Trends in Government Related Aviation Tort Litigation

Trends in Government Related Aviation Tort Litigation - 2016 Orla M. Brady1 Trial Attorney, Aviation and Admiralty Litigation Section United States De...
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Trends in Government Related Aviation Tort Litigation - 2016 Orla M. Brady1 Trial Attorney, Aviation and Admiralty Litigation Section United States Department of Justice

The United States Department of Justice, Aviation and Admiralty Litigation Section, defends the United States in tort actions that stem from aeronautical and maritime accidents. The majority of aviation related claims against the United States arise under the Federal Tort Claims Act (FTCA).2 The FTCA is a limited waiver of sovereign immunity that allows plaintiffs to sue for money damages for damage to property, personal injury or death caused by the negligence of a government employee acting in the scope of his employment.3 Often, the Federal Aviation Administration (FAA) is the agency client of such actions other cases frequently involve different government agencies, such as the Department of Defense. The underlying agency to any such claim typically provides litigation support throughout the case while it is being litigated. Notwithstanding their assistance, the final decision making and authority rests with the Department of Justice.4 Government related aviation claims most often involve alleged negligence related to air traffic control services, and most commonly involve three types of accidents: midair collisions, controlled flight into terrain (CFIT), and weather related cases, which often include turbulence cases.

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Any opinions expressed in this paper are those of the author, only, and not the Department of Justice or any other government agency. Special thanks to Justus Hogge, paralegal at the DOJ Aviation and Admiralty Litigation Section, for his assistance on this paper. 2 28 U.S.C. § 1346(b). 3 Id. 4 See 28 U.S.C. § 516. Many agencies have their own settlement authority which may be exercised within their limited dollar amounts.

1. Midair Collisions The number of general aviation and air-carrier midair collisions have declined over the years most likely because better airspace segregation, the availability of airborne TCAS and ground based collision avoidance systems, mandatory mode C in certain airspace, and enhanced radar coverage. The decrease in midair collisions is also likely due to the general decline in general aviation traffic and the expanded use of contract towers, whose torts are not imputed to the United States.5 Sadly, however, our office continues to see this type of accident and most recently tried a midair case last year in the Eastern District of Virginia. In May of 2012, two small, single engine airplanes collided near Sumerduck, Virginia, and the United States was subsequently sued for air traffic control negligence. See Gardella v. United States, No. 15-242 (E.D. Va. filed Feb. 20, 2015). In Gardella, a flight instructor and a pilot receiving instruction (who was Chief Medical Examiner for the NTSB) were in a Beechcraft Bonanza that collided with a Piper Cherokee in the vicinity of Sumerduck, Virginia. The weather on the accident date was warm with good visibility. Both aircraft were operating under VFR (visual flight rules), which requires pilots to use vigilance so as to see and avoid other traffic. The Bonanza was not in contact with air traffic control, but the Cherokee had requested ATC services from Potomac TRACON. The Cherokee pilot was headed southbound, at an altitude of approximately 2,000 feet. There was 500 feet of vertical spacing between the two aircraft when an audible and visible conflict alert occurred at the controller’s scope. Within seconds, the two aircraft collided. There were no indications that either aircraft attempted to avoid the collision. The Cherokee pilot, an FAA accident investigator, suffered injuries but 5

See Collins v. United States, 2007 WL 2893630 (N.D. Ill. Sept. 2, 2007) (Government cannot be held vicariously liable for contractor controller’s negligence in midair collision. Failures of the FAA to install radar system and perform an inflight inspection are protected by the discretionary function exception.) 2

survived. Both occupants of the Bonanza suffered fatal injuries. The pilot instructor’s widow claimed that air traffic controllers failed to advise or alert the Cherokee pilot about a potential traffic conflict with the Bonanza. The United States argued that no duty arose and that the pilots should have seen the conflicting traffic. The case was tried over a few days this past November, and the parties are currently awaiting a decision. 2. Controlled Flight Into Terrain (CFIT) Cases against the government involving controlled flight into terrain have decreased significantly over the years, likely due to better sources of pilot information and warning systems. However, the United States tried a CFIT claim in 2015. In In Re: Air Crash Near Rio Grande, a Rockwell “Commander” 690B was destroyed when it impacted the side of mountain, approximately four miles southeast of Rio Grande, Puerto Rico. 6 The flight was operated as a Part 135 charter flight that originated from the Virgin Islands en route to San Juan International Airport. The pilot and both passengers suffered fatal injuries. The pilot was operating under VFR, which, amongst other things, required him to keep a prescribed distance from clouds and maintain at least three miles of visibility. On approach to the airport, a controller in the San Juan Combined Enroute Radar Approach Control facility assigned the aircraft a heading and instructed the pilot to maintain VFR. While flying the assigned heading, the aircraft entered clouds and crashed into mountainous terrain. The pilot was instructed to maintain VFR on three instances, but the pilot did not advise of clouds along his route until immediately prior to impact. The case was tried in the fall of 2015 and the court has not yet published its decision.

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See In re Air Crash Near Rio Grande, P.R. on Dec. 2, 2008, Nos. 11-md-2246, 11-cv-80761, 11-cv-80905, 11-cv-81062 (S.D. Fla. filed May 25, 2011). 3

3. Weather Cases Weather cases most often involve allegations that an air traffic controller failed to warn a pilot of relevant adverse weather conditions. Prior to 2005, the United States litigated claims that alleged negligence against flight service stations. Since 2005, however, flight service stations have been run by Lockheed Martin, and are no longer under the control of the United States. Some weather cases have resulted in adverse decisions for the United States. In Worthington v. United States,7 the Eleventh Circuit reversed the trial court’s judgment for the United States8 and held that the pilot’s spatial disorientation at decision height on an IFR approach was not a superseding/intervening cause under Florida law but was a foreseeable result of the negligence of the approach controller in not providing up-to-date weather information. Similarly, in Abrisch v. United States,9 the trial court found that the pilot’s spatial disorientation and resulting crash while on approach to Jacksonville, FL was caused by the controller’s failure to provide the pilot with weather information that would have alerted him to deteriorating conditions. The court found that this failure contributed to the pilot’s special disorientation and held that the FAA’s negligence was 65% while the pilot’s was 35%.10 Likewise, in Zinn v. United States11, the United States was found 40% responsible for a private pilot’s crash after encountering adverse weather conditions, while the pilot was found 60% responsible. In Zinn, one of the more recent weather cases, the court squarely addressed issues of FAA air traffic controller and pilot responsibilities for weather avoidance, and addressed the 7

21 F.3d 399 (11th Cir. 1994). 897 F. Supp. 1545 (S.D. Ga. 1992). 9 359 F. Supp. 2d 1214 (M.D. Fla. 2004). 10 Id. at 1216. 11 835 F. Supp. 2d 1280 (S.D. Fla. 2011). 8

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extent to which a chain of causation can extend from an initial negligent act to a resulting crash.12 In that case, a pilot of a twin-engine aircraft flew into a thunderstorm, lost 10,000 feet of altitude, exited the bottom of the storm cell, flew for some time, and then crashed. 13 Michael Zinn, an experienced pilot, was the pilot and owner of the accident aircraft, a twin-engine 1978 Cessna Skymaster.14 On the accident date, Zinn did not obtain a preflight weather briefing from a Flight Service Station, but received Automated Terminal Information Service (ATIS) information that included a SIGMET concerning a line of thunderstorms along Zinn’s intended route of flight.15 Notably, Zinn’s aircraft was not equipped with weather radar.16 After departure, a controller instructed Zinn to climb to 11,000 feet and issued weather information regarding moderate to heavy precipitation at Zinn’s “twelve o’clock.”17 When the controller asked the pilot for intended deviations, Zinn responded he would deviate west to avoid the weather. Zinn then approached heavy precipitation ranging from his 10 o’clock to 1 o’clock position. Later, Zinn asked the controller if his heading was clear. The radar returns showed Zinn edging perilously close to the northeast edge of a heavy to possibly extreme thunderstorm. The controller responded that he could not suggest a heading because his radar only picked up precipitation which was not as accurate as what Zinn could see through his window.18 The manner in which the aircraft crashed gave rise to debate about the causal chain of events. After plummeting nearly 10,000 feet and exiting the bottom of the thunderstorm cell,

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See Id. See Id. 14 Id. at 1286-7. 15 Id. at 1288. 16 Id. at 1290. 17 Id. at 1293. 18 Id. at 1294. 13

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Zinn regained control of the airplane and leveled off at about 1,000 feet.19 Witnesses on the ground then saw him maneuvering beneath the clouds for one to four minutes.20 Then, he banked hard to the left, lost control of the airplane and crashed into a house. The crash destroyed the airplane and killed Zinn instantly. The court found that the scope of the duty owed by controllers to pilots arises from both FAA manuals, principally the controller’s Handbook, FAA Order 7110.65, as well as common law duties as to what a reasonably prudent person would have done under the circumstances. In addition to the Handbook, the court also observed that other courts have held that an air traffic controller is required to “warn of dangers reasonably apparent to him, even beyond the requirements in the manual, if those dangers are not apparent to the pilot in the exercise of due care.”21 The United States maintained that weather advisories and assistance are secondary to the controllers’ primary responsibility of separating aircraft; and that these controllers were engaged in their primary responsibility. However, the court found that a reasonably prudent controller would have understood that Zinn was asking for guidance around the weather and provided an alternative course of action to Zinn, given that Zinn was encountering possibly severe conditions. 22 The court held that the controller’s decision to advise Zinn only of the precipitation directly in front of him--at Zinn’s twelve o’clock--was a breach of his duty.23 The court found that the weather was severe enough that the controller should have known that he needed to issue more complete weather information, and that Zinn would have found an accurate weather

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Id. at 1298. Id. 21 See, e.g., Springer v. United States, 641 F. Supp. 913, 935 (D.S.C. 1986). 22 Zinn, 835 F. Supp. 2d at 1295. 23 Id. 20

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briefing from the controller to be pertinent and material in his decision to deviate.24 The court stated that the breach of the controller’s duty of care was a “but for” cause of Zinn’s crash. One question the court had to address was whether intervening circumstance broke the chain of causation. The United States argued that Zinn’s own negligence in piloting his aircraft into a known area of convective activity broke the chain, and that because the pilot recovered control of his aircraft after emerging from the bottom of the storm clouds (for a short period prior to the crash) showed that the crash did not naturally and sequentially result from controller negligence. The court agreed that Zinn’s negligence was the primary cause of the crash but found that the pilot’s negligence was not an intervening or superseding event that cut off all governmental liability.25

Instead, the court determined that Zinn’s negligence must be

considered in terms of comparative negligence as a joint tortfeasor who contributed to the loss, and that the FAA’s negligence remained a cause in fact and proximate cause of the loss.26 The court believed that the controller’s negligence acted in concert with Zinn’s own negligence.27 A Recent Victory for the Government in a Weather Case The United States recently won a weather-related case - Lomas v. United States.28 Lomas involved the crash of a Piper Twin Comanche in April 2007. The pilot and his two passengers suffered fatal injuries. The pilot was instrument rated and had over 4,000 hours of flight experience, 167 in instrument meteorological conditions. 29 He received two briefings from flight service in New York which included warnings of adverse weather along his planned route of flight from White Plains, New York, to Southern Pines, North Carolina. About two hours into 24

Id. at 1325. Id. at 1326-27. 26 Id. 27 Id. at 1320. 28 Lomas v. United States, No. 10-cv-1102, at 2-3 (D. Conn. Aug. 5, 2014). 29 Id. at 3. 25

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the flight, the pilot checked on with Patuxent River Radar Approach Control, a U.S. Naval facility. The controller approved the pilot’s requested deviation left of course and issued the precipitation depicted on his radar scope. The pilot acknowledged that the weather provided reflected the weather on his NEXRAD imagery, and that he intended to deviate as suggested.30 The controller continued to update the pilot on the precipitation depicted on his scope, and the pilot twice confirmed that he knew the same information based on his NEXRAD imagery. The pilot made a sudden and unannounced 90 degree right turn, and lost 600 feet of altitude.31 The pilot then radioed that he lost his “attitude”, implying that the attitude indicator failed.32 The controller again provided the precipitation information but never again heard from the pilot. Plaintiffs alleged that the controller failed to vector the aircraft further from the convective activity, or suggest a safer route of flight and that those shortcomings caused the plane to tear off a portion of the wing. The United States’ defense was that the pilot’s improper recovery caused by failed instruments ultimately caused the crash. 33 The court declined to resolve the factual cause of the crash, but held that the controller never breached a duty to the plaintiffs. The court relied heavily on the pilot’s repeated corroboration of the information conveyed by the controller with the NEXRAD imagery. The court held that there was “simply no evidence that [the controller] had in his possession or what observing on his radar scope, adverse weather that he did not convey to [the pilot.]”34 Notably, the Judge was an instrument-rated pilot.

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Id. at 8. Id. at 9. 32 Id. 33 Id. at 14, n. 20. 34 Id. at 15, n. 22. 31

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Another weather case tried more recently was Knous v. United States.35 This case involved a Bonanza aircraft that suffered an inflight breakup after it encountered adverse weather conditions. The pilot and his wife, the aircraft’s only occupants, suffered fatal injuries. Knous was a good example of a case that demonstrated the continuing changes related to government weather related cases in general aviation accidents. The pilot had sophisticated weather equipment on his aircraft - a Garmin 430 with a Sirius XM weather subscription that provided a better precipitation depiction than that which the controller had on his scope. Nonetheless, the major crux of the case revolved around whether a pilot report met the requirements set out in the Air Traffic Control Manual, 7110.65, Section 2-6-4, which required that controllers “issue pertinent information on observed/reported weather . . .”. The United States’ defense, which is a typical defense to weather cases, was that a controller’s first priority duty, and the purpose of the ATC system, “is to prevent a collision between aircraft operating in the system and to organize and expedite the flow of traffic . . .”36 In this case, the controller solicited more than one pilot report for the benefit of the decedent pilot, and one that specifically applied to the pilot’s route of flight. The controller failed to provide any information about the precipitation that appeared on his scope, an omission which the Plaintiffs claimed caused the pilot to fly into severe weather conditions and crash. The court has not issued its final decision as of the date of this writing. Choice of Law Weather cases often give rise to interesting choice of law questions - and the Knous case was a textbook example: if a private pilot who was visiting state A, departs from an airport in state B, communicates with an air traffic controller who is located in state A, encounters weather 35 36

Knous v. United States, No. 13 -00075 (N.D. Ga. filed April 4, 2013). Air Traffic Control Manual, 7110.65, Section 2-1-1. 9

that crosses several states while heading to his domicile in state C, and suffers an in-flight breakup thousands of feet above state B, which state’s law applies? The trend has been to apply the law of the state in which the controller sits when the case is about alleged controller negligence - which was also the result in a pretrial ruling in the Knous case. The relevant facts in Knous: a private pilot and his wife (Georgia domiciliaries) were in Tennessee to watch their daughter compete in a golf tournament for a couple of days and their Bonanaza aircraft was parked at an airport in Mississippi, just one mile south of the Tennessee border. On the final day of their trip, they departed early to get out before the incoming storms. They departed the Mississippi airport and headed east to Georgia. While in airspace over both Mississippi and Tennessee, the pilot conversed with an FAA controller out of Memphis Center who allegedly failed to give sufficient warnings about the weather into which the pilot was headed. The weather system extended over four states and was the subject of two SIGMET warnings that existed prior to the pilot’s departure. Not long after departing from Mississippi, and after passing back and forth over the Tennessee and Mississippi border, the aircraft was torn apart in-flight, approximately 14,000 feet above Rienzi, Mississippi. It is well settled that the law of the state where the act or omission occurs controls FTCA cases. Richards v. United States, 369 U.S. 1 (1962). The law of that state, however, includes the choice-of-law rules. In Knous, the locus of the “act or omission” was where the controller was located (in Memphis) and therefore, Tennessee’s choice of law rules applied. The Plaintiffs argued Mississippi law should apply because it was the place where: (1) pieces of the plane landed following the inflight breakup; (2) the pilot’s comparative negligence may have occurred; and, (3) the negligent ATC transmissions were, or were not, heard. The United States argued that Mississippi’s interest in having its law apply to the case was so slight

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as to be irrelevant, and that the only truly interested states were Tennessee and Georgia because: (1) the Tennessee ATC’s negligence formed the basis of the complaint; (2) the need for consistent rulings called for choosing the stationary party over the transitory party; and, (3) Tennessee had a greater interest in deterring tortious conduct of employees acting within its’ state than Mississippi had in compensating parties whose relationship with the state was fleeting. The Court ultimately found that the situs of the plane crash was to be given little weight because of its fortuitous nature, and that the transient nature of the decedents flying through Mississippi negated any interest Mississippi might have in the case. More specifically, the Court held Tennessee law applied because, inter alia,: (1) applying modified comparative negligence would better “encourage the free exchange of individuals and commerce;”37 (2) Tennessee had a “stronger interest in applying its modified comparative negligence, and deterring the negligence of air traffic controllers located within its borders, than Mississippi [did] in allowing non-resident plaintiffs to pass through its territory to capture its more favorable comparative negligence standard;38 (3) the “whole basis of plaintiffs’ claim relate[d] to conduct originating from an FAA air traffic controller located in Tennessee;”39 and, (4) the air traffic controller was stationary whereas the pilot was transitory, and because of “the controller’s authority over the airspace, its issuance of instructions, and its communications with the pilot around the time of the crash.”40

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Knous v. United States, Case No. 2:13-cv-00075-WCO, ECF No. 100, *6 (August 20, 2015) Id. at *9-10. 39 Id. at *13. 40 Id. at *15. 38

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Another Type of Weather Case - Turbulence In LeGrande v. United States41, the Seventh Circuit affirmed summary judgment in favor of the United States in an aviation turbulence case. Plaintiff, a Southwest Airlines flight attendant, was injured when the airliner flew into severe turbulence. She claimed $25 million for her disfiguring injuries, and blamed the FAA’s air traffic controllers at the Cleveland Air Route Traffic Control Center for not warning the pilots of turbulence. In the district court, the United States and the Plaintiff filed cross-motions for summary judgment. The district judge granted the United States’ motion and denied the Plaintiff’s motion, ruling that the controllers at the Cleveland Center were not negligent. The court found that there was no evidence that the controllers knew, or should have known, that severe turbulence was in the flight path of the airliner.42 The weather products that were disseminated to the controllers, including PIREPs and Center Weather Advisories, did not forecast or report severe turbulence along that flight path. The controllers had no more information about turbulence than the pilots had from their own dispatcher and publicly available weather reports. Further, there was no evidence that the controllers failed to disseminate the weather products that were provided to them or in any way failed to comply with the standards of FAA Order 7110.65. The district judge also ruled that the FAA had no duty to provide the forecast in a Meteorological Impact Statement (MIS) to the controllers or the pilots. An MIS is a long-range forecast created for air traffic planning purposes only, primarily used by Traffic Management Units. In this case, an MIS did forecast “isolated severe turbulence,” but it was over an area covering four states, 10,000 feet of vertical airspace, and a 12-hour period. The airline captain testified that he was not permitted to use an MIS for operational purposes. The judge noted that 41 42

687 F.3d 800 (7th Cir. 2012). 774 F. Supp. 2d 910 (N.D. Ill. 2011). 12

if the meteorologist believed the threat of severe turbulence warranted dissemination to pilots and controllers, he would have issued a Center Weather Advisory. The appellate court affirmed the district court, holding that the controllers had no duty to broadcast any turbulence forecast contained in an MIS. The court noted that the long-range, general forecast in the MIS was “far too indefinite to be of assistance to pilots.”43 On appeal, Plaintiff also blamed the National Weather Service meteorologist, arguing that he failed to advise air traffic controllers of the forecast for severe turbulence that was contained in the MIS. The appellate court ruled that the Plaintiff could not add new arguments against the NWS because her administrative claim contained allegations against the FAA only, not the NWS. 44 4. Government Aviation Litigation - Moving Forward There will likely always be aviation litigation cases of the type discussed above. With the development of better radar and warning systems, the approach Plaintiffs take in attempting to prove the United States’ negligence will be sure to change. Other changes in government litigation, some quite practical and procedural, will also develop over time. With regard to cases that involve military defendants - the current climate for the protection of the identity of military members will procedurally affect aviation cases involving the Department of Defense. Specifically, the identities of the military members often require confidentiality and court filings will either be filed under seal or heavily redacted on the public docket. In a recent case, government contract pilots suffered fatal injuries after their aircraft encountered adverse weather conditions while assisting the United States Air Force conduct 43 44

687 F.3d at 812. Id. at 813.

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training exercises. The identities of the military members in that case were heavily protected which created major procedural hurdles. Documents normally e-mailed to counsel had to be encrypted and/or encrypted and sent via disc. Otherwise typical ECF filings had to be filed under seal anytime they made reference to the potential identity of any of the military witnesses. Moving forward, it is likely that cases involving military accidents will face the same challenges. An additional issue expected to arise is that of the upcoming increase in air traffic controller retirements. The FAA is facing a challenge because a third of its air traffic controlling workforce is currently retirement-eligible and many controllers are set to retire in the upcoming years. It is uncertain how quickly those controllers will be replaced. Critics of the FAA claim that the FAA’s deficiencies in planning will leave the FAA in a massive controller shortage.45 In a recent plea to Congress, NATCA President Paul Rinaldi stated:46 Air traffic controller staffing has been a concern for many years, but it has now reached a crisis level. I’ve said it repeatedly over the past few years: the status quo is unacceptable. Controller staffing has fallen nearly 10 percent since 2011, and the FAA has missed its hiring goals in each of the last five years. With one third of our workforce eligible to retire, the FAA’s bureaucratic structure is failing us. In fiscal year 2015, the FAA fell 24 percent below its staffing goals. If this situation continues unaddressed, we will be hardpressed to maintain current capacity, let alone expand and modernize the system.

The controller shortage results in longer work hours and more consecutive work days without a break. NASA conducted a study assessing controller fatigue and provided their

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“Blame the FAA for Air-Traffic Controller Shortage.” www.CNBC.Com/2014/12/5, visited Jan. 7, 2016. 46 http://www.natca.org/index.php/media-center/news-archive/611-natca-discusses-air-trafficcontroller-staffing-shortage-at-congressional-roundtable, visited Jan. 7, 2016. 14

findings to the FAA several years ago.47 The results showed that 70% of controllers working the midnight shift found themselves “about to doze off” while working, and that nearly two in 10 controllers committed significant errors (e.g. allowing planes to be too close together) due to fatigue.48 Nonetheless, no one has demonstrated a higher accident rate as a result of these findings. 5. Conclusion Recent cases against the government have featured both wins and losses, though courts have been very reluctant to wholly absolve pilots of their negligence, especially in weather cases. However, the overall reduction of accidents has significantly reduced government liability exposure over the past 30 years. General aviation operations are down, contractors are running VFR towers, and the flight service stations are now operated by Lockheed Martin. It remains to be seen whether FAA controller staffing challenges will affect the number of accidents and increase litigation, or whether continuing advances in ATC and avionics technology will further reduce mishaps and the civil actions that inevitably ensue from them.

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http://www.faa.gov/data_research/research/media/NASA_Controller_Fatigue_Assessment_Repo rt.pdf visited Jan. 7, 2016. 48 https://www.rt.com/usa/312138-secret-faa-study-chronic-fatigue/, visited Jan. 7, 2016. 15

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