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Marcia L. Caronia, Linda Mcauley, and Arlene Feldman v. Philip Morris Usa

May 1, 2013


Appeal from a judgment of the United States District Court for the Eastern District of New York, Carol Bagley Amon, Judge, dismissing plaintiffs' claims against cigarette manufacturer for negligence, strict liability, breach of warranty, and medical monitoring with respect to increased risk of cancer, see 2010 WL 520558; 2011 WL 338425.

The opinion of the court was delivered by: Kearse, Circuit Judge:


Caronia v. Philip Morris USA

Argued: March 1, 2012

Before: KEARSE, LOHIER, and DRONEY, Circuit Judges.

AFFIRMED in part; CERTIFIED in part to the Court of Appeals for the State of New York.

Plaintiffs Marcia L. Caronia, Linda McAuley, and Arlene Feldman appeal from a judgment of the United States District Court for the Eastern District of New York, Carol Bagley Amon, Judge, dismissing their tort claims alleging negligence, strict products liability, and breach of the Uniform Commercial Code ("UCC") implied warranty of merchantability in connection with the design, manufacture, and sale by defendant Philip Morris USA, Inc. ("Philip Morris"), of cigarettes that allegedly contain unnecessarily dangerous levels of carcinogens when smoked by humans, and their independent equitable claim seeking to require Philip Morris to fund a program of medical monitoring for longtime smokers of Marlboro cigarettes who have not been diagnosed with, but are at risk for, lung cancer. The district court granted Philip Morris's motions for summary judgment dismissing plaintiffs' negligence and strict liability claims on the ground that they were untimely, and dismissing the breach-of-implied-warranty claims on the grounds that plaintiffs' earliest such claims were untimely, see Caronia v. Philip Morris USA, Inc., No. 06-CV-224, 2010 WL 520558 (E.D.N.Y. Feb. 11, 2010) ("Caronia I"), and that the timely warranty claims were not supported by sufficient evidence of breach, see Caronia v. Philip Morris USA, Inc., No. 06-CV-224, 2011 WL 338425 (E.D.N.Y. Jan. 13, 2011) ("Caronia II"). Pursuant to Fed. R. Civ. P. 12(b)(6), the court granted Philip Morris's motion to dismiss plaintiffs' free-standing claim for medical monitoring of Marlboro smokers who lack symptoms of smoking-related disease, ruling that plaintiffs failed to state a claim on which relief can be granted because they could not sufficiently plead that their injuries--i.e., their increased risk of cancer from smoking Marlboro cigarettes--were proximately caused by Philip Morris's conduct. See Caronia II. On appeal, plaintiffs contend principally that their negligence and products liability claims are timely and that they adequately pleaded proximate cause in their claims for breach of implied warranty and in their independent claim for medical monitoring. For the reasons that follow, we affirm the dismissal of plaintiffs' negligence, strict liability, and breach-of-warranty claims; with respect to plaintiff's free-standing equitable claim for medical monitoring, we certify several questions, detailed in Part III below, to the Court of Appeals for the State of New York with respect to the existence of such a claim under New York State law, and, if such a claim is recognized, as to the elements and accrual of such a claim.


A. Plaintiffs' Negligence, Strict Liability, and Warranty Claims 5

B. The Relief Requested 7

C. Philip Morris's First Motion for Summary Judgment 8

1. The Strict Products Liability and Negligence Claims 9

2. The Breach-of-Warranty Claims 12

D. Plaintiffs' Fourth Amended Complaint 13


A. Untimeliness of the Negligence and Strict

Liability Claims 18

1. The Continuing Exposure Theory 21

2. The Newly-Available Relief Theory 24

B. Summary Dismissal of the Breach of Implied

Warranty Claims 27


A. Decisions of New York State Courts 30

B. Decisions by Federal District Courts in New York 33

C. Decisions by Other States' Highest Courts 36

D. Elements of an Independent Medica Monitoring Cause of Action 48

E. Certification of Questions to the New York Court of Appeals 52



Plaintiffs, who commenced this action on January 19, 2006, seeking to pursue it as a class action, are residents of New York State ("State") who, within the State, smoked Marlboro cigarettes--defined in plaintiffs' pleadings as the entire line of cigarettes manufactured and sold by Philip Morris under the "Marlboro" brand. The claims at issue on this appeal are those asserted in plaintiffs' Third Amended Complaint (or "3rd Am. Comp.") and Fourth Amended Complaint (or "4th Am. Comp.") (collectively the "Complaints").

A. Plaintiffs' Negligence, Strict Liability, and Warranty Claims Plaintiffs are persons age 50 years or older who currently smoke Marlboro cigarettes, or ceased smoking them within one year prior to the commencement of this lawsuit, and smoked Marlboro cigarettes for at least 20 pack-years. (See 4th Am. Comp. ¶¶ 22-27; 3rd Am. Comp. ¶¶ 23-28.) A "pack[-]year" is defined in the Complaints as "the number of packs of cigarettes smoked per day multiplied by the number of years," e.g., one pack of cigarettes per day for one year equals one pack-year, and two packs per day equal two pack-years. (4th Am. Comp. ¶ 26, n.2; 3rd Am. Comp. ¶ 27, n.2.) "None of the plaintiffs is presently diagnosed with lung cancer" (4th Am. Comp. ¶ 28; 3rd Am. Comp. ¶ 29) "or under investigation by a physician for suspected lung cancer" (Complaints ¶ 1(e).) Plaintiffs contend, however, that lung cancer is the leading cause of cancer deaths in the United States and is responsible for the deaths of 160,000 Americans annually (see id. ¶ 4); that more than 80 percent of those deaths result from cigarette smoke (see id. ¶ 5); and that plaintiffs "are at significantly increased risk for developing lung cancer as a consequence of their use of Marlboro cigarettes . . . specifically as a consequence of the excess quantities of carcinogens delivered by Marlboro cigarettes" (4th Am. Comp. ¶ 29; 3rd Am. Comp. ¶ 30).

The Complaints alleged that, during the relevant time period, Marlboro cigarettes regularly delivered between 6 and 17 milligrams of tar (see Complaints ¶ 53), a substance that "contains carcinogens which cause lung cancer" (id. ¶ 47), despite the existence of feasible alternatives for the manufacture of cigarettes delivering one milligram of tar or less (see id. ¶ 61). The Complaints alleged that Philip Morris had the ability to employ "feasible alternative designs which would have drastically reduced the cancer causing content of Marlboro cigarettes" (id. ¶ 18), such as by switching to a tobacco blend that would reduce or eliminate the quantity of "Burley" tobacco--known to contain high levels of cancer-causing nitrosamines--used in Philip Morris cigarettes (id. ¶¶ 64-67).

The Complaints also alleged that although smokers had been found by independent agencies to have a tendency to "compensate" for lower tar and nicotine levels in "light" cigarettes by taking "deeper, more intense" puffs (Complaints ¶ 56; see id. ¶ 57), Philip Morris had the technological ability to use a filter that would thwart such tendencies and deliver low overall levels of carcinogens simply by increasing its cigarettes' "'resistance to draw'" (id. ¶ 60; see id. ¶¶ 61-64). Philip Morris nonetheless allegedly chose to market Marlboro "Light" cigarettes that were "intentionally designed to permit full compensation" (id. ¶ 60; see also id. ¶¶ 58-59), allowing smokers of Marlboro Light cigarettes to inhale "approximately the same amount of tar as delivered by regular Marlboro 'Full Flavor' cigarettes" (id. ¶ 59).

In sum, the Complaints alleged that although Philip Morris knew at all relevant times that it was feasible to lower the carcinogenic content of its cigarettes (see, e.g., Complaints ¶¶ 62-65), it "purposely designed all of its Marlboro cigarettes to deliver an excessive amount of carcinogens when smoked by humans" (id. ¶ 54; see also id. ¶¶ 63, 65-66).

Plaintiffs alleged that as a result of Philip Morris's voluntary, negligent, reckless, and/or intentional design of Marlboro cigarettes to deliver excessive amounts of carcinogens (see, e.g., 3rd Am. Comp. ¶¶ 86, 94), when it knew or should have known that such cigarettes caused lung cancer or increased the risk of lung cancer and thus were defective products not reasonably safe for their intended use (see id. ¶¶ 84-85), plaintiffs and members of the proposed class--"composed of at least tens of thousands of persons" (Complaints ¶ 35)--were placed at significantly increased risk of developing lung cancer (see 4th Am. Comp. ¶ 29; 3rd Am. Comp. ¶ 30). Plaintiffs contended that Philip Morris was (a) strictly liable for distributing its defective products (see 3rd Am. Comp. ¶¶ 80-90); (b) liable for negligence in failing to properly design, test, and inspect Marlboro cigarettes, thereby violating its "legal duty to create a reasonably 'safer' cigarette which delivered substantially less carcinogens when smoked by a human" (3rd Am. Comp. ¶ 93; see id. ¶¶ 92-99); and (c) liable for breach of the UCC implied warranty of merchantability, as Marlboro cigarettes were not safe for the ordinary purposes intended by Philip Morris and used by Marlboro smokers (see 4th Am. Comp. ¶¶ 105-107; 3rd Am. Comp. ¶¶ 101, 112-113).

B. The Relief Requested As relief for their claims of negligence, strict liability, and breach of warranty, plaintiffs stated that they did not seek compensatory or punitive damages but instead sought to have Philip Morris provide funding for a court-supervised program of medical monitoring for class members who are at increased risk of lung cancer from smoking Marlboro cigarettes (see, e.g., 3rd Am. Comp. ¶ 19).

Plaintiffs alleged that when lung cancer is diagnosed at an early stage, it is usually curable. (See Complaints ¶ 6.) But, they alleged, conventional forms of medical surveillance such as chest x-rays and sputum cytology are poor tools for identifying lung cancer at an early stage (see id. ¶ 9); hence, in the past, by the time the cancer was diagnosable, prospects for cure were usually dim (see id. ¶ 7). The Complaints alleged that a recently established (see id. ¶ 10) medical surveillance technique known as Low Dose CT Scanning of the chest ("'LDCT'"), "is a safe, efficacious and inexpensive technique, which, for the first time, provides a means to identify and diagnose lung cancers at an early stage, when they are still curable" (id. ¶ 3). LDCT can identify and lead to the diagnosis of Stage I lung cancers that previously would have remained undiagnosed until the cancer had reached an advanced, and likely incurable, stage. (See id. ¶ 10.) LDCT screening is currently unavailable as a benefit in most, if not all, private or public health insurance programs (see id. ¶ 15); the cost of LDCT is "a modest annual expense [of ]less than five hundred ($500) dollars per patient per year[]" and involves "a lower dose of radiation than is associated with an annual mammogram" (3rd Am. Comp. ¶ 11).

C. Philip Morris's First Motion for Summary Judgment After plaintiffs had filed their Third Amended Complaint and discovery had been completed, Philip Morris moved for summary judgment dismissing the action on statute-of-limitations and/or causation grounds. Plaintiffs opposed the motion and cross-moved for certification of their proposed class. The district court in Caronia I granted Philip Morris's motion to the extent of dismissing as untimely the negligence and strict liability claims in their entirety and the breach-of-warranty claims in part. The court denied Philip Morris's motion to the extent that the motion sought dismissal of the breach-of-warranty claims based on lack of evidence of proximate causation, and it reserved decision on the motion for class certification.

1. The Strict Products Liability and Negligence Claims Philip Morris contended that plaintiffs' strict liability and negligence claims were essentially claims for damages and thus were barred by the three-year limitations period provided by New York Civil Practice Law & Rules ("CPLR") § 214-c(2), which applies to, inter alia, "an action to recover damages for personal injury . . . caused by the latent effects of exposure to any substance or combination of substances, in any form." Plaintiffs argued, inter alia, that their claims were not for damages but for equitable relief, and that the applicable statute of limitations was thus the six-year period provided by CPLR § 213(1), which generally applies to actions seeking equitable relief, including injunctive relief, see, e.g., 2004 Commentary CPLR 213(1), or to actions for which no limitations period is specified.

The district court, noting that "[b]oth parties agree that the injury in this action is the increased risk of developing lung cancer as a result of smoking Marlboro cigarettes for twenty pack-years," concluded that plaintiffs' strict liability and negligence claims were untimely "under either statute." Caronia I, 2010 WL 520558, at *3. Under § 214-c(2), assuming that plaintiffs' claims were properly characterized as claims for damages, the statute of limitations would have begun "to run upon the 'date of discovery' of the injury," Caronia I, 2010 WL 520558, at *3, i.e., the dates on which plaintiffs discovered that smoking Marlboro cigarettes increased their risk of lung cancer. The court noted that the record revealed that each of the plaintiffs was over the age of 50 when this suit was commenced in 2006, see id. at *1; that each had begun smoking as a teenager, see id.; that it was "undisputed that each of the named plaintiffs in this action reached twenty pack-years of smoking by the mid 1990s," Feldman by 1992, McAuley by approximately 1980, and Caronia by, at the latest, 1996, see id. at *5; and that the deposition "testimony of each plaintiff establishe[d her] awareness of an increased risk of cancer well before January 19, 2003," id. at *3; see also id. at *6 n.10 ("Plaintiffs do not, and cannot, argue that they did not know smoking cigarettes was the cause of their increased risk of lung cancer."). Accordingly, the court concluded that if the three-year limitations period of § 214-c(2) applied, plaintiffs' strict liability and negligence claims were time-barred.

The district court also rejected plaintiffs' contention that those claims would be timely under CPLR § 213(1)'s six-year limitations period, i.e., that their claims accrued on or after January 19, 2000. The court pointed out that unlike the three-year statute of limitations provided in § 214-c(2), "the six-year statute of limitations under 213(1) begins to run" not on the date the injury is discovered but on the date the cause of action accrues, to wit, "'when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief in court,'" Caronia I, 2010 WL 520558, at *3 (quoting Aetna Life & Casualty Co. v. Nelson, 67 N.Y.2d 169, 175, 501 N.Y.S.2d 313, 316 (1986)), "'i.e., when all elements of the tort can be truthfully alleged in a complaint,'" Caronia I, 2010 WL 520558, at *3 (quoting Snyder v. Town Insulation, Inc., 81 N.Y.2d 429, 432-33, 599 N.Y.S.2d 515, 516-17 (1993)).

The court described the elements of claims for strict liability and negligence. A plaintiff asserting a claim of strict liability must be able to show that she was injured, that the defendant produced a product that was not "'reasonably safe'" for its intended use, and that the product's "'defect was the proximate cause of the injury.'" Caronia I, 2010 WL 520558, at *4 (quoting Voss v. Black & Decker Manufacturing Co., 59 N.Y.2d 102, 107, 109, 463 N.Y.S.2d 398, 402, 403 (1983)). A plaintiff asserting a negligence claim must be able to show that "the defendant owed the plaintiff a cognizable duty of care," that "the defendant failed to exercise that duty," and that "the plaintiff suffered injury as a proximate result of that failure." Caronia I, 2010 WL 520558, at *4; see, e.g., Akins v. Glen Falls City School District, 53 N.Y.2d 325, 333, 441 N.Y.S.2d 644, 648 (1981); Becker v. Schwartz, 46 N.Y.2d 401, 410, 413 N.Y.S.2d 895, 899 (1978).

In light of plaintiffs' assertions that their injuries consisted of being subjected to increased risk of lung cancer by reason of having smoked Marlboro cigarettes for at least 20 pack-years, and given that it was undisputed that each plaintiff had reached 20 pack-years of smoking Marlboro cigarettes by the mid-1990s, the court reasoned that plaintiffs could have truthfully alleged all of the elements of their claims for strict liability and negligence by then. It concluded that those claims thus accrued "well outside of the six-year statute of limitations available under 213(1)," Caronia I, 2010 WL 520558, at *5.

The district court rejected plaintiffs' contentions that their strict liability and negligence claims were timely under § 213(1) either (a) on the theory that such claims accrue anew with each newly injurious exposure, or (b) because the remedy they sought--medical monitoring via LDCT scanning--had only become an available and accepted screening tool for lung cancer within a year prior to the commencement of this action. The court found the former theory untenable because it had been rejected by the New York Court of Appeals in Snyder v. Town Insulation, Inc., 81 N.Y.2d at 433-35, 599 N.Y.S.2d at 517-18. The court rejected plaintiffs' newly-available-remedy theory of timeliness on the ground that, "as is readily apparent from a review of the elements of both causes of action, neither claim is dependent upon the availability of a specific remedy," and therefore the availability of LDCT as a remedy "is irrelevant to the accrual" of those claims. Caronia I, 2010 WL 520558, at *4.

2. The Breach-of-Warranty Claims

Plaintiffs did not dispute that their breach-of-warranty claims were governed by the four-year statute of limitations set out in N.Y. U.C.C. § 2-725 and were timely only to the extent that they arose from purchases of Marlboro cigarettes on or after January 19, 2002. See Caronia I, 2010 WL 520558, at *6. Philip Morris sought summary judgment dismissing the timely warranty claims on the ground that, even assuming that Marlboro cigarettes bought on or after January 19, 2002, were not reasonably fit for their intended purpose, plaintiffs could not establish that those cigarettes were the proximate cause of their injuries because they faced an increased risk of lung cancer well before January 19, 2002. The district court denied this motion, finding that plaintiffs had adduced evidence that the smoking of Marlboro cigarettes after that date would have further increased the risk of lung cancer, and that "[i]n light of such evidence, summary judgment is not warranted on causation grounds." See id. at *7.

The court stated, however, that Philip Morris had raised an additional challenge to plaintiffs' warranty claims to which plaintiffs had not had an appropriate opportunity to respond. The court invited supplementary briefing as to that challenge, to wit, Philip Morris's contention that the claims for breach of the implied warranty of merchantability of Marlboro cigarettes purchased after January 19, 2002, were barred by plaintiffs' knowledge of the risks and dangers of tobacco use, or the common knowledge of smoking-related health effects, together with the warnings on all packs of cigarettes. See id. at *8.

D. Plaintiffs' Fourth Amended Complaint The district court noted that plaintiffs had sought medical monitoring as a remedy for their tort claims of strict liability, negligence, and breach of warranty but had not sought to plead a free-standing equitable claim for medical monitoring, and neither side had briefed the precise issue of whether New York recognizes such a cause of action. See Caronia I, 2010 WL 520558, at *8-*9. The court concluded that plaintiffs should be allowed to file a further amended complaint in the interests of justice.

In their Fourth Amended Complaint, plaintiffs repeated virtually all of the factual allegations of the Third Amended Complaint and added a new "EQUITABLE CAUSE OF ACTION" for medical monitoring. Plaintiffs reiterated their assertions that Philip Morris had "designed, produced, manufactured, and sold cigarettes, which, even if used properly, substantially and unnecessarily elevated Plaintiffs' and the class members' likelihood of developing lung cancer" (4th Am. Comp. ¶ 110), that plaintiffs' injuries cannot be remedied by an award of money damages (see id. ¶ 115), and that there exists a medical test for early detection having the potential for altering the course of the disease, but it is available only through a program of medical monitoring (id.). Plaintiffs added that Philip Morris, motivated by extreme greed, and a reckless and depraved disregard of the virtual certainty that the sale of its addictive and deadly products would condemn hundreds of thousands of its customers to awful disease and lingering deaths, . . . set out to sell its defective and deadly products to children and others. For instance, Plaintiffs in this case commenced smoking at the ages of fifteen (Caronia), sixteen (Feldman) and approximately fifteen or sixteen (McCauley [sic]).

112. To the extent that there is not a legal remedy available to Plaintiffs, Defendant's egregious conduct and its devastating consequences impose a duty on the Court under New York Law to fashion an appropriate equitable remedy to redress the grave effects of Philip Morris'[s] misconduct.

113. The programmatic medical monitoring through LDCT sought by Plaintiffs in the instant action is a remedy appropriately tailored to both the nature of Philip Morris' misconduct, and the injuries that it has inflicted on the class members. (4th Am. Comp. ¶¶ 111-113.) Plaintiffs also renewed their motion for class certification.

Philip Morris moved under Fed. R. Civ. P. 12(b)(6) to dismiss this independent cause of action for failure to state a claim, arguing that New York would not recognize such a claim. It argued that even if the State would approve of ordering medical monitoring as a remedy, it would do so only as a remedy for an existing tort. The district court rejected these contentions.

The district court explored cases decided by New York courts and other courts, see Caronia II, 2011 WL 338425, at *5-*6, and predicted that the New York Court of Appeals would recognize an independent claim for medical monitoring, and . . . further predict[ed] that the Court of Appeals would conclude that the statute of limitations for such a claim begins to run on the first date that some medical monitoring program is accepted within the medical community as an effective method of lung cancer screening or surveillance.

Caronia II, 2011 WL 338425, at *3. The court also hypothesized that to establish such a claim a plaintiff would be required to plead the following elements:

(1) exposure at greater than background levels; (2) to a proven hazardous substance; (3) caused by defendant's tortious conduct; (4) as a proximate result of the exposure, plaintiff faces an elevated risk of contracting a serious latent disease; (5) a monitoring procedure exists that makes early detection possible; (6) the monitoring program is different than the program normally prescribed in the absence of exposure; and (7) the monitoring program is reasonably necessary according to contemporary scientific principles.

Id. at *7.

However, the court concluded that plaintiffs' medical monitoring claim must be dismissed for failure "to plead that Philip Morris's allegedly tortious conduct is the reason that they must now secure a monitoring program that includes LDCT scans." Id. at *3. It stated that the plaintiffs must plead and prove that Philip Morris's failure to produce and market a non-defective cigarette is the reason that the plaintiffs must now secure medical monitoring that includes LDCT scans. This pleading requirement is most obviously embodied by element (6) of the monitoring claim, which requires that the plaintiffs plead and prove that the medical monitoring they now require is different f[ro]m the monitoring that physicians would prescribe for individuals who have not been tortiously exposed to defective Marlboro cigarettes.

Id. at *10. The court concluded that plaintiffs failed to meet this pleading requirement because the fourth amended complaint contains no allegation that, if Philip Morris had conformed its conduct to the law and designed and marketed a reduced tar cigarette, the plaintiffs would not require the same medical monitoring that they are seeking in this suit. Nowhere have the plaintiffs pleaded that if Philip Morris had marketed and designed the non-defective cigarette they describe, they would not have been exposed to harmful levels of tar.

Id. at *11. The court thus granted Philip Morris's Rule 12(b)(6) motion to dismiss the stand-alone medical monitoring claim.

Philip Morris also moved for summary judgment dismissing the breach-of-warranty claims that had survived its first summary judgment motion, pressing the contention, as the district court described it, that a "product need only provide 'for a minimal level of quality' and meet 'the expectations for the performance of the product when used in the customary, usual and reasonably foreseeable manner,'" Caronia II, 2011 WL 338425, at *12 (quoting Denny v. Ford Motor Co., 87 N.Y.2d 248, 258-59, 639 N.Y.S.2d 250, 256 (1995)), and "that under this 'consumer expectations' test, the plaintiffs cannot prove breach of implied warranty because everyone knew, at the time that the Marlboros at issue in this litigation were sold, that cigarettes, when used normally, put people at risk of developing lung cancer," Caronia II, 2011 WL 338425, at *12. The court found this argument persuasive:

The plaintiffs do not contend that, in the years relevant to this complaint, consumers, including the plaintiffs, thought that smoking tobacco was generally safe and did not expose them to a significantly elevated risk of developing cancer. (See Def. Ex. F.) Rather, they argue, consumers did not know that Philip Morris could easily have produced a safer cigarette. (Pl. R. 56.1 ¶ ¶ 11, 32.) As clarified by counsel at oral argument, the plaintiffs' contention is that consumers generally did not know that Marlboro cigarettes were defective (i.e. unnecessarily dangerous), not that they did not know that they were dangerous, indeed very dangerous. This contention fails because it conflates what New York considers two distinct theories of liability and improperly inserts risk-utility considerations into the law of warranty. See Denny, 87 N.Y.2d at 258, 639 N.Y.S.2d 250, 662 N.E.2d 730 ("It is this negligence-like risk/benefit component of the defect element that differentiates strict products liability claims from UCC[-]based breach of implied warranty claims in cases involving design defects.") . . . . Indeed, the Court believes that the plaintiffs concede this point about conflation when they argue that they "are not required by law to prove the existence of a feasible alternative design in order to prevail at trial on a warranty theory." (Pl. S.J. Opp. at 8.)

Because the plaintiffs concede their knowledge of the dangers of cigarettes, and the Court thinks it irrelevant whether the plaintiffs thought their cigarettes could not be any safer, the Court rejects the argument that Marlboros contained an implied warranty that Philip Morris breached.

Caronia II, 2011 WL 338425, at *12-*13.

Judgment was entered dismissing the action in its entirety and denying plaintiffs' motion for ...

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