Tag: Rule 11-6(4)

Late Defence Medical Report Inadmissible For Going Beyond Responsive Evidence Exception


When the New Rules of Court were introduced last year changes were made to the timelines to exchange expert reports.  An 84 day deadline was set out in Rule 11-6(3) and a shorter 42 day deadline is set out in Rule 11-6(4) for “responding reports“.   The first reasons for judgement that I’m aware of were released today by the BC Supreme Court, New Westminster Registry, addressing whether to admit a late report under the “responsive evidence” exception.
In today’s case (Crane v. Lee) the Plaintiff was injured in a 2005 motor vehicle collision.  The Defendant ran a stop sign and admitted fault for the crash.   The Plaintiff’s expert provided evidence that she suffered from soft tissue injuries and a herniated disc.  The Defendant obtained an expert report which contradicted this finding and served this report less than 84 days before trial.  The Defendant argued that the report was responsive and should be admitted.  Mr. Justice Smith disagreed finding the report went beyond the narrow circumstances permitted in Rule 11-6(4).  In excluding the report the Court provided the following reasons:



[21] At the opening of the trial, counsel for the plaintiff objected to and sought a ruling on the admissibility of a medical report that the defendant intended to rely upon.  The report had not been served within the 84 days required by Rule 11-6 (3) of the Supreme Court Civil Rules, B.C. Reg. 168/2009.  Counsel for the defendant relied upon rule 11-6 (4), which reads:

(4)        Unless the court otherwise orders, if a party intends to tender an expert’s report at trial to respond to an expert witness whose report is served under subrule (3), the party must serve on every party of record, at least 42 days before the scheduled trial date,

(a)        the responding report, and

(b)        notice that the responding report is being served under this rule.

[22] Rule 11-6 (4) is intended to apply only to evidence that is truly responsive or in rebuttal to specific opinion evidence tendered by the opposite party.  It is not intended to provide defendants with a general exemption from the basic time limit for serving expert reports that is set out in Rule 11-6 (3).  Defendants who delay obtaining or serving expert evidence until after the plaintiff’s opinions have been received, then attempt to introduce all of their expert evidence as response, do so at their peril.

[23] In this case, I found that the report was not limited to true responsive evidence.  It stated the author’s opinion on the nature and cause of the plaintiff’s injury?the central issue that both sides had to address from the outset?and was based upon a review of all the medical records, including some not referred to by Dr. Field in his report.  As such, I considered it to be a free-standing medical opinion that ought to have been served pursuant to Rule 11-6 (3).  I ruled the report inadmissible, with the result that there was no expert evidence before me to contradict Dr. Field’s opinion.




The Court accepted the evidence from the Plaintiff’s expert and in assessing non-pecuniary damages of $100,000 Mr. Justice Smith provided the following reasons:
[33] On review of all the evidence, I find that the accident for which the defendant has admitted liability caused soft tissue injuries to the plaintiff’s neck and upper back, which eventually resolved, and a herniated disc in the lower back that continues to cause pain and limitation.  To the extent that the accident may have aggravated a pre-existing condition, I find that in the years immediately preceding the accident that condition was minimally symptomatic and there is no evidence that it would likely have become worse but for the accident.  I accept the uncontradicted evidence of Dr. Field that the plaintiff’s current pain is likely to be permanent…
[45] The injury the plaintiff suffered has had a significant impact on her enjoyment of life.  She has back pain on a daily basis, fluctuating according to her activities.  She has lost what was formerly a very active lifestyle, giving up some activities that she formerly enjoyed, while continuing some others on a reduced level, accepting the trade-off of increased pain.  The only medical evidence before me is that this condition is likely to be permanent. She also suffers severe anxiety while driving, particularly in situations similar to those that gave rise to the accident, although there is no evidence that this condition is necessarily permanent…
[49] Taking into account the effect of the plaintiff’s injuries on her lifestyle, the permanent nature of her pain and the psychological impact, including her driving anxiety, and considering the cases cited, I assess the plaintiff’s non-pecuniary damages at $100,000.

Prior Expert Reports, Cross-Examination and Notice


When a Plaintiff is cross examined in the trial of a personal injury claim can opinions from medico-legal reports from prior litigation be introduced into evidence without complying with the notice requirements set out in the Rules of Court?  Reasons for judgement were recently released by the BC Supreme Court addressing this issue.
In the recent case (Hosking v. Mahoney) the Plaintiff was injured in three separate motor vehicle collisions.  The first collision was in 2000, the second in 2001 and the third in 2004.
The Plaintiff advanced claims for compensation as a result of all three collisions.  In the course of the first two claims the Plaintiff’s physician authored a medico-legal report in 2003 addressing the extent of her injuries.  The Plaintiff settled both these claims prior to her third collision.
The claim arising from the third collision did not settle and proceeded to trial.  At trial the Defendant introduced the prior medico-legal report during cross examination.  The Court allowed this and further permitted the previous opinion to go into evidence even though the usual notice requirements for the introduction of opinion evidence were not complied with.  In permitting this evidence to be introduced Mr. Justice Warren provided the following reasons:
[171] I found the medical opinion of Dr. Gurdeep Parhar, the plaintiff’s attending physician for the first two accidents and the author of the medical/legal report of March 10, 2003, important and difficult to resolve with the evidence and submissions of the plaintiff that she had largely recovered prior to the February 2004 accident.  This evidence was entered by the defendant when cross-examining the plaintiff and was not rebutted or varied by Dr. Parhar who was not called to testify.  The court is entitled to draw an adverse inference when a witness who could provide relevant evidence on an issue before the court, is not called.  In my view the defendant was entitled to rely upon the letter and opinion of Dr. Parhar without providing the usual notice.  It was a report prepared for and at the request of the plaintiff and it was identified and portions adopted by the plaintiff in cross-examination.  The plaintiff had the opportunity to call Dr. Parhar or evidence to rebut the opinion or to object to its introduction prior to its use in cross-examination.

More on Responding Medical Reports and Physical Exams: Reconciling the Cases to Date


As previously discussed, a debate has arisen about if and when a Defendant is allowed to compel a Plaintiff to attend an ‘independent‘ medical exam in order to obtain a ‘responding‘ report under the BC Supreme Court Rules.  Very useful reasons were released this week by the BC Supreme Court, Victoria Registry, addressing and reconciling the various authorities considering this issue to date.
In today’s case (Labrecque v. Tyler) the Plaintiff was involved in three separate collisions.  He sued for damages and all three claims were set for trial at the same time.   In the course of the lawsuit the Plaintiff obtained  a report from his GP and from a physiatrist.  The Plaintiff intended to rely on the physiatrist’s report at trial.  The Defendants intended to rely on the GP’s report at trial.  The Plaintiff never attended a defence medical exam in the course of the lawsuit and as the trial neared one of the Defendant’s brought an application to compel the Plaintiff to attend an examination in order to get a ‘responding’ report.
In support of the application the proposed examiner swore an affidavit explaining that he needs to ‘physically examine the plaintiff and ask him the questions a doctor would ask in order to elicit information upon which to ground my opinions‘.    The application was dismissed finding that this falls short of what is required in order for a physical exam to be ordered as part of a responding report.  In dismissing the application Master Bouck provided the following useful reasons reconciling the authorities addressing this issue to date:

[28] In Wright v. Bauer, the court recognized that Rule 11-6(4) “filled a lacuna” in the Rules governing civil procedure in this province: para. 12. Parties are now specifically governed by a Rule regarding delivery of responsive written expert evidence. Prior to this Rule’s enactment, the delivery of such evidence was governed by common law principles.

[29] In that case, the application for an independent medical examination was brought nearly one month before the defence would have been required to serve a responsive report.

[30] In dismissing the defendant’s application, the court found that the applicant had not met the necessary evidentiary threshold justifying an order under Rule 7-6: para. 21.

[31] The same result is found in Boudreau v. Logan and Crane v. Lee, supra.

[32] In contrast, the court in Luedecke v. Hillman was satisfied that an order should go requiring the plaintiff’s attendance at an examination…

[35] In my view, the principles enunciated in Luedecke and Wright are consistent and entirely reconcilable. The difference between the outcomes in these two cases lies in the facts.

[36] In both cases, the court concerned itself with the evidence presented to support the necessity of an examination as well as the question of prejudice.

[37] Here, the evidence from Dr. Piper as to the necessity for an examination is rather general in nature. Dr. Piper refers to the reports of both Dr. Grimwood and Dr. MacKean when in fact the responsive opinion would concern only the latter’s report. Unlike the evidence from the proposed examiner in Luedecke, Dr. Piper does not specifically identify the “medical evidence” (other than the reports themselves) that can only be addressed if a physical examination of the plaintiff occurs. Rather, Dr. Piper’s evidence suggests that an examination is necessary to respond generally to the subject matter of the plaintiff’s case and, as such, is no justification for the order sought: Luedecke at para. 52.

More on The New Rules of Court, IME's and "Responding" Medical Reports


Precedents addressing whether an independent medical exam can be ordered to permit a Defendant to obtain a ‘responding‘ report are still being worked out by the BC Supreme Court.  (You can click here to read my archived posts addressing this topic) Reasons for judgement were released today by the BCSC, Victoria Registry, further addressing this issue.
In today’s case (Hamilton v. Demandre) the Plaintiff was involved in 2 separate motor vehicle collisions.  She claimed she was injured in the first and that those injuries were aggravated in the second crash.  Both lawsuits were set for trial at the same time.   One of the alleged injuries was “visual vestibular mismatch with associated dizziness, motion sickness, balance problems and double vision“.
The Plaintiff submitted to medical exams with a neurologist and an orthopaedic surgeon at the request of the Defendant in the first crash.  The Plaintiff also attended an examination with a psychiatrist at the request of the Defendant in the second crash.
In support of her claim, the Plaintiff served reports from various experts including an ENT specialist.    These reports were served in compliance with the time lines set out in the Rules of Court.  The Defendant in the second crash then asked that the Plaintiff attend a further exam with an ENT of their choosing.  The examination was to take place less than 84 days before trial.
The Defendant argued that this exam was necessary in order to obtain a ‘responding‘ report.  The Plaintiff opposed arguing a further exam was not necessary.  Master Bouck agreed with the Plaintiff and dismissed the application.  In doing so the Court provided the following useful reasons:

[33] In a nutshell, the defendant submits that an ENT examination is required to rebut the opinion that the plaintiff’s ocular vestibular problems have worsened as a result of the second accident.

[34] Dr. Longridge’s report predates the second accident; as such, it is not of assistance to the defendant’s argument. If anyone were to rely on this report to obtain a rebuttal examination, it would be the defendants in the First Action.

[35] In any event, the complaints of ocular vestibular problems are of longstanding. This is not a case of a new diagnosis or even a suggestion that a referral to such an ENT specialist is medically required. Dr. Ballard merely opines that a referral to such a specialist is a possibility if the plaintiff’s symptoms continue. Moreover, Dr. Moll, whose opinion was clearly available to the defendant for some time, discusses these symptoms in his report of January 21, 2009.

[36] As submitted by the plaintiff, the defendant chose to pursue a psychiatric, rather than ENT opinion, knowing that the ocular vestibular complaints formed a significant part of the plaintiff’s claim.

[37] As for the other opinions offered, the experts are in agreement that the plaintiff’s condition has worsened, but that treatment may yet alleviate or reduce those symptoms.

[38] The defence clearly has a theory:  the plaintiff is malingering and/or suffers a somatoform disorder. To have the plaintiff examined by an ENT specialist for an assessment that will either be diagnostic in nature and thus not true rebuttal; or merely to prove a negative, that is to confirm that there is no physiological cause for the balance and visual disturbances, would be inconsistent not only with the authorities cited to me, but also with the purposes of Rule 7?6 and 11?6 (4).

[39] On the material before me, I conclude that any report forthcoming from Dr. Bell would be fresh opinion evidence masquerading as answer to the plaintiff’s reports.

[40] In short, the defendant has failed to meet the necessary evidentiary threshold which might support an order for the examinations requested. The application is thus dismissed with costs in the cause.


Caselaw Update: Independent Medical Exams and Responding Reports


As previously discussed, Rule 11-6(3) of the new BC Supreme Court Civil Rules requires expert reports to be served 84 days prior to trial.  Rule 11-6(4) requires “responding” reports to be served at least 42 days prior to trial.  The issue of whether a Defendant is able to force a plaintiff to attend an independent medical exam” for the purpose of obtaining a responding report is currently being worked out by the BC Supreme Court.
Two further cases have been brought to my attention addressing this topic and with these the bulk of the judicial authorities to date demonstrate that it may be very difficult for a Defendant to force a late ‘independent‘ examination to obtain a responding report.
Both of the recent cases (Crane v. Lee and Boudreau v. Logan) involve ICBC injury claims.  In both the Plaintiff served expert reports discussing the extent of their accident related injuries.  The Defendants applied to compel the Plaintiff to attend an independent exam inside the 84 day deadline in order to obtain responding reports.  Master Caldwell presided over both applications and dismissed them both.  In doing so the Court relied on Mr. Justice Savage’s reasoning in Wright v. Brauer and ruled that that precedent was “on all fours” with the present applications.  Master Caldwell repeated the following reasons from Mr. Justice Savage:

[18]         However, at this point in time in the action, the defendants are limited to what Mr. Justice Williamson referred to in Kelly, supra, as “truly responsive rebuttal evidence”.  The application must be considered in that light; the question on this application is not one of notice, but whether the Examination should be ordered to enable the defendant to file responsive evidence.  The authorizing Rule, 7-6(1) uses the term “may”.

[19]         In Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7, Sanders J., as she then was, noted that “true response evidence, does not permit fresh opinion evidence to masquerade as answer to the other side’s reports”.

[20]         In C.N. Railway v. H.M.T.Q. in Right of Canada, 2002 BCSC 1669, Henderson J. considered the admissability of “reply reports” holding that only the portions of the reports that provided a critical analysis of the methodology of the opposing expert were admissible as responsive evidence.  The portions of the reports describing the authors’ own opinions on the matters in issue were not admitted.

[21]         In this case, the defendants do not explain why an examination is required in these circumstances, other than a statement by a legal assistant that counsel says such is “necessary to properly defend this action and to respond to the reports of Dr. Weckworth and Dr. O’Connor”.  Master McCallum in White v. Gait, 2003 BCSC 2023 declined to order an examination where it had not been shown why such was required to produce a responsive report.

These cases, in total, seem to stand for the proposition that a Defendant needs to have sworn evidence from the proposed medical examiner explaining why physical examination is required in order to provide a responding report (which is what happened in Luedecke v. Hillman).  Absent this, late independent medical exam applications are being dismissed by the BC Supreme Court.

As of today’s date the Crane and Boudreau decisions are unpublished.  As always I’m happy to provide a copy of these cases to anyone who could benefit from them.  You can request a copy by filling out the form on this link.

The Debate Goes On… Independent Medical Exams and "Responsive" Expert Evidence


Rule 11-6(3) of the new BC Supreme Court Civil Rules requires expert reports to be served 84 days prior to trial.  Rule 11-6(4) requires “responding” reports to be served at least 42 days prior to trial.  The issue of whether a Defendant is able to force a plaintiff to attend an “independent medical exam” for the purpose of obtaining a responding report is currently being worked out by the BC Supreme Court.  Reasons for judgement were released last week demonstrating this matter remains a live issue.
Earlier this year, Mr. Justice Savage declined a defence motion to compel a Plaintiff to attend a doctor’s examination to obtain a responding report finding that an independent examination of a Plaintiff is not necessarily required since responding reports are to be strictly limited to “a critical analysis of the methodology of the opposing expert”
In a case released last week the Court reached a seemingly opposite result with a finding that an independent medical exam can be compelled to allow a Defendant to obtain a responding report in a personal injury claim.
In last week’s case (Luedecke v. Hillman) the Plaintiff was injured in a BC motor vehicle collision.  He served his expert reports in the timelines required by the Rules of Court.  The Defendant sought an order for an independent medical exam to obtain a responding opinion.  The Plaintiff opposed arguing that a medical examination is not necessary to obtain a truly responding opinion.  Mr. Justice Cullen disagreed and upheld a Master’s order compelling the Plaintiff to see the Defendant’s doctor.  In doing so the Court noted as follows:

[49]        Although the plaintiff submits that Dr. Reebye should be limited in his report to “criticizing the methodology or the research or pointing out facts apparent from the records which the other examiners may have overlooked” based on Justice Savage’s apparent reliance on C.N. Rail, supra, I do not take from Savage J.’s judgment that responsive opinions are invariably limited to “a critical analysis of the methodology of the opposing expert.”

[50]        In C.N. Rail, supra, Henderson J. was dealing with rebuttal evidence in the classic sense described by Southin J.A. in Sterritt v. McLeod, supra, as simply evidence responsive to some point in the oral evidence of the witness called by the defendant.

[51]        What is at issue in the present case is a different form of responsive evidence, recognized in Stainer v. Plaza, supra, as distinct in paragraph 15, where Finch J.A. ( as he then was) noted:

The third condition in the order is directed to the third party calling an independent medical examiner “for rebuttal evidence” I understand from counsel that this refers not to rebuttal evidence as generally understood, but to evidence that is purely responsive to medical evidence which the plaintiff has led as part of her case.  It would not apply to opinion evidence offered by the third party on subject matters not adduced in the medical evidence adduced by the plaintiff. [underlining added]

[52]        I thus conclude that what is referred to in Rule 11-6(4) is not akin to rebuttal evidence such as that called by a plaintiff in response to a defendant’s case, with its consequent limitations.  Nor is it akin to expert evidence that responds generally to the subject matter of the plaintiff’s case.  Rather, it refers to evidence that is “purely responsive” to the medical evidence which the other party has called.

[53]        As such, it has inherent limitations, but not necessarily the same limitations that Henderson J imposed on the true rebuttal evidence he was dealing with in C.N. Rail, supra.

[54]        I agree with the conclusion of Mr. Justice Savage in Wright v. Brauer, supra, to the effect that there is an evidentiary threshold to be met before an order under Rule 7-6(1) should be made in contemplation of an expert’s report under Rule 11-6(4).  That threshold is different from that for ordering an expert’s report under Rule 11-6(3).  To reach the requisite threshold under Rule 11-6(4) the applicant must establish a basis of necessity for the examination to properly respond to the expert witness whose report is served under subrule (3) by the other party.  It is not simply a matter of demonstrating a need to respond to the subject matter of the plaintiff’s case.

[55]        Clearly, that threshold was not met in the case before Savage J.  In the case before me there is an affidavit from Dr. Reebye setting forth a basis for the examination sought, although ultimately what Dr. Reebye may regard as purely responsive may be different from that which the trial judge eventually concludes to be so.  That issue must await another day.  Here I am dealing with a more limited issue, and I am satisfied that on the basis of Dr. Reebye’s affidavit the evidentiary threshold is met and the order of Master Scarth should be upheld.

[56]        I am alive to the concern expressed by the plaintiff’s counsel that Rule 11-6(4) may be seen as a means for defendants to circumvent the more onerous notice provisions of 11-6(3) and routinely seek to obtain reports that more properly should be sought under that latter rule.  I conclude, however, that such a concern can be met as it was with the practice of having opinion evidence without notice under the old Rule 40A.  In that regard, the words of Williamson J. in Kelley v. Kelley (1995), 20 B.C.L.R. (3d) 232 (S.C.) are apt:

I would restrict, of course, as courts I think must, the practice of having opinion evidence without notice strictly to truly responsive rebuttal evidence, and I think if that rule is carefully observed, there should be no difficulties.

As with judicial precedents developed under the former rules, I expect there will be some seemingly inconsistent judgements dealing with the issue of independent medical exams under the current rules and eventually the BC Court of Appeal will likely weigh in on the issue to bring some clarity to the law.

The New BC Supreme Court Rules and "Responsive" Expert Reports


Important reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, interpreting and applying Rule 11-6(4) for the first time.  This rule deals with “responsive” expert opinion evidence.
Under the old Rules of Court parties could call responsive expert evidence without notice provided the evidence was truly responsive.  The new rules of court changed this and require responsive expert reports to be served 42 days ahead of the scheduled trial.
In today’s case (Wright v. Bower) the Plaintiff was involved in a motor vehicle collision and alleged chronic back pain as a result of the crash.  Her lawyer served expert reports addressing these injuries in compliance with the time lines set out in the rules of court.  The Defendant brought a motion to compel the Plaintiff to attend an examination with an orthopaedic surgeon in order to obtain a ‘responsive’ report.  The Plaintiff opposed arguing that an examination was not necessary for the Defendant to obtain a truly responsive report.  Mr. Justice Savage agreed with the Plaintiff and dismissed the motion.  In doing so the Court provide the following useful reasons setting the parameters for responsive expert evidence:

[12]         Rule 11-6(4) was enacted to fill a lacuna in the Rules.  Under the former Rules, Rule 40A permitted parties to call expert evidence in reply without notice at trial.  In order for such evidence to be admitted, however, it had to be truly responsive to the expert evidence of a witness called by the opposing party.

[13]         In Stainer, supra, the British Columbia Court of Appeal considered Rule 40A(3) and the scope of the Court’s discretion to admit responsive evidence.  At paragraphs 16-18, Finch J.A. said:

[16]      …The admission of expert evidence is now governed by Rule 40A(3)

An expert may give oral opinion evidence of a written statement if the opinion has been delivered to every party of record at least sixty days before the expert testifies.

[17]      That rule applies equally to all parties.  In the normal course, a defendant will wish to protect his right to adduce expert evidence at trial by giving the notice required by that rule.  But the court retains a discretion to admit responsive evidence of which notice has not been given:  Pedersen v. Degelder (1985), 62 B.C.L.R. 253 (B.C.S.C.); Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7 (S.C.); and Kelly v. Kelly (1995), 20 B.C.L.R. (3d) 232 (S.C.).  In the latter case Mr. Justice Williamson said:

I would restrict, of course, as courts I think must, the practice of having opinion evidence without notice strictly to truly responsive rebuttal evidence, and I think that if that rule is carefully observed, there should be no difficulties.

[18]      That is, in my respectful view, a correct statement of the proper practice. …

[15]         Amongst other things, the parties argued before me regarding whether the new Rules have substantively changed the practice which existed under Rule 40A.  They agreed that this is an important practice point, and a case of first impression.

[16]         Rule 40A gave the Court discretion to admit responsive evidence of which notice had not been given.  Rule 11-6(4) now provides that notice must be given of responsive expert evidence (although I note that the Court retains discretion to admit expert evidence of which sufficient notice has not been given).

[17]         I would expect that, in the ordinary course, an examination would be ordered under Rule 7-6(1) where a person’s medical condition was in issue in an action, provided it was requested in a timely way.

[18]         However, at this point in time in the action, the defendants are limited to what Mr. Justice Williamson referred to in Kelly, supra, as “truly responsive rebuttal evidence”.  The application must be considered in that light; the question on this application is not one of notice, but whether the Examination should be ordered to enable the defendant to file responsive evidence.  The authorizing Rule, 7-6(1) uses the term “may”.

[19]         In Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7, Sanders J., as she then was, noted that “true response evidence, does not permit fresh opinion evidence to masquerade as answer to the other side’s reports”.

[20]         In C.N. Railway v. H.M.T.Q. in Right of Canada, 2002 BCSC 1669, Henderson J. considered the admissability of “reply reports” holding that only the portions of the reports that provided a critical analysis of the methodology of the opposing expert were admissible as responsive evidence.  The portions of the reports describing the authors’ own opinions on the matters in issue were not admitted.

[21]         In this case, the defendants do not explain why an examination is required in these circumstances, other than a statement by a legal assistant that counsel says such is “necessary to properly defend this action and to respond to the reports of Dr. Weckworth and Dr. O’Connor”.  Master McCallum in White v. Gait, 2003 BCSC 2023 declined to order an examination where it had not been shown why such was required to produce a responsive report.

[22]         In my opinion, the bare assertion reported to a legal assistant in this case is insufficient to support an order under Rule 7-6(1) that the plaintiff attend the Examination, when the defendants are limited to providing response reports under Rule 11-6(4).  In the circumstances, the application is dismissed.  The plaintiff is entitled to costs of the application.

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ERIK
MAGRAKEN

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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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