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WHITLEY v. COMMONWEALTH, et al.



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WHITLEY

v.

COMMONWEALTH, et al.


November 3, 2000

Record No. 992394

Present: All the Justices

MARY L. WHITLEY, ADMINISTRATOR OF THE

ESTATE OF JOSEPH H. JENKINS, DECEASED

v.

COMMONWEALTH OF VIRGINIA, ET AL.


OPINION BY JUSTICE BARBARA MILANO KEENAN

FROM THE CIRCUIT COURT OF THE CITY OF
CHESAPEAKE

V. Thomas Forehand, Jr., Judge

In this appeal of a judgment entered in a
wrongful death action, we consider whether the trial court erred
in granting summary judgment for the defendants on the grounds of
collateral estoppel and sovereign immunity.

In March 1993, Mary L. Whitley, administrator
of the estate of Joseph H. Jenkins, filed a motion for judgment
against certain medical personnel (the individual defendants) at
St. Brides Correctional Center (St. Brides) and against the
Commonwealth. St. Brides is part of the Virginia Department of
Corrections and is operated and maintained by the Commonwealth.
Whitley alleged that the "gross negligence" and
"deliberate indifference" of the individual defendants,
acting within the scope of their employment, caused Jenkins’s
death while he was incarcerated at St. Brides. Whitley further
alleged that the Commonwealth also was liable for Jenkins’s death
under the Virginia Tort Claims Act (Tort Claims Act), Code
?? 8.01-195.1 through –195.9, which imposes limited
liability on the Commonwealth for "personal injury or death
caused by the negligent or wrongful act or omission of any
employee while acting within the scope of his employment under
circumstances where the Commonwealth . . ., if a
private person, would be liable to the claimant for such
. . . injury or death." Code ? 8.01-195.3.

According to the motion for judgment, Jenkins
was a mentally impaired person with an epileptic condition who
required constant medication to prevent the onset of seizures.
Jenkins was incarcerated in St. Brides from March 1988 until
April 1991, when he died as a result of a seizure. The motion for
judgment alleged that the individual defendants were grossly
negligent in allowing Jenkins’s medication levels to fall below
the therapeutic minimum amounts appropriate for his condition, by
failing to prescribe sufficient medication and to supervise
Jenkins’s receipt of the medication.

On the same date Whitley filed the circuit
court action, she filed another action against the individual
defendants in the United States District Court for the Eastern
District of Virginia (federal district court), alleging claims
under 42 U.S.C. ?? 1983, 1985, and 1986, and a wrongful
death claim under Va. Code ? 8.01-50. After dismissing the
wrongful death claim and the claims brought under 42 U.S.C.
?? 1985 and 1986, the federal district court granted
summary judgment for the individual defendants on the claim
brought under 42 U.S.C. ? 1983. Whitley v. Lewis (Whitley
I
), No. 2:93cv268 (E.D. Va. Oct. 6, 1993); Whitley v.
Lewis
(Whitley II), No. 2:93cv268 (E.D. Va. Jan. 20,
1994). The federal district court ruled that Whitley failed to
prove that the individual defendants acted with "deliberate
indifference" to Jenkins’s serious medical needs. Whitley
II
, at 8. The United States Court of Appeals for the Fourth
Circuit affirmed the federal district court’s judgment. Whitley
v. McWaters
, No. 94-1452 (4th Cir. Mar. 3, 1995).

In granting the individual defendants’ motion
for summary judgment, the federal district court made the
following factual determinations:

[T]he court concludes that the facts in the
instant case could not lead a reasonable jury to conclude that
any of the defendants acted with deliberate indifference to
Jenkin[s's] medical condition. With regard to Dr. Ibarra, the
record shows that he took active measures to monitor Jenkin[s's] condition. Dr. Ibarra monitored regular blood samples taken from
Jenkins, counseled him about the importance of taking his
medication and altered his regimen so as to make it easier for
Jenkins to follow. While Jenkins suffered several seizures and
showed low levels of medication in his blood, Dr. Ibarra
considered Jenkin[s's] condition to have been stable. [Footnote
omitted.] Dr. Ibarra further concluded that Jenkins had the
mental capacity to continue following his daily regimen. Given
Jenkin[s's] frequent visits for medical treatment, and his
medication ingestion ratio (over an 85% average during his three
years at St. Brides), such a conclusion does not appear to have
been the product of deliberate indifference. While the plaintiff
may disagree with Dr. Ibarra’s assessment and treatment of
Jenkins, such disagreement does not support a finding of
deliberate indifference. [Case citations omitted.]

With regard to the defendant nurses, the record
fails to support the plaintiff’s assertions that they acted with
deliberate indifference to Jenkin[s's] condition. The nurses['] primary contact with Jenkins occurred when they assisted Dr.
Ibarra (and other physicians) in treating Jenkins and when they
administered his medication at the pill window. Given the
nurses['] limited contact with Jenkins, and their agreement with
Dr. Ibarra that he was capable of following his
seizure-preventing regimen, the plaintiff has failed to come
forward with enough evidence to establish a triable issue of
deliberate indifference on their part.

Whitley II, at 8-9. In affirming the
federal district court’s judgment, the United States Court of
Appeals reached similar conclusions and held that the decedent
"received adequate medical care." Whitley v.
McWaters
, No. 94-1452, slip op. at 3.

In March 1994, Whitley obtained a nonsuit in
the original state court action and refiled the same action the
following day. In response, the individual defendants and the
Commonwealth filed pleas of sovereign immunity, collateral
estoppel, and res judicata, and moved for summary judgment on
those grounds.

In a letter opinion, the trial court determined
that the motion for summary judgment should be granted. The trial
court held that the motion for judgment stated a claim of
ordinary negligence, and concluded that since the federal
district court did not address whether the facts alleged
constituted ordinary negligence, Whitley was not precluded by
collateral estoppel from raising an ordinary negligence claim in
her motion for judgment. The trial court ultimately concluded
that the ordinary negligence claims against both the individual
defendants and the Commonwealth were barred by the doctrine of
sovereign immunity.

The trial court also held "that any claim
asserted by plaintiff for gross negligence . . . is
barred under the doctrine of collateral estoppel." According
to the trial court, under the doctrine of collateral estoppel,
the dismissal of the federal action precluded Whitley from
alleging gross negligence in the state court action. The trial
court entered final judgment dismissing the motion for judgment
against the individual defendants and the Commonwealth.

On appeal, Whitley first argues that her motion
for judgment encompasses claims of both gross negligence and
ordinary negligence. She asserts that the trial court erred in
holding that the doctrine of collateral estoppel barred her from
asserting a gross negligence claim against the individual
defendants. Whitley contends that the issue in the federal action
was whether the individual defendants were guilty of
"deliberate indifference" to Jenkins’s serious medical
needs under 42 U.S.C. ? 1983, rather than of gross
negligence. She argues that in order for collateral estoppel to
bar the present action against the individual defendants, the
federal district court must have adjudicated the "precise
same issue" presented in her motion for judgment.

Although we agree with Whitley that her motion
for judgment states a claim of gross negligence, we find no merit
in the balance of her argument because she has misconstrued the
doctrine of collateral estoppel. The fact that "reckless
indifference," as pled in support of the claim under 42
U.S.C. ? 1983, and "gross negligence" are
distinct causes of action does not affect application of the
doctrine of collateral estoppel. Unlike the doctrine of res
judicata, the doctrine of collateral estoppel does not turn upon
the issue whether a cause of action in a prior proceeding is the
same as a cause of action brought in a later proceeding. See
Bates v. Devers, 214 Va. 667, 670-71, 202 S.E.2d 917,
920-21 (1974).

The doctrine of collateral estoppel precludes
the same parties to a prior proceeding from litigating in a later
proceeding any issue of fact that actually was litigated and was
essential to the final judgment in the first proceeding. Glasco
v. Ballard
, 249 Va. 61, 64, 452 S.E.2d 854, 855 (1995); Bates
v. Devers
, 214 Va. at 671, 202 S.E.2d at 921. This doctrine
applies even when the later proceeding asserts a different claim
for relief. Glasco, 249 Va. at 64, 452 S.E.2d at 855; Pickeral
v. Federal Land Bank
, 177 Va. 743, 750-51, 15 S.E.2d 82, 85
(1941). However, before the doctrine of collateral estoppel may
be applied, four requirements must be met: (1) the parties to the
two proceedings must be the same; (2) the factual issue sought to
be litigated must have been actually litigated in the prior
proceeding; (3) the factual issue must have been essential to the
judgment rendered in the prior proceeding; and (4) the prior
proceeding must have resulted in a valid, final judgment against
the party to whom the doctrine is sought to be applied. Glasco,
249 Va. at 64, 452 S.E.2d at 855; Bates, 214 Va. at 671,
202 S.E.2d at 921.

In the present case, we conclude that all four
of these requirements have been met with regard to Whitley’s
gross negligence claim against the individual defendants. First,
the plaintiff and the individual defendants were parties to both
actions.

Second, we conclude that the factual issues
underlying Whitley’s state court claim of gross negligence,
regarding the medical care that the individual defendants
provided to Jenkins, were actually litigated in the federal
action. A claim of gross negligence, which involves the
"absence of slight diligence, or the want of even scant
care," will not lie if the defendant exercised some degree
of care with regard to the plaintiff. Colby v. Boyden, 241
Va. 125, 133, 400 S.E.2d 184, 189 (1991) (quoting Frazier
v. City of Norfolk
, 234 Va. 388, 393, 362 S.E.2d 688, 691
(1987)).

The federal district court’s resolution of the
factual issues regarding the care the defendants gave Jenkins
included the court’s findings that Dr. Ibarra actively monitored
Jenkins’s condition by reviewing his blood samples, counseling
him regarding the importance of taking his medication, and
assessing his capability of following a daily medication regimen.
The federal district court further found that Jenkins received
frequent medical treatment and achieved a "medication
ingestion ratio" of over 85% during his incarceration at St.
Brides.

With regard to the defendant nurses, the
federal district court found that the defendant nurses assisted
Dr. Ibarra and other staff physicians in their treatment of
Jenkins, monitored Jenkins’s medication, and concurred in Dr.
Ibarra’s assessment that Jenkins was capable of following his
prescribed medication regimen. Thus, the federal district court’s
findings show that the defendants exercised at least some degree
of care toward Jenkins.

Third, we conclude that these issues of fact
regarding the medical care rendered by Dr. Ibarra and the
defendant nurses were essential to the federal district court’s
judgment. In order to award summary judgment for the individual
defendants on Jenkins’s "reckless indifference" claim
under 42 U.S.C. ? 1983, the federal district court had
to find that the individual defendants’ actions were not so
grossly incompetent or inadequate as to shock the conscience or
be intolerable to fundamental fairness. See Adams v.
Poag
, 61 F.3d 1537, 1544 (11th Cir. 1995); Miltier v.
Beorn
, 896 F.2d 848, 851 (4th Cir. 1990); Rogers v. Evans,
792 F.2d 1052, 1058 (11th Cir. 1986). In this case, the factual
findings concerning the medical care rendered by the individual
defendants were essential to the federal district court’s
determination that Whitley "ha[d] failed to bring forth
sufficient evidence that could shock the conscience of a
reasonable jury and lead to a finding of deliberate
indifference." Whitley v. Lewis, No. 2:93cv268, at 9.

Fourth, we conclude that the federal district
court’s order awarding summary judgment for the individual
defendants on Whitley’s ? 1983 claim became a valid, final
judgment against Whitley, the party against whom the doctrine of
collateral estoppel is being applied in the present case. Thus,
we hold that the trial court did not err in ruling that the
doctrine of collateral estoppel barred Whitley’s claim of gross
negligence against the individual defendants.

The trial court also held that Whitley’s claim
of gross negligence against the Commonwealth was barred by the
doctrine of collateral estoppel. In reaching this result, the
trial court erroneously concluded that the parties to the state
and federal actions were the same. Although the individual
defendants were parties to the federal action, the Commonwealth
was not. Thus, the doctrine of collateral estoppel would not
apply directly to bar Whitley’s gross negligence action against
the Commonwealth. See Glasco, 249 Va. at 64, 452
S.E.2d at 855; Bates, 214 Va. at 671, 202 S.E.2d at 921.
However, the result that the trial court reached, holding that
the present gross negligence claim was barred against the
Commonwealth, is correct for the reason that collateral estoppel
barred the claim based on the Commonwealth’s privity with its
defendant employees.
[1] See Kesler v. Fentress, 223 Va. 14,
16-17, 286 S.E.2d 156, 157 (1982); Nero v. Ferris, 222 Va.
807, 813, 284 S.E.2d 828, 832 (1981).

The Commonwealth acts only through its
employees or through its agencies. See Lawhorne v.
Harlan
, 214 Va. 405, 407, 200 S.E.2d 569, 571 (1973); Sayers
v. Bullar
, 180 Va. 222, 227, 22 S.E.2d 9, 11 (1942). Any
liability of the Commonwealth under the Tort Claims Act rests
solely on a "negligent or wrongful act or omission of any
employee while acting within the scope of his employment under
circumstances where the Commonwealth . . ., if a
private person, would be liable to the claimant for such damage,
loss, injury, or death." Code ? 8.01-195.3. Thus, if
factual findings binding on a plaintiff through collateral
estoppel preclude, as a matter of law, a holding of gross
negligence against an employee of the Commonwealth, such a
holding is also precluded as a matter of law against the
Commonwealth.

Here, under the factual findings of the federal
district court, the medical care provided to Jenkins by the
individual defendants is, as a matter of law, insufficient to
support a claim of gross negligence against them. Because of the
Commonwealth’s identity of interest with its employees’ actions
in this case, the medical care provided to Jenkins by the
individual employees also is insufficient as a matter of law to
support a claim of gross negligence against the Commonwealth.
Accordingly, since the trial court reached the correct result for
the wrong reason, we will assign the correct reason and affirm
that result. Mitchem v. Counts, 259 Va. 179, 191, 523
S.E.2d 246, 253 (2000); Hartzell Fan, Inc. v. Waco, Inc.,
256 Va. 294, 303, 505 S.E.2d 196, 202 (1998).

Whitley next argues that the trial court erred
in sustaining the plea of sovereign immunity in favor of the
individual defendants, and in "concluding without evidence
or trial that the actions of the defendant Ibarra and other
individual medical defendants were not ministerial in
nature." However, since Whitley offers no argument in
support of this assignment of error with regard to Dr. Ibarra, we
do not consider that portion of the assignment of error. See
Rule 5:27; Atkisson v. Wexford Assocs., 254 Va. 449, 454
n.*, 493 S.E.2d 524, 527 n.* (1997); Quesinberry v.
Commonwealth
, 241 Va. 364, 370, 402 S.E.2d 218, 222, cert.
denied
, 502 U.S. 834 (1991). With regard to the defendant
nurses, Whitley argues that the trial court erred in concluding
that the medical treatment rendered by the nurses consisted of
discretionary, not ministerial, acts. Whitley asserts that the
nurses made "errors in transcription" that were
ministerial in nature and, thus, that these acts were excluded
from protection under the defense of sovereign immunity.

In response, the defendant nurses contend that
they established their entitlement to the protection of sovereign
immunity under the four-part test articulated in James v. Jane,
221 Va. 43, 282 S.E.2d 864 (1980). They argue that Whitley
incorrectly characterizes their actions as ministerial and state
that they were continually required to make multiple,
professional judgments in their evaluation, treatment, and care
of all inmates. The nurses assert that, among these judgments,
they were required to determine whether Jenkins’s condition
required further evaluation by Dr. Ibarra.

In deciding this issue, we first observe that
the Commonwealth and the defendant nurses have not assigned
cross-error to the trial court’s holding that Whitley’s motion
for judgment states a cause of action in ordinary negligence.
Therefore, that holding has become the law of this case and is
not before us in this appeal. See Pollard & Bagby,
Inc. v. Pierce Arrow, L.L.C.
, 258 Va. 524, 527-28, 521 S.E.2d
761, 763 (1999); Hill v. Hill, 227 Va. 569, 578, 318
S.E.2d 292, 297 (1984); Twin Lakes Mfg. Co. v. Coffey, 222
Va. 467, 474, 281 S.E.2d 864, 867 (1981).

When an employee of the Commonwealth is charged
with ordinary negligence and then claims the immunity of the
state, four factors must be considered in determining whether the
employee is entitled to sovereign immunity for those alleged acts
of ordinary negligence. Those factors are: (1) the function that
the employee was performing at the time of the alleged
negligence; (2) the extent of the state’s interest and
involvement in that function; (3) the degree of control and
direction exercised by the state over the employee; and (4)
whether the act performed involved the use of judgment and
discretion. Lohr v. Larsen, 246 Va. 81, 85, 431 S.E.2d
642, 644 (1993); James v. Jane, 221 Va. at 53, 282 S.E.2d
at 869.

Whitley’s assignment of error is limited to the
trial court’s determination that the defendant nurses’ acts were
discretionary, rather than ministerial, in nature. Her argument
rests entirely on the principle that a plea of sovereign immunity
will not be sustained unless the acts at issue involve judgment
and discretion necessary to the performance of a governmental
function. Heider v. Clemons, 241 Va. 143, 145, 400 S.E.2d
190, 191 (1991).

In reviewing Whitley’s claim, we are guided by
established principles. A plea of sovereign immunity is a
defensive plea presenting distinct issues of fact which, if
proved, create a bar to the plaintiff’s right of recovery. Tomlin
v. McKenzie
, 251 Va. 478, 480, 468 S.E.2d 882, 884 (1996). As
the moving party, the defendants bear the burden of proving those
issues of fact. Id. Generally, when no evidence is
presented on the plea, the trial court, and the appellate court
on review, must rely solely on the pleadings in resolving the
issues presented. Id.; see also Weichert Co. v.
First Commercial Bank
, 246 Va. 108, 109, 431 S.E.2d 308, 309
(1993). Here, however, the trial court also was entitled to
consider the factual findings of the federal district court,
which were binding on Whitley under the doctrine of collateral
estoppel.

In reviewing the record on the defendants’ plea
of sovereign immunity, we consider as true the facts alleged in
Whitley’s motion for judgment and bill of particulars. See
Tomlin, 251 Va. at 480, 468 S.E.2d at 884, Glascock v.
Laserna
, 247 Va. 108, 109, 439 S.E.2d 380, 380 (1994).
Whitley alleged in her motion for judgment that the defendant
nurses allowed Jenkins’s medication levels to fall below the
"required therapeutic minimums." Whitley alleged in her
bill of particulars that the nurses, among other things,
"transcribed from the chart the wrong dosage for Delantin
and Phenobarbital," "failed to compare and verify the
dosage for Jenkins['s] seizure medications," and
"prepared incorrect renewal prescriptions for Jenkins."
Whitley also alleged in her bill of particulars that the nurses
"misconstrued and misapplied" the physicians orders
"concerning the administration of Jenkins['s] seizure
medications," "failed to monitor" the medical
records, and "failed to schedule Jenkins to see Dr.
Ibarra" for periodic review of his seizure medications.

The federal district court found that the
defendant nurses’ "primary contact with Jenkins occurred
when they assisted Dr. Ibarra (and other physicians) in treating
Jenkins and when they administered his medication at the pill
window." The federal district court also found that the
nurses agreed "with Dr. Ibarra that [Jenkins] was capable of
following his seizure-preventing regimen."

Although the nurses’ acts described in this
record have some ministerial components, the acts themselves are
discretionary in nature and require the exercise of judgment when
considered in the context of the treatment rendered. The nursing
activities described in Whitley’s pleadings and the federal
district court’s findings of fact involve the provision of health
care to an inmate, in conjunction with physicians’ orders, that
required the nurses to administer, monitor, and assess the
effects of medication prescribed for treatment of a serious
medical condition. Thus, the record supports the trial court’s
conclusion that the nurses’ acts at issue required them to
exercise their judgment and discretion. Since Whitley does not
argue that the trial court otherwise misapplied the four-part
test of James v. Jane, we will uphold the trial court’s
ruling sustaining the plea of sovereign immunity in favor of the
individual defendants.

Whitley also argues that the trial court erred
in entering summary judgment in favor of the Commonwealth on the
claim of ordinary negligence based on the doctrine of sovereign
immunity. She notes that the trial court did not address in its
opinion letter the issue of the Commonwealth’s liability under
the Tort Claims Act for its employees’ acts of ordinary
negligence. Whitley contends that the plain language of the Act
waives the Commonwealth’s immunity for acts of ordinary
negligence committed by employees within the scope of their
employment.

In response, the Commonwealth argues that the
trial court properly entered summary judgment on its behalf. The
Commonwealth does not contest its limited liability under the
Tort Claims Act for injury or death caused by its employees’ acts
or omissions constituting ordinary negligence while the employees
were acting within the scope of their employment. Instead, the
Commonwealth asserts that Whitley’s ordinary negligence claim is
excluded by either of two exceptions to the Tort Claims Act.
First, the Commonwealth contends that this claim is subject to
the exception set forth in Code ? 8.01-195.3(4), which
precludes any claim "based upon an act or omission of an
officer, agent or employee of any agency of government in the
execution of a lawful order of any court." In support of its
position, the Commonwealth cites Baumgardner v. Southwestern
Virginia Mental Health Institute
, 247 Va. 486, 442 S.E.2d 400
(1994). We find no merit in the Commonwealth’s argument.

The order on which the Commonwealth relies is
the judgment order convicting Jenkins and committing him to the
custody of the Department of Corrections to serve the sentence
imposed on him. Thus, under the Commonwealth’s argument, any
inmate committed to the custody of the Department of Corrections
would be excluded as a matter of law from bringing any claim
against the Commonwealth otherwise authorized by the Tort Claims
Act, simply because a court lawfully has ordered that the inmate
be incarcerated. We conclude that the language of Code
? 8.01-195.3(4) does not provide such a sweeping exemption
to the Tort Claims Act.

Instead, this statutory exception addresses the
type of court order at issue in Baumgardner, in which the
decedent was admitted to Southwestern Virginia Mental Health
Institute (Southwestern) pursuant to a Civil Mental Temporary
Detention Order (detention order) for a maximum period of 48
hours for emergency medical evaluation and treatment. 247 Va. at
488, 442 S.E.2d at 401. The administrator of the decedent’s
estate alleged in his motion for judgment that employees of
Southwestern, which was controlled and maintained by the
Commonwealth, were negligent in failing to provide adequate
emergency and non-emergency medical care to the decedent, who
died from a cardiac arrhythmia. Id. at 487-88, 442 S.E.2d
at 400-01.

We held that the administrator’s negligence
claim was barred by Code ? 8.01-195.3(4), because the
allegedly negligent acts all occurred within the 48-hour period
while Southwestern and its employees lawfully were engaged in
executing the terms of the detention order. 247 Va. at 489-90,
442 S.E.2d at 402. Unlike the facts presented in Baumgardner,
the facts of the present case do not involve employees who were
implementing the directives of a court order to provide medical
evaluation and care at the time of the alleged acts of medical
negligence. Instead, the individual defendants at St. Brides were
providing medical care to Jenkins because he was an inmate of
that facility. Thus, the acts complained of did not occur
"in the execution of a lawful order of any court,"
within the meaning of Code ? 8.01-195.3(4).

Next, the Commonwealth contends that Whitley’s
ordinary negligence claim is precluded by Code
? 8.01-195.3(7). That provision excludes from coverage
under the Tort Claims Act "[a]ny claim by an inmate of a
state correctional facility," in which the claimant has not
filed an affidavit verifying that "he has exhausted his
remedies under the adult institutional inmate grievance
procedures promulgated by the Department of Corrections." Id.
We disagree with the Commonwealth’s argument.

The plain language of Code
? 8.01-195.3(7) applies to a "claim by an inmate of a
state correctional facility." Whitley, who is asserting a
wrongful death action based on the Commonwealth’s liability under
the Tort Claims Act, is not an inmate of a state correctional
facility. Further, nothing in the statutory language indicates
that a claim filed by an administrator of the estate of a
deceased inmate is subject to the affidavit requirement of this
exception. Thus, we hold that the Commonwealth failed to meet its
burden of proof in support of its plea of sovereign immunity, and
that the trial court erred in sustaining the plea and in
dismissing the claim of ordinary negligence against the
Commonwealth.

For these reasons, we will affirm in part, and
reverse in part, the trial court’s judgment and remand for trial
the claim of ordinary negligence brought against the Commonwealth
under the Tort Claims Act.

Affirmed in part,

reversed in part,

and remanded.

FOOTNOTES:

[1] In reaching this conclusion, we express no opinion
whether the Commonwealth has waived its common law immunity for
gross negligence claims under the Tort Claims Act. The trial
court did not rule on this issue and, in view of our holding
above, we need not address the issue here.

 

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