June 3, 2010

Why Don't They Just Overturn Miranda Already?

I've written in the past, here, and here, about how Miranda has been continually weakened over the past several decades until now it is merely a shell known best for its TV dramatization than for any actual legal protection. This week the Supreme Court might have shot it and left it for dead.

The case, Berghuis v. Thompkins, rises from Michigan. The Supreme Court ruled that a defendant has to actively invoke his right to remain silent. The defendant, Van Chester Thompkins, was read his rights and admits to understanding them. Thompkins remained silent while Michigan police interrogated him for Three Hours! Finally, one of the police asked, "Do you pray to God to forgive you for shooting that boy down?" to which Mr. Thompkins said, "yes." This one word statement after three hours of interrogation was used against Thompkins and upheld by the Supreme Court. (I will save my dismay about using God to create guilt during an interrogation for another blog post!)

The Court believes that a suspect can not merely remain silent (even if for three hours) in order to gain the protections of Miranda, he must actually say to the police, I am invoking my right to remain silent. The Supreme Court is now saying that any person brought in for questioning may be interrogated for hours unless he or she verbalizes their request for an attorney and their desire to remain silent. In other words, you have the right to remain silent but we are going to harass you until you finally say something and it will be used against you.

In the past, the police had to prove that a defendant waived his Miranda rights in order to admit a statement. This ruling gives them power to harass and interrogate endlessly without any question as to whether a defendant has actually waived his rights.

Honestly, there is very little protection left to Miranda. In fact, more defendants are probably confused by the law than are protected by it. This is a disturbing opinion by an increasingly conservative bench. Interestingly, Justice Sotomayor gave a vehement dissent while writing for the minority (in a 5-4 decision).

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May 31, 2010

Auto Accidents Involving Multiple Cars or Trucks

If you have been involved in an auto accident in Massachusetts or Rhode Island involving three or more cars or trucks it is important to contact an experienced auto accident attorney right away. For the most part, the process surrounding your personal injury claim will not be any different because multiple vehicles were involved. If you were not at fault, you can still collect money for your medical bills, lost wages, and pain and suffering. The liability decision, however, may be more difficult and will require thorough investigation on the part of your attorney.

Rhode Island maintains joint and several jurisdiction. What this means is that if you were in an accident with multiple vehicles and were not at fault you can go after either at-fault party or both. For example (hopefully an unlikely example), you driving "Car A" legally drive through a green light and "Car B" runs a red light striking you from the left and "Car C" runs a red light and strikes you from the right at the same time. Both cars B and C are at fault for your personal injuries. You have the option of going after Car B for 100% of your injury; or Car C for 100% of your injury; or go after each for 50%. This is extremely helpful if your injuries are severe and one of the drivers only has the state minimum of auto insurance. Also if Car C has a 300k policy and Car B has a 25k policy, then you can go after Car C for everything.

Unfortunately, unlike the above scenario, multiple vehicle accidents can be often difficult to determine fault. For this reason, you need to involve an experienced auto accident attorney from the onset to investigate liability by: looking for witnesses, taking pictures, hiring a reconstructionist (if necessary), examining the scene of the accident, etc.

An accident involving multiple cars and trucks also increases the risks of sustaining serious injuries. You may be struck two or more times and from different directions. This will cause your body to shift and jolt in many direction with tremendous force causing severe muscle strain. A more serious impact can also result in fractures, head injuries, and even death.

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May 27, 2010

Ever Asked, Can I Fire My Lawyer?

Almost every week I receive a phone call from a person who is unhappy with their personal injury attorney and want to know if they can fire their attorney. They also wonder what will happen if they fire their attorney. Here are some things to consider.

If you are involved in an auto accident, slip and fall, motorcycle accident, or any other personal injury case, you can fire your lawyer at ANY time. If your lawyer was working on a contingent fee (taking 33% of the settlement) he or she has a right to be paid for the work they have already completed prior to settlement. The attorney will probably place a lien on the file ensuring they are paid for the work they have done. Usually, this is no big deal. The next attorney will pay the old attorney's lien out of the fee received in the case. That means that you still only pay 33% of your settlement or jury verdict. Hiring a different attorney will almost always cost no additional money!

My Attorney Never Returns My Calls

The most common reason I hear is: My car accident attorney never returns my calls or tells me what is going on with my case. Recently, I heard from a woman who left messages for her attorney for 4 months without a phone call. He did not finally call her until she threatened to fire him and find another attorney. This is unacceptable. Your attorney is going to be paid very well for his efforts and the least he or she can do is return your phone call.

An Extreme Example

I recently took on a legal malpractice claim because the previous attorney failed to work the case and file a lawsuit within the statute of limitations. The client was seriously injured following a motorcycle accident, but now is in danger of receiving no money for his pain and suffering and lost wages. He called his attorney every month for three years and could never actually get his attorney on the phone. The secretary constantly told the client that the case was "under control" and being handled. Unfortunately, the client found out too late that his motorcycle claim was not "under control".

How I Choose To Do Business

This is not the way that I choose to do business. Not only do I handle all of my cases personally and answer all calls within 24 hours, my clients have my cell phone number! I am always available to my clients. I handle cases quickly and aggressively. If settlement is appropriate (sometimes a lawsuit is more appropriate), I will work fast to get a demand out soon after your medical treatment ends and begin working with the insurance company to obtain a great settlement.

The majority of my colleagues are talented attorneys who work very hard to obtain great results for their clients, and I am not advocating or recommending that you bounce from one attorney to another. What I am suggesting is: a) do your homework before hiring an attorney to see what type of reputation he or she has and whether there will be an open chain of communication; b) Consider hiring another attorney if your previous attorney never returns your calls or informs you of what is going on with your case.

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May 27, 2010

Another Chapter in the Rhode Island Lead Paint Lawsuits Ends

The story begins in the 30's and 40's. Despite the known harmful side effects of lead based paints, manufacturers continued to produce the product AND advertise that it was a safe kid friendly product. Finally, the truth came out and the United States banned lead based paint in 1978. The story is not unlike the litigation surrounding cigarettes and asbestos.

Paint manufacturers made billions and children across the country were placed at serious risk from lead based paint. In fact, many children today who live in pre-1978 housing remain at risk. Rhode Island was hit particularly hard and many children were poisoned. Our AG at the time, Sheldon Whitehouse, hired outside plaintiff counsel to sue the paint manufacturers to absorb the massive costs that lead based paint placed on the State due to increased health care costs and housing costs. The state won...billions!

The money was to be used to remove lead based paint from hundreds of thousands of Rhode Island homes. Despite this important ruling which sent a clear message to corporations placing profits before safety, the Rhode Island Supreme Court overturned the jury verdict.

The paint manufacturers, seemingly convinced of their own righteousness and believing the lawsuit to have been frivolous, sought to be reimbursed for all of their trial costs. Yesterday, Judge Silverstein ruled that the defendants were not entitled to defense costs because the case was neither frivolous nor in bad faith. Furthermore, forcing the state to pay the defense costs would deter the State from bringing future litigation intended to protect the public welfare.

May 24, 2010

Understanding Rhode Island's Pure Comparative Liability Laws

I'm gonna take everyone back to my first day at Boston College Law School and torts class because it is important to understand how a determination of fault will affect your ability to collect damages following an accident. These rules of comparative liability are most commonly used in auto accident cases but may also apply to slip and fall, construction accidents, motorcycle accidents, etc. Interestingly, Rhode Island and Massachusetts have very different laws in this regard.

This article is not concerned with rear-end accidents because in rear-end accidents the person in the back is 100% at fault with very few exceptions. This article is concerned with auto accidents at intersections, or in which one party is turning in front of the other. In these cases, one person might be the majority at fault but not 100% at fault for the accident.

For instance, Driver "A" is turning left out of a parking lot and does not see Driver "B" coming from the left. Driver "B" is speeding and strikes Driver "A" very hard. Driver "A" is the majority at fault because he was turning left and failed to yield the right of way to Driver "B". Driver "B", however, was speeding and caused a potentially minor accident to become a major accident.

In this above scenario (assuming you followed me) the insurance company, or jury, might find Driver "A" 80% at fault (for failing to yield the right of way) and Driver "B" 20% at fault for speeding. This is where comparative liability laws become important.

In Rhode Island, Driver "A", even though majority at fault, would still be able to collect 20% from Driver "B" for damages. This includes property damage to his vehicle and damages for personal injury. If the injury sustained is very serious, or fatal, 20% may still be a lot of money to help the injured person get back on their feet.

In Massachusetts, which adheres to a modified comparative negligence system, Driver "A" would not be able to collect anything. This is because, in Massachusetts, a driver who is majority at fault can not collect ANY damages. In Massachusetts, a driver must be 50% or less at fault in order to recover any damages.

It is also worth noting that these laws do not apply to passengers. Because passengers are not behind the wheel and do not contribute to accidents, they are not punished by the fact that "their driver" was at fault for the accident. Passengers can collect all of their damages from either at-fault driver.

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May 20, 2010

Dental Malpractice in Rhode Island and Massachusetts

If you have been injured by a dentist, you should be aware that dental malpractice is medical malpractice and will be treated in a very similar way. Much like doctors, we place our trust and oral health in the hands of dentists and they must exercise due care in treatment of patients. But problems may, and often do, occur. Some common examples of dental malpractice for which you might have a case include:

  • Unnecessary extraction of teeth
  • Extraction of the wrong tooth
  • wrongful death from a dental procedure
  • Nerve damage effecting the ability to taste or causing permanent numbness
  • Failure to detect periodontal disease or oral cancer
  • Dental product liability claim
  • Anesthesia injury or death
  • Treatment exceeding the scope of consent

As with medical malpractice, dental malpractice cases are difficult to prove and will most likely require litigation. However, if the injuries are severe and it appears that there may be liability it is absolutely worth speaking with an experienced personal injury attorney to discuss the merits of your case. If you have experienced any of the above injuries or other dental injury that caused serious injury or impairment in Rhode Island or Massachusetts, contact our office right away.

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May 17, 2010

Be Aware of Rhode Island's 60 Day Notice For Accidents Caused by the Negligence of City or Town

Rhode Island law requires that an injury caused by the negligence of a Town or City be reported to that Town or City within sixty (60) days of the accident, or the case will be dismissed. This is a topic that has been on my mind for the past week or so because I have a new client who broke her ankle on a Providence sidewalk and because the Rhode Island Supreme Court just discussed the law in a recent ruling.

The plaintiff in the recent Rhode Island Supreme Court Decision, Susan McNulty, had her case dismissed by summary judgment because she did not adequately notify the City of Providence of her fall. Ms. McNulty spoke with the City clerk but never actually notified the City in writing, as per the statute, and the City moved for Summary Judgment. Summary judgment was granted meaning that her case is dead and buried. The Supreme Court affirmed the granting of summary judgment.

Rhode Island General Laws 45-15-9 and 45-15-10 state that a person injured on a highway, causeway or bridge, must give notice to the Town or City obliged to keep the road or bridge in a safe condition, of any injury within sixty days of occurrence. The notice MUST be in writing and signed by the injured party (or his or her attorney) and indicate the time, location (with specificity), and manner of the injury that occurred on public property. Because Ms. McNulty only notified the City of Providence by phone, she was in violation of the Statute and lost her case.

The general public is unaware that this statute even exists and may falsely believe that they have three (3) years to bring a suit against a town or city because that is the statute of limitations. Unfortunately, this is a costly mistake. There are additional provisions in the statute as well which require a formal demand before the filing of a lawsuit, etc.

Regardless of the nature of the accident, whether slip and fall or auto accident, you must notify the city or town if they are a potential defendant. This is the law throughout Rhode Island. Therefore, if you were injured on public property, it is imperative that you speak to an experienced personal injury attorney right away so that you do not lose your rights to compensation. This is a legal minefield and not an area of law which you want to travel alone.

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May 14, 2010

Goodbye Law & Order

jack-mccoy-big.jpgIn sad news completely unrelated to the practice of law in Rhode Island and Massachusetts, NBC has announced that it will not renew Law & Order for another season. The show that taught millions of people about the basics of the criminal justice system and encouraged thousands of law students, such as myself, to aspire to be Jack McCoy, will no longer entertain us with its hour long formulaic "ripped from the headline" legal puzzles.

It is not all bad news I suppose... Law & Order will continue to live on during TNT's daily marathon and NBC has picked up another season of Special Victims Unit as well as announce another Law & Order spin-off.

May 12, 2010

Medication Errors are Common Causes of Nursing Home Injuries and Death

Among the leading causes of injuries and death in RI and Massachusetts nursing homes continues to be medication error.

Some of the most common medication errors that occur include:

Giving Patients the Incorrect Prescription

Simple inattention (i.e. giving medication to the wrong person or misreading a label), poor handwriting (i.e. giving an incorrect dosage because a number is illegible, or confusing two drugs with similar names), lack of communication (i.e. failure to inform the nursing staff of a change in prescription), and failure to take an adequate medical history (i.e. failing to learn about medical allergies) can all lead to a patient receiving the wrong drug or the wrong amount.

Failure to Recognize Adverse Side Effects

A patients entire history has to be considered before administering drugs. Many drugs have serious and potentially dangerous side effects which must be considered before prescribing any particular medication. Nurses and doctors must all keep a proper lookout for any adverse reaction to a particular drug. Many patients are unable to speak for themselves or communicate adverse effects of a drug. If a nursing home has a shortage of qualified nurses, adverse reactions may go unnoticed for a long period of time.

Adverse Drug Interactions

Primary care physicians and pharmacies will often keep an eye out for potential adverse drug interactions. Drug interactions can reduce the effectiveness of the drug or cause dangerous and unexpected side effects. A nursing home must take steps to avoid improper drug interactions. Failing to notice a dangerous combination of drugs can lead to serious and permanent injury.

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May 10, 2010

Auto Accidents with Trucks and Big Rigs

Among the most serious auto accidents that occur involve those between ordinary passenger vehicles and commercial trucks (tractor trailers). The size and weight disparity between vehicles means that even a relatively minor accident can result in serious personal injury. If you have been injured in an accident in Rhode Island or Massachusetts involving a tractor trailer or other commercial truck, it is imperative that you contact a truck accident attorney who understands the unique insurance and liability issues surrounding Truck Accidents.

Commercial truck drivers are well trained and require a special license in order to drive tractor trailers. Nevertheless, pressure to deliver products quickly and on-time often encourages truck drivers to take unnecessary and dangerous risks. For instance, a truck driver may use drugs ("uppers") or other artificial means to stay awake. They may sacrifice sleep in an effort to meet a deadline. This is in direct conflict with Federal law which limits the amount of hours that a commercial truck driver can be on the road per day.

Other common causes of Truck Accidents stem from the way in which the truck was loaded:


  • Driving with an unsecured load

  • Driving with a load that exceeds weight specifications

  • Improperly loaded trucks - an improperly loaded truck may inadequately distribute the weight in the truck bed making it even more difficult for the truck to stop quickly and maneuver

  • Of course, many truck accidents occur for the same reason that ordinary auto accidents occur, namely, driver inattention and error. Despite all the professional training, commercial truck drivers are human and can make mistakes as well. Such errors might include: speeding, improper lane changes, following too closely, etc.

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May 6, 2010

Bike Safety in an Evergrowing Bicycling Culture

I was driving home today and listening to the NPR discussion about bicycling culture and growing number of bicycles on the road. As expected, a large percentage of the discussion concerned bicycle safety and preventing bicycle accidents. The situation is particularly difficult in major cities like Providence or Boston where a large number of bicyclists commute to work and bike messengers are everywhere delivering packages.

As an avid bike rider myself, I know how dangerous city streets can be. I have had my fair share of falls and close calls. Fortunately, no accident has been serious, but I remain constantly defensive on the road. Drivers are not accustomed to looking out for bicyclists and we are often lost in blind spots or completely unseen. This creates an obviously precarious environment for bikers. One commentator on the NPR show also pointed out how some drivers, particularly teenagers, find it funny to beep or yell out of windows to try and startle bikers.

Of course, any bike accident is dangerous. An unprotected biker is likely to suffer fractures, brain injuries, and even death in an accident with a 2000 pound vehicle.

Many of those on the discussion panel also pointed out the need for bikers to adhere to rules of the road and take steps toward their own safety. Too many bikers tend to run stop signs or red lights, ignore yield signs, and assume that they are safe along the side of the road. To prevent injury on a bike, bicyclists must ride defensively and take every precaution. Adhere to traffic signals, wear protective gear, and never assume that a vehicle is aware of your presence.

The panels envision an increased use of bicycles for daily commute and exercise. In many European countries, in which gas prices have topped 5 or 6 dollars a gallon for years, bicyclists are absolutely everywhere. I expect that we may see a similar upsurge in bicyclists as gas prices continue to rise, particularly in the cities of Providence and Boston.

May 4, 2010

Black Eyed Peas Record Setting Download Confirms Music Industry is Forever Changed

The Black Eyed Peas insanely infectious song "I Gotta Feeling" has become the most downloaded song in history topping 5 and a half million legal downloads. I would venture to guess that the number of illegal downloads would bring the total number to well over ten million.

Itunes has also recently reported that it has sold ten billion downloads from its site. That lucky track belonged to Mr. Johnny Cash. These numbers, only a few years after MP3 became a household term, confirms that the music industry is forever changed. Think about it - 10 Billion downloads!

The Recording Industry Association of America would likely say that the internet has decimated the music industry due to piracy and illegal downloading of music. This is evidenced by the number of lawsuits against every day people who illegally downloaded a few songs off limewire or similar peer networks. I think it is preferable to say that the internet has reinvented the music industry. While big name performers and major record labels may feel their wallets tightening, artists and musicians across the globe can thank the internet for new opportunities that would never have been available before.

Social networking, Pandora.com, Myspace, Internet Radio, youtube, and sites like Itunes, offerring legal downloads allow anyone who has recorded a song or full length CD to become a professional artist. A savvy internet user can create buzz about their band and generate sales without the help of major record label or publishing companies. In fact, many well known artists are now publishing their own records and/or releasing albums solely online. With the right contacts and initiative, artists can also find commercial venues to license their music. No longer do artists have to wait and pray that a record label will somehow discover them and make them famous.

While it is easier to get one's music out to a larger audience, certain precautions still need to be made. It is imperative that you trademark your artist name, properly copyright your material (and I don't mean mailing a CD to yourself), and learn about music publishing and online distribution. If necessary, it is also helpful to have a band partnership agreement so that there are no disputes when the money starts rolling in or the lead guitarist decides to move to Vegas. When you've done all that - your may be off and running. Luckily, my office can help with all of this.

I have advised and represented many artists and I can help jumpstart your music career.

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May 1, 2010

Will New Jersey Allow Drunk Drivers to Sue the Bars That Served Them?

I found this interesting article on the legal blog watch. Following my recent post about the Red Room and liquor liability, comes news that a New Jersey Appellate Court has now ruled that drunk drivers, injured in an auto accident of their own causing, can now sue the bar or club that served them despite obvious intoxication.

I suspect that such a ruling will be shot down at the Supreme Court level or overturned by the legislature, not necessarily because the reasoning is flawed, but because public policy demands it. In fact, the ruling is already in conflict with a New Jersey law that states a driver convicted of DUI shall have no cause of action over his or her injuries. A reading of the decision shows that the Court gave greater weight to the Dram Shop Act than to the above stated law. The NJ Dram Shop Act, similar to our own, indicates that ANYONE injured as a result of the negligent service of alcohol may have an action against the licensed provider of that alcohol. The New Jersey Appellate Court reasoned that there is no bar to ANYONE including the drunk driver.

Drunk drivers are often vilified because it is well known that it is a reckless and dangerous activity that puts peoples lives at risk. This is indisputable. Unfortunately, one of the effects of alcohol is to reduce our ability to reason and use proper judgment. Isn't it reasonable, therefore, to hold the negligent server of alcohol responsible since they profit heavily from increased intoxication. Please know that I am only playing devil's advocate here, and I understand that a reasonable person would cut himself off before he gets to a point in which he can no longer drive.

I found this ruling interesting. It expands the scope of the Dram Shop Act, and I believe rightfully so. That is not to say that drunk drivers should be awarded for their reckless behavior, but a licensed vendor of liquor, an intoxicating and dangerous drug, needs to be more carefully regulated and held responsible when they place profits over safety. Again, I imagine that this ruling will be overturned for public policy reasons - but it is interesting nonetheless.


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April 27, 2010

Older Motorcyclists Suffer More Frequent and Serious Injuries

The Boston Globe had this interesting article discussing not only the growing number of older bike riders, but the fact that these motorcycle riders sustain more frequent and severe injuries than younger riders.

The mean age of motorcycle ownership has risen in the past decade from 33.1 in 1998 to 40.2 in recent years. Whether 40 is the new 20 or baby-boomers are reconnecting with their youth, the fact is that bike riders are older in age. The study highlighted in the Globe article, indicates that riders over 40 years old sustain more serious injuries, have longer hospital stays, and increased risk of dying from motorcycle accidents than riders under 40 years of age.

Some of the troubling findings include:


  • rib fractures are twice as common for riders over 40

  • 32% of bike riders over 40 required stays in the intensive care unit compared to 27% of riders under 40

  • Riders over 40 were more likely to suffer from pneumonia, infections, or blood clots

  • Older riders are twice as likely to die from less serious injuries


Citing the State Department of Health, the Globe report also shows that in Massachusetts, the rate of motorcycle related deaths and injuries among 55 to 64 year olds increased by 400%.

As the body ages it is less able to deal with trauma and this is the reason cited for these startling statistics. For instance, older riders have thinning bones and less resilient tissue. Older riders are more likely to have pre-existing complications such as diabetes and heart problems.

Finally, the study reported that helmet use is only around 73% for both the under and over 40 age groups. This is far too low for any age rider because wearing a helmet is the single easiest thing one can do to prevent serious injury.

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April 25, 2010

Examining the Link Between Cerebral Palsy and Medical Malpractice

Cerebral Palsy is a permanent disorder affecting motor skills and coordination. It is caused by damage to the motor control center of the brain (cerebrum) and can occur in utero, at birth, or up to three years after birth. Newborn children may not immediately display signs and symptoms of Cerebral Palsy but you should immediately contact a doctor if you notice any of the following:

  • poor coordination
  • stiff muscles
  • unusual posture
  • involuntary movements
  • difficult or delayed crawling and walking
Cerebral Palsy and Child Birth Medical Malpractice


There are many forms of Cerebral Palsy and the condition can occur for any number of reasons, some of which are unavoidable. A percentage of Cerebral Palsy cases, however, occur due to medical error during childbirth.

Infection, head injury and lack of oxygen are three of the ways in which Cerebral Palsy can occur during childbirth. A few of the mistakes that doctors might make during delivery leading to Cerebral Palsy are:

  • Failure to detect and treat a prolapsed umbilical cord
  • Improper use of forceps and/or vacuum
  • Leaving the child in the birth canal too long despite lack of oxygen
  • Inadequately responding to fetal distress or changes in the fetal heart rate
  • Failing to perform a C-section despite fetal distress
  • Failure to identify and treat seizures after delivery

All medical malpractice cases are a challenge and the burden is on the plaintiff to prove that a child's Cerebral Palsy was caused by doctor error and not another cause. If your child has recently been diagnosed with Cerebral Palsy, especially if the child had a difficult birth experience, it is in your best interest to contact an attorney right away.

Damages for medical malpractice

Victims of Cerebral Palsy are unable to operate in society and in the workforce at the same level as others. They may also suffer a reduced IQ. Therefore, Cerebral Palsy is truly a life changing condition. While it may be impossible to place a value on such a condition, one report conducted in 2003 suggested that those suffering from Cerebral Palsy lost $921,000 due to medical expenses and inability to work.

This amount, which already seems slightly low, does not include damages for pain and suffering which could be in the millions.

Unfortunately, there is no known cure for this terrible condition.

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