                                                                             FILED
                                                                       Jul 09 2020, 11:51 am

                                                                             CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court

                              IN THE

      Indiana Supreme Court
                 Supreme Court Case No. 20S-CT-109

Tammi Clark, as personal representative of the Estate
           of Kandace Pyles, deceased,
                           Appellant/Plaintiff,

                                   –v–

                      Samer Mattar, M.D.,
                           Appellee/Defendant.


              Argued: May 14, 2020 | Decided: July 9, 2020

                 Appeal from the Marion Superior Court
                        No. 49D11-1601-CT-3080
                   The Honorable John Hanley, Judge

        On Petition to Transfer from the Indiana Court of Appeals
                             No. 19A-CT-380



                        Opinion by Justice David
               Chief Justice Rush and Justice Goff concur.
 Justice Massa concurs in part and dissents in part with separate opinion.
             Justice Slaughter dissents with separate opinion.
David, Justice.

   At issue in this case is whether a juror should have been struck for
cause based on bias, necessitating a new trial where the juror stated he did
not want to serve as a juror, had a favorable impression of doctors, stated
repeatedly that he could not and would not be able to assess noneconomic
damages and absolutely no rehabilitation with regard to the damages
issue occurred. Under the facts and circumstances of this case, we find
that the juror should have been struck for cause and that there was
prejudice because the party objecting to the juror was forced to exhaust
her last peremptory challenge and accept an objectionable juror.
Therefore, a new trial is appropriate.


Facts and Procedural History
   Kandace Pyles died following complications as a result of her bariatric
surgery. Her estate brought a negligence claim against various medical
providers involved including Dr. Mattar. (The others were dismissed
prior to trial.) The medical review panel issued a unanimous opinion
concluding that Dr. Mattar failed to comply with the appropriate standard
of care and that this conduct was a factor of the resultant damages.

   During trial, issues arose with one of the prospective jurors, Dennis
Miller. That is, Miller indicated repeatedly that he did not want to serve as
a juror and further, that he didn’t think he should have to or would be
able to put a dollar amount to non-economic damages. Specifically, the
following exchange occurred:

      [Miller]: So, we have to determine the dollar amount?

      [Clark’s Trial Counsel]: Yes, sir. Assuming there is liability, you
      would have to determine the dollar amount.

      [Miller]: I don’t know if I want any part of that.

      [Clark’s Trial Counsel]: Okay. I’m going to explain. I appreciate
      your candor. Tell me why you are feeling that way.




Indiana Supreme Court | Case No. 20S-CT-109| July 9, 2020            Page 2 of 12
      [Miller]: I’m just not sure. I just—I don’t think it’s my
      responsibility to determine the dollar amount.

      [Clark’s Trial Counsel]: Okay. So, let me ask this. The Judge is
      going to give you instructions, and assuming that you found
      liability, and you were satisfied by the preponderance of the
      evidence that there was liability for this, you are also going to
      have to decide damages. Are you telling me that you don’t feel
      that you could fulfill your duty on that second part of this?

      [Miller]: I want no part of it.

      [Clark’s Trial Counsel]: Okay, and why?

      [Miller]: I just don’t feel it is right. I don’t think I should have to
      do that.

      [Clark’s Trial Counsel]: Okay. Would you be able to take your
      oath as a juror on that?

      [Miller]: Well, I’m telling you the truth now.

      [Clark’s Trial Counsel]: Okay. No, I understand that. The
      reason I’m asking you is, as the Judge said, you know, getting
      rid of somebody as a juror for cause requires a very heavy
      burden. So, I’m asking you, if the Judge asked or the other
      attorney asked you, are you telling me that you can’t sit on a
      case where you are going to be asked to render a verdict—

      [Miller]: —Based on that question I have to say, no, I can’t.

Tr. Vol. II at 17–18. And then:

      [Miller]: Are you asking the same question again?

      [Clark’s Trial Counsel]: Well, kind of. I mean, I know, I got
      your view. I take it that you just don’t want to have anything to
      do with—

      [Miller]: —As far as whether he performed malpractice or


Indiana Supreme Court | Case No. 20S-CT-109| July 9, 2020                Page 3 of 12
      not, I can do that. But the money part—no.

Id. at 22.

   Clark moved to strike Miller for cause, and the trial court denied the
motion, finding that Miller was not biased against any particular party,
but rather that Miller was looking for a reason not to serve on the jury.
Clark preserved her objection for appeal and used her final peremptory
challenge on Miller. When asked who Clark would have stricken if not
for having to use the last peremptory on Miller, she identified Juror 3.

   The trial proceeded and the jury found that Dr. Mattar was not
negligent. Clark appealed. Our Court of Appeals reversed and remanded
for a new trial. Clark v. Mattar, 133 N.E.3d 220, 225 (Ind. Ct. App. 2019). It
found that Clark had established that the trial court abused its discretion
in denying her motion to strike Miller for cause because he was biased
against anyone seeking damages and further, that Clark demonstrated
prejudice by having to select an objectionable juror. Id. Dr. Mattar sought
transfer which we granted. Ind. Appellate Rule 58(A).


Standard of Review
   A trial court has discretion to grant or deny juror challenges for cause,
and its decision should be sustained on appeal “unless it is illogical or
arbitrary.” Merritt v. Evansville-Vanderburgh School Corp., 765 N.E.2d 1232,
1235 (Ind. 2002).


Discussion and Decision
   At issue is whether the trial court acted illogically or arbitrarily in
denying Clark’s for-cause challenge to juror Miller. Jury Rule 17 provides,
in relevant part, that “[t]he court shall sustain a challenge for cause if the
prospective juror … is biased or prejudiced for or against a party to the
case[.]” Ind. Jury Rule 17(a)(8). However, a prospective juror may be
“rehabilitated” through questioning that elicits whether the juror could set




Indiana Supreme Court | Case No. 20S-CT-109| July 9, 2020           Page 4 of 12
aside personal biases, beliefs, and prejudices and follow instructions as
given. Ind. Trial Rule 47(D).

   Here, the trial court found no bias. It determined that based on Miller’s
responses to voir dire and his jury questionnaire, he was just an unwilling
juror. Explaining the denial of Clark’s for-cause challenge to Miller, the
trial court stated:

      It’s worth noting that in response to the juror questionnaire that
      Mr. Miller submitted in addition to the fact that he said during
      voir dire that he had been a—that he had served on 6 criminal
      court juries over the span of some years. In his response … on
      the back of the questionnaire, please provide any additional
      information the court and the attorneys should know about
      you: I do not want to serve. That is what he wrote. So … my
      interpretation of that would be is he was looking for a reason
      not to serve and so he isn’t. Your objection is overruled.


Tr. Vol. II at 41.

   The trial court further stated:


      If you want to make a record, you can make a record but under
      Rule 17 of the Indiana Supreme Court[’]s Jury Rules it is not
      cause. He doesn't meet the qualifications for a challenge for
      cause. He is not disqualified under Rule 5. He hasn’t served as
      a juror in the same county within the previous 365 days. He is
      not unable to comprehend the evidence and instructions. He
      hasn't formed or expressed an opinion about the outcome of
      the case. He is not a member of a jury [that] previously
      considered this. He is not related to any of the parties,
      attorney[s] or witnesses. He doesn’t have a personal interest in
      the result of the trial. He isn’t biased or prejudiced against a
      party and he has not [been] subpoenaed as a witness. So, it is
      not cause. It is not cause.


Tr. Vol. II at 36-37.


Indiana Supreme Court | Case No. 20S-CT-109| July 9, 2020           Page 5 of 12
   Clark believes there was bias here, where Miller stated he could not put
a dollar amount to economic damages—something he would have to do
in order to assess damages for a plaintiff such as Clark. Dr. Mattar, for her
part, argues that this is not bias and as such the trial court did not err in
denying a for cause challenge. Clark responds that Miller was either
biased or lying to evade jury service and in either case, justice requires he
be removed for cause. We agree with Clark that Miller should have been
stricken for cause, albeit for slightly different reasons which we will
discuss herein.

   Jury Rule 17 and the “reluctant” juror

   Indiana’s appellate courts have not specifically addressed the issue of
the “reluctant juror” in the context of a challenge for bias under Jury Rule
17(a)(8). However, our Court of Appeals has previously upheld the use of
peremptory strikes (not for-cause ones) to strike these types of jurors. See,
e.g., Wallick v. Inman, 130 N.E.3d 643, 652-53 (Ind. Ct. App. 2019), trans. not
sought (affirming denial of for-cause challenges to juror who testified that
he “hated court,” was not fond of doctors and lawyers, and would find it
difficult to pay attention); Barnett v. State, 637 N.E.2d 826, 830-31 (Ind. Ct.
App. 1994), trans. not sought (affirming the peremptory strike of a juror
who stated that she did not want to serve on the jury and was
uncomfortable judging other people).

   The Court of Appeals has developed additional case law upholding for-
cause challenges when there is actual and specific bias that bears on the
case. See, e.g., Thompson v. Gerowitz, 944 N.E.2d 1 (Ind. Ct. App. 2011), trans.
denied, and Fratter v. Rice, 954 N.E.2d 497 (Ind. Ct. App. 2012), trans. denied. In
Thompson, the Court of Appeals reversed and remanded for a new trial when
a juror failed to disclose that she was “trying to go after a doctor for
negligence” after her husband’s recent death. 944 N.E.2d at 8-9. In Fratter, the
Court of Appeals held that the trial court acted within its discretion by
dismissing a seated juror who expressed that his experience with a missed
diagnosis would make it difficult for him to be impartial in a malpractice case
involving a similar set of circumstances. 954 N.E.2d at 503.

   This particular case seems to fall somewhere outside of case law
upholding use of peremptory strikes for reluctant jurors and cases where for-


Indiana Supreme Court | Case No. 20S-CT-109| July 9, 2020                Page 6 of 12
cause challenges were appropriate to strike those jurors with a specific bias.
On the one hand, Miller did not state he had some specific reason to be biased
against Clark or for Dr. Mattar, and there’s no evidence that he concealed any
information about his feelings that would bear on the case. On the other, he
stated on his juror questionnaire that he did not want to serve and during
voir dire, he said he would have trouble putting a dollar amount to non-
economic damages meaning that there’s a bias against the party seeking those
damages—here, Clark. Accordingly, we agree with our Court of Appeals
that there is bias here. This is not to say that every unwilling or reluctant
juror is biased as there are times these unwilling or reluctant jurors can be
rehabilitated, but under these circumstances, Miller stated repeatedly and
emphatically that he could not render a decision about noneconomic
damages.

    Further, rehabilitation of the juror did not occur here. That is, Miller
stated “I want no part of it” when asked about assigning an amount to
noneconomic damages and further, “no, I can’t” when asked if he could
sit on a jury tasked with rendering a verdict as to noneconomic damages.
Tr. Vol. II at 17–18. Counsel then moved on, asking if any of the other
jurors felt that way too. The trial court did not intervene. Perhaps with
further questions by counsel or the court, Miller could have been
rehabilitated, but he wasn’t.

    Because of the importance of a fair and impartial jury, we note that it is
the joint responsibility of both counsel and the trial court to undertake
some rehabilitation effort when an issue arises regarding whether a juror
is fit to serve. Here, Miller indicated several times that he could not and
would not be able to assess noneconomic damages but instead of counsel
or the court asking further questions, the voir dire process continued with
no rehabilitation effort. We think counsel and/or the court could have and
should have done more. If counsel or the court choose not to make a
rehabilitation attempt, that is their choice. However, if that occurs, we will
only have the statements of the prospective juror to rely on for appellate
review and we will not speculate about what the results of a rehabilitation
attempt might have been.




Indiana Supreme Court | Case No. 20S-CT-109| July 9, 2020             Page 7 of 12
   Further, Miller made other statements during voir dire that indicate he
may be biased against Clark and for Dr. Mattar. That is, Miller expressed
that he had generally positive feelings about doctors, given his experience
with his wife:


      [Miller]: I have a question. Now, I have a wife that has a lot of
      health issues [and] our experience with doctors [has] been very
      good. . .


      ***


      [Clark’s Trial Counsel]: Okay. Likewise, this is a case that
      involves medical malpractice. Is there anybody here, by virtue
      of the fact that this is a case that’s going to call into question the
      conduct of a doctor that says, hey, I’m not too sure I want to
      serve on this kind of a case. Is there anybody that feels that
      way?


      [Miller]: I told you how I felt.


      [Clark’s Trial Counsel]: No, no, no. So, would that – would this
      be difficult?


      [Miller]: It may. I guess, my wife, our experience with doctors
      has been very, very good.


      [Clark’s Trial Counsel]: And I’m sure a lot of people have had
      good experiences. So, let me ask this. You know, just as I am
      not wanting any kind of sympathy on behalf of my client,
      would you be able to treat a doctor just like anybody else that
      was called into court?


      [Miller]: I’ll try.


      [Clark’s Trial Counsel]: Okay, let me ask it this way. When we
      start off, and the Judge talked to you a little bit about this, the


Indiana Supreme Court | Case No. 20S-CT-109| July 9, 2020               Page 8 of 12
      burden of proof, it’s the greater weight of the evidence. Right
      now, the scales start off kind of even and [it] becomes our
      burden to put evidence over on this side. The other side gets to
      put counter evidence. We have to, ever so slightly, tip the
      scales. Right now, with what you are telling me, sir —


      [Miller]: I understand what you are saying.


      [Clark’s Trial Counsel]: Are the scales level right now?


      [Miller]: -They are level now.


      [Clark’s Trial Counsel]: . . .Would the fact that you have had
      these positive experiences in your background with doctors,
      would you let that tip the scales?


      [Miller]: I don’t think so. I don’t know.


      [Clark’s Trial Counsel]: Okay. Well, no and you are the only
      one I can ask about it and that’s why I’m asking the question.


      [Miller]: Well, I – probably. I don’t know. We’ll see.


      [Clark’s Trial Counsel]: Okay. Well, and so let me just take it a
      little further and I appreciate your candor on this.
      Unfortunately, we’ll have to make a decision now and that’s
      why am asking the question. Nobody knows your - knows you
      better than yourself. So, as we start off right now, you’re telling
      me that you think you are —


      [Miller]: - I try to be as fair as I can to everybody. I try.


      [Clark’s Trial Counsel]: Okay.


      [Miller]: It doesn’t always come out that way but I try.



Indiana Supreme Court | Case No. 20S-CT-109| July 9, 2020              Page 9 of 12
      [Clark’s Trial Counsel]: And so this is kind of where I was
      getting to was the idea of if you have anything in your
      background or bias that may be, in spite of your best efforts,
      you couldn’t - you can’t put aside. Do you feel like you’ve got
      something like that?


      [Miller]: I don’t know. I guess not.


Tr. Vol. II at 5-7.

  Here counsel did make efforts to rehabilitate Miller with regard to his
potential bias because of his positive feelings about doctors. Miller’s
statements about these feelings standing alone may not be enough to give
rise to a valid for-cause challenge in light of Miller’s assertion that he
would try to be fair and that the scales were even. However, his
responses were equivocal. When asked if he couldn’t put his positive
feeling aside, he responded: “I don’t know. I guess not.” Id. at 7.

   Miller stated on the juror questionnaire that he did not want to serve.
He made repeated, emphatic statements during voir dire about his
inability and unwillingness to assess and award noneconomic damages
for Clark. There was no rehabilitation effort about damages. He expressed
uncertainty about whether his positive feelings for doctors would make
him biased. All these things together demonstrate a potential bias against
Clark necessitating Miller be struck for cause. The trial court’s failure to
do so was illogical under these particular circumstances.

   Prejudice pursuant to Oswalt

   In Oswalt v. State, 19 N.E.3d 241, 248-49 (Ind. 2014), reh’g denied, this
Court held that an erroneous denial of a for-cause motion to strike a juror
is prejudicial when it requires a party to exhaust its peremptory
challenges and accept an objectionable or incompetent juror. See also
Whiting v. State, 969 N.E.2d 24, 30 (Ind. 2012); Merritt, 765 N.E.2d at 1235.
Under the facts of Oswalt, this Court ultimately held that the trial court
did not abuse its discretion in denying Oswalt’s for-cause challenges to
certain jurors and the issue there was whether Oswalt preserved appellate
review of his motions to strike. Here, the circumstances are different and


Indiana Supreme Court | Case No. 20S-CT-109| July 9, 2020          Page 10 of 12
necessitate a new trial because we find that the trial court should have
granted the for-cause challenged to juror Miller, who, based on the record,
was biased against Clark. Clark made a for-cause challenge and after the
court denied such request, Clark appropriately made a record and
identified which juror she would have struck (Juror 3) using her last
remaining peremptory. Because Clark was forced to exhaust her
peremptory challenges and accept an objectionable juror, granting a new
trial is mandated by the bright-line rule in Oswalt.

   Dr. Mattar is concerned about Oswalt giving a party an automatic right
to a new trial and argues that in some circumstances this may be a
disproportionate remedy. Here, Dr. Mattar points to the fact that the jury
found her not negligent and thus, the jury never had to consider
damages—the issue juror Miller would have struggled with. As such, she
argues there is no prejudice. But as Clark points out, the fact that the jury
didn’t find Dr. Mattar negligent is beside the point because had she not
had to use her peremptory on Miller and gotten to strike Juror 3 as she
wished, that one juror certainly could have caused the entire jury to come
to a different outcome. We agree with Clark that there is no way to
speculate what impact a single different juror may have had here and
there is no reason to do so.

   Further, we made clear in Oswalt that the very fact that an objectionable
juror serves is how a party is prejudiced. Oswalt, 19 N.E.3d at 249. We
also made clear that the trial court retains great discretion in deciding
whether a juror should be struck for cause. Indeed, in Oswalt, this Court
found the trial court did not abuse its discretion in denying the for-cause
challenge there and as such, a new trial was not granted. Id. at 250.
Because of the deference we give to our trial court judges to make
decisions about jurors, it is a rare circumstance that an appellate court will
reverse and grant a new trial.

   Here, because we find that the trial court’s decision to deny Clark’s for-
cause challenge was illogical under the circumstances and that Clark was
forced to exhaust her last peremptory on Miller instead of objectionable
Juror 3, a new trial is appropriate.




Indiana Supreme Court | Case No. 20S-CT-109| July 9, 2020           Page 11 of 12
Conclusion
   For the foregoing reasons, we reverse and remand for a new trial.


Rush, C.J. and Goff, J., concur.
Massa, J., concurs in part and dissents in part with separate opinion.
Slaughter, J., dissents with separate opinion.


ATTORNEYS FOR APPELLANT

Richard A. Cook
Jamison J. Allen
Yosha Cook & Tisch
Indianapolis, Indiana

Stephen B. Caplin
Stephen B. Caplin Professional Corporation
Indianapolis, Indiana

Richard L. Schultheis
Indianapolis, Indiana

ATTORNE YS FOR AM IC US C UR IA E,
I NDIANA T R IA L L AWYE R S ASSOCIATION

Sara A. Langer
Steven A. Langer
Langer and Langer
Valparaiso, Indiana


ATTORNE YS FOR APPEL LE E

Bryan H. Babb
Mary M. Ruth Feldhake
Sarah T. Parks
Bose McKinney & Evans, LLP
Indianapolis, Indiana




Indiana Supreme Court | Case No. 20S-CT-109| July 9, 2020       Page 12 of 12
Massa, J., concurring in part and dissenting in part.

   I concur in the Court’s holding that the juror should have been stricken
for cause. Where I part company is with the disproportionate remedy of a
new trial where the biased juror never served.

   I concurred only in result in Oswalt v. State because it did not order a
new trial. 19 N.E.3d 241 (Ind. 2014). My concern then and now is that error
by a trial court in failing to dismiss a juror for cause will always result in a
new trial, so long as the moving lawyer subsequently uses all her
peremptory strikes, then objects to the last juror seated without even
giving a reason, saying (even disingenuously), “I would have used a
peremptory on this juror but I’m all out.” Under the analogous federal
rule, the U.S. Supreme Court held, unanimously, a new trial is not
appropriate. See United States v. Martinez-Salazar, 528 U.S. 304, 315–17
(2000) (holding that the exercise of peremptory challenges “is not denied
or impaired when the defendant chooses to use a peremptory challenge
to remove a juror who should have been excused for cause” because
“choosing to remove [the juror] rather than taking his chances on appeal,
defendant did not lose a peremptory challenge . . . [instead] he used [it] in
line with a principal reason for peremptories: to help secure the
constitutional guarantee of trial by an impartial jury”) (emphasis added).
Our departure from the federal rule potentially forces a crime victim to
endure another trial—extracting too high a toll for a judge’s mistake
subsequently cured by a peremptory challenge. Consider the following
scenario in a rape or murder case where it takes, say, two days to seat a
jury:

     On Monday morning, the defense objects to Juror No. 1 for cause.
     The judge wrongly denies the motion. The lawyer uses a peremptory
     strike and the biased juror is not seated. The defendant is protected.
     By Tuesday afternoon, eleven jurors are seated, and the lawyer has
     one peremptory strike remaining. She uses it on the next juror up,
     and now she’s all out. One juror still must be seated, and under
     Oswalt, if the lawyer merely says, “I would have struck the next one,
     too, but I’m all out,” the Court of Appeals must order a new trial
      because of the judge’s error on Monday morning, without any
      prejudice shown and without any biased juror having actually
      served. Why would defense counsel not exhaust every peremptory
      challenge in every case where a judge has questionably denied a
      challenge for cause? The last juror seated could be exactly what
      defense counsel was looking for, but so long as she says, “I would
      have struck him,” she has a new trial in her pocket if the judge was
      wrong about Juror No. 1.

If this be so, one might ask why make counsel prolong voir dire when it
would be more efficient to simply order a new trial any time a judge is
reversed on a for-cause challenge? Given the risk, why would a court ever
deny a challenge for cause?

   This landmine has not detonated in any criminal case to come to our
attention since Oswalt. But it has gone off here in a civil matter. In time, it
will work an injustice to a victim of crime and to the people writ large.




Indiana Supreme Court | Case No. 20S-CT-109 | July 9, 2020              Page 2 of 2
Slaughter, J., dissenting.

   I respectfully dissent from the Court’s opinion that the trial judge erred
in denying the plaintiff’s motion to strike a prospective juror for cause.
The Court holds that denial of the motion was “illogical” because the
juror’s stated “inability and unwillingness to assess and award
noneconomic damages for [the plaintiff] … demonstrate a potential bias
against [the plaintiff] necessitating [that the juror] be struck for cause.”

   The standard of review here is key. Had the trial judge ruled the other
way, finding that the prospective juror was biased and that Tammi Clark
was entitled to a for-cause strike, I likewise would have deferred to that
finding and held that the judge did not abuse his discretion. The fact is,
the record contains evidence supporting either finding. There is, to be
sure, evidence supporting what the Court concludes today—that the
disputed juror was biased against Clark because of his unwillingness to
consider an element of damages Clark was seeking. But that is not the
only permissible inference from this record. An alternative inference is
what the trial judge found, which is that the juror’s statements that he
could not render a verdict on noneconomic damages were pretextual
because his true sentiment was that he did not want to be there. I cannot
agree with the Court’s conclusion today that it was “illogical” for the trial
judge, who saw counsel’s colloquy with the prospective juror first-hand,
to rule as he did. Indeed, the juror’s own questionnaire recited what the
trial judge found, which is that he did not want to serve as a juror.

   The Court’s failure to give deference to that finding prompts a related
concern. It threatens to upend the careful balance we struck in Oswalt v.
State, 19 N.E.3d 241 (Ind. 2014)—the balance between, on the one hand,
the generous (some say “disproportionate”) remedy of a new trial for a
jury-selection error and, on the other, a reviewing court’s overwhelming
deference to the trial court’s “great discretion” when ruling on motions to
strike prospective jurors for cause. To be clear, I do not necessarily object
to our bright-line rule requiring a new trial for such errors. To the
contrary, I tend to believe our case law would benefit from more bright-
line rules, not fewer. But an essential complement to the extreme remedy
of a new trial is to ensure that a reviewing court afford the trial judge
“substantial deference” by finding error “only if the decision is illogical or
arbitrary.” Id. at 245 (citation omitted). We afford trial judges broad
discretion when considering these “strike-for-cause” requests because of
the judges’ “unique position to observe and assess the demeanor of
prospective jurors as they answer the questions posed by counsel.” Id.
(cleaned up). Otherwise, without a deliberately high bar for finding
reversible error, we face the real prospect of ordering new trials in myriad
situations where the likely prejudice to the wronged party is doubtful—a
prospect that would undermine Oswalt’s expressed interest in “judicial
economy”. Id. at 246, 248. Granting a new trial in such circumstances
because of a jury-selection finding with which we disagree, despite our
duty to afford “substantial deference” to such findings, with no showing
of resulting prejudice, strikes me as highly uneconomic.

   I respectfully dissent.




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