Opinion
NO. COA10-1433
08-16-2011
STEPHEN C. NICHOLSON, Individually and as Administrator of the Estate of GERALDINE ANNE NICHOLSON, Plaintiff, v. ARLEEN KAYE THOM, M.D., Defendant.
Comerford & Britt, L.L.P., by John A. Chilson and Cliff Britt, and Musselwhite, Musselwhite, Branch & Grantham, by James W. Musselwhite, for plaintiff-appellee. Young Moore and Henderson P.A., by William P. Daniell, Elizabeth P. McCullough, and Kelly E. Street, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Robeson County No. 07 CVS 1845
Appeal by defendant from order entered 7 April 2010 by Judge Ola M. Lewis in Robeson County Superior Court. Heard in the Court of Appeals 14 April 2011.
Comerford & Britt, L.L.P., by John A. Chilson and Cliff Britt, and Musselwhite, Musselwhite, Branch & Grantham, by James W. Musselwhite, for plaintiff-appellee.
Young Moore and Henderson P.A., by William P. Daniell, Elizabeth P. McCullough, and Kelly E. Street, for defendant-appellant.
ERVIN, Judge.
Defendant Arleen Kaye Thom, M.D., appeals from an order entered by the trial court requiring Defendant to disclose certain information relating to her brachial plexus neuropathy and related insurance disability application. On appeal, Defendant contends that the trial court's order violated her rights under the physician-patient privilege. After careful consideration of Defendant's challenge to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be affirmed.
I. Factual Background
A. Substantive Facts
Geraldine Anne Nicholson was diagnosed with small cell rectal cancer in June 2005. On 28 June 2005, Ms. Nicholson underwent a two-part surgery at Cape Fear Valley Medical Center. The first procedure, performed by Dr. Myron Strickland, consisted of a complete abdominal hysterectomy and the removal of Ms. Nicholson's ovaries. The second procedure, which was performed by Defendant, entailed the removal of Mrs. Nicholson's rectum and part of her colon. After Ms. Nicholson was discharged from the hospital on 5 July 2005, she began radiation and chemotherapy treatment.
After presenting as too weak to undergo additional radiation treatment on 31 August 2005, Ms. Nicholson was sent to Cape Fear's emergency department, where she was admitted with complaints of abdominal pain, weakness, and neutropenia. An abdominal x-ray taken later that day revealed the presence of a ribbon-shaped object projecting over the right iliac crest. A CT scan performed on 3 September 2005 showed what appeared to be a "surgical foreign body" in Ms. Nicholson's abdomen. On 7 September 2005, Ms. Nicholson underwent an exploratory laparotomy, during which an intraperitoneal foreign body (later identified as a surgical sponge) was removed. Ms. Nicholson was discharged on 4 October 2005.
Mrs. Nicholson was readmitted to Cape Fear on three different occasions between 29 October 2005 and 13 July 2006, at which point she was diagnosed with "metastatic disease of the brain." Although Ms. Nicholson received five radiation treatments after being diagnosed with brain cancer, she died on 12 October 2006.
In August 2005, Defendant experienced significant pain and numbness in her left hand and arm. Subsequently, Defendant was diagnosed with brachial plexus neuropathy. On 26 September 2005, Defendant applied to her insurance carrier, UnumProvident, for disability benefits.
B. Procedural History
On 21 May 2008, Plaintiff Stephen C. Nicholson, individually and as administrator of the estate of his deceased wife, Ms. Nicholson, initiated this medical malpractice action against Defendant based upon her allegedly "negligent[] fail[ure] to remove a surgical sponge from the deceased during the surgery performed June 28, 2005." In his complaint, Plaintiff sought compensatory damages and damages for loss of consortium. On 30 July 2008, Defendant filed an answer in which she denied the material allegations set forth in Plaintiff's complaint.
In his second request for production of documents, which was served on 8 January 2010, Plaintiff requested: (1) "[a] copy of [Defendant's] complete application for disability with UNUM, as well as any related correspondence between [Defendant] and UNUM regarding the status of her claim" and (2) "[a] copy of all of [Defendant's] medical records that relate or pertain to the brachial plexus neuropathy in her left arm that she sustained on or about August 17, 2005." On the same date, Plaintiff served his third set of interrogatories, in which he requested that Defendant: (1) "[d]escribe with full details the injury [she] claim[ed] [to have] suffered on or about August 17, 2005 to [her] left brachial plexus, including but not limited to, the number of nerve roots affected, the mechanism of [the] injury, and the nature of the injury" and (2) "[p]rovide the full name, business name, business address, telephone number, dates of treatment, and a summary of care provided for all physicians who provided [her] with medical care for the brachial plexus injury [she] claim[ed] [she] suffered on or about August 17, 2005[.]"
On 10 February 2010, Defendant filed responses to these requests for production and interrogatories in which she objected to providing the requested information on the grounds that they "s[ought] information that is protected by the [physician-patient] privilege" and that the requested information was " not reasonably calculated to lead to the discovery of admissible evidence and [was] irrelevant to the issue of whether the Defendant complied with the applicable standard of care in this case." On 17 February 2010, Plaintiff filed a motion to compel Defendant to provide the requested discovery. In response, Defendant's attorney submitted an affidavit in which he stated that he had "reviewed" the information sought by Plaintiff's discovery requests and believed that the information in question was protected by the physician-patient privilege.
On 24 February 2010, the trial court conducted a hearing concerning Plaintiff's motion to compel. On 5 March 2010, the trial court entered an order requiring Defendant to produce the requested documents under seal for purposes of an in camera review. After reviewing the relevant documents in camera, the trial court entered an order on 7 April 2010 determining that "the Documents should be produced" subject to the condition that "the Documents [were] to remain sealed with the Court and [were] only to be disclosed to Plaintiff's counsel." On the same date, Defendant noted an appeal to this Court from the trial court's order and sought a stay pending the resolution of her appeal. The trial court granted Defendant's stay motion on the grounds that "the production of the documents affects a substantial right of Defendant [] and thus, the Order Compelling Discovery is immediately appealable[.]"
II. Legal Analysis
A. Appealability
Prior to addressing the Defendant's challenge to the trial court's order on the merits, we must resolve the preliminary issue of whether the trial court's order is properly before this Court for review at this time. As the Supreme Court has explained, "[a]n order compelling discovery is generally not immediately appealable because it is interlocutory and does not affect a substantial right that would be lost if the ruling were not reviewed before final judgment." Sharpe v. Worland, 351 N.C. 159, 163, 522 S.E.2d 577, 579 (1999); accord Mack v. Moore, 91 N.C. App. 478, 480, 372 S.E.2d 314, 316 (1988) (stating that, "[a]s a general rule, an order compelling discovery is not immediately appealable because it is interlocutory and does not affect a substantial right which would be lost if the ruling is not reviewed before final judgment"), disc. review denied, 323 N.C. 704, 377 S.E.2d 225 (1989). However, discovery orders are immediately appealable when they "deprive the appealing party of a substantial right which will be lost if the order is not reviewed before a final judgment is entered." Cook v. Bankers Life & Casualty Co., 329 N.C. 488, 491, 406 S.E.2d 848, 850 (1991). In the event that "a party asserts a statutory privilege which directly relates to the matter to be disclosed under an interlocutory discovery order, and the assertion of such privilege is not otherwise frivolous or insubstantial, the challenged order affects a substantial right" and is subject to immediate appellate review. Sharpe, 351 N.C. at 166, 522 S.E.2d at 581. As a result of the fact that the trial court's order requires Defendant to disclose information that she claims to be subject to the physician-patient privilege, the trial court's order is properly before this Court on an interlocutory basis. See Midkiff v. Compton, ___ N.C. App. ___, ___, 693 S.E.2d 172, 174 (holding that, "[b]ecause the trial court in the present case ordered Plaintiff to disclose matters she had asserted were protected by the physician-patient privilege, the trial court's order is immediately appealable and is properly before us"), cert. denied, 364 N.C. 326, 700 S.E.2d 922 (2010); Roadway Express, Inc. v. Hayes, 178 N.C. App. 165, 168, 631 S.E.2d 41, 44 (2006) (holding that, "because Defendant Hayes asserts his Fifth Amendment privilege against self-incrimination and the physician-patient privilege as reasons for not producing documents and responding to Plaintiff's discovery requests, the orders on appeal are immediately appealable"); Mims v. Wright, 157 N.C. App. 339, 341-42, 578 S.E.2d 606, 608 (2003) (holding that a discovery order that compelled disclosure of records which were alleged to be protected by the physician-patient privilege affected a substantial right and was immediately appealable).
B. Order Compelling Discovery
On appeal, Defendant contends that the trial court erred by compelling her to produce the requested information on the grounds that this information is "protected by [N.C. Gen. Stat.] § 8-53," which codifies the physician-patient privilege, and, thus, is not "discoverable." Ordinarily, the extent to which a "party's motion to compel discovery should be granted or denied is within the trial court's sound discretion and will not be reversed absent an abuse of discretion." Wagoner v. Elkin City Schools Bd. of Education, 113 N.C. App. 579, 585, 440 S.E.2d 119, 123, disc. review denied, 336 N.C. 615, 447 S.E.2d 414 (1994). To the extent that a challenged order rests upon the application or construction of a privilege, however, an appellate attack upon that aspect of the trial court's ruling presents a question of law subject to de novo review. Bryson v. Haywood Regional Medical Center, ___ N.C. App. ___, ___, 694 S.E.2d 416, 419 (reviewing a challenged order addressing the extent to which certain materials were protected by a statutory privilege on a de novo basis), disc. review denied, 364 N.C. 602, 703 S.E.2d 158 (2010); see e.g., Baker v. Oakwood Hosp. Corp., 239 Mich. App. 461, 468, 608 N.W.2d 823, 827 (2000) (stating that "[t] he applicability of the physician-patient privilege is a legal question that this Court reviews de novo" ); Ward v. Summa Health Sys., 128 Ohio St. 3d 212, 215, 943 N.E.2d 514, 518 (Ohio 2010) (stating that, while "a discovery dispute is [ordinarily] reviewed under an abuse-of-discretion standard," "if the discovery issue involves an alleged privilege, . . . it is a question of law that must be reviewed de novo." (internal citations omitted)).
N.C. Gen. Stat. § 1A-1, Rule 26, provides, in pertinent part, that "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action[.]" N.C. R. Civ. P. 26(b)(1). As a result, "[a]ny unprivileged matter that is relevant is . . . discoverable." Mims, 157 N.C. App. at 342, 578 S.E.2d at 609. If, on the other hand, "the matter of which discovery is sought is privileged, it is not discoverable, even if relevant, 'unless the interests of justice outweigh the protected privilege.'" Id. (quoting Shellhorn v. Brad Ragan, Inc., 38 N.C. App. 310, 314, 248 S.E.2d 103, 106, disc. review denied, 295 N.C. 735, 249 S.E.2d 804 (1978)).
N.C. Gen. Stat. § 8-53, which establishes "a privilege for confidential communications between patients and their physicians," Midkiff, ___ N.C. App. at ___, 693 S.E.2d at 175, provides, in relevant part, that:
No person, duly authorized to practice physic or surgery, shall be required to disclose any information which he may have acquired in attending a patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon. . . . Confidential information obtained in medical records shall be furnished only on the authorization of the patient, or if deceased, the executor, administrator, or, in the case of unadministered estates, the next of kin. . . .N.C. Gen. Stat. § 8-53. The purpose of the physician-patient privilege is "to induce the patient to make full disclosure that proper treatment may be given, to prevent public disclosure of socially stigmatized diseases, and in some instances to protect patients from self-incrimination." Sims v. Insurance Co., 257 N.C. 32, 36, 125 S.E.2d 326, 329 (1962). "The privilege 'extends, not only to information orally communicated by the patient, but to knowledge obtained by the physician or surgeon through his [or her] own observation or examination while attending the patient in a professional capacity, and which was necessary to enable him [or her] to prescribe.'" Spangler v. Olchowski, 187 N.C. App. 684, 691, 654 S.E.2d 507, 513 (2007) (quoting Smith v. Lumber Company, 147 N.C. 62, 64, 60 S.E. 717, 718 (1908)). Thus, "[m]edical records are covered by the statute to the extent that the records contain entries made by physicians and surgeons, or [those] under their direction, that include information and communications obtained by the doctor for the purpose of providing care to the patient." Roadway Express, 178 N.C. App. at 170, 631 S.E.2d at 45.
As the Supreme Court has explained, "the statutory privilege is not absolute, but is qualified[,]" Sims, 257 N.C. at 38, 125 S.E.2d at 331, so that privileged "information may be disclosed by order of the court if in the opinion of the trial judge disclosure is necessary to the proper administration of justice." State v. Drdak, 330 N.C. 587, 591-92, 411 S.E.2d 604, 607 (1992). Since N.C. Gen. Stat. § 8-53 "affords the trial judges wide discretion in determining what is necessary for a proper administration of justice," "[j]udges should not hesitate to require the disclosure where it "appears to them to be necessary in order that the truth be known and justice be done.'" State v. Efird, 309 N.C. 802, 806, 309 S.E.2d 228, 231 (1983) (quoting Sims, 257 N.C. at 39, 125 S.E.2d at 331).
According to Defendant, the trial court erred by ordering her to produce information concerning her brachial plexus neuropathy and related disability insurance application because: (1) the requested materials are covered by the physician-patient privilege; (2) she did not waive the physician-patient privilege with respect to these materials; and (3) the disclosure of these materials is not necessary for the proper administration of justice. As a result of the fact that there is no dispute concerning the extent to which the relevant materials come within the scope of the physician-patient privilege, the ultimate issue raised by Defendant's appeal is whether Defendant waived the protections of the physician-patient privilege and whether the trial court properly compelled disclosure.
The physician-patient privilege must be strictly construed, with the patient bearing the burden of establishing the existence of the privilege and objecting to the production of privileged evidence. Mims, 157 N.C. App. at 342, 578 S.E.2d at 609. As a result of the fact that the privilege belongs to the patient, its protections may be explicitly or implicitly waived by the patient during discovery or at trial. Midkiff, __ N.C. App. at ___, 693 S.E.2d at 175; Adams v. Lovette, 105 N.C. App. 23, 28-29, 411 S.E.2d 620, 624, aff'd, 332 N.C. 659, 422 S.E.2d 575 (1992). The extent to which an individual has waived the protections of the physician-patient privilege hinges "largely [on] the facts and circumstances of the particular case[.]" Capps v. Lynch, 253 N.C. 18, 23, 116 S.E.2d 137, 141 (1960).
In his brief, Plaintiff contends that Defendant "failed to assert a physician-patient privilege as to the [materials relating to her application for disability insurance] as demonstrated by her counsel's concession in his affidavit that the information contained therein is merely 'confidential.'" Although Plaintiff is correct in noting that " a failure to object to requested disclosure of privileged information constitutes a waiver of that privilege," In re K.D., 178 N.C. App. 322, 326, 631 S.E.2d 150, 153 (2006), the affidavit submitted by Defendant's counsel explicitly asserts the physician-patient privilege by stating that:
In connection with our defense of [Defendant], I have reviewed certain documents which she has submitted to UNUM, a disability insurance carrier, in connection with her application for disability insurance payments on and after August 17, 2005. Said documents include medical records of [Defendant], and other confidential health care informationWe read this affidavit as an unequivocal assertion of the protections of the physician-patient privilege with respect to the materials associated with Defendant's application for disability insurance benefits and an objection to their production on privilege-related grounds.
concerning [Defendant]. Said medical records and confidential health care information are protected from disclosure by the physician/patient privilege contained in N.C. [Gen. Stat. §] 8-53.
In addition, Plaintiff argues that Defendant "surrendered her physician-patient privilege" concerning the medical records relating to her brachial plexus neuropathy by "voluntarily providing details about her medical condition and disability at her deposition and in her written discovery responses." As the Supreme Court noted in Capps, 253 N.C. at 23, 116 S.E.2d at 141, "[a] patient may surrender his [or her] privilege . . . by testifying to the nature and extent of his [or her] injuries and the examination and treatment by the physician or surgeon." The Supreme Court did, however, caution that:
"one does not, by voluntarily testifying as to his [or her] own physical condition or to his [or her] injuries or his [or her] ailment, without going into detail and without referring to communications made to his [or her] physician, waive the privilege of the statute in favor of communications between physician and patient." . . . . " [W]here the patient voluntarily goes intoId. at 23, 116 S.E.2d at 141-42 (internal citations omitted).
detail regarding the nature of his [or her] injuries and either testifies to what the physician did or said while in attendance, or relates what he [or she] communicated to the physician, the privilege is waived, and the adverse party may examine the physician."
Plaintiff has not identified the "written discovery responses" in which he claims Defendant waived the physician-patient privilege. According to the record, the only discovery responses that the trial court reviewed in ruling on Plaintiff's motion to compel were those "attached" to his motion, in which Defendant "object[ed]" to the production of her disability application and the medical records regarding her brachial plexus neuropathy on the grounds that these documents were "protected by the [physician-patient] privilege." We are unable to understand how these responses can be understood as embodying a waiver of the physician-patient privilege on the part of Defendant.
Although the parties addressed the issue of whether Defendant's deposition testimony amounted to a waiver of the physician-patient privilege at the hearing held with respect to Plaintiff's motion to compel, the record does not indicate that the trial court considered Defendant's deposition in deciding the issues raised by Plaintiff's motion to compel. Instead, the record shows that the trial court only had access to Plaintiff's motion to compel, Plaintiff's discovery requests, Defendant's objections to the production of the requested materials in reliance on the physician-patient privilege, and the requested documents themselves at the time that it considered and ruled upon Plaintiff's motion to compel. As Defendant's deposition does not appear to have been contained in the record considered by the trial court, it could not have been the basis for any decision that Defendant waived her rights to assert the physician-patient privilege and cannot be a basis for any finding of waiver on appeal.
Having concluded that the record does not show that Defendant waived the physician-patient privilege, we must now address the issue of whether the trial court properly exercised its discretion in ordering production of the privileged materials. As was appropriate, the trial court proceeded cautiously and methodically in determining that Defendant should produce the requested materials. In its 5 March 2010 order directing the production of the relevant materials for in camera review, the trial court carefully defined the scope of production by requesting only "1) a copy of Defendant's [UNUM] application for disability related to her brachial plexus injury and 2) a copy of Defendant's medical records from August 17, 2005 to the present related to her brachial plexus injury." Only after reviewing the documents in chambers and hearing the arguments by counsel on 22 March 2010 did the trial court determine that "the Documents should be produced." The trial court carefully limited the availability of the requested documents by ordering that they "remain sealed with the Court," that they "only . . . be disclosed to Plaintiff's counsel," and that they were "not to be disclosed by Plaintiff's counsel without further order of this Court[.]" See Roadway Express, 178 N.C. App. at 170-71, 631 S.E.2d at 45-46 (expressing approval of the trial court's "methodical[]" process of requesting only the medical records at issue between the parties, reviewing the requested documents in camera, and limiting scope of disclosure upon ordering production).
Even so, Defendant contends that, after reviewing the relevant documents in camera, the trial court should have concluded that they were "not relevant to the medical care that [Defendant] rendered to Ms. Nicholson on 28 June 2005" on the grounds that "an injury suffered by [Defendant] in August 2005, more than a month after Ms. Nicholson's surgery, would not have any relation whatsoever to [Defendant's] performance of the surgery[.]" "The test of relevance for discovery purposes only requires that information be 'reasonably calculated to lead to the discovery of admissible evidence[.]'" Lowd v. Reynolds, ___ N.C. App. ___, ___, 695 S.E.2d 479, 483 (quoting N.C. R. Civ. P. 26(b)(1)), disc. review denied, 364 N.C. 605, 703 S.E.2d 448 (2010). A trial court's determination regarding relevancy for discovery-related purposes is only subject to reversal on appeal in the event of an abuse of discretion. Adams, 105 N.C. App. at 29, 411 S.E.2d at 624.
Plaintiff alleged in his complaint that Defendant " failed to exercise her best judgment" and "failed to exercise reasonable care in her medical management and care" of Mrs. Nicholson. In her answer, Defendant responded that "her conduct was at all times in accordance with the applicable standards of care and that no act or alleged omission by her was the proximate cause of any harm or injury to [Ms.] Nicholson[.]" Plaintiff and Defendant agree that, in her deposition, Defendant disclosed that she had sustained a left brachial plexus injury sometime around 17 August 2005 and that she subsequently requested to receive disability benefits from her insurance carrier. Plaintiff requested to be provided with Defendant's medical and disability insurance records in response to these disclosures. After carefully reviewing the materials provided to the trial court in camera for the purpose of evaluating their relevance to Plaintiff's claims, we are unable to conclude that the trial court abused its discretion by ordering that these materials be disclosed because, as Plaintiff points out in his brief, "[w]ithout the requested information, [he] [would be] unable to ascertain when Defendant suffered her injury, whether she was experiencing symptoms at the time she operated on [Ms.] Nicholson, or any other relevant details concerning Defendant's condition at the time that she, in her judgment, chose to operate on [Ms.] Nicholson." See Lowd, ___ N.C. App. at ___, 695 S.E.2d at 483 (concluding that "the discovery of plaintiff's past medical history [wa]s relevant" because "[t]he information sought may assist in determining, inter alia, whether the accident in question was a proximate cause of plaintiff's injury or whether plaintiff's injuries are the result of a preexisting condition").
In reliance on Mims, Defendant further argues that "the disclosure of [her] confidential and personal medical records is not necessary to the proper administration of justice[.]" In Mims, 157 N.C. App. at 344, 578 S.E.2d at 610, this Court held that "the trial court abused its discretion in compelling discovery of defendant's medical records" given the circumstances at issue there because the record was "devoid" of any evidence tending to show that the records at issue in that case "might [have] le[d] to a justifiable conclusion that the interests of justice outweighed the protected privilege." Here, however, Plaintiff sought production of the requested documents in order to "find out," as his counsel put it, whether, "with such a close proximity between [Ms. Nicholson's] surgery and [Defendant's] . . . sudden permanent and total disability, . . . she should have even been operating to begin with." After examining the records in question, we are unable to say, as we have already noted, that the information contained in these records would not shed any light on the validity of Plaintiff's actual or potential claims. As a result, the record contains evidence that tends to justify production of Defendant's application for disability benefits and the medical records relating to Defendant's brachial plexus neuropathy as requested by Plaintiff. See Roadway Express, 178 N.C. App. at 171, 631 S.E.2d at 46 (concluding that "there [wa]s evidence in the record that may justify the disclosure of Defendant's medical records in the interest of justice" where plaintiff contended that "Defendant's physical or medical condition contributed to the accident" and the defendant "asserted the sudden emergency doctrine as an affirmative defense to Plaintiff's claims, which place[d] his medical condition at the time of the accident into question").
The decision as to whether disclosure of information protected by the physician-patient privilege is required to serve the proper administration of justice is "one made in the discretion of the trial judge, and the [appellant] must show an abuse of discretion in order to successfully challenge the ruling." Drdak, 330 N.C. at 592, 411 S.E.2d at 607. Although the trial court did not make a specific finding in its order to the effect that disclosure of Defendant's medical records was necessary to the proper administration of justice, the Supreme Court and this Court have inferred that such a finding had been made from the entry of an order requiring the production of the relevant materials. See State v. Smith, 347 N.C. 453, 461, 496 S.E.2d 357, 362 (stating that "Defendant does not argue that the trial court abused its discretion in ordering the medical records disclosed but rather that it failed to specifically find that disclosure was necessary to a proper administration of justice. N.C. [Gen. Stat.] § 8-53 does not require such an explicit finding. The finding is implicit in the admission of the evidence."), cert. denied, 525 U.S. 845, 142 L. Ed. 2d 91, 119 S. Ct. 113 (1998); Mims, 157 N.C. App. at 344, 578 S.E.2d at 610 ("[a]ssuming" on appeal that "no such finding was required" by N.C. Gen. Stat. § 8-53). In view of the potential relevance of the information contained in the disputed records, we are unable to conclude that the trial court abused its discretion by ordering Defendant to produce the requested materials in the interest of justice.
III. Conclusion
Thus, for the reasons set forth above, we conclude that the trial court did not make any error of law in ordering Defendant to provide materials concerning Defendant's brachial plexus neuropathy and her application for disability insurance benefits. As a result, the trial court's order should be, and hereby is, affirmed.
AFFIRMED.
Judges CALABRIA and THIGPEN concur.
Report per Rule 30(e).