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Thursday, August 28, 2003

Beldar will likely vote 'Yes' on Prop 12, but for an odd reason

The Curmudgeonly Clerk has a very thorough and extremely useful post up that contains a huge amount of factual information, both pro and con — plus all the links you could ever want — regarding Proposition 12.  This is the proposed amendment to the Texas Constitution that would

allow the legislature to statutorily cap non-economic damages (i.e., non-compensatory damages) in civil suits. Proponents of the measure argue that out-of-control medical malpractice costs that drive away doctors require the measure's passage. The amendment's detractors accurately note that the proposal would give the state legislature a free hand to limit damages in all civil matters, not just healthcare-related suits.

I'm leaning toward voting 'yes' on Prop 12 — which may be somewhat self-destructive, since the firm to which I'm "of counsel" more frequently represents personal injury plaintiffs than personal injury defendants (or their insurers).  My reason for probably voting that way is also odd — a really wonky one that I haven't seen either side argue.

The anti-Prop 12 pitch

Welcome to another episode {note1} of "I knew them when ...":   For a short time in the early 1990s, I was a shareholder — essentially what's generally thought of and referred to as a "partner" — in the Houston office of Dallas-based Thompson & Knight, and one of my counterparts in the firm's Trial Department in Dallas was Deborah Hankinson, who thereafter served as one of the Associate Justices of the Dallas Court of Appeals and then the Texas Supreme Court.  She's now back in private practice, but her reputation as a pro-business, conservative Republican judge caused several folks to sit up and take notice when she became one of the highly visible leaders of the campaign to defeat Prop 12. 

Judge Hankinson has authored a sort of letter-brief/editorial arguing against Prop 12, and it reads very much like the Texas Supreme Court's opinion from Lucas v. United States, 757 S.W.2d 687 (Tex. 1988), in which then-Justice William Kilgarlin led the charge to declare unconstitutional a tort-reform "cap" on damages that the Texas Legislature had passed in 1977.  Nobody else could rouse the rabble with a good piece of populist demagoguery quite the way that Bill Kilgarlin could!

Prop 12 would basically amend the Texas Constitution to overrule Lucas, and Judge Hankinson thinks that would be a bad thing because it would upset the "separation of powers" balance by putting too much power into the hands of the Legislature, ostensibly at the expense of Texas courts and juries.

But Beldar thinks ...

With all due respect to Judge Hankinson and other opponents of Prop 12, however, I just think that's a completely bogus argument.  I thought so when Lucas was announced and I still think so now.  Nobody's being denied "access to the courts" — that's just a load of crap, a complete red herring argument, although it surely sounds good.  This sort of state-level substantive due process — reading substantive rights into provisions of the Texas Constitution that seem fair, as deemed by judges, never mind that they're nowhere written down — is as fundamentally unprincipled at the state level as it is at the federal level. 

Basically, for reasons you can read about in any high school civics book, I think that the legislative branch of government ought to be free to adjust our whole civil-law structure pretty much unimpeded by constitutional handcuffs.  For the exact same reasons that it's a good thing for the Legislature to be able to create statutory claims that didn't exist "at common law" — including such things as survivorship actions or consumer protection cases under the Texas Deceptive Trade Practices-Consumer Protection Act ("DTPA") — it's a good thing for the Legislature to be able to dial back on claims that first arose "at common law," including personal injury claims of all sorts.

Who do you want to trust to tweak these knobs?

I frankly don't know whether the specific caps contained in the Legislature's latest efforts at tort reform will or won't solve the "insurance rate and availability crisis" that's being bandied about as the chief reason for passing Prop 12.  I suspect the Legislature doesn't really know that either. 

But the Legislature is the right branch of government to make that decision in the first instance — to experiment and tinker and tweak the system.  If they screw it up worse, they can fix it.  That's why the DTPA's been amended so many times since it was originally passed in 1979, for instance — it's on the whole a far better piece of legislation after some unintended imbalances were fixed, and it still has ample teeth to serve its original purposes even though most of the amendments have been cutting back on its original strength.

For me, then, it comes down to a representative small-d democracy issue.  Those state senators and state reps  may in fact all be clowns, but they're our clowns.  Discipline for Legislators should come at the ballot box, rather than through clumsy constitutional handcuffs.  As a public policy matter, we're better off giving the Legislature broad authority, and then holding the Legislators accountable at the polls.  This beats either having the Supreme Court managing public policy through the meat-axe of declaring legislation unconstitutional, or having the public at large micro-manage things like tort reform in the guise of constitutional amendments.

Now, I know my position runs contrary to a long-standing and well-justified suspicion in Texas that the Legislature is an extremely dangerous thing.  Here's the oldest joke in Texas politics: 

"Say, do you know the most significant typographical error in Texas history?  Why, it was the accidental reversal of some numerals in the Texas Constitution — the Legislature is really only supposed to meet every 140 years for 2 days, and not the other way around!"

But in short, while Prop 12 is about separation of powers, it's an appropriate restoration of legislative prerogatives that simply undoes the power-grab by the then-populist Texas Supreme Court in Lucas.  Populism may have its place, but better that it be in the executive and legislative than the judicial chambers of state government.


{note1}The next installment of this game is likely going to be a variation and elaboration on "I did blue-book cite-checks for Houston mayoral candidate Bill White back when I was a staffer and he was the editor-in-chief of the Texas Law Review."  He's a public figure now, so I guess I'm immune from whatever defamation claims he might bring against me unless he can prove both falsity and "actual malice."  Mwah-hah-hah!  That leaves lots and lots of room!

The alternative title of this game, of course, is "Famous people I've known along the way whose careers have far surpassed my own," but it's less fun to play when I call it that.


UPDATE (Sat Sep 6 @ waytoolateatnight):    Walter Olson at Overlawyered has graciously linked to (and complimented) this post, but he has also gathered many other links to posts that discuss Prop 12, pro and con.  If you didn't get here via his post, you may well want to check out some of the other links he's collected!

Posted by Beldar at 10:12 PM in Politics (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Beldar will likely vote 'Yes' on Prop 12, but for an odd reason and sent a trackback ping are listed here:

» Texas's Proposition 12 from Overlawyered

Tracked on Sep 5, 2003 2:13:56 PM

» Many Thanks from The Curmudgeonly Clerk

Tracked on Aug 17, 2004 11:32:13 AM


(1) LazyMF made the following comment | Aug 29, 2003 10:12:10 AM | Permalink

I would much rather leave these matters to the "populist" leanings of judges and juries than to the Texas legislature. The judges and juries are much more far removed from the corrupting influences of lobbyist money than the legislature (although the judges could be more removed IMO). To suggest that the people will monitor the conduct of their legislators through the ballot box is absurd. Most Texans cannot name their local representatives and senators, let alone tell you how they vote on issues as arcane as amendments to the DTPA (quick Beldar, without looking it up, who were your local reps when the DTPA was initially enacted, and how did they vote?). The only time Texans are aware of their reps is if they become embroiled in scandal(AWOL Dems), if there is some controversial vote (gambling or abortion issues), and on election day (if they vote).

I think, sadly, this Prop will pass. Will tort law change drastically in Texas? Yes. Will insurance rates drop? Hell no.

What will be the first noticable casualty of the tort reform? Litigation claims concerning the lives of lost children.

Whether a child dies from medical complications in a MedMal setting, or as a toddler in a car accident, the actual economic damages suffered by the parents are minimal, while the non-economic damages are huge. Traditionally juries award "pain and suffering" money for parents in these cases because it is generally known that the death of a child will result in depression, poor future work performance from the parents, permanently altered relationships with the reamaing children and family members, and a likely divorce between the parents down the road. Soon the parents will be required to prove these damages in an "economic" form through psychiatric reports showing the need for future counseling and by hiring economists to show the future wage earning impact. This will result in more costly litigation to both sides of the case.

I am also concerned that none of the public dialogue regarding this amendment mentions that MedMal caps for non-economic damages have already been in place for years in Texas. They have been enforced and have had no apparent impact on MedMal insurance rates.

(2) Beldar made the following comment | Aug 30, 2003 12:47:13 AM | Permalink

Thanks for the thoughtful post!

To suggest that the people will monitor the conduct of their legislators through the ballot box is absurd.

Maybe. (Note my "clowns" remark.) But it's the basic premise of representative democracy.

My illustration about the DTPA was to show that they're not completely inept and unresponsive. The various amendments to the DTPA have each been the subject of heavy lobbying by competing interest groups with roughly equivalent clout and campaign-contribution-making ability — the Texas Trial Lawyers Association versus the Texas Medical Association, for instance. I'm sure there were some days when the sausage-making behind the scenes wasn't pretty, but ... that's politics for you.

All your arguments would be appropriate and persuasive on the floor of the Legislature in arguing against a tort reform bill. These sorts of arguments are very fact- and policy-intensive by their nature, and from either direction they're very subject to heavy spin of the sort that inflames public passion, but that in theory legislators ought to be able to see through and balance out. The TTLA lobbyist might make the point you just made about grieving families. Then the TMA lobbyist stands up and says, "Yeah, but (a) we're not talking about giving that family zero for those noneconomic damages, we're just trying to keep them from becoming instant multi-millionaires, and (b) who's going to deliver the children of the rest of the families in the state if all the obstetricians have quit because they can't get insurance?" It's all grist for the mill — the legislative mill.

The reason for my support of Prop 12 really isn't that I distrust trial judges or juries in general. In general and on average, I think juries do an excellent job, despite occasional aberrations. I still have a very idealistic belief in the system, in fact, despite seeing it successfully manipulated from time to time. But faith in the jury system isn't a good reason to deprive the Legislature of the ability to reshape and rebalance our civil law system — which is what the power-grab by the Lucas court did.

In general, juries do a good job working within the framework of law that they're given, as transmitted to them by the trial judge's instructions and by the wording of the questions they're asked. The appellate courts do indeed have a traditional role in crafting the common law part of that framework, but traditionally and intentionally, the common law they create can be overridden by statutes from the Legislature. Appellate courts do an even worse job than the Legislature at making decisions based on public policy. They aren't well equipped, for instance, to hold hearings and gather data on things like whether insurers really are fleeing the state based on litigation losses. Fine-tuning the system — putting a cap on here, creating a punitive damages provision there — really should be for the Legislature. What Lucas did was to say, "We're putting this out-of-bounds for the Legislature to ever touch," and what Prop 12 will do is undo Lucas. Completely apart from the merits of any particular tort reform bill, I think that's a good thing.

(3) wendy made the following comment | Sep 1, 2003 8:35:53 AM | Permalink

I just wanted to respond to some of the discussion regarding prop 12. Most of the discussion has been about insurance companies and Doctors. I would like to remind everyone of a couple of points. First, that's not what this bill does. It allows legislators to determine what juries should be determining. And this leaves them able to make those changes in any type of case - not just medical malpractice. Secondly, for those who are unaware, there is already a medical malpractice cap. Thirdly, I don't really see insurance companies passing any savings on to their insured. I don't approve of the courts legislating from the bench and I don't approve of the legislature determining the outcome of lawsuits. There are other ways to fix this problem, but prop 12 is not it

(4) Beldar made the following comment | Sep 1, 2003 12:49:09 PM | Permalink

Thanks for commenting!

I don't approve of the courts legislating from the bench and I don't approve of the legislature determining the outcome of lawsuits.

With all due respect, wendy, both of these things happen every day, and our entire civil law system depends on it.

What guides trial judges and juries is a mix of common and statutory law. The common law has been developed by the courts over centuries; the statutory law has been developed by legislatures. That's just as basic as it gets.

Thus, for example: I advertise that my widgets will never rust, and you rely on my representation in buying 5000 widgets — which promptly rust. You sue me for fraud, a common-law tort whose parameters are entirely the creation of the courts going back centuries. You also sue me for violating the Texas Deceptive Trade Practices-Consumer Protection Act, which the Texas Legislature created out of whole cloth in 1979. At the end of the case, the judge asks the jury a series of questions, some of which relate to the common-law claims, some of which relate to the DTPA claims, but all those claims arise out of the same transaction.

Believe me, as a consumer you're far, far better off having both, however; for one thing, the DTPA allows you to get attorneys' fees, which the common law would never have allowed you no matter how bad my fraud was. If the widgets only cost $0.02 each, I was free to defraud you with impunity as a practical matter before the DTPA because such a small transaction was uneconomical to ever sue over.

It's the core job of legislatures to do this sort of stuff. To oppose Prop 12 on grounds that the Texas Legislature ought not be "meddling" with what courts and juries are doing is profoundly misguided. And again — intending no disrespect, ma'am — it's only because of a poor understanding on the part of the general public regarding how the current civil justice system actually works that the opponents of Prop 12 can make this argument.

The normal and desireable ground rule for the civil justice system — not just in Texas, but in every common-law jurisdiction in the world — is that the Legislature has the power to overrule the courts except with respect to rights that are constitutionalized. What the Lucas panel did was to pretend that the Texas Constitution had some guarantees in it that would tie the Legislature's hands on tort reform. That was a load of crap; it was bad judging, it was not just legislating from the bench, it was lying from the bench. But that's the precedent that the current Texas Supreme Court is stuck with, unless and until a constitutional amendment overturns Lucas. That's exactly what Prop 12 does. It restores the normal dynamics of the common law and statutory law in the civil justice system — nothing more, nothing less.

(5) PG made the following comment | Sep 3, 2003 9:39:05 AM | Permalink

Beldar, you keep trying to sell Prop. 12 as a way to curtail the Texas Supreme Court's "power grab." That implies that the Court was grabbing power for itself, for judges, when instead it was retaining power for juries.
Moreover, I am trying to think of previous legislation that has affected the power of juries. If anything, the trend appears to be toward empowering juries, as in Ring v. Arizona.

I would appreciate your explanation of exactly why Lucas was wrong in seeing the right to have a jury determine damages as part of Art. I Sec. 13: "All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law."

Legislators ought to make some determinations through statutory law on which claims are actionable to begin with, but they should not interfere with the process of law that is meant to be carried out by legal professionals and 12 average people. It's one thing if the Legislature decides that personal-injury claims are just plain wrong as a whole and that one ought not to be able to sue for them at all. It's another for the Legislature to give themselves powers that properly belong to the jurors.
As Hankinson says, "Juries are an important part of that deliberate balance of power. Jurors have no ambition. The jury selection process screens jurors for bias. The jury is called, hears a case, presents a verdict and disbands. Jurors don't owe anyone any favors, and they don't seek re-election." Preferring to have government officials instead of regular citizens make decisions is a poor populism.

(6) Beldar made the following comment | Sep 3, 2003 9:56:51 AM | Permalink

Great comment, PG, thanks!

We live in a representative democracy, the whole basis of which is the notion that we citizens have delegated to our elected representatives the duty to make informed choices on our behalf in crafting legislation. We don't have a state-wide plebicite on every issue of public policy; we can't.

I do respect the jury system, but one thing it's not is consistent. Individual jury verdicts don't make "rules" of state-wide applicability, they determine justice in individual cases for the particular litigants in each such case, and they're no substitute for legislation (or for that matter, for the crafting of common law by appellate courts, even though they're more closely connected to that process). You can't expect a bunch of jury verdicts, collectively, to give you a meaningful evaluation of arguments for and against tort reform, for instance. They don't hear the right kind of evidence, for one thing. They don't hear about insurers' cycle between windfall profits and premium boosts to cover investment losses (TTLA party-line), or about doctors fleeing the state because they can't get insurance coverage (TMA party-line). Their focus is purely a micro-economic one, when a macro-economic focus is essential to broad-based policy discussions from the perspective of both sides of those arguments.

I described Lucas as a power-grab because it was an illegitimate act of judging. The Texas Constitution provision you cite guarantees you "remedy by due course of law," but it doesn't take away from the Legislature its traditional and altogether proper role of deciding exactly what "course of law" is "due." I'm sorry, that case was simply bogus; it is not defensible on any principled basis, and I'd be delighted to debate my former partner Justice Hankinson or any other lawyer on that subject any time, any place.

There's simply no such thing as a "process of law that is meant to be carried out by legal professionals and 12 average people" that exists in the abstract. "Meant" by whom? It can only be "meant" by the creator of the civil law provisions in question, which is either (a) the legislature, or (b) common-law courts. Both legislatures and courts add to and take away from these processes on a near-daily basis. And that's true both of determinations on liability (does the defendant owe anything?) and damages (how much does the defendant owe?).

Example:   I'm driving down Bellaire Blvd. and hit a homeless man, who lodges in my windshield and is stuck there in agonizing pain for three weeks before he dies. You're his estranged adult son; you have no social interaction with him and receive no support from him. In your own right, you have a lawsuit against me for wrongful death, but you have minimal damages. He, by contrast, before he died, had HUGE potential damages against me based on his terrible suffering. At common law, his own claims died with him and simply vanished. When that Texas Constitution provision you cite was passed, the legal process that you were "due" on the claims that belonged to your father was zero. By statute, though, the Texas Legislature decided that your father's claims against me shall be deemed to survive his death and go to you as his heir — solely as an act of legislative grace. The Legislature also decided, though, that such claims must be brought within 2 years after the date of his death, or not at all — even if I hide the fact of his death from you (which in an ordinary tort claim would suspend the running of the ordinary statute of limitations). The Legislature gives; the Legislature crafts and molds what it gives; sometimes the Legislature takes back. It may or may not be wise and rational in so doing, but without any doubt, doing this sort of stuff is within the ambit of its normal responsibilities in our system of representative constitutional democracy.

As for who the beneficiaries of the Lucas power grab were: Look at your own argument. You're exactly right that "juries" don't benefit (or suffer) from the power they wield. The holding in Lucas wasn't to benefit juries, but rather to benefit the occasional (fairly rare) plaintiffs whose damages would otherwise have been capped by tort reform -- and, more realistically, the plaintiffs' personal injury bar, who more regularly profit from those big-verdict cases. It's that segment of the bar whence Judge Kilgarlin originally came, and to which he returned upon leaving the Texas Supreme Court, and the Lucas decision was one of the last gasps of the pre-reform Texas Supreme Court of the 1980s that won such national acclaim on "Sixty Minutes" and elsewhere as the most aggressively pro-plaintiff, pro-plaintiffs'-lawyer supreme court in the nation at that time.

(7) PG made the following comment | Sep 4, 2003 10:12:06 AM | Permalink

:-) Good response, but it's not exactly what I was asking. I totally agree that juries aren't supposed to make generalizable rules; that's a job for legislators and, to some degree, judges.
That's why I said, "Legislators ought to make some determinations through statutory law on which claims are actionable to begin with, but they should not interfere with the process of law that is meant to be carried out by legal professionals and 12 average people."

Your example of the son getting to make a claim on his dead father's behalf is a perfect instance of legislators' deciding which claims will be actionable. But the legislature did not decide that the award from the claim would be premised on how often you saw your father ($10k for once a year, $20k for twice a year...), or anything else that ought to be decided on a case-by-case basis, with the (sometimes dubious) judgment of the jury empanelled in the particular case.

Obviously a jury cannot decide the wisdom of reforming an entire industry, or an entire area of the law. A jury is for the particular; a legislature is for the general. If a particular case of malpractice was terribly heinous, a jury ought to be able to punish the defendant accordingly. If people ought not be able to sue their psychiatrists, the Legislature can put that into a statute. But once a case goes into a courtroom, I don't think legislators ought to be interfering in what happens. They aren't going to hear the circumstance of that case, any more than the jurors hear about the ups and downs of the insurance business. Each has its own sphere in which to operate.

Also, I don't understand how a plaintiff's attorney can benefit unless the plaintiff is benefiting as well. I really dislike the pretense that plaintiff's attornies are running the whole show. They don't make the claim, they don't decide the case and the award is not made to them. I'm sure that they can be a skeevy lot, but we ought not pretend that they are as important as you make out.

(8) Beldar made the following comment | Sep 5, 2003 12:46:41 AM | Permalink

Another fine post, PG, much thanks!

On the subject of whether legislatures should and do regularly tinker with damage awards, I suppose I was arguing on the logical principle that if they have the power to create and take away claims altogether, that implies the power to regulate interstitially. But again, you make an excellent, perceptive point when you say that "a jury is for the particular." Among things that I believe juries are superbly well suited to do, for instance, is spotting liars and exaggerators. They do their best in assessing fair damage awards, and their best is better than any other system, I agree.

But I still would not take out of the legislature's hands the power to nudge the entire system in one direction or another by tweaking damages awards. It's essentially an exercise in a combination of risk allocation, deterrence and incentivization, and redistribution of wealth. And in fact, legislatures have traditionally done this on a "tweaking" basis in addition to creating or denying entire claims outright.

The most conspicuous Texas example is, again, the DTPA, which as currently drawn allows (a) economic damages but no mental anguish when a violator's conduct has been unknowing, (b) mental anguish damages plus up to triple economic damages when a violator's conduct has been knowing but not intentional, and (c) up to triple economic and mental anguish damages when a violator's conduct has been intentional.

The distinctions between states of mind here are almost comical, reflecting an attempt by the Legislature to micro-manage its guidance to juries as to how they should compensate victims and (sometimes) punish offenders. But it's not different in kind from saying, "We've decided as a matter of statewide economic policy that nobody ought to get more than $750,000 for pain and suffering." You may think such a cap is unwarranted, or too high or too low. But I continue to believe that the place where the decision should be made on whether to have such a cap, and if so where to set it, is the Legislature -- not in a state-wide plebiscite of all voters, nor in a conference room with nine Texas Supreme Court Justices.

(9) Kurt made the following comment | Sep 11, 2003 2:50:41 PM | Permalink

GAO Report Confirms Caps like Prop 12 Have Dropped Malpractice Rates in Other States
by Kurt Reyes, BS Economics and Current Medical Student

GAO recently released (August 2003) a report to Congress titled “Medical Malpractice- Implications of Rising Premiums on Access to Health Care.” The GAO performed several studies and analyses. Some of the analyses included Texas and other studies did not. Prop 12 is a proposed amendment that will uphold current legislation that places a limit or cap on non-economic (pain and suffering) damages.

Have caps on pain and suffering lowered the growth of malpractice premiums in the past?
GAO report: Yes. States with caps show less growth in malpractice premiums than states that do not have caps or those states with weaker reforms. (GAO-03-836, p. 30).

Are medical malpractice claims the greatest contributor to increased premiums?
GAO report: Yes. The greatest contributor to malpractice premiums appears to be malpractice payouts. The GAO did state other factors, but the greatest contributor was payouts for claims (GAO-03-836, p. 9).

Will caps lower the price of malpractice premiums in the long run?
GAO and Congressional Budget Office (CBO): Yes, a federal cap will drive down the long-term price of malpractice premiums by 25 to 30 percent over a ten year period (GAO-03-836, p. 34). Passing a cap in Texas will add momentum to legislation for a federal cap.

Was Texas included in the study about the causes of increased premiums?
GAO report: Yes (GAO-03-836, p. 9 footnote 14).

Did this GAO report directly address healthcare access in Texas?
GAO report: No.

Is there a lack of access to care due to malpractice premiums in Florida, Nevada, Pennsylvania, Mississippi, and West Virginia?

GAO report: Debatable. In the few localized instances and often in rural that received much media coverage, GAO confirmed that certain events (such as the ER closure in Nevada and patients in Mississippi having to drive 65 miles to deliver because OBs closed their rural practices) were in fact due to high premiums. “However, we [GAO] also determined that many of the reported physician actions and hospital-based service reductions were not substantiated or did not widely affect access to health” (GAO-03-836, p. 12).

In other words, GAO did not find evidence that statewide problems with access to health care due to high premiums in the five states currently existed. (Many opponents of Prop 12 are misquoting the above GAO statement to claim that a national healthcare crisis does not exist. This GAO report did not investigate access to health care on the national level. GAO has yet to determine if there is a national healthcare access problem due to high premiums, and GAO will continue to monitor the problem for Congress.) AMA claims that 18 states including the above five states are in a health-care crisis because of high premiums (GAO-03-836, p. 38).

The confirmed instances of limited access to care are few, but they maybe implications of a greater problem for the underserved. One implication is that rising premiums could lead to a lack of access of health care for the underserved (Mississippi example). Another implication is that these few incidents are random and that they indicate nothing.

If access to health care for the poor is not a problem in Texas, do we wait until premiums get so high that we do have problems with access to health care for our less fortunate? AMA/TMA claim that these high premiums are already obstructing access to healthcare in Texas. Vote Yes for Prop 12 and reduce the malpractice premiums.

Kurt Reyes
Medical Student
UT Health Science Center at San Antonio

Source: GAO-03-836, “Medical Malpractice- Implications of Rising Premiums on Access to Health Care,” August 2003 accessed 7 September 2003 at http://www.gao.gov/new.items/d03836.pdf.

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