Karen R. Thompson v. Dung Thi Hoang Nguyen
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CA-01147-COA
KAREN R. THOMPSON
APPELLANT
v.
DUNG THI HOANG NGUYEN
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
APPELLEE
05/13/2009
HON. DALE HARKEY
JACKSON COUNTY CIRCUIT COURT
KRISTOPHER W. CARTER
H. BENJAMIN MULLEN
JESSICA B. MCNEEL
CIVIL - PERSONAL INJURY
VERDICT FOR PLAINTIFF FOR $9,131
REVERSED, RENDERED AND
REMANDED: 02/01/2011
BEFORE KING, C.J., BARNES AND CARLTON, JJ.
KING, C.J., FOR THE COURT:
¶1.
This case arises from an automobile accident in which Karen Thompson was rear-
ended at a stop light by Dung Thi Hoang Nguyen. Thompson filed suit against Nguyen
seeking compensatory damages for injuries that allegedly resulted from the collision. A jury
sitting in Jackson County Circuit Court found in favor of Thompson but awarded only a
fraction of the requested damages. Subsequently, Thompson filed a motion to reconsider and
to vacate the judgment, which was denied. Thompson has appealed raising the following
issues: (1) whether the trial court erred by failing to grant her motion for a directed verdict
on the issue of liability, (2) whether the trial court erred by failing to grant a motion for
additur or, in the alternative ,a new trial on damages alone, and (3) whether the trial court
erred by refusing proposed peremptory jury instructions P1A and P7A regarding liability and
refusing proposed jury instructions P9A, P10A, and P11A, explaining how to calculate
damages.
¶2.
Finding the trial court erred, we reverse, render, and remand for a new trial on
damages.
FACTS
¶3.
On March 14, 2002, while Thompson was stopped at a red light, Nguyen collided with
Thompson’s rear bumper. Because there was no obvious vehicular damage or injury to either
of the passengers, the parties exchanged information and left the scene of the accident. Later
that day, Thompson contacted Nguyen and requested that they meet at the police station to
prepare an accident report. Nguyen obliged. There was no further contact between the
parties until Thompson filed suit against Nguyen.
¶4.
A few days after the accident, Thompson began experiencing pain in her neck and
made an appointment with her primary-care physician, Dr. James Martin. During the
appointment, Dr. Martin realized that Thompson suffered from degenerative disc disease and
recommended physical therapy. Thompson re-visited Dr. Martin claiming that physical
therapy was not alleviating the pain; therefore, Dr. Martin referred Thompson to Dr. Oliver
Lee Kesterson, a neurosurgeon. In an effort to alleviate Thompson’s pain, Dr. Kesterson
performed two surgeries and prescribed another session of physical therapy for postoperative rehabilitation.
¶5.
On June 17, 2004, Thompson filed her original complaint alleging that Nguyen
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negligently caused her vehicle to collide with Thompson’s vehicle. Thompson sought
$234,316.49 in compensation for medical expenses and compensation for her pain and
suffering resulting from her injuries allegedly caused by the collision. Thompson provided
an itemization of her medical expenses as follows: hospital bills, $142,648.50; Dr. Kesterson,
$50, 310; Dr. Martin, $4,245; Physical Therapy Solutions, $9,131; rehabilitation expenses,
$2,075; radiology expenses, $558; pharmacy expenses, $1,394.15; and expenses paid to
doctors’s offices, $23,954.84. In her answer to the complaint, Nguyen admitted fault for the
accident but contested the issues of causation and the amount of damages. The case went to
trial on May 11, 2009.
¶6.
During trial, Thompson testified to being injured as a result of the automobile
accident. Thompson stated that she did not have neck or shoulder pain prior to the accident.
During cross-examination, Thompson admitted that she had been in a previous accident, but
she believed the previous accident was irrelevant to the collision with Nguyen.
¶7.
Thompson introduced the depositions of Dr. Kesterson, Dr. Martin, and the physical
therapists at Physical Therapy Solutions, Ruth Bosarge and Ann Godfrey. Dr. Martin
confirmed that Thompson had made no complaints of neck pain prior to the accident and that
Thompson made an appointment with his office within four days after the accident. During
the initial appointment, Dr. Martin documented abrasions typical of seat-belt trauma, referred
Thompson to Physical Therapy Solutions for physical therapy in order to ease her neck pain,
and prescribed an MRI that resulted in the discovery of disc degeneration. Dr. Martin
testified to a reasonable degree of medical certainty that Thompson’s injuries were “caused
or at least aggravated by that accident.” Godfrey and Bosarge testified that Thompson
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suffered from disc pain and muscle spasms. Finally, Dr. Kesterson testified that Thompson
suffered from degenerative disc disease prior to the accident, but the symptoms that required
the two surgeries were related to the accident.
¶8.
After Thompson rested, Nguyen took the stand and accepted responsibility for causing
the collision. According to Nguyen, Nguyen stopped her car behind Thompson’s at a red
light. After stopping, Nguyen’s foot rolled off the brake pedal, causing her car to strike the
rear of Thompson’s car. Nguyen testified that there was no visible damage to either car and
that neither party claimed injury immediately after the accident. After Nguyen presented her
defense, Thompson moved for a directed verdict. The trial court denied the motion and held
that there were material facts in dispute as to whether all, or part of, Thompson’s damages
were causally related to the accident with Nguyen.
¶9.
After beginning deliberation, the jury submitted several questions to the trial court.
The questions from the jury and responses from the trial court are as follows:
JURY: Can we see the police report?
COURT: You’ve received all the evidence that was introduced during the
course of the trial. Please continue your deliberations.
JURY: Where [sic] the transcripts of the videos entered into evidence? If
yes, we do not have [them].
COURT: Court procedure doesn’t allow transcripts of depositions read
during trial to be introduced into evidence. These transcripts were not
admitted.
JURY: Can we have a dictionary (preferably medical)?
COURT: No. Please continue your deliberations.
JURY: We feel we have too much information to fully & reasonably make
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a decision. Is there any chance that we can return for more careful and
lengthy deliberations tomorrow?
(Jury dismissed overnight).
JURY: We would like to speak [with] you in private. Do we need to write
two statements?
COURT: It would not be possible for the judge to meet privately with the
jury after deliberations have begun. If you are in need of further instructions
or guidance please communicate your questions in writing and the court will
respond if necessary.
¶10.
After several hours of deliberation, the jury returned a verdict in favor of Thompson
and awarded $9,131 in damages. The award of $9,131 is the exact amount Thompson
requested as compensation for the total of her physical-therapy bills. Thompson filed a
motion for an additur or, in the alternative, for a new trial on damages only. The trial court
denied the motion, and Thompson filed this appeal.
ANALYSIS
I. Directed Verdict
¶11.
Thompson argues that the trial court erred in denying her motion for a directed verdict
on the issue of liability. Mississippi Rule of Civil Procedure 50 requires the trial court to
grant a directed verdict if any verdict other than the one directed would be erroneous as a
matter of law. Kussman v. V&G Welding Supply, Inc., 585 So. 2d 700, 702 (Miss. 1991).
A trial court must consider all of the evidence in the light most favorable to the non-moving
party in making its determination. Fox v. Smith, 594 So. 2d 596, 603 (Miss. 1992). On
review, an appellate court must determine “whether the evidence, as applied to the elements
of a party’s case, is either so indisputable, or so deficient, that the necessity of a trier of fact
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has been obviated.” Solanki v. Ervin, 21 So. 3d 552, 556 (¶8) (Miss. 2009) (citations
omitted). This Court will review the grant or denial of a motion for a directed verdict de
novo. Id.
¶12.
Thompson’s claim is a negligence action. The elements of negligence include (1)
duty, (2) breach of duty, (3) causation, and (4) damages. Fisher v. Deer, 942 So. 2d 217, 219
(¶6) (Miss. Ct. App. 2006) (citation omitted). This Court has held that duty and breach
establish negligence, while causation and damages establish that the plaintiff is entitled to
recover on the basis of that negligence. Id.
¶13.
Thompson presented evidence that when the accident occurred, she was stopped at
a red light, and Nguyen collided with her rear bumper. Nguyen testified that her negligence
caused the accident and that she was willing to accept responsibility for her negligence.
Because Nguyen testified that her negligence caused the collision, the trial court erred in
denying Thompson’s motion for a directed verdict on the issue of Nguyen’s liability.
¶14.
Nguyen argues that the denial of Thompson’s motion for a directed verdict should be
considered harmless error because the jury subsequently returned a verdict in Thompson’s
favor. Where a jury verdict on the point at issue provides the appealing party the most
favorable result he could have received had the trial court handled the point correctly, errors
in failing to provide a directed verdict or peremptory instruction regarding liability should
be deemed harmless. Pickering v. Industrial Masina I Traktora, 740 So. 2d 836, 845 (¶43)
(Miss. 1999) (citation omitted).
¶15.
Given the record before this Court, we are unable to say that Thompson received the
most favorable result. The testimony was that Thompson had a pre-existing condition, which
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was asymptomatic until the auto collision. Thompson’s asymptomatic disc degeneration was
aggravated by the automobile collision. Thompson incurred medical expenses in excess of
$234,316.49 in treating the previously asymptomatic injury. The medical expenses were
testified to as being reasonable and necessary. Additionally, the testimony was unrefuted that
Thompson could now expect long-term problems from the previously asymptomatic injury.
¶16.
There is a substantial discrepancy between the amount of damages proven by
Thompson and the amount of damages awarded by the jury. The jury found in favor of
Thompson but only awarded a portion of Thompson’s proven medical expenses. Thompson
is entitled to all past, present and future medical damages and compensation for pain and
suffering proximately caused by Nguyen’s negligence. See Sharp v. Odom, 743 So. 2d 425,
432 (¶12) (Miss. Ct. App. 1999). Thompson submitted medical bills equal to $234,316.49,
but the jury only awarded $9,131. The discrepancy suggests that the verdict may have been
unresponsive to the evidence, further suggesting that Thompson did not receive the most
favorable result. See Dunn v. Jack Walker’s Audio Visual Ctr., 544 So. 2d 829, 833 (Miss.
1989). Accordingly, the trial court’s error in denying Thompson’s request for a directed
verdict on the issue of liability cannot be considered harmless. We reverse and render on this
issue.
II. Additur
¶17.
Thompson argues that the damages awarded were insufficient compensation for her
injuries suffered and that the trial court erred in failing to grant a motion for additur or, in the
alternative, a new trial on the sole issue of damages. The law on the subject of additurs is
stated within Mississippi Code Annotated section 11-1-55 (Rev. 2002):
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The supreme court or any other court of record in a case in which money
damages were awarded may overrule a motion for a new trial or affirm on
direct or cross appeal, upon condition of an additur or remittitur, if the court
finds that the damages are excessive or inadequate for the reason that the jury
or trier of facts was influenced by bias, prejudice, or passion, or that the
damages awarded were contrary to the overwhelming weight of credible
evidence. If such additur or remittitur be not accepted then the court may
direct a new trial on damages only. If the additur or remittitur is accepted and
the other party perfects a direct appeal, then the party accepting the additur or
remittitur shall have the right to cross appeal for the purpose of reversing the
action of the court in regard to the additur or remittitur.
¶18.
In reviewing a trial court’s grant or denial of an additur, this Court applies an abuse-
of-discretion standard of review. Maddox v. Muirhead, 738 So. 2d 742, 743 (¶5) (Miss.
1999). In this case, Thompson bears the burden of proving her damages, and this Court will
view the evidence in the light most favorable to Nguyen. Id. The Mississippi Supreme Court
has consistently held that: “Awards set by jury are not merely advisory and generally will not
be ‘set aside unless so unreasonable as to strike mankind at first blush as being beyond all
measure, unreasonable in amount and outrageous.’” Id. Additurs should never be employed
without great caution. Gibbs v. Banks, 527 So. 2d 658, 659 (Miss. 1988).
¶19.
Thompson testified to being injured as a result of the automobile accident. Thompson
stated that she did not have neck or shoulder pain prior to the accident. Dr. Martin confirmed
that there had been no complaints prior to the accident and that Thompson made an
appointment with his office four days after the accident. During the initial appointment, Dr.
Martin documented abrasions typical of seat-belt trauma, referred Thompson to Physical
Therapy Solutions for physical therapy in order to ease her neck pain, and prescribed an MRI
that resulted in the discovery of disc degeneration. Dr. Martin testified to a reasonable
degree of medical certainty that Thompson’s injuries were “caused or at least aggravated by
8
that accident.”
Godfrey and Bosarge, both treating physical therapists, testified that
Thompson suffered from disc pain and muscle spasms. Finally, Dr. Kesterson testified that
Thompson suffered from degenerative disc disease prior to the accident, but the symptoms
requiring the two surgeries were related to the accident. Dr. Kesterson testified that after he
performed two surgeries, he referred Thompson to Physical Therapy Solutions for postoperative rehabilitation.
¶20.
The law is clear that Thompson is entitled to all past, present, and future medical
damages and compensation for pain and suffering proximately caused by Nguyen’s
negligence. See Sharp, 743 So. 2d at 432 (¶12). Thus, Thompson sought an additur claiming
that the jury incorrectly awarded her only a portion of her reasonable and necessary medical
bills and that the jury failed to include an award for pain and suffering.
¶21.
“Each case involving the issue of additur must ‘necessarily be decided on its own
facts.’” Leach v. Leach, 597 So. 2d 1295, 1297 (Miss. 1992). In this case, Thompson
submitted medical bills equal to $234,316.49, but the jury only awarded Thompson $9,131.
“It is the jury [that] determines the weight of the testimony and the credibility of the
witnesses at trial[,] and it is the primary province of the jury to determine the amount of
damages to award.” Teasley v. Buford, 876 So. 2d 1070, 1075 (¶8) (Miss. Ct. App. 2004)
(citing Burge v. Spiers 856 So. 2d 577, 580 (¶9) (Miss. Ct. App. 2003)). During the trial,
Thompson’s credibility was drawn into question because her testimony at trial and her
deposition differed. Additionally, pictures of the vehicle, taken after the accident, were
introduced into evidence and documented no damage. Thompson further testified that she
had been in a previous accident, but she believed concealing that fact to be appropriate
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because she found the previous accident to be irrelevant in regard to the consequences of the
accident with Nguyen.
¶22.
Even so, we find the jury’s award to be unreasonable. The jury’s award was less than
four percent of Thompson’s actual medical expenses, and the evidence seems to support
Thompson’s argument that the jury failed to include damages for pain and suffering.
¶23.
As an alternative to additur, Thompson requests a new trial on the sole issue of
damages. “Proper bases for granting a motion for new trial are ‘when the verdict is against
the overwhelming weight of the evidence, or when the jury has been confused by faulty jury
instructions, or when the jury has departed from its oath and its verdict is a result from bias,
passion, and prejudice.’” Knight v. Brooks, 881 So. 2d 294, 297 (¶10) (Miss. Ct. App. 2004)
(citations omitted).
¶24.
The behavior of the jury during deliberation suggests that the jury was confused by
the jury instructions. On the day the trial concluded, the jury deliberated well into the
evening and could not reach a conclusion. The jury requested more time, stating: “We feel
we have too much information to fully [and] reasonably make a decision. Is there any chance
we can return for more careful and lengthy deliberations tomorrow?” While in deliberation,
the jury requested a copy of the police report, transcripts of the video testimony, a medical
dictionary, and a private meeting with the judge.
¶25.
The deliberation concluded with the jury finding in favor of Thompson and awarding
a portion of the damages requested. “Generally, ‘the only evidence of corruption, passion,
prejudice or bias on the part of the jury is an inference, if any, to be drawn from contrasting
the amount of the verdict with the amount of the damages.’” Green v. Grant, 641 So. 2d
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1203, 1209 (Miss. 1994) (citations omitted). In this case, the jury awarded the exact amount
Thompson requested as compensation for her physical-therapy treatments. The amount
requested for physical therapy combined two prescribed treatment sessions: the general
rehabilitation prescribed by Dr. Martin and, later, post-operative rehabilitation prescribed
by Dr. Kesterson. The verdict does not suggest that damages were awarded for visits to
either doctor who would have had to prescribe the physical therapy, as compensation for any
medical treatments besides physical therapy, or as compensation for pain and suffering.
¶26.
The award constituting the exact amount attributed to physical therapy could be a
coincidence; however, a logical inference suggests that the jury may have intentionally
awarded only the expenses attributed to physical therapy. The discrepancy between the
amount of damages Thompson requested, $234,316.49, and the verdict, $9,131, coupled with
the continuous requests from the jury while in deliberation, suggests that the jury was
confused by the jury instructions or departed from its oath, and the verdict is a result of bias,
passion, and prejudice. Therefore, the trial court erred in denying Thompson’s motion for
a new trial on the sole issue of damages. Accordingly, we reverse and remand for a new trial
on the issue of damages.
III. Jury Instructions
¶27.
Thompson argues the trial court erred by failing to grant a peremptory jury instruction
regarding liability and/or a jury instruction explaining how to calculate medical damages.
When reviewing jury instructions on appeal, this Court must consider the instructions as a
whole with no one instruction read alone or taken out of context. Teasley, 876 So. 2d at1078
(¶19) (citations omitted). When the instructions read as a whole “fairly announce the law of
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the case and create no injustice, no reversible error will be found.” Id.
¶28.
Thompson claims that the trial court erred by failing to grant a peremptory instruction
on the issue of liability. Specifically, Thompson alleges that the trial court erred in refusing
the following jury instructions P1A and P7A, respectively, which stated:
“The Court instructs you to find for the Plaintiff, Karen R. Thompson.”
“We, the jury, find for the plaintiff, Karen R. Thompson, and assess her
damages at $___.”
¶29.
The trial court denied the above peremptory instructions, while granting jury
instruction D8, which stated:
The Court instructs the jury that when any nine (9) or more of you reach a
verdict, you may return that verdict as the verdict of the jury. The form of
your verdict should be as follows:
1. If your verdict is for the Plaintiff, then the form of your verdict should be:
“We, the jury, find for the Plaintiff, KAREN R. THOMPSON, and assess her
damages $___.
2. If your verdict is for the Defendant, then the form of your verdict should be:
“We, the jury, find for the Defendant, DUNG THI HOANG NGUYEN.”
You should write your verdict on a separate sheet of paper provided to you by
the Court, but it need not be signed by any of you.
¶30.
Nguyen admitted liability for the accident.
“It is error for the court to grant
instructions which are likely to mislead or confuse the jury as to the applicable law.” Fisher,
942 So. 2d at 220 (¶11) (citation omitted). Since Nguyen admitted negligence and the
uncontradicted testimony was that Thompson’s asymptomatic condition was, at the very
least, aggravated by Nguyen’s negligence, the jury could not return a verdict in Nguyen’s
favor.
¶31.
Thompson further claims the trial court erred by refusing jury instructions explaining
the applicable law to be applied in determining the award of damages.
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Specifically,
Thompson alleges that the trial court erred in refusing the following jury instructions, P9A
and P10A, respectively, which stated:
You are instructed that if you find that any of Karen Thompson’s injuries were
proximately caused or exacerbated by the automobile accident that is the
subject of this lawsuit, you must award Karen Thompson all reasonable and
necessary medical expenses incurred as a result of such injuries.
You are instructed that if you award Karen Thompson medical expenses for
injuries incurred or exacerbated as a result of the accident which is the subject
of this lawsuit, you must award Karen Thompson damages for all pain and
suffering that you find she experienced as a result of such injuries. This
includes past, present and future pain and suffering.
¶32.
Thompson is entitled to have jury instructions given which present her theory of the
case. Coho Resources, Inc. v. McCarthy, 829 So. 2d 1, 23 (¶69) (Miss. 2002) (quoting
Higgins v. State, 725 So. 2d 220, 223 (¶16) (Miss. 1998)). Both parties stipulate that jury
instructions P9A and P10A are accurate statements of law, but Nguyen claims the error in
refusing to grant the instructions was harmless because the jury was fully and fairly
instructed by other instructions. Id.
¶33.
A review of the record reveals no other instruction was granted to explain the
applicable law as to what damages must be awarded. The law is clear in that the jury must
award compensatory damages, inclusive of reasonable and necessary medical expenses and
pain and suffering, proximately caused by the act of negligence. See Matkins v. Lee, 491 So.
2d 866, 868 (Miss. 1986). Jury instruction P6A was granted regarding how to award
damages, but it instructs the jury to consider past, present, and future physical pain and
suffering and past, present, and future reasonable and necessary medical expenses.
¶34.
Jury instruction P6A stated:
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You are instructed that just and fair compensation is a decision to be
made by the jury. Your discretion as to the measure of damages is wide, but
not unlimited, and you may not act arbitrarily. Exercise your discretion as to
the amount of damages reasonably, intelligently and in harmony with the
evidence of the case and the Court’s instructions. The damages for personal
injury cannot be assessed by any fixed rule, but you are the only judge as to
the measure of damages in this case.
You may consider the following factors to determine the amount of
damages to award as may be shown by a preponderance of the evidence:
1.
The type of injuries to the plaintiff and their duration;
2.
Past, present and future physical pain and suffering and result in
loss of enjoyment of life, if any; and
3.
Reasonable and necessary medical expenses already incurred
and those which are reasonably probable to be incurred in the
future, if any.
¶35.
Finally, Thompson claims that the trial court erred in refusing jury instruction P11A,
which provided the jury with a special-verdict form. The language of the instruction was as
follows:
Please fill out the form below for all of Karen Thompson’s damages that you
find were proximately caused or exacerbated by the accident that is the subject
of this litigation:
1.
2.
3.
4.
5.
Past Medical expenses:_________________________
Future Medical expenses:_______________________
Past Pain and Suffering:________________________
Future Pain and Suffering:______________________
TOTAL of the above:__________________________
Your verdict should read as follows: “We, the jury, award the Plaintiff, Karen
R. Thompson, damages in the amount of $__.”
¶36.
Mississippi Rule of Civil Procedure 49(b) provides for special jury instructions and
allows submission to the jury of “any issue of fact raised by the pleadings or by the evidence.”
Jones v. Westinghouse Elec. Corp., 694 So. 2d 1249, 1251 (Miss. 1997). An instruction
pursuant to Rule 49(b) may have eliminated any confusion as to how to calculate damages.
14
See Larkin v. Perry, 427 So. 2d 138, 139 (Miss. 1983).
¶37.
Had the trial court adopted Thompson’s form of the special-verdict jury instruction,
there would be no question as to the basis of the jury’s action. A proper basis for granting a
new trial is when the jury has been confused by faulty jury instructions. Knight, 881 So. 2d
at 297 (¶10). Considering the facts of this case and in reading the instructions as a whole, the
trial court erred by refusing a peremptory jury instruction regarding liability and refusing a jury
instruction explaining how to calculate damages. Furthermore, the jury continuously posing
questions to the court during deliberation suggests that the jurors were confused by the
instructions. For the foregoing reasons, we reverse and remand for a new trial on damages.
¶38. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY IS
REVERSED, RENDERED, AND REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLEE.
LEE AND MYERS, P.JJ., IRVING, ISHEE AND CARLTON, JJ., CONCUR.
GRIFFIS, ROBERTS AND MAXWELL, JJ., CONCUR IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., CONCURS IN
RESULT ONLY WITHOUT SEPARATE OPINION.
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