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Chesher v. 3M Co.

United States District Court, D. South Carolina, Charleston Division

February 13, 2017

JAMES WILSON CHESHER, and CHERYL ANN CHESHER, Plaintiffs,
v.
3M COMPANY, et al., Defendants.

          ORDER

          DAVID C. NORTON, UNITED STATES DISTRICT JUDGE

         This matter is before the court on defendant Crane Co.'s (“Crane”) motion for summary judgment. For the reasons stated below, the court denies Crane's motion.

         I. BACKGROUND

         Plaintiff James Wilson Chesher (“Chesher”), a former machinist mate and a commissioned officer in the U.S. Navy, together with his wife, plaintiff Cheryl Ann Chesher (together “plaintiffs”), allege that Chesher's exposure to asbestos throughout his Naval career, caused him to develop mesothelioma. Compl. ¶¶ 31-34. Chesher served in the Navy from 1965 to 1989. For a significant portion of his career, Chesher conducted or oversaw maintenance and repair work on various types of equipment, including valves and de-aerating feed tanks-large tanks which remove dissolved oxygen from the water before it is sent to the boiler. ECF No. 226-1, Chesher Video Dep. at 21:21-22:17, 26:10-22; ECF No. 226-2, Chesher First Dep. at 147:7-14. Chesher's work on valves required him, or his subordinate, to remove and replace internal packing and bonnet gaskets, which were frequently made from asbestos-containing materials. Chesher Video Dep. at 26:10-22 (describing work on internal packing and bonnet gaskets); ECF No. 226-9, Pantaleoni Dep. at 24:5-26:24, 57:7-25, 63:3-64:22, 72:9-18 (discussing drawings of valves approved for use by the Navy that specified the use of asbestos-containing materials); ECF No. 226-10, Moore Aff. ¶ 17 (noting that Crane drawings specified use of asbestos containing internal packing and bonnet gaskets for certain valves installed on the USS Henderson and USS Fox). This work produced dust which Chesher breathed in. Pantaleoni Dep. at 27:20-28:25, 30:1-30:21. Chesher's work on de-aerating feed tanks required him to access nozzles inside the tank by crawling through a manhole. Chesher First Dep. at 53:11-15. The record contains evidence that this manhole was sealed by an asbestos-containing gasket, Moore Aff. ¶ 19, which needed to be removed and replaced whenever the tank was inspected. ECF No. 226-3, Chesher Second Dep. at 456:13-18.

         Crane supplied valves for use on board the ships where Chesher performed, or closely supervised, valve maintenance.[1] ECF No. 226-8, Crane Answers to Interrogs. at 20. Indeed, Chesher recalls working on Crane valves frequently throughout his career. Chesher Second Dep. at 420:4-15. Though Crane did not manufacture asbestos-containing sheet packing or gaskets, these products were installed in Crane's valves at the time they were supplied to the Navy, see Pantaleoni Dep. at 24:5-11, 24:24-25:5 (indicating that Crane would have to provide component parts as specified in design drawings at time of delivery), and Crane was aware that the valves' sheet packing and gaskets would need to be replaced periodically. ECF No. 226-5, Crane Catalog No. 60 at 10-11. Crane is also alleged to be the successor-in-interest to Cochrane Corp. (“Cochrane”), which manufactured the de-aerating feed tanks for two of the ships on which Chesher served. Moore Aff. ¶ 19. Like the gaskets used in Crane valves, the gaskets used to seal the manhole on the de-aerating feed tanks would have been replaced periodically-namely, each time the tanks were opened. Id. ¶ 20.

         On April 15, 2015, plaintiffs brought the instant action in the Court of Common Pleas in Richland County, South Carolina, alleging claims for negligence, gross-negligence, negligence per se, conscious pain and suffering, punitive damages, and loss of consortium against a number of defendants. The action was removed to this court on May 22, 2015. On March 4, 2016, Crane filed the instant motion for summary judgment. ECF No. 187. Plaintiffs filed a response on April 4, 2016, ECF No. 226, and Crane filed a reply on April 14, 2016. ECF No. 230. The court held a hearing on June 2, 2016, and ordered the parties to conduct supplemental briefing. Plaintiffs filed their supplemental brief on June 3, 2016, ECF No. 248, and Crane filed a response on June 8, 2016. ECF No. 249. The motion is now ripe for the court's review.

         II. STANDARD

         Summary judgment shall be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248. “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine, ' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         “[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249. When the party moving for summary judgment does not bear the ultimate burden of persuasion at trial, it may discharge its burden by demonstrating to the court that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The non-movant must then “make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Id. at 322. The court should view the evidence in the light most favorable to the non-moving party and draw all inferences in its favor. Anderson, 477 U.S. at 255.

         III. DISCUSSION

         A. Jurisdiction and Choice of Law

         At the outset, the court notes that there is no dispute that court has admiralty jurisdiction over this action. Def.'s Mot. 5-7; Pls.' Resp. 9. Because the Court has admiralty jurisdiction, it must apply maritime law. See E. River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864 (1986) (“With admiralty jurisdiction comes the application of substantive admiralty law.”). “Drawn from state and federal sources, the general maritime law is an amalgam of traditional common-law rules, modifications of those rules, and newly created rules.” Id. at 864-65. “The role of state law in maritime cases is significant and complex.” Wells v. Liddy, 186 F.3d 505, 524 (4th Cir. 1999). A “fundamental feature of admiralty law” is that “federal admiralty courts sometimes do apply state law.” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 546 (1995). State law may be used to supplement federal maritime law as long as state law is “compatible with substantive maritime policies” and is not “inconsonant with the substance of federal maritime law.” Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 202 (1996); see also Askew v. Am. Waterways Operators, Inc., 411 U.S. 325, 341 (1973) (“Even though Congress has acted in the admiralty area, state regulation is permissible, absent a clear conflict with the federal law.”); Princess Cruises, Inc. v. Gen. Elec. Co., 143 F.3d 828, 834 (4th Cir. 1998) (“When no federal statute or well-established rule of admiralty exists, admiralty law may look to the common law or to state law, either statutory or decisional, to supply the rule of decision.”); Byrd v. Byrd, 657 F.2d 615, 617 (4th Cir. 1981) (“[A]dmiralty law, at times, looks to state law, either statutory or decisional, to supply the rule of decision where there is no admiralty rule on point.”). However, “state law may not be applied if it conflicts with, or seeks to materially change, federal maritime law.” E.g., State of Md. Dep't of Natural Res. v. Kellum, 51 F.3d 1220, 1226 (4th Cir. 1995). Thus, the court must apply substantive maritime law supplemented by state law to the extent that it does not conflict with well-established maritime law.

         B. Duty to Warn Under Maritime Law

         Crane argues that it cannot be held liable for Chesher's injuries because there is no evidence that he was ever exposed to any asbestos-containing products that were manufactured or distributed by Crane. Def.'s Mot. 8. This argument, commonly known as the “bare metal defense, ” is premised on the assertion that a product manufacturer is not responsible for harms caused by a product it did not manufacture or supply. Products Liability, 3 The Law of Seamen § 31:6 (5th ed.). Plaintiffs contend that, in certain narrow circumstances, the bare metal defense is unavailable and an equipment manufacturer may be held liable for its failure to warn of risks arising from exposure to asbestos-containing components supplied by third parties. Pls.' Resp. 9-11. The bare metal defense has garnered increased attention in recent years as courts have sought to determine whether it applies in cases where the defendant's products did not contain the actual asbestos fibers that the plaintiff inhaled, but were nonetheless integral to the plaintiff's asbestos exposure. This court now joins this endeavor.

         The starting point for any analysis of the bare metal defense under maritime law is Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488 (6th Cir. 2005). In Lindstrom, the Sixth Circuit addressed maritime law's requirements for establishing causation in a products liability action. The court held regardless of whether the action was brought under a theory of negligence or strict liability, “a plaintiff must show, for each defendant, that (1) he was exposed to the defendant's product, and (2) the product was a substantial factor in causing the injury he suffered.” Id. at 492. Applying this principle to the plaintiffs' claims against the manufacturers of certain pumps and valves that utilized asbestos-containing replacement parts, the Lindstrom court determined that the defendants were entitled to summary judgment because the plaintiffs had not shown that the defendants actually manufactured the asbestos-containing material that caused their injuries. Id. at 495-97 (holding that “Henry Vogt cannot be held responsible for material ‘attached or connected' to its product on a claim of a manufacturing defect, ” “Coffin Turbo cannot be held responsible for the asbestos contained in another product, ” and “Ingersoll Rand cannot be held responsible for asbestos containing material that it was incorporated into its product post-manufacture”).

         In a case addressing similar facts, the federal asbestos multidistrict litigation (“MDL”) court applied the same principle to the plaintiffs' failure-to-warn claims. Conner v. Alfa Laval, Inc., 842 F.Supp.2d 791 (E.D. Pa. 2012). In Conner, the plaintiffs alleged that the defendant-manufacturers were liable for their failure to warn of the risks associated with asbestos-containing replacement components used in their products. The MDL court acknowledged that there was evidence that:

[d]efendants knew Navy sailors would be exposed to asbestos while repairing and maintaining [d]efendants' products; that the products “required” asbestos insulation, gaskets, and packing; that [d]efendants sometimes shipped their products with asbestos components “already in place”; that [d]efendants supplied asbestos-containing replacement parts; and that their products required maintenance that would expose the sailors to asbestos-containing products.

Id. Despite this evidence, the MDL court relied on Lindstrom and certain state court decisions to hold that, “under maritime law, a manufacturer is not liable for harm caused by, and owes no duty to warn of the hazards inherent in, asbestos products that the manufacturer did not manufacture or distribute.” See id. at 798-801 (discussing Lindstrom, and certain California and Washington state court decisions). The MDL court also highlighted the public policy concerns underlying its decision, explaining that “public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained, ” id. at 801 (quoting Restatement (Second) of Torts § 402A cmt. c (1965)), and concluding that these concerns “weigh against holding manufacturers liable for harm caused by asbestos products they did not manufacture or distribute because those manufacturers cannot account for the costs of liability created by the third parties' products.” Id.

         The court in Quirin v. Lorillard Tobacco Co. took a different approach. 17 F.Supp.3d 760 (N.D. Ill. 2014). While the Quirin court acknowledged that Lindstrom appeared to preclude recovery for claims based on exposure to asbestos-containing replacement components, the court found that Lindstrom's holding was not determinative because the Lindstrom court did not discuss failure-to-warn claims. Id. at 768. The court also acknowledged the MDL court's decision in Conner, but explained that not all courts had applied the same approach when faced with this issue. Id. at 769. After surveying the caselaw, the court found that three basic approaches had emerged:

Some courts have concluded that a defendant is liable whenever the use of asbestos in connection with its product is foreseeable. [] Conversely, other courts have concluded that a defendant is never liable when the material containing asbestos was supplied by a third party. [] Finally, some courts have followed a middle road, finding a duty where the use of asbestos-containing materials was specified by a defendant, was essential to the proper functioning of the defendant's product, or was for some other reason so inevitable that, by supplying the product, the defendant was responsible for introducing asbestos into the environment at issue.

Id. The court then adopted the “middle path” and held that while a manufacturer generally could not be held liable for materials it did not supply,

a duty may attach where the defendant manufactured a product that, by necessity, contained asbestos components, where the asbestos-containing material was essential to the proper functioning of the defendant's product, and where the asbestos-containing material would necessarily be replaced by other asbestos-containing material, whether supplied by the original manufacturer or someone else.

Id. at 769-70. The court described the scope of this duty in a number of ways, contrasting cases where there was no evidence that the defendant “specified that its [product] had to be used with asbestos-containing [material] or that the [product] required such [material] to function properly.” Id. at 771. The court also explained that “[t]he duty attaches only when the manufacturer incorporated the asbestos-containing material into its product.” Id. at 770. Finally, the court concluded that “a manufacturer should [not] avoid liability . . ., where it designed its products to be used with asbestos-containing materials and actually incorporated asbestos-containing materials into the products it sold, ” reasoning that when such criteria were satisfied “a jury could conclude that it was not just foreseeable, but inevitable, that the product would subject those working with it to the possible hazards of asbestos exposure.” Id. at 771.

         In recent years, a split has emerged between courts applying Quirin, or a similar, Quirin-like approach, and courts adhering to Conner's more restrictive view of a manufacturer's duty to warn.[2] Compare Osterhout v. Crane Co., 2016 WL 6310765, at *3 (N.D.N.Y. Oct. 27, 2016) (reiterating the court's previous adoption of the Quirin analysis), Bell v. Foster Wheeler Energy Corp., 2016 WL 5780104, at *6 (E.D. La. Oct. 4, 2016) (holding that a manufacturer that incorporates asbestos components into its finished product may be liable if the manufacturer's failure to warn of hazards associated with “the original asbestos components . . . is a proximate cause of a subsequent harmful exposure to asbestos contained in an aftermarket replacement part” or “if the manufacturer negligently recommends the use of a defective aftermarket product”) (emphasis in original), [3] Hedden v. CBS Corp., 2015 WL 5775570, at *14 (S.D. Ind. Sept. 30, 2015) (recognizing that, generally, “a manufacturer cannot be liable for asbestos products that it did not manufacture or distribute, ” but holding “the defendant may be liable for asbestos injuries” under the circumstances outlined in Quirin), Kochera v. Foster Wheeler, LLC, 2015 WL 5584749, at *4 (S.D. Ill. Sept. 23, 2015) (“Like the Quirin court, this Court is not convinced that a manufacturer should avoid liability on a failure to warn theory where it designed its products to be used with asbestos-containing materials.”), and Andrews v. 3M Co., No. 2:13-cv-2055, 2015 WL 12831315, at *6 (D.S.C. May 22, 2015) (“[T]he Court follows Quirin and holds that [a manufacturer] can be legally responsible for internal asbestos-containing replacement packing under certain circumstances, even if there is no direct evidence that [the manufacturer] supplied the replacement packing.”), on reconsideration, sub nom. Andrews v. CBS Corp., 2015 WL 12831342 (D.S.C. June 18, 2015), [4] with Evans v. CBS Corp., 2017 WL 240079, at *1 (D. Del. Jan. 19, 2017) (“The so-called ‘bare metal defense' is recognized by maritime law, such that a manufacturer has no liability for harms caused by-and no duty to warn about hazards associated with-a product it did not manufacture or distribute.” (quoting Carper v. Gen. Elec. Co., 2014 WL 6736205, at *1 (E.D. Pa. Sept. 4, 2014)); Stallings v. Georgia-Pac. Corp., 2015 WL 7258518, at *4 (W.D. Ky. Nov. 17, 2015) (holding that “[a] company is not responsible for the asbestos contained in another manufacturer's product, ” and granting summary judgment where plaintiff failed to produce evidence that defendant-manufacturer provided the asbestos-containing replacement components that the decedent was exposed to), aff'd on other grounds, 2017 WL 87023 (6th Cir. Jan. 10, 2017), [5] Crews v. Air & Liquid Sys. Corp., 2014 WL 639685, at *5 (N.D.N.Y. Feb. 18, 2014) (holding that “Crane Co. had no duty to warn Plaintiff about the dangers of third-party products that were used with its valves because it neither had any control over the production of these products nor placed them into the stream of commerce”), Cabasug v. Crane Co., 989 F.Supp.2d 1027, 1041 (D. Haw. 2013) (relying on Conner and holding that “under maritime law, a manufacturer is not liable for replacement parts that it did not place into the stream of commerce, whether the manufacturer's product originally contained asbestos components or was designed to include asbestos components), and Faddish v. Buffalo Pumps, 881 F.Supp.2d 1361, 1373 (S.D. Fla. 2012) (applying the bare metal defense to grant equipment manufacturer-defendants summary judgment where plaintiff failed to present evidence that “any of [the] [asbestos-containing] replacement parts” that caused the plaintiff's injury were “made by any defendant or that defendants had any involvement with their installation”).[6]

         This rift has developed around a number of issues.[7] Some courts have debated the scope of the Sixth Circuit's holding in Lindstrom. Compare Devries v. Gen. Elec. Co., 188 F.Supp.3d 454, 458 (E.D. Pa. 2016) (holding that Lindstrom extends to failure-to-warn claims, and therefore, “maritime law imposes no duty upon a product manufacturer to warn of the dangers associated with another manufacturer's ‘product' (or component part)”) and Cabasug, 989 F.Supp.2d at 1039 (calling Lindstrom “instructive” on the scope of a manufacturer's duty to warn “for its determination that a manufacturer is not liable for a third party's replacement asbestos products”); with Andrews, 2015 WL 12831315, at *6 (distinguishing Lindstrom as “a manufacturing defect case [that] did not consider or discuss a failure-to-warn claim”). Courts have also reached different conclusions on which approach is more consistent with the majority position under state law. Compare Bell, 2016 WL 5780104, at *2 (E.D. La. Oct. 4, 2016) (“[T]he recent trend in state court asbestos litigation has been to recognize limited circumstances in which a manufacturer can have duties to warn regarding a product that the manufacturer did not make, sell, or otherwise control.”) with Cabasug, 989 F.Supp.2d at 1042 (finding that “[p]laintiffs can hardly suggest that Lindstrom and Conner are outliers in their conclusions where they too cited state law cases in support of their analyses, ” and finding that the state law cases the plaintiffs provided in opposition were largely inapplicable to the question before the court). Most importantly, courts have taken different positions on which view best serves the policies animating product-liability and maritime law. Compare Bell, 2016 WL 5780104, at *8 (finding that “the manufacturer of the finished product containing asbestos may well be better placed to warn when compared to the manufacturer of an aftermarket wear item”); with Conner, 842 F.Supp.2d at 801 (finding that public policy considerations “weigh[] against holding manufacturers liable for harm caused by asbestos products they did not manufacture or distribute because those manufacturers cannot account for the costs of liability created by the third parties' products”). The court analyzes each of these issues in turn.

         1. Scope of the Lindstrom Decision

         As noted above, the Conner court relied heavily on the Lindstrom decision in concluding that a manufacturer owes no duty to warn with respect to “asbestos products that the manufacturer did not manufacture or distribute.” See Conner, 842 F.Supp.2d at 801 (construing this position as an “adoption” of Lindstrom). In contrast, the Quirin court distinguished Lindstrom on the grounds that the Lindstrom decision did not discuss failure-to-warn claims. Quirin, 17 F.Supp.3d at 768. More recently, the MDL court has identified this issue as “the source of divergence between the Conner and Quirin decisions.” Devries, 188 F.Supp.3d at 463. Courts that have adopted a Quirin-like approach to the failure-to-warn issue have generally avoided a direct challenge to the holding in Lindstrom, either by explicitly distinguishing it or implicitly suggesting that it did not require an application of the bare metal defense to failure-to-warn claims. See Hedden, 2015 WL 5775570, at *11 (citing Lindstrom for the general principles of causation but nevertheless holding that a defendant may be liable under the circumstances outlined in Quirin); Kochera, 2015 WL 5584749, at *3 (same); Andrews, 2015 WL 12831315, at *6 (distinguishing Lindstrom as “a manufacturing defect case [that] did not consider or discuss a failure-to-warn claim”); but see Bell, 2016 WL 5780104, at *1 (reading Lindstrom to hold that a manufacturer can never be liable “unless the manufacturer made, sold, or otherwise controlled the precise aftermarket asbestos components that released the asbestos fibers that injured the plaintiff, ” and refusing to adopt such a view). Thus, the interpretation of Lindstrom has served as something of a gateway issue into the Quirin-Conner debate.

         In Devries, the MDL court explained its interpretation of Lindstrom, making it clear that it read Lindstrom's reference to “both negligence and strict liability theories” to encompass failure-to-warn claims. Devries, 188 F.Supp.3d at 459 n.7. Thus, in the MDL court's view, Lindstrom requires a plaintiff show “evidence of exposure to asbestos from the defendant's ‘product'” in any products liability action brought under maritime law. Id. at 460-61. “Implicit in this rule is the holding that a product manufacturer has no duty to warn about hazards arising from another manufacturer's product (or component part).” Id. at 460 n.11.

         The court has no doubt that this is a fair reading of the Lindstrom decision. Indeed, other courts have adopted similar readings. See, e.g., Bell, 2016 WL 5780104, at *1 (reading Lindstrom to hold that a manufacturer can never be liable “unless the manufacturer made, sold, or otherwise controlled the precise aftermarket asbestos components that released the asbestos fibers that injured the plaintiff”); Cabasug, 989 F.Supp.2d at 1039 (calling Lindstrom “instructive” on the scope of a manufacturer's duty to warn “for its determination that a manufacturer is not liable for a third party's replacement asbestos products”). Moreover, the court is hesitant to deviate from the MDL court's position, given the MDL court's expertise in this area of the law. Nevertheless, the court is convinced that the better reading of Lindstrom does not extend to failure-to-warn claims. The Lindstrom court's reference to “negligence and strict liability theories” is at least ambiguous, 424 F.3d at 492, and the decision contains no discussion of failure-to-warn claims. This alone has been enough to convince some courts-including one in this district-that Lindstrom does not extend to such claims. Andrews, 2015 WL 12831315, at *6 (distinguishing Lindstrom as “a manufacturing defect case [that] did not consider or discuss a failure-to-warn claim”); Quirin, 17 F.Supp.3d at 768 (distinguishing Lindstrom on the ground that it “did not discuss a failure-to-warn claim”).

         The court also finds that applying Lindstrom in the failure-to-warn context is conceptually problematic. The Lindstrom court held that to prove causation, a plaintiff must prove that “he was exposed to the defendant's product, and [] the product was a substantial factor in causing the injury he suffered.” 424 F.3d at 492. This rule is straightforward enough when a manufacturer breaches its duty by supplying a defective product because the product serves as a physical embodiment of the breach. Thus, causation can only be traced to the manufacturer through the manufacturer's own product. The same is not true when a manufacturer breaches its duty to warn of a product's unreasonably dangerous condition. In that situation, the breach does not arise out of the creation of the product itself but instead out of the manufacturer's failure to warn of the danger the product creates. Restatement (Second) of Torts § 388 (1965). Conceptually then, the plaintiff's task is to establish a causal link between his injury and the manufacturer's omission, not the product itself.

         It might be argued that this is a distinction without a difference-if the manufacturer's product did not cause the plaintiff's injury, there is no way causation could be traced to the manufacturer's failure to warn. To be sure, these inquiries will frequently merge, but the fact remains that a manufacturer's failure to warn is distinct from the act of creating the product. The court believes that, in certain narrow circumstances, a manufacturer's failure to warn of risks associated with its own product can cause a plaintiff to suffer injury through another manufacturer's product.[8] As the Eastern District of Louisiana explained in Bell, where the plaintiff's injury is attributable to “a replacement aftermarket wear item-i.e., a part that is designed to wear down and be replaced, ” and that replacement wear item “is materially identical to a wear item in the originally shipped product, it is hard to see how the manufacturer's breach of its duty to provide a suitable warning with respect to the original product is not at least one of the proximate causes of a resulting injury.” 2016 WL 5780104, at *6 n.16.[9] Thus, the distinction may be quite narrow, but the court finds that it is not meaningless. See Id. (stating that “such an exception . . . may well be quite narrow, ” “[b]ut that does not justify a categorical rule” that an equipment ...


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