Reversed and Remanded and Memorandum Opinion filed February 13, 2020.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-18-00135-CV

  JORGE ROBLES AND WERNER ROBLES, INDIVIDUALLY AND AS
            HEIRS OF ZOILA ROBLES, Appellants
                                        V.

     PINNACLE HEALTH FACILITIES XV, LP D/B/A WOODRIDGE
            NURSING AND REHABILITATION, Appellee

                    On Appeal from the 55th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2015-11057

                         MEMORANDUM OPINION

      Appellants Jorge Robles and Werner Robles, individually and as heirs of
Zoila Robles, appeal from the trial court’s dismissal of their healthcare liability
lawsuit against appellee Pinnacle Health Facilities XV, LP d/b/a Woodridge
Nursing and Rehabilitation (Woodridge). See Tex. Civ. Prac. & Rem. Code §
74.351.   We hold that the trial court abused its discretion when it granted
Woodridge’s motion to dismiss because appellants’ amended expert report states
with sufficient detail the causal relationship between the alleged failure to meet the
standard of care and the alleged harm resulting in Zoila Robles’ injuries and death.
We therefore sustain appellants’ first issue, reverse the trial court’s dismissal order,
and remand the case to the trial court for further proceedings.1

                                        BACKGROUND

       Ms. Robles was 84 when she was transferred from Houston Methodist West
Hospital to Woodridge on April 25, 2014. Ms. Robles suffered from osteoarthritis
and osteoporosis. These conditions caused Ms. Robles to be chronically bed
bound and dependent on the nurses and other staff at Woodridge to transfer her in
and out of bed. Woodridge noted upon Ms. Robles’ admission that she required
both a two-or-more person physical assist and the use of a sling lift for any
transfers.

       Woodridge put a care plan in place for Ms. Robles four days after she was
admitted. Woodridge’s care plan indicated that Ms. Robles had a potential for falls
and injuries related to assistance with mobility and transfers.                       The plan also
indicated that both a Hoyer lift2 and a geri-chair3 were required equipment.
Finally, Ms. Robles’ care plan specifically stated that all transfers required a two-
or-more person physical assist and the use of a sling lift.

       Ms. Robles experienced a fall to the floor on July 3, 2014. Her chart noted
that


       1
         Appellants raised two issues on appeal. Because we have sustained appellants’ first
issue, we need not reach their second issue challenging the trial court’s dismissal order. See Tex.
R. App. P. 47.1.
       2
           A specific type of sling lift device for transferring immobile patients.
       3
         A geri-chair or geriatric chair is an adjustable recliner. See Pinnacle Health Facilities
XV, LP v. Robles, No. 14-15-00924-CV, 2017 WL 2698498, at *1, n.2 (Tex. App.—Houston
[14th Dist.] June 22, 2017, no pet.).

                                                   2
      [d]uring end of shift report, the morning nurse gave report and stated
      “Resident fell from Hoyer lift during transfer and had informed the
      Doctor, and order given to transfer resident to Methodist Willowbrook
      Hospital and the ambulance had already been called & on their way
      here.”
A Woodridge departmental note the next day states that “yesterday afternoon on
7/3/14 resident was being transferred from geri-chair to bed and resident fell.
Resident was transferred from floor to bed.” Methodist Willowbrook Hospital
medical records state that Ms. Robles arrived at the hospital after she suffered a
“[f]all, fell from hoyer lift, approx. 3 feet.” Nursing notes from the hospital state
that “[p]t arrived via ems from Woodridge rehab and nursing home with c/o of
faculty [sic] hoyer lift pt. falling and being struck by part of machinery. Pt has
multiple skin tear to arms dressed with steri strips.” Ms. Robles was pronounced
dead less than two hours after she arrived at the hospital. Ms. Robles’ family
requested an autopsy, but the report does not list a cause of death. Her death
certificate however, lists the cause of her death as “blunt trauma of torso and
extremities.”

      Appellants filed suit against Woodridge alleging that Woodridge’s
negligence proximately caused Ms. Robles’ injuries and death.             Appellants
attached the Chapter 74 expert report and curriculum vitae of Dr. Christopher
Davey to their original petition. When Woodridge objected to Dr. Davey’s report,
appellants filed an amended report. Woodridge objected again. The trial court
overruled Woodridge’s objections. Woodridge then filed a motion to reconsider its
objections along with a motion to dismiss. The trial court denied these motions as
well. Woodridge appealed the trial court’s denial of the motion to dismiss.

      A different panel of this Court ultimately issued a substitute memorandum
opinion holding that Dr. Davey’s amended report was deficient, but the deficiency
was not incurable. Pinnacle Health Facilities XV, LP, 2017 WL 2698498, at *4. It
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remanded the case back to the trial court. Id.

      Back in the trial court, appellants filed a first amended petition. Appellants
also served a second amended expert report along with a motion requesting the
thirty-day extension permitted by Chapter 74.        The thirty-day extension was
granted by an agreed order. Woodridge objected to Dr. Davey’s second amended
report and appellants served a third amended expert report. Both Dr. Davey’s
second and third amended reports referenced additional facts not included in his
initial reports that the staff was violating Ms. Robles’s care plan at the time of the
fall by having only one staff member present at the time of the transfer. Dr.
Davey’s opinion regarding this breach of the standard of care was supported by the
affidavit of appellant Jorge Robles. Woodridge objected again and filed another
motion to dismiss based on the alleged failure to serve an adequate expert report.
The trial court granted Woodridge’s motion. This appeal followed.

                                     ANALYSIS

      In their first issue on appeal appellants argue that the trial court abused its
discretion when it dismissed their case because Dr. Davey’s third amended report
meets the Chapter 74 expert report requirements.          Woodridge responds that
appellants’ third amended expert report is still insufficient because it contains no
facts explaining how Woodridge’s conduct breached the standard of care and is
therefore no different from the expert report previously rejected by this Court. As
explained below, we agree with appellants that their third amended expert report
clears Chapter 74’s low threshold that a person bringing a healthcare liability claim
against a health care provider must cross to show that his or her claim has merit.

I.    Standard of review and applicable law

      We review for an abuse of discretion a trial court’s ruling on a motion to
dismiss for failure to comply with section 74.351. Am. Transitional Care Cntrs. of
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Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001); Univ. of Tex. Med. Branch
at Galveston v. Callas, 497 S.W.3d 58, 62 (Tex. App.—Houston [14th Dist.] 2016,
pet. denied). A trial court abuses its discretion if it acts arbitrarily or unreasonably
or without reference to guiding rules or principles. Bowie Mem’l Hosp. v. Wright,
79 S.W.3d 48, 52 (Tex. 2002) (per curiam).

      The Texas Medical Liability Act requires a party asserting a healthcare
liability claim to file an expert report and serve it on each party not later than 120
days after the petition is filed. Tex. Civ. Prac. & Rem. Code § 74.351(a). Under
the statute, an expert report means a written report that provides “a fair summary of
the expert’s opinions as of the date of the report regarding applicable standards of
care, the manner in which the care rendered by the physician . . . failed to meet the
standards, and the causal relationship between that failure and the injury, harm, or
damages claimed.” Tex. Civ. Prac. & Rem. Code § 74.351(r)(6). If a plaintiff
does not timely serve an expert report meeting the required elements, the trial court
must dismiss the healthcare claim on motion of the affected healthcare provider.
See id. §§ 74.351(b), (l); Miller v. JSC Lake Highlands Operations, LP, 536
S.W.3d 510, 513 (Tex. 2017) (per curiam); Gannon v. Wyche, 321 S.W.3d 881,
885 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). If elements of the report
are found deficient, as opposed to absent, the court may grant a thirty-day
extension to cure the deficiency. Tex. Civ. Prac. & Rem. Code § 74.351(c);
Gannon, 321 S.W.3d at 885.

      Although the expert report need not marshal all of the plaintiff’s proof, it
must include the expert’s opinions on the three statutory elements of standard of
care, breach, and causation. Palacios, 46 S.W.3d at 878-79; Kelly v. Rendon, 255
S.W.3d 665, 672 (Tex. App.—Houston [14th Dist.] 2008, no pet.). The report
need not use “magic words” and does not have to meet the same standards as

                                           5
evidence offered in a summary-judgment proceeding or trial. See Kelly, 255
S.W.3d at 672 (“The expert report is not required to prove the defendant’s
liability.”); see also Jelinek v. Casas, 328 S.W.3d 526, 540 (Tex. 2010) (stating no
magic words are required). Bare conclusions or speculation, however, will not
suffice. See Wright, 79 S.W.3d at 52, 53; Humble Surgical Hosp., LLC v. Davis,
542 S.W.3d 12, 23 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).

      To constitute a good-faith effort to comply with the expert report
requirement, the report must provide enough information to fulfill two purposes of
the statute: (1) inform the defendant of the specific conduct the plaintiff has called
into question and (2) provide a basis for the trial court to conclude that the claims
have merit. Baty v. Futrell, 543 S.W.3d 689, 693–94 (Tex. 2018). This constitutes
a low threshold that a person bringing a claim against a health care provider must
cross to show that his or her claim has merit. McAllen Hosp., L.P. v. Gonzalez,
566 S.W.3d 451, 456 (Tex. App.—Corpus Christi 2018, no pet.); see Loaisiga v.
Cerda, 379 S.W.3d 248, 264 (Tex. 2012) (Hecht, J. concurring in part and
dissenting in part) (“We have held that the standard for adequacy of a report is
lenient, and that leave to cure any deficiencies in a report must be freely given.”);
Pettway v. Olvera, No. 14-17-00532-CV, 2018 WL 4016949, at *3 (Tex. App.—
Houston [14th Dist.] Aug. 23, 2018, pet. denied) (mem. op.) (“Accordingly, the
Texas Supreme Court has encouraged trial courts to liberally construe expert
reports in favor of plaintiffs.”) (internal quotation marks omitted).

      The goal of section 74.351 is to “deter frivolous lawsuits by requiring a
claimant early in litigation to produce the opinion of a suitable expert that his claim
has merit.” Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453,
460 (Tex. 2017) (internal quotation marks omitted). The purpose of the statute is
not to dispose of potentially meritorious claims. Abshire v. Christus Health Se.

                                           6
Tex. d/b/a Christus Hosp.-St. Elizabeth, 563 S.W.3d 219, 223 (Tex. 2018). A
frivolous claim is not the same as an ultimately unsuccessful one. Peabody v.
Manchac, 567 S.W.3d 814, 821 (Tex. App.—Houston [14th Dist.] 2018, no pet.).
Showing that a claim has merit requires an opinion that the alleged negligence of
the medical provider proximately caused the plaintiff’s injury. See Zamarripa, 526
S.W.3d at 460. Although the plaintiff need not actually prove the claim with the
expert report, the report must show that the expert is of the opinion that the
plaintiff can do so, including as to both foreseeability and cause-in-fact. Id.

      An expert’s mere ipse dixit regarding causation will not suffice; the expert
must explain the basis of his or her conclusions, showing how and why a breach of
the standard of care caused the injury. See id; Jelinek, 328 S.W.3d at 536. The
conclusion must be linked to the facts of the case and cannot contain any gaps in
the chain of causation. See Wright, 79 S.W.3d at 52; Davis, 542 S.W.3d at 23.
This does not mean however, that an expert’s report must be complicated or
complex, so long as it meets the statutory requirements. See Baty, 543 S.W.3d at
697 (“Because his report identifies the ‘conduct being called into question’ —
inserting the needle into the optic nerve — and provides the trial court a basis to
conclude Baty’s claims have merit, it satisfies the good-faith effort the statute
requires.”). We determine whether an expert opinion is sufficient under section
74.351 by considering the opinion in the context of the entire report, rather than
taking statements in isolation. See Van Ness v. ETMC First Physicians, 461
S.W.3d 140, 144 (Tex. 2015) (per curiam).

II.   Appellants’ amended          expert       report   meets   the   section    74.351
      requirements.

      Appellants argue on appeal that Dr. Davey’s amended expert report meets
the statutory requirements because it includes his opinions on the three statutory


                                            7
elements of standard of care, breach, and causation. See Tex. Civ. Prac. & Rem.
Code § 74.351(r)(6). In appellants’ view, Dr. Davey’s report informs Woodridge
of the specific conduct they have called into question, the failure to meet the
standard of care requiring two staff persons assisting with any transfer involving
Ms. Robles, and how that failure caused Ms. Robles’ injuries and death. In his
report, Dr. Davey states:

      Additionally, whether or not the device failed and whether or not it
      was being used properly, the Woodridge and its staff breached the
      standard of care by failing to prevent Ms. Robles from falling three
      feet to the floor and further breached the standard of care by failing to
      prevent the Hoyer lift from striking her once she was on the floor.
      The staff that was assisting in the transfer breached the standard of
      care by either failing to have two staff members present at the time of
      the transfer or by failing to adequately respond once Ms. Robles begin
      [sic] to fall. In my opinion, it [is] more likely than not given what is
      documented that only one staff member was present at the time of the
      fall. I have been provided an affidavit by Mr. Jorge Robles Santizo
      which states that he was told immediately after the fall that only one
      staff member was present. If two staff members were present and
      complying with the standard of care, they would have supported Ms.
      Robles before she fell and prevented her from being struck by falling
      machinery. Specifically, when a patient is being transferred from a
      geri-chair to a bed as occurred in this case, the standard of care
      requires two staff members be present. At the beginning of the
      transfer, one care giver should be standing behind the chair and the
      other directly in front of it. Once the sling is properly placed, one care
      giver should stand behind the chair as the other positions the lift over
      the wheelchair. Once the sling is properly positioned and attached to
      the Hoyer lift in accordance with the principles set forth above, the
      standard of care requires that as one care giver maneuvers the Hoyer
      lift, the other care giver stands behind the sling (so that the caregivers
      are facing each other), securing the sling with two hands near the
      resident’s shoulder. This places the caregiver’s hands at a ready
      position should trouble be encountered. This allows the care giver to
      “catch” the resident should the resident start to fall. As the resident
      moves toward the bed, the care giver securing the resident should, in

                                          8
accordance with the standard of care, move to the resident’s side,
maintaining contact with the sling. Again this allows the care giver to
break the resident[’]s fall if a problem is encountered, which is
required by the standard of care. This should occur until the resident
is over the bed. At that point the care giver should, using the
resident’s legs, rotate the resident over the bed as the other caregiver
lowers the lift. When this occurs, a resident will not experience a
three foot fall to the ground that is sufficient to cause the injuries Ms.
Robles did in this case and then be struck by a lift. When only one
staff member is present though, there is no one to catch the resident or
break the resident[’]s fall as the caregiver has his/her hands on the
device and not the resident. Given what occurred in this case, it is
more likely than not only one staff member was present who was at
the lift at the time of the fall instead of supporting the resident as
required by the standard of care. Had there been two staff members
acting in accordance with the standard of care they would have
supported/caught Ms. Robles before she fell three feet to the ground
and would have prevented a piece of the device from striking her.
Furthermore, the fact only one staff member was present at the time of
the transfer despite the fact that having two staff members present at
the time of transfer is a basic principle of safe transfer techniques,
lends additional credence to my opinion that it is more likely than not
this fall occurred because the device was not being used properly in
accordance with the standard of care as explained in the preceding
paragraph.
It is my opinion, based on a reasonable degree of medical probability,
that the breaches of the standard of care identified above proximately
caused Ms. Robles’s fall, injuries, and death.
...
Finally, had two staff members been present, and the standard of care
followed, it is more likely than not that Ms. Robles would not have
fallen three feet to the floor and been struck by a piece of the lift as it
is more likely than not that she would have been caught and supported
as the device begin [sic] to fail because a care giver would have
already had hands on Ms. Robles and that the device would not have
struck her because the other care giver would have had hands on the
device. Therefore, had the standard of care set forth in this report
been met, it is more likely than not that Ms. Robles would not have
fallen and would not have been struck by the device or any piece of it.
                                    9
According to the records, as a result of this fall, Ms. Robles suffered
several lacerations, as well as bruising. The injuries she sustained
resulted in calling EMS services, as well as care and treatment at a
local hospital. Therefore, the breaches of the standard of care
identified above caused, more likely than not, the medical expenses
which otherwise would have been unnecessary. It is more likely than
not, based on my experience treating patients like Ms. Robles that
these injuries she suffered would have been painful and the experience
of being taken to a local emergency department also, more likely than
not, would have resulted in mental anguish. The autopsy report in this
case did not reveal any obvious sign of death. However, there are
really only two plausible possibilities: (1) that she died from shock
after experiencing blunt force trauma from the fall, as is set forth in
the death certificate, or (2) that she died from an underlying infection
that went unrecognized. I agree with the physician who authored the
death certificate that it is more likely than not that Ms. Robles died
from blunt force trauma to the extremities. However, as will be set
forth in greater detail below, even if she died from an underlying
infection that went unrecognized, this too would be proximately
caused by the negligence of Woodridge Nursing and Rehabilitation
and its staff.
I believe it is more likely than not that Ms. Robles died as a result of
this fall. She died within a few hours of this fall. It therefore makes
sense that the medical examiner who signed the death certificate and
is trusted with determining the cause of death would conclude as I do
that she died of blunt force trauma causing her to go into shock with
subsequent cardiac arrest. If a person fall[s] from a height, then dies
shortly afterwards, it is reasonable to conclude that it is more likely
than not they died from the fall-this is why the death certificate lists
this as an accidental death, (as opposed to a natural death). Deaths
resulting from blunt force trauma are some of the most common cases
encountered by pathologists and I saw these cases in my training.
There is no dispute that Ms. Robles suffered a blunt force trauma
when she fell. There is also not a dispute that this fall caused injuries
(lacerations and abrasions) which are commonly seen in blunt force
trauma death. There were other injuries such as fractured ribs that are
also consistent with the fall. It is well understood that falls and blunt
force trauma that results in falls can lead to cardiac arrest that is not
apparent on autopsy. For example, it is known that blunt force trauma

                                   10
       damages tissues and as that tissue is absorbed, the body can be
       overwhelmed with toxins which in turn leads to shock and cardiac
       arrest which will not be evident on autopsy. Based on the autopsy
       findings, Ms. Robles’ presentation, and the timing of the cardiac
       arrest, I believe that it is most likely what occurred here. Other
       phenomena commonly discussed in the literature is blunt cardiac
       injury which also is not typically evidenced by autopsy but is instead
       presumed by circumstances of the blunt force trauma. Interestingly,
       blunt cardiac injury resulting in arrhythmia of the heart may be
       delayed, initially presenting as hypotension and difficulty breathing as
       occurred in this case. Regardless of the precise mechanism, it is far
       more likely than not that the fall Ms. Robles sustained caused her to
       die when she did.
       As quoted above, Dr. Davey’s report explains the required standard of care,
the presence of two staff persons during a patient transfer. Dr. Davey also explains
in detail the role of each staff person involved in a patient transfer using a Hoyer
lift. Dr. Davey then explains how the presence of only a single staff person
breached that standard. Finally, Dr. Davey explains how Woodridge’s breaches
caused Ms. Robles’ injuries. We conclude Dr. Davey’s report meets the statutory
requirements because it informs Woodridge of the specific conduct appellants have
called into question, and it provides a basis for the trial court to conclude that their
claims have merit. See Baty, 543 S.W.3d at 697 (explaining how challenged expert
report met the statutory requirements and stating that “additional detail is simply
not required at this stage of the proceedings.”); Palacios, 46 S.W.3d at 880
(“Whether a defendant breached his or her duty to a patient cannot be determined
absent specific information about what the defendant should have done
differently.”).

       On appeal, Woodridge responds to appellants’ arguments by asserting that
Dr. Davey’s report is deficient because it relies on an affidavit “from one of the
plaintiffs in the case.” But, if a medical expert preparing a Chapter 74 expert
report is allowed to rely on the unrebutted allegations contained in a plaintiff’s
                                          11
unsworn petition, we see no reason why an expert cannot similarly rely on a
plaintiff’s affidavit testimony. See Loaisiga v. Cerda, 379 S.W.3d 248, 261 (Tex.
2012) (“Thus, we do not see why an expert, in formulating an opinion, should be
precluded from considering and assuming the validity of matters set out in
pleadings in the suit, absent a showing that the pleadings are groundless or in bad
faith or rebutted by evidence in the record.”). Additionally, to the extent
Woodridge challenges the credibility of Dr. Davey’s report because it is based in
part on a plaintiff’s affidavit, we point out that it is not this Court’s job at this stage
of the litigation to weigh the credibility of the expert’s report. Abshire, 563
S.W.3d at 226.

       Woodridge next argues that Dr. Davey’s report is deficient because his
statement of the standard of care is conclusory, or simply incorrect. A conclusory
statement is one that expresses a factual inference without providing the underlying
facts to support that conclusion. See Padilla v. Metro. Transit Auth. of Harris Cty.,
497 S.W.3d 78, 85 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (addressing
allegation affidavit was conclusory in inverse condemnation suit). As quoted
above, we conclude that Dr. Davey set forth sufficient facts to support his
statement of the standard of care as well as his conclusion that Woodridge violated
the standard of care by having only a single staff person present when Ms. Robles
fell. See Chava v. Hubbard, No. 14-17-00158-CV, 2018 WL 1918462, at * 8 (Tex.
App.—Houston [14th Dist.] Apr. 24, 2018, no pet.) (mem. op.) (rejecting
defendant doctor’s argument that medical expert’s report was conclusory). We
also reject Woodridge’s argument that Dr. Davey’s report is conclusory because he
changed, without explanation, his statement of the standard of care regarding the
number of staff persons required for patient transfers such as the one at issue here.
(BR23-4) Having reviewed each of Dr. Davey’s expert reports, we conclude that


                                            12
he did not change his statement of the standard of care regarding the two-staff-
person requirement because it was included in each of his reports found in the
appellate record. In addition, Dr. Davey adequately explained that he was able to
specifically opine in his third amended report that Woodridge breached the
standard of care by not having two staff persons performing the transfer of Ms.
Robles because he had received additional information, “the affidavit from one of
Ms. Robles’ family members.”

       Finally, Woodridge suggests Dr. Davey’s report is deficient because it
misstates the standard of care, or it creates an onerous burden on entities such as
itself. But, the issue at this stage of the litigation is not the correctness of Dr.
Davey’s report or whether the standard of care at issue is onerous. See Miller v.
JSC Lake Highlands Operations, LP, 536 S.W.3d 510, 516 (Tex. 2017) (stating
that “[t]he court of appeals’ real concern appears to be the believability of Dr.
Albright’s articulated standards of care, not the manner in which she stated them.
Our inquiry is not so exacting.”); Methodist Hosp. v. Shepherd-Sherman, 296
S.W.3d 193, 200 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (holding fact
that evidence later proves expert wrong does not provide basis for holding report
insufficient).

       We conclude that Dr. Davey’s report adequately addresses at least one
theory of liability against Woodridge: Woodridge breached the standard of care
requiring the use of at least two staff persons to carry out a patient transfer such as
the one at issue here and that this breach proximately caused harm to Ms. Robles.
That is all that is required for the case to proceed at this stage of the litigation.
Methodist Hosp. v. Addison, 574 S.W.3d 490, 502 (Tex. App.—Houston [14th
Dist.] 2018, no pet.).   Keeping in mind the low threshold that a section 74.351
medical expert report must cross and the report is simply a preliminary method to

                                          13
show that a plaintiff has a viable cause of action that is not frivolous or without
expert support, we hold that the trial court abused its discretion when it dismissed
appellants’ claims against Woodridge.         See Harvey v. Kindred Healthcare
Operating, Inc., 578 S.W.3d 638, 654 (Tex. App.—Houston [14th Dist.] 2019, no
pet.) (concluding trial court abused discretion when it granted motion to dismiss
because plaintiff’s medical expert report met expert report requirements found in
section 74.351). We therefore sustain appellants’ first issue on appeal.

                                   CONCLUSION

      Having sustained appellants’ first issue on appeal, we reverse the trial
court’s order dismissing appellants’ lawsuit and remand the case to the trial court
for further proceedings.




                                       /s/    Jerry Zimmerer
                                              Justice



Panel consists of Justices Wise, Zimmerer, and Spain.




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