Winkler v Suffolk OB/GYN Group, P.C.

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Winkler v Suffolk OB/GYN Group, P.C. 2012 NY Slip Op 31129(U) April 26, 2012 Supreme Court, Suffolk County Docket Number: 07-20128 Judge: Thomas F. Whelan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SJ IORT FORM ORDFR INDEX No. CAL. No. 07-20128 11-01 726MM SUPREME COURT - STATE OF NEW YORK I.A.S. PART 33 - SUFFOLK COUNTY PRESENT: I-Ion. THOMAS F. WHELAN Justice of the Suprcme Court MOTiON DATE 12-5-1 I ADJ. DATE 2-6- I 2 Mot. Seq. # 013 - MG; CASEDISP ---------------------------------------------------------------X RITA WINKLER and CURTiS WINKLER, Plaintiffs, SCHLEMMER & MANIATIS LLP Attorney for Plaintiffs 111 Broadway, Suite 701 Ncw York, New York 10006 - against SUFFOLK OB/GYN GROUP, P.c., MARK GREENSTEIN, M.D., LAWRENCE HORN, M.D., : CORY SCHNEIDER, M.D., and HUNTINGTON HOSPITAL, KELLY, RODE & KELLY, LLP Attorney for Defendants Suffolk OB/GYN Group, Mark Greenstein & Lawrence Horn 330 Old Country Road, Suite 305 Mineola, New York 11501 Defendants. ---------------------------------------------------------------)( Upon the following papers llumbered 1 to -.1L rcad on this motIOn for summary judgll1~nl ; Notice of Motion/ Order 10Show Cause and supporting papers 1 - 16 ; Notice of Cross Motion nnd supporting papers __ ; Answering Affidavils and supporting papers 17 - 19 ,Replying Affidavits and supporling papers 20 - 22 ; Other __ ; ([lad nftn hC:11ing counsel ill MlppUi t ami (JPP{J~cdto the liloticn) it is, ORDERED that this motion by defendants Suffolk OB/GYN Group, P.C, Marc S. Greenstein, M.D. slhla Mark Greenstein, M.D. and Lawrence Horn, M.D. for an order pursuant to CPLR 3212 granting summary judgment Il1lheir favor dismissing the complaint as against them is granted. This is an action to recovcr damages, personally and derivatively, for the alleged negligent care and treatment of plaintiff Rita Winkler by defendants Marc S. Greenstein, M.D. slhla Mark Greenstein, M.D. (Dr. Greenstein) and Lawrence Horn, M.D. (Dr. Horn), as members of defendant Suffolk OB/GYN Group, P.c. (Suffolk OB/GYN), in 2005. I Plaintiffs allege that defendants failed to properly pcrfoffil a surgical procedure on February 16, 2005 at Huntington Hospital to complctclyremove the then 43-year-old plaintiffs ovaries, which was necessary to ensure the effectiveness of her chemotherapy treatment following a 1 The action was di~l11i~~cd against defendants Cory Schneider, M_D. <Ind HUlltington Hospital pursuant <IS to orders dated June 23, 2010 o[this Court. [* 2] Winkler v Suffolk OB/GYN Group Index No. 07~20128 Page No.2 mastectomy, and failed to timely diagnose her resulting symptoms. Plaintiffs further allege that a remnant of the ovary continued to function and produce hOllllones lllitially rendering ineffective, then delaying, plaintiffs chemotherapy treatment, increasing her risk of recurrence of breast cancer, causmg her to have crumping, hemorrhaging, and mood swings, and requiring her to undergo a second surgery for removal of the OValYremnant. Defendants Suffolk OB/GYN, Dr. Greenstein, and Dr. Horn now move for sUlllmary judgment dismissing the complaInt as against them on the grounds that they were not negligent in theIr treatment 0 r plainti ff and that, In any evcnl, any alleged negligcnce on their pan (lid not cause plaintiffs injuries_ They assert that Dr. (:Jrccnstcin performed the surgery according to the appllcablc standanJ or care with no indication during or aner surgery, ji-ompathology results, that there \Vas an ovarian remnant. According to defendants, p1aintiJrs symptoms and complaints shortly after surgery wcre not Il1dicative of anything ullusual and It was nolllntil plainti ff began to experience bleeding late in July 2005 that the possibility 0 f an ovarian remnant arosc for consideration. Defendants maintain that It was at that junclure that plalllti iT prescnted to Dr. HOlll, who then promptly ordered the appropriate tests and gave proper recommendations lor additional procedurcs. Defendants argue that any delay in removal oCthe remnant \Vasdue to plainti frs failure to return to defendants for treatment after her consultation with Dr. Hom and not due!o a belated diagnosis by Dr. Hom. They also assert that inasmuch as thc claims against the professional corporation arc purely vicarious, a dismissal of the claims against the defendant physicians requires a dismissal of the claims against the corporation. Defendants' submiSSions in support ofthe motion include, the summons and complaint the answers of defendant Suffolk OB/GYN, Dr. Greenstein, and Dr. HOlll, plaintif-rs bill of paJ1icuiars, the deposition transcripts of plaintiffs l:lndof Dr. Greenstein, the affidavit of Dr. Hom, p1aintifrs Huntington HospItal records from February 2005, a pelvic ultrasound report bascd on an examination on August 15, 2005 indicating possible "mlllima! residual ovarian tissue" of plaintiffs left ovary, the lab results t-j·Ol1l blood a test of plamtiff on August 21, 2005, the affidavit dated October 28, 2011 of defendants' expert, em cndometrial biQPsy report dated Septcmber ] 2,2005, and a hysterectomy biopsy report dated February 25, 2006. The requisite elements of proof in a mcdical malpractice action are a deviation or depat1ure li·om accepted community standards of medical practice, and evidence that such deviation or deparlure was a proximate cause of injury or damage (see Castro l' New York City Health & Hosps. Corp., 74 AD3d 1005, 903 NYS2d 152 [2d Oept 2010J; Deutsch v Chaglassiall, 71 AD3d 718, 896 NYS2d 431 [2d Dept 201 OJ; Geffller v Nor,h Shore Unil'. /losp., 57 AD3d 839, 871 NYS2d 617 [2J Oept 2008J; see also LUll 1'1Vtl1I, 93 AD3d 763, 940 NYS2d 662 [2d Dept lOI2}). A defendant physician moving for summary Judgment in a medical malpractice action has the initial burden of establishing, prima facie. either the absence of any departure li'OI11 good and accepted medical pracrice or that any departure was not the proximate cause of the alleged injuries (see Shieh man v Yasmel', 74 AD3d 1316, 904 NYS2d 218 [2d Dept 2010]: Larsen v L()yclmsuk, 55 AD3d 560, 866 NYS2d 217 [2d Dept 200S]; Sandmann )' Shapiro, 53 AD3d 537. 861 NYS2d 760 [2d Oept 200S]; see also LllU v Wall, supra). In delen11ining a motion for SlllllmaJyjudgment. the COUl1 ust view-the evidence in the light most favorable to the nonmoving party (see Stuka,,' v Streiter, m [* 3] Winkler v Sullolk OB/GYN (;roup Index No_ 07-20128 Page No.3 83 AD3d 18, {j18 NYS2d 176 [ld Dept 2011.1; see (llso Caggitfl10 v Coolin;::, 92 AD3d 634,938 NYS2d 329 [2d Dcpt2012]). Where a defendant physician makes a prima f~lCicshowmg that there was no departure from good and accepted medical practice, as well as an independent showing that any dcparture that may have occulTed \Vas not a proximate cause ofplaintifrs lllJuries, the burden then shins to plaintiff to rebut the physician's showing by raising a triable lSSl1l~ fact as to both the departure element and the causatIon element (see of Stukas )IStreiter, supra; SwezeY)1 Montague Rehab & Puillll1gt., 59 ADJd 431,872 NYS2d 199 [2d Dcpt 2009]; Myers v Ferrara, 56 AD3d 78, 864 NYS2d 517 [2d Dcpt 2008]). General allegations which arc conelusory and uilsupported by competent evidence tending to cstablish the essential clements ofmedieal malpractice are illsuflicient to deCeat sumrnary judgment (see Alvarez v Prospect I-/osp., 68 NY2d 320, 508 NYS2d 923 [1986]; lIe"ozo v WileI', 41 AD3d 457,838 NYS2d 121 [2d Dopt2007]). Plaintiff's deposition testimony of February 3, 2010 reveals that she had been treating with the physlCiaJ1s of defendant Suffolk OB/GYN for many years, and that Just prior to the subject surgical procedure to remove her ovaries, she had undergone a mastectomy and was receiving chemother8py. Accord1l1g to plaintiff: she was not tolerating the chemotherapy drug Tamoxdcn and was told by her oncologist that in order to take the alte018te chemotherapy drug, Arimidex, she would have to be menopausal which would require the surgical removal of her ovaries, an oophorectomy. Plaintiff then spoke to Dr. Horn and scheduled an oophorectomy to be performed by Dr. Greenstein. Plaintiffstatcd that she spoke to Dr, Greenstein prior to the procedure but did not recall wllether it v... in person or by phone. She recalled 'as telling him about the oncologist's recommendation of an oophorectomy, that she discussed all options with him, what he belie,,·ed was necessary, and that Dr. Greenstein believed that an oophorectomy was adequate and did not recommend a hysterectomy. ill addition, plaintlff recalled receiving surgical Illformation, speci fica]]y, about the duration ofthe procedure, and that the procedure would be performed by l<tparoscopy. However, plaint! fftesti iicd that prior to the surgery, Dr. Greenstein dId not discuss the risks associated with the surgery but that she did sign consent forms. Plaintiff undenvent an oophorectomy at Huntington Hospital in February 2005 and \vlthin a month therealler Celtcramping, had headaches and JOll1tpain, which occurred monthly, and then in late July 2005, on a weekend, she had henlolThaglng. Plalnti 1'1' rememben::d that she started takmg ArimHlex approximately two months after the surgery. In addition, plainti frtestdied that she repeatedly complained to Dr. Greenstein, calling once a month aller the surgery when the symptoms occurred, and that he recommended that she have a sonogram. Plaintilffurthcr stated that after the sonogram was performed, the radiologist reviewed the film WIth her and showed her that one ovary had not been completely removed and said that It appeared to be active. Plall1trffalso testified that she did not speak to, or VIsit the office at: Dr Greenstem or Dr. Horn after receiving theIr advice to have a sonogr81l1. Approxll1lately two weeks after the sonogram, plaintlCfwent to another gynecologIcal practice and started sccrng Dr. Fateh!' who after one or t"\vovisits lell the practice, and then plall1ti rfstarted sccmg Dr. Contreras who performed a 10tal hysterectomy in February 2006. Dr. Greenstein testified at hIS deposition on November 18,2010 that he is a general "ob/gYl1," that plaintill was first referred to him in 1999 Cor evalu3tion of her infertility, and that he saw plainti fT 011 February 2, 2005 in consultation to discuss management options concerning removal oCher ovaries. He [* 4] \iI/inkler v Suffolk OB/(3YN C:;roup lndcx No. 07-20128 Page No.4 stated that plaintiff had been diagnosed \-vithbreast cancer and her oncologist had suggested a course of chemotherapy, the mcdicatlon Arimidex, which reqlllred the rcmoval of her ovaries. Dr (:;reenstein read his notes for February 2,2005 indicating that plaintiffwished to undergo as milllmal a procedure as possible, that options wcre discussed including laparoscopic oophorectomy versus subtotal abdol1lll1alhysterectomy with bilateral salpingo-oophorcctOlny, and that recovery, risks, benefits and a1tclllalivcs \-veredIscussed and questions were answered. He did not specilical1y recall having performed bilateral removal of ovancs fix any other cancer patients. Dr. Greenstein explalllcd that a subtotal abdominal hysterectomy with bilateral salpingo-oophorectomy was a removal of the uterine fundus, \vhich is the uterus above the cervix, both I:lllopian tubes and both ovaries. According to Dr. Greenste1l1, there arc more nsks to perflmlling a hysterectomy with removal of ovaries as compared to on Iy removing the (wanes. He listed those risks as bleedlllg, infection, and damage to ncarby organs. [n addition, Dr. Cireellstein testl1icd that since plaintiff wished to undergo as mi111mala procedure as posslble, such a procedure would be a laparoscopic oophorectomy, and that was the procedure that was scheduled. He also testified that his operative report indicated thllt first the left ovary then the right ovary was removed. Dr. Greenstein stated that his chart indicated that he next saw plaintiff on March 7, 2005 and that she was healing wcll, she was complaining of malodorous vaginal discharge, which he believed \Vasa bacterial vaginosis, and he prescribed a vaginal cream. Telephone records showed that plaintiff had called on February 18, 2005 complaining of heavy menstrual dIscharge and cramps and the message was addressed by another physiCIan in the practice and a llurse. Dr Greenstein explaincd that irregular bleeding \vas llot unusual during the first four to six weeks following surgery on the (wanes. The next contact with plaintiff was by telephone on August 9, 2005 based on a note by Dr. Horn, and then on August 19, 2005 concerning a pelvic sonogram \\lith the message indicating that plaintilTwas worned and needed to speak to a doctor. Dr. Greenstein fmiher testIfied that he had a conversation with Dr Hom about a question of residual ovarian tIssue based on plaintiff's symptoms ofvaginaJ bleeding or the results oftlle sonogram. Dr. Greenstein recalled that once this question arose, plaintifflllteracted solely with Dr. Horn. The submItted medical records indicate that Dr. Grcenstein performed the laparoscoplc bl1ateral oophorectomy with the assistance of Dr. Hom at Huntingtonl-lospital on February 16, 2005. The pelvic sonogram report of August 2005 indicates "there is a left adnexal cyst with a small piece OftiSSllcadpccnt to It questionably rcprescnting reslClual lell ovary. The residual tissue measures 1 C111 4mm and there IS x an adjacent l.l x O.i) cm cyst/follicle." The impression of said report includes "11 ml11lell adnexal cyst/foll1c1e with 1 cm curvilinear solid tissue bordering it questionably representing minimal residual ovarian tissue." By his aflldavlt dated October 28, 2011, Dr. Horn states that he has bccn Board Certilled in Obstetrics and CJynecology since 1978, that he was a mcmber ofSufTolk OB/GYN in 2005, that he treated plamtiff for many years prior to the evcnts of2005, and that Dr. Greenstein was employed at the practice. In addition, Dr. Horn states that on January' 31, 2005 he discussed with plaintiff the issues concerning the removal of her ovanes in order to allow her to take the oncologist's recommended medIcation and that he adviscd subtotal hysterectomy, bilateral salpingo-oophorectomy, and then referred her to Dr. (ireenstelll for consultation regarding surgery. He explains that his ncxt contact \vith plaintlffwas the day of the surgery and that he assisted Dr. Greenstell1 by holdll1g instruments in place and (i1dnot make any inCIsions or cut [* 5] Winkler v Surrolk OB/GYN Group Index No. 07-20128 Page No.5 any structures. According 10 Dr. Hom. the procedure was performed uneventfully. He noles that the resulting pathology report reveals no evidence of a possiblc retained rcmnant or anything indicative of incomplete removal during the procedure. Dr. !-10malso exphlins that tllc only way to detellllll1C the presence of residual ovarian tissue is by the presence of continued menstruation. He indicates that plaintirrs bleeding two days aftcr the oophorectomy was not unusual and did not indicate continued menses or the need to order honnonal testing hut that her staining during her visit on August 9, 2005 led hil11to order a transvaglllal sonogram that was performed on August 15, 2005 and the resulting report showed the endomctriallining to bc thickened at 12111111. Horn maintains that this finding was significant because Dr. it was consistent with estrogen production. He adds that he then ordered FSH testing and the results tlw.t he receivcd on August 21,2005 were consistcnt with estrogen production. According to Dr. I-lorn,he called plainti rr the next day and advised her of the lab results and recommended that she undergo endometrial biopsy, hysteroscopy for vaginal staining, pelVICImaging and additional surgery/laparoscopy to check for possible retained ovarian tissue. Plainti ff never retullled. In conclusion, Dr. Hom opines that plaintiff's treatment was appropriate and confomled to standards of care in the community. He states that an oophorectomy was the appropriate procedure to induce menopause in anticipation of the administration of Arimidex, that thc standard of care did not require the removal of the fallopian tubes as well as the ovaries, and notes that plaintiff subsequently underwent the procedure that he recommended, an endometrial biopsy, and then a hystercctomy. Dr. Hom observes that the pathology report oCthe hysterectomy indicates no ovaries or ovarian remnant undcr gross description, only ovarian tissuc under microscopic description, which he finds significant as an indication that the remnant could not bc visualized at the time of the surgery performcd by Dr. Greenstein. He mall1tains that a retained remnant is a risk, although a rare one, of un oophorectomy and is knowll to occur in the abscnee of negligence. Dr. Horn emphasizes that when plaintiff first came'to sce him following the surgery, he immediately ordered a sonogram, then rSH testing, and appropriately advised plaintiff that she needed further investigation, specifically, a biopsy among other tests and procedures which was exactly the course oflrcatmcnt provided by her subsequent treating gynecologist. The affirmation dated October 28, 2011 of defendants' expcrt, Joel Cooper, M.D. (Dr Cooper) reveals that he is Board Ccrti fied in Obstetrics and Gynecology sillce 1973, that he has performed multiple laparoscopic oophorectomies, and that his opinion within a reasonable degree of medlCi.1! ertainty is thaI c there were no deviations or departures from acceptable medIcal standards inthe care and treatment prOVIded by defendants Dr. Circcnslcin and Dr. 110ll1toplaintiff and that all oftheir trei.ltment COnf011l1ed acceptable to medical standards. lie llotes that the operative report of Dr. Greenstein and the pathology report show that the procedure was perfoll11ed appropriately without event or complication and with no evidence of a remnani. With respeel to plaintIffs message 1\.\'0days after surgery thai she was bleeding, Dr. Cooper 0pll1es that a mcnstrual cycle and/or bleeding two days after surgery is non11al either as menses due to continued estrogen productIon resulting from manipulation or the ovarics, bleeding from instrumentation used during the procedure. or the sudden fall of estrogen due to rcmoval of both ovaries. lie indicates that during plainli rrs two visits, on February 23,2005 and March 7,2005, she was rep0l1ed to be doing well and COnIll111Cd bleeding or menses was not notcd_ Dr. Cooper adds that Dr. Hom 's recolllmcndations on August 22,2005 were cntirely appropriate and in confonnitywilh the standard of care and that he acted immediately [* 6] Winkler v Suffolk OB/GYN Index No. 07-20128 Page No.6 Ciroup so that there \-vas no delay in the tests he ordered or the advice he gave plallltifC According to Dr. Cooper, there W<lS rC<ison to order hormone level testing prior to August 9, 2005 because there was no lildication no of any abnormality. He recounts that plaintiff ultimately underwent a hysterectomy in February 2006 and emphasIzes that the pathology report nukes no mention of an ovary or ovariun remnant under gross description and only identifies ovarian tissuc ullder microscopic dcscnption. Dr. Cooper states that inasmuch as the ovarian I-emnun! was identified 111lcroseopically and not visually, Dr. Creenstell1 did not miss an obvious piece of OV<lflalltissue so that there can be no claim that the tissue should have been vlslwlized or that missing it constituted negligence. Dr. Cooper concludes by opining to a reasonable degree of medical certainty that the treatment of defcndants Dr. Greenstcll1 and Dr. I-lorn confollllccl to the standard of carc in the community, that Dr. Greenstein appropriately pcrformed the oophorectomy, checked for hemostasIs, and ascertained thaI the ovaries were cntirely removed. He states that rctained tissue is a nsk oflaparoscopic removal 0 rthe ovanes and occurs without ncgligcncc, as it dId in plaintiffs case. Dr. Coopcr also opines with1l1 a reasonable degree of medical cct1ainty that therc were no deviations or departures from acceptable medical standmds by defendants Dr. Greenstein and Dr. HOlll Here, defcndants Dr. Greenstein and Dr- HOlll established their prima facie entitlement to Judgment as a matter of law by submitting, inter alia, plaintiffs medical records, the deposition tcstimony of Dr. Greenstcin, the affidavit of Dr. Horn, and their expert's affinllation indicating that thclrtreatmcnt ofpJainti ff did not depart from good ancl accepted medical practice (see Joyner-Pack v Sykes, 54 AD3d 727, 729, 8(A NYS2d 447 [2d Dept 2008]). The affirmation of defendants' mec!Ical expert established that the procedure \vas performed in accordancc with good and accept cd mc(ilcal practices and that retained ovarian tissue is a known risk of the procedure that occurs lJl the absence of malpractice (see Bengsto1/ l' Wang, 41 AD3d 625,839 NYS2d 159 [2d Dcpt 2007]). Defcndant Suffolk OB/GYN, whIch is alleged to be vicanously lJable for the malpractice of defendants Dr. Greenstein and Dr. Horn, also establishcd lIs prima facie entitlement to judgment as a matter aflaw (see Ups/WI' v Staten Is. A/ed. Group, 88 AD3d 785, 930 NYS2d 649 [2d Dcpt 2()] ]], Iv dell/cd] 8 NY1d 804, 918 NYS2d 862 [20]2]). In oppOSition to the motion for summary Judgmcnt, plall1tiffs submit the affimlatioll ofplamldTs' counsel and a copy of the unsworn operative report of plaintiff's subsequent trcatmg gynccologlst concerning plaintiff's total abdominal hysterectomy and bilatcral salpmgo-oophorectomy on February 9, 2006. The report indicates "[w]ithin the paticnt's right side, a small mound was visualized as thc are:l of residual ovarian tissue [tJhc vessels were then clamped. cut and ligated, and the fallopian tube With the rcsidual of the ovarian tissue was mobilized [tJhe specimen was then removed and sent fOf final pathology." Plainti ffs contcnd that the contents of this report contradict defendants' characterization ortlle remnant as microscopic and not visually apparent thereby raising an issue of fact as to whdher defendant Dr. Grecnstcl11 committed medical malpractice 111 failing to remove clearly viSible ovanan tissue during the oophorectomy procedure. They contend that defendants railed to meet thClf initial burden inasmuch as the pelVIC sonogram results they submllted Indicated <lvisibly-sized possible ovarian remnant rather than a microscopic remnant and that the f~lCtLialssue raised concerllJllg the size and visibl hty orthc remnant does i not requIre submission of an expcrt opinion. [* 7] Winkler v Suffolk OB/(~YN Group Index No. 07-20128 Page NO.7 Here, plaintiffs arc required to submit with theIr opposition papers an affidavit or affirmation of a mcdical expert to support their claims of malpractice and to refute delcndants' SUbllilsslons lIlasmuch as dcfcndnnts' showing III support ofthelt· motion was not based solely on the alleged microscopic size ()rthe ovanan remnant. Specifically, plainti ffs failed to rebut the opmions ofdcfcndants' expert and Dr. Horn that rClall1ed ovarian tissue, without quaIl licatlon as to its SIze, is a known risk of an oophorectomy procedure that occurs In the absence ofnwlpracticc, and that there \'v'cre no ll1clJcations during or aner the performance of the oophorectomy or relevant symptoms exhibited by plamtiff after the oophorectomy to nllse the suspicion of an ovanan remnant until plaintiffs heavy bleeding OCCUlTedin August 2005. Thus, plainti rfs failed to raise a triable Issue of fact (see Savage v Quinll, 91 AD3d 748, 937 NYS2d 265 [2d Dept 2012]; Thomas l' Richie, 8 AD3d 363, 777 NYS2d 758 [2d Dcpt 2004]). Based on the foregoing, summary Judgment is granted to deCcndants Dr. Greenstein and Dr. Horn dismIssing the complaint 1I1S0lfiras asserted against them and consequently, summary judgment is also granted to defendant Suffolk OB/GYN dismissing the vicarious liability claims asserted against It pcrtainlllg to defendants Dr. Greenstein and Dr. I-lorn (see SimlJlolts v Brook/ylt J-Io~l'.Cfr., 74 AD3d 1174,903 NYS2d 521 [2d Dcpt 201 0], /v dellicd 16 NY3d 707, 920 NYS2d 781 [2011]). [nuSl11uchas the first Cause of action which seeks damages on bchulf of plaintiff Rita Winkler mLlst be dismissed, the second derivative cause of action must <1150 be dismissed (see Cabri v Park. 260 AD2d 525, 688 NYS2d 248 [2e1Dept 19991; see (1/50 F/allagillJ v Catskill Regional Met!. Or., 65 AD3d 563, 567,884 NYS2d i 31 [2d Dept 2009]) Accordingly, I Dated: I 1,1 the Illation is granted and the complaint I I f j~1 i.) ij l'~J )'~- is dismissed in its enurety.

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