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|Any Remark Found On Abstract Appeal Should Be Attributed Solely To Its Author|
[T]he Schindlers argue that the testimony, which was conflicting, was insufficient to support the trial court's decision by clear and convincing evidence. We have reviewed that testimony and conclude that the trial court had sufficient evidence to make this decision. The clear and convincing standard of proof, while very high, permits a decision in the face of inconsistent or conflicting evidence. See In re Guardianship of Browning, 543 So.2d at 273.You can read the Second District's full opinion from January 2001 here.
In Browning, we stated:
In making this difficult decision, a surrogate decisionmaker should err on the side of life.... In cases of doubt, we must assume that a patient would choose to defend life in exercising his or her right of privacy.In re Guardianship of Browning, 543 So.2d at 273. We reconfirm today that a court's default position must favor life.
The testimony in this case establishes that Theresa was very young and very healthy when this tragedy struck. Like many young people without children, she had not prepared a will, much less a living will. She had been raised in the Catholic faith, but did not regularly attend mass or have a religious advisor who could assist the court in weighing her religious attitudes about life-support methods. Her statements to her friends and family about the dying process were few and they were oral. Nevertheless, those statements, along with other evidence about Theresa, gave the trial court a sufficient basis to make this decision for her.
In the final analysis, the difficult question that faced the trial court was whether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after ten years in a persistent vegetative state that has robbed her of most of her cerebrum and all but the most instinctive of neurological functions, with no hope of a medical cure but with sufficient money and strength of body to live indefinitely, would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course and for her family members and loved ones to be free to continue their lives. After due consideration, we conclude that the trial judge had clear and convincing evidence to answer this question as he did.
Hi Matt,I left the attached letter out. Here's my response, which tries to sum up all sides here:
I stumbled across your site and quickly became immersed. I have been an avid follower of Terri Schiavo as I feel quite passionately about the case as explained in the letter I wrote to the Rocky Mountain News which was recently published (see below). So far, no amount of legal jargon has been able to quench my desperate desire to understand this case. I have been searching for answers for so very long, that I felt some sense of relief when finding your site. I would really love to hear your opinion as to whether or not there is any hope whatsoever to save Terri at this point, or is this it? Thank you so much in advance for your time and for listening. And also, for this site. Have a great day!
Thanks for the kind words and the sincere thoughts.
This is a very tough situation for all involved -- and mind you I'm not at all involved. I just discuss the case as part of what seems to be my running commentary on Florida law.
I appreciate that you wish to understand more. Ultimately, Terri's case is understandable, though painfully so. If you take away the "evil" allegations that have been leveled against everyone, it's easy to see what you're left with.
You're left with a woman who suffered a heart attack 15 years ago, who essentially died but was resuscitated, though not entirely. Her brain had suffered enormous damage from the heart attack. As time passed, her brain further deteriorated -- to the point where much if not most of her cerebral cortex (the portion of the brain that controls conscious thought, among other things) was literally gone, replaced by spinal fluid. Doctors hired by Terri's husband say the deterioration of Terri's brain left her without thoughts or feelings, that the damage is irreversible, and that Terri's life-like appearance is merely the result of brain stem activity -- basically involuntary reflexes we all have. An independent doctor hired by the court reached the same conclusions. Doctors hired by Terri's parents did not dispute the physical damage done to Terri, but they claim there are new therapies that could improve her condition. In two separate trials, the trial court found such claims of potential improvement to be without merit. Terri's body continues to function without her cerebral cortex. She is sustained by a feeding tube surgically inserted into her stomach. She cannot eat through her mouth without a strong likelihood of choking to death.
You're left with a husband who lived with his in-laws following Terri's heart attack, who apparently provided care and therapy for years but who later came to believe Terri would never recover. He believes she would not have wanted to be kept alive in this brain-degenerated condition by a surgically implanted tube. He is apparently willing to continue his fight to achieve what he believes Terri would want despite ridicule, hatred, expense, and threats.
You're left with parents who were once allied with Terri's husband in an effort to care for Terri and restore her but, unlike Terri's husband, they never lost hope. They believe Terri reacts to them and has conscious thoughts. They believe Terri would not want, and does not want, her feeding tube removed, and that some cognitive function could be restored through new therapies. Terri's parents are willing to continue their fight to achieve what they believe Terri would want despite ridicule, hatred, expense, and threats.
You're left with judges who have been placed in the utterly thankless position of applying Florida law to this impassioned situation. Florida law calls for the trial court to determine what Terri would chose to do in this situation, and after a trial hard fought by Terri's husband and her family, where each side was given the opportunity to present its best case about what Terri would do, the court determined the evidence was clear and convincing that Terri would chose not to continue living by the affirmative intervention of modern medicine -- that she would chose to have her feeding tube disconnected. In a second trial, brought about by Terri's family's claims new therapies could restore her and that the existence of such a therapy would make her "change her mind," the trial court again heard evidence from all sides and determined that no new therapy presented any reasonable chance of restoring Terri's brain function. The propriety of these decisions -- from the sufficiency of the evidence to the appropriateness of the procedures used -- has been unanimously upheld on appeal each time.
You're left with a public that is much confused. Some see video clips of Terri moving, appearing to make eye contact, and making sounds, and they assume such are the product of conscious thought -- that Terri's "in there." Some believe Terri's husband has been motivated by money. Some believe that no heart attack occurred -- instead, Terri's husband beat her nearly to death and has been trying to end her life ever since. Some believe he is a bad person because he has taken up with another woman and has children with her. Some believe Florida's judiciary is corrupt or inept, to the point where death threats have been made against the trial judge. Some are sad that families would fight like this. Some believe that removing Terri's feeding tube would cause her pain and is inhumane (I'm no doctor, but the medical information I've seen on this subject uniformly says the opposite.) Some are disappointed that the law does not allow someone in Terri's condition to be kept alive perpetually if a family member is willing to care for him or her. Some believe no life should be permitted to reach an unnecessary end unless irrefutable proof, or at least written proof, shows the person wanted things that way.
All of these positions are understandable in some sense, though if you've read my posts over the years you know I am particularly sensitive to the judiciary's position of following the law correctly and yet being so horrifically misunderstood by many.
Is there hope? Well, if you mean hope to keep Terri alive any longer, there is some. Terri's family continues to launch new legal battles, and to appeal old ones, in hopes a court somewhere will give them another chance to prove Terri would not want to discontinue her feeding tube, or in hopes they can win the authority to care for Terri themselves. There is a new legislative measure under consideration that could prove to be a repeat of 2003's "Terri's Law." How long can these efforts forestall the tube's removal? Can they stop it altogether? I can't say. But I don't think anyone with knowledge of how the legal system works would have foreseen several years ago that Terri would be with us in 2005, yet here she is.
I continue to hope that when this saga ends it will be the ending that Terri would have wanted.
Hmmm. "Realities of litigation." It means a lot of things. We have an adversarial system of justice. The way it works is that we pit two sides (or more) against each other, each charged with presenting its best case on the law and the facts to the court and, sometimes, the jury. Decisions are then made based on what's presented, and the decisions bind everyone involved. Ethical lawyers don't lie and don't permit anyone to be defrauded, but they also aren't neutral. They have clients who require advocacy. So if I am Michael's attorney in the malpractice case, there is no way I am going to ask him at a deposition or at trial about whether Terri expressed any desire not to remain in a state like she's in. I would ask privately, but not when the answers are being transcribed. That's something for the other side to talk about, if they choose to do that.
But would the other side ever choose to talk about it? If the doctors' attorneys had asked him about it in deposition, then you and I would not be having this conversation. But they apparently didn't ask, and that's not illogical, because the answer either way was probably never going to come up at trial. Think about it. Imagine you're on a jury in a medical malpractice case. The plaintiff is a woman who's in horrible shape, the defendants are blamed for having caused her injuries by failing to diagnose and treat her properly, and the husband is seeking money to care for her for the rest of her life. How will you react to a defense by the doctors that says we didn't do anything wrong here, sure we treated her but there was no way for us to know she was bulimic, we were treating her for pregnancy problems not eating disorders... You may disagree with the defense and find the doctors liable but you probably won't be mad at them. Now, how will you react if the doctors also defend by saying and by the way this woman's really, really hurt, so hurt that she's never going to recover, and she told him she wouldn't want to live this way, so at some point he's going to let her die and jury you shouldn't give him money for her lifelong care even if we were negligent because there's never going to be any lifelong care... How would you react to that defense? You and your fellow jurors would probably be furious with the doctors for saying such things, and the verdict might reflect that furor with a ridiculous sum of money.
So I can't believe any lawyer representing the doctors would bring the matter up, either. The result: this issue is not coming up at the malpractice trial. I'd be surprised if any lawyer disagreed.
In the end, Michael's testimony that he wanted to care for Terri for her and his whole lives can be viewed in multiple ways. On one hand, it's consistent with someone who believed he wanted to care for his wife to bring her back, but who later lost hope when doctors convinced him they'd done all they could do. Keep in mind, the malpractice lawsuit was filed very early on, as you would expect to happen. Trial didn't happen for years, and Terri received tremendous care, attention, and therapy through 1994 -- read the GAL's report and the court decisions for that chronology. The view she would never recover developed slowly, over time, and the degeneration of her cerebral cortex apparently wasn't seen for years. Perhaps Michael's view of that outlook changed slowly, too. Then again, perhaps he lied then or is lying now. Perhaps he knew she wasn't coming back, or either way he didn't want her to come back -- he just wanted to get through the malpractice trial, collect as much money as possible, and let her go. Perhaps. I don't know. I think people just see here what they want to see.
Let me be clear: I'm not saying I have any idea what was really going on in Michael Schiavo's head. I'm not defending him. I'm reacting to numerous statements being made that "he never mentioned her wishes during that trial so he must have just made it all up after the lawsuit." In my view, people saying that don't understand how litigation works. Whether Terri's wishes came up in that trial has nothing to do with whether Michael's been honest in this case about Terri's wishes.
Do you have the mental power to entertain the possibility that Michael Schiavo choked his wife and caused her to suffer hypoxia long enough to experience an arrythmia necessitating cardioversion by the paramedics? Do you not realize that life-threatening arrythmias may starve the brain of adequate perfusion of cerbral tissue with oxygenated blood, causing brain damage but not immediate death? Do you not have the mental capacity to entertain the idea that the Teresa Shiavo case has been selected as a means to bring about global population reduction?I think those two paragraphs go together, but I'm not sure. I am rather sure that the Schiavo case is best viewed as a family struggle over a loved one, not an international campaign for anything.
Do you not realize that the current global population threatens to destabilize and wreak havoc on the environment? Do you not realize that the current global population is not sustainable? That is the truth, and we should all admit it and adopt the two-child Chinese policy globally. Violation of the policy would constitute implied consent to have the third child placed into adoption, and the violator to be sterilized immediately. This would reduce the barbarian act of abortion and would promote glasnost between the rulers and the governed. It's time to wake up, come out of a vegetative state, and smell the global coffee.
Matt,And my response:
I have been following your commentary on the legal aspects of this case and find it informative to a degree, but lately you do not seem to be as focused on the law as you have been in the past, and are letting personal opinion slip through. You have not clearly analyzed the points of law in Greer's latest rulings but just sidestepped with comments like "I am not aware of any Florida law that speaks directly to the issue, so I am not sure that Judge Greer is obligated to rule one way or the other."
This case seems to have several elements of fraud in it, including actions by Felos, who has interests in the hospice, and the doctor who certified her pvs. What real recourse do members of the general public, like me, have to see a criminal investigation opened into this matter, and to possibly have Greer impeached?
I am also interested in whether the DCF could legally take Terri into protective custody to protect her from further abuse.
I apologize if my focus has seemed less legal of late. The truth is that this case takes hours upon hours of time to follow and I work about 60-80 hours per week anyway. Also, the volume of email I've been getting has been astounding, and I try to respond to everyone. That's left less time for blogging about it all.
I hope I haven't appeared to give my personal opinion of what I think Terri would have wanted -- I don't have one.
My comment on not being aware of any controlling law was not an effort to sidestep a point of law in a ruling. It was an effort to help people understand that there is no controlling authority here either way. If you disagree, please send me the citation to a controlling legal decision or controlling statutory authority. I'm very curious about what it is you thought I was sidestepping.
Now, to answer your questions as best I can:
I don't see fraud in this case. Whether an attorney has a connection to a hospice sounds like tabloid fodder. What's the significance? Are you saying that anything would be different in the last few years if Terri had been residing somewhere else, with the same orders in place from the court and the guardian? This sounds like an effort to smear Michael's attorney with no connection to the real issues. If federal monies have been misspent on Terri's care, then appropriate punishments should be meted out, but that has nothing to do with Terri's wishes and whether her feeding tube should remain in place.
As for doctors certifying her as PVS, please understand that the judge has held two trials, heard from numerous experts, and twice found her to be in a persistent vegetative state. People saying she is not in a PVS are simply disagreeing with the results of the trials. In the eyes of the law, Terri is in a persistent vegetative state. The debate was resolved at a trial -- two, actually -- and affirmed on appeal each time.
A criminal investigation? Well, the general public always has the right to ask local police and sheriff's officials to investigate the violation of any laws. I can tell you, though, that folks have been asking for investigations into this case for years. So far as I know, the official conclusion is that there's nothing there. I can't vouch for that conclusion, but I can say that no guardianship case has received more attention from reviewing authorities in the history of this state, if not the country, than this one. I like to think our officials are honest and that if there was something there, we would all know about it by now. I know there are theories that say every official in Florida is conspiring to hide the truth here, but my experience with Florida's officials is that they are noble, hardworking, and honest. If they say there's nothing here, I'm inclined to believe them.
As for DCF taking Terri into protective custody, that would require removing her from the authority of the guardianship court. I'm not aware of that ever having been done before, and while I've never studied the issue in depth, I'm not aware of any existing law that would permit it to be done. It's one thing to say that Mr. Smith may be abusing someone and the executive branch needs to remove that person from his custody to prevent abuse; it's another thing entirely to suggest that the Florida judiciary may be abusing a ward under its supervision and that the executive branch needs to remove the ward from another branch of government's watchful eye. Talk about a constitutional crisis -- you'd have one there.
As for impeachment, you are mistaken. Impeachment is a tool for removing public officials who have lost the public's trust through actions other than their judicial decisions. The route for correcting erroneous judicial decisions is the judicial appellate process.The Schindlers have availed themselves of that process time and again, and thus far the appellate courts have agreed that the law has been correctly followed here. So the trial judge's judicial decisions are not cause for impeachment, and I'm not aware of anything concerning other actions in his life that would merit even disapproval, let alone impeachment. Ultimately, there is a reason impeachment talk persists only at the outer fringes of this saga.
Thanks for your interest and taking the time to write. And by the way, the twenty minutes it took me to respond to your email is twenty less minutes I can devote to the blog. Now imagine responding to 100s of emails.
In Florida, as in New York, a will is construed to pass all property that the testator owns at death. See § 732.6005(2), Fla. Stat. As set forth above, the testator’s body is not considered property. Therefore, just as in New York, a directive in a will regarding the disposition of a body does not have the same force and effect as do provisions directing the disposition of property. We therefore conclude that a testamentary disposition is not conclusive of the decedent’s intent if it can be shown by clear and convincing evidence that he intended another disposition for his body.Many seem to think that oral expressions of intent or desire should be without legal significance, at least if the issue concerns whether one would wish to continue life-prolonging medical treatment in the face of a terminal illness or a permanent vegetative state. I wonder if people who think that way also think the law announced in this case is unwise, too, and that what's best for us all is a society where the written word is supremely binding in such situations.
To hold otherwise could cause untoward results. Nelson v. Schoonover is an example. There, the wife had resided in Ohio when her will was made but subsequently moved to Kansas with her husband. Obviously, burial in Ohio would have taken her away from her family. A more common occurrence might be the execution of a will during marriage indicating a burial location with the spouse. A subsequent divorce would make following such a direction impractical and not in accordance with the testator’s intent.
Our current society is exceedingly mobile. One might live in several states during a lifetime. A provision made in a will that is not revisited for many years may not reflect the intent of the testator as to the disposition of his or her remains. A direction for the disposition of one's body should not be conclusive when contrary and convincing oral or written evidence of a change in intent is present.
Discontinuing her "artificial life support" in the form of assisted feeding should not also automatically sentence her to death. Instead, Terri should be permitted to attempt to eat and drink by natural means. Ill people often get well, or at least get better. The opportunity to attempt to feed Terri by natural means may demonstrate Terri is able to swallow and to eat and drink naturally.In denying this motion, Judge Greer stated wrote that the motion appeared to ask for an experimental procedure and that the documents provided in support of this motion were the same ones provided with another motion based on new medical evidence. The court ruled that this motion was thus duplicative and that whether new tests should be conducted will stand or fall with the other pending motion. You can read the order here.
Members in both chambers were clearly not familiar with all details of the case. They mispronounced her name. They proclaimed she was not in a vegetative state, even though experts say she is and a court agreed. They claimed she did not receive certain brain scans when she had. They wrongly claimed no judge had even granted a family member removal of a feeding tube.On the judicial side, the Schindlers and the Department of Children and Families made requests for stays from various courts. The U.S. Supreme Court said no to the Schindlers in this order. The Florida Supreme Court said no to DCF in this order, and Judge Greer reportedly said no to DCF in an order I haven't actually seen. As you know, the Second District said no on Wednesday to the Schindlers in this decision and to DCF in this order.
Plaintiffs' argument effectively ignores the role of the presiding judge as judicial fact-finder and decision-maker under the Florida statutory scheme. By fulfilling his statutory judicial responsibilities, the judge was not transformed into an advocate merely because his rulings are unfavorable to a litigant. Plaintiffs' contention that the statutory scheme followed by Judge Greer deprived Theresa Schiavo of an impartial trial is accordingly without merit. Defendant is correct that no federal constitutional right is implicated when a judge merely grants relief to a litigant in accordance with the law he is sworn to uphold and follow.
Throughout the proceedings, the parties, represented by able counsel, advanced what they believed to be Theresa Schiavo's intentions concerning artificial life support. In Florida, counsel for Michael Schiavo as Theresa Schiavo's guardian owed a duty of care to Theresa Schiavo in his representation. Finally, with respect to presenting the opposing perspective on Theresa Schiavo's wishes, the Court cannot envision more effective advocates than her parents and their able counsel. Plaintiffs have not shown how an additional lawyer appointed by the court could have reduced the risk of erroneous rulings....Count III of the complaint alleged that Terri was denied her right to equal protection because only incapacitated persons have their rights determined by someone else, whereas different procedures are utilized where a competent person can make a decision for himself or herself. Judge Whittemore found this claim to be without merit for the same reasons discussed regarding count I and based on the U.S. Supreme Court's decision in Cruzan v. Missouri, where the supreme court explained that these situations are different and states can treat them differently.
[T]he court concludes that Theresa Schiavo's life and liberty interests were adequately protected by the extensive process provided in the state courts. Defendant Michael Schiavo and Plaintiffs, assisted by counsel, thoroughly advocated their competing perspectives on Theresa Schiavo's wishes. Another lawyer appointed by the court could not have offered more protection of Theresa Schiavo's interests.
Recognizing that one has the inherent right to make choices about medical treatment, we necessarily conclude that this right encompasses all medical choices. A competent individual has the constitutional right to refuse medical treatment regardless of his or her medical condition. The issue involves a patient's right of self-determination and does not involve what is thought to be in the patient's best interests.(emphasis added) (citations omitted).
* * *
We see no reason to qualify that right on the basis of the denomination of a medical procedure as major or minor, ordinary or extraordinary, life-prolonging, life-maintaining, life-sustaining, or otherwise.
* * *
Courts overwhelmingly have held that a person may refuse or remove artificial life-support, whether supplying oxygen by a mechanical respirator or supplying food and water through a feeding tube. We agree and find no significant legal distinction between these artificial means of life-support.
Artificial feeding cannot readily be distinguished from other forms of medical treatment. Whether or not the techniques used to pass food and water into the patient's alimentary tract are termed "medical treatment," it is clear they all involve some degree of intrusion and restraint. Feeding a patient by means of a nasogastric tube requires a physician to pass a long flexible tube through the patient's nose, throat and esophagus and into the stomach. Because of the discomfort such a tube causes, "[m]any patients need to be restrained forcibly, and their hands put into large mittens to prevent them from removing the tube." A gastrostomy tube (as was used to provide food and water to Nancy Cruzan) or jejunostomy tube must be surgically implanted into the stomach or small intestine. Requiring a competent adult to endure such procedures against her will burdens the patient's liberty, dignity, and freedom to determine the course of her own treatment. Accordingly, the liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual's deeply personal decision to reject medical treatment, including the artificial delivery of food and water.(emphasis added).
[T]he District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings.I've seen a lot of news folks and talk show hosts over the last couple of days wondering what it means for the court to make a "de novo" determination. I did not come away with a firm conviction they have much experience with this term, though it is a rather common term in appellate practice.
As with the witness called by the Respondents [the Schindlers], the court had the testimony of the brother and sister-in-law transcribed so that the court would not be hamstrung by relying on its notes. The court has reviewed the testimony of Scott Schiavo and Joan Schiavo and finds nothing contained therein to be unreliable. The court notes that neither of these witnesses appeared to have shaded his or her testimony or even attempt to exclude unfavorable comments or points regarding those discussions. They were not impeached on cross-examination. Argument is made as to why they waited so long to step forward but their explanations are worthy of belief.The court also pointed to an expert witness who testified that the oral statements reported by Scott and Joan were consistent with statements of a person Terri's age:
The testimony of Ms. Beverly Tyler, Executive Director of Georgia Health Discoveries, clearly establishes that the expressions made by Terri Schiavo to these witnesses are those type of expressions made in those types of situations as would be expected by people in this country in that age group at that time. They (statements) reflect underlying values of independence, quality of life, not to be a burden and so forth. "Hooked to a machine" means they do not want life artificially extended when there is not hope of improvement.Later in the decision, the court explained that Terri made different types of statements during her life, including statements where she spoke of what she would want for other people, and statements where she spoke of what she would want for herself. The court said:
There are some comments or statement[s] made by Terri Schiavo which the court does not feel are germane to this decision. The court does not feel that statements made by her at the age of 11 or 12 years truly reflect upon her intention regarding the situation at hand. Additionally, the court does not feel that her statements directed toward others and situations involving others would have the same weight as comments or statements regarding herself if personally placed in those same situations. Into the former category the court places statements regarding Karen Ann Quinlan and the infant child of the friend of Joan Schiavo. The court finds that those statements are more reflective of what Terri Schiavo would do in a similar situation for someone else.Finally, Judge Greer's order discussed the testimony on which he ultimately relied. He said:
The court does find that Terri Schiavo did make statements which are creditable and reliable with regard to her intention given the situation at hand. Initially, there is no question that Terri Schiavo does not pose a burden financially to anyone and this would appear to be a safe assumption for the foreseeable future. However, the court notes that the term "burden" is not restricted solely to dollars and cents since one can also be a burden to others emotionally and physically. Statements which Terri Schiavo made which do support the relief sought by her surrogate (Petitioner/Guardian) include statements to him prompted by her grandmother being in intensive care that if she was ever a burden she would not want to live like that. Additionally, statements made to Michael Schiavo which were prompted by something on television regarding people on life support that she would not want [a] life like that also reflect her intention in this particular situation. Also the statements she made in the presence of Scott Schiavo at the funeral luncheon for his grandmother that "if I ever go like that just let me go. Don't leave me there. I don't want to be kept alive on a machine" and to Joan Schiavo following a television movie in which a man following an accident was in a coma to the effect that she wanted it stated in her will that she would want the tubes and everything taken out if that happened to her are likewise reflective of this intent. The court specifically finds that these statements are Terri Schiavo's oral declarations concerning her intention as to what she would want done under the present circumstances and the testimony regarding such oral declarations is reliable, is creditable and rises to the level of clear and convincing evidence to this court.(emphasis added).
Abstract Appeal, a legal blog run by St. Petersburg attorney Matt Conigliaro, won national attention for providing near-instant analysis of the legal fight to disconnect Schiavo from feeding tubes. It was a perspective that was too often missing from news stories that focused on the emotional appeals of Schiavo's warring family members.I'm very much appreciative of the kind mention. I also appreciate the reader who alerted me to it.
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