Understanding the Indeterminate Defect Theory in a Maryland Product Liability Case

There are many defective product cases which cause serious personal injury or death. Often, fire or explosion may cause such significant damage to the product that the actual specific cause for the accident can not be determined. The first example to come to mind is an airplane exploding into a million pieces. We know that this is not supposed to happened and that something obviously went wrong. The problem for the lawyer representing victims is how to prove it? Often times, when no physical evidence is preserved in a products liability case, the victim’s lawyers may be forced to rely on the “Indeterminate Defect Theory” . I have done significant research in this area and hope that the legal analysis below will help others similarly situated.

As a threshold matter, in a Maryland product liability action, proof of a defect must arise above surmise, conjecture or speculation, and a plaintiff may not base recovery solely on any presumption that might arise from the happening of an accident. See International Motors, Inc v. Ford Motor Co., 133 Md. App. 269, 275 n.7, 754 A.2d 115, 118 n. 7 (2000). Notwithstanding the above, an inference of a defect may be drawn from the happening of an accident where circumstantial evidence tends to eliminate other causes, such as product misuse or alteration; i.e., an indeterminate defect. The first case in Maryland to address this circumstance was Harrison v. Bill Cairns Pontiac, 77 Md. App. 41, 549 A.2d 385 (1988). The Harrison Court found that the five factors to be considered when determining whether a product defect may be inferred include:

(1) expert testimony as to possible causes;
(2) the occurrence of the accident a short time after the sale;
(3) same accidents in similar products;
(4) the elimination of other causes of the accident;
(5) the type of accident that does not happen without a defect
Not surprisingly, how each of these factors is applied varies based on the testimony at issue in each case, and in many cases, on the whims of each particular judge. The cases set forth below help illustrate the basic tenets of each factor and how Maryland’s state and federal courts have interpreted the same.

Harrison v. Bill Cairns Pontiac

In Harrison, used car buyers brought a product liability action against the manufacturer and seller to recover for damages caused by a fire that started behind the vehicle’s dashboard instrument panel. At the time of purchase by the Plaintiffs, the car was approximately 4 years old and had over 58,000 miles on it. At deposition, one of plaintiffs’ experts stated that the fire was caused by an “electrical short in the dashboard directly behind the instrument cluster.” Harrison, at 44. The expert’s two-fold rationale for reaching this conclusion was: (1) because “all the wires were burnt and they were what was burnt the most” and therefore “that is what I presumed was the central point of the fire;” and (2) because the only way that [the wires] would have caught on fire that way is through a short.” Harrison, at 44. A second expert also concluded that an unidentified defect in the car caused the fire. The basis for that expert’s conclusion was simply that “cars don’t drop molten material on people’s feet while in operation.” (referencing the plaintiff’s testimony that molten plastic from the internal fire dropped on her feet while she was operating the vehicle). Harrison, at 45. In short, the second expert was unable to specifically identify the electrical defect or say whether it was a manufacturing or design defect.. Harrison, at 45. Perhaps more damning, however, was the fact that the second expert conceded that a faulty repair in that area could have caused a problem that resulted in an electrical fire. Harrison, at 46.
Based on the foregoing testimony, the trial court granted summary judgment in favor the defendants. On appeal, the Court of Special Appeals affirmed that decision, holding that the plaintiffs’ evidence did not tend to eliminate the likelihood that a defect in the car, if any, was created after Ford’s manufacture of the vehicle. Curiously, despite enunciating the five factors to be considered when considering whether an expert may infer a product defect from particular circumstances, the appellate court failed to engage in a factor by factor analysis. Rather, in reaching this holding, the Court merely focused on those factors it concluded swung the balance in the defense’s favor. Specifically, the court placed considerable reliance on the second, fourth and fifth factors, highlighting the fact that the automobile had been purchased more than four years after the date of manufacture, had more than 58,000 miles on it at the time of purchase and that nothing was known about its operational or repair history. Such evidence made it impossible, in the court’s mind, to permit an inference that a defect existed at the time of manufacture when combined with the possibility that a faulty repair or other happening might have caused the problem.

Watson v. Sunbeam Corporation

The next case in Maryland to address the indeterminate defect theory was Watson v. Sunbeam Corporation, 816 F.Supp. 384 (D. Md. 1993). In Watson, consumers brought a product liability action against the manufacturer (Sunbeam) and seller (Sears) of an electric blanket that allegedly caused a house fire. Defendants moved for summary judgment at the close of discovery. The trial judge denied the motion, finding that material issues of fact remained. The relevant facts were as follows:

The plaintiffs purchased the Model 7060 Sunbeam electric blanket on November 20, 1987. From that date, until the date of the fire, September 11, 1988 (10 months later), the blanket worked effectively and did not require any repairs. See Watson, at 385. On the night of the fire, the plaintiffs put their children to bed in a basement bedroom. The youngest son was using the electric blanket which was plugged in along a wall at the foot of his bottom bunk bed. See id. at 386. At some point during the night, the child in the top bunk awoke and, according to her deposition testimony, witnessed a lot of fire in the bottom bunk bed and saw that the electric blanket was on fire. See id. In addition, the father entered the room after the smoke alarms went off and saw fire on the bed and walls of the bedroom in the corner where the bed was located. See id.

Following the fire, the deputy fire marshal conducted an investigation and concluded that the “fire started on the lower bed and as it progressed, it engulfed and totally destroyed the upper bed. It burned upward.” See id. He later prepared a supplemental report where he concluded that “the most probable cause of the fire is an electric blanket, however it could be determined whether [the blanket] malfunctioned or it was the result of the blanket being balled up.” See id. Thereafter, after receiving a hearsay report that the fire was caused by one of the children playing with matches, he issued a second supplemental report which stated that he could not eliminate the possibility of a child playing with matches as the possible cause, nor could he eliminate the possibility of the electric blanket causing the fire. See id. Not surprisingly, the children were deposed in this case. All of them denied playing with matches on the night of the fire. See id.

Also following the fire, the plaintiffs’ insurance carrier retained a cause and origin expert who concluded that the fire started in the basement bedroom, in the bottom bunk near the foot of the bed. The expert further opined that he attributed the cause of the fire to the electric blanket overheating and igniting itself and other bedding nearby. See id. Thereafter, the plaintiffs retained an electrical engineer. Because very little of the electric blanket survived the fire, he was only able to rely upon photos of those portions that survived, the reports of the fire deputy and cause/origin expert and schematics of the Model 7060 electric blanket. Nevertheless, he expressed an opinion that design defects of the blanket probably caused the fire. To that end, he identified five design flaws in the blanket and testified that the most probable cause for the fire was inadequate protection in the blanket where the wires connected to a terminal block. See id.

In response, the defendants argued that the expert’s opinion was legally insufficient because its only basis is that the fire occurred. See id. at 387. They pointed out that in response to the question “you can’t tell me whether there was a defect in the wire or the terminal block,” the expert responded, “No, I’m saying there had to be in order for the blanket to cause the fire. That’s the best I can do at this time.” See id. After reading the entirety of the expert’s opinions, however, the trial court concluded that what the expert was doing was not inferring the existence of a defect from the occurrence, but rather, inferring from the occurrence the fact that the defect which he identified was its cause. See id. at 388. That distinction made such an inference permissible under the first Harrison factor; i.e., testimony on a “possible cause.”

Turning to the second factor under Harrison (Timing of Accident), the trial judge next concluded that the 10 month window between the product’s purchase and the date of the fire was a short enough time period such that a permissible inference could be made that a product defect existed at the time it left the manufacturer. See id. at 388.

Next, the court looked at the third Harrison factor (Similar Accidents Involving Same Product) and noted that from 1987-88, 6,192 Model 7060 blankets were sold by Sunbeam to Sears, and that prior to this action, Sunbeam had received no claims against that model. Since the action had been filed, Sears had received only one claim and there was no information in the record regarding the circumstances of that claim. See id. at 388. This factor was decided to be neutral.

The court then turned to the fourth Harrison factor (Elimination of Other Causes). The defendants identified two possible causes of the fire other than a defect in the blanket: (1) children playing with matches; or (2) the wires and cord of the blanket having become crossed, trapped or pinched. The trial court found that genuine disputes of material fact existed as to both issues. First, the Watson children testified unequivocally that they were not playing with matches on the night of the fire. Second, Mrs. Watson testified she made sure that the wires and cords of the blanket were unobstructed when the blanket was in use. See id. at 388. This factor was therefore decided in the plaintiffs’ favor.

Last, the court looked at the fifth Harrison factor (Nature of the Accident). The trial court interpreted this fact as meaning that “even if other causes are not eliminated, is the accident of a type that does not ordinarily happen unless a defect exists. The trial judge concluded that fires can occur in beds over which an electric blanket is laying without there being any defect in the blanket. This conclusion was based on plaintiff’s expert’s deposition testimony wherein he conceded that in 50% of the cases in which he had been retained to investigate fires where electric blankets are involved, he has determined that the blanket was not defective. See id. at 388.

In sum, after viewing the evidence in a light most favorable to the plaintiffs, the court found that three of the Harrison factors favored the plaintiffs (first, second, and fourth), the third factor was neutral, and the fifth factor favored the defendants. Because the court could not say that a rational jury could not return a verdict in favor the plaintiffs based on the balancing of these factors, the defendants weren’t entitled to summary judgment.

Riley v. De’Longhi

The next case to address the indeterminate defect issue was Riley v. De’Longhi Corporation, 238 F.3d 414 (4th Cir. 2000), an unpublished decision. In Riley, a fire started on the rear porch of a home. At the time of the fire, a portable oil-filled space heater manufactured by the defendant was located on the rear porch, connected by an extension cord to the wall outlet. After the fire, the P.G. County fire investigator and the defendant’s expert inspected the extension cord and observed beading and breaks, and therefore concluded that an electrical overload in the cord had caused the fire. Id. at *1. The homeowner’s insurance company also hired an expert to investigate the cause and origin of the fire. He concluded that the fire originated in the heater, either from an electrical malfunction or a short circuit in the control panel or wiring. Id. at *1. The defendants ultimately moved for summary judgment, arguing that plaintiffs could not identify the specific defect in the heater. The trial judge granted defendants’ motion.

On appeal, the Fourth Circuit reversed, finding that four of the five Harrison factors tipped in plaintiffs’ favor. First, the Court found that plaintiffs’ experts satisfied the first factor in that they offered testimony as to possible causes of the fire. Id. at *3. As a threshold matter, both authored a report identifying the heater as the source of the fire and specifying that the problem was an electrical malfunction within the heater’s control panel. One of the experts even identified the possible causes as a thermostat malfunction or poor electrical connection. Id. at *3. The other expert opined that the fire began when plastic components in and around the thermostat ignited and fell into the control panel. In response to the defense’s argument that plaintiffs’ experts failed to identify a precise defect within the heater, the court stated that in a circumstantial case the plaintiff “need not explain specifically what constituent part of the product failed.” Id. at *3. Moreover, the court held that the first Harrison factor only requires testimony as to possible causes. Plaintiff’s expert testified to a reasonable degree of engineering certainty that he believed the fire originated in the heater, and that the cause was either thermostat malfunction or a poor electrical connection. Such testimony was deemed sufficient. Id. at *3.

Second, the Court found the plaintiffs satisfied the second factor, the occurrence of the accident shortly after the sale, because the fire occurred only 6 months after they bought the heater and had only used it 3 times during that time. Id. at *4.

Third, the Court found that the plaintiffs satisfied the third factor because there was evidence that De’Longhi heaters manufactured during the 1980’s had been identified previously as potential fire hazards. In those instances, De’Longhi had provided free replacement control panels to these heaters because of the CPSC’s determination that some of the electrical controls posed a fire hazard. Plaintiffs’ experts testified that there was a sufficient similarity between the heaters manufactured in the 1980’s and the Plaintiffs’ heater. Id. at *4.

Fourth, the Court found that the plaintiffs satisfied the fourth factor because Plaintiffs’ experts testified that they did not believe that the fire originated from a source other than the heater. One expert ruled out an external cause of the fire. Both experts also disagreed with the defendant’s expert’s conclusion that the extension cord caused the fire. Importantly, the plaintiffs’ experts eliminated the extension cord because its solid conductors did not show signs of excessive overheating and there was insulation left on the cord. Even though the defendant’s expert disagreed, the court found that plaintiffs’ experts had offered sufficient testimony eliminating the other causes of the fire. Id. at *4.

Fifth, the Court did not reach the fifth factor of the Harrison test, citing a lack of clarity as to how it should be interpreted (requiring the plaintiff to show that the accident would not have happened unless the heater was defective, even if other causes (were not eliminated, versus accepting plaintiffs’ experts’ testimony regarding the elimination of other causes before considering whether the fire is the type of accident that does not occur without a defect. Nevertheless, the Court concluded that satisfaction of four of the Harrison factors was adequate to create a genuine issue of material fact as to whether the heater was defective. Id. at *5.

Gross v. Daimler Chrysler Corp.

In a case bearing striking factual similarities to Harrison, the United States District Court had occasion to rule on a defendant’s motion for summary judgment in Gross v. Daimler Chrysler Corp., 2003 WL 23305157 (D. Md.) (unreported). In Gross, the plaintiff had purchased a used car manufactured by the defendant with nearly 60,000 miles on it as of the date of the incident. After a night of heavy drinking, he drove to his home and passed out in the front seat with the engine running. At some point thereafter, a fire broke out in his engine compartment, severely burning him. Plaintiff’s expert concluded “to a reasonable degree of engineering probability” that the fire originated in the vehicle’s electrical system. More particularly, he contended that the fire was the result of two independent defects in the electrical system of the vehicle. First, there was an unidentified defect in a fuse/circuit breaker that permitted an overcurrent to flow through a copper wire conductor, unabated, resulting in the build up of excessive heat. Second, a harness used to bundle wires under the dashboard was defective in that it did not allow for the dissipation of excess heat that the first defect generated. Importantly, however, prior to the plaintiff’s purchase of the vehicle, numerous modifications had been made to various parts of the vehicle’s electrical system, suggesting that if a short circuit of some variety occurred, it might well have resulted from post-manufacturing activity. In contrast to the plaintiff’s expert’s theory, the defense argued that it was likely that as the plaintiff slept, his foot came to rest on the accelerator, causing the engine to idle at an excessively high engine speed, which in turn, caused excessive heat on the engine block to ignite some unknown material on or round the manifold.

The court turned initially to the first Harrison factor (Expert Testimony as to Possible Causes), concluding that it favored neither party in this case because the cause of the fire was unknown and a “healthy measure of speculation infects the opinion testimony to be offered by both parties.” With respect to the plaintiff’s expert’s testimony, the trial court stated that despite concluding that the fire was electrical in nature and the result of an unidentified defect in a fuse/circuit breaker, the expert had failed identify the source, cause or measurable severity of the alleged overcurrent. Moreover, the conclusion that the fire was electrical in nature appeared only to be based on the fact that the greatest damage was located in the engine compartment and dashboard.

The court then found that the second Harrison factor (Timing of Incident) weighed in favor of the defendant given the fact that the incident occurred five years after the vehicle was manufactured. Such a time period was sufficiently lengthy to negate the inference of the existence of a manufacturing defect at the time of manufacture.

The third Harrison factor (Similar Accidents Involving Same Product) also was found to weigh heavily in favor of the defendant because the plaintiff failed to offer any admissible evidence of similar fires in the vehicle model at issue.

The fourth Harrison factor (Elimination of Other Causes) was found to weigh in the plaintiff’s favor. Plaintiff’s experts initially were able to rule out the passenger compartment as the origin of the fire. Likewise, they ruled out any components of the vehicle that had previously been the subject of any recall. Finally, they inspected the catalytic converter and undercarriage of the vehicle and eliminated those possibilities. Based on these efforts, and the fact that “the Harrison test does not specify how many or which alternative causes must be eliminated in order for this factor to weigh in favor of the non-movant,” the court found ruled in plaintiff’s favor.

The fifth Harrison factor (Nature of Accident) was found to weigh in the defendant’s favor. In reaching this conclusion, the court noted that a fire in an engine compartment of an idling automobile is an event that could occur in the absence of a defect. It went on to note that other plausible reasons for such an occurrence include: (1) a broken radiator causing the car to overheat; (2) negligence on the part of a mechanic or prior owner; or (3) electrical malfunction not the result of a defect.

In the final analysis, only one of the five factors weighed in favor the plaintiff. Therefore, the court held that no reasonable juror could reasonably conclude that it is more likely than not that, at the time the car left the possession of the defendant, it contained a manufacturing defect that could have been the proximate cause of the fire.

Stanley Martin Companies v. Universal Forest Products Shoffner:

In Stanley Martin Companies v. Universal Forest Products Shoffner, 396 F.Supp.2d 606 (D. Md. 2005), a builder sued a manufacturer/supplier of wood trusses for a construction project after the trusses developed mold within one year after 24 homeowners moved into the homes into which the trusses were installed. Plaintiffs retained an expert with knowledge of mold growth. This expert testified that “excess moisture within the trusses” at the time of manufacture was the cause of the development of the mold. This testimony was premised on his observations that: (1) no other wood components in the same area as the trusses exhibited signs of mold; (2) no other source of moisture existed that could have affected all 24 homes; (3) the specific patterns of mold growth seen on the trusses were inconsistent with external sources of moisture (rainfall); and (4) the twenty-four homes were built during different times of the year, under differing weathering conditions, yet all of them contained mold. See id. at 620.

In analyzing plaintiff’s expert’s opinion under the Harrison test, the court first found that plaintiff had satisfied the first factor (Expert Testimony as to Possible Causes) because the expert had testified that the mold was most likely caused by excess moisture within the trusses at the time of delivery, and more importantly, the defendant had offered no expert testimony in response. See id.

The court next found that the discovery of the mold within one year following construction weighed in favor of the plaintiffs; i.e., the second Harrison factor (Timing of Incident). The court relied upon its decision in Watson, stating that it was well within the province of the jury to determine what inference to draw under these circumstances. See id.

The court then found that the third Harrison factor (Similar Accidents Involving Same Product) favored neither party. In short, plaintiff attempted to argue that mold growth in all 24 homes demonstrated that the same accident occurred in a similar product. The court, however, agreed that a plaintiff must point to products outside of the instant litigation to demonstrate the occurrence of the same accident in a similar product. There being no other known occurrences, the neutral finding was rendered. See id.

The fourth Harrison factor (Elimination of Other Causes) was also found to favor the plaintiffs. Plaintiffs’ expert opined that none of the isolated sources of moisture that were discovered in the homes (leaky toilets, improperly sealed pipes) contributed to the mold. See id. at 621. Likewise, he testified that the pattern of mold growth observed on the trusses was inconsistent with moisture that might have been introduced during construction process. See id. at 621. The court found this testimony persuasive. The court also noted, again, that the Harrison test does not specify how many or which alternative causes must be eliminated in order for this factor to weigh in favor of the non-movant. Importantly, however, it stated that “[e]vidence that tends to eliminate the most probable alternative causes is likely sufficient.” See id. at 621.

The fifth Harrison factor (Nature of Accident) was found to weigh in favor of the defendant. In reaching this conclusion, the court again noted that this factor should be interpreted as meaning that “even if other causes are not eliminated, the accident must be of a type that does not ordinarily happen unless a defect exists.” Id. Adopting this interpretation, the court concluded that mold growth is the type of accident that can occur in the absence of a product defect. Id.

In sum, three Harrison factors favored the plaintiff, one was neutral and one favored the defense. Accordingly, the court found that the plaintiff had presented sufficient circumstantial evidence to create a genuine issue of material fact as to whether the trusses were defective, thereby precluding summary judgment. Id.

Redford v. SC Johnson & Son, Inc.:

The most recent case to address the indeterminate defect theory was Redford v. SC Johnson & Son, Inc., 437 F.Supp.2d 391 (D. Md. 2006). In Redford, a homeowner brought a product liability suit against the manufacturer of standard oil-based Glade Plug-In (“GPI”) air fresheners, claiming that a freshener plugged into her basement outlet caused a fire. Following the conclusion of discovery, the defendant moved for summary judgment. Ultimately, after analyzing the plaintiff’s experts’ testimony under Harrison test, the trial judge granted the defendant’s motion.

Immediately following the subject fire, the Deputy State Fire Marshal conducted a cause and origin investigation at the plaintiff’s home. At the conclusion of that investigation, the State Fire Marshal concluded that the fire had begun in an electrical wall outlet located in the basement. See id. at 392. She further stated that she had seen an unidentifiable molten blob of plastic lying beneath the outlet, which the homeowner told her was probably the remnants of a standard oil-based GPI she had purchased a month and half earlier from Wal-Mart and had plugged into the outlet. See id. at 392. With that information, and having eliminated all other potential causes of the fire, the State Fire Marshal concluded that the GPI must have overheated and ignited the combustible materials within the basement wall. See id. A second Deputy State Fire Marshal subsequently visited the scene three days later and concurred with these findings. Unfortunately, the Deputy Fire Marshals were unable to collect the molten plastic blob as evidence because the firemen had removed all debris from the homes. See id.

Plaintiff also retained a fire investigation expert to investigate the cause and origin of the fire. That expert examined the subject electrical outlet and concluded that faulty wiring was not the culprit. He then concurred in the state deputies’ assessment that he GPI must have caused the fire, though he was unable to specify how it malfunctioned. He recommended that plaintiff retain an electrical engineer to conduct analyses on prototype GPI’s in order to determine potential defects. See id. at 393. This recommendation was never followed through on. A year after the fire, the defendant was finally put on notice (and obviously had no opportunity to conduct its own investigation as the house had long since been razed).

In response to the Defendant’s motion for summary judgment on the issue of an indeterminate defect, the plaintiff argued that the cause and origin analysis of her expert and Deputy Fire Marshal satisfied the first Harrison factor because they both agreed that the GPI had to have been the cause of the fire. See id. at 396. The court disagreed, stating that the “problem with that argument as that they arrived at that conclusion by eliminating other potential causes of the fire independent of the GPI (e.g., faulty outlet wiring), not by examining another standard oil based GPI to determine possible manufacturing or design defects that could have caused the GPI to overheat.” Id. at 396. Indeed, both experts admitted that they were unqualified to testify as to possible defects as to what might have malfunctioned in the GPI. See id. at 396. As a result, the first Harrison factor (Expert Testimony as to Possible Causes) was found to weigh in favor of the defense.

The second Harrison factor (Timing of the Accident) was found to weigh in favor of the plaintiff as she had testified that she purchased the GPI 1 ½ months prior to the fire. See id.

The third Harrison factor (Similar Accidents Involving Same Product) was found to weigh in favor of the defendant. In her effort to satisfy the third factor, the plaintiff submitted an incident report log provided by the defendant to the U.S. Consumer Product Safety Commission (CPSC) that documented 64 consumer descriptions of problems with other types of GPI’s during the relevant time period, most of which had to do with overheating. In addition, plaintiff submitted a CPSC press release announcing defendant’s 2002 recall of an extra outlet, oil-based GPI. In response to this evidence, the defendant submitted evidence and testimony that though all GPI’s are plugged into electrical outlets and emit pleasant odors by heating a fragrant substance, their design and manufacturing characteristics are different. Plaintiff offered no evidence to counter this testimony. Absent proof of a sufficient similarity between the subject GPI and the ones involved in prior claims, the court found that both the incident report log and recall notice did not further an inference of a defect within the standard oil-based GPI.

The fourth Harrison factor (Elimination of Other Causes) was found to favor the plaintiff. In short, the court determined that both the cause and origin analyses of the Deputy Fire Marshal and plaintiff’s expert pinpointed the origin of the fire to the basement outlet into which the GPI was allegedly plugged. Moreover, both experts have eliminated all other causes independent of the GPI itself. Although the defense never had an opportunity to examine the scene (because it was cleaned up), the court concluded that the above testimony, at a minimum, would be enough to provide a reasonable jury with enough to find in plaintiff’s favor on this factor.

Finally, the fifth Harrison factor (Type of Accident That Does Not Happen Without a Defect), was found to favor the defendant. In conducting this analysis, the court found that the proper question to start off with was not whether a fire that starts within a GPI can occur in the absence of a defect, but rather, whether a fire can occur in an electrical outlet into a GPI is plugged in the absence of defect. The answer, according to the court, was YES, as faulty wiring could certainly start a favor.

In sum, Plaintiff was found to have failed to present sufficient circumstantial evidence to raise an inference of a defect; i.e., failing to meet the first, third and fifth Harrison factors. Put succinctly by the court, without expert testimony as to possible defects, evidence of overheating in other standard oil based GPI’s, or showing that an electrical outlet into which a GPI is plugged cannot catch fire in the absence of a defect, a jury could only find in plaintiff’s favor by presuming that the GPI was defective merely because the fire occurred. This presumption is prohibited under Maryland law.

For more information about Maryland product liability law, or a complimentary review of your case, please contact Steven D. Silverman at 410-385-2225.

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