 S.E.2d 673,

676 (1999); Kabatnik v. Westminster Co., 63 N.C. App. 708, 712, 306 S.E.2d 513, 515

(1983); Barnes v. McGee, 21 N.C. App. 287, 290, 204 S.E.2d 203, 205 (1974). “Under

the doctrine of res judicata or ‘claim preclusion,’ a final judgment on the merits in one

action precludes a second suit based on the same cause of action between the same

parties or their privies.” Whitacre P’ship v. Biosignia, Inc., 358 N.C. 1, 15, 591 S.E.2d

870, 880 (2004) (citations omitted). By its very operation, the doctrine precludes the



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relitigation of “all matters . . . that were or should have been adjudicated in the prior

action.” Id. (citation omitted).

       This Court has previously held that “when a trial court enters an order

rejecting the affirmative defense[] of res judicata . . ., the order can affect a substantial

right and may be immediately appealed.” Strates Shows, Inc. v. Amusements of Am.,

Inc., 184 N.C. App. 455, 459, 646 S.E.2d 418, 422 (2007) (emphasis added; citation

and internal quotation marks omitted). Even so, it is clear that invocation of res

judicata “does not . . . automatically entitle a party to an interlocutory appeal of an

order rejecting” that defense. Foster v. Crandell, 181 N.C. App. 152, 162, 638 S.E.2d

526, 534, disc. review denied, 361 N.C. 567, 650 S.E.2d 602 (2007). For example, the

“denial of a motion for summary judgment based upon the defense of res judicata may

involve a substantial right so as to permit immediate appeal only where a possibility

of inconsistent verdicts exists if the case proceeds to trial.” Country Club of Johnston

County, Inc. v. U.S. Fidelity and Guar. Co., 135 N.C. App. 159, 167, 519 S.E.2d 540,

546 (1999) (citation and quotation marks omitted), disc. review denied, 351 N.C. 352,

542 S.E.2d 207 (2000). Thus, motions based upon res judicata serve to “prevent[] the

possibility that a successful defendant, or one in privity with that defendant, will

twice have to defend against the same claim by the same plaintiff, or one in privity

with that plaintiff.” Bockweg v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161

(1993).



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      According to defendants, “[p]roceeding with the present case under the trial

court’s ruling will force [them] to re-litigate the previously-adjudicated Gentamicin

claims” and to “confront the likelihood of inconsistent verdicts[.]” In making this

argument, defendants equate the Dismissal with a prior decision on the merits in a

court of law.

      Previous decisions, however, have specifically restricted interlocutory appeals

based on the doctrine of res judicata.

                Interlocutory appeals [are limited] to the situation when
                the rejection of . . . defenses [based upon res judicata or
                collateral estoppel] g[i]ve rise to a risk of two actual trials
                resulting in two different verdicts. See, e.g., Country Club
                of Johnston County, Inc. . . . , 135 N.C. App. . . . [at] 167,
                519 S.E.2d . . . [at] 546 . . . (holding that an order denying
                a motion based on the defense of res judicata gives rise to
                a “substantial right” only when allowing the case to go
                forward without an appeal would present the possibility of
                inconsistent jury verdicts) . . . ; Northwestern Fin. Group,
                Inc. v. County of Gaston, 110 N.C. App. 531, 536, 430
                S.E.2d 689, 692 (holding that the defense of res judicata
                gives rise to a “substantial right” only when there is a risk
                of two actual trials resulting in two different verdicts), disc.
                review denied, 334 N.C. 621, 435 S.E.2d 337 (1993). One
                panel, however, has held that a “substantial right” was
                affected when defendants raised defenses of res judicata
                and collateral estoppel based on a prior federal summary
                judgment decision rendered on the merits. See Williams v.
                City of Jacksonsville Police Dep’t, 165 N.C. App. 587, 589-
                90, 599 S.E.2d 422, 426 (2004).

Foster, 181 N.C. App. at 162-63, 638 S.E.2d at 534.




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       The Foster Court dismissed the defendants’ appeal and had no need to reconcile

Country Club, Northwestern, and Williams, because in Foster, as here, there was no

possibility of a result inconsistent with a prior jury verdict or a prior decision on the

merits by a judge. Id. at 163, 638 S.E.2d at 534. Indeed, defendants’ res judicata

defense in the instant case rests solely on the Dismissal with the accompanying

stipulations.   A review of the pertinent case law reveals that, in the context of

interlocutory appeals involving the defense of res judicata, this Court has drawn a

distinction between claims of a substantial right based on prior voluntary dismissals

with prejudice and claims based on prior adjudications by a judge or jury.           Id.;

Robinson v. Gardner, 167 N.C. App. 763, 769, 606 S.E.2d 449, 453, disc. review denied,

359 N.C. 322, 611 S.E.2d 417 (2005); Allen v. Stone, 161 N.C. App. 519, 522, 588

S.E.2d 495, 497 (2003); see also Anderson v. Atl. Cas. Ins. Co., 134 N.C. App. 724, 727,

518 S.E.2d 786, 789 (1999) (holding that the defendant was not entitled to immediate

appeal based on argument that action was barred by a release because “[a]voidance

of trial is not a substantial right”).

       In Allen, the plaintiff had dismissed her claims pursuant to Rule 41(a) of the

North Carolina Rules of Civil Procedure on two previous occasions. 161 N.C. App. at

519-20, 588 S.E.2d at 496. After the plaintiff filed a third action, the defendant filed




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a motion to dismiss based on the ground that Rule 41(a)(1)’s two-dismissal rule1

barred the action. The trial court denied the motion to dismiss, and the defendant

appealed, arguing that the denial of his motion based on the prior dismissals affected

a substantial right. Id. at 521, 588 S.E.2d at 496. However, this Court rejected the

defendant’s argument and explained “that avoidance of a trial, no matter how tedious

or unnecessary, is not a substantial right entitling an appellant to immediate review.”

Id. at 522, 588 S.E.2d at 497 (emphasis added).

       The procedural facts in Robinson were virtually identical to those in Allen.

However, the defendants in Robinson claimed that their appeal affected a substantial

right because the plaintiff’s prior dismissal with prejudice gave rise to the defense of

res judicata. 167 N.C. App. at 768, 606 S.E.2d at 452-53. After holding that it was

bound by Allen, the Robinson Court explained that the defendants’ assertion of a res

judicata defense had no talismanic effect on the substantial right inquiry:

               The present appeal does not involve possible inconsistent
               jury verdicts or even an inconsistent decision on the merits
               since, as in Allen, there was only a voluntary dismissal that
               would—if not set aside—result in an adjudication on the
               merits only by operation of law. There has been no decision
               by any court or jury that could prove to be inconsistent with
               a future decision. Defendants do not seek to avoid
               inconsistent decisions; they seek to avoid any litigation at
               all.



       1    Rule 41(a)(1) of the North Carolina Rules of Civil Procedure provides “that a notice of
dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed
. . . an action based on or including the same claim.”

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Id. at 769, 606 S.E.2d at 453.

      In Foster, the defendants appealed the denial of their motion for judgment on

the pleadings. The defendants’ claim of a substantial right was based on their

contention that a prior settlement and voluntary dismissal with prejudice afforded

them the defenses of collateral estoppel and res judicata. 181 N.C. App. at 162, 638

S.E.2d at 533. This Court disagreed, held that it was bound by the decisions in Allen

and Robinson, and dismissed the defendants’ appeal as interlocutory. Id. at 163, 638

S.E.2d at 534.   The Foster Court reasoned as follows:       “Like the defendants in

Robinson and Allen, defendants in this case base their claim of res judicata on a prior

voluntary dismissal with prejudice that does not reflect a ruling on the merits by any

jury or judge.” Id. at 163-64, 638 S.E.2d at 534.

      As in Foster, defendants in the present case base their claim of a substantial

right exclusively on Smith’s dismissal with prejudice and the parties’ accompanying

stipulations. In making this claim, defendants ignore the fact that no judge or jury

has ruled on the merits of the claims affected by the Dismissal.          Instead, the

Dismissal represents “an adjudication on the merits only by operation of law.”

Robinson, 167 N.C. App. at 769, 606 S.E.2d at 453. This appeal does not involve

possible inconsistent jury verdicts, much less an inconsistent decision on the merits.

See Green v. Duke Power Co., 305 N.C. 603, 608, 290 S.E.2d 593, 596 (1982) (while

the possibility of two trials on the same issue can give rise to a substantial right



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justifying an interlocutory appeal, the appellant must show that a judgment or order

creates “the possibility that a party will be prejudiced by different juries in separate

trials rendering inconsistent verdicts on the same factual issue”); Country Club of

Johnston County, Inc., 135 N.C. App. at 167, 519 S.E.2d at 546 (dismissing appeal

based on res judicata because prior decisions involved summary judgment orders and

not verdicts, and, therefore, the case “present[ed] no possibility of inconsistent

verdicts”).

       In addition, despite defendants’ assertion that res judicata “controls” our

substantial right analysis, it is not insignificant that this appeal arises from the

partial denial of a motion in limine. A preliminary ruling “on a motion in limine is

subject to change during the course of trial, depending upon the actual evidence

offered at trial.” Xiong v. Marks, 193 N.C. App. 644, 647, 668 S.E.2d 594, 597 (2008)

(citation and quotation marks omitted). Consequently, the trial court may, in its

discretion, modify its ruling on the Gentamicin claims before or during trial of this

matter.

       For the reasons stated above, defendants have failed to establish that their

appeal affects a substantial right that will be lost or inadequately addressed absent

immediate review. As such, the trial court’s order on the motion in limine is not

subject to immediate appeal.




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                                   IV. Conclusion

      Because defendants have not demonstrated the existence of a substantial

right, their appeal from the trial court’s denial of a portion of their motion in limine

is not eligible for immediate review. Accordingly, defendants’ appeal is dismissed as

interlocutory.

      DISMISSED.

      Judges CALABRIA and INMAN concur.




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