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October 24, 2014

Kentucky Forklift Operator Killed In Work Accident

Early this week, a Kentucky forklift operator was involved in a fatal workplace accident. A local newspaper reported that the woman was only employed with her employer for approximately two weeks when the accident occurred. An investigation has yielded information indicating that some part of the machinery malfunctioned, which resulted in the accident. Employees who witnessed the accident explained that the woman was operating the forklift in the driver's position when it continued to move upwards, eventually decapitating her. Sadly, the woman was only in her 20s, and she was the mother of a young child. The company explained that it is still investigating the accident.

forklift-1-1125238-m.jpgManufacturer Liability

In many personal injury cases, individuals are not only injured by the negligence of an individual person but by a defect in a product or part of a product. In the above case, the victim may pursue her company for negligence, but she may be able to bring a suit against the manufacturer of the forklift that malfunctioned as well, or her company may choose to do so.

In Kentucky, product liability follows the rules and regulations put forth by the Kentucky Product Liability Act. Individuals or their representatives may bring a suit for product liability if they are injured, or if it results in their death or damage to their property. The suit can be based on things such as the design, manufacture, and assembly of the product.

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October 30, 2013

Federal Judge Permits Kentucky Product Liability Class Action Suit to Move Forward in Naiser v. Unilever United States, Inc.

A federal court in Kentucky recently allowed a class action lawsuit to move forward against Unilever United States, Inc. (Unilever), LEK, Inc. (LEK), and Conopco, Inc. (Conopco) in Naiser v. Unilever United States, Inc. The case involves a hair product sold as Suave Professionals Keratin Infusion 30 Day Smoothing Kit.

hair-care-2-189882-m.jpgKentucky residents argue that they purchased the hair product from different retail stores across the state, based on representations that it was not a chemical relaxer, that its effects would not last beyond 30 days, that it did not have any formaldehyde, and that it was overall a safe product. In fact, the representations were false, in that the hair product actually contained a toxic mixture that caused major hair loss, scalp burns, and other harmful effects. The residents further argue that there was absolutely no warning that they could be at risk for such problems. Naiser, the named plaintiff, spent $10 on the initial product and then $2,000 on conditioners and haircuts after she began experiencing breakage and hair loss. Although the product was recalled in May 2012, the plaintiffs in the class action suit argue that Unilever continues to claim that the product was safe, and that it was recalled due to consumer misuse. The plaintiffs claim that Unilever, LEK, and Conopco manufactured, distributed, and promoted an unreasonably dangerous product.

Unilever and Conopco then filed motions to dismiss under 12(b)(6) of the Federal Rules of Civil Procedure: failure to state a claim upon which relief can be granted. Chief Judge Joseph McKinley of the U.S. District Court of the Western District of Kentucky reviewed the claims in the case of Unilever only. He first looked at the argument that the Kentucky plaintiffs had failed to pinpoint the exact affirmations of fact or promise made that the product was safe. He found that the product's packaging, which promoted it as a "smoothing" product rather than a chemical relaxer, did amount to an affirmation of fact. He also found that an affirmation of fact or promise was made regarding how long the product would last: the packaging is described as a "30 Day Smoothing Kit," and that the smoothing lasts "up to" 30 days. Finally, Judge McKinley found that the plaintiffs pled enough facts to indicate that the defendant misled them into thinking the product was safe.

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January 8, 2013

Infant Recliners Recalled by Retailers, Manufacturer Refuses to Recall Product

Trying to get a young infant to sleep can be difficult and frustrating. Sleep-deprived parents often go to great lengths to get their little ones to drift off, from driving miles in the car to singing songs and pacing the floor incessantly. So when a product comes out that claims to help get babies to sleep, it can be quite appealing. One such product is the Nap Nanny, which was introduced a few years ago. The Nap Nanny is kind of a recliner for infants, which allows their heads to be slightly elevated while sleeping. The product is designed to be used only on the floor and the infant is buckled in.

The Consumer Products Safety Commission (CPSC) is a group that monitors products and complaints to determine if products are unsafe for consumers. In July, 2010, the CPSC announced a voluntary product recall of the Nap Nanny after receiving numerous complaints about the product, including one regarding a child who died while sleeping in the product in crib. The four-month-old had managed to move herself to the edge of the recliner and suffocated between it and the crib bumper. The manufacturer recalled the product and released a new version of it with additional safety features and directions on safe usage of the product.

After the initial recall, the CPSC received reports of additional injuries and deaths to infants using the Nap Nanny. They notified the company about the issues, but the company's founder refused to recall the product. She stated that none of the subsequent injuries or deaths would have occurred if the consumers were using the product properly. Four of the five reported infant deaths occurred while the Nap Nanny was being used in a crib, which the labels on the product specifically say not to do. Several stores voluntarily recalled the infant sleepers and the CPSC has filed a complaint in an attempt to have a mandatory recall put in place. The manufacturer has also filed documents to have the complaint dismissed. In the meantime, Baby Matters, the company that makes and sells the Nap Nanny, has shut down its operations, but continues to stand by its product.

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December 14, 2012

Recall Scheduled to Occur in February 2013 on Certain Honda Models

It seems as if product recalls on cars are becoming more and more common. It is hard to say whether it is because cars are not being made as well as they used to be, or if the manufacturers are trying to protect themselves and their consumers by issuing the recalls more readily. The latest big recall hasn't even officially happened yet, but it has been announced through the media.

In February 2013, Honda is scheduled to announce to the recall of over 800,000 vehicles in the U.S. and about 70,000 in other countries. In October 2012, the National Highway Traffic Safety Administration (NHTSA) announced that it was going to begin investigating Honda Pilots and Odysseys that were manufactured in 2003 and 2004. The investigation was prompted by the NHTSA receiving over 40 complaints regarding the vehicles. Drivers stated that the vehicles rolled away after being parked and having the keys removed. Owners of 16 of them said the only reason they stopped rolling was because they hit a stationary object such as a tree, wall, or brick mailbox. At least three vehicle owners claimed to have been injured trying to stop the rolling vehicles. Two months after the investigation was opened, Honda announced that they were going to recall 2003-2004 Honda Pilots and Odysseys, and 2003-2006 Acura MDXs.

What is causing these vehicles to roll away by themselves? It is not a brake failure as one might expect. Ignitions are designed so that the driver cannot remove the key unless the vehicle is in park. However, on the recalled models, the ignition part that prohibits the key from being removed can wear down or be damaged, allowing the key to be removed without the car being put into park. If the emergency brake has not been applied, the vehicle is free to roll away.

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November 7, 2012

Indiana Residents Still at Risk for Meningitis Infection from Tainted Steroid Shots

On Monday, November 5, 2012, the Indiana State Department of Health announced that 51 Indiana residents have been infected with fungal meningitis and the death toll rose to four victims. Nationwide, the total number of people sickened stands at 409, and 30 people have died.

How did this epidemic start? Investigators are not sure how the tainting occurred, but they do know that the drugs were manufactured at a drug company in Massachusetts called the New England Compounding Center. The contaminated drugs are steroids that are injected in patients to help relieve pain. The majority of the people who have fallen ill were suffering from chronic back pain and the drug was injected into their spine to provide some relief. An additional 10 people who had the injections in other places, such as hips or elbows have contracted peripheral joint infections, but there have been no deaths reported.

In an attempt to figure out how this happened, Congress has subpoenaed one of the owners of the drug company. Attorneys representing the drug company are saying there are too many differing state and federal laws regarding pharmacies and drug manufacturers and that their client has done nothing wrong. In the meantime, the number of lawsuits continues to grow.

In Indiana, at least one wrongful death lawsuit has been filed by the family of a man who died after receiving an injection that was contaminated by a fungus. They hope that the lawsuit will answer the question of how these dangerous drugs were able to be sold and administered to patients, including their lost loved one. They are seeking compensatory damages for lost income, loss of companionship, and medical and burial expenses. The lawsuit also request punitive damages, which are commonly included in medical malpractice and wrongful death cases. This type of damages is meant to cost the company or individual at fault enough additional expense to deter them from acting in a similar manner in the future. In this case, the drug company, if it is even allowed to reopen for business, will hopefully determine what caused the contamination and take whatever measures are necessary to keep this type of outbreak from occurring again.

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August 30, 2012

Salmonella in Cantaloupes Leads to Indiana Product Recall and Lawsuit

800031_cantaloupe.jpgFarm-grown fruits and vegetables are supposed to be the healthiest foods to eat, far surpassing the processed foods that frequently fill our pantries and freezers. But sometimes, even fresh food can cause illness. Cantaloupes grown in Indiana and sold in July 2012 are thought to be the cause of over 178 cases food poisoning. The illnesses span 21 states, and two people have died. At least 50 of the cases were in Kentucky.

One farm has been identified by the FDA as producing the tainted cantaloupes - Chamberlain Farms in Owensville, Indiana. Even though the farm voluntarily recalled all of their cantaloupes, the FDA issued a formal product recall of the fruit on August 22, 2012 to make people more aware of the situation.

At least one lawsuit has been filed in the outbreak. A mother from Michigan claims she bought three of the tainted cantaloupes from Walmart. Both of her daughters ate the melon and contracted salmonella, which causes fever, abdominal cramping, and diarrhea. People can become severely dehydrated and some even die. This woman's daughters both required a doctor's care and emergency room visits, and one daughter was hospitalized for four days. Her attorney has filed a lawsuit on the family's behalf against Chamberlain Farms in Indiana and the Walmart that sold the melons. It claims that the family has incurred over $25,000 in medical bills.

This outbreak is similar to the one that occurred in September 2011 with cantaloupes. In that case, the cantaloupes were from Colorado and were tainted with listeria, which causes illness similar to salmonella. The attorney handling the recent lawsuit also represents 42 families that were allegedly affected by the listeria outbreak. He states that he is surprised that another outbreak has occurred because he "would have expected farmers, distributors and retailers to have better food safety procedures in place this year to prevent another cantaloupe-related outbreak from happening."

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August 8, 2012

Victim Awarded $5.5 Million in Medical Malpractice Lawsuit over Mesh Implant

Advances in medical technology are amazing and can provide great benefits to patients. Unfortunately, sometimes the products created to help people can end up causing more harm than good. In this type of situation, victims can seek compensation not only from the doctors or hospitals involved in the procedure, but also the company that created and marketed the product.

One medical product that is under intense scrutiny right now is a mesh that is implanted in various parts of the abdominal area to treat bulging organs, called pelvic organ prolapse (POP), or incontinence due to weakened tissues around certain organs. In 2011, the FDA updated its report on the use of vaginal mesh implants. The update states that serious complications are more frequent than initially thought and that it is unclear whether surgery that includes the mesh implant is any more effective than the traditional method. Between 2008 and 2010, the FDA received 2,874 reports regarding medical issues associated with the vaginal mesh implants including "mesh erosion through the vagina (also called exposure, extrusion or protrusion), pain, infection, bleeding,...dyspareunia,...organ perforation, urinary problems... recurrent prolapse, neuro-muscular problems, vaginal scarring/shrinkage, and emotional problems." In January, 2012, the FDA told numerous manufacturers of this product to perform a three-year study to confirm it is safe and effective.

Hundreds of victims have filed medical malpractice lawsuits claiming these implants are causing additional medical issues. One case has already gone to trial and been decided by a jury. The victim had claimed that her vaginal mesh implant that had been manufactured by C.R. Bard Inc. caused chronic pain and incontinence and that she had endured nine surgeries to try to fix the problems caused by the implant. The lawsuit, which was filed against both the manufacturer and the doctor who performed the surgery, alleged that the company had not thoroughly tested the product before selling it, despite the fact that the FDA had approved it. The jury determined that the manufacturer was 60 percent responsible and the doctor was 40 percent responsible. The victim and her husband were awarded $5.5 million for pain and suffering, medical expenses, and loss of consortium.

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July 19, 2012

Incorrect Ford Escape Recall May Have Contributed to 17-Year-Old's Car Accident Death

Product recalls on cars are not uncommon. Considering the thousands of parts that go into each car or truck, it is understandable that an issue might arise after the cars have been sold and are being driven on a daily basis. Most issues are found before they cause any major damage or injuries, and recall notices are sent to everyone who owns the cars in question so the problem can be fixed.

A recent Ford recall encompasses thousands of cars built at the Louisville Assembly Plant in Kentucky. Over 8,000 Ford Escapes built at the Fern Valley, Kentucky plant between March and June 2012 have been recalled because of a carpet issue. Misplaced carpet padding could interfere with the driver's ability to switch from the accelerator to the brake. A Ford spokesperson said the problem was found internally and that no car accidents have been reported as a result of the issue.

While it appears that Ford is handling this current recall properly, that may not be the case in an earlier recall. In December 2004, Ford recalled around 590,000 Ford Escapes and Mazda Tributes because a liner around a cable could interfere with the accelerator and cause it to get stuck. The majority of owners of the cars in question had their cars repaired. Then in October 2005, Ford sent a new set of instructions regarding the previous recall to the dealers telling them to be careful not to damage the cruise control cable during the repair. This information was sent only to the dealers, not to the car owners, so anyone who had already had their cars repaired did not know there might be an additional issue.

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January 30, 2012

Kentucky Couple Files Product Liability Suit against Kraft Foods

716277_kd.jpgOn September 21, 2011, Leamon Perkins of Pine Knot, Kentucky in McCreary County ate a bowl of microwavable Velveeta Shells and Cheese. He became very ill and ended up in surgery on September 29, 2011. According to his doctors, Mr. Perkins' small bowel was perforated with a small piece of metal that showed up on a CT scan and he had contracted peritonitis. The surgeon removed the portion of his small bowel that had been damaged by the sliver of metal and the metal piece itself.

The next day, Kraft Foods, the manufacturer of the macaroni and cheese recalled 137,000 cases of the product "as a precaution due to the possible presence of small, thin wire bristle pieces," according to the FDA recall press release. The recall was voluntary, as opposed to FDA-mandated, and Kraft stated it had not received any complaints or heard of anyone being injured.

Mr. Perkins filed a product liability lawsuit this month against Kraft. Why he waited so long to file the lawsuit is unknown. It is possible that he was not aware of the product recall until recently, so he did not put the two together. Kentucky law allows individuals to file product liability claims up to one year after the injury occurred, so he was well within the filing period.

In the lawsuit, Mr. Perkins is seeking $6 million in damages. The amount includes both compensatory and punitive damages. His wife has requested $500,000 in damages for loss of consortium. Compensatory damages often include lost wages and medical bills, as well as other less tangible items, such as physical and emotional distress. Loss of consortium is most often claimed by a spouse for lost or interrupted marital relations related to the accident. It can also be claimed by a parent or child of a victim for a reduction or termination of affection because of the victim's injuries. Punitive damages are not related to a particular loss, but instead serve to punish the defendant for the incident that occurred. Many plaintiffs claim punitive damages in an attempt to deter the defendant from allowing a similar incident to occur in the future.

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January 10, 2012

Woman Sues Drug Companies over Drug Given to Her Mother before Birth

72201_prescription_med.jpgBetween 1940 and the early 1970s, millions of expectant mothers were given the drug diethylstilbestrol (DES) to help prevent miscarriages and premature births. A study in 1971 found a potential link between the drug and an increased risk for vaginal cancer in young women whose mothers took DES. Doctors were told to stop prescribing it. Many product liability lawsuits have been filed over the years by women who allegedly have vaginal cancer, cervical cancer, or infertility issues as a result of their mothers being given DES during pregnancy.

In a recent lawsuit, a Boston woman is claiming something different. Arline MacCormack developed breast cancer when she was 44. While many women have breast cancer at that age or even younger, her type of cancer is typically not seen in women younger than 60.

After discovering research that linked DES to a significant increase in breast-cancer risks for women, Ms. MacCormack filed her lawsuit against several drug companies that manufactured and sold the drug to women like her mother in the 1960s. Her suit alleges that the drug companies were not only aware that DES did not prevent a woman from having a miscarriage, but also that there were safety issues with the drug that the companies kept from physicians.

The drug companies have filed pre-trial motions stating there is no scientific evidence regarding this supposed link between DES and breast cancer, and the presiding judge has heard testimony from experts for the companies and Ms. MacCormack. If the judge grants the companies' motion, the case will not go to trial. If their motion is denied, the case will go to trial.

Drug liability cases can become very complex. In the case above, the plaintiff, Ms. MacCormack is seeking restitution for a drug that was not even given to her directly, but to her mother 50 years ago. While this can make a case more challenging, this situation is not that uncommon. Side effects of drugs given to women during pregnancy can take years to show up in their offspring. Other types of product liability cases, such as those involving asbestos, can also have a significant delay between the time of the exposure and the appearance of symptoms. Trying to prove which company manufactured and sold the drug that a particular individual took many years ago would be difficult, so oftentimes multiple companies are included in the suit and may share the liability and be required to pay damages.

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September 15, 2011

Crib Standards Raised to Keep Sleeping Babies Safe

Many parents feel, and rightfully so, that their babies are safest in their cribs. They are in their own homes, unable to get into unsafe situations. Unfortunately, this is not always the case. Between 1990 and 2008, over 7500 infant injuries involved cribs. As a result, new federal rules have been enacted to make cribs safer for babies.

One major culprit has been drop-side cribs, responsible for up to 32 infant deaths. The movable sides of drop-side cribs have been shown to drop unexpectedly, causing a baby to become trapped or suffocated by the crib side, or allowing an infant to fall. As of June 28, 2011 manufacturers are no longer allowed to make drop-side cribs. Although over 11 million of the cribs have been recalled, many are still in use by daycare centers and hotels, which have until December 28, 2012, to replace drop-side cribs with those with stationary sides. To see if a crib has been part of a recall, individuals can check, www.keeping, or Parents who own a drop-side crib that was not recalled can contact the manufacturer to see if an immobilizer is available. The U.S. Consumer Product Safety Commission (CPSC) warns that these immobilizers are not subject to the more rigorous standards, so it would be better to replace the crib.

According to the CPSC, crib manufacturers must also "strengthen crib slats and mattress supports, improve the quality of hardware and require more rigorous testing." Faulty crib slats and mattress supports can come loose, creating an opening large enough that a child could get trapped. Hardware can come loose and create an entrapment situation or a hole large enough for a child to fall.

A combination of these factors caused the death of a Kentucky infant when the plastic hardware holding the drop side of the crib broke, allowing the side to slide down and the infant to become entrapped between the side and the mattress. The 7-month-old's death in 2009 was one of 11 attributed to cribs manufactured by Simplicity, which no longer is in business. The parents of a Florida 9-month-old who died in a Simplicity crib settled a wrongful death lawsuit for an undisclosed amount in 2010.

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November 24, 2010

Toyota's Recall Woes Continue

In an October 20th press release, automaker Toyota's USA subsidiary, announced a voluntary recall of nearly 750,000 of its cars and SUVs. The USA announcement followed a similar one in the company's home country of Japan. With millions already spent on image-salvaging PR after last year's faulty brake fiascos, the current recall is the latest of Toyota's mechanical missteps.

The affected make and models include mid-2000s Avalon, non-hybrid Highlanders, and Lexus sedans. Some owners were experiencing lit-up brake warning lights due to small amounts of leaking brake fluid. Toyota claims that the leaking only occurs when non-Toyota genuine fluid is used on a vehicle during routine maintenance. Apparently Toyota brand fluid contains polymers that offer a superior level of lubrication and subsequent leak protection.

If the fluid leaks, and the owner continues to drive while the brake cylinder is left under-lubricated, his/her break pedals will start to feel "spongy or soft" and braking performance will be compromised. While it seems perfectly forseeable that not all Toyota owners will exclusively utilize Toyota dealerships for their routine tune-ups, Toyota intends to notify all affected owners by mail and replace the brake cylinder cups on their cars with a brake master cylinder cup that does not warp even with non-polymer fluid.

Some sources say that Toyota received leak reports as early as 2005. Given the massive internal quality control changes that ostensibly flooded Toyota in the wake of Congressional hearings, consumers are left to wonder how many of these design defects are actually unique to Toyota or whether they continue to lurk undetected in the less-scrutinized factories of other carmakers.

If you believe you have purchased a defective vehicle, it is important for you to quickly contact a Kentucky attorney to learn more about your legal options.

July 31, 2010

Danny's Law Changes Recalls for Parents

Parents in Kentucky and Indiana should rejoice over Danny's Law, a consumer protection statute which recently went into effect. Starting on June 28, 2010, parents who purchase a covered product will be provided with a registration card which should be sent back to the manufacturer. In the event of a recall, the parents will be notified. The information provided to the company by parents can only be used in the event of a recall, and cannot be used for marketing purposes. Further, the product will have to be labeled with the manufacturer's name and address, model name and number, as well as the manufacture date.

This law effects eighteen product categories including:

  • full-size cribs

  • non-full-size cribs

  • toddler beds

  • high chairs

  • booster chairs

  • hook-on chairs

  • bath seats

  • gates

  • play yards

  • stationary activity centers

  • infant carriers

  • strollers

  • walkers

  • swings

  • bassinets

  • cradles

  • children's folding chairs

  • changing tables

  • infant bouncers

  • infant bathtubs

  • portable toddler bed rails

  • infant slings

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June 8, 2010

Probe into Chrysler Pedal Defects

Last month, the National Highway Traffic Safety Administration (NHTSA) opened an investigation to review a potential "sticky accelerator pedal problem" in Chrysler Group LLC's 2007 model-year Dodge Caliber cars. Reports of the accelerator pedal becoming stuck and not returning to the idle position when released have been made to the agency. The company that supplies these pedals, CTS Sorp., is also the supplier of the pedals involved in the Toyota Motor Corp's recall of more than 2 million vehicles in January of this year.

After one month of investigation, Chrysler has decided to initiate a voluntary recall of 34,631 Dodge Caliber and 90 Jeep Compass vehicles from the 2007 model year in order to address a potential issue with sticking gas pedals.

If you or someone you know has been involved in an accident in the 2007 model-year Dodge Caliber car or Jeep Compass, call the law office of Miller & Falkner so that an experienced personal injury attorney can help protect your rights.

May 5, 2009

Weight Loss Drug Hydroxycut Recall Due to Serious Health Risks Associated With Use

A recall has been issued for the popular weight-loss products line Hydroxycut as federal drug regulators warn of reports of a death due to liver failure and other serious instances of health problems associated with its use.  hydroxycut.jpg

Hydroxycut products are dietary supplements marketed for weight loss as fat burners, energy-enhancers, low carb diet aids, and for water loss under the Iovate and MuscleTech brand names.  The Food and Drug Administration (FDA) has received 23 reports of significant adverse health effects.  The report includes the death of a 19-year-old man in 2007 as well as other serious liver problems including liver failure, jaundice, seizures, cardiovascular problems and liver damage resulting in a liver transplant.  The FDA warning states that symptoms of liver damage include jaundice (yellowing of the skin or whites of the eyes) and brown urine.  Other symptoms include vomiting, nausea, excessive fatigue, weakness, light-colored stools, stomach or abdominal pain, itching and loss of appetite.   

The list of products being recalled by Iovate currently includes:

• Hydroxycut Regular Rapid Release Caplets
• Hydroxycut Caffeine-Free Rapid Release Caplets
• Hydroxycut Hardcore Liquid Caplets
• Hydroxycut Max Liquid Caplets
• Hydroxycut Regular Drink Packets
• Hydroxycut Caffeine-Free Drink Packets
• Hydroxycut Hardcore Drink Packets (Ignition Stix)
• Hydroxycut Max Drink Packets
• Hydroxycut Liquid Shots
• Hydroxycut Hardcore RTDs (Ready-to-Drink)
• Hydroxycut Max Aqua Shed
• Hydroxycut 24
• Hydroxycut Carb Control
• Hydroxycut Natural

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