Jaclyn Roos, Appellant,

STATE OF MINNESOTA
IN COURT OF APPEALS
A24-1339

Jaclyn Roos,
Appellant,

Carol Naumann,
Plaintiff,

vs.

HealthPartners, Inc., et al.,
Respondents,

Richard Mahr, et al.,
Defendants.

Filed May 5, 2025
Reversed and remanded
Larson, Judge

Ramsey County District Court
File No. 62-CV-23-6340

Andrew W. Barnhart, Barnhart Law Office, PLLC, Long Prairie, Minnesota (for appellant)

Andrew Brantingham, Nathan J. Ebnet, Luke Wetterstrom, Dorsey & Whitney, LLP,
Minneapolis, Minnesota (for respondents)

Considered and decided by Slieter, Presiding Judge; Cochran, Judge; and Larson,
Judge.
SYLLABUS
When a plaintiff alleges a medical-negligence claim based upon a misdiagnosis, a
defendant covered under the Public Readiness and Emergency Preparedness Act, 42 U.S.C.
§ 247d-6d (2018) (PREP Act), is not entitled to immunity because they used a treatment
that is a covered countermeasure to treat the misdiagnosed medical condition.
2
OPINION
LARSON, Judge
Appellant Jaclyn Roos challenges the district court’s decision to dismiss her
amended complaint on the ground that respondents HealthPartners, Inc., and Regions
Hospital are immune from suit under the PREP Act. Because Roos’s complaint alleged a
claim for which respondents are not immune from suit and the district court failed to draw
all reasonable inferences from those allegations in Roos’s favor, we reverse and remand.1
FACTS
In reviewing a district court’s decision to grant a motion to dismiss, “we accept the
factual allegations in the complaint as true.” Abel v. Abbott Nw. Hosp., 947 N.W.2d 58,
64 n.2 (Minn. 2020). The following facts are derived from Roos’s amended complaint.
On November 18, 2020, Roos’s husband (decedent) was admitted to Regions
Hospital “with shortness of breath, fever, weakness, and fatigue.” Decedent had
community-acquired pneumonia when admitted. “Known causes of community-acquired
pneumonia are bacterial, viral, fungi or Covid-19, and are typically ruled out in that order.”
Decedent, a licensed pharmacist, “immediately and repeatedly” told hospital staff “that he

1 In response to respondents’ motion to dismiss the amended complaint, Roos filed a
motion for leave to file a second amended complaint, which the district court denied. Roos
argues alternatively that the district court abused its discretion when it denied this motion.
Because we reverse the district court’s decision to grant the motion to dismiss, we need not
decide whether the district court abused its discretion when it denied Roos’s motion to
amend. But had we reached this issue, we would have reversed because amendments to
the pleadings should be liberally granted, and respondents failed to show any prejudice.
See Voicestream Minneapolis, Inc. v. RPC Props., Inc., 743 N.W.2d 267, 272 (Minn. 2008)
(“Leave to amend should be freely granted unless it results in prejudice to the other party.”).
3
believed he had bacterial pneumonia.” Roos also “repeatedly reminded [hospital staff] that
[d]ecedent believed he had bacterial pneumonia” and Roos “repeatedly asked [hospital
staff] what they were doing to test for and treat it.”
Without any testing, hospital staff diagnosed decedent with COVID-19 and viral
COVID pneumonia. They administered antiviral medications and anti-inflammatory
immunosuppressants to treat those conditions. Hospital staff also administered
“financially incentivized” COVID-19 treatments.
On November 23, 2020, decedent’s sixth day in the hospital, hospital staff began
treating decedent with antibiotics to combat bacterial pneumonia. After 28 hours, hospital
staff stopped giving decedent antibiotics, but they resumed antibiotic treatment 33 hours
later. The medical records attached to the complaint indicate that these treatments were
administered simultaneously with the COVID-19 and viral COVID pneumonia treatments.
On November 27, 2020, hospital staff tested decedent for bacterial pneumonia, and
he tested positive. On December 2, 2020, decedent experienced a cardiac arrest and was
transferred to another hospital. Decedent received treatment at the second hospital until
his death on December 23, 2020.
On November 29, 2023, Roos and a now- dismissed plaintiff filed the original
complaint in this action. Respondents moved for a more definite statement. On February
12, 2024, Roos filed an amended complaint. The amended complaint alleged one cause of
action against respondents: “survival action and wrongful death medical negligence.” The
amended complaint asserted that because respondents failed to treat decedent’s bacterial
pneumonia upon his admission and failed to treat it properly throughout his time at the
4
facility, decedent’s “bacterial infection . . . spread throughout his body and caused his
death.” Respondents moved to dismiss the amended complaint, arguing that they were
immune from suit under the PREP Act. On June 26, 2024, t he district court granted
respondents’ motion to dismiss.
Roos appeals.
ISSUE
Did the district court err when it granted respondents’ motion to dismiss the
amended complaint on the basis that respondents are entitled to immunity under the
PREP Act?
ANALYSIS
Roos challenges the district court’s decision to dismiss the amended complaint for
failure to state a claim under Minn. R. Civ. P. 12.02(e) on the ground that respondents are
entitled to immunity under the PREP Act. Specifically, Roos argues the district court
improperly drew inferences from the complaint in favor of respondents to reach its decision
that respondents are entitled to immunity.
When reviewing the dismissal of a complaint for failure to state a claim, “we review
the legal sufficiency of the claim de novo to determine whether the complaint sets forth a
legally sufficient claim for relief.” Graphic Commc’ns Loc. 1B Health & Welfare Fund
“A” v. CVS Caremark Corp., 850 N.W.2d 682, 692 (Minn. 2014). “We accept the facts
alleged in the complaint as true and construe all reasonable inferences in favor of the
nonmoving party.” Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 606 (Minn. 2014). A claim
survives “a motion to dismiss for failure to state a claim if it is possible on any evidence
5
which might be produced, consistent with the pleader’s theory, to grant the relief
demanded.” Id. at 603.
To address Roos’s argument, we begin with an overview of the PREP Act. We then
address the allegations in the amended complaint and whether respondents are entitled to
immunity at this stage of the litigation.
A.
“Congress enacted the PREP Act in 2005 to encourage the expeditious development
and deployment of medical countermeasures during a public health emergency by allowing
the [United States Secretary of Health and Human Services (secretary)] to limit legal
liability for losses relating to the administration of medical countermeasures such as
diagnostics, treatments, and vaccines.” Cannon v. Watermark Retirement Cmtys., Inc., 45
F.4th 137, 139 (D.C. Cir. 2022) (quotation omitted).
2 The PREP Act creates an immunity
“from suit and liability from claims related to the administration of a covered
countermeasure” during a public-health emergency. Maglioli v. All. HC Holdings LLC, 16
F.4th 393, 400- 01 (3d Cir. 2021). “The immunity is triggered by a declaration from the

2 Although we are bound only by U.S. Supreme Court and Minnesota Supreme Court
decisions interpreting the PREP Act, other federal court and state court decisions provide
persuasive authority. See Citizens for a Balanced City v. Plymouth Congregational
Church, 672 N.W.2d 13, 20 (Minn. App. 2003) (recognizing that we are “bound by
decision[s] of the Minnesota Supreme Court and the United States Supreme Court,” but
not “by any other federal courts’ opinion[s]” though such “opinions are persuasive and
should be afforded due deference”); Mahowald v. Minn. Gas Co., 344 N.W.2d 856, 861
(Minn. 1984) (noting that although decisions from courts of other states are not binding,
they may be persuasive).
6
[s]ecretary identifying the threat to public health, the period during which immunity is in
effect, and other particulars.” Cannon, 45 F.4th at 139.
The PREP Act provides, in relevant part, that
a covered person shall be immune from suit and liability under
Federal and State law with respect to all claims for loss caused
by, arising out of, relating to, or resulting from the
administration to or the use by an individual of a covered
countermeasure if a declaration under subsection (b) has been
issued with respect to such countermeasure.

42 U.S.C. § 247d-6d(a)(1). From this statute, federal courts have discerned that a defendant
is entitled to PREP -Act immunity if: (1) the treatment at issue is a covered
countermeasure; (2) the defendant is a covered person; 3 and (3) the plaintiff’s claim bears
a causal relationship to the administration of the covered countermeasure. See Maglioli,
16 F.4th at 400-01; Maney v. Brown, 91 F.4th 1296, 1300 (9th Cir. 2024).4
Relevant to this case is the secretary’s invocation of the PREP Act in response to
the COVID-19 pandemic. The secretary issued a declaration invoking the PREP Act on
March 10, 2020, based on his determination that “the spread of SARS-CoV- 2 or a virus

3 The parties agree that respondents and their employees are “covered person[s]” under the
statute. See 42 U.S.C. § 247d-6d(i)(2) (defining “covered person” to include “a person or
entity that is . . . a qualified person who prescribed, administered, or dispensed such
countermeasure”), (i)(5) (defining “person” as “an individual, partnership, corporation,
association, entity, or public or private corporation”), (i)(8) (defining “qualified person” as
“a licensed health professional or other individual who is authorized to prescribe,
administer, or dispense . . . countermeasures”).
4 Some courts treat “loss” as a fourth element. See Baghikian v. Providence Health &
Servs., 715 F. Supp. 3d 1265, 1272 (C.D. Cal. 2024); De Becker v. UHS of Del., Inc., 555
P.3d 1192, 1201-02 (Nev. 2024); State ex rel. Clinton No. 1, Inc. v. Baker, No. SC 100099,
2024 WL 942543, at *2 (Mo. Mar. 5, 2024). The complaint alleged a “loss” as that term
is defined under the PREP Act—decedent’s death. See 42 U.S.C. § 247d-6d(a)(2)(A)(i)
(defining “loss” as “any type of loss, including . . . death”).
7
mutating therefrom and the resulting disease, COVID-19, constitute[d] a public health
emergency.”5 Declaration Under the P ublic Readiness and Emergency Preparedness Act
for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15 ,198, 15,198, 15,203
(Mar. 17, 2020). In a December 3, 2020 amendment, effective retroactively to February 4,
2020, the secretary declared that the PREP Act’s immunity applied to “the manufacture,
testing, development, distribution, administration, and use of [c]overed
[c]ountermeasures.” Fourth Amendment to the Declaration Under the Public Readiness
and Emergency Preparedness Act for Medical Countermeasures Against COVID- 19, 85
Fed. Reg. 79,190, 79,190, 79,195, 79,198 (Dec. 9, 2020). “Covered [c]ountermeasures”
included, in relevant part:
6
(a) Any antiviral, any drug, any biologic, any diagnostic,
any other device, any respiratory protective device, or any
vaccine manufactured, used, designed, developed, modified,
licensed, or procured:
i. [t]o diagnose, mitigate, prevent, treat, or cure
COVID-19, or the transmission of SARS -CoV-2 or a virus
mutating therefrom; or
ii. to limit the harm that COVID-19, or the
transmission of SARS- CoV-2 or a virus mutating therefrom,
might otherwise cause[.]

Id. at 79,196.

5 Decedent was admitted to Regions Hospital on November 18, 2020 , and transferred to
another hospital on December 3, 2020. The secretary’s declaration was most recently
amended on December 6, 2024, to extend its duration to December 31, 2029. See 12th
Amendment to Declaration Under the Public Readiness and Emergency Preparedness Act
for Medical Countermeasures Against COVID-19, 89 Fed. Reg. 99 ,875, 99,876, 99,883
(Dec. 11, 2024) [hereinafter “12th Amendment”]. Accordingly, it is undisputed that the
PREP Act was in effect during the events underlying Roos’s claim.
6 “Covered [c]ountermeasures” continues to have the same definition. See 12th
Amendment, 89 Fed. Reg. at 99,880.
8
With these provisions in mind, we turn to Roos’s argument.
B.
Roos challenges the district court’s decision to grant respondents’ motion to dismiss
the amended complaint on the basis that respondents are entitled to immunity. Specifically,
Roos argues the district court: (1) improperly construed the complaint to allege that
respondents’ decision to use covered countermeasures caused decedent’s death and
(2) made unreasonable inferences when it determined the complaint alleged only conduct
with a causal relationship to the use of covered countermeasures. We address each
argument in turn.
1. Covered Countermeasures
Roos first argues the district court improperly dismissed the amended complaint on
the basis that some of the alleged negligent conduct constituted the administration of
“covered countermeasures.” In particular, Roos observes that, despite her clear argument
that “the gravamen of her [complaint] . . . was that the harm arose from the failure to treat
[decedent’s] bacterial pneumonia with antibiotics,” the district court determined that the
complaint’s “express[] reference [to] COVID-19 and the alleged negative impact
countermeasures had on decedent’s likelihood to recover” meant that respondents were
entitled to immunity.
We first address the district court’s determinations with which we agree. In two
paragraphs of the amended complaint, Roos made allegations specifically regarding the
administration of covered countermeasures to decedent. Paragraphs 18 and 19 provide:
9
18. During the time [respondents] should have been
treating [d]ecedent for bacterial pneumonia, they were instead
treating him for Covid-19 with antiviral medications as well as
for viral covid pneumonia with anti-inflammatory
immunosuppressants which impeded [d]ecedent ’s ability to
fight the bacterial pneumonia.

19. [Respondents] were administering financially
incentivized Covid-19 treatments to [d]ecedent despite never
testing him for Covid-19.

We agree with the district court that, to the extent these allegations relate to the
administration of COVID-19 treatments generally, and antiviral medications specifically,
both fall plainly within the scope of covered countermeasures. See id. (defining “[a]ny
antiviral, any drug, any biologic, any diagnostic, any other device, any respiratory
protective device, or any vaccine . . . used . . . [t]o diagnose, mitigate, prevent, treat, or
cure COVID-19” as covered countermeasures (emphases added)).
Where we depart from the district court ’s determination is its inference from these
two paragraphs that the amended complaint alleges that the use of covered
countermeasures caused decedent’s death. Instead, the allegations of medical negligence
in the amended complaint are not limited to negligent treatment; Roos’s primary allegation
is misdiagnosis—respondents failed to test and treat decedent for the condition that led to
his death (bacterial pneumonia). Removing paragraphs 18 and 19, Roos’s complaint reads:
10. Decedent’s medical records from [respondents]
state unequivocally that [d]ecedent had community-acquired
pneumonia at the time of his admission to their hospital.

11. Known causes of community-acquired
pneumonia are bacterial, viral, fungi or Covid-19, and are
typically ruled out in that order.

10
12. [Respondents] tested [d]ecedent for Influenza A
and B within several hours of taking him under their care, and
he was negative for both.

13. [Respondents] never tested [d]ecedent for
Covid-19.

14. [Respondents] failed to give [d]ecedent a sputum
test for bacterial pneumonia for the first 8 days he was under
their care.

15. Decedent, having had bacterial pneumonia years
prior and being familiar with its symptoms, upon being placed
under [respondents’] care, immediately and repeatedly told
them that he believed he had bacterial pneumonia.

16. Immediately after [d]ecedent was placed under
[respondents’] care, [Roos] repeatedly reminded [respondents]
that [d]ecedent believed he had bacterial pneumonia and
repeatedly asked them what they were doing to test for and
treat it.

17. Defendants withheld antibiotic treatment from
[d]ecedent for his bacterial pneumonia during the first five
days that he was under their care.

. . . .

20. On the sixth day that [d]ecedent was under their
care, [respondents] finally began providing him antibiotic
treatment for bacterial pneumonia, IV Cefepime, which is
actually inferior to Azithromycin for this purpose; however,
they discontinued this treatment after only 28 hours and
allowed a 33-hour gap in antibiotic treatment until it was
recommenced and continued for 5 days.

21. [Respondents’] failure to initially treat
[d]ecedent’s bacterial pneumonia followed by their failure to
treat it properly caused the bacterial infection to spread
throughout his body and cause his death.

11
Accordingly, omitting paragraphs 18 and 19, the remaining paragraphs, taken in the light
most favorable Roos, form a reasonable inference that the decedent was misdiagnosed.
And to the extent Roos makes allegations regarding the administration of particular
treatments, most of those treatments do not fall within the scope of “covered
countermeasures” as defined in the secretary’s declaration. See id. Most obviously,
paragraph 20 makes allegations regarding antibiotic treatments, which were plainly not
covered countermeasures under the secretary’s declaration. See id. And paragraph 18
makes allegations regarding decedent’s treatment “for viral covid pneumonia with anti-
inflammatory immunosuppressants,” which also were not covered countermeasures under
the secretary’s declaration. See id.
That leaves Roos’s allegations regarding respondents’ use of antiviral medications
to treat COVID- 19 in paragraph 18. The parties engage in extended analyses of the
meaning of paragraph 18 in their briefing. Roos concedes that paragraph 18 is ambiguous,
but argues that she intended to “allege[] that in addition to treating [d]ecedent for Covid-
19 with antiviral medications, [respondents] were treating him for viral covid pneumonia
with anti-inflammatory immunosuppressants which impeded [d]ecedent’s abilit y to fight
the bacterial pneumonia.” Respondents counter that Roos’s proposed interpretation is
unreasonable. But we agree with Roos that paragraph 18 invites competing inferences.
And we are required to settle these competing inferences in Roos’s favor at this stage of
the proceedings. See Walmart Inc. v. Winona County, 963 N.W.2d 192, 196 (Minn. 2021).
Accordingly, when reasonable inferences are made in Roos’s favor, paragraph 18 alleges
that it was the anti-inflammatory immunosuppressants that impeded decedent’s ability to
12
fight the bacterial pneumonia and not the covered countermeasures used to treat COVID-
19.
We therefore conclude that, when reasonable inferences are construed in Roos’s
favor, the amended complaint alleges that respondents’ misdiagnosis of decedent’s
condition and administration of specific treatments not covered by the PREP Act caused
decedent’s death.
2. Causal Relationship
Because we discern that, taking all inferences in the light most favorable to Roos,
the amended complaint alleges that a misdiagnosis and treatments other than covered
countermeasures caused decedent’s death, we must evaluate whether the allegations in the
amended complaint, nonetheless, bear a causal relationship to the administration of the
covered countermeasure. See Maglioli, 16 F.4th at 400-01. The district court determined
that Roos “expressly alleged” that decedent’s death “arose out of or related to the
administration of a covered countermeasure,” such that this element was satisfied.
Application of the causal-relationship element has been well explored outside
Minnesota. See Mills v. Hartford Healthcare Corp., 298 A.3d 605, 630 ( Conn. 2023).
Some courts have described the PREP Act’s causation language in broad terms. See, e.g.,
Maney, 91 F.4th at 1300-01 (describing an “expansive causal relationship” between the
administration of covered countermeasures and the plaintiff’s claim). Others have taken a
narrower approach. See, e.g., Hampton v. California, 83 F.4th 754, 764 (9th Cir. 2 023)
(“Considered in its context in the PREP Act, ‘relating to’ takes on a more targeted
meaning. . . . It is not enough that some countermeasure’s use could be described as
13
relating to the events underpinning the claim in some broad sense.”). But many courts,
when considering the causal -relationship element, have determined that PREP- Act
immunity does not apply to ordinary negligence claims. See Est. of Maglioli v. Andover
Subacute Rehab. Ctr. I , 478 F. Supp. 3d 518, 532 (D.N.J. 2020) (“[T]he [PREP] Act still
leaves room for ordinary claims of negligent or substandard care.”), aff’d sub nom.
Maglioli, 16 F.4th at 400; Mills, 298 A.3d at 633-34, 633 n.31 (collecting cases).
As indicated above, we conclude that the thrust of Roos’s amended complaint is
misdiagnosis—that respondents failed to test and properly treat decedent for bacterial
pneumonia and those failures caused his death. Yet, we acknowledge that Roos’s amended
complaint includes allegations that covered countermeasures were used in decedent’s
treatment— even if they did not cause his death. Thus, we must decide whether
respondents are entitled to immunity because their treatment of decedent’s bacterial
pneumonia with a covered countermeasure bears a causal relationship to decedent’s death
as contemplated by the PREP Act.
One persuasive case out of Connecticut aids our understanding of the causal -
relationship element in the misdiagnosis context. There, the decedent went to the
emergency room in March 2020 complaining of a sore throat and headache, and test results
indicated that she was having a heart attack. Mills, 298 A.3d at 611. Because staff
suspected the decedent had COVID-19, the decedent’s admission to the catheterization lab
was deferred. Id. at 612. Staff administered a COVID-19 diagnostic test to the decedent—
a covered countermeasure—which returned negative after several days. Id. at 612-13, 629.
The decedent was admitted to the catheterization lab the next day, but died before treatment
14
could be administered. Id. at 613. The plaintiff filed a wrongful-death action against the
hospital and several physicians. Id. at 610. Applying a rule similar to Minn. R. Civ.
P. 12.02, the district court determined that some defendants were immune from suit under
the PREP Act and dismissed the claims against those defendants. Id. The Connecticut
Supreme Court reversed. Id. at 610-11. The supreme court noted that the plaintiff’s
allegations included failures to timely diagnose the decedent’s heart condition, transfer the
decedent to the catheterization lab, and properly monitor the decedent. Id. at 632. The
supreme court recognized the possibility of a causal relationship between “the delay in
treatment attendant to the COVID-19 test” and the decedent’s death but concluded that
“the mere fact that the defendants administered and used a COVID-19 test did not, in and
of itself, dictate whether they should or should not proceed with treatment while the test
result was pending.” Id. at 632-33. Accordingly, the PREP Act did not provide the
defendants with immunity for a loss arising from their “treatment of the decedent before
the receipt of the negative COVID-19 test result.” Id. at 634.7

7 A similar result was reached in Waters v. Kory. No. 3:24 -CV-00858 (KAD), 2025 WL
20556, at *4 (D. Conn. Jan. 2, 2025), appeal docketed, No. 25-524 (2d Cir. Mar. 6, 2025).
There, the decedent was diagnosed with COVID-19 in early December 2021 and sought
treatment. Id. at *2. The doctor prescribed the decedent a covered countermeasure but
neglected to prescribe an additional medication that is typically taken in conjunction with
the covered countermeasure to prevent patients from developing a separate disease. Id.
The decedent thereafter contracted that separate disease and died. Id. The federal district
court denied the doctor’s motion to dismiss a subsequently filed wrongful-death action
under the PREP Act. Id. at *6. The federal district court noted that the plaintiff alleged
the doctor’s “failure to take other action . . . caused the decedent’s death,” rather than the
doctor’s administration of a covered countermeasure, and that this “other action” could
have been taken regardless of the decedent’s COVID-19 diagnosis. Id. at *4. The federal
district court reasoned that “the negligence occurred when [the doctor] failed to mitigate

15
Here, we reach a similar conclusion that the allegations in Roos’s amended
complaint do not evince a causal relationship between the covered countermeasure and
decedent’s death. The amended complaint focuses on respondents’ “failure to initially
treat [d]ecedent’s bacterial pneumonia” and, after diagnosis, “failure to treat it properly.”
(Emphasis added.) The amended complaint alleges that these “failure[s]”— not
respondents’ administration of a covered countermeasure—“caused the bacterial infection
to spread throughout [decedent’s] body and cause his death.” (Emphasis added.) Thus,
the alleged negligence occurred when respondents failed to treat the condition that
ultimately caused decedent’s death. Further, there is nothing in the amended complaint—
or the attendant medical records—that suggests respondents could not have simultaneously
treated decedent for COVID-19 and bacterial pneumonia. In fact, the medical records
attached to the complaint indicate that decedent received simultaneous treatments for both
conditions five days after he was admitted to the hospital. Thus, like in Mills, the mere fact
that respondents suspected decedent had COVID-19 did not, in and of itself, dictate that
they should not also proceed with testing and treatment for bacterial pneumonia under the
facts as alleged in the amended complaint. Accordingly, we conclude that, drawing all
reasonable inferences in Roos’s favor, the amended complaint does not allege a causal
relationship between the administration of covered countermeasures and decedent’s death.

against the very condition that ultimately occurred and resulted in [the decedent’s] death.”
Id. Because the plaintiff’s claims stemmed from a failure to prescribe the additional
medication, rather than the administration or use of the countermeasure, the federal district
court determined there was no causal relationship, and the PREP Act did not apply.
Id. at *5.
16
Because we must allow this case to proceed if “it is possible on any evidence which
might be produced” that Roos was entitled to her requested relief, dismissal of the amended
complaint was inappropriate. See Walsh, 851 N.W.2d at 603. We, therefore, reverse the
district court because respondents are not entitled to immunity under the PREP Act at this
stage in the litigation.
DECISION
Because Roos alleged a medical-negligence claim for which respondents are not
immune from suit under the PREP Act when all reasonable inferences are drawn in Roos’s
favor, we conclude the district court erred when it granted respondents’ motion to dismiss
the amended complaint. We reverse and remand with instructions to reinstate the amended
complaint and for further proceedings consistent with this opinion.
Reversed and remanded.