      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00607-CV



                  Austin Heart, P.A. and David J. Kessler, M.D., Appellants

                                                  v.

                       Christian L. Webb and Marilou Webb, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
        NO. D-1-GN-06-000376, HONORABLE PAUL DAVIS, JUDGE PRESIDING



                                           OPINION


               Austin Heart, P.A. and David J. Kessler, M.D. appeal the district court’s order

denying their motion to dismiss Christian and Marilou Webb’s medical malpractice claims. Austin

Heart and Dr. Kessler contend that the expert report served on them pursuant to civil practice and

remedies code section 74.351 did not comply with the statute because it did not sufficiently identify

either Austin Heart or Dr. Kessler as the parties responsible for the alleged breach of the standard

of care or the cause of the alleged injury to Mr. Webb. See Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351 (West 2005 & Supp. 2006). We agree that the plaintiffs’ expert report was deficient and

that the district court erred in denying the motion to dismiss. However, we are of the view that the

cure provisions of section 74.351(c) are designed to allow the plaintiffs an opportunity to address

and correct the defect. Consequently, we reverse the district court’s order denying the motion to

dismiss and remand this cause to the district court to consider whether a 30-day extension of the

deadline for serving the report to allow the plaintiffs to address the deficiency is appropriate.
               The Webbs sued Austin Heart and Dr. Kessler in January of 2006 alleging that

Dr. Kessler failed to “diagnose and treat the medical condition which caused [Mr. Webb’s] severe

palpitations and resulting associated health conditions.” The palpitations and other symptoms

described by the Webbs were related to Mr. Webb’s pacemaker. On May 31, 2006, the Webbs filed

and served the expert report and curriculum vitae of Dr. Alan E. Cororve pursuant to the

requirements of section 74.351 of the civil practice and remedies code setting forth Dr. Cororve’s

opinions regarding Mr. Webb’s treatment for his problems with his pacemaker. Austin Heart and

Dr. Kessler filed a motion to dismiss on June 21, 2006, claiming that Dr. Cororve’s report did not

identify either Dr. Kessler or Austin Heart as the parties responsible for breaching the standard of

care or causing Mr. Webb injury and, therefore, the report was not a timely report as to them. In

response, the Webbs claimed that the report was sufficient as written and, in the alternative, filed a

motion for a 30-day extension to cure in the event the court found the report deficient.

               The district court initially granted the motion to dismiss on August 22, 2006, and did

not grant a 30-day extension to allow the plaintiffs to attempt to cure the deficiency. The Webbs

filed a motion for rehearing and a motion for new trial on September 15, 2006, arguing that the court

had misinterpreted case law relating to what constitutes a sufficient report under section 74.351 and

that Dr. Cororve’s report was sufficient. They also re-urged their request for a 30-day extension to

cure in the event the court denied their motion for rehearing. The district court then reversed its

original ruling, granted the motion for rehearing, and entered an order denying the motion to dismiss.

This appeal followed.

               Section 74.351 requires a claimant pursuing a health care liability claim to serve one

or more expert reports on each party no later than the 120th day after the filing of the original


                                                  2
petition. Id. § 74.351(a). The expert report must provide “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 or health care provider failed to meet the standards, and the causal

relationship between that failure and the injury, harm, or damages claimed.” Id. § 74.351(r)(6). A

court shall grant a motion challenging the adequacy of a report only if the report “does not represent

an objective good faith effort to comply” with the definition of “expert report” in the statute. Id.

§ 74.351(l). To constitute a good faith effort, the report must provide enough information to fulfill

two purposes: (1) it must inform the defendant of the specific conduct the plaintiff has called into

question, and (2) it must provide a basis for the trial court to conclude that the claims have merit.

Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (citing American Transitional Care

Ctrs, Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001)).

                The Texas Supreme Court has also stated that a report need not marshal all of the

plaintiff’s proof, but it must include the expert’s opinion on each of the elements identified in section

74.351. Palacios, 46 S.W.3d at 878. A report cannot merely state the expert’s conclusions about

the statutory elements. Id. at 879. “Rather, the expert must explain the basis of his statements to

link his conclusions to the facts.” Bowie Memorial, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998

S.W.2d 882, 890 (Tex. 1999)). In addition, since the statute focuses on what is required in the

report, the only information relevant to determining whether a report complies with the statute is

“within the four corners of the document.” Palacios, 46 S.W.3d at 878. This requirement precludes

a court from filling gaps in a report by drawing inferences or guessing as to what the expert likely

meant or intended. See Bowie Memorial, 79 S.W.3d at 53 (“The report must include the required

information within its four corners.”); see also Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859


                                                   3
(Tex. App.—Houston [1st Dist.] 2006, no pet.).

                We review a district court’s ruling on a motion to dismiss under section 74.351 for

an abuse of discretion. Palacios, 46 S.W.3d at 877-78. A trial court abuses its discretion when it

acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles.

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A trial court does not

abuse its discretion simply because it may decide a matter within its discretion differently than an

appellate court. Id. at 42. However, a trial court has no discretion in determining what the law is

or applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). A clear failure

by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Id.

                In a single issue, Austin Heart and Dr. Kessler argue that section 74.351(b) mandates

dismissal of the Webbs’ lawsuit. Their argument is straightforward: Read literally, without any

inferences or reliance on information outside of its four corners, Dr. Cororve’s report does not

identify either Dr. Kessler or Austin Heart as having breached the standard of care or having caused

Mr. Webb injury. The Webbs respond that, while the sections of Dr. Cororve’s report relating to the

breach of the standard of care and causation do not identify any specific physicians, the meaning of

the report read as a whole is apparent and reveals that Dr. Cororve is referring to Mr. Webb’s

treatment by Dr. Kessler.

                Dr.   Cororve’s    two    and   one-half    page   report   is   divided   into   five

sections—“Qualifications,” “Materials Reviewed and Background,” “Standard of Care,” “Standard

of care not met,” and “Causation.” In the section titled Materials Reviewed and Background,

Dr. Cororve lists the various medical records he reviewed.1 He then sets out selected portions of


       1
           These included records of five physicians, three hospitals, and a clinic.

                                                  4
these records detailing the relevant aspects of Mr. Webb’s history of treatment for atrial fibrillation

and palpitations over a period of nearly four years beginning with the placement of his pacemaker

in November 2001. This review of Mr. Webb’s treatment history includes a number of references

to Dr. Kessler’s office notes, comments by Dr. Kessler in those notes, complaints by Mr. Webb

contained in the notes, a reference to the office notes of a Dr. George Rodgers, an email from

Mr. Webb to Dr. Kessler, a response email from Dr. Rodgers,2 and a general statement that

“[Mr. Webb] was seen by various physicians, including several electrophysiological consultations.”

The background section concludes with the observation that “[f]urther evaluation eventually

documented diaphragmatic stimulation and a new right ventricular lead was placed on September

7, 2005. The patient was subsequently discharged in excellent condition.”3 The background section

of the report offers no opinions regarding the appropriateness of the treatment or the responses of

the physicians to Mr. Webb’s complaints. It is strictly a recitation of historical material contained

in the medical records reviewed by Dr. Cororve.

               The report then concludes with the following three sections:


       Standard of Care

       The standard of care in a patient such as this requires more intensive investigation as
       to the source of a patient’s symptoms and subsequent corrective actions to ameliorate
       the problem. Attempts at adjusting the ventricular pacing outputs should routinely
       be attempted and would most likely have pinpointed the problem much earlier. This
       standard of care was not met.


       2
         In their brief, the Webbs state that the email response was actually by Dr. Kessler rather
than Dr. Rodgers and the reference in the report is a typographical error. However, there is no
evidence in the record on this point other than Dr. Cororve’s report.
       3
          The report does not mention who was responsible for the diagnosis of diaphragmatic
stimulation or placing a new right ventricular lead.

                                                  5
       Standard of care not met

       The diagnostic and corrective action eventually taken, specifically the increase in the
       ventricular pacing output, should have been implemented much sooner.

       Causation

       Had the corrective action described occurred, Mr. Webb would not have undergone
       the physical and mental problem(s) he had and could have continued his normal
       lifestyle much earlier than he did.


               Dr. Kessler and Austin Heart point to these sections and argue that, while they may

articulate an opinion on the breach of the standard of care and on causation, the sections do not

identify Dr. Kessler as breaching the standard of care or causing injury.4 The Webbs concede that

these sections do not expressly mention Dr. Kessler. They argue, however, that the background

section of the report makes it clear Dr. Cororve’s opinions relate to Dr. Kessler because it is

primarily Dr. Kessler’s actions that are noted in the relevant history.5 Thus, they argue the report




       4
          Austin Heart, P.A. is alleged to be vicariously liable for the conduct of Dr. Kessler.
Dr. Cororve’s report notes at the outset that “[a]ny reference in this report to David J. Kessler, M.D.
refers to Dr. Kessler individually, and his employer, Austin Heart, P.A.” Consequently, for the
purposes of this appeal, the report must link Dr. Cororve’s opinions to the actions of Dr. Kessler.
       5
          The Webbs suggest that a tally of the number of times a physician is mentioned in a report
is significant. They note that Dr. Kessler’s name appears eleven times in Dr. Cororve’s report
(as opposed to three times for Dr. Rodgers and once for “various physicians”). They argue that this
could lead to a reasonable conclusion that the report must be about Dr. Kessler and his actions.
However, we are not persuaded that such a tally is relevant to the analysis. A physician may
be named in a report any number of times simply because he was intimately involved in the
treatment of a patient, yet the complaint may be with the conduct of a physician who saw the patient
only once and is mentioned in the report only once. The number of times a physician is mentioned
in a report, by itself, has little bearing on whether the opinions expressed in the report concern that
physician. What matters, of course, is how the physician is mentioned and what the report
communicates about that physician.

                                                  6
should be read to mean that the opinions in the standard of care and causation sections refer to the

actions and conduct of Dr. Kessler set out in the background section of the report.

                The problem with this argument is that it requires the reader to infer or make an

educated guess that Dr. Cororve is identifying Dr. Kessler as the physician who breached the

standard of care and caused injury. Had Dr. Cororve referenced only actions by Dr. Kessler in the

background section of his report, the link between Dr. Cororve’s opinions and the responsible

physician might be more apparent. However, Dr. Cororve also refers to actions taken by Dr. Rodgers

and makes a vague reference to Mr. Webb having been “seen by various physicians, including

several electrophysiological consultations” after he was treated by Dr. Kessler but before his

condition improved.6 There is nothing in the report that links Dr. Kessler to Dr. Cororve’s opinions

regarding the breach of the standard of care and causation any more than Dr. Rodgers or the other

“various physicians” referenced.

                The Webbs point out that (1) Dr. Kessler is the only defendant physician and (2) the

essence of Dr. Cororve’s opinions is that the breach of the standard of care was the failure of the

treating physicians, implicitly including Dr. Kessler, to properly adjust the ventricular pacing

outputs. However, that Dr. Kessler is the only defendant physician is not relevant to an analysis of

whether an expert report complies with section 74.351. The fact that he is the only defendant

physician and, therefore, very likely to be the subject of the report is outside the four corners of the

report. See Palacios, 46 S.W.3d at 878. It also does nothing to clarify to whom the opinions of the

expert supplying the report apply. The expert’s opinions are, of course, confined to the report and



        6
           It is not clear what the reference to “various physicians” and “electrophysiological
consultations” in the report means or is intended to communicate.

                                                   7
must tell the reader not only what conduct breached the standard of care, but whose conduct

breached the standard of care. The plaintiffs’ allegation that a particular physician was at fault does

not substitute for the requirement that they supply an expert report demonstrating that the expert is

of the same opinion.

               We also do not agree that the substance of Dr. Cororve’s opinions could only be

associated with the conduct of Dr. Kessler. The essence of Dr. Cororve’s opinion is that the

physicians who treated Mr. Webb should have adjusted his ventricular pacing outputs sooner and

the failure to do so was a breach of the standard of care. This opinion could apply or not apply

equally to Dr. Kessler, Dr. Rodgers, or the various unnamed physicians. The report must state, in

some manner, who breached the standard of care and who caused the alleged injury, and whether that

includes Dr. Kessler. In the words of the supreme court in Palacios, “the report must inform the

defendant of the specific conduct the plaintiff has called into question.” Palacios, 46 S.W.3d at 879.

This includes informing the defendant of the specific conduct in question of that defendant. See

Palacios, 46 S.W.3d at 878 (The statute requires, as to each defendant, a fair summary of the

expert’s opinions about the applicable standard of care, the manner in which the care failed to meet

that standard, and the causal relationship between the failure and the claimed injury).

               We are mindful that a report’s adequacy under section 74.351 does not depend on

whether the expert uses any particular magic words such as “the standard of care was breached by

Dr. Kessler.” See Bowie Memorial, 79 S.W.3d at 53. However, the report must communicate in

some fashion—within its four corners—how the care rendered by the physician failed to meet the

applicable standard of care and the causal relationship between that failure and the injury suffered

by the claimant. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). We recognize that this


                                                  8
information could be communicated in a number of ways and it could be communicated in sections

of a report other than sections titled “Standard of Care” or “Causation.” The form of the report and

the location of the information in the report are not dispositive. However, in this case, Dr. Cororve’s

report is silent as to whether a single physician, multiple physicians, or all physicians mentioned in

the report failed to meet the standard of care and caused injury to Mr. Webb. It simply does not state

that the care rendered by Dr. Kessler failed to meet applicable standards and caused injury.

                While we are of the view that Dr. Cororve’s report is deficient under section 74.351

because it requires the reader to make an educated guess regarding an essential element, we are also

aware that the defect might well be curable. The tenor of Dr. Cororve’s report, coupled with the fact

that there is only one physician defendant, makes it quite likely that Dr. Cororve intended to opine

that Dr. Kessler breached the standard of care and caused injury even though the report did not

contain that opinion. The report’s failure on this point is the kind of defect that the cure provisions

of section 74.351(c) were designed to address. Since the district court ultimately found the report

to be sufficient, the court did not consider whether a 30-day extension of the report deadline to allow

the Webbs to attempt to cure a defect would be appropriate. In light of our ruling that the report does

contain a defect, we believe consideration by the trial court of the Webbs’ request for an extension

to attempt to cure the defect is warranted.

                Austin Heart and Dr. Kessler argue that Garcia v. Marichalar, 185 S.W.3d 70

(Tex. App.—San Antonio 2006, no pet.), supports the proposition that an expert report that

references multiple health care providers but fails to delineate the standard of care, breach and causal

connection as to specific, individual defendants is tantamount to no report at all with respect to those

defendants. They then posit that since Dr. Cororve’s report should be considered no report at all as


                                                   9
to Dr. Kessler, the court has no discretion but to dismiss the plaintiffs’ claims with prejudice. See

Jernigan v. Langley, 195 S.W.3d 91, 94 (Tex. 2006); Marichalar, 185 S.W.3d at 73-74. This

overstates the holding in Garcia. The physician in Garcia was not mentioned in the report at all.

There was literally nothing in the report that related to the physician in any way. Thus, the report

was no report as to him. The Garcia court then held that this was a situation where no expert report

was timely filed with respect to the physician in question, precluding the trial court from considering

an extension to cure because there was no timely report to cure. 185 S.W.3d at 74 (trial court had

no authority to allow a cure period for a nonexistent report).

                A closer case is Jernigan v. Langley, 195 S.W.3d 91 (Tex. 2006). In Jernigan, the

supreme court noted that a mere “passing reference” to a physician in a report, without explanation

of how the physician breached the standard of care or caused the injury, would not constitute a

sufficient report. 195 S.W.3d at 94. The only reference to Dr. Jernigan in the report was “[a]t 4:30

p.m. [John Langley’s] case was discussed with Dr. Jernigan and at 4:50 p.m. a lactulose enema was

ordered.” The expert’s opinion on breach of the standard of care had to do with the failure to

examine certain x-rays. The report did not link Dr. Jernigan or the referenced discussion with

Dr. Jernigan to a breach of the standard of care or to the failure to examine x-rays in any way. It

made no other mention of him or what he did at all. The supreme court noted that the single

reference to Dr. Jernigan in the report was so oblique that there was no connection at all between the

reference to him and the expert’s opinions regarding the standard of care and causation. It affirmed

the trial court’s dismissal of the lawsuit based on the insufficiency of the report, stating that “the trial

court had no discretion but to conclude, as it did here, that Langley’s claims against Dr. Jernigan

must be dismissed.” Id.


                                                    10
                The report in Jernigan, as in Garcia, amounted to no report at all as to Dr. Jernigan

and warranted dismissal for failure to serve a timely report. There was no discretion for the court

to grant an extension to cure because there was no timely report—with respect to Dr. Jernigan—to

cure.7 Any attempt by the plaintiffs to “cure” the reports in Jernigan and Garcia would, in effect,

have been to create and serve new reports—that did not exist at all within the time period for serving

reports—with respect to the physicians in question in each case. This is conceptually no different

from the situation where a plaintiff simply missed the deadline for serving a report.

                Jernigan and Garcia differ from this case in crucial respects. Here, a timely

report plainly discusses the conduct of the physician in question and the report discusses opinions

on the standard of care and causation that could be linked to the conduct of the physician set out in

the report, but simply are not. The report is not deficient because it does not relate to Dr. Kessler

at all. It is deficient because the link between Dr. Kessler’s conduct and the expert’s conclusions is

not expressly stated. The report in this case is, therefore, some report as to Dr. Kessler (among

others), but it is not sufficient to meet all of the requirements of section 74.531. It is an example

of what section 74.351(c) refers to as a report that “has not been served within the [120-day period

for serving reports] because elements of the report are found deficient.” Tex. Civ. Prac. &


        7
          Jernigan interpreted a prior version of the statute that had a different standard for granting
an extension to cure. Under the previous iteration of the statute, the trial court could grant an
extension only if it found that the failure to comply with the statute was “not intentional or the result
of conscious indifference but was the result of an accident or mistake.” See former Tex. Rev. Civ.
Stat. Ann. art. 4590i, § 13.01(g) repealed by Acts 2003, 78th Leg., ch. 204, § 10.09, eff. Sept. 1,
2003. The Jernigan opinion does not discuss the application of this standard, the trial court’s failure
to grant an extension under this standard, or whether the trial court could have considered such an
extension if it had made such findings. Thus, the Jernigan opinion is distinguishable from this case
on this basis alone. However, even if the trial court’s discretion to dismiss claims under either
version of the statute is viewed as the same, the expert report in Jernigan would still constitute “no
report” for the purposes of dismissal under either version of the statute.

                                                   11
Rem. Code Ann. § 74.351(c). In such a circumstance, section 74.351(c) grants the trial court

discretion to allow a 30-day extension of the deadline “in order to cure the deficiency.” Id. Jernigan

and Garcia cannot be read to mean that any deficiency in a report requires dismissal without the

possibility of an extension to cure because that would mean section 74.351(c) has no possible

application and is superfluous. Section 74.351(c) contemplates that there are circumstances where

a timely report will be deficient, but the deficiency can be cured. To be consistent with the statute,

Jernigan and Garcia must be read to allow for at least some situations where a timely report is

deficient, but the trial court should consider whether the deficiency is such that it warrants allowing

a cure period.8 Id.


        8
           The dissent argues that by remanding to allow the trial court to consider whether a section
74.351(c) extension is appropriate we are granting Dr. Kessler and Austin Heart more relief than they
requested or are entitled to. The dissent’s theory is that there is a distinction under section 74.351
between (1) seeking dismissal on the basis that no report was served and (2) seeking dismissal on
the basis that a report was served, but it does not meet the requirements of the statute and is deficient.
According to the dissent, if a defendant seeks dismissal only on the basis that no report was served,
then dismissal is not appropriate if the court finds that a report, no matter how deficient, was served.
There are two problems with this theory.

          First, the dismissal mechanism of section 74.351 does not work the way the dissent
suggests. Under section 74.351, a claimant must serve an “expert report,” as defined in the statute,
or be subject to dismissal. If a claimant does not serve a report that complies with the statutory
requirements, then the claimant has not served an “expert report” as defined in the statute. Whether
a claimant actually fails to serve a report at all or serves a deficient report the effect under section
74.351(b) is the same—the claimant has failed to serve the required “expert report” and dismissal
is the remedy. However, section 74.351(c) provides a potential cure period for situations where
the claimant has served a report, but the report does not constitute the required “expert report”
because “elements of the report are found deficient.” The claimant then has an opportunity to fix
the defect in the report that was served. If there is a failure to cure the defect by the extended
deadline, then dismissal is mandatory because the claimant has failed to serve an “expert report” as
defined in the statute.

        While section 74.351(b) does not distinguish between a complete failure to serve a report and
the failure to serve a complying report, there is a distinction between the two for the purposes of
74.351(c). When a claimant fails to serve a report at all, section 74.351(c) does not provide a basis

                                                   12
                We are of the opinion that the report in this case falls into that category. It was served

timely, it makes more than a passing reference to Dr. Kessler, and it notes conduct by Dr. Kessler

that could be linked to the expert’s conclusions regarding the breach of the standard of care and

causation. It is deficient only because it does not expressly make the link between the expert’s

conclusions and the referenced conduct by Dr. Kessler. If the expert is of the opinion that

Dr. Kessler’s conduct breached the standard of care and caused injury, he will not have to generate

a new, previously nonexistent report. He will simply have to add the link between his already stated


for the trial court to grant any extension of the deadline for serving a report. Consequently, dismissal
is mandatory without any cure period. When a claimant serves a report, but it is deficient, section
74.351(c) gives the trial court the discretion to grant an extension to cure. Regardless of whether a
claimant has failed to serve a report at all or has served a deficient report, the statutory basis of the
motion to dismiss by a defendant is the same—the claimant has failed to serve an “expert report” as
required by section 74.351(b). The fact that the claimant who files a deficient report may request
and receive an extension of time to cure the deficiencies does not alter the nature of the defendant’s
motion to dismiss. The motion to dismiss is on the ground that the plaintiff has failed to serve an
“expert report.”

        Second, the defendants in this case did request dismissal on the basis that, while the Webbs
had served a report that mentioned Dr. Kessler, the report “fails to address the standard of care
applicable to Dr. Kessler, the breach of the standard or any alleged causal link.” This is an allegation
that the report served was deficient. The defendants acknowledge that a report was served and that
the report addresses conduct of Dr. Kessler, but they claim it is deficient in failing to address
the statutorily required elements. They are aware that section 74.351(c) grants the trial court some
discretion in allowing an extension to cure certain deficient reports. But, they argue that the report
in this case is so deficient that it should be viewed as “no report,” requiring dismissal rather
than remand for consideration of an extension period. By alleging that the deficiency is severe
enough to constitute “no report” the defendants are trying to avoid the possibility of a cure period.
They are not altering their claim that the report they received is deficient and will require dismissal
if not corrected.

        We have concluded that the report is deficient, but not so deficient as to constitute “no
report.” Therefore, our options are (1) reverse the trial court order denying the motion to dismiss
and render judgment of dismissal or (2) reverse the trial court order and remand for consideration
of whether an extension should be granted to give the plaintiffs an opportunity to attempt to cure.
Remanding for the case to proceed on its merits, even though we agree with the appellants that the
report is deficient, is not an option.

                                                   13
conclusions and the already referenced conduct of Dr. Kessler. Therefore, the circumstances here

are not similar to the situation where a plaintiff simply has missed the deadline for serving a report

with respect to the conduct of a physician.

               We reverse the district court’s order denying the motion to dismiss filed by Austin

Heart, P.A. and Dr. Kessler and remand this cause for further proceedings.




                                               __________________________________________

                                               G. Alan Waldrop, Justice

Before Justices Patterson, Pemberton and Waldrop;
       Dissenting Opinion by Justice Patterson

Reversed and Remanded

Filed: May 9, 2007




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