This decision does not preclude Sowell’s treating physicians from testifying. Each of
Sowell’s treating physicians may testify as to the nature and extent of the injury they observed and
the treatment that was rendered for the injury. However, those witnesses may not testify as to the
causation of the injury, prognosis, degree of permanency, or Sowell’s ability to return to his former
occupation because those opinions go beyond personal observations and treatment. Those opinions
cross the line into testimony of a witness who is required to be disclosed and provide an expert report
pursuant to Rule 26(a)(2)(B). Because Drs, Martin R. Hall, Carlito Orig, F. Mansour, Greg Hawley,

and David Smith have not provided a report, they may not testify as to any such opinions.”

CONCLUSION
For the foregoing reasons, Defendant’s Motion to Strike Sowell’s Expert Disclosures of Drs.
Martin Hall, David Smith, and Drs. Carlito Orig, F. Mansour, and Greg Hawley of the Clearing

Clinic is granted as set out herein.

IT IS SO ORDERED. ,

Geraldine Soat Brown
United States Magistrate Judge

December 6, 2004

? Federal Rule of Civil Procedure 37(c)(1) provides that “[a] party that without
substantial justification fails to disclose information required by Rule 26(a) . . . is not, unless
such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any
witness or information not so disclosed.” Fed. R. Civ. P. 37(c)(1).

13



26(a)(2)(B). (Def.’s Mot. at 1.) While acknowledging that those doctors should be able to testify
as to the nature and extent of Sowell’s injury that they observed and the treatment they rendered even
without a report, Defendant seeks an order striking Sowell’s disclosure of Drs. Hall, Smith, Orig,
Mansour, and Hawley insofar as they would testify to causation, prognosis, degree of permanency,
and whether Sowell is disabled from returning to his former work. (/d. at 1, 2.) In response, Sowell
does not dispute that he was informed of the Standing Order and does not deny that his disclosures
do not conform with that Order. Instead, Sowell takes issue with the Order, urging this court to
“disavow” what he calls the “minority view” that a treating physician may not opine on causation,
prognosis, and the future impact of the injury without a Rule 26 report, and arguing that this court’s
Standing Order as to expert disclosures and discovery does not comport with Rule 83 of the Federal
Rules of Civil Procedure. (Pl.’s Resp. at 3, 5-7.) [Dkt 34.]

After carefully considering the parties’ arguments, the court rejects Sowell’s invitation to

“disavow” its Standing Order.

ANALYSIS
The purpose of Rule 26(a)(2) disclosures has been described by the Seventh Circuit:
The expert witness discovery rules are designed to aid the court in its fact-finding
mission by allowing both sides to prepare their cases adequately and efficiently and
to prevent the tactic of surprise from affecting the outcome of the case.
Sherrod yv. Lingle, 223 F.3d 605, 613 (7" Cir. 2000).
In Musser v. Gentiva Health Servs., 356 F.3d 751 (7" Cir. 2004), the Seventh Circuit

eliminated any doubtas to whether testimony by a treating physician is subject to disclosure pursuant

to Rule 26(a)(2). The Seventh Circuit affirmed summary judgment for a defendant following the



The Zarecki case illustrates the problem. In that case, the plaintiff was a sales agent for
Amtrak who claimed that her carpel tunnel syndrome was the result of her being required to perform
her job under improper work methods and with unsafe equipment. 914 F. Supp at 1569. To carry
her burden of responding to the defendant’s motion for summary judgment, the plaintiff relied on
an affidavit of her treating physician stating that plaintiff’s carpel tunnel syndrome was “caused by
her work duties” and foreseeable from the nature of her work duties. /d. at 1570. In striking the
affidavit and granting summary judgment for the defendant, the court observed:

Plainly, Dr. Farrell’s opinions as to ultimate causation and foresceability are not

derived solely from his treatment of Zarecki or his personal observations—there is, for

instance no suggestion in the record that he ever actually investigated the specific

nature of Zarecki’s work conditions; instead, he is purporting to speak as an expert

on these issues based on some unspecified body of professional knowledge.

Id. at 1573.

Likewise, in the present case, Sowell intends to have one of his treating physicians, Dr.
Smith, testify that “the accident of June 24, 2001 was a cause of injury and permanent disability to
Plaintiff’ and that “Sowell is limited to work similar to engineer work and should not return to work
as a conductor.” (P1.’s Rule 26 Disclosures at 2.) That disclosure gives no clue as to how Dr. Smith
learned of the accident, let alone why he concludes that the accident, as opposed to any other
condition or event in Sowell’s life, was the (or a) cause of injury and permanent disability. Likewise,
the disclosure reveals nothing about how Dr. Smith knows what is required of a railroad engineer
or conductor, or how Dr. Smith is qualified to come to the conclusion that Sowell cannot be a

conductor but can perform work “similar to engineer work.” Knowledge of the duties of a railroad

engineer or conductor is not part of ordinary medical training.



observations made during the course of treating the plaintiff and to matters within his personal
knowledge); Murray v. Chicago Transit Auth., No. 97 C 7923, 1999 WL 49355 at *1 (N.D. Ill. Jan.
29, 1999) (Levin, M.J.) (testimony ofa treating physician as to causation requires a Rule 26(a)(2)(B)
expert report); Schoolman v. UARCO, Inc., No. 94 C 5598, 1999 WL 47124 at *3 (N.D. Ill. Jan. 20,
1999) (Coar, J.) (testimony of treating physician who did not submit an expert report limited to the
physical condition of the plaintiff as observed by the physician). See also Hoover v. U.S., No. 01
C2372, 2002 WL 1949734 at *6-7 (N.D. Ill. Aug. 22, 2002) (Schenkier, M.J.) (stating, in dicta, that
the report requirement does not apply to a physician testifying solely as a treater, but when physician
is asked to give an opinion beyond treatment relationship, physician may be required to submit an
expert report); Garza v. Abbott Labs., No. 95 C 3560, 1996 WL 494266 at *1 (N.D. Ill. Aug. 27,
1996) (Castillo, J.) (treating physician does not need to submit a report if testimony is within his
personal knowledge).

On the other hand, some courts have allowed treating physicians to testify about causation
and other opinions formulated during the course of treatment without a Rule 26(a)(2)(B) report. See,
e.g., Martin v. CSX Transp., Inc., 215 F.R.D. 554, 557, 557 n. 3 (S.D. Ind. 2003) (permitting treating
physician’s opinions regarding causation and prognosis developed during the ordinary course of an
examination, but stating that “[t]he safest .. . approach for counsel seeking to elicit trial testimony
from a treating physician that strays from the core of that treatment is to produce an expert report”);
Denson v. Northeast Ill. Regl. Commuter R.R. Corp., No. 00 C 2984, 2003 WL 1732984 at *1 (N.D.
Ill. March 31, 2003) (Hart, J.) (treating physicians not retained or specially employed to testify are
exempt from the Rule 26(a)(2)(B) report requirement); McCloughan y. City of Springfield, 208

F.R.D. 236, 242 (C.D. Ill. 2002) (treating physicians may offer opinion testimony on causation,


district court’s decision to exclude expert testimony by the plaintiff's treating physician because the
plaintiffs counsel failed to serve a Rule 26(a)(2) disclosure regarding that physician. Id. at 754, 757.
Ina footnote, the Seventh Circuit distinguished a previous decision, Richardson v. Consolidated Rail
Corp., 17 F.3d 213 (7" Cir. 1994), as based on an earlier version of Rule 26. /d. at 756 n. 2.

However, as Sowell points out, the court declined to “reach the disputed issue of whether an
individual who serves in the capacity of ‘treating physician’ (or any analogous position) may
nonetheless be required to submit a report under Rule 26(a)(2)(B).” Jd. at 758 n. 3. The Seventh
Circuit observed that “[i]t is clear that there is some expert testimony in the nature of the treating
physician’s testimony that does not require a report. But some district courts have suggested that
if the Rule 26(a)(2)(A) testimony exceeds the scope of treatment and ventures into more general
expert opinion testimony, a report may be necessary.” Jd. However, the court concluded that it was
not necessary to reach that issue in the Musser case. Id.

As the Seventh Circuit observed in Musser, there is a difference of opinion among the district
courts as to whether a treating physician must provide a Rule 26(a)(2)(B) report when the physician’s
anticipated testimony goes beyond his or her observations, diagnosis or treatment and is expected
to include opinions on issues such as causation, prognosis and permanency. Some courts, including
this court, have held that those issues go beyond the scope of the testimony a treating physician may
render without providing a Rule 26(a)(2)(B) report. See, e.g., Zarecki v. National R.R. Passenger
Corp., 914 F. Supp. 1566, 1573 (N.D. Ill. 1996) (striking treating physician’s affidavit with opinions
on causation and foreseeability where physician was not disclosed pursuant to Rule 26(a)(2) and
failed to serve report); Rebolledo v. Herr-Voss Corp., 101 F. Supp. 2d 1034, 1039 (N.D. Ill. 2000)

(testimony of treating physician who did not prepare a Rule 26(a)(2)(B) report limited to



medical training, even if that testimony is about treatment of the plaintiff, is Rule 702 testimony and
is subject to Rule 26(a)(2) disclosure.

A number of cases do not require a report on the ground that the physician is testifying based
on his personal knowledge and observation. See, e.g., Sircher,1999 WL 569568 at *2. However,
unless the physician was present at the time the injury occurred, it is difficult to see how his or her
opinion as to the cause of the injury can be based on personal knowledge.

Some decisions that do not require a report regarding proposed testimony about causation
conclude that “[i]t is within the normal range of duties for a health care provider to develop opinions
regarding causation and prognosis during the ordinary course of an examination.” Martin, 215
F.R.D. at 557. See also Zurba, 202 F.R.D. at 592. In the view of this court, that conclusion fails
to consider the difference between an entry on a medical record as to the reported cause of an injury
(often based on the plaintiff's self-reporting) and testimony about causation for the purpose of
allocating legal liability for an injury. The plaintiffcame to the treating physician for treatment. Any
notes or conclusions made during treatment regarding causation are incidental to that treatment. In
contrast, in a lawsuit, the issue of causation is often a major, if not the major, contested issue in the
case, and one on which the plaintiff has the burden of proof. Presumably, the reason why the
plaintiff seeks testimony ftom the treating physician on causation is because causation will be
disputed. Requiring a treating physician to provide a report meeting the requirements of Rule
26(a)(2)(B) to explicate the reasons and bases for any opinion as to causation, as well as the
physician’s qualifications to render that opinion, is consistent with the importance of the issue of

causation in determining liability.



Minute Order Form (06/97)

United States District Court, Northern District of Iinois

Name of Assigned Jud; i Sitting Judge if Oth
vor Magistrate Judge Geraldine Soat Brown than Assigned Judge
CASE NUMBER 03 C 3923 DATE 12/6/2004
CASE Gerald Sowell vs. Burlington Northern & Santa Fe Railway Co.
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

cen)

MOTION:

DOCKET ENTRY:

(ql) go Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) oO Answer brief to motiondue___. Reply to answer brief due.

(4) a Ruling/Hearingon__——ssetfor_ at

(5) a Status hearing[held/continued to] [set for/re-set for]on___setfor___at

(6) o Pretrial conference[held/continued to] [set for/re-set for]on__—setfor__—at__—

(7) oO Trial{set for/re-set for] on__at

(8) Oo (Bench/Jury trial] [Hearing] held/continued toa

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) OLocal Rule 41.1 CHFRCP41(a)(1) 1 FRCP41(a)(2).

(oc) «of [Other docket entry] _ For the reasons set out in the attached Memorandum Opinion and Order,

Defendant’s Motion to Strike Plaintiffs Expert Disclosures of Drs. Martin Hall, David Smith, and Drs.
Carlito Orig, F. Mansour, and Grey Hawley of the Clearing Clinic [32-1] is granted. Enter Memorandum

Opinion and Order. burstdene how Z,

[For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form. PHA dete
Copy to judge/magistrate judge.

GR

courtroom
deputy’s
initials

Date/time received-in
central Clerk's Office mailing deputy initials



Defendant’s counsel sufficient information about the basis for the causation opinion to consider
foregoing a deposition.

Sowell argues (without any affidavit or other evidentiary support) that requiring him to
submit reports for his treating physicians will limit access to the federal courts to litigants who are
able to afford medical expert witnesses because “treating physicians will not prepare Rule 26 reports
and cannot, because treating physicians do not maintain the data required, especially deposition and
trial testimony histories.” (Pl.’s Resp. at 3-4.) Notably, Sowell has not presented any factual
material to demonstrate that not a single one of his five treating physicians is able or willing to
provide the information required by a Rule 26(a)(2)(B) report.

A federal judge has responsibility as a “gatekeep[er]” to prevent unfounded opinions from
being presented to the trier of fact in the guise of “expert” testimony. Daubert v. Merrell Dow
Pharm., Inc. 509 U.S. 579, 589, 589 n. 7, 597 (1993). The parties have the obligation to provide the
court with the information that is needed to fulfill that role. The court must have serious reservations
about allowing a witness who is unable or unwilling to provide the information required by Rule
26(a)(2)(B) to testify to opinions on issues as important as whether the plaintiff's injury was caused
by the accident or whether the plaintiff will ever be able to return to work.

A number of courts do not require a Rule 26(a)(2)(B) report because a treating physician is
not retained or specially employed to provide expert testimony in the case. See, e.g., Denson, 2003
WL 1732984 at *1; Zurba, 202 F.R.D. at 592; Figueroa, 2000 WL 520926 at *4; Martin, 215 F.R.D.
at 557. As discussed above, the reason a plaintiff sees a treating professional is for diagnosis and
treatment, and, under this court’s Standing Order, when a treating physician’s testimony is limited

to the physician’s observations, diagnosis and treatment of a party, no report is required. However,

1



One of the reasons why Rule 26(a)(2)(B) was amended to require a detailed report was
dissatisfaction with “sketchy and vague” expert disclosures, like the ones served by Sowell:

The information disclosed under the former rule in answering interrogatories about

the “substance” of expert testimony was frequently so sketchy and vague that it rarely

dispensed with the need to depose the expert and often was even of little help in

preparing for a deposition of the witness.
Advisory Committee Notes, 1993 Amendments to Rule 26(a)(2). That comment describes Sowell’s
disclosures. For example, Sowell’s disclosure with respect to Drs. Orig, Mansour, and Hawley
consists of one sentence: “These doctors are expected to testify that Plaintiff sustained an injury to
his knee caused by a work accident that occurred on June 24, 2001.” (PI.’s Rule 26 Disclosures at
2)

Another purpose of the report requirement is to minimize the need for expert depositions,
especially in light of the fact that, pursuant to Rule 26(b)(4)(C), the party taking the expert’s
deposition must usually pay a reasonable fee for the expert’s time:

Since depositions of experts required to prepare a written report may be taken only

after the report has been served, the length of the deposition of such experts should

be reduced, and in many cases the report may eliminate the need for a deposition.
Advisory Committee Notes, 1993 Amendments to Rule 26(a)(2). In this case Sowell has identified
five treating physicians to testify as to causation. At the hearing on this motion, Defendant’s counsel
stated that if the testimony of Sowell’s treating physicians is limited their personal observations and
treatment of Sowell, a deposition will be unnecessary (presumably because that testimony can be

cross-examined based on the treatment records). However, if those physicians are allowed to opine

as to causation, Defendant will need to take their depositions. The present disclosures do not allow

10



diagnosis, and prognosis without the prerequisite of providing a Rule 26(a)(2)(B) report); Zurba v.
U.S., 202 F.R.D. 590, 592 (N.D. Ill. 2001) (stating that “it is only when the treating physician gives
opinions beyond the scope of his own observation and treatment that he is considered a ‘retained’
expert for purposes of Rule 26(a)(2),” and disagreeing that an opinion on causation is necessarily
outside the scope of treatment); Sircher v. City of Chicago, No. 97 C 6694, 1999 WL 569568 at *1-2
(N.D. Ill. July 28, 1999) (Shadur, J.) (denying the defendant’s motion to bar treating physician from
testifying about causation where physician failed to submit a Rule 26(a)(2)(B) report, because the
witness’ testimony “will come from his knowledge acquired as a treating physician”); see also
Figueroa y. City of Chicago, No. 97 C 8861, 2000 WL 520926 at *4 (N.D. Ill. April 24, 2000)
(Conlon, J.) (quoting Richardson, 17 F.3d at 218, that “[a] doctor is not an ‘expert’ if his or her
testimony is ‘based on . . . observations during the course of treating”).

This court concludes that the requirement of a report for opinions on causation, permanency
and prognosis is the better approach.

Asathreshold matter, decisions like Figueroa, stating that a treating physician is not required
to render a report because the treating physician is not rendering “expert” testimony, are questionable
in light of the current versions of Federal Rules of Evidence 701 and 702. Rule 701 was amended,
effective December 1, 2000, to emphasize that lay opinion testimony is limited to those observations
of a lay witness that are “not based on scientific, technical, or other specialized knowledge within
the scope of Rule 702.” Fed. R. Evid. 701; Advisory Committee Notes, 2000 Amendments to Rule
701. As discussed above, the Seventh Circuit in Musser expressly disclaimed the suggestion in
Richardson that treating physicians are not experts and not subject to disclosure under Rule 26(a)(2).

356 F.3d at 756 n. 2. Thus, it is now clear that any testimony by a physician based on his or her



witness. (Def.’s Mot. Ex. B, Tr. May 26, 2004 at 24.) Sowell’s counsel further stated that Dr.
Martin R. Hall and Dr. David Smith would be disclosed “just as treaters explaining what [they] did.”
(d.) At that time, the court cautioned that a disclosure must be served with respect to a treating
physician, and that Sowell must serve a Rule 26(a)(2)(B) report if the physician would render any
opinion outside of what the medical records revealed and his treatment of Sowell. (dd. at 10, 13.)
The court also cautioned Sowell about the Standing Order that a treating physician cannot testify
about causation without serving a Rule 26(a)(2)(B) report. (/d. at 13.)

Sowell subsequently served his Rule 26 Disclosures on Defendant’s counsel. (Def.’s Mot.
Ex. A, PI.’s Rule 26 Disclosures.) Sowell listed Drs. Martin R. Hall, Carlito Orig, F. Mansour, Greg
Hawley, and David Smith as “Rule 26(a)(2)(A) non-retained opinion witnesses,” and listed Dr.
Dennis Gates as a “Rule 26(a)(2)(B) Retained Opinion Witness[].” (/d. at 1-3.) In the disclosure,
Sowell stated that Dr. Hall is expected to testify consistent with his medical records and offer the
opinion that the damage to Sowell’s knee was caused by a work injury on June 24, 2001, (Id. at 1.)
Sowell disclosed that Drs. Orig, Mansour, and Hawley are expected to testify that Sowell sustained
an injury to his knee caused by a work accident on June 24, 2001. (Id. at 2.) Sowell also disclosed
that Dr. Smith is expected to testify that the care and treatment he rendered to Sowell was for an
injury that occurred on June 24, 2001 while working at the railroad and that the June 24, 2001
accident was a cause of Sowell’s injury and permanent disability. (Id.) Sowell did not provide a
report pursuant to Rule 26(a)(2)(B) for Drs. Hall, Orig, Mansour, Hawley or Smith.

Defendant subsequently filed the present motion, arguing that Sowell’s disclosure that Drs.
Hall, Smith, Orig, Mansour, and Hawley will offer opinions regarding a causal connection between

Sowell’s condition and the incident at issue triggers the requirement of a report pursuant to Rule



provide a written report setting forth, inter alia, the opinions to be offered and the basis therefor.

Fed. R. Civ. P. 26(a)(2)(B).!
This court maintains a Standing Order regarding the disclosure of testimony by treating
physicians, which provides in relevant part:
Treating physician must be identified pursuant to Rule 26(a)(2)(A) but the report
requirement of Rule 26(a)(2)(B) shall not apply to the extent that the testimony of
such treating physician is limited to: (a) a description of the symptoms presented to

the physician; (b) description of records or other information relied on to provide
treatment; (c) any diagnosis made for purpose of treatment, and (d) a description of

any treatment prescribed or provided. Testimony by a treating physician as to
causation or prognosis or future impact of the condition or injury is subject to the
report requirement of Rule 26(a)(2)(B).
Standing Order as to Expert Disclosure and Discovery, http://www.ilnd.uscourts.gov/JUDGE/
BROWN/Expert.htm (last updated Dec. 2003). j
On May 26, 2004, plaintiff Gerald Sowell was ordered to serve his Rule26(a)(2) disclosures,
including Rule 26(a)(2)(B) reports, no later than August 13, 2004. [Dkt 29.] On that same day,

Sowell’s counsel stated in open court that he intended to call Dr. Dennis Gates as a Rule 26(a)(2)(B)

' Specifically, Rule 26(a)(2)(B) provides:

Except as otherwise stipulated or directed by the court, this disclosure shall, with
respect to a witness who is retained or specially employed to provide expert
testimony in the case or whose duties as an employee of the party regularly
involve giving expert testimony, be accompanied by a written report prepared and
signed by the witness. The report shall contain a complete statement of all
opinions to be expressed and the basis and reasons therefor; the data or other
information considered by the witness in forming the opinions; any exhibits to be
used as a summary of or support for the opinions; the qualifications of the
witness, including a list of all publications authored by the witness within the
preceding ten years; the compensation to be paid for the study and testimony; and
a listing of any other cases in which the witness has testified as an expert at trial or
by deposition within the preceding four years.

Fed. R. Civ. P. 26(a)(2)(B).



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION Ae CUETED
GERALD SOWELL ) DEC 0 7 2004
Plaintiff, ) No. 03 C3923
)
v. ) Magistrate Judge Geraldine Soat Brown
)
BURLINGTON NORTHERN AND )
SANTA FE RAILWAY CO. )
Defendant. )

MEMORANDUM OPINION AND ORDER

Before the court is Defendant’s Motion to Strike Plaintiffs Expert Disclosures of Drs. Martin
Hall, David Smith, and Drs. Carlito Orig, F. Mansour, and Grey Hawley of the Clearing Clinic
(“Defendant’s Motion”). [Dkt 32.] For the reasons set forth below, Defendant’s Motion is granted,

and certain parts of those disclosures are stricken.

BACKGROUND
Federal Rule of Civil Procedure 26(a)(2) requires parties to disclose, at a time set by the court
or in the alternative by the rule, the identity of any person who may be used at trial to present
testimony under Rules 702, 703 or 705 of the Federal Rules of Evidence. Fed. R. Civ. P.
26(a)(2)(A), (C). Subsection (a)(2)(B) of Rule 26 imposes an additional requirement relating to any

witness who is retained or specially employed to present expert testimony; such a witness must



when it is proposed that the physician render opinions at trial regarding issues such as causation and
ability to perform occupational duties, that physician is, in fact, being retained for the purpose of
providing expert testimony in the case.

Finally, Sowell’s argument that this court’s Standing Order regarding expert disclosure does
not comport with Federal Rule of Civil Procedure 83, which governs the local rules adopted by the
District Court, is without merit. Even assuming, arguendo, that Rule 26(a)(2)(B) does not generally
require a report from a treating physician, the Advisory Committee Notes to the 1993 Amendments
state: “By local rule, order, or written stipulation, the requirements ofa written report may be waived
for particular experts or imposed upon additional persons who will provide opinions under Rule
702.” Advisory Committee Notes, 1993 Amendments to Rule 26(a)(2).

Again assuming, arguendo, that Rule 83 were applicable here, Rule 83(a)(2) prohibits the
enforcement ofa local rule that causes a party to lose rights because of a nonwillful failure to comply
with the requirement. Fed. R. Civ. P. 83(a)(2). Sowell’s failure to comply cannot be said to be
nonwillful. Sowell’s counsel was cautioned both in open court and also through the Standing Order
about the necessity to provide a Rule 26(a)(2)(B) report in order to have a treating physician testify
regarding causation. Sowell simply chose not to comply.

In extraordinary circumstances, where requiring a report from a treating physician would
work undue hardship, a party can move for relief from the report requirement to prevent an unjust
result. Sowell did not so move, nor does his response to the present motion provide any factual or
evidentiary basis to justify exempting him from the requirements of the Standing Order. Thus,

Defendant’s motion is granted.

12