We are all aware of liability suits being pursued in class action lawsuits such as asbestos, silicone breast implants, tobacco and Baychol. According to some legal experts, lead paint is the next big wave in lawsuits to take front seat in environmental toxins. Since the late 1980’s, a correlation between lead paint and cognitive dysfunction in children started to show in medical literature. Many landlords of both commercial and residential housing constructed before late 1970’s, are being taken to the court due to claims children have developed decreased cognitive abilities from lead poisoning. Multimillion-dollar awards have been awarded in Maryland, New York, Pennsylvania, Michigan, Kentucky and other states in the Northeast part of the United States. Some cases have been documented in California.

History of Lead

In order to understand lead poisoning, one needs to understand the history of lead. There are many famous people who have been “lead poisoned”, however, as one learns about lead poisoning, the litigator (whether plaintiff or defense) must understand where lead started. Lead has been associated since BC times. The earliest recorded lead mines was in Turkey in 6500 B.C. In 250 B.C. Nikander of Colophon, a Greek philosopher described some of lead
poisonings typical symptoms of abdominal colic and pallor. Early societies such as the Roman Empire noted chronic lead poisonings because of its use in cooking pots (transfers heat evenly) and use of water supply lines. Egyptians made jewelry from lead and Japan’s gusha women used lead-based powder to whiten their faces. In the 18th and 19th centuries, port and wine caused people to suffer lead’s toxic effects. Due to use of preservative and bottling practices,
beverages contained from 300 to 900 mg per liter. A famous composer, Beethoven, had elevated levels of lead he ingested. At his autopsy he was determined to suffer from undiagnosed kidney disease. He supposedly suffered from chronic diarrhea, irritable bowel syndrome, cirrhosis of the liver, chronic pancreatitis and asthma. It is speculated his hearing loss is due to lead toxicity. Medical literature has since linked the two together. These are just a few examples of people who had lead poisoning.

But let’s jump back to the 20th century. Lead is not specific to the United States but can be found in Europe and other parts of the world. At the beginning of the century, in 1904, physicians in Australia were baffled by a disease they called “Toxicity of Habilitation”. Children developed stomachaches and cramps, paralysis, limb pain, seizures and even died. A physician at Brisbane Hospital for Sick Children was able to determine the source. It was a sweet-tasting,
white powder that was chalking off houses and other buildings. The white lead was an important paint ingredient. Do you remember the “Dutch Boy”? Well, it was a Dutch process of producing white lead, made in Holland. White lead is a substance called lead carbonate. The paint’s quality was determined by the amount of white lead in the paint. The white lead paint could be tinted, just like we do today.

By 1920, there was a world wide movement to ban the use of lead paint. According t Holt’s Diseases of Infancy and Childhood (8th Edition) reported on eight cases “caused by child nibbling & swallowing the paint from furniture”, including baby cribs. Several years later, it became known there was a relationship between lead paint and pica. Pica is described as children putting anything in their mouths during the late infant and toddler stages. This
includes toys, food, hands/fingers, clothing, soil and many other sources of lead ingestion.

During the 1940’s, the United States Office of Education and Lead Industries Association (LIA) joined forces and recommended white lead paint for farm buildings and interior surfaces of residential buildings. Harvard University School of Public Health even cosponsored a symposium with LIA. As a result the death rate form lead poisoning rose.
In 1977, Congress past the Lead-Based Poisoning Prevention Act restricting use of lead paint. Be aware some paints are not covered by this Act. These include: marine, farm equipment, automobile paints and industrial finished. They still contain lead.

Where is the Lead Found?

Generally any residential buildings built before 1976. Tap water is a potential source due to the lead solder used to put copper pipes together. Other sources include furniture, canned foods, perfume, makeup, dishes, leaded gasoline and many more sources as those mentioned above. Housing lead paint is typically found on woodwork around doors and windows, especially inside the windowsill. It appears like an “alligator” pattern. Public health departments use x-ray
devices to measure lead paint. Housing sites are measured by the use of an apparatus called the XRF gun. The drawback with this device is the device not only measures the outer most layer of paint for lead, but also measures the substrate layers (those under the outside coat).  This could produce a false positive reading. There are very specific guidelines in using this device and the person needs to have been trained on the device. Also there are required calibrations that need to be done, in a sequence of the readings otherwise the test could be deemed invalid.

Basic Facts about Lead Poisoning

Although we raise children in homes and yards, lead still is a major contaminant. According to the Environmental Protection Agency (EPA) reported approximately one in ten preschool children have unacceptable blood levels of lead. The EPA also indicates even low levels of lead can block an infant’s mental development. Small children spend most of their time in residential buildings or outside playing. Children can absorb up to 50% of the lead they ingest.

This occurs during the time from birth to approximately five years of age when the central nervous system and brain are developing. During this time, the brain is affected by changes in cognition deficiencies, lower IQ, motor deficiencies, Attention Deficit Hyperactivity Disorder (ADHD) and Attention Deficit Disorder (ADD). Some literature reports severe cases may cause violent tendencies and children who are so severely damaged, they will be unable to be employed in nonskilled labor settings.

Unfortunately no one is immune to lead paint intoxication. Although it is not class specific, increased rates are generally seen in the lower socioeconomic income levels, especially inner city children. Studies have been done on various socioeconomic groups with findings greatest in the middle to higher class children. Lead poisoning is thought of as affecting urban areas but some parents of the country are finding increased levels in rural areas.

Children who are at the greatest risk are those who are between nine months to five years of age. Children who do not receive enough iron, develop iron deficiency anemia and tend to be at a higher risk. This is due to the chemical effects of lead mimicking calcium. The Women, Infants and Children (WIC) program offers lower socioeconomic families’ incentives to provide increased calcium products. They will screen for lead poisoning and iron deficiency anemia.

With the anticipation rise in cost of diary products due to supply and demand principles, it is very possible there may be an increase in blood lead levels because families will not be able to purchase the diary products especially those in the lower socioeconomic income levels.

What are the Characteristics?

Lead is invisible, sweet tasting and odorless. Studies show long term consumption of low levels may be more hazardous than a single ingestion. As the Lead Poisoning Prevention Act became more known, the average blood lead levels (BLL) have decreased. Changes have occurred dueto the band on paint and in gasoline, but also with the food industry stopping use of lead soldered cans. The average blood lead level was 17 mcg/deciliters (dl) in 1976 and now averages range approximately 4 mcg/dl.

How Early Childhood Development is affected by Lead?

During the first six months of life, a child’s blood lead level remains relatively constant. This corresponds to a child who is just starting to talk, crawl and sit up. From six to twenty-four months, there is generally a sharp increase. Children are beginning to eat using their hands and progressing to table utensils, talking, walking, learning to stand and grabbing onto objects such as windowsills.

A known pioneer in the field, Dr. Julian Chisholm, from the Kennedy Kreiger Institute in Baltimore indicated the best judge of how well a child will perform on standardized tests at age ten will be the child’s blood lead level at twenty-four months. His studies show that during the second year, the human brain reorganizes itself. The brain is developing new nerve connections called synapses. It is these synapse or nerve pathways, which sends messages intermittently. Lead interferes with the synapse.

During this time period, a child’s physical behavior also includes developing gums and teeth, increased hand to mouth activity all lead to increased lead ingestion. During these developmental milestones, infants can pick up lead dust from the floor, toys, pets, dishes, soil and many other sources, and then puts the objects in their mouths. Children often eat with their hands and suck their thumbs.

So if lead poisoning causes physical changes then how does the brain react when lead is absorbed in the body? Studies have found a reduced intelligence as demonstrated in lower IQ levels. Literature reports for every 10 mcg/dl rise, there is an approximate one to three points decrease in IQ scores. Some other studies report a decrease of four to six points decrease in IQ scores for every 10 mcg/dl. Other medical research indicates reading and learning disabilities leading to failure to graduate from high school and to criminal and violent behaviors are associated with lead toxicity.

Both parents and educators have reported students with increased blood lead levels demonstrate behavioral problems including Attention Deficit Disorder. and Attention Deficit Hyperactivity Disorder. Lead can be associated with physical effects including low birth weight and size (associated with prenatal care), hearing loss, generally with inability to hear high frequencies; frequent ear infections called otitis media and delayed physical development as demonstrated by developmental milestones including talking, walking and standing.

How is Lead Measured?

Lead is measured by several methods. Most social services programs administered by the state’s Department of Health, issue funds for programs like WIC, test children for blood lead levels and iron deficiency anemia. When a blood level is done, it may be done either by a venous sample or by a capillary sample. The venous sample is the most accurate and is usually sent to a specific laboratory. Testing may be done by a pediatrician or through pediatric health clinics.  The finger stick may have a false positive reading unless he finger is prepped accordingly.

The Center for Disease Control (CDC) has gradually lowered the toxic level. In the mid 1960’s, the toxic level was 60 mcg/dl. In 1978, the CDC lowered the toxic level to 30 mcg/dl. In 1985 the level was reduced to 25 mcg/dl and by 1991, the level was lowered to 10 mcg/dl, which is the level currently accepted. The CDC considers any reading between 10- 25 mcg/dl as being borderline toxicity. In this range, there are usually no symptoms. When levels over 25 to 60 mcg/dl occur, some physical symptoms, nausea, stomach cramps, headaches, weakness usually lead to some brain damage. Some behavioral changes may be tired, cranky, and clumsy or have a lost interest in play. Since young toddlers are unable to verbalize their complaints, a diagnosis of lead poisoning may be difficult.

Diagnosis

Common symptoms include headaches, cramps, poor appetite, crankiness, clumsiness, constipation, stomachaches, vomiting, sleep disorders, fatigue, lethargy, anorexia and no interest in play. Depending on the severity of symptoms and the level of the blood results, the CDC has developed a five level classification system. This can be found on the CDC’s web site.

Treatment of Lead Poisoning

The method of treatment is called chelation. Usually the treatment can take up to 30 days.  During this time, the blood lead levels can fluctuate like a roller coaster. During the treatment, lead is released form the bone into the blood stream until it is excreted via the kidneys. Once chelation therapy is completed, the CDC recommends retesting in one to three weeks to determine if retreatment is necessary.

The most popular agents used in chelation are Cuprimine (D-penicillamne) which is an oral agent. Another oral agent is Succimer (Chemet) and recommended for blood lead levels over 45 mcg/dl. An intramuscular agent, BAL in Oil (Dimucaprol) must be used with caution due to the peanut oil base. Finally, there is the intravenous agent, Calcium Disodium Versenate (Edelate Disodium Calcium).

Summary

Lead poisoning has been around for thousands of years. Many efforts have been made in the last century to reduce lead levels. Generally, most children have elevated lead levels but some children have a much greater blood lead level than others. Some confounding variables which could cause elevated blood lead levels include poor iron intake and a lower socioeconomic income level. The ground may still contain lead contaminated lead dust associated with poorly managed lead abatement procedures. Efforts have been made in making lead screening a mandatory test for infants and toddlers already. Programs such as WIC perform screening.

Other screening measures include prompts on nursing assessment sheets in the emergency room. Another problem could be the procedure of blood lead testing i.e. fingerstick and /or venous samples. If not done properly, a false positive test could be generated. A referral for the residential testing using an XRF device may also yield false positive readings if not done properly. All of these factors can impact the litigation and trial outcome.

The Litigation Process

To evaluate a childhood lead paint claim, the attorney and designated staff need to investigate all possible environmental and medical causes for the elevated blood lead level (BLL) and the resulting neurological impairment(s). The first step is to inspect the premises involved in the claim. This would include a history of both landlord and tenant. Is there a Section 8 financial resource? Was the property checked for lead prior to the plaintiff moving in? Are there documentation logs for routine maintenance, painting and repairs; and do those logs contain signatures from both the landlord and the tenant? These are just some of the items the legal staff would assess during the initial claim process, prior to the LNC’s involvement.

The team, especially defense counsel, also needs to investigate how a landlord handles a complaint by a tenant. Is there written documentation or recollection of verbal communication involving cracked or peeling paint? It is important to obtain specific dates rather than approximations, as even one day can affect the outcome of the claim. Remember, as in healthcare, if it is not documented it’s not done.

In developing a plaintiff history, the infant child cannot be apportioned a degree of fault in the causal relationship to the injury. Instead, it is the parents and/or guardian who may be at fault. Keeping this in mind, the parental and/or guardian’s background is very important in developing a case, for either side. In some states, the verdict award may be influenced by the contributory negligence of these individuals.

Each side needs to assess the questionable property but also the immediate surrounding environmental area. Is the resident located near a smelting mine, gas station or a previous residence that had been abated nearby? Is the residence located in an older part of town, where houses were built before 1976? Check with the building inspector as to any prior building violations. Look for testing criteria from state and/or county health departments, preservation
agencies, housing or community renewal programs. It would be advisable for someone who is deciding to purchase a specific property to make these inquiries, to determine if a future claim could be made.

The Discovery Process

A summons and complaint is issued to the defendant. The pleading should incorporate who is suing, the exact location of the property in question, and dates the plaintiff was in residence. The complaint will also allege the cause(s) of action of notice and knowledge of children in the home, notification of possible lead paint in specific areas of the residence, appropriate warning and removal of the lead paint. The complaint should allege the method of intoxication
and whether or not actual or constructive notice posed a health risk to the children, the alleged injuries suffered by the child or children, the biopsychosocial impact of the alleged intoxication, the prior condition of the child(ren) and the future impact on educational and employment status. Finally, the complaint will allege the statutes and regulations, which were violated in the state, county and local housing laws.

Once the summons, complaint, and Verified Bill of Particulars (VBOP) has been generated and received, the LNC will start the medical discovery process. The LNC needs to review the documents carefully for clues as to (a) method of intoxication, (b) date and time of incident (since the ingestion could be either acute or chronic), (c) date of actual notice, (d) the living areas involved in the claim, and (e) the injuries sustained by the infant plaintiff (elevated lead
levels, extreme hyperactivity, behavior and/or disciplinary problems and any other problems identified which generally include cognitive disorders related to lower IQ). The pleading will name health care providers in the evaluation of the child(ren), whether or not the child was confined to a health care facility or home. In addition, the following will be listed: expenses claimed as special damages; any occupation with employer information (when applicable), as well as claim for lost wages; loss of consortium, and; the need for special schooling facilities.

Of particular importance is the constructive notice to the landlord, especially the date of notice by the Department of Health (DOH). A copy of the actual notice and/or actual property lead screening done by the Health Department may be used as an attachment to the pleading. This will play a part in the trial proceedings. The experienced LNC will include the above information in the medical chronology.

The medical discovery process includes obtaining the HIPAA compliant authorizations for the following medical and educational records of the child(ren) involved, the parent(s), especially the mother, and other related agency records:

  •  mother’s prenatal records
  • infant-plaintiff birth records
  • pediatric/hospital and dental records, including all radiographic and laboratory diagnostic studies
  • records related to the diagnosis and treatment of lead intoxication
  • records from state and county DOH and other community agencies who may be involved with the plaintiff
  • records from state, county and/or local regulatory agencies relating to inspection and testing of the property site
  • educational records to include day care, preschool, etc. (academic and health)

The LNC is the most valuable person to review and develop a chronological order of events for the attorney. Due to some local jurisdictions, it may be more feasible to develop more than one chronology. There may be a chronology of the mother, father and infant plaintiff. These records need to be scrutinized very carefully for any possible confounding variables.

Once all the medical and educational records have been obtained, reviewed and analyzed, the LNC is generally asked to locate a medical expert to review the current discovery material and provide initial opinions. The medical expert should be a board-certified pediatrician with a subspecialty in neurology or toxicology. To locate an expert, check on verdict searches or court cases within the jurisdiction in which the case is being tried. Mealey’s also offers newsletters
on lead paint litigation. Other resources may be IDEX or DRI. The medical expert should review the Summons and Complaint, Verified Bill of Particulars (VBOP) and any subsequent VBOP. The expert should contact the attorney with their impressions, prior to rendering a written report.

The LNC may be a part of the teleconference to facilitate clear and concise communication, and inclusion of all pertinent questions. The deposition date has finally arrived and the LNC should expect some standard questions,
such as:

  • background information of parents
  • medical and academic history of the child(ren) and parents
  • prenatal history of the mother, i.e., activities or medical problems encountered during pregnancy, the birth process, etc.
  • developmental milestones
  • daycare and schooling
  • governmental assistance programs, i.e., WIC
  • childhood diseases
  • prior living residences of married/separated parents
  • toys and other household goods utilized by the infant plaintiff
  • psychological examinations of the infant plaintiff.

Other potential wi tnesses could include the Department of Health Sanitarian, landlord, public health nurses, educators, or any others who had contact with the infant plaintiff. Any information obtained may expose a possible third party involvement. Some LNC’s may be asked to develop deposition questions to either confirm the information or obtain additional information, which is all part of the discovery process.

Independent Medical Examinations

Once the litigation team, along with the LNC, review additional medical discovery gained through depositions, an independent medical examination (IME) of the child(ren) may be performed. A neuropsychological examination is most appropriate for determination of cognitive deficits claimed from lead paint poisoning. Generally, a pediatrician, with a subspecialty of neurology, or a neuropsychologist will conduct the IME with experience in examining small children. It is important to make sure the expert has testimony experience, but is not a “hired gun”. In other words, they historically provide testimony for both defense and plaintiff. If the IME is done close to the time when the elevated blood level is apparent, an independent blood sample may be obtained to confirm the plaintiff’s readings. Unfortunately, either side may claim contamination, and the results could be deemed invalid if it can be
shown that proper testing protocol was not followed.

The LNC’s responsibilities in this process can be numerous. We may be asked to locate the expert and coordinate the IME. Be sure this professional possesses experience, academic credentials, board certification, and is published.
There are standards of care and ethical guidelines that should be followed for an unbiased, relaxed evaluation. There should be no interference by either party. The child may easily become distracted and the accuracy of the testing results skewed. Testing will generally involve more than one day. A complete neuropsychological evaluation should be consistent, which means the evaluation should not differ based upon whether it was plaintiff or defense retaining the expert. This renders the physician less vulnerable to counsel’s cross-examination at trial on the issue of bias. Components of a complete neuropsychological evaluation include:

  • Structured, detailed interview of the plaintiff
  • Formal psychological and neuropsycholgical testing
  • Review of medical, educational, employment and any other records deemed relevant
    from both pre and post injury status
  • Interviews of family members, employers, teachers and any other third parties, i.e.
    health care providers

The LNC should communicate with the attorney regarding any problems with the IME and/or subsequent report. Does it follow the components mentioned above? Was there a third party observer, who may have tainted the testing procedure?

Record Review by an Expert

The scope for the physician expert’s involvement is generally dictated by the attorney who retained them, with variables such as cost, legal strategy, and the stage of litigation coming into play. The attorney may opt to request only a record review from the neuropsychologist. This process should include review of medical records, educational transcripts and records, employment records, etc. The expert should review any prior neuropsychological evaluations to determine if standards were maintained as outlined above. For a complete unbiased
assessment, all testing materials including the raw data are required.

Research

Part of the LNC’s consultation may include doing research on lead paint. This may include resources from both medical and legal sites. If there is evidence of confounding variables within the medical discovery, the attorney will need to support those variables with medical literature. You may ask the medical/neuropsychological experts what literature they would recommend, especially if they have been involved in other lead paint litigation. From the
research, the LNC should develop an authoritative bibliography, especially if further lead paint litigation is done with the firm.

Confounding variables have the potential to play a big part of the defense strategy. “The mere fact the child tests positive for lead poisoning does not mean any and all problems the child(ren) experiences are attributable to his/her elevated blood lead levels. The confounding variable may help to provide other sources for the child’s problems” (Kaminsky, 1996). Children are considered a product of two sets of genes and the environment; thus literature indicates there is a potential for multiple causes for the alleged cognitive deficiencies and other
conditions, which are normally attributed to lead poisoning. By virtue of our education and experience, we are best suited to research and analyze the records for other variables that may be the true etiology of the alleged damages. These variables may be compared to siblings, should there be the history of multiple marriages or if the siblings are tested for elevated blood levels.

Maternal variables:

  • prenatal difficulties
  • intrauterine growth retardation (IUGR)
  • smoking
  • use of prescription and/or recreational drugs
  • alcohol usage
  • depression either during pregnancy or postpartum
  • birth trauma

Infant/plaintiff variables:

  • frequent episodes of otitis media
  • iron deficiency anemia

Miscellaneous variables:

  • socioeconomic (SES) issues
  • parental academic difficulties
  • bilingual language in the home
  • family history of criminal behavior

The LNC may educate the attorney and/or litigation team on governmental agencies, the history of lead paint, and the timeline during which the Center for Disease Control (CDC) adjusted what they considered to be toxic blood lead levels. Recall from the first article in this series, 10 mcg/dl was not always considered to be a toxic level. An experienced LNC may be asked to develop a graph of the BLL readings and or EP levels. Sometimes the medical expert
may do this as part of his initial review of the medical records. This information may be placed in a graphic display, and enlarged for use as a demonstrative exhibit at trial.

As the litigation process proceeds, either side will provide a list of expert witnesses. The LNC may be involved in researching the credentials of all medical experts. This will include licensure and disciplinary verification, board certifications, employment history and any literature listed during a complete review of the curriculum vitae. This information may be important if the attorney is considering impeaching or discrediting the expert witness.

The Trial

As the trial date approaches, the LNC’s role will expand to coordinate with the paralegal in developing discovery needed by the attorney at trial. The LNC may be asked to develop a list and/or issue Subpoena Duces Tecem for the medical records necessary to be presented during trial. Also, the LNC is part of the trial preparation to determine witnesses and their role in the plaintiff’s claim to enhance either side’s strategy.

The LNC must remember there are differences between legal and scientific methods and goals in the judicial process. During a trial, each side presents its expert witnesses, who support the scientific research for their opinion. The law will conceive the expert witness’ role as an unbiased educator, especially when addressing the jury. Unfortunately, over the years there has been some controversy regarding the use of scientific research in litigation. There were the
Federal Rules of Evidence: 702 and 703, derived from Frye v. United States (1923) that held that prior to introduction of testimony based on a novel scientific method, it must be established the technique has “gained general acceptance in the particular field in which it belongs”. If the scientific technique was generally accepted, admissibility of evidence was ensured regardless of whether the technique would be accepted by members in a particular
field.

Then along came Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993). Daubert brought about a change in scientific evidence. The Supreme Court ruled that the judge must be sure any and all scientific testimony or evidence admitted is not only relevant but also reliable. At the judge’s discretion, he/she may decide which scientific evidence to admit in testimony, and determine if the scientific validity of the evidence is accurate. In other words,
the testability of theory and/or techniques, peer-review publications and consideration of the known or potential rate of error and general acceptance is assessed. Although this ruling directly applies to the federal court, it will be up to the state court to determine if this standard will be adopted.

Depending on the jurisdiction, the LNC may be granted the ability to review the subpoenaed records for any additional information that was not provided during the discovery process either via authorization or from the other side. The LNC can attend the other side’s expert witness testimony to point out discrepancies or other testimony which could be questioned on re-direct or re-cross examination. The LNC may also be available to pull out information in the medical record for the attorney to be used during questioning.

Impeachment

Literature in the past twenty years demonstrates that professionals very often fail to come to valid and reliable conclusions. Fortunately, the accuracy of a professional’s judgment doesn’t usually surpass a layperson. With this information, attorneys are provided the means by which to diminish psychological and neuropsychological testimony. There is a long history within the adversarial system, which provides guidelines for cross-examination of the opponent’s expert. This system promotes this examination because it is the best established means for insuring
reasonable degree of scientific integrity, and the best solution for what is termed “junk science”.

Attorneys who look to exclude testimony by a neuropsychologist should question the reliability and validity of neuropsychological tests as well as the conclusion set forth on the basis of these tests. There are resources that address the neuropsychological tests available. As part of the Daubert decision, “neuropsychologists should be prepared to demonstrate the methodologies and tests are generally accepted in the neuropsychological community, have been subjected to peer review and have been standardized”. (McCaffrey, p. 122) This provides the basis for the
scientific testimony to a “reasonable degree of medical certainty”. This also implies the tests and methodologies utilized by neuropsychologists must be valid and reliable. The same principles can hold true for other experts, such as the economist who determines the employa bility of the child(ren), and an industrial hygienist who may have direct practice knowledge on lead paint testing with an XRF device and abatement procedures.

Generally, verdicts have ranged from a no cause to millions of dollars in damages. If either side determines there were problems during the trial, an appeal may be considered for the allowance of presenting confounding variables, or for procedural discrepancies in the judge’s ruling during trial.

There is a place for the LNC on this legal team from the moment the plaintiff contacts the attorney. Our contributions assist the attorney in gathering the necessary documents, organizing facts, identifying and locating experts, performing research, and providing trial support to litigate or defend the suit.

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